76350 Federal Register / Vol. 69, No. 243 / Monday, December 20, 2004 / Rules and Regulations 

52.213-4 [Amended]

■ 13. Amend section 52.213-4 by 

revising the date of the clause to read 

‘‘(JAN 2005)’’; and by removing from 

paragraph (b)(2)(i) of the clause ‘‘(July 

1995)’’ and adding ‘‘(JAN 2005)’’ in its 

place.

[FR Doc. 04–27634 Filed 12–17–04; 8:45 am]

BILLING CODE 6820–EP–S

DEPARTMENT OF DEFENSE

GENERAL SERVICES 

ADMINISTRATION

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION

48 CFR Parts 2, 12, 13, and 15

[FAC 2001–26; FAR Case 2003–022; Item 

III]

RIN 9000–AJ88

Federal Acquisition Regulation; 

Special Emergency Procurement 

Authority

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 the 

interim rule published in the Federal 

Register at 69 FR 8312, February 23, 

2004, to a final rule with changes. The 

rule amends the Federal Acquisition 

Regulation (FAR) to implement the 

special emergency procurement 

authorities of Section 1443 of the 

Services Acquisition Reform Act of 2003 

(Pub. L. 108–136, Title XIV, codified at 

41 U.S.C. 428a), and section 822 of the 

Ronald W. Reagan National Defense 

Authorization Act for Fiscal Year 2005.

Section 1443 increases the amount of 

the micro-purchase threshold and the 

simplified acquisition threshold for 

procurements of supplies or services by 

or for an executive agency that, as 

determined by the head of the agency, 

are to be used in support of a 

contingency operation or to facilitate the 

defense against or the recovery from 

nuclear, biological, chemical or 

radiological attack. Section 822 of the 

Fiscal Year 2005 Defense Authorization 

Act further increased the threshold 

amounts for any contract to be awarded 

and performed, or purchases to be 

made, outside the United States.

Also, under section 1443, the head of 

the contracting activity carrying out a 

procurement of supplies or services to 

facilitate defense against or recovery 

from nuclear, biological, chemical, or 

radiological attack may treat such 

supplies or services as a commercial 

item.

DATES: Effective Date:January 19, 2005.

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 2001–26, FAR 

case 2003–022.

SUPPLEMENTARY INFORMATION:

A. Background

This final rule implements Section 

1443 of the Services Acquisition Reform 

Act of 2003 (SARA) (41 U.S.C. 428a) 

and section 822 of the Ronald W. 

Reagan National Defense Authorization 

Act for Fiscal Year 2005. Section 1443 

increases the amount of the micropurchase threshold and the simplified 

acquisition threshold for procurements 

of supplies or services by or for an 

executive agency that, as determined by 

the head of the agency, are to be used 

in support of a contingency operation or 

to facilitate the defense against or the 

recovery from nuclear, biological, 

chemical or radiological attack. Section 

1443 also authorizes the expanded use 

of Simplified Acquisition and 

Commercial Items procedures. Section 

822 authorized a higher micro-purchase 

and simplified acquisition threshold for 

any contract to be awarded and 

performed, or purchases to be made, 

outside the United States, for the same 

purposes as authorized under section 

1443 of SARA.

DoD, GSA, and NASA published an 

interim rule in the Federal Register at 

69 FR 8312, February 23, 2004. The 60–

day comment period for the interim rule 

ended April 23, 2004. Three comments 

were received; they are addressed 

below. Section 822 of the Fiscal Year 

2005 Defense Authorization Act was 

enacted after publication of the interim 

rule. As a result, this final rule 

incorporates the increased thresholds 

provided by section 822.

One commenter recommended that 

the Councils seek a Governmentwide 

waiver from the Secretary of Labor from 

application of FAR clauses 52.222–26, 

Equal Opportunity, and 52.222–36, 

Affirmative Action for Workers With 

Disabilities, so that the purchase card 

could be used without having to also 

issue a purchase order with these 

clauses. The final rule does not adopt 

this suggestion because the FAR already 

authorizes the agency head to waive the 

inclusion of these clauses when deemed 

to be in the interest of national security 

(FAR 22.807(a)(1) and 22.1403(b), 

respectively).

The same commenter suggested that 

the final rule address the fact that the 

Service Contract Act requires clauses in 

all service contracts above $2,500. The 

final rule does not adopt this suggestion 

because neither SARA nor the Fiscal 

Year 2005 Defense Authorization Act 

suggested that these acquisitions are 

exempt from statutory requirements.

