54524 Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Rules and Regulations 

not impose with respect to such 

frequency bands or air interfaces 

materially greater obligations than those 

imposed on other services subject to this 

section. Any new obligations on 

manufacturers and Tier I carriers 

pursuant to paragraphs (c) through (i) of 

this section as a result of such standards 

shall become effective no less than one 

year after release of the order adopting 

such standards and any new obligations 

on other service providers shall become 

effective no less than 15 months after 

the release of such order, except that 

any new obligations on manufacturers 

and service providers subject to 

paragraph (e)(1)(ii) of this section shall 

become effective no less than two years 

after the release of such order. 

* * * * * 

[FR Doc. 2010–22253 Filed 9–7–10; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 207 

RIN 0750–AG61 

Defense Federal Acquisition 

Regulation Supplement; Acquisition 

Strategies To Ensure Competition 

Throughout the Life Cycle of Major 

Defense Acquisition Programs (DFARS 

Case 2009–D014) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is adopting as final, 

without change, an interim rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement the Weapon 

Systems Acquisition Reform Act of 

2009, to improve the organization and 

procedures of DoD for the acquisition of 

major weapon systems. 

DATES: Effective Date: September 8, 

2010. 

FOR FURTHER INFORMATION CONTACT: 

Ms. Meredith Murphy, 703–602–1302. 

SUPPLEMENTARY INFORMATION: 

A. Background 

On May 22, 2009, the Weapon 

Systems Acquisition Reform Act (Pub. 

L. 111–23) was enacted to improve the 

organization and procedures of DoD for 

the acquisition of major weapon 

systems. This law establishes new 

oversight entities within DoD, as well as 

new and varied weapon system 

acquisition and management reporting 

requirements. 

Section 202 directs the Secretary of 

Defense (SECDEF) to ensure that the 

acquisition strategy for each major 

defense acquisition program (MDAP) 

includes: (1) Measures to ensure 

competition at both the prime contract 

and subcontract level of the MDAP 

throughout its life cycle as a means to 

improve contractor performance; and (2) 

adequate documentation of the rationale 

for selection of the subcontractor tier or 

tiers. It also outlines measures to ensure 

such competition. Furthermore, it 

requires the SECDEF: (1) To take 

specified actions to ensure fair and 

objective ‘‘make-buy’’ decisions by 

prime contractors on MDAPs; and (2) 

whenever a decision regarding the 

source of repair results in a plan to 

award a contract for performance of 

maintenance and sustainment of a major 

weapon system, to ensure that such 

contract is awarded on a competitive 

basis with full consideration of all 

sources. 

An interim rule was published at 75 

FR 8272 on February 24, 2010. No 

comments were received in response to 

the interim rule. 

This rule was not subject to Office of 

Management and Budget review under 

Executive Order 12866, dated 

September 30, 1993. This is not a major 

rule under 5 U.S.C. 804. 

B. Regulatory Flexibility Act 

DoD certifies that this 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 changes are to internal 

Government organization and operating 

procedures only. The rule imposes new 

oversight and reporting requirements 

internal only to DoD. As such, the rule 

imposes no changes on contractors 

doing business with DoD. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply, because the rule does not 

impose any information collection 

requirements that require the approval 

of the Office of Management and Budget 

under 44 U.S.C. 3501, et seq. 

List of Subjects in 48 CFR Part 207 

Government procurement. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

Interim Rule Adopted as Final Without 

Change 

■ Accordingly, the interim rule 

amending 48 CFR part 207 which was 

published at 75 FR 8272 on February 24, 

2010, is adopted as a final rule without 

change. 

[FR Doc. 2010–22230 Filed 9–7–10; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 211 and 237 

RIN 0750–AG72 

Defense Federal Acquisition 

Regulation Supplement; Guidance on 

Personal Services (DFARS Case 2009– 

D028) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Interim rule with request for 

comments. 

SUMMARY: DoD is issuing an interim rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to enable further 

implementation of section 831 of the 

Duncan Hunter National Defense 

Authorization Act for Fiscal Year 2009 

to require DoD to develop guidance 

related to personal services contracts. 

DATES: Effective Date: September 8, 

2010. 

Comment Date: Comments on the 

interim rule should be submitted in 

writing to the address shown below on 

or before November 8, 2010, to be 

considered in the formation of the final 

rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2009–D028, 

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–D028 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, 

Room 3B855, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Comments received generally will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. 

