[Federal Register: March 5, 2010 (Volume 75, Number 43)]
[Rules and Regulations]               
[Page 10190-10191]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Defense Acquisition Regulations System

48 CFR Part 217

Defense Federal Acquisition Regulation Supplement; Payment of 
Costs Prior to Definitization-Definition of Contract Action (DFARS Case 

AGENCY: Defense Acquisition Regulations System, Department of Defense 

ACTION: Interim rule with request for comments.


SUMMARY: DoD is issuing an interim rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to implement section 812 of 
the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 
111-84, enacted October 28, 2009).

DATES: Effective Date: March 5, 2010.
    Comment date: Comments on the interim rule should be submitted in 
writing to the address shown below on or before May 4, 2010, to be 
considered in the formation of the final rule.

ADDRESSES: Submit comments identified by DFARS Case 2009-D035, 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 2009-D035 in the 
subject line of the message.
     Fax: 703-602-0350.
     Mail: Defense Acquisition Regulations System, Attn: Ms. 
Meredith Murphy, OUSD (AT&L) DPAP (DARS), Room 3B855, 3060 Defense 
Pentagon, Washington, DC 20301-3060.
     Hand Delivery/Courier: Defense Acquisition Regulations 
System, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA 
    Comments received generally will be posted without change to http:/
/www.regulations.gov, including any personal information provided.

[[Page 10191]]

FOR FURTHER INFORMATION CONTACT: Ms. Meredith Murphy, 703-602-1302.


A. Background

    This DFARS case is initiated to partially implement section 812 of 
the National Defense Authorization Act for Fiscal Year 2010. Section 
812 is entitled ``Revision of Defense Supplement Relating to Payment of 
Costs Prior to Definitization.'' Section 812 has been partially 
implemented in DFARS Case 2008-D034, and this case implements the 
balance of section 812, which makes the limitations on payment of costs 
prior to definitization of unpriced change orders applicable to all 
categories of undefinitized contractual actions, ``including 
undefinitized task orders and delivery orders.'' The implementation is 
accomplished by specifically including the category of ``task orders 
and delivery orders'' in the definition of ``contract action'' at DFARS 
    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

    DoD does not expect that this interim rule will 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 does not impose any additional requirements on small 
businesses. Therefore, an initial Regulatory Flexibility Analysis has 
not been performed. DoD invites comments from small business concerns 
and other interested parties on the expected impact of this rule on 
small entities.
    DoD will also consider comments from small entities concerning the 
existing regulations in subparts affected by this rule in accordance 
with 5 U.S.C. 610. Interested parties must submit such comments 
separately and should cite 5 U.S.C. 610 (DFARS Case 2009-D035) in 

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the interim rule 
does not contain any information collection requirements that require 
the approval of the Office of Management and Budget under 44 U.S.C., et 

D. Determination To Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Defense (DoD) that urgent and compelling circumstances exist to 
promulgate this interim rule without prior opportunity for public 
comments. This action is necessary because section 812 of the National 
Defense Authorization Act for Fiscal Year 2010 became effective upon 
enactment. The date of enactment was October 28, 2009. However, 
pursuant to 41 U.S.C. 418b, DoD will consider public comments received 
in response to this interim rule in the formation of the final rule.

List of Subjects in 48 CFR Part 217

    Government procurement.

Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR part 217 is amended as follows:


1. The authority citation for 48 CFR part 217 continues to read as 

    Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.

2. Section 217.7401 is amended by revising paragraph (a)(2) and adding 
paragraph (a)(3) to read as follows:

217.7401  Definitions.

* * * * *
    (a) * * *
    (2) It includes task orders and delivery orders.
    (3) It does not include change orders, administrative changes, 
funding modifications, or any other contract modifications that are 
within the scope and under the terms of the contract, e.g., engineering 
change proposals, value engineering change proposals, and over and 
above work requests as described in Subpart 217.77. For policy relating 
to definitization of change orders, see 243.204-70.
* * * * *
[FR Doc. 2010-4731 Filed 3-4-10; 8:45 am]