81_FR_17113 81 FR 17055 - Defense Federal Acquisition Regulation Supplement: Costs Related to Counterfeit Electronic Parts (DFARS Case 2016-D010)

81 FR 17055 - Defense Federal Acquisition Regulation Supplement: Costs Related to Counterfeit Electronic Parts (DFARS Case 2016-D010)

DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System

Federal Register Volume 81, Issue 58 (March 25, 2016)

Page Range17055-17056
FR Document2016-06728

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 2016 that amends the allowability of costs of counterfeit electronic parts or suspect counterfeit electronic parts and the cost of rework or corrective action that may be required to remedy the use or inclusion of such parts.

Federal Register, Volume 81 Issue 58 (Friday, March 25, 2016) 
[Federal Register Volume 81, Number 58 (Friday, March 25, 2016)]
[Proposed Rules]
[Pages 17055-17056]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-06728]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 231

[Docket DARS-2016-0002]
RIN 0750-AI86


Defense Federal Acquisition Regulation Supplement: Costs Related 
to Counterfeit Electronic Parts (DFARS Case 2016-D010)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Proposed rule.

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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 2016 that amends the 
allowability of costs of counterfeit electronic parts or suspect 
counterfeit electronic parts and the cost of rework or corrective 
action that may be required to remedy the use or inclusion of such 
parts.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before May 24, 2016, to be considered in 
the formation of a final rule.

ADDRESSES: Submit comments identified by DFARS Case 2016-D010, using 
any of the following methods:
    [cir] Regulations.gov: http://www.regulations.gov. Submit comments 
via the Federal eRulemaking portal by entering ``DFARS Case 2016-D010'' 
under the heading ``Enter keyword or ID'' and selecting ``Search.'' 
Select the link ``Submit a Comment'' that corresponds with ``DFARS Case 
2016-D010.'' Follow the instructions provided at the ``Submit a 
Comment'' screen. Please include your name, company name (if any), and 
``DFARS Case 2016-D010'' on your attached document.
    [cir] Email: [email protected]. Include DFARS Case 2016-D010 in 
the subject line of the message.
    [cir] Fax: 571-372-6094.
    [cir] Mail: Defense Acquisition Regulations System, Attn: Ms. Amy 
G. Williams, OUSD(AT&L)DPAP/DARS, Room 3B941, 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: Ms. Amy G. Williams, telephone 571-
372-6106.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD is proposing to amend the DFARS to implement section 885(a) of 
the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2016 
(Pub. L. 114-92). Section 885(a) provides that the costs of counterfeit 
parts or suspect counterfeit parts and the cost of rework or corrective 
action that may be required to remedy the use or inclusion of such 
parts may be allowable if--
     The counterfeit electronic parts or suspect counterfeit 
electronic parts were obtained by the contractor in accordance with the 
regulations described in paragraph (c)(3) of section 818 of the NDAA 
for FY 2012, as amended;
     The contractor discovers the counterfeit electronic parts 
or suspect counterfeit electronic parts; and
     The contractor provides timely (i.e., within 60 days after 
the contractor becomes aware) notice to the Government.
    A final rule is in process under DFARS Case 2014-D005, Detection 
and Avoidance of Counterfeit Parts--Further Implementation, to 
implement section 818(c)(3) of the NDAA for FY 2012, as amended. A 
proposed rule was published under DFARS Case 2014-D005 in the Federal 
Register on September 21, 2015 (80 FR 56939). The final rule under this 
case 2016-D010 will not be published until after publication of the 
final rule under DFARS Case 2014-D005.

II. Discussion and Analysis

    This rule proposes to amend the cost principle at DFARS 231.205-71 
to incorporate the new provisions of section 885(a) of the NDAA for FY 
2016.

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 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 rule is not a major rule under 5 
U.S.C. 804.

