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Federal Register / Vol. 86, No. 211 / Thursday, November 4, 2021 / Rules and Regulations
Response: The Councils note that the respondents quoted definition is similar to the statutory definition, and to the definition used in the proposed rule. No change is necessary.
Comment: Two respondents suggested to explicitly include commercial services under the definition of commercial-off-the-shelf COTS
items to provide the Government access to the broadest range of service providers. One respondent pointed to the following benefits: increase competition and allow Government customers quicker access to required commercial services. A respondent suggested to, at least, clarify that commercial wireless telecommunications offerings constitute a commercial product and thus can satisfy all definitional elements of COTS
items.
Response: The Councils cannot accept the suggestions because they are not consistent with the statute being implemented. Section 836 of the NDAA
for FY 2019 did not modify the definition of COTS item.

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C. Other Changes Other changes made in the final rule are as follows:
Revisions were made to account for additional instances of the term commercial item in the FAR after the proposed rule was published in the following sections: FAR 9.1104b, 9.1105, 9.4051, 39.205a3 and c3, 43.105c, 52.20914d1, 52.22913c, and 52.22914c.
Three changes missed in the proposed rule were added as follows:
the heading of FAR subpart 12.1, the word commercial at FAR 15.601, and the inclusion of commercial products in 52.2125b36.
Prescriptive language was relocated from the introductory text for the FAR
clauses at 52.2162, 52.2163, and 52.2164 to FAR 16.2034a4, b6, and c5, respectively, to be consistent with FAR drafting conventions.
III. Applicability to Contracts at or Below the Simplified Acquisition Threshold SAT and for Commercial Products Including Commercially Available Off-the-Shelf COTS Items, or for Commercial Services This rule does not create new solicitation provisions or contract clauses. This rule merely replaces the term commercial items with commercial products, commercial services, commercial products or commercial services, or commercial products and commercial services in the FAR including in part 52, as appropriate. This rule does not impose
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any new requirements on contracts at or below the SAT or for commercial products, including COTS items, or for commercial services.
IV. 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 6b of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.
V. Congressional Review Act As required by the Congressional Review Act 5 U.S.C. 801808 before an interim or final rule takes effect, DoD, GSA, and NASA will send the rule and the Submission of Federal Rules Under the Congressional Review Act form 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. The Office of Information and Regulatory Affairs OIRA in the Office of Management and Budget has determined that this is not a major rule under 5 U.S.C. 804.
VI. Regulatory Flexibility Act DoD, GSA, and NASA have prepared a Final Regulatory Flexibility Analysis FRFA consistent with the Regulatory Flexibility Act, 5 U.S.C. 601612. The FRFA is summarized as follows:
This final rule amends the FAR to change the definition of commercial item by splitting it into the definitions of commercial product and commercial service.
The objective is to implement section 836
of the John S. McCain NDAA for FY19 Pub.
L. 115232. This is consistent with the recommendations by the independent panel created by section 809 of the NDAA for FY
2016 Pub. L. 11492. This case implements amendments to 41 U.S.C. 103 and 103a. The legal basis for this rule is 40 U.S.C. 121c, 10 U.S.C. chapter 137, and 51 U.S.C. 20113.
There were no significant issues raised by the public comments in response to the initial regulatory flexibility analysis.
The final rule impacts all entities that do business with the Federal Government, including the over 327,458 small business registrants in the System for Award Management. However, the rule does not implement any requirements with which
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small entities must comply. This rule splits the definition of commercial item into the definitions of commercial product and commercial service.
The final rule does not include additional reporting or record keeping requirements.
There are no available alternatives to the final rule to accomplish the desired objective of the statute.

Interested parties may obtain a copy of the FRFA from the Regulatory Secretariat Division. The Regulatory Secretariat Division has submitted a copy of the FRFA to the Chief Counsel for Advocacy of the Small Business Administration.
VII. Paperwork Reduction Act The Paperwork Reduction Act 44
U.S.C 35013521 applies; however, the changes to the FAR and the updates to the information collections do not impose new information collection burden. The changes do not impose additional, or change any existing, information collection requirements to the paperwork burden previously approved under the following OMB
Control Numbers: 90000007, Subcontracting Plans; 90000018, Federal Acquisition Regulation Part 3:
Improper Business Practices and Personal Conflicts of Interest; 9000
0193, FAR Part 9 Responsibility Matters;
90000097, Federal Acquisition Regulation Part 4 Requirements; 9000
0136, Commercial Item Acquisitions;
90000034, Examination of Records by Comptroller General and Contract Audit; 90000013, Certified Cost or Pricing Data and Data Other Than Certified Cost or Pricing Data; 9000
0048, Authorized Negotiators and Integrity of Unit Prices; 90000010, Progress Payments, SF 1443; 90000024, Buy American, Trade Agreements, and Duty-Free Entry; 90000061, Transportation Requirements; 9000
0068, Economic Price Adjustment;
90000070, Payments; 90000138, Contract Financing; 90000188, Combating Trafficking in Persons; 9000
0197, Use of Products and Services of Kaspersky Lab; 90000198, Violations of Arms Control Treaties or Agreements;
and 16150092, E-Verify Program.
List of Subjects in 48 CFR Parts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 22, 23, 25, 26, 27, 28, 29, 30, 31, 32, 37, 38, 39, 42, 43, 44, 46, 47, 49, 52, and 53
Government procurement.
William F. Clark, Director, Office of Government-wide Acquisition Policy, Office of Acquisition Policy, Office of Government-wide Policy.

Therefore, DoD, GSA, and NASA
amend 48 CFR parts 1, 2, 3, 4, 5, 6, 7,
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