        NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
        48 CFR Parts 1812, 1831, 1846, and 1852
        RIN 2700-AE38
        NASA Federal Acquisition Regulation Supplement: Detection and Avoidance of Counterfeit Parts (NFS Case 2017-N010)

          AGENCY:
          National Aeronautics and Space Administration.

          ACTION:
          Proposed rule.

          SUMMARY:
          NASA is proposing to amend the NASA Federal Acquisition Regulation Supplement (NFS) to add new text that requires covered contractors and subcontractors at all tiers to use electronic parts that are currently in production and purchased from the original manufacturers of the parts, their authorized dealers, or suppliers who obtain such parts exclusively from the original manufacturers of the parts or their authorized dealers. If the contractor does not purchase electronic parts as described above, they must purchase the parts from a NASA identified supplier or contractor-approved supplier. The contractor will then assume responsibility and be required to inspect, test and validate authentication of the parts. The contractor will also be required to obtain traceability information and provide this information to the contracting officer upon request. The selection of contractor-approved suppliers is subject to review and audit by the contracting officer.

          DATES:
          Comments on the proposed rule should be submitted in writing to the address shown below on or before March 9, 2020, to be considered in the formation of a final rule.

          ADDRESSES:
          Submit comments identified by NFS Case 2017-N010, using any of the following methods:
          ○ Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by entering “NFS Case 2017-N010” under the heading “Enter keyword or ID” and selecting “Search.” Select the link “Submit a Comment” that corresponds with “NFS Case 2017-N010” Follow the instructions provided at the “Submit a Comment” screen. Please include your name, company name (if any), and “NFS Case 2017-N010” on your attached document.
          ○ Email: Dorice.M.Kenely@nasa.gov. Include NFS Case 2017-N010 in the subject line of the message.
          ○ Mail: National Aeronautics and Space Administration, Headquarters, Office of Procurement, Policy, Training and Pricing Division, Attn: Dorice Kenely, LP-011, 300 E Street SW, Washington, DC 20546-0001.

          FOR FURTHER INFORMATION CONTACT:
          Dorice Kenely, NASA HQ, Office of Procurement, Policy, Training and Pricing Division, LP-011, 300 E Street SW, Washington, DC 20456-0001. Telephone 202-358-0443; facsimile 202-358-3082.

        SUPPLEMENTARY INFORMATION:

        I. Background

        This proposed rule implements section 823(c)(2)(B) of Public Law 115-10, the National Aeronautics and Space Administration Transition Authorization Act of 2017. In this Section Congress stated it found in a 2012 Investigation by the Committee on Armed Services counterfeit electronic parts in the Department of Defense supply chain. From 2009 through 2010 the investigation uncovered 1,800 cases and over 1,000,000 counterfeit parts. This exposed the threat counterfeit parts pose to service members and national security. Since 2010, the Comptroller General of the United States has discussed in three reports the risks and challenges associated with counterfeit parts and counterfeit prevention at both the Department of Defense and NASA, including inconsistent definitions of counterfeit parts, poorly targeted quality control practices, and other potential barriers to improvements to these practices.
        With this rule, NASA is proposing to revise the NASA Federal Acquisition Regulation Supplement (NFS) to add new text requiring a covered contractor, defined as a contractor supplying an electronic part or a product that contains an electronic part, and their subcontractors at all tiers to use electronic parts that are currently in production and purchased from the original manufacturers, their authorized dealers, or suppliers who obtain such parts exclusively from the original manufacturers of the parts or their authorized dealers. If the contractor does not purchase electronic parts as described above they must purchase the parts from a NASA identified supplier or contractor-approved supplier. The contractor then assumes responsibility and be required to inspect, test and validate authentication of the part. The contractor will also be required to obtain traceability information and provide this information to the contracting officer upon request. The selection of contractor-approved suppliers is subject to review and audit by the contracting officer.
        II. Discussion
        The following NFS subparts, 1812 “Acquisition of Commercial Items”, 1831 “Contract Cost Principles and Procedures” and 1846 “Quality Assurance” are being revised to add language to implement the requirements of the NASA Transition Authorization Act of 2017 by: Defining the term counterfeit electronic parts (1846 “Quality Assurance”); requiring covered contractors and subcontractors at all tiers to use parts that are currently in production and purchased from the original manufacturers of the parts, their authorized dealers, or suppliers who obtain such parts exclusively from the original manufacturers of the parts or their authorized dealers and identifying requirements when the contractor doesn't use those electronic parts (1846 “Quality Assurance”); and making the cost of corrective actions involving counterfeit parts unallowable unless the contractor meets the requirements stated in the proposed policy (1831 “Contract Cost Principles and Procedures”).
        The additional definitions within the proposed policy to the NFS can be found in the DFARS 252.246-7007 and 252.246-7008, addressing the same subject, Detection and Avoidance of Counterfeit Parts. The proposed changes to the NFS will apply to all procurements involving electronic parts, end items, components, parts, or assemblies containing electronic parts, or services, if the covered contractor will supply electronic parts or components, parts, or assemblies containing electronic parts as part of the service.
        NASA is aware of one occurrence of a suspect counterfeit part within the last 17 years, as reported in Government Industry Data Exchange Program (GIDEP). Given what appears to be a low occurrence of counterfeit parts in NASA procurements, NASA anticipates the proposed rule will impose a limited burden on NASA contractors.
        III. Expected Impact of the Proposed Rule and Differentiation From FAR Council Rule on GIDEP
        Both the FAR final rule entitled, “Federal Acquisition Regulation: Reporting of Nonconforming Items to the Government-Industry Data Exchange Program (FAR Case 2013-002)” published at 84 FR 64680, and this NFS rule pertain to the topic of counterfeit parts and suspected counterfeit parts, however discernable differences do exist between the two rule as they are implementing separate acts. The FAR rule is implementing sections 818(c)(4) and (c)(5) of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2012 (Pub. L. 112-81, 10 U.S.C. 2302 Note) while the NFS rule is implementing section 823 of the National Aeronautics and Space Administration Transition Authorization Act of 2017 (Pub. L. 115-10).
        The following highlights the similarities and differences between these two rules:
        Applicability—Commercial/COTS and SAT
        The FAR Council determined that the FAR rule does not apply to commercial items, including commercially available off-the-shelf (COTS) items, or to contract at or below the simplified acquisition threshold (SAT). NASA has determined that the NFS rule applies to commercial items, including COTS items, and to contracts at or below the SAT. Section 823 of the National Aeronautics and Space Administration Transition Authorization Act of 2017 (Pub. L. 115-10) does not provide for any exemptions to the requirements being implemented via this rule.
        Scope
        While both rules pertain to the topic of counterfeit parts and suspected counterfeit parts, the rules differ in the scope of items to which the regulations apply. The FAR rule has a broader application in the types of items that are covered under the new requirements. Specifically, the FAR rule is applicable to all items that are subject to higher-level quality standards in accordance with the clause at FAR 52.246-11, Higher-Level Contract Quality Requirement; all items that the contracting officer, in consultation with the requiring activity determines to be critical items for which use of the clause is appropriate; and for the acquisition of services, if the contractor will furnish, as part of the service, any items that meet the criteria specified in paragraphs (a)(1) through (a)(2) of this section. In addition, the FAR rule covers acquisitions that exceeds the simplified acquisition threshold and are by, or for, the Department of Defense for electronic parts or end items, components, parts, or materials containing electronic parts. Based on the requirements of section 823 of the National Aeronautics and Space Administration Transition Authorization Act of 2017 (Pub. L. 115-10), the NFS rule applies only to electronic parts for use in a safety or mission critical applications.
        Reporting/Notification

        The FAR rule requires two reporting requirements which are currently cleared under OMB Control number 9000-0187 titled Reporting of Nonconforming Items to the Government-Industry Data Exchange Program (FAR Case 2013-002)—FAR Sections affected: 52.246-26. One requirement is the submission of a report to GIDEP when the contractor becomes aware or has reason to suspect, such as through inspection, testing, record review, or notification from another source (e.g., seller, customer, third party) that an item purchased by the Contractor for delivery to, or for, the Government is a counterfeit or suspect counterfeit item or a common item that has a major or critical nonconformance.

