Food Safety and Inspection Service
National Foundation on the Arts and the Humanities
Foreign-Trade Zones Board
Industry and Security Bureau
International Trade Administration
National Institute of Standards and Technology
National Oceanic and Atmospheric Administration
Navy Department
Energy Information Administration
Federal Energy Regulatory Commission
Management and Budget Office
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
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Geological Survey
Indian Affairs Bureau
Land Management Bureau
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National Park Service
Parole Commission
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Management and Budget Office
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Social Security Administration.
Final rule.
We are modifying our disability administrative adjudication processes to suspend new claims to the Federal reviewing official (FedRO) level, now operating in the Boston region. Claims already transferred to the Office of the Federal Reviewing Official (OFedRO) for FedRO review will continue to be processed by the OFedRO and a related component of the disability determination process, the Medical and Vocational Expert System (MVES), commonly known as the Office of Medical and Vocational Expertise (OMVE). We are making these changes to ensure that we continually improve our disability adjudication process.
This final rule is effective on March 15, 2008.
Dean S. Landis, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235-6401, (410) 965-0520 for information about this notice. For information on eligibility or filing for benefits, call our national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site, Social Security Online, at
The electronic file of this document is available on the date of publication in the
We are dedicated to providing high-quality service to the American public. In March 2006, we announced changes to our administrative review process for initial disability claims. We explained that the changes were expected to improve disability service. Our commitment to continuous improvement in the way we process disability claims did not end with the publication of those rules as we continually explore ways to improve service to some of the most vulnerable in our society. We face, now and in the foreseeable future, significant challenges to our ability to provide the level of service that disability benefit claimants deserve because of the increased complexity of and growth in claims for those benefits. Consequently, we are making modifications to our administrative review process that will further help us evaluate changes put in place in March 2006 and help us provide accurate and timely service to claimants for Social Security disability benefits and supplemental security income payments based on disability or blindness.
The importance of these disability benefits to the lives and subsistence of many Americans cannot be underestimated. Nearly 15 million disabled Social Security beneficiaries and supplemental security income recipients receive over $10 billion in Federal monthly payments. The adjudication of disability claims requires evaluating complex medical and vocational evidence.
The number of claims and requests for hearings that we receive has continued to expand. In 2004-2006, we received an annual average of 2.6 million disability claims that required decisions based on medical evidence, the most time- and labor-intensive basis for deciding such claims. Along with the large number of claims, there has been a concomitant increase in the number of hearing requests. Our hearing offices have received an average of over 564,000 titles II and XVI disability hearing requests each year from 2002 through 2006, a significant increase from the annual average of almost 472,000 hearing requests in 1997-2001. As these figures show, over the 5-year period from 2002 through 2006, we received each year over 90,000 more requests for titles II and XVI hearings than we annually received during the period from 1997 through 2001. The vast number of disability claims now filed each year, as well as other factors such as the expected increase in disability claims as the baby boomers move into their disability-prone years, probable limitations on our resources to process these claims, and the projected impending increase in filings for retirement and survivor benefits as baby boomers retire, will continue to place an even greater strain on our adjudicatory system.
We expected that the spring 2006 changes to the administrative review process for initial disability claims would “improve the accuracy, consistency, and timeliness of decision-making throughout the disability determination process.” 71 FR 16424 (March 31, 2006). We planned a gradual roll-out of the changes so that we could determine their effect on the disability process overall. As we explained then, “[g]radual implementation will allow us to monitor the effects that our changes are having on the entire disability determination process. . . . We will carefully monitor the implementation process in the Boston region and quickly address any problems that may arise.” 71 FR at 16440-41. Based on initial reviews of the quick disability determination (QDD) and FedRO elements of that process, and mindful of the workload challenges that we now face, especially at the hearing level, we need to modify some of the changes made last spring.
As we explain in our recently published final rule on the QDD process, 72 FR 51173 (September 6, 2007), we are extending the QDD process to all of the State disability determination services. In the current rule, we are suspending new claims going through the OFedRO and the MVES, organizationally known as the OMVE. However, claims already transferred to the OFedRO for FedRO review will continue through the OFedRO and MVES so we can continue to evaluate their effectiveness. These changes are based on our commitment to outstanding service and to continuously improving our service as we realign our resources to ensure that we are capable of processing the current and anticipated number of disability claims and reducing the number of pending hearings.
In the March 2006 final rule, we replaced the State agency reconsideration level with a Federal adjudicative level, called the FedRO. Attorneys staff the FedRO positions, and they, along with the managerial, support, and administrative staff, make up the OFedRO. The OFedRO uses the MVES/OMVE to develop the medical and vocational evidence in the claims. The goal of the OFedRO and OMVE is to ensure more accurate and consistent decision-making earlier in the process. We are continuing to evaluate the effect of these new components on our program and administrative functions. Our experience over the last year in the Boston region demonstrates that the administrative costs associated with the OFedRO and its use of the MVES/OMVE to develop medical and vocational evidence is greater over the foreseeable future than originally anticipated. We do not yet have sufficient results to fully evaluate the potential improvements in program efficacy that are the goals of the OFedRO and OMVE. Therefore, we are suspending new claims going through the OFedRO and OMVE, so that we can reallocate resources to reduce the backlog at the hearing level, while we evaluate the OFedRO and OMVE through the processing of claims already received. As part of this review, we will evaluate the merits of the FedRO process separately from the OMVE process and consider whether alternative approaches to the OMVE are warranted or should be tested. Once this evaluation is completed and alternative approaches analyzed, we will make a decision whether to reinstate the processing of new claims at the OFedRO or to pursue an alternative approach to improving the disability determination process.
We are amending part 405 with provisions that will suspend new claims to the OFedRO and MVES/OMVE. This change will allow us to continue to evaluate the OFedRO and OMVE through the processing of claims already received. We expect to have approximately 20,000 cases pending FedRO review when this rule becomes effective. We will complete the processing of those pending cases, but will not transfer to the OFedRO any more cases originally filed under the new process in the Boston region that otherwise would have been slated for FedRO review. Instead, if cases are at the initial level in the Boston region or not transferred to the OFedRO on the effective date of this rule, those cases will be assigned to State agencies for reconsidered determinations or to administrative law judges for hearing, whichever is applicable in that particular New England State. In other words, States in the Boston region, where the OFedRO and MVES/OMVE are currently functioning, will return to the same process they were following before August 2006, whether that process was reconsideration under 20 CFR 404.907 and 416.1407 or the testing procedures under 20 CFR 404.906 and 416.1406.
In the notice of proposed rulemaking we published at 72 FR 45701 (August 15, 2007), we provided the public with a 30-day period in which to comment on the proposed suspension of new claims to the OFedRO and MVES/OMVE. That comment period ended on September 14, 2007. We received timely comments from 10 individuals and organizations. We carefully considered all the comments. Because some of the comments were lengthy, we have summarized their content. Other comments were received that did not relate to the suspension of new claims to the OFedRO and MVES/OMVE. We have provided responses to each significant issue raised by commenters that was within the scope of this rule.
In the notice of proposed rulemaking published on August 15, 2007, we also provided the public with a 90-day period in which to comment on using the MVES/OMVE in a more limited role to develop and manage a national registry of medical, psychological, and vocational experts to assist disability adjudicators in developing and/or clarifying information within the record. That comment period remains open through November 13, 2007. We will not respond to comments on this more limited role for the MVES/OMVE until such time as we may publish a notice of proposed rulemaking setting out more detailed plans for such a registry.
With respect to case development and quality of decisions, our Office of Quality Performance (OQP) evaluated 100% of all FedRO decisions through about April 2007, and it continues to evaluate a statistically valid sample of FedRO decisions after that date. This evaluation reviews both the manner in which the case was developed and the decision itself. OQP's cumulative agreement rate with OFedRO has been 97%, which is significantly better than its overall agreement rate with State agency reconsidered determinations in the Boston region.
We will consider these factors as we evaluate the OFedRO and MVES/OMVE through the processing of claims already transferred to the OFedRO.
Additionally, it will be more efficient to keep the pending cases with OFedRO than to transfer them to the State agencies. It would take considerable time for the State agency examiners to familiarize themselves with the cases, and the actual transfer would present significant challenges because the OFedRO processing system would have to communicate with six different State agency processing systems.
With respect to the processing time, we expect that once requests for FedRO review are suspended, OFedRO will be able to process the pending workload relatively quickly. Once the flow of cases is suspended, OFedRO will no longer need to review, develop, and monitor new cases. Accordingly, FedROs will have more time to devote to finalizing and writing decisions for the pending cases. Additionally, the FedROs are increasingly attaining the experience needed to process cases more quickly.
With respect to contacting individual FedROs, we have recently taken steps to address this issue. We now have additional staff assisting in handling telephone calls to OFedRO. In the event that a call goes to voice mail, updated voice mail messages ask callers to leave specific information that will facilitate the FedRO's ability to contact the caller. We also recently began sending compact disks (CDs) of the electronic folder with the copy of the acknowledgement letter to representatives in the Boston region who handle large numbers of claimants. This improvement eliminates the need for the representative to call to request the CD of the electronic folder. Once the flow of cases is suspended, support staff will no longer need to send acknowledgement letters and initial requests for evidence from the MVES/OMVE. Accordingly, we expect support staff to be able to devote more time to handling telephone calls.
In light of the comments, we are making one substantive change to proposed § 405.240 that will reduce slightly the number of cases that will continue to be processed through the OFedRO and MVES/OMVE. Proposed § 405.240 used the date an individual files a request for FedRO review to determine whether the claim would receive FedRO review. We are amending § 405.240 to use instead the date that we transfer such a request to the OFedRO. Some requests for FedRO review are transferred to the OFedRO on the same day that the request is filed, but others are not. Currently, the average time to transfer claims to OFedRO after a request is filed is over 14 days. Using the date we transfer a request to OFedRO will reduce somewhat the number of pending cases that will receive FedRO review but still provide us a significant pool of cases to help us evaluate the OFedRO and MVES/OMVE.
In addition to the changes discussed above, we are making the following clarifying changes. We are making changes to §§ 405.10(d) and 405.240(d) to clarify what types of notices we intend to publish if we take further action pursuant to those provisions. We are also making changes to the appendix to subpart A of part 405. We are revising the language to clarify that if a claimant files a disability claim in one State but then moves to another State, adjudicators at subsequent levels of review will apply the regulations applicable at the time of such subsequent review in the State where the claimant filed the disability claim. We have removed the examples because we believe they could result in misunderstanding. We are making a change to § 405.240(a) to specify the date on which this final rule is effective and a change to § 405.240(b) to correct a typographical error. Finally, we are making a change to § 405.240(b), and conforming changes to subpart J of part 404, subpart D of part 405, and subpart N of part 416 of our rules, to clarify that we will follow the procedures in part 405 of our rules to process hearings before an administrative law judge and any subsequent administrative review in claims affected by suspension of the FedRO level.
We have consulted with the Office of Management and Budget (OMB) and determined that this final rule meets the criteria for an economically significant regulatory action under Executive Order 12866, as amended, and thus meets the criteria for a major rule under the Congressional Review Act. Accordingly, this final rule was reviewed by OMB, and it will be effective 60 days after publication. We have also determined that these final rules meet the plain language requirement of Executive Order 12866, as amended.
The Office of the Chief Actuary (OCACT) estimates that this rule will result in program savings of roughly $1.0 billion in OASDI benefit payments and cost of $0.1 billion in Federal SSI payments over the next 10 years, as shown below (in millions of dollars):
Table 1 above presents the estimated short-range effects on OASDI benefit payments and Federal SSI payments that will result from implementation of this final rule, measured relative to the baseline used for the President's Fiscal Year 2008 Budget and assuming that the final rule will become effective for initial determinations made on or after April 1, 2008. The FY 2008 Budget assumed that DSI would be gradually implemented at the pace of one region per year and be fully implemented for new claims in all regions by the beginning of FY 2016. For the 10 States where the Prototype determination process has been or is being tested, the effect of this final rule will be to retain or restore the Prototype process so that the first level of appeal of an initial disability decision will be to an administrative law judge.
As required by OMB Circular A-4 (available at
Suspending new claims going through the FedRO and OMVE will allow us to reallocate resources to reduce the backlog at the hearing level by holding more hearings and making system improvements to increase the efficiency of our hearings process.
We will also continue to evaluate the FedRO and OMVE through the processing of claims already received. This evaluation will include an assessment of DSI, as the pilot is currently implemented in the Boston region, with existing claims. In the analysis we will analyze DSI's impact on the timeliness of disability determinations, on overall program costs, as well as its impact on the administrative costs required to implement this new process. Once this evaluation is complete and alternative approaches analyzed, we will make a decision whether to reinstate the processing of new claims into the FedRO or pursue an alternative approach to improving the disability determination process.
We certify that this rule will not have a significant economic impact on a substantial number of small entities as it affects only States and individuals. Therefore, a regulatory flexibility analysis as provided in the Regulatory Flexibility Act, as amended, is not required.
These rules impose no new reporting or recordkeeping requirements requiring OMB clearance.
Administrative practice and procedure; Blind; Disability benefits; Old-Age, Survivors, and Disability Insurance; Reporting and recordkeeping requirements; Social Security.
Administrative practice and procedure; Blind, Disability benefits; Old-Age, Survivors, and Disability Insurance; Public assistance programs, Reporting and recordkeeping requirements; Social Security; Supplemental Security Income (SSI).
Administrative practice and procedure; Aged, Blind, Disability benefits, Public Assistance programs; Reporting and recordkeeping requirements; Supplemental Security Income (SSI).
Secs. 201(j), 204(f), 205(a), (b), (d)-(h), and (j), 221, 223(i), 225, and 702(a)(5) of the Social Security Act (42 U.S.C. 401(j), 404(f), 405(a), (b), (d)-(h), and (j), 421, 423(i), 425, and 902(a)(5)); sec. 5, Pub. L. 97-455, 96 Stat. 2500 (42 U.S.C. 405 note); secs. 5, 6(c)-(e), and 15, Pub. L. 98-460, 98 Stat. 1802 (42 U.S.C. 421 note); sec. 202, Pub. L. 108-203, 118 Stat. 509 (42 U.S.C. 902 note).
(b) * * *
(4) * * * If you requested review by a Federal reviewing official under part 405 of this chapter and we considered that request a request for review by an administrative law judge as a result of § 405.240(b) of this chapter, we will apply the procedures contained in subpart D of part 405 of this chapter.
(c) If you received a reconsidered determination instead of a decision by a Federal reviewing official as a result of § 405.240 of this chapter, we will apply the procedures contained in subpart D of part 405 of this chapter to your request for a hearing before an administrative law judge.
Secs. 201(j), 205(a)-(b), (d)-(h), and (s), 221, 223(a)-(b), 702(a)(5), 1601, 1602, 1631, and 1633 of the Social Security Act (42 U.S.C. 401(j), 405(a)-(b), (d)-(h), and (s), 421, 423(a)-(b), 902(a)(5), 1381, 1381a, 1383, and 1383b).
(d) This section will no longer be effective on the same date as described in § 405.240(c) of this part unless the Commissioner decides that the Medical and Vocational Expert System should be continued and extends the sunset date as described in § 405.240(d) of this part by publishing a notice of proposed rulemaking and a final rule in the
(a) We will apply the procedures in this part to disability claims (as defined in § 405.5) filed in Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, or Connecticut.
(b) If you move from one State to another after your disability claim has been filed, adjudicators at subsequent levels of review will apply the regulations applicable at the time of such subsequent review in the State where you filed the disability claim.
(a) If you filed a request for review by a Federal reviewing official and we transferred your claim to the Office of the Federal Reviewing Official on or before March 17, 2008, the Federal reviewing official will review and issue a decision on your claim.
(b) If you have received an initial determination under subpart B of this part, we will process any request for additional administrative review not described in paragraph (a) of this section as either a request for reconsideration by the State agency or a request for hearing before an administrative law judge if your State uses the testing procedures under §§ 404.906 and 416.1406 of this chapter. In any hearing before an administrative law judge on your claim, and in any further review of your claim, we will follow the procedures in this part.
(c) This subpart will no longer be effective the day after a Federal reviewing official issues a decision on the last of the claims accepted for review under paragraph (a) of this section.
(d) If compelling evidence shows that the Federal reviewing official process is efficient, effective, and sustainable given available Agency resources, the Commissioner may reinstate the Federal reviewing official process by publishing a notice of proposed rulemaking and final rule in the
(a) This subpart explains what to do if you are dissatisfied with a decision by a Federal reviewing official, a reconsidered determination you received as a result of § 405.240 of this part, or an initial determination subject to a hearing by an administrative law judge under the procedures in this part as a result of § 404.906(b)(4) or § 416.1406(b)(4) of this chapter. * * *
(b) * * *
(c) You may examine the evidence used in making the decision or determination under review, submit evidence, appear at the hearing, and present and question witnesses. * * *
You may request a hearing before an administrative law judge if you are dissatisfied with the Federal reviewing official's decision on your disability claim, the reconsidered determination you received as a result of § 405.240 of this part, or an initial determination subject to a hearing by an administrative law judge under the procedures in this part as a result of § 404.906(b)(4) or § 416.1406(b)(4) of this chapter.
(b) * * * An administrative law judge will conduct a hearing if you request one in writing no later than 60 days
Secs. 702(a)(5), 1631, and 1633 of the Social Security Act (42 U.S.C. 902(a)(5), 1383, and 1383b); sec. 202, Pub. L. 108-203, 118 Stat. 509 (42 U.S.C. 902 note).
(b) * * *
(4) * * * If you requested review by a Federal reviewing official under part 405 of this chapter and we considered that request a request for review by an administrative law judge as a result of § 405.240(b) of this chapter, we will apply the procedures contained in subpart D of part 405 of this chapter.
(c) If you received a reconsidered determination instead of a decision by a Federal reviewing official as a result of § 405.240 of this chapter, we will apply the procedures contained in subpart D of part 405 of this chapter to your request for a hearing before an administrative law judge.
Internal Revenue Service (IRS), Treasury.
Final regulations.
This document contains final regulations under section 1502 of the Internal Revenue Code that provide guidance regarding the manner in which the items (including items described in section 381(c) but excluding intercompany items under § 1.1502-13) of a liquidating corporation are succeeded to and taken into account in cases in which multiple members acquire the assets of the liquidating corporation in a complete liquidation to which section 332 applies. These final regulations affect corporations filing consolidated returns.
Amber C. Vogel or Marie C. Milnes-Vasquez, (202) 622-7530 (not a toll-free number).
On February 22, 2005, the IRS and Treasury Department published in the
The proposed regulations also provide allocation rules for the credits and earnings and profits of the liquidating corporation. Under the proposed regulations, each distributee member succeeds to the credits of the liquidating corporation to the extent that the items of income, gain, loss, or deduction attributable to the activities that gave rise to the credit would have been reflected in investment adjustments to the stock of the liquidating corporation owned by such distributee member under the principles of § 1.1502-32(c) if, immediately before the liquidation, any stock of the liquidating corporation owned by nonmembers had been redeemed, and then such items had been taken into account. The proposed regulations provide similar rules for allocating the liquidating corporation's earnings and profits to the distributee members.
Under the proposed regulations, a distributee member generally succeeds to any other items of the liquidating corporation if, immediately before the liquidation, such distributee owns stock in the liquidating corporation meeting the requirements of section 1504(a)(2) without regard to the application of § 1.1502-34. In contrast, a distributee member that does not meet the ownership requirements of section 1504(a)(2) without regard to the application of § 1.1502-34 (a non-80-percent distributee) succeeds to any remaining items of the liquidating corporation only to the extent that it would have succeeded to those items if it had purchased, in a taxable transaction, the assets or businesses of the liquidating corporation that it received in the liquidation and had assumed the liabilities that it assumed in the liquidation.
In addition, the proposed regulations also provide guidance regarding the method for allocating the intercompany items of a liquidating subsidiary in cases in which multiple members acquire the assets of a liquidating subsidiary in a complete liquidation to which section 332 applies. The IRS and Treasury Department continue to study those rules. Accordingly, that portion of the notice of proposed rulemaking is withdrawn, and the final regulations do not apply to the intercompany items of the liquidating corporation. For rules applicable to the treatment of those items, see § 1.1502-13(j)(2)(ii).
No public hearing was requested or held. Written and electronic comments responding to the notice of proposed rulemaking were received. After
Section 332(a) provides that no gain or loss shall be recognized on the receipt by a corporation of property distributed in complete liquidation of another corporation. Section 332(b) provides, in part, that a distribution shall be considered to be in complete liquidation only if the corporation receiving such property was, on the date of the adoption of the plan of liquidation and at all times thereafter until the receipt of the property, the owner of stock meeting the requirements of section 1504(a)(2) and the distribution is made in complete cancellation or redemption of all of the stock of the liquidating corporation. Section 1.1502-34 provides that in determining the stock ownership of a member in another corporation (the issuing corporation) for purposes of determining the application of section 332(b)(1) there shall be included the stock of the issuing corporation owned by all other members of the group.
Section 337(a) provides that the liquidating corporation shall not recognize gain or loss on the distribution to the 80-percent distributee of any property in a complete liquidation to which section 332 applies. Section 337(c) provides that, for purposes of section 337, the term “80-percent distributee” means only the corporation that meets the 80-percent stock ownership requirements of section 332(b) without regard to the application of any consolidated return regulation. If section 337(a) does not apply, under section 336, the liquidating corporation will generally recognize gain or loss on the distribution of property in complete liquidation as if such property were sold to the distributee at its fair market value. Therefore, a complete liquidation to which section 332 applies may be taxable in whole or in part to the liquidating corporation but tax-free to the distributee members.
Section 1.451-5 generally allows accrual method taxpayers to defer the inclusion in gross income of advance payments for goods until the taxable year in which properly accruable under the taxpayer's method of accounting for tax purposes if such method results in gross income inclusion no later than when such items are included in gross income under the taxpayer's method of accounting for financial reporting purposes. However, if in a taxable year the taxpayer ceases to exist in a transaction other than one to which section 381(a) applies, or the liability under the agreement otherwise ends, then deferred income amounts are includable in the taxpayer's gross income for such taxable year.
Rev. Proc. 2004-34 (2004-1 CB 991) (see § 601.601(d)(2)(ii)
Section 455 provides accrual method taxpayers with an election to include prepaid subscription income in gross income in the taxable year in which the liability exists to furnish or deliver a newspaper, magazine, or other periodical. However, if the liability to furnish or deliver the periodical ends or the taxpayer ceases to exist, then the amount of prepaid subscription income not previously included in the taxpayer's gross income is included in the taxpayer's gross income for the taxable year in which the liability ends. If the taxpayer's liability to furnish or deliver the periodical ends as a result of a transaction to which section 381(a) applies, the prepaid subscription income will generally not be included in the taxpayer's gross income, and the acquiring corporation must continue to defer the prepaid subscription income under section 455. Treas. Reg. § 1.455-4 (citing section 381(c)(4) and the regulations under that section).
Section 381(a) applies to a distribution to which section 332 applies. As described in this preamble, a complete liquidation to which section 332 applies is taxable to the liquidating corporation to the extent that it distributes property to a non-80-percent distributee. In particular, the liquidating corporation is treated as if it had sold the property distributed to the non-80-percent distributee at its fair market value. If the liquidating corporation had sold a business with regard to which income items had been deferred (for example, deferred prepaid subscription income under section 455) and the purchaser had assumed the liquidating corporation's obligation or liability to perform the services or provide the goods relating to the deferred income, then the liquidating corporation would have recognized the deferred income. However, the liquidating corporation would also have been entitled to a deduction under section 162 for any amount paid (or deemed paid) to the purchaser for its assumption of the obligation or liability related to the deferred income. See Rev. Rul. 68-112 (1968-1 CB 62) (see § 601.601(d)(2)(ii)
The IRS and Treasury Department believe that it is appropriate for any deferred income items of a liquidating corporation attributable to assets and/or liabilities transferred to a non-80-percent distributee to be taken into account under applicable principles of law as a result of the liquidation despite the fact that the transaction is described in section 381(a). Likewise, section 332(a) does not apply in determining the recognition or nonrecognition of any income realized by the non-80-percent distributee attributable to its assumption of an obligation or liability related to the deferred income because such income is not gain or loss recognized with respect to the stock of the liquidating corporation. These final regulations include such rules.
The IRS and Treasury Department also believe that it is appropriate to allocate the full amount of deferred income items or deferred deductions of the liquidating corporation that are attributable to specific property or a specific business to the distributee member that receives such property or business in the liquidation. These final regulations include such a rule.
As described in this preamble, the proposed regulations allocate credits to distributee members based on the items of income, gain, loss, or deduction attributable to the activities that gave rise to the credits. Comments were received indicating that it was unclear how to allocate credits that are not clearly associated with items of income, gain, loss, or deduction (for example, the section 53 minimum tax credit). The
It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. Further, it is hereby certified that these regulations will not have a significant economic impact on a substantial number of small entities. This certification is based on the fact that these regulations will primarily affect affiliated groups of corporations that have elected to file a consolidated return, which tend to be larger businesses. Accordingly, a regulatory flexibility analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6) is not required. Pursuant to section 7805(f) of the Internal Revenue Code, the notice of proposed rulemaking preceding this regulation was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
The principal author of these regulations is Amber C. Vogel of the Office of Associate Chief Counsel (Corporate). However, other personnel from the IRS and Treasury Department participated in their development.
Accordingly, we are not adopting the amendments to § 1.1502-13 as proposed in the notice of proposed rulemaking (REG-131128-04) that was published in the
Income taxes, Reporting and recordkeeping requirements.
26 U.S.C. 7805. * * *
Section 1.1502-80 also issued under 26 U.S.C. 1502. * * *
The revision and addition read as follows:
(a) * * * For example, sections 269 and 482 apply for any consolidated year. * * *
(g)
(1)
(2)
(3)
(4)
(5)
(6)
(ii)
(B)
(C)
(ii)
(B)
(C)
(D)
(ii)
(7)
Pension Benefit Guaranty Corporation.
Final rule.
The Pension Benefit Guaranty Corporation's regulations on Benefits Payable in Terminated Single-Employer Plans and Allocation of Assets in Single-Employer Plans prescribe interest assumptions for valuing and paying benefits under terminating single-employer plans. This final rule amends the regulations to adopt interest assumptions for plans with valuation dates in February 2008. Interest assumptions are also published on the PBGC's Web site (
Effective February 1, 2008.
Catherine B. Klion, Manager, Regulatory and Policy Division, Legislative and Regulatory Department, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington, DC 20005, 202-326-4024. (TTY/TDD users may call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4024.)
The PBGC's regulations prescribe actuarial assumptions—including interest assumptions—for valuing and paying plan benefits of terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions are intended to reflect current conditions in the financial and annuity markets.
Three sets of interest assumptions are prescribed: (1) A set for the valuation of benefits for allocation purposes under section 4044 (found in Appendix B to Part 4044), (2) a set for the PBGC to use to determine whether a benefit is payable as a lump sum and to determine lump-sum amounts to be paid by the PBGC (found in Appendix B to Part 4022), and (3) a set for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using the PBGC's historical methodology (found in Appendix C to Part 4022).
This amendment (1) adds to Appendix B to Part 4044 the interest assumptions for valuing benefits for allocation purposes in plans with valuation dates during February 2008, (2) adds to Appendix B to Part 4022 the interest assumptions for the PBGC to use for its own lump-sum payments in plans with valuation dates during February 2008, and (3) adds to Appendix C to Part 4022 the interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using the PBGC's historical methodology for valuation dates during February 2008.
For valuation of benefits for allocation purposes, the interest assumptions that the PBGC will use (set forth in Appendix B to part 4044) will be 5.50 percent for the first 20 years following the valuation date and 4.57 percent thereafter. These interest assumptions represent an increase (from those in effect for January 2008) of 0.08 percent for the first 20 years following the valuation date and 0.08 percent for all years thereafter.
The interest assumptions that the PBGC will use for its own lump-sum payments (set forth in Appendix B to part 4022) will be 3.25 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. These interest assumptions represent an increase (from those in effect for January 2008) of 0.25% in the immediate rate and are otherwise unchanged. For private-sector payments, the interest assumptions (set forth in Appendix C to part 4022) will be the same as those used by the PBGC for determining and paying lump sums (set forth in Appendix B to part 4022).
The PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect current market conditions as accurately as possible.
Because of the need to provide immediate guidance for the valuation and payment of benefits in plans with valuation dates during February 2008, the PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication.
The PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.
Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).
Employee benefit plans, Pension insurance, Pensions, Reporting and recordkeeping requirements.
Employee benefit plans, Pension insurance, Pensions.
29 U.S.C. 1302, 1322, 1322b, 1341(c)(3)(D), and 1344.
29 U.S.C. 1301(a), 1302(b)(3), 1341, 1344, 1362.
Department of Veterans Affairs.
Final rule.
This document amends regulations governing various aspects of the education programs administered by the Department of Veterans Affairs. These amendments reflect some of the provisions of the Veterans Education and Benefits Expansion Act of 2001, the Veterans Benefits Act of 2003, and the Veterans Benefits, Health Care, and Information Technology Act of 2006. The changes include: Restoration of certain education benefits for individuals being ordered to active duty; restoration of Survivors' and Dependents' Educational Assistance to certain full-time National Guard members; an opportunity for certain Vietnam-era veterans to qualify for Montgomery GI Bill education benefits; an increase in the maximum amount an individual can receive under the Senior Reserve Officer Training Corps educational assistance program and still qualify for the Montgomery GI Bill—Active Duty program; establishment of an ending date of the eligibility period for spouses under the Survivors' and Dependents' Educational Assistance program; expansion of special restorative training benefits to certain disabled spouses or disabled surviving spouses; and providing educational benefits for an independent study course that leads to a certificate reflecting educational attainment offered by an institution of higher learning. The document also amends the education regulations by making changes to reflect current agency organization and nonsubstantive changes for the purpose of readability or clarity.
Lynn M. Nelson, Assistant Director, Policy and Program Administration (225), Education Service, Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 461-9827.
The Veterans Education and Benefits Expansion Act of 2001 (Pub. L. 107-103) (“Act”) provides eligibility under the Montgomery GI Bill—Active Duty (MGIB) program to some additional Vietnam-era veterans. Previously, only
The Act raised the maximum amount individuals entitled to educational assistance under the Senior Reserve Officer Training Corps (SROTC) program may receive and still remain eligible to elect the MGIB program. Before January 1, 2002, officers commissioned directly from a SROTC program who entered on active duty after September 30, 1996, and who received more than $2,000 in SROTC scholarship funds for each year of the program, were not eligible for the MGIB program. Under the Act, individuals who entered active duty after September 30, 1996, may become eligible for the MGIB program beginning January 1, 2002, if they received $3,400 or less in any year they participated in the SROTC scholarship program. We are amending the pertinent regulation to reflect the statutory change.
Section 103 of Public Law 107-103 restored education benefits under 38 U.S.C. chapters 30, 32, and 35 to certain individuals ordered to active duty. This provision applies to individuals ordered, by orders dated on or after September 11, 2001, to active duty under 10 U.S.C. 688, 12301(a), 12301(d), 12301(g), 12302, or 12304. In addition, the Veterans Benefits, Health Care, and Information Technology Act of 2006 (Pub. L. 109-461) permitted restoration of Survivors' and Dependents' Educational Assistance (DEA) entitlement under 38 U.S.C. chapter 35 to certain full-time National Guard members who were involuntarily ordered to full-time duty on or after September 11, 2001. Generally, most individuals are eligible for 36 months of full-time benefits (45 months under the DEA program). We refer to the 36 months of benefits as 36 months of “entitlement”. For each day of full-time benefits that we pay, we deduct 1 day of entitlement. If an individual is ordered to duty as indicated above, and has to withdraw from his or her course(s), VA will pay benefits up to the date of withdrawal. Although under these circumstances we pay benefits, the individual's entitlement will not reflect this, provided the veteran received no credit for the course-work completed up to the point of withdrawal. For example, if someone started a course with 36 months of benefits available, and we paid for 2 months of benefits before he or she dropped the course, we would charge 2 months of entitlement. That individual would have 34 months of benefits remaining. Under the restoration-of-entitlement provisions, we will restore the 2 months of entitlement. So, although an individual received benefits for 2 months, his or her entitlement will not be reduced. We are amending the pertinent regulations to reflect these provisions of Public Law 107-103 and Public Law 109-461.
Section 103 of Public Law 107-103 permits VA to extend the DEA eligibility period for an eligible person who is ordered, by orders dated on or after September 11, 2001, to active duty under 10 U.S.C. 688, 12301(a), 12301(d), 12301(g), 12302, or 12304. The extension is equal to the time served on active duty, plus an additional four months. In addition, section 303 of the Veterans Benefits Act of 2003 (Pub. L. 108-183) permitted a similar extension for eligible persons who are National Guard members and who were involuntarily ordered to full-time duty on or after September 11, 2001.
Before enactment of Public Law 107-103, the U.S. Court of Appeals for Veterans Claims, in
Section 109 of Public Law 107-103 permits payment of special restorative training (SRT) benefits to disabled spouses and disabled surviving spouses beginning December 27, 2001. The spouses and surviving spouses must be eligible for DEA benefits in order to qualify for SRT. Prior to the enactment of section 109, only disabled children eligible for DEA were eligible for this benefit. SRT is training that helps to overcome or lessen the effects of a physical or mental disability for the purposes of enabling an eligible person to pursue a program of education, special vocational program, or other appropriate goal. We are amending the pertinent regulations to make them conform to this statutory provision.
The Act also allows VA to pay veterans, servicemembers, and reservists educational assistance benefits for an independent study course that leads to a certificate that reflects educational attainment offered by an institution of higher learning. The independent study provisions in the Act amended 38 U.S.C. 3680A(a)(4). The provision applies to enrollment in courses on or after December 27, 2001. Prior to enactment, VA could provide education benefits only for independent study courses that were part of a standard college degree program. We are amending the pertinent regulations to reflect this change and to show that the new provision does not apply to DEA benefits for survivors and dependents. (Provisions concerning payment and non-payment of DEA for courses taken by independent study are in 38 U.S.C. 3523(a)(4), which was not amended by Pub. L. 107-103.)
In addition, we are amending provisions in the DEA regulations relating to definitions, SRT, and enrollment at the secondary school level for special assistance for the educationally disadvantaged, to reflect current agency organization, including by making changes in the designations of staff handling various functions.
Nonsubstantive changes are also made for the purpose of readability or clarity.
Substantive changes made by this final rule merely reflect statutory requirements. Accordingly, there is a basis for dispensing with prior notice and comment and a delayed effective date under the provisions of 5 U.S.C. 553. Use of those procedures would be impracticable, unnecessary, and contrary to the public interest.
This document contains no provisions constituting a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).
The Office of Management and Budget (OMB) assigns a control number for
In § 21.3302 (concerning special restorative training), this final rule amends provisions concerning information collection requirements that are currently approved by OMB. The amended provisions remain within the scope of the approved collections of information. We are adding at the end of § 21.3302 an information collection approval parenthetical containing the OMB control numbers for the collections of information in that section, OMB control numbers 2900-0014 (Authorization and Certification of Entrance or Reentrance into Rehabilitation and Certification of Status), 2900-0073 (Enrollment Certification), and 2900-0156 (Notice of Change in Student Status).
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This final rule will have no such effect on State, local, and tribal governments, or on the private sector.
Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Executive Order classifies a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB) unless OMB waives such review, as any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
The economic, interagency, budgetary, legal, and policy implications of this rule have been examined, and it has been determined to be a significant regulatory action under the Executive Order because it may raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
The Secretary of Veterans Affairs hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This final rule primarily affects only individuals. This rule reflects the statutory expansion to add certain disabled spouses and disabled surviving spouses to the categories of persons who may be eligible for training from small entities that choose to provide it. Although some small entities may provide special restorative training, any direct effect of this rule on such entities would be minuscule. This statutory change resulted in only 24 additional individuals receiving such training in the most recent year with available data. Pursuant to 5 U.S.C. 605(b), this final rule, therefore, is exempt from the initial and final regulatory flexibility analyses requirements of sections 603 and 604. Pursuant to 5 U.S.C. 603 and 604, an additional reason that those regulatory flexibility analyses requirements are not applicable to this final rule is that no notice of proposed rulemaking was required by law for this rulemaking.
The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this final rule are 64.117, Survivors and Dependents Educational Assistance; 64.120, Post-Vietnam Era Veterans' Educational Assistance; and 64.124, All-Volunteer Force Educational Assistance. This final rule also affects the Montgomery GI Bill—Selected Reserve program, for which there is no Catalog of Federal Domestic Assistance number.
Administrative practice and procedure, Armed forces, Civil rights, Claims, Colleges and universities, Conflict of interests, Education, Employment, Grant programs—education, Grant programs—veterans, Health care, Loan programs—education, Loan programs—veterans, Manpower training programs, Reporting and recordkeeping requirements, Schools, Travel and transportation expenses, Veterans, Vocational education, Vocational rehabilitation.
38 U.S.C. 501(a), 512, 3500-3566, and as noted in specific sections.
The additions read as follows:
(t)
(u)
The revisions read as follows:
(d) * * *
(1) * * *
(i) Had to discontinue pursuit of the course or courses as a result of being—
(A) Ordered, in connection with the Persian Gulf War by orders dated before September 11, 2001, to serve on active
(B) Ordered, by orders dated after September 10, 2001, to serve on active duty under 10 U.S.C. 688, 12301(a), 12301(d), 12301(g), 12302, or 12304; or
(C) Involuntarily ordered, by orders dated after September 10, 2001, to full-time National Guard duty under 32 U.S.C. 502(f).
(c)
(ii) If before December 27, 2001, VA made a determination of eligibility for a spouse, the eligibility period has no ending date unless the spouse changes his or her program of education. If on or after December 27, 2001, the spouse changes his or her program of education, the eligibility period cannot exceed 10 years. The beginning date of the eligibility period is determined as provided in paragraph (a) of this section. The 10-year eligibility period can be extended only as provided in paragraph (c)(3) of this section and § 21.3047.
(iii) Notwithstanding the provisions of paragraph (c)(1)(i) of this section, if eligibility arises before October 24, 1972, educational assistance will not be afforded later than October 23, 1982, based on a course or program of correspondence, apprentice, or other on-the-job training, approved under the provisions of § 21.4256, § 21.4261, or § 21.4262, except that VA may award educational assistance beyond October 23, 1982, if the eligible spouse qualifies for the extended period of eligibility as provided in paragraph (c)(3) of this section and § 21.3047.
(2)
(ii) If eligibility arises before October 24, 1972, educational assistance will not be afforded later than October 23, 1982, based on a course or program of correspondence, apprentice, or other on-the-job training approved under the provisions of § 21.4256, § 21.4261, or § 21.4262, except that VA may award educational assistance beyond October 23, 1982, if the eligible surviving spouse qualifies for an extended period of eligibility as provided in paragraph (c)(3) of this section and § 21.3047.
(iii) The eligibility period for a surviving spouse is not reduced by any earlier period during which the surviving spouse was eligible for educational assistance under this chapter as a spouse.
(3)
The addition reads as follows:
(d) * * *
(4) For pursuit of a course offered by independent study, unless the course is accredited, meets the requirements of § 21.4253, and leads to a standard college degree.
The additions and revision read as follows:
(a) * * *
(b)
(c) * * *
The revisions read as follows:
(a) * * *
(6) * * *
(c)
(d)
(e) * * *
The revisions and addition read as follows:
(c)
The revisions read as follows:
(b)
(2) No spouse or surviving spouse may receive special restorative training after reaching the end of his or her eligibility period as determined under §§ 21.3046 and 21.3047.
(c) * * *
The revision reads as follows:
The revisions read as follows:
(a)
(b)
The revisions read as follows:
(b) * * *
(1) Notify the eligible person of the action taken, except that if the eligible person has a guardian or has not attained majority under laws applicable in his or her State of residence, VA will notify his or her parent or guardian (see § 21.3021(d)) of the action taken.
(2) Inform the eligible person of his or her potential right to a program of education, except that if the eligible person has a guardian or has not attained majority under laws applicable in his or her State of residence, VA will inform his or her parent or guardian (see § 21.3021(d)) of the eligible person's potential right to a program of education.
10 U.S.C. 2141 note, ch. 1606; 38 U.S.C. 501(a), chs. 30, 32, 34, 35, 36, and as noted in specific sections.
The revision and addition read as follows:
(f)
(1) Is accredited;
(2) Meets the requirements of § 21.4253; and
(3) Either—
(i) Leads to a standard college degree; or
(ii) For courses approved on or after December 27, 2001, leads to a certificate that reflects educational attainment offered by an institution of higher learning.
(g)
38 U.S.C. 501(a), chs. 32, 36, and as noted in specific sections.
The revision reads as follows:
(i)
(1)(i) A veteran not serving on active duty had to discontinue course pursuit as a result of being ordered, in connection with the Persian Gulf War by orders dated before September 11, 2001, to serve on active duty under 10 U.S.C. 688, 12301(a), 12301(d), 12301(g), 12302, or 12304, or former 10 U.S.C. 672(a), 672(d), 672(g), 673, or 673b (redesignated effective December 1, 1994, as 10 U.S.C. 12301(a), 12301(d), 12301(g), 12302, and 12304, respectively); or
(ii) A veteran not serving on active duty had to discontinue course pursuit as a result of being ordered, by orders dated after September 10, 2001, to serve
(iii) A servicemember serving on active duty had to discontinue course pursuit as a result of being ordered, in connection with the Persian Gulf War by orders dated before September 11, 2001, to a new duty location or assignment or to perform an increased amount of work; or
(iv) A servicemember serving on active duty had to discontinue course pursuit as a result of being ordered, by orders dated after September 10, 2001, to a new duty location or assignment or to perform an increased amount of work; and
(2) The veteran or servicemember failed to receive credit or lost training time toward completion of his or her educational, professional, or vocational objective as a result of having to discontinue course pursuit as described in paragraph (i)(1) of this section.
38 U.S.C. 501(a), chs. 30, 36, and as noted in specific sections.
(f) * * *
(3) Except as provided in this paragraph and in paragraph (f)(4) of this section, an individual who after December 31, 1976, receives a commission as an officer in the Armed Forces upon completion of a program of educational assistance under 10 U.S.C. 2107 (the Senior Reserve Officers' Training Corps program) is not eligible for educational assistance under 38 U.S.C. chapter 30. This bar to eligibility under 38 U.S.C. chapter 30 does not apply to an individual who entered active duty after September 30, 1996, and received—
(i) $2,000 or less in educational assistance under 10 U.S.C. 2107 for at least one year of the individual's participation in that program of educational assistance; or
(ii) $3,400 or less in educational assistance under 10 U.S.C. 2107 for at least one year of the individual's participation in that program of educational assistance. This provision applies to payment of educational assistance under 38 U.S.C. chapter 30 for months after December 31, 2001.
The revision and addition read as follows:
(a) * * *
(7) Effective December 27, 2001, an individual must meet the following requirements. He or she—
(i) Was not on active duty on October 19, 1984;
(ii) Reenlists or reenters on a period of active duty after October 19, 1984; and
(iii) Serves at least three years of continuous active duty in the Armed Forces after June 30, 1985. The individual is not required to serve three years if he or she is honorably discharged or released from active duty for one of the reasons shown in paragraphs (a)(4)(ii)(A) through (a)(4)(ii)(F) of this section.
(b) * * *
(4) The individual either—
(i) Must have been on active duty on October 19, 1984, must have served without a break in service from October 19, 1984, through June 30, 1985, and after June 30, 1985—
(A) Except as provided in paragraph (b)(5) of this section, must serve at least two years of continuous active duty in the Armed Forces characterized by the Secretary concerned as honorable service, and
(B) Except as provided in paragraph (b)(6) of this section, after completion of this active duty service, must serve at least four continuous years service in the Selected Reserve, during which the individual must participate satisfactorily in training as prescribed by the Secretary concerned; or
(ii) Effective December 27, 2001, must not have been on active duty on October 19, 1984, must reenlist or reenter on a period of active duty after October 19, 1984, and after June 30, 1985—
(A) Except as provided in paragraph (b)(5) of this section, must serve at least two years of continuous active duty in the Armed Forces characterized by the Secretary concerned as honorable service, and
(B) Except as provided in paragraph (b)(6) of this section, after completion of this active duty service, must serve at least four continuous years service in the Selected Reserve, during which the individual must participate satisfactorily in training as prescribed by the Secretary concerned.
The addition reads as follows:
(a) * * *
(1) * * *
(iv) December 27, 2001, for individuals who become eligible for educational assistance under § 21.7044(a)(7) or (b)(4)(ii).
(e) Any independent study program except—
(1) An accredited independent study program (including open circuit television) leading to a standard college degree;
(2) Enrollments in an independent study course after December 26, 2001, in a program leading to a certificate that reflects educational attainment offered by an institution of higher learning; or
(3) As provided for in § 21.7120(d).
Environmental Protection Agency (EPA).
Direct final rule.
On February 7, 2002, Indiana submitted revisions to its State Implementation Plan (SIP) for lead (Pb) as part of the State's incorporation of a Federal standard for secondary lead smelters. On October 3, 2006, and November 27, 2007, Indiana supplemented its request as it pertained to Quemetco, Incorporated (Quemetco), in Marion County. The requested SIP revision replaces the Pb emission limits for Quemetco with new, stringent limits. EPA has determined that the new limits will be protective of the Pb air quality standards, and is therefore approving them.
This direct final rule will be effective March 17, 2008, unless EPA receives adverse comments by February 14, 2008. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2006-0276, by one of the following methods:
1.
2.
3.
4.
5.
Mary Portanova, Environmental Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-5954,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
Indiana's SIP rules for Pb are currently codified at 326 Indiana Administrative Code (IAC) 15, which is also referred to as Article 15. Article 15 covers lead-bearing emissions and fugitive dust from several facilities in Indiana, including secondary lead smelters. The SIP rules applicable to sources in Marion County, Indiana, were developed to ensure that Marion County would attain and maintain the Pb National Ambient Air Quality Standards (NAAQS).
EPA promulgated the National Emission Standards for Hazardous Air Pollutants (NESHAP) for secondary lead smelting on June 23, 1995 (60 FR 32587); amended on June 13, 1997 (62 FR 32209). Codified at 40 CFR part 63, subpart X, this NESHAP is a technology-based regulation intended to bring certain sources at secondary lead smelters to a specified level of air pollution control. Indiana incorporated the Maximum Achievable Control Technology (MACT) standard of the secondary lead smelter NESHAP, with certain adjustments, in 326 IAC 20-13. On August 22, 2006 (71 FR 48923), EPA approved Indiana's request for delegation of authority to implement and enforce the NESHAP for secondary lead smelting through 326 IAC 20-13.
The Federal NESHAP in Subpart X is expected to result in air quality benefits where it affects secondary lead smelters which were previously unregulated or which were previously subject to less stringent controls. In Indiana, however, the existing Marion County Pb SIP limits were already more stringent than the NESHAP's limits. Indiana believed that the Federal secondary lead smelter NESHAP would not fully protect the Pb NAAQS in Marion County. Therefore, when Indiana adopted the NESHAP into 326 IAC 20-13, the State adjusted it to make the rule's emission limits at least
There are two secondary lead smelters in Marion County, Indiana, Quemetco and Refined Metals of Indianapolis (Refined Metals). Quemetco, located in Indianapolis, recycles lead-acid batteries and other lead-bearing materials. It is currently operating and is affected by both the Marion County Pb SIP and the NESHAP rules for secondary lead smelters. Indiana chose to remove the paragraph that addressed Quemetco from the Pb SIP at Article 15, so that the facility's Pb emission regulations would all reside in one State rule, 326 IAC 20-13. The Refined Metals facility has closed.
The emission limits for Quemetco in 326 IAC 20-13 differ from the last Federally approved Pb SIP limits in Article 15. The SIP previously approved by EPA contained Pb emission limits for specific processes and process fugitive emissions. Later, the Quemetco facility enclosed its Pb emission sources. Indiana subsequently revised Quemetco's Pb rules to apply Pb emission limits on individual numbered vent stacks under the facility's new configuration. The Pb limits in 326 IAC 20-13, which were submitted to EPA on February 7, 2002, correspond to Quemetco's current stack configuration. In addition, the limits in 326 IAC 15-1-2(a)(8) were given in units of pounds per hour, but the numerical Pb emission limits for Quemetco in 326 IAC 20-13-2(a) are given in units of milligrams per dry standard cubic meter (mg/dscm) to match the Federal NESHAP's emission limit units.
The process source limits in 326 IAC 20-13-2(a) are 1.0 mg/dscm, compared to the corresponding NESHAP limits of 2.0 mg/dscm. This limit applies to Quemetco's Stacks 100 and 111. The process fugitive source limits are 0.5 mg/dscm, compared to the NESHAP limits of 2.0 mg/dscm, and the emission limits for stacks venting fugitive dust sources are also 0.5 mg/dscm, compared to the NESHAP limits of 2.0 mg/dscm. These limits apply to Quemetco's Stacks 101-109. Quemetco has already shown that it can meet these limits.
The regulation at 326 IAC 20-13-2(a) also requires the use of High Efficiency Particulate Air (HEPA) filters, as defined in 40 CFR 63.542, on process fugitive emissions and stacks venting fugitive dust sources. The Quemetco facility already uses HEPA filters on its baghouses.
Indiana's secondary lead smelter rules include a partial incorporation by reference of 40 CFR part 63, subpart X, at 326 IAC 20-13-1(c). This specifies standards for process and fugitive sources at secondary lead smelters, test methods, fugitive dust control, standard operating procedures for baghouses, and monitoring and recordkeeping requirements. The regulation at 326 IAC 20-13-1(c) does not include certain portions of 40 CFR part 63, subpart X, which are already covered by other portions of 326 IAC 20-13. The numerical emission limits for process, fugitive, and process fugitive sources found in 40 CFR part 63, subpart X are not included in the incorporation because Indiana's rule replaces them with more stringent limits, as in 326 IAC 20-13-2(a), for Quemetco. Certain requirements for baghouse bag leak detection systems are also not included in 326 IAC 20-13-1(c). These requirements do not apply to Quemetco, which has HEPA filters and is therefore not required to have a bag leak detection system.
Because 326 IAC 20-13 now contains Pb emission limits for Quemetco, Indiana chose to delete the portion of Article 15 that contains Pb emission limits for Quemetco under the Marion County SIP, rather than retain duplicate or conflicting emission limits. The final State rule removing 326 IAC 15-1-2(a)(8) was published in the Indiana Register on January 1, 2001 (24
Simply deleting Quemetco's limits from Article 15 would be an unacceptable relaxation of the Marion County Pb SIP, even though Quemetco's Pb air emissions are still regulated by the NESHAP at 326 IAC 20-13. State Pb SIP limits must be directly linked to local air quality effects. The levels of the Pb SIP limits in Article 15 have been shown, through dispersion modeling, to assure attainment and maintenance of the Pb NAAQS in Marion County. The SIP may not be subsequently relaxed without review and rulemaking action by EPA, to assure continued maintenance of the NAAQS. EPA can bring enforcement action against a facility based on noncompliance with the Federally approved SIP limits. The NESHAP sets emission control requirements for secondary lead smelters as a group. Its emission limits are based on nationally available emission control technology. The NESHAP can be changed as a broad national measure, without requiring an analysis of the effects on local air quality.
Therefore, in an October 3, 2006 letter, Indiana requested that portions of 326 IAC 20-13 be approved into the Marion County Pb SIP in place of 326 IAC 15-1-2(a)(8). This request was clarified in a second letter from Indiana to EPA dated November 27, 2007. Incorporating those provisions of 326 IAC 20-13 into the Marion County Pb SIP ensures that the Pb emission limits for Quemetco cannot be changed without proper State rulemaking procedures, a demonstration of attainment of the Pb NAAQS, and review and rulemaking action by EPA. The portions of Article 15 which Indiana requested as SIP revisions are 326 IAC 20-13-2(a) (Quemetco's emission limits and filter requirements); 326 IAC 20-13-1(c) (incorporation of 40 CFR part 63, subpart X); and 326 IAC 20-13-6 (compliance testing).
The State performed dispersion modeling in 2005 using the ISCST3 model to demonstrate that the new limits would protect the Pb NAAQS in Marion County. ISCST3 was the appropriate regulatory dispersion model at the time. The modeling used the regulatory default options and five years of surface meteorological data from the Indianapolis, Indiana airport, with upper-air meteorological data from Dayton, Ohio. Building dimensions were included to account for downwash effects. The State included both Quemetco's Pb emissions and the allowable Pb emissions for the Refined Metals secondary smelter under Article 15. The Refined Metals facility is currently not operating; but because Indiana has maintained the SIP rule addressing Refined Metals in Article 15, its allowable emissions must be included in the Marion County attainment demonstration. The model showed that the limits in 326 IAC 20-13 will maintain the Pb NAAQS of 1.5 micrograms per cubic meter, quarterly. The maximum modeled quarterly impact of the Marion County Pb sources was 0.16 micrograms per cubic meter. This value includes a background Pb concentration taken from locally monitored air quality data.
EPA is approving Indiana's February 7, 2002, SIP revision request, as supplemented in a letter dated October 3, 2006, and another letter dated November 27, 2007. EPA is approving the removal of 326 IAC 15-1-2(a)(8) from the Indiana Pb SIP. EPA is also approving as part of the SIP: (1) Corresponding minor editorial changes
We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and, therefore, is not subject to review by the Office of Management and Budget.
Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant energy action,” this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001).
This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601,
Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (59 FR 22951, November 9, 2000).
This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act (CAA).
This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal Standard.
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.
This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 17, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, Reporting and recordkeeping requirements.
42 U.S.C. 7401,
(c) * * *
(183) On February 7, 2002, Indiana submitted revisions to its State Implementation Plan (SIP) for lead (Pb) as part of the State's incorporation of a Federal standard for secondary lead smelters. On October 3, 2006, and November 27, 2007, Indiana supplemented its request as it pertained to Quemetco, Incorporated, in Marion County. This revision removes from the Indiana SIP the source-specific provisions for Quemetco found in article 326 IAC 15, previously approved in paragraph (c)(95) of this section, and replaces them with the corresponding provisions of article 326 IAC 20-13.
(i)
(A) 326 IAC 15-1-2(c) “Source-specific provisions” and 326 IAC 15-1-3 “Control of fugitive lead dust”. Filed with the Secretary of State on December 1, 2000, effective December 30, 2000. Published in the Indiana Register on January 1, 2001 (24 IR 954).
(B) 326 IAC 20-13-1(c) “Applicability; incorporation by reference of federal standards”, 326 IAC 20-13-2(a) “Emission limitations lead standards for Quemetco, Incorporated”, and 326 IAC 20-13-6 “Compliance testing”. Filed with the Secretary of State on December 1, 2000, effective December 30, 2000. Published in the Indiana Register on January 1, 2001 (24 IR 958).
Centers for Medicare & Medicaid Services (CMS), HHS.
Correcting amendment.
This correcting amendment corrects several technical and typographical errors in the regulations text of the final rule with comment period that appeared in the November 27, 2007
Diane Milstead, (410) 786-3355.
In FR Doc. 07-5506 of November 27, 2007 (72 FR 66222) (hereinafter referred to as the CY 2008 PFS final rule with comment period), there were a number of technical and typographical errors that are identified and corrected in regulation text of this correcting amendment. The provisions of this correcting amendment are effective January 15, 2008.
1. On page 66398, 3rd column, 8th full paragraph, line 3, the phrase “IDTF does not include the following” is corrected to read “IDTF is prohibited from the following.”
2. On page 66401,
a. First column, 1st full paragraph, line 1, the phrase “(1) The services” is corrected to read “(1) For services.”
b. Third column, last partial paragraph, line 4, the phrase “members of public may comment” is corrected to read “members of the public may comment.”
3. On page 66402, 1st column, 5th full paragraph, line 4, the phrase “members of public may comment” is corrected to read “members of the public may comment.”
4. On page 66406, 2nd column, 1st full paragraph, line 1, the phrase “(2) The requested information” is corrected to read “(2) The required information”.
5. On page 66407,
a. First column,
(1) The 8th paragraph “(e) If educated outside the United States—” is corrected to read “(e) If educated outside the United States, must meet all of the following:”
(2) The 9th paragraph “(1) Must meet both of the following:” is deleted.
(3) Tenth paragraph,
(a) Line 1, the phrase “(i) Graduated” is corrected to read “(1) Graduated”.
(b) Lines 4 and 5, the phrase “occupational therapy assistant entry level education” is corrected to read “occupational therapy entry-level education”.
(4) Eleventh paragraph, line 1, the phrase “(A) The Accreditation” is corrected to read “(i) The Accreditation”.
(5) Twelfth paragraph, line 1, the phrase “(B) Successor” is corrected to read “(ii) Successor”.
(6) Thirteenth paragraph, line 1, the phrase “(C) The World” is corrected to read “(iii) The World”.
(7) Fourteenth paragraph, line 1, the phrase “(D) A credentialing body” is corrected to read “(iv) A credentialing body”.
(8) Fifteenth paragraph, line 1, the phrase “(ii) Successfully completed” is corrected to read “(2) Successfully completed”.
(9) Sixteenth paragraph, line 1, the phrase “(2) On or before December 31, 2009” is corrected to read “(3) Effective January 1, 2010”.
(10) The last full paragraph, “(1) Is licensed or otherwise regulated, if applicable, as an occupational therapy assistant by the State in which practicing, unless licensure does not apply.” is corrected to read “(1) Is licensed, unless licensure does not apply, or otherwise regulated, if applicable, as an occupational therapy assistant by the State in which practicing.”
b. Third column,
(1) The 2nd full paragraph, “(a)(1) Graduated after successful completion of one of a physical therapist education program approved by one of the
(2) Fifth full paragraph, line 10, the phrase “therapists.” is corrected to read as “therapists; and”.
6. On page 66408,
a. First column,
(1) Fourth paragraph, line 3, the phrase “Association;” is corrected to read “Association; or”.
(2) Fifth paragraph, line 3, the phrase “Therapists; and” is corrected to read “Therapists; or”.
(3) Sixth paragraph, line 1, the phrase “Graduated from” is corrected to read “Has graduated from”.
(4) The 11th paragraph, “
(5) Twelfth paragraph, line 1, the phrase “(a)(1)(i) Graduated” is corrected to read “(a)(1) Graduated”.
(6) Thirteenth paragraph, line 1, the phrase “(ii) Passed” is corrected to read “(2) Passed”.
b. Second column, 1st partial paragraph, lines 1 through 4, the phrase “before December 31, 2009, from a 2-year college-level program approved by the American Physical Therapy Association and after January 1, 2010” is corrected to read “on or before December 31, 2009, from a 2-year college-level program approved by the American Physical Therapy Association and, effective January 1, 2010”.
We ordinarily publish a notice of proposed rulemaking in the
Section 553(d) of the APA ordinarily requires a 30-day delay in effective date of final rules after the date of their publication. This 30-day delay in effective date can be waived, however, if an agency finds for good cause that the delay is impracticable, unnecessary, or contrary to the public interest, and the agency incorporates a statement of the findings and its reasons in the rule issued.
This correcting amendment addresses typographical and technical errors made in FR Doc. 07-5506, the CY 2008 PFS final rule with comment period, which appeared in the November 27, 2007
For the same reasons, we are also waiving the 30-day delay in effective date for this correcting amendment. We believe that it is in the public interest to ensure that the CY 2008 PFS final rule with comment period accurately states our policies. Therefore, we find that delaying the effective date of these corrections would be contrary to the public interest. In so doing, we find good cause to waive the 30-day delay in the effective date.
Health facilities, Health professions, Kidney diseases, Laboratories, Medicare, Reporting and recordkeeping requirements, Rural areas, X-rays.
Administrative practice and procedure, Health facilities, Health professions, Kidney diseases, Medicare, Reporting and recordkeeping requirements.
Emergency medical services, Health facilities, Health professions, Medicare, Reporting and recordkeeping requirements.
Health facilities, Health professions, Medicare, Reporting and recordkeeping requirements.
Secs. 1102, 1834, 1871, and 1893 of the Social Security Act (42 U.S.C. 1302, 1395m, 1395hh, and 1395ddd).
Secs. 1102, 1871, and 1881(b)(l) of the Social Security Act (42 U.S.C. 1302, 1395hh, and 1395rr(b)(l)).
Secs. 1102 and 1871 of the Social Security Act (42 U.S.C. 1302 and 1395hh).
Secs. 1102 and 1871 of the Social Security Act (42 U.S.C. 1302 and 1395(hh)) unless otherwise indicated.
The revisions read as follows:
(e) If educated outside the United States, must meet all of the following:
(1) Graduated after successful completion of an occupational therapist education program accredited as substantially equivalent to occupational therapist entry level education in the United States by one of the following:
(i) The Accreditation Council for Occupational Therapy Education (ACOTE).
(ii) Successor organizations of ACOTE.
(iii) The World Federation of Occupational Therapists.
(iv) A credentialing body approved by the American Occupational Therapy Association.
(2) Successfully completed the entry-level certification examination for occupational therapists developed and administered by the National Board for Certification in Occupational Therapy, Inc. (NBCOT).
(3) On or before December 31, 2009, is licensed or otherwise regulated, if applicable, as an occupational therapist by the State in which practicing.
(a) * * *
(1) Is licensed, unless licensure does not apply, or otherwise regulated, if applicable, as an occupational therapy assistant by the State in which practicing.
(a)(1) Graduated after successful completion of a physical therapist education program approved by one of the following:
(iii) An education program outside the United States determined to be substantially equivalent to physical therapist entry-level education in the United States by a credentials evaluation organization approved by the American Physical Therapy Association or an organization identified in 8 CFR 212.15(e) as it relates to physical therapists; and
(e) Before January 1, 1966—
(1) Was admitted to membership by the American Physical Therapy Association; or
(2) Was admitted to registration by the American Registry of Physical Therapists; or
(3) Has graduated from a physical therapy curriculum in a 4-year college or university approved by a State department of education.
(b) * * *
(2) In States where licensure or other regulations do not apply, graduated on or before December 31, 2009, from a 2-year college-level program approved by the American Physical Therapy Association and, effective January 1, 2010 meets the requirements of paragraph (a) of this definition.
Centers for Medicare & Medicaid Services (CMS), HHS.
Final rule; correction.
This document corrects typographical errors identified in the final rule that appeared in the January 3, 2008
Donald Romano, (410) 786-1401.
In FR Doc. 07-6280 (73 FR 404), the final rule entitled “Revisions to Payment Policies Under the Physician Fee Schedule, and Other Part B Payment Policies for CY 2008; Delay of the Date of Applicability of the Revised Anti-Markup Provisions for Certain Services Furnished in Certain Locations (§ 414.50),” there were typographical errors in the preamble that are identified and corrected in this correction notice. The provisions of this correction notice are effective January 1, 2008.
On page 406, we are correcting a typographical error in section III., Waiver of Proposed Rulemaking, to clarify that the delay of the applicability
On page 406, in the 1st column;
a. The 1
b. The 1
We ordinarily publish a notice of proposed rulemaking and invite public comment on the proposed rule. The notice and comment rulemaking procedure is not required, however, if the rule is interpretive or procedural in nature, and it may be waived if there is good cause that it is impracticable, unnecessary, or contrary to the public interest and we incorporate in the rule a statement of such a finding and the reasons supporting that finding. Likewise, we ordinarily provide for a delayed effective date of a final rule, but we are not required to do so if the rule is procedural or interpretive. Where a delayed effective date is required, this requirement may be waived for good cause. We set forth below our finding of good cause for the waiver of notice and comment rulemaking and the waiver of a delayed effective date.
Our implementation of this action without opportunity for public comment and without a delayed effective date is based on the good cause exceptions in 5 U.S.C. 553(b)(3)(B) and (d), respectively. We find that seeking public comment on this action is impracticable and contrary to the public interest. We issued the delay in applicability notice as a result of our review of the informal comments on the final rule with comment period from various stakeholders. We are correcting typographical errors from that notice, and therefore, do not believe that further notice and comment is necessary at this time.
(Catalog of Federal Domestic Assistance Program No. 93.773, Medicare—Hospital Insurance; and Program No. 93.774, Medicare—Supplementary Medical Insurance Program)
Nuclear Regulatory Commission.
Issuance, Availability of Draft Regulatory Guide (DG).
The Nuclear Regulatory Commission (NRC) has issued for public comment a draft guide in the agency's “Regulatory Guide” series (DG-5015).
The comment period closes on February 25, 2008. Comments received after that date will be considered if it is practical to do so, but the NRC is able to ensure consideration only for comments received on or before this date. Although a time limit is given, comments and suggestions in connection with items for inclusion in guides currently being developed or improvements in all published guides are encouraged at any time.
Dennis Gordon, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, phone: (301) 415-6671 or e-mail
The NRC has issued for public comment a draft guide in the agency's “Regulatory Guide” series. This series was developed to describe and make available to the public such information as methods that are acceptable to the NRC staff for implementing specific parts of the NRC's regulations, techniques that the staff uses in evaluating specific problems or postulated accidents, and data that the staff needs in its review of applications for permits and licenses.
The draft regulatory guide, entitled, “Training and Qualification of Security Personnel at Nuclear Power Reactor Facilities,” is temporarily identified by its task number, DG-5015, which should be mentioned in all related correspondence. DG-5015 provides an approach acceptable to the NRC for the training and qualification of security personnel at nuclear power reactor facilities. Title 10 of the
DG-5015 contains draft guidance on how licensees should select, train, equip, test, qualify, and re-qualify armed and unarmed security personnel, watchpersons, and other members of the security organization to ensure that these individuals possess and maintain the knowledge, skills, and abilities required to carry out their assigned duties and responsibilities effectively. The approaches and examples described in DG-5015 would provide one methodology for satisfying the Commission requirements in Appendix B, Section VI, for the training and qualification of security personnel at nuclear power reactor facilities to include: (1) Minimum requirements for employment suitability and qualification; (2) minimum physical qualifications; (3) minimum psychological qualifications; (4) re-qualification of personnel; (5) duty and on-the-job training; (6) weapons and tactical response training and exercises; (7) demonstration of individual capabilities and qualifications; (8) readiness of security personnel to perform assignments; (9) maintenance of equipment and program records; and (10) the conduct of self audits and reviews.
DG-5015 would be applicable to operating reactors licensed in accordance with 10 CFR parts 50 and 52. Power reactor licensees and applicants subject to the requirements of 10 CFR 73.55 must comply only with the requirements in Appendix B to 10 CFR part 73, Section VI, and should consider the draft guidance in developing and implementing a site-specific training and qualification program. Applicants for an operating license should also consider this guidance in preparing an application for a combined license (COL) under 10 CFR part 52.
DG-5015 is based on the proposed rule, “Power Reactor Security Requirements,” which was published in the
The NRC staff is soliciting comments on DG-5015. Comments may be accompanied by relevant information or supporting data, and should mention DG-5015 in the subject line. Comments submitted in writing or in electronic form will be made available to the public in their entirety through the NRC's Agencywide Documents Access and Management System (ADAMS). Personal information will not be removed from your comments. You may submit comments by any of the following methods:
1.
2.
3.
4.
Requests for technical information about DG-5015 may be directed to the NRC Senior Program Manager, Dennis Gordon at (301) 415-6671 or e-mail at
Electronic copies of DG-5015 are available through the NRC's public Web site under Draft Regulatory Guides in the “Regulatory Guides” collection of the NRC's Electronic Reading Room at
Regulatory guides are not copyrighted, and Commission approval is not required to reproduce them.
For the Nuclear Regulatory Commisison.
Internal Revenue Service (IRS), Treasury.
Correction to notice of proposed rulemaking by cross-reference to temporary regulations and notice of public hearing.
This document contains a correction to a notice of proposed rulemaking by cross-reference to temporary regulations and notice of public hearing that was published in the
Jeffrey L. Parry, 202-622-3070 (not a toll-free number).
The notice of proposed rulemaking by cross-reference to temporary regulations and notice of public hearing (REG-114126-07) that is the subject of this correction is under section 904 of the Internal Revenue Code.
As published, the notice of proposed rulemaking by cross-reference to temporary regulations and notice of public hearing (REG-114126-07) contains an error that may prove to be misleading and is in need of clarification.
Accordingly, the notice of proposed rulemaking by cross-reference to temporary regulations and notice of public hearing (REG-114126-07) that was the subject of FR Doc. E7-24783 is corrected as follows:
On page 72645, column 3, in the preamble, under the paragraph heading “Comments and Public Hearing” paragraph 2, line 2, the language “for April 26, 2008, in the auditorium,” is corrected to read “for April 22, 2008 in the auditorium,”.
National Park Service.
Proposed rule; correction.
The National Park Service published a document in the
Mike Murray, Superintendent, Outer Banks Group, 1401 National Park Drive, Manteo, North Carolina 27952, (252) 473-2111, ext. 148.
In the
30. Recreational Fishing Alliance, member Patrick Paquette, alternate Ronald Bounds (United Mobile Sportfishermen).
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve revised lead (Pb) emission limits for Quemetco, Incorporated, in Marion County, Indiana. On February 7, 2002, Indiana submitted revisions to its State Implementation Plan (SIP) for lead as part of the State's incorporation of a Federal standard for secondary lead smelters. On October 3, 2006, and November 27, 2007, Indiana supplemented its request as it pertained to Quemetco, Incorporated, in Marion County. The requested SIP revision replaces the Pb emission limits for Quemetco, Incorporated with similarly stringent limits. The new limits were found to be protective of the national ambient air quality standards.
Comments must be received on or before February 14, 2008.
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2006-0276, by one of the following methods:
1.
2.
3.
4.
5.
Please see the direct final rule which is located in the Rules section of this
Mary Portanova, Environmental Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-5954,
In the Final Rules section of this
Federal Communications Commission.
Notice of proposed rulemaking.
The Federal Communications Commission (FCC) seeks comment on service rules for the Wireless Communications Service (WCS) and for terrestrial repeaters used in conjunction with the Satellite Digital Audio Radio Service (SDARS). The intended purpose of this proceeding is to determine whether the Commission can develop adequate limits on out-of-band emissions for these two services that would permit them coexist in adjacent frequency bands.
Comments are due on or before February 14, 2008 and reply comments are due on or before March 17, 2008.
You may submit comment, identified by WT Docket No. 07-293 and IB Docket No. 95-91, by any of the following methods:
•
•
•
For detail instructions for submitting comments and additional information on the rulemaking process, see the
Steven Spaeth (202) 418-1539, or Stephen Duall, (202) 418-1103, Satellite Division, International Bureau, Federal Communications Commission, Washington, DC 20554.
This is a summary of the Commission's Notice of Proposed Rulemaking (NPRM) in WT Docket No. 07-293 and Second Further Notice of Proposed Rulemaking in IB Docket No. 95-91, adopted December 17, 2007 and released on December 18, 2007. The full text of the Notice of Proposed Rulemaking is available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone (202) 488-5300, facsimile (202) 488-5563, or via
The NPRM does not contain any proposed new or modified information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, the NPRM does not contain any proposed new or modified “information collection burden for small business concerns with fewer than 25 employees” subject to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).
SDARS licensees operate in the 2320-2345 MHz band. This band is divided evenly between the two SDARS licensees, Sirius (2320-2332.5 MHz) and XM (2332.5-2345 MHz). The WCS service occupies frequencies on either side of the SDARS allocation and consists of six blocks of five megahertz each in the 2305-2320 MHz and 2345-2360 MHz bands.
The Commission has previously invited comment on service rules for SDARS terrestrial repeaters, used in conjunction with the SDARS operators' satellite systems in urban canyons and other areas where satellite signal reception is difficult. In this proceeding, the Commission seeks to update that record, and to invite comment on WCS service rules, that would allow both services to coexist in adjacent frequency bands.
First, the Commission invites comment on power limits for SDARS terrestrial repeaters and WCS service transmitters, to limit the potential for harmful interference resulting from out-of-band emissions. One proposal is an average “ground-level emission limit” of -44 dBm, which would be applicable
Second, the Commission seeks comment on whether it is necessary to restrict the collocation of SDARS and WCS stations, either with stations within the same service or with stations of the other service.
Third, the Commission invites commenters to recommend coordination and recordkeeping requirements.
Fourth, the NPRM notes that the Commission has authorized several SDARS terrestrial repeaters granted pursuant to Special Temporary Authority (STA). The SDARS licensees support grandfathering those repeaters, so that those existing repeaters will not be required to comply with any rules adopted in this proceeding. The WCS licensees propose requiring existing SDARS terrestrial repeaters to come into compliance with any rules adopted in this proceeding within a year. The Commission asks commenters to discuss whether we should adopt the one-year transition advocated by the WCS Coalition, apply a different transition period, or permit SDARS repeaters to continue existing operations until a request is made by a WCS licensee for the SDARS licensee to come into compliance with final rules.
Fifth, the NPRM seeks comment on several miscellaneous issues. For example, parties are invited to discuss whether SDARS operators should be required to comply with international agreements as a condition on any SDARS terrestrial repeater license. The NPRM also considers whether to adopt revision to the radiation hazard rules for SDARS terrestrial repeaters. The NPRM further considers allowing blanket licensing of SDARS terrestrial repeaters.
Finally, the NPRM solicits comments on a number of possible restrictions on the operation of SDARS terrestrial repeaters. One such possible restriction could be to prohibit operation of SDARS terrestrial repeaters except in conjunction with SDARS satellites, both in the Continental United States, and in Alaska and Hawaii. The NPRM also seeks comment on requiring SDARS terrestrial repeaters to use the same spectrum as their associated satellites. Finally, the NPRM invites comment on prohibiting use of repeaters to retransmit the regional spot beams of SDARS satellites, and on prohibiting use of repeaters to transmit original programming.
The primary objective of this proceeding is to consider changes to the rules governing Wireless Communications Service (WCS) which may be necessary to facilitate the coexistence of those licensees with licensees in the SDARS and satellite digital audio radio service (SDARS). Such rule changes are needed because SDARS terrestrial repeaters and WCS operate in adjacent frequency bands. SDARS licensees rely on terrestrial repeaters to provide a nationwide service. Thus, without appropriate service rules for WCS and SDARS operations, the out-of-band emissions caused by each service could cause harmful interference into the other, which in turn would limit the development of these services and thereby be detrimental to the public interest.
The NPRM is intended to refresh the record on any necessary regulatory requirements that would allow SDARS terrestrial repeaters and WCS operation to coexist in adjacent bands. Specifically, the NPRM specifically invites comments on two options for power and emission limits for WCS operations and SDARS repeaters, including a peak ground-level emission limit of −44 dBm, or an average EIRP limit of two kilowatts (kW) EIRP, with a 6 dB peak-to-average ratio.
In the NPRM, the Commission discusses recordkeeping and coordination proposals to ensure towers are deployed in a fashion to avoid interference. In particular, the Commission is considering whether to adopt a proposal to require licensees to provide notice to all licensed radio stations potentially affected by SDARS repeater and WCS station deployments.
The proposed action is authorized under sections 4(i), 303(r), and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), and 403.
The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the rules adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.”
There are no specific reporting or recordkeeping requirements proposed in the NPRM, other than the recordkeeping and coordination requirements discussed in Section A, supra.
The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
As stated in Section A, supra, the NPRM specifically invites comments on two options for power and emission limits for WCS operations and SDARS repeaters, including a peak ground-level emission limit of −44 dBm, or an average EIRP limit of two kilowatts (kW) EIRP, with a 6 dB peak-to-average ratio. The NPRM also invites interested parties to suggest alternative proposals.
At this time, the Commission has not excluded any alternative proposal concerning ground-level emission limits and average EIRP limits from its consideration, but it would do so in this proceeding if the record indicates that a particular proposal would have a significant and unjustifiable adverse economic impact on small entities.
However, the Commission has also invited interested parties to propose any other alternative form of coordination if it would be more efficient or effective. However, the Commission will not consider any alternative proposal that would have a significant and unjustifiable adverse economic impact on small entities.
In the NPRM, the Commission discusses recordkeeping and coordination proposals to ensure towers are deployed in a fashion to avoid interference. In particular, the Commission is considering a proposal to require licensees to provide notice to all licensed radio stations potentially affected by SDARS repeater and WCS station deployments. However, as noted
In the NPRM, the Commission seeks comment on grandfathering and transition proposals for existing SDARS repeaters. One proposal is to grandfather all existing SDARS terrestrial repeaters, thereby exempting those repeaters from any out-of-band power limits adopted in this rulemaking proceeding. Another is to require the operators of those repeaters to come into compliance with any such limits within a year from the adoption of such rules. The Commission invites comments on both of these grandfathering-related and transition-related proposals, and invites commenters to recommend other transition periods. The Commission solicits any alternative proposals that would not incur significant and unjustifiable adverse impact on small entities.
None.
With respect to the DARS licensees, only two operators hold licenses to provide SDARS service, XM and Sirius. Both of these licensees are dominant in their field and neither qualify as small entities. SDARS provides nationally distributed subscription radio service, which requires a great investment of capital for operation. Because SDARS service requires significant capital, we believe it is unlikely that a small entity as defined by the Small Business Administration would have the financial wherewithal to become an SDARS licensee.
The Commission therefore certifies, pursuant to the RFA, that the proposals in the
Accordingly,
Office of the Under Secretary for Food Safety, USDA.
Notice of public meeting and request for comments.
The Office of the Under Secretary for Food Safety, U.S. Department of Agriculture (USDA), and the Food and Drug Administration (FDA), U.S. Department of Health and Human Services (HHS), are sponsoring a public meeting on February 5, 2008. The objective of the public meeting is to provide information and receive public comments on agenda items and draft United States positions that will be discussed at the First Session of Ad Hoc Codex Intergovernmental Task Force on the Processing and Handling of Quick Frozen Foods (TFQFF) of the Codex Alimentarius Commission (Codex), which will be held in Bangkok, Thailand on February 25-29, 2008.
The Under Secretary for Food Safety and FDA recognize the importance of providing interested parties the opportunity to obtain background information on the First Session of TFQFF and to address items that will be on the agenda.
The public meeting is scheduled for Tuesday, February 5, 2008 from 1 p.m. to 3 p.m.
The public meeting will be held in Room 1B-042, Food and Drug Administration, Center for Food Safety and Applied Nutrition, Harvey Wiley Federal Building, 5100 Paint Branch Parkway, College Park, MD 20740. The following call-in number will be provided for the meeting: 1-866-859-5767, passcode 3258684. Codex documents related to the First Session of the TFQFF will be accessible via the World Wide Web at the following address:
The U.S. Delegate to the First Session of TFQFF, Dr. Donald Zink, FDA, invites interested U.S. parties to submit their comments electronically to the following e-mail address:
Donald Zink, U.S. Delegate to the TFQFF, Office of Food Safety, Center for Food Safety and Applied Nutrition, FDA, 5100 Paint Branch Parkway (HFS-317), College Park, MD 20740,
Syed Ali, Staff Officer, U.S. Codex Office, Food Safety and Inspection Service (FSIS), Room 4861, South Building, 1400 Independence Avenue SW., Washington, DC 20250,
The Codex Alimentarius (Codex) was established in 1963 by two United Nations organizations, the Food and Agriculture Organization and the World Health Organization. Through adoption of food standards, codes of practice, and other guidelines developed by its committees, and by promoting their adoption and implementation by governments, Codex seeks to protect the health of consumers and ensure that fair practices are used in trade.
The items to be discussed during the public meeting will include the Proposed Draft Recommended for the International Code of Practice for the Processing and Handling of Quick Frozen Foods, with attention to outstanding quality and safety provisions, such as the Defect Action Point Analysis concept and the retention of an annex with specific information on temperature monitoring and control in the food chain. These issues will be fully described in documents distributed, or to be distributed, by the Thai Secretariat prior to the meeting. Members of the public may access copies of these documents at
At the February 5, 2008, public meeting, draft U.S. positions on the agenda items will be described and discussed, and attendees will have the opportunity to pose questions and offer comments. Written comments may be offered at the meeting or sent to the U.S. Delegate for the First Session of TFQFF, Dr. Donald Zink, at
Public awareness of all segments of rulemaking and policy development is important. Consequently, in an effort to ensure that minorities, women, and persons with disabilities are aware of this notice, FSIS will announce it online through the FSIS Web page located at
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the emergency provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
The converter boxes are necessary for consumers who wish to continue receiving broadcast programming over the air using analog-only television sets after February 18, 2009—the date that television stations are required by law to cease analog broadcasting. On March 15, 2007, NTIA published a Final Rule establishing the parameters of the Coupon Program and describing the rights and responsibilities of interested parties (See Rules to Implement and Administer a Coupon Program for Digital-to-Analog Converter Boxes, 72 FR 12097 (codified at 47 CFR 301)). Among other things, the regulations permit consumers to submit applications to NTIA for coupons beginning January 1, 2008.
One critical aspect of testing the coupon program, prior to full launch in all markets in early February 2008, is a “live pilot” test in which a limited number of volunteers will apply for the coupon, receive the coupon through the U.S. mail, and attempt to redeem the coupon at a local retailer for an “eligible” converter box. A material part of the pilot test is that the volunteers (consumers) will be asked to complete a survey regarding their experience in applying for and receiving the coupon and purchasing the converter box at a participating retail outlet. The retailers will be asked to complete a survey to provide feedback on such matters as their experience in redeeming the coupons, inventory issues, and employee training support. The information gathered from the surveys is intended to resolve potential problems in the system at the earliest stage possible. Only the data supplied by actual consumers and retailers through the surveys can accurately identify flaws in the process.
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC, 20230, or via the Internet at
Written comments and recommendations for the proposed information collection should be sent by January 25, 2008 to Jasmeet Seehra, OMB Desk Officer, FAX number (202) 395-5167 or via the Internet at
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
Now, therefore, the Board hereby orders:
The application to reorganize and expand FTZ 221 is approved, subject to the FTZ Act and the Board's regulations, including Section 400.28.
Signed at Washington, DC, this 7th day of January 2008.
Attest:
An application has been submitted to the Foreign-Trade Zones Board (the
The proposed subzone would include Crate & Barrel's facilities at two adjacent sites in Naperville, Illinois:
FTZ procedures would exempt Crate & Barrel from customs duty payments on foreign products that are re-exported. On domestic sales, duty payments would be deferred until the foreign merchandise is shipped from the facilities and entered for U.S. consumption. The company would also realize significant logistical benefits related to the use of direct delivery and weekly customs entry procedures. The application indicates that the savings from FTZ procedures would help improve the company's international competitiveness and help facilitate the company's plans to grow their export market.
In accordance with the Board's regulations, a member of the FTZ staff has been designated examiner to investigate the application and report to the Board.
Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is March 17, 2008. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period March 31, 2008.
A copy of the application and accompanying exhibits will be available at each of the following addresses: U.S. Department of Commerce Export Assistance Center, 200 West Adams Street, Suite 2450, Chicago, IL 60606; and, Office of the Executive Secretary, Foreign-Trade Zones Board, Room 2111, U.S. Department of Commerce, 1401 Constitution Ave, NW, Washington, D.C. 20230. For further information contact Christopher Kemp at christopher—kemp@ita.doc.gov or (202) 482-0862.
The Sensors and Instrumentation Technical Advisory Committee will meet on January 29, 2008, 9:30 a.m., in the Herbert C. Hoover Building, Room 3884, 14th Street between Pennsylvania and Constitution Avenues, NW., Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration with respect to technical questions that affect the level of export controls applicable to sensors and instrumentation equipment and technology.
1. Welcome and Introductions.
2. Remarks from Bureau of Industry and Security Management.
3. Industry Presentations.
4. New Business.
The open session will be accessible via teleconference to 20 participants on a first come, first serve basis. To join the conference, submit inquiries to Ms. Yvette Springer at
The meeting will be open to the public and a limited number of seats will be available. Reservations are not accepted. To the extent that time permits, members of the public may present oral statements to the Committee. Written statements may be submitted at any time before or after the meeting. However, to facilitate distribution of public presentation materials to the Committee members, the Committee suggests that presenters forward the public presentation materials two weeks prior to the meeting date to Yvette Springer at
Yvette Springer on (202) 482-2813.
Import Administration, International Trade Administration, Department of Commerce.
Thomas Schauer, AD/CVD Operations, Office 5, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-0410.
On June 29, 2007, the Department of Commerce (the Department) published a notice of initiation of administrative review of the antidumping duty order on certain polyester stable fiber from Taiwan. See
Pursuant to section 751(a)(3)(A) of Tariff Act of 1930, as amended (the Act), the Department shall make a preliminary determination in an administrative review of an antidumping order within 245 days after the last day of the anniversary month of the date of publication of the order. Section 751(a)(3)(A) of the Act provides further that the Department may extend the 245-day period to 365 days if it determines that it is not practicable to complete the review within the foregoing time period. For this administrative review of the antidumping duty order on polyester staple fiber from Taiwan, the
Therefore, we are extending the deadline for completing the preliminary results until April 15, 2008, which is 320 days from the last day of the anniversary month of the date of publication of the order. The deadline for the final results of the review continues to be 120 days after the publication of the preliminary results.
This extension notice is published in accordance with sections 751(a)(3)(A) and 777(i)(I) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
On September 10, 2007, the U.S. Department of Commerce (“the Department”) published in the
January 15, 2008.
Robert Copyak or Gayle Longest, AD/CVD Operations, Office 3, Import Administration, U.S. Department of Commerce, Room 4014, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-2209 or (202) 482-3338, respectively.
On August 17, 1993, the Department published in the
In the
Products covered by this order are certain corrosion-resistant carbon steel flat products from Korea. These products include flat-rolled carbon steel products, of rectangular shape, either clad, plated, or coated with corrosion-resistant metals such as zinc, aluminum, or zinc-, aluminum-, nickel- or iron-based alloys, whether or not corrugated or painted, varnished or coated with plastics or other nonmetallic substances in addition to the metallic coating, in coils (whether or not in successively superimposed layers) and of a width of 0.5 inch or greater, or in straight lengths which, if of a thickness less than 4.75 millimeters, are of a width of 0.5 inch or greater and which measures at least 10 times the thickness or if of a thickness of 4.75 millimeters or more are of a width which exceeds 150 millimeters and measures at least twice the thickness. The merchandise subject to this order is currently classifiable in the
The POR for which we are measuring subsidies is from January 1, 2005, through December 31, 2005.
