[Federal Register Volume 74, Number 236 (Thursday, December 10, 2009)]
[Rules and Regulations]
[Pages 65598-65599]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-28928]



[[Page 65597]]

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Part II





Department of Defense





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General Services Administration





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National Aeronautics and Space Administration





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48 CFR Chapter 1 and Parts 2, 4, 7, et al.



Federal Acquisition Regulations; Final Rules and Small Entity 
Compliance Guide

  Federal Register / Vol. 74, No. 236 / Thursday, December 10, 2009 / 
Rules and Regulations  

[[Page 65598]]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Chapter 1

[Docket FAR 2009-0001, Sequence 9]


Federal Acquisition Regulation; Federal Acquisition Circular 
2005-38; Introduction

AGENCIES: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Summary presentation of rules.

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SUMMARY: This document summarizes the Federal Acquisition Regulation 
(FAR) rules agreed to by the Civilian Agency Acquisition Council and 
the Defense Acquisition Regulations Council (Councils) in this Federal 
Acquisition Circular (FAC) 2005-38. A companion document, the Small 
Entity Compliance Guide (SECG), follows this FAC. The FAC, including 
the SECG, is available via the Internet at http://www.regulations.gov.

DATES: For effective dates and comment dates, see separate documents, 
which follow.

FOR FURTHER INFORMATION CONTACT: The analyst whose name appears in the 
table below in relation to each FAR case. Please cite FAC 2005-38 and 
the specific FAR case numbers. For information pertaining to status or 
publication schedules, contact the FAR Secretariat at (202) 501-4755.

                                          List of Rules in FAC 2005-38
----------------------------------------------------------------------------------------------------------------
      Item                          Subject                             FAR case                 Analyst
----------------------------------------------------------------------------------------------------------------
I..............  Revocation of Executive Order 13201,           2009-017                 Cundiff.
                  Notification of Employee Rights Concerning
                  Payment of Union Dues or Fees.
II.............  Governmentwide Commercial Purchase Card        2006-026                 Jackson.
                  Restrictions for Treasury Offset Program
                  Debts.
III............  Internet Protocol Version 6 (IPv6)...........  2005-041                 Woodson.
IV.............  Federal Food Donation Act of 2008 (Pub. L.     2008-017                 Jackson.
                  110-247).
V..............  Postretirement Benefits (PRB), FAS 106.......  2006-021                 Chambers.
VI.............  Travel Costs.................................  2006-024                 Chambers.
VII............  Technical Amendments.........................  .......................  .......................
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SUPPLEMENTARY INFORMATION: Summaries for each FAR rule follow. For the 
actual revisions and/or amendments made by these FAR cases, refer to 
the specific item number and subject set forth in the documents 
following these item summaries.
    FAC 2005-38 amends the FAR as specified below:

Item I--Revocation of Executive Order 13201, Notification of Employee 
Rights Concerning Payment of Union Dues or Fees (FAR Case 2009-017)

    This final rule amends the FAR to delete FAR subpart 22.16 and the 
corresponding FAR clause at 52.222-39, Notification of Employee Rights 
Concerning Payment of Union Dues or Fees, which implemented Executive 
Order 13201, of February 17, 2001, of the same title. Executive Order 
13201 required contractors to post a notice informing employees of 
their rights concerning payment of union dues or fees and detailed that 
employees could not be required to join unions or maintain membership 
in unions to retain their jobs. Executive Order 13496, of January 30, 
2009, Notification of Employee Rights under Federal Labor Laws, revoked 
Executive Order 13201.

Item II--Governmentwide Commercial Purchase Card Restrictions for 
Treasury Offset Program Debts (FAR Case 2006-026)

    This final rule amends the FAR at parts 4, 8, 13, 16, 32, and 52 by 
restricting the use of the Governmentwide commercial purchase card as a 
method of payment for offerors with debt subject to the Treasury Offset 
Program (TOP). This final rule facilitates the collection of delinquent 
debts owed to the Government by requiring contracting officers to 
determine whether the Central Contractor Registration (CCR) database 
indicates that the contractor has delinquent debt that is subject to 
collection under the TOP. If a debt flag indicator is found in the CCR 
database, then the Governmentwide commercial purchase card shall not be 
authorized as a method of payment. The contracting officer is required 
to check for the debt flag indicator at the time of contract award or 
order issuance or placement. The Civilian Agency Acquisition Council 
and the Defense Acquisition Regulations Council (Councils) deleted the 
requirement to check CCR for the indicator before exercising an option. 
Purchases and orders at or below the micro-purchase threshold are 
exempt from verification in the CCR database as to whether the 
contractor has a debt flag indicator subject to collection under the 
TOP.

