Federal Register / Vol. 65, No. 95 / Tuesday, May 16, 2000 / Rules and Regulations 31101

PART 73—[AMENDED]

1. The authority citation for Part 73

continues to read as follows:

Authority: 47 U.S.C. 154, 303, 334, 336.

§ 73.202 [Amended]

2. Section 73.202(b), the Table of FM

Allotments under Wyoming, is amended

by adding Channel 280C2 at Cheyenne.

3. Section 73.202(b), the Table of FM

Allotments under Nebraska, is amended

by removing Channel 280C1 and adding

Channel 239C3 at Gering.

Federal Communications Commission.

John A. Karousos,

Chief, Allocations Branch, Policy and Rules

Division, Mass Media Bureau.

[FR Doc. 00–12254 Filed 5–15–00; 8:45 am]

BILLING CODE 6712–01–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 73

[DA No. 00–917; MM Docket No. 99–134;

RM–9543 and RM–9572]

Radio Broadcasting Services;

Drummond and Victor, MT

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: This document allots Channel

268C to Drummond, Montana, in

response to a petition filed by the

Battani Corporation and allots Channel

250C3 to Victor, Montana, in response

to a petition filed by Mountain West

Broadcasting. See 64 FR 24996, May 10,

1999. The coordinates for Channel 268C

at Drummond are 46–16–47 and 113–

31–05. The coordinates for Channel

250C3 at Victor are 46–25–06 and 114–

08–54. Canadian concurrence has been

obtained for Channel 268C at

Drummond. Allotment of Channel

250C3 at Victor is conditioned on

concurrence of the Canadian

Government in accordance with the

1991 Canada-USA FM Broadcast

Agreement. With this action, this

proceeding is terminated.

DATES: Effective June 9, 2000.

FOR FURTHER INFORMATION CONTACT:

Kathleen Scheuerle, Mass Media

Bureau, (202) 418–2180.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s Report

and Order, MM Docket No. 99–134,

adopted April 12, 2000, and released

April 25, 2000. The full text of this

Commission decision is available for

inspection and copying during normal

business hours in the Commission’s

Reference Center, 445 12th Street, SW,

Washington, DC. The complete text of

this decision may also be purchased

from the Commission’s copy

contractors, International Transcription

Services, Inc., 1231 20th Street, NW.,

Washington, DC. 20036, (202) 857–3800,

facsimile (202) 857–3805.

List of Subjects in 47 CFR Part 73

Radio broadcasting.

Part 73 of title 47 of the Code of

Federal Regulations is amended as

follows:

PART 73—[AMENDED]

1. The authority citation for Part 73

continues to read as follows:

Authority: 47 U.S.C. 154, 303, 334 and 336.

§ 73.202 [Amended]

2. Section 73.202(b), the Table of FM

Allotments under Montana, is amended

by adding Drummund, Channel 268C

and Victor, Channel 250C3.

Federal Communications Commission.

John A. Karousos,

Chief, Allocations Branch, Policy and Rules

Division, Mass Media Bureau.

[FR Doc. 00–12255 Filed 5–15–00; 8:45 am]

BILLING CODE 6712–01–P

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

48 CFR Parts 1804, 1806, 1815, 1823,

1832, and 1845

Contract Financing

AGENCY: Office of Procurement, Contract

Management Division, National

Aeronautics and Space Administration

(NASA).

ACTION: Final rule.

SUMMARY: This final rule amends the

NASA FAR Supplement (NFS) to:

provide guidance on administering

progress payments on indefinitedelivery contracts; delete outdated

performance-based payments guidance;

and provide guidance on using

performance-based payments in

competitive negotiated acquisitions.

These revisions result from the final

FAR rule (FAR Case 98–400) on contract

financing that was published in the

March 27, 2000, Federal Register. This

final rule also makes changes to

conform the NFS with changes made by

FAC 97–15; and makes editorial

corrections and miscellaneous changes

dealing with NASA internal and

administrative matters.

EFFECTIVE DATE: May 16, 2000.

FOR FURTHER INFORMATION CONTACT: Mr.

Joseph Le Cren, NASA Headquarters,

Code HK, Washington, DC 20546,

telephone: (202) 358–0444, e-mail:

joseph.lecren@hq.nasa.gov.

SUPPLEMENTARY INFORMATION:

A. Background

A final FAR rule was published in the

Federal Register that simplified and

streamlined the administration of

progress payments, and removed the

prohibition against using performancebased payments in contracts for research

and development and contracts awarded

through competitive negotiation

procedures.