IV. 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. Nevertheless, an 
initial regulatory flexibility analysis has been performed and is 
summarized as follows:
    This proposed rule implements section 885(a) of the National 
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2016 (Pub. L. 
114-92).
    The objective of this rule is to amend the allowability of costs 
for counterfeit parts or suspect counterfeit parts and the cost of 
rework or corrective action that may be required to remedy the use or 
inclusion of such parts. Such costs may be allowable if--
     The parts were obtained by the contractor/subcontractor in 
accordance with the regulations described at section 818(c)(3) of the 
NDAA for FY 2012, as amended (such regulations will be published as a 
final rule under DFARS Case 2014-D005);
     The contractor discovers the counterfeit electronic parts 
or suspect counterfeit electronic parts; and
     The contractor provides timely notice to the Government.
    DoD is unable to estimate the number of small entities that will be 
impacted by this rule. This rule will apply to all DoD prime and 
subcontractors with cost contracts. This rule will only impact cost 
allowability if the contractor or subcontractor has complied with DFARS 
246.870, but nevertheless acquired, used, or included counterfeit 
electronic parts or suspect counterfeit electronic parts in performance 
of a DoD contract or subcontract, and has

[[Page 17056]]

discovered such parts and provided timely notification to DoD.
    There is no change to the projected reporting, recordkeeping, or 
other compliance requirements associated with the rule.
    The rule does not duplicate, overlap, or conflict with any other 
Federal rules.
    DoD has not identified any alternatives that are consistent with 
the stated objectives of the applicable statute. However, DoD notes 
that the impacts of this rule are expected to be beneficial, because it 
expands the allowability of costs for counterfeit parts or suspect 
counterfeit parts and the cost of rework or corrective action that may 
be required to remedy the use or inclusion of such parts.
    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 2016-D010), in 
correspondence.

V. Paperwork Reduction Act

    The rule does not contain 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 231

    Government procurement.

Jennifer L. Hawes,
Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR part 231 is proposed to be amended as follows:

PART 231--CONTRACT COST PRINCIPLES AND PROCEDURES

0
1. The authority citation for 48 CFR part 231 continues to read as 
follows:

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

0
2. Revise section 231.205-71 to read as follows:


231.205-71  Costs related to counterfeit electronic parts and suspect 
counterfeit electronic parts.

    (a) Scope. This subsection implements the requirements of section 
818(c)(2), National Defense Authorization Act for Fiscal Year 2012 
(Pub. L. 112-81), as modified by section 833, National Defense 
Authorization Act for Fiscal Year 2013 (Pub. L. 112-239) and section 
885 of the National Defense Authorization Act for Fiscal Year 2016 
(Pub. L. 114-92).
    (b) The costs of counterfeit electronic parts and suspect 
counterfeit electronic parts and the costs of rework or corrective 
action that may be required to remedy the use or inclusion of such 
parts are unallowable, unless--
    (1) The contractor has an operational system to detect and avoid 
counterfeit parts and suspect counterfeit electronic parts that has 
been reviewed and approved by DoD pursuant to 244.303;
    (2) The counterfeit electronic parts or suspect counterfeit 
electronic parts are Government-furnished property as defined in FAR 
45.101 or were obtained by the contractor in accordance with the clause 
at DFARS 252.246-70XX, Sources of Electronic Parts [as proposed to be 
added at 80 FR 56939, September 21, 2015]; and
    (3) The contractor--
    (i) Discovers the counterfeit electronic parts or suspect 
counterfeit electronic parts; and
    (ii) Provides timely (i.e., within 60 days after the contractor 
becomes aware) notice to the cognizant contracting officer(s).
[FR Doc. 2016-06728 Filed 3-24-16; 8:45 am]
 BILLING CODE 5001-06-P

