33146 Federal Register / Vol. 83, No. 137 / Tuesday, July 17, 2018 / Rules and Regulations 

encouraged to rescan their receivers for 

new channel assignments. 

Next Gen TV Broadcaster Written 

Notices to MVPDs (Third-Party 

Disclosure Requirement; 47 CFR 

73.3801(h), 73.6029(h), and 74.782(i)): 

Next Gen TV stations relocating their 

ATSC 1.0 signals (e.g., moving to a 

temporary host station’s facilities, 

subsequently moving to a different host, 

or returning to its original facility) must 

provide notice to MVPDs that: (i) No 

longer will be required to carry the 

station’s ATSC 1.0 signal due to the 

relocation; or (ii) carry and will 

continue to be obligated to carry the 

station’s ATSC 1.0 signal from the new 

location. Broadcaster notices to 

multichannel video programming 

distributors (MVPDs) will be used to 

notify MVPDs that carry a Next Gen TV 

broadcast station about channel changes 

and facility information. 

Local Simulcasting Agreements 

(Recordkeeping Requirement; 47 CFR 

73.3801(e), 73.6029(e), and 74.782(f)): 

Broadcasters must maintain a written 

copy of any local simulcasting 

agreement and provide it to the 

Commission upon request. FCC staff 

will review the local simulcasting 

agreement (when applicable) to 

determine compliance with FCC rules 

and to determine whether the public 

interest would be served by grant of the 

application for a Next Gen TV station 

license. 

Federal Communications Commission. 

Marlene Dortch, 

Secretary. 

[FR Doc. 2018–15156 Filed 7–16–18; 8:45 am] 

BILLING CODE 6712–01–P 

OFFICE OF MANAGEMENT AND 

BUDGET 

Office of Federal Procurement Policy 

48 CFR Part 9903 

Cost Accounting Standards: Revision 

of the Exemption From Cost 

Accounting Standards for Contracts 

and Subcontracts for the Acquisition 

of Commercial Items 

AGENCY: Cost Accounting Standards 

Board, Office of Federal Procurement 

Policy, Office of Management and 

Budget. 

ACTION: Final rule. 

SUMMARY: The Office of Federal 

Procurement Policy (OFPP), Cost 

Accounting Standards (CAS) Board, is 

publishing a final rule revising the 

exemption for contracts or subcontracts 

for the acquisition of commercial items. 

This final rule clarifies the types of 

contracts that are exempt from the 

application of Cost Accounting 

Standards when acquiring commercial 

items. 

DATES: Effective August 16, 2018. 

FOR FURTHER INFORMATION CONTACT: 

Raymond Wong, Staff Director, Cost 

Accounting Standards Board (telephone: 

202–395–6805; email: rwong@

omb.eop.gov). 

SUPPLEMENTARY INFORMATION: This final 

rule revises the exemption 48 CFR 

9903.201–1(b)(6) for contracts or 

subcontracts for the acquisition of 

commercial items (hereafter referred to 

as the ‘‘(b)(6) commercial item 

exemption’’). 

A. Regulatory Process—Changes to 48 

CFR Part 9903 

The CAS Board’s regulations and 

Standards are codified at 48 CFR 

chapter 99. This final rule amends a 

CAS Board regulation other than a 

Standard and, as such, is not subject to 

the statutorily prescribed rulemaking 

process for the promulgation of a 

Standard at 41 U.S.C. 1502(c) [formerly, 

41 U.S.C. 422(g)]. 

B. Background and Summary 

In November 2012, the CAS Board 

issued a proposed rule to clarify the 

exemption from CAS when acquiring 

commercial items. 77 FR 69422. The 

exemption enumerates the contract 

types that are authorized when 

procuring commercial items. Over the 

years, the CAS Board has issued several 

rules addressing the exemption to 

reflect statutory changes regarding the 

types of contracts that may be used in 

commercial item acquisitions. See 61 FR 

39360 (providing an exemption for firmfixed-price contracts and subcontracts 

for the acquisition of commercial items 

as authorized by section 4305 of the 

Clinger-Cohen Act of 1996 (FARA), Pub. 

