[Federal Register Volume 88, Number 80 (Wednesday, April 26, 2023)]
[Rules and Regulations]
[Pages 25474-25476]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-08197]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1, 8, 51, and 52

[FAC 2023-03; FAR Case 2022-007; Item I; Docket No. FAR-2022-0004; 
Sequence No. 1]
RIN 9000-AO44


Federal Acquisition Regulation: Removal of FAR Subpart 8.5, 
Acquisition of Helium

AGENCY: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

[[Page 25475]]


ACTION: Final rule.

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SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the 
Federal Acquisition Regulation (FAR) to implement the statutory 
expiration of the Federal Helium System in accordance with the Helium 
Stewardship Act of 2013.

DATES: Effective May 26, 2023.

FOR FURTHER INFORMATION CONTACT: Mr. Michael O. Jackson, Procurement 
Analyst, at 202-208-4949 or by email at [email protected], for 
clarification of content. For information pertaining to status or 
publication schedules, contact the Regulatory Secretariat Division at 
202-501-4755 or [email protected]. Please cite FAC 2023-03, FAR Case 
2022-007.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD, GSA, and NASA published a proposed rule at 87 FR 57166 on 
September 19, 2022, to implement the final disposition of the Federal 
Helium System in accordance with the Helium Stewardship Act of 2013 
(Pub. L. 113-40), which required the disposal of the Federal Helium 
System by September 30, 2021. The Act required the Department of the 
Interior (DOI), through the Director of the Bureau of Land Management 
(BLM), to begin offering helium for auction or sale on an annual basis. 
Under the Federal In-Kind Program, Federal agencies were required to 
purchase all of their refined helium from private suppliers who, in 
turn, were required to purchase an equivalent amount of crude helium 
from the Federal Helium Reserve.
    On April 16, 2020, the BLM announced the process and timeline for 
disposal of the remaining helium and helium assets to meet the 
September 30, 2021, statutory deadline. Excess helium and helium assets 
remaining after September 30, 2021, were transferred to GSA, in 
accordance with the statutory disposal process. Federal In-Kind users 
were provided access to helium until September 30, 2022, while GSA 
completed the disposal process. Federal In-Kind users are now required 
to seek new sources of helium on the open market.

II. Discussion and Analysis

    There were no public comments submitted in response to the proposed 
rule, and no changes were made to the final rule.

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

    This final rule removes FAR clause 52.208-8, Required Sources for 
Helium and Helium Usage Data; FAR subpart 8.5--Acquisition of Helium; 
and other associated language in FAR parts 1, 8, and 51. The final 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. Expected Impact of the Rule

    This final rule is not expected to have a significant impact on the 
Government or industry because the operation of the Federal Helium 
Reserve ceased on September 30, 2021, and agencies were notified that 
the Federal In-Kind Program would end on September 30, 2022. Agencies 
now have to procure helium on the open market as they do for other 
requirements.

V. 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 rule 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.

VI. 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, GSA, and NASA will 
send the rule and the ``Submission of Federal Rules Under the 
Congressional Review Act'' form to each House of the Congress and to 
the Comptroller General of the United States. A major rule cannot take 
effect until 60 days after it is published in the Federal Register. The 
Office of Information and Regulatory Affairs (OIRA) in the Office of 
Management and Budget has determined that this is not a major rule 
under 5 U.S.C. 804.

VII. Regulatory Flexibility Act

    DoD, GSA, and NASA have prepared a Final Regulatory Flexibility 
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 
U.S.C. 601-612. The FRFA is summarized as follows:

    This rule implements the statutory expiration of the Federal 
Helium System in accordance with the Helium Stewardship Act of 2013 
(Pub. L. 113-40). The Helium Stewardship Act required the disposal 
of the Federal Helium System by September 30, 2021. The Federal In-
Kind Program ended a year later, on September 30, 2022.
    The objective of the rule is to remove the Federal Helium System 
requirements from the FAR to comply with the statutory direction.
    There were no significant issues raised by the public in 
response to the initial regulatory flexibility analysis provided in 
the proposed rule.
    This rule applies to all solicitations and contracts for the 
procurement of helium. The final rule removes all of the procedures 
and reporting requirements associated with helium procurements 
currently in the FAR. Procurements for helium shall be conducted 
using the most appropriate methods in the FAR. The rule is not 
expected to impact a significant number of entities.
    According to data from the Bureau of Land Management, there were 
approximately seven remaining entities participating in the Federal 
In-Kind Program in calendar year 2020. Data obtained from the System 
for Award Management as of June 14, 2022, indicates that of those 
seven entities, there are no small entities participating in the 
Federal In-Kind Program.
    This final rule does not include any new reporting, 
recordkeeping, or other compliance requirements for small entities. 
Rather, this rule removes current reporting and compliance 
requirements for small entities.
    There are no known significant alternative approaches to the 
final rule.

    Interested parties may obtain a copy of the FRFA from the 
Regulatory Secretariat Division. The Regulatory Secretariat Division 
has submitted a copy of the FRFA to the Chief Counsel for Advocacy of 
the Small Business Administration.

VIII. Paperwork Reduction Act

    The Helium Stewardship Act of 2013 (Pub. L. 113-40) required the 
disposal of the Federal Helium System by September 30, 2021. The 
operation of the Federal Helium Reserve has ended, and agencies now 
procure helium on the open market as they do for other requirements. 
OMB Control Number 9000-0113, Acquisition of Helium, was discontinued. 
Therefore, this rule does not contain information collection 
requirements that require the approval of the Office of Management and 
Budget under the Paperwork Reduction Action (44 U.S.C. 3501-3521).

[[Page 25476]]

List of Subjects in 48 CFR Parts 1, 8, 51, and 52

    Government procurement.

William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.

    Therefore, DoD, GSA, and NASA amend 48 CFR parts 1, 8, 51, and 52 
as set forth below:

0
1. The authority citation for 48 CFR parts 1, 8, 51, and 52 continues 
to read as follows:

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 4 and 10 U.S.C. 
chapter 137 legacy provisions (see 10 U.S.C. 3016); and 51 U.S.C. 
20113.

PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM


1.106  [Amended]

0
2. In section 1.106 amend the table by removing FAR segment ``8.5'' and 
the corresponding OMB Control Number ``9000-0113''.

PART 8--REQUIRED SOURCES OF SUPPLIES AND SERVICES


8.003  [Amended]

0
3. Amend section 8.003 by removing paragraph (e).

Subpart 8.5 [Removed and Reserved]

0
4. Remove and reserve subpart 8.5, consisting of sections 8.500 through 
8.505.

PART 51--USE OF GOVERNMENT SOURCES BY CONTRACTORS

0
5. Amend section 51.102 by--
0
a. Removing from the end of paragraph (c)(3) ``20420;'' and adding 
``20420; or'' in its place;
0
b. Removing paragraph (c)(4);
0
c. Redesignating paragraph (c)(5) as paragraph (c)(4);
0
d. Removing from the newly redesignated paragraph (c)(4) the words 
``(1) through (4) above'' and adding the phrase ``paragraphs (c)(1) 
through (c)(3) of this section'' in its place;
0
e. Removing from the end of paragraph (e)(3)(i) the word ``DoD;'' and 
adding ``DoD; and'' in its place;
0
f. Removing from the end of paragraph (e)(3)(ii) the word ``and''; and
0
g. Removing paragraph (e)(3)(iii).

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


52.208-8  [Removed and Reserved]

0
6. Remove and reserve section 52.208-8.

[FR Doc. 2023-08197 Filed 4-25-23; 8:45 am]
BILLING CODE 6820-EP-P