[Federal Register Volume 78, Number 211 (Thursday, October 31, 2013)]
[Rules and Regulations]
[Pages 65218-65219]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-25727]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Part 237
RIN 0750-AI05
Defense Federal Acquisition Regulation Supplement: Private Sector
Notification Requirements of In-Sourcing Actions DFARS Case 2012-D036
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Interim rule.
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SUMMARY: DoD is issuing an interim rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to implement a section of the
National Defense Authorization Act regarding private sector
notification of in-sourcing actions.
DATES: Effective date: October 31, 2013.
Comment date: Comments on the interim rule should be submitted in
writing to the address shown below on or before December 30, 2013, to
be considered in the formation of a final rule.''
ADDRESSES: Submit comments identified by DFARS Case 2012-D036 using any
of the following methods:
[cir] Regulations.gov: http://www.regulations.gov. Submit comments
via the Federal eRulemaking portal by entering ``DFARS Case 2012-D036''
under the heading ``Enter keyword or ID'' and selecting ``Search.''
Select the link ``Submit a Comment'' that corresponds with ``DFARS Case
2012-D036.'' Follow the instructions provided at the ``Submit a
Comment'' screen. Please include your name, company name (if any), and
``DFARS Case 2012-D036 on your attached document.
[cir] Email: [email protected]. Include DFARS Case 2012-D036 in the
subject line of the message.
[cir] Fax: 571-372-6094.
[cir] Mail: Defense Acquisition Regulations System, Attn: Annette
Gray, OUSD(AT&L)DPAP/DARS, Room 3B855, 3060 Defense Pentagon,
Washington, DC 20301-3060.
Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To
confirm receipt of your comment(s), please check www.regulations.gov,
approximately two to three days after submission to verify posting
(except allow 30 days for posting of comments submitted by mail).
FOR FURTHER INFORMATION CONTACT: Annette Gray, Defense Acquisition
Regulations System, OUSD(AT&L)DPAP/DARS, Room 3B855, 3060 Defense
Pentagon, Washington, DC 20301-3060. Telephone 571-372-6093; facsimile
571-372-6101.
SUPPLEMENTARY INFORMATION:
I. Background
This interim rule revises DFARS 237.102-79 to implement section 938
of the National Defense Authorization Act (NDAA) for Fiscal Year (FY)
2012 regarding private sector notification of in-sourcing actions.
II. Discussion and Analysis
Section 938 of the NDAA requires the Secretary of Defense to
establish procedures for the timely notification of any contractor who
performs a function that the Secretary plans to convert (in-source) to
performance by DoD civilian employees. A written notification will be
provided to affected incumbent contractors within 20 business days of
the contracting officer's receipt of a decision by the cognizant
component in-sourcing program official to in-source services. The
notification will summarize why the services are being insourced and
must be coordinated with the component's in-sourcing program official.
A copy of the notification will be provided to the congressional
defense committees.
III. 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 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. This
[[Page 65219]]
rule is not a major rule under 5 U.S.C. 804.
IV. 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 it impacts only those incumbent contractors for which an in-
sourcing determination has been made. The DFARS change relates solely
to a notification requirement of a decision, made outside of
acquisition regulatory channels, to convert a contracted function to
performance by DoD civilian employees. The impact of this interim rule
will be to heighten the awareness of impacted firms. An initial
regulatory flexibility analysis has been performed and is summarized as
follows:
This action implements section 938 of the National Defense
Authorization Act (NDAA) for Fiscal Year 2012 regarding private sector
notification of in-sourcing actions. Section 938 of the NDAA requires
the Secretary of Defense to establish procedures for the timely
notification of any contractor that performs a function that the
Secretary plans to convert (in-source) to performance by DoD civilian
employees and to also provide the congressional defense committees a
copy of any such notification.
The interim rule will apply to all small business concerns that
have contracts with DoD agencies that are being in-sourced. The most
recent data from the DoD Office of Small Business Programs for fiscal
years 2009 thru 2012 shows an average of 59,362 small business concerns
have contracts with DoD. The degree of potential impact of this rule to
those concerns, however, is unknown since there is no way to gauge in
advance the extent of any future in-sourcing decisions.
There are no projected reporting, recordkeeping, and other
compliance requirements associated with this rule. The rule does not
duplicate, overlap, or conflict with any other Federal rules. DoD has
not identified any alternatives that would fulfill the requirements of
the statute and reduce impact on small businesses. Any impact of the
rule is expected to be beneficial to small businesses, by giving them
timely notification of planned in-sourcing actions.
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 2012-D036),
in correspondence.
V. Paperwork Reduction Act
The 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).
VI. Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense, pursuant to 41 U.S.C. 1707(d), that urgent and compelling
reasons exist to promulgate this rule on an interim basis without prior
opportunity for public comment. This action is necessary to implement
section 938 of the National Defense Authorization Act (NDAA) for Fiscal
Year 2012, which requires DoD to provide notification to the private
sector of in-sourcing action determinations. Section 938 requires the
Secretary of Defense to establish procedures for the timely
notification of any incumbent contractor who performs a function that
the Secretary plans to convert (in-source) to performance by DoD
civilian employees. The notification must also be provided to the
congressional defense committees. In-sourcing decisions may have a
significant economic effect on firms that have contracts with DoD.
Firms that are not notified on a timely basis of an in-sourcing
determination that impacts them have less time to prepare for lost
revenue and to make staffing adjustments. The rule, in addition to
ensuring that there will be timely notification to affected
contractors, should help facilitate a more seamless transition in
services when implementing in-sourcing requirements. Nonetheless,
pursuant to 41 U.S.C. 1707 and FAR 1.501-3(b), 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 237
Government procurement.
Manuel Quinones,
Editor, Defense Acquisition Regulations System.
Therefore, 48 CFR part 237 are amended as follows:
PART 237--SERVICE CONTRACTING
0
1. The authority citation for 48 CFR part 237 continues to read as
follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
0
2. Section 237.102-79 is revised to read as follows:
237.102-79 Private sector notification requirements in support of in-
sourcing actions.
In accordance with 10 U.S.C. 2463, contracting officers shall
provide written notification to affected incumbent contractors of
Government in-sourcing determinations. Notification shall be provided
within 20 business days of the contracting officer's receipt of a
decision from the cognizant component in-sourcing program official. The
notification will summarize the requiring official's final
determination as to why the service is being in-sourced and shall be
coordinated with the component's in-sourcing program official. No
formal hiring or contract-related actions may be initiated prior to
such notification, except for preliminary internal actions associated
with hiring or contract modification. The memorandum on private sector
notification requirements in support of in-sourcing actions is
available at PGI 237.1, under the Supplemental Information tab.
[FR Doc. 2013-25727 Filed 10-30-13; 8:45 am]
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