Defense Federal Acquisition Regulation Supplement: Contract Closeout Authority for DoD Services Contracts (DFARS Case 2021-D012)
| Published date | 30 August 2021 |
| Citation | 86 FR 48366 |
| Record Number | 2021-18341 |
| Section | Proposed rules |
| Court | Defense Acquisition Regulations System |
48366
Federal Register / Vol. 86, No. 165 / Monday, August 30, 2021 / Proposed Rules
6
EPA’s prior approvals relating to Oklahoma’s
NESHAP delegation frequently noted that the
NESHAP delegation was not approved to apply in
areas of Indian country located in the State. See,
e.g., 83 FR 53183 (October 22, 2018). Such prior
expressed limitations are superseded by the EPA’s
approval of Oklahoma’s SAFETEA request.
7
In accordance with Executive Order 13990, EPA
is currently reviewing our October 1, 2020
SAFETEA approval and is engaging in further
consultation with tribal governments and
discussions with the State of Oklahoma as part of
this review. EPA also notes that the October 1, 2020
approval is the subject of a pending challenge in
federal court. (Pawnee v. Regan, No. 20–9635 (10th
Cir.)). Pending completion of EPA’s review, EPA is
proceeding with this proposed action in accordance
with the October 1, 2020 approval. EPA’s final
action on the NESHAP delegation update will
address the scope of the State’s program with
respect to Indian country, and may make any
appropriate adjustments, based on the status of our
review at that time. If EPA’s final action on
Oklahoma’s NESHAP delegation update is taken
before our review of the SAFETEA approval is
complete, EPA may make further changes to the
approval of Oklahoma’s NESHAP delegation to
reflect the outcome of the SAFETEA review.
(collectively ‘‘excluded Indian country
lands’’).
EPA’s approval under SAFETEA
expressly provided that to the extent
EPA’s prior approvals of Oklahoma’s
environmental programs excluded
Indian country, any such exclusions are
superseded for the geographic areas of
Indian country covered by the EPA’s
approval of Oklahoma’s SAFETEA
request.
6
The approval also provided
that future revisions or amendments to
Oklahoma’s approved environmental
regulatory programs would extend to
the covered areas of Indian country
(without any further need for additional
requests under SAFETEA).
As explained above, the EPA is
proposing to approve an update to the
Oklahoma NESHAP delegation.
Consistent with the EPA’s October 1,
2020 SAFETEA approval, if this action
is finalized as proposed, Oklahoma’s
delegation of the NESHAP program will
apply to all areas of Indian country
within the State of Oklahoma, other
than the excluded Indian country
lands.
7
XIV. Proposed Action
In this action, the EPA is proposing to
approve an update to the Oklahoma
NESHAP delegation that would provide
the ODEQ with the authority to
implement and enforce certain newly
incorporated NESHAP promulgated by
the EPA and amendments to existing
standards currently delegated, as they
existed though June 30, 2019. This
proposed delegation to ODEQ extends to
sources and activities located in certain
areas of Indian country, as explained in
section XIII above.
XV. Statutory and Executive Order
Reviews
Under the CAA, the Administrator
has the authority to approve section
112(l) submissions that comply with the
provisions of the Act and applicable
Federal regulations. In reviewing
section 112(l) submissions, the EPA’s
role is to approve state choices,
provided that they meet the criteria and
objectives of the CAA and of the EPA’s
implementing regulations. Accordingly,
this proposed action would merely
approve the State’s request as meeting
Federal requirements and does not
impose additional requirements beyond
those imposed by state law. For that
reason, this proposed action:
•Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
•Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
•Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
•Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
•Does not have federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
•Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
•Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
•Is not subject to requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
•Does not provide the EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
This proposal to approve Oklahoma’s
request to update the NESHAP
delegation will apply, if finalized as
proposed, to certain areas of Indian
country as discussed in section XIII
above, and therefore has tribal
implications as specified in Executive
Order 13175 (65 FR 67249, November 9,
2000). However, this action will neither
impose substantial direct compliance
costs on federally recognized tribal
governments, nor preempt tribal law.
