Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 2731 

lll(iii) 52.219–22, Small Disadvantaged 

Business Status. 

lll(A) Basic. 

lll(B) Alternate I. 

lll(iv) 52.222–18, Certification 

Regarding Knowledge of Child Labor for 

Listed End Products. 

lll(v) 52.222–48, Exemption from 

Application of the Service Contract Act to 

Contracts for Maintenance, Calibration, or 

Repair of Certain Equipment Certification. 

lll(vi) 52.222–52 Exemption from 

Application of the Service Contract Act to 

Contracts for Certain Services—Certification. 

lll(vii) 52.223–9, with its Alternate I, 

Estimate of Percentage of Recovered Material 

Content for EPA-Designated Products 

(Alternate I only). 

lll(viii) 52.223–13, Certification of 

Toxic Chemical Release Reporting. 

lll(ix) 52.227–6, Royalty Information. 

lll (A) Basic. 

lll (B) Alternate I. 

lll(x) 52.227–15, Representation of 

Limited Rights Data and Restricted Computer 

Software. 

(d) * * * After reviewing the ORCA 

database information, the offeror verifies by 

submission of the offer that the 

representations and certifications currently 

posted electronically that apply to this 

solicitation as indicated in paragraph (c) of 

this provision have been entered or updated 

within the last 12 months, are current, 

accurate, complete, and applicable to this 

solicitation (including the business size 

standard applicable to the NAICS code 

referenced for this solicitation), as of the date 

of this offer and are incorporated in this offer 

by reference (see FAR 4.1201); except for the 

changes identified below [offeror to insert 

changes, identifying change by clause 

number, title, date]. * * * 

* * * * * 

[End of provision] 

■ 10. Amend section 52.212–3 by 

revising the date of the provision and 

paragraph (k)(1)(i) to read as follows: 

52.212–3 Offeror Representations and 

Certifications—Commercial Items. 

* * * * * 

OFFEROR REPRESENTATIONS AND 

CERTIFICATIONS—COMMERCIAL 

ITEMS (FEB 2009) 

* * * * * 

(k) * * * 

[ ](1) * * * 

(i) The items of equipment to be serviced 

under this contract are used regularly for 

other than Governmental purposes and are 

sold or traded by the offeror (or subcontractor 

in the case of an exempt subcontract) in 

substantial quantities to the general public in 

the course of normal business operations; 

* * * * * 

[End of provision] 

■ 11. Amend section 52.212–5 by— 

■ a. Revising the date of the clause; 

■ b. Revising paragraph (c)(6); 

■ c. Removing from paragraph (e)(1) ‘‘in 

paragraphs (e)(1)(i) through (xi) of this 

paragraph’’ and adding ‘‘in this 

paragraph (e)(1)’’ in its place; and 

■ d. Revising paragraph (e)(1)(x). 

■ The revised text reads as follows: 

52.212–5 Contract Terms and Conditions 

Required to Implement Statutes or 

Executive Orders—Commercial Items. 

* * * * * 

CONTRACT TERMS AND 

CONDITIONS REQUIRED TO 

IMPLEMENT STATUTES OR 

EXECUTIVE ORDERS—COMMERCIAL 

ITEMS (FEB 2009) 

* * * * * 

(C) * * * 

(6) 52.222–53, Exemption from Application 

of the Service Contract Act to Contracts for 

Certain Services—Requirements (FEB 2009) 

(41 U.S.C. 351, et seq.). 

* * * * * 

(e)(1) * * * 

(x) 52.222–53, Exemption from Application 

of the Service Contract Act to Contracts for 

Certain Services-Requirements (FEB 2009)(41 

U.S.C. 351, et seq.). 

* * * * * 

[End of clause] 

■ 12. Amend section 52.222–48 by 

revising the date of the provision and 

paragraph (a)(1) to read as follows: 

52.222–48 Exemption from Application of 

the Service Contract Act to Contracts for 

Maintenance, Calibration, or Repair of 

Certain Equipment Certification. 

* * * * * 

EXEMPTION FROM APPLICATION 

OF THE SERVICE CONTRACT ACT TO 

CONTRACTS FOR MAINTENANCE, 

CALIBRATION, OR REPAIR OF 

CERTAIN EQUIPMENT 

CERTIFICATION (FEB 2009) 

* * * * * 

(a) * * * 

(1) The items of equipment to be serviced 

under this contract are used regularly for 

other than Government purposes, and are 

sold or traded by the offeror (or subcontractor 

in the case of an exempt subcontractor) in 

substantial quantities to the general public in 

the course of normal business operations; 

* * * * * 

[End of provision] 

■ 13. Amend section 52.222–53 by 

revising the date of the clause and 

paragraph (e) to read as follows: 

52.222–53 Exemption from Application of 

the Service Contract Act to Contracts for 

Certain Services—Requirements. 