On October 10, 2007, POSCO filed comments. Neither Dongbu nor petitioners filed a case brief or a rebuttal brief. All issues in POSCO's case brief by are addressed in the accompanying
After reviewing POSCO's comments, we have made adjustments to our calculations as explained in our Decision Memorandum. Consistent with the
The Department intends to issue assessment instructions to U.S. Customs and Border Protection (“CBP”) 15 days after the date of publication of these final results of review to liquidate shipments of subject merchandise by POSCO and Dongbu entered, or withdrawn from warehouse, for consumption on or after January 1, 2005, through December 31, 2005, without regard to countervailing duties. We will also instruct CBP not to collect cash deposits of estimated countervailing duties on shipments of the subject merchandise by POSCO and Dongbu entered, or withdrawn from warehouse, for consumption on or after the date of publication of these final results of review.
For all non-reviewed companies, the Department has instructed CBP to assess countervailing duties at the cash deposit rates in effect at the time of entry, for entries between January 1, 2005, and December 31, 2005. The cash deposit rates for all companies not covered by this review are not changed by the results of this review.
This notice serves as a reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
January 15, 2008.
Hermes Pinilla (Australia) or Eugene Degnan (the People's Republic of China), AD/CVD Operations, Office 5 or Office 8, respectively, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-3477 or (202) 482-0414, respectively.
On September 17, 2007, the Department of Commerce (the Department) initiated the antidumping duty investigations of electrolytic manganese dioxide from Australia and the People's Republic of China.
On December 31, 2007, the petitioner, Tronox, LLC, made a timely request pursuant to 19 CFR 351.205(b)(2) and (e) for a 50-day postponement of the preliminary determinations. The petitioner requested postponement of the preliminary determinations in order to allow the Department additional time to do a thorough investigation of the respondents in these investigations.
For the reason identified by the petitioner and because there are no compelling reasons to deny the request, the Department is postponing the deadline for the preliminary determinations under section 733(c)(1)(A) of the Act by 50 days to March 19, 2008. The deadline for the final determinations will continue to be 75 days after the date of the preliminary determinations, unless extended.
This notice is issued and published pursuant to section 733(c)(2) of the Act and 19 CFR 351.205(f)(1).
Import Administration, International Trade Administration, Department of Commerce.
January 15, 2008.
We preliminarily determine that circular welded carbon quality steel pipe (“CWP”) from the People's Republic of China (“PRC”) is being, or is likely to be, sold in the United States at less than fair value (“LTFV”), as provided in section 733 of the Tariff Act of 1930, as amended (the “Act”). The estimated margins of sales at less than fair value (“LTFV”) are shown in the “Preliminary Determination” section of this notice. Pursuant to requests from interested parties, we are postponing for 60 days the final determination and extending provisional measures from a four-month period to not more than six months. Accordingly, we will make our final determination not later than 135 days after publication of the preliminary determination.
Thomas Martin or Maisha Cryor, AD/
On June 7, 2007, the Department of Commerce (the “Department”) received a petition on imports of CWP from the PRC filed in proper form by Allied Tube & Conduit, Sharon Tube Company, IPSCO Tubulars, Inc., Western Tube & Conduit Corporation, Northwest Pipe Company, Wheatland Tube Co.,
On July 31, 2007, the International Trade Commission (“ITC”) issued its affirmative preliminary determination that there is a reasonable indication that an industry in the United States is materially injured or threatened with material injury by reason of imports of CWP from the PRC.
Pursuant to section 735(a)(2) of the Act, on December 18, 2007, respondent Jiangsu Yulong Steel Pipe Co., Ltd. (“Yulong”) requested that in the event of an affirmative preliminary determination in this investigation, the Department postpone its final determination by 60 days. In addition, Yulong requested that the Department extend the application of the provisional measures prescribed under 19 CFR 351.210(e)(2) from a four-month period to not more than six-months. In accordance with section 733(d) of the Act and 19 CFR 351.210(b), because (1) our preliminary determination is affirmative, (2) the requesting exporter accounts for a significant proportion of exports of the subject merchandise, and (3) no compelling reasons for denial exist, we are granting this request and are postponing the final determination until no later than 135 days after the publication of this notice in the
In accordance with the preamble to the Department's regulations, we set aside a period of time in our
We analyzed the comments of the interested parties regarding the scope of this investigation and, based upon those comments, revised the scope language. See Memorandum to Stephen J. Claeys, Deputy Assistant Secretary for Import Administration, Re: Scope of the Antidumping and Countervailing Duty Investigations of Circular Welded Carbon Quality Steel Pipe from the People's Republic of China, “Analysis of Comments and Recommendation for Scope of Investigations” (November 5, 2007) (“Scope Memorandum”).
In addition, on December 18, 2007, the petitioners submitted additional comments concerning the scope of the CWP antidumping and countervailing duty investigations. In their comments, the petitioners requested that the Department revise the scope of the investigations to define product coverage by end-use application. The petitioners also requested that the Department explicitly state that single-stenciled line pipe meeting certain product characteristics is covered by the scope of this investigation, to eliminate reference to the grade “X-42” when referring to API stenciled pipe, and to define the length criterion for “single random length” CWP.
Regarding end-use application, the petitioners provided an affidavit which states that substitutions of API 5L stenciled products for subject ASTM pipe have occurred. See the petitioners' December 18, 2007, comments at Exhibit 2. The petitioners argue that the inclusion of end-use application to determine product coverage is necessary to distinguish between single-stenciled API 5L imports that are not intended to be covered by this investigation and pipe products that are intended to be covered. Next, the petitioners argue that the Department should revise the scope language to eliminate the reference to grade “X-42” when referring to API stenciled pipe because they view this reference as unnecessary given that the grade is subsumed within the API 5L specification. In addition, to prevent evasion of any antidumping order issued in this proceeding, the petitioners urge the Department to define the length criterion for inclusion of imported API specification CWP to include any such pipe of 32 feet or less. Lastly, the petitioners urge the Department to state in the scope that imports of single-stenciled API 5L line pipe are covered by the scope if such imports have one or more of the following physical characteristics: (1) a length of 32 feet or less; (2) an outer diameter less than 2 inches; (3) a galvanized and/or painted surface; or (4) a threaded and/or coupled end finish.
Upon review of the petitioner's December 18, 2007, submission, we have preliminarily adopted two of the petitioners' proposed changes. Specifically, we have preliminarily accepted the petitioners' request that single random length be defined as 32 feet in length or less. In addition, we
The period of investigation (“POI”) is October 1, 2006, through March 31, 2007. This period corresponds to the two most recent fiscal quarters prior to the month of the filing of the petition,
The scope of this investigation covers certain welded carbon quality steel pipes and tubes, of circular cross-section, and with an outside diameter of 0.372 inches (9.45 mm) or more, but not more than 16 inches (406.4 mm), whether or not stenciled, regardless of wall thickness, surface finish (
Specifically, the term “carbon quality” includes products in which (a) iron predominates, by weight, over each of the other contained elements; (b) the carbon content is 2 percent or less, by weight; and (c) none of the elements listed below exceeds the quantity, by weight, as indicated:
Standard pipe is made primarily to American Society for Testing and Materials (“ASTM”) specifications, but can be made to other specifications. Standard pipe is made primarily to ASTM specifications A-53, A-135, and A-795. Structural pipe is made primarily to ASTM specifications A-252 and A-500. Standard and structural pipe may also be produced to proprietary specifications rather than to industry specifications. This is often the case, for example, with fence tubing. Pipe multiple-stenciled to a standard and/or structural specification and to any other specification, such as the American Petroleum Institute (“API”) API-5L specification, is also covered by the scope of this investigation when it meets the physical description set forth above and also has one or more of the following characteristics: is 32 feet in length or less; is less than 2.0 inches (50 mm) in outside diameter; has a galvanized and/or painted surface finish; or has a threaded and/or coupled end finish.
The scope of this investigation does not include: (a) pipe suitable for use in boilers, superheaters, heat exchangers, condensers, refining furnaces and feedwater heaters, whether or not cold drawn; (b) mechanical tubing, whether or not cold-drawn; (c) finished electrical conduit; (d) finished scaffolding; (e) tube and pipe hollows for redrawing; (f) oil country tubular goods produced to API specifications; and (g) line pipe produced to only API specifications.
The pipe products that are the subject of this investigation are currently classifiable in HTSUS statistical reporting numbers 7306.30.10.00, 7306.30.50.25, 7306.30.50.32, 7306.30.50.40, 7306.30.50.55, 7306.30.50.85, 7306.30.50.90, 7306.50.10.00, 7306.50.50.50, 7306.50.50.70, 7306.19.10.10, 7306.19.10.50, 7306.19.51.10, and 7306.19.51.50. However, the product description, and not the harmonized tariff schedule of the United States (“HTSUS”) classification, is dispositive of whether merchandise imported into the United States falls within the scope of the investigation.
On June 28 and 29, 2007, and July 2, 2007, the Department requested quantity and value (“Q&V”) information from a total of 53 companies identified by the petitioners as potential producers or exporters of CWP from the PRC.
On August 2, 2007, the Department selected Tianjin Shuangjie Group (“Shuangjie”) and Yulong as mandatory respondents in this investigation.
On December 26, 2007, Weifang again requested that it be selected as a mandatory respondent. If it is not selected as a mandatory respondent, Weifang also provided recommended methodologies that the Department should use in determining its separate rate. In addition, Weifang noted that the
Between August 2, 2007, and August 26, 2007, we received timely separate-rate applications from 27 non-mandatory respondent companies: Weifang; Shijiazhuang Zhongqing Imp & Exp Co., Ltd. (“Shijiazhuang”); Tianjin Baolai Int'l Trade Co., Ltd. (“Baolai”); Wai Ming (Tianjin) Int'l Trading Co., Ltd. (“Wai Ming”); Kunshan Lets Win Steel Machinery Co., Ltd. (“Kunshan Lets Win”); Shenyang BOYU M/E Co., Ltd. (“BOYU”); Dalian Brollo Steel Tubes Ltd. (“Dalian”); Benxi Northern Pipes Co., Ltd. (“Benxi”); Shanghai Metals & Minerals Import & Export Corp. (“Shanghai Metals”); Huludao Steel Pipe Industrial Co., Ltd. (“Huludao”); Tianjin Xingyuda Import & Export Co. Ltd. (“Xingyuda”); Jiangyin Jianye Metal Products Co., Ltd. (“Jianye”); Rizhao Xingye Import & Export Co., Ltd. (“Rizhao”); Tianjin No. 1 Steel Rolled Co., Ltd. (“Tianjin No. 1”); Kunshan Hongyuan Machinery Manufacture Co., Ltd. (“Kunshan”); Qingdao Yongjie Import & Export Co., Ltd. (“Yongjie”);Wuxi Fastube Industry Co., Ltd. (“Fastube”); Jiangsu Guoqiang Zinc-Plating Company, Ltd. (“Jiangsu”); Wuxi Eric Steel Pipe Co., Ltd. (“Wuxi Eric”); Beijing Sai Lin Ke Hardware Co., Ltd. (“SLK”); Qingdao Xiangxing Steel Pipe Co., Ltd. (“Qingdao”); Wah Cit Enterprises (“Wah Cit”); Guangdong Walsall Steel Pipe Industrial Co., Ltd. (“Guangdong”); Hengshui Jinghua Steel Pipe Co., Ltd. (“Hengshui”); Zhangjiagang Zhongyuan Pipe-Making Co., Ltd. (“Zhongyuan”); Shandong Fubo Group Co. (“Fubo”) and Tianjin Youcheng Galvanized Steel Pipe Co., Ltd. (“Youcheng”).
In August and September 2007, the Department informed Kingland and Bazhou that it would not consider their separate-rate applications because their Q&V submissions were untimely filed and returned.
On August 3, 2007, the Department issued to Shuangjie and Yulong sections A, C, D, and E
On September 4, 2007, Yulong submitted its response to Section A of the Department's questionnaire, and on September 10, 2007, Shuangjie submitted its response to section A of the Department's questionnaire. On September 24, 2007, Shuangjie submitted its responses to sections C and D of the Department's questionnaire. On September 24, 2007, Yulong submitted its responses to sections C and D of the Department's questionnaire. Weifang voluntarily submitted responses to section A of the Department's questionnaire on September 10, 2007, and to sections C and D of the Department's questionnaire on September 24, 2007.
The Department issued supplemental questionnaires to Shuangjie in September and October 2007. However, Shuangjie did not submit responses to the Department's supplemental questionnaires because it withdrew from the investigation and requested that the Department return all of its proprietary filings.
The Department issued supplemental questionnaires to Yulong between September 21, 2007, and November 28, 2007, and received responses between October 15, 2007, and December 10, 2007. On October 9, 2007 and November 13, 2007, the petitioners submitted comments on Shuangjie and Yulong's questionnaire responses.
On October 10, 2007, the Department issued supplemental questionnaires to separate rate applicants Shanghai Metals and Huludao and received responses on October 19, 2007. On October 15, 2007, the Department issued supplemental questionnaires to separate rate applicants Benxi and Xingyuda and received responses on October 25, 2007. On October 17, 2007, the Department issued a supplemental questionnaire to separate rate applicant Jianye and received a response on October 29, 2007. On October 25, 2007, the Department issued a supplemental questionnaire to separate rate applicant Weifang and received a response on November 8, 2007. On November 8, 2007, the Department issued supplemental questionnaires to separate rate applicants Fastube, Jiangsu, Wuxi Eric, SLK, Qingdao, Guangdong, Hengshui and Zhongyuan. Qingdao submitted its response on November 19, 2007. Hengshui and SLK submitted their responses on November 21, 2007. Wuxi Eric, Jiangsu, Fastube, Guangdong, and Zhongyuan submitted their responses on November 26, 2007. On November 15, 2007, the Department issued a supplemental questionnaire to the separate rate applicants Fubo, Shijiazhuang, Baolai, Wai Ming, Kunshan Lets Win, BOYU, and Dalian, and received responses from Shijiazhuang on November 29, 2007, and from Baoli, Dalian, and Fubo from December 3-4, 2007. Wai Ming, Kunshan Lets Win, and BOYU submitted their responses on December 27, 2007.
On September 17, 2007, the petitioners requested that the Department make an expedited finding that critical circumstances exist with respect to imports of CWP from the PRC. Shuangjie submitted comments responding to the petitioners' allegations of critical circumstances on
On December 11, 2007, the Department preliminarily found that there is reason to believe or suspect that critical circumstances exist for imports of subject merchandise from Yulong, the separate-rate companies, and the PRC-wide entity (including Shuangjie) because, A) in accordance with section 733(e)(1)(A)(i) of the Act, there is a history of dumped imports of subject merchandise and of material injury caused by such dumped imports, and B) in accordance with section 733(e)(1)(B) of the Act, Yulong, the separate-rate companies, and the PRC-wide entity had massive imports during a relatively short period.
For purposes of initiation, the petitioners submitted LTFV analyses for the PRC as a non-market economy (“NME”).
In proceedings involving NME countries, the Department has a rebuttable presumption that all companies within the NME country are subject to government control and thus should be assessed a single antidumping duty rate. It is the Department's standard policy to assign all exporters of the merchandise subject to review in NME countries a single rate unless an exporter can affirmatively demonstrate an absence of government control, both in law (
We have considered whether each PRC company that submitted a complete and timely separate-rate application is eligible for a separate rate. The Department's separate-rate test is not concerned, in general, with macroeconomic/border-type controls,
To establish whether a firm is sufficiently independent from government control of its export activities to be entitled to a separate rate, the Department analyzes each entity exporting the subject merchandise under a test arising from the
In this case, Shuangjie did not provide information we requested that is necessary to determine whether it is eligible for a separate rate. Specifically, on October 31, 2007, Shuangjie notified the Department of its decision to no longer participate in this investigation and withdrew all of its proprietary information from the record. As Shuangjie has decided to no longer participate in this investigation, and has withdrawn all of its responses from the record, the Department has no basis upon which to grant Shuangjie a separate rate. Although Shuangjie remains a mandatory respondent, the Department considers Shuangjie part of the PRC-wide entity because it failed to demonstrate that it qualifies for a separate rate.
Wai Ming, Fastube, Wuxi Eric, SLK, Wah Cit, and Guangdong provided company-specific separate-rate information and stated that the standards for the assignment of separate rates have been met because they are privately owned trading companies incorporated and held by foreign ownership. Because each of these companies is foreign owned, it is not necessary to undertake additional separate-rates analysis for the Department to determine that the export activities of Wai Ming, Fastube, Wuxi Eric, SLK, Wah Cit, and Guangdong are independent from the PRC government's control. Accordingly, Wai Ming, Fastube, Wuxi Eric, SLK, Wah Cit, and Guangdong are eligible for separate rates.
Youcheng stated in its August 27, 2007, separate-rate application that it sold subject merchandise to a U.S. customer during the POI and, as evidence, presented a sales contract dated within the POI. This contract covers multiple sizes and types of subject merchandise. Section 351.401(i) of the Department's regulations states
Youcheng claims that the appropriate date of sale should be the contract date. However, Youcheng acknowledges that the first shipment of subject merchandise pursuant to this contract did not take place until well after the POI. Because this contract covers multiple sizes and types of subject merchandise, and each different product is considered separately by the Department for purposes of its dumping analysis, the Department preliminarily finds that the contract does not include product-specific prices. Instead, it provides only the total value and total quantity of all products that will be shipped pursuant to this contract. In addition, Youcheng provided a memorandum between itself and the U.S. customer, dated well after the POI, in which Youcheng provided the customer a price reduction for all products shipped pursuant to the contract due to a change in the terms of delivery. Thus, even if the contract had product-specific prices, which it did not, such prices were not final, as they were reduced after the POI at time of shipment. For these reasons, the Department determines that the terms of sale were not finalized until the final commercial invoice was issued, after the POI. Therefore, the appropriate date of sale to use in analyzing Youcheng's separate-rate application is the invoice date. As the invoice date is outside the POI, the Department finds that Youcheng did not have a sale within the POI and is, therefore, not eligible to receive a separate rate.
The Department considers the following
The evidence provided by Yulong, Weifang, Shijiazhuang, Baolai, Dalian, Benxi, Shanghai Metals, Huludao, Xingyuda, Jianye, Rizhao, Tianjin No. 1, Yongjie, Hengshui, Zhongyuan, Kunshan Lets Win, and BOYU indicates that there are no restrictive stipulations associated with their exporter and/or business licenses and that there are legislative enactments decentralizing control of the companies. The Department's analysis of the record evidence supports a preliminary finding of absence of
In its August 26, 2007, separate-rate application, Fubo reported that it was established and is completely owned by the Fushan Village Committee (“Fushan Committee”), and the Fushan Committee operates under the Village Committee Law. In
Typically the Department considers four factors in evaluating whether each respondent is subject to
We determine that, for Yulong, Weifang, Shijiazhuang, Baolai, Dalian, Benxi, Shanghai Metals, Huludao, Xingyuda, Jianye, Rizhao, Tianjin No. 1, Kunshan, Yongjie, Jiangsu, Qingdao, Hengshui, Zhongyuan, Kunshan Lets Win, and BOYU, the evidence on the record supports a preliminary finding of an absence of
Regarding Fubo, the Fushan Committee appoints Fubo's board of directors and managers. During the POI, Fubo's directors and managers were also members of the Fushan Committee. In particular, Fubo reported that its general manager, chief financial supervisor, and sales manager were members of the Fushan Committee. Since these
As stated above, because Wai Ming, Fastube, Wuxi Eric, SLK, Wah Cit, and Guangdong are wholly foreign-owned, we have determined that they are independent of the PRC government's control and are eligible for a separate rate. In addition, the evidence placed on the record of this investigation by Yulong, Weifang, Shijiazhuang, Baolai, Dalian, Benxi, Shanghai Metals, Huludao, Xingyuda, Jianye, Rizhao, Tianjin No. 1, Kunshan, Yongjie, Jiangsu, Qingdao, Hengshui, Zhongyuan, Kunshan Lets Win, and BOYU demonstrates an absence of
In determining what rate to assign companies receiving separate rates, the Department's normal practice is to weight-average the individually calculated margins from the mandatory respondents. In this investigation, Yulong is the only mandatory respondent receiving an individually calculated margin, and its margin is zero percent. Shuangjie, the other mandatory respondent, is receiving a rate based entirely on adverse facts available (“AFA”) as part of the PRC-wide entity for its failure to cooperate.
Sections 776(a)(1) and (2) of the Act provide that the Department shall apply “facts otherwise available” if,
Where the Department determines that a response to a request for information does not comply with the request, section 782(d) of the Act provides that the Department will so inform the party submitting the response and will, to the extent practicable, provide that party the opportunity to remedy or explain the deficiency. If the party fails to remedy the deficiency within the applicable time limits and subject to section 782(e) of the Act, the Department may disregard all or part of the original and subsequent responses, as appropriate. Section 782(e) of the Act provides that the Department “shall not decline to consider information that is submitted by an interested party and is necessary to the determination but does not meet all applicable requirements established by the administering authority” if the information is timely, can be verified, is not so incomplete that it cannot be used, and if the interested party acted to the best of its ability in providing the information. Where all of these conditions are met, the statute requires the Department to use the information if it can do so without undue difficulties.
In this case, all PRC exporters of subject merchandise to the United States were given an opportunity to provide Q&V information to the Department. However, not all exporters responded to the Department's request for Q&V information.
Since the PRC-wide entity (including Shuangjie) withheld information requested by the Department, we find that the use of facts available is appropriate to determine the PRC-wide rate, pursuant to section 776(a)(2)(A) of the Act.
Section 776(b) of the Act provides that, in selecting from among the facts otherwise available, the Department may employ an adverse inference if an interested party fails to cooperate by not acting to the best of its ability to comply with requests for information.
Section 776(b) of the Act authorizes the Department to use, as AFA, information derived from the petition, the final determination from the LTFV investigation, a previous administrative review, or any other information placed on the record. In selecting a rate for AFA, the Department selects one that is sufficiently adverse “as to effectuate the purpose of the facts available rule to induce respondents to provide the Department with complete and accurate information in a timely manner.”
When the Department relies on secondary information, rather than information obtained in the course of an investigation, section 776(c) of the Act requires it to corroborate that information, to the extent practicable, from independent sources reasonably at its disposal.
The
To corroborate the dumping margin alleged in the petition (as adjusted by the Department in initiating the instant investigation), we compared sales-specific dumping margins calculated for the preliminary determination to the dumping margins alleged in the petition. We found that Yulong's highest sales-specific dumping margin corroborates, to the extent practicable, the petition margin of 51.34 percent.
To determine whether sales of CWP to the United States by Yulong were made at less than fair value, we compared the export price (“EP”) to normal value (“NV”), as described in the “U.S. Price,” and “Normal Value” sections of this notice. We compared NV to weighted-average EPs in accordance with section 777A(d)(1) of the Act.
For Yulong, we based U.S. price on EP in accordance with section 772(a) of the Act, because the first sale to an unaffiliated purchaser was made prior to importation, and CEP was not otherwise warranted by the facts on the record. We calculated EP based on the packed price from the exporter to the first unaffiliated customer in the United States. Where appropriate, we made deductions from the starting price (gross unit price) for foreign inland freight, brokerage and handling, international freight, and marine insurance, in accordance with section 772(c) of the Act.
Where foreign inland freight, brokerage and handling, or international ocean freight was provided by PRC service providers, or paid for in Renminbi (“RMB”), we analyzed the amount of service provided by PRC entities to determine the appropriate method of valuing the services. Yulong received foreign inland freight services, and brokerage and handling services, from PRC service providers. Yulong paid for international ocean freight services through a PRC freight forwarder.
Yulong reported that all of its U.S. sales had foreign inland freight provided by NME freight providers. Therefore, we valued foreign inland freight using a surrogate value obtained from the web site of an Indian transportation company, InFreight Technologies India Limited.
For brokerage and handling, Yulong reported that all of its U.S. sales had foreign brokerage and handling provided by NME companies. We valued Yulong's use of foreign brokerage and handling using a simple average of the public version of the brokerage and handling expenses reported in an
Yulong also reported that all of its U.S. sales had international freight provided by NME companies. We valued international freight expenses using U.S. dollar freight quotes that the Department obtained from Maersk Sealand (“Maersk”), a market-economy shipper. We obtained quotes from Maersk for shipments from the PRC port of export and the U.S. port of import reported by Yulong for its U.S. sales. Because these data were not contemporaneous to the POI, we adjusted them for inflation using the U.S. WPI.
Section 773(c)(1) of the Act provides that the Department shall determine the NV using a factors-of-production (“FOP”) methodology if the merchandise is exported from an NME country and the information does not permit the calculation of NV using home-market prices, third-country prices, or constructed value under section 773(a) of the Act. The Department bases NV on the FOP because the presence of government controls on various aspects of non-market economies renders price comparisons and the calculation of production costs invalid under the Department's normal methodologies.
Yulong reported that it does not have complete, product-specific POI records that track the consumption of hot-rolled steel in coils on a product-specific basis, and, therefore, it allocated the same quantity of steel to all subject merchandise products. However, the Department finds that a single steel consumption rate for all products is not reasonable. Therefore, on the basis of the production data submitted by Yulong, which the Department intends to verify, the Department has adjusted Yulong's reported consumption rate for hot-rolled steel in coils to be product-specific on the basis of steel coil and pipe thickness. See Yulong Analysis Memorandum. An amount for yield loss was added to the reported consumption rate per metric ton of CWP produced.
In antidumping proceedings involving NME countries, the Department, pursuant to section 773(c)(1) of the Act, will generally base NV on the value of the NME producer's factors of production. In accordance with section 773(c)(4) of the Act, in valuing the factors of production, the Department shall utilize, to the extent possible, the prices or costs of factors of production in one or more market-economy countries that are at a level of economic development comparable to that of the NME country and are significant producers of merchandise comparable to the subject merchandise.
On November 5, 2007, the Department determined that India, Indonesia, Sri Lanka, the Philippines, and Egypt are countries comparable to the PRC in terms of economic development.
On November 5, 2007, the Department requested comments on surrogate country selection, and on surrogate values, from the interested parties in this investigation. No interested party commented on the selection of a surrogate country. However, on November 15, 2007, Yulong submitted surrogate value information,
As detailed in the Surrogate Country Memorandum, the Department has preliminarily selected India as the surrogate country because: (1) it is a significant producer of comparable merchandise; (2) it is at a similar level of economic development pursuant to 773(c)(4) of the Act; and (3) we have reliable data from India that we can use to value the factors of production. For a detailed discussion of the selection of the surrogate country, see Memorandum to the File, through Abdelali Elouaradia, Director, Office 4, AD/CVD Operations, from Maisha Cryor, Analyst, Office 4, AD/CVD Operations, Regarding “Antidumping Duty Investigation of Circular Welded Carbon Quality Steel Pipe from the People's Republic of China: Selection of a Surrogate Country,” dated December 14, 2007 (“Surrogate Country Memorandum”). Thus, we have calculated NV using Indian prices when available and appropriate to value Yulong's factors of production.
In accordance with 19 CFR 351.301(c)(3)(i), for the final determination in an antidumping investigation, interested parties may submit publicly available information to value the factors of production within 40 days after the date of publication of the preliminary determination.
In accordance with section 773(c) of the Act, we calculated NV based on FOP data reported by Yulong for the POI. The FOPs for subject merchandise include: (1) quantities of raw materials consumed; (2) hours of labor required; (3) amounts of energy and other utilities consumed; (4) representative capital and selling costs; and (5) packing materials. We valued the reported FOPs by multiplying the reported per-unit factor-consumption rates by publicly available prices and financial statements from the surrogate country, India, or, where appropriate, the market economy prices paid for the factor (
In selecting the surrogate values, we considered the quality of the source of surrogate information, the specificity of the surrogate value to the FOP being valued, and contemporaneity of the data to the POI. To the extent practicable, we selected values that are non-export average values and tax-exclusive.
We valued material inputs and packing by multiplying the amount of the factor consumed in producing subject merchandise by the average unit value of the factor. We derived the average unit value of the factors from Indian import statistics. As appropriate, we added to the surrogate values a cost for inland freight to make them delivered prices. Specifically, we calculated the inland freight cost by multiplying a surrogate freight rate by the shorter of the reported distance from the PRC domestic supplier to the respondent's factory or the distance from the nearest seaport to the respondent's factory, where appropriate. This adjustment is in accordance with the Court of Appeals for the Federal Circuit's decision in
Where we could not obtain publicly available information contemporaneous to the POI with which to value factors, we adjusted the surrogate values, where appropriate, using the WPI as published in the International Financial Statistics of the International Monetary Fund.
Furthermore, with regard to the Indian import-based surrogate values, we disregarded import prices that we have reason to believe or suspect may be subsidized. We have reason to believe or suspect that prices of inputs from Indonesia, South Korea, and Thailand may have been subsidized. We have found in other proceedings that these countries maintain broadly available, non-industry-specific export subsidies and, therefore, it is reasonable to infer that all exports to all markets from these countries may be subsidized.
Yulong purchased certain inputs into the production of the merchandise under investigation from market economy suppliers and paid for such purchases in market economy currencies. The Department has instituted a rebuttable presumption that market economy input prices are the best available information for valuing an input when the total volume of the input purchased from all market economy sources during the POI or period of review is 33 percent or greater of the total volume of the input purchased from all sources during the period.
In accordance with this policy, we valued Yulong's inputs using the market economy prices paid for in market economy currencies where appropriate. Alternatively, when the volume of Yulong's purchases of an input from market economy suppliers during the POI was below 33 percent of the company's total volume of purchases of the input during the POI, we weight-averaged the weighted-average market economy purchase price with an appropriate surrogate value according to their respective shares of the total volume of purchases.
The Department valued direct materials and packing materials using publicly available import prices reported in the
To value electricity, we used the 2000 electricity price in India of 3.602 Rs. per kilowatt hour from
To value water, the Department used data from the Maharastra Industrial Development Corporation (www.midcindia.org) to be the best
Consistent with 19 CFR 351.408(c)(3), we valued direct, indirect, and packing labor using the most recently calculated regression-based wage rate, which relies on 2004 data. This wage rate can currently be found on the Department's website on Import Administration's home page, Import Library, Expected Wages of Selected NME Countries, revised in January 2007,
As we did in valuing foreign inland freight for U.S. sales, we valued truck freight expenses using a per kilometer per kilogram average rate from data obtained from the web site of an Indian transportation company, InFreight Technologies India Limited.
To value factory overhead, selling, general and administrative (“SG&A”) expenses, and profit values, we used the financial statements from the following Indian companies for the fiscal year ending March 31, 2006: Zenith Birla (India) Limited; Surya Roshni Limited; Bhawani Industries Limited; and Bihar Tubes Limited. From this information, we were able to determine factory overhead as a percentage of the total raw materials, labor, and energy (“ML&E”) costs; SG&A as a percentage of ML&E plus overhead (
We made currency conversions into U.S. dollars, in accordance with section 773A(a) of the Act, based on the exchange rates in effect on the dates of the U.S. sales as certified by the Federal Reserve Bank.
As provided in section 782(i)(1) of the Act, we intend to verify all information relied upon in making our final determination.
In the
The Department has determined that the following preliminary weighted-average dumping margins exist:
We will disclose the calculations performed within five days of the date of publication of this notice to parties in this proceeding in accordance with 19 CFR 351.224(b).
As noted above, the Department has found that critical circumstances exist with respect to imports of subject merchandise from the PRC. Therefore, in accordance with section 733(d) of the Act, we will instruct U.S. Customs and Border Protection (“CBP”) to suspend liquidation of all entries of CWP from the PRC as described in the “Scope of Investigation” section, entered, or withdrawn from warehouse, for consumption from the separate rate companies and the PRC-wide entity (including Shuangjie) on or after 90 days prior to the date of publication in the
In accordance with section 733(d)(2) of the Act, we are directing CBP not to suspend liquidation of imports of certain CWP from the PRC produced and exported by Yulong, and entered, or withdrawn from warehouse, for consumption on or after the date of publication of this preliminary determination in the
In accordance with section 733(f) of the Act, we have notified the ITC of our preliminary affirmative determination of sales at less than fair value. Section 735(b)(2) of the Act requires the ITC to make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports of CWP, or sales (or the likelihood of sales) for importation, of the subject merchandise within 45 days of our final determination.
Case briefs or other written comments may be submitted to the Assistant Secretary for Import Administration no later than seven days after the date of the final verification report is issued in this proceeding and rebuttal briefs limited to issues raised in case briefs no later than five days after the deadline date for case briefs. A list of authorities used and an executive summary of issues should accompany any briefs submitted to the Department. This summary should be limited to five pages total, including footnotes.
In accordance with section 774 of the Act, we will hold a public hearing, if requested, to afford interested parties an opportunity to comment on arguments raised in case or rebuttal briefs. If a request for a hearing is made, we intend to hold the hearing three days after the deadline of submission of rebuttal briefs at the U.S. Department of Commerce, 14th Street and Constitution Ave, NW, Washington, DC 20230, at a time and location to be determined. Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date.
Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, within 30 days after the date of publication of this notice. See 19 CFR 351.310(c). Requests should contain the party's name, address, and telephone number, the number of participants, and a list of the issues to be discussed. At the hearing, each party may make an affirmative presentation only on issues raised in that party's case brief and may make rebuttal presentations only on arguments included in that party's rebuttal brief.
This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
January 15, 2008
Eric Greynolds, AD/CVD Operations, Office 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-6071.
The products subject to this order are certain stainless steel sheet and strip in coils. Stainless steel is an alloy steel containing, by weight, 1.2 percent or less of carbon and 10.5 percent or more of chromium, with or without other elements. The subject sheet and strip is a flat-rolled product in coils that is greater than 9.5 mm in width and less than 4.75 mm in thickness and that is annealed or otherwise heat treated and pickled or otherwise descaled. The subject sheet and strip may also be further processed (
The merchandise subject to this order is currently classifiable in the
Excluded from the scope of this order are the following: (1) sheet and strip that is not annealed or otherwise heat treated and pickled or otherwise descaled, (2) sheet and strip that is cut to length, (3) plate (
The Department has determined that certain specialty stainless steel products are also excluded from the scope of this order. These excluded products are described below:
Flapper valve steel is defined as stainless steel strip in coils containing, by weight, between 0.37 and 0.43 percent carbon, between 1.15 and 1.35 percent molybdenum, and between 0.20 and 0.80 percent manganese. This steel also contains, by weight, phosphorus of 0.025 percent or less, silicon of between 0.20 and 0.50 percent, and sulfur of 0.020 percent or less. The product is manufactured by means of vacuum arc remelting, with inclusion controls for sulphide of no more than 0.04 percent and for oxide of no more than 0.05 percent. Flapper valve steel has a tensile strength of between 210 and 300 ksi, yield strength of between 170 and 270 ksi, plus or minus 8 ksi, and a hardness (Hv) of between 460 and 590. Flapper valve steel is most commonly used to produce specialty flapper valves in compressors.
Also excluded is a product referred to as suspension foil, a specialty steel product used in the manufacture of suspension assemblies for computer disk drives. Suspension foil is described as 302/304 grade or 202 grade stainless steel of a thickness between 14 and 127 microns, with a thickness tolerance of plus-or-minus 2.01 microns, and surface glossiness of 200 to 700 percent Gs. Suspension foil must be supplied in coil widths of not more than 407 mm, and with a mass of 225 kg or less. Roll marks may only be visible on one side, with no scratches of measurable depth. The material must exhibit residual stresses of 2 mm maximum deflection, and flatness of 1.6 mm over 685 mm length.
Certain stainless steel foil for automotive catalytic converters is also excluded from the scope of this order. This stainless steel strip in coils is a specialty foil with a thickness of between 20 and 110 microns used to produce a metallic substrate with a honeycomb structure for use in automotive catalytic converters. The steel contains, by weight, carbon of no more than 0.030 percent, silicon of no more than 1.0 percent, manganese of no more than 1.0 percent, chromium of between 19 and 22 percent, aluminum of no less than 5.0 percent, phosphorus of no more than 0.045 percent, sulfur of no more than 0.03 percent, lanthanum of between 0.002 and 0.05 percent, and total rare earth elements of more than 0.06 percent, with the balance iron.
Permanent magnet iron-chromium-cobalt alloy stainless strip is also excluded from the scope of this order. This ductile stainless steel strip contains, by weight, 26 to 30 percent chromium, and 7 to 10 percent cobalt, with the remainder of iron, in widths 228.6 mm or less, and a thickness between 0.127 and 1.270 mm. It exhibits magnetic remanence between 9,000 and 12,000 gauss, and a coercivity of between 50 and 300 oersteds. This product is most commonly used in electronic sensors and is currently available under proprietary trade names such as “Arnokrome III.”
Certain electrical resistance alloy steel is also excluded from the scope of this order. This product is defined as a non-magnetic stainless steel manufactured to American Society of Testing and Materials (“ASTM”) specification B344 and containing, by weight, 36 percent nickel, 18 percent chromium, and 46 percent iron, and is most notable for its resistance to high temperature corrosion. It has a melting point of 1390 degrees Celsius and displays a creep rupture limit of 4 kilograms per square millimeter at 1000 degrees Celsius. This steel is most commonly used in the production of heating ribbons for circuit breakers and industrial furnaces, and in rheostats for railway locomotives. The product is currently available under proprietary trade names such as “Gilphy 36.”
Certain martensitic precipitation-hardenable stainless steel is also excluded from the scope of this order. This high-strength, ductile stainless steel product is designated under the Unified Numbering System (“UNS”) as
Finally, three specialty stainless steels typically used in certain industrial blades and surgical and medical instruments are also excluded from the scope of this order. These include stainless steel strip in coils used in the production of textile cutting tools (
As noted above, the Department received no comments concerning the Preliminary Results. Therefore, consistent with the
The Department intends to issue assessment instructions to U.S. Customs and Border Protection (“CBP”) 15 days after the date of publication of these final results of this review, to liquidate shipments of subject merchandise by DMC entered, or withdrawn from warehouse, for consumption on or after January 1, 2005, through December 31, 2005, without regard to countervailing duties. We will also instruct CBP not to collect cash deposits of estimated countervailing duties on shipments of the subject merchandise by DMC entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this review.
For all non-reviewed companies, we will instruct CBP to continue to collect cash deposits at the most recent company-specific or country-wide rate applicable to the company. Accordingly, the cash deposit rates that will be applied to non-reviewed companies covered by this order are those established in the most recently completed administrative proceeding.
This notice also serves as a reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
National Institute of Standards and Technology Department of Commerce.
Notice of Public Meeting.
Pursuant to the Federal Advisory Committee Act, 5 U.S.C. app. 2, notice is hereby given that the Visiting Committee on Advanced Technology (VCAT), National Institute of Standards and Technology (NIST), will meet Tuesday, February 5, 2008, from 8:30 a.m. to 5 p.m. and Wednesday, February 6, 2008, from 8 a.m. to 12 p.m. The Visiting Committee on Advanced Technology is composed of fifteen members appointed by the Director of NIST who are eminent in such fields as business, research, new product development, engineering, labor, education, management consulting, environment, and international relations.
The purpose of this meeting is to review and make recommendations regarding general policy for the Institute, its organization, its budget, and its programs within the framework of applicable national policies as set forth by the President and the Congress. Agenda items will include preparation of the VCAT annual report, with break-out sessions for the three sub-committee groups on Information Technology, Nanotechnology, and Biosciences to discuss recommendations made to NIST throughout the year, with input back to the full committee. The agenda may change to accommodate Committee business. The final agenda will be posted on the NIST Web site at
Anyone wishing to attend this meeting must submit name, e-mail address and phone number to Denise Herbert (
The meeting will convene on February 5, 2008, at 8:30 a.m. and will adjourn on February 6, 2008, at 12 p.m.
The meeting will be held in the Employees Lounge, Administration Building, at NIST, Gaithersburg, Maryland. All visitors to the NIST site will have to pre-register to be admitted. Please submit your name, time of arrival, e-mail address and phone number to Denise Herbert no later than Friday, February 1, 2008, and she will provide you with instructions for admittance. Ms. Herbert's e-mail address is
Denise Herbert, Visiting Committee on Advanced Technology, National Institute of Standards and Technology, Gaithersburg, Maryland 20899-1000, telephone number (301) 975-5607.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Issuance of a scientific research permit.
Notice is hereby given that NMFS has issued Permit 10017 to California Department of Parks and Recreation (CDPR) in Half Moon Bay, California.
The application, permit, and related documents are available for review by appointment at: Protected Resources Division, NMFS, 777 Sonoma Avenue, Room 315, Santa Rosa, CA 95404 (ph: 707-575-6097, fax: 707-578-3435, e-mail at:
Jeffrey Jahn at 707-575-6097, or e-mail:
The issuance of permits and permit modifications, as required by the Endangered Species Act of 1973 (16 U.S.C. 1531-1543) (ESA), is based on a finding that such permits/modifications: (1) are applied for in good faith; (2) would not operate to the disadvantage of the listed species which are the subject of the permits; and (3) are consistent with the purposes and policies set forth in section 2 of the ESA. Authority to take listed species is subject to conditions set forth in the permits. Permits and modifications are issued in accordance with and are subject to the ESA and NMFS regulations (50 CFR parts 222-226) governing listed fish and wildlife permits.
This notice is relevant to federally endangered Central California Coast coho salmon (
A notice of the receipt of an application for a scientific research permit (10017) was published in the
Permit 10017 authorizes: (1) unintentional non-lethal capture (by beach seine and dipnet), and release of adult Central California Coast coho salmon and adult Central California Coast steelhead; (2) capture (by backpack electrofishing, beach seine, dip-net, and fyke-net trap), handling, and release of juvenile Central California Coast coho salmon; (3) capture (by backpack electrofishing, beach seine, dip-net, and fyke-net trap), handling, marking (using fin-clips, PIT tags, or VIE tags), and release of juvenile Central California Coast steelhead; (4) capture (by beach seine or dip-net), lethal sacrifice, and collection of sick or injured juvenile Central California Coast steelhead; and (5) capture (by beach seine or dip-net) and collection of previously dead juvenile Central California Coast steelhead.
Permit 10017 authorizes unintentional lethal take of: juvenile Central California Coast steelhead not to exceed 2 percent of juvenile Central California Coast steelhead captured. Permit 10017 does not authorize any lethal take of adult Central California Coast coho salmon and adult Central California Coast steelhead. Permit 10017 authorizes intentional lethal take of five juvenile Central California Coast steelhead that appear to be sick or injured (appear lethargic, are unresponsive to disturbance, or swim rapidly in a circular or erratic manner) as a result of fish die-off events in Pescadero Lagoon, San Mateo County, California.
Permit 10017 is for research to be conducted in the lagoons and streams of San Gregorio Creek, Pomponio Creek, and Pescadero Creek in San Mateo County, California. The purpose of the research is to provide ESA-listed salmonid population, distribution, and habitat assessment data which will: (1) contribute to the general body of scientific knowledge pertaining to ESA-listed salmonids; (2) assess the effects of chronic hypoxia and annual fish die-off events on the status of juvenile ESA-listed salmonid populations and habitat use in Pescadero Lagoon; (3) guide habitat restoration and management actions to prevent future fish die-off events in Pescadero Lagoon; and (4) evaluate the effects of wetland restoration and altered sandbar regimes on juvenile ESA-listed salmonid populations and lagoon habitat to guide future restoration and management activities. Permit 10017 expires on November 30, 2012.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; withdrawal of application.
Notice is hereby given that Joseph R. Mobley, Ph.D., University of Hawaii at Manoa, 2528 McCarthy Mall, Webster 404, Honolulu, HI 96822 has withdrawn his application for an amendment to his existing scientific research permit.
The documents related to this action are available for review upon written request or by appointment in the following offices:
Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301)713-2289; fax (301)427-2521; and
Pacific Islands Region, NMFS, 1601 Kapiolani Blvd., Rm 1110, Honolulu, HI
Kate Swails or Amy Hapeman, (301)713-2289.
On June 4, 2007 a notice was published in the
Permit No. 642-1536 authorizes the permit holder to conduct aerial and vessel-based research, including surface and underwater photography/videography for identification and sex verification, on North Pacific humpback whales (
The withdrawn amendment request was for authorization to use sound playback on up to 250 humpback whales annually in the waters off West Maui and possibly other inshore areas among the main Hawaiian Islands. After completing revisions the applicant plans to resubmit the application at a later date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration, Commerce.
Notice of public scoping meetings.
The South Atlantic Fishery Management Council (Council) will hold a series of public scoping meetings regarding a proposed Comprehensive Allocation Amendment, Amendment 17 to the Snapper Grouper Fishery Management Plan (FMP) for the South Atlantic, Amendment 18 to the Snapper Grouper FMP for the South Atlantic, and commercial allocation of the South Atlantic king mackerel quota. See
The series of 5 public scoping meetings will be held February 4 - 7, 2008 and February 20, 2008. All scoping meetings will be open from 2 p.m. - 5 p.m. and from 6 p.m. - 8 p.m. Council staff and area Council members will be available for informal round table discussions and to answer questions. Members of the public will have an opportunity to go on record at any time during the meeting hours to record their comments on the scoping issues for Council consideration. Written comments must be received in the South Atlantic Council's office by 5 p.m. on February 22, 2008. See
Written comments should be sent to Bob Mahood, Executive Director, South Atlantic Fishery Management Council, 4055 Faber Place Drive, Suite 201, North Charleston, SC 29405, or via email to:
Kim Iverson, South Atlantic Fishery Management Council, 4055 Faber Place Drive, Suite 201, North Charleston, SC 29405; telephone: (843) 571-4366; fax: (843) 769-4520; email address:
The scoping meetings will be held at the following locations:
1.
2.
3.
4.
5.
The public scoping meetings will address overlapping fisheries issues for the South Atlantic region. These include: (1) A Comprehensive Allocation Amendment - the Council is considering this amendment to address commercial and recreational sector allocations of species under its jurisdiction in order to meet the Annual Catch Limit requirements; (2) Amendment 17 to the Snapper Grouper FMP - addressing requirements to establish Annual Catch Limits and Accountability Measures for overfished species by 2010 as specified in the Reauthorized Magnuson Stevens Fishery Conservation and Management Act, reduction of bycatch for deepwater snapper grouper species, options for the black sea bass pot and longline gear snapper grouper fisheries, changes to the golden tilefish fishing year, a 6-month winter closure for the snowy grouper fishery, extension of the management unit (and regulations) through the Mid-Atlantic Council's area of jurisdiction, golden tilefish allocations, and possible removal of some species from the snapper grouper fishery management unit; (3) Amendment 18 to the Snapper Grouper FMP - addressing possible Limited Access Privilege Programs for the commercial snapper grouper fishery; and (4) Commercial allocation of the commercial king mackerel fishery. With possible reductions in the Total Allowable Catch (TAC) for South Atlantic king mackerel, the Council is looking at options to ensure allocations of the commercial quota are fairly distributed from North Carolina to Florida.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to the Council office (see
Corporation for National and Community Service.
Notice.
The Corporation for National and Community Service (hereinafter the “Corporation”), has submitted a public information collection request (ICR) entitled the AmeriCorps NCCC Team Leader Application to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995, Public Law 104-13, (44 U.S.C. Chapter 35). Copies of this ICR, with applicable supporting documentation, may be obtained by calling the Corporation for National and Community Service, Mr. Nicholas Zefran (202) 606-6703. Individuals who use a telecommunications device for the deaf (TTY-TDD) may call (202) 565-2799 between 8:30 a.m. and 5 p.m. eastern time, Monday through Friday.
Comments may be submitted, identified by the title of the information collection activity, to the Office of Information and Regulatory Affairs, Attn: Ms. Katherine Astrich, OMB Desk Officer for the Corporation for National and Community Service, by any of the following two methods within 30 days from the date of publication in this
(1)
(2) Electronically by e-mail to:
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Corporation, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Propose ways to enhance the quality, utility, and clarity of the information to be collected; and
• Propose ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
A 60-day public comment Notice was published in the
Department of the Navy, DoD.
Notice.
The Department of the Navy herby gives notice of its intent to grant to Soil Information Systems, Inc., a revocable, nonassignable, partially exclusive license in the United States to practice the Government-Owned invention(s) described in U.S. Patent Number 5,316,950 entitled “Method for quantitative calibration of in situ optical chemical measurements in soils using soil class and characteristics”, issue date May 31, 1994.
Anyone wishing to object to the grant of this license must file written objections along with supporting evidence, if any, not later than January 30, 2008.
Written objections are to be filed with the Office of Research and Technology Applications, Space and Naval Warfare Systems Center, Code 73120, 53560 Hull St., San Diego, CA 92152-5048.
Stephen H. Lieberman, Ph.D., Head, Office of Research and Technology Applications, Space and Naval Warfare Systems Center, Code 73120, 53560 Hull St., San Diego, CA 92152-5048, telephone 619-553-2778,
Denali Commission.
Denali Commission Fiscal Year 2008 Draft Work Plan request for comments.
The Denali Commission (Commission) is an independent federal agency based on an innovative federal-state partnership designed to provide critical utilities, infrastructure and support for economic development and in-training in Alaska by delivering federal services in the most cost-effective manner possible. The Commission was created in 1998 with passage of the October 21, 1998 Denali Commission Act (Act) (Title III of Pub. L. 105-277, 42 U.S.C. 3121). The Denali Commission Act requires that the Commission develop proposed work plans for future spending and that the annual Work Plan be published in the
This
Comments and related material must be received by
Submit comments to the Denali Commission, Attention:
Ms. Automme Circosta, Denali Commission, 510 L Street, Suite 410, Anchorage, AK 99501. Telephone: (907) 271-1414. E-mail:
By creating the Commission, Congress mandated that all parties involved partner together to find new and innovative solutions to the unique infrastructure and economic development challenges in America's most remote communities.
Pursuant to the Denali Commission Act, as amended, the Commission determines its own basic operating principles and funding criteria on an annual federal fiscal year (October 1 to September 30) basis. The Commission outlines these priorities and funding recommendations in an annual Work Plan.
Pursuant to the Act, the Work Plan is first provided in draft by the Commission for publication in the
The Federal Co-Chair then adopts a final version of the Work Plan, which includes, to the degree the Federal Co-Chair deems appropriate, modifications, additions and deletions based on the policy and program recommendations of the full Commission and public comment. The final version of the Work Plan is forwarded to the Secretary of Commerce for approval on behalf of the Federal Co-Chair.
The Work Plan authorizes the Federal Co-Chair to enter into grant agreements, award grants and contracts and obligate the federal funds identified by appropriation below.
The FY 08 Draft Work Plan has been developed based on the appropriations approved by Congress for Fiscal Year 2008 (FY08), as detailed in the FY08 Denali Commission Funding Summary Table below. Some appropriations have been identified as “Estimates.” These figures will be updated in the final Work Plan upon receipt of FY08 appropriations by the Commission.
The Denali Commission has historically received several federal funding sources (identified by the varying colors in the table below). These fund sources, commonly referred to as “appropriations,” are governed by the following general principles:
• In FY 08 no project specific earmarks were provided in any appropriations;
• Energy and Water Appropriations (commonly referred to as Commission “Base” funding) is eligible for use in all programs, but has historically been used substantively to fund the Energy Program.
• The Energy Policy Act of 2005 established new authorities for the Commission's Energy Program, with an emphasis on renewable and alternative energy projects. No new funding accompanied the Energy Policy Act, and prior fiscal year Congressional direction has indicated that the Commission should fund renewable and alternative Energy Program activities from the available “Base” appropriation.
• All other appropriations outlined below may be used only for the specific program area and may not be used across programs. For instance, Health Resources and Services Administration (HRSA) funding, which is appropriated for the Health Facilities Program, may not be moved to the Economic Development Program.
The figures appearing in the table below include an administrative deduction of 5%, which constitutes the Commission's 5% overhead. In instances where the overhead differs from the 5% it is due to the requirements related to that appropriation. For example, USDA-Rural Utilities Services (RUS) funding is limited to 4% overhead.
Final transportation appropriations received are typically slightly reduced due to agency modifications, reductions and fees determined by the U.S. Department of Transportation.
The table below provides the following information, by appropriation:
• Total FY 08 Appropriations:
These are the figures that appear in the rows entitled “FY 08 Appropriation” and are the original appropriation amounts which do not include Commission overhead deductions. These appropriations are identified by their source name (i.e., “Energy and Water Appropriation; USDA, Rural Utilities Service, etc.)
• Total FY 08 Program Available Funding:
These are the figures that appear in the rows entitled “FY 08 Appropriations—Program Available” and are the amounts of funding available for program(s) activities after Commission overhead has been deducted.
• Program Funding:
These are the figures that appear in the rows entitled with the specific Program and Sub-Program area, and are the amounts of funding the Draft FY 08 Work Plan recommends, within each appropriation.
• Subtotal of Program Funding
These are the figures that appear in the rows entitled “subtotal” and are the subtotals of all program funding within a given appropriation. The subtotal must always equal the Total FY 08 Program Available Funding.
The following section provides narrative discussion, by each of the Commission Programs identified for FY 08 funding in the table above, in the following categories:
• Program History and Approach
• Applicant/Grant Process
• Program Project Selection Process
• Program Policy Issues (as applicable)
In addition to the FY 08 funded program activities; the last section of the narrative provides an update on the Commission's Government Coordination Program. The Program is not funded by Commission appropriations, but is an integral component of the Commission's mission, the success of other programs, and the legacy of the Commission's work in Alaska.
The final section also includes a general summary of the Commission's potential role in erosion and relocation in Alaska, as well as a summary of the Commission's goals regarding agency-wide program evaluation in FY 08.
The Energy Program is the Commission's oldest program and is often identified, along with the Health Program, as a “legacy” program. The Program focuses on bulk fuel (BFU) and rural power system upgrades/power generation (RPSU) across Alaska. The purpose of this program is to provide code-compliant bulk fuel storage and electrification throughout rural Alaska, especially for communities “off the grid” and not reachable by road or rail.
The needs in the bulk fuel and power generation projects are presently estimated at $198 million and $211 million, respectively, in 2004 construction costs. At FY 06 funding rates, it will take another eight to nine years for BFU and ten to eleven years for RPSU before these programs are completed. The Commission has also funded a very successful program of competitively selected energy cost reduction-alternative energy projects. In three completed rounds of funding, approximately $6 million in grant funds have leveraged $8.1 million in participant funding, with estimated life-cycle cost savings (generally diesel fuel avoided over the life of the project) of $29 million.
The Energy Program has historically used a “universe of need” model to determine project and program funding. Specifically, the Program is focused on using the existing statewide deficiency lists of bulk fuel facilities and power generation/distribution systems to prioritize project funding decisions. A program partnership model is utilized for project management and partners are actively involved in the design and construction of projects. Partners coordinate project funding requests with the Commission to balance the relative priority or urgency of bulk fuel and power generation needs against available funding, readiness of individual communities and project participants for the project(s), and capacity of the partners to carry out the work. Communities are identified by partners and through the deficiency list process. Legacy program (RPSU, bulk fuel and intertie) Projects are selected and reviewed by Commission staff and program partners. Thus, a renewable project sometimes is proposed in conjunction with a deficiency list project to reduce the dependence on diesel fuel, and the concomitant fuel storage requirements. So too, an intertie, can remove the need for a new power plant, and reduce fuel storage requirements in the intertied communities. Therefore, the legacy Program may include these types of energy infrastructure also. Each community and project must be evaluated holistically. Program partners also perform initial due diligence and Investment Policy screenings, as well as assisting in development of the business plans for the participants as the designs are underway. The Program is dynamic: priorities fluctuate throughout the year, based on design decisions, due diligence and investment policy considerations, site availability, the timing of funding decisions, etc.
It is anticipated that alternative/renewable projects will be selected via a Request for Proposal (RFP) process, similar to the RFP utilized in FY 07. Commission staff and an independent body will review and select projects submitted via RFP. The Energy Advisory Committee, provides policy guidance to the Program. The Energy Advisory Committee does not select or prioritize individual projects.
The Denali Commission Act was amended in 1999 to provide for the, “planning, constructing and equipping of health facilities.” Since 1999, the Health Facilities Program has been methodically investing in the planning, design and construction of primary care clinics across Alaska.
Primary care clinics have remained the “legacy” priority for the Program. However, in 2003 the “Other Than” primary care component of the Program was adopted in response to Congressional direction to fund a mix of other health and social service related facility needs. Over time, the Program has developed Program sub-areas such as Behavioral Health Facilities, Domestic Violence Facilities, Elder Housing, Primary Care in Hospitals, Emergency Medical Services Equipment and Hospital Designs.
The Program utilizes a “universe of need” model for primary care and a competitive selection process for other sub-program areas. In 1999 the Program created a deficiency list for primary care clinics, which totaled 288 communities statewide in need of clinic replacement, expansion and/or renovation. Currently, 70 clinics have been completed (either new construction or renovation), 33 are in construction and 62 are in planning/design.
The Program is guided by the Health Steering Committee, an advisory body comprised of the following membership organizations: the State of Alaska, Alaska Primary Care Association, the Alaska Native Tribal Health Consortium, the Alaska Mental Health Trust Authority, the Alaska Native Health Board, the Indian Health Service, the Alaska State Hospital and Nursing Home Association, and the University of Alaska.
Projects are recommended for funding by Commission staff if they demonstrate project readiness, which includes the completion of all due diligence requirements. This includes an approved business plan, community plan, site plan checklist, completed 100% design, documentation of cost share match, and realistic ability to move the project forward in a given construction season.
The Health Facilities Program anticipates two major policy changes in FY 08, 1) the development of size guidelines for large clinics, as well as potential changes to the existing size guidelines for medium and large clinics, and 2) issuance of an RFP for the design of a multipurpose clinic/facility for communities with less than 100 year round residents.
In a majority of rural communities unemployment rates exceed 50% and per capita income rates are over 50% below the national average. When job opportunities in rural Alaska do become available, rural residents often lack the skills necessary to compete and often lose those jobs to people from outside the community, region or even state. With the limited number of jobs available, the Commission believes it is imperative to ensure that local residents have the skills and knowledge necessary to work on the construction of projects funded by the Denali Commission. In addition the Commission builds sustainability into the development of infrastructure by providing training for the long term management, operations and maintenance of facilities and thus increasing local employment at the same time.
The Program's mission is to increase the employment and wages of unemployed or underemployed Alaskans through training for careers in construction, operations and maintenance of public facilities.
The Program is also guided by the following principles:
• Priority on training for construction, operations and maintenance of public infrastructure.
• Training will be tied to a job.
• Training will encourage careers not short term employment.
• Funding will support a “Training System”.
To date the Commission has dedicated training funds to the careers associated with infrastructure development and long-term sustainability in rural Alaska. The Commission has funded construction, operations and maintenance training in communities statewide with large success.
The Training Program's primary purpose is to support the Commission's investment in infrastructure development by providing training for the careers related to the Commission
The Commission anticipates that the general priority areas of construction, operations and maintenance of Commission Projects; management training for Commission Projects; youth initiatives in support of Commission projects; and construction, operations and maintenance training of “other public infrastructure” will continue to be funded in FY 08. Projects are selected through various RFP processes with partners, and at the recommendation of Commission staff, and policy guidance and priority areas for funding are set by the Training Advisory Committee.
Historically the Commission has provided funding directly to organizations that are able to deliver results in the priority areas as described above. These organizations have typically been selected by the Commission directly or through competitive requests for proposals managed by partner organizations.
On August 10, 2005, the President signed into law new highway program reauthorization legislation titled Safe, Accountable Flexible Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). This Act provides the Commission with $15 million annually for fiscal years 2005-2009 for a Denali Access System program. The Act also provides the Commission $10 million annually for Fiscal Years 2005-2009 for docks, harbors and related waterfront development projects. The Act also outlined the array of road projects Denali Access System is designed to target, rural community streets and roads, roads between rural communities, state highway system; and roads to access resource development.
The Act requires the formation of the Denali Access System Transportation Advisory Committee (TAC) to advise the Commission with members appointed by the Governor of Alaska. The nine member committee includes by law, four members who represent existing regional Native corporations, native non-profit entities, tribal governments and four members who represent rural Alaska regions or villages. The committee chair is Denali Commission Federal Co-Chair, George J. Cannelos.
The TAC is a central feature of the amendments to the Denali Commission Act of 1998 that defines the Denali Access System. Section 309 defines key committee responsibilities that include: recommend transportation priorities and funding strategies; develop public involvement and coordinating planning programs; develop annual capital budget recommendations; and coordinate multi-region projects.
As a result of a TAC-directed public outreach and agency coordination effort, the program has now begun to focus attention on two important transportation needs: roads and boardwalks, and barge landing moorage systems. Village connector roads and roads to local and regional resources will continue to receive significant attention, but to the extent practical each year, local roads and boardwalks in small rural communities will receive primary attention. The program will also maintain its focus on dust control in villages. In the waterfront development program, docks and harbors in small coastal communities will continue to receive attention, but there is a significant need for barge landings in coastal and riverine communities to improve operational safety and efficiencies. This class of project will receive primary consideration each year to the extent funding and construction schedules allow.
Another evolution in Program development, especially in the road Program, has been a shift from maximizing financial leveraging opportunities with other transportation agencies, to fully fund, as necessary, the program's highest priority projects. In FY 06, the $23 million transportation program leveraged almost $100 million in projects. In coming years, while striving to leverage funding opportunities, an emphasis on priorities over funding partnerships will likely reduce the overall program joint-fund total. This has been critical because of the nature of the projects the Commission is able to fund. These projects are typically very important, but may not rise to prioritization for funding on State or other Federal transportation systems.
The TAC reviews project nominations on a semi-annual basis, once in December for project selections and once during the summer to monitor project development.
In addition to meeting transportation-specific criteria and processes, the Program fully incorporates Denali Commission policies including a commitment to sustainable community projects, and a commitment to the Commission's Investment Policy.
The Commission began receiving solid waste funding in FY 06. The Commission partners with USDA Rural Development to address deficiencies in solid waste disposal sites which threaten to contaminate rural drinking water supplies.
Proper solid waste collection, processing and disposal are an essential public service that often presents a difficult challenge in rural Alaska. Due to several factors, including limited rural Alaska local government budgets, community remoteness, limited transportation infrastructure and obstacles posed by Alaska's severe climate, solid waste service is a prominent widespread deficiency in the context of Alaska's wide array of environmental issues and public health and quality of life issues.
The program relies on a competitive RFP process to select and identify projects, and utilizes a multidiscipline review panel to ensure that projects meet all Commission due diligence and policy requirements. Program partners administer individual grant awards on behalf of the Commission. Typically this RFP process occurs once or twice in a given year depending on need and project eligibility.
Teaching in rural Alaska can be one of the most rewarding and challenging professions. A critical issue for rural teachers is finding safe, affordable housing during the school year. Housing availability varies by community from newer adequate homes, to old housing units with multiple safety and structural problems, to a lack of enough available housing, requiring teachers to double-up or even live in the school.
Teacher turnover rates are high in rural Alaska, with many teachers citing unavailable or inadequate housing as a factor in their decision to move. The quality of education received by students is impacted by teacher retention. By improving the availability and quality of housing for teachers, the Commission strives to also increase the quality of education received by the next generation of Alaskans.
In FY 04, Congress directed the Commission to address the teacher housing needs in rural Alaska. The Commission launched a statewide survey of 51 school districts and rural education attendance areas to identify and prioritize the teacher housing needs throughout the state. Urban districts in Anchorage, Fairbanks, Mat-Su and Juneau were not included in the survey.
The Commission utilizes a program partnership model to implement the teacher housing program. An annual RFP process identifies eligible projects and other funding sources, such as debt service, available to fill the gap between the project's capacity to carry debt and the total development cost of the
Since its earliest days as a territory of the United States, Alaska has contributed to the economy of America, largely through supply of raw materials or partially processed products. Now Alaska's abundant natural resources, from fossil fuel and mineral products to timber and fish, must compete in the global marketplace. Innovation and entrepreneurship have become critical to business success.
One of the purposes of the Commission is economic development. The Commission firmly believes that sustainable economic development for Alaska's rural communities, like that of the rest of America, will be generated in the private, commercial sector, not within government. To that end, the Commission supports the development of public infrastructure upon which the private sector creates jobs and wealth, and helps ensure that good businesses and business ideas have a chance to become long-term, self-sustaining enterprises.
Over the history of the Program, the Commission has supported and advanced a wide array of economic development program activities ranging from community profile mapping to supporting innovative models for lending, and equity investment in Alaska.
The Program is guided by Commission staff and the Economic Development Advisory Committee, which provides general policy guidance and funding recommendations in broad categories. It is anticipated that FY 08 funds will be made available via an RFP process.
The Commission is charged with the special role of increasing the effectiveness of government programs by acting as a catalyst to coordinate the many Federal and State programs that serve Alaska. In FY 08 the Commission will continue its role of coordinating State and Federal agencies and other partner organizations to accomplish its overall mission of developing Alaska's communities.
The Commission anticipates an active role in the emerging issues and challenges related to erosion and relocation in Alaska in the future. The Commission is committed to partnering with other Federal, State and tribal entities to ensure that public policy solutions are developed in the most expedient, responsive and culturally-appropriate manner. While no funds are appropriated for the Commission for this purpose in FY 08, Commission staff are working diligently to ensure that communities that may experience erosion or relocation issues are being vetted and reviewed appropriately prior to infrastructure development occurring.
The Commission is committed to innovative, cost-effective and creative design and construction solutions. To that end, the Commission anticipates engaging in more diverse and experimental partnerships in FY 08, and will be seeking innovative design, construction and program and project management practices.
In FY 08 the Commission will be creating an ongoing, agency wide evaluation system to measure the outcomes of Commission programs. It is anticipated that this work will begin in late spring or early summer, and would be designed to provide by empirical and qualitative data regarding Commission programs, projects and overall goal accomplishments in a broad set of evaluation criteria. It is the Commission's intent to maintain high-level measures that are correlated to the Commission's goals related to improving access, reducing cost and improving the quality of services and facilities across Alaska. Program Advisory Committees, staff and Commissioners will play a critical role in shaping this evaluation methodology.
Department of Education.
Correction Notice.
On December 21, 2007, the Department of Education published a comment period notice in the
The IC Clearance Official, Regulatory Information Management Services, Office of Management, hereby issues a correction notice as required by the Paperwork Reduction Act of 1995.
Energy Information Administration (EIA), Department of Energy (DOE).
Agency Information Collection Activities: Submission for OMB Review; Comment Request.
The EIA has submitted the “Natural Gas Processing Plant Survey,” Form EIA-757 to the Office of Management and Budget (OMB) for review and a three-year approval under section 3507(h)(1) of the Paperwork Reduction Act of 1995 (Pub. L. 104-13) (44 U.S.C. 3501 et seq., at 3507(h)(1)).
Comments must be filed by February 14, 2008. If you anticipate that you will be submitting comments but find it difficult to do so within that period, you should contact the OMB Desk Officer for DOE listed below as soon as possible.
Send comments to OMB Desk Officer for DOE, Office of Information and Regulatory Affairs, Office of Management and Budget. To ensure receipt of the comments by the due date, submission by FAX at 202-395-7285 or e-mail to
Requests for additional information should be directed to Grace Sutherland. To ensure receipt of the comments by the due date, submission by FAX (202-586-5271) or e-mail (
This section contains the following
1. “Natural Gas Processing Plant Survey” Form EIA-757.
2. Energy Information Administration.
3. OMB Number 1905-NEW.
4. NEW.
5. Mandatory.
6. The purposes of the survey are to collect information and produce periodic reports about the operational status of U.S. natural gas processing plants to improve public understanding of their production capacities and operating levels as well as to monitor constraints resulting from natural gas supply emergencies. The survey consists of Schedule A “Baseline Report,” a census which will be used to collect baseline operational information on all U.S. natural gas processing plants. Schedule A will collect information as frequently as every three years and the information will be used for periodic reports on the plants as well as to develop the survey frame for Schedule B “Emergency Status Report”. In the event of a natural gas supply emergency, Schedule B will collect information about operating levels, damage and recovery of operations.
7. Operators of natural gas processing plants.
8. 84 hours annually.
Please refer to the supporting statement as well as the proposed forms and instructions for more information about the purpose, who must report, when to report, where to submit, the elements to be reported, detailed instructions, provisions for confidentiality, and uses (including possible nonstatistical uses) of the information. For instructions on obtaining materials, see the
Section 3507(h)(1) of the Paperwork Reduction Act of 1995 (Pub. L. No. 104-13) (44 U.S.C. 3501 et seq., at 3507(h)(1))
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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All documents (original and eight copies) should be filed with: Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper; see 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings. Please include the project number (P-13015-000) on any comments or motions filed.
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
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n. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
Take notice that the Commission received the following open access transmission tariff filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
Take notice that on December 21, 2007, Dominion Transmission, Inc. (DTI), 120 Tredegar Street, Richmond, VA, filed in Docket No. CP08-45-000, an application pursuant to section 7(c) of the Natural Gas Act (NGA) and Part 157 of the Commission's Regulations seeking authorization to construct, install, own, operate, and maintain certain compression facilities located in Herkimer County, New York that comprise the Utica 7 Project. These facilities will provide increased transmission capacity, all as more fully set forth in the application which is on file with the Commission and open to public inspection. This filing is accessible on-line at
Specifically, DTI proposes to expand its existing Utica Compressor Station by installing an additional 2,250 HP compressor unit (Unit No. 7). Utica Station currently consists of 6 compressor engines with a total rating of 7,250 horsepower. DTI will provide firm transportation service for a Maximum Daily Transportation Quantity (MDTQ) of 15,000 Dt/day and up to a Maximum Annual Transportation Quantity (MATQ) of 5,475,000 Dt. The Project is fully subscribed by one customer for an initial term of fifteen years. The Project is designed to provide firm natural gas transportation service to Cornell University in connection with Cornell's project known as its Central Heating Project. Cornell is constructing a combined heat and power project using two gas turbine generators to ensure the necessary heat and electric capacity for the university's future while reducing greenhouse gas emissions by reducing its coal combustion. In addition, Cornell plans to construct and own an 8-inch diameter delivery line approximately 3 miles in length to connect the central heating plant on the university campus to a new interconnection with DTI. The DTI's total estimated cost for construction of the Project is $6,381,023.
Any questions regarding this application should be directed to Matthew R. Bley, Manager, Gas Transmission Certificates, Dominion Transmission, Inc., 120 Tredegar Street, Richmond, VA 23219, at (804) 819-2877.
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commentors will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commentors will not be required to serve copies of filed documents on all other parties. However, the non-party commentors will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
Comments, protests and interventions may be filed electronically via the Internet in lieu of paper. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link at
Energy Algorithms, LLC (EnAlgo) filed an application for market-based rate authority, with accompanying rate schedule. The proposed market-based rate schedule provide for the sale of energy and capacity at market-based rates. EnAlgo also requested waivers of various Commission regulations. In particular, EnAlgo requested that the Commission grant blanket approval under 18 CFR part 34 of all future issuances of securities and assumptions of liability by EnAlgo.
On January 4, 2008, pursuant to delegated authority, the Director, Division of Tariffs and Market Development-West, granted the requests for blanket approval under Part 34 (Director's Order). The Director's Order also stated that the Commission would publish a separate notice in the
Notice is hereby given that the deadline for filing protests is February 4, 2008.
Absent a request to be heard in opposition to such blanket approvals by the deadline above, EnAlgo is authorized to issue securities and assume obligations or liabilities as a guarantor, indorser, surety, or otherwise in respect of any security of another person; provided that such issuance or assumption is for some lawful object within the corporate purposes of EnAlgo, compatible with the public interest, and is reasonably necessary or appropriate for such purposes.
The Commission reserves the right to require a further showing that neither public nor private interests will be adversely affected by continued approvals of EnAlgo's issuance of securities or assumptions of liability.
Copies of the full text of the Director's Order are available from the Commission's Public Reference Room, 888 First Street, NE., Washington, DC 20426. The Order may also be viewed on the Commission's Web site at
Take notice that on December 7, 2007, Orlando Utilities Commission filed a supplement to its July 13, 2007, Petition for Declaratory Order.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
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j. Hydrodynamics filed its request to use the Traditional Licensing Process (TLP) on November 27, 2007. The filing also included a request for waiver of certain of the pre-filing consultation requirements in § 4.38 of the Commission's regulations, specifically: (1) The requirement that the potential applicant hold a joint meeting with all pertinent agencies, Indian tribes, and members of the public no earlier than 30 days from the date of the Commission's approval of the request to use the TLP, § 4.38(b)(3)(ii)(A); (2) the requirement that the potential applicant conduct any studies requested during the 60-day comment period after the joint meeting, § 4.38(b)(5) and § 4.38(c)(1); and (3) the requirement that the potential applicant allow resource agencies and Indian tribes 90 days in which to review and comment on the draft license applications, § 4.38(c)(5). Hydrodynamics provided public notice of its request to use the TLP on November 20, 2007.
k. On December 11, 2007, Hydrodynamics clarified that it is requesting that (1) the meeting it held on December 3, 2007, constitute the joint meeting required by § 4.38(b)(3)(i)(A)(1); (2) the pre-application documents (PADs) serve as the draft license applications; and (3) comments on the draft license applications be due within 60 days of the joint meeting (by February 3, 2008).
l. Comments on the request to use the TLP and to waive parts of the Commission's regulations for pre-filing consultation are due to the Commission and Hydrodynamics within 30 days from the date of this notice. In accordance with § 5.3(d)(2)(v) of the Commission's regulations, comments on the request to use the TLP should address, as appropriate, the following factors: (1) Likelihood of timely license issuance; (2) complexity of the resource issues; (3) level of anticipated controversy; (4) relative cost of the TLP compared to the Integrated Licensing Process; (5) the amount of available information and potential for significant disputes over studies; and (6) other factors believed to be pertinent.
Comments must be filed with the Commission at the following address: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. All filings with the Commission must include on the first page, the project names (Woods, Knights, Johnson, Greenfield, and A-Drop Hydroelectric Projects) and numbers (P-12540, P-12544, P-12545, P-12548, and P-12549).
Comments may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site (
m. With this notice, we are waiving the requirement of 18 CFR 5.8(a) of the Commission's regulations for the Commission to act on Hydrodynamics' request to use the TLP within 60 days from the notice of intent.
n. Hydrodynamics filed PADs for the projects with the Commission, pursuant to 18 CFR 5.6 of the Commission's regulations.
o. Copies of each of the PADs are available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site (
p. Register online at
Take notice that on December 21, 2007, Kinder Morgan Interstate Gas Transmission LLC (KMIGT), Post Office Box 281304, Lakewood, Colorado 80228-8304, filed in Docket No. CP08-44-000 a prior notice request pursuant to sections 157.205 and 157.210 of the Commission's regulations under the Natural Gas Act (NGA) and KMIGT's blanket certificate issued March 16, 1983 in Docket Nos. CP83-140-000 and CP83-140-001, for authorization to construct and operate mainline pipeline looping and ancillary facilities primarily to serve existing and new ethanol plants under construction in the State of Nebraska, all as more fully set forth in the application, which is on file with the Commission and open to public inspection. The filing may also be viewed on the Web at
KMIGT states that as a result of an open season and subsequent negotiations, KMIGT has entered into binding precedent agreements with five shippers to provide natural gas service totaling 21,810 Dth per day. KMIGT proposes to construct and operate two mainline looping pipeline segments consisting of approximately 7.5 miles of 16-inch pipe and approximately 17 miles of 12-inch pipe, located in Hall, Merrick and Nance Counties, Nebraska. In addition, KMIGT proposes to construct and operate certain ancillary facilities. The estimated cost of constructing the proposed facilities is $23,940,143.
Any questions regarding the application should be directed to Skip George, Manager of Regulatory, Kinder Morgan Interstate Gas Transmission LLC, P.O. Box 281304, Lakewood, Colorado 80228-8304, phone (303) 914-4969.
Any person or the Commission's Staff may, within 60 days after the issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention and, pursuant to section 157.205 of the Commission's Regulations under the Natural Gas Act (NGA) (18 CFR 157.205) a protest to the request. If no protest is filed within the time allowed therefore, the proposed activity shall be deemed to be authorized effective the day after the time allowed for protest. If a protest is filed and not withdrawn within 30 days after the time allowed for filing a protest, the instant request shall be treated as an application for authorization pursuant to section 7 of the NGA.
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible online at
On Tuesday, January 15, 2008, staff of the Office of Energy Projects will convene a technical conference regarding the proposed Sparrows Point Import Terminal and Pipeline Project. The technical conference will be held at the Commission Headquarters in Washington, DC, room 3M-3.
The conference will now be held in one session at 10 a.m. (EDT) and discuss issues related to Mid-Atlantic Express's proposal to construct some of its proposed pipeline in Baltimore Gas & Electric's right of way. The conference is open to the public. The public is no longer restricted from any portion of the conference.
Any person planning to attend the January 15th technical conference must register by close of business on Monday, January 14, 2008. Registration may be submitted either online at
On November 15, 2007, the Commission issued a notice requesting additional comments in the captioned proceeding solely on the issue of master limited partnership (MLP) growth rates (November 15 Notice).
Staff will conduct the technical conference beginning at 1 p.m. on January 23, 2008 in Hearing Room 1 at 888 First Street, NE., Washington, DC. Based on the parties' requests for participation in a panel, there will be one Panel, consisting of the following
The agenda for the technical conference is as follows:
For further information about the conference, please call or e-mail John Robinson (202-502-8288;
On September 24, 2007, the Commission issued Order No. 2001-G, the Electric Quarterly Report (EQR) Data Dictionary.
During the technical conference, Commission staff will review the EQR Data Dictionary and address questions from EQR users. An agenda will be issued prior to the conference.
Members of the public interested in raising questions about the EQR Data Dictionary are invited to submit them in writing in advance of the technical conference via the eFiling link on the Commission's Web site at
All interested persons are invited to participate in the technical conference by attending in person or by dialing in. Those interested in participating are asked to register no later than February 12, 2008, on the FERC Web site at
For additional information, please contact Christie Kim of FERC's Office of Enforcement at (202) 502-8216 or by e-mail at
FERC conferences and meetings are accessible under section 508 of the Rehabilitation Act of 1973. Requests for accessibility accommodations should be sent by e-mail to
The following notice of meeting is published pursuant to section 3(a) of the government in the Sunshine Act (Pub. L. No. 94-409), 5 U.S.C. 552b:
*Note.—Items listed on the agenda may be deleted without further notice.
Kimberly D. Bose, Secretary, Telehone (202) 502-8400. For a recorded message listing items struck from or added to the meeting, call (202) 502-8627.
This is a list of matters to be considered by the Commission. It does not include a listing of all documents relevant to the items on the agenda. All public documents, however, may be viewed on line at the Commission's Web site at
A free webcast of this event is available through
Immediately following the conclusion of the Commission Meeting, a press briefing will be held in the Commission Meeting Room. Members of the public may view this briefing in the designated overflow room. This statement is intended to notify the public that the press briefings that follow Commission meetings may now be viewed remotely at Commission headquarters, but will not be telecast through the Capitol Connection service.
Take notice that on December 12, 2007, James J. Mulva filed an application for authorization to hold interlocking positions, pursuant to Part 45 of the Commission's regulations, 18 CFR part 45 (2007).
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on line at
Take notice that on December 21, 2007, December 23, 2007, December 27, 2007, and January 3, 2008, respectively, Acushnet Company, Connecticut Municipal Electric Cooperative, University of Rhode Island, the Commonwealth of Massachusetts and UTC Power filed a temporary waiver of qualification process reimbursement deposit due date, pursuant to Market Rule 1.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant and all the parties in this proceeding.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on line at
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of the proposed Kentucky Energy Hub Project, which involves construction and operation of natural gas storage facilities in Hopkins County, Kentucky. This notice announces the opening of the scoping period that will be used to gather environmental input from the public and interested agencies on the project. Your input will help the Commission staff determine which issues need to be evaluated in the EA. Please note that the scoping period will close on February 6, 2008.
Comments may be submitted in written form or verbally. Further details on how to submit written comments are provided in the Public Participation portion of this notice. In addition to or in lieu of sending written comments, we invite you to attend the public scoping meeting at the location listed below.
Public scoping meetings are designed to provide state and local agencies, interested groups, affected landowners, and the general public with another opportunity to offer comments on the project. Interested groups and individuals are encouraged to attend the meeting and to present comments on the environmental issues they believe should be addressed in the EA.
If you are a landowner receiving this notice, you may be contacted by a
This notice is being sent to affected landowners; federal, state, and local government representatives and agencies; elected officials; Native American tribes; other interested parties; and local libraries and newspapers. State and local government representatives are asked to notify their constituents of this proposed project and to encourage them to comment on their areas of concern.
A fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” addresses a number of typically asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. It is available for viewing on the FERC Internet Web site (
Orbit seeks authorization to construct a new natural gas storage facility in Hopkins County, Kentucky. The Kentucky Energy Hub Project would consist of developing a 5 billion-cubic-foot storage cavern from a depleted production reservoir; 10 new gas storage wells on 3 new well pads; a new 5,400-horsepower compressor station; an 8.6-mile-long, 16-inch-diameter gathering pipeline; a 13.3-mile-long, 24-inch diameter pipeline; and a new meter station. The proposed project would connect with an existing ANR Pipeline Company pipeline system near Rabbit Ridge, Kentucky.
The general location of the proposed storage field expansion is shown in Appendix 1.
Construction of the proposed project would affect a total of about 246 acres during construction. Following construction, about 134 acres would be allowed to revert to its previous conditions. Disturbance associated with aboveground facilities would permanently impact approximately 45 acres of land. The compressor station would require about 25 acres and the three well pads would require about 5, 7, and 8 acres of disturbance. Orbit would seek a 75-foot-wide construction right-of-way for the pipelines, and it would maintain a 30-foot-wide permanent right-of-way for operation of the pipelines.
We
NEPA also requires the FERC to discover and address concerns the public may have about proposals. This process is referred to as “scoping.” The main goal of the scoping process is to focus the analysis in the EA on the important environmental issues. By this Notice of Intent, we are requesting public comments on the scope of the issues to address in the EA. All comments received will be considered during the preparation of the EA.
The EA will discuss impacts that could occur as a result of the construction and operation of the proposed project under these general headings:
• geology and soils
• wetlands and waterbodies
• land use
• cultural resources
• vegetation and wildlife (including sensitive species)
• air and noise quality
Our independent analysis of the issues will be in the EA. Depending on the comments received during the scoping process, the EA may be published and mailed to federal, state, and local agencies, public interest groups, interested individuals, affected landowners, newspapers, libraries, and the Commission's official service list for this proceeding. A comment period will be allotted for review if the EA is published. We will consider all comments on the EA before we make our recommendations to the Commission.
Although no formal application has been filed, the FERC staff has already initiated its NEPA review under its Pre-filing Process. The purpose of the Pre-filing Process is to encourage the early involvement of interested stakeholders and to identify and resolve issues before an application is filed with the FERC.
With this notice, we are asking federal, state, and local governmental agencies with jurisdiction and/or special expertise with respect to environmental issues, to express their interest in becoming cooperating agencies for the preparation of the EA. These agencies may choose to participate once they have evaluated the proposal relative to their responsibilities. Agencies that would like to request cooperating status should follow the instructions for filing comments provided below.
You can make a difference by providing us with your specific comments or concerns about the project. By becoming a commentor, your concerns will be addressed in the EA and considered by the Commission. You should focus on the potential environmental effects of the proposal, reasonable alternatives to the proposal including alternative locations and routes, and measures to avoid or lessen environmental impact. The more specific your comments, the more useful they will be. Please carefully follow these instructions to ensure that your comments are received in time and properly recorded:
• Send an original and two copies of your letter to:
Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First St., NE., Room 1A, Washington, DC 20426.
• Label one copy of the comments for the attention of Gas Branch 1.
• Reference Docket No. PF08-1-000.
• Mail your comments so that they will be received in Washington, DC on or before February 6, 2008.
The Commission encourages electronic filing of comments. See 18 Code of Federal Regulations 385.2001(a)(1)(iii) and the instructions on the Commission's Internet Web site at
We may mail the EA for comment. If you are interested in receiving it, please return the Information Request (Appendix 3). If you do not return the Information Request, you will be taken off the mailing list.
Additional information about the project is available from the Commission's Office of External Affairs, at 1-866-208-FERC or on the FERC Internet Web site (
In addition, the Commission now offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries and direct links to the documents. Go to
Please keep my name on the mailing list for the Kentucky Energy Hub Project.
Take notice that on December 5, 2007, Jefferson Island Storage & Hub, L.L.C. (Jefferson Island) filed a petition for rate approval pursuant to section 284.123(b)(2) of the Commission's regulations. Jefferson Island requests that the Commission approve market-based rates, including negotiated fuel, for its Interruptible Wheeling Service. The proposed Interruptible Wheeling Service will replace Jefferson Island's Interruptible Transportation Service. Jefferson Island also requests waiver of the triennial rate review filing required by the Commission's June 20, 2005 Letter Order in Docket Nos. PR05-9-000 and PR05-9-001.
Any person desiring to participate in this rate proceeding must file a motion to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the date as indicated below. Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible online at
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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All documents (original and eight copies) should be filed with: Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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o. Any filings must bear in all capital letters the title “COMMENTS”, “PROTEST”, or “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers.
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q. Comments, protests and interventions may be filed electronically via the Internet in lieu of paper. See, 18 CFR 385.2001(a)(I)(iii) and the instructions on the Commission's Web site at
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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j. Deadline for filing comments, and recommendations, final terms and conditions, and prescriptions is 60 days from the issuance date of this notice; reply comments are due 105 days from the issuance date of this notice.
All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
Comments, recommendations, final terms and conditions, and prescriptions may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site (
k. This application has been accepted for filing and is ready for environmental analysis at this time.
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m. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
All filings must (1) bear in all capital letters the title “COMMENTS,” “REPLY COMMENTS,” “RECOMMENDATIONS,” “FINAL TERMS AND CONDITIONS,” or “PRESCRIPTIONS;” (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person submitting the filing; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, final terms and conditions, or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). Agencies may obtain copies of the application directly from the applicant. Each filing must be accompanied by proof of service on all persons listed in the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b) and 385.2010.
You may also register online at
n. A license applicant must file not later than 60 days following the date of issuance of this notice: (1) A copy of the water quality certification; (2) a copy of the request for certification, including proof of the date on which the certifying agency received the request; or (3) evidence of waiver of water quality certification.
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Take notice that the following hydroelectric application has been filed
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j. Deadline for filing comments, and recommendations, final terms and conditions, and prescriptions is 60 days from the issuance date of this notice; reply comments are due 105 days from the issuance date of this notice.
All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
Comments, recommendations, final terms and conditions, and prescriptions may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site (
k. This application has been accepted for filing and is ready for environmental analysis at this time.
