Federal Register / Vol. 72, No. 210 / Wednesday, October 31, 2007 / Proposed Rules 61603 

therefore, likely overstates the number 

of small entities that might be affected 

by our action, because the revenue 

figure on which it is based does not 

include or aggregate revenues from 

affiliated companies. The Commission 

has estimated the number of licensed 

NCE television stations to be 380. The 

Commission does not compile and 

otherwise does not have access to 

information on the revenue of NCE 

stations that would permit it to 

determine how many such stations 

would qualify as small entities. 

60. In addition, an element of the 

definition of ‘‘small business’’ is that the 

entity not be dominant in its field of 

operation. We are unable at this time to 

define or quantify the criteria that 

would establish whether a specific 

television station is dominant in its field 

of operation. Accordingly, the estimate 

of small businesses to which rules may 

apply do not exclude any television 

station from the definition of a small 

business on this basis and are therefore 

over-inclusive to that extent. Also, as 

noted, an additional element of the 

definition of ‘‘small business’’ is that the 

entity must be independently owned 

and operated. We note that it is difficult 

at times to assess these criteria in the 

context of media entities and our 

estimates of small businesses to which 

they apply may be over-inclusive to this 

extent. 

Description of Proposed Reporting, 

Recordkeeping and Other Compliance 

Requirements 

61. The rules ultimately adopted as a 

result of this NPRM may contain new or 

modified information collections. We 

anticipate that none of the changes 

would result in an increase to the 

reporting and recordkeeping 

requirements of small entities. We invite 

small entities to comment in response to 

the NPRM. 

Steps Taken to Minimize Significant 

Impact on Small Entities and Significant 

Alternatives Considered 

62. The RFA requires an agency to 

describe any significant alternatives that 

it has considered in proposing 

regulatory approaches, which may 

include the following four alternatives 

(among others): (1) The establishment of 

differing compliance or reporting 

requirements or timetables that take into 

account the resources available to small 

entities; (2) the clarification, 

consolidation, or simplification of 

compliance or reporting requirements 

under the rule for small entities; (3) the 

use of performance, rather than design, 

standards; and (4) an exemption from 

coverage of the rule, or any part thereof, 

for small entities. First, regarding the 

establishment of a procedure that would 

shorten the five-year term of the 

extension of the exclusive contract 

prohibition, the Commission may 

choose to establish such a procedure or, 

in the alternative, it may not choose to 

do so. Second, regarding the extension 

of the program access rules to 

terrestrially delivered cable-affiliated 

programmers, the Commission may 

choose to extend these rules to 

terrestrially delivered cable-affiliated 

programmers or, in the alternative, it 

may choose not to extend these rules to 

such programmers. Third, regarding 

expansion of the exclusive contract 

prohibition to apply to non-cableaffiliated programming that is affiliated 

with a different MVPD, principally a 

DBS provider, the Commission may 

choose to extend the exclusive contract 

prohibition to apply to such non-cableaffiliated programming or, in the 

alternative, it may choose not to extend 

the exclusive contract prohibition to 

such programming. Fourth, regarding 

the practice of programmers to engage in 

tying of desired with undesired 

programming, the Commission may 

choose to preclude all such tying 

arrangements or, in the alternative, it 

may choose not to preclude any such 

arrangements or, in the alternative, it 

may choose to preclude only certain 

tying arrangements. Fifth, with respect 

to concerns raised by small and rural 

MVPDs regarding conditions imposed 

by programmers for access to content, 

the Commission may choose to take 

action to address some or all of these 

concerns or, in the alternative, it may 

choose not to take action to address 

these concerns. Sixth, regarding the 

establishment of a process whereby a 

program access complainant may seek a 

temporary stay of any proposed changes 

to its existing programming contract 

pending resolution of the complaint, the 

Commission may establish such a 

process or, in the alternative, it may 

choose not to establish such a process. 

Seventh, regarding the requirement that 

parties submit to the Commission, when 

requested, ‘‘final offer’’ proposals as part 

of the remedy phase of the complaint 

process, the Commission may adopt 

such a requirement or, in the 

alternative, it may choose not to adopt 

such a requirement. We invite comment 

on the options the Commission is 

considering, or alternatives thereto as 

referenced above, and on any other 

alternatives commenters may wish to 

propose for the purpose of minimizing 

significant economic impact on smaller 

entities. 

