[Federal Register Volume 67, Number 105 (Friday, May 31, 2002)]
[Rules and Regulations]
[Pages 38022-38023]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-13360]


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DEPARTMENT OF DEFENSE

48 CFR Parts 226 and 252

[DFARS Case 2000-D024]


Defense Federal Acquisition Regulation Supplement; Utilization of 
Indian Organizations and Indian-Owned Economic Enterprises

AGENCY: Department of Defense (DoD).

ACTION: Final rule.

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SUMMARY: DoD has adopted as final, without change, an interim rule 
amending the Defense Federal Acquisition Regulation Supplement (DFARS) 
to implement Section 8022 of the DoD Appropriations Act for Fiscal Year 
2001. Section 8022 provides for incentive payments to DoD contractors, 
and subcontractors at any tier, that use Indian organizations and 
Indian-owned economic enterprises as subcontractors.

EFFECTIVE DATE: May 31, 2002.

FOR FURTHER INFORMATION CONTACT: Ms. Angelina Moy, Defense Acquisition 
Regulations Council, OUSD(AT&L)DP(DAR), IMD 3C132, 3062 Defense 
Pentagon, Washington, DC 20301-3062. Telephone (703) 602-1302; 
facsimile (703) 602-0350. Please cite DFARS Case 2000-D024.

SUPPLEMENTARY INFORMATION:   

A. Background

    This rule implements Section 8022 of the DoD Appropriations Act for 
Fiscal Year 2001 (Public Law 106-259). Section 8022 provides funding 
for incentive payments to DoD contractors, and subcontractors at any 
tier, that use Indian organizations and Indian-owned economic 
enterprises as subcontractors.
    DoD published an interim rule at 66 FR 47110 on September 11, 2001. 
The rule revised DFARS 226.104 and added a new clause at DFARS 252.226-
7001. The new clause is similar to the clause at FAR 52.226-1, 
Utilization of Indian Organizations and Indian-Owned Economic 
Enterprises, but contains the DoD requirement to provide for incentive 
payments to subcontractors at any tier.
    Nineteen sources submitted comments in response to the interim 
rule. A summary of the comments and the DoD response is provided below:
    Comment: The DFARS policy excludes contracts awarded using FAR Part 
12 (commercial item) procedures from the Indian Incentive Program. This 
exclusion should be removed.
    DoD Response: This exclusion was established under previous DFARS 
Case 99-D300, published at 65 FR 19858 on April 13, 2000. A change to 
this exclusion is outside the scope of the present case. However, the 
DoD Office of Small and Disadvantaged Business Utilization is 
continuing to study this issue.
    Comment: The definition of ``Indian'' should be amended to include 
Native Hawaiians.
    DoD Response: Do not concur. The statutory basis for the Indian 
Incentive Program is 25 U.S.C. Chapter 17 (Section 1544). The 
definition of ``Indian'' provided in 25 U.S.C. Chapter 17 (Section 
1452) does not include Native Hawaiians.
    Comment: Prime contractors should be required to sponsor 
subcontractor claims for incentive payments.
    DoD Response: Do not concur. The statute authorizing the Indian 
Incentive Program (25 U.S.C. 1544) provides that a contractor or 
subcontractor may be allowed an additional amount of compensation for 
subcontracts awarded to Indian organizations or Indian-owned economic 
enterprises. There is no statutory authority for DoD to require a 
contractor to submit or sponsor claims for incentive payments for its 
subcontractors.
    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 certifies that this final rule will not 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 DoD already was implementing the Indian Incentive Program 
through use of the clause at FAR 52.226-1, Indian Organizations and 
Indian-Owned Economic Enterprises. The FAR clause permits incentive 
payments to large and small contractors that use Indian organizations 
or enterprises as subcontractors. The new DFARS clause expands the 
incentive payments to subcontractors at any tier. While this expansion 
should benefit small businesses that award lower-tier subcontracts to 
Indian organizations or enterprises, the economic impact should not be 
substantial.

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.

List of Subjects in 48 CFR Parts 226 and 252

    Government procurement.

Michele P. Peterson,
Executive Editor, Defense Acquisition Regulations Council.

Interim Rule Adopted as Final Without Change

    Accordingly, the interim rule amending 48 CFR Parts 226 and 252, 
which was published at 66 FR 47110 on

[[Page 38023]]

September 11, 2001, is adopted as a final rule without change.
[FR Doc. 02-13360 Filed 5-30-02; 8:45 am]
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