2416 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 

D. 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 prior to 

affording the public an opportunity to 

comment. This interim rule implements 

Section 824 of the National Defense 

Authorization Act for Fiscal Year 2009 

(Pub. L. 110–417). Section 824 amended 

the DoD pilot program that permits the 

use of streamlined procedures in the 

award of contracts and subcontracts that 

follow other transaction agreements, to 

include items developed under research 

projects within the scope of the 

program. The pilot program is intended 

to ease the transition of nontraditional 

defense contractors from the use of 

other transaction agreements to standard 

contracts. Comments received in 

response to this interim rule will be 

considered in the formation of the final 

rule. 

List of Subjects in 48 CFR Part 212 

Government procurement. 

Michele P. Peterson, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR part 212 is 

amended as follows: 

PART 212—ACQUISITION OF 

COMMERCIAL ITEMS 

■ 1. The authority citation for 48 CFR 

part 212 continues to read as follows: 

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

Chapter 1. 

■ 2. Section 212.7002–1 is amended by 

revising paragraphs (a)(2) and (4) to read 

as follows: 

212.7002–1 Contracts under the program. 

(a) * * * 

(2) Is a follow-on contract for the 

production of an item or process begun 

as a prototype project under an other 

transaction agreement or as a research 

project carried out in accordance with 

10 U.S.C. 2371; 

* * * * * 

(4) Is awarded on or before September 

30, 2010; and 

* * * * * 

■ 3. Section 212.7002–2 is amended by 

revising paragraphs (a)(1) and (3) to read 

as follows: 

212.7002–2 Subcontracts under the 

program. 

(a) * * * 

(1) Is for the production of an item or 

process begun as a prototype project 

under an other transaction agreement or 

as a research project carried out in 

accordance with 10 U.S.C. 2371; 

* * * * * 

(3) Is awarded on or before September 

30, 2010; 

* * * * * 

[FR Doc. E9–667 Filed 1–14–09; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 216 

RIN 0750–AG14 

Defense Federal Acquisition 

Regulation Supplement; Delegation of 

Authority for Single Award Task or 

Delivery Order Contracts (DFARS Case 

2008–D017) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD has issued a final rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to address Federal Acquisition 

Regulation provisions that permit the 

award of a single source task or delivery 

order contract exceeding $100 million, 

if the head of the agency determines it 

is necessary in the public interest. The 

DFARS rule specifies that the authority 

to make such a determination may not 

be delegated below the level of the 

senior procurement executive. 

DATES: Effective Date: January 15, 2009. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Michael Benavides, Defense Acquisition 

Regulations System, OUSD (AT&L) 

DPAP (DARS), IMD 3D139, 3062 

Defense Pentagon, Washington, DC 

20301–3062. Telephone 703–602–1302; 

facsimile 703–602–7887. Please cite 

DFARS Case 2008–D017. 

SUPPLEMENTARY INFORMATION: 

A. Background 

An interim rule amending the Federal 

Acquisition Regulation (FAR) was 

published at 73 FR 54008 on September 

17, 2008, to implement Section 843 of 

the National Defense Authorization Act 

for Fiscal Year 2008 (Pub. L. 110–181). 

Section 843 prohibits the award of a 

task or delivery order contract in an 

amount exceeding $100 million to a 

single source unless the head of the 

agency determines that: the task or 

delivery orders expected under the 

contract are so integrally related that 

only a single source can reasonably 

perform the work; the contract provides 

only for firm-fixed-price task or delivery 

orders; only one source is qualified and 

capable of performing the work at a 

reasonable price to the Government; or 

it is necessary in the public interest to 

award the contract to a single source 

due to exceptional circumstances. With 

regard to the delegation of authority 

provision at FAR 1.108(b), this DFARS 

rule specifies that the head of the 

agency may not delegate the authority to 

make a single source public interest 

determination below the level of the 

senior procurement executive. The rule 

also requires that a copy of any 

determination authorizing the award of 

a single source task or delivery order 

contract be submitted to the Deputy 

Director, Defense Procurement (Contract 

Policy and International Contracting). 

This rule was not subject to Office of 

Management and Budget review under 

Executive Order 12866, dated 

September 30, 1993. 

B. Regulatory Flexibility Act 

This rule will not have a significant 

cost or administrative impact on 

contractors or offerors, or a significant 

effect beyond the internal operating 

procedures of DoD. Therefore, 

publication for public comment under 

41 U.S.C. 418b is not required. 

However, DoD will consider comments 

from small entities concerning the 

affected DFARS subpart in accordance 

with 5 U.S.C. 610. Such comments 

should cite DFARS Case 2008–D017. 

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 216 

Government procurement. 

Michele P. Peterson, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR part 216 is 

amended as follows: 

PART 216—TYPES OF CONTRACTS 

■ 1. The authority citation for 48 CFR 

part 216 continues to read as follows: 

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

Chapter 1. 

■ 2. Section 216.504 is added to read as 

follows: 

216.504 Indefinite-quantity contracts. 

(c)(1)(ii)(D) Limitation on single 

award contracts. 

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Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 2417 

(1) The authority to make the 

determination authorized in FAR 

16.504(c)(1)(ii)(D)(1)(iv) shall not be 

delegated below the level of the senior 

procurement executive. 