* * * * * 

EXEMPTION FROM APPLICATION 

OF THE SERVICE CONTRACT ACT TO 

CONTRACTS FOR CERTAIN 

SERVICES— REQUIREMENTS (FEB 

2009) 

* * * * * 

(e)(1) Except for services identified in FAR 

22.1003–4(d)(1)(iv), the subcontractor for 

exempt services shall be selected for award 

based on other factors in addition to price or 

cost with the combination of other factors at 

least as important as price or cost; or 

(2) A subcontract for exempt services shall 

be awarded on a sole source basis. 

* * * * * 

[End of clause] 

[FR Doc. E9–532 Filed 1–14–09; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 5, 6, and 24 

[FAC 2005–30; FAR Case 2008–003; Item 

IV; Docket 2008–0001, Sequence 08] 

RIN 9000–AL13 

Federal Acquisition Regulation; FAR 

Case 2008–003, Public Disclosure of 

Justification and Approval Documents 

for Noncompetitive Contracts-Section 

844 of the National Defense 

Authorization Act for Fiscal Year 2008 

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) have agreed on an interim 

rule amending the Federal Acquisition 

Regulation (FAR) to implement Section 

844 of the National Defense 

Authorization Act for Fiscal Year 2008 

‘‘Public Disclosure of Justification and 

Approval Documents for 

Noncompetitive Contracts’’ (FY08 

NDAA). Section 844 of the FY08 NDAA 

stipulates the requirements regarding 

the public availability of justification 

and approval documents after the award 

of Federal contracts, except for 

information exempt from public 

disclosure. 

DATES: Effective Date: February 17, 

2009. 

Applicability Date: This interim rule 

applies to all contracts awarded from a 

6.303–1 justification and approval 

document on or after the effective date. 

Comment Date: Interested parties 

should submit written comments to the 

FAR Secretariat on or before March 16, 


sroberts on PROD1PC70 with RULES
2732 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 

2009 to be considered in the 

formulation of a final rule. 

ADDRESSES: Submit comments 

identified by FAC 2005–30, FAR case 

2008–003, by any of the following 

methods: 

• Regulations.gov: http:// 

www.regulations.gov.Submit comments 

via the Federal eRulemaking portal by 

inputting ‘‘FAR Case 2008–003’’ under 

the heading ‘‘Comment or Submission’’. 

Select the link ‘‘Send a Comment or 

Submission’’ that corresponds with FAR 

Case 2008–003. Follow the instructions 

provided to complete the ‘‘Public 

Comment and Submission Form’’. 

Please include your name, company 

name (if any), and ‘‘FAR Case 2008– 

003’’ on your attached document. 

• Fax: 202–501–4067. 

• Mail: General Services 

Administration, Regulatory Secretariat 

(VPR), 1800 F Street, NW, Room 4035, 

ATTN: Hada Flowers, Washington, DC 

20405. 

Instructions: Please submit comments 

only and cite FAC 2005–30, FAR case 

2008–003, 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. 

Ernest Woodson, Procurement Analyst, 

at (202) 501–3775 for clarification of 

content. Please cite FAC 2005–30, FAR 

case 2008–003. For information 

pertaining to status or publication 

schedules, contact the FAR Secretariat 

at (202) 501–4755. 

SUPPLEMENTARY INFORMATION: 

A. Background 

The National Defense Authorization 

Act for Fiscal Year 2008, Section 844 

‘‘Public Disclosure of Justification and 

Approval Documents for 

Noncompetitive Contracts ’’amends 10 

U.S.C. 2304 and 41 U.S.C. 253 regarding 

procurements made under subsection 

(c) (i.e., other than competitive 

procedures) to require public 

availability of the justification and 

approval documents after contract 

award except for information exempt 

from public disclosure under 5 U.S.C. 

552. The provisions of Section 844 

require the head of an executive agency 

to make certain justification and 

approval documents relating to the use 

of noncompetitive procedures in 

contracting available on the website of 

an agency and through a 

governmentwide website selected by the 

Administrator for Federal Procurement 

Policy within 14 days of contract award. 

