83 FR 62502 - Defense Federal Acquisition Regulation Supplement: Modification of DFARS Clause “Surge Option” (DFARS Case 2018-D025)
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System Federal Register Volume 83, Issue 233 (December 4, 2018)
Defense Acquisition Regulations System
Federal Register Volume 83, Issue 233 (December 4, 2018)
| Page Range | 62502-62503 | |
| FR Document | 2018-26307 |
[Federal Register Volume 83, Number 233 (Tuesday, December 4, 2018)] [Rules and Regulations] [Pages 62502-62503] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-26307] ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 217 and 252 [Docket DARS-2018-D036] RIN 0750-AJ87 Defense Federal Acquisition Regulation Supplement: Modification of DFARS Clause ``Surge Option'' (DFARS Case 2018-D025) AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to revise a clause to reflect current terminology and industry practices, pursuant to action taken by the DoD Regulatory Reform Task Force. DATES: Effective December 4, 2018. FOR FURTHER INFORMATION CONTACT: Ms. Carrie Moore, telephone 571-372- 6093. SUPPLEMENTARY INFORMATION: I. Background DoD published a proposed rule in the Federal Register at 83 FR 30659 on June 29, 2018, to modify DFARS clause 252.217-7001, Surge Option, to replace the term ``Production Surge Plan (DI-MGMT-80969)'' with ``Capabilities Analysis Plan (CAP)'' and add text to permit the option increase of supplies or services called for under the clause to be expressed as a specific number. The associated clause prescription at DFARS 217.208-70(b) is amended to reflect that the option increase of supplies or services may also be expressed as a specific number. This rule supports a recommendation from the DoD Regulatory Reform Task Force under Executive Order (E.O.) 13777, Enforcing the Regulatory Reform Agenda. One respondent submitted a public comment in response to the proposed [[Page 62503]] rule. The comment is outside the scope of this case and no changes are made in the final rule. II. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Off-the-Shelf Items This rule does not propose to create any new provisions or clauses. The proposed changes to DFARS clause 252.217-7001, Surge Option, are minimal and reflect only updates required to mirror current industry terminology and practice for support that may be required for industrial planning for selected essential military items in the event of an emergency. The rule continues to apply to contracts below the simplified acquisition threshold, however, the rule does not apply to commercial items, including commercially available off-the-shelf items. III. Executive Orders 12866 and 13563 E.O. 12866, Regulatory Planning and Review; and E.O. 13563, Improving Regulation and Regulatory Review, 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 Management and Budget, Office of Information and Regulatory Affairs (OIRA), has determined that this is not a significant regulatory action as defined under section 3(f) of E.O. 12866 and, therefore, was not subject to review under section 6(b). This rule is not a major rule as defined at 5 U.S.C. 804(2). IV. Executive Order 13771 This final rule is not subject to E.O. 13771, because this rule is not significant under E.O. 12866. V. Regulatory Flexibility Act A final regulatory flexibility analysis (FRFA) has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. The FRFA is summarized as follows: The Department of Defense is amending the Defense Federal Acquisition Regulation Supplement (DFARS) to revise a clause to reflect current terminology and industry practices. The objective of this rule is to improve the flexibility offered to contractors submitting pricing for surge options by giving them the option to quote prices by percentage or quantity increases, and to update the terminology used from ``Production Surge Plan'' to ``Capability Analysis Plan'' (CAP), since this is the most current and accurate term for this type of plan. The modification of this DFARS text supports a recommendation from the DoD Regulatory Reform Task Force under E.O. 13777, Enforcing the Regulatory Reform Agenda. No public comments were received in response to the initial regulatory flexibility analysis. This rule is not expected 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 the scope of the rule limits the application of the reporting requirement to a small number of service contracts. Based on fiscal year 2017 data from the Federal Procurement Data System, the Government issued approximately 78 contract actions that used mobilization or essential research and development as the reason for other than full and open competition. Of the 78 contract actions, approximately 33 awards were made to 24 unique small entities. This rule does not include any new reporting, recordkeeping, or other compliance requirements for small businesses. There are no known significant alternative approaches to the rule that would meet the proposed objectives. VI. 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). List of Subjects in 48 CFR Parts 217 and 252 Government procurement. Jennifer Lee Hawes, Regulatory Control Officer, Defense Acquisition Regulations System. Therefore, 48 CFR parts 217 and 252 are amended as follows: 1. The authority citation for parts 217 and 252 continues to read as follows: Authority: 41 U.S.C. 1303 and 48 CFR chapter 1. PART 217--SPECIAL CONTRACTING METHODS 217.208-70 [Amended] 0 2. In section 217.208-70, amend paragraph (b)(1), by removing ``percentage'' and adding ``percentage or quantity'' in its place. PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES 0 3. Amend section 252.217-7001 by-- 0 a. Removing the clause date of ``(AUG 1992)'' and adding ``(DEC 2018)'' in its place; 0 b. Revising paragraph (a)(1); 0 c. In paragraph (b)(1), removing ``Production Surge Plan (DI-MGMT 80969)'' and adding ``Capabilities Analysis Plan (CAP)'' in its place; and 0 d. In paragraph (b)(2), removing ``Production Surge Plan'' and adding ``CAP'' in its place. The revision reads as follows: 252.217-7001. Surge option. * * * * * (a) * * * (1) Increase the quantity of supplies or services called for under this contract by no more than __percent or __[insert quantity and description of services or supplies to be increased]; and/or * * * * * [FR Doc. 2018-26307 Filed 12-3-18; 8:45 am] BILLING CODE 5001-06-P
![62502 Federal Register / Vol. 83, No. 233 / Tuesday, December 4, 2018 / Rules and Regulations
prior to requesting another agency to V. Publication of This Final Rule for 217.502–1 General.