        The second reporting requirement is a notification to the contracting officer after becoming aware or having reason to suspect, such as through inspection, testing, record review, or notification from another source (e.g., seller, customer, third party) that any end item, component, subassembly, part, or material contained in supplies purchased by the Contractor for delivery to, or for, the Government is counterfeit or suspect counterfeit. While the NFS rule does not include a GIDEP reporting requirement, like the FAR rule, the NFS rule does include a requirement to notify the contracting officer when the contractor becomes aware, or has reason to suspect, that any end item, component, part or material contained in supplies purchased by NASA, or purchased by a covered contractor or subcontractor for delivery to, or on behalf of, NASA, contains a counterfeit electronic part or suspect counterfeit electronic part.
        Allowability of Costs
        As required by section 823(c)(2)(B), of the National Aeronautics and Space Administration Transition Authorization Act of 2017 (Pub. L. 115-10), the NFS rule establishes that costs related to counterfeit parts, suspect counterfeit parts, or any corrective action that may be required to remedy the use or inclusion of such parts is unallowable unless a specific set of criteria is met. The FAR rule does not address the allowability of costs as it relates to the counterfeit parts, suspect counterfeit parts, or any corrective action that may be required to remedy the use or inclusion of such parts.
        Supply Chain Sources
        As required by section 823(c), of the National Aeronautics and Space Administration Transition Authorization Act of 2017 (Pub. L. 115-10), the NFS rule establishes required sources for both electronic parts that are in production or currently available in stock and separately electronic parts are not in production or currently available in stock from suppliers. The FAR rule does not address sources of items.
        IV. Applicability to Commercial Item Acquisitions, Including Commercially Available Off-the-Shelf (COTS) Items, and Acquisitions Below the Simplified Acquisition Threshold (SAT)
        The objective of this rule is to implement section 823 of the National Aeronautics and Space Administration Transition Authorization Act of 2017 (Pub. L. 115-10). Section 823 does not limit the application of the requirements of the statue to non-commercial contracts or contracts above the simplified acquisition threshold. Consistent with 41 U.S.C. 1905, 1906 and 1907, the NASA Assistant Administrator for Procurement has determined that it is in the best interest of NASA to apply section 823 to the acquisition of commercial items, including COTS items, and those requirements below the SAT.
        V. Executive Orders 12866 and 13563
        Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a significant regulatory action which was subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This is not a major rule under 5 U.S.C. 804.
        VI. Executive Order 13771
        This proposed rule is not expected to be subject to the requirements of E.O. 13771 because it is expected to result in no more than de minimus costs.
        VII. Regulatory Flexibility Act

        NASA does not expect this proposed rule to have a significant economic impact on small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. An initial regulatory flexibility analysis has been prepared and is summarized below.
        The rule will apply to all “covered contractors.” Covered contractors, as defined by Public Law 115-10 are contractors, including small entities, that supply an electronic part, or a product that contains an electronic part to NASA. While the rule will apply to all classes of small business, it will not necessarily affect those business because the rule requires reporting only when nonconforming defective and/or suspect counterfeit parts are present or there is suspicion that counterfeit parts are present in the supply chain. Since this rule requires contractors and subcontractors to purchase electronic parts that are currently in production from the original manufacturer, the authorized dealers or suppliers who obtain parts exclusively from the original manufacturer or for products that are not currently in production use of a NASA identified contractor, NASA believes that there is very little risk that a contractor or subcontractor will have a counterfeit part in the supply chain and thus very little risk that a small contractor will have to report. As reported in FPDS, NASA has had contract obligations with 3,120, 3,023 and 2,805 small business contractors in 2016, 2017 and 2018, respectively and no counterfeit parts were found in the supply chain. Further, based on the initial scope of the rule, NASA has assessed the number of commercial item acquisitions for electronic items procured above and below the simplified acquisition threshold and believe the impact of this proposed rule will be minimal. An analysis of data for the last three fiscal years from the FPDS revealed the following:

            Numberof actions

            Total dollaramount
              of actions

              2019

            Electronic Commercial Items
            131
            $17,810,644

            Under the SAT
            110
            6,348,554

            Above the SAT
            21
            11,462,089

              2018

            Electronic Commercial Items
            275
            38,516,656

            Under the SAT
            229
            10,922,058

            Above the SAT
            46
            27,594,598

              2017

            Electronic Commercial Items
            526
            38,020,457

            Under the SAT
            498
            16,934,479

            Above the SAT
            28
            21,085,978

        NASA invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.
        The policy requires covered contractors and subcontractors to notify the applicable NASA contracting officer in writing not later than 30 calendar days after the date the covered contractor becomes aware, or has reason to suspect, that any end item, component, part or material contained in supplies purchased by NASA, or purchased by a covered contractor or subcontractor for delivery to, or on behalf of, NASA, contains a counterfeit electronic part or suspect counterfeit electronic part.
        The proposed rule also requires covered contractors and subcontractors to purchase electronic parts that are currently in production from the original manufacturer, their authorized dealers or suppliers who obtain parts exclusively from the original manufacturer or their authorized dealers. Electronic parts that are not currently in production or available in stock shall be obtained from NASA identified suppliers or contractor-approved suppliers and the contractor assumes responsibility for the authenticity, inspection, testing and traceability of the part. Contractor-approved suppliers are subject to review and audit by the CO.
        VIII. Paperwork Reduction Act
        This proposed rule contains information collection requirements that requires the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35). Accordingly, NASA has submitted a request for approval of a new information collection requirement associated with NFS Case 2017-N010 Detection and Avoidance of Counterfeit Parts to the Office of Management and Budget.
        Public reporting burden for this collection of information is estimated to be 2 hours per response including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed and completing and reviewing the collection of information.
        The annual reporting burden is estimated as follows based on:

          Respondents: 1.

          Responses per Respondent: 1.

          Total Annual Responses: 1.

          Preparation Hours per Response: 2.

          Total Response Burden Hours: 2.
        Data reported via GIDEP, reveals that NASA has had only one alert of suspect counterfeit parts associated with a NASA contract within the last 17 years. Additionally, GIDEP alerts across the government have decreased since 2011 to the present. Both the one NASA specific GIDEP alert over the course of 17 years, and the downward trend of GIDEP alerts across the government substantiate the expected burden amounts.

          List of Subjects in 48 CFR: Parts 1812 “Acquisition of Commercial Items”; 1831 “Contract Cost Principles and Procedures”; 1846 “Quality Assurance”: 1852 Provisions and Clauses.
          Government procurement.

          Geoffrey Sage,
          NASA FAR Supplement Manager.

        Accordingly, NASA proposes to amend 48 CFR parts 1812, 1831, 1846, and 1852 as follows:
        1. The authority citation for parts 1816, 1832, and 1852 continues to read as follows:

          Authority:
           51 U.S.C. sec. 20113(a) and 48 CFR chapter 1.

          PART 1812—ACQUISITION OF COMMERCIAL ITEMS

        2. Amend section 1812.301 by—
        a. Redesignating paragraph (f)(i)(T) as paragraph (f)(i)(U); and
        b. Adding a new paragraph (f)(i)(T).
        The addition reads as follows:

          1812.301
           Solicitation provisions and contract clauses for the acquisition of commercial items.
          (f)(i) * * *
          (T) 1852.246-74, Counterfeit Electronic Part Detection and Avoidance.