In the case of noncompetitive contracts 

awarded on the basis of unusual and 

compelling urgency, the documents 

must be posted within 30 days of 

contract award. The Competition in 

Contracting Act (Public Law 98–369) 

already requires that such justification 

and approval documents be made 

available for public inspection, subject 

to the exemptions from public 

disclosures provided in the Freedom of 

Information Act (5 U.S.C. 552). 

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 rule does not revise or 

change existing regulations pertaining to 

small business concerns seeking 

Government contracts. Therefore, an 

Initial Regulatory Flexibility Analysis 

has not been performed. The Councils 

will consider comments from small 

entities concerning the affected FAR 

Parts 5, 6, and 24 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 

2005–30, FAR case 2008–003), in all 

correspondence. 

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. 3501, 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 

provision of the National Defense 

Authorization Act for Fiscal Year 2008, 

Section 844 was enacted on January 28, 

2008. The Councils believe that the 

interim rule in the FAR will provide 

contracting officers the relevant 

regulatory guidance needed when 

addressing requirements outlined in this 

notice. The rule will also benefit 

industry by increasing transparency and 

accountability in federal contracting. 

This interim rule is applicable to all 

contracts awarded from a 6.303–1 

justification and approval document on 

or after the effective date of this rule. 

However, pursuant to Public Law 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 5, 6, 

and 24 

Government procurement. 

Dated: December 24, 2008 

Edward Loeb, 

Acting Director, Office of Acquisition Policy. 

■ Therefore, DoD, GSA, and NASA 

amend 48 CFR parts 5, 6, and 24 as set 

forth below: 

1. The authority citation for 48 CFR 

parts 5, 6, and 24 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 5—PUBLICIZING CONTRACT 

ACTIONS 

■ 2. Amend section 5.301 by adding 

paragraph (d) to read as follows: 

5.301 General. 

* * * * * 

(d) Justifications for other than full 

and open competition must be posted in 

accordance with 6.305. 

■ 3. Add section 5.406 to read as 

follows: 

5.406 Public disclosure of justification and 

approval documents for noncompetitive 

contracts. 

Justifications for other than full and 

open competition must be posted in 

accordance with 6.305. 

PART 6—COMPETITION 

REQUIREMENTS 

■ 4. Revise section 6.305 to read as 

follows: 

6.305 Availability of the justification. 

(a) Except for paragraph (b) of this 

section, the agency shall make publicly 

available within 14 days after contract 

award the justification required by 

6.303–1 as required by 10 U.S.C. 

2304(f)(4) and 41 U.S.C. 253(f)(4)— 

(1) At the GPE www.fedbizopps.gov; 

and 

(2) On the website of the agency, 

which may provide access to the 

justifications by linking to the GPE. 

(b) In the case of a contract award 

permitted under 6.302–2, the 


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Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 2733 

justification shall be posted within 30 

days after contract award. 

(c) Contracting officers shall carefully 

screen all justifications for contractor 

proprietary data and remove all such 

data, and such references and citations 

as are necessary to protect the 

proprietary data, before making the 

justifications available for public 

inspection. Contracting officers shall 

also be guided by the exemptions to 

disclosure of information contained in 

the Freedom of Information Act (5 

U.S.C. 552) and the prohibitions against 

disclosure in 24.202 in determining 

whether other data should be removed. 

PART 24—PROTECTION OF PRIVACY 

AND FREEDOM OF INFORMATION 

■ 5. Amend section 24.203 by adding 

after the second sentence and at the end 

of paragraph (b) new sentences to read 

as follows: 

24.203 Policy. 

* * * * * 

(b) * * * Other exemptions include 

agency personnel practices, and law 

enforcement. * * * A Freedom of 

Information Act guide and other 

resources are available at the 

Department of Justice website under 

FOIA reference materials: http:// 

www.usdoj.gov/oip. 

[FR Doc. E9–555 Filed 1–14–09; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 1, 7, 18, 28, 32, 33, 43, 

50, and 52 

[FAC 2005–30; FAR Case 2006–023; Item 

V; Docket 2007–0001; Sequence 8] 

RIN 9000–AK75 

Federal Acquisition Regulation; FAR 

Case 2006–023, SAFETY Act: 

Implementation of DHS Regulations 

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 agreed to convert the 

interim rule that published in the 

Federal Register at 72 FR 63027, 

November 7, 2007 to a final rule. The 

final rule amends the Federal 

Acquisition Regulation (FAR) to 

implement the Department of Homeland 

Security (DHS) regulations on the 

SAFETY Act. 