Another commenter questioned why 

the interim rule did not include 

contingency operations in the increased 

limitation on use of simplified 

acquisition procedures, as authorized by 

Section 1443. The final rule has been 

amended to include the procurement of 

commercial supplies and services in 

support of contingency operations in the 

increased limitation on use of simplified 

acquisition procedures. However, 

services and supplies procured in 

support of a contingency operation must 

meet the definition of a commercial 

item in FAR 2.101 for the increased 

limitation to apply.

This is not a significant regulatory 

action and, therefore, is 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

This final rule may 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. However, the 

increased limitations are limited to 

procurements that are entered into in 

support of a contingency operation or to 

facilitate the defense against or the 

recovery from nuclear, biological, 

chemical or radiological attack. There 

are no data available on the number of 

procurements that will be eligible. We 

expect the increased thresholds to this 

limited class of procurements will apply 

to a very small number of small entities.

This final rule does not impose any 

data collection requirements on small 

business concerns. The rule does not 

duplicate, overlap, or conflict with other 

relevant Federal rules. There is no 

significant alternative to the final rule 

that would accomplish the stated 

beneficial objective.

The Councils prepared a Final 

Regulatory Flexibility Analysis (FRFA) 

as follows:

1. Description of the reasons why action by 

the agency is being considered. This final 

rule revises the Federal Acquisition 

Regulation (FAR) in order to implement 

Federal Register / Vol. 69, No. 243 / Monday, December 20, 2004 / Rules and Regulations 76351

Section 1443 of the Services Acquisition 

Reform Act of 2003 (41 U.S.C. 428a) and 

section 822 of the Ronald W. Reagan National 

Defense Authorization Act for Fiscal Year 

2005. Section 1443 increases the amount of 

the micro-purchase threshold and the 

simplified acquisition threshold for 

procurements of supplies and services to 

support a contingency operation or to 

facilitate defense against or recovery from 

nuclear, biological, chemical, or radiological 

attack. Section 822 increases the micropurchase threshold and simplified 

acquisition threshold for any contract to be 

awarded and performed, or purchases to be 

made, outside the United States.

2. Succinct statement of the objectives of, 

and legal basis for, the final rule. This final 

rule implements Section 1443 of the Services 

Acquisition Reform Act of 2003 (41 U.S.C. 

428a) and section 822 of the Ronald W. 

Reagan National Defense Authorization Act 

for Fiscal Year 2005.

3. Description of, and, where feasible, 

estimate of the number of small entities to 

which the final rule will apply. The increased 

thresholds are limited to procurements that 

are to support a contingency operation or to 

facilitate defense against or recovery from 

nuclear, biological, chemical, or radiological 

attack. There are no data available on the 

number of procurements that will be eligible. 

However, we expect the number of small 

entities that will be impacted by the 

increased thresholds to this limited class of 

procurements to be very small. In addition, 

although not required by the statute, the final 

rule raises the small business set-aside 

ceilings for purchases made under the 

authority of Section 1443 of the Services 

Acquisition Reform Act of 2003 (41 U.S.C. 

428a). Section 822 of the Ronald W. Reagan 

National Defense Authorization Act for Fiscal 

Year 2005 is unlikely to affect small 

businesses in the United States as it applies 

outside the United States.

4. Description of projected reporting, 

record keeping, and other compliance 

requirements of the final rule, including an 

estimate of the classes of small entities which 

will be subject to the requirement and the 

type of professional skills necessary for 

preparation of the report or record. There are 

no reporting, record keeping, or other 

compliance requirements for this final rule.

5. Identification, to the extent practicable, 

of all relevant Federal rules which may 

duplicate, overlap, or conflict with the final 

rule. This rule does not duplicate, overlap, or 

conflict with other relevant Federal rules.

6. Description of any significant 

alternatives to the final rule, which 

accomplish the stated objectives of 

applicable statutes and which minimize any 

significant economic impact of the final rule 

on small entities. There are no significant 

alternatives to the final rule that would 

accomplish the stated objectives yet further 

reduce impact on small entities. The rule 

includes only FAR text revisions required to 

implement the statute.

The FAR Secretariat has submitted a 

copy of the Final Regulatory Flexibility 

Analysis to the Chief Counsel for 

Advocacy of the Small Business 

Administration. Interested parties may 

obtain a copy from the FAR Secretariat. 

The Councils will consider comments 

from small entities concerning the 

affected FAR subparts in accordance 

with 5 U.S.C. 610. Interested parties 

must submit such comments separately 

and should cite 5 U.S.C. 601, et seq.

(FAC 2001–26, FAR case 2003–022) in 

correspondence.

