Federal Register / Vol. 65, No. 226 / Wednesday, November 22, 2000 / Rules and Regulations 70315

rule is discussed in the January 27, 2000

Federal Register document.

The Congressional Review Act (5

U.S.C. 801 et seq.), as added by the

Small Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. Section 808 allows

the issuing agency to make a rule

effective sooner than otherwise

provided by the CRA if the agency

makes a good cause finding that notice

and public procedure is impracticable,

unnecessary or contrary to the public

interest. This determination must be

supported by a brief statement. 5 U.S.C.

808(2). As stated previously, EPA has

made such a good cause finding,

including the reasons therefor, and

established an effective date of

November 22, 2000. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. This action is not

a ‘‘major rule’’ as defined by 5 U.S.C.

804(2).

List of Subjects in 40 CFR Part 444

Environmental protection, Hazardous

waste, Incineration, Waste treatment

and disposal, Water pollution control.

Dated: August 31, 2000.

J. Charles Fox,

Assistant Administrator for Water.

For the reasons set out in the

preamble, title 40, chapter I of the Code

of Federal Regulations is amended as

follows:

1. The authority citation for part 444

continues to read as follows:

Authority: Secs. 301, 304, 306, 307, 308,

402, and 501 of the Clean Water Act, as

amended; 33 U.S.C. 1311, 1314, 1316, 1317,

1318, 1342, and 1361.

§ 444.12 [Amended]

2. Section 444.12 is amended by:

a. Removing the paragraph

designation for the first paragraph (b)(2)

and designating the text as the last two

sentences of paragraph (b)(1).

b. Redesignating the table entitled

‘‘List of Approved Inorganic Test

Procedures’’ to paragraph (b)(1).

c. Amending the entry ‘‘2. Cadmium’’

in the table to paragraph (b)(1) by

transferring ‘‘D3557–90(D)’’ from the

entry for ICP/AES to the entry for AA

furnace in the 4th column of the table.

d. Amending the entry ‘‘11. Zinc’’ in

the table to paragraph (b)(1) by

transferring ‘‘D4190–82(88)’’ from the

entry for Colorimetric (Dithizone) to the

entry for DCP in the 4th column of the

table.

[FR Doc. 00–29873 Filed 11–21–00; 8:45 am]

BILLING CODE 6560–50–P

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

48 CFR Parts 1807, 1815, 1816, 1823,

1849, and 1852

Risk Management

AGENCY: National Aeronautics and

Space Administration (NASA).

ACTION: Interim rule adopted as final

with changes.

SUMMARY: This is a final rule amending

the NASA FAR Supplement (NFS) to

emphasize considerations of risk

management, including safety, security

(including information technology

security), health, export control, and

damage to the environment, within the

acquisition process. This final rule

addresses risk management within the

context of acquisition planning,

selecting sources, choosing contract

type, structuring award fee incentives,

administering contracts, and conducting

contractor surveillance.

EFFECTIVE DATE: November 22, 2000.

FOR FURTHER INFORMATION CONTACT:

James H. Dolvin, NASA Headquarters,

Office of Procurement, Contract

Management Division (Code HK), (202)

358–1279, email:

jdolvin1@mail.hq.nasa.gov.

SUPPLEMENTARY INFORMATION:

A. Background

NASA is adopting as final, with

changes, the interim rule published in

the Federal Register (65 FR 37057–

37061, June 13, 2000) that revised

various NFS Parts to refocus on risk as

a core acquisition concern as part of

NASA’s risk-based acquisition

management initiative. Comments were

received from one company and an

industry association. All comments

were considered in the development of

the final rule. Revisions primarily affect

internal procedures and include the

following: (1) In section 1807.105 the

reference to a NASA document is

revised; (2) in section 1815.203–72, the

words ‘‘and RFOs’’ are added after

‘‘RFPs’’ to make it clear that the section

applies to MidRange procurements; (3)

