[Federal Register Volume 85, Number 68 (Wednesday, April 8, 2020)]
[Proposed Rules]
[Pages 19721-19722]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-06730]



[[Page 19721]]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 211 and 252

[Docket DARS-2019-0056]
RIN 0750-AK59


Defense Federal Acquisition Regulation Supplement: Repeal of 
DFARS Provision ``Alternate Preservation, Packaging, and Packing'' 
(DFARS Case 2019-D022)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Proposed rule.

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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to remove a provision that is no longer 
necessary, pursuant to action taken by the Regulatory Reform Task 
Force.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before June 8, 2020, to be considered in 
the formation of a final rule.

ADDRESSES: Submit comments identified by DFARS Case 2019-D022, using 
any of the following methods:
    [cir] Regulations.gov: http://www.regulations.gov. Submit comments 
via the Federal eRulemaking portal by entering ``DFARS Case 2019-D022'' 
under the heading ``Enter keyword or ID'' and selecting ``Search.'' 
Select the link ``Submit a Comment'' that corresponds with ``DFARS Case 
2019-D022.'' Follow the instructions provided at the ``Submit a 
Comment'' screen. Please include ``DFARS Case 2019-D022'' on any 
attached document.
    [cir] Email: [email protected]. Include DFARS Case 2019-D022 in 
the subject line of the message.
    [cir] Fax: 571-372-6094.
    [cir] Mail: Defense Acquisition Regulations System, Attn: Carrie 
Moore, OUSD(A&S)DPC/DARS, Room 3B941, 3060 Defense Pentagon, 
Washington, DC 20301-3060.
    Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To 
confirm receipt of your comment(s), please check www.regulations.gov, 
approximately two to three days after submission to verify posting 
(except allow 30 days for posting of comments submitted by mail).

FOR FURTHER INFORMATION CONTACT: Ms. Carrie Moore, telephone 571-372-
6093.

SUPPLEMENTARY INFORMATION:

I. Background

    This rule proposes to remove the DFARS provision 252.211-7004, 
Alternate Preservation, Packaging, and Packing, from the DFARS as the 
provision is no longer necessary. DFARS provision 252.211-7004 is 
included in solicitations that include military preservation, 
packaging, or packing specifications when it is feasible to evaluate 
and award using commercial or industrial preservation, packaging, or 
packing methods. The provision: (1) Notifies offerors that they may 
submit two prices for the item--one based on the military requirements 
and one based on commercial standards; (2) specifies the information to 
be provided with the proposed commercial alternative; and (3) requires 
the offeror to agree to use the military requirements if the proposed 
commercial standards are not accepted by the contracting officer.
    Since the implementation of the provision, acquisition reform 
efforts have provided additional latitude to contracting officers to 
use performance and commercial specifications and standards, in lieu of 
military specifications and standards. As a result, contracting 
officers regularly rely on commercial preservation, packaging, and 
packing standards, unless the use of other specifications and standards 
is essential to the acquisition.
    Additionally, agency acquisition officials have broad discretion to 
develop and apply factors that support a meaningful comparison between 
proposals. If the use of military versus commercial preservation, 
packaging, and packing standards shall be evaluated as part of a 
contract award, then the solicitation will include an evaluation factor 
for such criteria to be considered in the source selection decision. 
The ability to make tradeoffs between commercial standards and military 
specifications and cost or price already exists for acquisition 
officials as part of acquisition planning; therefore, this provision is 
no longer necessary.

