Federal Register / Vol. 74, No. 197 / Wednesday, October 14, 2009 / Rules and Regulations 52847 

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 these 

services. 

The rule details the information the 

contracting officer may consider in 

order to make this determination. The 

rule further details, when this 

determination cannot be made, the 

information which may be requested to 

determine price reasonableness. 

Item V—Limitations on Pass-Through 

Charges (FAR Case 2008–031) (Interim) 

This interim rule implements section 

866 of the Duncan Hunter NDAA for 

Fiscal Year 2009 (Pub. L. 110–417) and 

section 852 of the John Warner NDAA 

for Fiscal Year 2007 (Pub. L. 109–364). 

Section 866 requires the Councils to 

amend the FAR 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., passthrough charges) on work performed by 

a lower-tier subcontractor to which the 

higher-tier contractor or subcontractor 

adds no, or negligible, value. 

To enable agencies to ensure that 

pass-through charges are not excessive, 

this interim rule includes a solicitation 

provision and a contract clause 

requiring offerors and contractors to 

identify the percentage of work that will 

be subcontracted, and when subcontract 

costs will exceed 70 percent of the total 

cost of work to be performed, to provide 

information on indirect costs and profit/ 

fee and value added with regard to the 

subcontract work. 

Item VI—Award Fee Language Revision 

(FAR Case 2008–008) (Interim) 

This interim rule amends the FAR to 

implement section 814 of the John 

Warner NDAA of Fiscal Year 2007 (Pub. 

L. 109–364) and section 867 of the 

Duncan Hunter NDAA of Fiscal Year 

2009 (Pub. L. 110–417). This rule 

requires agencies to— 

(1) Link award fees to acquisition 

objectives in the areas of cost, schedule, 

and technical performance; 

(2) Clarify that a base fee amount 

greater than zero may be included in a 

cost plus award fee type contract at the 

discretion of the contracting officer; 

(3) Prescribe narrative ratings that will 

be utilized in award fee evaluations; 

(4) Prohibit the issuance of award fees 

for a rating period if the contractor’s 

performance is judged to be below 

satisfactory; 

(5) Conduct a risk and cost benefit 

analysis and consider the results of the 

analysis when determining whether to 

use an award-fee type contract or not; 

(6) Include specific content in the 

award-fee plans; and 

(7) Prohibit the rolling over of 

unearned award fees to subsequent 

rating periods. 

This FAR change will integrate where 

appropriate, FAR part 7, Acquisition 

Planning, and FAR part 16, Contract 

Types, to improve agency use and 

decision making when using incentive 

contracts. 

Item VII—National Response 

Framework (FAR Case 2009–003) 

This final rule amends the FAR part 

18 to remove all references to the 

National Response Plan (NRP) and 

Incidents of National Significance. In 

January 2008, FEMA, a component 

within the DHS, reissued the NRP as the 

National Response Framework (NRF). 

With the reissuance, the term ‘‘Incidents 

of National Significance’’ was 

eliminated. The changes became 

effective on March 22, 2008. Both the 

NRP and the term ‘‘Incidents of National 

Significance’’ are now obsolete. 

This rule is informational and 

represents minor updates for 

consistency with FEMA references. 

FEMA provides a link at their website 

for Frequently Asked Questions that 

explain the rationale for and the 

changes to the NRF. 

This rule does not have a significant 

impact on Government or any 

automated systems. 

Item VIII—Technical Amendments 

Editorial changes are made at FAR 

5.102, 52.213–4, and 52.244–6. 

Dated: October 5, 2009. 

Al Matera, 

Director, Acquisition Policy Division. 

Federal Acquisition Circular 

Federal Acquisition Circular (FAC) 

2005-37 is issued under the authority of 

the Secretary of Defense, the 

Administrator of General Services, and 

the Administrator for the National 

Aeronautics and Space Administration. 

Unless otherwise specified, all 

Federal Acquisition Regulation (FAR) 

and other directive material contained 

in FAC 2005-37 is effective October 14, 

2009, except for Item VII, which is 

effective November 13, 2009. 

Dated: October 5, 2009. 

Shay D. Assad, 

Director, Defense Procurement and 

Acquisition Policy. 

Dated: October 2, 2009. 

