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[Federal Register Volume 76, Number 142 (Monday, July 25, 2011)]
[Rules and Regulations]
[Pages 44280-44281]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-18380]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 202 and 218

RIN-0750-AH29

Defense Federal Acquisition Regulation Supplement; Simplified 

Acquisition Threshold for Humanitarian or Peacekeeping Operations 

(DFARS Case 2011-D032)

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 the authority 

provided by 10 U.S.C. 2302(7) to invoke a simplified acquisition 

threshold that is two times the amount specified at 41 U.S.C. 134 

(formerly 41 U.S.C. 403(11)), as amended by section 807 of the National 

Defense Authorization Act for Fiscal Year 2005, to support a 

humanitarian or peacekeeping operation. The current simplified 

acquisition threshold is $150,000 as specified in Federal Acquisition 

Regulation 2.101.

DATES: Effective Date: July 25, 2011.

    Comment Date: Comments on the interim rule should be submitted in 

writing to the address shown below on or before September 23, 2011 to 

be considered in the formation of the final rule.

ADDRESSES: Submit comments identified by DFARS Case 2011-D032, using 

any of the following methods:

    Regulations.gov: http://www.regulations.gov.

    Submit comments via the Federal eRulemaking portal by inputting 

``DFARS Case 2011-D032'' under the heading ``Enter keyword or ID'' and 

selecting ``Search.'' Select the link ``Submit a Comment'' that 

corresponds with ``DFARS Case 2011-D032.'' Follow the instructions 

provided at the ``Submit a Comment'' screen. Please include your name, 

company name (if any), and ``DFARS Case 2011-D032'' on your attached 

document. Follow the instructions for submitting comments.

     E-mail: dfars@osd.mil. Include DFARS Case 2011-D032 in the 

subject line of the message.

     Fax: 703-602-0350.

     Mail: Defense Acquisition Regulations System, ATTN: 

Meredith Murphy, 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: Meredith Murphy, telephone 703-602-

1302.

SUPPLEMENTARY INFORMATION: 

I. Background

    United States laws provide for special emergency procurement 

authorities to be used--

    (a) In support of a contingency operation;

    (b) To facilitate the defense against or recovery from nuclear, 

biological,

[[Page 44281]]

chemical, or radiological attack against the United States; and

    (c) In support of a humanitarian or peacekeeping operation.

    The first two of the authorities above were made available for use 

by agencies in addition to DoD by placing them at 41 U.S.C. 1903 

(formerly 41 U.S.C. 428a). The latter authority resides solely in DoD.

    The three special emergency procurement authorities are specified 

in statute:

     Contingency operation: 10 U.S.C. 101(13) and 41 U.S.C. 

1903 (formerly 41 U.S.C. 428a).

     Defense against or recovery from nuclear, biological, 

chemical, or radiological attack against the United States: 41 U.S.C. 

1903 (formerly 41 U.S.C. 428a).

     Humanitarian or peacekeeping operation: 10 U.S.C. 2302(7).

    After September 11, 2001, the Governmentwide special emergency 

procurement authorities were enacted (41 U.S.C. 1903 (formerly 41 

U.S.C. 428a). These authorities provided for increases in the 

simplified acquisition threshold and/or micropurchase threshold 

depending on what type of special emergency is declared. The Federal 

Acquisition Regulation (FAR) was revised to implement the authority to 

increase thresholds when supporting a contingency operation or 

facilitating the defense against or recovery from nuclear, biological, 

chemical, or radiological attack against the United States.

    While the definition of a humanitarian or peacekeeping operation is 

included in the FAR at 2.101, 41 U.S.C. 1903 does not provide 

Governmentwide authority for raising the simplified acquisition 

threshold in support of such operations. Therefore, its authority is 

included in the DFARS. Specific to the authority to support a 

humanitarian or peacekeeping operation, the simplified acquisition 

threshold can be increased to double the current basic simplified 

acquisition threshold, currently $150,000 as specified in FAR 2.101, 

but only when the purchase is made, or the contract is awarded and 

performed, outside the United States. There is no comparable authority 

to increase the micropurchase threshold for acquisitions in support of 

a humanitarian or peacekeeping operation.

II. 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 a significant regulatory action and, therefore, was subject to 

review under section 6(b) of E.O. 12866, Regulatory Planning and 

Review, dated September 30, 1993. This is not a major rule under 5 

U.S.C. 804.

III. 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 the rule does not impose any requirements on U. S. small 

businesses. The statute applies only to purchases made, or contracts 

awarded and performed, outside the United States and only to those 

acquisitions that directly support a humanitarian or peacekeeping 

operation. Therefore, an initial regulatory flexibility analysis has 

not been performed.

    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 the 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 2011-D032) in 

correspondence.

IV. 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).

V. Determination To Issue an Interim Rule

    Pursuant to 41 U.S.C. 1707 (formerly 41 U.S.C. 418b) and FAR 1.501-

3(b), a determination has been made under the authority of the 

Secretary of Defense (DoD) that urgent and compelling reasons exist to 

promulgate this interim rule without prior opportunity for public 

comment. This action is necessary because the statutory authority for 

doubling the simplified acquisition threshold in support of a 

humanitarian or peacekeeping operation is not included in the DFARS 

currently, and is, therefore, generally not known to be available. It 

is imperative that DoD contracting officers be aware of this threshold 

for immediate implementation in DoD acquisitions. However, 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 Parts 202 and 218

    Government procurement.

Ynette R. Shelkin,

Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 202 and 218 are amended as follows:

0

1. The authority citation for 48 CFR parts 202 and 218 continues to 

read as follows:

    Authority:  41 U.S.C. 1303 and 48 CFR chapter 1.

PART 202--DEFINITIONS OF WORDS AND TERMS

0

2. In section 202.101, add in alphabetical order the definition 

``Simplified acquisition threshold'' to read as follows:

202.101  Definitions.

* * * * *

    Simplified acquisition threshold, in addition to the meaning at FAR 

2.101, means $300,000 when soliciting or awarding contracts to be 

awarded and performed outside the United States, or making purchases 

outside the United States, for acquisitions of supplies and services 

that, as determined by the head of the contracting activity, are to be 

used to support a humanitarian or peacekeeping operation, as defined at 

FAR 2.101.

PART 218--EMERGENCY ACQUISITIONS

218.270  [Redesignated as 218.271]

0

3. Redesignate section 218.270 as section 218.271 and add new section 

218.270 to read as follows:

218.270  Humanitarian or peacekeeping operation.

    The term ``humanitarian or peacekeeping operation'' is defined at 

FAR 2.101. In accordance with 10 U.S.C. 2302(7), when a humanitarian or 

peacekeeping operation is declared, the simplified acquisition 

threshold is raised to $300,000 for DoD purchases that are awarded and 

performed, or purchases that are made, outside the United States in 

support of that operation. See 202.101.

[FR Doc. 2011-18380 Filed 7-22-11; 8:45 am]

BILLING CODE 5001-08-P
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