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m. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
All filings must (1) bear in all capital letters the title “COMMENTS,” “REPLY COMMENTS,” “RECOMMENDATIONS,” “FINAL TERMS AND CONDITIONS,” or “PRESCRIPTIONS;” (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person submitting the filing; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, final terms and conditions, or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). Agencies may obtain copies of the application directly from the applicant. Each filing must be accompanied by proof of service on all persons listed in the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b) and 385.2010.
You may also register online at
n. A license applicant must file no later than 60 days following the date of issuance of this notice: (1) a copy of the water quality certification; (2) a copy of the request for certification, including proof of the date on which the certifying agency received the request; or (3) evidence of waiver of water quality certification.
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Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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j. Deadline for filing comments, and recommendations, final terms and conditions, and prescriptions is 60 days from the issuance date of this notice; reply comments are due 105 days from the issuance date of this notice.
All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
Comments, recommendations, final terms and conditions, and prescriptions may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site (
k. This application has been accepted for filing and is ready for environmental analysis at this time.
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• (FERC Project No. 67) through Tunnel 5 and into Tunnel 2 leading to Powerhouse No. 2. The Shoo fly was used during the construction of Shaver Lake Dam and Powerhouse No. 2A to keep water off the dam and to get more generation from Powerhouse No. 2. Although not currently in use, the Shoo fly Complex gives SCE the flexibility to divert water from Shaver Lake to Powerhouse No. 2, if required.
m. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
All filings must (1) bear in all capital letters the title “COMMENTS,” “REPLY COMMENTS,” “RECOMMENDATIONS,” “FINAL TERMS AND CONDITIONS,” or “PRESCRIPTIONS;” (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person submitting the filing; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, final terms and conditions, or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). Agencies may obtain copies of the application directly from the applicant. Each filing must be accompanied by proof of service on all persons listed in the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b) and 385.2010.
You may also register online at
n. A license applicant must file no later than 60 days following the date of issuance of this notice: (1) a copy of the water quality certification; (2) a copy of the request for certification, including proof of the date on which the certifying agency received the request; or (3) evidence of waiver of water quality certification.
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Starwood Power-Midway, LLC (Starwood Midway) filed an application for market-based rate authority, with accompanying tariff. The proposed market-based rate schedule provides for the sale of energy, capacity and ancillary services at market-based rates. Starwood Midway also requested waivers of various Commission regulations. In particular, Starwood Midway requested that the Commission grant blanket approval under 18 CFR part 34 of all future issuances of securities and assumptions of liability by Starwood Midway.
On December 19, 2007, pursuant to delegated authority, the Director, Division of Tariffs and Market Development-West, granted the requests for blanket approval under part 34 (Director's Order). The Director's Order also stated that the Commission would publish a separate notice in the
Notice is hereby given that the deadline for filing protests is January 22, 2008.
Absent a request to be heard in opposition to such blanket approvals by the deadline above, Starwood Midway is authorized to issue securities and assume obligations or liabilities as a guarantor, indorser, surety, or otherwise in respect of any security of another person; provided that such issuance or assumption is for some lawful object within the corporate purposes of Starwood Midway compatible with the public interest, and is reasonably necessary or appropriate for such purposes.
The Commission reserves the right to require a further showing that neither public nor private interests will be adversely affected by continued approvals of Starwood Midway's issuance of securities or assumptions of liability.
Copies of the full text of the Director's Order are available from the Commission's Public Reference Room, 888 First Street, NE., Washington, DC 20426. The Order may also be viewed on the Commission's Web site at
Take notice that on December 21, 2007, Tarpon Whitetail Gas Storage, LLC (Whitetail), 3010 Briarpark Drive, Suite 550, Houston, Texas 77042, pursuant to section 7(c) of the Natural Gas Act (NGA) and Parts 157 and 284 of the Commission's regulations, filed an abbreviated application for certificates of public convenience and necessity, seeking authority to own, operate, construct, install, and maintain a high deliverability natural gas storage facility in Monroe County, Mississippi; to provide open-access firm and interruptible storage and hub services in interstate commerce at market-based rates under 18 CFR part 284, subpart G; and to undertake the limited construction and operation activities permitted under 18 CFR part 157, subpart F. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Specifically, Whitetail states that the project will consist of up to twenty injection/withdrawal wells and a total working gas capacity of up to 8.6 billion cubic feet. Whitetail proposes to offer open access firm and interruptible storage and hub services and requests authority to charge market-based rates for its proposed services. The proposed terms and conditions for Whitetail's services are included in the pro forma tariff included in the application.
Any questions regarding this application should be directed to James F. Bowe, Jr., Dewey & LeBoeuf LLP, 975 F Street, NW., Washington, DC 20004-1405 at phone number (202) 862-1000, Fax number (202) 862-1093 or e-mail
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenters will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments protests and interventions via the Internet in lieu of paper. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web (
Environmental Protection Agency.
Notice; request for public comment.
In accordance with section 122(i) of the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (CERCLA), 42 U.S.C. 9622(i), notice is hereby given of a proposed administrative settlement for recovery of past response costs concerning the COLUMBIA AMERICAN PLATING COMPANY Time-Critical Removal Site in Portland, Oregon, with the following settling parties: LAKEA CORPORATION (dba Columbia American Plating Company) and LARRY ANSON, an individual. The settlement requires the settling parties to pay: $15,000.00 to the EPA Hazardous Substance Superfund; the net sale proceeds from selling the site if the settling parties are able to redeem the property out of foreclosure from Multnomah County; and assignment of all rights to insurance claims proceeds to EPA. The settlement includes a covenant not to sue the settling party pursuant to Sections 106 and 107(a) of CERCLA, 42 U.S.C. 9606 and 9607(a). For thirty (30) days following the date of publication of this notice, the Agency will receive written comments relating to the settlement. The Agency will consider all comments received and may modify or withdraw its consent to the settlement if comments received disclose facts or considerations which indicate that the settlement is inappropriate, improper, or inadequate. The Agency's response to any comments received will be available for public inspection at the U.S. EPA Region 10 offices, located at 1200 Sixth Avenue, Seattle, Washington 98101.
Comments must be submitted on or before February 14, 2008.
The proposed settlement is available for public inspection at the U.S. EPA Region 10 offices, located at 1200 Sixth Avenue, Seattle, Washington 98101. A copy of the proposed settlement may be obtained from Carol Kennedy, Regional Hearing Clerk, U.S. EPA Region 10, 1200 Sixth Avenue, Suite 900, Mail Stop ORC-158, Seattle, Washington 98101; (206) 553-0242. Comments should reference the COLUMBIA AMERICAN PLATING Time-Critical Removal Site in Portland, Oregon. EPA Docket No. CERCLA-10-2008-0048 and should be addressed to Lori Cora, Assistant Regional Counsel, U.S. EPA Region 10, Mail Stop ORC-158, 1200 Sixth Avenue, Suite 900, Seattle, Washington 98101.
Lori Cora, Assistant Regional Counsel, U.S. EPA Region 10, Mail Stop ORC-158, 1200 Sixth Avenue, Suite 900, Seattle, Washington 98101; (206) 553-1115.
The COLUMBIA AMERICAN PLATING Site is located at 3003 NW. 35th Avenue, Portland, Oregon (Site). LAKEA CORPORATION (dba as COLUMBIA AMERICAN PLATING) operated a metal plating business.
In May 2003, in response to a request from the State of Oregon's Department of Environmental Quality's Emergency Response and Removal Program, EPA assisted in evaluating and mitigating the imminent threat to human health and the environment posed by hazardous substances and chemicals stored or otherwise handled at the Site. EPA removed approximately 80,000 gallons and 78,260 pounds of hazardous and non-hazardous waste located in tanks, drums, containers, sumps, and secondary containment systems for proper off-site treatment and disposal. EPA also conducted soil, groundwater, and surface water sampling at the Site. The removal was completed in 2004.
This settlement requires LAKEA CORPORATION and LARRY ANSON to pay: $15,000.00 to the EPA Hazardous Substance Superfund; the net sale proceeds from selling the site if the settling parties are able to redeem the property out of foreclosure from Multnomah County; and assignment of all rights to insurance claims proceeds to EPA. This is in settlement of the approximately $1.8 million in past costs incurred by EPA at the Site.
Environmental Protection Agency.
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Comments must be submitted on or before March 17, 2008.
Submit your comments, identified by the Docket ID numbers provided for each item in the text, by one of the following methods:
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Nydia Yanira Reyes-Morales, Environmental Protection Agency, 1200 Pennsylvania Avenue, Mail Code 6403J NW., Washington, DC 20460; telephone number: 202-343-9264; fax number: 202-343-2804; e-mail address:
EPA has established a public docket for each of the ICRs identified in this document (see the Docket ID numbers for each ICR that are provided in the text), which is available for online viewing at
Use
Pursuant to section 3506(c)(2)(A) of the PRA, EPA specifically solicits comments and information to enable it to:
(i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(ii) evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(iii) enhance the quality, utility, and clarity of the information to be collected; and
(iv) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. In particular, EPA is requesting comments from very small businesses (those that employ less than 25) on examples of specific additional efforts that EPA could make to reduce the paperwork burden for very small businesses affected by this collection.
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible and provide specific examples.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Offer alternative ways to improve the collection activity.
6. Make sure to submit your comments by the deadline identified under
7. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
The ICR provides a detailed explanation of the Agency's estimate, which is only briefly summarized here:
• Estimated total number of potential respondents: 68.
• Frequency of response: Annual and quarterly and on occasion.
• Estimated total average number of responses for each respondent: 15.
• Estimated total annual burden hours: 143,604.
• Estimated total annual costs: $13,978,203. This includes an estimated burden cost of $5,484,884 for operation and maintenance costs.
To date, there are no changes in the number of hours in the total estimated respondent burden compared with that identified in the ICR currently approved by OMB. However, EPA is still evaluating information that may lead to a change in the estimates.
The ICR provides a detailed explanation of the Agency's estimate, which is only briefly summarized here:
• Estimated total number of potential respondents: 106.
• Frequency of response: Annual and quarterly and on occasion.
• Estimated total average number of responses for each respondent: 11.
• Estimated total annual burden hours: 81,331.
• Estimated total annual costs: $9,925,673. This includes an estimated burden cost of $1,642,476 for operation and maintenance costs.
To date, there are no changes in the number of hours in the total estimated respondent burden compared with that identified in the ICR currently approved
The ICR provides a detailed explanation of the Agency's estimate, which is only briefly summarized here:
• Estimated total number of potential respondents: 7.
• Frequency of response: Annual and quarterly and on occasion.
• Estimated total average number of responses for each respondent: 10.
• Estimated total annual burden hours: 17,074.
• Estimated total annual costs: $2,326,156. This includes an estimated burden cost of $1,384,025 for operation and maintenance costs.
To date, there are no changes in the number of hours in the total estimated respondent burden compared with that identified in the ICR currently approved by OMB. However, EPA is still evaluating information that may lead to a change in the estimates.
EPA will consider the comments received and amend the ICRs as appropriate. The final ICR package will then be submitted to OMB for review and approval pursuant to 5 CFR 1320.12. At that time, EPA will issue another
Environmental Protection Agency (EPA).
Notice of Workshop.
The EPA is announcing that a workshop entitled “Workshop to Discuss Policy-Relevant Science to Inform EPA's Integrated Plan for the Review of the Primary Carbon Monoxide National Ambient Air Quality Standards” is being organized by EPA's National Center for Environmental Assessment (NCEA), Office of Research and Development and EPA's Office of Air Quality Planning and Standards (OAQPS), Office of Air and Radiation. The workshop will be held on January 28-29, 2008 in Research Triangle Park, North Carolina. The workshop will be open to attendance by interested public observers on a first-come, first-served basis up to the limits of available space.
The workshop will be held on January 28 and 29, 2008.
The workshop will be held at U.S. EPA, 109 T.W. Alexander Drive, Research Triangle Park, North Carolina. An EPA contractor, E.H. Pechan & Associates, Inc., is providing logistical support for the workshop. For further information on the workshops, contact Ms. Barbara Bauer, E.H. Pechan Conference Coordinator, 3622 Lyckan Parkway, Durham, NC 27707, telephone: 919-493-3144 ext. 188; facsimile: 919-493-3182; e-mail:
Questions regarding information, registration, and logistics for the workshop should be directed to the E.H. Pechan conference coordinator listed in
Additional questions regarding the workshop should be directed to Ms. Chris Trent, U.S. EPA, OAQPS, telephone: 919-541-5337; facsimile: 919-541-0237; e-mail:
The Agency's last review of the carbon monoxide (CO) national ambient air quality standards (NAAQS) was completed on August 1, 1994 with a final determination that no revision of the CO standard was appropriate (59 FR 38906). This review of the CO NAAQS is consistent with the Clean Air Act's requirement that the Agency periodically review the latest scientific information and the standards. In completing this review, the Agency will apply the Agency's new NAAQS review process.
We intend that workshop discussions will build upon three prior publications or events:
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2.
3. December 2006 workshop sponsored by NCEA, entitled “Interpretation of Epidemiologic Studies of Multi-pollutant Exposure and Health Effects.” The workshop dealt with important issues relevant to this review, such as the interpretation and understanding of criteria air pollutant health effects analyses in population-level epidemiologic studies, with a focus on multi-pollutant exposures (71 FR 67566, November 22, 2006).
Workshop participants are encouraged to review each of these documents and/or supporting materials thoroughly before the meeting begins, as they provide important insights into new scientific advances and key policy-relevant questions.
Based in large part on the input received during this workshop, EPA will develop a draft integrated CO NAAQS review plan that will outline the schedule, process, and approaches for evaluating the relevant scientific information and addressing the key policy-relevant issues to be considered in this review. The Clean Air Scientific Advisory Committee (CASAC) will be asked to conduct a consultation with the Agency on the draft integrated plan later this year, and the public will have the opportunity to comment on it as well. The final integrated plan will be used to frame each of the major elements of the CO review under the new NAAQS process: an integrated science assessment document, a risk/exposure assessment report, and a policy assessment to be published as an advance notice of proposed rulemaking (ANPR).
Members of the public may attend the workshop as observers. Space is limited, and reservations will be accepted on a first-come, first-served basis.
Board of Governors of the Federal Reserve System (Board).
Notice and request for comment.
In accordance with the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the Board, the Federal Deposit Insurance Corporation (FDIC), and the Office of the Comptroller of the Currency (the “agencies”) may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The Federal Financial Institutions Examination Council (FFIEC), of which the agencies are members, has approved the agencies' publication for public comment of a proposal to extend, with revision, the Report of Assets and Liabilities of U.S. Branches and Agencies of Foreign Banks (FFIEC 002) and the Report of Assets and Liabilities of a Non-U.S. Branch That Is Managed or Controlled by a U.S. Branch or Agency of a Foreign (Non-U.S.) Bank (FFIEC 002S), which are currently approved information collections. The Board is publishing this proposal on behalf of the agencies. At the end of the comment period, the comments and recommendations received will be analyzed to determine the extent to which the FFIEC and the agencies should modify the reports. The Board will then submit the reports to OMB for review and approval.
Comments must be submitted on or before March 17, 2008.
Interested parties are invited to submit written comments to the agency listed below. All comments, which should refer to the OMB control numbers, will be shared among the agencies. You may submit comments, identified by FFIEC 002 (7100-0032) or FFIEC 002S (7100-0273), by any of the following methods:
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Additionally, commenters may send a copy of their comments to the OMB desk officer for the agencies by mail to the Office of Information and Regulatory Affairs, U.S. Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street, NW., Washington, DC 20503, or by fax to 202-395-6974.
Additional information or a copy of the collections may be requested from Michelle E. Shore, Federal Reserve Board Clearance Officer, 202-452-3829, Division of Research and Statistics, Board of Governors of the Federal Reserve System, 20th and C Streets, NW., Washington, DC 20551. Telecommunications Device for the Deaf (TDD) users may call 202-263-4869.
Considering the importance of data quality, the agencies believe that it is most appropriate for the branch or agency's chief financial officer (or the individual performing an equivalent function) to ensure that the FFIEC 002 and FFIEC 002S are reported accurately. The agencies are proposing to revise the existing officer signature requirement so that the FFIEC 002 and FFIEC 002S must be signed by the branch or agency's chief financial officer rather than by any authorized officer of the branch or agency. In signing the FFIEC 002 and FFIEC 002S, the chief financial officer would attest that the reporting forms have been prepared in conformance with the instructions issued by the FFIEC and are true and correct to the best of the officer's knowledge and belief. The agencies would also retain the existing requirement for the branch or agency's senior executive officer to sign the report.
The agencies are also proposing to add contact information (name, title, e-mail address, telephone number, and fax number) for the chief financial officer and another person to whom questions about the reports should be directed to facilitate communication between the agencies and the branch or agency concerning the FFIEC 002 and FFIEC 002S.
The FFIEC 002 balance sheet (Schedule RAL) requires branches and agencies to separately disclose the amount of their “Customers' liability to this branch or agency on acceptances outstanding” (data items 1.g.(1) and 1.g.(2)) and their “Branch or agency liability on acceptances executed and outstanding” (data item 4.d). On the loan schedule (Schedule C) branches and agencies disclose “Holdings of own acceptances included in Schedule C, part I, item 4” (data item M.2). On the derivatives and off-balance-sheet items schedule (Schedule L) branches and agencies disclose “Participations in acceptances conveyed to others by the reporting branch or agency” (data item 5). On the confidential due from/due to related institutions in the U.S. and in Foreign Countries schedule (Schedule M, Part V) branches and agencies disclose “Participations in acceptances conveyed to related depository institutions by the reporting branch or agency” (data item 5). Over time, the volume of acceptance assets and liabilities as a percentage of industry assets and liabilities has declined substantially to a nominal amount, with only a small number of branches and agencies submitting these data items. The agencies are proposing to delete these six data items and branches and agencies would be instructed to include any acceptance assets and liabilities (other than holdings of the reporting branch or agency's own acceptances) in “Other assets” and “Other liabilities,” respectively, on the FFIEC 002 balance sheet.
In column G of Schedule S, “Servicing, Securitization, and Asset Sale Activities,” branches and agencies submit information on securitizations and on asset sales with recourse or other seller-provided credit enhancements involving loans and leases other than those covered in columns A through F. Although the scope of Schedule S was intended to cover all of a branch's or agency's securitizations and credit-enhanced asset sales, as currently structured column G does not capture transactions involving assets other than loans and leases. As a result, securitization transactions involving such assets as securities, for example, have not been submitted in Schedule S. Therefore, the agencies propose to revise the scope of column G to encompass “All Other Loans, All Leases, and All Other Assets” to ensure that they can identify and monitor the full range of branches' and agencies' involvement in and credit exposure to securitizations and asset sales. As a result, column G would begin to reflect securitization transactions involving such assets as securities. With fewer than 5 branches and agencies submitting data on securitizations in column G of Schedule S at present, the proposed change in the scope of column G is expected to affect only a nominal number of branches and agencies.
FFIEC 002 reporters have become increasingly involved in real estate lending and the agencies are proposing that “Loans secured by real estate” (Schedule C, data item 1) be broken out by category in order to better track this activity. The proposed change would also make the FFIEC 002 more consistent with the Call Report. Specifically, the agencies are proposing to add the following categories of loans secured by real estate:
• Construction, land development, and other land loans;
• Loans secured by farmland (including farm residential and other improvements);
• Revolving, open-ended loans secured by 1-4 family residential properties and extended under lines of credit;
• Closed-end loans secured by 1-4 family residential properties;
• Loans secured by multi-family (5 or more) residential properties; and
• Loans secured by nonfarm nonresidential properties.
On September 15, 2006, the Financial Accounting Standards Board (FASB) issued Statement No. 157,
The fair value measurements standard provides guidance on how to measure fair value and requires entities to disclose the inputs used to measure fair value based on a three-level hierarchy for all assets and liabilities that are remeasured at fair value on a recurring basis.
The agencies are proposing to add a new Schedule Q to the FFIEC 002 to collect data, by major asset and liability category, on the total fair value of those assets and liabilities within the category to which a fair value option has been applied along with separate disclosure of the amount of such assets and liabilities within the category whose fair values were estimated under Levels 1, 2, and 3 of the FASB's fair value hiearchy. The schedule would also include an item for each asset and liability category that would allow branches and agencies to report any amounts netted in the determination of total fair value reported for that category on Schedule RAL. The categories are:
• Securities held for purposes other than trading with changes in fair value reported in current earnings;
• Loans and leases;
• All other financial assets and servicing assets;
• Deposit liabilities;
• All other financial liabilities and servicing liabilities; and
• Loan commitments (not accounted for as derivatives).
In addition, the agencies propose to collect fair value data on trading assets and trading liabilities in new Schedule Q from those branches and agencies that reported trading assets (the sum of Schedule RAL, data items 1.f.1 and 1.f.2, column A) of $2 million or more for any of the four preceding quarters.
The agencies are also proposing to add memorandum items to capture the fair value and unpaid principal balance of loans measured at fair value under a fair value option. One set of memorandum items would apply to such loans that are reported in “Other trading assets” (data item 1.f.2) on Schedule RAL and another set would apply to such loans that are reported on Schedule C. These proposed memorandum items would collect data for the following categories of loans:
• Construction, land development, and other land loans;
• Loans secured by farmland (including farm residential and other improvements);
• Revolving, open-ended loans secured by 1-4 family residential
• Closed-end loans secured by 1-4 family residential properties;
• Loans secured by multi-family (5 or more) residential properties;
• Loans secured by nonfarm nonresidential properties;
• Commercial and industrial loans; and
• Other loans.
These additional data items are necessary to enable the agencies to understand the differences between fair value and contractual cash flows for loans to which the fair value option is applied and to improve the agencies' ability to make comparisons among entities that elect a fair value option and those that do not, consistent with proposed Call Report changes.
The Federal Reserve uses data from Schedule E, Deposit Liabilities, to ensure accurate construction of the monetary aggregates for monetary policy purposes. In order to more accurately calculate the monetary aggregates, the agencies propose to revise “Total time deposits of $100,000 or more” (data item M.1.a). Memorandum item 1.a would be revised to exclude brokered time deposits issued in denominations of $100,000 or more that are participated out by the broker in shares of less than $100,000 as well as brokered certificates of deposit issued in $1,000 amounts under a master certificate of deposit (when information on the number of $1,000 amounts held by each of the broker's customers is not readily available to the branch or agency). A corresponding change would be made to Memorandum item 1.c, “Time certificates of deposit of $100,000 or more with remaining maturity of more than 12 months.”
In addition, as a result of the increase in the deposit insurance limit for certain retirement plan deposit accounts from $100,000 to $250,000, a new Memorandum item 1.b, “Individual Retirement Accounts (IRAs) and Keogh Plan accounts included in Memorandum item 1.a, ‘Total time deposits of $100,000 or more,' above,” would be added to Schedule E to separately identify the portion of the total time deposits of $100,000 or more reported in Memorandum item 1.a that represents IRA and Keogh Plan accounts. This new memorandum item is also necessary to support the accurate calculation of the monetary aggregates.
The agencies are proposing a similar instructional change for Schedule O that would direct insured branches to include brokered time deposits, as discussed above, in Memorandum item 1.a, “Deposit accounts of $100,000 or less,” and to exclude these brokered time deposits from Memorandum item 1.b, “Deposit accounts of more than $100,000.”
Branches and agencies currently report the notional amounts of the credit derivatives on which they are the guarantor and on which they are the beneficiary as well as the gross positive and negative fair values of these credit derivatives in Memoranda items 1 and 2 of Schedule L, Derivatives and Off-Balance Sheet Items, and Schedule M, Due from/Due to Related Institutions in the U.S. and in Foreign Countries, Part V. The agencies propose to revise these existing items so that branches and agencies with credit derivatives will provide a breakdown of these notional amounts by type of credit derivative: Credit default swaps, total return swaps, credit options, and other credit derivatives, with those where the branch or agency is the guarantor reported in column A and those where the branch or agency is the beneficiary in column B. Branches and agencies would continue to separately report the gross positive and negative fair values of credit derivatives on which they are the guarantor and the beneficiary without a breakdown by type of credit derivative. The agencies are also proposing to move credit derivatives from a memoranda item to a line item on Schedule L and Schedule M, Part V.
On Schedule RAL, the agencies are proposing to revise the existing breakdowns of federal funds sold and securities purchased under agreements to resell that are reported in data items 1.d.1 and 1.d.2, respectively. First, the counterparty coverage of the federal funds sold and securities resale agreements reported in data items 1.d.1.a and 1.d.2.a would be changed from depository institutions in the U.S. to commercial banks in the U.S. This revision would facilitate the derivation of interbank loans, used for a weekly Federal Reserve release.
Second, the agencies are proposing to add two-way breakdowns of federal funds sold to others, currently reported in data item 1.d.1.b, and securities resale agreements with others, currently reported in data item 1.d.2.b. In the first two-way breakdown, branches and agencies would separately report federal funds sold to nonbank brokers and dealers in securities and federal funds sold to others (including depository institutions in the U.S. other than commercial banks). Similarly, branches and agencies would separately report securities resale agreements with nonbank brokers and dealers in securities and securities resale agreements with others (including depository institutions in the U.S. other than commercial banks). This revision would facilitate the derivation of total security loans, used for a weekly Federal Reserve release.
On the liability side, the agencies are proposing a more limited revision of the existing breakdowns of federal funds purchased and securities sold under agreements to repurchase that are reported in data items 4.b.1 and 4.b.2, respectively. Thus, the counterparty coverage of the federal funds purchased and securities repurchase agreements reported in data items 4.b.1.a and 4.b.2.a would be changed from depository institutions in the U.S. to commercial banks in the U.S. As a result, federal funds purchased from and securities repurchase agreements with depository institutions in the U.S. other than commercial banks would be included in data item 4.b.1.b, “Federal funds purchased from others,” and data item 4.b.2.b, “Securities sold under agreements to repurchase with others,” respectively. This would facilitate the collection of data on borrowings from commercial banks in the U.S. and borrowings from others that is published weekly in Federal Reserve releases. A further breakdown of the “Other borrowed money” reported in data item 4.c of Schedule RAL would not be required since data on such borrowings from commercial banks in the U.S. is already available from Schedule P of the FFIEC 002.
On November 30, 2006, the FDIC published a final rule amending Part 327 of its regulations, “Assessments,” to improve and modernize its operational systems for deposit insurance assessments (71 FR 69270). These amendments to Part 327 revised the definition of the assessment base for deposit insurance purposes to be consistent with Section 3(l) of the Federal Deposit Insurance Act (FDI Act). This was intended to eliminate the need for periodic updates to the FDIC's assessment regulations in response to outside factors and allow a simplification of the associated reporting requirements. In addition, to address timing issues with quarter-end reporting, under amended Part 327, the FDIC will use daily average deposits
In conjunction with these amendments to Part 327 of the FDIC's regulations, the agencies revised and reduced the overall reporting requirements related to deposit insurance assessments in the Call Report in order to simplify regulatory reporting. These assessment data reporting changes included an interim transition period during 2007 with final implementation of the revised Call Report requirements taking place in 2008. The agencies are proposing to make comparable changes to the reporting requirements related to deposit insurance assessments in Schedule O of the FFIEC 002 for those branches of foreign banks that are insured by the FDIC. These proposed revised reporting requirements would contain the following key elements:
• Insured branches would separately report (a) gross deposits as defined in Section 3(l) of the FDI Act (12 U.S.C. 1813(l)) before any allowable exclusions, (b) allowable exclusions, including foreign deposits, and (c) foreign deposits;
• The same data items would be reported for both quarter-end and daily average deposits;
• All insured branches would report using quarter-end deposits, allowable exclusions, and foreign deposits; and
• All insured branches with $1 billion or more in total claims on nonrelated parties, and other insured branches that meet specified criteria, would also report daily averages for deposits, allowable exclusions, and foreign deposits in addition to quarter-end amounts.
The agencies would also provide an interim transition period covering the June 30, 2008, through December 31, 2008, report dates during which insured branches would have the option to submit Schedule O using either the current or revised formats for reporting data for measuring their assessment base. An insured branch that chooses to begin reporting under the revised format in any quarter during the interim period would be required to continue to report under the revised format through the rest of the interim period and would not be permitted to revert back to the current reporting format. The revised reporting format would take effect for all insured branches on March 31, 2009, at which time the current reporting format would be eliminated. Although no insured branch that chose to report under the revised format during the 2008 interim period would be required to report daily averages during this period, any insured branch could elect to report daily averages as of any quarter-end report date (beginning June 30) in 2008. However, once an insured branch begins to report daily averages (even during the interim period), it would be required to continue to report daily averages each quarter thereafter in Schedule O of its FFIEC 002.
At present, 20 items are required in Schedule O of the FFIEC 002 to determine an insured branch's assessment base. As proposed by the agencies, the changes to Schedule O would effectively reduce the number of reported items to as few as two for certain small insured branches (without foreign deposits) and no more than six for other insured branches. Specifically, the agencies propose to replace items 1 through 7 and Memorandum items 4 and 5 (including their subitems) on Schedule O, “Other Data for Deposit Insurance Assessments,” with the following six items:
• Total deposit liabilities before exclusions (gross) as defined in Section 3(l) of the FDI Act and FDIC regulations;
• Total allowable exclusions (including foreign deposits);
• Total foreign deposits (included in total allowable exclusions);
• Total daily average of deposit liabilities before exclusions (gross) as defined in Section 3(l) of the FDI Act and FDIC regulations;
• Total daily average of allowable exclusions (including foreign deposits); and
• Total daily average of foreign deposits (included in total daily average of allowable exclusions).
Thus, instead of starting with total demand deposits and total time and savings deposits as reported in Schedule O of the FFIEC 002 and making adjustments to these reported deposits for purposes of measuring an insured branch's assessment base, which is the present method, the computation of the insured branch's assessment base under the FDIC's amended assessment regulations and these proposed revisions to the FFIEC 002 would start with the gross total deposit liabilities that meet the statutory definition of deposits in Section 3(l) of the FDI Act before any allowable exclusions from the definition. The total amount of allowable exclusions from the assessment base would be reported separately for any insured branch that maintains such records as will readily permit verification of the correctness of its assessment base. The allowable exclusions, which are set forth in Section 3(l)(5) and other sections of the FDI Act and in the FDIC's regulations, include foreign deposits (including International Banking Facility deposits), reciprocal balances, drafts drawn on other depository institutions, pass-through reserve balances, depository institution investment contracts, and deposits accumulated for the payment of personal loans that are assigned or pledged to assure payment at maturity. The net amount of unposted debits and credits would no longer be considered within the definition of the assessment base.
The agencies believe that the amount of gross total deposit liabilities that meet the statutory definition of deposits is typically found in and supported by the control totals in an insured branch's deposit systems that provide the detail sufficient to track, control, and handle inquiries from depositors about their specific individual accounts. These deposit systems can be automated or manual. In any case, control totals for deposit liabilities should be readily available, which should ease an insured branch's transition to the revised Schedule O reporting requirements. Compared to the amount of information that an insured branch currently reports in order to determine its assessment base, the proposed changes to the Schedule O reporting requirements should also facilitate the reporting of daily averages for deposits and allowable exclusions since many of the presently reported adjustments will not need to be tracked and averaged separately.
In addition to quarter-end balance reporting, insured branches that meet certain criteria would be required to report average daily deposit liabilities, average daily allowable exclusions, and average daily foreign deposits to determine their assessment base effective March 31, 2009. The amounts to be reported would be averages of the balances as of the close of business for each day for the calendar quarter. For days that an insured branch is closed (e.g., Saturdays, Sundays, or holidays), the amounts outstanding from the previous business day would be used. An insured branch is considered closed if there are no transactions posted to the general ledger as of that date.
The agencies are proposing to require an insured branch to report daily averages beginning March 31, 2009, if it reports $1 billion or more in total claims on nonrelated parties in data item 1.i, column A, of Schedule RAL of the FFIEC 002 for March 31, 2008,
Under this proposal, insured branches will continue to report information on the number and amount of deposit accounts, the estimated amount of uninsured deposits (if total claims on nonrelated parties are $1 billion or more), and preferred deposits in Memorandum items 1 through 3 of Schedule O. However, the agencies are proposing to reduce the reporting frequency for the memorandum item for preferred deposits. This memorandum item would be reported only as of December 31 each year, which is consistent with the reporting frequency in the Call Report, rather than quarterly as at present.
For Schedule E, Column D, branches and agencies report all deposit liabilities of their International Banking Facilities (IBF). A footnote on the reporting form indicates that amounts in this column should exclude those IBF liabilities to be reported as federal funds purchased and securities sold under agreements to repurchase or as other borrowed money. In contrast, the FFIEC 002 instructions for Schedule E state that branches and agencies should “[r]eport in column D all deposit liabilities of the branch or agency's International Banking Facility liabilities, regardless of whether they are transaction or nontransaction accounts. For purposes of this report, IBF deposit liabilities include deposits, placements, borrowings and similar obligations represented by promissory notes, acknowledgements of advance, or similar instruments that are
On November 15, 2007, the Securities and Exchange Commission (SEC) approved amendments to its rules that would allow foreign private issuers to file financial statements prepared using International Financial Reporting Standards (IFRS) as issued by the International Accounting Standards Board without a reconciliation to U.S. generally accepted accounting principles (GAAP). The agencies have received a number of questions concerning the potential use of IFRS in regulatory reports, including the FFIEC 002 and FFIEC 002s.
The current reporting basis for the FFIEC 002 and FFIEC 002s is GAAP. The agencies are evaluating the potential use of IFRS in the FFIEC 002 and FFIEC 002S. As part of this analysis, the agencies request comment on the following:
(a) The ability of respondents to prepare the FFIEC 002 and FFIEC 002s based on IFRS as issued by the International Accounting Standards Board;
(b) The degree to which respondents would need the agencies to provide specific reporting instructions to supplement IFRS to accurately prepare the FFIEC 002 and FFIEC 002s; and
(c) The amount of time respondents would need to prepare their systems, personnel, and processes to transition from the current GAAP-based FFIEC 002 and FFIEC 002S to IFRS-based reports.
Comments are invited on:
a. Whether the information collections are necessary for the proper performance of the agencies' functions, including whether the information has practical utility;
b. The accuracy of the agencies' estimate of the burden of the information collections, including the validity of the methodology and assumptions used;
c. Ways to enhance the quality, utility, and clarity of the information to be collected;
d. Ways to minimize the burden of the information collections on respondents, including through the use of automated collection techniques or other forms of information technology; and
e. Estimates of capital or start up costs and costs of operation, maintenance, and purchase of services to provide information.
Comments submitted in response to this notice will be shared among the agencies. All comments will become a matter of public record. Written comments should address the accuracy of the burden estimate and ways to minimize burden including the use of automated collection techniques or the use of other forms of information technology as well as other relevant aspects of the information collection request.
In accordance with § 271.25 of its rules regarding availability of information (12 CFR part 271), there is set forth below the domestic policy directive issued by the Federal Open Market Committee at its meeting held on December 11, 2007.
The Federal Open Market Committee seeks monetary and financial conditions that will foster price stability and promote sustainable growth in output. To further its long-run objectives, the Committee in the immediate future seeks conditions in reserve markets consistent with reducing the federal funds rate at an average of around 4
Department of Health and Human Services, Office of the Secretary.
Notice.
As stipulated by the Federal Advisory Committee Act, the Department of Health and Human Services (DHHS) is hereby giving notice that the National Vaccine Advisory Committee (NVAC) will hold a meeting. The meeting is open to the public.
The meeting will be held on February 5, 2008, from 9 a.m. to 5 p.m., and on February 6, 2008, from 9 a.m. to 5 p.m.
Department of Health and Human Services; Hubert H. Humphrey Building, Room 800; 200 Independence Avenue, SW., Washington, DC 20201.
Ms. Emma English, Program Analyst, National Vaccine Program Office, Department of Health and Human Services, Room 443-H Hubert H. Humphrey Building, 200 Independence Avenue, SW., Washington, DC 20201; (202) 690-5566,
Pursuant to Section 2101 of the Public Service Act (42 U.S.C. 300aa-1), the Secretary of Health and Human Services was mandated to establish the National Vaccine Program to achieve optimal prevention of human infectious diseases through immunization and to achieve optimal prevention against adverse reactions to vaccines. The National Vaccine Advisory Committee was established to provide advice and make recommendations to the Assistant Secretary for Health, as the Director of the National Vaccine Program, on matters related to the program's responsibilities.
Topics to be discussed at the meeting include adult and adolescent immunization, vaccine supply, vaccine financing, seasonal influenza, and other Departmental vaccine priorities. A tentative agenda is currently available on the NVAC Web site:
Public attendance at the meeting is limited to space available. Individuals must provide a photo ID for entry into the Humphrey Building. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the designated contact person. Members of the public will have the opportunity to provide comments at the meeting. Public comment will be limited to five minutes per speaker. Any members of the public who wish to have printed material distributed to NVAC members should submit materials to the Executive Secretary, NVAC, through the contact person listed above prior to close of business January 30, 2008. Pre-registration is required for both public attendance and comment. Any individual who wishes to attend the meeting and/or participate in the public comment session should e-mail
Department of Health and Human Services, Office of the Secretary, Office of Public Health and Science, Office of Disease Prevention and Health Promotion.
Notice of Meeting.
The U.S. Department of Health and Human Services (HHS) announces the first in a series of federal advisory committee meetings regarding the national health promotion and disease prevention objectives for 2020 to be held in Washington, DC. These meetings will be open to the public. The Secretary's Advisory Committee on National Health Promotion and Disease Prevention Objectives for 2020 will review the nation's health promotion and disease prevention objectives and efforts to develop goals and objectives to improve the health status and reduce health risks for Americans by the year 2020. The Committee will provide to the Secretary of Health and Human Services advice and consultation for developing and implementing the next iteration of national health promotion and disease prevention goals and objectives and provide recommendations for initiatives to occur during the initial implementation phase of the goals and objectives. HHS will use the recommendations to inform the development of the national health promotion and disease prevention objectives for 2020 and the process for implementing the objectives. The intent is to develop and launch objectives designed to improve the health status and reduce health risks for Americans by the year 2020.
The Committee will meet for two days: January 31, 2008 from 9 a.m. until 5:30 p.m., and on February 1, 2008 from 8:30 a.m. until 5 p.m.
The meeting will be held at the U.S. Department of Health and Human Services, Hubert H. Humphrey Building, located at 200 Independence Avenue, SW., Room 800, Washington, DC 20201.
Emmeline Ochiai, Designated Federal Officer, Secretary's Advisory Committee on National Health Promotion and Disease Prevention Objectives for 2020, U.S. Department of Health and Human Services, Office of Public Health and Science, Office of Disease Prevention and Health Promotion, 1101 Wootton Parkway, Room LL-100, Rockville, MD 20852, (240) 453-8259 (telephone), (240) 453-8281 (fax). Additional information is available on the Internet at
The names of the 13 members of the Secretary's Advisory Committee on National Health Promotion and Disease Prevention Objectives for 2020 are available at
To observe the Committee meeting, individuals must pre-register to attend the Secretary's Advisory Committee on National Health Promotion and Disease Prevention Objectives for 2020 at the Healthy People Web site located at
Registration questions may be directed to Hillary Scherer at
Section 1201(a)(2)(A) of the IAATP legislation requires grantees to develop and deliver trainings that are consistent with the
Data collected through the proposed survey will enable ACF to objectively assess the knowledge and skills gained, retained, and applied by trainees as a result of their participation in the Infant Adoption Awareness Training Program, and will answer the following research questions:
1. Do health care workers who participate in the IAATP training:
• Demonstrate enhanced knowledge, attitudes, skills, and behaviors with respect to adoption counseling following completion of the program?
• Provide adoption information to pregnant women on an equal basis with other pregnancy planning options?
• Demonstrate enhanced awareness of community adoption-related resources and refer expectant mothers to them as needed?
2. Are trainees more confident about discussing all three pregnancy planning options (parenting, abortion, and adoption) in a non-directive counseling style than they were prior to participating in the training?
Cross-site evaluation data will be collected on an annual basis throughout the five-year funding period. Pre-test and follow-up versions of the survey are expected to require approximately 10 to 15 minutes to complete. Estimated response time for the follow-up survey includes time for respondents to access the web-based survey, complete the survey online, and electronically submit the survey. Respondents will not need to implement a recordkeeping system or compile source data in order to complete the survey. Where possible, fields in the follow-up version of the survey will be pre-filled with static data from the respondent's pre-test (e.g., demographics, agency type) in order to further expedite completion of the survey and minimize respondent burden.
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is publishing the following summary of a proposed collection for public comment. Copies of the proposed collection of information can be requested from L'Enfant Promenade, SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. E-mail address:
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
To initiate a review, States will submit the completed SACWIS Assessment Review Guide (SARGE) and other documentation at the point that they have completed system development and the system is operational statewide. The additional documents submitted as part of this process should all be readily available to the State as a result of good project management practices.
The information collected in the SACWIS Assessment Review Guide will allow State and Federal officials to determine if the State's SACWIS meets the requirements of title IV-E Federal Financial Participation (FFP) defined at 45 CFR 1355.50. Additionally, other States will be able to use the documentation provided as part of this review process in their own system development efforts.
In compliance with the requirements of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Information Services, 370 L'Enfant Promenade, SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. All requests should be identified by the title of the information collection.
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by February 14, 2008.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, FAX: 202-395-6974, or e-mailed to
Jonna Capezzuto, Office of the Chief Information Officer (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-4659.
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
The Program Standards define nine essential elements of an effective regulatory program for retail food establishments, establish basic quality control criteria for each element, and provide a means of recognition for those state, local, and tribal regulatory programs that meet the Program Standards. The program elements addressed by the Program Standards are as follows: (1) Regulatory foundation, (2) trained regulatory staff, (3) inspection program based on Hazard Analysis and Critical Control Point (HACCP) principles, (4) uniform inspection program, (5) foodborne illness and food defense preparedness and response, (6) compliance and enforcement, (7) industry and community relations, (8) program support and resources, and (9) program assessment. Each standard includes a list of records needed to document compliance with the standard (referred to in the Program Standards document as “quality records”) and has one or more corresponding appendices that contain forms and worksheets to facilitate the collection of information needed to assess the retail food regulatory program against that standard. The respondents are state, local and tribal government agencies. Regulatory agencies may use existing, available records or may choose to develop and use alternate forms and worksheets that capture the same information.
In the course of their normal activities, state, local, and tribal regulatory agencies already collect and keep on file many of the records needed as quality records to document compliance with each of the Program Standards. Although the detail and format in which this information is collected and recorded may vary by jurisdiction, records that are kept as a usual and customary part of normal agency activities include inspection records, written quality assurance procedures and records of quality assurance checks, staff training certificates and other training records, a log or database of food-related illness or injury complaints, records of investigations resulting from such complaints, an inventory of inspection equipment, records of outside audits, and records of outreach efforts (e.g., meeting agendas and minutes, documentation of food safety education activities). No new recordkeeping burden is associated with these existing records, which are already a part of usual and customary program recordkeeping activities by state, local, and tribal regulatory agencies, and which can serve as quality records under the Program Standards.
State, local, and tribal regulatory agencies that enroll in the Program Standards and seek listing in the FDA National Registry are required to report to FDA on the completion of the following three management tasks outlined in the Program Standards: (1) Conducting a program self assessment; (2) conducting a baseline survey of the regulated industry; and (3) obtaining an independent outside audit (verification audit). All three tasks must initially be completed within a 3-year time span. The results are reported to FDA on Form FDA 3519, “FDA National Registry Report” and Form FDA 3520, “Permission to Publish in National Registry.” These forms are located in Appendix I of the Program Standards document. If a regulatory agency follows all the recordkeeping recommendations in the individual standards and their appendices, it will have all the information needed to complete the forms. The time required to complete the forms is minimal.
In the
In April 2006, the Conference for Food Protection approved changes to the Program Standards that have been incorporated into a draft 2007 revision, which is available at
FDA's recordkeeping burden estimate includes time required for a State, local, or tribal agency to review the instructions in the Program Standards, compile information from existing sources, and create any records recommended in the Program Standards that are not already kept in the normal course of the agency's usual and customary activities. Worksheets (Appendices) are provided to assist in this compilation. In estimating the time needed for the program self-assessment (Program Standards 1-8, shown in chart 1 of this document), FDA considered responses from four state and three local jurisdictions that participated in an FDA Program Standards Pilot study. Chart 2 of this document shows the estimated recordkeeping burden for the completion of the baseline data collection and chart 3 of this document shows the estimated recordkeeping burden for the verification audit.
The overall program improvement cycle is a 3-year period for completion of all three management tasks.
FDA estimated the annual hours per recordkeeper (i.e., per enrolled jurisdiction) in table 1 of this document by adding the recordkeeping estimates for the management tasks of self assessment, baseline data collection, and verification audit (charts 1, 2, and 3 of this document) that enrolled jurisdictions must perform during a 3-year cycle (92.3 + 333 + 46.15 = 471.45, then dividing the total by three to obtain an annual average (471.45 / 3 = 157.1). The estimates in tables 1 and 2 of this document are based on the estimated participation of 500 regulatory jurisdictions in the Program Standards. Table 1 shows an increase of 50 hours in the overall recordkeeping burden estimate based on a 0.1 increase in the estimate of annual hours per recordkeeper in the 2007 document. There are approximately 3,000 jurisdictions in the United States and its territories that have retail food regulatory programs. Enrollment in the Program Standards is voluntary, and therefore FDA does not expect all jurisdictions to participate in the near future. In its 2002 operational plan, the FDA National Retail Food Team established a goal of enrolling 15 percent of eligible agencies, or 450 programs, in the Program Standards by the year 2010. For purposes of this burden estimate, it is reasonable to take into account the possibility that this goal could be exceeded by approximately 10 percent, for a total of approximately 500 participating agencies.
Thus, FDA estimates the recordkeeping burden for this collection of information as follows:
Based on the number and nature of the items that need to be completed, FDA estimates a total of 12 minutes annually for each enrolled jurisdiction to complete both FDA Form 3519, “FDA National Registry Report,” and Form 3520, “Permission to Publish in National Registry.” Form 3519 requires the name and address of the jurisdiction; completion dates for the self assessment, baseline survey (original and update), and verification audit; names of the person(s) who completed the self-assessment, verification audit, baseline survey, baseline survey update, and action plan; signature of the program manager; and date the form was completed. Form 3520 requires the name of the jurisdiction, completion date of the self assessment, date of the verification audit report, name of the auditor, signature and title of the official completing the form, and date the form was completed.
FDA has added a line and 150 hours to table 2, due to the changes to the Program Standards approved by the 2006 Conference for Food Protection. Based on the two forms required for the ATN, the nature of the items that need to be completed, and the number of new hires, FDA estimates a total of 150 hours annually for completion of the completion ATN Field Training Worksheet and Documentation of Successful Completion — Field Training Process; (500 jurisdictions with 3 new hires per year at 6 minutes for completion of all forms equals 150 hours per year for completion of both Summary forms). As explained previously in this document, FDA estimates that 500 regulatory jurisdictions will enroll in the Program Standards. The reporting burden in table 2 of this document includes only the time necessary to fill out and send the forms, as compiling the underlying information (including self-assessment reports, baseline surveys, outside audits, and supporting documentation) is accounted for under the recordkeeping estimates in table 1 of this document.
Thus, FDA estimates the reporting burden for this collection of information as follows:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal agencies are required to publish notice in the
Submit written or electronic comments on the collection of information by March 17, 2008.
Submit electronic comments on the collection of information to:
Denver Presley Jr., Office of the Chief Information Officer (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1472
Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
The FDA Amendments Act of 2007 includes the “Medical Device User Fee Amendments of 2007” (the 2007 Amendments), which reauthorizes medical device user fees for fiscal years (FY) 2008 through 2012 and which makes significant changes to the medical device user fee provisions of the act. The 2007 Amendments provide a new way for a foreign business to qualify as a small business eligible to pay a significantly-lower fee when a medical device user fee must be paid.
Before passage of the 2007 Amendments, the only way a business could qualify as a small business was to submit a Federal (U.S.) income tax return showing its gross receipts or sales that did not exceed a statutory threshold, currently, $100 million. If a business could not provide a Federal income tax return, it did not qualify as a small business and had to pay the standard (full) fee. Because many foreign businesses have not, and cannot, file a Federal (U.S.) income tax return, this requirement has effectively prevented those businesses from qualifying for the small business fee rates. Thus, foreign governments, including the European Union, have objected.
In lieu of a Federal income tax return, the 2007 Amendments will allow a foreign business to qualify as a small
• Be in English;
• Be from the national taxing authority of the country in which the business is headquartered;
• Provide the business' gross receipts or sales for the most recent year, in both the local currency and in U.S. dollars, and the exchange rate used in converting local currency to U.S. dollars;
• Provide the dates during which the reported receipts or sales were collected; and
• Bear the official seal of the national taxing authority.
The new FDA Form 3602A, “FY 2008 MDUFMA Foreign Small Business Qualification Certification,” will collect the information required by the statute and allows a foreign business to qualify for the same small business benefits as a domestic U.S. business.
FDA estimates the burden of this collection of information as follows:
This burden estimate is based on an examination of 510(k) premarket notifications received during FY 2006 and FDA's estimation of the time to collect the required information to complete FDA Form 3602A. The evidence supporting each FDA Form 3602A must be reviewed by a foreign national taxing authority to complete Section III, the National Taxing Authority Certification, of each FDA Form 3602A. Because this is a new activity, and neither FDA nor any foreign national taxing authority has any data that would provide an objective measure of the effort required to complete Section III, FDA is estimating that the burden will be the same as FDA experiences in reviewing FDA Form 3602, “FY 2008 MDUFMA Small Business Qualification Certification For a Business Headquartered in the United States,” approved under OMB control number 0910-0508.
FDA believes most entities that submit FDA Form 3602A will not have any affiliates, and very few will have more than three or four affiliates. Based on our experience with FDA Form 3602, FDA believes each business will require 1 hour to complete Sections I and II. Because this is a new requirement, FDA does not have any data on the time that will be required to complete Section III, the National Taxing Authority Certification.
Please note that in January 2008, the FDA Web site is expected to transition to the Federal Dockets Management System (FDMS). FDMS is a Government-wide, electronic docket management system. After the transition date, electronic submissions will be accepted by FDA through the FDMS only. When the exact date of the transition to FDMS is known, FDA will publish a
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal agencies are required to publish notice in the
Submit written or electronic comments on the collection of information by March 17, 2008.
Submit electronic comments on the collection of information to:
Jonna Capezzuto, Office of the Chief Information Officer (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-4659.
Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined
With respect to the collection of information, FDA invites comments on these topics: (1) the clarity and ease of use of this proposed common application form; (2) whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (3) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (4) ways to enhance the quality, utility, and clarity of the information to be collected; and (5) ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques, when appropriate, and other forms of information technology.
Sections 525 and 526 of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 360aa and 360dd) give FDA statutory authority to do the following: (1) Provide recommendations on investigations required for approval of marketing applications for orphan drugs, (2) designate eligible drugs as orphan drugs, (3) set forth conditions under which a sponsor of an approved orphan drug obtains exclusive approval, and (4) encourage sponsors to make orphan drugs available for treatment on an “open protocol” basis before the drug has been approved for general marketing. The implementing regulations for these statutory requirements have been codified under part 316 (21 CFR part 316) and specify procedures that sponsors of orphan drugs use in availing themselves of the incentives provided for orphan drugs in the act and sets forth procedures FDA will use in administering the act with regard to orphan drugs. Section 316.10 specifies the content and format of a request for written recommendations concerning the non-clinical laboratory studies and clinical investigations necessary for approval of marketing applications. Section 316.12 provides that, before providing such recommendations, FDA may require results of studies to be submitted for review. Section 316.14 contains provisions permitting FDA to refuse to provide written recommendations under certain circumstances. Within 90 days of any refusal, a sponsor may submit additional information specified by FDA. Section 316.20 specifies the content and format of an orphan drug application which includes requirements that an applicant document that the disease is rare (affects fewer than 200,000 persons in the United States annually) or that the sponsor of the drug has no reasonable expectation of recovering costs of research and development of the drug. Section 316.26 allows an applicant to amend the applications under certain circumstances. Section 316.30 requires submission of annual reports, including progress reports on studies, a description of the investigational plan, and a discussion of changes that may affect orphan status. The information requested will provide the basis for an FDA determination that the drug is for a rare disease or condition and satisfies the requirements for obtaining orphan drug status. Secondly, the information will describe the medical and regulatory history of the drug. The respondents to this collection of information are biotechnology firms, drug companies, and academic clinical researchers.
The information requested from respondents represents, for the most part, an accounting of information already in the possession of the applicant. It is estimated, based on frequency of requests over the past 5 years, that 171 persons or organizations per year will request orphan-drug designation and none will request formal recommendations on design of preclinical or clinical studies.
The Common EMEA/FDA Application Form for Orphan Medicinal Product Designation (form FDA 3671) is intended to benefit sponsors who desire to seek orphan designation of drugs intended for rare diseases or conditions from both the European Commission and FDA by reducing the burden of preparing separate applications to meet the regulatory requirements in each jurisdiction. It highlights the regulatory cooperation between the United States (US) and the European Union (EU) mandated by the Transatlantic Economic Council (TEC). The TEC mandate involves the following: (1) Removal of barriers to transatlantic commerce; (2) rationalizing, reforming, and, where appropriate, reducing regulations to empower the private sector; (3) achieving more effective, systematic, and transparent regulatory cooperation to reduce costs associated with regulation to consumers and producers; (4) removing unnecessary differences between jurisdictional regulations to foster economic integration; and (5) reinforcing the existing transatlantic dialogue structures in regulatory cooperation, both by intensifying our sector-by-sector US-EU regulatory cooperation and our dialogue between OMB and the European Commission services on methodological issues.
At present, when seeking orphan designation of the same drug for the diagnosis, treatment, or prevention of the same rare disease or condition in the US and in the European Community, a sponsor must submit a designation request to FDA (in accordance with section 526 of the act) and a separate designation application to EMEA (in accordance with Regulation (EC) No. 141/2000 of December 16, 1999, and Commission Regulation (EC) No. 847/2000). In most cases, the two documents are formatted differently to meet regulatory demands, but the required core information elements are similar, with the exception of some unique regulatory requirements exclusive to each jurisdiction. Therefore, FDA and EMEA believe that a common application form will help reduce the sponsor's regulatory burden and costs to produce and submit differently-formatted request/application. In addition, a common application form may also streamline the administrative and substantive regulatory review processes, and aid in information exchange between the agencies. In accordance with the Confidentiality Arrangements concluded on September 12, 2003, between the European Commission, EMEA, and FDA/Department of Health and Human Services (DHHS),
Any sponsor seeking orphan designation of the same drug for the same disease or condition from both FDA and EMEA may use this common application form for regulatory filing purposes. A sponsor may also use this
To use the common application form, the sponsor must provide the required information in each applicable section as instructed in the explanatory notes. Certain information elements are identified in the form as required exclusively by either FDA or EMEA regulations, and as such they must be included only in the application to that jurisdiction. Where additional explanations and/or supportive documents are necessary, the sponsor should sequentially append them at the end of the common application form in the order they appear in the form. The sponsor must also complete the declaration and signature page. For FDA, the completed common application form and required appended documents must be submitted to the Office of Orphan Products Development (HF-35), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857. For EMEA, the completed documents must be submitted to European Medicines Agency, 7 Westferry Circus, Canary Wharf, London E14 4HB, United Kingdom.
FDA estimates the reporting burden of this common application form as follows. Between January 2000 and May 2006, FDA and EMEA received 226 comparable orphan designation requests/applications of the same drugs for the same diseases or conditions, or an average of 35 per year. With the ease of a common application form, FDA anticipates the number of such requests/applications may increase over time. Therefore, generally there is one request/application per respondent and, at the extreme, all respondent are US-based, FDA believes up to 40 such respondents may use the common application form each year. The respondents will be primarily pharmaceutical companies or other for-profit organizations. For applications submitted exclusively to FDA, we do not believe the new form will result in any increased burden on the respondents and therefore we estimate no additional burden for those respondents. FDA believes the information required for the EMEA submission, for the most part, is very similar to that in the FDA submission, which is already in the respondents' possession. The respondents, however, may have to search existing data sources or gather additional needed data, such as on the prevalence or the availability of alternative methods of diagnosis, prevention, and treatment of the rare disease or condition of interest in the European Community, to complete the EMEA submission. FDA estimates that it will take an additional 32 hours—16 hours of professional time and 16 hours of support time—to compile information required for the EMEA submission. Hence, the estimated total annual human resource hours, at most, would be 1,280 hours for the EMEA submission.
FDA estimates the burden of this collection of information as follows:
Please note that in January 2008, the FDA Web site is expected to transition to the Federal Dockets Management System (FDMS). FDMS is a Government-wide, electronic docket management system. After the transition date, electronic submissions will be accepted by FDA through the FDMS only. When the exact date of the transition to FDMS is known, FDA will publish a
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Patent Term Restoration, Due Diligence Petitions, Filing, Format, and Content of Petitions” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
Karen L. Nelson, Office of the Chief Information Officer (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-4816.
In the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing a tentative schedule of forthcoming meetings of its public advisory committees for 2008. During 1991, at the request of the Commissioner of Food and Drugs (the Commissioner), the Institute of Medicine (the IOM) conducted a study of the use of FDA's advisory committees. In its final report, one of the IOM's recommendations was for the agency to publish an annual tentative schedule of its meetings in the
Theresa L. Green, Advisory Committee Oversight and Management Staff (HF-4), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1220.
The IOM, at the request of the Commissioner, undertook a study of the use of FDA's advisory committees. In its final report in 1992, one of the IOM's recommendations was for FDA to adopt a policy of publishing an advance yearly schedule of its upcoming public advisory committee meetings in the
The following list announces FDA's tentatively scheduled advisory committee meetings for 2008. You may also obtain up-to-date information by calling the Advisory Committee Information Line, 1-800-741-8138 (301-443-0572 in the Washington, DC area).
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an amendment to the notice of meeting of the Drug Safety and Risk Management Advisory Committee. This meeting was announced in the
Teresa A. Watkins, Center for Drug Evaluation and Research (HFD-21), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-7001, FAX: 301-827-6776, e-mail:
In the
This notice is issued under the Federal Advisory Committee Act (5 U.S.C. app. 2) and 21 CFR part 14, relating to the advisory committees.
Health Resources and Services Administration, HHS.
Notification of Exception to Competition.
The Health Resources and Services Administration (HRSA) is issuing a non-competitive program expansion supplement to the National Health Care for the Homeless Council (NHCHC) to provide expanded training and technical assistance to HRSA-funded grantees serving individuals who are homeless.
Catalog of Federal Domestic Assistance Number: 93.224.
The NHCHC requires supplemental funding to provide, through expanded regional and national training activities, a broader and enriched menu of support for HRSA grantees, including Health Care for the Homeless (HCH) administrators, clinicians, and members of HCH Boards of Directors and consumer advisory groups.
Jean L. Hochron, M.P.H., Director, Office of Minority and Special Populations, Bureau of Primary Health Care, Health Resources and Services Administration, 5600 Fishers Lane, Room 16-105, Rockville, MD 20857;
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), notice is hereby given of the following meeting:
Agenda items are subject to change as priorities indicate.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), notice is hereby given of the following meeting:
Health Resources and Services Administration, HHS.
Notice for public comment.
The Health Resources and Services Administration (HRSA) is seeking comments from the public on its plan to institute a permanent deviation from a policy in the Department of Health and Human Services (HHS), Grants Policy Directive (GPD) 3.01 governing indirect cost recovery for one of its grant programs. The GPD states “HHS considers activities conducted by grantees that result in indirect charges a necessary and appropriate part of HHS grants, and HHS awarding offices must reimburse their share of these costs.” Although HRSA typically reimburses grantees for their full share of administrative overhead represented in approved indirect cost rates (which can be up to 50 percent or higher), the Agency believes, in the case of its Small Rural Hospital Improvement Grant Program (SHIP), that full recovery of overhead expenditures would be detrimental to the ability to adequately conduct the activities mandated in the authorizing legislation.
The purpose of the SHIP grant program is to assist eligible small rural hospitals in implementing Prospective Payments Systems (PPS), compliance with the Health Insurance Portability and Accountability Act (HIPAA) regulations, and to reduce medical
It is in the best interest of the SHIP grant program to limit the total administrative cost recovery to 5 percent of the Federal award, thereby allowing 95 percent of available grant funds to be used to carry out the required program activities. Since the SHIP grant program began in FY 02, through FY 07, the administrative costs have been restricted. Indirect costs were not allowed and there was a five percent maximum of other costs, for administrative costs, within the grant guidance. The SORHs voluntarily decided to limit these cost categories. For FY 07, the average administrative charge was only 3.64 percent. Thus, the cap on administrative costs has worked well. Limiting administrative costs is necessary because 20 percent of SHIP grantees are located in academic settings that have established indirect cost rates in the range of 30 to 50 percent. Without a limitation on the amount of grant funds allocated for administrative costs, the SORH grantee could potentially charge its full indirect cost rate and the grant awards would be significantly less for each small rural hospital. As much as 50 percent of the grant award could be consumed by indirect costs, depending upon the host institution's indirect cost rate. This would significantly reduce the amount of funds available to initiate and maintain the activities of the grant. A limitation on administrative costs will ensure that each hospital, not an unintended source, receives the maximum amount of funding.
The limitations placed on these cost categories will ensure that the majority of funding is routed to the small rural hospitals, to be used for the prescribed intents and purposes of the grant program. A continued limitation on administrative costs for future SHIP grant cycles will help to assure that small rural hospitals receive the appropriated support, necessary to carry out the objectives of the grant program. The limitation would be applicable to all grantees of the Small Rural Hospital Improvement Grant Program.
If you wish to comment on any portion of this notice, HRSA must receive comments by February 14, 2008.
You may submit comments by any of the following methods:
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Jennifer Chang, at the above address, telephone number 301-443-0835.
The HRSA SHIP grant program is authorized by Section 1820(g)(3) of the Social Security Act, 42 U.S.C. 1395i-4. The purpose of the SHIP grant program is to help small rural hospitals perform any or all of the following: (1) Pay for costs related to implementation of PPS, (2) comply with HIPAA provisions of 1996 and (3) reduce medical errors and support quality improvement.
The SHIP grant program funds are geared towards assisting small rural hospitals that are essential access points for Medicare and Medicaid beneficiaries. Eligible small rural hospitals (49 available beds or less) are non-Federal, short-term general acute care facilities that are located in a rural area of the U.S. and the territories, including faith-based hospitals.
Because of the large number of hospitals and relatively small size of each award, the SHIP funds are routed through the SORH, then to individual hospitals. Eligible hospitals must submit a hospital application to their SORH, by the designated deadline, to receive funding. The SORH is the official grantee of record and acts as a fiscal intermediary for all hospitals within their State. In turn, the SORH verifies hospital eligibility and submits a single grant application to the Federal Government on behalf of all eligible hospital applicants in the State.
Since the SHIP program began in FY 02, through FY 07, the administrative costs have been restricted. Indirect costs were not allowed and there was a five percent maximum of other costs, for administrative charges, within the grant guidance. The limitations were placed on these cost categories to ensure that the majority of funding would be routed to the hospitals, to be used for the prescribed intents and purposes of the grant program. For FY 07, the SHIP grant program allocated $14,508,691 to a total of 1,622 hospitals in 46 States, which is about $8,945 per hospital. Without a limitation on the amount of grant funds allocated for administrative costs, the grantee could potentially charge its full indirect cost rate, thereby significantly reducing the funds available to small rural hospitals. Approximately 20 percent of the SORHs are housed in universities, which have established indirect cost rates ranging from 30 to 50 percent, or higher. Limiting the administrative cost recovery will continue to help ensure that small rural hospitals are continuously provided the support necessary to carry out the objectives of the grant program.
To maintain the limit on all administrative costs in the 2008 grant funding opportunity guidance, a request to deviate from the HHS GPD 3.01, Indirect Costs and Other Cost Policies was required. Such a request was submitted and approved by the HHS, Office of Grants Policy, Oversight and Evaluation, Assistant Secretary for Resources and Technology in November, 2007.
HRSA invites public comment on its intent to indefinitely limit the total administrative cost recovery to five percent of the Federal award for awardees of the Small Rural Hospital Improvement Grant Program.
Health Resources and Services Administration, HHS.
Notice; request for public comment.
The Health Resources and Services Administration (HRSA) is seeking comments from the public on its plan to institute a permanent deviation from a policy in the Department of Health and Human Services (HHS), Grants Policy Directive (GPD) 3.01 governing indirect cost recovery for one of its grant programs. The GPD states “HHS considers activities conducted by grantees that result in indirect charges a necessary and appropriate part of HHS grants, and HHS awarding offices must reimburse their share of these costs.” Although HRSA typically reimburses grantees for their full share of administrative overhead represented in approved indirect cost rates, the agency believes, in the case of its State Offices of Rural Health (SORH) Grant Program, that full recovery of overhead expenditures would be detrimental to the SORH grantees' ability to adequately conduct all the activities mandated in the authorizing legislation. Limiting indirect cost recovery is necessary because eleven of fifty SORH grantees are located in academic settings that have established indirect cost rates in the range of 30 to 50 percent or even higher. It is in the best interest of the program to limit the indirect cost recovery to not more than 15 percent of allowable total direct costs, thus leaving 85 percent of the grant funds to conduct the activities required by the grant program. This limitation would be applicable to all awardees of the State Offices of Rural Health Grant Program.
If you wish to comment on any portion of this notice, HRSA must receive comments by February 14, 2008.
You may submit comments by any of the following methods:
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Keith Midberry, at the above address, telephone number 301-443-2669.
The HRSA State Offices of Rural Health (SORH) Grant Program is authorized by Section 338J of the Public Health Service Act (42 U.S.C. 254r). The purpose of the SORH grant program is to assist States in strengthening their rural health care delivery systems by helping to support a focal point for rural health within each State. The program provides funding for an institutional framework that links rural hospitals, providers and communities with State and Federal resources to help develop long term solutions to rural health problems. The law provides for a Federal-State partnership, requiring a State funding match of $3 for each $1 of Federal funding. Over the past 16 years, this program has leveraged in excess of $175 million in State matching funds for rural health. The average annual award for each State is $150,000.
The SORH program issues one award to a single grantee from each of the 50 States. The law requires that the governor designate the entity that will serve as the State's SORH. Currently, 37 of the Offices are located in State health departments, 10 in academic settings (9 universities and 1 junior college) and 3 are non-profit organizations. Grant funds enable each State grantee to conduct the following activities:
(1) Establish and maintain within the State a clearinghouse for collecting and disseminating information on—
(A) Rural health care issues;
(B) Research findings relating to rural health care; and
(C) Innovative approaches to the delivery of health care in rural areas;
(2) Coordinate the activities carried out in the State that relate to rural health care, including providing coordination for the purpose of avoiding duplication in such activities;
(3) Identify Federal, State, and nongovernmental programs regarding rural health, and provide technical assistance to public and nonprofit private entities regarding participation in such programs;
(4) Encourage, but not directly fund, the recruitment and retention of health professionals in rural areas; and
(5) Assist in strengthening State, local and Federal partnerships in rural health.
Since 2001, SORH grant guidance has limited indirect cost recovery to not more than 15 percent of the Federal award regardless of whether the grantee has a higher negotiated rate agreement. The grant program initiated this limitation on the recoverable indirect costs because some grantees are located within universities that have established indirect cost rate agreements in the range of 30 to 50 percent. In adhering to the existing GPD policy, as much as 50 percent of grants funds could be consumed for administrative and other purposes by the host institution, which would significantly reduce the amount of funds available to carry out the objectives of the authorizing legislation and grant program. Maintaining an indirect cost limitation will enable awardees to continue to invest 85 percent (or more) of their grant funds for activities that help improve health care in rural communities. Not restricting indirect cost recovery would reduce the amount of funds available to improve rural health care and erode sixteen years of SORH success.
To maintain the limit on indirect costs in the 2008 grant funding opportunity guidance, a request to deviate from the Department of Health and Human Services (DHHS) Grants Policy Directive (GPD) 3.01, Indirect Costs and Other Cost Policies was required. Such a request was submitted and approved by the HHS, Office of Grants Policy, Oversight and Evaluation, Assistant Secretary for Resources and Technology in November, 2007.
HRSA invites public comment on its intent to indefinitely limit indirect cost recovery to not more than 15 percent of the total allowable direct costs for awardees of the State Offices of Rural Health Grant Program.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice if hereby given of a meeting of the Fogarty International Center Advisory Board.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and/or contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications and/or contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Iowa (FEMA-1737-DR), dated January 4, 2008, and related determinations.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
Notice is hereby given that, in a letter dated January 4, 2008, the President declared a major disaster under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (the Stafford Act), as follows:
I have determined that the damage in certain areas of the State of Iowa resulting from a severe winter storm during the period of December 10-11, 2007, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (the Stafford Act). Therefore, I declare that such a major disaster exists in the State of Iowa.
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated areas, Hazard
If Other Needs Assistance under Section 408 of the Stafford Act is later requested and warranted, Federal funding under that program also will be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Justo Hernandez, of FEMA is appointed to act as the Federal Coordinating Officer for this declared disaster.
The following areas of the State of Iowa have been designated as adversely affected by this declared major disaster:
Adair, Adams, Appanoose, Cedar, Clarke, Clinton, Davis, Decatur, Fremont, Iowa, Jefferson, Johnson, Jones, Keokuk, Linn, Lucas, Madison, Mahaska, Marion, Monroe, Montgomery, Page, Ringgold, Taylor, Union, Van Buren, Wapello, Warren, Washington, and Wayne Counties for Public Assistance. Direct Federal assistance is authorized.
All counties within the State of Iowa are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Missouri (FEMA-1736-DR), dated December 27, 2007, and related determinations.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
Notice is hereby given that, in a letter dated December 27, 2007, the President declared a major disaster under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (the Stafford Act), as follows:
I have determined that the damage in certain areas of the State of Missouri resulting from severe winter storms beginning on December 6, 2007, and continuing, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (the Stafford Act). Therefore, I declare that such a major disaster exists in the State of Missouri.
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated areas, Hazard Mitigation throughout the State, and any other forms of assistance under the Stafford Act that you deem appropriate. Direct Federal assistance is authorized. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Hazard Mitigation will be limited to 75 percent of the total eligible costs. Federal funds provided under the Stafford Act for Public Assistance also will be limited to 75 percent of the total eligible costs, except for any particular projects that are eligible for a higher Federal cost-sharing percentage under the FEMA Public Assistance Pilot Program instituted pursuant to 6 U.S.C. 777.
If Other Needs Assistance under Section 408 of the Stafford Act is later requested and warranted, Federal funding under that program also will be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Michael L. Parker, of FEMA is appointed to act as the Federal Coordinating Officer for this declared disaster.
The following areas of the State of Missouri have been designated as adversely affected by this declared major disaster:
Adair, Andrew, Atchison, Audrain, Barton, Benton, Boone, Buchanan, Caldwell, Callaway, Camden, Cedar, Clinton, Cole, Dade, Daviess, DeKalb, Gentry, Grundy, Harrison, Hickory, Holt, Jasper, Lincoln, Linn, McDonald, Mercer, Miller, Moniteau, Montgomery, Morgan, Newton, Nodaway, Osage, Pike, Putnam, St. Clair, Schuyler, Scotland, Sullivan, Warren, and Worth Counties for Public Assistance. Direct Federal assistance is authorized.
All counties within the State of Missouri are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster for the State of California (FEMA-1731-DR), dated
January 4, 2008.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
Notice is hereby given that the incident type for this disaster has been expanded to include flooding, mud flows, and debris flows directly related to the wildfires. Only those areas within the previously designated counties specifically determined by the Federal Coordinating Officer to be damaged or adversely affected as direct result of the compromised watershed conditions and fire-generated debris caused by the wildfires will be considered eligible for assistance on a case-by-case basis.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Oklahoma (FEMA-1735-DR), dated December 18, 2007, and related determinations.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
The notice of a major disaster declaration for the State of Oklahoma is hereby amended to include the following areas among those areas determined to have been adversely affected by the catastrophe declared a major disaster by the President in his declaration of December 18, 2007.
The counties of Beaver, Caddo, Canadian, Craig, Creek, Delaware, Grady, McClain, Nowata, Okfuskee, Okmulgee, Osage, Ottawa, Pawnee, Payne, Rogers, Seminole, and Washington for Public Assistance.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Washington (FEMA-1734-DR), dated December 8, 2007, and related determinations.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
The notice of a major disaster declaration for the State of Washington is hereby amended to include the following areas among those areas determined to have been adversely affected by the catastrophe declared a major disaster by the President in his declaration of December 8, 2007.
King and Snohomish Counties for Individual Assistance (already designated for Public Assistance.)
Fish and Wildlife Service, Interior.
Notice of teleconference.
This notice announces a public teleconference of the Sporting Conservation Council (Council).
We will hold the teleconference on Tuesday, January 29, 2008, at 1-3:30 p.m. (Eastern time). If you wish to listen to the teleconference proceedings, submit written material for the Council to consider, or give a 2-minute presentation during the teleconference, notify Phyllis Seitts by Monday, January 21, 2008. If you wish to submit a written statement for Council consideration during the teleconference, it must be received no later than January 24, 2008. See instructions under
Phyllis T. Seitts, 9828 North 31st Avenue, Phoenix, AZ 85051-2517; 602-906-5603 (phone); or
The Secretary of the Interior established the Council in February 2006 (71 FR 11220, March 6, 2006). The Council's mission is to provide advice and guidance to the Federal Government through the Department of the Interior on how to
The Secretary of the Interior and the Secretary of Agriculture signed an amended charter for the Council in June 2006 and July 2006, respectively. The revised charter states that the Council will provide advice and guidance to the Federal Government through the Department of the Interior and the Department of Agriculture.
The Council will convene to receive updates on responses from Federal agencies to recommendations submitted by the Council and implementation of the August 16, 2007, Executive Order on Facilitation of Hunting Heritage and Wildlife Conservation.
Whether you wish to comment orally or in written form, you must provide written copies of your comments. All written statements must be supplied to the Council's Designated Federal Officer in both of the following formats:
One hard copy with original signature, and
One electronic copy via e-mail (acceptable file format: MS Word, MS Powerpoint, or WordPerfect).
Individuals or groups may request to give an oral presentation during the Council teleconference. Oral presentations will be limited to 2 minutes per speaker, with no more than half an hour total for all speakers. Interested parties must contact Phyllis Seitts, Council Designated Federal Officer, in writing (preferably via e-mail; see
Speakers who wish to expand upon their oral statements or those who had wished to speak but could not be accommodated on the agenda are invited to submit written statements to the Council. Interested members of the public may submit relevant written information for the Council to consider during the public teleconference. We must receive all written statements by Thursday, January 24, 2008, so that we can make the information available to the Council for their consideration prior to the teleconference.
U.S. Geological Survey.
Notice of meeting.
This notice is published in accordance with section 9(a) of the Federal Advisory Committee Act of 1972 (Pub. L. 92-643). The U.S. Geological Survey—Climate Change Science Program (CCSP) Committee on Synthesis and Assessment Product 4.2: Thresholds of Climate Change will hold its FACA peer review meeting on January 28-30, 2008 in Denver, CO.
January 28, 2008, 1 p.m.-January 30, 2008, 12 noon. Location: Denver Federal Center, Building 810, Hayden Room.
Colleen W. Charles, U.S. Geological Survey, 12201 Sunrise Valley Drive, MS 301, Reston, Virginia 20192; 703-648-4110.
Bureau of Indian Affairs, Interior.
Notice of proposed renewal of information collection.
The Bureau of Indian Affairs (BIA) is seeking comments in preparation for the renewal of the Indian Child Welfare Annual Report. The information collected will aid BIA in fulfilling the requirements of the law. This renewal meets the requirements of the Paperwork Reduction Act of 1995. The Bureau is soliciting public comments on the subject proposal.
Submit comments on or before March 17, 2008.
Interested parties are invited to submit written comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to Stephanie E. Birdwell, Chief, Division of Human Services, Bureau of Indian Affairs, Department of Interior, 1849 C Street, NW., MS-4513-MIB, Washington, DC 20240. Telephone: (202) 513-7621.
Copies of the collection of information form or requests for additional information should be directed to Stephanie E. Birdwell, Bureau of Indian Affairs, Department of the Interior, 1849 C Street, NW., MS-4513-MIB, Washington, DC 20240. Telephone: (202) 513-7621.
The information collection required by the use of this form is necessary to comply with Public Law 95-608, The Indian Child Welfare Act of 1978, as codified at 25 U.S.C. 1901 et seq. and 25 CFR Part 23—Indian Child Welfare Act (ICWA). This information is collected through the use of a consolidated caseload form by tribal Indian Child Welfare Act program directors who are the providers of the ICWA services. The information is used to determine the extent of service needs in local Indian communities, to assess the effectiveness of the Indian Child Welfare Act program, and to provide data for the annual program budget justification. The responses to this request for information collection are voluntary and the aggregated report is not considered
Please note that all comments received will be available for public review two weeks after publication in the
It is our policy to make all comments available to the public for review at the location listed in the
Please note that an agency may not sponsor or request, and an individual need not respond to, a collection of information unless it has a valid OMB Control Number.
Bureau of Land Management, Interior
Notice of intent.
The Bureau of Land Management (BLM) Field Office, Baker City, Oregon intends to revise a Resource Management Plan (RMP) with an associated Environmental Impact Statement (EIS) for the Baker Resource Area of the Vale District and by this notice is announcing public scoping meetings. The RMP will revise the existing Baker Resource Management Plan of 1989.
The BLM will announce public scoping meetings to identify relevant issues through local news media, newsletters, and the BLM Web site
You may submit comments by any of the following methods:
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Documents pertinent to this proposal may be examined at the BLM Baker Field Office.
For further information and/or to have your name added to our mailing list, Contact: Allison Kuehl, RMP Team Leader, Telephone: 541-523-1931; E-mail:
This document provides notice that the BLM Field Office, Baker City, Oregon, intends to revise an RMP with an associated EIS for the Baker Resource Area and announces public scoping meetings.
The planning area is located in Baker, Union, Wallowa, Morrow, and Umatilla Counties in Oregon and in Asotin County, Washington. This planning activity encompasses approximately 423,000 acres of public land. The plan will fulfill the needs and obligations set forth by the National Environmental Policy Act (NEPA), the Federal Land Policy and Management Act (FLPMA), and BLM management policies. The BLM will work collaboratively with interested parties to identify the management decisions that are best suited to local, regional, and national needs and concerns.
The purpose of the public scoping process is to determine relevant issues, concerns and ideas that will influence the scope of the environmental analysis and EIS alternatives. These issues also guide the planning process. You may submit comments on issues and planning criteria in writing to the BLM at any public scoping meeting, or you may submit them to the BLM using one of the methods listed in the
Preliminary issues and management concerns have been identified. They represent the BLM's knowledge to date regarding the existing issues and concerns with current land management. The preliminary issues being considered in this planning effort include: vegetation management; water quality, aquatic resources, fisheries; special management areas; recreation
After public comments as to what issues the plan should address are gathered, they will be placed in one of three categories:
1. Issues to be resolved in the plan;
2. Issues to be resolved through policy or administrative action; or
3. Issues beyond the scope of this plan.
The BLM will provide an explanation in the plan as to why we placed an issue in category two or three. In addition to these major issues, a number of management questions and concerns will be addressed in the plan. The public is encouraged to help identify these questions and concerns during the scoping phase.
1. The BLM will manage the Baker Resource Area to protect resources in accordance with the Federal Land Policy and Management Act of 1976 (FLPMA, 43 U.S.C. 1701
2. The Plan will recognize valid existing rights within the Planning Area and review how valid existing rights are verified. The Plan will outline the process the BLM will use to address applications or notices filed on existing claims or other land use authorizations after the completion of the Plan.
3. Lands covered in the RMP will be public lands, including split estate lands, managed by BLM. Decisions on lands not managed by the BLM will not be made in the RMP except when formal cooperator status is mutually accepted and leads to additional Records of Decision.
4. The BLM will use a collaborative and multi-jurisdictional approach, where possible to jointly determine the desired future conditions of public lands.
5. The Plan will emphasize the protection and enhancement of the Planning Area's biodiversity while at the same time providing the public with opportunities for compatible commodity-based and recreation activities.
6. The socioeconomic impacts of the alternatives will be addressed.
7. The BLM will use current scientific information, research, technologies, and results of inventory, monitoring and coordination to determine appropriate local, and regional management strategies that will enhance or restore impaired ecosystems.
8. The planning process will include an EIS that will comply with NEPA standards.
9. Any land located within the Planning Area's administrative boundary, and subsequently acquired by the BLM, will be managed consistent with the Plan, subject to any constraints associated with the acquisition.
10. The Plan will recognize the State's responsibility to manage wildlife. The BLM would consult with Oregon Department of Fish and Wildlife before establishing no-hunting zones or periods for the purposes of protecting public safety, administration, or public use and enjoyment.
11. The Plan will address transportation and access, and will identify where better access is warranted, where it should remain as is, and where decreased access is appropriate to protect Planning Area resources.
12. Laws and regulations regulate grazing management. The Plan will incorporate the Rangeland Health Standards and Guidelines. It will provide a strategy to ensure proper grazing practices are followed within the Planning Area.
13. The planning process will involve American Indian Tribal governments and will provide possible strategies for the protection of recognized traditional uses, if such uses are identified.
14. Decisions in the Plan will strive to be compatible with existing plans and policies of adjacent local, State, Federal, and tribal agencies as long as the decisions are consistent with Federal law governing the administration of public land.
The BLM will use an interdisciplinary approach to develop the revision in order to consider the variety of resource issues and concerns identified. Specialists with expertise in the following disciplines will be involved in the planning process: rangeland management, minerals and geology, forestry, fire and fuels, outdoor recreation, archaeology, paleontology, wildlife and fisheries, lands and realty, hydrology, soils, sociology, and economics.
Bureau of Land Management, Interior.
Notice of Public Meeting.
In accordance with the Federal Land Policy and Management Act and the Federal Advisory Committee Act of 1972, the U.S. Department of the Interior, Bureau of Land Management (BLM) Central Montana Resource Advisory Council (RAC) will meet as indicated below.
The meeting will be held February 5 & 6, 2008, at the Yogo Inn Conference Room, 211 E. Main Street, in Lewistown, Montana.
The February 5 session will begin at 10 a.m. with a 30-minute public comment period. This meeting is scheduled to adjourn at 5:30 p.m.
The February 6 meeting will begin at 8 a.m. with a 30-minute public comment period and is scheduled to adjourn at 3:30 p.m.
This 15-member council advises the Secretary of the Interior on a variety of management issues associated with public land management in Montana. During these meetings the council will discuss/act upon:
All RAC meetings are open to the public. The public may present written comments to the RAC. Each formal RAC meeting will also have time allocated for hearing public comments. Depending on the number of persons wishing to comment and time available, the time for individual oral comments may be limited.
Gary E. Slagel, Associate Lewistown Field Manager, Lewistown Field Office, P.O. Box 1160, Lewistown, Montana 59457, 406/538-1900.
Minerals Management Service (MMS), Interior.
Notice of extension of an information collection (1010-0041).
To comply with the Paperwork Reduction Act of 1995 (PRA), MMS is inviting comments on a collection of information that we will submit to the Office of Management and Budget (OMB) for review and approval. The information collection request (ICR) concerns the paperwork requirements in the regulations under 30 CFR 250, Subpart K, Oil and Gas Production Rates.
Submit written comments by March 17, 2008.
You may submit comments by any of the following methods listed below.
• Electronically: go to
• Mail or hand-carry comments to the Department of the Interior; Minerals Management Service; Attention: Cheryl Blundon; 381 Elden Street, MS-4024; Herndon, Virginia 20170-4817. Please reference “Information Collection 1010-0041” in your comments.
Cheryl Blundon, Regulations and Standards Branch at (703) 787-1607. You may also contact Cheryl Blundon to obtain a copy, at no cost, of the regulations and the forms that require the subject collection of information.
Section 5(a) of the OCS Lands Act requires the Secretary to prescribe rules and regulations “to provide for the prevention of waste, and conservation of the natural resources of the Outer Continental Shelf, and the protection of correlative rights therein” and to include provisions “for the prompt and efficient exploration and development of a lease area.”
Section 1334(g)(2) states “* * * the lessee shall produce such oil or gas, or both, at rates * * * to assure the maximum rate of production which may be sustained without loss of ultimate recovery of oil or gas, or both, under sound engineering and economic principles, and which is safe for the duration of the activity covered by the approved plan.”
These authorities and responsibilities are among those delegated to the Minerals Management Service (MMS). The regulations at 30 CFR 250, subpart K, concern oil and gas production rates, and are the subject of this collection.
In addition, MMS also issues various Notices to Lessees (NTLs) and Operators to clarify and provide additional guidance on some aspects of the regulations, as well as various forms to capture the data and information. The current subpart K regulations specify the use of forms MMS-126 (Well Potential Test Report), MMS-127 (Sensitive Reservoir Information Report), MMS-128 (Semiannual Well Test Report), and MMS-140 (Bottomhole Pressure Survey Report).
The forms and their purposes are:
The MMS uses this information for various environmental, reservoir, reserves, and conservation analyses, including the determination of maximum production rates (MPRs) when necessary for certain oil and gas completions.
The MMS uses this information to determine whether a rate-sensitive reservoir is being prudently developed.
The MMS uses this information to evaluate the results of well tests to determine if reservoirs are being depleted in a manner that will lead to the greatest ultimate recovery of hydrocarbons.
The MMS uses the information in our efforts to conserve natural resources, prevent waste, and protect correlative rights, including the Government's royalty interest.
We will protect information from respondents considered proprietary under the Freedom of Information Act (5 U.S.C. 552) and its implementing regulations (43 CFR part 2) and under regulations at 30 CFR 250.197, “Data and information to be made available to the public or for limited use.” No items of a sensitive nature are collected. Responses are required to obtain or retain benefits.
Agencies must also estimate the “non-hour cost” burdens to respondents or recordkeepers resulting from the collection of information. Therefore, if you have costs to generate, maintain, and disclose this information, you should comment and provide your total capital and startup cost components or annual operation, maintenance, and purchase of service components. You should describe the methods you use to estimate major cost factors, including system and technology acquisition, expected useful life of capital equipment, discount rate(s), and the period over which you incur costs. Capital and startup costs include, among other items, computers and software you purchase to prepare for collecting information, monitoring, and record storage facilities. You should not include estimates for equipment or services purchased: (i) Before October 1, 1995; (ii) to comply with requirements not associated with the information collection; (iii) for reasons other than to provide information or keep records for the Government; or (iv) as part of customary and usual business or private practices.