L. 104–106); 62 FR 31294 (adding fixedprice contracts with economic price 

adjustments other than those based on 

actual incurred costs for labor and 

materials); and 72 FR 36367 (expanding 

the list of exempt contract types to 

include time-and-material and laborhour contracts, in response to changes 

made by section 1432 of the Services 

Acquisition Reform Act of 2003, Pub. L. 

108–136, which authorized these types 

of contracts for the acquisition of 

commercial items). 

Since enactment of the Federal 

Acquisition Streamlining Act in 1994 

(Pub. L. 103–355), the Federal 

Acquisition Regulation (FAR) has 

included an enumerated list of contract 

types authorized for use in acquiring 

commercial items. See 48 CFR part 

12.207. Similar to the CAS Board, the 

Federal Acquisition Regulatory Council 

has amended FAR 12.207 several times 

to reflect statutory changes and clarify 

the intent of the regulation. An 

inconsistency has developed between 

the list of contract types recognized for 

use in acquiring commercial items set 

forth in paragraph (b)(6) and that 

commercial item exemption and 

contract types reflected in FAR 12.207. 

For example, FAR 12.207 allows the use 

of firmed fixed price contracts in 

conjunction with award fee incentives 

or performance or delivery incentives, 

known as fixed-price incentive (FPI) 

contracts, when the award fee or 

incentive is based solely on factors other 

than cost. However, the (b)(6) 

exemption does not expressly recognize 

FPI contracts on the enumerated list of 

exempt contracts. Because of this 

discrepancy, some commenters on a 

prior CAS Board rulemaking expressed 

concern that these types of FPI contracts 

might be excluded under a literal 

reading of the (b)(6) exemption. See 72 

FR 36367. 

In its proposed rule, the CAS Board 

sought to address the inconsistencies 

between the lists in the (b)(6) exemption 

and FAR 12.207 by removing reference 

to specific contract types in the (b)(6) 

exemption and instead making simple 

reference to ‘‘contracts and subcontracts 

for the acquisition of commercial 

items.’’ The CAS Board explained that 

this generalized language would 

‘‘obviate the continuing need to update 

and keep current a detailed listing of 

permissible contract types for the 

acquisition of commercial items, which 

continues to evolve with the passage of 

time.’’ 77 FR 69424. The CAS Board 

further explained that this language 

tracks the exemption set forth in its 

authorizing statute at 41 U.S.C. 

1502(b)(1)(C)(i) as well as the language 

in section 4205 of the Clinger-Cohen 

Act. 

The CAS Board received several 

comments in response to the proposed 

rule. A discussion of the comments and 

the Board’s responses are set forth in 

section C. Of particular note, some 

commenters raised concern that more 

general language may perpetuate 

ambiguities regarding what contract 

types are covered by the exemption. 

After review of the public comments 

and further deliberation, the CAS Board 

has concluded that the desired goal of 

clarification can be more effectively 

achieved by adding language to the 

exemption that cross references to FAR 

12.207 and its enumeration of contract 

types authorized for the acquisition of 

commercial items. The CAS Board 


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Federal Register / Vol. 83, No. 137 / Tuesday, July 17, 2018 / Rules and Regulations 33147 

believes this approach has multiple 

benefits. This linkage will eliminate 

disparities between the FAR and CAS 

Board rules regarding the description of 

contract types authorized for 

commercial item acquisitions. In 

addition, by maintaining reference to an 

enumerated list of authorized contract 

types for commercial item acquisitions, 

this formulation will avoid the 

ambiguity that could have been created 

if the more generalized language in 

proposed rule were adopted. The CAS 

Board also hopes that this change will 

avoid the need for additional CAS Board 

rulemakings in the event of future 

statutory actions addressing allowable 

contract types for commercial item 

procurements. 

Accordingly, this final rule amends 

the language at 9903.201–1(b)(6) to 

exempt contracts and subcontracts 

authorized in 48 CFR 12.207 for the 

acquisition of commercial items. The 

CAS Board intends to monitor the 

effectiveness of this rule in achieving 

the intent of the law regarding CAS 

exemptions. 

