Federal Register / Vol. 74, No. 197 / Wednesday, October 14, 2009 / Rules and Regulations 52851 

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., because the 

rule addresses internal agency 

procedures and will benefit small 

entities by encouraging competition 

after a one year performance period, 

except when a longer performance 

period is properly approved. Therefore, 

a Final Regulatory Flexibility Analysis 

has not been performed. 

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 Part 6 

Government procurement. 

Dated: October 5, 2009. 

Al Matera, 

Director, Acquisition Policy Division. 

■ Therefore, DoD, GSA, and NASA 

amend 48 CFR part 6 as set forth below: 

PART 6—COMPETITION 

REQUIREMENTS 

■ 1. The authority citation for 48 CFR 

part 6 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 6.302–2 by adding 

paragraph (d) to read as follows: 

6.302–2 Unusual and compelling urgency. 

* * * * * 

(d) Period of Performance. The total 

period of performance of a contract 

awarded using this authority— 

(1) May not exceed the time 

necessary: 

(i) To meet the unusual and 

compelling requirements of the work to 

be performed under the contract; and 

(ii) For the agency to enter into 

another contract for the required goods 

and services through the use of 

competitive procedures. 

(2) May not exceed one year unless 

the head of the agency entering into the 

contract determines that exceptional 

circumstances apply. 

(3) The requirements in paragraphs (1) 

and (2) of this section shall apply to any 

contract in an amount greater than the 

simplified acquisition threshold. 

(4) The determination of exceptional 

circumstances is in addition to the 

approval of the justification in 6.304. 

(5) The determination may be made 

after contract award when making the 

determination prior to award would 

unreasonably delay the acquisition. 

[FR Doc. E9–24565 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 12 and 52 

[FAC 2005–37; FAR Case 2008–026; Item 

III; Docket 2009–0013, Sequence 1] 

RIN 9000–AL25 

Federal Acquisition Regulation; FAR 

Case 2008–026, GAO Access to 

Contractor Employees 

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 adopted as final, 

without change, an interim rule 

amending the Federal Acquisition 

Regulation (FAR) to implement section 

871 of the Duncan Hunter National 

Defense Authorization Act for Fiscal 

Year 2009 (NDAA) which allows the 

Government Accountability Office to 

interview current contractor employees 

during the audit of the contractor’s 

records. 

DATES: Effective Date: October 14, 2009. 

FOR FURTHER INFORMATION CONTACT: For 

clarification of content, contact Mr. 

Edward Loeb, Director, Contract Policy 

Division at (202) 501–0650. For 

information pertaining to status or 

publication schedules, contact the 

Regulatory Secretariat at (202) 501– 

4755. Please cite FAC 2005–37, FAR 

case 2008–026. 

SUPPLEMENTARY INFORMATION: 

A. Background 

Section 871 of the Duncan Hunter 

National Defense Authorization Act for 

Fiscal Year 2009 (NDAA) (Pub. L. 110– 

417) added language allowing the 

Comptroller General to interview 

current employees regarding 

transactions being examined during an 

audit of contracting records. The Act 

revises 41 U.S.C. 254d(c)(1) and 10 

U.S.C. 2313(c)(1) by inserting before the 

period: ‘‘and to interview any current 

employee regarding such transactions’’. 

To implement the Act, FAR clauses 

52.215–2, Audit and Records— 

Negotiation, and 52.214–26, Audit and 

Records—Sealed Bidding, were 

amended to add the required statutory 

language. The statute did not specify 

that section 871 apply to commercial 

item contracts and therefore was not 

applied to FAR clause 52.212–5, 

Contract Terms and Conditions 

Required to Implement Statutes or 

Executive Order—Commercial Items. 

Section 34 of the Office of Federal 

Procurement Policy Act (OFPP), 41 

U.S.C. 430, exempts commercial item 

acquisitions from new provisions of 

law, such as section 871, unless (1) the 

law provides criminal or civilian 

penalties, (2) the law expressly refers to 

41 U.S.C. 430 and states that it applies 

to commercial item contracts, or (3) the 

FAR Council makes a written 

determination that it would not be in 

the best interest of the Federal 

Government to exempt commercial item 

contracts. Thus, this new provision was 

added to the list of inapplicable laws at 

FAR 12.503(a). 

DoD, GSA, and NASA published an 

interim rule with a request for 

comments in the Federal Register at 74 

FR 14649 on March 31, 2009. No 

comments were received. The interim 

rule is converted to a final rule without 

change. 

This is a significant regulatory action 

and, therefore, was subject to review 

under section 6(b) of Executive Order 

12886, 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., because only 

a small number of small businesses are 

audited by the Government 

Accountability Office (GAO). Currently 

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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