Item III--Internet Protocol Version 6 (IPv6) (FAR Case 2005-041)

    This final rule adopts the proposed rule published in the Federal 
Register at 71 FR 50011, August 24, 2006, as a final rule with minor 
changes. This final rule amends FAR parts 7, 11, 12, and 39 to require 
Internet Protocol Version 6 (IPv6) compliant products be included in 
all new information technology (IT) procurements requiring Internet 
Protocol (IP).
    IP is one of the primary mechanisms that define how and where 
information moves across networks. The widely-used IP industry standard 
is IP Version 4 (IPv4). The Office of Management and Budget (OMB) 
Memorandum M-05-22, dated August 2, 2005, requires all new IT 
procurements, to the maximum extent practicable, to include IPv6 
compliant products and standards. In addition, OMB Memorandum M-05-22 
provides guidance to agencies for transitioning to IPv6.

Item IV--Federal Food Donation Act of 2008 (Pub. L. 110-247) (FAR Case 
2008-017)

    This rule adopts as final, with no changes, the interim rule 
published in the Federal Register at 74 FR 11829 on March 19, 2009. 
This rule implements the Federal Food Donation Act of 2008 (Pub. L. 
110-247), which encourages executive agencies and their contractors, in 
contracts for the provision, service, or

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sale of food, to the maximum extent practicable and safe, to donate 
apparently wholesome excess food to nonprofit organizations that 
provide assistance to food-insecure people in the United States.
    The contracting officer is required to insert the clause at FAR 
52.226-6, Promoting Excess Food Donation to Nonprofit Organizations, in 
solicitations and contracts greater than $25,000 for the provision, 
service, or sale of food in the United States. Contractors would only 
be impacted if they decided to donate the excess food; they would bear 
all the costs of donating the excess food. The Act would extend to the 
Government and the contractor, when donating food, the same civil or 
criminal liability protection provided to donors of food under the Bill 
Emerson Good Samaritan Food Donation Act of 1996.

Item V--Postretirement Benefits (PRB), FAS 106 (FAR Case 2006-021)

    Currently FAR 31.205-6(o) allows contractors to choose among three 
different accounting methods for PRB costs; pay-as-you-go (cash basis), 
terminal funding, and accrual basis using generally accepted accounting 
principles by applying Statement 106 of Financial Accounting Standards 
(FAS 106). The FAR also requires that any accrued PRB costs be paid to 
an insurer or trustee. This final rule amends the FAR to permit the use 
of Internal Revenue Code sections 419 and 419A contribution rules as an 
alternative method of determining the amount of accrued PRB costs on 
Government cost-based contracts.

Item VI--Travel Costs (FAR Case 2006-024)

    This final rule amends the FAR to change the travel cost principle 
(FAR 31.205-46) to ensure a consistent application of the limitation on 
allowable contractor airfare costs. This rule applies the standard of 
the lowest fare available to the contractor. This rule takes notice 
that contractors frequently obtain fares that are lower than those 
available to the general public as a result of direct negotiation. The 
cost principle is clarified by removing the terms ``coach or 
equivalent'' and ``standard'' from the description of the classes of 
allowable airfares, since these terms increasingly do not describe 
actual classes of airline service. Thus, even when a ``coach'' fare may 
be available, given the great variety of fares often available, the 
``coach'' fare may not be the lowest fare available, in particular when 
a contractor has a negotiated agreement with a carrier.

Item VII--Technical Amendments

    Editorial changes are made at FAR 6.302-2, 8.703, 15.305, 52.209-6, 
and 52.212-5.

    Dated: November 30, 2009.
Al Matera,
Director, Acquisition Policy Division.

Federal Acquisition Circular

    Federal Acquisition Circular (FAC) 2005-38 is issued under the 
authority of the Secretary of Defense, the Administrator of General 
Services, and the Administrator for the National Aeronautics and Space 
Administration.
    Unless otherwise specified, all Federal Acquisition Regulation 
(FAR) and other directive material contained in FAC 2005-38 is 
effective December 10, 2009, except for Items V and VI, which are 
effective January 11, 2010, and Item II, which is effective February 1, 
2010.

    Dated: November 25, 2009.
Shay D. Assad,
Director, Defense Procurement and Acquisition Policy.

    Dated: November 24, 2009.
David A. Drabkin,
Senior Procurement Executive, Office of Acquisition Policy, U.S. 
General Services Administration.

    Dated: November 20, 2009.
James A. Balinskas,
Director, Contract Management Division, Office of Procurement, National 
Aeronautics and Space Administration.
[FR Doc. E9-28928 Filed 12-9-09; 8:45 am]
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