We will summarize written responses to this notice and address them in our submission for OMB approval. As a result of your comments, we will make any necessary adjustments to the burden in our submission to OMB.
National Park Service, Interior.
Notice.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects in control of the City of Larsen Bay, Larsen Bay, AK, and in the possession of Alutiiq Museum and Archaeological Repository, Kodiak, AK. The human remains were removed from Larsen Bay, AK.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003 (d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by Alutiiq Museum and Archaeological Repository professional staff on behalf of the City of Larsen Bay in consultation with representatives of the Native Village of Larsen Bay.
In 1987 and 1988, human remains representing a minimum of five individuals were removed from the Uyak site (49-KOD-00145) in Larsen Bay, AK, during an excavation led by Amy Steffian, a graduate archeology student from the University of Michigan. In August of 1987, the human remains of one individual were shipped to Bryn Mawr College, Bryn Mawr, PA, for storage and study under the care of Dr. Richard Jordan, an archeologist, in Bryn Mawr College's Department of Anthropology. In 1988, Dr. Jordan moved to Fairbanks and took the entire Uyak site collection with him for storage at the University of Alaska, Department of Anthropology. In August of 1988, the human remains of four individuals from the second season of fieldwork were shipped to Dr. Jordan at the University of Alaska Fairbanks, Department of Anthropology. After Dr. Jordan's death in 1991, the entire collection was moved to the University of Alaska Museum. In the summer of 1995, at the request of the City of Larsen Bay, the owner of the Uyak site, the entire collection was transferred to the Alutiiq Museum and Archaeological Repository (number AM3). No known individuals were identified. The nine funerary objects are one large coal labret, one ground slate projectile point, one bone wedge, one toggling harpoon, one leister prong, one piece of worked antler, one coal bead, one coal bead preform, and one ground slate ulu fragment.
The Uyak site is a large prehistoric settlement occupied during both the Kachemak and Koniag traditions. The eastern portion of the site contained the remains of a Late Kachemak village, where well-preserved shell midden deposits surrounded a set of single-roomed semisubterranean houses dating between 950 - 1300 B.P. The human remains were found in association with prehistoric strata, indicating that the human remains are associated with the occupation of the village. Archeologists believe that the people of the Late Kachemak tradition are ancestral to modern day Alutiiqs. Archeological data collected over the past 20 years indicates that Late Kachemak societies evolved into the more complexly organized societies of the Koniag tradition observed at historic contact in the late 18th century. As such, the human remains from the Uyak site are reasonably believed to be Native American and most closely affiliated with the contemporary Native residents of the Kodiak archipelago, the Kodiak Alutiiq. Specifically, the human remains are from an area of the Kodiak archipelago traditionally used by members of the Native Village of Larsen Bay.
In 1991, human remains representing a minimum of three individuals were removed from the Alexander Creek Site (49-KOD-00142) in Larsen Bay, AK, by Mike Yarborough during excavations prior to a water main installation project conducted by the Alaska Public Health Service. In July 1996, the human remains were transferred to the Alutiiq Museum and Archaeological Repository (number AM 234) at the request of the City of Larsen Bay. No known individuals were identified. No associated funerary objects are present.
The Alexander Creek site lies in the City of Larsen Bay, AK, on southwestern Kodiak Island, under and around the intersection of First and Third Streets, and contains both historic and prehistoric components. All of the human remains were recovered from the prehistoric context found in association with midden deposits that produced a radiocarbon dated of circa 350 B.P. This places the prehistoric occupation of the site in the Developed Koniag phase of the Koniag tradition, just prior to contact, and indicates that the human remains are those of ancestral Alutiiqs. Specifically, the human remains are from an area traditionally used by members of the Native Village of Larsen Bay.
Officials of the City of Larsen Bay and Alutiiq Museum and Archaeological Repository have determined that, pursuant to 25 U.S.C. 3001 (9-10), the human remains described above represent the physical remains of eight individuals of Native American ancestry. Officials of the City of Larsen Bay and Alutiiq Museum and Archaeological Repository also have determined that, pursuant to 25 U.S.C. 3001 (3)(A), the nine objects described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony. Lastly, officials of the City of Larsen Bay and Alutiiq Museum and Archaeological Repository have determined that, pursuant to 25 U.S.C. 3001 (2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and the Native Village of Larsen Bay.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects should contact Allen Panamaroff, Mayor, City of Larsen Bay,
P.O. Box 8, Larsen Bay, AK 99624, telephone (907) 847-2211, before February 14, 2008. Repatriation of the human remains and associated funerary objects to the Native Village of Larsen Bay may proceed after that date if no additional claimants come forward.
Alutiiq Museum and Archaeological Repository is responsible for notifying the Native Village of Larsen Bay that this notice has been published.
National Park Service, Interior.
Notice.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains in the possession of the Paul H. Karshner Memorial Museum, Puyallup, WA. The human remains were removed from La Plata County, CO.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003 (d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Paul H. Karshner Memorial Museum professional staff in consultation with representatives of the Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado.
In the 1940s, human remains representing a minimum of one individual were removed from La Plata County, CO. The human remains were donated by Mark Porter in the 1940s. It is unknown how Mr. Porter acquired the human remains. No known individual was identified. No associated funerary objects are present.
This individual is the only recorded donation by Mr. Porter found in the museum's inventory book. However, Mr. Porter was known to have collected Native American objects. Based on the collecting practices of the donor, the human remains are reasonably believed to be Native American. In addition, the museum's inventory book identifies the human remains as being “native” and from the western Colorado region. The western Colorado area is known to be the aboriginal lands for the Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado. Based on museum records and geographical location, officials of the Paul H. Karshner Memorial Museum reasonably believe that the human remains are Native American and culturally affiliated to the Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado.
Officials of the Paul H. Karshner Memorial Museum have determined that, pursuant to 25 U.S.C. 3001 (9-10), the human remains described above represent the physical remains of one individual of Native American ancestry. Officials of the Paul H. Karshner Memorial Museum also have determined that, pursuant to 25 U.S.C. 3001 (2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remains should contact Dr. Jay Reifel, Assistant Superintendent, telephone (253) 840-8971 or Ms. Beth Bestrom, Museum Curator, Paul H. Karshner Memorial Museum, 309 4th St. NE, Puyallup, WA 98372, telephone (253) 841-8748, before February 14, 2008. Repatriation of the human remains to the Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado may proceed after that date if no additional claimants come forward.
The Paul H. Karshner Memorial Museum is responsible for notifying the Hopi Tribe of Arizona; Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado; Ute Indian Tribe of the Uintah & Ouray Reservation, Utah; and Ute Mountain Tribe of the Ute Mountain Reservation, Colorado, New Mexico & Utah that this notice has been published.
National Park Service, Interior.
Notice.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains in the possession of the Paul H. Karshner Memorial Museum, Puyallup, WA. The human remains were removed from an unknown area of Western Oregon.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003 (d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Paul H. Karshner Memorial Museum professional staff in consultation with representatives of the Confederated Tribes of the Grand Ronde Community of Oregon.
In the 1930s, human remains representing a minimum of one individual were removed from an unknown area in Western Oregon. The human remains were donated to the museum by Dr. Warner M. Karshner in the 1930s. No known individual was identified. No associated funerary objects are present.
In creating the Paul H. Karshner Memorial Museum in 1930, Dr. Karshner began to acquire Native American items, objects, and artifacts for research and understanding, specifically from the Northwest. It is during this time period that the human remains from Western Oregon were donated and inventoried into the museum's permanent collection. Based on the donor's history, it is reasonably believed that the human remains are of Native American origin.
The museum's inventory book identifies the human remains as being “native” and being from the western Oregon region. The western Oregon area is known to be aboriginal lands for the Confederated Tribes of the Grand Ronde Community of Oregon. Based on museum records, geographical location, and donor history, the human remains are reasonably believed to be culturally affiliated with the Confederated Tribes of the Grand Ronde Community of Oregon.
Officials of the Paul H. Karshner Memorial Museum have determined that, pursuant to 25 U.S.C. 3001 (9-10), the human remains described above represent the physical remains of one individual of Native American ancestry. Officials of the Paul H. Karshner Memorial Museum also have determined that, pursuant to 25 U.S.C. 3001 (2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Confederated Tribes of the Grand Ronde Community of Oregon.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remains should contact Dr. Jay Reifel, Assistant Superintendent, telephone (253) 840-8971 or Ms. Beth Bestrom, Museum Curator, Paul H. Karshner Memorial Museum, 309 4th St. NE, Puyallup, WA 98372, telephone (253) 841-8748, before February 14, 2008. Repatriation of the human remains to the Confederated Tribes of the Grand Ronde Community of Oregon may proceed after that date if no additional claimants come forward.
Paul H. Karshner Memorial Museum is responsible for notifying the Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indians of Oregon; Confederated Tribes of the Grand Ronde Community of Oregon; Confederated Tribes of the Siletz Reservation, Oregon; and Coquille Tribe of Oregon that this notice has been published.
National Park Service, Interior.
Notice.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains in the possession of the Slater Museum of Natural History, University of Puget Sound, Tacoma, WA. The human remains were removed from Malheur Lake, Harney County, OR.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003 (d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by Slater Museum of Natural History, University of Puget Sound professional staff and a consultant in consultation with representatives of the Burns Paiute Tribe of the Burns Paiute Indian Colony of Oregon and Klamath Tribes, Oregon.
In 1936, human remains representing a minimum of one individual were removed from near Malheur Lake, Harney County, OR, by Stanley G. Jewett. Mr. Jewett donated the human remains to the Slater Museum in 1955. No known individual was identified. No associated funerary objects are present.
The individual is most likely of Native American ancestry as indicated by morphological features. The geographical location where the human remains were recovered is consistent with the historically documented territory of the tribes now represented by the Burns Paiute Tribe of the Burns Paiute Indian Colony of Oregon. Furthermore, based on information provided during consultation with tribal representatives, there is a reasonable belief that the human remains share a common ancestry with members of tribes now represented by the Burns Paiute Tribe of the Burns Paiute Indian Colony of Oregon.
Officials of the Slater Museum of Natural History have determined that, pursuant to 25 U.S.C. 3001 (9-10), the human remains described above represent the physical remains of one individual of Native American ancestry. Officials of the Slater Museum of Natural History also have determined that, pursuant to 25 U.S.C. 3001 (2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Burns Paiute Tribe of the Burns Paiute Indian Colony of Oregon.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remains should contact Dr. Peter Wimberger, Slater Museum of Natural History, 1500 N. Warner, Tacoma, WA 98416, (253) 879-2784, before February 14, 2008. Repatriation of the human remains to the Burns Paiute Tribe of the Burns Paiute Indian Colony of Oregon may proceed after that date if no additional claimants come forward.
The Slater Museum of Natural History is responsible for notifying the Burns Paiute Tribe of the Burns Paiute Indian Colony of Oregon and Klamath Tribes, Oregon that this notice has been published.
National Park Service, Interior.
Notice.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects in the possession of the Slater Museum of Natural History, University of Puget Sound, Tacoma, WA. The human remains and associated funerary objects were removed from Pierce County, WA.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003 (d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Slater Museum of Natural History, University of Puget Sound professional staff and a consultant in consultation with representatives of the Muckleshoot Indian Tribe of the Muckleshoot Reservation, Washington; Nisqually Indian Tribe of the Nisqually Reservation, Washington; Puyallup Tribe of the Puyallup Reservation, Washington; and Squaxin Island Tribe of the Squaxin Island Reservation, Washington.
In 1956, human remains representing a minimum of one individual were removed from Connell's Prairie, near Buckley in Pierce County, WA, by John Bonifas and LaMar Hathaway while digging fence post holes. The human remains were donated by the Pierce County Sherriff to the museum in 1956. No known individual was identified. The two associated funerary objects are one bead and one silver ball.
The human remains were reviewed and determined to be Native American based upon cranial deformation and tooth wear. The red glass seed bead was found in the sediments with the human remains, whereas the metal ball was found with the human remains during a museum inventory, but not recorded as found with the human remains at the time of removal. However, both objects are determined to be associated funerary objects. The Pierce County Sherriff's report states the human remains were discovered approximately two feet below the surface. Archeological evidence supports the presence of Osceola mudflows at a depth of two feet across the prairie that occurred approximately 5,000 years ago, suggesting the human remains could be approximately 5,000 years old. However, due to the presence of the glass seed bead, the human remains most likely date to the 1800s, at which time glass trade beads would have been available at nearby locations such as Fort Steilacoom.
Connell's Prairie is located west of Naches Pass, a historic pass connecting
Officials of the Slater Museum have determined that, pursuant to 25 U.S.C. 3001 (9-10), the human remains described above represent the physical remains of one individual of Native American ancestry. Officials of the Slater Museum also have determined that, pursuant to 25 U.S.C. 3001 (3)(A), the two objects described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony. Lastly, officials of the Slater Museum have determined that, pursuant to 25 U.S.C. 3001 (2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and the Muckleshoot Indian Tribe of the Muckleshoot Reservation, Washington; Nisqually Indian Tribe of the Nisqually Reservation, Washington; and Puyallup Tribe of the Puyallup Reservation, Washington.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects should contact Peter Wimberger, Director, Slater Museum of Natural History, University of Puget Sound, 1500 N. Warner, Tacoma, WA 98416, telephone (253) 879-2784, before February 14, 2008. Repatriation of the human remains and associated funerary objects to the Muckleshoot Indian Tribe of the Muckleshoot Reservation, Washington; Nisqually Indian Tribe of the Nisqually Reservation, Washington; and Puyallup Tribe of the Puyallup Reservation, Washington may proceed after that date if no additional claimants come forward.
The Slater Museum is responsible for notifying the Muckleshoot Indian Tribe of the Muckleshoot Reservation, Washington; Nisqually Indian Tribe of the Nisqually Reservation, Washington; Puyallup Tribe of the Puyallup Reservation, Washington; and Squaxin Island Tribe of the Squaxin Island Reservation, Washington that this notice has been published.
National Park Service, Interior.
Notice.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains in the possession of the Slater Museum of Natural History, University of Puget Sound, Tacoma, WA. The human remains were removed from Dash Point, Pierce County, WA.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003 (d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by Slater Museum of Natural History, University of Puget Sound professional staff and consultants in consultation with representatives of the Muckleshoot Indian Tribe of the Muckleshoot Reservation, Washington; Nisqually Indian Tribe of the Nisqually Reservation, Washington; and Puyallup Tribe of the Puyallup Reservation, Washington.
At an unknown date, human remains representing a minimum of two individuals were removed from the vicinity of Dash Point, Pierce County, WA, by Dr. T.H. Long. In October 1936, the human remains were given to the museum by Ms. Betty Long. No known individuals were identified. No associated funerary objects are present.
The individuals are most likely of Native American ancestry as indicated by morphological features. The geographical location where the human remains were recovered is consistent with numerous historical and ethnographic reports documenting the territory of the Puyallup Tribe of the Puyallup Reservation, Washington. Dash Point is located within the revised boundaries of the Puyallup Indian Reservation (1857), which is bordered to the north by the boundary between King and Pierce Counties. The Indian Claims Commission determined Dash Point to be within the exclusive territory of the Puyallup Tribe at the time of treaty signing (17 Ind. Cl. Comm. 1, April 25, 1966). In addition, based on information provided during consultation with tribal representatives, there is a reasonable belief that the human remains share a common ancestry with members of the tribes now represented by the Puyallup Tribe of the Puyallup Reservation, Washington.
Officials of the Slater Museum of Natural History, University of Puget Sound have determined that, pursuant to 25 U.S.C. 3001 (9-10), the human remains described above represent the physical remains of two individuals of Native American ancestry. Officials of the Slater Museum of Natural History, University of Puget Sound also have determined that, pursuant to 25 U.S.C. 3001 (2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Puyallup Tribe of the Puyallup Reservation, Washington.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remains should contact Dr. Peter Wimberger, Director, Slater Museum of Natural History, 1500 N. Warner, Tacoma, WA 98416, (253) 879-2784, before February
The Slater Museum of Natural History is responsible for notifying the Muckleshoot Indian Tribe of the Muckleshoot Reservation, Washington; Nisqually Indian Tribe of the Nisqually Reservation, Washington; and Puyallup Tribe of the Puyallup Reservation, Washington that this notice has been published.
Nominations for the following properties being considered for listing or related actions in the National Register were received by the national Park Service before December 29, 2007. Pursuant to section 60.13 of 36 CFR part 60, written comments concerning the significance of these properties under the National Register criteria for evaluation may be forwarded by United States Postal Service, to the National Register of Historic Places, National Park Service, 1849 C St., NW., 2280, Washington, DC 20240; by all other carriers, National Register of Historic Places, National Park Service, 1201 Eye St., NW., 8th floor, Washington, DC 20005; or by fax, 202-371-6447. Written or faxed comments should be submitted by January 30, 2008.
10 a.m., Thursday, January 17, 2008.
5550 Friendship Blvd., Fourth Floor, Chevy Chase, MD 20815.
Open.
The following matters have been placed on the agenda for the
1. Approval of Minutes of October 2007 Quarterly Business Meeting.
2. Reports from the Chairman, Commissioners, Chief of Staff, and Section Administrators.
3. Rule changes for Transfer Treaty Determinations under 28 CFR 2.68.
Thomas W. Hutchison, Chief of Staff, United States Parole Commission, (301) 492-5990.
12 p.m., Thursday, January 17, 2008.
U.S. Parole Commission, 5550 Friendship Boulevard, 4th Floor, Chevy Chase, Maryland 20815.
Closed.
The following matter will be considered during the closed portion of the Commission's Business Meeting:
Thomas W. Hutchison, Chief of Staff, United States Parole Commission, (301) 492-5990.
Meeting notice.
Pursuant to the provisions of the Federal Advisory Committee Act
Gregory Schoepfle, Director, Office of Trade and Labor Affairs; Phone: (202) 693-4887.
After completion of review of Phase I proposals, selected applicants will receive a notice of recommendation to participate in Phase II of the competition and in this notification, further information regarding the Phase II submission deadline will also be provided. Applicants may only participate in the Phase II competition after receiving notice of recommendation. Please note that applicants that only submit full proposals will not be reviewed.
The Employment and Training Administration (ETA), U.S. Department of Labor (DOL), announces the availability of approximately $10 million in grant funds for the Science, Technology, Engineering, and Mathematics (STEM) Opportunities in the Workforce System Initiative (STEM Initiative). These grants will be awarded through a two-phased competitive process to primarily expand and align current and new STEM workforce education and training strategies, activities, and resources in One Stop Career Centers to promote, attract, and prepare disadvantaged youth and dislocated workers for STEM careers, while simultaneously enhancing the competitive position of local and regional employers.
Grants will be awarded to a select number of individual workforce investment boards (WIBs), representing a regional consortium of WIBs. A WIB must submit an application on behalf of a specific, defined multi-county economic region comprised of various workforce investment areas that make up the consortium. Joint applications for regions that cross state lines will be accepted. Applications for multi-state regions must be from an individual WIB that will have responsibility for administering the project. This solicitation contains an exception if the defined region is a rural area or a portion of a state whereby only one WIB exists.
In awarding STEM Initiative grants, every effort will be made to fairly distribute grants across rural and urban areas and across the different geographic regions of the United States. It is anticipated that the number of awards will range from five to seven, with the average award ranging from $1.5 million to $2 million.
This solicitation provides background information and describes the application submission requirements, outlines the process that eligible entities must use to apply for funds covered by this solicitation, and details how grantees will be selected.
Mailed applications must be addressed to the U.S. Department of Labor, Employment and Training Administration, Division of Federal Assistance, Attention: Marsha Daniels, Reference SGA/DFA PY 07-03, 200 Constitution Avenue, NW., Room N-4716, Washington, DC 20210. Telefacsimile (FAX) applications will not be accepted. Information about applying online can be found in Part IV(C) of this document. Applicants are advised that mail delivery in the Washington area may be delayed due to mail decontamination procedures. Hand delivered proposals will be received at the above address.
This solicitation consists of eight parts:
• Part I is the funding opportunity description that includes background information, the overview and details of the STEM Initiative including the five key features, project scope and allowable activities, and an outline of objectives and goals.
• Part II describes the size and nature of the anticipated awards.
• Part III describes eligibility information and other grant specifications.
• Part IV provides information on the application and submission process for the preliminary (Phase I) and full proposal (Phase II) submissions.
• Part V describes the criteria against which applications will be reviewed and evaluated, and explains the proposal review process for Phase I and II.
• Part VI provides award administration information.
• Part VII contains DOL agency contact information.
• Part VIII lists additional resources of interest to applicants.
There is broad consensus that the long-term key to continued U.S. competitiveness and growth in an increasingly global economic environment is the adequate supply of qualified Science, Technology, Engineering, and Mathematics (STEM) workers capable of translating knowledge and skills into new processes, products, and services.
The engine of growth is increasingly precarious in today's global economy and American pre-eminence in STEM will not be secured or extended without addressing the education and workforce pipeline challenges that have become a growing national concern. The National Academy of Sciences study,
The STEM education and workforce challenges are multi-faceted and five major trends have been identified that will dramatically impact the STEM pipeline of the future: (1) An increasing number of high school graduates with insufficient academic grounding in STEM to successfully enter post-secondary education geared to STEM careers; (2) waning enrollment in technical studies, including two- and four-year college level, graduate, and post-graduate science and engineering programs; (3) impending retirement of a large portion of the existing STEM workforce; (4) declining immigration of science, technology, engineering, and mathematics professionals in STEM fields; and (5) difficulty attracting and retaining a cadre of highly qualified STEM teaching professionals.
However, the STEM workforce pipeline challenge is not just about the supply and quality of the baccalaureate and advance degree earners. A large percentage of the workforce in industries and occupations that rely on STEM knowledge and skills are technicians, including others who enter and advance in their field through sub-baccalaureate degrees and certificates or through workplace training. Competitiveness in STEM fields requires a focus on the skills and the supply of those involved in STEM fields from the most complex research and development leadership positions to production, repair, marketing, sales, and other jobs that require competencies built upon math, science, engineering, and technology knowledge. Creating interest and preparing more Americans to be productive in STEM-related jobs will require attention to segments of the workforce that are often overlooked in STEM discussions: incumbent workers who need skills upgrading, dislocated workers who are trying to find new jobs in industries with a future, and individuals from groups traditionally underrepresented in STEM fields.
The seriousness of this STEM-related challenge has penetrated public and opinion-makers' consciousness; and government, industry, academia, and foundations have begun to respond in an unprecedented way. In October 2005, the Government Accountability Office inventoried the Federal programs that were designed to increase the numbers of students and graduates in STEM fields or to improve the quality of education in those areas. From this inventory, it is reported that 13 Federal agencies spent a total of $2.8 billion for 207 programs that were designed to increase the number of students and graduates or to improve educational programs in STEM fields. Six Federal agencies spent the bulk of the reported funding for STEM education: National Institutes of Health (NIH), followed by NSF, National Aeronautics and Space Administration (NASA), Department of Education, Environmental Protection Agency (EPA), and the Health Resources and Services Administration.
In his 2006 State of the Union address, the President proposed the American Competitiveness Initiative (ACI) to strengthen education, promote research and development, and encourage entrepreneurship. Specifically, ACI proposes to create and expand on a number of programs targeted at improving K-12 math and science education, increasing professional development for teachers, attracting new teachers to the classroom, developing research-based curricula, and providing access to flexible resources for worker training. In addition to the proposed efforts under ACI, the Deficit Reduction Act was signed into law and established the Academic Competitiveness Council, a cabinet-level group tasked with coordinating and evaluating the Federal role in math and science education, in an effort to align government policies and programs to better address STEM education.
In addition to this Federal effort, industry associations, businesses, state governments, foundations, and other organizations have launched a variety of programs and competitions that target K-12, undergraduate, and graduate students in STEM fields. For example, industry associations that include: the Society of Manufacturing Engineers, the American Chemical Society, the American Physical Society, the National Association of Manufacturers, and the National Science and Technology Education Partnership have invested in STEM education initiatives that involve curricular improvements, career-focused Web sites, mentoring programs, and scholarships; while corporate foundations including Raytheon, Bayer, and General Electric have created their own outreach programs. Despite these efforts, much remains to be done within government and across diverse public and private sectors to ensure that U.S. education, workforce, and economic systems rise to the STEM challenge.
ETA will invest $14 billion in a national public workforce development system to increase the skills and education of the current and emerging workforce, and is committed to becoming an important contributor to a robust national strategy for tackling the STEM workforce pipeline challenge. To that end, ETA recently launched a STEM action agenda which includes three focus areas: (1) Building the gateway to STEM careers; (2) enhancing the capacity of talent development institutions to produce more and better-skilled STEM workers; and (3) catalyzing and supporting innovation, entrepreneurship, and economic growth that can expand STEM employment opportunities.
In addition, ETA launched the Workforce Investment in Regional Economic Development (WIRED) Initiative in 2006, which focuses on the role of talent development in driving regional economic competitiveness, increased job growth, and new opportunities for American workers. Thirty-six of the 39 WIRED regions are targeting STEM-related industries for economic growth in their regions.
ETA believes that responding to the STEM challenge will require a concerted and multi-faceted partnership approach; the public workforce investment system is uniquely positioned in many communities to be an important partner in these efforts because of its universal access to human capital, its strong partnerships, and its support of high growth industries, many of which require a highly skilled and educated STEM workforce. The STEM Initiative creates a way for the public workforce system to help develop and broaden the talent pool of the current and future STEM workforce in regions throughout the country, and to act as a catalyst in these important efforts.
The STEM Initiative will make resources and technical assistance available to a select number of consortiums of WIBs representing regional economies across the country. These resources will : (1) Help to develop and enhance the STEM capabilities of the regions by aligning and expanding current workforce education and training strategies, activities, and resources in the One Stop Career Centers; (2) promote, attract, and prepare a broader range of workforce system participants for STEM careers; and (3) simultaneously enhance the competitive position of local and regional STEM employers.
The linchpin to a coordinated and strategic regional STEM approach will be the strategic partnerships that will be developed, enhanced, and expanded under this Initiative. For this solicitation, ETA requires at a minimum, partnerships to include the workforce investment system, the continuum of education, and STEM employers. However, stronger connections between the workforce system and educational institutions, e.g. multiple educational pathway programs, adult education, community colleges, and four year colleges and universities, including other Federal agencies, nonprofit organizations, employer associations, faith and community-based organizations, and STEM professional societies, will also be essential in leveraging assets and filling gaps where expertise, financial, and operational resources are missing.
The objectives of the STEM Initiative will be reached through five key features:
1. STEM One Stop Workforce Centers of Excellence;
2. STEM Coaches;
3. STEM Mentors;
4. Career Blueprints; and
5. Technical Assistance.
It is ETA's expectation that all applications will reflect and clearly articulate the operationalization of these key features of the STEM Initiative described below, and which are reflected in the evaluation criteria in Part V.
STEM One Stop Workforce Centers of Excellence (STEM Centers of Excellence), either virtual or site-based, will be established in One Stop Career Centers by a regional WIB consortium under this Initiative to achieve a number of goals: (1) Expand the capacity of the One Stop Career Centers to train and prepare individuals, with special emphasis on disadvantaged youth and dislocated workers, along the STEM career ladder/lattice with multiple entry and exit points; (2) leverage and align STEM education and training resources from a variety of funding sources and entities, so that individuals have expanded education and training options, and are served in a more coordinated and effective fashion; (3) understand the workforce needs of STEM employers and meet those needs with a variety of services, including placing skilled and prepared workers into STEM jobs; (4) support the establishment and strengthening of partnerships to ensure optimal STEM expertise and resources are available in the One Stop Career Centers; and (5) provide a replicable demonstration model as a resource for other One Stop Career Centers.
Five to seven STEM Centers of Excellence will be expected to build upon the current infrastructure and capabilities of the One Stop system. Grant funds used to develop the STEM Centers of Excellence must be used to also enhance and expand a variety of participant and employer services with a sole focus on STEM fields. The goal of this SGA is to develop strategies that support more workers to obtain post-secondary education and training leading to employment in STEM fields. NSF defines the following as STEM fields:
i. Biological Sciences (with the exception of medicine and other clinical fields);
ii. Physical Sciences, including physics, chemistry, astronomy, and materials science;
iii. Mathematical Sciences;
iv. Computer and Information Science;
v. Engineering; and
vi. Technology areas associated with the preceding fields—for example, biotechnology, chemical technology, engineering technology, nanotechnology, and information technology (with the exception of health, veterinary, or medical technicians).
The STEM resources and activities available through the STEM Centers of Excellence will provide individuals engaged in a STEM career pathway and STEM employers with a customized set of services that are driven by regional employer demand. The STEM Initiative will give special emphasis to disadvantaged youth in multiple educational pathway programs (i.e. alternative education) and dislocated workers, although other individuals with STEM aptitudes and/or interests may also be served in the STEM Centers of Excellence. While One Stop Career Centers have not traditionally targeted disadvantaged youth populations, it is the expectation of this solicitation that applicants will consider how to better address the needs of this integral STEM pipeline within the STEM Centers of Excellence.
To indicate the range of opportunities for individuals, the following is an example of a career ladder in advanced manufacturing:
• Entry level (laborer, packer, machine operator);
• Mid-level or two-year degree or tech prep (engineering technician, electronic technician, instrument maker, laboratory technician, mechanical technician); and
• Professional level (chemist, physicist, scientist, mechanical engineer, biochemical engineer).
ETA expects that the regional WIB consortium will coordinate through the STEM Centers of Excellence the integration of funding and activities available through the Workforce Investment Act of 1998 (WIA), and its partners with current STEM activities funded through other sources such as: NSF, Departments of Education, Energy and Defense, NASA, and EPA to enhance and expand workforce system participants' STEM education and training opportunities and experiences.
Applicants may pilot Career Advancement Accounts (CAAs) as part of this Initiative, which are self-managed accounts that enable current and future workers to gain skills needed to succeed in 21st century jobs. In addition, applicants are encouraged to create STEM-related registered apprenticeship programs and ETA will provide technical assistance, if needed.
• Intake/recruitment;
• Assessment of STEM interest and aptitude, including identification of skill gaps inhibiting employment opportunities, certifications, specific credentials, security clearances, technical skills, and business/soft skills;
• Development of a Career Blueprint (described below) based on the assessment;
• Job search and placement support provided by STEM Coaches and partnering employers; and
• STEM Mentors (described below).
An important part of each project will be the industry's identification of skills and competencies required in the STEM workforce region, which will require a strong partnership between regional STEM employers and training and education providers including the K-12 (primarily high schools and career and educational high schools), adult education, community and technical colleges, four year colleges and universities, and other training entities. This partnership will ensure that all participant activities in the STEM Centers of Excellence will be aligned with industry-driven STEM workforce education and training strategies including competency models, curricula, and new learning methodologies and technology-based learning. Please note that there is a large body of work completed on industry competencies and skills from a variety of sources, so in order to avoid duplication of efforts, ETA will work with grantees to connect them to resources to support this work.
• Recruiting and screening qualified STEM workers;
• Job listings;
• Limited incumbent worker training and linkage to other training resources (see definition of limited in Part I(C), Project Scope and Allowable Activities);
• Customized labor market information; and
• Job retention services such as mentoring and other services.
In addition to receiving these services, it is ETA's expectation that regional STEM employers will be actively engaged in the project and should participate fully in grant activities including: (1) Helping to define the STEM Centers of Excellence strategy and approach; (2) identifying needed skills and competencies; (3) designing training approaches and curricula; (4) implementing project activities; (5) contributing financial support; and (6) where appropriate, hiring qualified STEM education and training graduates.
STEM Coaches, who may be site-based or virtual, will serve a critical function in the STEM Centers of Excellence, forging ties to STEM employers and linking program participants to STEM employment, education, and training opportunities. Each proposal must include funding of at least one STEM Coach, and these individuals will be required to have a diverse and unique set of skills that will be valuable to both the worker and the employer.
To be successful at cultivating productive relationships with STEM enterprises in the regional economy and assisting workers in preparation and employment in STEM occupations, the STEM Coach must have:
• Experience as a recruiter of STEM professionals or as a STEM educator, and an understanding of STEM employment, including understanding of STEM workforce needs, hiring processes, and applicable job market requirements for enterprises in their assigned regions; and
• Understanding of skills and competencies in STEM.
Key services for employers and participants provided by the STEM Coaches were addressed in the previous section (B.1) STEM One Stop Workforce Centers of Excellence.
Many people currently in STEM careers had access to professionals who were in similar fields and could provide advice and support to help them succeed. Youth graduating from multiple educational pathway programs and dislocated workers may lack that social capital. However, in this Initiative, STEM Mentors will serve in this critical function to remove obstacles to achievement and support participants along the STEM career ladder/lattice.
STEM Mentors, who may be virtual or site-based, will clarify and identify career development opportunities for STEM job seekers that support both the individual and employer objectives. The STEM Mentor may be someone who is currently employed by industry, enrolled in a STEM academic program, or a STEM retiree who is interested in supporting youth and dislocated workers. The Mentor will offer ongoing support to the newly placed employee in the content areas of STEM, and also will encourage the character qualities required in the workplace (e.g. motivation, problem-solving, teamwork, adaptability/flexibility, and dependability/reliability). In addition, Mentors may be asked to support participants in education and training, if needed.
The STEM Mentor will be required to fulfill the following functions:
a. Participate in self-paced/long distance/or classroom-based orientation for mentor program;
b. Engage in a 6-month or 1 year commitment with protégé;
c. Meet regularly with the STEM candidate/student; and
d. Communicate with STEM candidate/student on an as-needed basis.
STEM Coaches will recruit STEM Mentors and connect them to the appropriate protégé. Applicants will need to articulate recruitment and outreach strategies for STEM Mentors and describe the mentoring activities that will be available to STEM candidates/students.
Participants in this Initiative will develop and test the concept of a “Career Blueprint,” which is an intentional career development framework and map synchronized with the skills and competencies needed to advance along a STEM career pathway for all individuals at all ages and stages of their lives. While somewhat similar in concept to an Individual Development Plan or Individual Education Plan, the Career Blueprint will take a longer-range view of career planning and will be a template tool for designing and building a personal career pathway plan. In addition to identifying
The Career Blueprint format will prompt the individual to plan for both work experiences and post-secondary education. For example, the Career Blueprint will suggest a range of options to consider, including work readiness credentials, pre-apprenticeships, internships, nontraditional apprenticeships, and on-the-job training. Post-secondary education at the community college level or above will be intertwined with the work experience components, rather than being considered a separate track. Lifelong learning, both formally and on-the-job, will be emphasized as an integral part of career planning.
Through the STEM Initiative, participating One Stop Career Centers and WIBs may receive ongoing intensive technical assistance (TA), at group meetings and individually, given by a cadre of STEM experts from a variety of organizations and Federal agencies. The STEM Initiative will also include the creation of a peer-to-peer learning community to give teams opportunities to share challenges and best practices. Technical assistance topics may include: Talent development of STEM Coaches, creation of nontraditional STEM apprenticeship programs, models of STEM career pathways, leveraging regional STEM resources, and best practices of STEM employer engagement. The STEM WIRED resource team, located in ETA, has documented many of the STEM resources and activities across agencies, foundations, associations, and the private sector and this document will serve as a resource for grantees.
At the end of the STEM Initiative, it is ETA's expectation that grantees will document best practices and lessons learned to disseminate widely to the workforce investment system to encourage and facilitate replication. In addition, grantees may serve as valuable resources for educational materials, ideas, contacts, and mentoring for the workforce system.
STEM Initiative grants will be funded by H-1B fees as authorized under Sec. 414(c) of the American Competitiveness and Workforce Improvement Act of 1998 (Pub. L. 105-277, title IV) as amended by Public Law 108-447 (codified at 29 U.S.C. 2916a). These funds are focused on the development of the workforce and may be used to provide job training and related activities to workers to assist them in gaining the skills and competencies needed to obtain and upgrade career ladder employment in STEM related industry sectors and occupations projected to experience significant growth or significant demand for workers. Whether the focus is on an industry sector or an occupational area, training investments using grant funds should focus on workforce education in high-skill occupations requiring significant science, technology, engineering, and/or mathematics skills. Funds available under this Solicitation may only be used for projects that provide training in the occupations and industries for which employers use H-1B visas that generate these funds and the related activities limited to those necessary to support training in such occupations and industries. Please see the attached list of STEM-related occupations and industries that have been identified as those for which employers use H-1B visas to employ foreign workers. Activities funded under this Solicitation must be focused on developing skills and competencies related to the fields identified in the Attachment.
Funds may also be used to enhance the provision of job training services and information as authorized in 29 U.S.C. 2916(a)(2)(B). Therefore, allowable activities under this Initiative may include:
• STEM education and training;
• Hiring of STEM Coaches;
• Purchase of STEM-related assessments for the One Stop Career Centers;
• Educational preparation of participants for NSF scholarships and other funding opportunities;
• Coordination and support of STEM work-based learning opportunities for participants such as on-the-job training (OJT) and apprenticeships;
• Career guidance;
• STEM Employer Services such as job listings and matches, assessments, and interviewing and prescreening;
• Job preparation and placement activities;
• Recruitment and outreach materials and activities to multiple educational pathway programs, faith and community-based organizations and other entities;
• Development and implementation of Career Blueprints;
• Summer academic enrichment activities;
• Development of new formats and innovative learning approaches to STEM courses and activities that increase accessibility to occupational training for participants;
• Assessment of skill levels, aptitudes, abilities, and supportive service needs of individuals;
• Support for participants' STEM school preparation and critical transition points such as high school to college, between 2- and 4-year college, and from undergraduate study to the workplace;
• Travel and related expenses to STEM trainings;
• On-site or virtual capacity-related infrastructure expenses that support STEM activities in the One Stop Career Centers;
• Establishment and expansion of partnerships and collaborations in order to build the STEM capacity of the region;
• Support for visiting faculty and industry practitioners to the One Stop Career Centers and partnering organizations to provide STEM disciplinary and topical seminars;
• STEM asset analysis and mapping;
• Documentation and dissemination of STEM resources, knowledge, and lessons learned through the grant;
• Limited STEM incumbent worker training that directly contributes to career progression in a STEM career;
• Limited STEM course and curriculum development, revision, and enhancement to partnering alternative secondary schools and higher education institutions;
• Limited enhancement of STEM equipment available for educational opportunities for participants to partnering alternative secondary schools and higher education institutions; and
• Other activities directly in support of the development of the skills necessary for careers in STEM fields.
Please note that the intention of the STEM Initiative is not to utilize grant funds to develop curriculum, provide incumbent worker training, and/or purchase equipment; therefore, the term “limited” means that no more than 10 percent of grant funds may be used for such purposes, without further justification and approval from the Grant Officer. ETA encourages these types of activities and will expect that the applicant will leverage other resources to enhance the project
Proposed projects must clearly outline how the activities and resources will result in the achievement of the overall objectives of the Initiative. At a minimum, applications must:
• Coordinate and strategically align regional STEM workforce preparation, education and training, and employment activities, strategies, and resources (new and existing), that will result in significant and sustainable impacts;
• Increase accessibility and broaden participation of STEM education and training opportunities for disadvantaged youth and dislocated workers;
• Increase numbers of workers placed in STEM employment;
• Increase access for STEM employers to job candidates with sought after skills and background;
• Establish, expand, and enhance strategic partnerships with the workforce system and regional STEM employers, the continuum of education including the K-12 system, adult education, higher education institutions including community colleges and multiple educational pathway programs, faith and community-based organizations, industrial and national laboratories, and STEM professional associations to build the region's STEM expertise, financial, and operational capacities;
• Increase retention of STEM students/participants and employees through STEM Mentors;
• Test and model the concepts of Career Blueprints, STEM Coaches, STEM Mentors, and STEM Centers of Excellence; and
• Disseminate results of the STEM workforce system model.
ETA intends to fund approximately 5-7 grants ranging from $1.5 million to $2 million through this competition. However, this does not preclude ETA from funding grants at either a lower or higher amount, or funding a smaller or larger number of projects, based on the type and the number of quality submissions. Applicants are encouraged to submit budgets for quality projects at whatever funding level is appropriate to their project. Nevertheless, applicants should recognize that the funds available through this solicitation are designed to complement additional leveraged resources rather than be the sole source of funds for the proposal.
The period of grant performance will be up to 36 months from the date of execution of the grant documents. This performance period shall include all necessary implementation and start-up activities, participant follow-up for performance outcomes, and grant close-out activities. A timeline clearly detailing the required grant activities and their expected completion dates must be included in the Phase II proposal grant application. ETA may elect to exercise its option to award no-cost extensions to grants for an additional period, based on the success of the program and other relevant factors, if the grantee applies for, and provides a significant justification for, such an extension.
An individual workforce investment board (WIB), representing a regional consortium of WIBs, is the eligible applicant. A WIB must submit an application on behalf of a specific, defined multi-county economic region comprised of various workforce investment areas that make up the consortium and demonstrate responsibility for administering the project. The application must demonstrate that the consortium of WIBs representing the region serve in partnership with this applicant, and should do so by submitting a letter of commitment in Phase I from each of the WIBs in the partnership. If the defined region is a rural area or a portion of a state whereby only one WIB exists, this exception must be explained in the Technical Proposal in Phase I. The grant application form (SF 424) should contain the information of the WIB that is serving as the grant recipient and must be signed by a duly authorized official.
Joint applications for regions that cross state lines will be accepted. Applications for multi-state regions must be from an individual WIB that will have responsibility for administering the project. The application must also demonstrate that the consortium of WIBs representing the multi-state region serve in partnership with this applicant, and should do so by submitting a letter of commitment in Phase I from each of the WIBs in the partnership.
Regional economies are typically defined as geographically contiguous areas. However, a proposal that persuasively makes an innovative case for a non-contiguous regional economy will be considered.
Cost sharing, matching, or cost participation is not required for eligibility; however, applicants are strongly encouraged to leverage resources from key entities in the strategic partnership in order to maximize the impact of the project in the region. Applicants should describe what resources, new and existing, may support the goals of the project and how they support STEM workers and employers. While the failure to offer leveraged resources as a part of an application will not preclude consideration of the application, it will place the applicant at a competitive disadvantage since one of the evaluation criteria in Phase II evaluates the quality of the leveraged resources. The identification of existing or planned STEM initiatives within the region that can be aligned and integrated with the applicant's proposed activities are also considered to be leveraged resources.
1.
ETA also encourages a broader partnership that may include major national laboratories and centers, private foundations, organizations that receive Federal STEM funding, and professional organizations that may align relevant financial and operational resources to support the goals of the Initiative. In addition, partnerships with faith-based and community organizations that provide recruitment and retention support to entry-level workers are also encouraged.
2.
Please note that these bonus points will not be available in Phase I of the competition although articulating a clear understanding of the context of STEM in the applicant's regional economy will be a part of the evaluation criteria in both phases of the competition.
3.
This solicitation contains all of the information and Web links to forms needed to apply for grant funding.
The competition will be implemented in two phases; a preliminary phase (Phase I) and the full proposal phase (Phase II). The proposal must consist of two (2) separate and distinct parts, Parts I and II, for both phases of the competition. Applications that fail to adhere to the instructions in this section will be considered non-responsive and may not be given further consideration. Applicants who wish to apply do not need to submit a Letter of Intent. The completed application package is all that is required.
1.
• The Standard Form (SF) 424, “Application for Federal Assistance” (available at
• All applicants for Federal grant and funding opportunities are required to have a Data Universal Numbering System (DUNS) number provided by Dun and Bradstreet. See Office of Management and Budget (OMB) Notice of Final Policy Issuance, 68 FR 38402 (June 27, 2003). Applicants must supply their DUNS number on the SF 424. The DUNS number is a nine-digit identification number that uniquely identifies business entities. Obtaining a DUNS number is easy and there is no charge. To obtain a DUNS number, access this Web site,
• The SF 424A Budget Information Form (available at
Please note that applicants that fail to provide a SF 424, SF 424A, and a budget narrative will be removed from consideration prior to the technical review process. If the proposal calls for integrating WIA or other Federal funds or includes other leveraged resources, these funds
Part II of the application is the Technical Proposal, which demonstrates the applicant's capabilities to plan and implement the activities of the STEM Initiative in accordance with the provisions of this solicitation.
For Phase I of the competition, the Technical Proposal will be limited to six (6) double-spaced, single-sided, 8.5 inch × 11 inch pages with 12 point text font and one-inch margins, which includes a project summary and description. Applicants should number the Phase I Proposal beginning with page number one. Any pages over the 6-page limit will not be reviewed. Except for the discussion of any leveraged resources to address the evaluation criteria, no cost data or reference to prices should be included in the Phase I Proposal. This six-page Phase I Technical Proposal should consist of the following:
•
•
2.
• The Standard Form (SF) 424, “Application for Federal Assistance” (available at
• All applicants for Federal grant and funding opportunities are required to have a Data Universal Numbering System (DUNS) number provided by Dun and Bradstreet. See Office of Management and Budget (OMB) Notice of Final Policy Issuance, 68 FR 38402 (June 27, 2003). Applicants must supply their DUNS number on the SF 424. The DUNS number is a nine-digit identification number that uniquely identifies business entities. Obtaining a DUNS number is easy and there is no charge. To obtain a DUNS number, access this Web site,
• The SF 424A Budget Information Form (available at
Please note that applicants that fail to provide a SF 424, SF 424A, and a budget narrative will be removed from consideration prior to the technical review process. If the proposal calls for integrating WIA or other Federal funds or includes other leveraged resources, these funds
Part II of the Phase II application is the full Technical Proposal that is limited to twenty (20) double-spaced, single-sided, 8.5 inch x 11 inch pages with 12 point text font and one-inch margins. Applicants should number the Phase II Proposal beginning with page number one. Any pages over the 20-page limit will not be reviewed. In addition, in attachments, which may not exceed ten (10) pages, the applicant may provide resumes, a list of staff positions to be funded by the grant, statistical information, general letters of support, and other related material. Please note that applicants
• A table of contents listing the application sections;
• A one to two-page timeline outlining project activities and an anticipated schedule for deliverables;
• A one to two-page abstract summarizing the proposed project and applicant profile information including: applicant name, project title, industry focus, partnership members, proposed education and training and STEM Centers of Excellence capacity building activities, funding level requested, the amount of leveraged resources, the target group(s), and a project description as described in the evaluation criteria in Section V(A) of this solicitation. The abstract should also clearly note how the consortium of WIBs and the region will be defined in the application and the points of access of delivery,
• A one to three-page summary of outcomes listing all projected STEM training, employment, and capacity building outcomes that includes the following:
•
•
•
Please note that the abstract, summary of outcomes, table of contents, and timeline are not included in the Phase II Proposal page limitation, but have their own page limitations, listed above. Applications that do not provide Part II of the Phase II application may be removed from consideration prior to the technical review process.
Applications may be submitted electronically on
The closing date for receipt of Phase I applications under this solicitation is March 11, 2008. Applicants receiving notice of recommendation to participate in Phase II of the competition will also receive information on the closing date for receipt of Phase II applications. For both phases of the competition, applications must be received at the address below or successfully submitted through grants.gov no later than 4 p.m. (Eastern Time). Applications sent by e-mail, telegram, or facsimile (fax) will not be accepted. Applications that do not meet the conditions set forth in this notice will not be honored. No exceptions to the mailing and delivery requirements set forth in this notice will be granted.
ETA will host a Virtual Prospective Applicant Conference for this grant competition on January 25, 2008 at 2 p.m. Eastern Time (ET). Registration for the Prospective Applicant Conference will be available at:
Mailed applications must be addressed to the U.S. Department of Labor, Employment and Training Administration, Division of Federal Assistance, Attention: Marsha Daniels, Reference SGA/DFA PY 07-03, 200 Constitution Avenue, NW., Room N-4716, Washington, DC 20210. Applicants are advised that mail delivery in the Washington area may be delayed due to mail decontamination procedures. Hand delivered proposals will be received at the above address.
Applicants may apply online through Grants.gov (
This funding opportunity is not subject to Executive Order (EO) 12372, “Intergovernmental Review of Federal Programs.”
Determinations of allowable costs will be made in accordance with the applicable Federal cost principles. Disallowed costs are those charges to a grant that the grantor agency or its representative determines not to be allowed in accordance with the applicable Federal Cost Principles or other conditions contained in the grant. Successful or unsuccessful applicants will not be entitled to reimbursement of pre-award costs.
Applications may be withdrawn by written notice at any time before an award is made. Applications may be withdrawn in person by the applicant or by an authorized representative thereof, if the representative's identity is made known and the representative signs a receipt for the proposal.
This section identifies and describes the criteria that will be used to evaluate the proposals in Phase I and Phase II of this competition. Distinct criteria and point values have been developed for each phase of the application process.
1.
Applicants must articulate a clear and specific need for the Federal investment, identify the region in which the grant activities will take place and demonstrate knowledge of regional economic, business, education, and workforce development dynamics that contribute to talent development strategies in STEM-related industries in the region.
2.
The applicant must identify proposed general project activities and strategic partnerships (new and existing), including the targeted STEM fields and the targeted populations to be served, and also include a preliminary description of how all activities, strategies, and resources will be coordinated and integrated by the consortium of WIBs through the STEM Centers of Excellence. In addition, proposals will be evaluated on the following:
• Has the applicant clearly articulated how the coordinated and strategically aligned regional STEM workforce preparation, education and training and employment activities, strategies and resources (new and existing) will result in significant and sustainable impacts and carry out the purposes of this solicitation?
• Has the applicant described clearly how the established, expanded, and enhanced strategic partnerships will build the region's STEM expertise, as well as the financial and operational capacities for the proposed project?
• Has the applicant described the recruitment and outreach efforts for targeted populations such as disadvantaged youth and dislocated workers?
3.
Applicants need to demonstrate a results-oriented approach to the STEM Initiative project by describing the proposed outcome measures relevant to measuring success and the long term impact of the project. In addition, proposals will be evaluated on the following:
• Has the applicant fully articulated how the proposed activities will result in the advancement of workforce system knowledge of and activities in STEM education and training?
• How do the proposed activities increase accessibility and broaden STEM education and training opportunities for disadvantaged youth and dislocated workers?
• Do the proposed project activities result in increased numbers in STEM employment and increased participation of STEM employers in the region?
1.
Under this criterion, applicants must fully articulate a clear and specific need for the federal investment and identify the region in which grant activities will take place. As part of the statement of need, applicants must demonstrate knowledge of regional economic, business, education, and workforce development dynamics that contribute to talent development strategies in STEM-related industries. In addition, applicants must:
• Describe the role of STEM employers in the local and regional economy and the impact of these employers on the regional economy;
• Demonstrate strong STEM employment opportunities in the local or regional labor market and the skills and competencies needed for these jobs;
• Identify STEM-related industries that are growing and expanding in the local and regional economy; and
• Describe efforts undertaken to date to coordinate and align resources for STEM activities and demonstrate why resources are needed to continue or begin those efforts.
2.
The applicant must demonstrate that the strategic partnership is a strong team of, at a minimum, the workforce system, the continuum of education, and STEM business and industry. Applicants must:
• Identify all partners and explain the meaningful and committed role that each partner will play in the project;
• Describe how new and existing partnerships will be engaged to coordinate STEM activities in the One Stop Career Centers;
• Elaborate on how leveraged resources and partnerships will achieve more significant impacts;
• Demonstrate existing coordination of partnerships or capacity to quickly establish these links;
• Demonstrate how established, expanded, or enhanced strategic partnerships with the workforce system and regional STEM employers, higher education institutions including community colleges, multiple educational pathway programs, faith and community-based organizations, industrial and national laboratories, and STEM professional associations build the region's STEM expertise, financial, and operational capacities; and
• Describe new or established articulation agreements between multiple educational pathway programs (i.e. Alternative Education) and two-year colleges, or providing pathways from two-year colleges to four-year colleges or university programs to enhance and expand the project.
Points for this criterion will be awarded based on several factors:
• The completeness of the partnership, based on project design (5 points);
• The degree of meaningful engagement of partners in project activities (5 points);
• The extent to which the applicant integrates partners' strengths and assets into project design and implementation (5 points); and
• The extent to which strategic partnerships expand the region's STEM-related capacities (5 points).
3.
The applicant must fully describe how the proposed project would be operationalized and how all activities, strategies, and resources will be coordinated by the consortium of WIBs through the STEM Centers of Excellence to support the STEM careers of participants while assisting STEM employers in remaining competitive in the regional economy. Elements in this section should address:
• The primary grant activities and how they will be designed and implemented in the STEM Centers of Excellence in order to achieve the initiative's key features, goals and objectives;
• Timeline for the proposed activities with measurable milestones;
• Capacity of One Stop Career Centers and WIB consortium to provide services and align resources;
• STEM fields targeted for project;
• Number of individuals and employers served and type of activities;
• Number of new partnerships created or existing partnerships expanded;
• The proposed innovative training and education activities and strategies targeting skills demanded by regional STEM employers;
• Development and implementation of a Career Blueprint and how it will support participants' long-term STEM career growth along a defined career pathway;
• Strategies for effective recruitment, mentoring, retention, and educational and training completion of participants, particularly the recruitment of disadvantaged youth and dislocated workers, including the role and responsibilities of STEM Coaches and Mentors;
• How the program will effectively identify and recruit STEM Mentors;
• How the project will identify and address the knowledge, skills, and competencies needed by the STEM workforce for the evolving, converging, and emerging industries;
• How this project will complement, enhance, or link to existing STEM efforts in the region;
• The integration of the proposed activities of the grant into broader regional economic development strategies; and
• Sustainability strategies and methods after DOL funding ends.
Points for this criterion will be awarded based on several factors:
• The completeness of the project description, and evidence that proposed activities will achieve the objectives of this solicitation, as described in Part I(C), including clear strategies for implementation and operalization (10 points);
• Evidence that the proposed activities test and model the concepts of Career Blueprint, STEM Coach, STEM Mentors, and STEM Centers of Excellence (5 points);
• Demonstrated capacity of One Stop Career Centers and WIB consortium to provide services and align resources (5 points);
• Evidence that the proposed activities clearly link to STEM efforts in the region (2 points); and
• The existence of a clear sustainability plan that will continue to support activities of the STEM Centers of Excellence beyond DOL funding (3 points).
4.
Applicants need to demonstrate a results-oriented approach to managing and operating the STEM Initiative project by fully describing the proposed outcome measures relevant to measuring success or impact of the project. Scoring on this criterion will be based on:
• A full and accurate description of project outcomes that includes baseline numbers for tracking progress, benchmarks of outcome goals, and the method(s) of evaluating impact (10 points). This description must include:
• Training and education outcomes including the adult common measures: job placement, retention, and average earnings;
• Identification of types of credentials that participants will earn as a result of the training and/or education;
• Identification of types of STEM work-based learning opportunities for participants;
• STEM Centers of Excellence capacity building outcomes such as competency models, career guidance materials, and Career Blueprint templates;
• The extent to which the project will broaden participation of disadvantaged youth and dislocated workers in STEM careers through new or more effective approaches, strategies, or models; and
• The increase in new and/or different partnerships to align STEM resources and activities.
• The extent to which outcomes are measurable, realistic, and consistent with the objectives of the project (10 points);
• Evidence that the proposed activities will contribute to the knowledge base on increasing the diverse and full participation of the STEM pipeline (5 points); and
• Demonstration of regional impact with regards to alignment of STEM resources, expertise, and programs (5 points).
5.
To satisfy this criterion, applicants must describe their proposed project management structure including, where appropriate, the identification of a proposed project manager, discussion of the proposed staffing pattern, and the qualifications and experience of key staff members. Applicants should also show evidence of the use of data systems to track outcomes in a timely and accurate manner. The applicant should include a description of organizational capacity and the organization's track record in projects similar to that described in the proposal and/or related activities of the primary partners.
Scoring under this criterion will be based on the extent to which applicants provide evidence of the following:
• The time commitment of the proposed staff is sufficient to ensure
• The roles and contribution of staff, consultants, and collaborative organizations are clearly defined and linked to specific objects and tasks;
• The background, experience, and other qualifications of the staff are sufficient to carry out their designated roles;
• The applicant organization has significant capacity to accomplish the goals and outcomes of the project, including the ability to collect and manage data in a way that allows consistent, accurate, and expedient reporting; and
• The budget is sufficient to meet project goals.
6.
Applicants that provide evidence of regional STEM analysis or inventory and linkages to the proposed project will receive five bonus points. Partial bonus points will not be awarded. Applicants must fully describe efforts undertaken to date to coordinate and align resources for STEM activities and demonstrate why resources are needed to continue or begin those efforts. The applicant must also provide evidence of any such efforts, including regional STEM analysis, asset mapping, or inventory of STEM-related activities that would support the goals of this Initiative.
Applications for STEM Initiative grants will be accepted after the publication of this announcement until the closing date for the Phase I and Phase II proposal submissions of the competition, respectively. In both phases, a technical review panel will make a careful evaluation of applications against the criteria set forth in section V(A) of this solicitation. These criteria are based on the policy goals, priorities, and emphases set forth in this solicitation. Up to 100 points may be awarded for a Phase I application, and up to 105 points may be awarded for a Phase II application, based on the required information described in section V(A) of this solicitation.
Phase I proposals provide an opportunity to assess the responsiveness of the project to the solicitation guidelines and the potential to compete successfully in the Phase II proposal review process. In Phase I, the ranked scores will serve as the primary basis for selection of applicants that will be recommended for participation in the Phase II proposal competition, in conjunction with other factors such as urban, rural, and geographic balance; industry balance; and which proposals are most advantageous to the Government. All applicants are required to submit Phase I proposals and after completion of the Phase I proposal review, applicants that are selected will receive a notice of recommendation to participate in the Phase II proposal competition as well as written comments on the Phase I proposal and other technical assistance. Please note that the applicant's notification of recommendation for submission of a Phase II proposal does not imply or confer approval of commitments, obligations, or awards on behalf of ETA or authorize the expenditure of funds.
In Phase II of the competition, a technical review panel will make careful evaluation of full proposal applications against the criteria set forth in section V(A) of this solicitation. The ranked scores will again serve as the primary basis for selection of applications for funding though other factors (such as urban, rural, and geographic balance; industry balance; the availability of funds, and which proposals are most advantageous to the Government) will also be considered. Applicants that only submit full proposals for Phase I will not be reviewed.
In both the Phase I and Phase II proposal reviews, proposals that are timely and responsive to the requirements of this solicitation will be rated against the criteria listed above for each phase by an independent panel comprised of representatives from DOL, other Federal agencies, STEM professionals and other peers. The panel results are advisory in nature and not binding on the Grant Officer in both phases of the competition, who may consider any information that comes to his attention. DOL may elect to award the grant(s) with or without prior discussions with the applicants. Should a grant be awarded without discussions, the award will be based on the applicant's signature on the SF 424, which constitutes a binding offer.
All award notifications will be posted on the ETA Homepage (
All grantees will be subject to all applicable Federal laws, regulations, and the applicable OMB Circulars. The grant(s) awarded under this solicitation will be subject to the following administrative standards and provisions, if applicable:
a.
b.
c.
d.
e.
f. All entities must comply with 29 CFR parts 93 and 98, and, where applicable, 29 CFR parts 96 and 99.
g. The following administrative standards and provisions may also be applicable:
i.
ii.
iii.
iv.
v.
vi.
vii.
vii.
In accordance with section 18 of the Lobbying Disclosure Act of 1995 (Pub. L. 104-65) (2 U.S.C. 1611) non-profit entities incorporated under Internal Revenue Service Code section 501(c)(4) that engage in lobbying activities are not eligible to receive Federal funds and grants.
Except as specifically provided in this Notice, DOL/ETA's acceptance of a proposal and an award of Federal funds to sponsor any program(s) does not provide a waiver of any grant requirements and/or procedures. For example, OMB Circulars require that an entity's procurement procedures must ensure that all procurement transactions are conducted, as much as practical, to provide open and free competition. If a proposal identifies a specific entity to provide services, the DOL/ETA's award does not provide the justification or basis to sole source the procurement, i.e., avoid competition, unless the activity is regarded as the primary work of an official partner to the application.
The grantee is required to provide the reports and documents listed below:
• General Grant Information, including a summary of grant activities and a status update on leveraged resources and strategic partner activities;
• A Grant Timeline that includes the progress of grant activities, the key deliverables for each quarter, and the products available each quarter;
• Grant Outcomes will include but are not limited to: Enrollment, number completed training, number of certificates awarded, ETA's Common Measures, including entered employment, employment retention, and average earnings; number entered into employment related to training; and number receiving wage gains and promotions;
• Highlights of Promising Approaches and Success Stories; and
• Description of Technical Assistance Needs.
For further information regarding this solicitation, please contact Marsha Daniels, Grants Management Specialist, Division of Federal Assistance, at (202) 693-3504 (Please note this is not a toll-free number). Applicants should fax all technical questions to (202) 693-2879 and must specifically address the fax to the attention of Marsha Daniels and should include SGA/DFA PY 07-03, a contact name, fax and phone number, and email address. This announcement is being made available on the ETA Web site at
According to the Paperwork Reduction Act of 1995, no persons are required to respond to a collection of information unless such collection displays a valid OMB control number. Public reporting burden for this collection of information is estimated to average 20 hours per response, including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding the burden estimated or any other aspect of this collection of information, including suggestions for reducing this burden, to the U.S. Department of Labor, the OMB Desk Officer for ETA, Office of Management and Budget, Room 10235, Washington, DC 20503. PLEASE DO NOT RETURN YOUR COMPLETED APPLICATION TO THE OMB. SEND IT TO THE SPONSORING AGENCY AS SPECIFIED IN THIS SOLICITATION.
This information is being collected for the purpose of awarding a grant. The information collected through this “Solicitation for Grant Applications” will be used by the Department of Labor to ensure that grants are awarded to the applicant best suited to perform the functions of the grant. Submission of this information is required in order for the applicant to be considered for award of this grant. Unless otherwise specifically noted in this announcement, information submitted in the respondent's application is not considered to be confidential.
DOL maintains a number of web-based resources that may be of assistance to applicants.
• The Web site for the Employment and Training Administration (
• “The STEM Workforce Challenge: The Role of the Public Workforce System in a National Solution for a Competitive Science, Technology, Engineering, and Mathematics (STEM) Workforce,” paper, Department of Labor, April 2007, available at
• The Workforce
• America's Service Locator (
• Career Voyages (
• For more information on the work that ETA has undertaken on multiple education pathways, please go to:
• Applicants are encouraged to review “Help With Solicitation for Grant Applications” (
• For a basic understanding of the grants process and basic responsibilities of receiving Federal grant support, please see “Guidance for Faith-Based and Community Organizations on Partnering with the Federal Government” (
Additional resources that may be beneficial for applicants are listed below:
• The U.S. Department of Education's Office of Vocational and Adult Education maintains a list of high school reform models that work, available here:
• “Building a Portfolio of High Schools: A Strategic Investment Toolkit,” paper, Jobs for the Future, February 2006, available at
• “Strengthening Transitions by Encouraging Career Pathways: A Look at State Policies and Practices,” paper, Community College Research Center, January 2006, available at
• “Career Pathways: Aligning Public Resources to Support Individual and Regional Economic Advancement in the Knowledge Economy,” paper, Workforce Strategy Center, August 2006, available at
• “What Your Community Can Do to End Its Drop-Out Crisis: Learnings from Research and Practice,” paper, Center for Social Organization of Schools, Johns Hopkins University, May 2007, available at
• Computer Systems Design and Related Services.
• Software Development/Software Publishers.
• Data Processing Services.
• Information Services.
Telecommunications.
Scientific Research and Development Services (including biotechnology).
Scientific and Technical Consulting (including biotechnology).
Architecture, Engineering, Surveying.
Specialized Design Services.
Construction/Skilled Trades.
• Accounting, Tax Preparation, Bookkeeping & Payroll Services.
• Financial Investment.
• Securities & Commodity Brokerage/Contracts.
• Business Support Services.
• Insurance Carriers, Agencies, Brokerages, and Insurance and Employee Benefit Funds.
• Credit Intermediation.
• Semiconductor and Other Electronic Component Manufacturing.
• Computer, Electronic Product, and Peripheral Equipment Manufacturing.
• Pharmaceutical and Medicine Manufacturing.
• Communications Equipment Manufacturing.
• Navigational, Measuring, Electromedical, and Control Instruments Manufacturing.
• Industrial Machinery Manufacturing.
• Aerospace Manufacturing.
• Chemical and Petrochemical Manufacturing.
• Motor Vehicle and Parts Manufacturing.
• Medical Equipment and Supplies Manufacturing.
• Metalworking Manufacturing.
• Food Manufacturing.
• Other Miscellaneous Manufacturing.
• General Medical and Surgical Hospitals and Other Hospitals.
• Offices of Physicians.
• Offices of Dentists.
• Offices of Other Health Practitioners.
• Medical and Diagnostic Laboratories.
• Nursing and Residential Care Facilities.
• Home Health Care Services.
• Electric Power Generation, Transmission, and Distribution.
• Oil & Gas Extraction, Refining, and Production.
• Mining and Support Activities for Mining.
• Pipeline Transportation.
• Air Transportation.
• Freight and Truck Transportation.
• Water Transportation.
• Transportation Support.
• Systems Analysis and Programming.
• Data Communications and Networks.
• Computer Systems Technical Support.
• Computer Systems User Support.
• Aeronautical.
• Electrical.
• Civil.
• Ceramic.
• Mechanical.
• Chemical.
• Mining and Petroleum.
• Metallurgy and Metallurgical.
• Industrial.
• Agricultural.
• Marine.
• Nuclear.
• Drafters.
• Surveying/Cartographic.
• Architectural.
• Mathematics.
• Astronomy.
• Chemistry.
• Physics.
• Geology.
• Meteorology.
• Agricultural Sciences.
• Biological Sciences.
• Physicians/Surgeons.
• Osteopaths.
• Dentists.
• Veterinarians.
• Pharmacists.
• Registered Nurses.
• Therapists.
• Dieticians.
• Medical and Dental Technology.
• Other Health Care Practitioners.
• Accountants/Auditors.
• Bookkeepers/Payroll Services.
• Budget and Management Systems Analysis.
• Finance, Insurance, and Real Estate Management.
• Purchasing Managers.
• Agents/Appraisers.
• Process Technicians.
• Mechanics/Mechanical Engineering Technicians.
In accordance with Section 223 of the Trade Act of 1974 (19 U.S.C. 2273), and Section 246 of the Trade Act of 1974 (26 U.S.C. 2813), as amended, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance on November 14, 2007, applicable to workers of Atreum-Brighton, a subsidiary of Magna International, Decoma International Division, including on-site leased workers from Qualified Staffing and Aerotek, Brighton, Michigan. The notice was published in the
At the request of a petitioner, the Department reviewed the certification for workers of the subject firm. The workers are engaged in the production of door panels and various other injection molded parts for the automobile industry.
New information shows that workers of Hubbard Supply Company were employed on-site at the Brighton, Michigan location of Atreum-Brighton, a subsidiary of Magna International, Decoma International Division. The Department has determined that these workers were sufficiently under the control of the subject firm and should be considered part of the affected worker group.
Based on these findings, the Department is amending this certification to include workers of Hubbard Supply Company working on-site at the Brighton, Michigan location of the subject firm.
The intent of the Department's certification is to include all workers at Atreum-Brighton, a subsidiary of Magna International, Decoma International Division, Brighton, Michigan who were adversely-impacted by a shift in production of door panels and various other injection molded parts for automobile industry to Mexico and Canada.
The amended notice applicable to TA-W-62,396 is hereby issued as follows:
All workers of Atreum-Brighton, a subsidiary of Magna International, Decoma International Division, including on-site leased workers from Qualified Staffing and Aerotek, and on-site workers from Hubbard Supply Company, Brighton, Michigan, who became totally or partially separated from employment on or after October 30, 2006, through November 14, 2009, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974, and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.
By application dated December 2, 2007, a petitioner requested administrative reconsideration of the Department's negative determination regarding eligibility for workers and former workers of the subject firm to apply for Trade Adjustment Assistance (TAA). The denial notice was signed on November 16, 2007 and published in the
Pursuant to 29 CFR 90.18(c) reconsideration may be granted under the following circumstances:
(1) If it appears on the basis of facts not previously considered that the determination complained of was erroneous;
(2) If it appears that the determination complained of was based on a mistake in the determination of facts not previously considered; or
(3) If in the opinion of the Certifying Officer, a misinterpretation of facts or of the law justified reconsideration of the decision.
The TAA petition, which was filed on behalf of workers at Newburgh Hardwood Co., Inc., Newburgh, Indiana engaged in the hardwood veneer consulting services, was denied based on the findings that the firm did not employ a worker group during the one year prior to the petition filing date, as required by Section 222 of the Trade Act of 1974. A worker group means three or more workers in a firm or appropriate subdivision. The subject firm did not meet this threshold level. The investigation also revealed that the subject firm does not produce an article within the meaning of Section 222(a)(2) of the Act.
In the request for reconsideration the petitioner indicates a number of reasons as to why he should be eligible for TAA.
When assessing eligibility for TAA, the Department makes its determinations based on the requirements as outlined in Section 222 of the Trade Act. In particular, the Department defines an eligible worker “group” as “three or more workers in a firm or an appropriate subdivision thereof.” As subject firm's total worker number was one in the relevant period, the worker does not meet the group eligibility requirements for trade adjustment assistance.
After review of the application and investigative findings, I conclude that there has been no error or misinterpretation of the law or of the facts which would justify reconsideration of the Department of Labor's prior decision. Accordingly, the application is denied.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or containing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed.
Submit comments on or before March 17, 2008.
Send comments to Debbie Ferraro, Records Management Branch, 1100 Wilson Boulevard, Room 2141, Arlington, VA 22209-3939. Commenters are encouraged to send their comments on computer disk, or via e-mail to
Contact the employee listed in the
The Coal Mine Health and Safety Act of 1969 was amended by the Federal Mine Safety and Health Act of 1977 after the Buffalo Creek dam failure in 1972 in West Virginia. The refuse pile and impound standards, Title 30 CFR sections 77.215 and 77.216 had been enacted earlier in 1975 and were incorporated into the Act. Additional parts of these Sections were promulgated and enacted in 1992. The standards require that the agency approve prudently engineered design plans for dams and their impoundments, as well as the plans for hazardous refuse piles that are routinely constructed by coal mine operators. Plan revisions are also required to be submitted for approval. In addition, the standards also require plans when one of these sites is to be abandoned. And plans are required when spontaneous fires erupt and need to be extinguished at the burning site. Records of weekly inspections and instrument monitoring are also required to ensure that the sites remain safe. Finally, the mine operators are also required to submit an annual status report and certification that guarantees that the site is being constructed in accordance with the approved plan, and the site has not been altered during the construction year.
Currently, the Mine Safety and Health Administration (MSHA) is soliciting comments concerning the proposed extension of the information collection requirement related to the Refuse Piles and Impoundment Structures, Recordkeeping and Reporting Requirements. MSHA is particularly interested in comments that:
• Evaluate whether the proposed collection of information is necessary for the proper performance of MSHA's functions, including whether the information has practical utility;
• Evaluate the accuracy of MSHA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Suggest methods to enhance the quality, utility, and clarity of the information to be collected; and
• Address the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, (
A copy of the proposed information collection request can be obtained by contacting the employee listed in the
There are approximately 646 coal mine impounding structures and 46 hazardous refuse piles, for a total of 692 sites. All impoundments and hazardous refuse piles are required by the standards to be constructed and operated in an approved manner. In addition, coal mine operators frequently revise construction plans to accommodate mining conditions, cycles or markets. Since these revisions to the structures can adversely affect a great number of people, such changes are required to be planned in a prudent manner and approved by the agency. Fire extinguishing plans are only required from an operator when a spontaneous combustion has occurred, and the operator is directed to extinguish the fire. Inspections on a weekly basis, or inspections at a longer interval for long established and stable impoundments (after the regulation changes in 1992), are required to ensure that precipitation, seismic activity, or perhaps an unknown construction flaw, has not adversely affected any part of the dam site. The annual status report and certification ensures that the company's engineers confirm that the site is in accordance with the approved engineering plan. An abandonment plan approved by the agency ensures that a hazardous site is not left in place after all mining activity has ceased.
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
National Archives and Records Administration (NARA).
Notice.
NARA is giving public notice that the agency proposes to request extension of a currently approved information collection used to advise requesters of (1) the correct procedures to follow when requesting certified copies of records for use in civil litigation or criminal actions in courts of law, and (2) the information to be provided so that records may be identified. The public is invited to comment on the proposed information collection pursuant to the Paperwork Reduction Act of 1995.
Written comments must be received on or before March 17, 2008 to be assured of consideration.
Comments should be sent to: Paperwork Reduction Act Comments (NHP), Room 4400, National Archives and Records Administration, 8601 Adelphi Rd., College Park, MD 20740-6001; or faxed to 301-713-7409; or electronically mailed to
Requests for additional information or copies of the proposed information collection and supporting statement should be directed to Tamee Fechhelm at telephone number 301-837-1694, or fax number 301-713-7409.
Pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13), NARA invites the general public and other Federal agencies to comment on proposed information collections. The comments and suggestions should address one or more of the following points: (a) Whether the proposed information collection is necessary for the proper performance of the functions of NARA; (b) the accuracy of NARA's estimate of the burden of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including the use of information technology; and (e) whether small businesses are affected by this collection. The comments that are submitted will be summarized and included in the NARA request for Office of Management and Budget (OMB) approval. All comments will become a matter of public record. In this notice, NARA is soliciting comments concerning the following information collection:
1.
Institute of Museum and Library Services (IMLS), NFAH.
Notice of meeting.
This notice sets forth the agenda of the forthcoming meeting of the National Museum and Library Services Board. This notice also describes the function of the Board. Notice of the meeting is required under the Sunshine in Government Act.
Wednesday, January 30, 2008 from 1:30 p.m. to 4:30 p.m.
Thirteenth National Museum and Library Services Board Meeting:
The meeting will be held in the Perdue Board Room at the High Museum of Arts, 1280 Peachtree Street, NE., Atlanta, Georgia. Telephone: (404) 733-4400.
Elizabeth Lyons, Special Events and Board Liaison, Institute of Museum and Library Services, 1800 M Street, NW., 9th Floor, Washington, DC 20036. Telephone: (202) 653-4676.
The National Museum and Library Services Board is established under the Museum and Library Services Act, 20 U.S.C. section 9101
National Institute for Literacy.
Notice of an Open Meeting.
This notice sets forth the schedule and proposed agenda of an upcoming open meeting of the National Institute for Literacy Advisory Board. The notice also describes the functions
January 30-31, 2008.
1775 I St., NW., Suite 730, Washington, DC 20006.
Steve Langley, Staff Assistant, the National Institute for Literacy; 1775 I St., NW., Suite 730; phone: (202) 233-2043; fax: (202) 233-2050; e-mail:
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FRS) at 1-800-877-8339.
The National Institute for Literacy Advisory Board is authorized by section 242 of the Workforce Investment Act of 1998, Public Law 105-220 (20 U.S.C. 9252). The Board consists of 10 individuals appointed by the President with the advice and consent of the Senate. The Board advises and makes recommendations to the Interagency Group that administers the Institute. The Interagency Group is composed of the Secretaries of Education, Labor, and Health and Human Services. The Interagency Group considers the Board's recommendations in planning the goals of the Institute and in implementing any programs to achieve those goals. Specifically, the Board performs the following functions: (a) Makes recommendations concerning the appointment of the Director and the staff of the Institute; (b) provides independent advice on operation of the Institute; and (c) receives reports from the Interagency Group and the Institute's Director.
The purpose of this meeting is to discuss the Institute's future and current program priorities; status of on-going Institute work; other relevant literacy activities and issues; and other Board business as necessary.
Individuals who will need accommodations for a disability to attend the meeting (e.g., interpreting services, assistance listening devices, or materials in alternative format) should notify Steve Langley at 202-233-2043 no later than January 19, 2008. We will attempt to meet requests for accommodations after this date but cannot guarantee their availability. The meeting site is accessible to individuals with disabilities.
Records are kept of all Committee proceedings and are available for public inspection at the National Institute for Literacy, 1775 I St., NW., Suite 730, Washington, DC 20006, from the hours of 9 a.m. to 5 p.m., Eastern Standard Time Monday through Friday.
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO) toll free at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
The official version of this document is the document published in the
9:30 a.m. Wednesday, January 23, 2008.
NTSB Conference Center, 429 L'Enfant Plaza SW., Washington, DC 20594.
The one item is open to the public.
Telephone: (202) 314-6100.
Individuals requesting specific accommodations should contact Chris Bisett at (202) 314-6305 by Friday, January 18, 2008.
The public may view the meeting via a live or archived webcast by accessing a link under “News & Events” on the NTSB home page at
Vicky D'Onofrio, (202) 314-6410.
Pursuant to section 189a(2) of the Atomic Energy Act of 1954, as amended (the Act), the U.S. Nuclear Regulatory Commission (the Commission or NRC staff) is publishing this regular biweekly notice. The Act requires the Commission publish notice of any amendments issued, or proposed to be issued and grants the Commission the authority to issue and make immediately effective any amendment to an operating license upon a determination by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person.
This biweekly notice includes all notices of amendments issued, or proposed to be issued from December 20, 2007 to January 2, 2008. The last biweekly notice was published on December 31, 2007 (72 FR 74354).
The Commission has made a proposed determination that the following amendment requests involve no significant hazards consideration. Under the Commission's regulations in 10 CFR 50.92, this means that operation of the facility in accordance with the proposed amendment would not (1) involve a significant increase in the probability or consequences of an
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination. Within 60 days after the date of publication of this notice, the licensee may file a request for a hearing with respect to issuance of the amendment to the subject facility operating license and any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written request for a hearing and a petition for leave to intervene.
Normally, the Commission will not issue the amendment until the expiration of 60 days after the date of publication of this notice. The Commission may issue the license amendment before expiration of the 60-day period provided that its final determination is that the amendment involves no significant hazards consideration. In addition, the Commission may issue the amendment prior to the expiration of the 30-day comment period should circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example in derating or shutdown of the facility. Should the Commission take action prior to the expiration of either the comment period or the notice period, it will publish in the
Written comments may be submitted by mail to the Chief, Rulemaking, Directives and Editing Branch, Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and should cite the publication date and page number of this
Within 60 days after the date of publication of this notice, person(s) may file a request for a hearing with respect to issuance of the amendment to the subject facility operating license and any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written request via electronic submission through the NRC E-Filing system for a hearing and a petition for leave to intervene. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Rules of Practice for Domestic Licensing Proceedings” in 10 CFR part 2. Interested person(s) should consult a current copy of 10 CFR 2.309, which is available at the Commission's PDR, located at One White Flint North, Public File Area 01F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the Agencywide Documents Access and Management System's (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,
As required by 10 CFR 2.309, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements: (1) The name, address, and telephone number of the requestor or petitioner; (2) the nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the requestor's/petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the requestor's/petitioner's interest. The petition must also set forth the specific contentions which the petitioner/requestor seeks to have litigated at the proceeding.
Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner/requestor shall provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner/requestor intends to rely in proving the contention at the hearing. The petitioner/requestor must also provide references to those specific sources and documents of which the petitioner is aware and on which the petitioner/requestor intends to rely to establish those facts or expert opinion. The petition must include sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the petitioner/requestor to relief. A petitioner/requestor who fails to satisfy these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing.
If a hearing is requested, and the Commission has not made a final determination on the issue of no significant hazards consideration, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, any hearing held would take place before the issuance of any amendment.
A request for hearing or a petition for leave to intervene must be filed in accordance with the NRC E-Filing rule, which the NRC promulgated in August 28, 2007, (72 FR 49139). The E-Filing process requires participants to submit and serve documents over the Internet or in some cases to mail copies on
To comply with the procedural requirements of E-Filing, at least five (5) days prior to the filing deadline, the petitioner/requestor must contact the Office of the Secretary by e-mail at
Once a petitioner/requestor has obtained a digital ID certificate, had a docket created, and downloaded the EIE viewer, it can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC public Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file a motion, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville, Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service.
Non-timely requests and/or petitions and contentions will not be entertained absent a determination by the Commission, the presiding officer, or the Atomic Safety and Licensing Board that the petition and/or request should be granted and/or the contentions should be admitted, based on a balancing of the factors specified in 10 CFR 2.309(c)(1)(i)-(viii). To be timely, filings must be submitted no later than 11:59 p.m. Eastern Time on the due date.
Documents submitted in adjudicatory proceedings will appear in NRC's electronic hearing docket which is available to the public at
For further details with respect to this amendment action, see the application for amendment which is available for public inspection at the Commission's PDR, located at One White Flint North, Public File Area 01F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the ADAMS Public Electronic Reading Room on the Internet at the NRC Web site,
1. The Proposed Change Does Not Involve a Significant Increase in the Probability or Consequences of an Accident Previously Evaluated.
The proposed change is related to the Isolation Valve Seal Water System. This is a postaccident dose mitigating system and has no impact on the probability of an accident occurring. The proposed change to SR 3.6.8.2 is a clarification that does not impact the system design or operation. The proposed change to SR 3.6.8.6 revises the methodology used to establish the system flow limits, but maintains the same total flow limitation and consistency with the system design. Therefore, operation of the facility in accordance with the proposed amendment would not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. The Proposed Change Does Not Create the Possibility of a New or Different Kind of Accident From Any Previously Evaluated.
The proposed change does not impact the design of the system and does not increase the potential for a failure that would result in an accident of a different kind.
Therefore, operation of the facility in accordance with the proposed amendment would not create the possibility of a new or different kind of accident from any previously evaluated.
3. The Proposed Change Does Not Involve a Significant Reduction in the Margin of Safety.
The proposed change does not revise the total leakage limit or the design requirements for the Isolation Valve Seal Water System. There is no impact on the capability of the containment as a fission product barrier.
Therefore, operation of the facility in accordance with the proposed amendment would not involve a significant reduction in the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The spray nozzles and the associated containment spray system are designed to perform accident mitigation functions only. The containment spray system and associated components are not considered as initiators of any analyzed accidents. The proposed change does not modify any plant equipment. The proposed change modifies the frequency for performance of a surveillance test which does not impact any failure modes that could lead to an accident. The proposed frequency change does not effect the ability of the spray nozzles or spray system to perform its accident mitigation function as assumed and therefore there is no effect on the consequence of any accident. Verification of no blockage continues to be required, but now as a function of activities that could result in blockage rather than an arbitrary surveillance frequency. Based on this discussion, the proposed amendment does not increase the probability or consequence of an accident previously evaluated.
Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The containment spray system is not being physically modified and there is no impact on the capability of the system to perform accident mitigation functions. No system setpoints are being modified and no changes are being made to the method in which borated water is delivered to the spray nozzles. The testing requirements imposed by this proposed change to check for nozzle blockage following activities that could cause nozzle blockage do not introduce new failure modes for the system. The proposed amendment does not introduce accident initiators or malfunctions that would cause a new or different kind of accident. Therefore, the proposed amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated.
Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed change does not change or introduce any new setpoints at which mitigating functions are initiated. No changes to the design parameters of the containment spray system are being proposed. No changes in system operation are being proposed by this change that would impact an established safety margin. The proposed change modifies the frequency for verification of nozzle operability in such a way that continued high confidence exists that the containment spray system will continue to function as designed. Therefore, based on the above, the proposed amendment does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Do the proposed changes involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The accident analyses documented in Chapter 6 and 15 of the FSAR [Final Safety Analysis Report] have been reanalyzed at the SPU [Stretch Power Uprate] conditions. For some accidents, credit has been taken for a number of minor modifications that will be installed in order to maintain analytical and operating margin. These minor modifications include the following:
• Installation of a Safety Injection Actuation Signal permissive for the charging injection isolation valves.
• Installation of an electronic filter on the T-hot temperature input into the Reactor Protection System and modification of the Over-temperature Delta T and Over-power Delta T reactor trip set points.
• Elimination of the automatic rod withdrawal capability for the rod control system.
• Installation of an automatic initiation of pressurized filtration mode of the Control Building ventilation system.
Technical Specifications (TS) changes, as appropriate, have been proposed to reflect the implementation of these modifications. The revised accident analyses have been performed with current state-of-the-art methodologies that have been generically approved by the NRC [Nuclear Regulatory Commission]. All restrictions and limitations of these methodologies, including those identified by the NRC, have been met in the application of these methodologies to the SPU accident analyses. The results of the accident analyses at SPU conditions together with the proposed modifications demonstrate that all design basis criteria are met and that the SPU does not result in a significant increase in the consequences of any previously evaluated accidents.
Analyses have been performed for operational transients that have identified some changes to control system set points. These changes assure that the control systems will respond and limit challenges to the Reactor Protection System (RPS) and Emergency Core Cooling System (ECCS) from routine operational transients, such as startup and shutdown. These changes assure that there will be no significant increase in probability of occurrence of an accident at SPU conditions.
Comprehensive evaluations of plant structures, systems and components (SSCs) have been performed and confirmed that all systems are capable of performing their intended design functions at uprated power conditions. Some Technical Specifications Surveillance Requirements have been revised to reflect SPU conditions and to reflect current generic TS standards. All systems will continue to be operated in accordance with design requirements under SPU conditions; therefore, no new components or system interactions have been identified that could lead to an increase in the probability of any accident previously evaluated in the Final Safety Analysis Report (FSAR).
The radiological consequence calculations were revised to reflect SPU conditions and the predicted releases from the revised accident analyses. All results continue to meet established regulatory limits and there is no significant increase in radiological consequences.
Therefore, the proposed changes do not result in a significant increase in the probability or consequences of an accident previously evaluated.
2. Do the proposed changes create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
Detailed evaluations of the configuration, operation, and accident response of the SSCs under SPU conditions and the associated proposed TS changes have been performed to confirm that all SSCs will perform as designed. Analyses of transient events have confirmed that no transient event results in a new sequence of events that could lead to a new accident scenario.
The effect of operation under SPU conditions on plant equipment has been evaluated. A failure modes and effect evaluation has been performed for the proposed new ECCS permissive for the charging injection valves. This has shown that the change does not create any new failure modes that could lead to a different kind of accident. Other minor plant modifications, to support implementation of SPU conditions, will be made to existing systems and components. These modifications provide added margin so that the SSCs will continue to perform their design function and no new safety-related equipment or systems will be installed which could potentially introduce new failure modes or accident sequences.
