52852 Federal Register / Vol. 74, No. 197 / Wednesday, October 14, 2009 / Rules and Regulations 

many GAO audits of small business 

contractors include contractor employee 

interviews. This Act is designed to 

cover those incidents in which the 

contractor does not voluntarily make the 

contractor employees available for 

interviews. Therefore, it is not 

anticipated that interviewing any 

current employee regarding such 

contract transactions will have a 

significant impact. 

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. Chapter 35, 

et seq. 

List of Subjects in 48 CFR Parts 12 and 

52 

Government procurement. 

Dated: October 5, 2009. 

Al Matera, 

Director, Acquisition Policy Division. 

Interim Rule Adopted as Final Without 

Change 

■ Accordingly, the interim rule 

amending 48 CFR parts 12 and 52, 

which was published in the Federal 

Register at 74 FR 14649 on March 31, 

2009, is adopted as a final rule without 

change. 

[FR Doc. E9–24568 Filed 10–13–09; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Part 15 

[FAC 2005–37; FAR Case 2008–034; Item 

IV; Docket 2009-0035, Sequence 1] 

RIN 9000–AL44 

Federal Acquisition Regulation; FAR 

Case 2008–034, Use of Commercial 

Services Item Authority 

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) are issuing an interim rule 

amending the Federal Acquisition 

Regulation (FAR) to implement section 

868 of the Duncan Hunter National 

Defense Authorization Act for Fiscal 

Year 2009. Section 868 provides that 

purchases of commercial services that 

are not offered and sold competitively 

in substantial quantities in the 

commercial marketplace may only be 

considered commercial items for the 

purposes of the FAR if the contracting 

officer determines in writing that the 

offeror has submitted sufficient 

information to evaluate, through price 

analysis, the reasonableness of the price 

of such services. 

DATES: Effective Date: October 14, 2009. 

Comment Date: Interested parties 

should submit written comments to the 

Regulatory Secretariat on or before 

December 14, 2009 to be considered in 

the formulation of a final rule. 

ADDRESSES: Submit comments 

identified by FAC 2005–37, FAR case 

2008–034, by any of the following 

methods: 

•Regulations.gov: http:// 

www.regulations.gov. 

Submit comments via the Federal 

eRulemaking portal by inputting ‘‘FAR 

Case 2008–034’’ into the field 

‘‘Keyword’’. Select the link that 

corresponds with FAR Case 2008–034. 

Follow the instructions provided to 

submit your comment. Please include 

your name, company name (if any), and 

‘‘FAR Case 2008–034’’ on your attached 

document. 

• Fax: 202–501–4067. 

• Mail: General Services 

Administration, Regulatory Secretariat 

(VPR), 1800 F Street, NW., Room 4041, 

ATTN: Hada Flowers, Washington, DC 

20405. 

Instructions: Please submit comments 

only and cite FAC 2005–37, FAR case 

2008–034, in all correspondence related 

to this case. All comments received will 

be posted without change to http:// 

www.regulations.gov, including any 

personal and/or business confidential 

information provided. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Edward N. Chambers, Procurement 

Analyst, at (202) 501–3221 for 

clarification of content. Please cite FAC 

2005–37, FAR case 2008–034. For 

information pertaining to status or 

publication schedules, contact the 

Regulatory Secretariat at (202) 501– 

4755. 

SUPPLEMENTARY INFORMATION: 

A. Background 

Section 868 of the Duncan Hunter 

National Defense Authorization Act for 

Fiscal Year 2009 (Pub. L. 110–417) 

states that the FAR shall be amended 

with respect to the procurement of 

commercial services, specifically 

services that are not offered and sold 

competitively in substantial quantities 

in the commercial marketplace, but are 

of a type offered and sold competitively 

in substantial quantities in the 

commercial marketplace. These services 

may be considered commercial items 

only if the contracting officer has 

determined in writing that the offeror 

has submitted sufficient information to 

evaluate, through price analysis, the 

reasonableness of the price for such 

services. The rule details the 

information the contracting officer may 

consider in order to make this 

determination. 

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 this interim rule primarily 

impacts actions required on the part of 

the Government by requiring a new 

written determination by the contracting 

officer. Since the current 15.403–3(a)(1) 

provides for contracting officers to 

obtain the information necessary to 

evaluate price reasonableness, this 

interim rule places no additional 

requirements on contractors. Therefore, 

an Initial Regulatory Flexibility 

Analysis has not been performed. The 

Councils will consider comments from 

small entities concerning the affected 

FAR part 15 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 2005–37, FAR 

case 2008–034), in all correspondence. 

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 Number 

9000–0013. 

D. Determination To Issue an Interim 

Rule 

A determination has been made under 

the authority of the Secretary of Defense 

(DoD), the Administrator of General 

Services (GSA), and the Administrator 

of the National Aeronautics and Space 

Administration (NASA) that urgent and 

mstockstill on DSKH9S0YB1PROD with RULES2

Federal Register / Vol. 74, No. 197 / Wednesday, October 14, 2009 / Rules and Regulations 52853 

compelling reasons exist to promulgate 

this interim rule without prior 

opportunity for public comment. This 

action is necessary because the rule 

implements section 868 of the Duncan 

Hunter National Defense Authorization 

Act (Pub. L. 110–417), which was 

signed on October 14, 2008, and 

requires amending the FAR not later 

than 180 days after the date of 

enactment of the Act. However, 

pursuant to Public Law 98–577 and FAR 

1.501, the Councils will consider public 

comments received in response to this 

interim rule in the formation of the final 

rule. 