in section 1816.405–274 and new

section 1849.102–71, language is added

to require the contracting officer to

notify the Associate Administrator for

Procurement prior to the determination

of a zero award fee in accordance with

NFS 1816.405–274, and prior to

exercising remedies under NFS clause

1852.223–75; (4) in section 1823.7001,

the word at the end of paragraph (b)(1)

is changed from ‘‘or’’ to ‘‘and’’, and the

word ‘‘concurrence’’ in paragraph (b)(2)

is changed to ‘‘approval’’, to enhance

the role of installation safety officials in

the application of the Safety and Health

clause; and (5) in section 1852.223–75,

the words ‘‘or mission failure’’ are

added after ‘‘fatality’’ in paragraph (a),

to achieve consistency with similar

language in section 1816.405–274(c)(2).

B. Regulatory Flexibility Act

NASA certifies that this final rule will

not have a significant economic impact

on a substantial number of small

business entities under the Regulatory

Flexibility Act (5 U.S.C. 601 et seq.)

because this rule simply focuses

attention on risk management, an

existing business practice, and does not

impose any significant new

requirements which might have an

economic impact.

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

collection of information from offerors,

contractors, or members of the public

which require the approval of the Office

of Management and Budget under 41

U.S.C. 3501, et seq.

List of Subjects in 48 CFR Parts 1807,

1815, 1816, 1823, 1849, and 1852

Government procurement.

Tom Luedtke,

Associate Administrator for Procurement.

Interim Rule Adopted as Final With

Changes.

Accordingly, the interim rule

published at 65 FR 37057–37061, June

13, 2000, is hereby adopted as final with

the following changes:

1. The authority citation for 48 CFR

Parts 1807, 1815, 1816, 1823, 1849, and

1852 continues to read as follows:

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

PART 1807—ACQUISITION PLANNING

2. In section 1807.105, revise

paragraph (a)(7) to read as follows:

1807.105 Contents of written acquisition

plans.

* * * * *

(a) * * *

(7) Discuss project/program risks (see

NPG 7120.5, NASA Program and Project

70316 Federal Register / Vol. 65, No. 226 / Wednesday, November 22, 2000 / Rules and Regulations

Management Processes and

Requirements). In addition to technical,

schedule, and cost risks, the discussion

shall include such considerations as:

safety and security (including

personnel, information technology, and

facilities/property); the need to involve

foreign sources (contractor and/or

governmental), and risks of

unauthorized technology transfer (see

NPD 2110.1D and Export Control

Program (http://www.hq.nasa.gov/

office/codei/nasaecp/ecpolicy.html));

and resource risk, including the

necessary level and expertise of NASA

personnel resources available to manage

the project/program. For each area of

risk identified, the discussion shall

include a quantification of the relative

magnitude (e.g., high, medium, low)

together with the specific actions taken

to structure the acquisition approach to

manage the risks throughout the

acquisition process. For example, this

discussion would identify those areas

that have safety risk, discuss how safety

is addressed in contract requirements

and evaluated in the source selection,

and how it will be managed and

incentivized during contract

performance. Decisions to accept,

mitigate, track, and/or research risk

factors shall be identified and

documented as part of acquisition

planning.

* * * * *

PART 1815—CONTRACTING BY

NEGOTIATION

3. Revise section 1815.203–72 to read

as follows:

1815.203–72 Risk management.

In all RFPs and RFOs for supplies or

services for which a technical proposal

is required, proposal instructions shall

require offerors to identify and discuss

risk factors and issues throughout the

proposal where they are relevant, and

describe their approach to managing

these risks.

PART 1816—TYPES OF CONTRACTS

4. In section 1816.405–274, add

paragraph (c)(4) to read as follows:

1816.405–274 Award fee evaluation

factors.

* * * * *

(c) * * *

(4) The Associate Administrator for

Procurement (Code HS) shall be notified

prior to the determination of a zero

award fee because of a major breach of

safety or security.

