24126 Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations

street address, and telephone number of

at least one attorney of record. Parties

not represented by an attorney that file

comments and replies in electronic form

shall provide their name, street address,

and telephone number.

14. Section 1.429 is amended by

revising paragraphs (d), (e), (f), (g) and

(h) to read as follows:

§ 1.429 Petitions for reconsideration.

* * * * *

(d) The petition for reconsideration

and any supplement thereto shall be

filed within 30 days from the date of

public notice of such action, as that date

is defined in § 1.4(b). No supplement to

a petition for reconsideration filed after

expiration of the 30 day period will be

considered, except upon leave granted

pursuant to a separate pleading stating

the grounds for acceptance of the

supplement. The petition for

reconsideration shall not exceed 25

double-spaced typewritten pages. See

also § 1.49(f).

(e) Except as provided in § 1.420(f),

petitions for reconsideration need not be

served on parties to the proceeding.

(However, where the number of parties

is relatively small, the Commission

encourages the service of petitions for

reconsideration and other pleadings,

and agreements among parties to

exchange copies of pleadings. See also

§ 1.47(d) regarding electronic service of

documents.) When a petition for

reconsideration is timely filed in proper

form, public notice of its filing is

published in the Federal Register. The

time for filing oppositions to the

petition runs from the date of public

notice. See § 1.4(b).

(f) Oppositions to a petition for

reconsideration shall be filed within 15

days after the date of public notice of

the petition’s filing and need be served

only on the person who filed the

petition. See also § 1.49(d). Oppositions

shall not exceed 25 double-spaced

typewritten pages. See § 1.49(f).

(g) Replies to an opposition shall be

filed within 10 days after the time for

filing oppositions has expired and need

be served only on the person who filed

the opposition. Replies shall not exceed

10 double-spaced typewritten pages. See

also § 1.49(d) and § 1.49(f).

(h) Petitions for reconsideration,

oppositions and replies shall conform to

the requirements of §§ 1.49 and 1.52,

except that they need not be verified.

Except as provided in § 1.420(e), an

original and 11 copies shall be

submitted to the Secretary, Federal

Communications Commission,

Washington, D.C. 20554. Parties filing in

electronic form need only submit one

copy.

* * * * *

15. Section 1.1206 is amended by

revising paragraphs (b)(1) and (b)(2)

preceeding Note 1 to read as follows:

§ 1.1206 Permit-but-disclose proceedings.

* * * * *

(b) * * *

(1) Written presentations. A person

who makes a written ex parte

presentation subject to this section

shall, no later than the next business

day after the presentation, submit two

copies of the presentation to the

Commission’s secretary under separate

cover for inclusion in the public record.

The presentation (and cover letter) shall

clearly identify the proceeding to which

it relates, including the docket number,

if any, shall indicate that two copies

have been submitted to the Secretary,

and must be labeled as an ex parte

presentation. If the presentation relates

to more than one proceeding, two copies

shall be filed for each proceeding.

Alternatively, in rulemaking

proceedings governed by § 1.49(f), the

person making the presentation may file

one copy of the presentation

electronically; no additional paper

copies need to be filed.

(2) Oral presentations. A person who

makes an oral ex parte presentation

subject to this section that presents data

or arguments not already reflected in

that person’s written comments,

memoranda or other filings in that

proceeding shall, no later than the next

business day after the presentation,

submit to the Commission’s Secretary,

an original and one copy of a

memorandum which summarizes the

new data or arguments. Except in

proceedings subject to § 1.49(f) in which

pleadings are filed electronically, a copy

of the memorandum must also be

submitted to the Commissioners or

Commission employees involved in the

oral presentation. In proceedings

governed by § 1.49(f), the person making

the presentation may, alternatively,

electronically file one copy of the

memorandum, which will be available

to Commissioners and Commission

employees involved in the presentation

through the Commission’s electronic

comment filing system. Memoranda

must contain a summary of the

substance of the ex parte presentation

and not merely a listing of the subjects

discussed. More than a one or two

sentence description of the views and

arguments presented is generally

required. The memorandum (and cover

letter) shall clearly identify the

proceeding to which it relates, including

the docket number, if any, shall indicate

that an original and one copy have been

submitted to the Secretary or that one

copy has been filed electronically, and

must be labeled as an ex parte

presentation. If the presentation relates

to more than one proceeding, two copies

of the memorandum (or an original and

one copy) shall be filed for each

proceeding.