Based on this analysis, it is concluded that no new accident scenarios, failure mechanisms or limiting single failures are introduced as a result of the proposed changes. The proposed TS changes do not have an adverse effect on any aspect of safety.
Therefore, the proposed changes will not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Do the proposed changes involve a significant reduction in a margin of safety?
Response: No.
A comprehensive analysis was performed to support the power SPU program at MPS3 [Millstone Power Station, Unit No. 3]. This analysis identified and defined the major input parameters to the Nuclear Steam Supply System (NSSS), reviewed NSSS design transients, and reviewed the capabilities of the NSSS fluid systems, NSSS/BOP (balance-of-plant) interfaces, and NSSS and BOP components. The nuclear and thermal hydraulic performance of nuclear fuel was also reviewed to confirm acceptable results. Only minor plant modifications, to support implementation of SPU conditions, will be made to existing systems and components. Changes in set points for actuation of equipment provide added margin for performing the required safety functions and do not adversely affect the outcome of any postulated accident. The analysis indicated that all NSSS and BOP systems and components will continue to operate within existing design and safety limits under SPU conditions.
The margin of safety of the reactor coolant pressure boundary is maintained under SPU conditions. The design pressure of the reactor pressure vessel and reactor coolant system will not be challenged as the pressure mitigating systems were confirmed to be sufficiently sized to adequately control pressure under SPU conditions.
The radiological consequences were re-calculated at SPU conditions for Design Bases Accidents (DBAs) previously analyzed in the FSAR. The analysis showed that the radiological consequences of DBAs continue to meet established regulatory limits at SPU conditions.
The analyses supporting the SPU program have demonstrated that all systems and components are capable of safely operating at SPU conditions. All DBA acceptance criteria will continue to be met. Therefore, it is concluded that the proposed changes do not result in a significant reduction in the margin of safety.
Based on this review, the three standards of 10 CFR 50.92(c) are satisfied. Therefore, DNC determined that the amendment request involves no significant hazards consideration.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed extension to Type A testing cannot increase the probability of an accident previously evaluated since extension of the containment Type A testing is no a physical plant modification that could alter the probability of accident occurrence nor, is an activity or modification by itself that could lead to equipment failure or accident initiation.
The proposed extension to Type A testing does not result in a significant increase in the consequences of an accident as documented in [NRC technical report designation (Nuclear Regulatory Commission)] NUREG-1493. The NUREG notes that very few potential containment leakage paths are not identified by Type B and C tests. It concludes that reducing the Type A testing frequency to once per twenty years leads to an imperceptible increase in risk.
North Anna provides a high degree of assurance through testing and inspection that the containment will not degrade in a manner detectable only by Type A testing. The last three Type A tests identified containment leakage within acceptance criteria, indicating a very leak-tight containment. Inspections required by the [American Society of Mechanical Engineers] ASME Code are also performed in order to identify indications of containment degradation that could affect leak-tightness. Separately, Type B and C testing, required by Technical Specifications, identifies any containment opening from design penetrations, such as valves, that would otherwise be detected by a Type A test. These factors establish that an extension to the North Anna Type A test interval will not represent a significant increase in the consequences of an accident.
2. Does the proposed license amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed revision to North Anna Technical Specifications adds a one-time extension to the current interval for Type A testing. The current test interval of ten years, based on past performance, will be extended on a one-time basis to fifteen years from the last Type A test. The proposed extension to Type A testing does not create the possibility of a new or different type of accident since there are no physical changes being made to the plant and there are no changes to the operation of the plant that could introduce a new failure.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
The proposed revision to North Anna Technical Specifications adds a one-time extension to the current interval for Type A testing. The current test interval of ten years, based on past performance, will be extended on a one-time basis to fifteen years from the last Type A test. RG 1.174 provides guidance for determining the risk impact of plant-specific changes to the licensing basis. RG 1.174 defines very small changes in risk as resulting in increases of [core damage frequency] CDF below 1E-6/yr and increases in [large early release fraction] LERF below 1E-7/yr. Since the Type A test does not impact CDF, the relevant criterion is LERF. The increase in LERF resulting from a change in the Type A test interval from a once-per-ten-years to a once-per-fifteen years is 1.58E-7/yr, based on internal events. RG 1.174 states that when the calculated increase in LERF is in the range of 1E-7/yr to 1E-6/yr, applications will be considered if it can be shown that the total LERF is less than 1E-5/yr.
Since the total LERF is 1.20E-6yr, the change is considered small and not a significant reduction in margin. Increasing the Type A test interval from ten to fifteen years is, therefore, considered non-risk significant and will not significantly reduce the margin of safety.
The NUREG-1493 generic study of the effects of extending containment leakage testing found that a 20-year extension in Type A leakage testing resulted in an imperceptible increase in risk to the public. NUREG-1493 found that, generically, the design containment leakage rate contributes about 0.1 percent of the overall risk and that decreasing the Type A testing frequency would have a minimal affect on this risk since 95% of the Type A detectable leakage paths would already be detected by Type B and C testing. Furthermore, for North Anna, maintaining the containment subatmospheric [pressure] during plant operations further reduces the risk of any containment leakage path going undetected.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1.
The proposed extension to Type A testing cannot increase the probability of an accident previously evaluated since extension of the containment Type A testing is not a physical plant modification that could alter the probability of accident occurrence nor, is an activity or modification by itself that could lead to equipment failure or accident initiation.
The proposed extension to Type A testing does not result in a significant increase in the consequences of an accident as documented in [NRC technical report designation (Nuclear Regulatory Commission)] NUREG-1493. The NUREG notes that very few potential containment leakage paths are not identified by Type B and C tests. It concludes that reducing the Type A testing frequency to once per twenty years leads to an imperceptible increase in risk.
Surry provides a high degree of assurance through testing and inspection that the containment will not degrade in a manner detectable only by Type A testing. The last two Type A tests identified containment leakage within acceptance criteria, indicating a very leak-tight containment. Inspections required by the [American Society of Mechanical Engineers] ASME Code are also performed in order to identify indications of containment degradation that could affect leak-tightness. Separately, Type B and C testing, required by Technical Specifications, identifies any containment opening from design penetrations, such as valves, that would otherwise be detected by a Type A test. These factors establish that an extension to the Surry Type A test interval will not represent a significant increase in the consequences of an accident.
2. Does the proposed license amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed revision to Surry Technical Specifications adds a one-time extension to the current interval for Type A testing. The current test interval of ten years, based on past performance, will be extended on a one-time basis to fifteen years from the last Type A test. The proposed extension to Type A testing does not create the possibility of a new or different type of accident since there are no physical changes being made to the plant and there are no changes to the operation of the plant that could introduce a new failure.
3.
The proposed revision to Surry Technical Specifications adds a one-time extension to the current interval for Type A testing. The current test interval of ten years, based on past performance, will be extended on a one-time basis to fifteen years from the last Type A test. Regulatory Guide (RG) 1.174 provides
The NUREG-1493 generic study of the effects of extending containment leakage testing found that a 20-year extension in Type A leakage testing resulted in an imperceptible increase in risk to the public. NUREG-1493 found that, generically, the design containment leakage rate contributes about 0.1 percent of the overall risk and that decreasing the Type A testing frequency would have a minimal effect on this risk since 95% of the Type A detectable leakage paths would already be detected by Type B and C testing. Furthermore, for Surry, maintaining the containment subatmospheric [pressure] during plant operations further reduces the risk of any containment leakage path going undetected.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed license amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed extension of the Completion Time for the EDG fuel oil storage tanks does not increase the probability of an accident previously evaluated since extension of the Completion Time does not physically modify the plant in a manner that could alter the probability of accident occurrence, nor is it an activity or modification by itself that could lead to equipment failure or accident initiation. [The] TS currently permit this planned inspection and repair activity and provide the appropriate actions to ensure an adequate supply of fuel oil is available during the planned maintenance activity. Therefore, the probability of an accident previously evaluated is not affected by the extended Completion Time.
The proposed extension of the Completion Time for the planned maintenance activities on the fuel oil storage tanks does not result in a significant increase in the consequences of an accident since adequate fuel oil remains available to permit EDG operation during a design basis accident [DBA].
2. Does the proposed license amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed revision to North Anna TS permits one-time extension of the current 7-day Completion Time to 14-day for each fuel oil storage tank for planned maintenance activities. This proposed extension does not create the possibility of a new or different type of accident since there are no physical changes being made to the plant and there are no changes to the operation of the plant that could introduce a new failure. The existing TS actions ensure an adequate supply of fuel oil is available prior to the maintenance to support EDG operation during a DBA.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
The proposed revision to North Anna Technical Specifications, which only permit a one-time extension to the current 7-day Completion Time for an inoperable fuel oil storage tank to 14 days, will not significantly reduce the margin of safety. RG 1.174 provides guidance for determining the risk impact of plant-specific changes to the licensing basis. The average annual increases in core damage frequency (CDF) and large early release frequency (LERF) resulting from the extended Completion Time for planned maintenance activities on the fuel oil storage tanks are 5.6E-8/yr and 8.4E-10/yr, respectively. RG 1.174 states that when the calculated increases in CDF and LERF are below 1E-5/yr and 1E-6/yr, respectively, applications will be considered when the total CDF and LERF are less than 1E-4/yr and 1E-5/yr, respectively. Since the total CDF and LERF for the proposed extended Completion Time meet these criteria for a permanent plant change, the change is considered small and not a significant reduction in margin. The one-time extension for planned maintenance activities on each fuel oil storage tank is, therefore, considered non-risk significant and will not significantly reduce the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
During the period since publication of the last biweekly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment.
Notice of Consideration of Issuance of Amendment to Facility Operating License, Proposed No Significant Hazards Consideration Determination, and Opportunity for a Hearing in connection with these actions was published in the
Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.22(b) and has made a determination based on that assessment, it is so indicated.
For further details with respect to the action see (1) the applications for amendment, (2) the amendment, and (3) the Commission's related letter, Safety Evaluation and/or Environmental Assessment as indicated. All of these items are available for public inspection at the Commission's Public Document Room (PDR), located at One White Flint North, Public File Area 01F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the Agencywide Documents Access and Management Systems (ADAMS) Public Electronic Reading Room on the internet at the NRC Web site,
No significant hazards consideration comments received: No.
Date of initial notice in
The supplemental letter contained clarifying information and did not change the initial no significant hazards consideration determination, and did not expand the scope of the original
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated December 18, 2007.
No significant hazards consideration comments received: No.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated December 31, 2007.
No significant hazards consideration comments received: No.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated December 26, 2007.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated December 19, 2007.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated December 18, 2007.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendments is contained in a
No significant hazards consideration comments received: No.
During the period since publication of the last biweekly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application for the amendment complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment.
Because of exigent or emergency circumstances associated with the date the amendment was needed, there was not time for the Commission to publish, for public comment before issuance, its usual Notice of Consideration of Issuance of Amendment, Proposed No Significant Hazards Consideration Determination, and Opportunity for a Hearing.
For exigent circumstances, the Commission has either issued a
In circumstances where failure to act in a timely way would have resulted, for example, in derating or shutdown of a nuclear power plant or in prevention of either resumption of operation or of increase in power output up to the plant's licensed power level, the Commission may not have had an opportunity to provide for public comment on its no significant hazards consideration determination. In such case, the license amendment has been issued without opportunity for comment. If there has been some time for public comment but less than 30 days, the Commission may provide an opportunity for public comment. If comments have been requested, it is so stated. In either event, the State has been consulted by telephone whenever possible.
Under its regulations, the Commission may issue and make an amendment immediately effective, notwithstanding the pendency before it of a request for a hearing from any person, in advance of the holding and completion of any required hearing, where it has determined that no significant hazards consideration is involved.
The Commission has applied the standards of 10 CFR 50.92 and has made a final determination that the amendment involves no significant hazards consideration. The basis for this determination is contained in the documents related to this action. Accordingly, the amendments have been issued and made effective as indicated.
Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.12(b) and has made a determination based on that assessment, it is so indicated.
For further details with respect to the action see (1) the application for amendment, (2) the amendment to Facility Operating License, and (3) the Commission's related letter, Safety Evaluation and/or Environmental Assessment, as indicated. All of these items are available for public inspection at the Commission's Public Document Room (PDR), located at One White Flint North, Public File Area 01F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the Agencywide Documents Access and Management System's (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,
The Commission is also offering an opportunity for a hearing with respect to the issuance of the amendment. Within 60 days after the date of publication of this notice, person(s) may file a request for a hearing with respect to issuance of the amendment to the subject facility operating license and any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written request via electronic submission through the NRC E-Filing system for a hearing and a petition for leave to intervene. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Rules of Practice for Domestic Licensing Proceedings” in 10 CFR Part 2. Interested person(s) should consult a current copy of 10 CFR 2.309, which is available at the Commission's PDR, located at One White Flint North, Public File Area 01F21, 11555 Rockville Pike (first floor), Rockville, Maryland, and electronically on the Internet at the NRC Web site,
As required by 10 CFR 2.309, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements: (1) The name, address, and telephone number of the requestor or petitioner; (2) the nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the requestor's/petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the requestor's/petitioner's interest. The petition must also identify the specific contentions which the petitioner/requestor seeks to have litigated at the proceeding.
Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner/requestor shall provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish those facts or expert opinion. The petition must include sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact.
Each contention shall be given a separate numeric or alpha designation within one of the following groups:
1.
2.
3.
As specified in 10 CFR 2.309, if two or more petitioners/requestors seek to co-sponsor a contention, the petitioners/requestors shall jointly designate a representative who shall have the authority to act for the petitioners/requestors with respect to that contention. If a petitioner/requestor seeks to adopt the contention of another sponsoring petitioner/requestor, the petitioner/requestor who seeks to adopt the contention must either agree that the sponsoring petitioner/requestor shall act as the representative with respect to that contention, or jointly designate with the sponsoring petitioner/requestor a representative who shall have the authority to act for the petitioners/requestors with respect to that contention.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing. Since the Commission has made a final determination that the amendment involves no significant hazards consideration, if a hearing is requested, it will not stay the effectiveness of the amendment. Any hearing held would take place while the amendment is in effect.
A request for hearing or a petition for leave to intervene must be filed in accordance with the NRC E-Filing rule, which the NRC promulgated in August 28, 2007, (72 FR 49139). The E-Filing process requires participants to submit and serve documents over the internet or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek a waiver in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least five (5) days prior to the filing deadline, the petitioner/requestor must contact the Office of the Secretary by e-mail at
Once a petitioner/requestor has obtained a digital ID certificate, had a docket created, and downloaded the EIE viewer, it can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC public Web site at
A person filing electronically may seek assistance through the “Contact Us” link located on the NRC Web site at
Participants who believe that they have good cause for not submitting documents electronically must file a motion, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland, 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service.
Non-timely requests and/or petitions and contentions will not be entertained absent a determination by the Commission, the presiding officer, or the Atomic Safety and Licensing Board
Documents submitted in adjudicatory proceedings will appear in NRC's electronic hearing docket which is available to the public at
No. The Commission's related evaluation of the amendment, finding of emergency circumstances, state consultation, and final NSHC determination are contained in a safety evaluation dated December 21, 2007.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Weeks of January 14, 21, 28; February 4, 11, 18, 2008.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
There are no meetings scheduled for the Week of January 21, 2008.
There are no meetings scheduled for the Week of January 28, 2008.
There are no meetings scheduled for the Week of February 4, 2008.
There are no meetings scheduled for the Week of February 11, 2008.
This meeting, parts 1 and 2, will be webcast live at the Web address—
*The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings, call (recording)—(301) 415-1292. Contact person for more information: Michelle Schroll, (301) 415-1662.
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (e.g., braille, large print), please notify the NRC's Disability Program Coordinator, Rohn Brown, at 301-492-2279, TDD: 301-415-2100, or by e-mail at
This notice is distributed by mail to several hundred subscribers; if you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301-415-1969). In addition, distribution of this meeting notice over the Internet system is available. If you are interested in receiving this Commission meeting schedule electronically, please send an electronic message to
Office of Management and Budget.
Notice; correction.
The Office of Management and Budget, Office of Federal Procurement Policy (OFPP) published a document in the
Jim Daumit, 202-395-1052.
In the
The publication is not effective as of December 28, 2007. The proposed OFPP policy letter published on December 28, 2007 is for public comment purposes only.
Individuals wishing to address the hearing orally must provide advance notice to OPIC's Corporate Secretary no later than 5 p.m., Wednesday, January 23, 2008. The notice must include the individual's name, title, organization, address, and telephone number, and a concise summary of the subject matter to be presented.
Oral presentations may not exceed ten (10) minutes. The time for individual presentations may be reduced proportionately, if necessary, to afford all participants who have submitted a timely request to participate an opportunity to be heard.
Participants wishing to submit a written statement for the record must submit a copy of such statement to OPIC's Corporate Secretary no later than 5 p.m., Wednesday, January 23, 2008. Such statements must be typewritten, double-spaced, and may not exceed twenty-five (25) pages.
Upon receipt of the required notice, OPIC will prepare an agenda for the hearing identifying speakers, setting forth the subject on which each participant will speak, and the time allotted for each presentation. The agenda will be available at the hearing.
A written summary of the hearing will be compiled, and such summary will be made available, upon written request to OPIC's Corporate Secretary, at the cost of reproduction.
Individuals wishing to address the hearing orally must provide advance notice to OPIC's Corporate Secretary no later than 5 p.m., Wednesday, January 23, 2008. The notice must include the individual's name, organization, address and telephone number, and a concise summary of the subject matter to be presented.
Oral presentations may not exceed ten (10) minutes. The time for individual presentations may be reduced proportionately, if necessary, to afford all participants who have submitted a timely request to participate, an opportunity to be heard.
Participants wishing to submit a written statement for the record must submit a copy of such statement to OPIC's Corporate Secretary no later than 5 p.m., Wednesday, January 23, 2008. Such statements must be typewritten, double-spaced and may not exceed twenty-five (25) pages.
Upon receipt of the required notice, OPIC will prepare an agenda for the hearing identifying speakers, setting forth the subject on which each participant will speak, and the time allotted for each presentation. The agenda will be available at the hearing.
A written summary of the hearing will be compiled, and such summary will be made available, upon written request to OPIC's Corporate Secretary, at the cost of reproduction.
Pension Benefit Guaranty Corporation.
Notice about availability of interest rates and assumptions.
For a number of years, Pension Benefit Guaranty Corporation has published in the
Catherine B. Klion, Manager, Regulatory and Policy Division, Legislative and Regulatory Department, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington, DC 20005, 202-326-4024. (TTY/TDD users may call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4024.)
Several regulations of Pension Benefit Guaranty Corporation (PBGC) require the use of interest rates and assumptions that change monthly or quarterly. The regulations on Benefits Payable in Terminated Single-Employer Plans (29 CFR part 4022) and Allocation of Assets in Single-Employer Plans (29 CFR part 4044) require the use of interest rates and assumptions that are set by PBGC, and PBGC must amend those regulations monthly to promulgate new rates and assumptions. But other PBGC regulations refer to rates and assumptions that are not set by PBGC, but rather come from other sources. Thus persons using those regulations can determine the interest rates and assumptions they need to know without action by PBGC. For a number of years, PBGC has made the interest rates and assumptions available in monthly
On June 1, 2006 (at 71 FR 31077), PBGC published a final rule under which plans covered by the PBGC pension insurance program must make annual premium filings electronically. The e-filing requirement was phased in over two years and became applicable to all plans for plan years beginning after 2006. See 29 CFR 4007.3. Electronic premium filing is done through an application called “My Plan Administration Account” (“My PAA”) on PBGC's Web site. Thus, plans or their representatives are required to have access to PBGC's Web site in order to fulfill the premium e-filing obligation. Access to the Web site provides access to the interest rates and assumptions for use under the five regulations listed above because those rates and assumptions are posted on the Web site. PBGC has concluded that it is no longer necessary both to update the interest rates and assumptions on the Web site and to publish notice of the rates and assumptions in the
To access the interest rates and assumptions on PBGC's Web site (
• For the interest rates for use in determining variable-rate premiums under the premium rates regulation (part 4006), click on the link to “variable rate premiums.”
• For the interest rates applied to late premium payments under the premium payment regulation (part 4007), click on the link to “late premium payments.”
• For the interest rates applied to under- and overpayments of employer liability under the termination liability regulation (part 4062), click on the link to “late premium payments.”
• For the interest rates for charging or crediting interest on under- and overpayments of withdrawal liability under the withdrawal liability notice and collection regulation (part 4219) unless an applicable plan provision provides otherwise, click on the link to “overdue or defaulted withdrawal liability.”
• For the interest rates and assumptions used for valuations under the plan sponsor duties regulation (part 4281), click on the link to “immediate and deferred annuities.”
The rates and assumptions also may be obtained by calling PBGC's interest rate hotline at 202-326-4041 or by contacting Larry Shirley in PBGC's Policy, Research & Analysis Department at 202-326-4080, ext. 3474, or
On November 5, 2007, the Consolidated Tape Association (“CTA”) Plan Participants (“Participants”)
The Plan currently requires Participants to include in their transaction reports to the CTA Plan's processor the stock symbol of the Eligible Security, the price at which the transaction was executed, and the volume, in round lots, involved in the transaction.
The Eleventh Substantive Amendment proposes to replace the requirement that Participant report each transaction's volume in round lots with a requirement that each Participant report the actual number of shares for each transaction, exclusive of odd lots. The Participants believe that it remains appropriate to exclude odd lots from CTA trade reporting because the small size of odd-lot trades adds little to marketplace transparency and because the number of odd-lot trades would clutter data feeds and make it more difficult for investors to obtain a true view of the markets for Eligible Securities.
The Participants propose to implement the change soon after receipt of Commission approval of the Amendment.
The Commission finds that the proposed CTA Plan amendment is consistent with the Act and the rules and regulations thereunder.
The proposed amendment would add greater transparency to the market place. Thus, the proposed amendment is consistent with, and would further, one of the principal objectives for the national market system set forth in section 11A(a)(1)(C)(iii)
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Open Meeting.
100 F Street, NE., L-002, Auditorium, Washington, DC.
Open Meeting.
The Commission has scheduled an Open Meeting for Wednesday, January 16, 2008 at 10 a.m., in the Auditorium, Room L-002.
The subject matter of the January 16, 2008 Open Meeting will be:
The Commission will consider whether to approve a proposed rule change submitted by the Chicago Board Options Exchange, Incorporated (“CBOE”) to interpret the “Exercise Right” in Article Fifth(b) of CBOE's Certificate of Incorporation (File No. SR-CBOE-2006-106).
Commissioner Nazareth, as duty officer, determined that no earlier notice of the Open Meeting was possible.
At times, changes in Commission priorities require alterations in the scheduling of meeting items. For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact:
The Office of the Secretary at (202) 551-5400.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for the State of Nevada (FEMA-1738-DR), dated 01/08/2008.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the President's major disaster declaration on 01/08/2008, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 111486 and for economic injury is 111490.
(Catalog of Federal Domestic Assistance Numbers 59002 and 59008)
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of INDIANA dated 01/08/2008.
01/08/2008.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The number assigned to this disaster for physical damage is 11146 C and for economic injury is 11147 0.
The States which received an EIDL Declaration # are Indiana, Michigan.
The U.S. Small Business Administration (SBA), pursuant to the Veterans Entrepreneurship and Small Business Development Act of 1999 (Pub. L. 106-50), SBA Advisory Committee on Veterans Business Affairs will host a public meeting on Tuesday, January 8, 2008 starting at 9 a.m. until 5 p.m. The meeting will be held at the U.S. Small Business Administration, 409 3rd Street, SW., Washington, DC 20416, Eisenhower's Conference Room, Side B, 2nd Floor.
The purpose for this meeting is to examine issues pertaining to SBA's programs and outreach services for veterans and service-disabled veterans. Anyone wishing to attend must contact Cheryl Clark, Program Liaison, in the Office of Veterans Business Development at (202) 205-6773 or send an e-mail to
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the State of IOWA (FEMA-1737-DR), dated 01/04/2008.
01/04/2008.
Submit completed loan applications to U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the President's major disaster declaration on 01/04/2008, Private Non-Profit organizations that provide essential services of a governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The U.S. Small Business Administration (SBA) Region VI Regulatory Fairness Board and the SBA Office of the National Ombudsman will hold a National Regulatory Fairness Hearing on Tuesday, January 22, 2008, at 10 a.m. The forum will take place at the Austin City Hall Chamber—Room 1001, 301 W. 2nd Street, Austin, TX 78701. The purpose of the meeting is for Business Organizations, Trade Associations, Chambers of Commerce and related organizations serving small business concerns to report experiences regarding unfair or excessive Federal regulatory enforcement issues affecting their members.
Anyone wishing to attend or to make a presentation must contact Lucy Salinas, in writing or by fax in order to be placed on the agenda. Lucy Salinas, Business Development Specialist, SBA, San Antonio District Office, 17319 San Pedro, Suite 200, San Antonio, TX 78232-1411, phone (210) 403-5921 and fax (202) 481-4228, e-mail:
For more information, see our Web site at
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit object, contact Julie Simpson, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202-453-8050). The address is U.S. Department of State, SA-44, 301 4th Street, SW., Room 700, Washington, DC 20547-0001.
The Advisory Committee on Persons With Disabilities of the U.S. Department of State and the U.S. Agency for International Development will conduct its fifth public meeting on Monday, February 4, 2008 from 9 a.m. to 4 p.m. in the Ronald Reagan Building and International Trade Center, 1300 Pennsylvania Avenue, NW., Washington, DC 20004. For directions, see
Attendees must have valid, government-issued identification, such as a Driver's License or passport, in order to enter the building. Attendees requiring reasonable accommodation should indicate their requirements one week prior to the event to Stephanie Ortoleva at
The agenda of this meeting will include presentations by the following:
1. Eric Rosenthal, Executive Director, Mental Disability Rights International, will discuss MDRI reports on the situation of persons with mental disabilities in Serbia and in Argentina. The Serbia report can be found at:
2. Mary Keogh, International Coordinator, International Disability Rights Monitor, of the Center for International Rehabilitation, will discuss the Center's most recent report on the human rights situation of persons with disabilities in Europe. The European IDRM report can be found at:
3. Ann Cody, Vice President for Government Affairs with B&D Consulting and a leader in the international sports movement, will discuss sports as a convening mechanism for promoting democracy, peace and human rights and leadership development for persons with disabilities.
4. Veda Engel, U.S. Department of State, Bureau of Human Resources, will discuss Department efforts to increase the recruitment of persons with disabilities.
5. Stephanie Ortoleva, Esq., U.S. Department of State, Bureau of Democracy, Human Rights and Labor, Foreign Affairs Officer and Advisory Committee Executive Director, will
6. Robert Horvath, Senior Technical Advisor, U.S. Agency for International Development, will give an update on USAID activities, including discussion of funding programs and examples of recent accomplishments and successes in integrating disability within USAID field programs.
7. The Advisory Committee will discuss its plans for the forthcoming year.
The Advisory Committee is made up of the Secretary of State, the Administrator of the U.S. Agency for International Development and an Executive Director (all ex officio members); and eight members from outside the United States Government: Senda Benaissa, Joni Eareckson Tada, Vail Horton, John Kemp, Albert H. Linden, Jr., Kathleen Martinez, John Register and James E. Vermillion.
Established on June 23, 2004, the Advisory Committee serves the Secretary and the Administrator in an advisory capacity with respect to the consideration of the interests of persons with disabilities in formulation and implementation of U.S. foreign policy and foreign assistance. The Committee is established under the general authority of the Secretary and the Department of State as set forth in Title 22 of the United States Code, sections 2656 and 2651a, and in accordance with the Federal Advisory Committee Act, as amended.
Department of Transportation.
Notice of Order to Show Cause (Order 2008-1-2) Docket DOT-OST-2002-12417.
The Department of Transportation is directing all interested persons to show cause why it should not issue an order finding Multi-Aero, Inc. d/b/a Air Choice One fit, willing, and able, and awarding it commuter air carrier authorization to engage in scheduled passenger air transportation as a commuter air carrier.
Persons wishing to file objections should do so no later than January 22, 2008.
Objections and answers to objections should be filed in Docket DOT-OST-2002-12417 and addressed to Docket Operations, (M-30, Room W12-140), U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590, and should be served upon the parties listed in Attachment A to the order.
Rona
National Highway Traffic Safety Administration, DOT.
Notice.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments must be submitted on or before February 14, 2008.
Comments should be directed to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, Attention NHTSA Desk Officer.
Michael Kido, National Highway Traffic Safety Administration, Office of the Chief Counsel (NCC-111), (202) 366-5263, 1200 New Jersey Avenue, SE., Washington, DC 20590.
Requesters are not required to keep copies of any records or reports submitted to us. As a result, the cost imposed to keep records would be zero hours and zero costs.
Send comments, within 30 days, to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, Attention NHTSA Desk Officer.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning existing final regulations, REG-142299-01 and REG-209135-88, Certain Transfers of Property to Regulated Investment Companies (RICs) and Real Estate Investment Trusts (REITs).
Written comments should be received on or before March 17, 2008 to be assured of consideration.
Direct all written comments to R. Joseph Durbala, Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the regulations should be directed to Carolyn N. Brown at Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or at (202) 622-6688, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
In notice document 07-6242 beginning on page 74330 in the issue of Monday, December 31, 2007, make the following correction:
On page 74331, in the first column, in the second full paragraph, in the 11th and 12th lines, “
In notice document 07-6243 beginning on page 74330 in the issue of Monday, December 31, 2007, make the following correction:
On page 74330, in the second column, in the second full paragraph, in the 13th and 14th lines, “
Centers for Medicare & Medicaid Services (CMS), HHS.
Correction Notice of Final Rule with Comment Period.
This correction notice corrects several technical and typographical errors in the final rule with comment period that appeared in the November 27, 2007
This correction notice is effective January 1, 2008.
Diane Milstead, (410) 786-3355.
In FR Doc. 07-5506 of November 27, 2007 (72 FR 66222) (hereinafter referred to as the CY 2008 PFS final rule with comment period), there were a number of technical and typographical errors that are identified and corrected in the Correction of Errors section of this notice. The provisions of this notice are effective as if they had been included in the CY 2008 PFS final rule with comment period. Accordingly, the corrections are effective January 1, 2008.
On page 66276, the third column, the third paragraph, lines are 10 through 13, the sentence “It is not unusual for us to provide for discretionary reopening or reconsideration of final agency action” is deleted because the sentence was inadvertently repeated.
On page 66392, Table 40, Impact of Final Rule with Comment Period and Estimated Physician Update on 2008 Payment for Selected Procedures, the columns for 2008 payment amount and the percent change for both facility and non-facility are corrected due to a methodological error.
On pages 66410 through 66543, Addendum B, Relative Value Units and Related Information Used in Determining Medicare Payments for 2008, incorrect PE RVUs were listed for many CPT codes due to a methodological error. Therefore, for the convenience of health care providers and the public, we are republishing Addendum B in its entirety. In addition, the work RVUs are corrected for CPT code 67113 and the status indicator, work RVUs, and malpractice RVUs are corrected for CPT code 93503 in this revised addendum.
On pages 66543 through 66545, Addendum C, Codes with Interim RVUs, incorrect PE RVUs were listed for many CPT codes due to a methodological error. Therefore, for the convenience of health care providers and the public, we are republishing Addendum C in its entirety.
On pages 66545 through 66546, Addendum D, 2008 Geographic Adjustment Factors (GAFs), we identified errors in the data used to calculate the GAFs, and therefore, we are republishing Addendum D in its entirety.
On pages 66546 through 66547, Addendum E, 2008 * * * Geographic Practice Cost Indices by State and Medicare Locality, we identified errors in the data used to calculate the Geographic Practice Cost Indices (GPCIs), and therefore, we are republishing Addendum E in its entirety.
On pages 66575 through 66578, Addendum I, List of CPT
1. On page 66226, 3rd column, 4th paragraph, lines 5 through 7, the phrase “we are applying a separate budget neutrality (BN) adjustor” is corrected to read “we applied a separate budget neutrality (BN) adjustor”.
2. On page 66227, at the top of the 1st column, the formula “Payment = [(RVU work × budget neutrality adjustor × work GPCI) + (RVU PE × PE GPCI) + (MP RVU × MP GPCI)] × CF” is corrected to read “Payment = [(RVU work × budget neutrality adjustor (round product to two decimal places) × GPCI work) + (RVU PE × GPCI PE) + (RVU malpractice × GPCI malpractice)] × CF”.
3. On page 66241, in Table 4, Practice Expense Supply Item Additions for CY 2008, the 8th row, with the supply description “fee, image analysis” is corrected by deleting this row.
4. On page 66242, in Table 5, Practice Expense Equipment Item Additions for CY 2008,
a. In the 2nd row, in the 5th column, CPT codes “7557” and “7558” are corrected to read “75557” and “75558”.
b. In the 5th row, the equipment description “Camera, ocular photoscreening, w-laptop and software” is corrected by deleting this row.
5. On page 66253, in the 2nd column, following the 2nd full paragraph, 2nd bullet, line 1, the term “angioscopy” is corrected to read “angiography”.
6. On page 66254,
a. First column, after the 1st full paragraph, the title of item 2, lines 3 and 4, the phrase “(CPT codes 17311 Through 17315)” is corrected to read “(CPT codes 17311 and 17313)”.
b. Second column, the 2nd full paragraph,
(1) Line 6, the phrase “17311 through 17315” is corrected to read “17311 and 17313”.
(2) Line 11, following the phrase “created in 2007.” insert the sentence “(
7. On page 66262, 3rd column, 3rd full paragraph, lines 32 through 35, the Web site reference to “
8. On page 66263, 1st column, 1st partial paragraph, lines 20 and 21, the Web site reference to “
9. On page 66268, 1st column, the last paragraph, line 1, the phrase “section 1847B((b)(4)(E)” is corrected to read “section 1847B(b)(4)(E)”.
10. On page 66270, 2nd column, 1st full paragraph, line 1, the phrase “commercially-available” is corrected to read “commercially available”.
11. On page 66273, 3rd column, 1st full paragraph, lines 14 and 15, the Web site reference to “
12. On page 66276, 3rd column, 3rd full paragraph, lines 10 through 13, the sentence “It is not unusual for us to provide for discretionary reopening or reconsideration of final agency action” is corrected by deleting the sentence.
13. On page 66285, 3rd column, 1st partial paragraph, line 3, the term “Administrator” is corrected to “Administrative”.
14. On page 66287, 1st column, 5th full paragraph, line 6, the phrase “by noting that term” is corrected to read “by noting that the term”.
15. On page 66291, 1st column, 2nd paragraph, line 14, the phrase “procedure to another Medicare-enrolled” is corrected to read “procedure from another Medicare-enrolled”.
16. On page 66292, 3rd column, 2nd paragraph,
a. Line 6, the phrase “a fixed-base IDTF does not-” is corrected to read “a fixed-base IDTF is prohibited from—”.
b. Line 7 (1st bullet), the term “Share” is corrected to read “Sharing.”
c. Line 10 (2nd bullet), the phrase “Lease or sublease” is corrected to read “Leasing or subleasing.”
d. Line 14 (3rd bullet), the term “Share” is corrected to read “Sharing.”
17. On page 66301, 3rd column, 1st partial paragraph, lines 3 and 4, the phrase “and should not be referring” is corrected to read “and should not be understood to refer”.
18. In Table 16, “AMA RUC and HCPAC Recommendations and CMS' Decisions for New and Revised 2008 CPT Codes”, in the second column labeled “Mod”, the “26” following CPT code 93503 is removed.
19. On page 66372, 3rd column, 1st partial paragraph, line 1, the reference to “Addendum x” is corrected to read “Addendum I.”
20. On pages 66372 and 66373, Table 19, Additions to the Physician Self-Referral List of CPT/HCPCS Codes, the table is corrected by—
a. Deleting the following entries:
(1) Under the heading “Radiology and Certain Other Imaging Services”,
(2). Under the heading “Radiation Therapy Services and Supplies”,
b. Correcting the following entries:
21. On page 66383, Table 35, Calculation for the 2008 Anesthesia Conversion Factor,
a. Third row (2007 Combined Adjustment for PE and BN), 2nd column, the figure “0.9089” is corrected to read “0.911”.
b. Fourth row (CY 2007 Pre-TRHCA Anesthesia Conversion Factor), 2nd column, the figure “$15.3328” is corrected to read “$15.3682”.
c. Seventh row (CY 2008 Anesthesia CF after MEI and 2008 Adjustment Factor), 2nd column, the figure “$14.5162” is corrected to read “$14.5497”.
d. Eighth row (2008 Combined Adjustment for PE and BN), 2nd column, the figure “1.1250” is corrected to read “1.2277”.
e. Ninth row (CY 2008 Anesthesia Conversion Factor), 2nd column, the figure “16.3307” is corrected to read “$17.8627”.
22. On page 66391, Table 39, Combined CY 2008 Total Allowed Charge Impact for the Remaining 5-Year Review of Work RVUs and Practice Expense Changes, OPPS Imagining Cap, and the CY 2008 Update, the 1st footnote “*PE changes are CY 2008 second year transition changes. For fully implemented CY 2010 PE changes see Table 1.” is corrected to read “*PE changes are CY 2008 second year transition changes. For fully implemented CY 2010 PE changes see Table 38.”
23. On page 66392, Table 40, Impact of Final Rule with Comment Period and Estimated Physician Update on 2008 Payment for Selected Procedures, the columns for 2008 payment amount and the percent change are corrected to read as follows:
23. On page 66393,
a. First column, after the 2nd full paragraph, the following paragraph is inserted as a result of corrections to Addendum D noted below in this notice. The insertion reads as follows:
“In 2008, the counties with the three highest GAFs were in California. Thirty-one payment localities had increases in the GAF of less than one percent. Thirty-eight payment localities had decreases of less than 1 percent. Fifteen payment localities had decreases of over 1 percent and eight payment localities had increases of over 1 percent.”
b. First column, the 3rd full paragraph and 4th partial paragraph are deleted as a result of corrections to Addendum D noted below in this notice.
c. Second column, the 1st partial paragraph is deleted as a result of corrections to Addendum D noted below in this notice.
The corrections to Addenda B, C, D, E, F, and I will not appear in the Code of Federal Regulations.
1. On pages 66410 through 66543, Addendum B, Relative Value Units and Related Information Used in Determining Medicare Payments for 2008, the table is corrected to read as follows:
2. On pages 66543 through 66545, Addendum C, Codes with Interim RVUs, the table is corrected to read as follows:
3. On pages 66545 through 66546, Addendum D, 2008 Geographic Adjustment Factors (GAFs), the table is corrected to read as follows:
4. On pages 66546 through 66547, Addendum E, 2008*** Geographic Practice Cost Indices by State and Medicare Locality, the table is corrected to read as follows:
5. On page 66551, Addendum F, CPT/HCPCS Imaging Codes Defined by DRA 5102(B), the descriptors for the following CPT codes are corrected to read as follows:
6. On pages 66575 through 66578, Addendum I, List of CPT
a. Correcting the following entries:
b. Deleting the following entries:
We ordinarily publish a notice of proposed rulemaking in the
Section 553(d) of the APA ordinarily requires a 30-day delay in effective date of final rules after the date of their publication. This 30-day delay in effective date can be waived, however, if an agency finds for good cause that the delay is impracticable, unnecessary, or contrary to the public interest, and the agency incorporates a statement of the findings and its reasons in the rule issued.
This correction notice addresses typographical and technical errors made in FR Doc. 07-5506, the CY 2008 PFS final rule with comment period, which appeared in the November 27, 2007
For the same reasons, we are also waiving the 30-day delay in effective date for this correction notice. We believe that it is in the public interest to ensure that the CY 2008 PFS final rule with comment period accurately states our policies as of the date they take effect. Therefore, we find that delaying the effective date of these corrections beyond the effective date of the final rule with comment period would be contrary to the public interest. In so doing, we find good cause to waive the 30-day delay in the effective date.
(Catalog of Federal Domestic Assistance Program No. 93.774, Medicare—Supplementary Medical Insurance Program)
Department of Veterans Affairs.
Final rule.
This document amends the Department of Veterans Affairs (VA) Acquisition Regulation (VAAR). This document revises the VAAR to conform to plain language principles, updates delegations of authority, and removes non-regulatory material. The document also makes changes in format, arrangement, and numbering to make the VAAR parallel to the Federal Acquisition Regulation (FAR) as required by the FAR. In addition, provisions that simply restate FAR provisions that are already applicable have been removed, and procedures for providing notice and a hearing to resolve issues regarding possible violations of the Gratuities clause, for establishing qualified products lists, for suspending or debarring a contractor, for expediting payments to small businesses, and for reducing or suspending payments upon a finding of contract fraud have been added. The VAAR clause on Organizational Conflicts of Interest has been expanded to cover a broader range of services that may be subject to organizational conflicts of interest. Additional VAAR clauses have been added to the list of clauses for use in commercial item solicitations and contracts. Items that have been deleted include requirements for setting aside construction and architect-engineer solicitations for small businesses that are in conflict with current statute, a requirement to conduct an audit of section 8(a) price proposals that is contrary to current FAR requirements, and a VAAR provision that requested data from offerors on veteran-owned small businesses that has been replaced by a FAR provision. Guidance to contracting officers on the types of data that should be requested from a contractor when evaluating the contractor's financial condition has been added. Other additions include a requirement to use the clause on Assignment of Claims in purchase orders and guidance to contracting officers on the criteria for revising the payment due dates for invoices. This final rule also makes non-substantive clarifying changes and corrections to the proposed rule. The Veterans Benefits, Health Care, and Information Technology Act of 2006 (Pub. L. 109-461) was issued subsequent to the proposed rule. It will be addressed in a future rulemaking.
Arita Tillman, Acquisition Policy Division (049A5A), Office of Acquisition and Materiel Management, Department of Veterans Affairs, 810 Vermont Ave., NW., Washington, DC 20420, telephone (202) 461-6859, e-mail
On January 13, 2006, we published in the
One commenter stated that the internal procedure, guidance, format, and work-flow items that do not impact VA's vendor base should be removed from the VAAR and relocated to internal documents.
We appreciate this comment and concur that material in the VAAR that does not impact the public may be removed from 48 Code of Federal Regulations (CFR) Chapter 8, and this final rule does remove some such material formerly contained in the VAAR. VA plans to remove additional material at a future date, but until the internal documents containing that guidance are published and in place within VA, that material cannot be removed from the VAAR. Future changes to the VAAR will be processed as the internal documents are put into place.
One commenter stated that the VAAR language should be updated to keep pace with the direction of Federal procurement and current thinking regarding performance-based acquisition, preference for acquisition of commercial items or services, electronic submissions, interagency contracting, etc.
We believe updating is an ongoing process; we will continue to seek to ensure the VAAR is current and up to date.
One commenter stated that based on recent Federal policy changes, such as the use of the Electronic Subcontracting Reporting System (eSRS), Wage Determinations OnLine (WDOL), and the new security guidance as found in Homeland Security Presidential Directive (HSPD)-12 or Federal Information Processing Standards (FIPS) 201, any procedures in the VAAR that impact VA's vendor base should be updated.
We note that the VAAR supplements the FAR when we consider supplementation necessary. Otherwise, we rely on the FAR for such guidance. We are not aware of any procedures in the VAAR regarding these issues that require updating. We therefore make no change based on this comment.
One commenter stated that many clause prescriptions contain either the word “must” or “shall.” To remain consistent with the FAR and other regulatory documents found across the Federal government, and “to simplify the use of any non-subjective language,” the commenter recommended picking one of the two and using it throughout the document.
We appreciate this comment and based on it, we have changed the term used in all provision and clause prescriptions from “must insert” to “shall insert” to be consistent with the FAR. The FAR Drafting Guide otherwise provides that “must” and “shall” have the same meaning.
Several comments were received suggesting additions and changes to sections in Part 801 that are internal to VA and that do not impact the public.
We believe the referenced sections are internal guidance to contracting officers and we do not intend to add more internal guidance to the VAAR than is necessary (see Comment 1 above). However, the comments have been considered and this final rule makes changes from the proposed rule where appropriate in that internal guidance.
Two comments were received regarding the proposed provisions in 809.504(d) to expand the application of the clause at 852.209-70 to cover additional types of services. One commenter stated that the requirement to include the clause at 852.209-70 in all solicitations for services that are addressed in FAR 9.502 is unnecessary and essentially removes any flexibility on the part of contracting officers to make determinations regarding the applicability of organizational conflicts of interest based on the circumstances of a specific procurement. The commenter indicated that FAR 9.505 contains general rules that should be followed in this matter and that VA should empower contracting officers to make the determinations instead of relying on a blanket approach to incorporating this clause. The other commenter does not
As an initial matter, we note that currently, 48 CFR Chapter 8 requires contracting officers to include the clause at 852.209-70 in all solicitations and contracts for consulting services. In the proposed rule, we proposed to add solicitations and contracts for management support services, other professional services, technical evaluation services, and systems engineering services, as provided in FAR 9.502, to the types of solicitations and contracts where the clause would be required. The FAR identifies these services as those more likely to involve organizational conflicts of interest. The clause does not require any submission of data or any action on the part of any offeror if the offeror, to the best of the offeror's knowledge and belief, has no organizational conflicts of interest. This is not a determination that the contracting officer can make in advance, as the contracting officer does not know the particular circumstances of each and every potential offeror in advance of issuing the solicitation. Determinations of whether potential organizational conflicts of interest exist are not dependent upon the type of service being procured but rather are dependent upon the specific circumstances of each offeror, circumstances which only the offeror might know. Since FAR 9.502 indicates that organizational conflicts of interest are more likely to occur in contracts for these types of services, we believe it is prudent to extend the use of the clause to at least include solicitations for these types of services. The clause only requires an offeror to provide supplemental information to the contracting officer if the offeror knows or believes that award of the contract to the offeror would involve an organizational conflict of interest. If the offeror does not know or does not believe that award of a contract would involve an organizational conflict of interest, no action is required on the part of the offeror. The contracting officer is not in a position to make a blanket determination for and on behalf of every potential offeror under a specific solicitation. It is the offeror rather than the contracting officer that is in a position to know whether it has a potential organizational conflict of interest. This clause is not a substitute for FAR Subpart 9.5 and does not relieve the contracting officer from compliance with the requirements of 9.5. Rather, it supplements 9.5 by placing some responsibility on offerors to notify contracting officers of the existence of potential organizational conflicts of interest of which the contracting officer would not otherwise be aware. We believe the use of this clause is appropriate for the types of services specified in FAR 9.502 and as set forth in the proposed rule. Therefore, no change is being made in the final rule regarding the use of this clause.
One commenter stated that VA policies in Part 811 should be updated in terms of best value contracting, performance-based acquisition, and preference for commercial items. The part should address requirements for commodities that need specifications and those that do not and should include detailed policy on commercial item preference and use of statements of objectives or performance work statements in those situations where a specification is not required.
VA relies on the FAR for such guidance. We do not believe that additional guidance and coverage is required in Part 811 of the VAAR. Adding additional material to the VAAR that might impact the public is beyond the scope of this rulemaking.
One commenter stated that the focus of the VAAR should be revised from “purchasing compliance” to “purchasing performance.” For example, adding clauses to Part 812 does not streamline or simplify the purchasing process, and the language which allows contracting officers to tailor solicitations defeats the preference for utilizing commercial practices.
We do not believe the clauses being added for use in commercial item acquisitions, when appropriate, are inconsistent with commercial practices or that they necessarily relate to contract compliance versus performance. The tailoring provisions simply establish agency procedures to implement the tailoring provisions authorized by the FAR at 12.302(c).
One commenter expressed concern that the lead-in language in section 812.301(a), that VA contracting officers “must use only those provisions and clauses in this part when acquiring commercial items,” may be misread to mean that the clauses in Part 812 are mandatory. The commenter recommended revising the language to provide that only those clauses listed in FAR 12.3 are mandatory and to affirmatively state that clauses in 812.301 are optional.
We partially concur with the commenter's recommendation. We have made changes in the final rule from the proposed rule's language in 812.301(a) to clarify that the clauses referred to in Part 812 are to be used as appropriate, in accordance with the provision or clause prescriptions. We do not think that it is appropriate to refer in 812.301(a) to FAR 12.3, and believe that such a reference would be redundant.
One commenter expressed concern that by adding clause 852.209-70 to the list of clauses that may be used, as appropriate, in commercial item solicitations, contracting officers may routinely include that clause in all commercial item solicitations.
We partially concur and have made changes in the final rule from the proposed rule's language in 812.301(b) and (c) to clarify that the provisions and clauses listed therein are to be used in accordance with the prescriptions for those provisions and clauses. The prescription for use of clause 852.209-70 provides for use of the clause only in certain types of service contracts.
One commenter requests an update to section 814.201 regarding contract numbering to conform to how VA's Electronic Contract Management System (eCMS) is going to be used to automatically assign numbers to applicable contractual vehicles.
VA appreciates this comment and we intend to update this section upon implementation of eCMS and this final rule makes changes to the proposed rule by adding a statement regarding eCMS to this section.
One commenter stated that proposed VAAR Subparts 817.1 and 817.2 should be clarified regarding their application to standard multi-year pricing provisions and option clauses included in Federal Supply Schedule contracts; clarification should be added regarding multi-year contracts versus multiple options for renewal; and guidance should be added relative to contracts subject to the Veterans Health Care Act, 38 United States Code (U.S.C.) 8126.
We do not believe that this comment relates directly to the proposed rule change to the VAAR, as published in the
One commenter stated that a clause used in VA Federal Supply Schedule solicitations and contracts regarding an option to extend the term of the contract and relating to the Veterans Health Care Act, 38 U.S.C. 8126, should be added to the VAAR.
We do not believe that the comment relates directly to the proposed changes to the VAAR contained in the proposed rule, as published in the
One commenter requested that the VAAR clarify the definition of “other publications” in proposed section 832.404 to include electronic media, and stated that subscriptions for publications or products that are available via electronic media are now commonplace in the commercial market.
We appreciate the request for clarification. However, rather than defining “other publications,” which could result in an extensive list, the proposed rule revised this section to restate statute, which we believe does cover electronic media. We have made no change based on this comment.
One commenter stated that Section 847 of the National Defense Authorization Act for Fiscal Year 2006 terminates all agency boards of contract appeals, except for the General Services Administration, the Tennessee Valley Authority, and the United States Postal Service, within a year of the date of enactment of the Act. The commenter requested that VA confirm the process for appeals to the VA Board of Contract Appeals prior to that date and the process that will be followed after that date, if possible.
We appreciate this comment and as mandated by Congress, on January 6, 2007, the VA Board of Contract Appeals was terminated and its contract adjudication functions were transferred to the Civilian Board of Contract Appeals. The final rule makes changes to the proposed rule by revising accordingly.
One commenter suggested changes to or clarification of General Services Administration clause 552.238-75.
Changes to the clause in 48 CFR 552.238-75 are outside the scope of this rulemaking. This clause is not a VAAR clause. Suggested changes to this clause should be directed to the General Services Administration. To the extent that the commenter is suggesting the addition of clarifying language to the VAAR supplementing General Services Administration clauses, the suggestion does not directly relate to the proposed changes to the VAAR contained in the proposed rule, as published in the
One commenter suggested that changes be made to the modified version of General Services Administration clause 552.215-72 used in VA Federal Supply Schedule solicitations and contracts.
We believe this is outside the scope of this rulemaking. The suggestion does not relate to the proposed changes to the VAAR as contained in the proposed rule published in the
One commenter suggested that various provisions used by VA in its Federal Supply Schedule solicitations and contracts that are not currently included in the VAAR be added to the VAAR.
We do not believe that the suggestion directly relates to the proposed changes to the VAAR as contained in the proposed rule published in the
One commenter requested that VA ensure that sections 801.670-1 and 847.303-1 clearly be written to conform to FAC 2005-7 and the Interstate Commerce Act, and stated that commercial bills of lading are now required for domestic shipment.
VA believes that sections 801.670-1 and 847.303-1 primarily provide internal VA guidance and we believe they do comply with FAC 2005-7 and the Interstate Commerce Act. The VA Commercial Bill of Lading referenced in section 847.303-1 is a commercial bill of lading.
Three commenters suggested changes to clause 852.211-70, Service data manuals, varying from specific suggested changes that would replace the requirements for hard copies of the manuals with other requirements involving electronic versions, to a suggestion that there be a complete rewrite of the clause to reflect electronic documentation standards used throughout the medical imaging community.
We agree that this clause may require revision and updating to conform to current commercial practices. However, we consider hard copies of such manuals to be necessary. Further, the clause not only impacts VA, it also impacts all of the other Federal agencies for which VA is the contracting office for medical equipment as well as members of the public. We believe that the suggested changes to this clause would require a new proposed rule and opportunity for public comment, including comment from other Federal agencies that might be impacted by such changes. These suggested changes will be considered for possible generation of a new proposed rule change to the VAAR at a future date.
One commenter suggested that clause 852.211-72, Technical industry standards, be revised to add “voluntary consensus” prior to the word “standards” in the second line of the first paragraph of the clause.
The clause is not intended to limit required standards to only those that are voluntary consensus standards. By making this suggested change, VA would be limited to requiring compliance only with such voluntary standards. We are reluctant to place such limits on the use of this clause. We believe that the term “standards” would include voluntary consensus standards; therefore, we are making no changes to the clause.
One commenter urged VA to carefully instruct contracting officers to exercise caution when using the clause at 852.252-70 and incorporating FAR and VAAR provisions and clauses by reference in solicitations for commercial items. The commenter indicated that there is a specific reference in FAR 12.301(b)(2) and FAR clause 52.212-3 addressing the representations and certifications for commercial item contracts and a specific provision at FAR 12.301(e) addressing the use of discretionary clauses.
We believe that clause 852.252-70 allows contracting officers to include by reference in a solicitation any provisions or clauses that require completion by the offeror or prospective contractor. This clause was promulgated in the VAAR based on FAR 52.102(c)(1) and (c)(2). In a commercial item solicitation, only those provisions and clauses that pertain to or are appropriate for use in a commercial item solicitation may be included by reference. We are not sure of the intent of the commenter, but we do not believe contracting officers need special instructions to exercise caution in determining the appropriate provisions and clauses for commercial items. Therefore, we have made no such change in response to the comment.
One commenter stated VA should consider using this as an opportunity to reduce the number of VA-unique forms, such as the VA Form 90-2138 series.
We are making no change at this time based on this comment. This comment is beyond the scope of the proposed rule but will be considered for possible future changes. However, the use of agency-specific forms such as the VA 90-2138 series is authorized by the FAR (see FAR 53.213(f)).
One commenter interpreted the proposed rule as removing specific guidance pertaining to consignment agreements. The commenter urged that it be retained in the VAAR to ensure consistency throughout VA.
The current guidance in the VAAR on consignment agreements is at 870.108-3 in the non-codified portions of the printed VAAR (i.e., material that does not appear in 48 CFR Chapter 8), and is not being removed by this final rule nor was it intended to be affected by the proposed revision of the codified VAAR. This non-codified material, along with the codified portions of the VAAR, can be found on the Office of Acquisition and Materiel Management Web page at
Two commenters suggested that the guidance in VA information letters or clauses in VA solicitations for award of Federal Supply Schedule contracts be added to and included in the VAAR.
We do not believe that these comments directly relate to the proposed changes to the VAAR in the proposed rule. Rather, they are beyond the scope of this rulemaking and we believe that these suggested changes would require a new proposed rule and opportunity for public comment. These suggested changes will be considered for possible generation of a new proposed rule change to the VAAR at a future date.
This final rule removes the citation of authority to negotiate nursing home contracts under 38 U.S.C. 1720 without regard to any other provision of law at 806.302-5(b)(6). That citation was incorrect, as there is no authority under 38 U.S.C. 1720 to negotiate nursing home contracts without regard to any other provision of law. Nursing home contracts must be negotiated in accordance with the FAR and VAAR.
“Glass, Wire” has been removed from the list of nonavailable articles under the Buy American Act as it duplicates an article, “wire glass,” already listed in FAR 25.104.
Material formerly included in the proposed rule as Alternate I to the clause at 852.246-70, Guarantee, has been relocated as paragraph (b) to section 846.302-70, Guarantee clause, with no substantive change. The material has been determined to not be an alternate to the clause itself but rather to be instructions to the contracting officer on how to modify the clause under certain circumstances.
As published in the proposed rule in 852.236-83, paragraph (d)(3) incorrectly and inadvertently duplicated paragraph (d)(4). The correct paragraph (d)(3) is currently published in 48 CFR Chapter 8 and we did not intend to make any changes to paragraph (d)(3) in the proposed rule. This final rule reflects the correct version of paragraph (d)(3), as currently published in 48 CFR Chapter 8.
No substantive change has been made to the verbiage in the clause at 852.237-7, Indemnification and medical liability insurance, but the contracting officer's note in paragraph (a) has been bracketed and italicized to instruct contracting officers to fill in the dollar values of the insurance required. Due to this nonsubstantive modification, the clause date has been changed.
Section 871.207(a)(1) provides that payment for tuition or fees under contracts for training or rehabilitation services shall be made in arrears. Section 871.210(h), which further discusses payment for correspondence courses, contained a typographical error—the word “areas” was used instead of the word “arrears” when discussing payment. This error has been corrected in section 871.210(h) to read “arrears.”
Other nonsubstantive changes have been made, principally to reflect current VA organizational structure and to correct typographical, grammatical, and similar errors. Changes have been made to internal VA guidance to contracting officers. These include, but are not limited to, changes to correspond to recently issued Office of Federal Procurement Policy guidance, such as the material covering the contracting officer certification program in 801.690. Internal VA procedures for establishing individual facility and staff office socioeconomic goals that were inadvertently left out of the proposed rule have been added back in at 819.202-5.
A number of clauses have been renumbered and/or renamed by this
As noted in the preamble to the proposed rule, no substantive changes have been made to the clauses in the chart above with the exceptions of 852.233-70, Protest content/alternative dispute resolution, where paragraph (c) has been added to encourage the use of alternative dispute resolution procedures, as provided in FAR 33.103(c), and clauses 852.271-71, Inspection, and 852.271-74, Inspection, which have been combined into one clause for simplicity.
This final rule contains provisions in sections 832.006-4 and 832.202-4 that constitute collections of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). In the preamble of the proposed rule, we described the collections in the proposed rule that would need approval by the Office of Management and Budget (OMB) and provided a comment period. We did not receive any comments concerning those collections. OMB has approved those proposed collections, and has assigned control number 2900-0688 to them. In section 801.106, OMB approval under the Paperwork Reduction Act, we are making a change in this final rule from the proposed rule by including this OMB control number. OMB assigns a control number for each collection of information it approves. VA may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
Based on the rationale set forth in the proposed rule and in this document, VA is adopting the provisions of the proposed rule as a final rule with the changes discussed above.
Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Executive Order classifies a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB) unless OMB waives such review, as any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
The economic, interagency, budgetary, legal, and policy implications of this final rule have been examined and it has been determined to be a significant regulatory action under the Executive Order because it is likely to result in a rule that may raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This rule will have no such effect on State, local, or tribal governments, or the private sector.
The Secretary hereby certifies that this rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. The primary purpose of this document is to update the existing VAAR to correspond to FAR requirements and internal VA policy and to conform to plain language principles. Many of the changes are internal to VA and do not impact the public, do not impose any requirements on the public, and thus do not have an economic impact on small entities. The
The addition of procedures for contractor hearings relative to: (1) Violating the Gratuities clause (section 803.204); (2) voiding or rescinding a contract (section 803.705); and (3) reducing or suspending payment due to fraud (section 832.006-4) only supplement authorities that are already in the FAR and are rarely used by VA. They do not add any new authorities that VA could have exercised under the FAR before issuance of this rule, and VA has not taken any action under these authorities against small entities over the past several years. Few, if any, actions are expected to be taken in the future. Thus, there is no impact on a substantial number of small entities.
The changes to Subpart 809.4 relative to suspension and debarment are changes to form and not to substance. The basic procedures remain unchanged and there is no change on the impact to small businesses.
The change to 819.202-1 relative to granting small businesses improved payment terms on contracts is not a new authority, but the VAAR lacked guidance on how to exercise this authority. Title 5 CFR 1315.5 already authorizes agencies to pay small businesses as quickly as possible. This change may encourage VA contracting officers to use this authority more often, but the impact of this provision on small business would be both minimal and entirely beneficial. With the advent of purchase cards, small businesses that accept the cards already receive payment within a matter of a few days following their submission of a request for payment to VISA. This rule provision would have no impact on small businesses that accept the purchase card.
The rule removes a current provision in section 819.502-2 mandating that certain solicitations be treated as though SBA initiated a set-aside request. This provision is inconsistent with the requirements in FAR subpart 19.10 and the Small Business Competitiveness Demonstration Program of 1988, Public Law 100-656 (codified as amended at 15 U.S.C. 644 note). Those authorities require that competition for procurement contracts relating to construction and A/E services be unrestricted. Because Public Law 100-656 and FAR subpart 19.10 prohibit VA from setting aside a solicitation under the circumstances specified in VAAR 819.502-2, the removal of that superseded provision will not have any effect on small entities.
The changes in sections 803.204, 803.705, and 832.006-4 will not impose more than minimal costs on any small entities, as VA has not taken action under the corresponding FAR provisions over the past several years and we do not expect to take many, if any, actions in future years. The positive financial benefit to small entities of the change to 819.202-1 is also considered to be minimal. The authority to expedite payments already exists under the FAR and we expect few additional cases where this authority will be used as a result of the addition of these provisions to the VAAR. Even where there are additional uses of this authority, the financial benefit to small entities of expedited payment is expected to be minimal. Therefore, under 5 U.S.C. 605(b), this rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.
Government procurement, Recordkeeping and reporting requirements.
Government procurement.
Improper Business Practices and Personal Conflicts of Interest.
Small Business and Small Disadvantages Business Concerns.
Application of Labor Laws to Government Acquisitions.
Foreign Acquisitions.
Bonds and Insurance.
Taxes.
Contract Cost Principles and Practices.
Protests, Disputes, Appeal.
Government procurement, Utilities.
Government procurement, Transportation.
Asbestos, Frozen foods, Government procurement, Telecommunications.
Government procurement, Loan programs—social programs, Loan programs—veterans, Recordkeeping and reporting requirements, Vocational rehabilitation.
This document was received at the Office of the Federal Register on December 26, 2007.
38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-1.304.
This part sets out general Department of Veterans Affairs (VA) Acquisition Regulation (VAAR) policies, including information regarding the maintenance and administration of the VAAR, acquisition policies and practices, and procedures for deviation from the VAAR and the Federal Acquisition Regulation (FAR).
(a) VA established the VAAR to codify and publish uniform policies and procedures for VA's acquisition of supplies and services, including construction.
(b) The VAAR implements and supplements the FAR.
The Secretary issues the VAAR under the authority of 40 U.S.C. 121(c), Title 48 of the Code of Federal Regulations (CFR) 1.301 through 1.304, and other authorities as cited.
(a) Unless otherwise specified in this chapter or excepted by statute (i.e., expenditures of the VA Canteen Service) or other VA regulations, the FAR and VAAR apply to all VA acquisitions (including construction) made with appropriated funds. Supply Fund monies (38 U.S.C. 8121) and General Post Funds (38 U.S.C. 8302) are appropriated funds.
(b) Use the VAAR and the FAR together. The FAR applies to VA acquisitions except as provided in the VAAR.
The FAR and VAAR do not apply to purchases and contracts that use General Post Funds if using the FAR and the VAAR would infringe upon a donor's right to specify the exact item to be purchased and/or the source of supply (38 U.S.C. 8303).
(a)
(b)
(2) Subdivisions below the section or subsection level consist of parenthetical alphanumerics using the following sequence: (a)(1)(i)(A)(
(c)
(2) This Chapter may be referred to as the “Department of Veterans Affairs Acquisition Regulation” or the “VAAR”.
(3) Using the VAAR coverage at 809.106-4(c) as a typical illustration, reference to the—
(i) Part would be “VAAR Part 809” outside the VAAR and “Part 809” within the VAAR.
(ii) Subpart would be “VAAR Subpart 809.1” outside the VAAR and “Subpart 809.1” within the VAAR.
(iii) Section would be “VAAR 809.106” outside the VAAR and “809.106” within the VAAR.
(iv) Subsection would be “VAAR 809.106-4” outside the VAAR and “809.106-4” within the VAAR.
(v) Paragraph would be “VAAR 809.106-4(c)” outside the VAAR and “809.106-4(c)” within the VAAR.
(4) Citations of authority (e.g., statutes or Executive orders) in the VAAR shall follow the
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), the Office of Management and Budget (OMB) has approved the reporting or recordkeeping provisions that are included in the VAAR and has given VA the following approval numbers:
Revisions to the FAR are prepared and issued through the coordinated action of two councils, the Defense Acquisition Regulations Council and the Civilian Agency Acquisition Council. A designee of the Office of Acquisition and Materiel Management will represent VA on the Civilian Agency Acquisition Council.
The Assistant Secretary for Management is designated as the Department's Chief Acquisition Officer. The Deputy Assistant Secretary (DAS) for Acquisition and Materiel Management is designated as the Department's Senior Procurement Executive (SPE). The Associate DAS for Acquisitions is designated as the Deputy Senior Procurement Executive (DSPE). The DSPE is responsible for amending the VAAR for compliance with FAR 1.304.
(a) Authority to authorize individual deviations from the FAR and VAAR is delegated to the SPE and is further delegated to the DSPE.
(b) When a contracting officer considers it necessary to deviate from the policies in the FAR or VAAR, the contracting officer, in accordance with Administration or staff office procedures, must submit a request through the HCA to the DSPE for authority to deviate.
(c) The request to deviate must clearly state the circumstances warranting the deviation and the nature of the deviation.
(d) The DSPE may authorize individual deviations from the FAR and VAAR when an individual deviation is in the best interest of the Government. When the DSPE authorizes a deviation, the contracting officer must file the authorization in the purchase order or contract file.
Authority to authorize class deviations from the FAR and VAAR is delegated to the SPE and is further delegated to the DSPE. The DSPE may authorize class deviations from the FAR and VAAR when a class deviation is in the best interest of the Government. The DSPE must comply with the provisions of FAR 1.404 through the SPE.
(a) The HCA or the DSPE, within their authority, may appoint a contracting officer under FAR 1.603 and VA's Contracting Officer Certification Program (COCP).
(b) In addition, the HCA may delegate micro-purchase authority to VA employees under VA's purchase card program.
(c) An individual may not commit the Government for purchases of supplies, equipment, or services unless the individual has received delegated contracting authority as a contracting officer or purchase card holder or as provided in 801.670. Individuals making such commitments or acting beyond the scope of their authority may be held financially liable.
(a) Except as otherwise provided by statute, VA regulations, the VAAR, or the FAR, the authority vested in the
(1) Execute, award, and administer contracts, purchase orders, and other agreements (including interagency agreements) for the expenditure of funds for construction and the acquisition of personal property and services (including architect-engineer services).
(2) Issue bills of lading.
(3) Sell personal property.
(4) Enter into leases, sales agreements, and other transactions.
(5) Prescribe and publish acquisition policies and procedures.
(6) Establish clear lines of contracting authority.
(7) Manage and enhance career development of the procurement work force.
(8) Examine, in coordination with the Office of Federal Procurement Policy, the procurement system to determine specific areas where VA should establish and apply Government-wide performance standards, and to participate in developing Government-wide procurement policies, regulations, and standards.
(9) Oversee the competition advocate program.
(b) The DSPE may further delegate authority to execute, award, and administer contracts, purchase orders, and other agreements to other VA officials, such as HCAs and contracting officers, in accordance with the COCP.
In the administration of a contract, many problems can and do arise that make the advice and assistance of the Office of General Counsel (OGC) either desirable or necessary. The final decision as to the action to be taken, however, must be made by the contracting officer in each instance. To reduce to the absolute minimum the possibility of litigation resulting from his/her decision, the contracting officer shall submit the problem through channels in sufficient detail to the General Counsel for advice or assistance.
(a) This section applies to unauthorized commitments, including any commitment made by a contracting officer that exceeds that contracting officer's contracting authority and unauthorized commitments made by individuals who lack contracting authority.
(b) A contracting officer must not ratify unauthorized commitments made by other VA personnel or by another contracting officer who lacks authority without prior approval as specified in paragraphs (b)(1) through (b)(3) of this section. The specified approval authorities may not be re-delegated.
(1) At field facilities, for supplies, services (except leases of real property), and construction, the approving authority for unauthorized commitments made by staff assigned to a field facility is the HCA.
(2) For VA Central Office (VACO) organizations, for supplies, services (except leases of real property), and construction, the approving authorities for unauthorized commitments made by staff assigned to the Administrations are the respective chief financial officers of the Administrations concerned. The approving authority for unauthorized commitments made by staff assigned to any other organization within VACO is the Deputy Assistant Secretary for Acquisition and Materiel Management.
(3) For unauthorized commitments for leasehold interest in real property, the approving authority is:
(i) The Director, Office of Construction and Facilities Management, for unauthorized commitments for 1-5,000 square feet of space or for 1-100 parking spaces costing less than $50,000 per annum.
(ii) The Under Secretary for Health for unauthorized commitments for 5,001-20,000 square feet of space or for more than 100 parking spaces costing less than $100,000 per annum.
(iii) The Deputy Secretary for 20,001 square feet of space and above or for more than 100 parking spaces costing more than $100,000 per annum.
(c) The process for contracting officer requests for ratification will be as follows:
(1) The individual who made the unauthorized commitment will furnish the contracting officer with all records and documents concerning the commitment and a complete written statement of facts that includes the following:
(i) Why the procurement office was not used.
(ii) Why the proposed contractor was selected.
(iii) Other sources that were considered.
(iv) A description of work to be performed or products to be furnished.
(v) The estimated or agreed contract price.
(vi) A citation of the appropriation available.
(vii) A statement of whether the contractor has commenced performance.
(viii) The name of the individual responsible for the unauthorized commitment.
(2) The contracting officer will review the file and forward it to the approving authority specified in paragraph (b) of this section with any comments or information that the approving authority should consider in evaluating the request for ratification. If the approving authority determines that a legal review would be desirable, the approving authority will coordinate the request for ratification with OGC or the Regional Counsel, as appropriate.
(3) If the approving authority authorizes the ratification, the approving authority will return the file to the contracting officer for issuance of a purchase order or contract, as appropriate.
(d) If an otherwise proper contract award exceeds the limits of the contracting officer's delegated authority, the ratifying contracting officer must comply with the above requirements and the approving authority must inform the HCA. The HCA will take action to preclude future instances of such awards.
(a) Contracting officers shall ensure that any document listed under 801.602-71 through 801.602-76 that is submitted for technical or legal review is submitted through or by an official at least one level above the contracting officer.
(b) Before opening a bid, awarding a contract, or signing a contract-related document as specified in 801.602-71 through 801.602-76, the contracting officer shall ensure that the appropriate VA official, including appropriate staff of the Acquisition Resources Service regional or VA Central Office, has reviewed and concurred with the document.
(c) Before signing a contract for a Veterans Benefits Administration field facility for any guidance center or vocational rehabilitation service with an anticipated expenditure of $100,000 or more, the contracting officer shall ensure that the Director, Vocational Rehabilitation and Employment Service, has reviewed and approved the solicitation or proposed contract.
(d) When the following items are for the management, sale, or lease of properties acquired by VA after liquidation of a guaranteed, direct, acquired, or vendee loan, the review requirements specified in 801.602-71 through 801.602-76 do not apply:
(1) Agreements.
(2) Licenses.
(3) Easements.
(4) Deeds.
(e) If there is insufficient time for the legal review required in 801.602-
(1) The change order (unilateral agreement) has an anticipated value of $100,000 or more; or
(2) The change order is for a time extension of 60 days or more.
(f) Unless otherwise stated, all dollar values in 801.602-71 through 801.602-76 are expressed in total dollars involved in the acquisition action.
(1) The contracting officer may not consider the positive and negative status of the figures in determining the total dollar values involved.
(2) An acquisition of $550,000 with a trade-in credit of $70,000 would be valued at $620,000 for legal or technical review purposes rather than the net amount of $480,000. An Energy Savings Performance Contract requiring payment from savings of $10,000,000 to the contractor over the life of the contract would be valued at $10,000,000, despite the fact that there is no immediate cost to VA and no payment if there are no savings.
(g) By separate notice, the DSPE may require technical review of any contract-related materials, regardless of dollar value.
(h) Except as set forth in 801.602-73 and 801.602-75, at its discretion, the Office of Acquisition and Materiel Management may request OGC review.
(i) The requirements of this section or sections 801.602-71 through 801.602-76 do not apply to contracts awarded by or on behalf of the VA Office of Inspector General.
(j) Contracting officers and purchase card holders must ensure compliance with separate guidance on information technology (IT) tracking and approval prior to processing requests for acquisitions of IT and telecommunications software, equipment, and/or services, regardless of dollar value.
Contracting officers must obtain technical review from Acquisition Resources Service staff of the documents set forth in column one of Table 801.602-71 that have anticipated award values equal to or greater than the value in column two.
(a) In addition to the general review requirements in 801.602-71, contracting officers must obtain technical reviews from Acquisition Resources Service staff of any proposed agreement that is unique, novel, or unusual.
(b) Contracting officers must obtain technical reviews from Acquisition Resources Service staff of the following:
(1) Documents relating to bonds (see FAR 28.102-1 and 28.203 through 28.203-5) as follows:
(i) An irrevocable letter of credit.
(ii) A tripartite escrow agreement.
(iii) An individual surety bond. (Note that the FAR at 28.203(f) also requires legal review of the documents pledging the assets of an individual surety.)
(2) Proposed novation and change-of-name agreements (see FAR Subpart 42.12).
(3) Solicitations or proposed contracts containing an economic price adjustment clause (other than a pre-approved VA clause) based on a cost index of material or labor (e.g., the urban consumer price index (CPI-U) (see FAR 16.203-4(d)) or where one of the economic price adjustment clauses specified in FAR 16.203-4 are used.
(4) Proposed multi-year contracts where the cancellation ceiling exceeds 20 percent of the contract amount, regardless of the dollar value of the proposed contract (see 817.105-1(b)).
(5) Proposed solicitations where the contract term total of the basic and option periods may exceed 5 years, regardless of the dollar value of the proposed acquisition (see 817.204).
(6) Proposed membership agreements in a group purchasing organization.
(7) A proposed termination settlement or determination of amounts due the contractor under a terminated contract that involves the expenditure of $100,000 or more of Government funds. Acquisition Resources Service staff shall obtain legal review (see 849.111-70).
(8) Consignment agreements with an anticipated expenditure of $250,000 or more per year (except for a consignment agreement established under, and provided for in, a Federal Supply Schedule contract).
(c) Contracting officers, including purchase card holders, must obtain technical and legal review of all proposed contracts with hotels or similar facilities for conferences or similar functions (e.g., training, meetings) where VA's commitment, expenditure, and liability (combined) exceed $25,000. This dollar figure is based on the combination of all direct costs to VA under the contract (e.g., conference rooms, audio-visual charges, refreshments, catering) and all potential liability (e.g., room guarantee liability, cancellation costs). Even if there is no direct cost to VA, if the proposed contract includes a guarantee on room usage or a cancellation fee that could potentially exceed $25,000, the proposed contract requires legal and technical review. Signing a contract committing VA to hold a conference at a particular hotel is a procurement and
For contracts to be awarded under the authority of either 38 U.S.C. 7409 or 38 U.S.C. 8153, contracting officers must obtain technical and legal reviews from the Medical Sharing Office, OGC, and Acquisition Resources Service staff of the following documents:
(a) Each competitive solicitation, quotation, proposed contract, or agreement with an anticipated contract award value of $1,500,000 or more, inclusive of options.
(b) Each noncompetitive solicitation, quotation, proposed contract, or agreement with an anticipated contract award value of $500,000 or more, inclusive of options.
Contracting officers or other staff must obtain technical review from Acquisition Operations Service staff of the following documents:
(a) Each proposed VA Central Office interagency agreement with another Federal agency to be awarded under authority of the Economy Act, regardless of dollar value. For VA Central Office, only the DSPE or designee may sign an interagency agreement.
(b) Each proposed VA field facility interagency agreement with another Federal agency awarded under authority of the Economy Act involving an anticipated expenditure of VA funds of $250,000 or more. A VA field facility contracting officer or a contracting officer at the VA National Acquisition Center or the Denver Acquisition and Logistics Center may sign an interagency agreement if the dollar threshold is within the contracting officer's warrant limit.
(a) Contracting officers must obtain legal review or concurrence from OGC for the following categories of proposed contractual actions.
(1) Each contract termination, final decision, cure letter, or “show cause” notice proposed under any contract where the total value of the contract is $100,000 or more. A contracting officer may not sign or release a document subject to this provision until OGC has concurred.
(2) Each dispute or claim from a contractor involving a potential total dollar value of $100,000 or more. A contracting officer may not sign or release a document subject to this provision until OGC has concurred.
(3) Each proposed contract modification, including any proposed modification to a supply or service contract, where the total value of the modification is $100,000 or more (
(4) Each proposed contract modification granting a time extension of more than 60 days. The Director, Acquisition Resources Service, may waive the pre-approval requirement under this paragraph for an individual facility when the Director determines that the facility has obtained appropriate “consideration” for past time extensions and the extensions were otherwise appropriately granted.
(5) Each proposed modification increasing the value of a letter contract, regardless of dollar value.
(6) Each proposed contract modification for which the contractor takes exception to the accord and satisfaction language specified by VA. The contracting officer may not execute any proposed contract modification under this requirement until the contracting officer receives OGC's concurrence in the proposed language.
(7) An assignment of claims (see FAR Subpart 32.8).
(8) Each change or revision to a FAR or VAAR provision or clause or an internal VA-approved clause (e.g., architect/engineer “SP” clauses) not specifically authorized by the regulations.
(9) Each change or revision to a prescribed VA contract form.
(10) A proposed utility construction or connection contract with an anticipated contract award value of $50,000 or more.
(11) Each proposed novation and change-of-name agreement (see 842.1203).
(b) For an action specified in paragraph (a)(1) or (2) of this section, OGC may comment or concur in writing or by telephone.
(c) When a Central Office contracting activity requests legal assistance, the contracting officer will brief OGC on the facts and points of issue to facilitate prompt resolution.
(d) For each solicitation or contract awarded and administered by a Central Office contracting activity, that contracting activity will ask OGC to participate in conferences where legal problems or modifications to contract provisions may be considered and in meetings attended by legal representatives of private parties or other Government agencies. The contracting activity will request assigned procurement counsel participation in drafting correspondence involving significant controversial or sensitive contractual matters.
(e) OGC will prepare any response to the Government Accountability Office (GAO) on GAO bid protests. (See 833.104).
(a) A business clearance review is a technical review of all solicitation and contract award or modification documents immediately prior to contract award or modification over the specified dollar threshold.
(b) All VA contracting officers must obtain a business clearance review prior to award of any contract, task or delivery order, or blanket purchase agreement or execution of any contract modification with a value of $5 million or more or prior to award of any lease with a value of $300,000 or more per year.
(c) The dollar threshold in this paragraph is based on the total dollar value of all awards expected under a single solicitation, not the value of each individual award under a solicitation. For example, a solicitation for home oxygen for a Veterans Integrated Service Network (VISN) might result in multiple awards, each of which has a value of less than $5 million. If the total of all awards under that solicitation will exceed $5 million, the contracting officer must obtain a business clearance review of the entire package, including all proposed individual awards.
(a) Under 801.602-70 through 801.602-76, before taking contract action, a contracting officer must ensure that any required legal or technical review or concurrence is complete. Contracting officers shall not award or sign contracts, task or delivery orders, blanket purchase agreements, or contract modifications prior to receipt of the final legal and technical review. Should the contracting officer disagree with the advice provided, the contracting officer shall document in the contract file the reasons therefore and provide a copy of that document to the reviewing Office of Acquisition and Materiel Management office. The contracting officer must fully implement any accepted review comments as follows:
(1) Before opening the bid or proposal for a competitively awarded contract.
(2) Before executing contract documents for a contract modification or noncompetitive contract award.
(b) The contracting officer must advise potential bidders or offerors of changes made to the solicitation by issuing an amendment. The contracting officer must give bidders and offerors sufficient time for evaluation before the bid or proposal opens.
(a) If legal or technical review is required, the documents listed in Table 801.602-78 must be forwarded for review and approval as shown therein.
(b) The director of the Acquisition Resources Service office conducting the technical review has authority to determine whether to forward documents for legal review.
(c) When the contractor takes exception to the accord and satisfaction language VA specifies in a proposed contract modification, the contracting officer must not sign the modification until OGC concurs with the language proposed by the contractor.
(d) The contracting officer either must fax or send via overnight mail or e-mail all of the relevant documents on proposed contract terminations, final decisions, cure letters, show cause notices, disputes, and claims specified in 801.602-75(a)(1) and (a)(2). OGC will provide concurrence or comments either in writing or by telephone. The contracting officer must not sign or release a document to the contractor until OGC concurs.
(e) For any VA contract form subject to legal review under 801.602-75(a)(8), the contracting officer must process the change or revision in accordance with VA Manual MP-1, Part II, Chapter 4 and any supplements to it (
(a) Contracting officer must ensure that proposed solicitations, quotations, contract-related documents, and agreements listed in Table 801.602-71 are reviewed by the Office of Resource Management prior to document execution. The Office of Resource Management must request legal review of all these documents.
(b) Contracting officer must ensure that proposed solicitations or agreements for guidance center and vocational rehabilitation services are reviewed by the Director, Vocational Rehabilitation and Employment Service, if there is an anticipated expenditure of $100,000 or more.
An Office of Construction and Facilities Management or National Cemetery Administration (Construction Support Division) contracting officer shall submit all A/E contracts, and all construction contracts, time extensions, and modifications, directly to Office of General Counsel (OGC) for review.
When a bid or offer, proposed contract modification, or proposed lease requires a business clearance review under 801.602-76, the contracting officer must forward the required documents (see 801.602-84) and the following information to the appropriate Acquisition Resources Service central or regional office. Office of Construction and Facilities Management and National Cemetery Administration (Construction Support Division) contracting officers shall forward the documents to OGC (025):
(a) The date on which award is anticipated.
(b) Results or efforts made to determine whether the contractor is responsible under FAR Subpart 9.4.
(c) A determination of price reasonableness.
(d) An explanation (e.g., the source selection decision as specified in FAR 15.308) if the contracting officer proposes an award to a contractor other than the low responsible bidder or offeror.
Table 801.602-82 specifies the documents that must be submitted
(a) The documents specified in this section related to proposed contract modifications must be submitted to Acquisition Resources Service for review under one or more of the following conditions:
(1) When the total modification value is $100,000 or more.
(2) When the modification is for a time extension of 60 days or more.
(3) Where the contractor takes exception to VA's accord and satisfaction language.
(b) The contracting officer must submit the following documents for review:
(1) A draft of the proposed modification prepared on SF 30, Amendment of Solicitation/Modification of Contract, specifying the exact language proposed and describing any change in work, time, or cost.
(2) A statement describing the need for the changed work with any back-up documentation, including a copy of the general statement of work in the original contract and any existing contract language that will be modified.
(3) A statement addressing whether the proposed modification is within the original scope of the contract and specifically addressing the facts considered in reaching the conclusion.
(4) A statement analyzing what necessitated the modification (e.g., a design error, technical changes, or medical center requirements).
(5) The contracting officer's technical representative's (COTR) technical evaluation of the proposed change.
(6) A memorandum from the appropriate office indicating that funds are available or a statement concerning the actions that must be taken to secure the required funds.
(7) The names and telephone numbers of the contracting officer and COTR.
(8) Costing information including the following:
(i) The contractor's cost proposal in the format required by the contract.
(ii) The COTR's independent cost evaluation.
(iii) The architect/engineer's independent cost evaluation, if applicable and available.
(iv) The contracting officer's Price Negotiation Memorandum under FAR 15.406-3.
(v) Any other relevant costing information, such as independent market research, that VA used or will use as negotiation criteria.
(c) For a proposed modification to an architect/engineer contract, the contracting officer must submit for review each document specified in paragraph (b) of this section and the following additional documents.
(1) A listing of the fees awarded in the original contract and previous modifications.
(2) For a working drawing contract, a statement regarding the actual or estimated cost of the original construction and any estimated change to the overall project cost as a result of the proposed modification.
(d) For a modification to a construction contract or, where applicable, to an architect/engineer contract, the contracting officer must submit for review a copy of the COTR's mark-up of any drawing that delineates the proposed changed work, including a copy of any pertinent technical specifications. When there is a proposed modification involving numerous changes to drawings and specifications for a VA Central Office project, the drawings and specifications must be available for review in the Office of the Project Director in VA Central Office.
A contracting officer must submit to Acquisition Resources Service (Office of Construction and Facilities Management and National Cemetery Administration contracting officers shall forward the documents to OGC (025)) for review copies of the following documents when a business clearance review is required in accordance with 801.602-76:
(a) The request for contract action, including a justification of need (i.e., the using service purchase request).
(b) The solicitation.
(c) The abstract of the subject bid or offer.
(d) Any applicable Price Negotiation Memorandum.
(e) A statement of the contracting officer's rationale for award.
(f) Any applicable justification and approval under FAR 6.303 and 6.304.
(g) Documents relevant to determining whether the contractor is responsible, including:
(1) Verification that the vendor is not suspended, debarred, or on the Department of Health and Human Services Exclusionary List;
(2) Verification that the vendor has filed any required VETS 100 report (not required if the acquisition is for a commercial item); and
(3) For acquisitions exceeding $10 million, the Equal Employment Opportunity Clearance.
(h) Any applicable approved subcontracting plan.
(i) Documents relevant to price reasonableness (i.e., all documents used to support the contracting officer's determination of price reasonableness).
(a) When the review is complete, the reviewing office will advise the appropriate Central Office activity or contracting officer that the proposal was approved as submitted or provide them with recommended changes. If the Central Office activity is notified, the Central Office activity will forward the information to the contracting officer.
(b) When changes are recommended by technical or legal review staff, if the contracting officer concurs, the contracting officer must take immediate action to amend the document. If the
(c) Acquisition Resources Service and OGC will complete reviews as expeditiously as possible, with due regard for procurement actions that require an unusually short period for completing the procurement.
