Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 2407 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 202 and 218 

RIN 0750–AG19 

Defense Federal Acquisition 

Regulation Supplement; Contract 

Actions Supporting Contingency 

Operations or Facilitating Defense 

Against or Recovery From Nuclear, 

Biological, Chemical, or Radiological 

Attack (DFARS Case 2008–D026) 

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 determination 

requirements with regard to the use of 

emergency acquisition flexibilities for 

contract actions supporting contingency 

operations or facilitating defense against 

or recovery from nuclear, biological, 

chemical, or radiological attack. The 

rule lowers the DoD level of approval 

for such determinations. 

DATES: Effective Date: January 15, 2009. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Angie Sawyer, Defense Acquisition 

Regulations System, 

OUSD(AT&L)DPAP(DARS), IMD 3D139, 

3062 Defense Pentagon, Washington, DC 

20301–3062. Telephone 703–602–8384; 

facsimile 703–602–7887. Please cite 

DFARS Case 2008–D026. 

SUPPLEMENTARY INFORMATION: 

A. Background 

Subpart 18.2 of the Federal 

Acquisition Regulation (FAR) provides 

for certain flexibilities in the execution 

of contracts for supplies and services 

that are determined by the head of the 

agency to be used to support a 

contingency operation or to facilitate 

defense against or recovery from 

nuclear, biological, chemical, or 

radiological attack. In accordance with 

the delegation of authority provision at 

FAR 1.108(b), this final rule adds a new 

section at DFARS 218.270 to authorize 

heads of DoD contracting activities to 

make the determination addressed in 

FAR Subpart 18.2. The rule will 

facilitate the use of streamlined 

acquisition procedures in emergency 

situations. 

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 subparts in accordance 

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

should cite DFARS Case 2008–D026. 

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 Parts 202 and 

218 

Government procurement. 

Michele P. Peterson, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR parts 202 and 218 

are amended as follows: 

■ 1. The authority citation for 48 CFR 

parts 202 and 218 continues to read as 

follows: 

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

Chapter 1. 

PART 202—DEFINITIONS OF WORDS 

AND TERMS 

202.101 [Amended] 

■ 2. Section 202.101 is amended in the 

definition of ‘‘Head of the agency’’ by 

adding at the end ‘‘(For emergency 

acquisition flexibilities, see 218.270.)’’. 

PART 218—EMERGENCY 

ACQUISITIONS 

■ 3. Section 218.270 is added to read as 

follows: 

218.270 Head of contracting activity 

determinations. 

For contract actions supporting 

contingency operations or facilitating 

defense against or recovery from 

nuclear, biological, chemical, or 

radiological attack, the term ‘‘head of 

the agency’’ is replaced with ‘‘head of 

the contracting activity,’’ as defined in 

FAR 2.101, in the following locations: 

(a) FAR 2.101: 

(1) Definition of ‘‘Micro-purchase 

threshold,’’ paragraph (3). 

(2) Definition of ‘‘Simplified 

acquisition threshold.’’ 

(b) FAR 12.102(f). 

(c) FAR 13.201(g). 

(d) FAR 13.500(e). 

(e) FAR 18.2. 

[FR Doc. E9–676 Filed 1–14–09; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 203 

RIN 0750–AG21 

Defense Federal Acquisition 

Regulation Supplement; Separation of 

Senior Roles in Source Selection 

(DFARS Case 2008–D037) 

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 requirements for the 

separation of functions in source 

selection. The rule requires the military 

departments and defense agencies to 

certify every two years that no senior 

leader has performed multiple roles in 

the acquisition of a major weapon 

system or major service. 

DATES: Effective Date: January 15, 2009. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Angie Sawyer, Defense Acquisition 

Regulations System, 

OUSD(AT&L)DPAP(DARS), IMD 3C132, 

3062 Defense Pentagon, Washington, DC 

20301–3062. Telephone 703–602–8384; 

facsimile 703–602–7887. Please cite 

DFARS Case 2008–D037. 

SUPPLEMENTARY INFORMATION: 

A. Background 

DFARS 203.170(a) prohibits DoD 

senior leaders from performing multiple 

roles in major source selections. To 

reinforce this policy, this final rule adds 

a requirement for DoD departments and 

agencies to certify every two years that 

no senior leader has performed multiple 

roles in the acquisition of a major 

weapon system or major service. 

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 

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2408 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 

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–D037. 

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 203 

Government procurement. 

Michele P. Peterson, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR part 203 is 

amended as follows: 

PART 203—IMPROPER BUSINESS 

PRACTICES AND PERSONAL 

CONFLICTS OF INTEREST 

■ 1. The authority citation for 48 CFR 

part 203 continues to read as follows: 

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

Chapter 1. 

■ 2. Section 203.170 is amended by 

revising paragraph (a) to read as follows: 

203.170 Business practices. 

* * * * * 

(a) Senior leaders shall not perform 

multiple roles in source selection for a 

major weapon system or major service 

acquisition. Departments and agencies 

shall certify every 2 years that no senior 

leader has performed multiple roles in 

the acquisition of a major weapon 

system or major service. Completed 

certifications shall be forwarded to the 

Director, Defense Procurement, in 

accordance with the procedures at PGI 

203.170. 

* * * * * 

[FR Doc. E9–666 Filed 1–14–09; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 203, 209, and 252 

RIN 0750–AG07 

Defense Federal Acquisition 

Regulation Supplement; Senior DoD 

Officials Seeking Employment With 

Defense Contractors (DFARS Case 

2008–D007) 

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 847 of 

the National Defense Authorization Act 

for Fiscal Year 2008. Section 847 

addresses requirements for senior DoD 

officials to obtain a post-employment 

ethics opinion before accepting a 

position from a DoD contractor within 

two years after leaving DoD service. 

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–D007, 

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–D007 in the subject 

line of the message. 

Æ Fax: 703–602–7887. 

Æ Mail: Defense Acquisition 

Regulations System, Attn: Ms. Angie 

Sawyer, 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. 

Angie Sawyer, 703–602–8484. 

SUPPLEMENTARY INFORMATION: 

A. Background 

This interim rule implements Section 

847 of the National Defense 

Authorization Act for Fiscal Year 2008 

(Pub. L. 110–181). Section 847 requires 

that a DoD official, who has participated 

personally and substantially in a DoD 

acquisition exceeding $10 million or 

who has held a key acquisition position, 

must obtain a written opinion from a 

DoD ethics counselor regarding the 

activities that the official may undertake 

on behalf of a DoD contractor within 

two years after leaving DoD service. In 

addition, Section 847 prohibits a DoD 

contractor from providing compensation 

to such a DoD official without first 

determining that the official has 

received or appropriately requested a 

post-employment ethics opinion. 

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 does not expect this 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 the requirement to verify that a 

prospective employee has received or 

requested the appropriate DoD ethics 

opinion should involve minimal effort 

on the part of a contractor. Therefore, 

DoD has not performed an initial 

regulatory flexibility analysis. 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–D007. 

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 847 of the National Defense 

Authorization Act for Fiscal Year 2008 

(Pub. L. 110–181). Section 847 requires 

that DoD officials that have participated 

personally and substantially in a DoD 

acquisition exceeding $10 million, or 

that have held certain key acquisition 

positions, must obtain a written opinion 

from the appropriate DoD ethics 

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