28284 Federal Register / Vol. 63, No. 99 / Friday, May 22, 1998 /Rules and Regulations

Source of flooding and location

# Depth in

feet above

ground.

*Elevation

in feet

(NGVD)

Approximately 0.91 mile

downstream of U.S. Route

61 ....................................... *655

Approximately 0.56 mile upstream of U.S. Route 61 ... *657

Sanders Creek:

At U.S. Route 61 ................... *657

Approximately 90 feet upstream of upstream corporate limits ....................... *678

Maps available for inspection

at the Boscobel City Hall,

1006 Wisconsin Avenue,

Boscobel, Wisconsin.

———

Iowa County (Unincorporated Areas) (FEMA

Docket No. 7227)

Wisconsin River:

At downstream county

boundary ............................ *680

At upstream county boundary *731

Maps available for inspection

at the Iowa County Zoning

Office, 222 North Iowa

Street, Dodgeville, Wisconsin.

———

Manitowoc County (Unincorporated Areas) (FEMA

Docket No. 7243)

Sheboygan River:

At county boundary ............... *845

At corporate limits of Kiel

(State Routes 67 and 32) .. *882

Maps available for inspection

at the Manitowoc County

Planning & Park Commission, 4319 Expo Drive,

Manitowoc, Wisconsin.

———

Merrill (City), Lincoln County

(FEMA Docket No. 7247)

Wisconsin River:

Approximately 1.1 miles

downstream of U.S. Route

51 ....................................... *1,241

Approximately 500 feet upstream of Alexander Dam *1,276

Prairie River:

At the confluence with Wisconsin River ....................... *1,252

Approximately 1,480 feet upstream of Third Street ....... *1,259

Devil Creek:

At the confluence with Wisconsin River ....................... *1,254

At Heldt Street ....................... *1,266

Maps available for inspection

at the City of Merrill Building

Inspector/Zoning Administrator’s Office, Merrill City Hall,

1004 East First Street, Merrill, Wisconsin.

(Catalog of Federal Domestic Assistance No.

83.100, ‘‘Flood Insurance.’’)

Dated: May 11, 1998.

Michael J. Armstrong,

Associate Director for Mitigation.

[FR Doc. 98–13732 Filed 5–21–98; 8:45 am]

BILLING CODE 6718–04–P

DEPARTMENT OF DEFENSE

48 CFR Parts 225 and 252

[DFARS Case 97–D321]

Defense Federal Acquisition

Regulation Supplement; Waiver of

Domestic Source Restrictions

AGENCY: Department of Defense (DoD).

ACTION: Final rule.

SUMMARY: The Director of Defense

Procurement has adopted as final, with

changes, an interim rule that was

published in the Federal Register on

February 4, 1998. The rule amends the

Defense Federal Acquisition Regulation

Supplement (DFARS) to implement

Section 811 of the National Defense

Authorization Act for Fiscal Year 1998.

Section 811 limits the authority for

waiver of the domestic source

restrictions of 10 U.S.C. 2534(a).

EFFECTIVE DATE: May 22, 1998.

FOR FURTHER INFORMATION CONTACT:

Ms. Amy Williams, (703) 602–0131.

SUPPLEMENTARY INFORMATION:

A. Background

An interim rule with request for

comments was published at 63 FR 5744

on February 4, 1998. The rule amended

DFARS Parts 225 and 252 to implement

Section 811 of the National Defense

Authorization Act for Fiscal Year 1998

(Pub. L. 105–85). Section 811 provides

that DoD may exercise the authority of

10 U.S.C. 2534(d), to waive the domestic

source restrictions of 10 U.S.C. 2534(a),

only if the waiver is made for a

particular item and for a particular

foreign country. 10 U.S.C. 2534(a)

contains domestic source restrictions

applicable to procurement of the

following items: Buses, chemical

weapons antidote, components for naval

vessels (including air circuit breakers,

anchor and mooring chain, and totally

enclosed lifeboats), and ball and roller

bearings.