          PART 1831—CONTRACT COST PRINCIPLES AND PROCEDURES

        3. Add section 1831.205-70 to read as follows:

          1831.205-70
          Costs related to counterfeit electronic parts and suspect counterfeit electronic parts.
          (a) Scope. This section implements the requirements of section 823(c)(2)(B), the NASA Transition Authorization Act of 2017 (Pub. L. 115-10).
          (b) The costs of counterfeit electronic parts, suspect counterfeit electronic parts, and any corrective action that may be required to remedy the use or inclusion of such parts are unallowable, unless—
          (1)(i) The covered contractor, as defined in section 1846.7001, has an operational system to detect and avoid counterfeit electronic parts and suspect counterfeit electronic parts that has been reviewed and approved by NASA or the Department of Defense pursuant to 48 CFR 244.303; and
          (ii) The covered contractor, including subcontractors, notifies the applicable NASA contracting officer in writing in accordance with 1846.7002(c); or
          (2) The counterfeit electronic parts or suspect counterfeit electronic parts were provided to the covered contractor as Government property in accordance with part 45 of the Federal Acquisition Regulation.

          PART 1846—QUALITY ASSURANCE

        4. Add subpart 1846.70 consisting of sections 1846.7000 through 1846.7003 to read as follows:

          Subpart 1846.70—Counterfeit Electronic Part Detection and Avoidance

            1846.7000
            Scope of subpart.
            This subpart implements section 823(c), the NASA Transition Authorization Act of 2017 (Pub. L. 115-10).
            (a) Prescribes policy and procedures for preventing counterfeit electronic parts and suspect counterfeit electronic parts from entering the supply chain when procuring electronic parts or end items, components, parts, or assemblies that contain electronic parts; and
            (b) Applies to electronic parts when their presence in the NASA supply chain poses a danger to United States government astronauts, crew, and other personnel and a risk to the agency overall.
            (c) Contracting officers, in consultation with the requiring activity, are responsible for making a determination concerning the applicability of this section and the appropriate use of the prescribed contract clauses.

            1846.7001
            Definitions.
            “Authentic part” means a new and unmodified part produced by the original component manufacturer, or a source with the express written authority of the original manufacturer or current design activity, including an authorized aftermarket manufacturer.
            “Authentication” means a process to verify that a part is not counterfeit or suspect counterfeit.

            “Authorized aftermarket manufacturer” means an organization that fabricates an electronic part under a contract with, or with the express written authority of, the original component manufacturer based on the original component manufacturer's designs, formulas, and/or specifications.

            “Authorized supplier” means a supplier, distributor, or an aftermarket manufacturer with a contractual arrangement with, or the express written authority of, the original manufacturer or current design activity to buy, stock, repackage, sell, or distribute the part.
            “Contract manufacturer” means a company that produces goods under contract for another company under the label or brand name of that company.
            “Contractor-approved supplier” means a supplier that does not have a contractual agreement with the original component manufacturer, but has been qualified as trustworthy by a contractor or subcontractor as having met prescribed counterfeit electronic part detection and avoidance system criteria using established counterfeit prevention industry standards and processes.
            “Covered contractor” means a contractor that supplies an electronic part, or a product that contains an electronic part, to NASA.
            “Counterfeit electronic part” means an unlawful or unauthorized reproduction, substitution, or alteration that has been knowingly mismarked, misidentified, or otherwise misrepresented to be an authentic, unmodified electronic part from the original manufacturer, or a source with the express written authority of the original manufacturer or current design activity, including an authorized aftermarket manufacturer. Unlawful or unauthorized substitution includes used electronic parts represented as new, or the false identification of grade, serial number, lot number, date code, or performance characteristics.
            “Electronic part” means a discrete electronic component, including a microcircuit, transistor, capacitor, resistor, or diode, that is intended for use in a safety or mission critical application.
            “Original component manufacturer” means an organization that designs and/or engineers a part and is entitled to any intellectual property rights to that part.
            “Original equipment manufacturer” means a company that manufactures products that it has designed from purchased components and sells those products under the company's brand name.
            “Original manufacturer” means the original component manufacturer, the original equipment manufacturer, or the contract manufacturer.
            “Suspect counterfeit electronic part” means an electronic part for which credible evidence (including, but not limited to, visual inspection or testing) provides reasonable doubt that the electronic part is authentic.

            1846.7002
            Policy.
            The government and its contractors and subcontractors at all tiers are required to obtain electronic parts as prescribed in this section, whether the electronic parts are procured as discrete items or contained in an assembly.
            (a) The covered contractor and subcontractors at all tiers shall obtain electronic parts that are in production or currently available in stock from—
            (1) The original manufacturers of the parts;
            (2) Their authorized dealers; or
            (3) Suppliers who obtain such parts exclusively from the original manufacturers of the parts or their authorized dealers.
            (b) If electronic parts are not in production or currently available in stock from suppliers as stated in paragraph (a) of this section, the covered contractor shall obtain electronic parts from NASA identified suppliers or contractor-approved suppliers for which—
            (1) The covered contractor assumes responsibility for the authenticity of parts; and
            (2) The covered contractor performs inspection, testing and authentication of parts; and

            (3) The covered contractor obtains traceability information for the electronic parts (e.g., data code, lot code, serial number) and provides this information to the contracting officer upon request; and
            (4) The selection of contractor-approved suppliers is subject to review and audit by the contracting officer.
            (c) The covered contractor, including subcontractors, shall notify the applicable NASA contracting officer in writing not later than 30 calendar days after the date the covered contractor becomes aware, or has reason to suspect, that any end item, component, part or material contained in supplies purchased by NASA, or purchased by a covered contractor or subcontractor for delivery to, or on behalf of, NASA, contains a counterfeit electronic part or suspect counterfeit electronic part.

            1846.7003
             Contract clause.
            For acquisitions with covered contractors as defined in section 1846.7001, use the clause at 1852.246-74, Contractor Counterfeit Electronic Part Detection and Avoidance, in solicitations and contracts, when procuring—
            (a) Electronic parts;
            (b) End items, components, parts, or assemblies containing electronic parts; or
            (c) Services, if the covered contractor will supply electronic parts or components, parts, or assemblies containing electronic parts as part of the service.

          PART 1852—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

        5. Add section 1852.246-74 to read as follows:

          1852.246-74
           Contractor Counterfeit Electronic Part Detection and Avoidance.
          As prescribed in 1846.7003, use the following clause:

            Contractor Counterfeit Electronic Part Detection and Avoidance. (DATE)
            (a) Definitions. As used in this clause—
            “Authentic part” means a new and unmodified part produced by the original component manufacturer, or a source with the express written authority of the original manufacturer or current design activity, including an authorized aftermarket manufacturer.
            “Authentication” means a process to verify that a part is not counterfeit or suspect counterfeit.
            “Authorized aftermarket manufacturer” means an organization that fabricates a part under a contract with, or with the express written authority of, the original component manufacturer based on the original component manufacturer's designs, formulas, and/or specifications.
            “Authorized supplier” means a supplier, distributor, or an aftermarket manufacturer with a contractual arrangement with, or the express written authority of, the original manufacturer or current design activity to buy, stock, repackage, sell, or distribute the part.
            “Contract manufacturer” means a company that produces goods under contract for another company under the label or brand name of that company.
            “Contractor-approved supplier” means a supplier that does not have a contractual agreement with the original component manufacturer, but has been qualified by the contractor or subcontractor approved by the contractor or government as having met prescribed counterfeit electronic part detection and avoidance system criteria using established counterfeit prevention industry standards and processes.
            “Counterfeit electronic part” means an unlawful or unauthorized reproduction, substitution, or alteration that has been knowingly mismarked, misidentified, or otherwise misrepresented to be an authentic, unmodified electronic part from the original manufacturer, or a source with the express written authority of the original manufacturer or current design activity, including an authorized aftermarket manufacturer. Unlawful or unauthorized substitution includes used electronic parts represented as new, or the false identification of grade, serial number, lot number, date code, or performance characteristics.

