59700 Federal Register / Vol. 69, No. 192 / Tuesday, October 5, 2004 / Rules and Regulations 

53.236–1 [Amended]

■ 8. Amend section 53.236–1 by 

removing paragraph (a) and 

redesignating paragraphs (b), (c), (d), (e), 

(f), and (g) as (a), (b), (c), (d), (e), and (f), 

respectively; in newly redesignated 

paragraph (a) by removing ‘‘36.701(e)’’

and adding ‘‘36.701(d)’’ in its place; in 

newly redesignated paragraph (d)(2) by 

removing ‘‘36.701(b)’’ and adding 

‘‘36.701(a)’’ in its place; in newly 

redesignated paragraph (e)(2) by 

removing ‘‘36.701(c)’’ and adding 

‘‘36.701(b)’’ in its place; and in newly 

redesignated paragraph (f) by removing 

‘‘36.701(d)’’ and adding ‘‘36.701(c)’’ in 

its place.

53.301–1417 [Removed]

■ 9. Remove section 53.301–1417.

[FR Doc. 04–22244 Filed 10–4–04; 8:45 am]

BILLING CODE 6820–EP–S

DEPARTMENT OF DEFENSE

GENERAL SERVICES 

ADMINISTRATION

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION

48 CFR Parts 5, 12, 13, 14, 17, 19, 22, 

25, 33, and 52

[FAC 2001–25; FAR Case 2003–016; Item 

II]

RIN 9000–AJ87

Federal Acquisition Regulation; Free 

Trade Agreements-Chile and 

Singapore, and Trade Agreements 

Thresholds

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA).

ACTION: Final rule.

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council 

(Councils) have agreed to convert to a 

final rule, with changes, an interim rule 

amending the Federal Acquisition 

Regulation (FAR). The interim rule 

implemented new Free Trade 

Agreements with Chile and Singapore, 

as approved by Congress (Public Laws 

108–77 and 108–78). The interim rule 

also implemented new dollar thresholds 

for application of trade agreements.

DATES: Effective Date: October 5, 2004.

FOR FURTHER INFORMATION CONTACT: The 

FAR Secretariat at (202) 501–4755 for 

information pertaining to status or 

publication schedules. For clarification 

of content, contact Ms. Cecelia Davis, 

Procurement Analyst, at (202) 219–

0202. Please cite FAC 2001–25, FAR 

case 2003–016.

SUPPLEMENTARY INFORMATION:

A. Background

The Free Trade Agreements with 

Chile and Singapore waive the 

applicability of the Buy American Act 

for some foreign supplies and 

construction materials from Chile and 

Singapore, and specify procurement 

procedures designed to ensure fairness, 

applicable to the acquisition of supplies 

and services (see the Government 

Procurement provisions at Chapters 9 

and 13, respectively, of the trade 

agreements). The interim rule was 

published in the Federal Register at 69 

FR 1050, January 7, 2004. One public 

comment was received. To implement 

Section 106 of the authorizing acts, the 

interim rule added the statement 

‘‘United States law will apply to resolve 

any claim of breach of contract.’’ to the 

Buy American Act/Trade Agreements 

clauses at FAR 52.225–3, 52.225–5, and 

52.225–11. The Department of Justice 

noted that Section 106 of each 

authorizing act applies to all contracts 

entered into by any agency of the United 

States. Therefore, the Department of 

Justice recommended that the statement 

be a separate clause, included in every 

contract. The Councils concur. The final 

rule removes the statement of 

applicability of U.S. law from FAR 

clauses 52.225–3, 52.225–5, and 52.225–

11, and creates a new clause at FAR 

52.233–4, Applicable Law for Breach of 

Contract Claim, to include the statement 

of applicability of U.S. law in every 

contract subject to the FAR.

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. This 

rule is not a major rule under 5 U.S.C. 

804.

B. Regulatory Flexibility Act

The Department of Defense, the 

General Services Administration, and 

the National Aeronautics and Space 

Administration certify 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. Although the 

interim rule opened up Government 

procurement to the products of Chile, 

there will not be any significant 

economic impact on U.S. small 

businesses. The Department of Defense 

only applies the trade agreements to the 

non-defense items listed at DFARS 

225.401–70, and acquisitions under 

$100,000 that are set aside for small 

businesses are exempt. We did not 

receive any comments on this issue 

from small business concerns or other 

interested parties.

