Federal Register / Vol. 74, No. 134 / Wednesday, July 15, 2009 / Rules and Regulations 34263 

sent to Congress and the Government 

Accountability Office pursuant to the 

Congressional Review Act, see 5 U.S.C. 

801(a)(1)(A). 

List of Subjects in 47 CFR Part 73 

Television, Television broadcasting. 

■ For the reasons discussed in the 

preamble, the Federal Communications 

Commission amends 47 CFR Part 73 as 

follows: 

PART 73—RADIO BROADCAST 

SERVICES 

■ 1. The authority citation for part 73 

continues to read as follows: 

Authority: 47 U.S.C. 154, 303, 334, 336. 

§ 73.622 [Amended] 

■ 2. Section 73.622(i), the PostTransition Table of DTV Allotments 

under Minnesota, is amended by adding 

DTV channel *23 and removing DTV 

channel *26 at St. Paul. 

Federal Communications Commission. 

Clay C. Pendarvis, 

Associate Chief, Video Division, Media 

Bureau. 

[FR Doc. E9–16871 Filed 7–14–09; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 202, 212, and 234 

RIN 0750–AG23 

Defense Federal Acquisition 

Regulation Supplement; Acquisition of 

Commercial Items (DFARS Case 2008– 

D011) 

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 Sections 805 and 

815 of the National Defense 

Authorization Act for Fiscal Year 2008. 

The rule specifies the conditions under 

which a time-and-materials or laborhour contract may be used for the 

acquisition of commercial items. In 

addition, the rule addresses the 

conditions under which major weapon 

systems and subsystems may be treated 

as commercial items. 

DATES: Effective date: July 15, 2009. 

Comment date: Comments on the 

interim rule should be submitted in 

writing to the address shown below on 

or before September 14, 2009, to be 

considered in the formation of the final 

rule. 

ADDRESSES: You may submit comments, 

identified by DFARS Case 2008–D011, 

using any of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• E-mail: dfars@osd.mil. Include 

DFARS Case 2008–D011 in the subject 

line of the message. 

• Fax: 703–602–7887. 

• Mail: Defense Acquisition 

Regulations System, Attn: Ms. Angie 

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

IMD 3D139, 3062 Defense Pentagon, 

Washington, DC 20301–3062. 

• 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, 703–602–8384. 

SUPPLEMENTARY INFORMATION: 

A. Background 

This interim rule implements 

Sections 805 and 815 of the National 

Defense Authorization Act for Fiscal 

Year 2008 (Pub. L. 110–181). Section 

805 specifies the types of commercial 

item acquisitions for which time-andmaterials and labor-hour contracts may 

be used. Section 815 addresses the 

situations under which major weapon 

systems, subsystems of major weapon 

systems, and components and spare 

parts for major weapon systems may be 

acquired using procedures established 

for the acquisition of commercial items. 

In addition, Section 815 requires DoD to 

modify its regulations to clarify that the 

terms ‘‘general public’’ and ‘‘nongovernmental entities,’’ with regard to 

sales of commercial items, do not 

include the Federal Government or a 

State, local, or foreign government. 

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 rule reinforces existing 

requirements for the appropriate use of 

commercial acquisition procedures and 

for ensuring that contract prices are fair 

and reasonable. 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–D011. 

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 Sections 805 and 815 

of the National Defense Authorization 

Act for Fiscal Year 2008 (Pub. L. 110– 

181). Section 805 requires DoD to 

modify its acquisition regulations to 

ensure that time-and-materials and 

labor-hour contracts are used for 

commercial items only under certain 

specified circumstances. Section 815 

limits the conditions under which major 

weapon systems, subsystems of major 

weapon systems, and components and 

spare parts of major weapon systems 

may be treated as commercial items and 

acquired under procedures established 

for the acquisition of commercial items. 

In addition, Section 815 requires DoD to 

modify its regulations on the acquisition 

of commercial items to clarify that the 

terms ‘‘general public’’ and ‘‘nongovernmental entities’’ do not include 

the Federal Government or a State, 

local, or foreign government. 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 202, 

212, and 234 

Government procurement. 

Michele P. Peterson, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR Parts 202, 212, and 

234 are amended as follows: 

■ 1. The authority citation for 48 CFR 

Parts 202, 212, and 234 continues to 

read as follows: 


srobinson on DSKHWCL6B1PROD with RULES
34264 Federal Register / Vol. 74, No. 134 / Wednesday, July 15, 2009 / Rules and Regulations 

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

Chapter 1. 

PART 202—DEFINITIONS OF WORDS 

AND TERMS 

■ 2. Section 202.101 is amended by 

adding a definition of General public 

and non-governmental entities in 

alphabetical order to read as follows: 

202.101 Definitions. 

* * * * * 

General public and non-governmental 

entities, as used in the definition of 

commercial item at FAR 2.101, do not 

include the Federal Government or a 

State, local, or foreign government (Pub. 