C. Paperwork Reduction Act

The Paperwork Reduction Act does 

not apply because the changes to the 

FAR 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 Parts 2, 12, 

13, and 15

Government procurement.

Dated: December 9, 2004.

Laura Auletta,

Director, Contract Policy Division.

Interim Rule Adopted as Final With 

Changes

■ Accordingly, DoD, GSA, and NASA 

adopt the interim rule amending 48 CFR 

parts 2, 10, 12, 13, 15, 19, and 25 which 

was published in the Federal Register at 

69 FR 8312, February 23, 2004, as a final 

rule with the following changes:

■ 1. The authority citation for 48 CFR 

parts 2, 12, 13, and 15 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 2—DEFINITIONS OF WORDS 

AND TERMS

■ 2. Amend section 2.101 in paragraph 

(b)(2) by revising the definitions ‘‘Micropurchase threshold’’ and ‘‘Simplified 

acquisition threshold’’ to read as follows:

2.101 Definitions.

* * * * *

(b) * * *

(2) * * *

Micro-purchase threshold means 

$2,500, except it means—

(1) For construction subject to the 

Davis-Bacon Act, $2,000; and

(2) For acquisitions of supplies or 

services that, as determined by the head 

of the agency, are to be used to support 

a contingency operation or to facilitate 

defense against or recovery from 

nuclear, biological, chemical, or 

radiological attack, as described in 

13.201(g)(1), except for construction 

subject to the Davis-Bacon Act (41 

U.S.C. 428a)—

(i) $15,000 in the case of any contract 

to be awarded and performed, or 

purchase to be made, inside the United 

States; and

(ii) $25,000 in the case of any contract 

to be awarded and performed, or 

purchase to be made, outside the United 

States.

* * * * *

Simplified acquisition threshold

means $100,000, except for acquisitions 

of supplies or services that, as 

determined by the head of the agency, 

are to be used to support a contingency 

operation or to facilitate defense against 

or recovery from nuclear, biological, 

chemical, or radiological attack (41 

U.S.C. 428a), the term means—

(1) $250,000 for any contract to be 

awarded and performed, or purchase to 

be made, inside the United States; and

(2) $1 million for any contract to be 

awarded and performed, or purchase to 

be made, outside the United States.

* * * * *

PART 12—ACQUISITION OF 

COMMERCIAL ITEMS

■ 3. Amend section 12.203 by revising 

the last sentence to read as follows:

12.203 Procedures for solicitation, 

evaluation, and award.

* * * For acquisitions of commercial 

items exceeding the simplified 

acquisition threshold but not exceeding 

$5 million ($10 million for acquisitions 

as described in 13.500(e)), including 

options, contracting activities shall 

employ the simplified procedures 

authorized by Subpart 13.5 to the 

maximum extent practicable.

PART 13—SIMPLIFIED ACQUISITION 

PROCEDURES

■ 4. Amend section 13.000 by revising 

the second sentence to read as follows:

13.000 Scope of part.

* * * Subpart 13.5 provides special 

authority for acquisitions of commercial 

items exceeding the simplified 

acquisition threshold but not exceeding 

$5 million ($10 million for acquisitions 

as described in 13.500(e)), including 

options. * * *

■ 5. Amend section 13.003 by revising 

paragraphs (c)(1)(ii) and (g)(2) to read as 

follows:

13.003 Policy.

* * * * *

(c)(1) * * *

(ii) $5 million ($10 million for 

acquisitions as described in 13.500(e)), 

including options, for acquisitions of 

commercial items using Subpart 13.5.

* * * * *

(g) * * *

(2) $5 million ($10 million for 

acquisitions as described in 13.500(e)), 

76352 Federal Register / Vol. 69, No. 243 / Monday, December 20, 2004 / Rules and Regulations 

for commercial items, use any 

appropriate combination of the 

procedures in Parts 12, 13, 14, and 15 

(see paragraph (d) of this section).

* * * * *

■ 6. Amend section 13.201 by removing 

‘‘$15,000.’’ from the end of paragraph 

(g)(1) and adding ‘‘—’’ in its place; and 

adding paragraphs (g)(1)(i) and (g)(1)(ii) 

to read as follows:

13.201 General.

* * * * *

(g)(1) * * *

(i) $15,000 in the case of any contract 

to be awarded and performed, or 

purchase to be made, inside the United 

States; and

(ii) $25,000 in the case of any contract 

to be awarded and performed, or 

purchase to be made, outside the United 

States.