C. Public Comments 

The CAS Board published a Notice of 

Proposed Rulemaking (NPR) on 

November 19, 2012, proposing to revise 

the (b)(6) commercial item exemption to 

read: ‘‘[c]ontracts and subcontracts for 

the acquisition of commercial items,’’ 

(77 FR 69422). In response to the NPR, 

the CAS Board received comments from 

four entities, one of which supported 

the proposed rule without change and 

three of which raised concerns. A 

summary of concerns and the CAS 

Board’s response are below. 

1. Lack of clarity. Three commenters 

raised concern that deletion of the more 

detailed explanation of what contract 

types are exempt from CAS will 

increase confusion. One commenter 

stated that the change ‘‘may be 

confusing to the inexperienced, 

including both contractors and 

Government representatives’’ who may 

not immediately understand how to 

interpret the phrase ‘‘contracts and 

subcontracts for the acquisition of 

commercial items’’ without further 

explanation. This commenter suggested 

that the exemption include a specific 

cross reference to statute or regulation 

so that the reader could more easily 

determine the exempt contract types. 

Other commenters warned that a 

blanket exemption could lead to 

overpayment. One of these commenters 

admonished the Board on the need to 

preserve a more tailored exemption that 

continues to clarify that the exemption 

does not apply to specific contract types 

that involve reimbursement or pricing 

based on actual costs. 

Response: The Board agrees that 

readers need to be made aware of the 

specific contracts that are covered by 

the exemption. This specificity will 

help ensure easy, clear, and consistent 

application. As explained above, the 

Board believes that reference to FAR 

12.207, which identifies contract types 

that may be used to acquire commercial 

items should accomplish this objective. 

In this regard, the CAS Board notes that 

amendments to the CAS Board’s 

authorizing statute made by section 820 

of the National Defense Authorization 

Act for FY 2017 make clear that the 

Board bears a responsibility to 

‘‘minimize the burden on contractors 

while protecting the interests of the 

Federal Government.’’ The Board 

believes this goal is shared by the FAR 

Council, especially in light of direction 

provided in Executive Order (E.O.) 

13771, Reducing Regulation and 

Controlling Regulatory Costs, which 

directs agencies to ‘‘manage costs 

associated with the governmental 

imposition of private expenditures 

required to comply with Federal 

regulations.’’ 

The Board intends to monitor the 

effectiveness of this final rule in 

achieving the intent of the law regarding 

CAS exemptions and retains the right to 

change the approach in the future 

should any changes to FAR 12.207 that 

the Board believes are inconsistent with 

this objective occur. 

2. Disclosure statements. Two 

commenters recommended the CAS 

Board develop Cost Accounting 

Standards and Disclosure Statement 

requirements for commercial item 

acquisitions, as Congress had required 

in the Clinger-Cohen Act. One of those 

commenters stated that such steps were 

needed before the permissible contract 

types are expanded to include certain 

cost type contracts. 

Response: Creating CAS and 

Disclosure Statements for commercial 

item acquisitions would be outside the 

scope of this rulemaking effort. The CAS 

Board is aware of the direction 

contained in the Conference Report to 

the Federal Acquisition Streamlining 

Act to ‘‘establish guidance, consistent 

with commercial accounting systems 

and practices, to ensure that contractors 

appropriately assign costs to contracts 

(other than firm, fixed-price contracts) 

that are covered by the exemption for 

contracts or subcontracts where the 

price negotiated is based on established 

catalog or market prices of commercial 

items sold in substantial quantities to 

the general public.’’ That assessment 

was made by the CAS Board when 

promulgating the 1997 final rule. 

However, since the law currently 

prohibits the use of cost type contracts 

for the acquisition of commercial items, 

the Board believes there is little to be 

gained from developing and imposing 

Cost Accounting Standards and 

Disclosure Statement requirements at 

this time. However, the CAS Board 

continues to reserve the right to issue 

such cost accounting standards and 

disclosure statement requirements 

should the need arise in the future. 

3. Hybrid and indefinite-deliveryindefinite-quantity (IDIQ) contracts. One 

commenter raised the question of how 

to determine whether CAS is triggered 

on a ‘‘hybrid’’ contract that contains 

contract line item numbers (CLINs) for 

both commercial items and noncommercial items where the total value 

of the contract exceeds the CAS 

applicability threshold. The commenter 

suggested that CAS be clarified to 

ensure CLINs for commercial items on 

a hybrid contract are not covered by 

CAS, irrespective of the value of the 

contract. The commenter further 

recommended clarification of the CAS 

triggers for IDIQ contracts, which are 

often used to acquire commercial 

items—in particular whether to value 

the contract based on the size of orders 

or the size of the umbrella contract. 