To confirm receipt of your 

comment(s), please check http:// 

www.regulations.gov approximately two 

to three days after submission to verify 

posting (except allow 30 days for 

posting of comments submitted by 

mail). 

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Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Rules and Regulations 54525 

FOR FURTHER INFORMATION CONTACT: 

Meredith Murphy, Defense Acquisition 

Regulations System, OUSD (AT&L) 

DPAP/DARS, Room 3B855, 3060 

Defense Pentagon, Washington, DC 

20301–3060. Telephone 703–602–1302; 

facsimile 703–602–0350. 

SUPPLEMENTARY INFORMATION: 

A. Background 

Section 831 of the Duncan Hunter 

National Defense Authorization Act for 

Fiscal Year 2009 (Pub. L. 110–417), 

Development of Guidance on Personal 

Services Contracts, required DoD to 

mitigate the risks associated with 

personal services by developing 

guidance enabling contracting officers to 

better distinguish between personal 

services and non-personal services. 

Recommendations by the Office of the 

DoD Inspector General have highlighted 

the need for additional clarity in this 

area. 

DFARS parts 211 and 237 are being 

amended 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. These Government 

procedures include an internal 

requirement that a program manager, or 

equivalent, certification that the service 

contract requirement does not include 

an unauthorized personal services 

arrangement be included in the contract 

file. 

DoD reviewed guidance in use 

throughout the Department, including 

several checklists currently used. This 

interim rule adopts best practices and 

implements a requirement for the 

program manager, or equivalent, to 

complete and submit a certification to 

the contracting officer with a services 

contract requirement. A new DFARS 

section 211.106, Purchase descriptions 

for service contracts, is added to require 

that purchase descriptions for service 

contracts clearly distinguish between 

Government employees and contractor 

employees. In addition, a new section 

237.503, Agency-head responsibilities, 

is added to require DoD agencies to 

adopt procedures that (1) ensure service 

contract requirements are vetted and 

approved in a manner that will prevent 

them from being awarded or 

administered as unauthorized personal 

services contracts, and (2) require a 

program manager, or equivalent, 

certification to be completed and 

provided to the contracting officer as 

part of the service contract procurement 

request, for inclusion in the contract 

file, that the service contract 

requirement does not include an 

unauthorized personal services 

arrangement, either in the way the work 

statement is written or in the manner in 

which the resulting contract will be 

managed and overseen. The certification 

requirement is designed to ensure that 

the prohibitions against personal 

services contracting in law (e.g., 10 

U.S.C. 129b, 5 U.S.C. 3109, or 10 U.S.C. 

1091) are not violated. 

This is a significant regulatory action, 

and therefore, was 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 831 affects only internal 

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–D028) in 

correspondence. 

D. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the rule does 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 publish an interim rule without prior 

opportunity for public comment 

pursuant to U.S.C. 418b and FAR 1.501– 

3(b). This action is necessary because 

the statute became effective upon 

enactment on October 14, 2008, and it 

is imperative that DoD program 

managers and contracting officers be 

provided with the means to distinguish 

between personal and non-personal 

services. However, 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 Parts 211 and 

237 

Government procurement. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR parts 211 and 237 

are amended as follows: 

■ 1. The authority citation for 48 CFR 

parts 211 and 237 continues to read as 

follows: 

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

chapter 1. 

PART 211—DESCRIBING AGENCY 

NEEDS 

■ 2. Section 211.106 is added 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. Service contracts shall 

require contractor employees to identify 

themselves as contractor personnel by 

introducing themselves or being 

introduced as contractor personnel and 

by 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. Subpart 237.5 is added to read as 

follows: 

Subpart 237.5—Management Oversight 

of Service Contracts 

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 

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54526 Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Rules and Regulations 

program manager or other official 

responsible for the requirement, at a 

level specified by the agency, should 

execute the certification. 

[FR Doc. 2010–22226 Filed 9–7–10; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 217 

[DFARS Case 2008–D023] 

Defense Federal Acquisition 

Regulation Supplement; Additional 

Requirements Applicable to Multiyear 

Contracts 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is adopting as final, with 

minor editorial corrections, an interim 

rule amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement the National 

Defense Authorization Act for Fiscal 

Year 2008, section 811, entitled 

‘‘Requirements Applicable to Multiyear 

Contracts for the Procurement of Major 

Systems of the Department of Defense.’’ 