* * * * *

[FR Doc. 98–10310 Filed 4–30–98; 8:45 am]

BILLING CODE 6712–01–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 1

[CC Docket No. 92–297; RM–7872; PP–22

et al.; FCC 98–71]

Dismissal of All Pending Pioneer’s

Preference Requests; Review of the

Pioneer’s Preference Rules

AGENCY: Federal Communications

Commission.

ACTION: Final rule; denial of petition for

reconsideration.

SUMMARY: By this action, the

Commission denies a petition for

reconsideration filed by QUALCOMM

Incorporated. QUALCOMM contends

that the Commission is obligated to

consider on its merits QUALCOMM’s

request for a pioneer’s preference in the

2 GHz broadband Personal

Communications Service (PCS).

However, the Commission affirms that it

no longer has the authority to award

pioneer’s preferences because the

Balanced Budget Act of 1997 (Budget

Act) terminated the pioneer’s preference

program. The intended effect of this

action is to affirm the Commission’s

previous Order, which formally

terminated the pioneer’s preference

program and dismissed all pending

pioneer’s preference requests.

EFFECTIVE DATE: May 1, 1998.

FOR FURTHER INFORMATION CONTACT:

Rodney Small, Office of Engineering

and Technology, (202) 418–2452;

internet: rsmall@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s

Memorandum Opinion and Order

(MO&O) adopted April 16, 1998, and

released April 23, 1998. The full text of

this Commission decision is available

for inspection and copying during

regular business hours in the FCC

Reference Center (Room 239), 1919 M

Street, NW., Washington, DC. The

complete text of this decision also may

be purchased from the Commission’s

duplication contractor, International
Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations 24127

Transcription Service, Inc., (202) 857–

3800, 2100 M Street, NW., Suite 140,

Washington, DC 20037.

Summary of MO&O

1. On October 20, 1997, QUALCOMM

filed a petition for reconsideration of the

Commission’s Order, 62 FR 48951,

September 18, 1997, which dismissed

all pending pioneer’s preference

requests, including QUALCOMM’s 2

GHz broadband PCS request. For

reasons that follow, we deny the

petition for reconsideration.

2. In 1994, we denied QUALCOMM’s

2 GHz broadband PCS request. In

January 1997, however, the United

States Court of Appeals for the District

of Columbia Circuit (Court) granted

QUALCOMM’s petition for review of

our action, vacated our denial of

QUALCOMM’s pioneer’s preference

request, and remanded the proceeding

to us for further consideration.

3. On August 5, 1997, President

Clinton signed into law the Budget Act.

Among other things, the Budget Act

revised the expiration date of the

pioneer’s preference program, as set

forth in section 309(j)(13)(F) of the

Communications Act of 1934, as

amended. That section had been added

in 1994 legislation domestically

implementing the General Agreement

on Tariffs and Trade (GATT), and read

prior to enactment of the Budget Act:

‘‘The authority of the Commission to

provide preferential treatment in

licensing procedures (by precluding the

filing of mutually exclusive

applications) to persons who make

significant contributions to the

development of a new service or to the

development of new technologies that

substantially enhance an existing

service shall expire on September 30,

1998.’’ The Budget Act advanced that

date to ‘‘the date of enactment of the

Balanced Budget Act of 1997.’’ Thus,

the pioneer’s preference program

expired on August 5, 1997. In our Order,

we formally terminated the pioneer’s

preference program and dismissed all

pending pioneer’s preference requests,

including QUALCOMM’s.

4. On October 9, 1997, QUALCOMM

filed with the Court a ‘‘Motion to

Enforce Mandate and Supporting

Memorandum,’’ contending that our

Order misconstrued the Budget Act and

requesting the Court to order us to

consider QUALCOMM’s pioneer’s

preference request on its merits. On

October 16, 1997, counsel for the

Commission filed an opposition to the

motion, pointing out, inter alia, that

QUALCOMM’s motion was

procedurally improper because

QUALCOMM had not filed a petition for

reconsideration of the Order affording

us an opportunity to address its

contentions. On October 20, 1997, while

QUALCOMM’s motion was still

pending before the Court, QUALCOMM

filed with the Commission a petition for

reconsideration of the Order. On

November 5, 1997, the Court dismissed

the motion on the grounds that

QUALCOMM had failed to exhaust its

administrative remedies, stating that the

‘‘appropriate procedure for

QUALCOMM to seek relief is to petition

to the Commission to reconsider its

decision dismissing QUALCOMM’s

application.’’