David A. Drabkin, 

Senior Procurement Executive, Office of 

Acquisition Policy, U.S. General Services 

Administration. 

Dated: October 6, 2009. 

Leigh Pomponio, 

Procurement Analyst, National Aeronautics 

and Space Administration. 

[FR Doc. E9–24551 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 2, 4, 7, 10, 13, 18, 26, and 

52 

[FAC 2005–37; FAR Case 2008–035; Item 

I; Docket 2009–0033, Sequence 1] 

RIN 9000–AL30 

Federal Acquisition Regulation; FAR 

Case 2008–035, Registry of Disaster 

Response 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) are issuing an interim rule 

amending the Federal Acquisition 

Regulation (FAR) to implement Section 

697, Registry of Disaster Response 

Contractors (Pub. L. 109–295), the 

Department of Homeland Security 

(DHS) Appropriations Act, 2007 (6 

U.S.C. 796). The Act requires that the 

Administrator of the Federal Emergency 

Management Agency (FEMA), a 

component of DHS, establish and 

maintain a registry of contractors, which 

are willing to perform debris removal, 

distribution of supplies, reconstruction, 

and other disaster or emergency relief 

activities. In addition, the Act requires 

contracting officers to consult the 

Registry during market research and 

acquisition planning. 

DATES: Effective Date: October 14, 2009. 

Comment Date: Interested parties 

should submit written comments to the 

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52848 Federal Register / Vol. 74, No. 197 / Wednesday, October 14, 2009 / Rules and Regulations 

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 

2008–035, by any of the following 

methods: 

•Regulations.gov: http:// 

www.regulations.gov. Submit comments 

via the Federal eRulemaking portal by 

inputting ‘‘FAR Case 2008–035’’ into the 

field ‘‘Keyword’’. Select the link that 

corresponds with FAR Case 2008–035. 

Follow the instructions provided to 

submit your comment. Please include 

your name, company name (if any), and 

‘‘FAR Case 2008–035’’ 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 

2008–035, 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: For 

clarification of content, contact Mr. 

Edward Loeb, Director, Contract Policy 

Division at (202) 501–0650. For more 

information pertaining to status or 

publication schedules, contact the FAR 

Secretariat at (202) 501–4755. Please 

cite FAR Case 2008–035. 

SUPPLEMENTARY INFORMATION: 

A. Background 

The Disaster Response Registry 

includes business information 

consistent with the data that is currently 

required in the Central Contractor 

Registration (CCR) with two additional 

categories added to reflect the area 

served by the business, and the bonding 

level of the business concern. The CCR 

has been updated to include these 

changes. In addition, the FEMA website 

has been updated with a link to the 

Registry search feature at the CCR 

website. Contracting officers will be 

required to consult this Registry during 

market research and acquisition 

planning. The Registry covers domestic 

projects. Foreign contractors may 

register. 

The proposed FAR revisions include 

the following: 

(1) Addition of language in FAR 2.101 

to provide a definition of the term 

‘‘Disaster Response Registry’’. 

(2) Redesignating FAR section 4.1104 

(Solicitation provision and contract 

clauses) as section 4.1105, and adding a 

new FAR section 4.1104 that requires 

contracting officers to consult the 

Registry at www.ccr.gov. 

(3) Adding a paragraph (v) to FAR 

section 7.103 that requires agency heads 

or designees to prescribe procedures 

which ensure that contracting officers 

consult the Registry as a part of 

acquisition planning for debris removal, 

distribution of supplies, reconstruction, 

and other disaster or emergency relief 

activities inside the United States and 

outlying areas (defined in FAR part 2). 

(4) Including a reference to 6 U.S.C. 

796 in FAR 10.000; making a technical 

correction of an editorial nature to FAR 

10.001(a)(2)(v); and adding language to 

require agencies, in the conduct of their 

market research, to identify prospective 

contractors registered in the Registry 

when researching sources for debris 

removal, distribution of supplies, 

reconstruction, and other disaster or 

emergency relief supplies and services. 

(5) Adding the requirement in FAR 

18.102 for contracting officers to consult 

the Registry for the availability of 

contractors for debris removal, 

distribution of supplies, reconstruction, 

and other disaster or emergency relief 

activities inside the United States and 

outlying areas. 