List of Subjects in 48 CFR Part 15 

Government procurement. 

Dated: October 5, 2009. 

Al Matera, 

Director, Acquisition Policy Division. 

■ Therefore, DoD, GSA, and NASA 

amend 48 CFR part 15 as set forth 

below: 

PART 15—CONTRACTING BY 

NEGOTIATION 

■ 1. The authority citation for 48 CFR 

part 15 continues to read as follows: 

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

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

■ 2. Amend section 15.403–1 by 

redesignating paragraphs (c)(3)(ii) and 

(c)(3)(iii) as (c)(3)(iii) and (c)(3)(iv), 

respectively, and adding a new 

paragraph (c)(3)(ii) to read as follows: 

15.403–1 Prohibition on obtaining cost or 

pricing data (10 U.S.C. 2306a and 41 U.S.C. 

254b). 

* * * * * 

(c) * * * 

(3) * * * 

(ii) In accordance with section 868 of 

Pub. L. 110–417: 

(A) When purchasing services that are 

not offered and sold competitively in 

substantial quantities in the commercial 

marketplace, but are of a type offered 

and sold competitively in substantial 

quantities in the commercial 

marketplace, they may be considered 

commercial items (thus meeting the 

purpose of 41 U.S.C 254b and 10 U.S.C. 

2306a for truth in negotiations) only if 

the contracting officer determines in 

writing that the offeror has submitted 

sufficient information to evaluate, 

through price analysis, the 

reasonableness of the price of such 

services. 

(B) In order to make this 

determination, the contracting officer 

may request the offeror to submit prices 

paid for the same or similar commercial 

items under comparable terms and 

conditions by both Government and 

commercial customers; and 

(C) If the contracting officer 

determines that the information 

described in paragraph (c)(3)(ii)(B) of 

this section is not sufficient to 

determine the reasonableness of price, 

other relevant information regarding the 

basis for price or cost, including 

information on labor costs, material 

costs and overhead rates may be 

requested. 

* * * * * 

■ 3. Amend section 15.403–3 by adding 

paragraph (c)(3) to read as follows: 

15.403–3 Requiring information other than 

cost or pricing data. 

* * * * * 

(c) * * * 

(3) For services that are not offered 

and sold competitively in substantial 

quantities in the commercial 

marketplace, but are of a type offered 

and sold competitively in substantial 

quantities in the commercial 

marketplace, see 15.403–1(c)(3)(ii). 

[FR Doc. E9–24570 Filed 10–13–09; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 15, 31, and 52 

[FAC 2005–37; FAR Case 2008–031; Item 

V; Docket 2009–0034, Sequence 1] 

RIN 9000–AL27 

Federal Acquisition Regulation; FAR 

Case 2008–031, Limitations on PassThrough Charges 

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) are issuing an interim rule 

amending the Federal Acquisition 

Regulation (FAR) to implement section 

866 of the Duncan Hunter National 

Defense Authorization Act (NDAA) for 

Fiscal Year (FY) 2009 which applies to 

Executive Agencies other than DoD. The 

DoD is subject to section 852 of the John 

Warner NDAA for FY 2007 which is 

also being implemented in this interim 

rule. Section 866 requires the Councils 

to amend the FAR and section 852 

requires the Secretary of Defense to 

prescribe regulations to minimize 

excessive pass-through charges by 

contractors from subcontractors, or of 

tiers of subcontractors, that add no or 

negligible value, and to ensure that 

neither a contractor nor a subcontractor 

receives indirect costs or profit/fee (i.e., 

pass-through charges) on work 

performed by a lower-tier subcontractor 

to which the higher-tier contractor or 

subcontractor adds no, or negligible, 

value. Since both statutory provisions 

address excessive pass-through charges 

and the multiple tiering of 

subcontracting, the Councils decided to 

combine both provisions in this FAR 

rule. 

DATES: Effective Date: October 14, 2009. 

Comment Date: Interested parties 

should submit written comments to the 

Regulatory Secretariat on or before 

December 14, 2009 to be considered in 

the formulation of a final rule. 

ADDRESSES: Submit comments 

identified by FAC 2005–37, FAR case 

2008–031, by any of the following 

methods: 

•Regulations.gov: http:// 

www.regulations.gov. 

Submit comments via the Federal 

eRulemaking portal by inputting ‘‘FAR 

Case 2008–031’’ under the heading 

‘‘Comment or Submission’’. Select the 

link ‘‘Send a Comment or Submission’’ 

that corresponds with FAR Case 2008– 

031. Follow the instructions provided to 

complete the ‘‘Public Comment and 

Submission Form’’. Please include your 

name, company name (if any), and 

‘‘FAR Case 2008–031’’ on your attached 

document. 

• Fax: 202–501–4067. 

• Mail: General Services 

Administration, Regulatory Secretariat 

(VPR), 1800 F Street, NW., Room 4041, 

ATTN: Hada Flowers, Washington, DC 

20405. 

Instructions: Please submit comments 

only and cite FAC 2005–37, FAR case 

2008–031, in all correspondence related 

to this case. All comments received will 

be posted without change to http:// 

www.regulations.gov, including any 

personal and/or business confidential 

information provided. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Edward Chambers, Procurement 

Analyst, at (202) 501–3221 for 

clarification of content. For information 

pertaining to status or publication 

schedules, contact the Regulatory 

Secretariat at (202) 501–4755. Please 

cite FAC 2005–37, FAR case 2008–031. 

SUPPLEMENTARY INFORMATION: 

mstockstill on DSKH9S0YB1PROD with RULES2