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Federal Register / Vol. 86, No. 165 / Monday, August 30, 2021 / Proposed Rules II. Discussion and Analysis
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.

SUMMARY:

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.

DATES:

Submit comments identified by DFARS Case 2021D012, using any of the following methods:
Federal eRulemaking Portal:
https www.regulations.gov. Search for DFARS Case 2021D012. Select Comment and follow the instructions to submit a comment. Please include your name, company name if any, and DFARS Case 2021D012 on any attached document.
Email: osd.dfars@mail.mil. Include DFARS Case 2021D012 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 comments, please check https
www.regulations.gov, approximately two to three days after submission to verify posting.

ADDRESSES:

Ms.
Kimberly R. Ziegler, telephone 571
3726095.

FOR FURTHER INFORMATION CONTACT:

SUPPLEMENTARY INFORMATION:

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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. 116283. Section 820 amends section 836b of the NDAA for FY 2017
Pub. L. 114328, as modified by section 824 of the NDAA for FY 2018
Pub. L. 11591. 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
5a3 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.

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Section 820 expands the application of the expedited contract closeout authority of section 836 of the NDAA for FY 2017, implemented at DFARS
204.8043iA, 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 204.8043iA currently provides a blanket application of the 17
fiscal year standard, when certain requirements at 204.8043iB 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 4.8044 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 204.8043i 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
4.8045a3 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 204.8043i, to
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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 6b 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. 801808 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. 116283.
Section 820 expands the application of the expedited contract closeout authority of section 836 of the NDAA for FY 2017, implemented at DFARS
204.8043iA, 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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