5. In its petition for reconsideration,

QUALCOMM argues that ‘‘the FCC’s

application of the Budget Act violates

the rule against retroactive application

of the law,’’ that ‘‘the language of the

Budget Act suggests that Congress

intended to permit continuation of the

[pioneer’s preference] program, while

placing restrictions on the

Commission’s authority to preclude the

filing of mutually exclusive

applications,’’ and that ‘‘QUALCOMM

is entitled to a fair hearing on the merits

of its pioneer’s preference application.’’

QUALCOMM also claims that, in

terminating the pioneer’s preference

program and dismissing its request for

a preference without providing for

public notice and comment, our Order

violated the requirements of the

Administrative Procedure Act (APA).

We reject each of these arguments.

6. Retroactivity. We find

QUALCOMM’s characterization of our

Order dismissing its pioneer’s

preference request as an improper

‘‘retroactive’’ application of the Budget

Act to be without merit. The Order

appropriately gave prospective effect to

this statute in concluding that as of the

date of its enactment, August 5, 1997,

we no longer had authority to grant

pending requests for pioneer’s

preferences. Thus, contrary to

QUALCOMM’s claim, our action did not

violate the traditional presumption

against retroactivity that the Supreme

Court reiterated in Landgraf v. USI Film

Products, 511 U.S. 244 (1994).

7. Moreover, our application of the

Budget Act in this case is consistent

with the firmly-established principle

that, ‘‘when a law conferring

jurisdiction is repealed without any

reservation as to pending cases, all cases

fall with the law.’’ Bruner v. United

States, 343 U.S. 112, 116–117 (1952).

The Supreme Court has explained that

application of a new jurisdictional rule

normally does not raise concerns about

retroactivity ‘‘because jurisdictional

statutes speak to the power of the court

rather than to the rights or obligations

of the parties.’’ Landgraf, 511 U.S. at

273. Similarly, application of the Budget

Act in this case does not produce an

impermissible retroactive effect because

that statute addresses our authority to

act, not the merits of QUALCOMM’s

pioneer’s preference request.

8. Accordingly, we find that we

properly applied the time-honored tenet

of statutory construction that, ‘‘when a

law conferring jurisdiction is repealed

without any reservation as to pending

cases, all cases fall with the law.’’

Bruner, 343 U.S. at 116–17. Moreover,

even if the Budget Act properly could be

characterized as altering the substantive

law applicable to pioneer’s preferences,

the statute’s application in

QUALCOMM’s case does not raise the

retroactivity concerns identified in

Landgraf. As the Supreme Court

explained, a new statute is considered

retroactive only if ‘‘it would impair

rights a party possessed when he acted,

increase a party’s liability for past

conduct, or impose new duties with

respect to transactions already

completed.’’ Landgraf, 511 U.S. at 280.

See also Saco River Cellular, Inc. v.

FCC, No. 91–1248, slip op. at 9 (DC Cir.

Jan. 16, 1998) (Saco River). The Budget

Act has none of these effects. It neither

increases QUALCOMM’s liability for

past conduct nor imposes new duties

relating to completed transactions.

Additionally, this new statute does not

impair any right possessed by

QUALCOMM ‘‘because none vested on

the filing of its [request].’’ Chadmoore

Communications, Inc. v. FCC, 113 F.3d

235, 241 (DC Cir. 1997).

9. Further, in its remand order, the

Court in Freeman Engineering did not

find that QUALCOMM had a vested

right to a pioneer’s preference; it simply

required us to reevaluate whether

QUALCOMM’s request for a preference

should be granted or denied. Thus, the

effect of the remand was to return

QUALCOMM’s preference request to

pending status before the Commission

and afforded QUALCOMM no greater or

lesser rights than those of any other

party with a pending preference request.

Clearly, Congress had the power to

enact legislation that terminated our

authority to grant pending requests for

pioneer’s preferences; and ‘‘the mere

expectations of a license applicant

cannot bar the legitimate exercise of

such congressional power.’’ Multi-State

Communications, Inc. v. FCC, 728 F.2d

1519, 1526 n.12 (DC Cir.), cert. denied,

469 U.S. 1017 (1984). The mere fact that

a statute is ‘‘applied in a case arising

from conduct antedating the statute’s

enactment or upsets expectations based

in prior law’’ does not render the statute
24128 Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations

retroactive.’’ Saco River, slip op. at 9,

quoting Landgraf, 511 U.S. at 269.