            “Electronic part” means a discrete electronic component, including a microcircuit, transistor, capacitor, resistor, or diode, that is intended for use in a safety or mission critical application (section 823 (d)(2) of Pub L. 115-10).
            “Original component manufacturer” means an organization that designs and/or engineers a part and is entitled to any intellectual property rights to that part.
            “Original equipment manufacturer” means a company that manufactures products that it has designed from purchased components and sells those products under the company's brand name.
            “Original manufacturer” means the original component manufacturer, the original equipment manufacturer, or the contract manufacturer.
            “Suspect counterfeit electronic part” means an electronic part for which credible evidence (including, but not limited to, visual inspection or testing) provides reasonable doubt that the electronic part is authentic.
            (b) Sources of Electronics Parts. In accordance with section 823(c)(3), the NASA Transition Authorization Act of 2017 (Pub. L. 115-10), the covered contractor shall—
            (1) Obtain electronic parts that are in production by the original manufacturer or an authorized aftermarket manufacturer or currently available in stock from—
            (i) The original manufacturers of the parts;
            (ii) Their authorized dealers; or
            (iii) Suppliers who obtain such parts exclusively from the original manufacturers of the parts or their authorized dealers;
            (2) If electronic parts are not in production or currently available in stock from suppliers as stated in paragraph (b) of this clause, the covered contractor shall obtain electronic parts from NASA identified suppliers or contractor-approved suppliers for which—
            (i) The covered contractor assumes responsibility for the authenticity of parts; and
            (ii) The covered contractor performs inspection, testing and authentication of parts; and

            (iii) The covered contractor obtains traceability information for the electronic parts (e.g., data code, lot code, serial number) and provides this information to the contracting officer upon request; and
            (iv) The selection of contractor-approved suppliers is subject to review and audit by the contracting officer.
            (c) Notification. The covered contractor, including subcontractors, shall notify the NASA contracting officer in writing not later than 30 calendar days after the date the covered contractor becomes aware, or has reason to suspect, that any end item, component, part or material contained in supplies purchased by NASA, or purchased by a covered contractor or subcontractor for delivery to, or on behalf of, NASA, contains a counterfeit electronic part or suspect counterfeit electronic part.
            (d) Costs related to counterfeit electronic parts and suspect counterfeit electronic parts. In accordance with section 823(c)(2)(B), the NASA Transition Authorization Act of 2017 (Pub. L. 115-10), the costs of counterfeit electronic parts and suspect counterfeit electronic parts and the costs of rework or corrective action that may be required to remedy the use or inclusion of such parts are unallowable, unless—
            (1) The covered contractor has a system to detect and avoid counterfeit electronic parts and suspect counterfeit electronic parts that has been reviewed and approved by NASA or the Department of Defense pursuant to 48 CFR 244.303; and
            (2) The covered contractor, including a subcontractor, notifies the applicable NASA contracting officer in writing in accordance with paragraph (c) of this clause; or
            (3) The counterfeit electronic parts or suspect counterfeit electronic parts were provided to the covered contractor as Government property in accordance with part 45 of the Federal Acquisition Regulation.
            (e) Subcontracts. The covered contractor shall insert this clause, including this paragraph (e), in subcontracts for (1) Electronic parts; (2) End items, components, parts, or assemblies containing electronic parts; or (3) Services where the covered contractor will supply electronic parts or components, parts, or assemblies containing electronic parts as part of the service, including subcontracts for commercial items that are for electronic parts or assemblies containing electronic parts, unless the subcontractor is the original manufacturer. The covered contractor shall not alter the clause other than to identify appropriate parties.
            (f) Corrective Action. In the event that the covered contractor supplies a counterfeit electronic part, suspect counterfeit electronic part or end item, component, or assembly containing a counterfeit electronic part to NASA, the covered contractor shall take such corrective actions as the Administrator considers necessary to remedy the use or inclusion of additional counterfeit electronic parts, suspect counterfeit electronic part or end items, components, or assemblies containing a counterfeit electronic part.

          (End of clause)

      [FR Doc. 2019-27714 Filed 1-6-20; 8:45 am]
       BILLING CODE 7510-13-P


        DEPARTMENT OF DEFENSE
        Defense Acquisition Regulations System
        48 CFR Parts 225 and 252
        RIN 0750-AI45
        Defense Federal Acquisition Regulation Supplement: Contractor Personnel Supporting U.S. Armed Forces Deployed Outside the United States (DFARS Case 2014-D023)

          AGENCY:
          Defense Acquisition Regulations System, Department of Defense (DoD).

          ACTION:
          Proposed rule.

          SUMMARY:
          DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to update the clause entitled “Contractor Personnel Supporting U.S. Armed Forces Deployed Outside the United States.”

          DATES:
          Comments on the proposed rule should be submitted in writing to the address shown below on or before March 30, 2015, to be considered in the formation of a final rule.

          ADDRESSES:
          Submit comments identified by DFARS Case 2014-D023, using any of the following methods:
          ○ Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by entering “DFARS Case 2014-D023” under the heading “Enter keyword or ID” and selecting “Search.” Select the link “Submit a Comment” that corresponds with “DFARS Case 2014-D023.” Follow the instructions provided at the “Submit a Comment” screen. Please include your name, company name (if any), and “DFARS Case 2014-D023” on your attached document.
          ○ Email: osd.dfars@mail.mil. Include DFARS Case 2014-D023 in the subject line of the message.
          ○ Fax: 571-372-6094.
          ○ Mail: Defense Acquisition Regulations System, Attn: Ms. Jennifer Hawes, OUSD(AT&L)DPAP/DARS, Room 3B941, 3060 Defense Pentagon, Washington, DC 20301-3060.

          Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To confirm receipt of your comment(s), please check www.regulations.gov, approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail).

          FOR FURTHER INFORMATION CONTACT:
          Jennifer Hawes, telephone 571-372-6115.

        SUPPLEMENTARY INFORMATION:
        I. Background
        DoD is proposing to amend the DFARS to make the following updates to the clause at 252.225-7040, Contractor Personnel Supporting U.S. Armed Forces Deployed Outside the United States, to—
        • Remove “humanitarian assistance operations” at paragraphs (b)(1)(ii) and (q)(2), because humanitarian assistance operations are a subset of peace operations already referenced at (b)(1)(iii) and (q)(3);
        • Clarify at paragraph (d)(3) that both contractors authorized to accompany the Force (CAAF) and non-CAAF personnel must be made aware of information related to sexual assault offenses by adding “and non-CAAF”;
        • Add subparagraph (d)(5)(iii) to clarify that the section on reporting alleged crimes does not create any rights or privileges that are not authorized by law or DoD policy;
        • Change the form at subparagraph (e)(1)(ii)(C)(3) from the “Public Health Service Form 791, International Certificate of Vaccination” to the “U.S. Centers for Disease Control and Prevention (CDC) Form 731, International Certificate of Vaccination or Prophylaxis as Approved by the World Health Organization”;
        • Change the reference at paragraph (e)(1)(iv) from “DoD Directive 4500.54, Official Temporary Duty Abroad, and DoD 4500.54-G, DoD Foreign Clearance Guide” to “DoD Directive 4500.54E, DoD Foreign Clearance Program”;