* * * * *

PART 1823—ENVIRONMENT,

CONSERVATION, OCCUPATIONAL

SAFETY, AND DRUG–FREE

WORKPLACE

5. In section 1823.7001, revise

paragraphs (b)(1) and (b)(2) to read as

follows:

1823.7001 NASA solicitation provisions

and contract clauses.

(b) * * *

(1) From any contract subject to the

Walsh-Healey Public Contracts Act (see

FAR subpart 22.6) or the Service

Contract Act of 1965 (see FAR subpart

22.10) in which the application of either

act and its implementing regulations

constitute adequate safety and

occupational health protection; and

(2) When the contracting officer, with

the approval of the installation

official(s) responsible for matters of

safety and occupational health, makes a

written determination that the clause is

not necessary under the circumstances

of the acquisition.

* * * * *

PART 1849—TERMINATION OF

CONTRACTS

6. Add section 1849.102–71 to read as

follows:

1849.102–71 Prior clearance of contract

terminations resulting from a major breach

of safety or security.

The Associate Administrator for

Procurement (Code HS) must be notified

prior to taking any action to terminate

because of a major breach of safety or

security.

PART 1852—SOLICITATION

PROVISIONS AND CONTRACT

CLAUSES

7. In section 1852.223–70, revise the

date of the clause and paragraph (c) to

read as follows:

1852.223–70 Safety and Health.

* * * * *

Safety and Health, November 2000

* * * * *

(c) The Contractor shall immediately notify

and promptly report to the Contracting

Officer or a designee any accident, incident,

or exposure resulting in fatality, lost-time

occupational injury, occupational disease,

contamination of property beyond any stated

acceptable limits set forth in the contract

Schedule; or property loss of $25,000 or

more, or Close Call (a situation or occurrence

with no injury, no damage or only minor

damage (less than $1,000) but possesses the

potential to cause any type mishap, or any

injury, damage, or negative mission impact)

that may be of immediate interest to NASA,

arising out of work performed under this

contract. The Contractor is not required to

include in any report an expression of

opinion as to the fault or negligence of any

employee. In addition, service contractors

(excluding construction contracts) shall

provide quarterly reports specifying lost-time

frequency rate, number of lost-time injuries,

exposure, and accident/incident dollar losses

as specified in the contract Schedule.

* * * * *

8. In section 1852.223–75, revise the

date of the clause and paragraph (a) to

read as follows:

1852.223–75 Major Breach of Safety or

Security.

* * * * *

Major Breach of Safety or Security,

November 2000

(a) Safety is the freedom from those

conditions that can cause death, injury,

occupational illness, damage to or loss of

equipment or property, or damage to the

environment. Safety is essential to NASA and

is a material part of this contract. A major

breach of safety may constitute a breach of

contract that entitles the Government to

exercise any of its rights and remedies

applicable to material parts of this contract,

including termination for default. A major

breach of safety must be related directly to

the work on the contract. A major breach of

safety is an act or omission of the Contractor

that consists of an accident, incident, or

exposure resulting in a fatality or mission

failure; or in damage to equipment or

property equal to or greater than $1 million;

or in any ‘‘willful’’ or ‘‘repeat’’ violation cited

by the Occupational Health and Safety

Administration (OSHA) or by a state agency

operating under an OSHA approved plan.

* * * * *

[FR Doc. 00–29899 Filed 11–21–00; 8:45 am]

BILLING CODE 7510–01–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 229

[Docket No. 991222346-0312-03; I.D.

111300E]

RIN 0648-AN40

Taking of Marine Mammals Incidental

to Commercial Fishing Operations;

Atlantic Large Whale Take Reduction

Plan Regulations; Remove and

Reserve Gear Marking Requirements

for Northeast U.S. Fisheries

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final rule.

SUMMARY: This final rule removes and

reserves the northeast U.S. fisheries gear