VAAR 801.690 through 801.690-9 and 801.670 establish the policy and procedures for selecting, appointing, and terminating a contracting officer.
(a) In carrying out the responsibilities of FAR 1.602-2, the contracting officer may designate another Government employee as COTR to perform the functions in this section and 801.603-71.
(1) Except as indicated in 801.603-71, a designation under this section must be in writing, must define the scope and limitation of the representative's authority, and must be addressed to the COTR with a copy forwarded to the contractor.
(2) The COTR may not re-delegate authority received under this paragraph.
(3) The contracting officer may not authorize a representative to make any commitment or change that will affect the price, quantity, quality, or delivery terms of a contract.
(4) A contracting officer acting within his or her warranted contracting authority must authorize any change to a contract.
(b) A contracting officer may authorize his or her technical representative to do the following:
(1) Furnish technical guidance and advice or generally supervise the work performed under the contract.
(2) Take any action authorized in the contract, such as issuing a delivery order, rejecting an unsatisfactory item, ordering a replacement of an unsatisfactory item (materials or services) or declaring a contractor in default on specific delivery orders.
(i) Except for a contract for blood, the contracting officer may delegate this authority only to other Government contracting officers under centralized indefinite delivery type contracts and the contract will so state.
(ii) A centralized contract for blood must state that a contracting officer at an ordering office may designate representatives and alternate representatives to place a delivery order subject to the same restrictions in paragraph (b)(3) of this section.
(3) Place an oral or other informal delivery order for items such as, but not limited to, bread, milk, and blood against a local indefinite delivery type contract for which there is a blanket purchase arrangement and for which funds have been obligated.
(c) In the administration of research and development contracts, any representative appointed under this section must be acceptable to the contracting officer and the head of the organization concerned.
(d) When the contracting officer intends to designate a representative under this section for a particular solicitation or contract, the contracting officer must include the clause in 852.270-1, Representatives of contracting officers, in the solicitation and contract.
(a) Without prior notification to the contractor or vendor, the contracting officer may designate other competent personnel,
(1) Inspect and certify compliance with the quality and quantity requirements of the purchase order or contract.
(2) Inspect supplies and equipment for condition and quantity and accept supplies, equipment, and services, based on quality inspection made by another authorized representative.
(b) The Director, Library Services, VA Central Office, and the Chief, Library Service, at a field facility may act as representatives of the contracting officer to receive, inspect and accept library books, newspapers, and periodicals. Purchase documents will specify that delivery will be made directly to the library.
The authority vested in the Secretary to execute, award, and administer a contract, purchase order, or other agreement for the expenditure of funds to acquire the specific services set forth in 801.670-1 through 801.670-4 is delegated to the SPE. The SPE further delegates this authority to the DSPE and to employees appointed or designated to the positions specified in those sections.
The authority to issue bills of lading previously contained in this section is rescinded. Except for individual small package shipments (e.g., United Parcel Service, Federal Express, or United States Postal Service small package shipments), no VA employee may issue a bill of lading or otherwise procure transportation services for goods unless the employee has been delegated authority to do so as a warranted contracting officer under the VA Contracting Officer Certification Program (ref. 801.690). All transportation services for goods, other than for small package shipments, require a bill of lading. Except for individual small package shipments, individuals with only micro-purchase authority may not issue bills of lading or otherwise procure transportation services. The dollar value of the bill of lading issued or transportation services acquired must not exceed the delegated authority of the contracting officer. Candidates for appointment as transportation contracting officers whose delegated authority will be limited to the acquisition of transportation services for goods only shall comply with the Education, Experience, and Training requirements, if any, in Part 102-117 of title 41 Code of Federal Regulations, the Federal Management Regulation, rather than the requirements in 801.690.
(a) When medical, dental, and ancillary services under $10,000 per authorization are not available from an existing contract or agreement, the following VA officials at VA medical facilities may authorize these services:
(1) The Chief of Staff and the physician assigned the responsibility for the ambulatory care function.
(2) Chief, Medical Administration Service, or the person designated by the facility director to perform medical administration functions.
(b) Forms specified in Part 853 shall be used for ordering services under this paragraph from existing contracts.
(c) The officials named in paragraph (a) of this section may designate one or more of their subordinates to exercise the authority in paragraph (a) of this section.
(d) A designation under this section must be in writing and specifically set forth the scope and limitations of the designee's authority.
The Director of Logistics Management Service, the Centralized Contracting Division, and the Construction Support Division are authorized to procure supplies, equipment and non-personal services (including construction) for National Cemetery Administration (NCA) field facilities and other NCA offices when there is an emergency during which the servicing supply organization cannot be used.
(a) Letters of agreement shall not be used. The authority previously contained in this section is rescinded.
(b) The VA Office of Inspector General may issue contracts for commercial items, including services, using a letter format (see FAR 12.204(a)), provided billing information and required clauses are included in the contract. If the dollar value of the acquisition will exceed the simplified acquisition threshold, this is a deviation from the requirement to use Standard Form 1449 at FAR 12.204(a).
(a) Under section 6(a) of Public Law 95-452 (October 12, 1978), the Inspector General may do the following:
(1) Contract or arrange for audits, studies, analyses, and other services with public agencies and with private persons.
(2) Make payments necessary to carry out the provisions of the Act, to the extent and in amounts provided in advance by appropriations acts.
(b) In exercising the special authority provided in paragraph (a) of this section, the Inspector General may ask the servicing head of the contracting activity for assistance in developing appropriate contract or agreement documents.
(c) The FAR applies to contracts made under paragraph (a) of this section. Such contracts also are subject to provisions of the VAAR that implement and supplement the FAR on matters other than those stemming from or related to delegations of the Secretary's contracting authority. (For example, management controls and approvals specified in Subpart 837.2 will not apply to contract actions under the contract authority of the Inspector General.)
(a) The VA COCP applies to all VA programs except for the appointment of contracting officers under the Inspector
(b) A Certificate of Appointment is not required for a contracting officer designated in 801.670 who exercises special and limited delegations of authority.
(c) Warrant levels are synonymous with the Federal Acquisition Certification in Contracting Program certification levels specified in the OFPP Memorandum dated January 20, 2006, titled “The Federal Acquisition Certification in Contracting Program.” The COCP is based on the following levels and types of authority:
(1)
(2)
(3)
(4)
(5)
(d)
(a)
(1) Administering and overseeing the COCP;
(2) Appointing and terminating Level II warrant and Level III (Senior Limited and Unlimited) warrant contracting officers;
(3) Establishing and developing additional agency-specific training; and
(4) Developing and implementing policy, procedures, and guidance for VA's acquisition program.
(b)
(1) Coordinating requests for contracting authority with the COCB;
(2) Proceeding accordingly with appropriate action to carry out the decisions of the DSPE and the COCB;
(3) Maintaining individual records on the appointment and termination of appointment of contracting officers. Records on contracting officers include HCA certifications and qualification statements, Certificates of Appointment, and other supporting documentation used to grant authority; and
(4) Ensuring appropriate and timely disposition of records through the Office of Acquisition and Materiel Management's Records Control Officer.
(c)
(2) COCB membership consists of:
(i) The Chief, Acquisition Program Management Division; and
(ii) The Chief, Acquisition Training and Career Development Division (ATCD).
(d)
(1) Implementing and maintaining an effective and efficient program for the procurement of personal property and nonpersonal services required by the activity to which the HCA is assigned;
(2) Establishing adequate controls to ensure compliance with applicable laws and regulations;
(3) Appointing or terminating the appointment of contracting officers at the Micro-purchase Level and Level I warrant level within their assigned activity;
(4) Establishing procedures and maintaining records for the appointment and termination of appointment of purchase card holders at the Micro-purchase Level and Level I warrant contracting officers. Records maintained on contracting officers shall include the contracting authority, certification and qualification statements;
(5) Recommending to the DSPE the appointment or termination of appointment of contracting officers at the Level II warrant and Level III (Senior Limited or Unlimited) warrant levels of authority, certifying the candidate's qualifications, and justifying the organizational need;
(6) Ensuring that all GS 1102 contract specialists and other contracting officers meet the minimum core training and continuing education requirements; and
(7) Certifying that the assigned acquisition workforce meets the minimum training, education, and skills currency requirements prescribed by OFPP and the DSPE.
(e)
(a) The HCA may appoint Level I warrant contracting officers or submit written requests to the DSPE for appointment of Level II warrant or Level III (Senior Limited or Unlimited) warrant contracting officers. A VA official one level above the HCA may submit a written request to the DSPE for the appointment of an HCA as a contracting officer.
(b) Appointment can only be requested in those circumstances where it can be demonstrated that a valid organizational need exists. In making this assessment and justification, the HCA will consider the complexity of the work, volume of actions, organizational structure, and human resource management actions and forecasts, such as rates of retirement, reassignment, and retention.
(c) The request shall consist of the following:
(1) Justification for requesting contracting authority to be granted;
(2) Certification that the candidate's experience and training meet the established minimum qualifications for the requested contracting authority;
(3) Certification that the candidate has a satisfactory-or-above performance rating;
(4) Certification that the candidate maintains high standards of conduct and avoids apparent or actual conflicts of interest, and
(5) Certification that the candidate has appropriate working knowledge of the FAR, VAAR, and other applicable laws, regulations, policies and procedures.
(d) The accompanied COQS shall include the following information:
(1) Candidate's name, position title, series, grade, and location;
(2) Candidate's relevant acquisition or business-related experience that reflects the required number of years of progressive work assignments leading to broader technical abilities;
(3) Education background, including number of acquisition or business-related college credits;
(4) List of core training requirements or equivalent courses that have been successfully completed;
(5) List of continuing education requirements successfully completed within the last two years;
(6) List of current and prior warrant authorities, limitations, and information on termination and cause for termination;
(7) List of other acquisition related activities or memberships;
(8) Certification that the statement is accurate and complete to the best of the candidate's knowledge; and
(9) Attached copies of acquisition or business-related training certificates, course certificates, and diplomas, transcripts, or degrees from accredited colleges or universities.
(a) Effective January 1, 2007, no individual, regardless of job series, may be issued a new contracting officer warrant above the micro-purchase threshold unless the individual meets the requirements for Federal Acquisition Certification (Certification) for the applicable Level I, II, or III warrant level as specified in OFPP Policy Letter 05-01 and the OFPP Memorandum dated January 20, 2006, titled “the Federal Acquisition Certification in Contracting Program.” A new contracting officer warrant is defined in OFPP Policy Letter 05-01 as a warrant issued for the first time at a department or agency. For contracting officers warranted before January 1, 2007, certification will not be required to retain their existing warrants, but will be required before higher level warrants can be issued. Certification includes minimum requirements for education, training, and experience. A candidate for a warrant must have at least a satisfactory-or-above performance rating during the most recent performance period.
(b) For contracting officer warrants issued prior to January 1, 2007, the minimum requirements for qualifying as a contracting officer previously specified in VA regulation and other internal VA guidance shall apply.
(c)
(d)
(2) The Chief, ATCD, oversees the ATP.
(3) Training course equivalency will be determined and approved by the Chief, ATCD. Candidates should contact the Chief, ATCD, for an equivalency determination and must furnish any information or evidence necessary to support the request. Appeals of decisions may be made to the VA ACM and the decisions of the ACM shall be final.
(e)
(2) The Chief, ATCD, is responsible for the management of the ACEP, the program that assists contracting officers and contract specialists to meet the training requirements.
(3) An expiring warrant will not be re-issued if the contracting officer has not met the continuing education or training requirement.
(f)
(2) The HCA will make the final determination whether a course is accepted as business-related for the purpose of granting Level I warrant authority. The Chief, ATCD, will make the final determination whether a
(3) American Council on Education (ACE) credits are not considered as college credits until they are converted and included on a transcript from an accredited college or university.
(g)
(2) This Grandfather provision does not cover new VA employees, current VA employees who are not warranted, former VA employees who held contracting authority at their previous Federal Government agencies or VA positions, or VA employees whose warrants have been rescinded or have expired. VA contracting officers who are promoted to GS 13-and-above will no longer be covered by this Grandfather provision and, therefore, must meet the current Experience, Education, and Training requirements for the specific warrant authority that they currently hold or to which they wish to be appointed. Contracting officers requesting a higher level warrant (e.g., from Level I warrant to Level II warrant or from Level III (Senior Limited) warrant to Level III (Senior Unlimited) warrant) must also meet the current Experience, Education, and Training requirement for the specific warrant authority requested.
(3) This Grandfather provision for retaining a contracting officer's current warrant authority is voided if the contracting officer does not fully meet the minimum Skills Currency requirement prior to warrant expiration or when the warrant authority is suspended or revoked. The contracting officer will then need to meet all of the current warrant prerequisites before a new warrant can be issued or before the suspended or revoked warrant can be reinstated.
(h) The training requirements for contracting officers whose delegated authority is limited to the acquisition of transportation services, as provided in Part 102-117 of title 41 Code of Federal Regulations, the Federal Management Regulation, shall be as specified therein.
(a) Only the DSPE (for Level II and Level III (Senior Limited or Unlimited)) warrants and the respective HCA (for Level I warrants) may sign the Certificate of Appointment as Contracting Officer. HCAs are authorized to grant Micro-purchase Level and Level I warrant contracting authority up to the thresholds specified for these authorities at 801.690-2(c). The HCA may recommend a candidate to the DSPE for appointment as a Level II warrant or Level III warrant contracting officer. Only the DSPE may grant Level II warrant, Level III (Senior Limited or Unlimited) warrant, and Multi-VISN authority.
(b) All Certificates of Appointment as Contracting Officers and other written documents must clearly state any limitations or restrictions on the authority.
(c) The Privacy Act of 1974 applies to the information collected during contracting officer selection and appointment.
(a) The DSPE (for all warrant levels) or HCA (for Micro-purchase Level and Level I warrants) may revoke or rescind the appointment of a contracting officer at any time. HCAs may submit a recommendation to revoke or rescind the appointment of a contracting officer's Level II warrant or Level III (Senior Limited or Unlimited) warrant to the DSPE. Revocation may be based on the following circumstances:
(1) There is no longer a need for the appointment;
(2) There has been a personnel action such as a resignation, retirement, transfer;
(3) Unsatisfactory performance;
(4) Alleged official misconduct pending criminal or administrative investigations;
(5) Failure to meet training or skills currency requirements;
(6) A contracting officer taking an action that exceeds his or her authority;
(7) Blatant disregard for adhering to acquisition regulations, policies and procedures; or
(8) Situations similar to those in paragraphs (a)(1) through (7) of this section that may require remedial action.
(b) The HCA should discuss a termination of contracting authority for cause with the servicing Human Resource Management Office to determine the impact, if any, on the contracting officer's continued employment.
(c) All changes in the status (e.g., departure, name, position, or grade change) of a micro-purchase cardholder or Level I warrant holder shall be reported in writing by the individual's supervisor to the HCA within five workdays of occurrence. All changes in the status of a Level II warrant or Level III (Senior Limited or Unlimited) warrant holder shall be reported in writing by the HCA to the DSPE within five workdays of occurrence. Level II warrants or Level III (Senior Limited or Unlimited) warrants that are terminated, rescinded, or superseded should be returned to the Director, Acquisition Resources Service (049A5), citing the exact reason for the termination, rescission, or supersession.
(a) To ensure availability of procurement support, an interim appointment may be granted for a limited period of time when a candidate does not fully meet the minimum qualifications for Experience, Education, or successful completion of all acquisition Training requirements in previous VA regulations or VA internal guidance, if applicable, or as provided in the OFPP Memorandum dated January 20, 2006, titled “the Federal Acquisition Certification in Contracting Program.” All interim appointments made after January 1, 2007, for individuals who do not meet the minimum Experience, Education, or Training requirements for Levels I through III warrants shall be signed by the SPE or, if so delegated, the ACM, without power to redelegate, as provided in the OFPP Memorandum dated January 20, 2006, titled “the Federal Acquisition Certification in Contracting Program.”
(1) In a request for an interim appointment, the HCA must include the information required by 801.690-4 on the candidate's training, experience, performance, and education, and a justification for the interim appointment.
(2) The HCA must ensure that the candidate with interim appointment meets the minimum Experience, Education, and Training requirements within the time specified on the warrant.
(3) A contracting officer with interim appointment should successfully complete all remaining required courses or equivalent courses within the time specified on the warrant.
(b) At the HCA's written request, a permanent warrant may be issued during the interim appointment period when the contracting officer has satisfactorily met the requirements. The appropriate documentation (copies of
(c) An interim appointment may be appropriate for instances such as organizational changes or sudden, extreme, and unexpected increases in workload complexity and/or volume.
(d) Interim appointments will not be granted under the following circumstances:
(1) To a candidate who is warranted but does not meet the Education or Training requirements for higher level (e.g., from Level I warrant to Level II warrant) contracting authority (unless waived by the SPE);
(2) To a candidate who does not have a current record of satisfactory-or-above performance; or
(3) To a contracting officer whose authority has expired and who has not met the continuing education requirement during the two preceding years.
(e) Generally, an interim appointment may not exceed one year.
(a) The DSPE or HCA will issue an original Certificate of Appointment as Contracting Officer to the appointed candidate, who must display the Certificate at his or her duty station.
(b) The HCA shall file a copy of the warrant in the delegation of authority file.
(c) The contracting officer must furnish a copy to the respective fiscal activity.
(d) Each Certificate will be serially numbered, reflecting the facility number, the year of issuance (e.g., facility number—year of issuance (2 digits)—sequential number, 560-04-10), and have an effective and expiration date.
(a) VA's policy is to have a minimum number of HCAs. Generally, there will be one HCA per VISN, other major VA organizational element, or major acquisition organization. The authority vested in the Secretary to select, appoint, and terminate HCAs is delegated to the SPE and is further delegated from the SPE to the DSPE.
(b) Under the FAR at 1.601(a) and 2.101, an HCA is a senior level position. The official who occupies this position should have the education, training, and experience necessary to make the decisions required of an HCA.
(c) Except as provided in the FAR, an HCA may delegate his or her authority to other individuals within the HCA's acquisition activity. Such delegations must be in writing and must set forth the specific limitations on the designee's authority. The delegation may include authority to appoint a contracting officer at the Micro-purchase Level or the Level I warrant levels.
An HCA must be appointed in writing by the DSPE and in accordance with internal VA policy. The written delegation must state any limitation on the HCA's authority, other than a limitation contained in an applicable law or regulation.
(a) The HCA has overall responsibility for managing the procurement program assigned to the activity.
(b) The HCA's level of contracting authority, if any, shall be specified in the HCA's appointment letter.
(c) The HCA has the authority to appoint and terminate contracting officers with authority to conduct procurements of up to and including the simplified acquisition threshold or the maximum order threshold or limitation for orders placed against Federal Supply Schedule contracts, and to terminate such appointments (Micro-purchase Level and Level I warrant appointments).
40 U.S.C. 121(C) and 48 CFR 1.301-1.304.
38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-1.304.
(a) Part 0 of 38 Code of Federal Regulations (CFR) states the standards of conduct for all VA employees, including contracting officials.
(b) Subpart B of 38 CFR part 0 states the employee financial disclosure requirements.
(a) Contracting officers must forward the information required by FAR 3.104-7(a)(1) to the HCA. In consultation with OGC, the HCA may make the determination and concurrence specified in FAR 3.104-7(a)(1).
(b) Upon receipt of information describing a violation or possible violation of subsections 27(a), (b), (c), or (d) of the Office of Federal Procurement Policy Act of 1974 (see FAR 3.104-3), the HCA will take action in accordance with FAR 3.104-7(b). The HCA must also report violations or possible violations to the VA Office of the Inspector General.
(c) The authority to make the determinations specified in FAR 3.104-7(b)(5) and 3.104-7(d)(2)(ii)(B) is delegated to the SPE and is further delegated to the DSPE.
(d) As provided in FAR 3.104-7(f), the HCA may authorize a contracting officer to award a contract after notifying the DSPE of the circumstances warranting such an award.
(a) Any VA employee must report a suspected violation of the Gratuities clause to the contracting officer or a higher level VA official.
(b) The report must identify the contractor and the personnel involved, provide a summary of the pertinent evidence and circumstances that indicate a violation, and include any other available supporting documentation.
(c) The contracting officer or higher level official must supplement the file with appropriate information and promptly forward the report to the DSPE, with copies to the VA Office of the Inspector General and the Assistant Secretary for Management.
In providing the notice and hearing required by FAR 3.204, the SPE may make the determinations required by FAR 3.204. This authority is further delegated to the DSPE. The DSPE shall use the following procedures to determine whether or not a violation of the Gratuities clause has occurred:
(a) Upon receipt of an allegation or evidence of a violation of the Gratuities clause, the DSPE shall refer the matter to the D&S Committee to conduct a fact-finding. Upon completion of the fact-finding, the D&S Committee shall present the facts and recommendations for further action to the DSPE.
(b) If the DSPE finds a basis for further action, the D&S Committee shall prepare a notice under FAR 3.204 for signature of the DSPE. If suspension or debarment is also being considered, the D&S Committee shall also follow the procedures contained in 809.4. The signed notice will be sent to the last known address of the contractor, the contractor's counsel, or agent for service of process, by certified mail, return receipt requested, or any other method that provides signed evidence of receipt. In the case of a business, the D&S Committee may send the notice to any partner, principal, officer, director, owner or co-owner, or joint venture.
(c) If VA does not receive a reply from the contractor within 45 calendar days of sending the notice, the D&S Committee will prepare a recommendation and refer the case to the DSPE for a decision on whether or not to take further action under FAR 3.204.
(d) If VA receives a reply from the contractor within 45 calendar days of sending the notice, the D&S Committee must consider the information in the reply before the D&S Committee makes its recommendation to the DSPE.
(e) The D&S Committee, upon the request of the contractor, must, as soon as practicable, allow the contractor an opportunity to appear before the D&S Committee, in person or through a representative, to present information or argument. The contractor may supplement the oral presentation with written information and argument. The proceeding will be conducted in an informal manner and without requirement for a transcript. The D&S Committee shall prepare a report of the presentation for submission to the DSPE and must consider the information presented when making its recommendation to the DSPE.
(f) If the D&S Committee finds that the contractor's submission in opposition to further action under FAR 3.204 raises a genuine dispute over facts material to the action, then the D&S Committee shall submit to the DSPE the information establishing the dispute of material facts. If the DSPE agrees that there is a genuine dispute of material facts, the DSPE shall refer the dispute to a designee for resolution under 809.470. The DSPE may reject the findings of the fact-finding official only if the findings are clearly erroneous or arbitrary and capricious.
(g) If there are no disputes over material facts or if all disputes over material facts have been resolved under 809.470, the DSPE will make a decision on the basis of all information available, including findings of facts and oral or written arguments presented or submitted to the D & S Committee by the contractor. The DSPE should consider any mitigating factors, such as those listed at FAR 9.406-1 and 809.406-1, prior to making a final decision.
(a) Any VA employee who suspects or has evidence of possible antitrust violations must report the suspected violations, in accordance with FAR 3.303, to the VA Office of the Inspector General and to the Assistant Secretary for Management for review and submission to OGC.
(b) Either the General Counsel or the Inspector General will determine whether to submit the case to the U.S. Attorney General.
(a) A VA employee who suspects or has evidence of an attempted or actual exercise of improper influence, misrepresentation of a contingent fee arrangement, or any other violation of the Covenant Against Contingent Fees must report the matter to the contracting officer or to the VA Office of Inspector General.
(b) In addition to the requirement in paragraph (a) of this section, a contracting officer must report a suspected or actual misrepresentation or violation to the DSPE.
(c) Before taking any administrative action under FAR 3.405, a contracting officer must consult with his or her Regional Counsel. A contracting officer in the Central Office must consult with OGC.
(d) Contracting officers shall route any referrals of suspected fraudulent or criminal matters to the Department of Justice under FAR 3.405(b)(4) through OGC or the VA Office of the Inspector General, with a copy to the Assistant Secretary for Management. The General Counsel or the Inspector General will determine whether to forward the referral to the Department of Justice.
A VA employee who suspects a violation of the Anti-kickback Act must report the suspected violation to OGC for review.
It is VA policy that contractors will not advertise the award of contracts or refer to VA contracts in contractors' commercial advertising in such a manner as to state or imply that VA endorses a product, project, or commercial line of endeavor. The intent of this policy is to preclude the appearance of bias toward any product or service.
The contracting officer shall insert the clause at 852.203-70, Commercial advertising, in solicitations and contracts expected to equal or exceed the micro-purchase threshold.
The authority to authorize an exception to the policy in FAR 3.601 is delegated to the SPE and is further delegated to the DSPE.
The authority to make determinations under FAR Subpart 3.7, Voiding and Rescinding Contracts, is delegated to the SPE and is further delegated to the DSPE.
In making a determination to void or rescind a contract, the DSPE must follow the procedures of FAR 3.705 and the following:
(a) Upon receipt of an allegation or evidence of situations meeting the provisions of FAR 3.700, the DSPE shall refer the matter to the D&S Committee to conduct a finding of facts. Upon completion of the fact-finding, the D&S Committee shall present the facts and recommendations for further action to the DSPE.
(b) If the DSPE finds a basis for further action, the D&S Committee shall prepare a notice under FAR 3.705 for signature of the DSPE. If suspension or debarment is being considered, the D&S Committee shall also follow the procedures of 809.4. The signed notice will be sent to the last known address of the contractor, the contractor's counsel, or registered agent, by certified mail, return receipt requested. In the case of a business, the D&S Committee may send the notice to any partner, principal, officer, director, owner or co-owner, or joint venture.
(c) If VA does not receive a reply from the contractor within 30 calendar days of receipt of the notice by the addressee, the D&S Committee will prepare a recommendation and refer the case to the DSPE for a decision on whether or not to take further action under FAR 3.705.
(d) If VA receives a reply from the contractor within 30 calendar days of receipt of the notice, the D&S Committee must consider the information in the reply before the D&S Committee makes its recommendation to the DSPE.
(e) The D&S Committee, upon the request of the contractor, must, as soon as practicable, allow the contractor an opportunity to appear before the D&S Committee, in person or through a representative, to present information or argument. The contractor may supplement the oral presentation with written information and argument. The proceeding will be conducted in an informal manner and without requirement for a transcript. The D&S Committee shall prepare a report of the presentation for submission to the DSPE.
(f) If the D&S Committee finds that the contractor's submission in opposition to further action under FAR 3.705 raises a genuine dispute over facts material to the action, then the D&S Committee shall submit to the DSPE the information establishing the dispute of material facts. If the DSPE agrees that there is a genuine dispute of material facts, the DSPE shall refer the dispute to a designee for resolution under 809.470. The DSPE may reject the findings of the fact-finding official only if the findings are clearly erroneous or arbitrary and capricious.
(g) If there are no disputes over material facts or if all disputes over material facts have been resolved under 809.470, the DSPE will make a decision on the basis of all information available, including findings of facts and oral or written arguments presented or submitted to the D&S Committee by the contractor.
A contracting officer must forward a copy of all contractor disclosures furnished under the clause at FAR 52.203-12, Limitations on Payments to Influence Certain Federal Transactions, to the Director, Acquisition Resources Service, for subsequent submission by the Secretary to Congress.
A VA employee must report suspected violations of 31 U.S.C. 1352, Limitation on Use of Appropriated Funds to Influence Certain Federal Contracting and Financial Transactions, to the Assistant Secretary for Management and the VA Office of the Inspector General.
(a) Under the circumstances described in paragraph (b) of this section, a contractor must display prominently a VA Hotline poster prepared by the VA Office of Inspector General in a common
(b) A contractor must comply with paragraph (a) of this section when all of the following apply:
(1) The contractor is awarded a VA contract for $500,000 or more for supplies or services, or $3 million or more for construction.
(2) The contractor has not established an internal reporting mechanism and program, such as a hotline, by which employees may report suspected instances of improper conduct, and instructions that encourage employees to make such reports.
The contracting officer shall insert the clause at 852.203-71, Display of Department of Veterans Affairs Hotline poster, in solicitations and contracts expected to equal or exceed the dollar thresholds established in 803.7000.
40 U.S.C. 121(c) and 48 CFR 1.301-1.304.
(a) If a contracting officer's name and title has been typed, stamped, or printed on the contract, and that contracting officer is not available to sign the contract, another contracting officer, as specified in 801.602, may sign the contract.
(b) The contracting officer who signs the contract must have contracting authority to cover the contract to be signed and must annotate his or her name and title below his or her signature.
40 U.S.C. 121(c) and 48 CFR 1.301-1.304.
In accordance with FAR 5.202, the contract actions in 806.302-5 do not require synopsizing.
(a) A contracting officer may procure paid advertising in a daily newspaper circulated in the local area to publicize a proposed procurement of architectural and engineering (A/E) services not expected to exceed $10,000. See FAR 5.101(b)(4)(i) and 5.502(a).
(b) A contracting officer may procure paid advertising in a daily newspaper circulated in the local area or in professional journals to publicize a proposed procurement of professional services (e.g., scarce medical specialist services, health-care resources, advisory and assistance services). See FAR 5.101(b)(4)(i) and 5.502(a).
(a) When an A/E evaluation board is ready to advertise for A/E services, the board must establish the geographic area within which it will consider A/E firms (including joint ventures).
(b) The geographic area must be large enough to assure selection of three to five firms highly qualified for the particular project involved, but not so large as to make the evaluation process unduly burdensome.
38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-1.304.
(a) Full and open competition need not be provided for when awarding:
(1) Scarce Medical Specialist contracts negotiated under the authority of 38 U.S.C. 7409, but only when such contracts are with institutions affiliated with VA under 38 U.S.C. 7302. (38 U.S.C. 7409)
(2) Contracts for health-care resources negotiated under the authority of 38 U.S.C. 8153, but only when such contracts are with institutions affiliated with VA under 38 U.S.C. 7302, including medical practice groups and other approved entities associated with affiliated institutions (entities will be approved if determined legally to be associated with affiliated institutions), or with blood banks, organ banks, or research centers. The justification and approval requirements of FAR 6.303 and 806.304 do not apply to such contracts or agreements. (38 U.S.C. 8153)
(3) Contracts for health-care resources, negotiated under the authority of 38 U.S.C. 8153, that are not acquired under the authority of paragraph (a)(2) of this section, but only when the procurement is conducted in accordance with part 873. The justification and approval requirements of FAR 6.303 and 806.304 shall apply to such contracts and agreements conducted on a sole-source basis. (38 U.S.C. 8153)
(b) Various sections of title 38 U.S.C. authorize the Secretary to enter into certain contracts and certain types of contracts without regard to any other provisions of law. When the contracting officer enters into a contract without providing full and open competition for any of the following items or services, the contracting officer must cite 41 U.S.C. 253(c)(5) and the following authorities:
(1) For contracts for orthopedic and prosthetic appliances and related services including research, cite 38 U.S.C. 8123. (38 U.S.C. 8123)
(2) For contracts to purchase or sell merchandise, equipment, fixtures, supplies and services for the operation of the Veterans Canteen Service, cite 38 U.S.C. 7802. (38 U.S.C. 7802)
(3) For contracts or leases for the operation of parking facilities established under authority of 38 U.S.C. 8109(b), provided that the establishment, operation, and maintenance of such facilities have been authorized by the Secretary or designee, cite 38 U.S.C. 8109(f). (38 U.S.C. 8109)
(4) For contracts for laundry and other common services, such as the purchase of steam, negotiated with non-profit, tax-exempt, educational, medical, or community institutions, when specifically approved by the Secretary or designee and when such services are not reasonably available from private commercial sources, cite 38 U.S.C. 8122(c). (38 U.S.C. 8122)
(5) For contracts or agreements with public or private agencies for services of
(c) Except for an acquisition under paragraph (a)(2) of this section, the contracting officer must provide a justification under FAR 6.303 and obtain an approval under 806.304 for each acquisition described in this section.
(a) When the contracting officer uses 41 U.S.C. 253(c)(7) to support a contract award using other than full and open competition, the contracting officer must prepare a Determination and Finding (D&F) under FAR 1.7 and a justification under FAR 6.303. The D&F must be signed by the Secretary.
(b) The contracting officer must submit the D&F and justification through the HCA to the Agency Competition Advocate for signature by the Secretary. The submission must include the date the contracting officer expects to award the contract.
(c) VA must notify Congress 30 days before the expected award date. The Agency Competition Advocate is responsible for preparing this notice. The contracting officer may not award the contract until notified by the Agency Competition Advocate.
(a) For a justification other than a class justification specified in FAR 6.304(c), Table 806.304-1 provides the authorities who may approve a justification:
(b) For class justifications specified in FAR 6.304(c), the contracting officer must obtain the approval of the Agency Competition Advocate for all proposed justifications with an estimated value of up to $50 million. The contracting officer must obtain the approval of the SPE for all proposed justifications with an estimated value of more than $50 million.
(a) The Associate Deputy Assistant Secretary for Acquisitions is the Agency Competition Advocate. The Agency Competition Advocate may further delegate authority to other VA officials in VA Administrations and staff offices.
(b) The Executive Director and Chief Operating Officer, National Acquisition Center, is the Contracting Activity Competition Advocate for the Center.
(c) Each HCA (see Subpart 802.1) will serve as the Contracting Activity Competition Advocate in all other cases.
(d) The authority in paragraphs (b) and (c) of this section is not delegable.
(a) Each Contracting Activity Competition Advocate must do the following:
(1) Develop a Competition Plan.
(2) Incorporate the Plan in the internal operating procedures of the facility or organization in which the contracting activity is located.
(3) Obtain the endorsement and support of the facility or staff office director.
(4) Ensure that the services and offices that the contracting activity supports understand the plan.
(b) At a minimum, the Competition Plan must include the following:
(1) Approval requirements for other than full and open competition specified in FAR 6.304.
(2) A description of the synopsis requirements in FAR Subpart 5.2 to ensure that responsible staff fully understand the advance procurement planning that is required.
(3) A description of how to integrate the Competition Plan into advance procurement planning.
(4) A listing of obstacles to competition and a proposal for overcoming them.
(5) A method for increasing cost competition for contracts and competition on other significant factors.
40 U.S.C. 121(c) and 48 CFR 1.301-1.304.
The authority to prescribe procedures in FAR 7.103 is delegated to the SPE and is further delegated to the DSPE.
This subpart prescribes the use of VAAR clause at 852.207-70, Report of employment under commercial activities, when contracting for commercial services under Office of Management and Budget (OMB) Circular A-76 or VA's cost comparison process. The cost comparison process is used by VA to determine whether to use commercial or Government resources to provide commercial services.
(a) In addition to the Right of First Refusal of Employment clause specified in FAR 52.207-3, the contracting officer must include the clause “Report of Employment Under Commercial Activities” at 852.207-70 in all cost comparison solicitations where VA personnel may be displaced. This clause is primarily intended to verify that the contractor is meeting its obligation to provide Federal workers who are adversely affected by the contract award and who are qualified for the jobs the first opportunity for employment openings created by the contract.
(b) The Report of Employment Under Commercial Activities clause is also
40 U.S.C. 121(c) and (d); and 48 CFR 1.301-1.304.
(a)
(2) A national committed use contract awarded by the VA National Acquisition Center has a priority between wholesale supply sources (FAR 8.002(a)(1)(v)) and mandatory Federal Supply Schedules (FAR 8.002(a)(1)(vi)).
(3) Federal Supply Schedule contracts awarded by the VA National Acquisition Center in Federal Supply Classification (FSC) Groups 65 and 66 shall be mandatory for use by VA and shall have the same order of priority as mandatory Federal Supply Schedules (FAR 8.002(a)(1)(vi)). VA contracting officers must place orders against Federal Supply Schedules contracts awarded by the VA National Acquisition Center in FSC Groups 65 and 66 in the following descending order of priority:
(i) Nationally awarded Blanket Purchase Agreements (BPAs), issued by the VA National Acquisition Center against Federal Supply Schedules.
(ii) Multi-VISN, single-VISN, or locally awarded BPAs, issued by VISN, regional, or local VA contracting officers against Federal Supply Schedules.
(iii) Federal Supply Schedules without BPAs.
(4) Indefinite delivery indefinite quantity (IDIQ) contracts, awarded by VISN, regional, or local facility VA contracting officers, for supplies not covered by national committed use contracts or Federal Supply Schedule contracts shall have an order of priority between optional use Federal Supply Schedules (FAR 8.002(1)(a)(vii)) and commercial sources (including educational and nonprofit institutions) (FAR 8.002(1)(a)(viii)). VA contracting officers must place delivery orders against IDIQ contracts, awarded by VISN, regional, or a local facility contracting officers, for supplies not covered by national committed use contracts or Federal Supply Schedule contracts in the following descending order of priority:
(i) VISN or regionally awarded contracts.
(ii) Locally awarded contracts.
(5) Open market purchases (purchases not falling within any of the higher priorities in paragraphs (a)(2) through (4) of this section) have the same priority as commercial sources (including educational and nonprofit institutions) (FAR 8.002(1)(a)(viii)).
(b)
(c)
(2) The contracting officer must cite Federal Prison Industries, Inc., clearance No. 1206 in the purchase document for any purchase from a commercial source of dress shoes similar to Federal Prison Industries, Inc., Style No. 86-A.
The Executive Director and Chief Operating Officer, VA National Acquisition Center, advertises, negotiates, awards, administers, and issues the Federal Supply Schedules for Federal Supply Classification Groups 62, 65, and 89 and for cost-per-test services under Group 66.
The Director, Publications Staff, Office of Acquisition and Materiel Management, VA Central Office, is the Central Printing Authority for VA (see FAR 8.802(b)).
40 U.S.C. 121(c) and 48 CFR 1.301-1.304.
(a) For a pre-award survey prescribed by 809.106-1, a contracting officer must develop special standards of sanitation applicable to the acquisition of subsistence and services prescribed by 809.106-1(a).
(b) An appropriate specialist will assist the contracting officer in
(a) Except as provided in paragraphs (b) through (e) of this section, a committee under the direction of the contracting officer and composed of representatives of the medical service or using service chiefs or designees appointed by the facility or VISN director will conduct a pre-award on-site evaluation of the plant, personnel, equipment and processes of the prospective contractor for contracts covering the products and services of the following:
(1) Bakeries.
(2) Dairies.
(3) Ice cream plants.
(4) Laundry and dry cleaning activities.
(b) Before any inspection, the contracting officer will determine whether another VA facility or another Federal agency has recently inspected and approved the plant.
(1) The contracting officer will accept an approved inspection report of another VA facility.
(2) If another Federal agency made a plant inspection not more than 6 months before the proposed VA contract period, the contracting officer may accept an approved inspection report of that other Federal agency as satisfactory evidence that the facilities of the bidder meet the bid requirements.
(c) VA will not conduct a pre-award on-site evaluation of a dairy plant when VA receives an acceptable bid from a supplier of dairy products designated as No.1 in the Federal Specifications if the following conditions are met:
(1) The supplier has received a pasteurized milk rating of 90 percent or more for the type of product being supplied, on the basis of the U.S. Public Health Service milk ordinance and code.
(2) The rating is current (not over 2 years old) and has been determined by a certified State milk sanitation rating officer in the State of origin or by the Public Health Service. The contractor must maintain the rating of 90 percent or more during the period of the contract.
(3) The solicitation specifications must include the requirements in paragraphs (c)(1) and (2) of this section.
(d) A dairy plant that does not meet paragraph (c) of this section may offer only dairy products designated as No. 2 in the Federal Specifications. VA will make an award to such a firm only after it completes a pre-award on-site evaluation conducted under paragraph (a) of this section.
(e) Before it makes an open market purchase of fresh bakery products (such as pies, cakes, and cookies), VA will inspect and evaluate the plant where these products are produced or prepared under paragraph (a) of this section. VA will make an on-site evaluation at least annually and record the results on VA Form 10-2079, Inspection Report of Bakery.
For the purposes of this subpart:
The HCA may sign a justification required by FAR 9.202(a)(1).
(a) Under FAR Subpart 9.2, VA may create VA QPLs for use on individual solicitations or on multiple solicitations issued by one or more VA facilities.
(b) An HCA or designee must support the creation of a VA QPL using one or more of the following justifications:
(1) The time required for testing the product after award would unduly delay product delivery.
(2) The cost of repetitive product testing would be excessive.
(3) Testing the product would require purchasing an expensive or complicated apparatus not commonly available.
(4) It is in the Government's interest to be assured before contract award that the product is satisfactory for its intended use.
(5) Determining acceptability would require providing product performance data to supplement technical requirements in the specification.
(6) Conducting a test would result in substantial or repetitive rejections.
(7) VA cannot economically develop clear, professional specifications for the product performance, balance, design, or construction, and professional judgment is required to determine whether the product is acceptable under VA requirements.
(c) If VA plans to establish a VA QPL for any given product, the contracting officer may limit known suppliers to suppliers whose products are covered by a Federal Supply Schedule contract, as provided at FAR Subpart 8.4.
(d) VA will pay the costs to inspect and test a product sample submitted under this section.
(1) The product supplier must pay for the sample and its transportation to the place of inspecting and testing.
(2) After inspection and testing, VA will return any product sample to the supplier “as is” unless:
(i) The inspection or test destroys the sample; or
(ii) The supplier authorizes VA to retain or dispose of the sample.
(e) Once VA accepts a product for the VA QPL, VA may review the product for compliance with the applicable specification at any time.
(1) Where there is a variance between a VA specification that was the basis for the VA QPL and the product furnished by the supplier, the supplier must furnish an item that conforms to the VA specification.
(2) If the supplier fails to or is unable to provide a product that conforms to the applicable VA specification, the product will be removed from the VA QPL.
(f) VA's acceptance of a product for listing on the VA QPL does not:
(1) Guarantee that VA will accept the product in any future purchase; or
(2) Constitute a waiver of the specifications as to acceptance, inspection, testing, or other provisions of any future contract involving the product.
The HCA may determine that an emergency exists, as provided in FAR 9.206-1(b).
(a) Each VISN Nutrition and Food Service representative is authorized to establish a common VISN QPL for convenience and labor-saving foods for use at medical facilities within the representative's VISN.
(1) The VISN Nutrition and Food Service representative must notify the Director, Nutrition and Food Service, VA Central Office, of the establishment or amendment of any VISN QPL.
(2) To avoid unnecessary duplication within a VISN, for medical facilities using an applicable VISN QPL under paragraph (b) of this section, the VISN Nutrition and Food Service representative must coordinate and
(b) Each medical facility may:
(1) Use its VISN QPL; and
(2) Test food of its choice, provided that the facility submits test results to the VISN Nutrition and Food Service representative.
(c) The VISN representative must provide a copy of each approved VISN QPL to the following:
(1) Each contracting office in the VISN.
(2) The Director, Nutrition and Food Service, VA Central Office.
(3) Upon request, the Office of Acquisition and Materiel Management, VA Central Office.
This subpart supplements provisions of the FAR concerning procedures and related actions for the debarment and suspension of contractors.
(a) When VA receives information that another agency is pursuing a debarment or suspension identical to a VA action against the same contractor, the Debarment and Suspension (D&S) Committee will coordinate prospective action with the appropriate official of the other agency to establish a lead agency.
(b) The D&S Committee will provide the designated lead agency with any information relevant to the action for consideration in the decision-making process.
(c) The D&S Committee will maintain close coordination with the appropriate official through completion of a final debarment or suspension decision.
Acquisition Resources Service, Office of Acquisition and Materiel Management, is responsible for the actions described in FAR 9.404(c).
The authority under FAR 9.405(a), 9.405(d)(2), and 9.405(d)(3) to determine whether to solicit from, evaluate bids or proposals from, or award contracts to contractors whose names appear on the Excluded Parties List System is delegated to the SPE and is further delegated to the DSPE.
Authority to make the determinations under FAR 9.405-1 is delegated to the SPE and is further delegated to the DSPE.
When a subcontract is subject to Government consent, authority to make the written determination required under FAR 9.405-2 consenting to a contractor's use of a subcontractor who is debarred, suspended, or proposed for debarment is delegated to the SPE and is further delegated to the DSPE.
(a) As provided in FAR 9.406-1(c), authority to determine whether to continue business dealings between VA and a contractor debarred or proposed for debarment is delegated to the SPE and is further delegated to the DSPE.
(b) For the purposes of FAR 9.406-1, the DSPE is the debarring official under the Federal Management Regulation at 41 CFR 102-117.295.
(c) Additional factors that a debarring official should consider before arriving at a debarment decision include the following:
(1) Whether the contractor had a mechanism, such as a hotline, by which employees could have reported suspected instances of improper conduct, and instructions in place that encouraged employees to make such reports.
(2) Whether the contractor conducted periodic reviews of company business practices, procedures, policies, and internal controls for compliance with standards of conduct and the special requirements of Government contracting.
(3) Whether the contractor conducted internal and external audits as appropriate.
(4) Whether the contractor timely reported to appropriate Government officials any suspected or possible violations of law in connection with Government contracts or any other irregularities in connection with such contracts.
(a) Any individual may submit a recommendation to debar a contractor to the DSPE. The recommendation to debar must be supported with evidence of a cause for debarment listed in FAR 9.406-2. When the DSPE receives a recommendation for debarment, he or she will refer the matter to the D&S Committee. If the reporting individual is a VA employee and the recommendation to debar is based on possible criminal or fraudulent activities, the VA employee must report the circumstances to the VA Office of Inspector General before making a recommendation to the DSPE.
(b) When the D&S Committee finds evidence of a cause for debarment, as listed in FAR 9.406-2, with or without a recommendation, it will conduct a fact-finding and present facts to the debarring official.
(c) If the debarring official finds a basis for proposing a contractor for debarment, the D&S Committee will prepare a notice of proposed debarment under FAR 9.406-3(c) for the signature of the debarring official. The signed notice of proposed debarment will be sent to the last known address of the contractor, the contractor's counsel, or agent for service of process, by certified mail, return receipt requested. In the case of a business, the D&S Committee may send the notice of proposed debarment to any partner, principal, officer, director, owner or co-owner, or joint venture. The D&S Committee concurrently must post notice of proposed debarment to the General Services Administration Excluded Parties List System pending a debarment decision.
(d) If VA does not receive a reply from the contractor within 45 calendar days of sending the notice of proposed debarment, the D&S Committee will prepare a recommendation and refer the case to the debarring official for a decision on whether or not to debar based on the information available.
(e) If VA receives a reply from the contractor within 45 calendar days of sending the notice of proposed debarment, the D&S Committee must consider the information in the reply before the D&S Committee makes its recommendation to the debarring official.
(f) The D&S Committee, upon the request of the contractor proposed for debarment, must, as soon as practicable, allow the contractor an opportunity to appear before the D&S Committee to present information or argument in person or through a representative. The contractor may supplement the oral presentation with written information and argument. The proceeding will be conducted in an informal manner and without requirement for a transcript. The D&S Committee shall prepare a report of the proceeding for the debarring official.
(g) If the D&S Committee finds that the contractor's submission in opposition to the debarment raises a genuine dispute over facts material to the proposed debarment and the debarment action is not based on a conviction or civil judgment, then the D&S Committee shall submit to the debarring official the information establishing the dispute of material facts. If the debarring official agrees that
(h) If there are no disputes over material facts, the debarment action is based on a conviction or civil judgment, or all disputes over material facts have been resolved pursuant to 809.470, the debarring official will make a decision on the basis of all information available, including findings of facts and oral or written arguments presented or submitted to the D&S Committee by the contractor. The D&S Committee must update the status of the action on the General Services Administration Excluded Parties List System.
(a) Except in an unusual circumstance, the period of debarment will not exceed 3 years. The debarring official will base the period of debarment on the circumstances surrounding the cause for debarment.
(b) The DSPE may remove a debarment, amend its scope, or reduce the period of debarment based on a D&S Committee recommendation if:
(1) VA has debarred the contractor;
(2) The action is indicated after the DSPE reviews documentary evidence submitted by or on behalf of the contractor setting forth the appropriate grounds for granting relief. Appropriate grounds include newly discovered material evidence, reversal of a conviction, bona fide change of ownership or management, elimination of the cause for which debarment was imposed, or any other appropriate grounds.
(a) As provided in FAR 9.407-1(d), authority to determine whether to continue business dealings between VA and a suspended contractor is delegated to the SPE and is further delegated to the DSPE.
(b) For the purposes of FAR 9.407-1, the DSPE is the suspending official under the Federal Management Regulation at 41 CFR 102-117.295.
(a) Any individual may submit a recommendation to suspend a contractor to the DSPE. The recommendation to suspend must be supported with evidence of a cause for suspension listed in FAR 9.407-2. When the DSPE receives a recommendation for suspension, he or she will refer the matter to the D&S Committee. If the reporting individual is a VA employee and the recommendation to suspend is based on possible criminal or fraudulent activities, the VA employee must report the circumstances to the VA Office of Inspector General before making a recommendation to the DSPE.
(b) When the D&S Committee finds evidence of a cause for suspension, as listed in FAR 9.407-2, with or without a recommendation, it will conduct a fact-finding and present facts and recommendations to the suspending official.
(c) If the suspending official finds a basis for suspending a contractor, the D&S Committee will prepare a notice of suspension under FAR 9.407-3(c) for the signature of the suspending official. The signed notice of suspension will be sent to the last known address of the contractor, the contractor's counsel, or agent for service of process, by certified mail, return receipt requested. In the case of a business, the D&S Committee may send the notice of suspension to any partner, principal, officer, director, owner or co-owner, or joint venture. The D&S Committee concurrently must post notice of suspension to the General Services Administration Excluded Parties List System pending completion of investigation and any ensuing legal proceedings.
(d) If VA receives a reply from the contractor within 45 calendar days of sending the notice of suspension, the D&S Committee must consider the information in the reply before the Committee makes further recommendations to the suspending official. The D&S Committee, upon the request of a suspended contractor, must, as soon as practicable, allow the contractor an opportunity to appear before the D&S Committee to present information or argument in person or through a representative. The contractor may supplement the oral presentation with written information and argument. The proceeding will be conducted in an informal manner and without requirement for a transcript. The D&S Committee shall prepare a report of the proceeding for the suspending official.
(e) In actions not based on an indictment, if the D&S Committee finds that the contractor's submission in opposition to the suspension raises a genuine dispute over facts material to the suspension, the D&S Committee shall submit to the suspending official the information establishing the dispute of material facts. However, the D&S Committee must first coordinate any further proceeding regarding the facts in dispute with the Department of Justice or with a State prosecuting authority in a case involving a State jurisdiction. VA will take no further action to determine disputed material facts pursuant to this section or 809.470 if the Department of Justice or a State prosecuting authority advises VA that additional proceedings to make such a determination would prejudice Federal or State legal proceedings.
(f) If the suspending official agrees that there is a genuine dispute of material facts, the suspending official shall refer the dispute to the designee for resolution pursuant to 809.470.
The provisions of this section constitute the procedures to be used to resolve genuine disputes of fact pursuant to 809.406-3 and 809.407-3 of this chapter. The DSPE shall appoint a designee to conduct the fact-finding. OGC shall represent VA at any fact-finding hearing and may present witnesses for VA and question any witnesses presented by the contractor. The hearings shall be conducted in Washington, DC. The proceedings before the fact-finder will be limited to a finding of the facts in dispute, as determined by the debarring or suspending official. The fact-finder will establish the date for the fact-finding hearing, normally to be held within 45 working days of the submission of the dispute.
(a) The Government's representative and the contractor will have an opportunity to present evidence relevant to the facts at issue. The contractor may appear in person or through a representative at the fact-finding hearing. The contractor may submit documentary evidence, present witnesses, and confront any person the agency presents.
(b) Witnesses may testify in person. Witnesses will be reminded of the official nature of the proceedings and that any false testimony given is subject to criminal prosecution. Witnesses are subject to cross-examination. Hearsay evidence may be presented and will be given appropriate weight by the fact-finder.
(c) The proceedings shall be transcribed and a copy of the transcript shall be made available at cost to the contractor upon request, unless the contractor and the fact-finder, by mutual agreement, waive the requirement for a transcript.
(d) The fact-finder shall determine the disputed fact(s) by a preponderance of the evidence. As required by FAR 9.406-3(d)(2)(i) and 9.407-3(d)(2)(i), written findings of fact shall be prepared by the fact-finder. A copy of the findings of fact shall be provided to the debarring or suspending official, the
The HCA is delegated authority to waive any general rule or procedure of FAR Subpart 9.5. As provided at FAR 9.503, this authority may not be redelegated.
(a) A contracting officer must determine whether awarding a contract will result in an actual or potential conflict of interest for the contractor.
(1) The contracting officer will make a conflict of interest determination after reviewing information submitted by offerors, evaluating information gathered under FAR 9.506, and exercising his or her own judgment.
(2) In evaluating possible organizational conflicts of interest, the contracting officer may obtain the advice of legal counsel and the assistance of technical specialists.
(b) If the contracting officer determines that there is no way to avoid or mitigate an organizational conflict of interest arising from a contract award, the contracting officer may disqualify the offeror from award under FAR 9.504(e).
(c) Even if awarding a contract will result in an organizational conflict of interest, the contracting officer may request a waiver from his or her HCA if awarding the contract is in the best interests of the Government.
(1) Before granting a waiver request under this paragraph, the HCA must obtain the concurrence of OGC.
(2) If the HCA grants a waiver request, the contracting officer may set contract terms and conditions to reduce any organizational conflict of interest to the greatest extent possible.
(d) In any solicitation for the services addressed at FAR 9.502, the contracting officer must require that each offeror submits a statement with its offer disclosing all facts relevant to an existing or potential organizational conflict of interest involving the contractor or any subcontractor during the life of the contract (see 809.507-1(b) and 852.209-70).
(a) While conflicts of interest may not presently exist, award of certain types of contracts may create potential future organizational conflicts of interest (see FAR 9.508 for examples). If a solicitation may create a potential future organizational conflict of interest, the contracting officer shall insert a provision in the solicitation imposing an appropriate restraint on the contractor's eligibility for award of contracts in the future. Under FAR 9.507-1, the restraint must be appropriate to the nature of the conflict and may exclude the contractor from award of one or more contracts in the future.
(b) The clause at 852.209-70, Organizational conflicts of interest, must be included in any solicitation for the services addressed in FAR 9.502.
40 U.S.C. 121(c) and 48 CFR 1.301-1.304.
For the purposes of this part:
Where items are required to conform to technical industry standards, such as those adopted by: Underwriters Laboratories, Inc.; Factory Mutual Laboratories; American Gas Association; American Society of Mechanical Engineers; National Electrical Manufacturers Association; American Society of Heating, Refrigerating and Air-Conditioning Engineers; or similar organizations, where such standards are generally recognized and accepted in the industry involved, the invitation for bids, request for proposals or request for quotations will so state. In no instance, where there is a multiple choice of laboratories, shall the invitation for bid, request for proposal, or request for quotation indicate that the label or certificate of only one such laboratory is acceptable. The contracting officer shall include the provision at 852.211-72, Technical industry standards, in solicitations requiring conformance to technical industry standards unless comparable provisions are contained in the item specification.
(a) The specification writer may use purchase descriptions that contain references to one or more brand name products only in accordance with 811.104-71 through 811.104-75.
(b) Purchase descriptions that contain references to one or more brand name products must be followed by the words “or equal,” except when the acquisition of a specific brand name is fully justified under FAR Subpart 6.3 and 806.3. If more than one brand name is acceptable, the contracting officer should list the known acceptable brand name products in the solicitation.
(c) Where a “brand name or equal” purchase description is used, the contracting officer must give bidders an opportunity to offer products other than those specifically referenced by brand
(d) When using a “brand name or equal” purchase description, the specification writer must set forth those salient physical, functional, or other characteristics of the referenced products that are essential to the minimum needs of the Government. For example, when interchangeability of parts is required, the specification writer must specify this requirement. The purchase description must contain the following information to the extent available:
(1) Complete common generic identification of the item required.
(2) Applicable model, make, or catalog number for each brand name product referenced and identity of the commercial catalog in which it appears.
(3) Name of manufacturer, producer, or distributor of each brand name product referenced (and address if not well known).
(4) Any other information necessary to describe the item required.
(e) When necessary to adequately describe the item required, the contracting officer may use an applicable commercial catalog description or pertinent extract if the description is identified in the solicitation as being that of the particular named manufacturer, producer, or distributor. The contracting officer must insure that a copy of any catalog referenced (except a parts catalog) is available on request for review by bidders at the purchasing office.
(f) Except as noted in paragraph (d) of this section, the specification writer must not include in a purchase description either minimum or maximum restrictive dimensions, weights, materials, or other salient characteristics that are unique to a brand name product or that would tend to eliminate competition or other products that are only marginally outside the restrictions. However, the specification writer may include in a purchase description restrictive dimensions, weights, materials, or other salient characteristic if:
(1) The user determines in writing that the restrictions are essential to the Government's requirements;
(2) The specification writer includes the brand name of the product in the purchase description; and,
(3) The contracting officer makes all other determinations required by 811.105.
(g) The contracting officer must include in the contract file, as appropriate, written justifications for using the “brand name or equal” description, the contracting officer's determinations, and bidder submissions.
(a) When a solicitation uses “brand name or equal” purchase descriptions, the contracting officer must include in the solicitation the clause at 852.211-73, Brand name or equal, and the provision set forth at FAR 52.214-21, Descriptive Literature. The contracting officer must review the requirements at FAR 14.202-5 when using the descriptive literature provision.
(b) When a “brand name or equal” purchase description is included in an invitation for bids, the contracting officer shall insert the following after each item so described in the solicitation, for completion by the bidder:
Bidding on:
If the contracting officer determines that the clause at 852.211-73, Brand name or equal, applies to only certain line items of a solicitation, the requirements of 811.104-71(b) apply to those line items and the contracting officer must include a statement in the solicitation as follows:
The clause entitled “Brand name or equal” applies only to the following line items: [
(a) When a solicitation contains “brand name or equal” purchase descriptions, the contracting officer must not require a bidder who offers brand name products, including component parts, referenced in the descriptions to furnish bid samples of the referenced brand name products.
(b) A solicitation may require the submission of bid samples in the case of a bidder offering “or equal” products. If bid samples are required, the contracting officer must include in the solicitation the provision set forth at FAR 52.214-20, Bid Samples.
(c) A bidder must furnish all descriptive literature in accordance with and for the purpose set forth in the “Brand Name or Equal” clause, 852.211-73(c)(1) and (c)(2), even though bid samples may not be required.
(a) A bid offering products that differ from brand name products referenced in a “brand name or equal” purchase description must be considered for award if the contracting officer determines in accordance with the terms of the clause at 852.211-73, Brand name or equal, that the offered products are clearly identified in the bid and are equal in all material respects to the products specified.
(b) In award documents, the contracting officer must include, or incorporate by reference, an identification of the specific products that the contractor is to furnish. The identification must include any brand name and make or model number, descriptive material, and any modifications of brand name products specified in the bid. This requirement also applies when the descriptions of the end items contain “brand name or equal” purchase descriptions of component parts or of accessories related to the end item, and the clause at 852.211-73, Brand name or equal, was applied to the component parts or accessories (see 811.104-72).
(a) The specification writer and contracting officer must use the policies and procedures prescribed in 811.104-70 through 811.104-74 as a guide in developing adequate purchase descriptions for negotiated procurements.
(b) The contracting officer may adapt the clause at 852.211-73, Brand name or equal, for use in negotiated procurements. When use of the clause is not practical (as may be the case in unusual and compelling urgency purchases), the contracting officer must inform suppliers that proposals offering products different from the products referenced by brand name will be considered if the contracting officer determines that the offered products are equal in all material respects to the products referenced. The contracting officer must place decisions under this paragraph in writing for the contract file, as appropriate.
(a) Except as provided in paragraph (b) of this section, the specification writer must write specifications in accordance with FAR 11.002.
(b)(1) When the specification writer determines that a particular physical or functional characteristic of only one product will meet the minimum requirements of VA (see FAR 11.105) or
(i) Provide a full written justification of the reason the particular characteristic is essential to the Government's requirements.
(ii) Explain why the “brand name or equal” purchase description is necessary.
(2) The contracting officer makes the final determination whether restrictive specifications or “brand name or equal” purchase descriptions will be included in the solicitation.
(a) Insert the clause at 852.211-70, Service data manuals, paragraph (a), in solicitations and requests for proposals for technical medical and other technical equipment and devices issued by a field facility unless the facility Chief, Engineering Service, indicates that the service data manuals are not needed. The purpose of the clause is to require the manufacturer to provide VA a manual or groups of manuals that will allow for the in-house repair of the equipment purchased.
(b) Insert the clause at 852.211-70, Service data manuals, paragraph (b), in solicitations and requests for proposals for mechanical equipment (other than technical medical and other technical equipment and devices) issued by a field station.
(a)
(b)
(2) The military specifications for meat and meat products contained in Part IV of the Federal Supply Catalog, Stock List, FSC Group 89, Subsistence, must be used by VA only when purchasing such items of subsistence from the Defense Logistics Agency (DLA). Military specifications for poultry, eggs, and egg products contained in Part IV of the Federal Supply Catalog, Stock List, FSC Group 89, Subsistence, may be used when purchasing either from DLA or from local dealers.
(3) Except as authorized in Part 846, a contracting officer must not deviate from the specifications contained in Part IV of the Federal Supply Catalog, Stock List, FSC Group 89, Subsistence, and the IMPS without prior approval from the DSPE.
(4) Items of meat, cured pork and poultry purchased under the Subsistence Prime Vendor national contract or other local procurement sources should be purchased via Commercial Item Descriptions (CID) that require all products meet USDA Grading standards and/or the IMPS as applicable.
(c)
(2) VA specifications, as they are revised, are placed in stock in the VA Forms and Publications Depot. The contracting officer may requisition facility requirements for these specifications from that source.
(d)
(2) All binding or rebinding of books, magazines, pamphlets, newspapers, slip cases, and boxes must be procured in accordance with Government Printing Office (GPO) specifications and must be procured from the servicing GPO Regional Printing Procurement Office or, when appropriate, from commercial sources.
(3) There are three types of binding/rebinding: Class A (hard cover); Perfect (glued); and Lumbinding (sewn). The most suitable type of binding must be procured to satisfy the requirements, based upon the intended use of the bound material.
Insert the clause at 852.211-75, Product specifications when product specifications are cited in an invitation for bids or a request for proposals.
When delivery is required by or on a particular date for f.o.b. destination contracts, the contracting officer must add a statement following the Time of Delivery clause in FAR 52.211-8 that the delivery date specified is the date by which the shipment is to be delivered, not the shipping date. In f.o.b. origin contracts, the contracting officer must add a statement following this clause that the date specified is the date shipment is to be accepted by the carrier.
The contracting officer must not routinely include a liquidated damages provision in supply or construction contracts, regardless of dollar amount. The decision to include liquidated damages provisions must conform to the criteria in FAR 11.501. In making this decision, the contracting officer must consider whether the necessity for timely delivery or performance as required in the contract schedule is so critical that a probable increase in contract price is justified. The contracting officer must not use a liquidated damages provision for any of the following reasons:
(a) As insurance against selection of a non-responsible bidder.
(b) As a substitute for efficient contract administration.
(c) As a penalty for failure to perform on time.
When the contracting officer determines that the Liquidated damages clause prescribed in FAR 52.211-11 or 52.211-12 must be used and where partial performance by the contractor may be to the advantage of the Government, the contracting officer must include the clause in 852.211-74, Liquidated damages, in the contract.
(a) Priorities and allocations of critical materials are controlled by the Department of Commerce. Essentially, priorities and allocations of critical materials are restricted to projects having a direct connection with supporting current defense needs. VA is not authorized to assign a priority rating to its purchase orders or contracts involving the acquisition or use of critical materials.
(b) When it has been technically established that it is not feasible to use a substitute material, the Department of Commerce has agreed to assist the VA in obtaining critical materials for maintenance and repair projects. The Department of Commerce will also, when possible, render assistance in connection with the purchase of new items, which may be in short supply because of their use in connection with the defense effort.
(c) A contracting officer having problems acquiring critical materials must ascertain all the facts necessary to enable the Department of Commerce to render assistance to VA in acquiring these materials. The contracting officer must submit a request for assistance to the DSPE containing the following information:
(1) A description of the maintenance and repair project or the new item.
(2) The critical material and the amount required.
(3) The contractor's sources of supply, including any addresses. If the source is other than the manufacturer or producer, also list the name and address of the manufacturer or producer.
(4) The VA contract or purchase order number.
(5) The contractor's purchase order number, if known, and the delivery time requirement as stated in the solicitation or offer.
(6) The additional time the contractor claims is necessary to deliver the materials if priority assistance is not provided.
(7) The nature and extent of the emergency that will be generated at the station, such as any of the following:
(i) Damage to the physical plant.
(ii) Impairment of the patient care program.
(iii) Creation of safety hazards.
(iv) Any other pertinent condition that could result because of failure to secure assistance in obtaining the critical materials.
(8) If applicable, a statement that the item required is for use in a construction contract that was authorized by the Director, Office of Construction and Facilities Management, to be awarded and administered by the facility contracting officer.
38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-1.304.
(a) This part shall be used for the acquisition of supplies and services that meet the definition of commercial items at FAR 2.101.
(b) Contracting officers shall use the policies in this part in conjunction with the policies and procedures for the solicitation, evaluation, and award prescribed in Parts 813, Simplified Acquisition Procedures, 814, Sealed Bidding, and 815, Contracting by Negotiation, as appropriate for the particular acquisition.
(c) Contracts for the acquisition of commercial items are subject to the policies of other parts of this chapter. When a policy in another part of this chapter differs from a policy in this part, this Part 812 applies to the acquisition of commercial items.
(a) Regardless of provisions in other parts of the VAAR, contracting officers may use, as appropriate, only those provisions and clauses referred to in this part when acquiring commercial items.
(b) Contracting officers may use the provisions and clauses in the following VAAR sections, as appropriate and in accordance with the prescriptions for the provisions and clauses, in requests for quotations, solicitations, and contracts:
(1) 852.203-70, Commercial advertising.
(2) 852.203-71, Display of Department of Veterans Affairs Hotline poster.
(3) 852.207-70, Report of employment under commercial activities.
(4) 852.209-70, Organizational conflicts of interest.
(5) 852.211-71, Special notice.
(6) 852.211-72, Technical industry standards.
(7) 852.211-73, Brand name or equal.
(8) 852.211-75, Product specifications.
(9) 852.214-70, Caution to bidders—bid envelopes.
(10) 852.214-71, Restrictions on alternate item(s).
(11) 852.214-72, Alternate item(s).
(12) 852.214-73, Alternate packaging and packing.
(13) 852.214-74, Bid samples.
(14) 852.216-70, Estimated quantities.
(15) 852.228-71, Indemnification and insurance.
(16) 852.229-70, Sales and use taxes.
(17) 852.233-70, Protest content/alternative dispute resolution.
(18) 852.233-71, Alternate protest procedure.
(19) 852.237-7, Indemnification and medical liability insurance.
(20) 852.237-70, Contractor responsibilities.
(21) 852.246-70, Guarantee.
(22) 852.246-71, Inspection.
(23) 852.246-72, Frozen processed foods.
(24) 852.252-70, Solicitation provisions or clauses incorporated by reference.
(25) 852.270-1, Representatives of contracting officers.
(26) 852.270-2, Bread and bakery products—quantities.
(27) 852.270-3, Purchase of shellfish.
(28) 852.271-72, Time spent by counselee in counseling process.
(29) 852.271-73, Use and publication of counseling results.
(30) 852.271-74, Inspection.
(31) 852.271-75, Extension of contract period.
(c) When appropriate in accordance with the prescriptions for the clauses, the contracting officer may use the clauses in the following VAAR sections in requests for quotations, solicitations, and contracts for the acquisition of commercial items if the contracting officer determines that the use is consistent with customary commercial practices:
(1) 852.211-70, Service data manuals.
(2) 852.211-74, Liquidated damages.
(d) All requests for quotations, solicitations, and contracts for commercial item services to be provided to beneficiaries must include the clause
(e) Micro-purchases that use the procedures of this part in conjunction with part 813 do not require clauses unless the contracting officer determines that the use of clauses serves the Government's best interest.
(f) When soliciting for health care resources that are commercial services or the use of medical equipment or space under the authority of part 873 and 38 U.S.C. 8151-8153, the provisions and clauses in the following VAAR sections may be used in accordance with the prescriptions contained therein or elsewhere in the VAAR:
(1) 852.273-70, Late offers.
(2) 852.273-71, Alternative negotiation techniques.
(3) 852.273-72, Alternative evaluation.
(4) 852.273-73, Evaluation—health-care resources.
(5) 852.273-74, Award without exchanges.
(a) Contracting officers may tailor solicitations to be inconsistent with customary commercial practice if they prepare and obtain approval of a waiver under paragraph (c) of this section.
(b) The contracting officer must prepare the waiver in accordance with FAR 12.302(c). The waiver is subject to the tailoring prohibitions in FAR 12.302(b)(1) through 12.302(b)(6).
(c) The contracting officer must obtain approval for waivers from the following:
(1) The Chief, Acquisition Assistance Division, for individual contracts.
(2) The Chief, Acquisition Program Management Division, for a class of contracts.
(d) Contracting officers must submit waiver requests no later than the solicitation issue date.
(e) Contracting officers must retain approved requests in the contract file.
40 U.S.C. 121(c) and 48 CFR 1.301-1.304.
The contracting officer may record a quotation on an Abstract of Offers (SF 1409 or 1419), the purchase request if space permits, or other supplemental sheet or form, such as VA Form 10-2237b, Request for Dietetic Supplies.
When advantageous to VA, the contracting officer may use an oral purchase order for transactions not in excess of $3,000. This limitation does not apply to delivery orders against existing contracts, e.g., delivery orders against Federal Supply Schedule contracts. The contracting officer must assign a purchase order number to the transaction. A copy of any electronically generated purchase order may be used as a property voucher and receiving report to document receipt.
When using the VA Form 90-2138 or 90-2138-ADP for maintenance contracts involving services performed on Government property that have the potential for property damage and liability claims, the contracting officer shall insert in the purchase order the Contractor's Responsibilities clause found at 852.237-70. Applicable maintenance contracts include, but are not limited to, window washing, pest control, and elevator maintenance.
(a) The following forms provide a purchase or delivery order, vendor's invoice, and receiving report:
(1) VA Form 90-2138, Order for Supplies or Services.
(2) VA Form 90-2139, Order for Supplies or Services (Continuation).
(3) VA Form 90-2138-ADP, Purchase Order for Supplies or Services.
(4) VA Form 2139-ADP, Order for Supplies and Services (Continuation).
(b) The contracting officer may use the forms specified in paragraphs (a)(1) through (a)(4) of this section instead of OF 347, Order for Supplies or Services, OF 348, Order for Supplies or Services Schedule—Continuation, and SF 1449, Solicitation/Contract/Order for Commercial Items.
(c) The contracting officer or other properly delegated official (see 801.670-3) may use the following order forms when ordering the indicated medical, dental, and ancillary services totaling up to $10,000 per authorization when such services are not available under existing contracts:
(1) VA Form 10-7078, Authorization and Invoice for Medical and Hospital Services.
(2) VA Form 10-7079, Request for Outpatient Medical Services.
(3) VA Form 10-2570d, Dental Record Authorization and Invoice for Outpatient Service.
(d) In authorizing patient travel as set forth in VA manual MP-1, Part II, Chapter 3, the contracting officer or other properly delegated official (see 801.670-3) may use VA Form 10-2511, Authority and Invoice for Travel by Ambulance or Other Hired Vehicle, as provided by that manual.
(e) The contracting officer must use SF 182, Request, Authorization, Agreement, and Certification of Training, for procurement of training.
(f) The contracting officer must use VA Form 10-2421, Prosthetics Authorization for Items or Services, for indicated services not in excess of $300.
40 U.S.C. 121(c) and 48 CFR 1.301-1.304.
When fixed price contracts with escalation are authorized under 816.102(a), a contracting officer must comply with FAR 16.203-1 through 16.203-4.
(a) An invitation for bids for supplies, equipment, and services must be serially numbered at the time of issue. Numbers assigned locally must consist of the facility or VA National Acquisition Center division number, the serial number of the invitation, and the fiscal year in which the VA facility issues the invitation, e.g., 533-24-07 for the 24th invitation issued by VA facility 533 in Fiscal Year 2007. A series beginning with the number 1 must be started each fiscal year. Numbers assigned from a national register may be sequential, without regard to year, and use whatever numbering system assigned by the national system or VA's Electronic Contract Management System (eCMS). VHA shall use eCMS for all solicitation numbering.
(1) An invitation for bid for supplies, equipment, and services that is numbered locally must be numbered in the series of the year in which it is issued, will be accepted, and will become a contract in the same fiscal year but, because of procurement lead time, will not be performed until the next fiscal year.
(2) An invitation for bid that is numbered locally must be numbered in the next fiscal year series if it is issued in one fiscal year but the contract will become effective and will be performed only in the next fiscal year.
(b) An invitation for a construction contract must bear the applicable invitation for bid number and the project number, if assigned.
(c) An invitation for bid containing a summary bid request must include the following statement:
“The award will be made on either an individual item basis or summary bid basis, whichever results in the lowest cost to the Government. Therefore, to assure proper evaluation of all bids, a bidder quoting a summary bid price must also quote a price on each individual item included in the summary bid price.”
(d) When a contracting officer determines that it will be to the Government's advantage to make an award by group or groups of items, the contracting officer must include a provision for the award by group or groups of items in the invitation for bids. This may apply when the items in the group or groups are readily available from sources to be solicited; and one of the following apply:
(1) It is desirable to award a minimum number of contracts.
(2) Furniture or fixtures are required for a single project and uniformity of design is desirable.
(3) The articles required will be assembled and used as a unit.
(e) A solicitation for a construction contract must contain a statement on the order of priority in which VA will award any alternative bid items, based on the relative importance of the items, VA's cost estimate, and the amount of funds available, when the following apply:
(1) VA intends to make a single aggregate award for all items in the solicitation within certain fiscal limitations.
(2) The solicitation asks for prices on an item and alternate item basis.
(f) A bid item schedule in a solicitation issued in compliance with paragraph (e) of this section should be structured substantially as follows:
A single award will be made on Item No. 1, but in the event the offer exceeds the funds available, a single award will be made on Item No. 2 or Item No. 3, in that order, based on available funding. Offerors should quote a price on each item listed.
Item No. 1—Furnish all labor, material, equipment, etc., to paint Buildings No. 1, 2, and 3: $__.
Alternate items in order of priority:
Item No. 2—Furnish all labor, material, equipment, etc., to paint Building Nos. 1 and 2: $__.
Item No. 3—Furnish all labor, material, equipment, etc., to paint Building No. 1: __.
(a) The contracting officer must place the provision entitled “Caution to Bidders-Bid Envelopes,” as set forth in 852.214-70, in all invitations for bids where bid submissions are by other than electronic means.
(b) In an invitation for bid for supplies, equipment, or services (other than construction), the contracting officer must define the extent to which VA will authorize and consider alternate bids. VA will consider for acceptance an alternate specified on construction projects only as a part of the basic item.
(1) When VA will consider an alternate item only if no bids or insufficient bids are received on an item desired, the contracting officer must include the provision set forth in 852.214-71, Restrictions on alternate item(s), in the invitation.
(2) When VA will consider an alternate item on an equal basis with the item specified, the contracting officer must include the provision set forth in 852.214-72, Alternate items, in the invitation.
(3) In addition to the provision referenced in paragraph (b)(1) or (2) of this section, the contracting officer must include the provision set forth in 852.214-73, Alternate packaging and packing, in the invitation when bids will be allowed on different packaging, unit designation, etc.
(c) When the contracting officer determines that samples are necessary to the proper awarding of a contract, the contracting officer must include the provision set forth in 852.214-74, Bid samples, in the solicitation, along with the provision in FAR 52.214-20, Bid samples.
The contracting officer should include either a bid envelope or OF 17, Sealed Bid Label, with each invitation for bids furnished by mail or hand delivered to prospective bidders.
(a) The issuing office must establish and maintain a single register on a fiscal year basis for all solicitations. For each invitation to bid or request for proposal, the register must include the following:
(1) Bid or proposal number.
(2) Date of issue.
(3) Date of opening.
(4) Commodity or service involved.
(5) Disposition (i.e., contract number or purchase order number or, when applicable, no award).
(b) Maintenance of the contract file prescribed by Part 804 and retention of canceled Invitation for Bid files will fulfill the requirements set forth in FAR 14.204(b).
The contracting officer must send amendments to holders of drawings and specifications by certified mail, return receipt requested, or any other method that provides evidence of receipt. The
Where a contracting officer cannot administratively determine, in accordance with FAR 14.301, the timeliness of the submission of a bid, modification, or withdrawal, the contracting officer must submit the matter through the DSPE to the Comptroller General for a decision. The submission must include copies of all pertinent papers.
A bid hand-carried by the bidder or his agent will be considered late unless delivered to the addressee designated in the bid invitation before the time set for opening.
(a) A notification to late bidders must specify the final date by which VA must receive evidence. This date must be within the time allowed by the apparent low bidder for acceptance of the low bidder's bid.
(b) All bids received by mail or delivered in person by the bidder (or telegram where authorized) must be time and date stamped immediately upon receipt at the VA facility mail room and in the office of the addressee designated in the invitation.
The contracting officer is designated as the official to open bids for identification, as provided in FAR 14.401.
(a) The contracting officer must serve as, or designate, a bid opening officer, and must also designate a recorder.
(b) If a bid bond is required, the bid opening officer must read aloud the form and amount of bid security and the name of the surety. The recorder must record this information.
(a) The recorder must transcribe the information required for bid evaluation on the appropriate Abstract of Offers form (SF 1409 or OF 1419). The evaluation data may be recorded on supplemental sheets or forms such as VA Form 10-2237b, Request for Dietetic Supplies, provided that any supplemental sheets or forms are covered by one of the forms authorized for recording bid or price data.
(b) The bid opening officer must comply with the instructions in FAR 14.403 and certify on the abstract the date and hour at which the bids were opened. Where erasures, strikeovers, or changes in price are noted at the time of bid opening, a statement to that effect must also be included on, or attached to, the abstract or record of bids.
(a) For each invitation to bid that VA cancels or for which it receives no bid, the contracting officer must do the following:
(1) File a copy of the invitation for bids, as provided for in FAR 14.404-1, together with the abstract showing to whom such bids were sent, in a separate folder identified by the invitation number.
(2) Annotate the abstract to show why an award was not made.
(3) Retain the folders for the current and two succeeding fiscal years.
(b) The HCA may approve cancellation of invitations for bid after opening and may approve completion of the acquisition after cancellation, as provided in FAR 14.404-1(e). The contracting officer must submit a Determination and Finding to the HCA for approval and signature.
(a) When a contracting officer finds a bid that is being considered for an award is incomplete, e.g., all pages of the invitation have not been returned by the bidder, the contracting officer will take whichever of the following actions that is appropriate:
(1) Make a determination that the bid as submitted is in such a form that acceptance would create a valid and binding contract, requiring the contractor to perform in accordance with all of the material terms and conditions of the invitation. The determination may be based on the fact that the bid as submitted includes evidence that the offeror intends to be bound by all the material terms and conditions of the invitation.
(2) Make a determination that the bid as submitted is in such form that acceptance would not create a valid and binding contract.
(b) When VA receives a single bid in response to a solicitation, the contracting officer must not reject the offer simply because it specifies a bid acceptance time that is shorter than that contained in the solicitation, unless a compelling reason exists for rejecting such a bid. Insufficient time to properly evaluate an offer is a compelling reason for rejection; however, the contracting officer must first request the offeror to extend the acceptance date of the bid to allow for proper evaluation.
(c) In those cases where VA receives more than one bid, the contracting officer must reject as nonresponsive an individual bid that is not in compliance with the Government's bid acceptance time, since consideration of such an offer would unfairly disadvantage other bidders.
If a contracting officer cannot resolve a question involving the responsiveness of a bid, the contracting officer may submit the question to the Comptroller General through the DSPE.
(a) In accordance with FAR 14.407-3(e), the authority of the Secretary to make the administrative determinations set forth in FAR 14.407-3(a), (b), (c), and (d) is delegated to the SPE and is further delegated, without power of redelegation, to the DSPE. This delegation in no way impairs the delegations contained in Unpublished Decision of the Comptroller General B-122003 dated November 22, 1954.
(b) When a bidder alleges a mistake in his or her bid before award, after complying with the provisions of FAR 14.407-3, the contracting officer must submit the complete file to the DSPE for an administrative determination. Based upon the evidence submitted, the DSPE shall determine the action the contracting officer is to take. The contracting officer may make no award until the DSPE makes a determination.
(a) When a contracting officer corrects a mistake in bid under FAR 14.407-4(a), the contracting officer must forward a copy of the contract amendment or supplemental agreement and a copy of the contracting officer's determination, to the DSPE.
(b) For mistakes in a bid alleged after award, the contracting officer's proposed determination, prepared in accordance with FAR 14.407-4, must be forwarded to OGC through the DSPE, Acquisition Resources Service, for legal coordination. The DSPE shall transmit the results of this coordination to the contracting officer, who will make the
(c) The DSPE, Acquisition Resources Service, must maintain the agency records of mistakes in bids after award required by FAR 14.407-4.
(a) When VA receives only one bid in response to an invitation for bids, the contracting officer may consider and accept the bid if all of the following apply:
(1) The specifications used in the invitation were not restrictive.
(2) VA solicited adequate competition.
(3) The price is reasonable.
(4) The bid is otherwise in accordance with the invitation for bids.
(b) The contracting officer must make the determination in writing, and include it the contract file.
(a) For Central Office contracts, the Director, Office of Construction and Facilities Management, must analyze all bids received and submit a memorandum to the Secretary recommending award or other disposition of the project. A copy of each of the following must accompany the memorandum:
(1) The invitation.
(2) Each bid received.
(3) The abstract.
(4) Any other pertinent data.
(b) For facility-level contracts, the Chief, Engineering Service, must analyze all bids received and submit a memorandum recommending award or other disposition of the project to the contracting officer. The contracting officer alone must make the final decision to accept or reject the lowest responsive bid and the determination as to the responsibility of a prospective contractor.
(a) An employee of VA may not disclose information as to probable acceptance or rejection of any offer to any bidder or other person outside of VA, except as authorized by the FAR.
(b) Except as provided in paragraphs (c) and (d) of this section, information about performance under a contract or an accepted bid is not public information and will be released to persons outside of VA only upon the authority of the immediate supervisor of the contracting officer.
(c) Except as provided in paragraph (d) of this section, the contracting officer may furnish information on performance under a contract to those having a legitimate interest, such as sureties, banks, other financial companies and Government departments and agencies.
(d) When litigation is involved, all information must be furnished through OGC.
40 U.S.C. 121(c) and 48 CFR 1.301-1.304.
The authority of the Secretary to appoint an individual other than the contracting officer to serve as the source selection authority for a particular acquisition or group of acquisitions is delegated to the SPE and is further delegated to the DSPE. If an HCA wishes to designate an individual other than the delegated contracting officer as the source selection authority for a particular acquisition or group of acquisitions, the HCA shall prepare a request and justification and shall submit the request through channels to the DSPE for approval.
(a) Contracting officers are responsible for the technical and administrative sufficiency of the contracts they enter into. Contracting officers must ensure that contracts undergo all applicable legal and technical reviews. (See 801.602-70.)
(b) Contracting officers determine the level of technical analyses necessary for initial and revised pricing of all negotiated prime contracts, including subcontract pricing under them, and contract modifications. Contracting officers must request technical analyses of the proposals from the appropriate technical personnel. The technical analyses must address, as a minimum, the items set forth in FAR 15.404-1(e)(2).
(c) The contracting officer must document the results of such analyses in the contract file and make the results available to the auditor performing the pre-award audit.
In evaluating start-up and other non-recurring costs, the contracting officer must determine the extent to which these costs are included in the proposed price and the intent to absorb or recover the costs in any future noncompetitive procurement or other pricing action. The contracting officer must ensure, with the assistance of the Assistant Inspector General for Policy, Planning, and Resources, as required or considered necessary, that VA will not pay the costs twice. For example, the cost of equipment that the Government pays for through a setup or connection agreement must not be included in depreciation cost of a subsequently negotiated agreement.
A VA employee who receives an unsolicited proposal or inquiries from a potential offeror of an unsolicited proposal must refer the proposal or inquiries to the following:
(a) Facility level unsolicited proposals must be referred to the HCA for the field facility.
(b) Proposals to the VA National Acquisition Center must be referred to the Executive Director and Chief Operating Officer, VA National Acquisition Center.
(c) Proposals to VA Central Office must be referred to the Director, Acquisition Operations Service (049A3).
(a) The VA contact point will do the following:
(1) Determine the nature of the potential proposal and which technical/professional disciplines within VA to consult to determine the need for the proposal and the likelihood that a formal proposal would earn favorable review.
(2) In consultation with such technical/professional offices, the VA contact point will furnish the potential offeror the information specified in FAR 15.604 and any other information that might be of assistance to the potential offeror.
(b) The contact point will maintain a record of advance guidance provided and the disposition/recommendation regarding the potential offer.
(c) The contact point will review the unsolicited proposal and ensure that it is complete as prescribed in FAR 15.605. If required information is not submitted, the contact point will:
(1) Determine if FAR 15.604 requires advance guidance;
(2) Determine whether a comprehensive evaluation prescribed by FAR 15.606-2 is appropriate and, if so, request that the offeror provide the necessary information; and,
(3) Establish an estimated due date for completion of the review process.
(a) When the VA contact point determines a proposal warrants a comprehensive evaluation (i.e., the proposal complies with the requirements in FAR 15.606-1(a) and is related to VA's mission), the contact point must contact the offeror to ensure that all data that should be restricted in accordance with FAR 15.609 has been identified.
(b) The contact point must maintain a log of all unsolicited proposals to be evaluated. The log must indicate the following:
(1) The date the proposal was received.
(2) The date that the unsolicited proposal was determined to warrant a comprehensive evaluation.
(3) A description of the proposal.
(4) The offices requested to evaluate the proposal and the date the offices are requested to return their evaluations.
(5) The date the reviewing offices finalize their respective evaluations.
(6) The final disposition of the proposal.
(c) The contact point must advise each office assigned responsibility for reviewing an unsolicited proposal of the need to evaluate the proposal against the criteria set forth in FAR 15.607(a)(1) through (4). If the reviewers determine that the proposal fails to meet any of the criteria, the contact point must be advised. The contact point must return the proposal to the offeror, citing the reasons therefore.
