[Federal Register: June 8, 2010 (Volume 75, Number 109)]
[Rules and Regulations]               
[Page 32639-32640]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08jn10-23]                         

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 217

RIN 0750-AG67

 
Defense Federal Acquisition Regulation Supplement; Limitations on 
Procurements With Non-Defense Agencies (DFARS Case 2009-D027)

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

ACTION: Interim rule with request for comments.

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SUMMARY: DoD is issuing an interim rule to implement section 806 of the 
National Defense Authorization Act for Fiscal Year 2010 authorizing the 
placing of contracts for property and services in excess of the 
simplified acquisition threshold by certain non-DoD agencies for the 
performance of a joint program conducted to meet the needs of DoD and 
the non-DoD agency.

DATES: Effective Date: June 8, 2010.
    Comment Date: Comments on the interim rule should be submitted in 
writing to the address shown below on or before August 9, 2010, to be 
considered in the formation of the final rule.

ADDRESSES: Submit comments identified by DFARS Case 2009-D027, using 
any of the following methods:
    [cir] Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    [cir] E-mail: dfars@osd.mil. Include DFARS Case 2009-D027 in the 
subject line of the message.
    [cir] Fax: (703) 602-0350.
    [cir] Mail: Defense Acquisition Regulations System, Attn: Meredith 
Murphy, OUSD(AT&L)DPAP(DARS), 3060 Defense Pentagon, Room 3B855, 
Washington, DC 20301-3060.
    Comments received generally will be posted without change to http:/
/www.regulations.gov, including any personal information provided.

FOR FURTHER INFORMATION CONTACT: Ms. Meredith Murphy, Telephone 703-
602-1302.

SUPPLEMENTARY INFORMATION: 

A. Background

    Section 854 of the National Defense Authorization Act for Fiscal 
Year 2005 (Pub. L. 108-375) prescribed policy for the acquisition of 
supplies and services through the use of contracts or orders issued by 
non-DoD agencies. Section 801(b) of the National Defense Authorization 
Act for Fiscal Year 2008 (Pub. L. 110-181) authorized a DoD acquisition 
official to procure property and services in excess of the simplified 
acquisition threshold through a non-DoD agency only if: (1) The non-DoD 
agency agreed to adhere to defense procurement requirements; or (2) the 
Under Secretary of Defense (AT&L) certified that the procurement is in 
the best interest of DoD.
    Section 806 of the National Defense Authorization Act for Fiscal 
Year 2010 (Pub. L. 111-84) amended the limitations placed on 
procurements by non-DoD agencies by exempting such procurements that 
are (a) entered into by a non-DoD agency that is an element of the 
intelligence community and (b) when the procurement is for the 
performance of a joint program conducted to meet the needs of DoD and 
the non-DoD agency. Section 806 referred to section 3(4) of the 
National Security Act of 1947 (50 U.S.C. 401a(4)) to identify non-DoD 
agencies that are an element of the intelligence community.

B. Discussion

    The National Security Act of 1947 defines the term ``intelligence 
community'' to include a number of defense and non-defense agencies and 
portions of such agencies. The definition of ``non-DoD agency that is 
an element of the intelligence community'' replicates the statutory 
list, absent the DoD agencies.
    DFARS subpart 217.78 is amended by adding the definition at 
217.7801 and excluding such agencies from the requirements of 
217.7802(a) when the procurement is for performance of a joint program 
conducted to meet the needs of DoD and the non-DoD agency.
    This is not a significant regulatory action, and, therefore, was 
not subject to review under section 6(b) of Executive Order 12866, 
Regulatory Planning and Review, dated September 30, 1993. This rule is 
not a major rule under 5 U.S.C. 604.

C. Regulatory Flexibility Act

    DoD does not expect this interim 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 section 806 affects only internal

[[Page 32640]]

government operations and procedures. The interim rule does not impose 
any additional requirements on small businesses. Therefore, an Initial 
Regulatory Flexibility Analysis has not been performed. 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 2009-D027) in 
correspondence.

D. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to 
the DFARS do not impose information collection requirements that 
require the approval of the Office of Management and Budget under 44 
U.S.C. 3501, et seq.

E. Determination To Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Defense that urgent and compelling reasons exist to promulgate this 
interim rule without prior opportunity for public comment. This action 
is necessary because the statute became effective upon enactment, and 
it is imperative that DoD contracting officers be aware of the 
limitations on interagency procurements and the circumstances under 
which certain programs need not be delayed by such limitations. 
However, pursuant to 41 U.S.C. 418b and FAR 1.501-3, DoD will consider 
public comments received in response to this interim rule in the 
formation of the final rule.

List of Subjects in 48 CFR Part 217

    Government procurement.

Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.

0
Therefore, 48 CFR part 217 is amended as follows:

PART 217--SPECIAL CONTRACTING METHODS

0
1. The authority citation for 48 CFR part 217 continues to read as 
follows:

    Authority: 41 U.S.C. 421 and 48 CFR chapter 1.

0
2. Section 217.7800 is amended by revising paragraph (a) to read as 
follows:


217.7800  Scope of subpart.

* * * * *
    (a) Implements section 854 of the National Defense Authorization 
Act for Fiscal Year 2005 (Pub. L. 108-375), section 801 of the National 
Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181), and 
section 806 of the National Defense Authorization Act for Fiscal Year 
2010 (Pub. L. 111-84); and
* * * * *

0
3. Section 217.7801 is amended by adding the following definition in 
appropriate alphabetical order:


217.7801  Definitions.

* * * * *

Non-DoD agency that is an element of the intelligence community means 
the Office of the Director of National Intelligence; the Central 
Intelligence Agency; the intelligence elements of the Federal Bureau of 
Investigation; the intelligence elements of the Department of Energy; 
the Bureau of Intelligence and Research of the Department of State; the 
Office of Intelligence and Analysis of the Department of the Treasury; 
and the elements of the Department of Homeland Security concerned with 
the analysis of intelligence information, including the Office of 
Intelligence of the Coast Guard.

0
4. Section 217.7802 is amended by adding paragraph (a)(3) to read as 
follows:


217.7802  Policy.

    (a) * * *
    (3) The limitation in paragraph (a) of this section does not apply 
to contracts entered into by a non-DoD agency that is an element of the 
intelligence community for the performance of a joint program conducted 
to meet the needs of DoD and the non-DoD agency.
* * * * *
[FR Doc. 2010-13525 Filed 6-7-10; 8:45 am]
BILLING CODE 5001-08-P