Federal Register / Vol. 75, No. 109 / Tuesday, June 8, 2010 / Rules and Regulations 32639 

List of Subjects in 48 CFR Parts 217 and 

234 

Government procurement. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR parts 217 and 234 

are amended as follows: 

■ 1. The authority citation for 48 CFR 

parts 217 and 234 continues to read as 

follows: 

Authority: 41 U.S.C. 421 and 48 CFR 

chapter 1. 

PART 217—SPECIAL CONTRACTING 

METHODS 

■ 2. Section 217.202 is revised as 

follows: 

217.202 Use of options. 

(1) See PGI 217.202 for guidance on 

the use of options. 

(2) See 234.005–1 for limitations on 

the use of contract options for the 

provision of advanced component 

development or prototype of technology 

developed under the contract or the 

delivery of initial or additional 

prototype items. 

PART 234—MAJOR SYSTEM 

ACQUISITION 

■ 3. Section 234.005–1 is added to read 

as follows: 

234.005–1 Competition. 

(1) A contract that is initially awarded 

from the competitive selection of a 

proposal resulting from a general 

solicitation may contain a contract line 

item or contract option for the provision 

of advanced component development or 

prototype of technology developed 

under the contract or the delivery of 

initial or additional prototype items if 

the item or a prototype thereof is created 

as the result of work performed under 

the contract only when it adheres to the 

following limitations: 

(i) The contract line item or contract 

option shall be limited to the minimal 

amount of initial or additional prototype 

items that will allow for timely 

competitive solicitation and award of a 

follow-on development or production 

contract for those items. 

(ii) The term of the contract line item 

or contract option shall be for not more 

than 12 months. 

(iii) The dollar value of the work to 

be performed pursuant to the contract 

line item or contract option shall not 

exceed the lesser of— 

(A) The amount that is three times the 

dollar value of the work previously 

performed under the contract; or 

(B) $20 million. 

(2) A contract line item or contract 

option may not be exercised under this 

authority after September 30, 2014. 

[FR Doc. 2010–13524 Filed 6–7–10; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 217 

RIN 0750–AG67 

Defense Federal Acquisition 

Regulation Supplement; Limitations on 

Procurements With Non-Defense 

Agencies (DFARS Case 2009–D027) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Interim rule with request for 

comments. 

SUMMARY: DoD is issuing an interim rule 

to implement section 806 of the 

National Defense Authorization Act for 

Fiscal Year 2010 authorizing the placing 

of contracts for property and services in 

excess of the simplified acquisition 

threshold by certain non-DoD agencies 

for the performance of a joint program 

conducted to meet the needs of DoD and 

the non-DoD agency. 

DATES: Effective Date: June 8, 2010. 

Comment Date: Comments on the 

interim rule should be submitted in 

writing to the address shown below on 

or before August 9, 2010, to be 

considered in the formation of the final 

rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2009–D027, 

using any of the following methods: 

Æ Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

Æ E-mail: dfars@osd.mil. Include 

DFARS Case 2009–D027 in the subject 

line of the message. 

Æ Fax: (703) 602–0350. 

Æ Mail: Defense Acquisition 

Regulations System, Attn: Meredith 

Murphy, OUSD(AT&L)DPAP(DARS), 

3060 Defense Pentagon, Room 3B855, 

Washington, DC 20301–3060. 

Comments received generally will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Meredith Murphy, Telephone 703–602– 

1302. 

SUPPLEMENTARY INFORMATION: 

A. Background 

Section 854 of the National Defense 

Authorization Act for Fiscal Year 2005 

(Pub. L. 108–375) prescribed policy for 

the acquisition of supplies and services 

through the use of contracts or orders 

issued by non-DoD agencies. Section 

801(b) of the National Defense 

Authorization Act for Fiscal Year 2008 

(Pub. L. 110–181) authorized a DoD 

acquisition official to procure property 

and services in excess of the simplified 

acquisition threshold through a nonDoD agency only if: (1) The non-DoD 

agency agreed to adhere to defense 

procurement requirements; or (2) the 

Under Secretary of Defense (AT&L) 

certified that the procurement is in the 

best interest of DoD. 

Section 806 of the National Defense 

Authorization Act for Fiscal Year 2010 

(Pub. L. 111–84) amended the 

limitations placed on procurements by 

non-DoD agencies by exempting such 

procurements that are (a) entered into 

by a non-DoD agency that is an element 

of the intelligence community and (b) 

when the procurement is for the 

performance of a joint program 

conducted to meet the needs of DoD and 

the non-DoD agency. Section 806 

referred to section 3(4) of the National 

Security Act of 1947 (50 U.S.C. 401a(4)) 

to identify non-DoD agencies that are an 

element of the intelligence community. 

B. Discussion 

The National Security Act of 1947 

defines the term ‘‘intelligence 

community’’ to include a number of 

defense and non-defense agencies and 

portions of such agencies. The 

definition of ‘‘non-DoD agency that is an 

element of the intelligence community’’ 

replicates the statutory list, absent the 

DoD agencies. 

DFARS subpart 217.78 is amended by 

adding the definition at 217.7801 and 

excluding such agencies from the 

requirements of 217.7802(a) when the 

procurement is for performance of a 

joint program conducted to meet the 

needs of DoD and the non-DoD agency. 

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. 

604. 

C. Regulatory Flexibility Act 

DoD does 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 section 806 affects only internal 


emcdonald on DSK2BSOYB1PROD with RULES2
32640 Federal Register / Vol. 75, No. 109 / Tuesday, June 8, 2010 / Rules and Regulations 

government operations and procedures. 