(d) The contact point must obtain approval of the DSPE (049A5) before the contact point, if warranted as a contracting officer, or an appropriate contracting officer begins negotiation on proposals. The contact point must provide the DSPE (049A5) all necessary documentation supporting the noncompetitive negotiation, including any justification and approval required by FAR Subpart 6.3 and the results of any synopsis required by FAR Subpart 5.2. The DSPE (049A5) will consult the appropriate VA Central Office program official(s) and return the final decision to the contact point.
40 U.S.C. 121(c) and 48 CFR 1.301-1.304.
(a) Contracting officers must obtain technical review of solicitations that include a clause that provides for economic price adjustment specified in FAR 16.203-4 or any locally developed clause (see FAR 16.203-4(d)(2) and 801.602-72(d)). The request for approval must include a clearly stated need for the clause.
(b) The contracting officer must obtain the approval of the Director, Acquisition Resources Service (049A5), VA Central Office, before issuing a solicitation or awarding a contract that includes time-and-material or labor-hour pricing provisions if the ceiling price or estimated value of the acquisition exceeds $100,000. See 801.602-71 for technical review requirements. Excluded from this requirement are time-and-material or labor-hour solicitations or proposed contracts covering emergencies, such as repair of a broken water, sewer, or communication line, repair of storm damage, etc. (i.e., where FAR 6.302-2 applies).
(c) Except as provided in FAR 32.703-3, a contract that involves a direct obligation of appropriations and lasts for more than one year from the beginning of the contract period must provide that:
(1) The contract applies to the period stated in the contract, subject to availability of funds; and
(2) The contractor will not perform any service under the contract after September 30 of each fiscal year (or beyond the period of the basic contract or any authorized option if the contract crosses fiscal years as provided in FAR 32.703-3(b)) unless the contractor obtains specific authorization from the contracting officer.
(d) A/E contracts, construction contracts, or professional engineer contracts, financed by “no year” appropriations, are not subject to the requirements of paragraph (c) of this section.
(a) Except as provided in paragraphs (b), (c), and (d) of this section, when the contracting officer cannot determine definite quantities to be acquired under a solicitation and intends to issue a solicitation for estimated quantities, the contracting officer shall insert the clause at 852.216-70, Estimated quantities.
(b) The contracting officer shall insert the Alternate I clause at 852.216-70 in solicitations for bulk coal.
(c) The contracting officer shall insert the Alternate II clause at 852.216-70 in solicitations for estimated quantities of orthopedic, prosthetic, and optical supplies.
(d) The contracting officer shall insert the Alternate III clause at 852.216-70 in solicitations for monuments and headstones.
The task order contract and delivery order ombudsman for VA is the Associate Deputy Assistant Secretary for Acquisitions (see FAR 16.505(b)(5)). Contracting officers may obtain the name, telephone number, facsimile number, and e-mail address of the current Associate Deputy Assistant Secretary for Acquisitions by contacting: The Office of Acquisitions (049A), VA Central Office, 810 Vermont Ave., NW., Washington, DC 20420.
(a)
(b)
(i) Letters of availability often cause potential contractors to initiate costly
(ii) Procurements announced in such letters do not always materialize. The result may be costly to the Government, the prospective contractor, or both. If the author of the letter of availability is an authorized contracting officer of VA, the Government may be bound by the action, even though the action is contrary to sound procurement practices and/or fiscal regulations. If the author of the letter of availability lacks procurement authority, the prospective contractor may incur substantial expenditures that may not be recovered from the Government. In this instance, the prospective contractor may seek to hold the unauthorized author personally liable.
(iii) The issuance of a letter of availability may violate the “Anti-Deficiency Act” (31 U.S.C. 1341).
(2) Contractors need access to procurement information as soon as possible to make timely preparations. Therefore, procurement personnel should act as efficiently and expeditiously as possible on all procurement actions.
38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-1.304.
(a) Under 38 U.S.C. 114, VA contracting officers may enter into multi-year contracts for supplies and services not to exceed 5 years (unless otherwise authorized by statue), provided the Secretary or designee makes the following determinations:
(1) Appropriations are available for obligation to pay for the total payments for the fiscal year in which the contract is awarded plus the estimated amount of any cancellation charges.
(2) The contract serves the best interest of the Government by:
(i) Reducing cost;
(ii) Achieving contract administration and other efficiencies;
(iii) Increasing quality contract performance; and
(iv) Encouraging effective competition.
(3) That, during the contract period:
(i) Demand for the supplies or services will continue;
(ii) Substantial changes in demand for supplies and services in terms of quantity or rate of delivery are unlikely; and
(iii) Specifications for the supplies or services will remain reasonably stable.
(4) The risk of the contractor's inability to perform under the terms and conditions of the contract is low.
(5) A multi-year contract will not inhibit competition from small businesses.
(6) For a pharmaceutical item for which a patent has expired less than 4 years before the solicitation issue date, that there is no substantial likelihood that increased competition among potential contractors would occur during the term of the contract as the result of the availability of generic equivalents increasing during the term of the contract.
(b) The Secretary has delegated authority to make the determinations specified in 817.105-1(a) as follows:
(1) HCAs may make the above determinations and approve contracts that do not require legal/technical reviews under 801.602-70 and that do not contain a first year cancellation ceiling exceeding 20 percent of the contract value over the full multi-year term.
(2) Authority to make the above determinations and to approve all other proposed multi-year contracts is delegated to the SPE and is further delegated to the DSPE. For approval purposes, the HCA will justify and document the use of a multi-year contract against each of the criteria specified in paragraphs (a)(1) through (a)(6) of this section and forward to the DSPE for approval. The justification must explain the cancellation ceiling and the method used to calculate that ceiling. The justification also must explain the advantages of multi-year contracts over other alternative methods, e.g., option year contracts.
(c) The contracting officer must develop the cancellation ceilings in accordance with FAR 17.106-1. (38 U.S.C. 114)
All solicitations developed under Office of Management and Budget Circular A-76 (Revised) cost comparisons will provide for four one-year renewal options as prescribed in FAR Subpart 17.2. The contracting officer must forward requests to use less or more than the prescribed contract period for Circular A-76 (Revised) cost comparisons to the DSPE for approval.
(a) The contracting officer must obtain the approval of the DSPE before awarding a contract that includes options exceeding the 5-year limitation specified in FAR 17.204(e). This requirement does not apply to contracts to be awarded by or on behalf of the VA Office of the Inspector General. The request for approval must include the following:
(1) Supporting documentation, rationale, and justifications for the use of options (see FAR 17.205) and for exceeding the 5-year limitation.
(2) Documentation that the contracting officer has considered and addressed the limitations specified in FAR 17.202(b) and (c).
(b) Solicitations that require technical review in accordance with 801.602-71 through 801.602-73 shall be submitted for review concurrently as provided therein.
(a) Except as provided in paragraph (b) of this section, the Government shall not initiate or execute leader company contracts.
(b) The DSPE may designate a contracting officer to enter into a leader company contract for the benefit of VA and the Government. The DSPE must designate a contracting officer by name for a specific contract. The named contracting officer will submit the proposed contract, with a determination and finding, for legal review in accordance with 801.602-75.
40 U.S.C. 121(c) and 48 CFR 1.301-1.304.
The Director, Office of Small and Disadvantaged Business Utilization (OSBDU), is designated as the official responsible for making the determination required by FAR 19.201(f).
Contracting officers may negotiate payment terms of less than 30 calendar days to encourage small business participation. A period of less than 7 days may not be prescribed (see FAR 32.908(c)(2)). The contracting officer and the local fiscal officer must be in agreement on the negotiated payment terms before awarding the contract.
(a) Administration heads, staff office directors, and HCAs must, in addition to the responsibilities designated in FAR 19.202-5, cooperate with OSDBU in formulating specific small business program goals and providing other data necessary for goal assessment.
(b) Each VA acquisition activity shall establish goals for the expenditure of funds with preferred businesses within their projected annual budget. OSDBU is responsible for Department-wide goals and accomplishments and will approve or adjust each acquisition activity's goals.
(c) A Procurement Preference Program Goals Report (Report Control Symbol 00-0427) shall be submitted annually by each acquisition activity to reach OSDBU by November 1. Each report shall contain total expenditure estimates and goals for the current fiscal year and explanations of the methods utilized to arrive at each proposed goal. Anticipated problems in the attainment of the proposed goal in any category shall also be identified. This information will be used in negotiating the Department goals with the Small Business Administration (SBA).
(d) As an addendum to the report, each acquisition activity shall provide a narrative explaining the reason(s) for any shortfall(s) in the achievement of any previous fiscal year goal category.
(e) Upon review by OSDBU of the proposed goals, each acquisition activity will be notified of the acceptance of goals as submitted, or of any deficiencies. If the goals are not acceptable, the acquisition activity will be requested to submit further written justification for the goals submitted. Based on documents submitted, OSDBU will make a final determination on the goal assignment.
(f) Accomplishment of goals will be determined by OSDBU from data reported by acquisition activities into the Federal Procurement Data System-Next Generation (FPDS-NG).
An HCA must perform the following functions in support of the small business program. These functions cannot be delegated without written approval of the Director, OSBDU:
(a) Develop, on an annual basis, a plan of operation to increase the share of contracts and purchase orders awarded to the small business programs prescribed in FAR Part 19. This plan must also include veteran-owned and service-disabled veteran-owned small business concerns.
(b) Promote goals for the small business programs set forth in FAR Part 19. This must also include veteran-owned and service-disabled veteran-owned small business concerns.
(c) Review the types and classes of items and services to be purchased to determine the applicability of individual small business set-asides.
(d) Review class set-asides, established in accordance with criteria in FAR 19.503, at least annually to determine whether items or services procured under a unilateral or joint set-aside should be modified or withdrawn.
(e) Maintain updated lists of acquisitions reserved for small business on a class basis.
(f) If the acquisition activity is assigned to an SBA Procurement Center Representative, assure that the representative is provided logistical support, cooperation, and access to all reasonably obtainable contract information directly pertinent to the SBA Procurement Center Representative's official duties.
(g) Encourage technical personnel and end-users to participate in discussions with veteran-owned and service-disabled veteran-owned small business concerns.
(h) Attend conferences and meetings publicizing small business programs. This responsibility may be delegated without the written approval of the Director, OSBDU.
In addition to the duties designated in FAR 19.202 through 19.202-6, contracting officers must perform the following functions in support of the small business program:
(a) Make maximum use of small business source lists.
(b) Assure that small business firms are identified on solicitation mailing lists and bid abstracts.
(c) Assure that specifications are not unduly restrictive, thereby enabling small business participation to the maximum extent possible.
(d) Assist and counsel small business firms with individual problems.
(e) Provide for counseling non-responsive or non-responsible small business bidders to help qualify them for future awards.
(f) Submit informational copies of all small business protests and appeals to the Director, OSBDU, at the same time they are submitted to the SBA.
(a) When a total small business set-aside is made, one of the following statements, as applicable, will be included in the solicitation for bids:
(1) Notice of total small business set-aside, page __, applies to all items in this solicitation.
(2) Notice of total small business set-aside, page __, applies to items __ through __ in this solicitation.
(b) Contracting officers must ensure that the appropriate product or service classification and the related size standard are included in each solicitation.
When, in accordance with the provisions of FAR 19.502-3, the contracting officer determines that a particular procurement will be partially set aside for small business participation, the solicitation for bids shall include the appropriate product or
Notice of partial set-aside, page __, applies to item __ through item __ in this solicitation.
The Director, OSDBU, is the VA liaison with the SBA. Information copies of correspondence sent to the SBA seeking a certificate of competency determination must be concurrently provided to the Director, OSDBU. Before appealing a certificate of competency, the HCA must seek concurrence from the Director, OSDBU.
(a) No contract will be entered into with SBA under section 8(a) of the Small Business Act (15 U.S.C. 637(a)) unless a certification is made by the Administrator of that agency, or designee, that SBA is competent to perform the contract.
(b) When it is determined that the requirements of VA are appropriate for inclusion in this program, the contracting officer will make this fact known to proper officials of the SBA regional office servicing his/her area. However, when projects funded from minor construction appropriation (between $400,000 and $2 million) are proposed for 8(a) acquisition, the Director, OSDBU (00SB), shall be contacted by telephone or notified in writing in order to afford the OSDBU an opportunity to identify possible 8(a) sources prior to apprising SBA officials. If the certification required by paragraph (a) of this section is received, the VA contracting officer will secure from SBA the name(s) and location(s) of their subcontractor(s) and the unit price(s) to be paid. Should these prices be within a range acceptable to VA, the contracting officer will notify SBA of acceptance.
(c) The contract will be made between VA and SBA and will be administered by VA.
(a) The Small Business Act directs the SBA to give “special consideration” to veterans of the Armed Forces in all SBA programs. It is the policy of VA to encourage participation by all veteran-owned and operated small businesses in VA acquisitions.
(b) All VA facilities having procurement requirements for which veteran-owned small businesses are known sources must take affirmative action to solicit these firms and assist them in participating in VA acquisition opportunities.
29 CFR 5.15(d); 40 U.S.C. 121(c); 48 CFR 1.301-1.304.
When issuing a contract for nursing home care, a contracting officer may exempt a contractor from certain requirements of the Contract Work Hours and Safety Standards Act (40 U.S.C. 3701-3708) regarding the payment of overtime (see 29 CFR 5.15(d)(2) and 852.222-70).
The contracting officer shall insert the clause at 852.222-70, Contract Work Hours and Safety Standards Act—nursing home care contract supplement, in solicitations and contracts for nursing home care when the FAR clause at 52.222-4, Contract Work Hours and Safety Standards Act—Overtime Compensation, is included.
(a) Contracting officers must submit any proposed termination of a contract based on violations of the labor standard provisions of the contract to OGC for review and comment prior to taking final action. The submittal must include a detailed explanation of the facts and circumstances involved. Contracting officers, except those in the Office of Construction and Facilities Management, shall forward the submittal to OGC through the DSPE. Contracting officers in the Office of Construction and Facilities Management shall forward the submittal to OGC through the Director, Office of Construction and Facilities Management.
(b) If the contract is to be terminated, the DSPE or the Director, Office of Construction and Facilities Management, must submit the reports required by 29 CFR 5.7(d) over the signature of the SPE.
38 CFR 1.550-1.559 and 1.575-1.584; 40 U.S.C. 121(c), and 48 CFR 1.301-1.304.
VA rules implementing the Privacy Act of 1974 are in 38 CFR 1.575 through 1.584.
VA rules implementing the Freedom of Information Act are in 38 CFR 1.550 through 1.559.
40 U.S.C. 121(c) and 48 CFR 1.301-1.304.
(a)
(b)
(i) Factually support the determination and include the supporting facts in the contract file.
(ii) Forward a copy of the determination, along with supporting documentation, to the DSPE.
(2) If the HCA believes that the non-availability of an article is likely to affect future acquisitions, include a recommendation that a copy of the determination and supporting documentation be forwarded to the Civilian Agency Acquisition Council (CAAC) for possible addition to the list of non-available articles in FAR 25.104. The DSPE will decide whether to submit the material to the CAAC.
The following items are added to the list of nonavailable articles contained in FAR 25.104:
(a) When a determination is required under FAR 25.202(a)(1), the contracting officer must submit the request for determination to the DSPE for submission to the SPE, who will forward the request to the Secretary. The submission must contain all the facts and other pertinent information necessary for the Secretary to make a determination.
(b) For each determination of non-availability that the HCA makes in accordance with FAR 25.202(a)(2), the HCA must do the following:
(1) Factually support the determination in writing and include the determination in the contract file.
(2) Forward a copy of the determination, along with supporting documentation, to the Director, Office of Construction and Facilities Management, through the DSPE.
(3) If the HCA believes that the non-availability of an article is likely to affect future acquisitions, include a recommendation that a copy of the determination and supporting documentation be forwarded to the Civilian Agency Acquisition Council (CAAC) for possible addition to the list of non-available articles in FAR 25.104. The DSPE will decide whether to submit the material to the CAAC.
A post-award determination that an exception to the Buy American Act applies, as provided in FAR 25.205(c), will be made in accordance with FAR 25.202 and 825.202.
When the contracting officer determines it to be in the best interest of the Government, the contracting officer may request an exception to the requirements of FAR 25.601 from the Secretary through the DSPE and the SPE. Each such request must be fully justified and include all pertinent facts, as provided in FAR 25.602(b). The SPE is responsible for notifying the U.S. Trade Representative of approved requests, as required by FAR 25.602(b)(2).
Contracting officers may obtain technical information or guidance on international agreements and treaties for procurements outside of the United States by contacting the Executive Director and Chief Operating Officer, VA National Acquisition Center.
Should the regulations contained in FAR Subpart 25.9 be inadequate to meet the particular needs of the contracting officer in clearing items through customs and/or obtaining duty-free entry of goods, the contracting officer should contact the nearest U.S. Customs and Boarder Protection office for technical assistance. The location of the nearest office can be found at
(a) The contracting officer must prepare proposed determinations and findings to use either of the following:
(1) Alternate I of the FAR clause at 52.212-5, Contract Terms and Conditions Required to Implement Statutes or Executive Orders—Commercial Items.
(2) Alternate III of the FAR clause at 52.215-2, Audit and Records—Negotiation.
(b) The contracting officer must submit the determinations and findings to the DSPE for submission to the SPE, who will forward the request to the Secretary for the signature, as provided in FAR 25.1001(a)(2)(iii). The submission must include all appropriate documentation.
(c) The Secretary, upon concurring with the contracting officer's proposed determination and findings, will, if required by FAR 25.1001(a)(2)(iii), forward the document to the Comptroller General for concurrence.
(d) The completed determination and findings will be made part of the contract file.
The Buy American Act (41 U.S.C. 10a-d), except as modified by various trade agreements (see FAR Part 25), requires that only domestic construction material be used in the performance of contracts for construction. For solicitations and contracts for construction that contain a FAR clause related to the Buy American Act, the contracting officer shall insert the applicable VAAR clause, with or without an alternate, as shown in Table 825.1102:
38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-1.304.
When a bid bond is required for supplies or services, the phrase “any cost of acquiring the work” in paragraph (e) of the Bid Guarantee clause in FAR 52.228-1 may be modified to refer to the cost of “supplies,” “services,” etc.
(a) The contracting officer must retain, in a safe, certified checks or other negotiable security provided as bid security for the three lowest acceptable bids. After the contract and contract bonds have been signed and approved, the contracting officer must return the certified checks or other negotiable securities either:
(1) In person to the bidder who provides a proper receipt; or
(2) By any method that will provide evidence that the bidder received the security.
(b) The contracting officer should promptly return certified checks or other negotiable security furnished in support of bids, other than those determined to be the three lowest acceptable bids, to the respective bidders either:
(1) In person to the bidder who provides a proper receipt; or
(2) By any method that will provide evidence that the bidder received the security.
(c) The contracting officer will not return commercial bid bonds unless specifically requested to do so by the bidders. If any of the three low bidders request the return of a commercial bid bond, the contracting officer will not return those bid bonds until the contract and contract bonds have been executed by the successful bidder and approved by the contracting officer or all bids have been rejected.
The contracting officer for the applicable contract will furnish copies of payment bonds to a requestor under the provisions of FAR 28.106-6(c).
When performance and payment bonds or payment protection are required, the contract must contain the clause in 852.228-70, Bond premium adjustment.
The DSPE may make the determinations referenced in FAR 28.203-7:
(a) To exclude individuals from acting as surety on bonds; and
(b) To accept bonds from individuals named on the Excluded Parties List System.
(a) Term contracts, or contracts of a continuing nature, for ambulance, automobile and aircraft service, must contain the provision in 852.228-71, Indemnification and insurance.
(b) Paragraph (a) of this section does not apply to emergency or sporadic ambulance service authorized by VA Manual MP-1, Part II, Chapter 3, or other emergency or sporadic vehicle or aircraft services if both of the following conditions exist:
(1) The service is not used solely for the purpose of avoiding entering into a continuing contract.
(2) The services will be obtained from firms known to carry insurance coverage in accordance with State or local requirements.
(a) This subpart sets forth the policies and procedures concerning indemnification of contractors performing contracts covering medical research or development that involve risks of an unusually hazardous nature, as authorized by 38 U.S.C. 7317.
(b) The authority to indemnify the contractor under this subpart does not create any rights to third parties that would not otherwise exist by law.
(c) As used in this subpart, the term “contractor” includes subcontractors of any tier under a contract containing an indemnification provision under 38 U.S.C. 7317. (38 U.S.C. 7317)
(a) The Secretary of Veterans Affairs will make the approval determinations for the indemnification of contractors.
(b) Contracting officers must submit requests for approval, together with all available information, to the DSPE for submission to the SPE, who will forward the request to the Secretary for approval. (38 U.S.C. 7317)
(a) A contract for medical research or development authorized by 38 U.S.C. 7303, may provide that the Government will indemnify the contractor against losses or liability specified in paragraphs (b) and (c) of this section if all of the following apply:
(1) The contract work involves a risk of an unusually hazardous nature.
(2) The losses or liability arise out of the direct performance of the contract.
(3) The losses or liability are not covered by the financial protection required under 828.7103.
(b) The Government may indemnify a contractor for liability (including reasonable expenses of litigation or settlement) to third persons for death, bodily injury, or loss of or damage to property from a risk that the contract defines as unusually hazardous. The indemnification will not cover liability under State or Federal worker's injury compensation laws to employees of the contractor who are both:
(1) Employed at the site of the contract work; and
(2) Working on the contract for which indemnification is granted.
(c) The Government may indemnify the contractor for loss of or damage to property of the contractor from a risk that the contract defines as unusually hazardous.
(d) A contract that provides for indemnification in accordance with this subpart must also require that:
(1) The contractor must notify the contracting officer of any claim or suit against the contractor for death, bodily injury, or loss of or damage to property; and
(2) The Government may choose to control or assist in the defense of any suit or claim for which indemnification is provided in the contract. (38 U.S.C. 7317)
(a) A contractor must have and maintain an amount of financial protection to cover liability to third persons and loss of or damage to the contractor's property that meets one of the following:
(1) The maximum amount of insurance available from private sources.
(2) A lesser amount that the Secretary establishes after taking into consideration the cost and terms of private insurance.
(b) Financial protection may include private insurance, private contractual indemnities, self-insurance, other proof of financial responsibility, or a combination that provides the maximum amount required. If a contractor elects to self-insure, the contractor must provide the contracting officer, before award, proof of financial responsibility up to the maximum amount required. (38 U.S.C. 7317)
40 U.S.C. 121(c) and 48 CFR 1.301-1.304.
This part states the policies and procedures for the following:
(a) Exemptions of alcohol products purchased for use by the VA medical care program from Federal excise taxes.
(b) Specified refund procedures for State and local taxes.
(a)
(1) VA is permitted to procure spirits to be used for non-beverage purposes free of tax under the Alcohol and Tobacco Tax and Trade Bureau (TTB) regulations (see 27 CFR 19.538 and 19.539, 20.241 through 20.246, 22.161 and 22.162, 22.171 through 22.176, 24.293, and 25.181 through 25.185). The use of tax-free alcohol, whiskey, beer, wine, and denatured spirits for non-beverage purposes shall include, but is not limited to, medicinal and scientific purposes.
(2) The Executive Director and Chief Operating Officer, National Acquisition Center, and the Head of the Contracting Activity may sign application permits on Department of Treasury-TTB Form 5150.33, Spirits for Use of The United States. This authority may not be delegated.
(b)
(1) The contracting officer may obtain application forms for tax-free purchases from the TTB Distribution Center, P.O. Box 5950, Springfield, VA 22150-5950. The completed forms must be submitted to the Associate Director (Compliance Operations), Alcohol and Tobacco Tax and Trade Bureau, Washington, DC 20226.
(2) Permits previously issued on Alcohol, Tobacco, and Firearms (ATF) Form 1444, Tax-Free Spirits for Use of United States, remain valid until surrendered or cancelled. A copy of the current ATF Form 1444 or TTB Form 5150.33 must be made available to the supplier with the initial order. The permit number only needs to be referenced on any future orders with the same supplier.
(3) Contracting officers may make purchases of excise tax-free whiskey and alcohol only from qualified distillery plants or bonded dealers. The accountable officer must ensure that accurate records of all receipts, usage, and destruction of tax-free distilled spirits are maintained at each medical center and must conduct a semi-annual physical inventory of the tax-free alcohol in the possession of the medical center (see 27 CFR 22.161 and 22.162).
(c)
(d)
(1) The contracting officer must submit an application for a TTB permit to purchase tax-free beer in letter form to the Director of the nearest TTB Regional Office or to the Director, Alcohol and Tobacco Tax and Trade Bureau, Washington, DC 20226. The following information must be included:
(i) Name and address of facility.
(ii) Specific purpose for which the beer will be used.
(iii) Quantity proposed to buy each month, year, etc.
(iv) Name and address of brewery.
(v) Copy of document authorizing the head of the contracting activity to sign the request (i.e., paragraph (a)(2) of this section).
(2) The contracting officer must obtain a separate permit for each brewery from which beer is to be purchased.
(a) If a vendor refuses to sell at a price exclusive of the State and local tax, the contracting officer must use Standard
(b) A contracting officer may not furnish an SF 1094 to a vendor or use SF 1094 to claim reimbursement from the taxing authority when the total amount of State and local tax on any one purchase is $10 or less.
The contracting officer shall insert the clause at 852.229-70, Sales or use taxes, in solicitations and contracts when items are to be purchased solely from the personal funds of patients.
38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-1.304.
This subpart contains general cost principles and procedures for the determination and allowance of costs in connection with the negotiation and administration of cost reimbursement type contracts for providing vocational rehabilitation, education, and training to eligible veterans under 38 U.S.C. Chapter 31, (referred to as a “Chapter 31 program”).
(a) Except as provided in this section, when the contractor has a customary cost of tuition, the charge to VA may not exceed that charged to similarly circumstanced nonveteran students. If the contractor has more than one standard charge for the same service, the charge to VA must be the lowest price that is offered or published for the entire course, semester, quarter, or term.
(b) VA will not normally pay tuition or incidental fees to institutions or establishments furnishing apprentice or other on-the-job training. VA may elect to pay charges or expenses that fall into either of the following categories:
(1) Charges customarily made by a nonprofit workshop or similar establishment for providing work adjustment training to similarly circumstanced nonveterans even if the trainee receives an incentive wage as part of the training.
(2) Training expenses incurred by an employer who provides on-the-job training following rehabilitation to the point of employability when VA determines that the additional training is necessary.
(c) When Federal funds pay the total cost of instruction, or grants from the Federal Government pay a portion of the cost (e.g., Smith-Hughes or other laws, excluding Federal Land Grant Funds), that subsidy will be taken into consideration in determining the charge to VA. The term “Federal Land Grant Funds” refers to those funds received under the Morrill-Nelson Act (Morrill Acts of 1862 and 1890 and the Nelson amendment of 1907) and section 22 of the Bankhead-Jones Act of 1935.
(d) A veteran who is participating in a Chapter 31 program and receives an award of a fellowship, scholarship, grant-in-aid, assistantship, or similar award will have that award treated according to the following requirements:
(1) If the award limits its use to payment of tuition, fees, or any charge that VA normally pays as part of a Chapter 31 program, VA will pay the portion of the charges remaining after applying the award.
(2) In all other cases, VA will pay the full amount of the tuition, fees, or other charges.
(e) If a State or other Government authority waives a veteran's tuition and fees, VA will reduce its payment of those charges by the amount of the waiver.
(f) VA will pay enrollment fees for registration if both of the following conditions exist:
(1) The institution or training establishment usually makes this charge.
(2) The charge is not more than other students or trainees pay.
Special services or courses are those services or courses that VA requests that are over and above those the institution customarily provides for similarly circumstanced nonveterans and that the contracting officer considers to be necessary for the rehabilitation of the trainee. VA will negotiate the costs of special services or courses before paying them.
(a) Reimbursement for supplies (including books, equipment, or other supplies) will be made as provided in this section.
(b) VA will provide reimbursement for those supplies that all students taking the same course or courses are customarily required to own personally. In addition, VA may provide reimbursement for items that the school does not specifically require for pursuit of the course, but that VA determines are needed because of the demands of the course, general possession by other students, and the disadvantage imposed on a veteran by not having the item. In no instance will VA provide reimbursement for supplies in a greater variety, quality, or amount than required of nonveteran students. In this instance, an item is not considered to be required if it is “requested” or “desirable to have” or “necessary for a future profession or job but not required by the institution of all students in the course”.
(c) When supplies are available in several prices, grades, or qualities, VA will provide reimbursement only for that quality or grade that will meet the requirements.
(d) Partial payment agreements, in which VA shares payment with the veterans, are not allowed.
(e) The institution's costs in connection with a veteran's thesis are considered supplies and are therefore authorized for reimbursement if the veteran's committee chairman, major professor, department head, or appropriate dean certifies that the thesis is a course requirement and the expenses are required to complete the thesis. These expenses may include research expenses, typing, printing, microfilming, or otherwise reproducing the required number of copies.
(f) When the institution operates a bookstore or supply store for all students, reimbursement to the bookstore or supply store for supplies issued to trainees will be no greater than charges made to nonveteran students.
(g) When the institution, training establishment, or employer arranges for stores or other non-institutionally owned establishments to issue supplies to all students and a veteran is to pay the store or establishment for supplies issued to trainees, VA will provide reimbursement for those charges if they are no greater than those nonveterans
(h) Supplies that the institution purchases specifically for trainees will be reimbursed at the net cost to the institution.
(i) When the institution does not provide or arrange for issuance of generally required books, tools and supplies for students attending the facility, the institution, in cooperation with VA, may designate certain stores and establishments to provide generally required books, tools and supplies for veterans pursuing a vocational rehabilitation program. The vendor will be reimbursed in the same manner as for supplies provided or arranged for by the institutions.
(j) When it is customary in a survey class to permit each student to rent books for the subject (commonly referred to as a rental set), and the student is not required to own the books/materials, reimbursement is authorized for the rental charge as long as it does not exceed the charge made to nonveteran students.
(k) Educational and training institutions that furnish supplies to trainees that all students pursuing the same or similar course are required to own personally or obtain may be compensated for furnishing the supplies in an amount not exceeding 10 percent of the allowable charge for the supplies furnished or rented subject to the following conditions:
(1) When the tuition covers the charges for supplies or rentals or a stipulated fee is assessed to all students, handling charges are not allowable.
(2) The handling charge is not allowable for Government-owned books that the institution procures from the Library of Congress.
(a) VA may pay the customary student health fee when payment of the fee is required for similarly circumstanced nonveterans. If payment of the fee is not required for similarly circumstanced nonveterans, payment may be made if it is determined by the Veterans Health Administration that payment is in the best interest of the veteran and the Government.
(b) When the customary student's health fee does not cover medical services or hospital care, but these medical services are available in a school-operated facility or with doctors and hospitals in the immediate area through a prior arrangement, the Veterans Benefits Administration may provide reimbursement for these services in a contract for the services if:
(1) An arrangement is necessary to provide timely medical services for veterans attending the facility under provisions of Chapter 31; and
(2) The general rates established for medical services do not exceed the rates established by the Under Secretary for Health.
(c) VA may reimburse a rehabilitation facility for incidental medical services provided during a veteran's program at the facility.
(a) VA will provide reimbursement for consumable instructional supplies that the institution requires for the instruction of all students, veteran or nonveteran, pursuing the same or comparable course or courses when:
(1) The supplies are entirely consumed in the fabrication of a required project; or
(2) The supplies are not consumed but are of such a nature that they cannot be salvaged from the end product for reuse by disassembling or dismantling the end product.
(b) VA will not provide reimbursement for consumable instructional supplies if any of the following apply:
(1) The supplies can be salvaged for reuse.
(2) The supplies are used in a project that the student has elected as an alternate class project to produce an end product of greater value than that normally required to learn the skills of the occupation, and the end product will become the veteran's property upon completion.
(3) The supplies are used in a project that the institution has selected to provide the student with a more elaborate end product than is required to provide adequate instruction as an inducement to the veteran to elect a particular course of study.
(4) The sale value of the end product is equal to or greater than the cost of supplies plus assembly, and the supplies have not been reasonably used so that the supplies are not readily salvaged from the end product to be reused for instructional purposes.
(5) The end product is of permanent value and retained by the institution.
(6) A third party loans the articles or equipment for repair or improvement and the third party would otherwise pay a commercial price for the repair or improvement.
(7) The number of projects resulting in end products exceeds the number normally required to teach the recognized job operations and processes of the occupation stipulated in the approved course of study.
(8) The cost of supplies is included in the charge for tuition or as a fee designated for such purpose.
VA will provide reimbursement for other services and assistance that may be authorized under provisions of applicable Chapter 31 regulations, including, but not limited to, employment and self-employment services, initial and extended evaluation services, and independent living services.
40 U.S.C. 121(c) and 48 CFR 1.301-1.304.
The SPE is authorized to make determinations that there is substantial evidence that contractors' requests for advance, partial, or progress payments are based on fraud and may direct that further payments to the contractors be reduced or suspended, as provided in FAR 32.006. This authority may not be redelegated.
The
VA personnel must report suspected fraud related to advance, partial, or progress payments to the DSPE and VA Office of the Inspector General. The report must include all available information supporting the suspicion.
(a) Any recommendation from a VA employee through the DSPE to the SPE to reduce or suspend payment to a contractor under FAR 32.006 must address the considerations in FAR 32.006-4(d).
(b) The DSPE shall carry out the responsibilities of the Secretary or designee in FAR 32.006-4(e) to notify the contractor of proposed action under FAR 32.006. The notice of proposed action will be sent to the last known address of the contractor, the contractor's counsel, or agent for service of process, by certified mail, return receipt requested, or any other method that provides signed evidence of receipt. In the case of a business, the notice of proposed action may be sent to any partner, principal, officer, director, owner or co-owner, or joint venture. The contractor will be afforded an opportunity to appear before the DSPE to present information or argument in person or through a representative. The contractor may supplement the oral presentation with written information and argument. The proceedings will be conducted in an informal manner and without the requirement for a transcript. If the DSPE does not receive a reply from the contractor within 30 calendar days, the DSPE will base his or her recommendations on the information available. Any recommendation of the DSPE under paragraph (a) of this section must address the results of this notification and the information, if any, provided by the contractor.
(c) The SPE must provide a copy of each final determination and the supporting documentation to the contractor, the DSPE and the contracting officer. The contracting officer will place a copy of the determination and the supporting documentation in the contract file.
In solicitations and contracts for construction that include the FAR clause at 52.232-5, Payments under Fixed-Price Construction Contracts, the contracting officer shall insert the following clauses:
(a) If the solicitation or contract does not contain a section entitled “Network Analysis System (NAS),” the contracting officer must insert the clause at 852.236-82, Payments under fixed-price construction contracts (without NAS). When the solicitation or contract includes guarantee period services, the contracting officer must use the clause with its Alternate I.
(b) If the solicitation or contract contains a section entitled “Network Analysis System (NAS),” the contracting officer must insert the clause at 852.236-83, Payments under fixed-price construction contracts (including NAS). When the solicitation or contract includes guarantee period services, the contracting officer must use the clause with its Alternate I.
The contracting officer may make the determination that terms and conditions for payment for commercial items are appropriate and customary in the commercial marketplace and are in the best interest of the Government, provided the terms and conditions for payment do not conflict with FAR Subpart 32.2.
As provided in FAR 32.202-1(d), contracting officers must obtain the approval of the DSPE before awarding a contract that includes unusual contract financing. The contracting officer must fully support the request with the reasons why the proposed unusual contract financing is in the best interest of the Government. In addition, contracting officers must not use commercial interim payment or commercial advance payment terms in solicitations or contracts without the approval of the DSPE.
An offeror's financial condition may be considered adequate security to protect the Government's interest when the Government provides contract financing. In assessing the offeror's financial condition, the contracting officer may obtain, to the extent required, the following information to establish the offeror's financial capability and to determine the offeror's financial condition:
(a) A current year interim balance sheet and income statement and balance sheets and income statements for the two preceding fiscal years. The statements should be prepared in accordance with generally accepted accounting principles and must be audited and certified by an independent public accountant or an appropriate officer of the firm.
(b) A cash flow forecast for the remainder of the contract term showing the planned origin and use of cash within the firm or branch performing the contract.
(c) Information on financing arrangements disclosing the availability of cash to finance contract performance, the contractor's exposure to financial crisis, and credit arrangements.
(d) A statement of the status of all State, local, and Federal tax accounts, including any special mandatory contributions.
(e) A description and explanation of the financial effects of any leases, deferred purchase arrangements, patent or royalty arrangements, insurance, planned capital expenditures, pending claims, contingent liabilities, and other financial aspects of the business.
(f) Any other financial information deemed necessary.
(g) A Dun and Bradstreet Report on the company.
Authority to make the determination required by FAR 32.402(c)(1)(iii) and to approve contract terms, as provided by FAR 32.402(e)(1), is delegated to the SPE and is further delegated to the DSPE. Before award, contracting officers must submit a request for approval to use advance payment to the DSPE. The request must include the information required by FAR 32.409-1 and must address the standards for advance payment in FAR 32.402(c)(2).
(a) Under 31 U.S.C. 3324(d)(2), VA allows advance payment for subscriptions or other charges for newspapers, magazines, periodicals, and other publications for official use, notwithstanding the provisions of 31 U.S.C. 3324(a). The term “other publications” includes any publication printed, microfilmed, photocopied or magnetically or otherwise recorded for auditory or visual use.
(b) Under 31 U.S.C. 1535, VA allows advance payment for services and supplies obtained from another Government agency.
(c) Under 5 U.S.C. 4109, VA allows advance payment for all or any part of the necessary expenses for training Government employees in Government or non-Government facilities, including the purchase or rental of books, materials, and supplies or services directly related to the training of a Government employee.
Contracting officers must obtain approval from the DSPE before taking the actions listed in FAR 32.502-2. Full justification and the recommendations of the contracting officer must accompany requests for approval.
(a) Prior to acknowledgement of receipt, in addition to the requirements of FAR 32.805(d), the contracting officer shall obtain legal review of the assignment (see 801.602-75(a)(7)). Upon acknowledgement of receipt, the contracting officer shall:
(1) File the retained copy of the notice of assignment and the certified copy of the original instrument of assignment with the Government Accountability Office copy of the contract; and
(2) Forward a copy of the notice of assignment and instrument of assignment to the local finance office and to the payment office cited in the contract.
(b) Contracting officers must notify field facilities of any recognized assignment of payments for contracts under which payment for articles and services is certified and approved for payment in the field.
(a) When preparing specification packages, contracting officers must give full consideration to the time reasonably required for constructive acceptance or approval of the goods or services and for making invoice payments. Based on this analysis, contracting officers may, when authorized by FAR 32.904, modify the number of days allowed for notifying contractors of defects in invoices or, for construction solicitations, the number of days allowed for payment of invoices specified in the applicable prompt payment clause. Changes, if any, should be made before issuing the solicitation.
(b)(1) For construction solicitations, the analysis specified in paragraph (a) of this section may routinely take more than the 7 days provided in paragraph (a)(2) of the FAR clause at 52.232-27, Prompt Payment for Construction Contracts, to evaluate and return defective progress payment invoices.
(2) It also may take more than the 14 days provided in paragraph (a)(1)(i)(A) of the prompt payment clause to adequately inspect the work, determine the adequacy of the contractor's performance, approve, and pay progress payment invoices.
(3) Contracting officers should consider the following and, if necessary, revise the number of days stated in paragraphs (a)(2) and (a)(1)(i)(A) of the prompt payment clause before issuing construction solicitations (see FAR 32.904(d)(1)(i)):
(i) Recent interest payment history.
(ii) The complexity of the project.
(iii) Workload.
(iv) Work site location.
(4) In no event may the number of days be set in excess of 14 days for return of a defective progress payment invoice or 30 days for payment of the invoice.
(a) The Assistant Secretary for Management may, with the concurrence of the Department of the Treasury office responsible for making payment, authorize the use of EFT mechanisms other than those authorized under FAR 32.1106(a).
(b) The Assistant Secretary for Management may, with the concurrence of the Department of the Treasury office responsible for making payment, authorize the use of EFT for payments to be received by or on behalf of a contractor outside the United States or Puerto Rico or for contracts paid in other than United States currency, as provided in FAR 32.1106(b).
40 U.S.C. 121(c) and 48 CFR 1.301-1.304.
Solicitations must instruct interested parties (see FAR provision 52.233-2) to send a copy of any protest filed with the Government Accountability Office (GAO) to the contracting officer and the appropriate VA Central Office activity as follows:
(a) For contracts to be awarded by the Office of Construction and Facilities Management: Director, Office of Construction and Facilities Management, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420.
(b) For all other contracts: Deputy Assistant Secretary for Acquisition and Materiel Management, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420.
(a)
(2) Protests to the contracting officer must be in writing and addressed where the offer/bid is to be submitted.
(3) Protests requesting an independent review must be in writing and addressed to the Deputy Assistant Secretary for Acquisition and Materiel Management, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420; or, for solicitations issued by the Office of Construction and Facilities Management, to the Director, Office of Construction and Facilities Management, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420.
(4) The following types of protests may be dismissed by VA without
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(b)
(c)
(d)
(e)
(1) If FAR 33.103(f)(3) requires suspension of contract performance, the contracting officer must seek to obtain a mutual agreement with the contractor to suspend performance on a no-cost basis. If unsuccessful, the contracting officer must issue a stop-work order in accordance with contract clause FAR 52.233-3, Protest after Award.
(2) If suspension of contract performance is not required by FAR 33.103(f)(3) and if the contracting officer determines that the award was proper, the contracting officer must furnish the protester a written explanation of the basis for the award that is responsive to the allegations of the protest. The contracting officer will advise the protester that the protester may appeal the determination to one of the following:
(i) The DAS for A&MM.
(ii) The Director, Office of Construction and Facilities Management, in the case of a contract awarded by the Office of Construction and Facilities Management.
(iii) The Comptroller General.
(3) If suspension of contract performance is not required by FAR 33.103(f)(3) but the contracting officer determines that the award is questionable, the contracting officer, after consulting with OGC, will advise the contractor of the protest and invite the contractor to submit comments and relevant information. The contracting officer must submit the case promptly to the DAS for A&MM for advice. The DAS for A&MM may consult with OGC and will either advise the contracting officer of the appropriate action to take, or submit the case to the Comptroller General, through the Assistant Secretary for Management, for a decision. The contracting officer will provide interested parties with a copy of the final decision.
(f)
(a)
(2) When a protest before or after award has been filed with GAO, the contracting officer must submit a report to the DAS for A&MM, or the Director, Office Construction and Facilities Management, as appropriate, within 5 workdays after receipt of verbal or written notice of the protest, whichever occurs first. The report must include a copy of the documentation indicated in FAR 33.104(a)(3).
(3) Contracting officers are responsible for the notification procedures outlined in FAR 33.104(a)(4).
(b)
(c)
(a) The contracting officer shall insert the provision at 852.233-70, Protest content/alternative dispute resolution, in each solicitation expected to exceed the simplified acquisition threshold.
(b) The contracting officer shall insert the provision at 852.233-71, Alternative protest procedure, in solicitations expected to exceed the simplified acquisition threshold.
The contracting officer must refer matters relating to suspected fraudulent claims to the Office of Inspector General for investigation and referral to the Department of Justice. The contracting officer may not initiate any collection, recovery, or other settlement action while the matter is in the hands of the Department of Justice without first obtaining the concurrence of the U.S. Attorney concerned, through the Office of the Inspector General.
(a) When a dispute cannot be settled by agreement and a final decision under the Disputes clause of the contract is necessary, the contracting officer must furnish the contractor the contracting officer's final decision in the matter.
(b) The contracting officer must identify the decision, in writing, as a final decision and include a statement of facts in sufficient detail to enable the contractor to fully understand the decision and the basis on which it was made. The decision must set forth those facts relevant to the dispute with which the contractor and the contracting officer are in agreement, and as clearly as possible, the area of disagreement.
(c) For VA contracts, the Board of Contract Appeals noted in FAR 33.211 is the Civilian Board of Contract Appeals (CBCA), 1800 F Street, NW., Washington, DC 20405.
(a) When a contracting officer receives notice of appeal in any form, the contracting officer must do the following:
(1) Annotate the appeal with the date of mailing (or date of receipt, if otherwise conveyed).
(2) Within 10 days, forward the original notice of appeal and a copy of the contracting officer's final decision letter to the OGC.
(3) Concurrently transmit copies of the notice of appeal and the final decision letter to the DAS for A&MM. (In cases of construction contracts administered by the Office of Construction and Facilities Management, copies of the appeal and the final decision letter need not be transmitted to the DAS for A&MM but instead should be sent to the Director, Office of Construction and Facilities Management.)
(b) Within 20 days of receipt of an appeal, or advice that an appeal has been filed, the contracting officer must assemble and transmit to the OGC, an appeal file consisting of all documents pertinent to the appeal, including all of the following:
(1) The decision and findings of fact that are being appealed.
(2) The contract, including specifications and pertinent amendments, plans and drawings.
(3) All correspondence between the parties pertinent to the appeal, including the letter or letters of claim in response to which the decision was issued.
(4) Transcripts of any testimony taken during the course of proceedings and affidavits or statements of any witnesses on the matter in dispute made prior to the filing of the notice of appeal.
(5) Any additional information considered pertinent.
(a) As provided in FAR 33.213, contracting officers shall use FAR clause 52.233-1, Disputes, with its Alternate I. Clause 52.233-1 requires the contractor to continue performance in accordance with the contracting officer's decision in the event of a claim arising
(b) In the event of a dispute not arising under, but relating to, the contract, if the contracting officer directs continued performance, the contracting officer may consider providing financing for the continued performance, provided that the Government's interests are properly secured. The contracting officer will contact the DAS for A&MM and OGC for advice prior to authorizing such financing.
Contracting officers and contractors are encouraged to use alternative dispute resolution (ADR) procedures. CBCA guidance on ADR may be obtained at
The contracting officer must use the clause at 52.233-1, Disputes, with its Alternate I (see 833.213).
40 U.S.C. 121(c) and 48 CFR 1.301-1.304.
(a) The procedures described in Part 811 are applicable to construction specifications.
(b) During the design stage, contract architect-engineers must not use “brand name or equal” or other restrictive specifications without the prior written approval of the contracting officer. The contracting officer must inform prospective architect-engineers of this requirement during the negotiation phase, prior to award of a contract for design.
(c) If VA has determined that only one product will meet the Government's minimum needs and VA will not allow the submission of “equal” products, the contracting officer must include the clause found at 852.236-90, Restriction on Submission and Use of Equal Products, in the solicitation and complete the clause by listing the items to which the clause applies. This clause places bidders on notice that the “brand name or equal” provisions of the clause found at FAR 52.236-5, Materials and Workmanship, and any other provision that may authorize the submission of an “equal” product, will not apply to the specific items listed.
The overall amount of the Government estimate must not be disclosed until after award of the contract. After award, the contracting officer may disclose the overall amount upon request.
In lieu of the estimated price ranges described in FAR 36.204, the contracting officer must identify the magnitude of a VA project in advance notices and solicitations in terms of one of the following price ranges:
(a) Less than $25,000.
(b) Between $25,000 and $100,000.
(c) Between $100,000 and $250,000.
(d) Between $250,000 and $500,000.
(e) Between $500,000 and $1,000,000.
(f) Between $1,000,000 and $2,000,000.
(g) Between $2,000,000 and $5,000,000.
(h) Between $5,000,000 and $10,000,000.
(i) Between $10,000,000 and $20,000,000.
(j) Between $20,000,000 and $50,000,000.
(k) Between $50,000,000 and $100,000,000.
(l) More than $100,000,000.
The contracting officer may include a liquidated damages provision in a construction contract when the criteria of FAR 11.501 and 811.501 are met. If partial performance may be accepted and used to the advantage of the Government, the contracting officer must include the clause substantially as set forth in 852.211-74, Liquidated Damages, in addition to the clause set forth in FAR 52.211-12.
(a) When the contracting officer considers it necessary or advantageous to award a contract for construction of a design-bid-build project, as defined at FAR 36.102, to a firm or person that designed the project, the contracting officer must request prior approval from one of the following:
(1) The facility or VISN director, as appropriate, or, for National Cemetery Administration contracts, the Director, Technical Support Service, for contracts involving nonrecurring maintenance (NRM) funds.
(2) The Director, Office of Construction and Facilities Management, for contracts involving construction funds.
(b) The contracting officer must furnish complete justification in the request.
(c) This section does not apply to design-build contracts, as defined at FAR 36.102.
The contracting officer must provide to the contractor a notice of award (letter of acceptance) for any contract award in excess of $25,000.
(a) The contracting officer must provide construction contractors with a written notice to proceed for the work. A notice to proceed will normally be sent only after the contractor has provided performance and payment bonds or payment protection and the completed contract forms, where applicable, and the contracting officer has accepted them. If the urgency of the work or other proper reason requires the contractor to begin work immediately, the contracting officer may include in the award letter a notice to proceed, with the reservation that payments are contingent upon receipt and approval of the required bonds or payment protection.
(b) If the contract provides for liquidated damages, the contracting officer must send the notice to proceed by certified mail, return receipt requested, or any other method that provides signed evidence of receipt. The notice to proceed will advise the contractor that the work must be completed within __ (insert contract time for completion) calendar days from the date of receipt shown on the certified mail receipt card returned by the post office or on the proof of delivery provided by the delivery service.
(c) If the contract does not provide for liquidated damages, certified mail is not required. In notices to proceed for these contracts, the contracting officer must establish a date for completion that takes into consideration the time required for the notice to arrive by regular mail.
(d) At the time the notice to proceed is sent to the contractor, the contracting officer must furnish a copy to the resident engineer or the Chief, Engineering Service.
(e) The contracting officer must file a copy of the notice to proceed with copy A of the contract. When certified mail or other method of certified delivery is used, the contracting officer must attach the certified mail receipt card returned by the post office or the proof of delivery provided by the delivery service to the copy of the notice to proceed. The contracting officer must file copies of the notice to proceed with copies C and D of the contract after the
(a) The clauses and provisions prescribed in this subpart are set forth for use in fixed-price construction contracts in addition to those in FAR Subpart 52.2.
(b) Additional clauses and provisions not inconsistent with those in FAR Subparts 36.5 and 52.2 and those prescribed in this subpart are authorized when determined necessary or desirable by the contracting officer, and when approved as provided in Subpart 801.4.
(c) Clauses and provisions that differ from those contained in FAR Subparts 36.5 and 52.2 and this subpart, but considered essential to the procurement of VA requirements, shall not be used unless the deviation procedure set forth in Subpart 801.4 has been complied with.
The contracting officer shall insert the clause at 852.236-72, Performance of work by the contractor, in solicitations and contracts for construction that contain the FAR clause at 52.236-1, Performance of Work by the Contractor. When the solicitations or contracts include a section entitled “Network Analysis System (NAS),” the contracting officer must use the clause with its Alternate I.
The contracting officer must insert the clause at 852.236-87, Accident Prevention, in solicitations and contracts for construction that contain the clause at FAR 52.236-13, Accident Prevention.
The contracting officer shall insert the clause at 852.236-71, Specifications and drawings for construction, in solicitations and contracts for construction that include the FAR clause at 52.236-21, Specifications and Drawings for Construction.
The contracting officer shall insert the clause at 852.236-76, Correspondence, in solicitations and contracts for construction expected to exceed the micro-purchase threshold for construction (currently $2,000).
The contracting officer shall insert the clause at 852.236-77, Reference to “standards,” in solicitations and contracts for construction expected to exceed the micro-purchase threshold for construction.
The contracting officer shall insert the clause at 852.236-78, Government supervision, in solicitations and contracts for construction expected to exceed the micro-purchase threshold for construction.
The contracting officer shall insert the clause at 852.236-79, Daily report of workers and materials, in solicitations and contracts for construction expected to exceed the simplified acquisition threshold. The contracting officer may, when in the best interest of the Government, insert the clause in solicitations and contracts for construction when the contract amount is expected to be at or below the simplified acquisition threshold.
The contracting officer shall insert the clause at 852.236-80, Subcontracts and work coordination, in solicitations and contracts for construction expected to exceed the micro-purchase threshold for construction. When the solicitations or contracts are for new construction work with complex mechanical-electrical work, the contracting officer may use the clause with its Alternate I.
The contracting officer shall insert the clause at 852.236-84, Schedule of work progress, in solicitations and contracts for construction that are expected to exceed the micro-purchase threshold for construction and that do not contain a section entitled “Network Analysis System (NAS).”
The contracting officer shall insert the clause at 852.236-85, Supplementary labor standards provisions, in solicitations and contracts for construction that are expected to exceed the micro-purchase threshold for construction.
The contracting officer shall insert the clause at 852.236-86, Workers' compensation, in solicitations and contracts for construction that are expected to exceed the micro-purchase threshold for construction.
(a) The contracting officer shall insert the clause at 852.236-88, Contract changes—supplement, in solicitations and contracts for construction that are expected to exceed the micro-purchase threshold for construction. (This section has been promulgated as a deviation from the FAR as provided in 801.4.)
(b) When negotiated changes exceed $500,000, paragraph (a) of the clause at 852.236-88 will apply. Because paragraph (a) does not provide ceiling rates for indirect expenses, the contractor must furnish cost breakdowns and other supporting data on its rates for indirect expenses as part of its price proposal. The contracting officer must negotiate the rates for indirect expenses with the contractor and may request an audit in accordance with FAR 15.404-2.
(c) When the negotiated change will be $500,000 or less, paragraph (b) of the clause at 852.236-88 will apply. Because the indirect cost rates in paragraph (b) of the clause at 852.236-88 are ceiling rates, the contracting officer must negotiate indirect expense rates within the ceiling limitations.
The contracting officer shall insert the clause at 852.236-91, Special notes, in solicitations and contracts for construction that are expected to exceed the micro-purchase threshold for construction.
(a) In addition to the evaluation criteria set forth in FAR 36.602-1, the evaluation board must consider the factors set forth in paragraph (b) of this section as they apply to the project or purpose of the selection. Values must be assigned to each factor in determining the relative qualifications of the firms identified as qualified through the pre-selection process. The board may adjust the assigned values after its discussions.
(b) The following factors must be considered:
(1) Reputation and standing of the firm and its principal officials with respect to professional performance, general management, and cooperativeness.
(2) Record of significant claims against the firm because of improper or incomplete architectural and engineering services.
(3) Specific experience and qualifications of personnel proposed for
(a) The Director, Office of Construction and Facilities Management, shall appoint an evaluation board to select architect-engineer contractors for Office of Construction and Facilities Management projects. The Director, Office of Construction and Facilities Management, shall appoint an evaluation board to select architect-engineer contractors for National Cemetery Administration projects. The facility or VISN director, as appropriate, shall appoint an evaluation board to select architect-engineer contractors for field facility projects.
(b) The Director, A/E Evaluation and Program Support Service, will chair the evaluation board for Office of Construction and Facilities Management architect-engineer contracts. The Chair may designate the Project Director or Project Manager to act as Chair when necessary. When appointing the board's members, the Director, Office of Construction and Facilities Management, must include the appropriate Project Manager and as many qualified professional architects or engineers from the Office of Construction and Facilities Management technical services as may be considered appropriate for the particular project. The Director, Office of Construction and Facilities Management may designate additional members from the Office of Construction and Facilities Management or from other Department administrations and staff offices when appropriate.
(c) The Director, Office of Construction and Facilities Management, shall ensure that the board consists of no fewer than three members, one of whom must be a National Cemetery Administration senior level contracting officer. The Director shall designate one of the board members as the Chair.
(d) The evaluation board for a VA field facility must consist of no fewer than two members, one of whom will be the HCA (or the senior contracting officer at the facility if there is no HCA on site) and the other will be the Chief, Engineering Service, or their alternates. Where a facility has two or more engineers on its staff, the facility or VISN director must appoint an additional engineer to the board. The Chair of the board will be the senior engineer.
The Director, Office of Construction and Facilities Management (for Central Office contracts), the Director, Office of Construction Management (for National Cemetery Administration contracts), and the facility or VISN director (for field facility contracts), as appropriate, or persons acting in those capacities, are designated as the approving officials for the recommendations of the respective evaluation boards.
Either of the procedures provided in FAR 36.602-5 may be used to select firms for architect-engineer contracts that are not expected to exceed the simplified acquisition threshold.
The Director, Office of Construction and Facilities Management, for Central Office; the Director, Office of Construction Management, for National Cemetery Administration; and the Chief, Engineering Service, for field facilities, are responsible for collecting Standard Forms 330 and maintaining a data file on architect-engineer qualifications.
To assure that the fee limitation is not violated, the contracting officer must maintain suitable records to be able to isolate the amount in the total fee to which the 6-percent limitation applies.
(a) When the contract price is estimated to be $50,000 or more, the contracting officer must use VA Form 10-6298, Architect-Engineer Fee Proposal, to obtain the proposal and supporting cost data from the proposed contractor and subcontractor in the negotiation of an architect-engineer contract for design services.
(b) In obtaining architect-engineer services for research study, seismic study, master planning study, construction management and other related services contracts, the contracting officer must use VA Form 10-6298 supplemented or modified as needed for the particular project type.
(a) Where negotiations with the top-rated firm are unsuccessful, the contracting officer shall, after authorization by the Director, Office of Construction and Facilities Management, the Director, Office of Construction Management, or the facility or VISN director, as appropriate, terminate the negotiations and undertake negotiations with the firm next in order of preference.
(b) The contracting officer shall submit a recommendation for award of the contract at the negotiated fee to the Director, Office of Construction and Facilities Management, the Director, Office of Construction Management, or the facility or VISN director, as appropriate. A copy of the negotiation memorandum prepared in accordance with FAR 15.406-3 and, whenever a field pricing report has been received, a copy of the report must accompany the recommendation.
(a) The total cost of the architect or engineer services contracted for must not exceed 6 percent of the estimated cost of the construction project plus any fees for related services and activities such as those shown in paragraph (c) of this section.
(b) To support project submissions, the engineering officer or project engineer must use VA Form 10-1193, Application for Health Care Facility Project, and Form 10-6238, EMIS Construction Program Estimate Worksheet, and must show the proposed technical services where necessary and applicable.
(c) The 6 percent fee limitation does not apply to the following architect or engineer services:
(1) Investigative services including but not limited to:
(i) Determination of program requirements, including schematic or preliminary plans and estimates;
(ii) Determination of feasibility of proposed project;
(iii) Preparation of measured drawings of existing facility;
(iv) Subsurface investigation;
(v) Structural, electrical, and mechanical investigation of existing facility; and
(vi) Surveys: topographic, boundary, utilities, etc.
(2) Special consultant services that are not normally available in organizations of architects or engineers and that are not specifically applied to the actual preparation of working drawings or specifications of the project for which the service are required.
(3) Other:
(i) Reproduction of approved designs through models, color renderings, photographs, or other presentation media;
(ii) Travel and per diem allowances other than those required for the development and review of working drawings and specifications;
(iii) Supervision or inspection of construction, review of shop drawings or samples, and other services performed during the construction phase; and
(iv) All other services that are not an integral part of the production and delivery of plans, designs, and specifications.
(4) The cost of reproducing drawings and specifications for bidding and their distribution to prospective bidders and plan file rooms.
38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-1.304.
When the contracting officer determines that legal assistance is necessary in determining whether a proposed service contract is for personal or non-personal services, the contracting officer will request a legal opinion from the appropriate Regional Counsel.
The contracting officer shall insert the clause at 852.237-70 Contractor responsibilities, in solicitations and contracts for services.
Contracting officers shall include the clause at 852.271-70, Nondiscrimination in services provided to beneficiaries, in all solicitations and contracts covering services provided to eligible beneficiaries.
The definition of advisory and assistance services includes, in addition to examples listed in FAR 37.203, services to obtain peer review of research proposals.
The contracting officer shall insert the clause at 852.237-7, Indemnification and medical liability insurance, in lieu of FAR Clause 52.237-7, in solicitations and contracts for nonpersonal health-care services, including contracts awarded under the authority of 38 U.S.C. 7409, 38 U.S.C. 8151-8153, and part 873. The contracting officer may include the clause in bilateral purchase orders for nonpersonal health-care services awarded under the procedures in FAR Part 13 and Part 813.
This subpart establishes the policies and procedures governing the procurement of funeral and burial services for deceased beneficiaries of VA, as provided in 38 U.S.C. 2302, 2303, and 2308.
Contracting officers will establish, in coordination with cognizant Chief, Medical Administration Service (MAS) personnel or other personnel designated by the facility director to perform these functions, a list of funeral directors capable of performing the burial services specified in 837.7003. The contracting officer will attempt to establish a commitment to perform these services within the statutory limitation of $300 (see 38 U.S.C. 2302). Each funeral director must be fully licensed in the jurisdiction in which the business operates. If there has been no prior experience with the funeral director that would ensure the adequacy of the funeral director's services and casket, arrangements will be made before contract negotiation to inspect the premises and the casket to be provided, as well as to check with the local business bureau and/or Chamber of Commerce. (38 U.S.C. 2302)
(a) When a veteran dies while receiving care in a VA health care facility or in a non-VA institution at VA's expense, and the decedent's remains are unclaimed, the Chief, MAS, or the person designated by the facility director to perform these functions, will forward to the HCA a properly executed VA form 10-2065, Funeral Arrangements, requesting that funeral and burial services for the deceased be procured.
(b) The contracting officer will enter into negotiations with local funeral directors to procure a complete funeral and burial service within the statutory allowance of $300. The purchase order must list the specific services to be provided. The services must consist of the following:
(1) Preparation of the body, embalming.
(2) Clothing.
(3) Casket. (The casket, at a minimum, must be constructed from thick, strong particle board and must be of sufficient strength to support the weight of an adult human body. Cardboard or press paper or similar materials are not acceptable.)
(4) The securing of all necessary permits.
(5) Ensuring that a United States flag (provided the funeral director in accordance with M-1, Part I, paragraph 14.40) accompanies the casket to the place of burial.
(c) An additional allowance for transportation of the body to the place of burial is provided in 38 U.S.C. 2308. This allowance will cover the transportation cost of shipment of the body by common carrier or by hearse from the VA facility to the funeral home and to the place of burial, any charges for an outside shipping box, and the charges for securing all necessary permits for removal or shipment of the body. These costs are not chargeable against the $300 allowance.
(d) In accordance with M-1, Part I, paragraph 14.37, the contracting officer will designate the Chief, MAS, or the person designated by the facility director to perform these functions, to be responsible for the medical inspection of the mortuary services performed and inspection of the merchandise furnished. This designee will also be responsible for certifying receipt on the receiving report.
(e) The HCA will assist the Chief, MAS, or the person designated by the facility director to perform these functions, in developing the local procedures specified in M-1, Part I, paragraph 14.37c. (38 U.S.C. 2302, 2303, and 2308)
(a) VA may make arrangements and assume expenses for local burial under separate contractual agreement when:
(1) A person dies under VA care who is not legally entitled to such care at VA's expense;
(2) No relatives or friends claim the remains; and
(3) The municipal, county, or State officials refuse to provide for final disposition.
(b) When the contracting officer cannot obtain a full and complete funeral and burial service as prescribed in 837.7003 within the statutory allowance, before taking any further action, the contracting officer will secure from the facility or VISN director, as appropriate, a written determination that VA must accomplish the disposition of the remains as an administrative necessity. The facility director will also authorize in writing the expenditure of such additional funds as may be necessary for this purpose.
(c) The contracting officer will make the facility director's determination and authorization a part of the contract file. (38 U.S.C. 2302)
Requests for information on the disposition of the unclaimed remains of a veteran whose death occurs while not under the direct care or treatment of VA will be referred to the Veterans Services Officer for processing in accordance with M27-1, Part II.
40 U.S.C. 121(c) and (d); and 48 CFR 1.301-1.304.
This part prescribes procedures for obtaining delegations of authority to award contracts for utility connection charges and provides guidance on review requirements for such proposed contracts.
(a) The Assistant Commissioner for Procurement, General Services Administration (GSA), has delegated the Secretary of Veterans Affairs authority to enter into public utility contracts for connection charges for utility services.
(b) Except as provided in paragraph (a) of this section, the authority to award all other contracts for utility services, as defined in FAR 41.101, is vested in GSA (see FAR 41.103). VA contracting officers who wish to award local contracts for utility services, other than for connection charges, must first obtain a delegation of authority to award such contracts from GSA. Contracting officers shall submit requests for delegation of authority directly to GSA.
(c) Any authority described in paragraphs (a) or (b) of this section delegated to the Secretary is further delegated to the SPE and is further delegated to the DSPE and to VA contracting officers within the limits of their warrants.
As required by 801.602-71, contracting officers must submit solicitations and proposed agreements for utility services exceeding $50,000 in total costs to the appropriate Acquisition Resources Service office for technical and legal review.
40 U.S.C. 121(c) and 48 CFR 1.301-1.304.
This part applies to all contracts, whether awarded through sealed bidding or negotiation.
(a) Contracting officers may use the support services of other agencies to the extent feasible. Examples of such services include: pre-award surveys; quality assurance and technical inspection of contract items; and review of contractors' procurement systems. Contracting officers obtaining support services from any other Government department or agency must do so on the basis of an approved negotiated interagency support agreement.
(b) An interagency support agreement is a written instrument of understanding between the parties to the agreement. The agreement should clearly state the following:
(1) The accord reached between the two parties involved, especially the obligations assumed and the rights granted each party.
(2) The resources that both the supplying and receiving parties will provide.
(3) The funding and reimbursement arrangements.
(4) Clauses permitting revisions, modifications, or cancellation of the agreement.
(a) When required, contracting officers shall request the assistance of the VA Office of the Inspector General (OIG), Office of Contract Review, to provide pre- and post-award audit, review, and advisory services associated with the award or modification of:
(1) Federal Supply Schedule and other contracts awarded by the VA National Acquisition Center;
(2) Scarce medical specialist or sharing contracts awarded under the authority of 38 U.S.C. 7409 or 8153, and;
(3) Claims involving such contracts.
(b) Contracting officers may request the assistance of either the VA OIG Office of Contract Review or the Defense Contract Audit Agency (DCAA) to provide pre- and post-award audit, review, and advisory services associated with other types of contracts or claims.
(a) Except when the quick-closeout procedures described in FAR 42.708 are used, contracting officers must request audits on proposed final indirect cost rates and billing rates for use in cost
(b) When the quick closeout procedures are used, the contracting officers must perform a review and validation of the contractor's data for accuracy and reasonableness of the proposed rates for negotiating the settlement of indirect costs for a specific contract.
If a contracting officer determines that costs should be disallowed during the performance of a cost reimbursement, fixed-price incentive, or fixed-price redetermination contract exceeding the thresholds specified in FAR 15.403-4, the contracting officer must request audit assistance. The VA OIG shall conduct audits of contracts for health care resources and contracting officers shall request such audits directly from that office. For all other types of contracts, the contracting officer must obtain an audit control number from Acquisition Resources Service and send a formal request to conduct the audit directly to the nearest Defense Contract Audit Agency (DCAA) office, referencing the audit control number and the project number (if any).
Contracting officers may approve or disapprove contractors' vouchers for payment and process them to the servicing fiscal office. Such approval or disapproval must be within the limitations of the contracting officer's warrant and the contract for which the voucher is submitted must be within the contracting officer's delegation of contracting authority.
Before execution of novation and change-of-name agreements, contracting officers must submit all supporting agreements and documentation to the OGC for review as to legal sufficiency.
38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-1.304.
(a) The contracting officer shall insert the clause at 852.246-70, Guarantee, in solicitations for the acquisition of equipment.
(b) If it is industry policy to furnish, but not install, replacement material and parts at the contractor's expense, the last sentence of the clause at 852.248-70 will be changed to indicate that cost of installation shall be borne by the Government. Where it is industry policy to guarantee components for the life of the equipment (e.g., crystals in transmitters and receivers in radio communications systems) or to require that highly technical equipment be returned to the factory (at the contractor's or the Government's expense) for replacement of defective materials or parts, then the clause will be revised to be compatible with such policy.
The contracting officer shall include a “Rejected Goods” contract clause in solicitations and contracts as follows:
(a) Except as provided in paragraph (b) of this section, insert the clause at 852.246-71, Inspection, in solicitations and contracts for the acquisition of supplies or equipment.
(b) In solicitations and contracts for packing house and dairy products, bread and bakery products, and for fresh and frozen fruits and vegetables, insert the Alternate I clause at 852.246-71, Inspection.
The contracting officer shall insert the clause at 852.246-72, Frozen processed foods, in solicitations and contracts for frozen processed foods.
The contracting officer shall insert the clause at 852.246-73, Noncompliance with packaging, packing, and/or marking requirements, in non-commercial item solicitations and contracts for supplies or equipment where there are special packaging, packing and/or marking requirements. The clause may be used in commercial item acquisitions if a waiver is approved in accordance with FAR 12.302(c) and 812.302.
The contracting officer shall insert the clause at 852.236-74, 852.236-74, Inspection of construction, in solicitations and contracts for construction that include the FAR clause at 52.246-12, Inspection of Construction.
(a) Before issuing a solicitation for subsistence, the contracting officer must determine whether:
(1) Representatives of the U.S. Department of Agriculture (USDA) or the Department of Commerce will inspect for specification compliance before shipment; or
(2) Personnel of the purchasing activity will inspect for specification compliance at the time of delivery.
(b) The contracting officer must indicate the time and place of inspection in the solicitation.
(c) Because the requirement for USDA or Department of Commerce inspections and certifications result in additional contractor costs that may be ultimately reflected in bid prices, the contracting officer, in consultation with the Chief, Nutrition and Food Service, must evaluate the need for such inspections. The evaluation must include the following:
(1) The quality assurance already provided by other mandatory inspection systems.
(2) The proposed suppliers' own quality control system.
(3) Experience with the proposed suppliers.
(4) The pre-qualifying of the suppliers' quality assurance systems
(5) The cost of the inspections.
(d) When the contracting officer indicates that either the USDA or the Department of Commerce will conduct the inspection, the contracting officer must also provide in the solicitation that the contractor is responsible for all of the following:
(1) Arranging and paying for inspection services.
(2) Obtaining from the inspectors a certificate indicating that the product complies with specifications.
(3) Assuring that the certificate, or copy, accompanies the shipment or is furnished to the receiving installation before shipment, or notifying the installation when the certificate is not immediately available.
(4) Seeing that acceptable products are covered by an inspection agency checkloading certificate or stamped by the inspector as prescribed by the contracting officer.
(5) Furnishing samples for inspection at the contractor's expense.
(6) Indicating the address where inspection will occur.
(e) The contracting officer must furnish a copy of the purchase document to the inspecting activity.
(a) When the amount of an item to be purchased will not exceed 500 pounds per delivery, the contracting officer may purchase the following without reference to the specifications in Part IV of the Federal Supply Catalog, Stock List, FSC Group 89, Subsistence, Publication No. C8900-SL, and the USDA inspection requirements:
(1) Butter.
(2) Cheese (except cottage cheese).
(3) Sausage.
(4) Meat food products*.
(5) Bacon, smoked.
(6) Bacon, Canadian style.
(b) When the items listed in paragraph (a) of this section are procured together with items that are not exempt, the contracting officer must include the following in the solicitation:
Items * * * are not required to be in accordance with the specifications contained in Part IV of the Federal Supply Catalog, Stock List, FSC Group 89, Subsistence, Publication No. C8900-SL, and the special USDA inspection is not required. VA will inspect for quality and condition upon delivery at destination. These items are, however, subject to the quality controls stated herein.
(c) As appropriate, the contracting officer must include the following statements in each invitation for bid, request for proposal, quotation, or purchase order:
(1) Butter. This product must be graded by the USDA and labeled “Grade A” or the grade specified herein.
(2) Sausage and meat food products.*
(i) This product must be a high commercial product and must have been prepared in a federally inspected plant and bear the USDA establishment number stamp evidencing that it is sound, healthful, wholesome, and fit for human consumption; and
(ii) This product must bear a label complying with the Federal Food, Drug and Cosmetic Act that requires the listing of all ingredients in the order of their predominance.
(3) Bacon, smoked; and bacon, Canadian style. This product must be a high commercial product and must have been prepared in a federally inspected plant and bear the USDA establishment number stamp evidencing that it is sound, healthful, wholesome, and fit for human consumption.
(d) When using a “brand name or equal” purchase description, the contracting officer must list every brand name item that is known to be acceptable and available in the area.
* “Meat food products” means processed foods containing meat in substantial proportion and other listed ingredients including seasoning, e.g., frankfurters, coldcuts. Whole or prefabricated meats, e.g., pork chops, hamburger, are considered meats, not meat food products.
The contracting officer may use a commercial organization for inspection and grading services when the contracting officer determines that all of the following conditions exist:
(a) The results of a technical inspection or grading are dependent upon the application of scientific principles or specialized techniques.
(b) VA is unable to employ the personnel qualified to properly perform the services and is unable to locate another Federal agency capable of providing the service.
(c) The inspection or grading results issued by a private organization are essential to verify the acceptance or rejection of a special commodity.
(d) The services may be performed without direct Government supervision.
The following officials must make the determinations required in 846.470:
(a) The Director, Office of Construction and Facilities Management, for those items and services for which purchase authority has been assigned to the Office of Construction and Facilities Management.
(b) The Director, Veterans Canteen Service, for those items and services purchased, or contracted for, by the Veterans Canteen Service (except those items purchased from VA supply sources).
(c) The DSPE for all other supplies, equipment, and services.
As provided in 846.472-1 and 846.472-2, management brokers or qualified fee or staff inspectors must conduct a final inspection of all repair programs upon completion. In addition, the broker or inspector must conduct intermediate or progress inspections on extensive or technical jobs as specified in the contract.
(a) Generally, the management broker must make any required inspections for repairs of $1,000 or less. A qualified fee or staff inspector must make any required inspection for repairs of $1,000 or less if the contracting officer:
(1) Has not assigned the property to a management broker; or,
(2) Has determined that the nature of the repairs requires supervision by a technician.
(b) There is no form prescribed for inspection of repairs of $1,000 or less, but the inspector may use VA Form 26-1839, Compliance Inspection Report. Regardless of the form in which the report is submitted, the inspector must identify the contractor, property, and the repair program and provide sufficient detail to enable the contracting officer to make a determination that the work is being performed satisfactorily or completed in accordance with the terms of the contract.
(a) A qualified fee or staff inspector must make the final inspection and any intermediate or progress inspections on repairs exceeding $1,000.
(b) The inspector must make the report of inspection on VA Form 26-1839, Compliance Inspection Report. The inspector must identify the property, contractor, and repair program and provide sufficient detailed information to enable the contracting officer to make a determination that the work is being performed satisfactorily or that it has been completed in accordance with the terms of the
The contracting officer shall insert the clause at FAR 52.246-21, Warranty of Construction, in solicitations and contracts for construction that are expected to exceed the micro-purchase threshold.
The contracting officer shall insert the clause at 852.246-74, Special warranties, in solicitations and contracts for construction that include the FAR clause at 52.246-21, Warranty of Construction.
The contracting officer shall insert the clause at 852.246-75, Warranty of construction—guarantee period services, in solicitations and contracts for construction that include the FAR clause at 52.246-21, Warranty of Construction, and that also include guarantee period services.
40 U.S.C. 121(c) and 48 CFR 1.301-1.304.
Shipments falling within this category must be shipped on a bill of lading, except as provided in 41 CFR 102-118.40. Contracting officers must comply with 41 CFR Parts 102-117 and 102-118. Contact the Traffic Manager for assistance in determining when to issue the applicable bill of lading (VA Commercial Bill of Lading for domestic use or Government Bill of Lading for international shipments and domestic off-shore shipments) and for all freight estimates.
(a) The delivery terms will be stated as “f.o.b. origin, transportation prepaid, with transportation charges to be included on the invoice,” under any of the following circumstances:
(1) When it is determined that an f.o.b. origin purchase or delivery order will have transportation charges that do not exceed $250 and the occasional exception does not exceed that amount by more than $50.
(2) Single parcel shipments via express, courier, small package, or similar carriers, regardless of shipping cost, if the shipped parcel weighs 70 pounds or less and does not exceed 108 inches in length and girth combined.
(3) Multi-parcel shipments via express, courier small package, or similar carriers for which transportation charges do not exceed $250 per shipment.
(b) Orders issued on VA Form & 90-2138, Orders for Supplies or Services, must identify shipping instructions on the reverse side of the form. When VA Form 90-2138 is not used, the vendor must do the following:
(1) Consistent with the terms of the contract, pack, mark, and prepare shipment in conformance with carrier requirements to protect the personal property and assure the lowest applicable transportation charge. Follow package specifications found in the National Motor Freight Classification 100 Series.
(2) Add transportation charges as a separate item on the invoice. The invoice must include the following certification: “The invoiced transportation charges have been paid and evidence of such payment will be furnished upon the Government's request.”
(3) Not include charges for insurance or valuation on the invoice unless the order specifically requires that the shipment be insured or the value be declared.
(4) Not prepay transportation charges on the order if such charges are expected to exceed $250. Ship collect and annotate the commercial bill of lading, “To be converted to VA Commercial Bill of Lading.” Contact the VA Traffic Manager for routing instructions and freight estimate.
(c) Each contracting officer is responsible for:
(1) Obtaining the most accurate estimate possible of transportation charges.
(2) Using the authority in paragraph (a) of this section only when consistent with the circumstances in that paragraph.
(d) When, in accordance with FAR Subpart 28.3 and FAR 47.102, a shipment must be insured or the value declared, the contracting officer will specifically instruct the vendor to do so on the order when a written order is used. If the order is oral, the vendor must annotate all copies of the purchase request to show that the insurance/declared value was specifically requested.
When the VA National Acquisition Center contracts with multiple bidders to provide items directly to VA field installations on an f.o.b. origin basis, the evaluation of bids must follow specific procedures. To place each bid on an equal basis, even though specific quantities required by each facility cannot be predetermined, the contracting officer must use an anticipated demand factor in proportion to the number of hospital beds or patient workload. The clause prescribed in 852.247-70 must be used in these instances.
Transportation payments are audited by the Traffic Manager to ensure that payment and payment mechanisms for agency transportation are uniform and appropriate in accordance with 41 CFR part 102-118.
40 U.S.C. 121(c) and 48 CFR 1.301-1.304.
(a) While legal review and concurrence of the General Counsel is required prior to a default termination, in some cases where a quick response is necessary, this review can be expedited by express mailing or faxing the default
(1) The proposed termination (FAR 49.102);
(2) An explanation of what necessitated the default, including the reasons why the contracting officer considers the contractor to be in default;
(3) A statement that the factors set forth in FAR 49.402-3(f) have been fully considered; and
(4) Final decision language and appeal rights.
(b) Contracts containing a mutual termination clause may be terminated without reference to the General Counsel.
(a) If the contracting officer suspects fraud or other criminal conduct related to the settlement of a terminated contract, the contracting officer must do the following:
(1) Immediately discontinue all negotiations.
(2) Submit all of the pertinent facts necessary to support the suspicions to either of the following:
(i) The DSPE.
(ii) The Director, Office of Construction and Facilities Management, in the case of contracting officers from the Office of Construction and Facilities Management.
(3) Follow procedures as provided in 809.406-3 and 809.407-3.
(b) The DSPE or the Director, Office of Construction and Facilities Management, must review the submission and fully develop the facts.
(c) If the evidence indicates fraud or other criminal conduct, the DSPE or the Director, Office of Construction and Facilities Management, must forward the submission with recommendations through channels (to include OGC, if appropriate), to the Office of the Inspector General (OIG) for referral to the Department of Justice.
(d) The DSPE or the Director, Office of Construction and Facilities Management, will advise the contracting officer as to any further action to be taken. Pending receipt of this advice, no VA employee may discuss the matter with the contractor.
(e) VA will not initiate a collection, recovery or other settlement action while the matter is in the hands of the Department of Justice without first obtaining the concurrence of the U.S. Attorney concerned, through OIG.
(f) If the contractor makes an inquiry, the contracting officer will advise only that the proposal has been forwarded to higher authority.
(a) FAR 49.111 requires each agency to establish procedures, when necessary, for the administrative review of proposed termination settlements. Contracting officers shall submit proposed termination settlements or determinations of amounts due the contractor under a terminated contract that involve the expenditure of $100,000 or more of Government funds to the Director, Acquisition Program Management Division, or the Director, Acquisition Assistance Team, as appropriate, for technical and legal review (see 801.602-72(i)). Contracting officers shall not execute the settlement agreement or determination prior to receipt of the technical and legal review. The legal review of contracts awarded by or on behalf of the VA OIG will be conducted by the Counselor to the Inspector General.
(b) If the contracting officer declines to implement one or more of the recommendations or comments contained in the review memorandum, the contracting officer shall submit a written response to the Director, Acquisition Program Management Division, or the Director, Acquisition Assistance Team, as appropriate, explaining why the recommendations or comments were not followed. For contracts awarded by or on behalf of the VA OIG, the response shall be submitted to the Counselor to the Inspector General.
(a) The contracting officer shall submit to the appropriate Acquisition Program Management Division or Acquisition Assistance Team office a copy of the proposed settlement agreement or determination, supported by such detailed information as is required for an adequate review. This information should normally include copies of:
(1) The contractor's or subcontractor's settlement proposal.
(2) The audit report.
(3) The property disposed report and any required approvals in connection therewith,
(4) The contracting officer's memorandum explaining the settlement, and
(5) Any other relevant material that will assist the procurement analyst in the review. The procurement analyst may, at his or her discretion, require the submission of additional information.
(b) The Director, Acquisition Program Management Division, or the Director, Acquisition Assistance Team, will obtain the concurrence or comments of OGC prior to forwarding the review to the contracting officer, except that the concurrence or comments will be obtained from the Counselor to the Inspector General for contracts awarded by or on behalf of the VA Office of Inspector General.
38 U.S.C. 501 and 8151-8153; 40 U.S.C. 121(c); and 48 CFR 1.301-1.304.
Part 852 prescribes supplemental provisions and clauses to the FAR. Provision and clause numbering are as prescribed in FAR 52.101 (
(a) As authorized by FAR 52.102(c), any 48 CFR Chapter 8 (VAAR) provision or clause may be incorporated in a quotation, solicitation, or contract by reference, provided the contracting officer complies with the requirements stated in FAR 52.102(c)(1), (c)(2), and (c)(3). To ensure compliance with FAR 52.102(c)(1) and (c)(2), contracting officers shall insert the provision found at 852.252-70, Solicitation provisions or clauses incorporated by reference, in full text in a quotation, solicitation, or contract if the quotation, solicitation, or contract incorporates by reference a FAR or 48 CFR Chapter 8 (VAAR) provision or clause that requires completion by the offeror or prospective contractor and submittal with the quotation or offer.
(b) For any FAR or 48 CFR Chapter 8 (VAAR) provision or clause that requires completion by the contracting officer, the contracting officer shall, as a minimum, insert the title of the provision or clause and the paragraph that requires completion in full text in the quotation, solicitation, or contract. The balance of the provision or clause may be incorporated by reference.
(c) When one or more FAR or 48 CFR Chapter 8 (VAAR) provisions, or portions thereof, are incorporated in a quotation or solicitation by reference, the contracting officer shall insert in the quotation or solicitation the provision found at FAR 52.252-1, Solicitation Provisions Incorporated by Reference.
(d) When one or more FAR or 48 CFR Chapter 8 (VAAR) clauses, or portions thereof, are incorporated in a quotation, solicitation, or contract by reference, the contracting officer shall insert in the quotation, solicitation, or contract the clause found at FAR 52.252-2, Clauses Incorporated by Reference.
(e) If one or more FAR provisions or clauses, or portions thereof, are incorporated in a quotation, solicitation, or contract by reference, the contracting officer shall insert in the FAR provision or clause required by paragraph (c) or (d) of this section the following Internet address:
(f) If one or more 48 CFR Chapter 8 (VAAR) provisions or clauses, or portions thereof, are incorporated in a quotation, solicitation, or contract by reference, the contracting officer shall insert in the FAR provision or clause required by paragraph (c) or (d) of this section the following Internet address:
As prescribed in 803.570-2, insert the following clause:
The bidder or offeror agrees that if a contract is awarded to him/her, as a result of this solicitation, he/she will not advertise the award of the contract in his/her commercial advertising in such a manner as to state or imply that the Department of Veterans Affairs endorses a product, project or commercial line of endeavor.
As prescribed in 803.7001, insert the following clause:
(a) Except as provided in paragraph (c) below, the Contractor shall display prominently, in common work areas within business segments performing work under VA contracts, Department of Veterans Affairs Hotline posters prepared by the VA Office of Inspector General.
(b) Department of Veterans Affairs Hotline posters may be obtained from the VA Office of Inspector General (53E), P.O. Box 34647, Washington, DC 20043-4647.
(c) The Contractor need not comply with paragraph (a) above if the Contractor has established a mechanism, such as a hotline, by which employees may report suspected instances of improper conduct, and instructions that encourage employees to make such reports.
As prescribed in 807.304-77 and 873.110, the following clause will be included in A-76 cost comparison solicitations and solicitations issued under the authority of 38 U.S.C. 8151-8153 that may result in conversion from in-house to contract performance of work:
(a) Consistent with the Government post-employment conflict of interest regulations, the contractor shall give adversely affected Federal personnel the right of first refusal for all employment openings under this contract for which they are qualified.
(b)
(1)
(i) Permanent Federal personnel who are assigned to the government commercial activity, or
(ii) Federal personnel who are identified for release from their competitive levels or separated as a result of the contract.
(2)
(3)
(c)
(2) The contractor may select any person for an employment opening when there are no qualified adversely affected Federal personnel on the latest current listing provided by the contracting officer.
(d)
(i) A list of employment openings including salaries and benefits, and
(ii) Sufficient job application forms for adversely affected Federal personnel.
(2) By the contract start date, the contractor shall provide the contracting officer with the following:
(i) The names of adversely affected Federal personnel offered an employment opening;
(ii) The date the offer was made;
(iii) A brief description of the position;
(iv) The date of acceptance of the offer and the effective date of employment;
(v) The date of rejection of the offer, if applicable, and the salary and benefits contained in the rejected offer; and
(vi) The names of any adversely affected Federal personnel who applied but were not offered employment and the reason(s) for withholding an offer.