(3) A copy of any determination made 

in accordance with FAR 

16.504(c)(1)(ii)(D) shall be submitted to: 

Deputy Director, Defense Procurement 

(Contract Policy and International 

Contracting), OUSD (AT&L) DPAP 

(CPIC), 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

[FR Doc. E9–673 Filed 1–14–09; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 225, 236, and 252 

RIN 0750–AG16 

Defense Federal Acquisition 

Regulation Supplement; Steel for 

Military Construction Projects (DFARS 

Case 2008–D038) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Interim rule with request for 

comments. 

SUMMARY: DoD has issued an interim 

rule amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement Section 108 of 

the Military Construction and Veterans 

Affairs Appropriations Act, 2009. 

Section 108 requires that American steel 

producers, fabricators, and 

manufacturers be given the opportunity 

to compete for contracts and 

subcontracts for the acquisition of steel 

for use in military construction projects 

or activities. 

DATES: Effective date: January 15, 2009. 

Comment date: Comments on the 

interim rule should be submitted in 

writing to the address shown below on 

or before March 16, 2009, to be 

considered in the formation of the final 

rule. 

ADDRESSES: You may submit comments, 

identified by DFARS Case 2008–D038, 

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 2008–D038 in the subject 

line of the message. 

Æ Fax: 703–602–7887. 

Æ Mail: Defense Acquisition 

Regulations System, Attn: Ms. Amy 

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

IMD 3D139, 3062 Defense Pentagon, 

Washington, DC 20301–3062. 

Æ Hand Delivery/Courier: Defense 

Acquisition Regulations System, Crystal 

Square 4, Suite 200A, 241 18th Street, 

Arlington, VA 22202–3402. 

Comments received generally will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Amy Williams, 703–602–0328. 

SUPPLEMENTARY INFORMATION: 

A. Background 

Section 108 of the Military 

Construction and Veterans Affairs 

Appropriations Act, 2009 (Pub. L. 110– 

329, Division E) prohibits the use of 

funds appropriated in Title I of that Act 

for the procurement of steel for any 

military construction project or activity 

for which American steel producers, 

fabricators, or manufacturers have been 

denied the opportunity to compete. This 

interim rule adds DFARS policy and a 

contract clause to implement the 

statutory prohibition. 

This rule was not subject to Office of 

Management and Budget review under 

Executive Order 12866, dated 

September 30, 1993. 

B. Regulatory Flexibility Act 

DoD has prepared an initial regulatory 

flexibility analysis consistent with 5 

U.S.C. 603. A copy of the analysis may 

be obtained from the point of contact 

specified herein. The analysis is 

summarized as follows: 

This interim rule implements Section 

108 of the Military Construction and 

Veterans Affairs Appropriations Act, 

2009. The objective of the rule is to 

ensure that American steel producers, 

fabricators, and manufacturers are given 

the opportunity to compete for contracts 

and subcontracts for the acquisition of 

steel for use in military construction 

projects and activities. Existing Buy 

American Act and Balance of Payments 

Program requirements, implemented in 

FAR Subpart 25.2 and DFARS Subpart 

225.75 respectively, already provide for 

DoD acquisition of domestic 

construction materials, including steel. 

However, this DFARS rule will prohibit 

use of the exceptions to Buy American 

Act/Balance of Program requirements 

otherwise permitted by FAR/DFARS, 

with regard to the acquisition of steel, 

unless American steel producers, 

fabricators, and manufacturers are first 

provided the opportunity to compete. 

The rule is expected to benefit 

American steel producers, fabricators, 

and manufacturers by ensuring they are 

provided an opportunity to compete for 

contracts and subcontracts for the 

acquisition of steel for use in military 

construction projects and activities. 

DoD invites comments from small 

businesses and other interested parties. 

DoD also will consider comments from 

small entities concerning the affected 

DFARS subparts in accordance with 5 

U.S.C. 610. Such comments should be 

submitted separately and should cite 

DFARS Case 2008–D038. 

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. 

D. 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 prior to 

affording the public an opportunity to 

comment. This interim rule implements 

Section 108 of the Military Construction 

and Veterans Affairs Appropriations 

Act, 2009 (Pub. L. 110–329, Division E). 

Section 108 establishes a prohibition on 

the expenditure of funds for the 

procurement of steel for any military 

construction project or activity, unless 

American steel producers, fabricators, 

and manufacturers have been provided 

an opportunity to compete. Comments 

received in response to this interim rule 

will be considered in the formation of 

the final rule. 

List of Subjects in 48 CFR Parts 225, 

236, and 252 

Government procurement. 

Michele P. Peterson, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR parts 225, 236, and 

252 are amended as follows: 

■ 1. The authority citation for 48 CFR 

parts 225, 236, and 252 continues to 

read as follows: 

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

chapter 1. 

PART 225—FOREIGN ACQUISITION 

■ 2. Section 225.7014 is revised to read 

as follows: 

225.7014 Restrictions on military 

construction. 

(a) For restriction on award of military 

construction contracts to be performed 

in the United States outlying areas in 

the Pacific and on Kwajalein Atoll, or in 

mstockstill on PROD1PC66 with RULES