Federal Rules Which Duplicate, 

Overlap, or Conflict With the 

Commission’s Proposals 

63. None. 

F. Additional Information 

64. For additional information on this 

proceeding, contact Steven Broeckaert, 

Steven.Broeckaert@fcc.gov; David 

Konczal, David.Konczal@fcc.gov; or 

Katie Costello, Katie.Costello@fcc.gov; of 

the Media Bureau, Policy Division, (202) 

418–2120. 

VIII. Ordering Clauses 

65. Accordingly, it is ordered, 

pursuant to the authority found in 

sections 4(i), 303(r), and 628 of the 

Communications Act of 1934, as 

amended, 47 U.S.C. 154(i), 303(r), and 

548, this Notice of Proposed 

Rulemaking Is Adopted. 

66. It is further ordered that the 

Commission’s Consumer and 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

this Notice of Proposed Rulemaking, 

including the Initial Regulatory 

Flexibility Analysis, to the Chief 

Counsel for Advocacy of the Small 

Business Administration. 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

[FR Doc. 07–5388 Filed 10–30–07; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 7, 8, 12, and 39 

[FAR Case 2005–014; Docket 2007-0001; 

Sequence 9] 

RIN 9000–AK83 

Federal Acquisition Regulation; FAR 

Case 2005–014, SmartBUY 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Proposed rule. 

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council 

(Councils) are proposing to amend the 

Federal Acquisition Regulation (FAR) to 

implement the Governmentwide 

Enterprise Software Licensing Program, 


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61604 Federal Register / Vol. 72, No. 210 / Wednesday, October 31, 2007 / Proposed Rules 

also known as SmartBUY. This action is 

necessary to comply with Office of 

Management and Budget Memorandum 

M–04–08, Maximizing Use of SmartBuy 

and Avoiding Duplication of Agency 

Activities with the President’s 24 E-Gov 

Initiatives, dated February 25, 2004. By 

leveraging the Federal Government 

Enterprise Software Licensing Program, 

the Government will achieve the 

maximum cost savings and favorable 

terms and conditions for acquiring 

software and software maintenance. 

This rule impacts contracting officers 

and other acquisition officials 

responsible for reviewing the terms, 

conditions, and prices for the 

acquisition of commercial software and 

software maintenance. 

DATES: Interested parties should submit 

written comments to the FAR 

Secretariat on or before December 31, 

2007 to be considered in the 

formulation of a final rule. 

ADDRESSES: Submit comments 

identified by FAR case 2005–014, by 

any of the following methods: 

Federal eRulemaking Portal: http:// 

www.regulations.gov. 

• To search for any document, first 

select under ‘‘Step 1,’’ ‘‘Documents with 

an Open Comment Period’’ and select 

under ‘‘Optional Step 2,’’ ‘‘Federal 

Acquisition Regulation’’ as the agency 

of choice. Under ‘‘Optional Step 3,’’

select ‘‘Proposed Rules’’. Under 

‘‘Optional Step 4,’’ from the drop down 

list, select ‘‘Document Title’’ and type 

the FAR case number ‘‘2005-014’’. Click 

the ‘‘Submit’’ button. Please include 

your name and company name (if any) 

inside the document. You may also 

search for any document by clicking on 

the ‘‘Search for Documents’’ tab at the 

top of the screen. Select from the agency 

field ‘‘Federal Acquisition Regulation’’, 

and type ‘‘2005-014’’ in the ‘‘Document 

Title’’ field. Select the ‘‘Submit’’ button. 

• Fax: 202–501–4067. 

• Mail: General Services 

Administration, Regulatory Secretariat 

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

ATTN: Laurieann Duarte, Washington, 

DC 20405. 

Instructions: Please submit comments 

only and cite FAR case 2005–014, 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 Ms. 

Jeritta Parnell, Procurement Analyst, at 

(202) 501–4082 for clarification of 

content. For information pertaining to 

status or publication schedules, contact 

the FAR Secretariat at (202) 501–4755. 

Please cite FAR case 2005–014. 

SUPPLEMENTARY INFORMATION: 

A. Background 

Pursuant to Section 5112 of the 

Clinger-Cohen Act of 1996 (40 U.S.C. 

