[Federal Register: July 26, 2005 (Volume 70, Number 142)]
[Rules and Regulations]               
[Page 43072-43073]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26jy05-22]                         

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DEPARTMENT OF DEFENSE

48 CFR Part 219

[DFARS Case 2004-D031]

 
Defense Federal Acquisition Regulation Supplement; Sole Source 
8(a) Awards to Small Business Concerns Owned by Native Hawaiian 
Organizations

AGENCY: Department of Defense (DoD).

ACTION: Interim rule with request for comments.

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SUMMARY: DoD has issued an interim rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to implement DoD 
appropriations act provisions permitting the award of sole source 
contracts to small business concerns owned by Native Hawaiian 
Organizations. The rule applies to manufacturing contacts exceeding 
$5,000,000 and non-manufacturing contracts exceeding $3,000,000 that 
are awarded under the Small Business Administration's 8(a) Program.

DATES: Effective Date: July 26, 2005.
    Comment date: Comments on the interim rule should be submitted to 
the address shown below on or before September 26, 2005 to be 
considered in the formation of the final rule.

ADDRESSES: You may submit comments, identified by DFARS Case 2004-D031, 
using any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 

Follow the instructions for submitting comments.
     Defense Acquisition Regulations Web Site: http://emissary.acq.osd.mil/dar/dfars.nsf/pubcomm.
 Follow the instructions for 

submitting comments.
     E-mail: dfars@osd.mil. Include DFARS Case 2004-D031 in the 
subject line of the message.
     Fax: (703) 602-0350.
     Mail: Defense Acquisition Regulations Council, Attn: Ms. 
Deborah Tronic, OUSD (AT&L) DPAP (DAR), IMD 3C132, 3062 Defense 
Pentagon, Washington, DC 20301-3062.
     Hand Delivery/Courier: Defense Acquisition Regulations 
Council, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA 
22202-3402.
    All comments received will be posted to http://emissary.acq.osd.mil/dar/dfars.nsf
.


FOR FURTHER INFORMATION CONTACT: Ms. Deborah Tronic, (703) 602-0289.

SUPPLEMENTARY INFORMATION:

A. Background

    Section 8021 of the DoD Appropriations Act for Fiscal Year 2004 
(Pub. L. 108-87) and Section 8021 of the DoD Appropriations Act for 
Fiscal Year 2005 (Pub. L. 108-287) provide funding for the DoD Indian 
Incentive Program, which is implemented in DFARS Subpart 226.1. The 
appropriations act provisions also require that small business concerns 
owned by Native Hawaiian Organizations be provided the same status as 
Indian tribes and Alaska Native Corporations with regard to contract 
awards under the Small Business Administration's (SBA) 8(a) Program. 
Under the 8(a) Program, as implemented in FAR Subpart 19.8, competition 
is required for manufacturing contracts exceeding $5,000,000 and non-
manufacturing contracts exceeding $3,000,000, unless (1) there is not a 
reasonable expectation that at least two eligible and responsible 8(a) 
firms will submit offers at a fair market price, or (2) SBA accepts the 
requirement on behalf of a concern owned by an Indian tribe or an 
Alaska Native Corporation. This interim rule expands the competition 
exceptions to include requirements accepted on behalf of a small 
business concern owned by a Native Hawaiian Organization.
    This rule was not subject to Office of Management and Budget review 
under Executive Order 12866, dated September 30, 1993.

B. Regulatory Flexibility Act

    DoD has prepared an initial regulatory flexibility analysis 
consistent with 5 U.S.C. 603. The analysis is summarized as follows:
    This interim rule amends the DFARS to implement DoD appropriations 
act provisions permitting the award of sole source contracts to small 
business concerns owned by Native Hawaiian Organizations. The rule 
applies to manufacturing contacts exceeding $5,000,000 and non-
manufacturing contracts exceeding $3,000,000 that are awarded under the 
Small Business Administration's 8(a) Program. The objective of the rule 
is to provide small business concerns owned by Native Hawaiian 
Organizations the same status that is provided to Indian tribes and 
Alaska Native Corporations under the 8(a) Program. Awards to these 
entities are exempted from the competition requirements that would 
otherwise apply to award of manufacturing contacts exceeding $5,000,000 
and non-manufacturing contracts exceeding $3,000,000 under the Program. 
The legal basis for the rule is Section 8021 of the DoD Appropriations 
Act for Fiscal Year 2004 (Pub. L. 108-87) and Section 8021 of the DoD 
Appropriations Act for Fiscal Year 2005 (Pub. L. 108-287). The rule 
will benefit small business concerns that are owned by Native Hawaiian 
Organizations by permitting sole source contract awards to these 
concerns.
    A copy of the analysis may be obtained from the point of contact 
specified herein. DoD invites comments from small businesses and other 
interested parties. DoD also will consider comments from small entities 
concerning the affected DFARS subpart in accordance with 5 U.S.C. 610. 
Such comments should be submitted separately and should cite DFARS Case 
2004-D031.

[[Page 43073]]

C. Paperwork Reduction Act

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

D. 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 publish an 
interim rule prior to affording the public an opportunity to comment. 
This interim rule implements Section 8021 of the DoD Appropriations Act 
for Fiscal Year 2004 (Pub. L. 108-87) and Section 8021 of the DoD 
Appropriations Act for Fiscal Year 2005 (Pub. L. 108-287). These 
statutes require that small business concerns owned by Native Hawaiian 
Organizations be provided the same status as Indian tribes and Alaska 
Native Corporations with regard to contract awards under the Small 
Business Administration's 8(a) Program. Application of this status will 
permit small business concerns owned by Native Hawaiian Organizations 
to receive sole source contract awards under the 8(a) Program, in 
amounts exceeding the thresholds at which competition would otherwise 
be required. Comments received in response to this interim rule will be 
considered in the formation of the final rule.

List of Subjects in 48 CFR Part 219

    Government procurement.

Michele P. Peterson,
Editor, Defense Acquisition Regulations System.

0
Therefore, 48 CFR part 219 is amended as follows:
0
1. The authority citation for 48 CFR part 219 continues to read as 
follows:

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

PART 219--SMALL BUSINESS PROGRAMS

0
2. Section 219.805-1 is added to read as follows:


219.805-1  General.

    (b)(2)(A) For acquisitions that exceed the competitive threshold 
and use fiscal year 2004 or 2005 appropriated funds, the SBA also may 
accept the requirement for a sole source 8(a) award on behalf of a 
small business concern owned by a Native Hawaiian Organization (Section 
8021 of Pub. L. 108-87 and Section 8021 of Pub. L. 108-287).
    (B) Native Hawaiian Organization, as used in this subsection and as 
defined by 15 U.S.C. 637(a)(15) and 13 CFR 124.3, means any community 
service organization serving Native Hawaiians in the State of Hawaii--
    (1) That is a not-for-profit organization chartered by the State of 
Hawaii;
    (2) That is controlled by Native Hawaiians; and
    (3) Whose business activities will principally benefit such Native 
Hawaiians.

[FR Doc. 05-14624 Filed 7-25-05; 8:45 am]

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