[Federal Register Volume 87, Number 53 (Friday, March 18, 2022)]
[Rules and Regulations]
[Pages 15813-15814]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05533]


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DEPARTMENT OF DEFENSE

48 CFR Parts 215 and 252

[Docket DARS-2022-0005]
RIN 0750-AL31


Defense Federal Acquisition Regulation Supplement: Evaluation 
Factor for Employing or Subcontracting With Members of the Selected 
Reserve (DFARS Case 2021-D013)

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

ACTION: Final rule.

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SUMMARY: DoD is issuing a final rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to implement a section of the 
National Defense Authorization Act for Fiscal Year 2021.

DATES: Effective March 18, 2022.

FOR FURTHER INFORMATION CONTACT: Ms. Kimberly R. Ziegler, Telephone 
571-372-6095.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD is amending the DFARS to implement section 821 of the National 
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2021 (Pub. L. 
116-283) that removes the burden of proof at 10 U.S.C. 2305 note when 
using an evaluation factor for employing or subcontracting with members 
of the Selected Reserve. Accordingly, this rule removes DFARS 
solicitation provision 252.215-7005, Evaluation Factor for Employing or 
Subcontracting with Members of the Selected Reserve, and makes 
conforming changes to the associated provision and clause prescriptions 
at DFARS 215.370-3.
    DFARS provision 252.215-7005 is included in solicitations that 
contain an evaluation factor that considers whether an offeror intends 
to perform the contract using employees or individual subcontractors 
who are members of the Selected Reserve. If an offeror intends to use 
such employees or subcontractors, the provision requires the offeror to 
submit certain documentation as proof

[[Page 15814]]

of its intent with its response to the solicitation.

II. Publication of This Final Rule for Public Comment Is Not Required 
by Statute

    The statute that applies to the publication of the Federal 
Acquisition Regulation (FAR) is 41 U.S.C. 1707, Publication of Proposed 
Regulations. Subsection (a)(1) of the statute requires that a 
procurement policy, regulation, procedure, or form (including an 
amendment or modification thereof) must be published for public comment 
if it relates to the expenditure of appropriated funds, and has either 
a significant effect beyond the internal operating procedures of the 
agency issuing the policy, regulation, procedure, or form, or has a 
significant cost or administrative impact on contractors or offerors. 
This final rule is not required to be published for public comment, 
because DoD is not issuing a new regulation; rather, this rule is 
merely removing an unneeded solicitation provision from the DFARS. The 
rule primarily impacts internal operating procedures and has no 
significant cost or administrative impact on contractors or offerors.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold (SAT), for Commercial Products Including Commercially 
Available Off-the-Shelf (COTS) Items, and for Commercial Services

    This rule removes DFARS provision 252.215-7005, Evaluation Factor 
for Employing or Subcontracting with Members of the Selected Reserve, 
and the associated prescription at DFARS 215.370-3. The rule does not 
impose any new requirements on contracts at or below the simplified 
acquisition threshold, for commercial products including commercially 
available off-the-shelf items, or for commercial services.

IV. Executive Orders 12866 and 13563

    Executive Orders (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.

V. Congressional Review Act

    As required by the Congressional Review Act (5 U.S.C. 801-808) 
before an interim or final rule takes effect, DoD will submit a copy of 
the interim or final rule with the form, Submission of Federal Rules 
Under the Congressional Review Act, to the U.S. Senate, the U.S. House 
of Representatives, and to the Comptroller General of the United 
States. A major rule under the Congressional Review Act cannot take 
effect until 60 days after it is published in the Federal Register. The 
Office of Information and Regulatory Affairs has determined that this 
rule is not a major rule as defined by 5 U.S.C. 804.

VI. Regulatory Flexibility Act

    The Regulatory Flexibility Act does not apply to this rule because 
this final rule does not constitute a significant DFARS revision within 
the meaning of FAR 1.501-1, and 41 U.S.C. 1707 does not require 
publication for public comment.

VII. Paperwork Reduction Act

    This rule removes the information collection requirements 
associated with the provision at DFARS 252.215-7005, Evaluation Factor 
for Employing or Subcontracting with Members of the Selected Reserve, 
currently approved under Office of Management and Budget (OMB) Control 
Number 0704-0446, entitled ``Defense Federal Acquisition Regulation 
Supplement (DFARS) Evaluation Factor for Use of Members of the Armed 
Forces Selected Reserve''. Accordingly, DoD submitted, and OMB 
approved, the following reduction of the annual reporting burden and 
OMB inventory of hours under OMB Control Number 0704-0446 as follows:
    Respondents: 13.
    Responses per respondent: 1.
    Total annual responses: 13.
    Hours per response: 20.
    Total response burden hours: 260.

List of Subjects in 48 CFR Parts 215 and 252

    Government procurement.

Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 215 and 252 are amended as follows:

0
1. The authority citation for 48 CFR parts 215 and 252 continues to 
read as follows:

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

PART 215--CONTRACTING BY NEGOTIATION

0
2. Revise section 215.370-1 to read as follows:


215.370-1  Definition.

    As used in this section--
    Selected Reserve has the meaning given that term in 10 U.S.C. 
10143. Selected Reserve members normally attend regular drills 
throughout the year and are the group of Reserves most readily 
available to the President.

0
3. Revise section 215.370-3 to read as follows:


215.370-3   Contract clause.

    Use the clause at 252.215-7006, Use of Employees or Individual 
Subcontractors Who Are Members of the Selected Reserve, in 
solicitations and resulting contracts that include an evaluation factor 
considering whether an offeror intends to perform the contract using 
employees or individual subcontractors who are members of the Selected 
Reserve.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


252.215-7005  [Removed and Reserved]

0
4. Remove and reserve section 252.215-7005.

0
5. Amend section 252.215-7006 by--
0
a. In the introductory text, removing ``215.370-3(b)'' and adding 
``215.370-3'' in its place; and
0
b. Revising the clause date and paragraph (a).
    The revisions read as follows:


252.215-7006  Use of Employees or Individual Subcontractors Who Are 
Members of the Selected Reserve.

* * * * *

Use of Employees or Individual Subcontractors Who Are Members of the 
Selected Reserve (Mar 2022)

    (a) Definition. As used in this clause--
    Selected Reserve has the meaning given that term in 10 U.S.C. 
10143. Selected Reserve members normally attend regular drills 
throughout the year and are the group of Reserves most readily 
available to the President.
* * * * *
[FR Doc. 2022-05533 Filed 3-17-22; 8:45 am]
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