The FAR revisions deleted previous

language on the administration of

progress payments under indefinite

delivery contracts that allowed

administration on an overall contract

basis, or for the treatment of a group of

orders as a single unit. However, the

FAR rule also allows for agency

procedures to specify other procedures.

In order to provide contracting officers

with the maximum flexibility for

administering progress payments,

NASA chooses to retain the deleted FAR

language.

The FAR revisions incorporated

language requiring that the amounts of

performance-based payments not result

in unreasonably low or negative level of

contractor investment in the contract

and provide guidance on how the

contracting officer would assure this did

not take place. As a result of this

change, similar NFS language is

unnecessary and is deleted. The FAR

rule also deleted section 32.1006,

Agency Approvals, and the NFS

implementing guidance at 1832.1006 is

no longer necessary and is likewise

deleted.

FAR 32.1001(a) requires two

conditions for the use of performancebased payments: ‘‘the contracting officer

finds them practical, and the contractor

agrees to their use.’’ Although the FAR

does not offer any guidance for

determining practicality of use, the

preamble to the final FAR rule indicates

that, relative to the use of performancebased payments in competitive

negotiations, contracting officers may

consider the effect on the source

selection process and the ‘‘potential

impact on small business

competitiveness’’ among the factors for

determining practicality. In the last few

years, NASA has adopted a number of

source selection streamlining

procedures (awarding without

discussions and requiring no cost

information on firm-fixed-price

competitions) that could be

31102 Federal Register / Vol. 65, No. 95 / Tuesday, May 16, 2000 / Rules and Regulations

compromised by the use of

performance-based payments, a

financing option that would almost

always require discussions and cost

information. In addition, NASA has

been a leader in encouraging small

business participation in its

competitions, and will not take any

action that might deter continued high

levels of small business

competitiveness. Accordingly, NASA

believes it important to specify in the

NFS that contracting officers should

consider the procedural and small

business competitiveness factors when

determining the practicality of the use

of performance-based payments in

competitive negotiations. As a

management control to ensure that the

source selection process and small

business competitiveness are not

adversely affected, HQ approval is

required for use of performance-based

payments in competitions under $50M.

NASA will use its Master Buy Plan

process to obtain visibility into

acquisitions over that amount.

When performance-based payments

are used in competitive negotiated

acquisitions, FAR 32.1004(e) indicates

that the solicitation should include a

price adjustment ‘‘if the contracting

officer anticipates that the cost of

providing performance-based payments

would have a significant impact on

determining the best value offer.’’

However, the FAR also allows agencies

to establish other evaluation procedures.

NASA believes that the use of the price

adjustment evaluation has the potential

to lengthen the source selection process,

require the submission of proposal

information otherwise not required, and

adversely impact small and small

disadvantaged businesses. Accordingly,

the NFS advises contracting officers to

consider qualitative evaluation methods

when performance-based payments are

used in competitive negotiations under

$50M.

Finally, the NFS change also requires

that when performance-based payments

are planned to be used in competitive

negotiated acquisitions, the draft RFP

must request the potential offerors to

suggest terms, including performance

events or payment criteria. The

information provided by the offerors

will be used, when possible, to establish

a common set of performance-based

payment parameters in the formal

solicitation.

FAC 97–15 changed the section

heading at 4.804–5 and deleted subpart

23.1. This final rule conforms the NFS

with these changes; makes other

editorial changes to correct referenced

FAR citations, office designations; and

provides an example of ‘‘evidence of

endorsement by another agency of the

U.S. Government based on national

security or foreign policy of the United

States’’ at section 1845.405–70.

B. Regulatory Flexibility Act

This final rule does not constitute a

significant revision within the meaning

of FAR 1.501 and Public Law 98–577,

and publication for public comments is

not required. However, comments from

small entities concerning the affected

NFS subpart will be considered in

accordance with 5 U.S.C. 610. Such

comments must be submitted separately

and should cite 5 U.S.C. 601, et seq.

C. Paperwork Reduction Act

The Paperwork Reduction Act does

not apply because the changes to the

NFS do not impose recordkeeping or

information collection requirements, or

collections of information from offerors,

contractors, or members of the public

which require the approval of the Office

of Management and Budget under 44

U.S.C. 3501, et seq.

List of Subjects in 48 CFR Parts 1804,

1806, 1815, 1823, 1832, and 1845

Government procurement.