This action will not impose substantial
direct compliance costs on federally
recognized tribal governments because
no actions will be required of tribal
governments. This action will also not
preempt tribal law as no Oklahoma tribe
implements a regulatory program under
the CAA, and thus does not have
applicable or related tribal laws.
Consistent with the EPA Policy on
Consultation and Coordination with
Indian Tribes (May 4, 2011), the EPA
has offered consultation to tribal
governments that may be affected by
this action.
List of Subjects
40 CFR Part 61
Environmental protection,
Administrative practice and procedure,
Air pollution control, Arsenic, Benzene,
Beryllium, Hazardous substances,
Mercury, Intergovernmental relations,
Reporting and recordkeeping
requirements, Vinyl chloride.
40 CFR Part 63
Environmental protection,
Administrative practice and procedure,
Air pollution control, Hazardous
substances, Intergovernmental relations,
Reporting and recordkeeping
requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: August 18, 2021.
David Garcia,
Director, Air and Radiation Division,
Region 6.
[FR Doc. 2021–18164 Filed 8–27–21; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Part 204
[Docket DARS–2021–0017]
RIN 0750–AL48
Defense Federal Acquisition
Regulation Supplement: Contract
Closeout Authority for DoD Services
Contracts (DFARS Case 2021–D012)
AGENCY
: Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION
: Proposed rule.
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48367
Federal Register / Vol. 86, No. 165 / Monday, August 30, 2021 / Proposed Rules
SUMMARY
: DoD is proposing to amend
the Defense Federal Acquisition
Regulation Supplement (DFARS) to
implement a section of the National
Defense Authorization Act for Fiscal
Year 2021.
DATES
: Comments on the proposed rule
should be submitted in writing to the
address shown below on or before
October 29, 2021, to be considered in
the formation of the final rule.
ADDRESSES
: Submit comments
identified by DFARS Case 2021–D012,
using any of the following methods:
ÆFederal eRulemaking Portal:
https://www.regulations.gov. Search for
‘‘DFARS Case 2021–D012.’’ Select
‘‘Comment’’ and follow the instructions
to submit a comment. Please include
your name, company name (if any), and
‘‘DFARS Case 2021–D012’’ on any
attached document.
ÆEmail: osd.dfars@mail.mil. Include
DFARS Case 2021–D012 in the subject
line of the message.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal information provided. To
confirm receipt of your comment(s),
please check https://
www.regulations.gov, approximately
two to three days after submission to
verify posting.
FOR FURTHER INFORMATION CONTACT
: Ms.
Kimberly R. Ziegler, telephone 571–
372–6095.
SUPPLEMENTARY INFORMATION
:
I. Background
This rule proposes to amend DFARS
subpart 204.8 to implement section 820
of the National Defense Authorization
Act (NDAA) for Fiscal Year (FY) 2021
(Pub. L. 116–283). Section 820 amends
section 836(b) of the NDAA for FY 2017
(Pub. L. 114–328), as modified by
section 824 of the NDAA for FY 2018
(Pub. L. 115–91). Section 836 authorizes
DoD contracting officers to close out
certain physically complete contracts or
groups of contracts through
modification of such contracts, without
completing the requirements of Federal
Acquisition Regulation (FAR) 4.804–
5(a)(3) through (15) based upon the age
of the contract action.
DoD published a final rule at 84 FR
18153 on April 30, 2019, to implement
sections 836 of the NDAA for FY 2017
and 824 of the NDAA for FY 2018. The
final rule provided similar authorities
for contracts meeting certain criteria
that were entered into on a date that was
at least 17 fiscal years prior to the
current fiscal year.
II. Discussion and Analysis
Section 820 expands the application
of the expedited contract closeout
authority of section 836 of the NDAA for
FY 2017, implemented at DFARS
204.804(3)(i)(A), to certain contracts or
groups of contracts that were awarded at
least 7 or 10 fiscal years before the
current fiscal year and have completed
performance or delivery at least four
years prior to the current fiscal year.
DFARS 204.804(3)(i)(A) currently
provides a blanket application of the 17
fiscal year standard, when certain
requirements at 204.804(3)(i)(B) and (C)
are met. Section 820 provides two new
standards, one of which provides a
similar blanket application, but the
number of fiscal years is reduced from
17 to 7. The second standard of at least
10 fiscal years only applies to contracts
or groups of contracts for military
construction, as defined in 10 U.S.C.