II. Discussion and Analysis

    The removal of this DFARS provision supports a recommendation from 
the DoD Regulatory Reform Task Force. On February 24, 2017, the 
President signed Executive Order (E.O.) 13777, ``Enforcing the 
Regulatory Reform Agenda,'' which established a Federal policy ``to 
alleviate unnecessary regulatory burdens'' on the American people. In 
accordance with E.O. 13777, DoD established a Regulatory Reform Task 
Force to review and validate DoD regulations, including the DFARS. A 
public notice of the establishment of the DFARS Subgroup to the DoD 
Regulatory Reform Task Force, for the purpose of reviewing DFARS 
provisions and clauses, was published in the Federal Register at 82 FR 
35741 on August 1, 2017, and requested public input. No public comments 
were received on this clause. The DoD Regulatory Reform Task Force 
reviewed the requirements of DFARS clause 252.211-7004, determined that 
the DFARS coverage was unnecessary, and recommended its removal from 
the DFARS.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold and for Commercial Items, Including Commercially Available 
Off-the-Shelf Items

    This proposed rule only removes the obsolete solicitation provision 
at DFARS 252.211-7004. The rule does not impose any new requirements on 
contracts at or below the simplified acquisition threshold or for 
commercial items, including commercially available off-the-shelf items.

IV. Executive Orders 12866 and 13563

    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 6(b) of E.O. 12866, Regulatory Planning and Review, dated 
September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

V. Executive Order 13771

    This rule is not expected to be subject to E.O. 13771, because this 
rule is not subject to E.O. 12866.

VI. Regulatory Flexibility Act

    DoD does not expect this proposed 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 the rule is not creating any new requirements for contractors 
or changing any existing policies and practices. However, an initial 
regulatory flexibility analysis has been performed and is summarized as 
follows:
    The Department of Defense is proposing to repeal DFARS provision

[[Page 19722]]

252.211-7004, Alternate Preservation, Packaging, and Packing, as the 
provision is no longer necessary. This repeal is pursuant to action 
taken by the Regulatory Reform Task Force. The objective of this 
proposed rule is to reduce regulatory burden on the public. The repeal 
of this DFARS clause supports a recommendation from the DoD Regulatory 
Reform Task Force.
    DoD does not collect data on the number of small businesses that 
respond to a solicitation that includes DFARS clause 252.211-7004 or 
the number of small businesses responding to such a solicitation with 
alternative preservation, packaging, or packing methods. Instead, DoD 
subject matter experts advise that approximately 375 solicitations are 
issued each year that contain military preservation, packaging, or 
packing requirements where commercial or industrial methods may also be 
acceptable. DoD estimates that it receives 1.5 responses to each 
solicitation, for a total of 563 offers received in response to the 
solicitation. This total estimated number of responses does not 
delineate between the business size of the offerors or those offerors 
that did and did not proposed alternative methods for preservation, 
packaging, or packing in lieu of military specifications. Based on the 
information available, DoD does not anticipate that this rule will 
significantly impact small business entities.
    This proposed rule does not include any new reporting, 
recordkeeping, or other compliance requirements for small businesses. 
Rather, this rule proposes to eliminate a reporting requirement. This 
rule does not duplicate, overlap, or conflict with any other Federal 
rules. There are no known alternative to the rule that will meet the 
stated objectives or minimize the impact on of the rule on small 
entities.
    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 2019-D022) 
in correspondence.

VII. Paperwork Reduction Act

    This rule removes the burden associated with DFARS 252.211-7004 
from the information collection requirement currently approved under 
OMB Control Number 0704-0398, entitled DFARS Part 211, Describing 
Agency Needs, and Related Clauses at DFARS 252.211. This reduction is 
reflected in the proposed revision to and extension of the information 
collection, as published in the Federal Register on February 27, 2020, 
at 85 FR 11351.

List of Subjects in 48 CFR Parts 211 and 252

    Government procurement.

Jennifer Lee Hawes,
Regulatory Control Officer, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 211 and 252 are proposed to be amended as 
follows:

0
1. The authority citation for 48 CFR parts 211 and 252 continues to 
read as follows:

    Authority:  41 U.S.C. 1303 and 48 CFR chapter 1.

PART 211--DESCRIBING AGENCY NEEDS


211.272  [Removed and Reserved]

0
2. Remove and reserve section 211.272.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


252.211-7004  [Removed and Reserved]

0
3. Remove and reserve section 252.211-7004.

[FR Doc. 2020-06730 Filed 4-7-20; 8:45 am]
BILLING CODE 5001-06-P