[Federal Register Volume 86, Number 134 (Friday, July 16, 2021)]
[Rules and Regulations]
[Pages 37676-37677]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-15163]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Parts 169 and 169a
[Docket ID: DOD-2019-OS-0113]
RIN 0790-AK91
Commercial Activities Program
AGENCY: Office of the Secretary, Department of Defense (DoD).
ACTION: Final rule.
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SUMMARY: This final rule removes DoD's regulations concerning the
Commercial Activities Program. The regulations are obsolete since they
have been
[[Page 37677]]
superseded by statute, regulation, and policy and, therefore, can be
removed from the Code of Federal Regulations (CFR).
DATES: This rule is effective on July 16, 2021.
FOR FURTHER INFORMATION CONTACT: Jason M. Beck, (703) 697-1735 (desk);
571-309-0478 (mobile).
SUPPLEMENTARY INFORMATION: This final rule removes the DoD regulations
at 32 CFR part 169, most recently updated on May 19, 1989 (54 FR
21726), and 32 CFR part 169a, most recently updated on July 1, 1992 (57
FR 29207), because they are obsolete. This action is predicated on
reissued guidance and policy from the Office of Management and Budget
(OMB), cancellation of associated DoD policies, and the enactment of
statute in title 10 of the United States Code (U.S.C.).
The content of 32 CFR part 169 was based on the DoD policy
document, DoD Instruction 4100.15, ``Commercial Activities Program,''
which was subsequently cancelled on July 10, 2013, because it was
obsolete. The content of 32 CFR part 169a was based on the DoD policy
document, DoD Instruction 4100.33, ``Commercial Activities Program
Procedures,'' which was also subsequently cancelled on March 4, 2011,
because it was obsolete. DoD's commercial activities program was based
on a previous version of OMB Circular A-76, ``Performance of Commercial
Activities,'' which was rescinded and replaced in May 2003 (available
at https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A76/a76_incl_tech_correction.pdf).
In addition to the cancellation of the associated DoD Instructions
for parts 169 and 169a that deem the rules obsolete, the subject matter
aligned to these rules have substantially changed and been addressed in
other areas. For example, 10 U.S.C. 2330a and 10 U.S.C. 2461 were
enacted in 2008 and 1996, respectively; the Federal Activities
Inventory Reform (FAIR) Act was enacted in 1998; the definitions and
policy in the Federal Acquisition Regulation (FAR) Parts 2, 7.3, and
7.5, as well as the Defense Federal Acquisition Regulation Supplement
(DFARS) 207.5 were changed to reflect the new rules in the FAIR Act and
the 2003 version of OMB Circular A-76; and the Office of Federal
Procurement Policy (OFPP) issued Policy Letter 11-01, ``Performance of
Inherently Governmental and Critical Functions,'' in 2011 (76 FR
56227). These laws, regulations, and Federal policies all substantially
address the policy space covered by 32 CFR parts 169 and 169a. The FAIR
Act, for example, establishes in law the framework of inherently
governmental and commercial activities functions, while 10 U.S.C. 2461
establishes the requirement for public/private competitions before
conversion to contractor performance--competitions which are covered
under OMB Circular A-76. The FAR and DFARS regulations, as well as OFPP
Policy Letter 11-01, go even farther than the FAIR Act and delineate
additional categories of functions (such as closely associated with
inherently governmental and critical) which are not mentioned in 32 CFR
169 and 169a. Similarly, 10 U.S.C. 2330a establishes law for the
collection of contract services data, another area related to the
commercial activities discussed in 32 CFR 169 and 169a, but not covered
by them.
Additionally, the OMB Circular A-76 public-private competition
process has been under a Congressional moratorium since 2008. If the
moratorium were lifted, the rules would still be considered obsolete
and unnecessary, and promulgating new rules would be unnecessary due to
the inclusion of language in title 10 U.S.C., the FAR, DFARS, and
elsewhere in executive agency policy, as previously noted. These acts
and policies address and cover the intent of parts 169 and 169a and,
therefore, no longer make them applicable and worthy of staying active.
Furthermore, not only are parts 169 and 169a unnecessary, they are no
longer current with the statutory, regulatory, and policy framework
that governs the acquisition of services and functions in the Total
Force Management policy space.
It has been determined that publication of these CFR part removals
for public comment is impracticable, unnecessary, and contrary to
public interest since they are based on the removal of obsolete
information. These removals are not significant under Executive Order
(E.O.) 12866, ``Regulatory Planning and Review.''
List of Subjects in 32 CFR Parts 169 and 169a
Armed forces, Government procurement.
Accordingly, the Department of Defense amends 32 CFR chapter I as
follows:
PART 169--[REMOVED]
0
1. Under the authority of 5 U.S.C. 301, 32 CFR part 169 is removed.
PART 169a--[REMOVED]
0
2. Under the authority of 5 U.S.C. 301, 32 CFR part 169a is removed.
Dated: July 13, 2021.
Kayyonne T. Marston,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2021-15163 Filed 7-15-21; 8:45 am]
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