        • Change the hyperlink for the Synchronized Predeployment and Operational Tracker (SPOT) web-based system at subparagraph (g)(2) from “https://spot.altess.army.mil/privacy.aspx” to “https://spot.dmdc.mil/”;
        • Add the title of DoD Instruction 3020.41, Operational Contractor Support, at subparagraph (j)(1); and
        • Make an editorial correction in paragraph (j)(2), by removing the hyphen in the phrase “will notify”.
        In addition, the rule removes “humanitarian assistance operations” from the clause prescription at 225.7402-5(a)(2), because it is a subset of peace operations already referenced at 225.7402-5(a)(3).
        II. Executive Orders 12866 and 13563
        Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a significant regulatory action and, therefore, was subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
        III. Regulatory Flexibility Act

        DoD does not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the rule merely provides updates to references and links currently included DFARS clause 252.225-7040, Contractor Personnel Supporting U.S. Armed Forces Deployed Outside the United States. However, an initial regulatory flexibility analysis has been performed and is summarized as follows:
        The objective of this rule is to accomplish the following clarifications and updates to the clause at DFARS 252.225-7040—
        • Remove “humanitarian assistance operations” at paragraphs (b)(1)(ii) and (q)(2), because humanitarian assistance operations are a subset of peace operations already referenced at (b)(1)(iii) and (q)(3);
        • Clarify at paragraph (d)(3) that both contractors authorized to accompany the Force (CAAF) and non-CAAF personnel must be made aware of information related to sexual assault offenses by adding “and non-CAAF”;
        • Add subparagraph (d)(5)(iii) to clarify that the section on reporting alleged crimes does not create any rights or privileges that are not authorized by law or DoD policy;
        • Change the form at subparagraph (e)(1)(ii)(C)(3) from the “Public Health Service Form 791, International Certificate of Vaccination” to the “U.S. Centers for Disease Control and Prevention (CDC) Form 731, International Certificate of Vaccination or Prophylaxis as Approved by the World Health Organization”;
        • Change the reference at paragraph (e)(1)(iv) from “DoD Directive 4500.54, Official Temporary Duty Abroad, and DoD 4500.54-G, DoD Foreign Clearance Guide” to “DoD Directive 4500.54E, DoD Foreign Clearance Program”;

        • Change the hyperlink for the Synchronized Predeployment and Operational Tracker (SPOT) web-based system at subparagraph (g)(2) from “https://spot.altess.army.mil/privacy.aspx” to “https://spot.dmdc.mil/”;
        • Add the title of DoD Instruction 3020.41, Operational Contractor Support, at subparagraph (j)(1); and
        • Make an editorial correction in paragraph (j)(2), by removing the hyphen in the phrase “will notify”.
        In addition, the rule removes “humanitarian assistance operations” from the clause prescription at 225.7402-5(a)(2), because it is a subset of peace operations already referenced at 225.7402-5(a)(3).
        According to the Federal Procurement Data System, DoD awarded 506 contracts in Fiscal Year 2013 requiring performance overseas in support of contingency, humanitarian or peace operations. Of the 506 contracts, only 76 contracts (15%) were awarded to small businesses. At this time, there is no way of estimating how many contracts may be awarded requiring performance outside the United States in support of other military operations or exercises, when designated by the Combatant Commander; however, the number of small businesses awarded such contracts is expected to be minimal.
        The rule does not impose any additional reporting, recordkeeping, and other compliance requirements. The rule does not duplicate, overlap, or conflict with any other Federal rules. There are no known significant alternatives to the rule. The impact of this rule on small business is not expected to be significant.
        DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.
        DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (DFARS Case 2014-D023), in correspondence.
        IV. Paperwork Reduction Act
        The rule contains information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35); however, these changes to the DFARS do not impose additional information collection requirements to the paperwork burden previously approved under OMB Control Number 0704-0460, entitled Synchronized Predeployment and Operational Tracker (SPOT) System.

          List of Subjects in 48 CFR Parts 225 and 252
          Government procurement.

          Manuel Quinones,
          Editor, Defense Acquisition Regulations System.

        Therefore, 48 CFR parts 225 and 252 are proposed to be amended as follows:
        1. The authority citation for parts 225 and 252 continues to read as follows:

          Authority:
          41 U.S.C. 1303 and 48 CFR chapter 1.

          PART 225—FOREIGN ACQUISITION

            225.7402-5
            [Amended]

        2. Amend section 225.7402-5, by removing paragraph (a)(2) and redesignating paragraphs (a)(3) and (4) as paragraphs (a)(2) and (3), respectively.

          PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

        3. Amend section 252.225-7040 by—
        a. Removing the clause date “(MAY 2014)” and adding “(DATE)” in its place;
        b. Removing paragraph (b)(1)(ii) and redesignating paragraphs (b)(1)(iii) and (iv) as paragraphs (b)(1)(ii) and (iii), respectively;
        c. In paragraph (d)(3) introductory text, removing “CAAF are aware” and adding “CAAF and non-CAAF are aware” in its place;
        d. In paragraph (d)(3)(i), removing “DoDD 6495.01” and adding “DoD Directive 6495.01” in its place;
        e. Adding paragraph (d)(5)(iii);
        f. Revising paragraph (e)(1)(ii)(C)(3);

        g. In paragraph (e)(1)(iv), removing “DoD Directive 4500.54, Official Temporary Duty Abroad, and DoD 4500.54-G, DoD foreign Clearance Guide” and adding “DoD Directive 4500.54E, DoD Foreign Clearance Program” in its place;
        h. In paragraph (g)(2), removing “https://spot.altess.army.mil/privacy.aspx” and adding “https://spot.dmdc.mil” in its place;
        i. In paragraph (j)(1) by removing “DoD Instruction 3020.41” and adding “DoD Instruction 3020.41, Operational Contractor Support” in its place;
        j. In paragraph (j)(2), removing “will-notify” and adding “will notify” in its place; and
        k. Removing paragraph (q)(2) and redesignating paragraphs (q)(3) and (4) as paragraphs (q)(2) and (3), respectively. The addition and revision read as follows:

          252.225-7040
          Contractor Personnel Supporting U.S. Armed Forces Deployed Outside the United States.

          (d) * * *
          (5) * * *
          (iii) That this section does not create any rights or privileges that are not authorized by law or DoD policy.

          (e) * * *
          (1) * * *
          (ii) * * *
          (C) * * *
          (3) All CAAF and selected non-CAAF, as specified in the statement of work, shall bring to the designated operational area a copy of the U.S. Centers for Disease Control and Prevention (CDC) Form 731, International Certificate of Vaccination or Prophylaxis as Approved by the World Health Organization, (also known as “shot record” or “Yellow Card”) that shows vaccinations are current.

      [FR Doc. 2015-01437 Filed 1-28-15; 8:45 am]
      BILLING CODE 5001-06-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 648
        [I.D. 032907A]
        RIN 0648-AS22
        Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Summer Flounder, Scup, and Black Sea Bass Fisheries; Amendment 14 to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Notice of Availability of proposed fishery management plan amendment; request for comments.

          SUMMARY:
          NMFS announces that the Mid-Atlantic Fishery Management Council (Council) has submitted Amendment 14 to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP) (Amendment 14), incorporating the draft Environmental Assessment (EA), preliminary Regulatory Impact Review (RIR), and the Initial Regulatory Flexibility Analysis (IRFA), for review by the Secretary of Commerce and is requesting comments from the public.
          The proposed measures include a plan to rebuild the scup stock from an overfished condition to the level associated with maximum sustainable yield, as required by the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The proposed action also includes an administrative change that would allow changes to the scup Gear Restricted Areas (GRAs) through a framework adjustment to the FMP. The intended effect of this change is to improve the timing of developing and implementing modifications to the GRAs.

          DATES:
          Comments must be received on or before June 11, 2007.

