[Federal Register Volume 75, Number 109 (Tuesday, June 8, 2010)]
[Rules and Regulations]
[Pages 32639-32640]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-13525]



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DEPARTMENT OF DEFENSE



Defense Acquisition Regulations System



48 CFR Part 217



RIN 0750-AG67




Defense Federal Acquisition Regulation Supplement; Limitations on 

Procurements With Non-Defense Agencies (DFARS Case 2009-D027)



AGENCY: Defense Acquisition Regulations System, Department of Defense 

(DoD).



ACTION: Interim rule with request for comments.



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SUMMARY: DoD is issuing an interim rule to implement section 806 of the 

National Defense Authorization Act for Fiscal Year 2010 authorizing the 

placing of contracts for property and services in excess of the 

simplified acquisition threshold by certain non-DoD agencies for the 

performance of a joint program conducted to meet the needs of DoD and 

the non-DoD agency.



DATES: Effective Date: June 8, 2010.

    Comment Date: Comments on the interim rule should be submitted in 

writing to the address shown below on or before August 9, 2010, to be 

considered in the formation of the final rule.



ADDRESSES: Submit comments identified by DFARS Case 2009-D027, using 

any of the following methods:

    [cir] Federal eRulemaking Portal: http://www.regulations.gov. 

Follow the instructions for submitting comments.

    [cir] E-mail: [email protected]. Include DFARS Case 2009-D027 in the 

subject line of the message.

    [cir] Fax: (703) 602-0350.

    [cir] Mail: Defense Acquisition Regulations System, Attn: Meredith 

Murphy, OUSD(AT&L)DPAP(DARS), 3060 Defense Pentagon, Room 3B855, 

Washington, DC 20301-3060.

    Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided.



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

602-1302.



SUPPLEMENTARY INFORMATION: 



A. Background



    Section 854 of the National Defense Authorization Act for Fiscal 

Year 2005 (Pub. L. 108-375) prescribed policy for the acquisition of 

supplies and services through the use of contracts or orders issued by 

non-DoD agencies. Section 801(b) of the National Defense Authorization 

Act for Fiscal Year 2008 (Pub. L. 110-181) authorized a DoD acquisition 

official to procure property and services in excess of the simplified 

acquisition threshold through a non-DoD agency only if: (1) The non-DoD 

agency agreed to adhere to defense procurement requirements; or (2) the 

Under Secretary of Defense (AT&L) certified that the procurement is in 

the best interest of DoD.

    Section 806 of the National Defense Authorization Act for Fiscal 

Year 2010 (Pub. L. 111-84) amended the limitations placed on 

procurements by non-DoD agencies by exempting such procurements that 

are (a) entered into by a non-DoD agency that is an element of the 

intelligence community and (b) when the procurement is for the 

performance of a joint program conducted to meet the needs of DoD and 

the non-DoD agency. Section 806 referred to section 3(4) of the 

National Security Act of 1947 (50 U.S.C. 401a(4)) to identify non-DoD 

agencies that are an element of the intelligence community.



B. Discussion



    The National Security Act of 1947 defines the term ``intelligence 

community'' to include a number of defense and non-defense agencies and 

portions of such agencies. The definition of ``non-DoD agency that is 

an element of the intelligence community'' replicates the statutory 

list, absent the DoD agencies.

    DFARS subpart 217.78 is amended by adding the definition at 

217.7801 and excluding such agencies from the requirements of 

217.7802(a) when the procurement is for performance of a joint program 

conducted to meet the needs of DoD and the non-DoD agency.

    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. 604.



C. Regulatory Flexibility Act



    DoD does not expect this interim 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 section 806 affects only internal



[[Page 32640]]



government operations and procedures. The interim 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-D027) in 

correspondence.



D. Paperwork Reduction Act



    The Paperwork Reduction Act does not apply because the changes to 

the DFARS do not impose information collection requirements that 

require the approval of the Office of Management and Budget under 44 

U.S.C. 3501, et seq.



E. 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 promulgate this 

interim rule without prior opportunity for public comment. This action 

is necessary because the statute became effective upon enactment, and 

it is imperative that DoD contracting officers be aware of the 

limitations on interagency procurements and the circumstances under 

which certain programs need not be delayed by such limitations. 

However, pursuant to 41 U.S.C. 418b and FAR 1.501-3, 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.



0

Therefore, 48 CFR part 217 is amended as follows:



PART 217--SPECIAL CONTRACTING METHODS



0

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

follows:



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



0

2. Section 217.7800 is amended by revising paragraph (a) to read as 

follows:





217.7800  Scope of subpart.



* * * * *

    (a) Implements section 854 of the National Defense Authorization 

Act for Fiscal Year 2005 (Pub. L. 108-375), section 801 of the National 

Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181), and 

section 806 of the National Defense Authorization Act for Fiscal Year 

2010 (Pub. L. 111-84); and

* * * * *



0

3. Section 217.7801 is amended by adding the following definition in 

appropriate alphabetical order:





217.7801  Definitions.



* * * * *



Non-DoD agency that is an element of the intelligence community means 

the Office of the Director of National Intelligence; the Central 

Intelligence Agency; the intelligence elements of the Federal Bureau of 

Investigation; the intelligence elements of the Department of Energy; 

the Bureau of Intelligence and Research of the Department of State; the 

Office of Intelligence and Analysis of the Department of the Treasury; 

and the elements of the Department of Homeland Security concerned with 

the analysis of intelligence information, including the Office of 

Intelligence of the Coast Guard.



0

4. Section 217.7802 is amended by adding paragraph (a)(3) to read as 

follows:





217.7802  Policy.



    (a) * * *

    (3) The limitation in paragraph (a) of this section does not apply 

to contracts entered into by a non-DoD agency that is an element of the 

intelligence community for the performance of a joint program conducted 

to meet the needs of DoD and the non-DoD agency.

* * * * *

[FR Doc. 2010-13525 filed 6-7-10; 8:45 am]

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