conduct an acquisition on its behalf, to Public Comment Is Not Required by (a) Written agreement on
make a determination that the use of an Statute responsibility for management and
interagency acquisition represents the administration—
best procurement approach. The The statute that applies to the (1) Assisted acquisitions. Follow the
requirement for a best procurement publication of the Federal Acquisition procedures at PGI 217.502–1(a)(1), when
Regulation (FAR) is Office of Federal a contracting activity from a DoD
approach determination is implemented
Procurement Policy statute (codified at Component provides acquisition
at Federal Acquisition Regulations
title 41 of the United States Code). assistance to deployed DoD units or
(FAR) 17.502–1(a). Removal of the Specifically, 41 U.S.C. 1707(a)(1)
requirement from the FAR, in personnel from another DoD
requires that a procurement policy, Component.
accordance with section 875, is being regulation, procedure or form (including [FR Doc. 2018–26309 Filed 12–3–18; 8:45 am]
accomplished under FAR case 2018– an amendment or modification thereof) BILLING CODE 5001–06–P
015. This rule removes supplemental must be published for public comment
text from DFARS 217.502–1 that advises if it relates to the expenditure of
contracting officers, when providing appropriated funds, and has either a DEPARTMENT OF DEFENSE
acquisition assistance to deployed DoD significant effect beyond the internal
units or personnel from another DoD operating procedures of the agency Defense Acquisition Regulations
Component, to obtain the determination issuing the policy, regulation, System
from the requiring DoD unit or procedure, or form, or has a significant
personnel. cost or administrative impact on 48 CFR Parts 217 and 252
contractors or offerors. This final rule is [Docket DARS–2018–D036]
II. Applicability to Contracts at or not required to be published for public
Below the Simplified Acquisition comment, because it only impacts RIN 0750–AJ87
Threshold and for Commercial Items, determination and documentation
Including Commercially Available Off- processes that are internal to the agency. Defense Federal Acquisition
the-Shelf Items Regulation Supplement: Modification
VI. Regulatory Flexibility Act of DFARS Clause ‘‘Surge Option’’
This rule only impacts the internal (DFARS Case 2018–D025)
operating procedures of the agency. As Because a notice of proposed
such, the rule does not impose any new rulemaking and an opportunity for AGENCY: Defense Acquisition
requirements on contracts at or below public comment are not required to be Regulations System, Department of
given for this rule under 41 U.S.C. Defense (DoD).
the simplified acquisition threshold or
for commercial items, including 1707(a)(1) (see section V. of this ACTION: Final rule.
commercially available off-the-shelf preamble), the analytical requirements
of the Regulatory Flexibility Act (5 SUMMARY: DoD is issuing a final rule
items. amending the Defense Federal
U.S.C. 601 et seq.) are not applicable.
III. Executive Orders 12866 and 13563 Accordingly, no regulatory flexibility Acquisition Regulation Supplement
analysis is required and none has been (DFARS) to revise a clause to reflect
Executive Order (E.O.) 12866, prepared. current terminology and industry
Regulatory Planning and Review; and practices, pursuant to action taken by
E.O. 13563, Improving Regulation and VII. Paperwork Reduction Act the DoD Regulatory Reform Task Force.