10. Scope of Sunset Provision in

Budget Act. QUALCOMM asserts that

the Budget Act does not bar us from

awarding pioneer’s preferences, but

only limits our power to provide

preferential treatment to pioneers by

precluding the filing of mutually

exclusive applications. We disagree.

Our preference program rewarded

innovators by enabling them to obtain

licenses without having to face

competing (i.e., mutually exclusive)

applications. We are not at liberty to

grant some other sort of preference to

communications pioneers. Section

309(j)(13)(A) of the Communications

Act provides that we ‘‘shall not award

licenses’’ by giving preferential

treatment to innovators ‘‘except in

accordance with the requirements’’ of

section 309(j)(13). 47 U.S.C.

309(j)(13)(A). Following its amendment

by the Budget Act, section 309(j)(13)

contains no provision authorizing us to

give preferences to innovators in the

licensing process. Further, while

sections 7(a) and 303(g) give us the

authority to award pioneer’s preferences

in the absence of an explicit statute to

the contrary, section 309(j)(13)(F) is just

such a statute.

11. QUALCOMM contends, however,

that Congress did not intend for the

Budget Act’s immediate termination of

the pioneer’s preference program to

affect its pending preference request

because the House Report on the 1994

GATT Legislation stated that Congress

did not intend to ‘‘affect the rights of

persons who have been denied a

pioneer’s preference.’’ Petition for

Reconsideration at 6 (quoting Report to

accompany H.R. 5110, 103 Cong. 2d.

House Rept. 103–826 (House Report)).

We are not persuaded by QUALCOMM’s

argument. The quoted statement from

the House Report does not address the

sunset provision set forth in section

309(j)(13)(F) of the Communications

Act. Instead, the statement in question

clarified that a different provision of the

Act, section 309(j)(13)(E), which

precluded further administrative and

judicial review of certain grants of

pioneer’s preference requests, was not

intended to ‘‘affect the rights of persons

who have been denied a pioneer’s

preference.’’ House Report at 8

(emphasis added). That is, Congress

intended simply to make clear in 1994

that parties like QUALCOMM could

appeal the denial of a pioneer’s

preference request despite the no review

provision.

12. Right to a Hearing. QUALCOMM

argues that the Order violated its right

to due process by denying its ‘‘right to

a fair hearing [that had] vested long

before Congress changed the law

relating to pioneer’s preferences on a

going forward basis.’’ We disagree.

QUALCOMM does not have a

constitutional ‘‘right to a fair hearing’’

unless that hearing concerns

constitutionally protected liberty or

property interests: ‘‘The requirements of

procedural due process apply only to

the deprivation of interests

encompassed by the [Constitution’s]

protection of liberty and property.’’

Board of Regents v. Roth, 408 U.S. 564,

569 (1972). Although QUALCOMM

claims a property interest in a fair

hearing, any hearing that it would

receive at this point would not

implicate any property interest because

we no longer have authority to grant

QUALCOMM’s preference request. As

the U.S. Court of Appeals for the District

of Columbia Circuit recently reaffirmed,

‘‘[t]he filing of an application creates no

vested right to a hearing; if the

substantive standards change so that the

applicant is no longer qualified, the

application may be dismissed.’’

Chadmoore, 113 F.3d at 241 (quoting

Hispanic Information &

Telecommunications Network v. FCC,

865 F.2d 1289, 1294–95 (DC Cir. 1989));

see also Melcher v. FCC, 134 F.3d 1143,

1164–65 (DC Cir. 1998).

13. While QUALCOMM contends that

it has a vested right in a pioneer’s

preference, neither we nor the court has

ever found that QUALCOMM was

entitled to a preference under our rules.

Further, QUALCOMM has no right to a

hearing that cannot yield the benefits it

seeks. A hearing is a means to an end,

and the end that QUALCOMM seeks—

grant of a pioneer’s preference—is no

longer available. A hearing thus would

be futile. Accordingly, our decision to

dismiss QUALCOMM’s preference

application ‘‘simply respects the

statutorily-fixed deadline’’ for

exercising our authority to award

pioneer’s preferences: ‘‘[I]n thus

following the legislature’s direction, the

[Commission] contravened no due

process right to fundamentally fair

procedures.’’ Spannaus v. FCC, 990

F.2d 643, 645 (DC Cir. 1993).

