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
28286 Federal Register / Vol. 63, No. 99 / Friday, May 22, 1998 /Rules and Regulations

unpaid and promptly remit it to the

contractor.

* * * * *

[FR Doc. 98–13778 Filed 5–21–98; 8:45 am]

BILLING CODE 7510–01–P

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Parts 365, 372, 373, 374, and

377

RIN 2125–AE41

Federal Motor Carrier Regulations;

Authority Corrections

AGENCY: Federal Highway

Administration (FHWA), DOT.

ACTION: Final rule; technical corrections.

SUMMARY: This document makes

technical amendments to the authority

statements for various FHWA motor

carrier regulations in order to remove

the obsolete authority citations provided

in the subparts. This correction is

necessary due to changes required by

the ICC Termination Act of 1995

(ICCTA) and the transfer of certain

regulatory functions to the FHWA from

the former Interstate Commerce

Commission (ICC). The effect of these

amendments is to remove the outdated

authority citations listed in the subparts.

DATES: This final rule is effective May

22, 1998.

FOR FURTHER INFORMATION CONTACT:

Mr. Michael J. Falk, Office of the Chief

Counsel, Motor Carrier Law Division,

(202) 366–1384, Federal Highway

Administration, 400 Seventh Street,

S.W., Washington, D.C. 20590. Office

hours are from 7:45 a.m. to 4:15 p.m.,

e.t., Monday through Friday, except

Federal holidays.

SUPPLEMENTARY INFORMATION: On

October 21, 1996, the FHWA published

a final rule that transferred and

redesignated certain motor carrier

transportation regulations from chapter

X of title 49, Code of Federal

Regulations, to the FHWA in chapter III

of that title. See Motor Carrier

Transportation; Redesignation of

Regulations From the Surface

Transportation Board Pursuant to the

ICC Termination Act of 1995 [61 FR

54706]. Another document also made

technical amendments to former ICC

regulations and was published on April

1, 1997. Technical Amendments to

Former Interstate Commerce

Commission Regulations in Accordance

With the ICC Termination Act of 1995.

[62 FR 15417]. The technical changes

made in both of these documents were

required by section 204 of the ICCTA,

Public Law 104–88, 109 Stat. 803. Part

365, Rules for governing applications for

operating authority, subpart D (formerly

part 1181); part 372, Exemptions,

commercial zones, and terminal areas,

subparts A, B, and C (formerly parts

1047, 1048, and 1049, respectively); part

373, Receipts and bills, subparts A and

B (formerly parts 1051 and 1081,

respectively); part 374, Passenger carrier

regulations, subparts A, B, C, and D

(formerly parts 1055, 1061, 1063, and

1064, respectively); and part 377,

Payment of transportation charges,

subparts A and B (formerly parts 1052

and 1320, respectively) included in the

new statutory authority at the part level,

but inadvertently failed to remove the

former ICC authority at the subpart

levels. Accordingly, the FHWA removes

the obsolete ICC authority citations in

the subpart levels noted above and

retains the current authority citations in

the part levels which reflect the changes

mandated by the ICCTA.

Rulemaking Analyses and Notices

This final rule makes only minor

technical corrections to existing

regulations by removing obsolete ICC

authority citations at the subpart levels

of FHWA regulations. This rule replaces

outdated authority citations with

current statutory authority and the

regulatory standards are not changed in

any way. Therefore, the FHWA finds

good cause to adopt the rule without

prior notice or opportunity for public

comment [5 U.S.C. 553(b)]. The

Department of Transportation’s

regulatory policies and procedures also

authorize promulgation of the rule

without prior notice because it is

anticipated that such action would not

result in the receipt of useful

information. The FHWA is making this

rule effective upon publication in the

Federal Register because it imposes no

new burdens and merely corrects

existing regulations.

Executive Order 12866 (Regulatory

Planning and Review) and DOT

Regulatory Policies and Procedures

The FHWA has determined that this

action is not a significant regulatory

action within the meaning of Executive

Order 12866 or significant within the

meaning of Department of

Transportation regulatory policies and

procedures. Since this rulemaking

action makes only technical corrections

to the current regulations, it is

anticipated that the economic impact of

this rulemaking will be minimal;

therefore, a full regulatory evaluation is

not required.

Regulatory Flexibility Act

In compliance with the Regulatory

Flexibility Act (Pub. L. 96–354, 5 U.S.C.

601–612), the FHWA has evaluated the

effects of this rule on small entities.

Based on the evaluation, and since this

rulemaking action makes only technical

corrections to the authority citations in

current regulations, the FHWA hereby

certifies that this action will not have a

significant impact on a substantial

number of small entities.

Unfunded Mandates Reform Act

This rule does not impose any

unfunded mandates on State, local, or

tribal governments as defined by the

Unfunded Mandates Reform Act of 1995

(2 U.S.C. 1532).

Excutive Order 12612 (Federalism

Assessment)

This action has been analyzed in

accordance with the principles and

criteria contained in Executive Order

12612, and it has been determined that

this action does not have sufficient

federalism implications to warrant the

preparation of a federalism assessment.

Executive Order 12372

(Intergovernmental Review)

Catalog of Federal Domestic

Assistance Program Number 20.217,

Motor Carrier Safety. The regulations

implementing Executive Order 12372

regarding intergovernmental

consultation of Federal programs and

activities do not apply to this program.

Paperwork Reduction Act

This action does not contain a

collection of information requirement

for purposes of the Paperwork

Reduction Act of 1995, 44 U.S.C. 44

U.S.C. 3501 et seq.,

National Environmental Policy Act

The agency has analyzed this action

for the purpose of the National

Environmental Policy Act of 1969, as

amended (42 U.S.C. 432 et seq.) and has

determined that this action would not

have any effect on the quality of the

environment.

Regulation Identification Number

A regulation identification number

(RIN) is assigned to each regulatory

action listed in the Unified Agenda for

Federal Regulations. The Regulatory

Information Service Center publishes

the Unified Agenda in April and

October of each year. The RIN contained

in the heading of this document can be

used to cross reference this action with

the Unified Agenda.