Regulatory Review, direct agencies to The rule does not contain any DATES: Effective December 4, 2018.
assess all costs and benefits of available information collection requirements that FOR FURTHER INFORMATION CONTACT: Ms.
regulatory alternatives and, if regulation require the approval of the Office of Carrie Moore, telephone 571–372–6093.
is necessary, to select regulatory Management and Budget under the SUPPLEMENTARY INFORMATION:
approaches that maximize net benefits Paperwork Reduction Act (44 U.S.C.
(including potential economic, I. Background
chapter 35).
environmental, public health and safety DoD published a proposed rule in the
effects, distributive impacts, and List of Subjects in 48 CFR Part 217 Federal Register at 83 FR 30659 on June
equity). E.O. 13563 emphasizes the Government procurement. 29, 2018, to modify DFARS clause
importance of quantifying both costs 252.217–7001, Surge Option, to replace
and benefits, of reducing costs, of Jennifer Lee Hawes, the term ‘‘Production Surge Plan (DI–
harmonizing rules, and of promoting Regulatory Control Officer, Defense MGMT–80969)’’ with ‘‘Capabilities
flexibility. The Office of Management Acquisition Regulations System. Analysis Plan (CAP)’’ and add text to
and Budget, Office of Information and permit the option increase of supplies or
Regulatory Affairs (OIRA), has Therefore, 48 CFR part 217 is services called for under the clause to be
determined that this is not a significant amended as follows: expressed as a specific number. The
regulatory action as defined under associated clause prescription at DFARS
PART 217—SPECIAL CONTRACTING 217.208–70(b) is amended to reflect that
section 3(f) of E.O. 12866 and, therefore, METHODS
was not subject to review under section the option increase of supplies or
services may also be expressed as a
6(b). This rule is not a major rule as ■ 1. The authority citation for 48 CFR specific number. This rule supports a
defined at 5 U.S.C. 804(2). part 217 continues to read as follows: recommendation from the DoD
IV. Executive Order 13771 Authority: 41 U.S.C. 1303 and 48 CFR Regulatory Reform Task Force under
chapter 1. Executive Order (E.O.) 13777, Enforcing
This final rule is not an E.O. 13771 the Regulatory Reform Agenda.
regulatory action, because this rule is ■ 2. Revise section 217.502–1 to read as One respondent submitted a public
not significant under E.O. 12866. follows: comment in response to the proposed
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![Federal Register / Vol. 83, No. 233 / Tuesday, December 4, 2018 / Rules and Regulations 62503
rule. The comment is outside the scope improve the flexibility offered to PART 217—SPECIAL CONTRACTING
of this case and no changes are made in contractors submitting pricing for surge METHODS
the final rule. options by giving them the option to
217.208–70 [Amended]
II. Applicability to Contracts at or quote prices by percentage or quantity
Below the Simplified Acquisition increases, and to update the terminology ■ 2. In section 217.208–70, amend
Threshold and for Commercial Items, used from ‘‘Production Surge Plan’’ to paragraph (b)(1), by removing
Including Commercially Available Off- ‘‘Capability Analysis Plan’’ (CAP), since ‘‘percentage’’ and adding ‘‘percentage or
the-Shelf Items this is the most current and accurate quantity’’ in its place.
term for this type of plan. The
This rule does not propose to create PART 252—SOLICITATION
modification of this DFARS text
any new provisions or clauses. The PROVISIONS AND CONTRACT
proposed changes to DFARS clause supports a recommendation from the
CLAUSES
252.217–7001, Surge Option, are DoD Regulatory Reform Task Force
minimal and reflect only updates under E.O. 13777, Enforcing the ■ 3. Amend section 252.217–7001 by—
required to mirror current industry Regulatory Reform Agenda. ■ a. Removing the clause date of ‘‘(AUG
terminology and practice for support No public comments were received in 1992)’’ and adding ‘‘(DEC 2018)’’ in its
that may be required for industrial response to the initial regulatory place;
planning for selected essential military flexibility analysis. ■ b. Revising paragraph (a)(1);
items in the event of an emergency. The ■ c. In paragraph (b)(1), removing
This rule is not expected to have a
rule continues to apply to contracts ‘‘Production Surge Plan (DI–MGMT
significant economic impact on a 80969)’’ and adding ‘‘Capabilities
below the simplified acquisition
substantial number of small entities Analysis Plan (CAP)’’ in its place; and
threshold, however, the rule does not
within the meaning of the Regulatory ■ d. In paragraph (b)(2), removing
apply to commercial items, including
commercially available off-the-shelf Flexibility Act, 5 U.S.C. 601, et seq., ‘‘Production Surge Plan’’ and adding
items. because the scope of the rule limits the ‘‘CAP’’ in its place.
application of the reporting requirement The revision reads as follows:
III. Executive Orders 12866 and 13563 to a small number of service contracts.
E.O. 12866, Regulatory Planning and Based on fiscal year 2017 data from the 252.217–7001. Surge option.
