[Federal Register Volume 76, Number 101 (Wednesday, May 25, 2011)]
[Proposed Rules]
[Pages 30301-30302]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-10917]



48 CFR Part 1812

RIN 2700-AD64

Commercial Acquisition; Anchor Tenancy

AGENCY: National Aeronautics and Space Administration.

ACTION: Proposed rule with request for comments.


SUMMARY: NASA proposes to revise the NASA FAR Supplement (NFS) to 
include guidance consistent with NASA's authority under Section 401 of 
the Commercial Space Competitiveness Act (CSCA) of 1992. NASA may enter 
into multi-year anchor tenancy contracts for commercial space goods or 
services. Anchor Tenancy means ``an arrangement in which the United 
States Government agrees to procure sufficient quantities of a 
commercial space product or service needed to meet Government mission 
requirements so that a commercial venture is made viable.''

DATES: Interested parties should submit comments to NASA at the address 
below on or before July 25, 2011 to be

[[Page 30302]]

considered in formulation of the final rule.

ADDRESSES: You may submit comments, identified by RIN 2007-AD64, using 
either of the following methods: (1) Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal 
by inputting RIN 2007-AD64 under the heading ``Enter keyword or ID'' 
and selecting ``Search.'' Select the link ``Submit a Comment'' that 
corresponds with ``RIN 2007-AD64.'' Follow the instructions provided at 
the ``Submit a Comment'' screen. Please include your name, company name 
(if any), and ``RIN 2700-AD64'' on your attached document. (2) E-mail: 
[email protected]. Include RIN 2007-AD64 in the subject line of 
the message.
    Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To 
confirm receipt of your comment(s), please check http://www.regulations.gov approximately two to three days after submission to 
verify posting.

Procurement, Contract Management Division (Suite 5G84); (202) 358-0592; 
facsimile 202-358-3083; e-mail: [email protected].


A. Background

    NASA's FAR Supplement currently includes an incorrect statement 
that anchor tenancy contracts are not permitted. This proposed rule 
removes that statement, consistent with NASA's authority under Section 
401 of the Commercial Space Competitiveness Act (CSCA) of 1992 (15 
U.S.C. 5806) which provides authorization for NASA to enter into multi-
year anchor tenancy contracts for commercial space goods or services.

B. Executive Orders 12866 and 13563

    This is not a significant regulatory action and, therefore, was not 
subject to review under Section 6(b) of Executive Order 12866, 
Regulatory Planning and Review, dated September 30, 1993. In accordance 
with Executive Order 13563, Improving Regulation and Regulatory Review, 
dated January 18, 2011, NASA determined that this rule is not 
excessively burdensome to the public, and is consistent with the 
administrative nature of rule. This is not a major rule under 5 U.S.C. 

C. Regulatory Flexibility Act

    This proposed rule is not expected to 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 it does 
not impose any new requirements on small entities.

D. Paperwork Reduction Act

    The Paperwork Reduction Act (Pub. L. 104-13) is not applicable 
because the NFS changes do not impose 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 Part 1812

    Government procurement.

William P. McNally,
Assistant Administrator for Procurement.

    Accordingly, 48 CFR part 1812 is proposed to be amended as follows:
    1. The authority citation for 48 CFR parts 1812.

    Authority:  42 U.S.C. 2455(a), 2473(c)(1).


    2. Section 1812.7000 is revised to read as follows.

1812.7000  Anchor tenancy contracts.

    (a) Section 401 of the Commercial Space Competitiveness Act, 15 
U.S.C. 5806, allows NASA, subject to appropriations, to enter into 
multi-year anchor tenancy contracts for the purchase of a good or 
service if the Administrator determines that--
    (1) The good or service meets the mission requirements of the 
National Aeronautics and Space Administration;
    (2) The commercially procured good or service is cost effective;
    (3) The good or service is procured through a competitive process;
    (4) Existing or potential customers for the good or service other 
than the United States Government have been specifically identified;
    (5) The long-term viability of the venture is not dependent upon a 
continued Government market or other nonreimbursable Government 
support; and
    (6) Private capital is at risk in the venture.
    (b) Section 401 of the Commercial Space Competitiveness Act, 15 
U.S.C. 5806, allows for contracts entered into under paragraph (a) of 
this section to provide for the payment of termination liability in the 
event that the Government terminates such contracts for is convenience.
    (1) Contracts that provide for this payment of termination 
liability shall include a fixed schedule of such termination liability 
payments. Liability under such contracts shall not exceed the total 
payments which the Government would have made after the date of 
termination to purchase the good or service if the contract were not 
    (2) Subject to appropriations, funds available for such termination 
liability payments may be used for purchase of the good or service upon 
successful delivery of the good or service pursuant to the contract. In 
such case, sufficient funds shall remain available to cover any 
remaining termination liability.
    (c) Limitations--
    (1) Contracts entered into under this section shall not exceed 10 
years in duration.
    (2) Such contracts shall provide for delivery of the good or 
service on a firm, fixed price basis.
    (3) To the extent practicable, reasonable performance 
specifications shall be used to define technical requirements in such 
    (4) In any such contract, the Administrator shall reserve the right 
to completely or partially terminate the contract without payment of 
such termination liability because of the contractor's actual or 
anticipated failure to perform its contractual obligations.

[FR Doc. 2011-10917 Filed 5-24-11; 8:45 am]