          ADDRESSES:
          You may submit comments by any of the following methods:
          • E-mail: FSBAmendment14NOA@noaa.gov. Include in the subject line the following identifier: “Comments on Amendment 14 to the Summer Flounder, Scup, and Black Sea Bass FMP.”
          • Federal e-rulemaking portal: http:/www.regulations.gov

          • Mail: Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930. Mark the outside of the envelope: “Comments on Amendment 14 to the Summer Flounder, Scup, and Black Sea Bass FMP.”
          • Fax: (978) 281-9135

          Copies of Amendment 14 and of the draft Environmental Assessment, preliminary Regulatory Impact Review, and Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) are available from Daniel T. Furlong, Executive Director, Mid-Atlantic Fishery Management Council, Room 2115, Federal Building, 300 South New Street, Dover, DE 19901-6790. The EA/RIR/IRFA is also accessible via the Internet at http://www.nero.noaa.gov.

          FOR FURTHER INFORMATION CONTACT:
          Michael P. Ruccio, Fishery Policy Analyst, 978-281-9104.

        SUPPLEMENTARY INFORMATION:

        The Magnuson-Stevens Act requires that each Regional Fishery Management Council submit any FMP amendment it prepares to NMFS for review and approval, disapproval, or partial approval. The Magnuson-Stevens Act also requires that NMFS, upon receiving an FMP amendment, immediately publish a notice in the Federal Register that the amendment is available for public review and comment. If approved by NMFS, this amendment would implement a rebuilding program to increase the scup stock to the level associated with maximum sustainable yield (Bmsy). The amendment would also effect an administrative change to the regulations on framework adjustments.
        Background
        In August 2005, NMFS notified the Council that the scup stock had officially been designated as overfished as defined by the Magnuson-Stevens Act. Specifically, the 3-year Northeast Fishery Science Center (NEFSC) spawning stock biomass (SSB) value for scup had declined below the minimum biomass threshold. In response, the Council began development of Amendment 14 to the FMP in February 2006 to rebuild the scup stock to the biomass target.
        This action proposes scup rebuilding program alternatives which would, within at least 10 years, increase the scup stock to the target biomass level (i.e., achieve stock rebuilding) as required by the Magnuson-Stevens Act. In addition, this action proposes a single administrative change to the procedures for modifying the GRAs. Currently, GRAs are modified though the annual specification process. This action proposes to change the procedures so that GRAs may be modified through framework adjustments to the FMP.

        Public comments are being solicited on Amendment 14 and its incorporated documents through the end of the comment period stated in this notice of availability. A proposed rule that would implement Amendment 14 will be published in the Federal Register for public comment, following NMFS's evaluation of the proposed rule under the procedures of the Magnuson-Stevens Act. Public comments on the proposed rule must be received by the end of the comment period provided in this notice of availability of Amendment 14 to be considered in the approval/disapproval decision on the amendment. All comments received by June 11, 2007, whether specifically directed to Amendment 14 or the proposed rule will be considered in the approval/disapproval decision on Amendment 14. Comments received after that date will not be considered in the decision to approve or disapprove Amendment 14. To be considered, comments must be received by close of business on the last day of the comment period; that does not mean postmarked or otherwise transmitted by that date.

          Authority:
          16 U.S.C. 1801 et seq.

          Dated: April 5, 2007.
          James P. Burgess,
          Acting Director, Office of Sustainable Fisheries, National Marine Fisheries.

      [FR Doc. E7-6881 Filed 4-10-07; 8:45 am]
      BILLING CODE 3510-22-S


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Parts 223 and 224
        [Docket No. 150211136-5136-01]
        RIN 0648-XD769
        Listing Endangered or Threatened Species; 90-Day Finding on a Petition To Delist the Snake River Fall-Run Chinook Salmon Evolutionarily Significant Unit

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          90-Day petition finding, request for information, and initiation of status review.

          SUMMARY:

          We, the National Marine Fisheries Service (NMFS), announce a 90-day finding on a petition to delist the Snake River fall-run Chinook salmon (Oncorhynchus tshawytscha) (Snake River fall-run Chinook) Evolutionarily Significant Unit (ESU) under the Endangered Species Act (ESA). The Snake River fall-run Chinook ESU was listed as threatened under the ESA in 1992. We reviewed the status of the ESU in 2005 and again in 2011 and concluded that the ESU's classification as a threatened species remained appropriate. We find that the petition presents substantial scientific information indicating that the petitioned action may be warranted. We hereby initiate a status review of the Snake River fall-run Chinook ESU to determine whether the petitioned action is warranted. To ensure that the status review is comprehensive, we are soliciting scientific and commercial information pertaining to this species.

          DATES:
          Comments must be received by June 22, 2015.

          ADDRESSES:
          You may submit comments on this document, identified by NOAA-NMFS-2015-0039, by either of the following methods:
          Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal.
          1. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2015-0039.

          2. Click the “Comment Now!” icon, complete the required fields.
          3. Enter or attach your comments.

          —OR—

          • MAIL or Hand Delivery: Submit written comments to: Protected Resources Division, West Coast Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213.

        Instructions

        Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. We will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

          FOR FURTHER INFORMATION CONTACT:

          Elizabeth Holmes Gaar, NMFS West Coast Region at (503) 230-5434; or Dwayne Meadows, NMFS Office of Protected Resources at (301) 427-8403.

        SUPPLEMENTARY INFORMATION:

        Background
        The Snake River fall-run Chinook ESU was listed as threatened under the ESA in 1992 (57 FR 14658; April 22, 1992). Section 4(c)(2) of the ESA requires that we conduct a review of listed species at least once every 5 years (5-year review). On the basis of such 5-year reviews, we determine under section 4(c)(2)(B) whether a species should be delisted or reclassified from endangered to threatened or from threatened to endangered. We conducted 5-year reviews for the Snake River fall-run Chinook ESU in 2005 (70 FR 37160; June 28, 2005) and again in 2011 (76 FR 50448; August 15, 2011) and determined that the ESU should remain classified as “threatened.”

        On January 16, 2015, we received a petition from the Chinook Futures Coalition to delist the Snake River fall-run Chinook ESU under the ESA. Copies of the petition are available upon request (see ADDRESSES). Separately, on February 6, 2015, we published a notice of initiation of 5-year reviews for 32 species, including Snake River fall-run Chinook salmon (80 FR 6695; February 6, 2015).
        Historically, the Snake River fall-run Chinook ESU consisted of three large populations: The extant Lower Mainstem Snake River population, and two currently extirpated populations (Marsing Reach and Salmon Falls) that spawned in the upper mainstem Snake River above the current Hells Canyon Dam complex. The listed Snake River fall-run Chinook salmon ESU consists of one population, the extant Lower Mainstem Snake population, which includes all natural-origin fall-run Chinook salmon originating from the mainstem Snake River below Hells Canyon Dam (the lowest of three impassable dams that form the Hells Canyon Complex), and from the Tucannon River, Grande Ronde River, Imnaha River, Salmon River, and Clearwater River subbasins. The ESU also includes four artificial propagation programs: The Lyons Ferry Hatchery Program, Fall Chinook Acclimation Ponds Program, Nez Perce Tribal Hatchery Program, and Oxbow Hatchery Program.
        ESA Statutory, Regulatory, and Policy Provisions and Evaluation Framework

