[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]]





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 

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

ACTION: Interim rule.


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 

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-


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 
    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 
    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 


1. The authority citation for 48 CFR part 2 continues to read as 

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 
U.S.C. 20115.

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]