Tom Luedtke,

Associate Administrator for Procurement.

Accordingly, 48 CFR parts 1804, 1806,

1815, 1823, 1832 and 1845 are amended

as follows:

1. The authority citation for 48 CFR

parts 1804, 1806,1815, 1823, 1832, and

1845 continues to read as follows:

Authority: 42 U.S.C. 2473 (c)(1).

PART 1804—ADMINISTRATIVE

MATTERS

2. In section 1804.804–5, revise the

section heading and amend paragraphs

(a) and (b) by removing the word ‘‘shall’’

and inserting the word ‘‘must’’ in its

place. The revised section heading reads

as follows:

1804.804–5 Procedures for closing out

contract files.

* * * * *

PART 1806—COMPETITION

REQUIREMENTS

1806.303–1 [Amended]

3. Amend paragraph (d) of section

1806.303–1 by removing the reference

‘‘FAR 25.403’’ and adding ‘‘FAR

25.401’’ in its place.

PART 1815—CONTRACTING BY

NEGOTIATION

4. Amend section 1815.201 by

redesignating paragraph (c)(6)(E) as

1815.201(c)(6)(F) and adding a new

paragraph (c)(6)(E) to read as follows:

1815.201 Exchanges with industry before

receipt of proposals.

* * * * *

(c)(6)***

(E) If performance-based payments are

planned to be used in a competitive

negotiated acquisition, the DRFP shall

request potential offerors to suggest

terms, including performance events or

payment criteria. Contracting officers

shall use that information to establish a

common set of performance-based

payments parameters in the formal RFP

when practicable.

* * * * *

PART 1823—ENVIRONMENT,

CONSERVATION, OCCUPATIONAL

SAFETY, AND DRUG-FREE

WORKPLACE

Subpart 1823.1 [Removed]

5. Remove subpart 1823.1

PART 1832—CONTRACT FINANCING

6. Add sections 1832.503 and

1832.503–5 to read as follows:

1832.503 Postaward matters.

1832.503–5 Administration of progress

payments. (NASA supplements paragraph

(c).)

(c)(i) If the contractor requests it and

the contracting officer approving

individual progress payments agrees,

the administration of progress payments

may be based on the overall contract

agreement. Under this method, the

contractor must include a supporting

schedule with each request for a

progress payment. The schedule should

identify the costs applicable to each

order.

(ii) The contracting officer may treat

a group of orders as a single unit for

administration of progress payments if

each order in the group is subject to a

uniform liquidation rate and under the

jurisdiction of the same payment office.

7. Add section 1832.1001 to read as

follows:

1832.1001 Policy.

(a)(i) In determining whether

performance-based payments are

practical in competitive negotiated

acquisitions, the contracting officer

should consider the procedural impacts

(e.g., proposal evaluation complications,

longer evaluations, elimination of the

potential for award without discussions,

increased proposal information

requirements) and the impact on small

business competitiveness.

Federal Register / Vol. 65, No. 95 / Tuesday, May 16, 2000 / Rules and Regulations 31103

(ii) The contracting officer must

obtain approval from the Director of the

Headquarters Office of Procurement

Contract Management Division (Code

HK) to use performance-based payments

in competitive negotiated solicitations

under $50M. The request for approval

must include an assessment of the

practicality of using performance-based

payments, as well as the proposed

performance-based payments evaluation

approach (see 1832.1004(e)(1)(ii)).

8. Revise section 1832.1004 to read as

follows:

1832.1004 Procedures.

(a) See 1815.201(c)(6)(E) for

establishing performance bases and

payment terms in competitive

negotiated acquisitions.

(e)(1)(ii) Use of the price adjustment

evaluation technique may require

obtaining and analyzing proposal

information that is normally not

required in NASA firm-fixed-price

competitions (see 1815.403–3). When

using performance-based payments in

competitive negotiated acquisitions

under $50 million, contracting officers

should consider the use of alternative

evaluation methods, e.g., qualitative

evaluation under Mission Suitability or

another appropriate factor.

9. In section 1832.1005, add

paragraph (b)(2) to read as follows:

1832.1005 Contract clauses.

* * * * *

(b)(2) Contracting officers shall not

use Alternate I in competitive

negotiated acquisitions under $50

million, unless approval has been

obtained to use performance-based

payments (see 1832.1001(a)(ii)).