DATES: Effective Date: September 8, 

2010. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Meredith Murphy, Defense Acquisition 

Regulations System, OUSD (AT&L), 

DPAP/DARS, 3060 Defense Pentagon, 

Room 3B855, Washington, DC 20301– 

3060. Telephone 703–602–1302; 

facsimile 703–602–0350. Please cite 

DFARS Case 2008–D023. 

SUPPLEMENTARY INFORMATION: 

A. Background 

DoD published an interim rule at 75 

FR 9114 on March 1, 2010, to 

implement section 811 of the National 

Defense Authorization Act for Fiscal 

Year 2008 (Pub. L. 110–181), enacted 

January 28, 2008. The period for public 

comment closed on April 30, 2010. The 

interim rule revised DFARS 217.170 and 

217.172 to add six new requirements to 

which the Secretary of Defense must 

certify in writing when requesting 

congressional authorization to enter into 

a multiyear contract for a major defense 

acquisition program. Among these 

requirements is the need to certify to 

certain cost-savings determinations. 

DoD received no comments on the 

interim rule. Therefore, DoD is 

finalizing the interim rule with minor 

editorial corrections only. 

This rule was not subject to Office of 

Management and Budget review under 

Executive Order 12866, dated 

September 30, 1993. This is not a major 

rule under 5 U.S.C. 804. 

B. Regulatory Flexibility Act 

DoD certifies that this 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 additional requirements 

apply solely to internal Government 

operating procedures. The rule 

implements section 811 of the National 

Defense Authorization Act for Fiscal 

Year 2008 (Pub. L. 110–181), which 

only imposes new responsibilities on 

the Secretary of Defense when 

requesting congressional authorization 

to enter into a multiyear contract for a 

major defense acquisition program. 

Therefore, the rule will have no 

significant cost or administrative impact 

on contractors or offerors. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the rule does not 

impose any information collection 

requirements that require the approval 

of the Office of Management and Budget 

under 44 U.S.C. 3501, et seq. 

List of Subjects in 48 CFR Part 217 

Government procurement. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, the interim rule published 

at 75 FR 9114 on March 1, 2010, is 

adopted as final with the following 

changes: 

■ 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. 

PART 217—SPECIAL CONTRACTING 

METHODS 

■ 2. Section 217.170 is amended by 

revising paragraph (b) to read as follows: 

217.170 General. 

* * * * * 

(b) Any requests for increased funding 

or reprogramming for procurement of a 

major system under a multiyear contract 

authorized under this section shall be 

accompanied by an explanation of how 

the request for increased funding affects 

the determinations made by the 

Secretary of Defense under 217.172(f)(2) 

(10 U.S.C. 2306b(i)(1)). 

* * * * * 

■ 3. Section 217.172 is amended by 

revising paragraphs (d)(2) and (f)(2) 

introductory text to read as follows: 

217.172 Multiyear contracts for supplies. 

* * * * * 

(d) * * * 

(2) In addition, for contracts equal to 

or greater than $500 million, the head of 

the contracting activity must determine 

that the conditions required by 

paragraphs (f)(2)(i) through (vii) of this 

section will be met by such contract, in 

accordance with the Secretary’s 

certification and determination required 

by paragraph (f)(2) of this section (10 

U.S.C. 2306b(a)(1)(7)). 

* * * * * 

(f) * * * 

(2) The Secretary of Defense certifies 

to Congress in writing, by no later than 

March 1 of the year in which the 

Secretary requests legislative authority 

to enter into such contracts, that each of 

the conditions in paragraphs (f)(2)(i) 

through (vii) of this section is satisfied 

(10 U.S.C. 2306b(i)(1)(A)–(G). 

* * * * * 

[FR Doc. 2010–22232 Filed 9–7–10; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 217 

Defense Federal Acquisition 

Regulation Supplement; Payment of 

Costs Prior to Definitization— 

Definition of Contract Action (DFARS 

Case 2009–D035) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is adopting as final, 

without change, an interim rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement the National 

Defense Authorization Act for Fiscal 

Year 2010 to amend the definition of 

‘‘contract action’’ to include task orders 

and delivery orders. 

DATES: Effective Date: September 8, 

2010. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Meredith Murphy, Defense Acquisition 

Regulations System, OUSD (AT&L) 

DPAP/DARS, 3060 Defense Pentagon, 

Room 3B855, Washington, DC 20301– 

3060. Telephone 703–602–1302; 

facsimile 703–602–0350. Please cite 

DFARS Case 2009–D035. 

mstockstill on DSKH9S0YB1PROD with RULES