[Federal Register Volume 77, Number 209 (Monday, October 29, 2012)]
[Rules and Regulations]
[Pages 65496-65497]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-26546]


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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 1812

RIN 2700-AD64


Commercial Acquisition; Anchor Tenancy

AGENCY: National Aeronautics and Space Administration.

ACTION: Final rule.

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SUMMARY: NASA has adopted as final, with minor changes, a proposed rule 
amending the NASA FAR Supplement (NFS) to include authority, under 
limited conditions, to issue Anchor Tenancy contracts. 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: Effective Date: November 28, 2012.

FOR FURTHER INFORMATION CONTACT: Leigh Pomponio, NASA, Office of 
Procurement, Contract Management Division (Suite 5G84); (202) 358-0592; 
email: [email protected].

SUPPLEMENTARY INFORMATION:

A. Background

    NASA published a proposed rule in the Federal Register at 76 FR 
30301 on May 25, 2011. NASA's Federal Acquisition Regulation Supplement 
(NFS) currently contains an inaccurate prohibition on anchor tenancy 
contracts. The prohibition is included in the NFS based on The Space 
Act, as amended by NASA's FY 1992 Appropriations Act (42 U.S.C. 2459d). 
The NFS states no appropriated funds may be used to enter into 
contracts, grants, or other agreements for more than 1 year if the 
primary effect is to provide a guaranteed customer base for or 
establish an anchor tenancy in new commercial space hardware or 
services unless an appropriations Act specifies the new commercial 
space hardware or services to be developed/used or the contract, grant, 
or agreement is specified in an appropriations Act. However, subsequent 
to the prohibition, as part of NASA's FY 1993 Authorization Act, 15 
U.S.C. 5806 was added to the Commercial Space Competitiveness Act 
(CSCA). The latter statute includes limited authority for NASA to enter 
into multi-year anchor tenancy contracts for the purchase of a good or 
service if the Agency receives an appropriation that (1) authorizes a 
multi-year anchor tenancy contract and (2) specifies the commercial 
space product or service to be developed or used. Furthermore, the NASA 
Administrator would be required to make a determination that addresses 
the following six criteria:
    (1) The good or service meets the mission requirements of NASA;
    (2) The commercially procured good or service is cost effective;

[[Page 65497]]

    (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 specified 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.
    The purpose of this final rule is to reconcile the NFS with the 
statutory authority for Anchor Tenancy contracts.
    The due date for public comments in response to the proposed rule 
was July 25, 2011. NASA received general comments in support of the 
rule from one respondent. The respondent expressed support for NASA's 
rule, and noted that it reflects efforts aimed at achieving goals set 
forth in the Administration's 2010 National Space Policy to support 
growth in the commercial space sector.
    During the comment period, NASA recognized a need to clarify the 
rule. Consequently, minor changes have been made to the proposed rule 
in this final rule, as follows: The discussion of statutory authority 
has been consolidated and simplified; it is now discussed only in 
paragraph (a). The final rule identifies what is meant by an anchor 
tenancy whereas anchor tenancy was previously described in the 
background of the Federal Register Notice for the proposed rule.

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. 
804.

C. Regulatory Flexibility Act

    The final 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. The rule clarifies 
NASA's authority to enter into Anchor Tenancy contracts, under limited 
conditions.

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 amended as follows:

PART 1812--ACQUISITION OF COMMERCIAL ITEMS

0
1. The authority citation for 48 CFR part 1812 continues to read as 
follows:

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


0
2. Section 1812.7000 is revised to read as follows.


1812.7000  Anchor tenancy contracts.

    (a) Subject to receiving an appropriation that:
    (1) Authorizes a multi-year anchor tenancy contract; and
    (2) Specifies the commercial space product or service to be 
developed or used, NASA may enter into a multi-year anchor tenancy 
contract only if Administrator determines--
    (i) The good or service meets the mission requirements of the 
National Aeronautics and Space Administration;
    (ii) The commercially procured good or service is cost effective;
    (iii) The good or service is procured through a competitive 
process;
    (iv) Existing or potential customers for the good or service other 
than the United States Government have been specifically identified;
    (v) The long-term viability of the venture is not dependent upon a 
continued Government market or other nonreimbursable Government 
support; and
    (vi) Private capital is at risk in the venture.
    (b) Contracts entered into under such authority may provide for the 
payment of termination liability in the event that the Government 
terminates such contracts for its 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 
terminated.
    (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 such authority 
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 
contracts.
    (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.
    (d) The term ``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.

[FR Doc. 2012-26546 Filed 10-26-12; 8:45 am]
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