1832.1006 [Removed]

10. Remove section 1832.1006.

PART 1845—GOVERNMENT

PROPERTY

11. In section 1845.405–70, revise

paragraphs (b) and (c)(9) to read as

follows:

1845.405–70 NASA procedures.

* * * * *

(b) The prior written approval of the

Associate Administrator for

Procurement (Code H) is required for

the use of Government production and

research property on work for foreign

countries or for international

organizations. The Logistics

Management Office of the Headquarters

Office of Management Systems (Code

JG), the Office of General Counsel (Code

G), and the Headquarters Office of

External Relations (Code I) are required

concurrences.

(c) * * *

(9) Any evidence of endorsement by

another agency of the U.S. Government

based on national security or foreign

policy of the United States (e.g., an

approved license or agreement from the

Department of State or Department of

Commerce).

* * * * *

[FR Doc. 00–12141 Filed 5–15–00; 8:45 am]

BILLING CODE 7510–01–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 679

[Docket No. 00424110–0110–01; I.D.

040600A]

RIN 0648–AO01

Fisheries of the Exclusive Economic

Zone Off Alaska; License Limitation

Program

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final rule.

SUMMARY: NMFS issues a final rule to

amend the regulations implementing the

License Limitation Program (LLP) to

include provisions inadvertently

omitted that would have made area

endorsements and area/species

endorsements specified on a license

non-severable from the license and that

would have made a groundfish license

and a crab species license issued based

on the legal landings of the same vessel

and initially issued to the same

qualified person non-severable from

each other. Thus, the endorsements in

the first case must be transferred with

the license and in the second case both

licenses must be transferred together.

This regulatory amendment is necessary

to include in the regulations nonseverability provisions proposed by the

North Pacific Fishery Management

Council (Council) and NMFS in the

original proposed rule to implement the

LLP. This action is necessary to promote

the objectives of the Federal fishery

management plans for the affected

fisheries by further preventing increased

harvesting capacity.

DATES: Effective May 11, 2000.

FOR FURTHER INFORMATION CONTACT:

James Hale, 907–586–7228.

SUPPLEMENTARY INFORMATION: NMFS

manages the U.S. groundfish fisheries of

the exclusive economic zone off Alaska

pursuant to the Fishery Management

Plan (FMP) for Groundfish of the Gulf

of Alaska and the FMP for the

Groundfish Fishery of the Bering Sea

and Aleutian Islands Area. The

commercial king crab and Tanner crab

fisheries in the Bering Sea and Aleutian

Islands Area are managed by the State

of Alaska with Federal oversight,

pursuant to the FMP for those fisheries.

The Council prepared the FMPs

pursuant to the Magnuson-Stevens

Fishery Conservation and Management

Act (Magnuson-Stevens Act), 16 U.S.C.

1801, et seq. Federal regulations

implementing the FMPs appear at 50

CFR part 679. General regulations at 50

CFR part 600 also apply.

The proposed rule to implement

Amendment 39 to the FMP for the

Groundfish Fishery of the Bering Sea

and Aleutian Islands Area, Amendment

41 to the FMP for Groundfish of the Gulf

of Alaska, and Amendment 5 to the

FMP for the Commercial King and

Tanner Crab Fisheries in the Bering Sea/

Aleutian Islands (62 FR 43866, August

15, 1997) contained provisions which

would have made (1) area endorsements

or area/species endorsements specified

on a license non-severable from the

license and (2) a groundfish license and

a crab license issued based on the legal

landings of the same vessel and initially

issued to the same qualified person nonseverable. No comments were received

on these provisions. These provisions

were intended to prevent increased

capacity in the groundfish and crab

fisheries managed under the FMPs.

In the final rule implementing the

LLP, the application provisions

(§ 679.4(i)(6)) and the transfer

provisions (§ 679.4(i)(7)), including the

non-severability provisions, were

removed and the appropriate paragraphs

reserved to allow for further refinement

of the application and transfer processes

(63 FR 52642, October 1, 1998). The

final rule gave notice that a proposed

rulemaking regarding those processes

was under development.

Subsequently, NMFS initiated a

proposed rulemaking to implement the

application and transfer provisions (64

FR 19113, April 19, 1999). On August 6,

1999, NMFS issued a final rule

implementing the application and

transfer processes (64 FR 42826). While

NMFS intended that the regulatory text

include the non-severability provisions,

that language was inadvertently

omitted.

This final rule amends the LLP

regulations by restoring the omitted

non-severability provisions without

change from those published in the

original proposed rule (62 FR 43866,

August 15, 1997) and approved by