        Section 4(b)(3)(A) of the ESA of 1973, as amended (16 U.S.C. 1531 et seq.), requires, to the maximum extent practicable, that within 90 days of receipt of a petition to remove a species from the list of threatened or endangered species, the Secretary of Commerce make a finding on whether that petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted, and to promptly publish the finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). When we find that substantial scientific or commercial information in a petition indicates that the petitioned action may be warranted (a “positive 90-day finding”), we are required to promptly commence a review of the status of the species concerned, which includes conducting a comprehensive review of the best available scientific and commercial information. Within 12 months of receiving the petition, we must conclude the review with a finding as to whether, in fact, the petitioned action is warranted. Because the finding at the 12-month stage is based on a significantly more thorough review of the available information, a “may be warranted” finding at the 90-day stage does not prejudge the outcome of the status review.
        ESA-implementing regulations at 50 CFR 424.14(b) issued jointly by NMFS and the U.S. Fish and Wildlife Service (USFWS) (jointly “the Services”) define “substantial information” in the context of reviewing a petition to list, delist, or reclassify a species as the amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted. When evaluating whether substantial information is contained in a petition, we must consider whether the petition: (1) Clearly indicates the administrative measure recommended and gives the scientific and any common name of the species involved; (2) contains detailed narrative justification for the recommended measure, describing, based on available information, past and present numbers and distribution of the species involved and any threats faced by the species; (3) provides information regarding the status of the species over all or a significant portion of its range; and (4) is accompanied by the appropriate supporting documentation in the form of bibliographic references, reprints of pertinent publications, copies of reports or letters from authorities, and maps (50 CFR 424.14(b)(2)).
        To make a 90-day finding on a petition to list, delist or reclassify a species, we evaluate the petitioner's request based upon the information in the petition including its references, and the information readily available in our files. We do not conduct additional research, and we do not solicit information from parties outside the agency to help us in evaluating the petition. We will accept the petitioner's sources and characterizations of the information presented, if they appear to be based on accepted scientific principles, unless we have specific information in our files that indicates the petition's information is incorrect, unreliable, obsolete, or otherwise irrelevant to the requested action. Information that is susceptible to more than one interpretation or that is contradicted by other available information will not be dismissed at the 90-day finding stage, so long as it is reliable and a reasonable person would conclude that it supports the petitioner's assertions. Conclusive information indicating that the species may meet the ESA's requirements for delisting is not required to make a positive 90-day finding. We will not conclude that a lack of specific information alone negates a positive 90-day finding, if a reasonable person would conclude that the lack of information itself suggests a particular extinction risk conclusion for the species at issue.

        Many petitions identify risk classifications made by non-governmental organizations, such as the International Union for Conservation of Nature (IUCN), the American Fisheries Society, or NatureServe, as evidence of extinction risk for a species. Risk classifications by other organizations or made under other Federal or state statutes may be informative, but such classification alone may not provide the rationale for a positive 90-day finding under the ESA. For example, as explained by NatureServe, their assessments of a species' conservation status do “not constitute a recommendation by NatureServe for listing under the U.S. Endangered Species Act” because NatureServe assessments “have different criteria, evidence requirements, purposes and taxonomic coverage than government lists of endangered and threatened species, and therefore these two types of lists should not be expected to coincide” (http://www.natureserve.org/prodServices/statusAssessment.jsp). Thus, when a petition cites such classifications, we will evaluate the source of information that the classification is based upon in light of the standards on extinction risk and impacts or threats discussed above.

        Under the ESA, a listing determination may address a species, which is defined to also include subspecies and, for any vertebrate species, any DPS that interbreeds when mature (16 U.S.C. 1532(16)). A joint Services policy (DPS Policy) clarifies the agencies' interpretation of the phrase “distinct population segment” for the purposes of listing, delisting, and reclassifying a species under the ESA (61 FR 4722; February 7, 1996). A species, subspecies, or DPS is “endangered” if it is in danger of extinction throughout all or a significant portion of its range, and “threatened” if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range (ESA sections 3(6) and 3(20), respectively, 16 U.S.C. 1532(6) and (20)). For identifying stocks of Pacific salmon for listing under the ESA, we use our Policy on Applying the Definition of Species under the ESA to Pacific Salmon (ESU Policy) (56 FR 58612; November 20, 1991). Under this policy, populations of salmon that are substantially reproductively isolated from other conspecific populations and that represent an important component in the evolutionary legacy of the biological species are considered to be an ESU. In our listing determinations for Pacific salmon under the ESA, we have treated an ESU as constituting a DPS, and hence a “species,” under the ESA.

        NMFS assesses viability for Pacific salmon ESUs based on a common set of biological principles described in NMFS' technical memorandum, Viable Salmonid Populations and the Recovery of Evolutionarily Significant Units (McElhany et al. 2000). Viable salmonid populations (VSPs) are defined in terms of four population parameters: Abundance, population productivity or growth rate, population spatial structure, and diversity. Abundance and productivity need to be sufficient to provide for population-level persistence in the face of year-to-year variations in environmental influences. Spatial structure of populations should provide for resilience to the potential impact of catastrophic events, and diversity should provide for patterns of phenotypic, genotypic, and life history diversity that sustains natural production across a range of conditions, allowing for adaptation to changing environmental conditions.
        Pursuant to the ESA and our implementing regulations, we determine whether species are threatened or endangered based on any one or a combination of the following five ESA section 4(a)(1) factors: The present or threatened destruction, modification, or curtailment of habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; inadequacy of existing regulatory mechanisms; and any other natural or manmade factors affecting the species' existence (16 U.S.C. 1533(a)(1), 50 CFR 424.11(c)).
        Under section 4(a)(1) of the ESA and our implementing regulations at 50 CFR 424.11(d), a species may be removed from the list if the Secretary of Commerce determines, based on the best scientific and commercial data available and after conducting a review of the species' status, that the species is no longer threatened or endangered because of one or a combination of the section 4(a)(1) factors. Pursuant to our regulations at 50 CFR 424.11(d), a species may be delisted only if such data substantiate that it is neither endangered nor threatened for one or more of the following reasons:
        (1) Extinction. Unless all individuals of the listed species had been previously identified and located, and were later found to be extirpated from their previous range, a sufficient period of time must be allowed before delisting to indicate clearly that the species is extinct.
        (2) Recovery. The principal goal of the Services is to return listed species to a point at which protection under the ESA is no longer required. A species may be delisted on the basis of recovery only if the best scientific and commercial data available indicate that it is no longer endangered or threatened.
        (3) Original data for classification in error. Subsequent investigations may show that the best scientific or commercial data available when the species was listed, or the interpretation of such data, were in error.
        Judicial decisions have clarified the appropriate scope and limitations of the Services' review of petitions at the 90-day finding stage, in making a determination whether a petitioned action may be warranted. As a general matter, these decisions hold that a petition need not establish a “strong likelihood” or a “high probability” that a species is or is not either threatened or endangered to support a positive 90-day finding.
        Application of the Hatchery Listing Policy
        On June 28, 2005, we announced a final policy addressing the role of artificially propagated (hatchery produced) Pacific salmon and steelhead in listing determinations under the ESA (70 FR 37204; June 28, 2005) (Hatchery Listing Policy). The Hatchery Listing Policy's purpose is to provide direction to NMFS staff for considering hatchery-origin fish in making listing determinations for Pacific salmon and steelhead. Among other things, the Hatchery Listing Policy: (1) Establishes criteria for including hatchery stocks in ESUs and DPSs; (2) provides direction for considering hatchery fish in extinction risk assessments of ESUs and DPSs; and (3) provides that hatchery fish determined to be part of an ESU will be included in any listing of the ESU.
        The Hatchery Listing Policy also provides that status determinations for Pacific salmon ESUs and steelhead DPSs will be based on the status of the entire ESU or DPS and that in assessing the status of an ESU/DPS, NMFS will apply the policy in support of the conservation of naturally-spawning salmon and the ecosystems upon which they depend, consistent with section 2(b) of the ESA. Finally, the Hatchery Listing Policy provides that hatchery fish will be included in assessing an ESU's or DPS's status in the context of their contributions to conserving natural self-sustaining populations.
        Biology of Snake River Fall-Run Chinook Salmon
        Snake River fall-run Chinook spend 1 to 4 years in the Pacific Ocean, depending on gender and age at the time of ocean entry. Most Snake River fall-run Chinook salmon return for reproduction to the lower Columbia River in August and September, and the adults enter the Snake River between early September and mid-October. There are presently five recognized major spawning areas for Snake River fall-run Chinook salmon: The Snake River upper reach (from the Hells Canyon Dam complex to the mouth of the Salmon River), the Snake River lower reach (from mouth of the Salmon River to Lower Granite dam Reservoir), and the lower Grande Ronde, lower Clearwater, and lower Tucannon Rivers. Adults spawn in nests (redds) from late October through early December. Emergence of young fall-run Chinook from redds typically occurs in the following April through early June. Juvenile Snake River fall-run Chinook salmon exhibit different early life history timing and growth traits in riverine habitat, depending on growth opportunity, which is often largely related to water temperature. Relatively warm temperatures produce juveniles that migrate seaward as subyearlings in May and June, whereas reaches with cooler temperatures produce juveniles that grow more slowly, over-winter and migrate seaward as yearlings.
        Summary of Petition