Review; and E.O. 13563, Improving Federal Procurement Data System, the * * * * *
Regulation and Regulatory Review, Government issued approximately 78 (a) * * *
direct agencies to assess all costs and contract actions that used mobilization (1) Increase the quantity of supplies or
benefits of available regulatory or essential research and development services called for under this contract by
alternatives and, if regulation is as the reason for other than full and no more than llpercent or ll[insert
necessary, to select regulatory open competition. Of the 78 contract quantity and description of services or
approaches that maximize net benefits actions, approximately 33 awards were supplies to be increased]; and/or
(including potential economic, made to 24 unique small entities. * * * * *
environmental, public health and safety [FR Doc. 2018–26307 Filed 12–3–18; 8:45 am]
effects, distributive impacts, and This rule does not include any new
BILLING CODE 5001–06–P
equity). E.O. 13563 emphasizes the reporting, recordkeeping, or other
importance of quantifying both costs compliance requirements for small
and benefits, of reducing costs, of businesses.
DEPARTMENT OF TRANSPORTATION
harmonizing rules, and of promoting There are no known significant
flexibility. The Office of Management alternative approaches to the rule that Federal Motor Carrier Safety
and Budget, Office of Information and would meet the proposed objectives. Administration
Regulatory Affairs (OIRA), has
determined that this is not a significant VI. Paperwork Reduction Act 49 CFR Parts 383 and 384
regulatory action as defined under The rule does not contain any
section 3(f) of E.O. 12866 and, therefore, [Docket No. FMCSA–2001–11117]
information collection requirements that
was not subject to review under section RIN 2126–AA70
require the approval of the Office of
6(b). This rule is not a major rule as
Management and Budget under the
defined at 5 U.S.C. 804(2). Limitations on the Issuance of
Paperwork Reduction Act (44 U.S.C.
Commercial Driver’s Licenses With a
IV. Executive Order 13771 chapter 35). Hazardous Materials Endorsement
This final rule is not subject to E.O. List of Subjects in 48 CFR Parts 217 and
13771, because this rule is not AGENCY: Federal Motor Carrier Safety
252 Administration (FMCSA), DOT.
significant under E.O. 12866.
Government procurement. ACTION: Interim rules; re-opening of the
V. Regulatory Flexibility Act
comment period.
A final regulatory flexibility analysis Jennifer Lee Hawes,
(FRFA) has been prepared consistent Regulatory Control Officer, Defense SUMMARY: In May 2003 and April 2005,
with the Regulatory Flexibility Act, 5 Acquisition Regulations System. FMCSA published interim final rules
U.S.C. 601, et seq. The FRFA is (IFR) regarding the limitations on the
summarized as follows: Therefore, 48 CFR parts 217 and 252 issuance of commercial driver’s licenses
The Department of Defense is are amended as follows: 1. The with a hazardous materials
amending the Defense Federal authority citation for parts 217 and 252 endorsement. The comment period for
Acquisition Regulation Supplement continues to read as follows: the May 2003 IFR closed on July 7,
(DFARS) to revise a clause to reflect Authority: 41 U.S.C. 1303 and 48 CFR 2003; there was no comment period for
current terminology and industry chapter 1. the April 2005 IFR. The Agency
practices. The objective of this rule is to received over 50 comments on the 2003
VerDate Sep<11>2014 16:14 Dec 03, 2018 Jkt 247001 PO 00000 Frm 00055 Fmt 4700 Sfmt 4700 E:\FR\FM\04DER1.SGM 04DER1](https://thefederalregister.org/doc/83_FR_62735/page/2.svg)
Document Created: 2018-12-04 00:42:37
Document Modified: 2018-12-04 00:42:37
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | Effective December 4, 2018. | |
| Contact | Ms. Carrie Moore, telephone 571-372- 6093. | |
| FR Citation | 83 FR 62502 | |
| RIN Number | 0750-AJ87 | |
| CFR Citation | 48
CFR
217 48 CFR 252 |
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