[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]



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.


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superseded by statute, regulation, and policy and, therefore, can be 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Activities,'' which was rescinded and replaced in May 2003 (available 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 


1. Under the authority of 5 U.S.C. 301, 32 CFR part 169 is removed.


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]