11302), the Office of Management and 

Budget (OMB) is responsible for 

improving the acquisition and use of 

information technology (IT) by the 

Federal Government and designating 

Executive Agents for Governmentwide 

acquisitions of IT. To ensure that the 

Federal Government is maximizing its 

buying power to achieve the cost 

savings and favorable terms and 

conditions for commercial software, 

OMB created the SmartBUY initiative. 

GSA is designated as the Executive 

Agent for the SmartBUY initiative. 

This rule proposes to amend the FAR 

to ensure SmartBUY is considered 

during acquisition planning, and 

prescribes the policies and procedures 

for using SmartBUY enterprise 

agreements. 

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 Councils do not expect this 

proposed 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 

rule applies to commercial agreements 

under the SmartBUY Program that are 

based on existing negotiated contracts. 

These agreements direct contracting 

officers to consider established 

contracting vehicles. Small businesses 

have participated in the SmartBuy 

Program to date. In fact, three of the six 

existing agreements are with small 

businesses. 

An Initial Regulatory Flexibility 

Analysis has, therefore, not been 

performed. We invite comments from 

small businesses and other interested 

parties. The Councils will consider 

comments from small entities 

concerning the affected FAR Part 7, 8, 

12, and 39 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. (FAR case 2005–014), 

in correspondence. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the proposed 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. 

List of Subjects in 48 CFR Parts 7, 8, 12, 

and 39 

Government procurement. 

Dated: October 22, 2007. 

Al Matera, 

Director, Office of Acquisition Policy. 

Therefore, DoD, GSA, and NASA 

propose amending 48 CFR parts 7, 8, 12, 

and 39 as set forth below: 

1. The authority citation for 48 CFR 

parts 7, 8, 12, and 39 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 7—ACQUISITION PLANNING 

2. Amend section 7.103 by adding 

paragraph (v) to read as follows: 

7.103 Agency-head responsibilities. 

* * * * * 

(v) Ensuring that agency planners 

fulfill requirements for commercial 

software or related services, such as 

software maintenance, in accordance 

with the SmartBUY program (see FAR 

Subpart 8.9). 

3. Amend section 7.105 by adding 

paragraph (b)(4)(ii)(B)(3) to read as 

follows: 

7.105 Contents of written acquisition 

plans. 

* * * * * 

(b) * * * 

(4) * * * 

(ii) * * * 

(B) * * * 

(3) Ordering through a SmartBUY 

agreement leverages Government user 

volume and achieves a substantial price 

discount. 

* * * * * 

PART 8—REQUIRED SOURCES OF 

SUPPLIES AND SERVICES 

4. Add subpart 8.9 to read as follows: 

Subpart 8.9—Acquisition of 

Commercial Software 

Sec. 

8.900 Scope of subpart. 

8.901 Definitions. 

8.902 General. 

8.903 Policy. 

8.904 Acquisition procedures. 

8.905 Approval and Notification. 

8.900 Scope of subpart. 

This subpart prescribes the policies 

and procedures for acquisition of 

commercial software or related services, 

such as software maintenance, through 


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Federal Register / Vol. 72, No. 210 / Wednesday, October 31, 2007 / Proposed Rules 61605 

the Governmentwide Enterprise 

Software Program, also known as 

SmartBUY. 

8.901 Definitions. 

As used in this subpart—

Enterprise software agreement (ESA) 

means an agreement established for 

agencies to use to acquire designated 

commercial software or related services, 

such as software maintenance. 

Software maintenance means 

activities performed and/or services 

provided by the original equipment 

manufacturer (OEM) as standard 

services to keep software functioning to 

the commercial specification, at 

established catalog or market prices, 

e.g., the right to receive and use 

upgraded versions of software, updates, 

and revisions. 

Software product manager means the 

Government official who manages an 

enterprise software agreement. 

8.902 General. 

SmartBUY is a consolidated 

purchasing program for the acquisition 

of commercial software or related 

services, such as software maintenance. 

SmartBUY is designed to provide all 

agencies, regardless of their size, the 

greatest price discounts available to the 

Federal Government. The SmartBUY 

Software Program (see website at http:// 

www.gsa.gov/smartbuy) promotes the 

use of Enterprise Software Agreements 

(ESAs) with contractors, called 

SmartBUY agreements, that allow the 

Government to obtain favorable terms 

and pricing for commercial software or 

related services, such as software 

maintenance. 