DATES: Effective Date: February 17, 

2009. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Edward N. Chambers, Procurement 

Analyst, at (202) 501–3221 for 

clarification of content. For information 

pertaining to status or publication 

schedules, contact the FAR Secretariat 

at (202) 501–4755. Please cite FAC 

2005–30, FAR case 2006–023. 

SUPPLEMENTARY INFORMATION: 

A. Background 

DoD, GSA, and NASA published an 

interim rule in the Federal Register at 

72 FR 63027, November 7, 2007. Seven 

respondents submitted comments on the 

interim rule. All respondents generally 

supported the concepts of the FAR 

interim rule, but provided suggestions 

to improve clarity and better achieve the 

implementation of the SAFETY Act. 

1. Definitions. 

a. Pre-qualification designation notice 

(50.201 and associated clauses). In the 

definition ‘‘pre-qualification designation 

notice’’ one respondent suggested that 

the word ‘‘successful’’ prior to ‘‘offeror’’ 

be deleted because the interim rule 

allows all offerors to submit streamlined 

SAFETY Act applications, not just the 

successful offeror. 

Response: The Councils have 

accepted this suggestion and the 

definition of ‘‘pre-qualification 

designation notice’’ has been modified 

throughout the final rule. 

b. ‘‘Block designation and ‘‘block 

certification.’’ One respondent was 

concerned that there is no definition of 

the terms ‘‘block designation’’ and block 

certification.’’ 

Response: These definitions were 

embedded within the definition of 

‘‘SAFETY Act designation’’ and 

‘‘SAFETY Act certification.’’ These 

terms are now separately defined, to 

make it easier to locate the definitions. 

2. General (50.203(a)). 

The respondent suggested that 

because SAFETY Act protections extend 

to purchasers and users of technologies 

that the phrase in 50.203(a)(2) be 

amended to reflect this. 

Response: Paragraph (a)(2) of the 

interim rule reads as follows: 

‘‘(2) Provide risk management and 

litigation management protections for sellers 

of QATTs and others in the supply and 

distribution chain.’’ 

Risk management and litigation 

management are addressed in section 

864 and 863 of the SAFETY Act 

respectively, and in 6 CFR 25.5 and 25.7 

of the DHS regulations. The required 

amount of liability insurance purchased 

by the seller must provide protection for 

contractors, subcontractors, suppliers, 

vendors, and customers of the Seller, as 

well as contractors, subcontractors, 

suppliers, and vendors of the customer, 

to the extent of their potential liability 

for involvement in the manufacture, 

qualification, sale, use, or operation of 

the QATT. See Section 864 of the 

SAFETY Act. Accordingly, the phrase, 

‘‘and others in the supply and 

distribution chain,’’ accurately reflects 

this required coverage. Therefore, no 

change has been made to the rule as a 

result of this comment. 

3. Policy (50.204). 

a. Benefits to the Government. The 

respondent thought that because the 

SAFETY Act also benefits the 

Government with respect to its potential 

liability, the requiring activities should 

not only encourage contractors to 

submit SAFETY Act applications, but 

also support these applications. 

Response: The subject of any benefit 

the Government may ultimately enjoy 

with respect to a decreased liability is 

one that cannot be addressed in the 

context of this FAR case. The 

implications are too far reaching and 

would require a thorough analysis of 

many of the Government’s waivers of 

sovereign immunity. However, to the 

extent that one of the criteria for the 

Department of Homeland Security 

(DHS) to determine whether to issue a 

designation is a determination made by 

a Federal, State, or local official that the 

technology is appropriate for 

preventing, detecting, identifying, or 

deterring acts of terrorism or limiting 

the harm such acts might cause, the 

FAR case has been amended to 

specifically reflect this possibility in 

50.204(a) by changing the paragraph to 

read: 

50.204 Policy. 

(a) Agencies should— 

(1) Determine whether the technology to be 

procured is appropriate for SAFETY Act 

protections and, if appropriate, formally relay 

this determination to DHS for purposes of 

supporting contractor application(s) for 

SAFETY Act protections in relation to 

criteria (b)(viii) of 6 CFR 25.4, Designation of 

Qualified Anti-Terrorism Technologies; 

b. Authorities and responsibilities. 

One respondent wanted to clarify that 

determination of whether the SAFETY 

Act is applicable is within the exclusive 

purview and discretion of DHS. The 

respondent therefore recommended that 

the policy at 50.204(a)(1) should be 

revised to replace ‘‘should’’ with ‘‘shall 

consult with DHS to...’’ 


sroberts on PROD1PC70 with RULES