2801, or shipbuilding. Both new
standards require physical completion
(see FAR 4.804–4) at least four years
prior to the current fiscal year.
III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold (SAT) and for Commercial
Items, Including Commercially
Available Off-The-Shelf (COTS) Items
This proposed rule does not create
any new solicitation provisions or
contract clauses. It does not impact any
existing solicitation provisions or
contract clauses or their applicability to
contracts valued at or below the
simplified acquisition threshold or for
commercial items, including COTS
items.
IV. Expected Impact of the Rule
DFARS 204.804(3)(i) currently
provides for the expedited closeout of
contracts or groups of contracts without
completion of a reconciliation audit or
other corrective actions required by FAR
4.804–5(a)(3) through (15) if certain
criteria are met. If a contract was
entered into at least 17 years prior to the
current fiscal year, is physically
complete, and has been determined not
reconcilable, the contracting officer may
close the contract through a negotiated
settlement.
This rule reduces the age requirement
from 17 years to 10 years for military
construction and shipbuilding and 7
years for all other contract actions. The
rule adds a new requirement that these
contracts must be physically complete
at least four years prior to the current
fiscal year.
The expanded authority will apply to
more recent contracts, subject to the
other criteria in DFARS 204.804(3)(i), to
reduce the current backlog and
administration requirements for
contracts eligible for closeout.
V. 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.
VI. Congressional Review Act
As required by the Congressional
Review Act (5 U.S.C. 801–808) before an
interim or final rule takes effect, DoD
will submit a copy of the interim or
final rule with the form, Submission of
Federal Rules Under the Congressional
Review Act, to the U.S. Senate, the U.S.
House of Representatives, and the
Comptroller General of the United
States. A major rule under the
Congressional Review Act cannot take
effect until 60 days after it is published
in the Federal Register. This rule is not
anticipated to be a major rule under 5
U.S.C. 804.
VII. Regulatory Flexibility Act.
DoD does not expect this 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 this rule implements
requirements primarily for the
Government. However, an initial
regulatory flexibility analysis has been
performed and is summarized as
follows:
This rule proposes to amend the
Defense Federal Acquisition Regulation
Supplement (DFARS) to implement
section 820 of the National Defense
Authorization Act (NDAA) for Fiscal
Year (FY) 2021 (Pub. L. 116–283).
Section 820 expands the application of
the expedited contract closeout
authority of section 836 of the NDAA for
FY 2017, implemented at DFARS
204.804(3)(i)(A), to certain contracts or
groups of contracts that were awarded at
least 7 to 10 FYs before the current FY
and have completed performance or
delivery at least four years prior to the
current FY. The new 10-year standard
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48368
Federal Register / Vol. 86, No. 165 / Monday, August 30, 2021 / Proposed Rules
will apply to contracts or groups of
contracts for military construction, as
defined in 10 U.S.C. 2801, or
shipbuilding, while the 7-year standard
will apply to all other contracts.
The objective of the rule is to
implement the requirements of section
820, which expands the application of
the expedited contract closeout
authority of section 836 of the NDAA for
FY 2017 to more recent, physically
complete contracts. The legal basis of
the rule is section 820 of the NDAA for
FY 2021.
This rule will likely affect small
entities that have been or will be
awarded DoD contracts, including those
under FAR part 12 procedures for the
acquisition of commercial items,
including commercially available off-
the-shelf items. Data was obtained from
the Electronic Data Access module of
the Procurement Integrated Enterprise
Environment for contracts that were
physically completed at least four years
ago and are eligible for closeout between
the new standard of 7 or 10 years and
the previous standard of at least 17
fiscal years after award. The data were
then compared to the Federal
Procurement Data System (FPDS) to
estimate the number of contracts
awarded to small entities. Contracts
subject to the previous standard of 17
years are included in this estimate.