        The petition contains three parts. Part I asserts that hatchery fish must be counted when assessing the status of the ESU and must be considered in any delisting decision where hatchery fish are part of the ESU, as is the case for Snake River fall-run Chinook salmon. The petitioner refers to NMFS' Hatchery Listing Policy and points out its requirement that status determinations for Pacific salmon ESUs will be based on the status of the entire ESU. The petitioner disagrees with NMFS' approach used in the most recent Snake River fall-run Chinook 5-year review (NMFS 2011) to base viability criteria on natural fish.

        Part II of the petition asserts that Snake River fall-run Chinook meet the standards for delisting under the ESA and presents information on the ESU's recent status and trends. It asserts that Snake River fall-run Chinook have met the four VSP criteria, and consequently that the ESU's short-term extinction risk is zero and its long-term extinction risk is less than 1 percent. The petitioner asserts that the recovery standards articulated in the last 5-year review arbitrarily redefined the ESU to exclude hatchery fish. The petitioner also reviews the 5-year review's consideration of the VSP parameters of abundance, productivity, spatial structure, and diversity. The 5-year review's VSP criteria were recommended by the Interior Columbia River Technical Recovery Team (ICTRT 2007; Ford et al. 2011). The petitioner asserts that Snake River fall-run Chinook salmon have met the abundance and productivity criteria set forth in the 2011 5-year review, and the petitioner presents abundance and productivity data made available since the 2011 5-year review, for the years 2010 through 2014. The petitioner cites data sources for updated abundance and productivity from the Pacific Fishery Management Council (PFMC 2014), Arnsberg et al. (2013, 2014) and a powerpoint presentation given in 2013 by a scientist from NMFS' Northwest Fisheries Science Center (Cooney 2013).

        The petitioner asserts that the Snake River fall-run Chinook salmon ESU also meets criteria from the 5-year review for spatial distribution and diversity. For spatial distribution, the Interior Columbia Technical Recovery Team recommended that for the Snake River fall-run Chinook ESU to be considered at low extinction risk, there should be another population, in addition to the extant Lower Mainstem Snake River population. We included that criterion in the 2011 5-year review. The petitioner points to redd count data in the Clearwater River from Arnsberg et al. (2014) and concludes that the spawning aggregation in the Clearwater River satisfies the spatial structure criterion for a second population of Snake River fall-run Chinook. The petitioner further asserts, however, that establishing another population of Snake River fall-run Chinook salmon to lower the risk of extinction is not relevant when all other delisting criteria have been met. The petitioner disagrees with NMFS' approach to diversity criteria, which evaluates diversity within the ESU. The petitioner asserts that Pacific salmon are diverse because they are composed of two or more ESUs, and that the only means for increasing diversity is to increase the abundance of spawners in an ESU. The petitioner points out that this increase in abundance has happened for the Snake River fall Chinook ESU.
        Part III of the petition evaluates the statutory standards for delisting and asserts that the extinction risk of Snake River fall-run Chinook is at or approaching zero, and that the delisting standards are met individually and collectively. The petitioner also provides an evaluation of each of the five ESA section 4(a)(1) listing factors. The petitioner concludes that: (1) There is no destruction, modification, or curtailment of the Snake River fall-run Chinook habitat or range that justifies continued listing; (2) that there is no overutilization of Snake River fall-run Chinook; (3) predation and disease are not present factors, and predation is less of a factor today than when the species was listed; (4) existing regulatory mechanisms are adequate as evidenced by the demonstrated increasing numbers of Snake River fall-run Chinook; and (5) while drought might be a consideration for other natural or manmade factors, the operation of the Federal Columbia River Power System, the Hells Canyon Dam Complex, and Dworshak Dam ensures that sufficient waters will be available for Snake River fall-run Chinook in the future.
        Petition Analysis and Finding
        As described above, the standard for determining whether a petition includes substantial information is whether the amount of information presented provides a basis for us to find that it would lead a reasonable person to believe that the measure proposed in the petition may be warranted. We find the analysis of additional data presented and referenced in the petition regarding the abundance and productivity of Snake River fall-run Chinook since the last status review in 2011 meets this standard, and that it presents substantial scientific evidence indicating that the petitioned action may be warranted.
        Information Solicited
        As a result of this 90-day finding, we will commence a status review of the Snake River fall-run Chinook ESU to determine whether delisting the species is warranted. To ensure that our review of Snake River fall-run Chinook is informed by the best available scientific and commercial information, we are opening a 60-day public comment period to solicit information to support our 12-month finding on this petition. We note that on February 6, 2015, we announced the initiation of 5-year reviews of 32 species, including Snake River fall-run Chinook, and requested information that has become available since the species' statuses were last updated. In the case of Snake River fall-run Chinook, the last update was in 2011 (NMFS 2011). We will consider all information submitted through that solicitation, as well as information submitted in response to this finding and request for information, to inform our status review and 12-month finding. There is no need to resubmit information that has already been submitted in response to our 5-year review solicitation notice. We are opening a 60-day public comment period to solicit additional information beyond that provided for the 5-year review process in response to our finding on this petition.

        Specifically, we request new information that has become available since the 2011 5-year status review of Snake River fall-run Chinook salmon regarding: (1) Population abundance; (2) population productivity; (3) changes in species distribution or population spatial structure; (4) patterns of phenotypic, genotypic, and life history diversity; (5) changes in habitat conditions and associated limiting factors and threats; (6) conservation measures that have been implemented that benefit the species, including monitoring data demonstrating the effectiveness of such measures in addressing identified limiting factors or threats; (7) information on the adequacy of regulatory mechanisms to conserve the species in the event it were delisted; (8) data concerning the status and trends of identified limiting factors or threats; (9) information that may affect determinations regarding the composition of the ESU; (10) information on changes to hatchery programs that may affect determinations regarding the ESU membership or contribution to recovery of natural populations; (11) information on targeted harvest (commercial, tribal, and recreational) and bycatch of the species; and (12) other new information, data, or corrections including, but not limited to, taxonomic or nomenclatural changes, identification of erroneous information in the previous listing determination, and improved analytical methods for evaluating extinction risk.
        We request that all information be accompanied by: (1) Supporting documentation such as maps, bibliographic references, or reprints of pertinent publications; and (2) the submitter's name, address, and any association, institution, or business that the person represents.
        References Cited

        The complete citations for the references used in this document can be obtained by contacting NMFS (See ADDRESSES and FOR FURTHER INFORMATION CONTACT) or on our Web page at: http://www.westcoast.fisheries.noaa.gov/protected_species/salmon_steelhead/salmon_and_steelhead_listings/chinook/snake_river_fall/snake_river_fall_run_chinook.html.

          Authority:

           The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

          Dated: April 17, 2015.
          Samuel D. Rauch III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

      [FR Doc. 2015-09358 Filed 4-21-15; 8:45 am]
       BILLING CODE 3510-22-P