Federal Register / Vol. 76, No. 87 / Thursday, May 5, 2011 / Rules and Regulations 25565 

§ 485.641 Condition of participation: 

Periodic evaluation and quality assurance 

review. 

* * * * * 

(b) * * * 

(4) The quality and appropriateness of 

the diagnosis and treatment furnished 

by doctors of medicine or osteopathy at 

the CAH are evaluated by— 

(i) One hospital that is a member of 

the network, when applicable; 

(ii) One QIO or equivalent entity; 

(iii) One other appropriate and 

qualified entity identified in the State 

rural health care plan; 

(iv) In the case of distant-site 

physicians and practitioners providing 

telemedicine services to the CAH’s 

patients under a written agreement 

between the CAH and a distant-site 

hospital, the distant-site hospital; or 

(v) In the case of distant-site 

physicians and practitioners providing 

telemedicine services to the CAH’s 

patients under a written agreement 

between the CAH and a distant-site 

telemedicine entity, one of the entities 

listed in paragraphs (b)(4)(i) through (iii) 

of this section; and 

* * * * * 

(Catalog of Federal Domestic Assistance 

Program No. 93.773, Medicare—Hospital 

Insurance; and Program No. 93.774, Medicare 

Supplementary Medical Insurance Program). 

(Catalog of Federal Domestic Assistance 

Program No. 93.778, Medical Assistance 

Program) 

Dated: January 27, 2011. 

Donald M. Berwick, 

Administrator, Centers for Medicare & 

Medicaid Services. 

Approved: April 29, 2011. 

Kathleen Sebelius, 

Secretary. 

[FR Doc. 2011–10875 Filed 5–2–11; 11:15 am] 

BILLING CODE 4120–01–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 211 and 237 

RIN 0750–AG72 

Defense Federal Acquisition 

Regulations Supplement; Guidance on 

Personal Services (DFARS Case 2009– 

D028) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD has adopted as final, 

with changes, the interim rule that 

amended the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement section 831 of 

the National Defense Authorization Act 

for Fiscal Year 2009, which required 

DoD to develop guidance on personal 

services contracts. 

DATES: Effective Date: May 5, 2011. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Dustin Pitsch, 703–602–1014. 

SUPPLEMENTARY INFORMATION:

I. Background 

Section 831 required DoD to mitigate 

the risks associated with personal 

services by developing guidance 

enabling contracting officers to better 

distinguish between personal services 

and nonpersonal services. The interim 

rule amended DFARS parts 211 and 237 

to (1) require that statements of work or 

performance work statements clearly 

distinguish between Government 

employees and contractor employees 

and (2) ensure that procedures are 

adopted to prevent contracts from being 

awarded or administered as 

unauthorized personal services 

contracts. The interim rule included an 

internal requirement for a program 

manager, or equivalent, certification that 

the service contract requirement does 

not include an unauthorized personal 

services arrangement. Because of the 

differing missions of DoD agencies, the 

interim rule required agencies to adopt 

their own procedures. 

DoD published an interim rule at 75 

FR 54524 on September 8, 2010, to 

implement section 831 of the National 

Defense Authorization Act for Fiscal 

Year 2009 (Pub. L. 110–417, enacted 

October 28, 2009). The period for public 

comment closed on November 8, 2010. 

Five respondents provided public 

comments on the interim rule. 

II. Discussion and Analysis 

A. Support for DoD Actions 

Comment: A respondent noted the 

DFARS requirement for agency-level 

procedures to ensure that service 

contract requirements are vetted and 

approved in a manner that will prevent 

them from being awarded or 

administered as unauthorized personal 

services contracts. The respondent 

stated its support for Defense agencies 

taking internal action to ensure that no 

unauthorized personal services 

contracts are requested. Another 

respondent expressed support for the 

rule and stated that it ‘‘helps create a 

boundary separating contractor and 

government employees in all workplace 

environments.’’ 

Response: The respondents’ support 

is noted. No change to the DFARS in 

this area was requested or made. 

B. Limit Applicability 

Comment: Two respondents specified 

that the DFARS should highlight and 

limit applicability of this rule solely to 

personal services contracts, not the 

general service contract population. 

Response: No change was made in the 

final rule in response to this comment. 

It is precisely because of the potential 

for a migration of a ‘‘general service 

contract’’ into what is effectively a 

‘‘personal services contract’’ that the rule 

is necessary. DoD, with strong 

encouragement from the DoD Office of 

Inspector General, has determined that 

there is a need to review all services for 

the purpose of ensuring the services do 

not become personal services. 

C. Add More Guidance 

Comment: A respondent stated that 

DFARS 211.106 provides no actual 

guidance to the agencies as to what the 

distinction between Government 

employees and contractor employees is 

or how an agency is to make such a 

determination. At a minimum, the 

respondent states, it may be appropriate 

to include in DFARS 211.106 a cross 

reference to the characteristics and 

descriptive elements in FAR 37.104. 

The respondent thinks the rule does not 

provide any actionable direction to 

contractors on what behaviors would be 

acceptable for contractor employees 

based on the policies and practices of 

the location where the contractor 

employee is assigned. 

Response: A cross reference to FAR 

37.104 and the characteristics and 

descriptive elements therein has been 

added to DFARS 211.106. However, the 

DFARS cannot unnecessarily repeat, 

paraphrase, or otherwise restate material 

contained in the FAR (see FAR 

1.304(b)), so the DFARS addition was 

limited to a reference. Further, the 

agency-level procedures are the 

appropriate location for the actionable, 

agency-specific direction to contractors 

on acceptable behaviors. 