14. APA Notice and Comment

Requirements. QUALCOMM argues that

‘‘[t]he APA requires that the

Commission allow an opportunity for

notice and comment before

promulgating rules other than those ‘of

agency organization, or practice.’ ’’ The

APA also, however, permits us to

proceed without notice and comment

procedures when good cause exists for

finding such procedures are

‘‘impracticable, unnecessary, or contrary

to the public interest.’’ 5 U.S.C.

553(b)(B). Similarly, publication or

service of a rule change at least 30 days

before its effective date is not required

when good cause is found. 5 U.S.C.

553(d)(3). Such is the situation before

us. The unambiguous language of the

Budget Act terminating our authority to

grant pioneer’s preferences effective

upon enactment of the Act made it

unnecessary for us to follow public

notice and comment procedures or to

provide for at least 30 days advance

publication in order to amend our rules

to terminate the pioneer’s preference

program and to dismiss pending

pioneer’s preference requests.

15. Other Matters. In comments filed

November 6, 1997, QUALCOMM argues

that the Order interpreted the sunset

provision of section 309(j)(13)(F) in a

manner inconsistent with past

Commission precedent but failed to

explain the reasons for this departure

from precedent. Specifically,

QUALCOMM claims that in the Second

Report and Order and Further Notice of

Proposed Rule Making (Second R&O) in

the Pioneer’s Preference Review

Proceeding, 60 FR 13396, March 13,

1995, we interpreted section

303(j)(13)(F) as applying only to

pioneer’s preference requests filed after

September 1, 1994, but in our Order we

applied that provision to pioneer’s

preference requests, such as

QUALCOMM’s, which were filed before

that date. Because the Order relied on

the sunset provision as the basis for

dismissing QUALCOMM’s request,

QUALCOMM asserts that it was denied

administrative due process because the

Commission changed its interpretation

of the sunset provision without

explanation.

16. As an initial matter, we agree with

observations made by PrimeCo Personal

Communications, L.P. and Sprint PCS,

in their opposition to the petition, that

QUALCOMM’s comments constitute a

late-filed supplement to its petition for

reconsideration. Accordingly, pursuant

to section 1.429 of the Commission’s

rules, we are dismissing those

comments. Nonetheless, we note sua

sponte that the ‘‘unexplained departure

from precedent’’ argument advanced in

QUALCOMM’s comments is without

merit. In the Second R&O, in rejecting

comments suggesting that we

immediately repeal the pioneer’s

preference program, we explained that,

for preference requests filed after

September 1, 1994, section 309(j)(13)(F)

directed us to continue this program

until September 30, 1998, and that for

preference requests filed on or before

September 1, 1994, we did not find any

valid reason for terminating the program

earlier. No commenter in that
Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations 24129

proceeding had raised, and we did not

discuss, whether we had the authority

to continue the pioneer’s preference

program beyond the date specified in

section 309(j)(13)(F) for preference

requests filed on or before September 1,

1994. It is clear, however, that we

retained no such authority. The GATT

legislation required the termination of

the entire pioneer’s preference program

by a date certain, September 30, 1998.

That we retained the discretion to

terminate the program with respect to

earlier-filed preference requests (but

chose not to exercise that discretion)

does not imply that we had discretion

to continue the program in any respect

beyond the date set forth in the

legislation. Our actions in the Order

dismissing QUALCOMM’s preference

request and terminating the pioneer’s

preference program as of the date set

forth in section 309(j)(13)(F) as amended

by the Budget Act, August 5, 1997, are

thus fully consistent with our actions in

the Second R&O.

17. Finally, we note that in comments

filed November 12, 1997, Global

Broadcasting Company, Inc. requests

that we ‘‘consider on the merits’’ the

pioneer’s preference request filed by

Web SportsNet, Inc. and Gregory D.

Deieso but also dismissed in our Order.

We are dismissing these comments as an

improperly late-filed petition for

reconsideration of our action dismissing

the preference request, but also note that

we have no authority to grant the relief

requested.

Ordering Clauses

18. Accordingly, it is ordered that the

petition for reconsideration filed on

October 20, 1997 by QUALCOMM

Incorporated is denied. This action is

taken pursuant to sections 4(i) and

303(r) of the Communications Act of

1934, as amended, 47 U.S.C. 154(i) and

303(r).

19. It is further ordered that the

comments filed on November 6, 1997 by

QUALCOMM Incorporated and on

November 12, 1997 by Global

Broadcasting Company, Inc. are

dismissed. This action is taken pursuant

to section 1.429(d) of the Commission’s

rules.

