75186 Federal Register / Vol. 71, No. 240 / Thursday, December 14, 2006 / Proposed Rules 

complete discussion of the proposed 

compliance deadline. 

B. What Is the New Information EPA Is 

Making Available for Review and 

Comment? 

• Comments provided by Aerospace 

Industry Association and an airline, 

indicating that changing solvents 

involves a rigorous approval process to 

meet requirements of the Federal 

Aviation Administration (FAA) and of 

the original equipment manufacturer 

(OEM). The commenter indicates that 

such an approval process takes 

considerable time and requires many 

steps. 

• Comments provided by HSIA 

indicated that a compliance period of as 

much as 10 years would be required for 

industry to complete the multi-step 

process of upgrading degreasing 

operations. The commenter cites 

installations of new equipment at an 

existing facility may require the 

following: (1) Extended time to test 

performance of untried degreasing 

technologies for their particular 

application, (2) additional or redesigned 

floor space, (3) customer approval of 

new degreasing techniques and 

machines, (4) amending air permits; (5) 

amending government agency directives 

on cleaning protocols. HSIA did not 

submit data to support this comment. 

• Comments and data provided by the 

American Safety Razor Company 

indicated that EPA should remain 

consistent with the proposed HON rule 

and provide affected facilities three (3) 

years after the effective date of the 

promulgated standard. 

• Comments and data provided by 

Salem Tubing Company on the 

compliance period for sources of 

existing HSC machines and constructed 

or reconstructed HSC machines after 

August 17, 2006. The facility indicated 

that vacuum-to-vacuum cleaning is not 

a feasible option for the narrow tube 

manufacturing industry because of the 

large size of their degreasing machines 

and the fact that the vacuum-to-vacuum 

technology is not currently available in 

the machines sizes required. The 

commenter contends that in order to 

design, test and implement such a 

system would take much longer than the 

proposed compliance period. 

• Comments provided by the HSIA 

indicated that the compliance schedule 

should be amended to (1) require new 

facilities constructed after the date of 

promulgation to be in compliance upon 

startup; (2) consider new facilities 

constructed prior to the date of 

promulgation to be existing facilities; (3) 

allow existing HSC facilities that 

installed new equipment after the date 

of proposal, but prior to the date of 

promulgation, 10 years to come into 

compliance with any new requirements 

consistent with CAA section 112(i)(7), 

and (4) allow the maximum amount of 

time possible for existing HSC facilities 

to come into compliance. 

C. What Additional Supporting Data or 

Documentation Do I Need To Provide 

With My Comments? 

EPA is soliciting comment on the new 

information provided described above 

that relates to the issues identified at the 

outset of this NODA. In addition, as for 

the narrow tubing manufacturing 

facilities, aerospace manufacturing and 

maintenance facilities, large military 

vehicle maintenance operations, 

facilities that use multiple degreaser 

machines, and facilities that use 

continuous web cleaners, EPA 

specifically seeks data and information 

from these facilities including, but not 

limited to, information on the time to 

design and install new HSC machines, 

the lifespan of the typical HSC machine 

used in the facilities of interest (listed 

above), the time required to seek 

additional permits from State and local 

air permitting agencies, the time 

required for FAA and OEM approvals to 

vary or change degreasing cleaning 

procedures, whether a 2-year or a 3-year 

compliance period is appropriate, or 

data on how much time it would take 

to comply with the proposed 

requirements. 

List of Subjects in 40 CFR Part 63 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Hazardous 

substances, Intergovernmental relations, 

Reporting and recordkeeping 

requirements. 

Dated: December 8, 2006. 

Stephen D. Page, 

Director, Office of Air Quality Planning and 

Standards. 

[FR Doc. E6–21296 Filed 12–13–06; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 32 and 52 

[FAR Case 2005–016; Docket 2006–0020; 

Sequence 14] 

RIN 9000–AK64 

Federal Acquisition Regulation; FAR 

Case 2005–016, Performance-based 

Payments 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Proposed rule. 

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council 

(Councils) are proposing to amend the 

Federal Acquisition Regulation (FAR) to 

implement recommendations to change 

the regulations related to performancebased payments (PBP). 

DATES: Interested parties should submit 

written comments to the FAR 

Secretariat on or before February 12, 

2007 to be considered in the 

formulation of a final rule. 