(6) Redesignating FAR 26.205 as 

26.206 and adding a new FAR 26.205, 

which states that contracting officers 

shall consult the Registry. This section 

informs contracting officers how to 

locate vendors on the Registry. 

(7) Making conforming amendments 

in FAR 13.201 and to the prefatory text 

in FAR 52.204–7 and in FAR 52.226–3 

through 52.226–5. 

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 

is not a major rule under 5 U.S.C. 804. 

B. Regulatory Flexibility Act 

The Councils do not expect this 

interim rule 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 the 

rule does not impose any additional 

requirements on small businesses; 

registration in the Registry is voluntary. 

Two additional categories for the 

Registry content were added to the CCR 

to allow businesses to identify the area 

served by the business and the bonding 

level of the business concern. 

Therefore, an Initial Regulatory 

Flexibility Analysis has not been 

performed. The Councils will consider 

comments from small entities 

concerning the affected FAR parts 2, 4, 

7, 10, 13, 18, 26, and 52 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 2008–035), in 

all correspondence. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the interim rule does 

not contain any information collection 

requirements that require the approval 

of the Office of Management and Budget 

under 44 U.S.C. Chapter 35, et seq. 

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 

compelling reasons exist to promulgate 

this interim rule without prior 

opportunity for public comment. This 

action is necessary because the 

Department of Homeland Security 

Appropriations Act, 2007 (6 U.S.C. 796), 

became effective upon enactment. The 

enactment date is October 4, 2006. 

However, pursuant to Pub. L. 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 Parts 2, 4, 7, 

10, 13, 18, 26, and 52 

Government procurement. 

Dated: October 5, 2009. 

Al Matera, 

Director, Acquisition Policy Division. 

■ Therefore, DoD, GSA, and NASA 

amend 48 CFR parts 2, 4, 7, 10, 13, 18, 

26, and 52 as set forth below: 

■ 1. The authority citation for 48 CFR 

parts 2, 4, 7, 10, 13, 18, 26, and 52 

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). 

PART 2—DEFINITIONS OF WORDS 

AND TERMS 

■ 2. Amend section 2.101 in paragraph 

(b)(2) by adding, in alphabetical order, 

the definition ‘‘Disaster Response 

Registry’’ to read as follows: 

2.101 Definitions. 

* * * * * 

(b) * * * 

(2) * * * 

Disaster Response Registry means a 

voluntary registry of contractors who are 

willing to perform debris removal, 

distribution of supplies, reconstruction, 

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Federal Register / Vol. 74, No. 197 / Wednesday, October 14, 2009 / Rules and Regulations 52849 

and other disaster or emergency relief 

activities established in accordance with 

6 U.S.C. 796, Registry of Disaster 

Response Contractors. The Registry 

contains information on contractors 

who are willing to perform disaster or 

emergency relief activities within the 

United States and its outlying areas. The 

Registry is located at www.ccr.gov and 

alternately through the FEMA website at 

http://www.fema.gov/business/ 

index.shtm. (See 26.205). 

* * * * * 

PART 4—ADMINISTRATIVE MATTERS 

4.1104 [Redesignated as 4.1105] 

■ 3. Redesignate section ‘‘4.1104’’ as 

section ‘‘4.1105’’, and add a new section 

‘‘4.1104’’ to read as follows: 

4.1104 Disaster Response Registry. 

Contracting officers shall consult the 

Disaster Response Registry at 

www.ccr.gov when contracting for 

debris removal, distribution of supplies, 

reconstruction, and other disaster or 

emergency relief activities inside the 

United States and outlying areas. (See 

26.205). 

PART 7—ACQUISITION PLANNING 

■ 4. Amend section 7.103 by adding 

paragraph (v) to read as follows: 

7.103 Agency-head responsibilities. 

* * * * * 

(v) Ensuring that contracting officers 

consult the Disaster Response Registry 

at www.ccr.gov as a part of acquisition 

planning for debris removal, 

distribution of supplies, reconstruction, 

and other disaster or emergency relief 

activities inside the United States and 

outlying areas. (See 26.205). 

PART 10—MARKET RESEARCH 

■ 5. Amend section 10.000 by revising 

the second sentence to read as follows: 

10.000 Scope of part. 

* * * This part implements the 

requirements of 41 U.S.C. 253a(a)(1), 41 

U.S.C. 264b, 10 U.S.C. 2377, and 6 

U.S.C. 796. 