C. Paperwork Reduction Act

The Paperwork Reduction Act does 

apply; however, these changes to the 

FAR do not impose additional 

information collection requirements to 

the paperwork burden previously 

approved under OMB Control Numbers 

9000–0130, 9000–0025, and 9000–0141, 

respectively.

List of Subjects in 48 CFR Parts 5, 12, 

13, 14, 17, 19, 22, 25, 33, and 52

Government procurement.

Dated: September 28, 2004.

Ralph J. De Stefano,

Acting Director,Contract Policy Division.

Interim Rule Adopted as Final with 

Changes

■ Accordingly, DoD, GSA, and NASA 

adopt the interim rule amending 48 CFR 

parts 5, 12, 13, 14, 17, 19, 22, 25, and 52, 

which was published in the Federal 

Register at 69 FR 1050, January 7, 2004, 

as a final rule with the following 

changes:

■ 1. The authority citation for 48 CFR 

parts 5, 12, 13, 14, 17, 19, 22, 25, 33, and 

52 is revised to read as follows:

Authority: 40 U.S.C. 121(c); 10 U.S.C. 

chapter 137; and 42 U.S.C. 2473(c).

PART 33—PROTESTS, DISPUTES, 

AND APPEALS

■ 2. Revise the section heading and text 

of section 33.215 to read as follows:

33.215 Contract clauses.

(a) Insert the clause at 52.233–1, 

Disputes, in solicitations and contracts, 

unless the conditions in 33.203(b) 

apply. If it is determined under agency 

procedures that continued performance 

is necessary pending resolution of any 

claim arising under or relating to the 

contract, the contracting officer shall 

use the clause with its Alternate I.

(b) Insert the clause at 52.233–4 in all 

solicitations and contracts.

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES

■ 3. Amend section 52.212–5 by-

■ a. Revising the date of the clause and 

paragraph (a); and

■ b. Removing ‘‘(Jan 2004)’’ from 

paragraph (b)(23)(i) of the clause and 

adding ‘‘(OCT 2004)’’ in its place; and 

removing ‘‘(June 2004)’’ from paragraph 

(b)(24) of the clause and adding ‘‘(OCT 

2004)’’ in its place. The revised text reads 

as follows:

Federal Register / Vol. 69, No. 192 / Tuesday, October 5, 2004 / Rules and Regulations 59701

52.212–5 Contract Terms and Conditions 

Required to Implement Statutes or 

Executive Orders-Commercial Items.

* * * * *

CONTRACT TERMS AND CONDITIONS 

REQUIRED TO IMPLEMENT STATUTES OR 

EXECUTIVE ORDERS-COMMERCIAL ITEMS 

(OCT 2004)

(a) The Contractor shall comply with the 

following Federal Acquisition Regulation 

(FAR) clauses, which are incorporated in this 

contract by reference, to implement 

provisions of law or Executive orders 

applicable to acquisitions of commercial 

items:

(1) 52.233–3, Protest After Award (AUG 

1996) (31 U.S.C. 3553).

(2) 52.233–4, Applicable Law for Breach of 

Contract Claim (OCT 2004) (Pub. L. 108–77, 

108–78).

* * * * *

■ 4. Amend section 52.213–4 by revising 

the date of the clause; and by adding 

paragraph (a)(1)(vi) to read as follows:

52.213–4 Terms and Conditions-Simplified 

Acquisitions (Other Than Commercial 

Items).

* * * * *

TERMS AND CONDITIONS-SIMPLIFIED 

ACQUISITIONS (OTHER THAN 

COMMERCIAL ITEMS) (OCT 2004)

(a) * * *

(1) * * *

(vi) 52.233–4, Applicable Law for Breach of 

Contract Claim (OCT 2004) (Pub. L. 108–77, 

108–78).

* * * * *

52.225–3 [Amended]

■ 5. Amend section 52.225–3 by revising 

the date of the clause to read ‘‘(OCT 

2004)’’; and removing paragraph (d) of 

the clause.

52.225–5 [Amended]

■ 6. Amend section 52.225–5 by revising 

the date of the clause to read ‘‘(OCT 

2004)’’; and removing paragraph (c) of 

the clause.

52.225–11 [Amended]

■ 7. Amend section 52.225–11 by 

revising the date of the clause to read 

‘‘(OCT 2004)’’; and removing paragraph 

(e) of the clause.