List of Subjects in 47 CFR Part 1

Administrative practice and

procedure.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

[FR Doc. 98–11616 Filed 4–30–98; 8:45 am]

BILLING CODE 6712–01–P

DEPARTMENT OF DEFENSE

Department of the Navy

48 CFR Parts 5243 and 5252

RIN 0703–AA34

Adjustments to Prices Under

Shipbuilding Contracts

AGENCY: Department of the Navy, DOD.

ACTION: Final rule.

SUMMARY: The Department of the Navy

(DON) is removing certain regulations

for adjustments to prices under

shipbuilding contracts contained in the

Navy Acquisition Procedures

Supplement (48 CFR part 5243,

§§ 5252.243–9000 and 5252.243–9001).

The National Defense Authorization Act

of Fiscal Year 1998 eliminated the

statutory authority for these rules. Such

rules are now unnecessary and are

removed immediately. Providing for a

comment period before final action in

this case would be unnecessary,

impracticable, and contrary to public

interest. However, DON will accept and

consider comments from interested

persons in evaluating the effect of this

action.

DATES: Effective Date of Removal: May

1, 1998.

Comment Date: Comments on this

removal action should be submitted in

writing to the address shown below on

or before June 30, 1998.

ADDRESSES: Interested parties should

submit written comments to Department

of the Navy, Office of the Assistant

Secretary of the Navy (Research,

Development and Acquisition)

Acquisition and Business Management,

2211 South Clark Place, Arlington,

Virginia, 22244–5104.

FOR FURTHER INFORMATION CONTACT: Mr.

Michael G. Shaffer, (703)602–1263.

SUPPLEMENTARY INFORMATION:

A. Background

The Department of Defense

Authorization Act, 1985 (Pub. L. 98–525

§ 1234(a), 98 Stat. 2604, Oct. 19, 1984)

established certain limitations on price

adjustments made to shipbuilding

contracts, which were codified at 10

U.S.C. 2405. The DON published

proposed rules to implement the

requirements of 10 U.S.C. 2405 in the

Federal Register on Nov. 16, 1989 (54

FR 47689). A correction and extension

of the public comment period was

published in the Federal Register on

Feb. 2, 1990 (55 FR 3603). Revised

proposed rules and notice of additional

public comment period and public

hearing were published in the Federal

Register on Jun. 29, 1990 (55 FR 26708).

Extension of the public comment period

and rescheduling of the public hearing

were published in the Federal Register

on Aug. 16 and Oct. 26, 1990 (55 FR

33541 and 43150). An interim rule and

request for comments was published in

the Federal Register on Dec. 5, 1991 (56

FR 63664). This interim rule added to

title 48 of the Code of Federal

Regulations a new Part 5243, as well as

new §§ 5252.243–9000 and 5252.243–

9001, and was made effective on Dec. 5,

1991. No final rule was published.

Section 810 of the National Defense

Authorization Act for Fiscal Year 1998

(Pub. L. 105–85, 111 Stat. 1839, Nov. 18,

1997) repealed 10 U.S.C. 2405, making

the Navy’s implementing regulations

contained in 48 CFR parts 5243 and

5252 unnecessary. For this reason, the

Navy is now removing and reserving 48

CFR part 5243 in its entirety, as well as

§§ 5252.243–9000 and 5252.243–9001.

While the Navy is removing part 5243

in its entirety from the Code of Federal

Regulations, information and policy

statements regarding contract

modifications remain in part 5243 of the

Navy Acquisition Procedures

Supplement (‘‘NAPS’’), which may be

accessed at www.abm.rda.hq.navy.mil/

naps, or by contacting the office listed

in the ADDRESSES block.

B. Determination To Remove Without

Prior Public Comment

This removal action is being issued as

a final rule without a public comment

period as an exception to the DON’s

standard practice of soliciting comments

during the rulemaking process.

Providing a period for public comment

in this case would be unnecessary,

impracticable, and contrary to the

public interest. This determination is

based on two factors. First, removal of

these rules is entirely administrative

and corrective in nature, not requiring

the exercise of agency discretion.

Second, to allow these rules to remain

in the Code of Federal Regulations any

longer may mislead and confuse the

public regarding statutory requirements

relating to adjustments of any price

under a shipbuilding contract for the

amount set forth in a claim, request for

equitable adjustment, or demand for

payment.

C. Matters of Regulatory Procedure

Executive Order 12866, Regulatory

Planning and Review

Removal of these rules does not meet

the definition of ‘‘significant regulatory

action’’ for purposes of E.O. 12866.