One source submitted comments in

response to the interim rule. The

comments were considered in the

formation of the final rule. The final

rule adds guidance to clarify that, for

contracts entered into prior to the

effective date of a waiver, provided

adequate consideration is received to

modify the contract, such waiver shall

be applied as directed or authorized in

the waiver to (1) subcontracts entered

into on or after the effective date of the

waiver; and (2) options for the

procurement of items that are exercised

after the effective date of the waiver, if

the option prices are adjusted for any

reason other than the application of the

waiver.

B. Regulatory Flexibility Act

DoD certifies that this final rule will

not 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 there are no known small

business manufacturers of buses, air

circuit breakers, or the restricted

chemical weapons antidote; the

acquisition of anchor and mooring

chain, totally enclosed lifeboat survival

systems, and noncommercial ball and

roller bearings is presently restricted to

domestic sources by defense

appropriations acts; and the restrictions

of 10 U.S.C. 2534(a) do not apply to

purchases of commercial items

incorporating ball or roller bearings.

C. Paperwork Reduction Act

The Paperwork Reduction Act does

not apply, because this final rule does

not impose any 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 225 and

252

Government procurement.

Michele P. Peterson,

Executive Editor, Defense Acquisition

Regulations Council.

Interim Rule Adopted as Final With

Changes

Accordingly, the interim rule

amending 48 CFR Parts 225 and 252,

which was published at 63 FR 5744 on

February 4, 1998, is adopted as final

with the following changes:

1. The authority citation for 48 CFR

Parts 225 and 252 continues to read as

follows:

Authority: 41 U.S.C. 421 and 48 CFR

Chapter 1.

PART 225—FOREIGN ACQUISITION

2. Section 225.7005 is amended by

adding paragraph (a)(4) to read as

follows:

225.7005 Waiver of certain restrictions.

* * * * *

(a) * * *

(4) For contracts entered into prior to

the effective date of a waiver, provided

adequate consideration is received to

modify the contract, such waiver shall

be applied as directed or authorized in

the waiver to—

(i) Subcontracts entered into on or

after the effective date of the waiver;

and

(ii) Options for the procurement of

items that are exercised after the

effective date of the waiver, if the option
Federal Register / Vol. 63, No. 99 / Friday, May 22, 1998 /Rules and Regulations 28285

prices are adjusted for any reason other

than the application of the waiver.

* * * * *

3. Section 225.7019–3 is amended by

adding paragraph (b)(4) to read as

follows:

225.7019–3 Waiver.

* * * * *

(b) * * *

(4) For contracts entered into prior to

the effective date of a waiver, provided

adequate consideration is received to

modify the contract, such waiver shall

be applied as directed or authorized in

the waiver to—

(1) Subcontracts entered into on or

after the effective date of the waiver;

and

(ii) Options for the procurement of

items that are exercised after the

effective date of the waiver, if the option

prices are adjusted for any reason other

than the application of the waiver.

* * * * *

[FR Doc. 98–13741 Filed 5–21–98; 8:45 am]

BILLING CODE 5000–04–M

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

48 CFR Part 1816

Revision to the NASA FAR Supplement

on Technical Performance Incentive

Guidance.

AGENCY: National Aeronautics and

Space Administration (NASA).

ACTION: Final rule.

SUMMARY: This is a final rule amending

the NASA FARSupplement (NFS) to

correct inconsistencies on technical

performance incentive guidance.

EFFECTIVE DATE: May 22, 1998.

FOR FURTHER INFORMATION CONTACT: Tom

O’Toole, NASA Office of Procurement,

Contract Management Division (Code

HK), (202) 358–0478.