8.903 Policy. 

Prior to issuing contracts for 

commercial software or related services, 

such as software maintenance, agencies 

shall review the SmartBUY agreements 

at http://www.gsa.gov/smartbuy or 

http://www.esi.mil. Federal agencies 

shall place an order to fulfill 

requirements for commercial software or 

related services, such as software 

maintenance, when a SmartBUY 

agreement is available and is applicable 

to the agency’s requirement and volume. 

8.904 Acquisition procedures. 

(a) The contracting officer or other 

ordering official must review the terms, 

conditions, and prices using market 

research or other procurement practices 

to determine if commercial software or 

related services, such as software 

maintenance, is available through a 

SmartBUY agreement. 

(b) When the terms, conditions, and 

prices represent a best value to the 

Government, the contracting officer or 

other ordering official shall place an 

order to fulfill the requirement for 

commercial software or related services, 

such as software maintenance, through 

a SmartBUY agreement. 

(c) When an existing SmartBUY 

agreement does not represent the best 

value to the Government, the 

contracting officer or other ordering 

official should allow the contractor an 

opportunity to provide the same or a 

better value under the SmartBUY 

agreement before using alternate 

procurement methods. In such cases, 

the contracting officer or other ordering 

official should notify the SmartBUY 

program office Software Product 

Manager of specific concerns, so that the 

SPM can take action to potentially 

improve an existing SmartBUY 

agreement’s terms, conditions or prices 

through the SmartBUY website. 

(d) When an available SmartBUY 

agreement will not be used, the 

contracting officer or other ordering 

official must comply with the approval 

and notification procedures in 8.905. 

(e) When the required commercial 

software or related services, such as 

software maintenance, is no[0]t covered 

by a SmartBUY agreement, the 

contracting officer may fulfill a 

requirement using other procurement 

methods. 

8.905 Approval and Notification. 

(a) The contracting officer or ordering 

official must get approval from the 

agency Senior Procurement Executive 

and the agency Chief Information 

Officer, or as provided by agency 

procedures, when not using an available 

SmartBUY agreement. The approval 

shall—

(1) Describe the agency’s requirement; 

(2) Explain the reason for not using an 

existing SmartBUY agreement; and 

(3) Describe how the agency will 

satisfy its needs for commercial software 

and negotiate a fair and reasonable 

price. 

(b) The contracting officer or ordering 

official must notify GSA when an 

available SmartBUY agreement is not 

used to acquire commercial software or 

related services, such as software 

maintenance, by sending a copy of the 

approval to GSA at— General Services 

Administration, Deputy Associate 

Administrator, Office of Technology 

Strategy (ME), 1800 F Street, NW, 

Washington, DC 20406; or send via email to SmartBUYwaiver@gsa.gov. 

PART 12—ACQUISITION OF 

COMMERCIAL ITEMS 

5. Amend section 12.212 by adding 

paragraph (c) to read as follows: 

12.212 Computer software. 

* * * * * 

(c) Acquisition officials shall consider 

using SmartBUY Enterprise Software 

Agreements when acquiring commercial 

software or related services, such as 

software maintenance (see FAR Subpart 

8.9). 

PART 39—ACQUISITION OF 

INFORMATION TECHNOLOGY 

6. Amend section 39.101 by revising 

paragraph (b) to read as follows: 

39.101 Policy. 

* * * * * 

(b)(1) In acquiring information 

technology, agencies shall identify their 

requirements pursuant to—

(i) OMB Circular A–130, including 

consideration of security of resources, 

protection of privacy, national security 

and emergency preparedness, 

accommodations for individual with 

disabilities, and energy efficiency; and 

(ii) FAR 8.903 and the availability of 

a SmartBUY Agreement. 

(2) When developing an acquisition 

strategy, contracting officers should 

consider the rapidly changing nature of 

information technology through market 

research (see Part 10) and the 

application of technology refreshment 

techniques. 

* * * * * 

[FR Doc. 07–5405 Filed 10–30–07; 8:45 am] 

BILLING CODE 6820–EP–S 


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