(3) For the first 90 calendar days after the contract start date, the contractor shall provide the contracting officer with the names of all persons hired or terminated under the contract within 5 working days of such hiring or termination.
(e)
(2) Between the contract award and start dates, the contracting officer shall inform the contractor of any reassignment or transfer of adversely affected Federal personnel to other Federal positions.
(3) For a period of up to 90 calendar days after the contract start date, the contracting officer will periodically provide the contractor with an updated listing of adversely affected Federal personnel reflecting personnel who were recently released from their competitive levels or separated as a result of the contract award.
(f)
(g)
(h)
As prescribed in 809.507-1(b), insert the following provision:
(a) It is in the best interest of the Government to avoid situations which might create an organizational conflict of interest or where the offeror's performance of work under the contract may provide the contractor with an unfair competitive advantage. The term “organizational conflict of interest” means that because of other activities or relationships with other persons, a person is unable to render impartial assistance or advice to the Government, or the person's objectivity in performing the contract work is or might be otherwise impaired, or the person has an unfair competitive advantage.
(b) The offeror shall provide a statement with its offer which describes, in a concise manner, all relevant facts concerning any past, present, or currently planned interest (financial, contractual, organizational, or otherwise) or actual or potential organizational conflicts of interest relating to the services to be provided under this solicitation. The offeror shall also provide statements with its offer containing the same information for any consultants and subcontractors identified in its proposal and which will provide services under the solicitation. The offeror may also provide relevant facts that show how its organizational and/or management system or other actions would avoid or mitigate any actual or potential organizational conflicts of interest.
(c) Based on this information and any other information solicited or obtained by the contracting officer, the contracting officer may determine that an organizational conflict of interest exists which would warrant disqualifying the contractor for award of the contract unless the organizational conflict of interest can be mitigated to the contracting officer's satisfaction by negotiating terms and conditions of the contract to that effect. If the conflict of interest cannot be mitigated and if the contracting officer finds that it is in the best interest of the United States to award the contract, the contracting officer shall request a waiver in accordance with FAR 9.503 and 48 CFR 809.503.
(d) Nondisclosure or misrepresentation of actual or potential organizational conflicts of interest at the time of the offer, or arising as a result of a modification to the contract, may result in the termination of the contract at no expense to the Government.
(a) As prescribed in 811.107(a), insert the following clause:
(a) The successful bidder will supply operation/maintenance (service data) manuals with each piece of equipment in the quantity specified in the solicitation and resulting purchase order. As a minimum, the manual(s) shall be bound and equivalent to the manual(s) provided the manufacturer's designated field service representative as well as comply with all the requirements in paragraphs (b) through (i) of this clause. Sections, headings and section sequence identified in (b) through (i) of this clause are typical and may vary between manufacturers. Variances in the sections, headings and section sequence, however, do not relieve the manufacturer of his/her responsibility in supplying the technical data called for therein.
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
Alternate I (JAN 2008). If the bid or proposal will result in the initial purchase (including each make and model) of a centrally procured item, insert the following paragraph:
(j)
(b) As prescribed in 811.107(b), insert the following clause:
The contractor agrees to furnish two hard copies of a manual, handbook or brochure containing operating, installation, and maintenance instructions (including pictures or illustrations, schematics, and complete repair/test guides as necessary). Where applicable, it will include electrical data and connection diagrams for all utilities. The instructions shall also contain a complete list of all replaceable parts showing part number, name, and quantity required.
As prescribed in 870.112, insert the following provision:
As prescribed in 811.103-70, insert the following provision:
The supplies or equipment required by this invitation for bid or request for proposal must conform to the standards of the [ ]* and [ ]* as to [ ]**. The successful bidder or offeror will be required to submit proof that the item(s) he/she furnishes conforms to this requirement. This proof may be in the form of a label or seal affixed to the equipment or supplies, warranting that they have been tested in accordance with and conform to the specified standards. Proof may also be furnished in the form of a certificate from one of the above listed organizations certifying that the item(s) furnished have been tested in accordance with and conform to the specified standards.
As prescribed in 811.104-71, insert the following clause:
As used in this clause, the term “brand name” includes identification of products by make and model.)
(a) If items called for by this invitation for bids have been identified in the schedule by a “brand name or equal” description, such identification is intended to be descriptive, but not restrictive, and is to indicate the quality and characteristics of products that will be satisfactory. Bids offering “equal” products (including products of the brand name manufacturer other than the one described by brand name) will be considered for award if such products are clearly identified in the bids and are determined by the Government to meet fully the salient characteristics requirements listed in the invitation.
(b) Unless the bidder clearly indicates in the bid that the bidder is offering an “equal” product, the bid shall be considered as offering a brand name product referenced in the invitation for bids.
(c)(1) If the bidder proposes to furnish an “equal” product, the brand name, if any, of the product to be furnished shall be inserted in the space provided in the invitation for bids, or such product shall be otherwise clearly identified in the bid. The evaluation of bids and the determination as to equality of the product offered shall be the responsibility of the Government and will be based on information furnished by the bidder or identified in his/her bid as well as other information reasonably available to the purchasing activity. CAUTION TO BIDDERS. The purchasing activity is not responsible for locating or securing any information that is not identified in the bid and reasonably available to the purchasing activity. Accordingly, to insure that sufficient information is available, the bidder must furnish as a part of his/her bid all descriptive material (such as cuts, illustrations, drawings or other information) necessary for the purchasing activity to:
(i) Determine whether the product offered meets the salient characteristics requirement of the Invitation for Bids, and
(ii) Establish exactly what the bidder proposes to furnish and what the Government would be binding itself to purchase by making an award. The information furnished may include specific references to information previously furnished or to information otherwise available to the purchasing activity.
(2) If the bidder proposes to modify a product so as to make it conform to the requirements of the Invitation for Bids, he/she shall:
(i) Include in his/her bid a clear description of such proposed modifications, and
(ii) Clearly mark any descriptive material to show the proposed modifications.
(3) Modifications proposed after bid opening to make a product conform to a brand name product referenced in the Invitation for Bids will not be considered.
As prescribed in 811.503 and 836.206, the contracting officer may insert the following clause when appropriate:
If any unit of the work contracted for is accepted in advance of the whole, the rate of liquidated damages assessed will be in the ratio that the value of the unaccepted work bears to the total amount of the contract. If a separate price for unaccepted work has not been stated in the contractor's bid, determination of the value thereof will be made from schedules of costs furnished by the contractor and approved by the contracting officer, as specified elsewhere in the contract.
As prescribed in 811.204, insert the following clause:
The products offered under this solicitation shall be type ________, grade ________, in accordance with [type of specification] No. ________, dated ________ and amendment ________ dated ____, except for paragraphs ________ and ________ which are amended as follows: [List any amendments to the specifications]
As provided in 814.201-6(a), the following provision will be included in all invitations for bid:
It is the responsibility of each bidder to take all necessary precautions, including the use of proper mailing cover, to insure that the bid price cannot be ascertained by anyone prior to bid opening. If a bid envelope is furnished with this invitation, the bidder is requested to use this envelope in submitting the bid. The bidder may, however, use any suitable envelope, identified by the invitation number and bid opening time and date. If an Optional Form (OF) 17, Sealed Bid Label, is furnished with this invitation in lieu of a bid envelope, the bidder is advised to complete and affix the OF 17 to the lower left corner of the envelope used in submitting the bid.
As prescribed in 814.201-6(b)(1), insert the following provision:
Bids on [ ]* will be considered only if acceptable bids on [ ]** are not received or do not satisfy the total requirement.
As prescribed in 814.201-6(b)(2), insert the following provision:
Bids on [ ]* will be given equal consideration along with bids on [ ]** and any such bids received may be accepted if to the advantage of the Government. Tie bids will be decided in favor of [ ].**
**
As prescribed in 814.201-6(b)(3), insert the following provision:
The bidder's offer must clearly indicate the quantity, package size, unit, or other different feature upon which the quote is made. Evaluation of the alternate or multiple alternates will be made on a common denominator such as per ounce, per pound, etc., basis.
As prescribed in 814.201-6(c), insert the following provision:
Any bid sample(s) furnished must be in the quantities specified in the solicitation and plainly marked with the complete lettering/numbering and description of the related bid item(s); the number of the Invitation for Bids; and the name of the bidder submitting the bid sample(s). Cases or packages containing any bid sample(s) must be plainly marked “Bid Sample(s)” and all changes pertaining to the preparation and transportation of bid sample(s) must be prepaid by the bidder. Bid sample(s) must be received at the location specified in the solicitation by the time and date for receipt of bids.
As prescribed in 816.504(a), insert the following clause:
As it is impossible to determine the exact quantities that will be required during the contract term, each bidder whose bid is accepted wholly or in part will be required to deliver all articles or services that may be ordered during the contract term, except as he/she otherwise indicates in his/her bid and except as otherwise provided herein. Bids will be considered if made with the proviso
The estimated requirements shown in this invitation for bids cover the requirements for the entire contract period. It is understood and agreed that during the period of this contract the Government may order and the contractor will haul such coal as may, in the opinion of the Government, be required, except that in the public exigency procurement may be made without regard to this contract.
The supplies and/or services listed in the attached schedule will be furnished at such time and in such quantities as they are required.
As it is impossible to determine the exact quantities that will be required during the contract term, each bidder whose bid is accepted wholly or in part will be required to deliver all articles that may be ordered during the contract term, except as he or she otherwise indicates in his or her bid and except as otherwise provided herein. Bids will be considered if made with the proviso that the total quantities delivered shall not exceed a certain specified quantity. The fact that quantities are estimated shall not relieve the contractor from filling all orders placed under this contract to the extent of his/her obligation. Also, the Department of Veterans Affairs shall not be relieved of its obligation to order from the contractor all articles that may, in the judgment of the ordering officer, be needed except that in the public exigency procurement may be made without regard to this contract.
As prescribed in 822.305, for nursing home care requirements, insert the following clause:
The following exemption to FAR clause 52.222-4, Contract Work Hours and Safety Standards Act—Overtime Compensation, applies to this contract: A contractor and subcontractor under this contract will not be required to pay overtime wages to their employees for work in excess of 40 hours in any workweek, which would otherwise be a violation of the Contract Work Hours and Safety Standards Act (40 U.S.C. 3701-3708), provided:
(a) The contractor or subcontractor is primarily engaged in the care of nursing home patients residing on the contractor's or subcontractor's premises;
(b) There is an agreement or understanding between the contractor or subcontractor and their employees, before performance of work, that a work period of 14 consecutive days is acceptable in lieu of a work period of 7 consecutive days for the purpose of overtime compensation;
(c) Employees receive overtime compensation at a rate no less than 1
(d) Pay is otherwise computed in accordance with the requirements of the Fair Labor Standards Act of 1938, as amended.
As prescribed in 828.106-70, insert the following clause:
When net changes in original contract price affect the premium of a Corporate Surety Bond by $5 or more, the Government, in determining the basis for final settlement, will provide for bond premium adjustment computed at the rate shown in the bond.
As prescribed in 828.306, insert the following clause:
(a)
(b)
As prescribed in 829.302-70, insert the following provision:
This provision replaces paragraph (k) of Federal Acquisition Regulation clause 52.212-4, Contract Terms and Conditions—Commercial Items. The articles listed in this solicitation will be purchased from the personal funds of patients and prices submitted herein include any sales or use tax heretofore imposed by any State, or by any duly constituted taxing authority therein, having jurisdiction to levy such a tax, applicable to the material in this solicitation.
As prescribed in 833.106, insert the following provision:
(a) Any protest filed by an interested party shall:
(1) Include the name, address, fax number, and telephone number of the protester;
(2) Identify the solicitation and/or contract number;
(3) Include an original signed by the protester or the protester's representative and at least one copy;
(4) Set forth a detailed statement of the legal and factual grounds of the protest, including a description of resulting prejudice to the protester, and provide copies of relevant documents;
(5) Specifically request a ruling of the individual upon whom the protest is served;
(6) State the form of relief requested; and
(7) Provide all information establishing the timeliness of the protest.
(b) Failure to comply with the above may result in dismissal of the protest without further consideration.
(c) Bidders/offerors and contracting officers are encouraged to use alternative dispute resolution (ADR) procedures to resolve protests at any stage in the protest process. If ADR is used, the Department of Veterans Affairs will not furnish any documentation in an ADR proceeding beyond what is allowed by the Federal Acquisition Regulation.
As prescribed in 833.106, insert the following provision:
As an alternative to filing a protest with the contracting officer, an interested party may file a protest with the Deputy Assistant Secretary for Acquisition and Materiel Management, Acquisition Administration Team, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, or for solicitations issued by the Office of Construction and Facilities Management, the Director, Office of Construction and Facilities Management, 810 Vermont Avenue, NW., Washington, DC 20420. The protest will not be considered if the interested party has a protest on the same or similar issues pending with the contracting officer.
As prescribed in 836.521, insert the following clause:
The clause entitled “Specifications and Drawings for Construction” in FAR 52.236-21 is supplemented as follows:
(a) The contracting officer's interpretation of the drawings and specifications will be final, subject to the disputes clause.
(b) Large scale drawings supersede small scale drawings.
(c) Dimensions govern in all cases. Scaling of drawings may be done only for general location and general size of items.
(d) Dimensions shown of existing work and all dimensions required for work that is to connect with existing work shall be verified by the contractor by actual measurement of the existing work. Any work at variance with that specified or shown in the drawings shall not be performed by the contractor until approved in writing by the contracting officer.
As prescribed in 836.501, insert the following clause:
The clause entitled “Performance of Work by the Contractor” in FAR 52.236-1 is supplemented as follows:
(a) Contract work accomplished on the site by laborers, mechanics, and foremen/forewomen on the contractor's payroll and under his/her direct supervision shall be included in establishing the percent of work to be performed by the contractor. Cost of material and equipment installed by such labor may be included. The work by the contractor's executive, supervisory and clerical forces shall be excluded in establishing compliance with the requirements of this clause.
(b) The contractor shall submit, simultaneously with the schedule of costs required by the Payments Under Fixed-Price Construction Contracts clause of the contract, a statement designating the branch or branches of contract work to be performed with his/her forces. The approved schedule of costs will be used in determining the value of a branch or branches, or portions thereof, of the work for the purpose of this article.
(c) If, during the progress of work hereunder, the contractor requests a change in the branch or branches of the work to be performed by his/her forces and the contracting officer determines it to be in the best interest of the Government, the contracting officer may, at his/her discretion, authorize a change in such branch or branches of said work. Nothing contained herein shall permit a reduction in the percentage of work to be performed by the contractor with his/her forces, it being expressly understood that this is a contract requirement without right or privilege of reduction.
(d) In the event the contractor fails or refuses to meet the requirement of the FAR clause at 52.236-1, it is expressly agreed that the contract price will be reduced by 15 percent of the value of that portion of the percentage requirement that is accomplished by others. For the purpose of this clause, it is agreed that 15 percent is an acceptable estimate of the contractor's overhead and profit, or mark-up, on that portion of the work which the contractor fails or refuses to perform, with his/her own forces, in accordance with the FAR clause at 52.236-1.
(b) The contractor shall submit, simultaneously with the cost per activity of the construction schedule required by Section 01310 or 01311, NETWORK ANALYSIS SYSTEM, a responsibility code for all activities of the network for which the contractor's forces will perform the work. The cost of these activities will be used in determining the portions of the total contract work to be executed by the contractor's forces for the purpose of this article.
(c) If, during progress of work hereunder, the contractor requests a change in activities of work to be performed by the contractor's forces and the contracting officer determines it to be in the best interest of the Government, the contracting officer may, at his or her discretion, authorize a change in such activities of said work.
As prescribed in 846.312, insert the following clause:
The clause entitled “Inspection of Construction” in FAR 52.246-12 is supplemented as follows:
(a) Inspection of materials and articles furnished under this contract will be made at the site by the resident engineer, unless otherwise provided for in the specifications.
(b) Final inspection will not be made until the contract work is ready for beneficial use or occupancy. The contractor shall notify the contracting officer, through the resident engineer, fifteen (15) days prior to the date on which the work will be ready for final inspection.
As prescribed in 836.570, insert the following clause:
All correspondence relative to this contract shall bear the Specification Number, Project Number, Department of Veterans Affairs Contract Number, title of project and name of facility.
As prescribed in 836.571, insert the following clause:
Any materials, equipment, or workmanship specified by references to number, symbol, or title of any specific Federal, Industry or Government Agency Standard Specification shall comply with all applicable provisions of such standard specifications, except as limited to type, class or grade, or modified in contract specifications. Reference to “Standards” referred to in the contract specifications, except as modified, shall have full force and effect as though printed in detail in the specifications.
As prescribed in 836.572, insert the following clause:
(a) The work will be under the direction of the Department of Veterans Affairs contracting officer, who may designate another VA employee to act as resident engineer at the construction site.
(b) Except as provided below, the resident engineer's directions will not conflict with or change contract requirements.
(c) Within the limits of any specific authority delegated by the contracting officer, the resident engineer may, by written direction, make changes in the work. The contractor shall be advised of the extent of such authority prior to execution of any work under the contract.
As prescribed in 836.573, insert the following clause:
The contractor shall furnish to the resident engineer each day a consolidated report for the preceding work day in which is shown the number of laborers, mechanics, foremen/forewomen and pieces of heavy equipment used or employed by the contractor and subcontractors. The report shall bear the name of the firm, the branch of work that they perform, such as concrete, plastering, masonry, plumbing, sheet metal work, etc. The report shall give a breakdown of employees by crafts, location where employed, and work performed. The report shall also list materials delivered to the site on the date covered by the report.
As prescribed in 836.574, insert the following clause:
(a) Nothing contained in this contract shall be construed as creating any contractual relationship between any subcontractor and the Government. Divisions or sections of specifications are not intended to control the contractor in dividing work among subcontractors, or to limit work performed by any trade.
(b) The contractor shall be responsible to the Government for acts and omissions of his/her own employees, and of the subcontractors and their employees. The contractor shall also be responsible for coordination of the work of the trades, subcontractors, and material suppliers.
(c) The Government or its representatives will not undertake to settle any differences between the contractor and subcontractors or between subcontractors.
(d) The Government reserves the right to refuse to permit employment on the work or require dismissal from the work of any subcontractor who, by reason of previous unsatisfactory work on Department of Veterans Affairs projects or for any other reason, is considered by the contracting officer to be incompetent or otherwise objectionable.
(b) The contractor shall be responsible to the Government for acts and omissions of his/her own employees, and subcontractors and their employees. The contractor shall also be responsible for coordination of the work of the trades, subcontractors, and material suppliers. The contractor shall, in advance of the work, prepare coordination drawings showing the location of openings through slabs, the pipe sleeves and hanger inserts, as well as the location and elevation of utility lines, including, but not limited to, conveyor systems, pneumatic tubes, ducts, and conduits and pipes 2 inches and larger in diameter. These drawings, including plans, elevations, and sections as appropriate, shall clearly show the manner in which the utilities fit into the available space and relate to each other and to existing building elements. Drawings shall be of appropriate scale to satisfy the previously stated purposes, but not smaller than
As prescribed in 832.111, insert the following clause in contracts that do not contain a section entitled “Network Analysis System (NAS).”
The clause entitled “Payments Under Fixed-Price Construction Contracts” in FAR 52.232-5 is implemented as follows:
(a) Retainage:
(1) The contracting officer may retain funds:
(i) Where performance under the contract has been determined to be deficient or the contractor has performed in an unsatisfactory manner in the past; or
(ii) As the contract nears completion, to ensure that deficiencies will be corrected and that completion is timely.
(2) Examples of deficient performance justifying a retention of funds include, but are not restricted to, the following:
(i) Unsatisfactory progress as determined by the contracting officer;
(ii) Failure to meet schedule in Schedule of Work Progress;
(iii) Failure to present submittals in a timely manner; or
(iv) Failure to comply in good faith with approved subcontracting plans, certifications, or contract requirements.
(3) Any level of retention shall not exceed 10 percent either where there is determined to be unsatisfactory performance, or when the retainage is to ensure satisfactory completion. Retained amounts shall be paid promptly upon completion of all contract requirements, but nothing contained in this subparagraph shall be construed as limiting the contracting officer's right to withhold funds under other provisions of the contract or in accordance with the general law and regulations regarding the administration of Government contracts.
(b) The contractor shall submit a schedule of cost to the contracting officer for approval within 30 calendar days after date of receipt of notice to proceed. Such schedule will be signed and submitted in triplicate. The approved cost schedule will be one of the bases for determining progress payments to the contractor for work completed. This schedule shall show cost by the branches of work for each building or unit of the contract, as instructed by the resident engineer.
(1) The branches shall be subdivided into as many sub-branches as are necessary to cover all component parts of the contract work.
(2) Costs as shown on this schedule must be true costs and, should the resident engineer so desire, he/she may require the contractor to submit the original estimate sheets or other information to substantiate the detailed makeup of the schedule.
(3) The sum of the sub-branches, as applied to each branch, shall equal the total cost of such branch. The total cost of all branches shall equal the contract price.
(4) Insurance and similar items shall be prorated and included in the cost of each branch of the work.
(5) The cost schedule shall include separate cost information for the systems listed in the table in this paragraph (b)(5). The percentages listed below are proportions of the cost listed in the contractor's cost schedule and identify, for payment purposes, the value of the work to adjust, correct and test systems after the material has been installed. Payment of the listed percentages will be made only after the contractor has demonstrated that each of the systems is substantially complete and operates as required by the contract.
(c) In addition to this cost schedule, the contractor shall submit such unit costs as may be specifically requested. The unit costs shall be those used by the contractor in preparing his/her bid and will not be binding as pertaining to any contract changes.
(d) The contracting officer will consider for monthly progress payments material and/or equipment procured by the contractor and stored on the construction site, as space is available, or at a local approved location off the site, under such terms and conditions as such officer approves, including but not limited to the following:
(1) The material or equipment is in accordance with the contract requirements and/or approved samples and shop drawings.
(2) Only those materials and/or equipment as are approved by the resident engineer for storage will be included.
(3) Such materials and/or equipment will be stored separately and will be readily available for inspection and inventory by the resident engineer.
(4) Such materials and/or equipment will be protected against weather, theft and other hazards and will not be subjected to deterioration.
(5) All of the other terms, provisions, conditions and covenants contained in the contract shall be and remain in full force and effect as therein provided.
(6) A supplemental agreement will be executed between the Government and the contractor with the consent of the contractor's surety for off-site storage.
(e) The contractor, prior to receiving a progress or final payment under this contract, shall submit to the contracting officer a certification that the contractor has made payment from proceeds of prior payments, or that timely payment will be made from the proceeds of the progress or final payment then due, to subcontractors and suppliers in accordance with the contractual arrangements with them.
(f) The Government reserves the right to withhold payment until samples, shop drawings, engineer's certificates, additional bonds, payrolls, weekly statements of compliance, proof of title, nondiscrimination compliance reports, or any other things required by this contract, have been submitted to the satisfaction of the contracting officer.
(6)(i) The contractor shall at the time of contract award furnish the total cost of the guarantee period services in accordance with specification section(s) covering guarantee period services. The contractor shall submit, within 15 calendar days of receipt of the notice to proceed, a guarantee period performance program that shall include an itemized accounting of the number of work-hours required to perform the guarantee period service on each piece of equipment. The contractor shall also submit the established salary costs, including employee fringe benefits, and what the contractor reasonably expects to pay over the guarantee period, all of which will be subject to the contracting officer's approval.
(ii) The cost of the guarantee period service shall be prorated on an annual basis and paid in equal monthly payments by VA during the period of guarantee. In the event the installer does not perform satisfactorily during this period, all payments may be withheld and the contracting officer shall inform the contractor of the unsatisfactory performance, allowing the contractor 10 days to correct deficiencies and comply with the contract. The guarantee period service is subject to those provisions as set forth in the Payments and Default clauses.
As prescribed in 832.111, insert the following clause in contracts that contain a section entitled “Network Analysis System (NAS).”
The clause entitled “Payments Under Fixed-Price Construction Contracts” in FAR 52.232-5 is implemented as follows:
(a) Retainage:
(1) The contracting officer may retain funds:
(i) Where the performance under the contract has been determined to be deficient
(ii) As the contract nears completion, to ensure that deficiencies will be corrected and that completion is timely.
(2) Examples of deficient performance justifying a retention of funds include, but are not restricted to, the following:
(i) Unsatisfactory progress as determined by the contracting officer;
(ii) Failure either to meet schedules in Section Network Analysis System (NAS), or to process the Interim Arrow Diagram/Complete Project Arrow Diagram;
(iii) Failure to present submittals in a timely manner; or
(iv) Failure to comply in good faith with approved subcontracting plans, certifications, or contract requirements.
(3) Any level of retention shall not exceed 10 percent either where there is determined to be unsatisfactory performance, or when the retainage is to ensure satisfactory completion. Retained amounts shall be paid promptly upon completion of all contract requirements, but nothing contained in this subparagraph shall be construed as limiting the contracting officer's right to withhold funds under other provisions of the contract or in accordance with the general law and regulations regarding the administration of Government contracts.
(b) The contractor shall submit a schedule of costs in accordance with the requirements of Section Network Analysis System (NAS) to the contracting officer for approval within 90 calendar days after date of receipt of notice to proceed. The approved cost schedule will be one of the bases for determining progress payments to the contractor for work completed.
(1) Costs as shown on this schedule must be true costs and, should the resident engineer so desire, he/she may require the contractor to submit his/her original estimate sheets or other information to substantiate the detailed makeup of the cost schedule.
(2) The total costs of all activities shall equal the contract price.
(3) Insurance and similar items shall be prorated and included in each activity cost of the critical path method (CPM) network.
(4) The CPM network shall include a separate cost loaded activity for adjusting and testing of the systems listed in the table in paragraph (b)(5) of this section. The percentages listed below will be used to determine the cost of adjust and test activities and identify, for payment purposes, the value of the work to adjust, correct and test systems after the material has been installed.
(5) Payment for adjust and test activities will be made only after the contractor has demonstrated that each of the systems is substantially complete and operates as required by the contract.
(c) In addition to this cost schedule, the contractor shall submit such unit costs as may be specifically requested. The unit costs shall be those used by the contractor in preparing his/her bid and will not be binding as pertaining to any contract changes.
(d) The contracting officer will consider for monthly progress payments material and/or equipment procured by the contractor and stored on the construction site, as space is available, or at a local approved location off the site, under such terms and conditions as such officer approves, including but not limited to the following:
(1) The material or equipment is in accordance with the contract requirements and/or approved samples and shop drawings.
(2) Only those materials and/or equipment as are approved by the resident engineer for storage will be included.
(3) Such materials and/or equipment will be stored separately and will be readily available for inspection and inventory by the resident engineer.
(4) Such materials and/or equipment will be protected against weather, theft and other hazards and will not be subjected to deterioration.
(5) All of the other terms, provisions, conditions and covenants contained in the contract shall be and remain in full force and effect as therein provided.
(6) A supplemental agreement will be executed between the Government and the contractor with the consent of the contractor's surety for off-site storage.
(e) The contractor, prior to receiving a progress or final payment under this contract, shall submit to the contracting officer a certification that the contractor has made payment from proceeds of prior payments, or that timely payment will be made from the proceeds of the progress or final payment then due, to subcontractors and suppliers in accordance with the contractual arrangements with them.
(f) The Government reserves the right to withhold payment until samples, shop drawings, engineer's certificates, additional bonds, payrolls, weekly statements of compliance, proof of title, nondiscrimination compliance reports, or any other things required by this contract, have been submitted to the satisfaction of the contracting officer.
(6)(i) The contractor shall show on the critical path method (CPM) network the total cost of the guarantee period services in accordance with the guarantee period service section(s) of the specifications. This cost shall be priced out when submitting the CMP cost loaded network. The cost submitted shall be subject to the approval of the contracting officer. The activity on the CPM shall have money only and not activity time.
(ii) The contractor shall submit with the CPM a guarantee period performance program which shall include an itemized accounting of the number of work-hours required to perform the guarantee period service on each piece of equipment. The contractor shall also submit the established salary costs, including employee fringe benefits, and what the contractor reasonably expects to pay over the guarantee period, all of which will be subject to the contracting officer's approval.
(iii) The cost of the guarantee period service shall be prorated on an annual basis and paid in equal monthly payments by VA during the period of guarantee. In the event the installer does not perform satisfactorily during this period, all payments may be withheld and the contracting officer shall inform the contractor of the unsatisfactory performance, allowing the contractor 10 days to correct and comply with the contract. The guarantee period service is subject to those provisions as set forth in the Payments and Default clauses.
As prescribed in 836.575, insert the following clause:
(a) The contractor shall submit with the schedule of costs, a progress schedule that indicates the anticipated installation of work versus the elapsed contract time, for the approval of the contracting officer. The
(b) The actual percent completion will be based on the value of installed work divided by the current contract amount. The actual completion percentage will be indicated on the monthly progress report.
(c) The progress schedule will be revised when individual or cumulative time extensions of 15 calendar days or more are granted for any reason. The revised schedule should indicate the new contract completion date and should reflect any changes to the installation time(s) of the items of work affected.
(d) The revised progress schedule will be used for reporting future scheduled percentage completion.
As prescribed in 836.576, insert the following clause:
(a) The wage determination decision of the Secretary of Labor is set forth in section GR, General Requirements, of this contract. It is the result of a study of wage conditions in the locality and establishes the minimum hourly rates of wages and fringe benefits for the described classes of labor in accordance with applicable law. No increase in the contract price will be allowed or authorized because of payment of wage rates in excess of those listed.
(b) The contractor shall submit the required copies of payrolls to the contracting officer through the resident engineer or engineer officer, when acting in that capacity. Department of Labor Form WH-347, Payroll, available from the Superintendent of Documents, Government Printing Office, Washington, DC 20402, may be used for this purpose. If, however, the contractor or subcontractor elects to use an individually composed payroll form, it shall contain the same information shown on Form WH-347, and in addition be accompanied by Department of Labor Form WH-348, Statement of Compliance, or any other form containing the exact wording of this form.
As prescribed in 836.577, insert the following clause:
Public Law 107-217 (40 U.S.C. 3172) authorizes the constituted authority of States to apply their workers compensation laws to all lands and premises owned or held by the United States.
As prescribed in 836.513, insert the following clause:
The Resident Engineer on all assigned construction projects, or other Department of Veterans Affairs employee if designated in writing by the Contracting Officer, shall serve as Safety Officer and as such has authority, on behalf of the Contracting Officer, to monitor and enforce Contractor compliance with FAR 52.236-13, Accident Prevention. However, only the Contracting Officer may issue an order to stop all or part of the work while requiring satisfactory or corrective action to be taken by the Contractor.
As prescribed in 836.578, insert the following clause:
The clauses entitled “Changes” in FAR 52.243-4 and “Differing Site Conditions” in FAR 52.236-2 are supplemented as follows:
(a) Paragraphs (a)(1) through (a)(4) apply to proposed contract changes costing over $500,000.
(1) When requested by the contracting officer, the contractor shall submit proposals for changes in work to the resident engineer. Proposals, to be submitted as expeditiously as possible but within 30 calendar days after receipt of request, shall be in legible form, original and two copies, with an itemized breakdown that will include material, quantities, unit prices, labor costs (separated into trades), construction equipment, etc. (Labor costs are to be identified with specific material placed or operation performed.) The contractor must obtain and furnish with a proposal an itemized breakdown as described above, signed by each subcontractor participating in the change regardless of tier. When certified cost or pricing data are required under FAR Subpart 15.403, the cost or pricing data shall be submitted in accordance with FAR 15.403-5.
(2) When the necessity to proceed with a change does not allow sufficient time to negotiate a modification or because of failure to reach an agreement, the contracting officer may issue a change order instructing the contractor to proceed on the basis of a tentative price based on the best estimate available at the time, with the firm price to be determined later. Furthermore, when the change order is issued, the contractor shall submit a proposal, which includes the information required by paragraph (a)(1), for cost of changes in work within 30 calendar days.
(3) The contracting officer will consider issuing a settlement by determination to the contract if the contractor's proposal required by paragraphs (a)(1) or (a)(2) of this clause is not received within 30 calendar days or if agreement has not been reached.
(4) Bond premium adjustment, consequent upon changes ordered, will be made as elsewhere specified at the time of final settlement under the contract and will not be included in the individual change.
(b) Paragraphs (b)(1) through (b)(11) apply to proposed contract changes costing $500,000 or less:
(1) When requested by the contracting officer, the contractor shall submit proposals for changes in work to the resident engineer. Proposals, to be submitted as expeditiously as possible but within 30 calendar days after receipt of request, shall be in legible form, original and two copies, with an itemized breakdown that will include material, quantities, unit prices, labor costs (separated into trades), construction equipment, etc. (Labor costs are to be identified with specific material placed or operation performed.) The contractor must obtain and furnish with a proposal an itemized breakdown as described above, signed by each subcontractor participating in the change regardless of tier. When certified cost or pricing data or information other than cost or pricing data are required under FAR 15.403, the data shall be submitted in accordance with FAR 15.403-5. No itemized breakdown will be required for proposals amounting to less than $1,000.
(2) When the necessity to proceed with a change does not allow sufficient time to negotiate a modification or because of failure to reach an agreement, the contracting officer may issue a change order instructing the contractor to proceed on the basis of a tentative price based on the best estimate available at the time, with the firm price to be determined later. Furthermore, when the change order is issued, the contractor shall submit within 30 calendar days, a proposal that includes the information required by paragraph (b)(1) for the cost of the changes in work.
(3) The contracting officer will consider issuing a settlement by determination to the contract if the contractor's proposal required by paragraphs (b)(1) or (b)(2) of this clause is not received within 30 calendar days, or if agreement has not been reached.
(4) Allowances not to exceed 10 percent each for overhead and profit for the party performing the work will be based on the value of labor, material, and use of construction equipment required to accomplish the change. As the value of the change increases, a declining scale will be used in negotiating the percentage of overhead and profit. Allowable percentages on changes will not exceed the following: 10 percent overhead and 10 percent profit on the first $20,000; 7-1/2 percent overhead and 7-1/2 percent profit on the next $30,000; 5 percent overhead and 5 percent profit on balance over $50,000. Profit shall be computed by multiplying the profit percentage by the sum of the direct costs and computed overhead costs.
(5) The prime contractor's or upper-tier subcontractor's fee on work performed by
(6) Not more than four percentages, none of which exceed the percentages shown above, will be allowed regardless of the number of tiers of subcontractors.
(7) Where the contractor's or subcontractor's portion of a change involves credit items, such items must be deducted prior to adding overhead and profit for the party performing the work. The contractor's fee is limited to the net increase to contractor of subcontractors' portions cost computed in accordance herewith.
(8) Where a change involves credit items only, a proper measure of the amount of downward adjustment in the contract price is the reasonable cost to the contractor if he/she had performed the deleted work. A reasonable allowance for overhead and profit are properly includable as part of the downward adjustment for a deductive change. The amount of such allowance is subject to negotiation.
(9) Cost of Federal Old Age Benefit (Social Security) tax and of Worker's Compensation and Public Liability insurance appertaining to changes are allowable. While no percentage will be allowed thereon for overhead or profit, prime contractor's fee will be allowed on such items in subcontractors' proposals.
(10) Overhead and contractor's fee percentages shall be considered to include insurance other than mentioned herein, field and office supervisors and assistants, security police, use of small tools, incidental job burdens, and general home office expenses and no separate allowance will be made therefore. Assistants to office supervisors include all clerical, stenographic and general office help. Incidental job burdens include, but are not necessarily limited to, office equipment and supplies, temporary toilets, telephone and conformance to OSHA requirements. Items such as, but not necessarily limited to, review and coordination, estimating and expediting relative to contract changes are associated with field and office supervision and are considered to be included in the contractor's overhead and/or fee percentage.
(11) Bond premium adjustment, consequent upon changes ordered, will be made as elsewhere specified at the time of final settlement under the contract and will not be included in the individual change.
As prescribed in Table 825.1102, insert the following clause:
(a) Reference is made to the clause entitled “Buy American Act—Construction Materials,” FAR 52.225-9.
(b) Notwithstanding a bidder's right to offer identifiable foreign construction material in its bid pursuant to FAR 52.225-9, VA does not anticipate accepting an offer that includes foreign construction material.
(c) If a bidder chooses to submit a bid that includes foreign construction material, that bidder must provide a listing of the specific foreign construction material he/she intends to use and a price for said material. Bidders must include bid prices for comparable domestic construction material. If VA determines not to accept foreign construction material and no comparable domestic construction material is provided, the entire bid will be rejected.
(d) Any foreign construction material proposed after award will be rejected unless the bidder proves to VA's satisfaction: (1) it was impossible to request the exemption prior to award, and (2) said domestic construction material is no longer available, or (3) where the price has escalated so dramatically after the contract has been awarded that it would be unconscionable to require performance at that price. The determinations required by (1), (2), and (3) of this paragraph shall be made in accordance with Subpart 825.2 and FAR 25.2.
(e) By signing this bid, the bidder declares that all articles, materials and supplies for use on the project shall be domestic unless specifically set forth on the Bid Form or addendum thereto.
(a) Reference is made to the clause entitled “Buy American Act—Construction Materials under Trade Agreements,” FAR 52.225-11.
(b) The restrictions contained in this clause 852.236-89 are waived for designated country construction material as defined in FAR 52.225-11. Notwithstanding a bidder's right to offer identifiable foreign construction material in its bid pursuant to FAR 52.225-11, VA does not anticipate accepting an offer that includes foreign construction material, other than designated country construction material.
(a) Reference is made to the clause entitled “Buy American Act—Construction Materials under Trade Agreements,” FAR 52.225-11 and its Alternate I.
(b) The restrictions contained in this clause 852.236-89 are waived for World Trade Organization (WTO) Government Procurement Agreement (GPA) country, Australian, Chilean, or Moroccan, least developed country, or Caribbean Basin country construction material, as defined in FAR 52.225-11 and its Alternate I. Notwithstanding a bidder's right to offer identifiable foreign construction material in its bid pursuant to FAR 52.225-11, VA does not anticipate accepting an offer that includes foreign construction material, other than WTO GPA country, Australian, Chilean, or Moroccan, least developed country, or Caribbean Basin country construction material.
As prescribed in 836.202(c), the following clause shall be included in the solicitation if it is determined that only one product will meet the Government's minimum needs and the Department of Veterans Affairs will not allow the submission of “equal” products:
The clause applies to the following items:
As prescribed in 836.579, insert the following clause:
(a) Signing of the bid shall be deemed to be a representation by the bidder that:
(1) Bidder is a construction contractor who owns, operates, or maintains a place of business, regularly engaged in construction, alteration, or repair of buildings, structures, and communications facilities, or other engineering projects, including furnishing and installing of necessary equipment; or
(2) If newly entering into a construction activity, bidder has made all necessary arrangements for personnel, construction equipment, and required licenses to perform construction work; and
(3) Upon request, prior to award, bidder will promptly furnish to the Government a statement of facts in detail as to bidder's previous experience (including recent and current contracts), organization (including company officers), technical qualifications, financial resources and facilities available to perform the contemplated work.
(b) Unless otherwise provided in this contract, where the use of optional materials or construction is permitted, the same standard of workmanship, fabrication and installation shall be required irrespective of which option is selected. The contractor shall make any change or adjustment in connecting work or otherwise necessitated by the use of such optional material or construction, without additional cost to the Government.
(c) When approval is given for a system component having functional or physical characteristics different from those indicated or specified, it is the responsibility of the contractor to furnish and install related components with characteristics and capacities compatible with the approved substitute component as required for systems to function as noted on drawings and
(d) In some instances it may have been impracticable to detail all items in specifications or on drawings because of variances in manufacturers' methods of achieving specified results. In such instances the contractor will be required to furnish all labor, materials, drawings, services and connections necessary to produce systems or equipment which are completely installed, functional, and ready for operation by facility personnel in accordance with their intended use.
(e) Claims by the contractor for delay attributed to unusually severe weather must be supported by climatological data covering the period and the same period for the 10 preceding years. When the weather in question exceeds in intensity or frequency the 10-year average, the excess experienced shall be considered “unusually severe.” Comparison shall be on a monthly basis. Whether or not unusually severe weather in fact delays the work will depend upon the effect of weather on the branches of work being performed during the time under consideration.
As prescribed in 837.403, insert the following clause:
(a) It is expressly agreed and understood that this is a non-personal services contract, as defined in Federal Acquisition Regulation (FAR) 37.101, under which the professional services rendered by the Contractor or its health-care providers are rendered in its capacity as an independent contractor. The Government may evaluate the quality of professional and administrative services provided but retains no control over professional aspects of the services rendered, including by example, the Contractor's or its health-care providers' professional medical judgment, diagnosis, or specific medical treatments. The Contractor and its health-care providers shall be liable for their liability-producing acts or omissions. The Contractor shall maintain or require all health-care providers performing under this contract to maintain, during the term of this contract, professional liability insurance issued by a responsible insurance carrier of not less than the following amount(s) per specialty per occurrence:
(b) An apparently successful offeror, upon request of the Contracting Officer, shall, prior to contract award, furnish evidence of the insurability of the offeror and/or of all health-care providers who will perform under this contract. The submission shall provide evidence of insurability concerning the medical liability insurance required by paragraph (a) of this clause or the provisions of State law as to self-insurance, or limitations on liability or insurance.
(c) The Contractor shall, prior to commencement of services under the contract, provide to the Contracting Officer Certificates of Insurance or insurance policies evidencing the required insurance coverage and an endorsement stating that any cancellation or material change adversely affecting the Government's interest shall not be effective until 30 days after the insurer or the Contractor gives written notice to the Contracting Officer. Certificates or policies shall be provided for the Contractor and/or each health-care provider who will perform under this contract.
(d) The Contractor shall notify the Contracting Officer if it, or any of the health-care providers performing under this contract, change insurance providers during the performance period of this contract. The notification shall provide evidence that the Contractor and/or health-care providers will meet all the requirements of this clause, including those concerning liability insurance and endorsements. These requirements may be met either under the new policy, or a combination of old and new policies, if applicable.
(e) The Contractor shall insert the substance of this clause, including this paragraph (e), in all subcontracts for health-care services under this contract. The Contractor shall be responsible for compliance by any subcontractor or lower-tier subcontractor with the provisions set forth in paragraph (a) of this clause.
As prescribed in 837.110, insert the following clause:
The contractor shall obtain all necessary licenses and/or permits required to perform this work. He/she shall take all reasonable precautions necessary to protect persons and property from injury or damage during the performance of this contract. He/she shall be responsible for any injury to himself/herself, his/her employees, as well as for any damage to personal or public property that occurs during the performance of this contract that is caused by his/her employees fault or negligence, and shall maintain personal liability and property damage insurance having coverage for a limit as required by the laws of the State of [ ]. Further, it is agreed that any negligence of the Government, its officers, agents, servants and employees, shall not be the responsibility of the contractor hereunder with the regard to any claims, loss, damage, injury, and liability resulting there from.
As prescribed in 846.302-70, insert the following clause:
The contractor guarantees the equipment against defective material, workmanship and performance for a period of [ ]
As prescribed in 846.302-71(a), insert the following clause:
Rejected goods will be held subject to contractors order for not more than 15 days, after which the rejected merchandise will be returned to the contractor's address at his/her risk and expense. Expenses incident to the examination and testing of materials or supplies that have been rejected will be charged to the contractor's account.
The contractor shall remove rejected supplies within 48 hours after notice of rejection. Supplies determined to be unfit for human consumption will not be removed without permission of the local health authorities. Supplies not removed within the allowed time may be destroyed. The Department of Veterans Affairs will not be responsible for nor pay for products rejected. The contractor will be liable for costs incident to examination of rejected products.
As prescribed in 846.302-72, insert the following clause:
The products delivered under this contract shall be in excellent condition, shall not show evidence of defrosting, refreezing, or
As prescribed in 846.302-73, insert the following clause:
Failure to comply with the packaging, packing and/or marking requirements indicated herein, or incorporated herein by reference, may result in rejection of the merchandise and request for replacement or repackaging, repacking, and/or marking. The Government reserves the right, without obtaining authority from the contractor, to perform the required repackaging, repacking, and/or marking services and charge the contractor at the actual cost to the Government for the same or have the required repackaging, repacking, and/or marking services performed commercially under Government order and charge the contractor at the invoice rate. In connection with any discount offered, time will be computed from the date of completion of such repackaging, repacking and/or marking services.
As prescribed in 846.710-70, insert the following clause:
The clause entitled “Warranty of Construction” in FAR 52.246-21 is supplemented as follows:
Any special warranties that may be required under the contract shall be subject to the elections set forth in the FAR clause at 52.246-21, Warranty of Construction, unless otherwise provided for in such special warranties.
As prescribed in 846.710-71, insert the following clause:
The clause entitled “Warranty of Construction” in FAR 52.246-21 is supplemented as follows:
Should the contractor fail to prosecute the work or fail to proceed promptly to provide guarantee period services after notification by the contracting officer, the Government may, subject to the default clause contained at FAR 52.249-10, Default (Fixed-Price Construction), and after allowing the contractor 10 days to correct and comply with the contract, terminate the right to proceed with the work (or the separable part of the work) that has been delayed or unsatisfactorily performed. In this event, the Government may take over the work and complete it by contract or otherwise, and may take possession of and use any materials, appliances, and plant on the work site necessary for completing the work. The contractor and its sureties shall be liable for any damages to the Government resulting from the contractor's refusal or failure to complete the work within this specified time, whether or not the contractor's right to proceed with the work is terminated. This liability includes any increased costs incurred by the Government in completing the work.
As prescribed in 847.305-70, insert the following provision:
For the purpose of evaluating bids and for no other purpose, the delivered price per unit will be determined by adding the nationwide average transportation charge to the f.o.b. origin bid prices. The nationwide average transportation charge will be determined by applying the following formula: Multiply the guaranteed shipping weight by the freight, parcel post, or express rate, whichever is proper, to each destination shown below and then multiply the resulting transportation charges by the anticipated demand factor shown for each destination. Total the resulting weighted transportation charges for all destinations and divide the total by 20 to give the nationwide average transportation charge.
As prescribed in 852.102(a), insert the following provision:
The following provisions or clauses incorporated by reference in this solicitation must be completed by the offeror or prospective contractor and submitted with the quotation or offer. Copies of these provisions or clauses are available on the Internet at the Web sites provided in the provision at FAR 52.252-1, Solicitation Provisions Incorporated by Reference, or the clause at FAR 52.252-2, Clauses Incorporated by Reference. Copies may also be obtained from the contracting officer.
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As prescribed in 801.603-70(d), insert the following provision:
The contracting officer reserves the right to designate representatives to act for him/her in furnishing technical guidance and advice or generally monitor the work to be performed under this contract. Such designation will be in writing and will define the scope and limitation of the designee's authority. A copy of the designation shall be furnished to the contractor.
As prescribed in 870.111-3, insert the following clause:
The bidder agrees to furnish up to 25 percent more or 25 percent less than the quantities awarded when ordered by the Department of Veterans Affairs.
As prescribed in 870.111-3, insert the following clause:
The bidder certifies that oysters, clams, and mussels will be furnished only from plants approved by and operated under the supervision of shellfish authorities of States whose certifications are endorsed currently by the U.S. Public Health Service, and the names and certificate numbers of those shellfish dealers must appear on current lists published by the U.S. Public Health Service. These items shall be packed and delivered in approved containers, sealed in such manner that tampering is easily discernible, and marked with packer's certificate number impressed or embossed on the side of such containers and preceded by the State abbreviation. Containers shall be tagged or labeled to show the name and address of the approved producer or shipper, the name of the State of origin, and the certificate number of the approved producer or shipper.
As prescribed in 837.110-70 and 871.212, insert the following provision:
The contractor agrees to provide all services specified in this contract for any person determined eligible by the Department of Veterans Affairs, regardless of the race, color, religion, sex, or national origin of the person for whom such services are ordered. The contractor further warrants that he/she will not resort to subcontracting as a means of circumventing this provision.
As prescribed in 871.212, insert the following clause:
The contractor agrees that no counselee referred under the provisions of this agreement will be required to give any extra time in connection with the counseling process to supply test results or other information for purposes other than those specified in this contract.
As prescribed in 871.212, insert the following clause:
The contractor agrees that none of the information or data gathered in connection with the services specified in this contract or studies or materials based thereon or relating thereto will be publicized without the prior approval of the Under Secretary for Benefits or his/her designee.
As prescribed in 871.212, insert the following clause:
The contractor will permit the duly authorized representative of the Department of Veterans Affairs to visit the place of instruction or the counseling and testing operations as may be necessary and examine the training facilities, the work of the veterans in training under this contract, and the records of these operations.
As prescribed in 871.212, insert the following clause:
This contract may be extended from year to year if agreeable to both parties provided the agreement for extension is consummated 30 days prior to the expiration date, and further provided that there is no change in the provisions, terms, conditions, or rate of payment. Any extension made hereunder is subject to the availability of funds during the period covered by the extension.
As prescribed in 873.110(a), insert the following provision:
This provision replaces paragraph (f) of FAR provision 52.212-1. Offers or modifications of offers received after the time set forth in a request for quotations or request for proposals may be considered, at the discretion of the contracting officer, if determined to be in the best interest of the Government. Late bids submitted in response to an invitation for bid (IFB) will not be considered.
As prescribed in 873.110(b), insert the following provision:
The contracting officer may elect to use the alternative negotiation techniques described in section 873.111(e) of 48 Code of Federal Regulations Chapter 8 in conducting this procurement. If used, offerors may respond by maintaining offers as originally submitted, revising offers, or submitting an alternative offer. The Government may consider initial offers unless revised or withdrawn, revised offers, and alternative offers in making the award. Revising an offer does not guarantee an offeror an award.
As prescribed in 873.110(c), insert the following provision:
(a) The Government will award a contract resulting from this solicitation to the responsible offeror submitting the lowest priced offer that conforms to the solicitation. During the specified period for receipt of offers, the amount of the lowest offer will be posted and may be viewed by [
(b) Except when it is determined not to be in the Government's best interest, the Government will evaluate offers for award purposes by adding the total price for all options to the total price for the basic requirement. The Government may determine that an offer is unacceptable if the option prices are materially unbalanced. Evaluation of options shall not obligate the Government to exercise the option(s).
As prescribed in 873.110(d), in lieu of FAR provision 52.212-2, the contracting officer may insert a provision substantially as follows:
(a) The Government will award a contract resulting from this solicitation to the responsible offeror whose offer, conforming to the solicitation, will be most advantageous to the Government, price and other factors considered. The following information or factors shall be used to evaluate offers: [
(b) Except when it is determined not to be in the Government's best interest, the Government will evaluate offers for award purposes by adding the total price for all options to the total price for the basic requirement. The Government may determine that an offer is unacceptable if the option prices are materially unbalanced. Evaluation of options shall not obligate the Government to exercise the option(s).
(c) If this solicitation is a request for proposals (RFP), a written notice of award or acceptance of an offer, mailed or otherwise furnished to the successful offeror within the time for acceptance specified in the offer, shall result in a binding contract without further action by either party. Before the offer's specified expiration time, the Government may accept an offer (or part of an offer), whether or not there are negotiations after its receipt, unless a written notice of withdrawal is received before award.
As prescribed in 873.110(e), insert the following provision:
The Government intends to evaluate proposals and award a contract without exchanges with offerors. Therefore, each initial offer should contain the offeror's best terms from a cost or price and technical standpoint. However, the Government reserves the right to conduct exchanges if later determined by the contracting officer to be necessary.
38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-1.304.
This part prescribes VA forms for use in the acquisition of goods and services. It only identifies forms that are used between VA and its contractors or the general public. It does not identify forms for uses internal to VA or between VA and another Federal agency.
The VA forms may be obtained from any VA contracting office or by requesting such forms from the Deputy Assistant Secretary for Acquisition and Materiel Management, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420.
Standard Form (SF) 1402, Certificate of Appointment, is used in accordance with FAR 1.603-3, Appointment, to appoint VA contracting officers under VA's Contracting Officer Certification Program (see 801.690-6).
The following forms are prescribed as stated in this section for use in simplified acquisition procedures, orders under existing contracts or agreements, orders from required sources of supplies and services, and orders for other supplies or services:
(a) VA Forms 90-2138, Order for Supplies or Services, or 90-2138-ADP, Purchase Order for Supplies or Service, shall be used as indicated in 813.307. They may be used in lieu of OF 347, Order of Supplies and Services, or Standard Form 1449, Solicitation/Contract/Order for Commercial Items.
(b) The following forms are for use for obtaining indicated medical and dental services within the limitations prescribed in 813.307:
(1) VA Form 10-7078, Authorization and Invoice for Medical and Hospital Services.
(2) VA Form 10-7079, Request for Outpatient Medical Services.
(3) VA Form 10-2570d, Dental Record Authorization and Invoice for Outpatient Service.
(c) VA Form 10-2511, Authority and Invoice for Travel by Ambulance or Other Hired Vehicle, will be used as prescribed in 813.307.
(d) VA Form 10-2421, Prosthetics Authorization and Items and Services, will be used for indicated procurements not to exceed $300 as prescribed in 813.307.
VA Form 10-1170, Application for Furnishing Nursing Home Care to Beneficiaries of VA, will be used for establishing contract nursing home care for VA beneficiaries.
VA Form 10-6298, Architect-Engineer Fee Proposal, shall be used as prescribed in 836.606-71.
(a) VA Form 26-6724, Invitation, Bid, and/or Acceptance or Authorization, will be used in obtaining services specified in Subpart 871.1.
(b) VA Form 26-1839, Compliance Inspection Report, will be used for inspection of repairs for properties under the Loan Guaranty Program as specified in 846.472.
To obtain education or rehabilitation services, contracting officers may use an individual written contract or VA Form 28-1905, Authorization and Certification of Entrance or Reentrance into Rehabilitation and Certification of Status.
VA Forms will not be illustrated in this VAAR. Persons wishing to obtain copies of VA forms prescribed in the VAAR may do so in accordance with 853.107. VA forms may also be available on the Web at
38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-1.304.
(a) The contracting officer shall include the clause at 852.270-2, Bread and bakery products—quantities, in solicitations and contracts for bread and bakery products.
(b) The contracting officer shall include the clause at 852.270-3, Purchase of shellfish, in solicitations and contracts for shellfish.
(a) The following frozen processed food products must have a label complying with the Federal Food, Drug and Cosmetic Act (21 U.S.C. 301 et seq.), which requires that all ingredients be listed according to the order of their predominance:
(1) Frozen processed food products that contain meat, poultry, or a significant proportion of eggs.
(2) Frozen processed food products that contain fish or fish products.
(3) Frozen bakery products.
(b) All procured frozen processed food products that contain meat, poultry or a significant proportion of eggs must meet the following requirements:
(1) The products must be processed or prepared in plants operating under the supervision of the Department of Agriculture (USDA).
(2) The product must be inspected and approved in accordance with USDA regulations governing meat, poultry, or egg inspection. A label or seal that indicates compliance with USDA regulations, affixed to the container, will be accepted as evidence of compliance.
(c) All procured frozen processed food products that contain fish or fish products must meet the following requirements:
(1) The product must be processed or prepared in plants operated under the supervision of the Department of Commerce (DOC). The products listed in DOC's publication “Approved List of Sanitarily Inspected Fish Establishments” are processed in plants under Federal inspection of the National Marine Fisheries Service, National Oceanic and Atmospheric Administration, DOC. The inspected products packed under various labels bearing the brand names are produced in accordance with current U.S. Grade Standards or official product specifications, packed under optimum hygienic conditions, and must meet Federal, State, and city sanitation and health regulations. Such brand label or DOC seal indicating compliance with DOC regulations, affixed to a container, will be accepted as evidence of compliance.
(2) If the condition in paragraph (c)(1) of this section was not met (no seal), the shipment may be lot-inspected by the DOC, and containers stamped to indicate acceptance or a Certification of Inspection issued to accompany the shipment.
(d) Producers of frozen bakery products that ship products in interstate commerce are required to comply with the Federal Food, Drug and Cosmetic Act. Therefore, the product must be verified as shipped interstate or that the producer ships products to other purchasers interstate.
(a) The contracting officer must include the clause at 852.211-71, Special notice in solicitations, including those for construction, that are based on detailed purchase descriptions or formal specifications for telecommunications equipment, as defined in VA manual MP-6, Part VIII (available at any VA facility).
(b) The Telecommunications Support Service must review and approve the descriptive literature required by the clause in 852.211-71, Special notice, furnished by the contractor after award, before delivery or installation by the contractor. Promptly upon receipt of the descriptive literature, contracting officers will forward it, together with a copy of the contract, the formal specification, or the detailed purchase description, to the DSPE.
(c) Solicitations, including those for construction, for telecommunications equipment based on “brand name or equal” purchase description are subject to the following:
(1) Before award, contracting officers will forward to the DSPE the abstract of bids, one copy of each offer received, including descriptive literature and pertinent letters, and the comments and recommendations of the contracting officer.
(2) No commitments are to be made to contractors before receiving Central Office's response.
(3) The solicitation must allow at least 30 calendar days for acceptance to allow sufficient time for the review required by this paragraph. (See FAR 52.214-16.)
When contracting for the use of conference facilities, contracting officers shall follow and comply with the Federal Travel Regulation, 41 CFR Part 301-74, Conference Planning, and shall document the contract file as specified therein, including documentation of efforts to locate Government-owned space and efforts to reduce costs.
(a) All new food service equipment purchased for Dietetic Service through other than Defense General Supply Center sources must meet requirements set forth by the National Sanitation Foundation.
(b) The contracting officer will accept an affixed National Sanitation Foundation label and/or documentation of the certification by the National Sanitation Foundation from the contractor as evidence that the subject equipment meets sanitation standards issued by the National Sanitation Foundation.
38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-1.304.
This subpart sets forth policy and procedures with respect to the loan guaranty and direct loan programs as they pertain to property management, including the acquisition, management, and disposition of property, real, personal, or mixed, that were secured by loans guaranteed, insured, or made under Title 38, U.S.C.
All acquisitions for the repair and maintenance of VA property acquired under 38 U.S.C. Chapter 37 must be made in accordance with FAR Parts 14, 15, and 16, Parts 814, 815, and 816 of this chapter, and this subpart.
(a) Except as provided in this subpart, Directors, Loan Guaranty Officers, and Assistant Loan Guaranty Officers, VA Regional Offices, are authorized to approve a repair program for any VA property acquired under Chapter 37, Title 38, U.S.C., if the cost does not exceed $25,000. A repair program means the aggregate amount of the proposed contracts that are contemplated in a property analysis by the Loan Guaranty activity.
(b) In cases where the expenditure is known or estimated to exceed $25,000, the Loan Guaranty Officer, or his or her designee, must forward the request,
(c) During the period when VA has assumed custody of the property from a holder and before its conveyance to VA under 38 CFR 36.4320, repairs not in excess of $3,500 are authorized, when appropriate to make the property ready for sale at an earlier date than would otherwise be possible if the repair program was delayed until VA acquired absolute title. In cases where the expenditure is known or estimated to exceed $3,500, the Loan Guaranty Officer, or his or her designee, must forward the request, together with the loan guarantee folder, to the Under Secretary for Benefits for approval.
(d) The holder must not make repairs to a property when it has continued custody, except for emergency repairs not in excess of $500, unless the holder gives adequate notice to the Director, Regional Office. Emergency repairs means immediate action to preserve the property from serious damage or to correct a situation imminently dangerous to life or limb, including the initial cleanup of the property to prevent the risk of damage by fire or vandalism.
(e) An approved management broker may be authorized, when the property is assigned, to incur expenses for fuel and utilities or other recurring items that VA is required to furnish to its tenants or are required to maintain the property if the following conditions are met:
(1) Advance blanket authorization to a management broker must be limited to repairs not in excess of $500 in any transaction.
(2) The management broker must either submit receipts with an invoice or maintain receipts for inspection.
(3) Expenditures in excess of $500 require prior approval of the Director, Regional Office, having jurisdiction of the property.
(4) The management broker must aggregate the costs of repairs when determining whether prior approval is required.
(a) Bidders must be qualified in accordance with procedures outlined in FAR Subpart 9.1 and Subpart 809.1 of this chapter.
(b) Management brokers are not acceptable bidders for a repair contract due to their close association on a fee basis with VA. This restriction also applies to any contracting firm in which the management broker has an interest and in which it could be presumed that the firm would have an advantage over the other bidders. This does not preclude the management broker from performing routine recurring maintenance or minor repairs. When seeking payment for maintenance or repairs, the management broker must establish that any charges are not in excess of the prevailing fees for similar services in the area.
(a) In a contract for $2,500 or more, the contracting officer must include the following requirements:
(1) The contractor must sign a formal release in full or a lien waiver before payment may be made.
(2) The contractor must notify the Director, Regional Office, of any subcontracts for services or materials in excess of $2,500. Each subcontractor must sign the release or waiver jointly with the prime contractor or exercise a release or waiver in the subcontractor's own name.
(b) The contracting officer must not pay the contractor unless the release or waiver accompanies the contractor's invoice.
(c) Before any authorized partial payment, the contractor must execute a release or waiver.
(d) Due to the variations of local law, no standard release or waiver is prescribed. Each release or waiver must be prepared in accordance with local law and must be in form acceptable to the District Counsel.
(a) In a contract for an amount less than $2,500, when determined necessary by the Director, Regional Office, the contracting officer may include the following:
The contractor expressly waives any and all rights to file or maintain any mechanics lien or claim against the aforesaid premises.
(b) In a contract for $2,500 or more when there is doubt that the final responsibility of the contractor will provide maximum protection to the Government, the contracting officer must include any requirements that are available under local law. The contracting officer must obtain advice and approval of any contract stipulation or legal stipulations against liens from the District Counsel.
This subpart establishes policy and procedures for the vocational rehabilitation and employment services as it pertains to the following:
(a) Contracts for training and rehabilitation services.
(b) Approval of institutions (including rehabilitation facilities), training establishments, and employers under 38 U.S.C. Chapter 31.
(c) Contracts for counseling services under 38 U.S.C. Chapters 30, 31, 32, 35, and 36 and 10 U.S.C. Chapters 106, 107, and 1606.
The VA negotiates contracts for tuition, fees, books, supplies, and other allowable expenses incurred by an institution, training establishment, or employer for the training and rehabilitation of eligible veterans under 38 U.S.C. Chapter 31 when the following services are provided:
(a)
(b)
(a) For the purpose of this section a contract is not required when all tuition, fees, and charges for books, supplies, or services necessary to train or educate an eligible veteran under 38 U.S.C. Chapter 31 are published in the school catalog or other published document.
(b) When a contract is not required, the Vocational Rehabilitation and Employment Officer must obtain a signed statement of charges from the educational institution or training establishment for courses to be offered, including the rate of tuition, fees, and separate charges, if any, for books, supplies, and equipment handling charges, refund policy, and other provisions as are required to determine
The medical services provided trainees under vocational rehabilitation and education contracts, agreements, or arrangements are separate and distinct from any other medical service under the jurisdiction of the Veterans Health Administration to which the veteran may be entitled. No certificate of eligibility is required from the Veterans Health Administration before the veteran may be provided such services.
Letter contracts are authorized for use in accordance with the provision of FAR 16.603 and in those cases in which it is not possible to complete a formal contract with an approved educational institution before the enrollment of eligible veterans for training.
The educational institution or training establishment is not required to mark supplies to indicate ownership by the United States. Supplies are considered to be the property of the trainee at the time they are furnished.
Except for contracts for educational and vocational counseling, the contracting office may renew contracts from year to year by completing a renewal agreement no later than 30 days before the expiration of the contract. There must be no change in the schedule of provisions in the original contract.
(a) Supplements may be negotiated at any time during the contract period upon the completion of the supplemental agreement.
(b) Contracts for educational and vocational counseling may provide for automatic extension from year to year.
A contracting officer may not award a contract or agreement to any institution or training establishment that requires VA is to pay a minimum charge, or to enroll a minimum number of participants per quarter, semester, term, course, or other period.
A contract must include the exact formula agreed on for the proration of charges in the event that the veteran's program is interrupted or discontinued before the end of the term, semester, quarter, or other period, or the program is completed in less time than stated in the contract.
VA may pay fees and other charges that are not prescribed by law but are required by nongovernmental organizations, such as initiation fees required to become a member of a labor union and the dues necessary to maintain membership incidental to training on the job or to obtaining employment during a period in which the veteran is a chapter 31 participant, provided there are no facilities feasibly available where the necessary training can be feasibly accomplished or employment obtained without paying such charges. Payment for such fees must be made in accordance with Part 813.
(a) Contracts, agreements, or arrangements requiring the payment of tuition or fees must provide either of the following:
(1) Payment for tuition or fees must be made in arrears and must be prorated in installments over the school year or the length of the course.
(2) An institution may be paid in accordance with paragraph (b) of this section, if the institution operates on a regular term, quarter, or semester basis and normally accepts students only at the beginning of the term, quarter, or semester and if the institution is one of the following:
(i) An institution of higher learning that uses a standard unit of credit recognized by accrediting associations. Such institutions include those that are members of recognized national or regional educational accrediting associations, and those that, although not members of such accrediting associations, grant standard units of credit acceptable at full value without examination by collegiate institutions that are members of national or regional accrediting associations.
(ii) A public tax-supported institution.
(iii) An institution operated and controlled by a State, county, or local board of education.
(b) An institution that meets the exceptions of paragraph (a)(2) of this section and that has a refund policy providing for a graduated scale of charges for purposes of determining refunds may be paid part or all such tuitions or fees for a term, quarter, or other period of enrollment immediately following the date on which the refund expires.
(c) Proration of charges does not apply to a fee for noncontinuing service, such as a registration fee, etc.
(d) The period for which payment of charges may be made is the period of actual enrollment and is subject to the following:
(1) The effective date is the date of the trainee's entrance into training status, except that payment may be made for an entire semester, quarter, or term in institutions operating on that basis if the trainee enters no later than the final date set by the institution for enrolling for full credit.
(2) In those cases where the institution has not set a final date for enrolling for full credit or does not set a date acceptable to VA, payment may be prorated on the basis of attendance, regardless of the refund policy.
(3) If an institution customarily charges for the amount of credit or number of hours of attendance for which a trainee enrolls, payment may be made on that basis when a trainee enrolls after the final date permitted for carrying full credit for the semester or term.
Charges by rehabilitation facilities for the rehabilitation services provided under 38 U.S.C. Chapter 31 are paid in the same manner as charges for educational and vocational services through contract, agreement, or other arrangement.
Contracts, agreements, or arrangements must provide for the number and frequency of reports, adequate financial records to support payment for each trainee, and maintenance of attendance and progress records. Such records must be preserved for a period of three years.
Contracts with institutions for correspondence courses must provide for the following:
(a) Major changes in courses or course material are not binding on the VA until a supplemental agreement to the contract is negotiated.
(b) Minor changes in course or course material not affecting the length of the course or number of lessons and not lowering the educational value of the course or the quality of the course
(c) Trainees must be provided with prompt and adequate lessons service and, unless otherwise specified in the contract, must be furnished the same texts, lessons service, diplomas, and other services as are normally provided for regularly enrolled non-veteran students.
(d) All lessons must be adequately serviced on an individual basis. Grouping of lessons into units or partial servicing does not meet this requirement.
(e) Each lesson must have a separate examination that is adequate in terms of lesson content.
(f) The training of persons under a VA contract or the fact that the United States is using the facilities of the institution for training veterans must not be used in any way to advertise the institution. References in the advertising media or correspondence of the institution shall be limited to a list of courses under 38 U.S.C. Chapter 31 and must not be directed or pointed specifically to veterans.
(g) The rates, fees, and charges must not be in excess of those charged nonveterans.
(h) Payment must be made on a lesson-completed basis in areas for assignments sent in by trainees and serviced during a pay period as established by the contract.
(i) Payment must be made only once for each lesson even though it is necessary to service a lesson more than once.
Specific questions on correspondence courses as to the content of courses, academic credit, and entrance requirements for courses included in VA contracts may be directed to the institutions offering the courses.
Contracting officers must use the following clauses, as appropriate, in solicitations and contracts for vocational rehabilitation and employment services as they pertain to training and rehabilitation services and contracts for counseling services:
(a) 852-271-70 Nondiscrimination in services provided to beneficiaries.
(b) 852.271-72 Time spent by counselee in counseling process.
(c) 852.271-73 Use and publication of counseling results.
(d) 852.271-74 Inspection.
(e) 852.271-75 Extension of contract period.
38 U.S.C. 501 and 8151-8153; 40 U.S.C. 121(c); and 48 CFR 1.301-1.304.
The simplified acquisition procedures set forth in this Department of Veterans Affairs Acquisition Regulation (VAAR) part apply to the acquisition of health-care resources consisting of commercial services or the use of medical equipment or space. These procedures shall be used in conjunction with the Federal Acquisition Regulation (FAR) and other parts of the VAAR. However, when a policy or procedure in the FAR or another part of the VAAR differs from the procedures contained in this part, this part shall apply. These procedures contain more flexibility than provided in the FAR or elsewhere in the VAAR. (38 U.S.C. 8153)
Without regard to FAR 8.002(a)(2), except for the acquisition of services available from the Committee for Purchase From People Who Are Blind or Severely Disabled, pursuant to the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) and FAR Subpart 8.7, there are no priority sources for the acquisition of health-care resources consisting of commercial services or the use of medical equipment or space. (38 U.S.C. 8153)
(a) Without regard to FAR Part 6, if the health-care resource required is a commercial service, the use of medical equipment or space, or research, and is to be acquired from an institution affiliated with the Department in accordance with section 7302 of title 38 U.S.C., including medical practice groups and other approved entities associated with affiliated institutions (entities will be approved if determined legally to be associated with affiliated institutions), or from blood banks, organ banks, or research centers, the resource may be acquired on a sole source basis. (38 U.S.C. 8153)
(b) Acquisition of health-care resources identified in paragraph (a) of this section are not required to be publicized as otherwise required by 873.108 or FAR 5.101. In addition, written justification, as otherwise set forth in section 303(f) of the Federal Property and Administration Services Act of 1949 (41 U.S.C. 253(f)) and FAR Part 6, is not required. (38 U.S.C. 8153)
(c) Without regard to FAR 6.101, if the health-care resource required is a commercial service or the use of medical equipment or space, and is to be acquired from an entity not described in paragraph (a) of this section, contracting officers must seek competition to the maximum extent practicable and must permit all responsible sources, as appropriate under the provisions of this part, to submit a bid, proposal or quotation (as appropriate) for the resources to be procured and provide for the consideration by the Department of bids, proposals, or quotations so submitted. (38 U.S.C. 8153)
(d) Without regard to FAR 5.101, acquisition of health-care resources identified in paragraph (c) of this section shall be publicized as otherwise
(a) Acquisition planning is an indispensable component of the total acquisition process.
(b) For the acquisition of health-care resources consisting of commercial services or the use of medical equipment or space, where the acquisition is expected to exceed the simplified acquisition threshold (SAT), an acquisition team must be assembled. The team shall be tailored by the contracting officer for each particular acquisition expected to exceed the SAT. The team should consist of a mix of staff, appropriate to the complexity of the acquisition, and may include contracting, fiscal, legal, administrative, and technical personnel, and such other expertise as necessary to assure a comprehensive acquisition plan. The team should include the small business advocate representing the contracting activity or a higher level designee and the SBA Procurement Center Representative (PRC), if available. As a minimum, the team must include the contracting officer and a representative of the requesting service. (38 U.S.C. 8153)
(c) Prior to determining whether a requirement is suitable for acquisition using these simplified acquisition procedures, the contracting officer or the acquisition team, as appropriate, must conduct market research to identify interested businesses. It is the responsibility of the contracting officer to ensure the requirement is appropriately publicized and information about the procurement opportunity is adequately disseminated as set forth in 873.108. (38 U.S.C. 8153)
(d) In lieu of the requirements of FAR Part 7 addressing documentation of the acquisition plan, the contracting officer may conduct an acquisition strategy meeting with cognizant offices to seek approval for the proposed acquisition approach. If a meeting is conducted, briefing materials shall be presented to address the acquisition plan topics and structure in FAR 7.105. Formal written minutes—summarizing decisions, actions, and conclusions—shall be prepared and included in the contract file, along with a copy of the briefing materials. (38 U.S.C. 8153)
(a) This section shall be used in lieu of FAR Part 10, except as provided in paragraph (b)(3) of this section. In conducting market research, exchange of information by all interested parties involved in an acquisition, from the earliest identification of a requirement through release of the solicitation, is encouraged. Interested parties include potential offerors, end users, Government acquisition and support personnel, and others involved in the conduct or outcome of the acquisition. The nature and extent of presolicitation exchanges between the Government and industry shall be a matter of the contracting officer's discretion (for acquisitions not exceeding the simplified acquisition threshold) or the acquisition team's discretion, as coordinated by the contracting officer. (38 U.S.C. 8153)
(b) Techniques to promote early exchange of information include—
(1) Industry or small business conferences;
(2) Public hearings;
(3) Market research in accordance with FAR 10.002(b), which shall be followed to the extent that the provisions therein would provide relevant information;
(4) One-on-one meetings with potential offerors;
(5) Presolicitation notices;
(6) Draft requests for proposals (RFPs);
(7) Requests for information (RFIs);
(8) Presolicitation or preproposal conferences;
(9) Site visits;
(10) Electronic notices (e.g., Internet); and
(11) Use of the Central Contractor Registration (CCR). (
(a)
(b)
(2) Upon receipt of the notification of SBA's intention to appeal and pending issuance of a final Department appeal decision to SBA, the contracting officer involved must suspend action on the acquisition unless the contracting officer makes a determination in writing that proceeding to contract award and performance is in the public interest. The contracting officer must promptly notify SBA of the determination to proceed with the solicitation and/or contract award and must provide a copy of the written determination to SBA.
(3) SBA shall be allowed 10 working days after receiving the rejection notice from the contracting officer (or the HCA, if a waiver has been approved) for acquisitions not exceeding $5 million, or 15 working days after receiving the rejection notice for acquisitions exceeding $5 million, to file an appeal. SBA must notify the contracting officer within this 10 or 15 day period whether an appeal has, in fact, been taken. If notification is not received by the contracting officer within the applicable period, it shall be deemed that an appeal was not taken.
(4) SBA shall submit appeals to the Secretary. Decisions shall be made by the DSPE, whose decisions shall be final. (38 U.S.C. 8153)
(c)
(d)
(a) Without regard to FAR 5.101, all acquisitions under this part 873, except as provided in paragraph (b) of this section, for dollar amounts in excess of the simplified acquisition threshold (SAT), as set forth in FAR Part 13, shall be publicly announced utilizing a medium designed to obtain competition to the maximum extent practicable and to permit all responsible sources, as appropriate under the provisions of this part, to submit a bid, proposal, or quotation (as appropriate).
(1) The publication medium may include the Internet, including the Governmentwide point of entry (GPE), and local, regional or national publications or journals, as appropriate, at the discretion of the contracting officer, depending on the complexity of the acquisition.
(2) Without regard to FAR 5.203, notice shall be published for a reasonable time prior to issuance of a request for quotations (RFQ) or a solicitation, depending on the complexity or urgency of the acquisition, in order to afford potential offerors a reasonable opportunity to respond. If the notice includes a complete copy of the RFQ or solicitation, a prior notice is not required, and the RFQ or solicitation shall be considered to be announced and issued at the same time.
(3) The notice may include contractor qualification parameters, such as time for delivery of service, credentialing or medical certification requirements, small business or other socio-economic preferences, the appropriate small business size standard, and such other qualifications as the contracting officer deems necessary to meet the needs of the Government. (38 U.S.C. 8153)
(b) The requirement for public announcement does not apply to sole source acquisitions, described in 873.104(a), from institutions affiliated with the Department in accordance with section 7302 of title 38 U.S.C., including medical practice groups and other approved entities associated with affiliated institutions (entities will be approved if determined legally to be associated with affiliated institutions), or from blood banks, organ banks, or research centers. In addition, the requirement for public announcement does not apply to sole source acquisitions of hospital care and medical services (as those terms are defined in section 1701 of title 38 U.S.C.) or any other health-care services, including acquisitions for the mutual use or exchange of use of such services. However, as required by 38 U.S.C. 8153(a)(3)(D), acquisitions from non-affiliates, if conducted on a sole source basis, must still be justified and approved (see 873.104(d)). (38 U.S.C. 8153)
(c) For acquisitions below the SAT, a public announcement is optional. (38 U.S.C. 8153)
(d) Each solicitation issued under these procedures must prominently identify that the requirement is being solicited under the authority of 38 U.S.C. 8153 and part 873. (38 U.S.C. 8153)
(a)
(b)
(c)
(1) A brief written description of the procedures used in awarding the contract;
(2) The market research, including the determination that the acquisition involves health-care resources;
(3) The number of offers received; and
(4) An explanation, tailored to the size and complexity of the acquisition, of the basis for the contract award decision. (38 U.S.C. 8153)
(d)
(2) Without regard to FAR 15.208 or 52.212-1(f), quotations or proposals received after the time set forth in an RFQ or request for proposals (RFP) may be considered at the discretion of the contracting officer if determined to be in the best interest of the Government. Contracting officers must document the rationale for accepting quotations or proposals received after the time specified in the RFQ or RFP. This paragraph (d)(2) shall not apply to RFQs or RFPs if alternative evaluation techniques described in 873.111(e)(1)(ii) are used. This paragraph (d)(2) does not apply to invitations for bid (IFBs). (38 U.S.C. 8153)
(e)
(a) As provided in 873.109(d), contracting officers shall insert the provision at 852.273-70, Late offers, in all requests for quotations (RFQs) and requests for proposals (RFPs) exceeding the micro-purchase threshold. (38 U.S.C. 8153)
(b) The contracting officer shall insert a provision in RFQs and solicitations, substantially the same as the provision at 852.273-71, Alternative negotiation techniques, when either of the alternative negotiation techniques described in 873.111(e)(1) will be used. (38 U.S.C. 8153)
(c) The contracting officer shall insert the provision at 852.273-72, Alternative evaluation, in lieu of the provision at 52.212-2, Evaluation—Commercial Items, when the alternative negotiation technique described in 873.111(e)(1)(ii) will be used. (38 U.S.C. 8153)
(d) When evaluation information, as described in 873.112, is to be used to select a contractor under an RFQ or RFP for health-care resources consisting of commercial services or the use of medical equipment or space, the contracting officer may insert the provision at 852.273-73, Evaluation—health-care resources, in the RFQ or RFP in lieu of FAR provision 52.212-2. (38 U.S.C. 8153)
(e) As provided at 873.113(f), if award may be made without exchange with vendors, the contracting officer shall include the provision at 852.273-74, Award without exchanges, in the RFQ or RFP. (38 U.S.C. 8153)
(f) The contracting officer shall insert the FAR clause at 52.207-3, Right of
Without regard to FAR 13.003 or 13.500(a), the following acquisition processes and techniques may be used, singly or in combination with others, as appropriate, to design acquisition strategies suitable for the complexity of the requirement and the amount of resources available to conduct the acquisition. These strategies should be considered during acquisition planning. The contracting officer shall select the process most appropriate to the particular acquisition. There is no preference for sealed bid acquisitions. (38 U.S.C. 8153)
(a)
(2) For acquisitions in excess of the SAT, the procedures set forth in FAR Part 13 concerning RFQs may be utilized without regard to the dollar thresholds contained therein. (38 U.S.C. 8153)
(b)
(c)
(d)
(2)
(3)
(4)
(5)
(6)
(e)
(i) Indicating to offerors a price, contract term or condition, commercially available feature, and/or requirement (beyond any requirement or target specified in the solicitation) that offerors will have to improve upon or meet, as appropriate, in order to remain competitive.
(ii) Posting offered prices electronically or otherwise (without disclosing the identity of the offerors) and permitting revisions of offers based on this information.
(2) Except as otherwise permitted by law, contracting officers shall not conduct acquisitions under this section in a manner that reveals the identities of offerors, releases proprietary information, or otherwise gives any offeror a competitive advantage (see FAR 3.104). (38 U.S.C. 8153)
(a) Without regard to FAR 15.304 (except for 15.304(c)(1) and (c)(3), which do apply to acquisitions under this authority), the criteria, factors, or other evaluation information that apply to an acquisition, and their relative importance, are within the broad discretion of agency acquisition officials as long as the evaluation information is determined to be in the best interest of the Government. (38 U.S.C. 8153)
(b) Price or cost to the Government must be evaluated in every source selection. Past performance shall be evaluated in source selections for negotiated competitive acquisitions exceeding the SAT unless the contracting officer documents that past performance is not an appropriate evaluation factor for the acquisition. (38 U.S.C. 8153)
(c) The quality of the product or service may be addressed in source selection through consideration of information such as past compliance with solicitation requirements, technical excellence, management capability, personnel qualifications, and prior experience. The information required from quoters, bidders, or offerors shall be included in notices or solicitations, as appropriate. (38 U.S.C. 8153)
(d) The relative importance of any evaluation information included in a solicitation must be set forth therein. (38 U.S.C. 8153)
(a) Without regard to FAR 15.201 or 15.306, negotiated acquisitions generally involve exchanges between
(b) Exchanges with potential offerors may take place throughout the source selection process. Exchanges may start in the planning stages and continue through contract award. Exchanges should occur most often with offerors determined to be in the best value pool (see 873.114). The purpose of exchanges is to ensure there is mutual understanding between the Government and the offerors on all aspects of the acquisition, including offerors' submittals/proposals. Information disclosed as a result of oral or written exchanges with an offeror may be considered in the evaluation of an offeror's proposal. (38 U.S.C. 8153)
(c) Exchanges may be conducted, in part, to obtain information that explains or resolves ambiguities or other concerns (e.g., perceived errors, perceived omissions, or perceived deficiencies) in an offeror's proposal. (38 U.S.C. 8153)
(d) Exchanges shall only be initiated if authorized by the contracting officer and need not be conducted with all offerors. (38 U.S.C. 8153)
(e) Except for acquisitions based on alternative negotiation techniques contained in 873.111(e)(1), the contracting officer and other Government personnel involved in the acquisition shall not disclose information regarding one offeror's proposal to other offerors without consent of the offeror in accordance with FAR Parts 3 and 24. (38 U.S.C. 8153)
(f) Award may be made on initial proposals without exchanges if the solicitation states that the Government intends to evaluate proposals and make award without exchanges, unless the contracting officer determines that exchanges are considered necessary. (38 U.S.C. 8153)
(a) Without regard to FAR 15.306(c), the contracting officer may determine the most highly rated proposals having the greatest likelihood of award based on the information or factors and subfactors in the solicitation. These vendors constitute the best value pool. This determination is within the sole discretion of the contracting officer. Competitive range determinations, as provided for in the FAR, are not applicable to acquisitions under this part 873. (38 U.S.C. 8153)
(b) In planning an acquisition, the contracting officer may determine that the number of proposals that would otherwise be included in the best value pool is expected to exceed the number at which an efficient, timely, and economical competition can be conducted. In reaching such a conclusion, the contracting officer may consider such factors as the results of market research, historical data from previous acquisitions for similar services, and the resources available to conduct the source selection. Provided the solicitation notifies offerors that the best value pool can be limited for purposes of making an efficient, timely, and economical award, the contracting officer may limit the number of proposals in the best value pool to the greatest number that will permit an efficient competition among the proposals offering the greatest likelihood of award. The contracting officer may indicate in the solicitation the estimate of the greatest number of proposals that will be included in the best value pool. The contracting officer may limit the best value pool to a single offeror. (38 U.S.C. 8153)
(c) If the contracting officer determines that an offeror's proposal is no longer in the best value pool, the proposal shall no longer be considered for award. Written notice of this decision must be provided to unsuccessful offerors at the earliest practicable time. (38 U.S.C. 8153)
(a) Without regard to FAR 15.307, the contracting officer may request proposal revisions as often as needed during the proposal evaluation process at any time prior to award from vendors remaining in the best value pool. Proposal revisions shall be submitted in writing. The contracting officer may establish a common cutoff date for receipt of proposal revisions. Contracting officers may request best and final offers. In any case, contracting officers and acquisition team members must safeguard proposals, and revisions thereto, to avoid unfair dissemination of an offeror's proposal. (38 U.S.C. 8153)
(b) If an offeror initially included in the best value pool is no longer considered to be among those most likely to receive award after submission of proposal revisions and subsequent evaluation thereof, the offeror may be eliminated from the best value pool without being afforded an opportunity to submit further proposal revisions. (38 U.S.C. 8153)
(c) Requesting and/or receiving proposal revisions does not necessarily conclude exchanges. However, requests for proposal revisions should advise offerors that the Government may make award without obtaining further revisions. (38 U.S.C. 8153)
(a) An integrated comparative assessment of proposals should be performed before source selection is made. The contracting officer shall independently determine which proposal(s) represents the best value, consistent with the evaluation information or factors and subfactors in the solicitation, and that the prices are fair and reasonable. The contracting officer may determine that all proposals should be rejected if it is in the best interest of the Government. (38 U.S.C. 8153)
(b) The source selection team, or advisory boards or panels, may conduct comparative analysis(es) of proposals and make award recommendations, if the contracting officer requests such assistance. (38 U.S.C. 8153)
(c) The source selection decision must be documented in accordance with FAR 15.308.
(a) The contracting officer shall award a contract to the successful offeror by furnishing the contract or other notice of the award to that offeror. (38 U.S.C. 8153)
(b) If a request for proposal (RFP) process was used for the solicitation and if award is to be made without exchanges, the contracting officer may award a contract without obtaining the offeror's signature a second time. The offeror's signature on the offer constitutes the offeror's agreement to be bound by the offer. If a request for quotation (RFQ) process was used for the solicitation, and if the contracting officer determines there is a need to establish a binding contract prior to commencement of work, the contracting officer should obtain the offeror's acceptance signature on the contract to ensure formation of a binding contract. (38 U.S.C. 8153)
(c) If the award document includes information that is different than the latest signed offer, both the offeror and the contracting officer must sign the contract award. (38 U.S.C. 8153)
(d) When an award is made to an offeror for less than all of the items that may be awarded and additional items are being withheld for subsequent award, each notice shall state that the Government may make subsequent awards on those additional items within the offer acceptance period. (38 U.S.C. 8153)
Offerors excluded from a request for proposals (RFP) may submit a written request for a debriefing to the contracting officer. Without regard to FAR 15.505, preaward debriefings may be conducted by the contracting officer when determined to be in the best interest of the Government. Post-award debriefings shall be conducted in accordance with FAR 15.506. (38 U.S.C. 8153)