Response: While issues related to the 

applicability of CAS to hybrid and IDIQ 

contracts are outside the scope of this 

rulemaking effort, the CAS Board takes 

note of these issues. The Board intends 

to review these issues more carefully to 

determine whether clarification of its 

rules is needed to ensure appropriate 

application of CAS coverage. 

D. Paperwork Reduction Act 

The Paperwork Reduction Act (44 

U.S.C. Chapter 35, Subchapter I) does 

not apply to this rulemaking, because 

this rule will impose no paperwork 

burden on offerors, affected contractors 

and subcontractors, or members of the 

public which requires the approval of 

OMB under 44 U.S.C. 3501, et seq. The 

purpose of this rule is to clarify the 

application of CAS to contracts for 

commercial items. In addition, this rule 

is consistent with the intent of the 

objectives of the ‘‘Streamlined 

Applicability of Cost Accounting 

Standards’’ set forth in Section 802 of 

the National Defense Authorization Act 

for Fiscal Year 2000 (Pub. L. 106–65). 

E. Executive Orders 12866 and 13771, 

the Congressional Review Act, and the 

Regulatory Flexibility Act 

This rule provides technical 

clarification on the application of 

exemptions from CAS for commercial 


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33148 Federal Register / Vol. 83, No. 137 / Tuesday, July 17, 2018 / Rules and Regulations 

item acquisitions consistent with 

authorities in the Clinger-Cohen Act. By 

cross referencing FAR 12.207 and its 

enumeration of contract types 

authorized for the acquisition of 

commercial items, the CAS Board 

expects to eliminate disparities between 

the FAR and CAS Board rules that has 

created confusion for contractors and 

subcontractors. The economic impact on 

contractors and subcontractors is, 

therefore, expected to be minor. As a 

result, the Board has determined that 

this rule will not result in the 

promulgation of an ‘‘economically 

significant rule’’ under the provisions of 

Executive Order 12866, and that a 

regulatory impact analysis will not be 

required, and the requirements of E.O. 

13771, Reducing Regulation and 

Controlling Regulatory Costs, do not 

apply. For the same reason, this final 

rule is not a ‘‘major rule’’ under the 

Congressional Review Act, 5 U.S.C. 

Chapter 8. Finally, this rule does not 

have a significant effect on a substantial 

number of small entities because small 

businesses are exempt from the 

application of the Cost Accounting 

Standards. Therefore, this rule does not 

require a regulatory flexibility analysis 

under the Regulatory Flexibility Act of 

1980, 5 U.S.C. Chapter 6. 

List of Subjects in 48 CFR Part 9903 

Cost Accounting Standards, 

Government procurement. 

Lesley A. Field, 

Acting Chair, Cost Accounting Standards 

Board. 

For the reasons set forth in this 

preamble, 48 CFR part 9903 is amended 

as follows: 

PART 9903—CONTRACT COVERAGE 

■ 1. The authority citation for part 9903 

continues to read as follows: 

Authority: Pub. L. 111–350, 124 Stat. 

3677, 41 U.S.C. 1502. 

■ 2. Section 9903.201–1 is amended by 

revising paragraph (b)(6) to read as 

follows: 

9903.201–1 CAS applicability. 

* * * * * 

(b) * * * 

(6) Contracts and subcontracts 

authorized in 48 CFR 12.207 for the 

acquisition of commercial items. 

* * * * * 

[FR Doc. 2018–15176 Filed 7–16–18; 8:45 am] 

BILLING CODE 3110–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 635 

[Docket No. 180205129–8129–01] 

RIN 0648–BH50 

Atlantic Highly Migratory Species 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule; technical 

amendments. 