* * * * *

■ 7. Amend section 13.303–5 by revising 

paragraph (b)(2) to read as follows:

13.303–5 Purchases under BPAs.

* * * * *

(b) * * *

(2) The limitation for individual 

purchases for commercial item 

acquisitions conducted under Subpart 

13.5 is $5 million ($10 million for 

acquisitions as described in 13.500(e)).

* * * * *

■ 8. Amend section 13.500 by revising 

the first sentence of paragraph (a); and 

adding paragraph (e) to read as follows:

13.500 General.

(a) This subpart authorizes, as a test 

program, use of simplified procedures 

for the acquisition of supplies and 

services in amounts greater than the 

simplified acquisition threshold but not 

exceeding $5 million ($10 million for 

acquisitions as described in 13.500(e)), 

including options, if the contracting 

officer reasonably expects, based on the 

nature of the supplies or services 

sought, and on market research, that 

offers will include only commercial 

items. * * *

* * * * *

(e) Under 41 U.S.C. 428a, the 

simplified acquisition procedures 

authorized by this test program may be 

used for acquisitions that do not exceed 

$10 million when—

(1) The acquisition is for commercial 

items that, as determined by the head of 

the agency, are to be used in support of 

a contingency operation or to facilitate 

the defense against or recovery from 

nuclear, biological, chemical, or 

radiological attack; or

(2) The acquisition will be treated as 

an acquisition of commercial items in 

accordance with 12.102(f)(1).

■ 9. Amend section 13.501 by revising 

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

13.501 Special documentation 

requirements.

(a) * * *

(1) * * *

(ii) Prepare sole source justifications 

using the format at 6.303–2, modified to 

reflect an acquisition under the 

authority of the test program for 

commercial items (section 4202 of the 

Clinger-Cohen Act of 1996) or the 

authority of the Services Acquisition 

Reform Act of 2003 (41 U.S.C. 428a).

* * * * *

PART 15—CONTRACTING BY 

NEGOTIATION

15.403–1 [Amended]

■ 10. Amend section 15.403–1 in 

paragraph (c)(3)(ii) by removing ‘‘(Pub. 

L. 108–136, Sec. 1443)’’ and adding ‘‘(41 

U.S.C. 428a)’’ in its place.

[FR Doc. 04–27635 Filed 12–17–04; 8:45 am]

BILLING CODE 6820–EP–S

DEPARTMENT OF DEFENSE

GENERAL SERVICES 

ADMINISTRATION

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION

48 CFR Parts 2, 22, and 52

[FAC 2001–26; FAR Case 2004–010; Item 

IV]

RIN 9000–AK04

Federal Acquisition Regulation; 

Notification of Employee Rights 

Concerning Payment of Union Dues or 

Fees

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 

Executive Order 13201, Notification of 

Employee Rights Concerning Payment 

of Union Dues or Fees. The rule requires 

Government contractors and 

subcontractors to post notices, in all 

plants and offices, whether or not used 

in performing work that supports a 

Federal contract, informing their 

employees that under Federal law they 

cannot be required to join a union or 

maintain membership in a union to 

retain their jobs. The required notice 

also advises employees who are not 

union members that they can object to 

the use of their union dues for certain 

purposes.

DATES: Effective Date: December 20, 

2004.

The Department of Labor’s final rule 

implementing Executive Order 13201 

was published on March 29, 2004, with 

an effective date of April 28, 2004. This 

rule amending the FAR is the formal 

notification to contracting officers to 

insert the Executive Order 13201 clause 

in covered solicitations issued on or 

after the effective date of this rule.

Comment Date: Interested parties 

should submit comments to the FAR 

Secretariat at the address shown below 

on or before February 18, 2005 to be 

considered in the formulation of a final 

rule.

ADDRESSES: Submit comments 

identified by FAC 2001–26, FAR case 

2004–010, 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.2004–010@gsa.gov. 

Include FAC 2001–26, FAR case 2004–

010 in the subject line of the message.

• Fax: 202–501–4067.

• Mail: General Services 

Administration, Regulatory Secretariat 

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

ATTN: Laurie Duarte, Washington, DC 

20405.

Instructions: Please submit comments 

only and cite FAC 2001–26, FAR case 

2004–010, 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. Craig Goral, 

Procurement Analyst, at (202) 501–

3856. Please cite FAC 2001–26, FAR 

case 2004–010.

SUPPLEMENTARY INFORMATION:

A. Background

On April 13, 1992, President George 

H. W. Bush issued Executive Order 

(E.O.) 12800. E.O. 12800 required 

unionized Federal contractors to post a 

notice in the workplace that workers are