[Federal Register Volume 68, Number 140 (Tuesday, July 22, 2003)]
[Rules and Regulations]
[Pages 43331-43332]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-18449]


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DEPARTMENT OF DEFENSE

48 CFR Part 207

[DFARS Case 2002-D036]


Defense Federal Acquisition Regulation Supplement; Buy-to-Budget 
Acquisition of End Items

AGENCY: Department of Defense (DoD).

ACTION: Interim rule with request for comments.

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SUMMARY: DoD has issued an interim rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to implement Section 801 of 
the National Defense Authorization Act for Fiscal Year 2003. Section 
801 authorizes DoD to acquire a higher quantity of an end item than the 
quantity specified in law, under certain conditions.

DATES: Effective date: July 22, 2003.
    Comment date: Comments on the interim rule should be submitted to 
the address shown below on or before September 22, 2003, to be 
considered in the formation of the final rule.

ADDRESSES: Respondents may submit comments directly on the World Wide 
Web at http://emissary.acq.osd.mil/dar/dfars.nsf/pubcomm. As an 
alternative, respondents may e-mail comments to: [email protected]. 
Please cite DFARS Case 2002-D036 in the subject line of e-mailed 
comments.
    Respondents that cannot submit comments using either of the above 
methods may submit comments to: Defense Acquisition Regulations 
Council, Attn: Ms. Susan Schneider, OUSD(AT&L)DPAP(DAR), IMD 3C132, 
3062 Defense Pentagon, Washington, DC 20301-3062; facsimile (703) 602-
0350. Please cite DFARS Case 2002-D036.
    At the end of the comment period, interested parties may view 
public comments on the World Wide Web at http://emissary.acq.osd.mil/dar/dfars.nsf.

FOR FURTHER INFORMATION CONTACT: Ms. Susan Schneider, (703) 602-0326.

SUPPLEMENTARY INFORMATION:

A. Background

    This interim rule adds a new subpart at DFARS 207.70 to implement 
Section 801 of the National Defense Authorization Act for Fiscal Year 
2003 (Pub. L. 107-314). Section 801 added 10 U.S.C. 2308, which 
provides that DoD may acquire a higher quantity of an end item than the 
quantity specified in a law providing for the funding of the 
acquisition, if the agency head makes certain findings with regard to 
the acquisition.
    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 does not expect this rule to 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 any 
additional quantities acquired as a result of this rule must be 
acquired without additional funding. Therefore, DoD has not performed 
an initial regulatory flexibility analysis. DoD invites comments from 
small businesses and other interested parties. DoD also will consider 
comments from small entities concerning the affected DFARS subpart in 
accordance with 5 U.S.C. 610. Such comments should be submitted 
separately and should cite DFARS Case 2002-D036.

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.

D. Determination To Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Defense that urgent and compelling reasons exist to publish an 
interim rule prior to affording the public an opportunity to comment. 
This interim rule implements Section 801 of the National Defense 
Authorization Act for Fiscal Year 2003 (Pub. L. 107-314), which 
authorizes DoD to acquire a higher quantity of an end item than the 
quantity specified in law, under certain conditions. Section 801 
required issuance of final implementing regulations by April 1, 2003. 
Comments received in response to this interim rule will be considered 
in the formation of the final rule.

List of Subjects in 48 CFR Part 207

    Government procurement.

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

0
Therefore, 48 CFR Part 207 is amended as follows:
0
1. The authority citation for 48 CFR Part 207 continues to read as 
follows:

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

PART 207--ACQUISITION PLANNING

0
2. Subpart 207.70 is added to read as follows:
Subpart 207.70--Buy-to-Budget--Additional Quantities of End Items
Sec.
207.7001 Definition.
207.7002 Authority to acquire additional quantities of end items.
207.7003 Limitation.

Subpart 207.70--Buy-to-Budget--Additional Quantities of End Items


207.7001  Definition.

    End item, as used in this subpart, means a production product 
assembled, completed, and ready for issue or deployment.


207.7002  Authority to acquire additional quantities of end items.

    10 U.S.C. 2308 authorizes DoD to use funds available for the 
acquisition of an end item to acquire a higher quantity of the end item 
than the quantity specified in a law providing for the funding of that 
acquisition, if the head of an agency determines that--
    (a) The agency has an established requirement for the end item that 
is expected to remain substantially unchanged throughout the period of 
the acquisition;
    (b) It is possible to acquire the higher quantity of the end item 
without

[[Page 43332]]

additional funding because of production efficiencies or other cost 
reductions;
    (c) The amount of funds used for the acquisition of the higher 
quantity of the end item will not exceed the amount provided under that 
law for the acquisition of the end item; and
    (d) The amount provided under that law for the acquisition of the 
end item is sufficient to ensure that each unit of the end item 
acquired within the higher quantity is fully funded as a complete end 
item.


207.7003  Limitation.

    For noncompetitive acquisitions, the acquisition of additional 
quantities is limited to not more than 10 percent of the quantity 
approved in the justification and approval prepared in accordance with 
FAR part 6 for the acquisition of the end item.

[FR Doc. 03-18449 Filed 7-22-03; 8:45 am]
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