[Federal Register Volume 78, Number 40 (Thursday, February 28, 2013)]
[Rules and Regulations]
[Pages 13765-13766]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-04599]
[[Page 13765]]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 2
[FAC 2005-66; FAR Case 2013-003; Item I; Docket 2013-0003, Sequence 1]
RIN 9000-AM48
Federal Acquisition Regulation; Definition of Contingency
Operation
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule.
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SUMMARY: DoD, GSA, and NASA are issuing an interim rule amending the
Federal Acquisition Regulation (FAR) to revise the definition of
``contingency operation'' to address the statutory change to the
definition made by the National Defense Authorization Act for Fiscal
Year 2012.
DATES: Effective February 28, 2013.
Comment Date: Interested parties should submit written comments to
the Regulatory Secretariat on or before April 29, 2013 to be considered
in the formulation of a final rule.
ADDRESSES: Submit comments identified by FAC 2005-66, FAR Case 2013-
003, by any of the following methods:
Regulations.gov: http://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by searching for ``FAR Case
2013-003''. Select the link ``Submit a Comment'' that corresponds with
``FAR Case 2013-003''. Follow the instructions provided at the ``Submit
a Comment'' screen. Please include your name, company name (if any),
and ``FAR Case 2013-003'' on your attached document.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (MVCB), ATTN: Hada Flowers, 1275 First Street NE., 7th
Floor, Washington, DC 20417.
Instructions: Please submit comments only and cite FAC 2005-66, FAR
Case 2013-003, in all correspondence related to this case. All comments
received will be posted without change to http://www.regulations.gov,
including any personal and/or business confidential information
provided.
FOR FURTHER INFORMATION CONTACT: Ms. Patricia Corrigan, Procurement
Analyst, at 202-208-1963, for clarification of content. For information
pertaining to status or publication schedules, contact the Regulatory
Secretariat at 202-501-4755. Please cite FAC 2005-66, FAR Case 2013-
003.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA are publishing an interim rule amending the FAR
to revise the definition of ``contingency operation'' at FAR 2.101 in
accordance with the statutory change to the definition made by
paragraph (b) of section 515 of the National Defense Authorization Act
for Fiscal Year 2012 (Pub. L. 112-81, enacted December 31, 2011). The
definition of ``contingency operation'' was amended at 10 U.S.C.
101(a)(13) by adding ``12304a''.
Paragraph (a) of section 515 of the National Defense Authorization
Act for Fiscal Year 2012 (Pub. L. 112-81), entitled ``Authority to
Order Army Reserve, Navy Reserve, Marine Corps Reserve, and Air Force
Reserve to Active Duty to Provide Assistance in Response to a Major
Disaster or Emergency'', amends chapter 1209 of title 10, United States
Code, by incorporating a new provision at section 12304a that provides
for treatment of an operation as a contingency operation when the
Secretary of Defense activates Reserves under the terms of 10 U.S.C.
12304a in response to a Governor's request for Federal assistance in
responding to a major disaster or emergency declared by the President.
This interim rule adds a reference to section 12304a of Title 10,
United States Code (from section 515 of the National Defense
Authorization Act for Fiscal Year 2012 (Pub. L. 112-81)) to the list of
references in section (2) of the definition of ``contingency
operation'' in FAR 2.101, Definitions.
II. Executive Order 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.
The Office of Information and Regulatory Affairs (OIRA) has deemed that
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, and that this rule is not a major
rule under 5 U.S.C. 804.
III. Regulatory Flexibility Act
The change may 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. The Initial Regulatory
Flexibility Analysis (IRFA) is summarized as follows:
Expanding the definition of ``contingency operation'' to include
responding to a Presidential declaration of a major disaster or
emergency (as defined in section 102 of the Robert T. Stafford
Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122)) will
increase the circumstances under which ``contingency operations''
may be declared, thereby allowing defense and civilian agencies to
raise thresholds, i.e., micro-purchase, simplified acquisition
threshold, for acquisitions made in support of emergencies in
accordance with the authorities listed at FAR 18.201, and exercise
preferences, such as local area set-asides or evaluation
preferences.
Because ``local businesses'' may vary in size and business
ownership, and the locations of disasters vary, we do not expect the
amendment to have a direct and sustained economic impact on a
substantial number of small entities. However, there is the
possibility that, because the Robert T. Stafford Disaster Relief and
Emergency Assistance Act provides for a preference for local
organizations, firms, and individuals when contracting for major
disaster or emergency activities, implementation of the revised
definition for ``contingency operation'' may increase opportunities
for awarding contracts to small entities located at or near major
disaster areas or emergency activities.
In addition, FAR 19.502-2(a) requires simplified acquisitions
during a contingency operation within the United States ($300,000
instead of $150,000) to be automatically reserved for small
businesses (with the usual exceptions). The ability to restrict
purchases up to two times the normal simplified acquisition
threshold for small businesses will have a significant positive
impact on small entities.
The Regulatory Secretariat has submitted a copy of the IRFA to the
Chief Counsel for Advocacy of the Small Business Administration. A copy
of the IRFA may be obtained from the Regulatory Secretariat. DoD, GSA,
and NASA invite comments from small business concerns and other
interested parties on the expected impact of this rule on small
entities.
DoD, GSA, and NASA 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 (FAC 2005-66, FAR Case
2013-003) in correspondence.
[[Page 13766]]
IV. Paperwork Reduction Act
The interim rule does not contain any information collection
requirements that require the approval of the Office of Management and
Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
V. Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense (DoD), the Administrator of General Services (GSA), and the
Administrator of the National Aeronautics and Space Administration
(NASA) that urgent and compelling reasons exist to promulgate this
interim rule without prior opportunity for public comment. This action
is necessary because section 515 of the National Defense Authorization
Act (NDAA) for Fiscal Year (FY) 2012 (Pub. L. 112-81) was enacted on
December 31, 2011, and was effective upon enactment. Section 515
provided the legal basis for declaration of contingency operations and
the exercise of related procurement flexibilities in support of
Hurricane Sandy relief in October 2012. It remains necessary to
implement the statute by revising the definition of ``contingency
operation'' in FAR 2.101 to ensure regulatory conformance with statute.
However, pursuant to 41 U.S.C. 1707 and FAR 1.501-3(b), DoD, GSA, and
NASA will consider public comments received in response to this interim
rule in the formation of the final rule.
List of Subject in 48 CFR Part 2
Government procurement.
Dated: February 20, 2013.
Laura Auletta,
Director, Office of Governmentwide Acquisition Policy, Office of
Acquisition Policy, Office of Governmentwide Policy.
Therefore, DoD, GSA, and NASA amend 48 CFR part 2 as set forth
below:
PART 2--DEFINITIONS OF WORDS AND TERMS
0
1. The authority citation for 48 CFR part 2 continues to read as
follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51
U.S.C. 20115.
0
2. Amend section 2.101, in paragraph (b)(2), by revising paragraph (2)
of the definition ``Contingency operation'' to read as follows:
2.101 Definitions.
* * * * *
(b) * * *
(2) * * *
Contingency operation * * *
(2) Results in the call or order to, or retention on, active duty
of members of the uniformed services under sections 688, 12301(a),
12302, 12304, 12304a, 12305, or 12406 of title 10 of the United States
Code, Chapter 15 of title 10 of the United States Code, or any other
provision of law during a war or during a national emergency declared
by the President or Congress.
* * * * *
[FR Doc. 2013-04599 Filed 2-27-13; 8:45 am]
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