L. 110–181, Section 815(b)). 

* * * * * 

PART 212—ACQUISITION OF 

COMMERCIAL ITEMS 

■ 3. Section 212.207 is added to read as 

follows: 

212.207 Contract type. 

(b) In accordance with Section 805 of 

the National Defense Authorization Act 

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

use of time-and-materials and laborhour contracts for the acquisition of 

commercial items is authorized only for 

the following: 

(i) Services acquired for support of a 

commercial item. 

(ii) Emergency repair services. 

(iii) Any other commercial services 

only to the extent that the head of the 

agency concerned approves a written 

determination by the contracting officer 

that— 

(A) The services to be acquired are 

commercial; 

(B) If the services to be acquired are 

subject to FAR 15.403–1(c)(3)(ii), the 

offeror of the services has submitted 

sufficient information in accordance 

with that subsection; 

(C) Such services are commonly sold 

to the general public through use of 

time-and-materials or labor-hour 

contracts; and 

(D) The use of a time-and-materials or 

labor-hour contract type is in the best 

interest of the Government. 

PART 234—MAJOR SYSTEM 

ACQUISITION 

■ 4. Section 234.7002 is revised to read 

as follows: 

234.7002 Policy. 

(a) Major weapon systems. (1) A DoD 

major weapon system may be treated as 

a commercial item, or acquired under 

procedures established for the 

acquisition of commercial items, only 

if— 

(i) The Secretary of Defense 

determines that— 

(A) The major weapon system is a 

commercial item as defined in FAR 

2.101; and 

(B) Such treatment is necessary to 

meet national security objectives; 

(ii) The offeror has submitted 

sufficient information to evaluate, 

through price analysis, the 

reasonableness of the price for such a 

system; and 

(iii) The congressional defense 

committees are notified at least 30 days 

before such treatment or acquisition 

occurs. Follow the procedures at PGI 

234.7002. 

(2) The authority of the Secretary of 

Defense to make a determination under 

paragraph (a)(1) of this section may not 

be delegated below the level of the 

Deputy Secretary of Defense. 

(b) Subsystems. A subsystem of a 

major weapon system (other than a 

commercially available off-the-shelf 

item) may be treated as a commercial 

item and acquired under procedures 

established for the acquisition of 

commercial items only if— 

(1) The subsystem is intended for a 

major weapon system that is being 

acquired, or has been acquired, under 

procedures established for the 

acquisition of commercial items in 

accordance with paragraph (a) of this 

section; or 

(2) The contracting officer determines 

in writing that— 

(i) The subsystem is a commercial 

item; and 

(ii) The offeror has submitted 

sufficient information to evaluate, 

through price analysis, the 

reasonableness of the price for the 

subsystem. 

(c) Components and spare parts. (1) A 

component or spare part for a major 

weapon system (other than a 

commercially available off-the-shelf 

item) may be treated as a commercial 

item only if— 

(i) The component or spare part is 

intended for— 

(A) A major weapon system that is 

being acquired, or has been acquired, 

under procedures established for the 

acquisition of commercial items in 

accordance with paragraph (a) of this 

section; or 

(B) A subsystem of a major weapon 

system that is being acquired, or has 

been acquired, under procedures 

established for the acquisition of 

commercial items in accordance with 

paragraph (b) of this section; or 

(ii) The contracting officer determines 

in writing that— 

(A) The component or spare part is a 

commercial item; and 

(B) The offeror has submitted 

sufficient information to evaluate, 

through price analysis, the 

reasonableness of the price for the 

component or spare part. 

(2) This paragraph (c) shall apply only 

to components and spare parts that are 

acquired by DoD through a prime 

contract or a modification to a prime 

contract, or through a subcontract under 

a prime contract or modification to a 

prime contract on which the prime 

contractor adds no, or negligible, value. 

(d) Relevant information. To the 

extent necessary to make a 

determination under paragraph (a)(1)(ii), 

(b)(2), or (c)(1)(ii) of this section, the 

contracting officer may request the 

offeror to submit— 

(1) Prices paid for the same or similar 

commercial items under comparable 

terms and conditions by both 

Government and commercial customers; 

and 

(2) Other relevant information 

regarding the basis for price or cost, 

including information on labor costs, 

material costs, and overhead rates, if the 

contracting officer determines that the 

information described in paragraph 

(d)(1) of this section is not sufficient to 

determine price reasonableness. 

[FR Doc. E9–16674 Filed 7–14–09; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 204, 219, 225, and 252 

Defense Federal Acquisition 

Regulation Supplement; Technical 

Amendments 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is making technical 

amendments to the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to update references within the 

DFARS text. 

DATES: Effective Date: July 15, 2009. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Michele Peterson, Defense Acquisition 

Regulations System, OUSD (AT&L) 

DPAP (DARS), IMD 3D139, 3062 

Defense Pentagon, Washington, DC 

20301–3062. Telephone 703–602–0311; 

facsimile 703–602–7887. 

SUPPLEMENTARY INFORMATION: This final 

rule amends DFARS text as follows: 

• 204.7202–2, 219.708, 219.1204, and 

225.1101. Updates cross-references. 


srobinson on DSKHWCL6B1PROD with RULES