ADDRESSES: Submit comments 

identified by FAR case 2005–016 by any 

of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Search for any 

document by first selecting the proper 

document types and selecting ‘‘Federal 

Acquisition Regulation’’ as the agency 

of choice. At the ‘‘Keyword’’ prompt, 

type in the FAR case number (for 

example, FAR Case 2006–001) and click 

on the ‘‘Submit’’ button. Please include 

any personal and/or business 

information inside the document.You 

may also search for any document by 

clicking on the ‘‘Advanced search/ 

document search’’ tab at the top of the 

screen, selecting from the agency field 

‘‘Federal Acquisition Regulation’’, and 

typing the FAR case number in the 

keyword field. Select the ‘‘Submit’’

button. 

• Fax: 202–501–4067. 

• Mail: General Services 

Administration, Regulatory Secretariat 

(VIR), 1800 F Street, NW, Room 4035, 

ATTN: Laurieann Duarte, Washington, 

DC 20405. 

Instructions: Please submit comments 

only and cite FAR case 2005–016 in all 

correspondence related to this case. All 

comments received will be posted 


jlentini on PROD1PC65 with PROPOSAL
Federal Register / Vol. 71, No. 240 / Thursday, December 14, 2006 / Proposed Rules 75187 

without change to http:// 

www.regulations.gov, including any 

personal and/or business confidential 

information provided. 

FOR FURTHER INFORMATION CONTACT: For 

clarification of content, contact Mr. Jerry 

Olson at (202) 501–3221. For 

information pertaining to status or 

publication schedules, contact the FAR 

Secretariat at (202) 501–4755. Please 

cite FAR case 2005–016. 

SUPPLEMENTARY INFORMATION: 

A. Background 

The proposed changes to FAR 

32.1000, 32.1003, 32.1004, 32.1005, and 

32.1007 and the clause at 52.232–32 are 

intended to increase the use of 

performance-based payments as the 

method of contract financing on Federal 

Government contracts, and improve the 

efficiency of performance-based 

payments when used on these contracts. 

These proposed changes originated from 

recommendations submitted by the 

Department of Defense Performancebased Payments Working Group in their 

March 8, 2005 report. This is not a 

significant regulatory action and, 

therefore, was not subject to review 

under Section 6(b) of Executive Order 

12866, Regulatory Planning and Review, 

dated September 30, 1993. This rule is 

not a major rule under 5 U.S.C. 804. 

B. Discussion 

The Councils are proposing to revise 

the following FAR provisions: 

1. The current FAR 32.1001(e) is 

renumbered to (d) and rephrased to 

require payments to be made in 

accordance with each agency’s policy. 

2. FAR 32.1001(e) is moved from 

32.1000 to clarify when use of PBPs is 

appropriate. 

3. FAR 32.1003 is revised to 

specifically address when PBP’s may be 

used. This revised language clarifies use 

of PBPs on fixed-priced line items and 

orders and on Indefinite DeliveryIndefinite Quantity and non-Indefinite 

Delivery contracts. 

4. FAR 32.1004(a)(1), to clarify that 

events not requiring meaningful effort or 

action must not be included as events or 

criteria for PBPs. FAR 32.1004(a)(2)(iii), 

to specifically state that all cumulative 

events be identified. FAR 

32.1004(b)(2)(ii) requires that the 

contracting officer must document the 

rationale for establishing a performancebased payment rate that is below the 

applicable progress payment rate. FAR 

32.1004(c) is added (and the existing (c) 

renumbered) to clarify that the 

contracting officer shall not limit the 

amount of a PBP payment to a 

percentage of actual incurred cost for 

the scheduled event or performance 

criteria. FAR 32.1004(e)(1)(ii) is 

renumbered to 32.1004(f)(1)(ii) and 

revised to clarify that solicitations 

related to competitive source selections 

should state that the evaluation of the 

proposed prices will include an 

adjustment to reflect the estimated cost 

to the Government of providing each 

offeror’s proposed PBP terms. 

5. FAR 32.1007(a) is revised to clarify 

that the contracting officer responsible 

for administering the performance-based 

payments should also be responsible for 

reviewing, approving, and transmitting 

the payment requests to the payment 

office. FAR 32.1007(c) is revised to 

prohibit actual cost verification unless 

the purpose is to assist in establishing 

revised or new PBP milestones or 

values. 

C. Regulatory Flexibility Act 

The Councils do not expect this 

proposed rule to have a significant 

economic impact on a substantial 

number of small entities within the 

meaning of the Regulatory Flexibility 

Act, 5 U.S.C. 601, et seq., because this 

rule should reduce administrative costs 

for contractor and the Government, thus 

further encouraging the use of 

performance based payments. An Initial 

Regulatory Flexibility Analysis has, 

therefore, not been performed. We invite 

comments from small businesses and 

other interested parties. The Councils 

will consider comments from small 

entities concerning the affected FAR 

Parts 32 and 52 in accordance with 5 

U.S.C. 610. Interested parties must 

submit such comments separately and 

should cite 5 U.S.C. 601, et seq. (FAR 

case 2005–016), in correspondence. 

D. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the proposed changes 

to the FAR do not impose information 

collection requirements that 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 32 and 

52 

Government procurement. 

Dated: December 7, 2006. 

Ralph De Stefano 

Director, Contract Policy Division. 

Therefore, DoD, GSA, and NASA 

propose amending 48 CFR parts 32 and 

52 as set forth below: 

1. The authority citation for 48 CFR 

parts 32 and 52 continues to read as 

follows: 

Authority: 40 U.S.C. 121(c); 10 U.S.C. 

chapter 137; and 42 U.S.C. 2473(c). 

PART 32—CONTRACT FINANCING 

32.110 [Amended] 

2. Amend section 32.110 by removing 

from paragraph (d) ‘‘32.1004(d)’’ and 

adding ‘‘32.1004(e)’’ in its place. 

3. Revise section 32.1000 to read as 

follows: 

32.1000 Scope of subpart. 

This subpart provides policy and 

procedures for performance-based 

payments under noncommercial 

purchases pursuant to Subpart 32.1. 

4. Amend section 32.1001 by—

a. Removing from paragraph (c) 

‘‘32.1003(c)’’ and adding ‘‘32.1003(d))’’

in its place; 

b. Removing paragraph (d); 

redesignating paragraph (e) as (d); and 

adding a new paragraph (e); and 

c. Revising newly designated 

paragraph (d). 

The revised and added text reads as 

follows: 

32.1001 Policy. 

* * * * * 

(d) Performance-based payments are 

contract financing payments and, 

therefore, are not subject to the interestpenalty provisions of prompt payment 

(see Subpart 32.9). These payments 

shall be made in accordance with 

agency policy. 

(e) Performance-based payments shall 

not be used for—

(1) Payments under costreimbursement line items; 

(2) Contracts for architect-engineer 

services or construction, or for 

shipbuilding or ship conversion, 

alteration, or repair, when the contracts 

provide for progress payments based 

upon a percentage or stage of 

completion; or 

(3) Contracts awarded through sealed 

bid procedures. 

32.1002 [Amended] 

5. Amend section 32.1002 by—

a. Removing from the end of 

paragraph (a) the semi-colon and adding 

a period in its place; and 

b. Removing from the end of 

paragraph (b) ‘‘; or’’ and adding a period 

in its place. 

6. Revise section 32.1003 to read as 

follows: 

32.1003 Criteria for use. 

The contracting officer may use 

performance-based payments for 

individual orders and contracts 

provided—

(a) The contracting officer and offeror 

agree on the performance-based 

payment terms; 

(b) The contract, individual order, or 

line item is a fixed-price type; 


jlentini on PROD1PC65 with PROPOSAL
75188 Federal Register / Vol. 71, No. 240 / Thursday, December 14, 2006 / Proposed Rules 

(c) For indefinite delivery contracts, 

the individual order does not provide 

for progress payments; and 

(d) For other than an indefinite 

delivery contract, the contract does not 

provide for progress payments. 

7. Amend section 32.1004 by—

a. Revising the 3rd sentence of 

paragraph (a)(1); 

b. Revising paragraph (a)(2)(iii); 

c. Revising the introductory text of 

paragraph (b)(2); 

d. Adding a new sentence to the end 

of paragraph (b)(2)(ii); 

e. Redesignating paragraphs (c), (d), 

and (e) as (d), (e), and (f) respectively, 

and adding a new paragraph (c); 

f. Revising the 2nd sentence of the 

newly redesignated paragraph (f)(1)(ii); 

and 

g. Removing from the newly 

redesignated paragraph (f)(2)(ii) 

‘‘(e)(1)(ii)’’ and adding ‘‘(f)(1)(ii)’’ in its 

place. 

The revised and added text reads as 

follows: 

32.1004 Procedures. 

* * * * * 

(a) * * * (1) * * * The signing of 

contracts or modifications, the exercise 

of options, the passage of time, or other 

such occurrences do not represent 

meaningful efforts or actions and shall 

not be identified as events or criteria for 

performance-based payments. * * * 

* * * * * 

(2) * * * 

(iii) The contract must specifically 

identify cumulative events or criteria 

and identify which events or criteria are 

preconditions for the successful 

achievement of each cumulative event 

or criterion. 