D. Add More Specific Contract 

Administration Procedures 

Comment: A respondent noted the 

absence in the interim rule, in DFARS 

parts 237 or 242, of procedures, 

guidance, or information focusing on 

postaward contract administration to 

prevent actual administration of a 

contract as an unauthorized personal 

services contract. The respondent 

recommended (a) referencing FAR 

37.104(d) in DFARS 237.503 and (b) 


jlentini on DSKJ8SOYB1PROD with RULES
25566 Federal Register / Vol. 76, No. 87 / Thursday, May 5, 2011 / Rules and Regulations 

possibly adding coverage in DFARS part 

242 relating to contract administration. 

Response: DoD has added a cross 

reference to FAR 37.104(d) at DFARS 

237.503. In this final rule, no changes 

are made to DFARS subpart 242. 

E. Editorial Recommendations 

Comment: A respondent proposed 

several clarifying edits. The respondent 

suggested moving some coverage from 

DFARS 237.503 to DFARS 237.104 and 

providing additional cross references. 

The respondent also proposed to revise 

the title of the form at PGI 237.503(c). 

Response: Some of these 

recommendations have been 

accommodated in the changes noted 

above and as follows: 

• New coverage at DFARS 237.104(d) 

has been added to point readers to the 

section entitled ‘‘Agency-head 

responsibilities’’ at DFARS 237.503 to 

ensure awareness of the certification 

requirement. 

• The title of the certification at PGI 

237.503(c) has been changed to 

‘‘Certification of Nonpersonal Services.’’ 

III. Executive Order 12866 and 

Executive Order 13563 

Executive Orders 12866 and 13563 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. This rule 

has been designated a ‘‘significant 

regulatory action’’ although not 

economically significant, under section 

3(f) of Executive Order 12866. 

Accordingly, the rule has been reviewed 

by the Office of Management and 

Budget. This rule is not a major rule 

under 5 U.S.C. 804. 

IV. Regulatory Flexibility Act 

DoD certifies 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 change solely impacts 

internal Government operating 

procedures and will therefore not have 

a significant cost or administrative 

impact on contractors, subcontractors, 

or offerors. An initial regulatory 

flexibility analysis was not performed. 

No comments were received from small 

entities on this rule. 

V. Paperwork Reduction Act 

The final rule does not contain any 

information collection requirements that 

require the approval of the Office of 

Management and Budget under the 

Paperwork Reduction Act (44 U.S.C. 

chapter 35). 

List of Subjects in 48 CFR Parts 211 and 

237 

Government procurement. 

Mary Overstreet, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, the Defense Acquisition 

Regulations system confirms as final the 

interim rule published at 75 FR 54524 

on September 8, 2010, with the 

following changes: 

■ 1. The authority citation for 48 CFR 

parts 211 and 237 continues to read as 

follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

PART 211—DESCRIBING AGENCY 

NEEDS 

■ 2. Revise section 211.106 to read as 

follows: 

211.106 Purchase descriptions for service 

contracts. 

Agencies shall require that purchase 

descriptions for service contracts and 

resulting requirements documents, such 

as statements of work or performance 

work statements, include language to 

provide a clear distinction between 

Government employees and contractor 

employees. Agencies shall be guided by 

the characteristics and descriptive 

elements of personal-services contracts 

at FAR 37.104. Service contracts shall 

require contractor employees to identify 

themselves as contractor personnel by 

introducing themselves or being 

introduced as contractor personnel and 

displaying distinguishing badges or 

other visible identification for meetings 

with Government personnel. In 

addition, contracts shall require 

contractor personnel to appropriately 

identify themselves as contractor 

employees in telephone conversations 

and in formal and informal written 

correspondence. 

PART 237—SERVICE CONTRACTING 

■ 3. Amend section 237.104 by adding 

paragraph (d) as follows: 

237.104 Personal services contracts. 

* * * * * 

(d) See 237.503(c) for requirements for 

certification and approval of 

requirements for services to prevent 

contracts from being awarded or 

administered in a manner that 

constitutes an unauthorized personal 

services contract. 

* * * * * 

■ 4. Revise section 237.503 to read as 

follows: 

237.503 Agency-head responsibilities. 

(c) The agency head or designee shall 

employ procedures to ensure that 

requirements for service contracts are 

vetted and approved as a safeguard to 

prevent contracts from being awarded or 

administered in a manner that 

constitutes an unauthorized personal 

services contract. Contracting officers 

shall follow the procedures at PGI 

237.503, include substantially similar 

certifications in conjunction with 

service contract requirements, and place 

the certification in the contract file. The 

program manager or other official 

responsible for the requirement, at a 

level specified by the agency, should 

execute the certification. In addition, 

contracting officers and program 

managers should remain aware of the 

descriptive elements at FAR 37.104(d) 

to ensure that a service contract does 

not inadvertently become administered 

as a personal-services contract. 

[FR Doc. 2011–10878 Filed 5–4–11; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 216 and 252 

RIN 0750–AH20 

Defense Federal Acquisition 

Regulation Supplement (DFARS); 

Electronic Ordering Procedures 

(DFARS Case 2009–D037) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is issuing a final rule to 

amend the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

address electronic business procedures 

for placing orders. This final rule adds 

a new DFARS clause to clarify this 

process. 

DATES: Effective date: May 5, 2011. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Julian Thrash, Telephone 703–602– 

0310. 

SUPPLEMENTARY INFORMATION: 


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