[Federal Register Volume 88, Number 180 (Tuesday, September 19, 2023)]
[Rules and Regulations]
[Pages 64384-64385]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-17720]


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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 1812, 1813, 1816, 1819, 1823, 1832, and 1852

[Notice: (23-089)]
RIN 2700-AE71


Federal Acquisition Regulation Supplement: Revision of the 
Definition of ``Commercial Item'' (NFS Case 2022-N003)

AGENCY: National Aeronautics and Space Administration.

ACTION: Final rule.

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SUMMARY: National Aeronautics and Space Administration (NASA) is 
issuing a final rule amending the NASA Federal Acquisition Regulation 
Supplement (NFS) to conform to changes in the Federal Acquisition 
Regulation (FAR) that reflect an updated ``commercial item'' definition 
pursuant to a section of the John S. McCain National Defense 
Authorization Act (NDAA) for Fiscal Year (FY) 2019 (Pub. L. 115-232).

DATES: Effective: October 19, 2023.

FOR FURTHER INFORMATION CONTACT: Andrew O'Rourke, NASA HQs, Office of 
Procurement Management and Policy Division, LP-011, 300 E Street SW, 
Washington, DC 20456-0001. Telephone 202-358-4560; facsimile 202-358-
3082.

SUPPLEMENTARY INFORMATION:

I. Background

    This final rule amends the NASA FAR Supplement (NFS) to change 
instances of ``commercial item(s)'' with commercial product(s), 
commercial services(s), or both commercial product(s) and commercial 
service(s) to match similar actions taken in the Federal Acquisition 
Regulation (FAR). FAR Case 2018-018 was published as a final rule at 86 
FR 61017 on November 4, 2021, to implement section 836 of the John S. 
McCain National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 
115-232) to separate the definition of ``commercial item'' into the 
definitions of ``commercial product'' and ``commercial service.''
    It is important to note that the amendment to separate ``commercial 
item'' with ``commercial product'' and ``commercial service'' does not 
expand or shrink the universe of products or services that the 
Government may procure using NFS part 1812, nor does it change the 
terms and conditions vendors must comply with.
    This rule does not add any new solicitation provisions or contract 
clauses. This rule merely replaces the term ``commercial item(s)'' with 
``commercial product(s),'' ``commercial service(s),'' ``commercial 
product(s) or commercial service(s),'' or ``commercial product(s) and 
commercial service(s)'' in the NFS including in part 1852, as 
appropriate. It does not add any new burdens because the case does not 
add or change any requirements with which vendors must comply.

II. Publication of This Final Rule for Public Comment Is Not Required 
by Statute

    ``Publication of proposed regulations'', 41 U.S.C. 1707, is the 
statute which applies to the publication of the Federal Acquisition 
Regulation. Paragraph (a)(1) of the statute requires that a procurement 
policy, regulation, procedure or form (including an amendment or 
modification thereof) must be published for public comment if it 
relates to the expenditure of appropriated funds, and has either a 
significant effect beyond the internal operating procedures of the 
agency issuing the policy, regulation, procedure or form, or has a 
significant cost or administrative impact on contractors or offerors. 
This final rule is not required to be published for public comment, 
because NASA is not issuing a new regulation; rather, this rule is 
merely an editorial change and will provide consistent language to the 
FAR (pursuant to section 836 of the John S. McCain National Defense 
Authorization Act for Fiscal Year 2019 (Pub. L. 115-232)) throughout 
the NFS. The rule does not expand or shrink the universe of products or 
services that the Government may procure using NFS part 1812, nor does 
it change the terms and conditions vendors must comply with. These 
requirements affect only the internal operating procedures of the 
Government.

[[Page 64385]]

III. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This is not a significant regulatory action and, therefore, was not 
subject to review under section 6(b) of E.O. 12866, Regulatory Planning 
and Review, dated September 30, 1993. This rule is not a major rule 
under 5 U.S.C. 804. requirements with which vendors must comply.

IV. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by 
the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a ``major rule'' may take effect, the 
agency promulgating the rule must submit a rule report, which includes 
a copy of the rule, to each House of the Congress and to the 
Comptroller General of the United States. A major rule cannot take 
effect until 60 days after it is published in the Federal Register. 
This rule has been reviewed and determined by OMB not to be a ``major 
rule'' under 5 U.S.C. 804(2).

V. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) does not 
apply to this rule, because an opportunity for public comment is not 
required to be given for this rule under 41 U.S.C. 1707(a)(1) (see 
Section II. of this preamble). Accordingly, no regulatory flexibility 
analysis is required, and none has been prepared.

VI. Paperwork Reduction Act

    The rule does not contain any information collection requirements 
that require the approval of the Office of Management and Budget under 
the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Parts 1812, 1813, 1816, 1819, 1823, 
1832, and 1852

    Government procurement.

Erica Jones,
NASA FAR Supplement Manager.

    Accordingly, 48 CFR parts 1812, 1813, 1816, 1819, 1823, 1832, and 
1852 are amended as follows:

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1. The authority citation for parts 1812, 1813, 1816, 1819, 1823, 1832 
and 1852 continues to read as follows:

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

PARTS 1812, 1813, 1816, 1819, 1823, 1832, and 1852--[AMENDED]

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2. In parts 1812, 1816, 1819, 1823, 1832, and 1852 revise all 
references to ``Commercial Items'' to read ``Commercial Products and 
Commercial Services.''

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3. Amend Part 1832, by--
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a. Revising the subpart heading of 1832.1.
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b. Revising the heading to section 1832.111.
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c. Revising the subpart heading of 1832.4.
    The revisions read as follows:

Subpart 1832.1--Other Than Commercial Products and Services Financing

* * * * *
1832.111 Contractor clauses for other than commercial purchases

Subpart 1832.4--Advance Payments for Other Than Commercial Products and 
Commercial Services

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[FR Doc. 2023-17720 Filed 9-18-23; 8:45 am]
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