SUPPLEMENTARY INFORMATION:

Background

NFS section 1816.402–270, NASA

Technical Performance Incentives,

requires the use of positive and negative

performance incentives in hardware

contracts greater than $25M unless

waived in writing by the Center

Director. New section 1816.402,

Application of Predetermined, FormulaType Incentives, was added as a final

rule in the March 17, 1998 Federal

Register (63 FR 12997–12998). This

section provided guidance on the

appropriate selection and use of positive

and negative performance incentives,

but did not change the mandatory

requirement in 1816.402–270 which

appears to preempt those guidelines in

certain circumstances. This incongruity

is rectified by adding language to

1816.402–270 stating that NASA has

considered the guidelines in 1816.402

and has determined that performance

incentives are appropriate for, and must

be used in, hardware contracts greater

than $25M. Additional administrative

revisions are made to indicate that this

policy does not apply to commercial

acquisitions under FAR Part 12 and that

negative incentives are not required for

contracts which already require total

contractor liability for product

performance.

Impact

NASA certifies that this regulation

will not have a significant economic

impact on a substantial number of small

business entities under the

RegulatoryFlexibility Act (5 U.S.C. 601

et seq.). This final rule does not impose

any reporting requirements or

recordkeeping requirements subject to

the Paperwork Reduction Act.

List of Subjects in 48 CFR Part 1816

Government procurement.

Deidre A. Lee,

Associate Administrator for Procurement.

Accordingly, 48 CFR Part 1816 is

amended as follows:

PART 1816—TYPES OF CONTRACTS

1. The authority citation for 48 CFR

Part 1816 continues to read as follows:

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

2. In section 1816.402–270,

paragraphs (a), (b), and (c) are revised to

read as follows:

1816.402–270 NASA technical

performance incentives.

(a) Pursuant to the guidelines in

1816.402, NASA has determined that a

performance incentive shall be included

in all contracts based on performanceoriented documents (see FAR 11.101(a)),

except those awarded under the

commercial item procedures of FAR

part 12, where the primary

deliverable(s) is (are) hardware with a

total value (including options) greater

than $25 million. Any exception to this

requirement shall be approved in

writing by the Center Director.

Performance incentives may be

included in hardware contracts valued

under $25 million acquired under

procedures other than FAR Part 12 at

the discretion of the procurement officer

upon consideration of the guidelines in

1816.402. Performance incentives,

which are objective and measure

hardware performance after delivery

and acceptance, are separate from other

incentives, such as cost or delivery

incentives.

(b) When a performance incentive is

used, it shall be structured to be both

positive and negative based on

hardware performance after delivery

and acceptance, unless the contract type

requires complete contractor liability for

product performance (e.g., fixed price).

In this latter case, a negative incentive

is not required. In structuring the

incentives, the contract shall establish a

standard level of performance based on

the salient hardware performance

requirement. This standard performance

level is normally the contract’s

minimum performance requirement. No

incentive amount is earned at this

standard performance level. Discrete

units of measurement based on the same

performance parameter shall be

identified for performance above and,

when a negative incentive is used,

below the standard. Specific incentive

amounts shall be associated with each

performance level from maximum

beneficial performance (maximum

positive incentive) to, when a negative

incentive is included, minimal

beneficial performance or total failure

(maximum negative incentive). The

relationship between any given

incentive, either positive and negative,

and its associated unit of measurement

should reflect the value to the

Government of that level of hardware

performance. The contractor should not

be rewarded for above-standard

performance levels that are of no benefit

to the Government.

(c) The final calculation of the

performance incentive shall be done

when hardware performance, as defined

in the contract, ceases or when the

maximum positive incentive is reached.

When hardware performance ceases

below the standard established in the

contract and a negative incentive is

included, the Government shall

calculate the amount due and the

contractor shall pay the Government

that amount. Once hardware

performance exceeds the standard, the

contractor may request payment of the

incentive amount associated with a

given level of performance, provided

that such payments shall not be more

frequent than monthly. When hardware

performance ceases above the standard

level of performance, or when the

maximum positive incentive is reached,

the Government shall calculate the final

performance incentive earned and