* * * * * 

(b) * * * 

(2) Total performance-based payments 

shall—

* * * * * 

(ii) * * * Unless otherwise provided 

in agency procedures, the contracting 

officer shall document the rationale for 

establishing the performance-based 

payment rate if the performance-based 

payment rate is less than the 

contractor’s applicable progress 

payment rate. 

* * * * * 

(c) Payment Amount. The contracting 

officer shall not limit the amount of a 

performance-based payment to a 

percentage of actual incurred cost for 

the scheduled event or performance 

criteria. 

* * * * * 

(f) * * * 

(1) * * * 

(ii) * * * Unless agencies prescribe 

other evaluation procedures, if the 

contracting officer anticipates that the 

cost of providing performance-based 

payments would have a significant 

impact on determining the best value 

offer, the solicitation should state that 

the evaluation of the offeror’s proposed 

prices will include an adjustment to 

reflect the estimated cost to the 

Government of providing each offeror’s 

proposed performance-based payments 

(see Alternate I to the provision at 

52.232–28). 

* * * * * 

8. Amend section 32.1005 by—

a. Revising the introductory text of 

paragraph (a); and 

b. Removing from paragraph (b)(2) 

‘‘32.1004(e)’’ and adding ‘‘32.1004(f)’’ in 

its place. 

The revised text reads as follows: 

32.1005 Solicitation provision and 

contract clause. 

(a) Insert the clause at 52.232–32, 

Performance-Based Payments, in—

* * * * * 

9. Amend section 32.1007 by—

a. Revising paragraph (a); 

b. Removing from paragraph (b)(2) 

‘‘32.1004(c)’’ and adding ‘‘32.1004(d)’’

in its place; and 

c. Adding to the end of paragraph (c) 

a new sentence. 

The revised and added text reads as 

follows: 

32.1007 Administration and payment of 

performance-based payments. 

(a) Responsibility. The contracting 

officer responsible for administering 

performance-based payments (see 

42.302(a)(12)) for the contract shall 

review and approve all performancebased payments for that contract. 

* * * * * 

(c) * * * Reviews shall not include 

verification of actual cost unless the 

purpose is to assist in establishing 

revised or new performance-based 

payment milestones or values. 

* * * * * 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

10. Amend section 52.232–32 by 

revising the date of the clause and the 

second sentence of paragraph (c)(2) to 

read as follows: 

52.232–32 Performance-Based Payments. 

* * * * * 

PERFORMANCE-BASED PAYMENTS 

(DATE) 

* * * * * 

(c) * * * 

(2) * * * The designated payment office 

will pay approved requests on the 

lllllllll [Contracting Officer 

insert day as prescribed by agency head; if 

not prescribed, insert ‘‘30th’’] day after 

receipt of the request for performance-based 

payment by the designated payment office. * 

* * 

* * * * * 

(End of clause) 

[FR Doc. 06–9678 Filed 12–13–06; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 10 

RIN 1018–AB72 

General Provisions; Revised List of 

Migratory Birds 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule; reopening of 

comment period. 

SUMMARY: We, the Fish and Wildlife 

Service, are reopening the comment 

period for our proposed rule to revise 

the list of migratory birds protected by 

the Migratory Bird Treaty Act (MBTA) 

to allow interested persons additional 

time to prepare and submit comments. 

DATES: We will consider all comments 

that we receive on or before December 

29, 2006. 

ADDRESSES: Submit your comments on 

this proposal in one of the following 

ways: 

1. By postal mail to Chief, Division of 

Migratory Bird Management, U.S. Fish 

and Wildlife Service, 4401 North Fairfax 

Drive, Mail Stop 4107, Arlington, VA 

22203; 

2. By hand-delivery to U.S. Fish and 

Wildlife Service, Division of Migratory 

Bird Management, 4501 North Fairfax 

Drive, Room 4000, Arlington, VA 22203. 

By prior arrangement, materials 

available for public inspection can also 

be examined at this location; 

3. By fax to (703) 358–2272; or 

4. By e-mail to mbtabirdlist@fws.gov; 

or 

5. By the Federal eRulemaking Portal 

at http://www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: John 

L. Trapp, (703) 358–1714. 

SUPPLEMENTARY INFORMATION: On August 

24, 2006, we published in the Federal 

Register (71 FR 50194–50221) a 

proposed rule to revise the List of 

Migratory Birds by adding numerous 

species and removing numerous 

species. The proposed rule is available 

for online viewing or downloading at 

http://www.fws.gov/migratorybirds/. 

Our reasons for proposing changes to 

the list include correcting previous 


jlentini on PROD1PC65 with PROPOSAL