As of April 2021, the FPDS data
indicate that approximately 29,200
contracts, eligible for expedited closeout
under the 7-year standard, were
awarded to an estimated 4,490 unique
small entities. An additional estimated
1,775 contracts, subject to the 10-year
standard, were awarded to
approximately 576 small entities. As a
result, DoD estimates that
approximately 5,066 small entities will
have the opportunity to benefit from the
expanded expedited contract authorities
provided in this rule.
The rule does not impose any new
reporting, recordkeeping, or compliance
requirements.
The rule does not duplicate, overlap,
or conflict with any other Federal rules.
There are no practical alternatives
that will accomplish the objectives of
the statute.
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 2021–D012), in
correspondence.
VIII. Paperwork Reduction Act
This rule does not contain any
information collection requirements that
require the approval of the Office of
Management and Budget (OMB) under
the Paperwork Reduction Act (44 U.S.C.
chapter 35).
List of Subjects in 48 CFR Part 204
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition
Regulations System.
Therefore, 48 CFR part 204 is
proposed to be amended as follows:
PART 204—ADMINISTRATIVE AND
INFORMATION MATTERS
■1. The authority citation for 48 CFR
part 204 continues to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
■2. Amend section 204.804 by revising
paragraph (3)(i) to read as follows:
§ 204.804 Closeout of contract files.
* * * * *
(3)(i) In accordance with section 836
of the National Defense Authorization
Act for Fiscal Year 2017 (Pub. L. 114–
328), section 824 of the National
Defense Authorization Act for Fiscal
Year 2018 (Pub. L. 115–91), and section
820 of the National Defense
Authorization Act for Fiscal Year 2021
(Pub. L. 116–283), contracting officers
may close out contracts or groups of
contracts through issuance of one or
more modifications to such contracts
without completing a reconciliation
audit or other corrective action in
accordance with FAR 4.804–5(a)(3)
through (15), as appropriate, if each
contract—
(A)(1) For military construction (as
defined at 10 U.S.C. 2801) or
shipbuilding, was awarded at least 10
fiscal years before the current fiscal
year; or
(2) For all other contracts, was
awarded at least 7 fiscal years before the
current fiscal year;
(B) The performance or delivery was
completed at least 4 years prior to the
current fiscal year; and
(C) Has been determined by a
contracting official, at least one level
above the contracting officer, to be not
otherwise reconcilable, because—
(1) The contract or related payment
records have been destroyed or lost; or
(2) Although contract or related
payment records are available, the time
or effort required to establish the exact
amount owed to the U.S. Government or
amount owed to the contractor is
disproportionate to the amount at issue.
* * * * *
[FR Doc. 2021–18341 Filed 8–27–21; 8:45 am]
BILLING CODE 5001–06–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 215 and 242
[Docket DARS–2021–0015]
RIN 0750–AK95
Defense Federal Acquisition
Regulation Supplement: Requiring
Data Other Than Certified Cost or
Pricing Data (DFARS Case 2020–D008)
AGENCY
: Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION
: Proposed rule.
SUMMARY
: DoD is proposing to amend
the Defense Federal Acquisition
Regulation Supplement (DFARS) to
implement a section of the National
Defense Authorization Act for Fiscal
Year 2020 that provides additional
requirements relating to the submission
of data other than certified cost or
pricing data.
DATES
: Comments on the proposed rule
should be submitted in writing to the
address shown below on or before
October 29, 2021, to be considered in
the formation of a final rule.
ADDRESSES
: Submit comments
identified by DFARS Case 2020–D008,
using any of the following methods:
ÆFederal eRulemaking Portal:
https://www.regulations.gov. Search for
‘‘DFARS Case 2020–D008.’’ Select
‘‘Comment’’ and follow the instructions
to submit a comment. Please include
your name, company name (if any), and
‘‘DFARS Case 2020–D008’’ on any
attached document.
ÆEmail: osd.dfars@mail.mil. Include
DFARS Case 2020–D008 in the subject
line of the message.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal information provided. To
confirm receipt of your comment(s),
please check https://
www.regulations.gov, approximately
two to three days after submission to
verify posting.
FOR FURTHER INFORMATION CONTACT
: Mr.
David E. Johnson, telephone 571–372–
6115.
SUPPLEMENTARY INFORMATION
:
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