■ 8. Add section 52.233–4 to read as 

follows:

52.233–4 Applicable Law for Breach of 

Contract Claim.

As prescribed in 33.215(b), insert the 

following clause:

APPLICABLE LAW FOR BREACH OF 

CONTRACT CLAIM (OCT 2004)

United States law will apply to resolve any 

claim of breach of this contract.

(End of clause)

[FR Doc. 04–22245 Filed 10–4–04; 8:45 am]

BILLING CODE 6820–EP–S

DEPARTMENT OF DEFENSE

GENERAL SERVICES 

ADMINISTRATION

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION

48 CFR Parts 7, 11, 13, 15

[FAC 2001–25; FAR Case 2003–025; Item 

III]

RIN 9000—AK03

Federal Acquisition Regulation; 

Telecommuting for Federal 

Contractors

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA).

ACTION: Interim rule with request for 

comments.

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council 

(Councils) have agreed on an interim 

rule amending the Federal Acquisition 

Regulation (FAR) to implement Section 

1428 of the Services Acquisition Reform 

Act of 2003, Title XIV of Public Law 

108–136, Authorization of 

Telecommuting for Federal Contractors.

DATES: Effective Date: October 5, 2004.

Comment Date: Interested parties 

should submit comments to the FAR 

Secretariat at the address shown below 

on or before December 6, 2004 to be 

considered in the formulation of a final 

rule.

ADDRESSES: Submit comments 

identified by FAC 2001–25, FAR case 

2003–025, by any of the following 

methods:

• Federal eRulemaking Portal: http:/

/www.regulations.gov. Follow the 

instructions for submitting comments.

• Agency Web Site: http://

www.acqnet.gov/far/ProposedRules/

proposed.htm. Click on the FAR Case 

number to submit comments.

• E-mail: farcase.2003–025@gsa.gov. 

Include FAC 2001–25, FAR case 2003–

025, in the subject line of the message.

• Fax: 202–501–4067.

• Mail: General Services 

Administration, Regulatory Secretariat 

(V), 1800 F Street, NW, Room 4035, 

ATTN: Laurie Duarte, Washington, DC 

20405.

Instructions: Please submit comments 

only and cite FAC 2001–25, FAR case 

2003–025, in all correspondence related 

to this case. All comments received will 

be posted without change to http://

www.acqnet.gov/far/ProposedRules/

proposed.htm, including any personal 

information provided.

FOR FURTHER INFORMATION CONTACT: The 

FAR Secretariat at (202) 501–4755, for 

information pertaining to status or 

publication schedules. For clarification 

of content, contact Mr. Gerald Zaffos, 

Procurement Analyst, at (202) 208–

6091. Please cite FAC 2001–25, FAR 

case 2003–025.

SUPPLEMENTARY INFORMATION:

A. Background

This interim rule implements Section 

1428 of the Services Acquisition Reform 

Act of 2003 (Title XIV of Public Law 

108–136). Section 1428 requires the 

amendment of the FAR to permit 

telecommuting by employees of Federal 

Government contractors in the 

performance of contracts entered into 

with executive agencies. Specifically, 

Section 1428 states that solicitations for 

the acquisition of property or services 

may not include any requirement or 

evaluation criteria that would render an 

offeror ineligible to enter into a contract 

because it proposes to permit its 

employees to telecommute, unless the 

contracting officer determines that the 

requirements of the agency, including 

security requirements, cannot be met if 

telecommuting is permitted. The 

contracting officer must document in 

writing the basis for the determination. 

Also, the solicitation cannot contain any 

evaluation criteria that would reduce 

the scoring of an offer because the 

offeror proposes to permit its employees 

to telecommute, unless the contracting 

officer determines that the requirements 

of the agency, including security 

requirements, would be adversely 

impacted if telecommuting is allowed. 

The contracting officer must document 

in writing the basis for this 

determination as well.

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. This 

rule is not a major rule under 5 U.S.C. 

804.

B. Regulatory Flexibility Act

The interim 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 by not automatically 

prohibiting telecommuting, the 

Government will be making it easier for 

small businesses to recruit and maintain 

employees for work on Government 

contracts. Until now, there has been no 

Governmentwide policy or practice 

concerning contractor employee 

telecommuting. This rule will not be a 

major change, but instead a small