The interim rule does not impose any 

additional requirements on small 

businesses. Therefore, an Initial 

Regulatory Flexibility Analysis has not 

been performed. DoD invites comments 

from small business concerns and other 

interested parties on the expected 

impact of this rule on small entities. 

DoD will also consider comments 

from small entities concerning the 

existing regulations in subparts affected 

by this rule in accordance with 5 U.S.C. 

610. Interested parties must submit such 

comments separately and should cite 5 

U.S.C. 610 (DFARS Case 2009–D027) in 

correspondence. 

D. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the changes to the 

DFARS 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. 

E. Determination To Issue an Interim 

Rule 

A determination has been made under 

the authority of the Secretary of Defense 

that urgent and compelling reasons exist 

to promulgate this interim rule without 

prior opportunity for public comment. 

This action is necessary because the 

statute became effective upon 

enactment, and it is imperative that DoD 

contracting officers be aware of the 

limitations on interagency procurements 

and the circumstances under which 

certain programs need not be delayed by 

such limitations. However, pursuant to 

41 U.S.C. 418b and FAR 1.501–3, DoD 

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 217 

Government procurement. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR part 217 is 

amended as follows: 

PART 217—SPECIAL CONTRACTING 

METHODS 

■ 1. The authority citation for 48 CFR 

part 217 continues to read as follows: 

Authority: 41 U.S.C. 421 and 48 CFR 

chapter 1. 

■ 2. Section 217.7800 is amended by 

revising paragraph (a) to read as follows: 

217.7800 Scope of subpart. 

* * * * * 

(a) Implements section 854 of the 

National Defense Authorization Act for 

Fiscal Year 2005 (Pub. L. 108–375), 

section 801 of the National Defense 

Authorization Act for Fiscal Year 2008 

(Pub. L. 110–181), and section 806 of 

the National Defense Authorization Act 

for Fiscal Year 2010 (Pub. L. 111–84); 

and 

* * * * * 

■ 3. Section 217.7801 is amended by 

adding the following definition in 

appropriate alphabetical order: 

217.7801 Definitions. 

* * * * * 

Non-DoD agency that is an element of 

the intelligence community means the 

Office of the Director of National 

Intelligence; the Central Intelligence 

Agency; the intelligence elements of the 

Federal Bureau of Investigation; the 

intelligence elements of the Department 

of Energy; the Bureau of Intelligence 

and Research of the Department of State; 

the Office of Intelligence and Analysis 

of the Department of the Treasury; and 

the elements of the Department of 

Homeland Security concerned with the 

analysis of intelligence information, 

including the Office of Intelligence of 

the Coast Guard. 

■ 4. Section 217.7802 is amended by 

adding paragraph (a)(3) to read as 

follows: 

217.7802 Policy. 

(a) * * * 

(3) The limitation in paragraph (a) of 

this section does not apply to contracts 

entered into by a non-DoD agency that 

is an element of the intelligence 

community for the performance of a 

joint program conducted to meet the 

needs of DoD and the non-DoD agency. 

* * * * * 

[FR Doc. 2010–13525 filed 6–7–10; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 225 

[DFARS Case 2009–D022] 

Defense Federal Acquisition 

Regulation Supplement; Finland— 

Public Interest Exception to the Buy 

American Act 

AGENCY: Defense Acquisition 

Regulations System; Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is issuing this final rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to reflect a determination of 

the Secretary of Defense that it is 

inconsistent with the public interest to 

apply the restrictions of the Buy 

American Act to the acquisition of 

articles, materials, and supplies 

produced or manufactured in Finland. 

DATES: Effective Date: June 8, 2010. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Amy Williams, 703–602–0328. 

SUPPLEMENTARY INFORMATION: 

A. Background 

A reciprocal defense procurement 

memorandum of understanding (RDP 

MOU) between the government of 

Finland and the Government of the 

United States has been in effect since 

1991. The governments have negotiated 

and concluded a new RDP MOU to 

provide an updated basis for continued 

cooperation in defense procurement. 

The RDP MOU provides that, in relation 

to defense procurement, each country 

will accord to the industries of the other 

country treatment no less favorable than 

that accorded to its own industries, to 

the extent consistent with its laws, 

regulations, and international 

obligations. 

The reciprocal opportunities that the 

RDP MOU affords to the governments 

and their defense industries enhances 

mutual military readiness and promotes 

standardization and interoperability of 

equipment between the armed forces of 

the two countries. Therefore, DoD has 

made a blanket determination that it is 

inconsistent with the public interest to 

apply the restrictions of the Buy 

American Act to the acquisition of 

articles, materials, and supplies 

produced or manufactured in Finland. 

DoD is issuing this rule as a final rule 

because this rule does not have a 

significant effect beyond the internal 

operating procedures of DoD and does 

not have a significant cost or 

administrative impact on contractors or 

offerors. Therefore, public comment is 

not required in accordance with 41 

U.S.C. 418b(a). 

‘‘Qualifying country’’ is defined at 

225.003(10). The status as a qualifying 

country entitles these countries to 

various benefits, both as a matter of DoD 

policy and as legislated by Congress. 

The evaluation procedures at DFARS 

subpart 225.5 treat all qualifying 

country end products equally. Finland 

is a qualifying country, as listed at 

225.003(10), entitled to all these 

benefits. However, at DFARS 225.872–1, 

the qualifying countries are divided into 

two lists. Most are listed in paragraph 

(a), but a few are listed in paragraph (b). 

For the countries in paragraph (a), DoD 

has already made a blanket 


emcdonald on DSK2BSOYB1PROD with RULES2