SUMMARY: This final rule makes editorial 

corrections amending the regulations for 

Atlantic highly migratory species 

(HMS). This final action will make the 

rules easier to use by making the crossreferences in the regulations accurate, 

correcting grammatical and punctuation 

issues, and reformatting the regulations 

where needed to be consistent with 

Federal Register guidelines. The action 

also in several instances simplifies 

regulatory text by removing unnecessary 

language. The rule is administrative in 

nature and does not make any change 

with substantive effect to the regulations 

for HMS fisheries. 

DATES: This final rule is effective on July 

17, 2018. 

ADDRESSES: Documents related to HMS 

fisheries management, such as the 2006 

Consolidated HMS Fishery Management 

Plan (FMP) and its amendments, are 

available from the HMS Management 

Division website at https://

www.fisheries.noaa.gov/topic/atlantichighly-migratory-species or upon 

request from the HMS Management 

Division at 1315 East-West Highway, 

Silver Spring, MD 20910. 

FOR FURTHER INFORMATION CONTACT: 

Lauren Latchford, Larry Redd, or Karyl 

Brewster-Geisz by phone at 301–427– 

8503. 

SUPPLEMENTARY INFORMATION: Atlantic 

HMS are managed under the dual 

authority of the Magnuson-Stevens 

Fishery Conservation and Management 

Act, 16 U.S.C. 1801 et seq., (MagnusonStevens Act) and the Atlantic Tunas 

Convention Act, 16 U.S.C. 971 et seq., 

(ATCA). On October 2, 2006, NMFS 

published in the Federal Register (71 

FR 58058) regulations implementing the 

2006 Consolidated HMS FMP, which 

details the management measures for 

Atlantic HMS fisheries; these 

management measures have been 

amended or otherwise modified 

numerous times. The implementing 

regulations for Atlantic HMS are at 50 

CFR part 635. 

Background 

The regulations at 50 CFR part 635 are 

promulgated under ATCA and the 

Magnuson-Stevens Act for the 

conservation and management of 

Atlantic highly migratory species, 

including species of tunas, billfish, 

sharks, and swordfish. In 2006, NMFS 

consolidated Atlantic HMS management 

into one fishery management plan, the 

2006 Consolidated HMS FMP. Since 

then, NMFS has amended the FMP ten 

times through the fishery management 

plan amendment process and has made 

numerous other regulatory changes 

through framework actions. With this 

volume of regulatory action, some small 

grammatical and other errors have 

accumulated over time. As described in 

the sections below, this technical 

amendment corrects grammatical, 

punctuation, consistency, crossreference errors in the HMS regulations 

at 50 CFR part 635. As explained in the 

Consistency section below, it also 

simplifies regulatory text by removing 

unnecessary language in several limited 

instances. 

Typographical Corrections 

The following grammatical, 

punctuation, or clerical errors (i.e., 

typographical errors) in the HMS 

regulations are corrected by this final 

rule: 

The definition of ‘‘CK’’ at § 635.2 does 

not spell out the words for which it is 

an acronym. This final action therefore 

adds ‘‘Cleithrum to Caudal Keel’’ before 

the acronym ‘‘CK.’’ The definition of 

‘‘Hammerhead Sharks’’ at § 635.2 

capitalizes the word ‘‘shark(s).’’ This 

final action changes to lowercase the 

word ‘‘shark(s).’’ The regulation at 

§ 635.4(l)(2)(viii) does not capitalize the 

word ‘‘tunas’’ in the permit title, 

‘‘Atlantic Tunas Longline category 

LAP.’’ This final action capitalizes the 

word ‘‘Tunas.’’ The regulation at 

§ 635.5(b)(1)(i) has commas incorrectly 

after the words ‘‘all’’ and ‘‘swordfish’’ in 

the sentence, ‘‘All reports must be 

species-specific and must include the 

required information about all, 

swordfish, and sharks received by the 

dealer.’’ This final action removes the 

misplaced commas. The regulation at 

§ 635.5(c)(2) is missing apostrophes and 

has extra parentheses in three places 

where the text should read, ‘‘owner’s 

designee.’’ This final action adds 

apostrophes and removes the mistaken 

parentheses to correct this text. The 

regulations at § 635.6(b)(1)(ii) and (c)(1) 

do not capitalize the word ‘‘Arabic.’’ 

This final action corrects this error and 


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