■ 6. Amend section 10.001 by revising 

paragraph (a)(2)(v) to read as follows: 

10.001 Policy. 

(a) * * * 

(2) * * * 

(v) On an ongoing basis, and to the 

maximum extent practicable, take 

advantage of commercially available 

market research methods in order to 

identify effectively the capabilities, of 

small businesses and new entrants into 

Federal contracting, that are available in 

the marketplace for meeting the 

requirements of the agency in 

furtherance of— 

(A) A contingency operation or 

defense against or recovery from 

nuclear, biological, chemical, or 

radiological attack; and 

(B) Disaster relief to include debris 

removal, distribution of supplies, 

reconstruction, and other disaster or 

emergency relief activities. (See 26.205). 

* * * * * 

PART 13—SIMPLIFIED ACQUISITION 

PROCEDURES 

13.201 [Amended] 

■ 7. Amend section 13.201 by removing 

from paragraph (d) ‘‘4.1104’’ and adding 

‘‘4.1105’’ in its place. 

PART 18—EMERGENCY 

ACQUISITIONS 

■ 8. Revise section 18.102 to read as 

follows: 

18.102 Central contractor registration. 

Contractors are not required to be 

registered in the Central Contractor 

Registration (CCR) for contracts awarded 

to support unusual and compelling 

needs or emergency acquisitions. (See 

4.1102). However, contractors are 

required to register with CCR in order to 

gain access to the Disaster Response 

Registry. Contracting officers shall 

consult the Disaster Response Registry 

at www.ccr.gov to determine the 

availability of contractors for debris 

removal, distribution of supplies, 

reconstruction, and other disaster or 

emergency relief activities inside the 

United States and outlying areas. (See 

26.205). 

PART 26—OTHER SOCIOECONOMIC 

PROGRAMS 

26.205 [Redesignated as 26.206] 

■ 9. Redesignate section ‘‘26.205’’ as 

section ‘‘26.206’’ and add a new section 

‘‘26.205’’ to read as follows: 

26.205 Disaster Response Registry. 

(a) Contracting officers shall consult 

the Disaster Response Registry at 

www.ccr.gov to determine the 

availability of contractors for debris 

removal, distribution of supplies, 

reconstruction, and other disaster or 

emergency relief activities inside the 

United States and outlying areas. 

(b) A list of prospective vendors 

voluntarily participating in the Disaster 

Response Registry can be retrieved 

using the CCR Search tool on the CCR 

webpage. These vendors may be 

identified by selecting the criteria for 

‘‘Disaster Response Contractors’’. 

Contractors are required to register with 

CCR in order to gain access to the 

Disaster Response Registry. 

* * * * * 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

52.204–7 [Amended] 

■ 10. Amend section 52.204–7 by 

removing from the introductory 

paragraph ‘‘4.1104’’ and adding 

‘‘4.1105’’ in its place. 

52.226–3 [Amended] 

■ 11. Amend section 52.226–3 by 

removing from the introductory 

paragraph ‘‘26.205(a)’’ and adding 

‘‘26.206(a)’’ in its place. 

52.226–4 [Amended] 

■ 12. Amend section 52.226–4 by 

removing from the introductory 

paragraph ‘‘26.205(b)’’ and adding 

‘‘26.206(b)’’ in its place. 

52.226–5 [Amended] 

■ 13. Amend section 52.226–5 by 

removing from the introductory 

paragraph ‘‘26.205(c)’’ and adding 

‘‘26.206(c)’’ in its place. 

[FR Doc. E9–24554 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 6 

[FAC 2005–37; FAR Case 2007–008; Item 

II; Docket 2007-0001, Sequence 14] 

RIN 9000–AK90 

Federal Acquisition Regulation; FAR 

Case 2007–008, Limiting Length of 

Noncompetitive Contracts in ‘‘Unusual 

and Compelling Urgency’’ 

Circumstances 

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) are issuing a final rule 

amending the Federal Acquisition 

Regulation (FAR) to implement section 

862 of the Duncan Hunter National 

Defense Authorization Act for Fiscal 

Year 2009 (Pub. L. 110–417) and Office 

of Federal Procurement Policy (OFPP) 

mstockstill on DSKH9S0YB1PROD with RULES2