Federal Register / Vol. 81, No. 58 / Friday, March 25, 2016 / Proposed Rules 17055 executed by DoD as a result of the name (if any), and ‘‘DFARS Case 2016– incorporate the new provisions of transfer of contracts from the General D010’’ on your attached document. section 885(a) of the NDAA for FY 2016. Services Administration or for which Æ Email: osd.dfars@mail.mil. Include III. Executive Orders 12866 and 13563 DoD serves as an item manager for DFARS Case 2016–D010 in the subject products on behalf of the General line of the message. Executive Orders (E.O.s) 12866 and Services Administration. According to Æ Fax: 571–372–6094. 13563 direct agencies to assess all costs section 897 of the National Defense Æ Mail: Defense Acquisition and benefits of available regulatory Authorization Act for Fiscal Year 2016 Regulations System, Attn: Ms. Amy G. alternatives and, if regulation is (Pub. L. 114–92), such contracts shall Williams, OUSD(AT&L)DPAP/DARS, necessary, to select regulatory not be subject to requirements under Room 3B941, 3060 Defense Pentagon, approaches that maximize net benefits chapter 148 of title 10, United States Washington, DC 20301–3060. (including potential economic, Code (including 10 U.S.C. 2533a), to the Comments received generally will be environmental, public health and safety extent such contracts are for purchases posted without change to http:// effects, distributive impacts, and of products by other Federal agencies or www.regulations.gov, including any equity). E.O. 13563 emphasizes the State or local governments. personal information provided. To importance of quantifying both costs [FR Doc. 2016–06727 Filed 3–24–16; 8:45 am] confirm receipt of your comment(s), and benefits, of reducing costs, of BILLING CODE 5001–06–P please check www.regulations.gov, harmonizing rules, and of promoting approximately two to three days after flexibility. This is a significant submission to verify posting (except regulatory action and, therefore, was DEPARTMENT OF DEFENSE allow 30 days for posting of comments subject to review under section 6(b) of submitted by mail). E.O. 12866, Regulatory Planning and Defense Acquisition Regulations Review, dated September 30, 1993. This FOR FURTHER INFORMATION CONTACT: Ms. System rule is not a major rule under 5 U.S.C. Amy G. Williams, telephone 571–372– 6106. 804. 48 CFR Part 231 SUPPLEMENTARY INFORMATION: IV. Regulatory Flexibility Act [Docket DARS–2016–0002] I. Background DoD does not expect this rule to have RIN 0750–AI86 a significant economic impact on a DoD is proposing to amend the substantial number of small entities Defense Federal Acquisition DFARS to implement section 885(a) of within the meaning of the Regulatory Regulation Supplement: Costs Related the National Defense Authorization Act Flexibility Act, 5 U.S.C. 601, et seq. to Counterfeit Electronic Parts (DFARS (NDAA) for Fiscal Year (FY) 2016 (Pub. Nevertheless, an initial regulatory Case 2016–D010) L. 114–92). Section 885(a) provides that flexibility analysis has been performed the costs of counterfeit parts or suspect and is summarized as follows: AGENCY: Defense Acquisition counterfeit parts and the cost of rework This proposed rule implements Regulations System, Department of or corrective action that may be required section 885(a) of the National Defense Defense (DoD). to remedy the use or inclusion of such Authorization Act (NDAA) for Fiscal ACTION: Proposed rule. parts may be allowable if— Year (FY) 2016 (Pub. L. 114–92). • The counterfeit electronic parts or The objective of this rule is to amend SUMMARY: DoD is proposing to amend suspect counterfeit electronic parts were the allowability of costs for counterfeit the Defense Federal Acquisition obtained by the contractor in parts or suspect counterfeit parts and Regulation Supplement (DFARS) to accordance with the regulations the cost of rework or corrective action implement a section of the National described in paragraph (c)(3) of section that may be required to remedy the use Defense Authorization Act for Fiscal 818 of the NDAA for FY 2012, as or inclusion of such parts. Such costs Year 2016 that amends the allowability amended; may be allowable if— of costs of counterfeit electronic parts or • The contractor discovers the • The parts were obtained by the suspect counterfeit electronic parts and counterfeit electronic parts or suspect contractor/subcontractor in accordance the cost of rework or corrective action counterfeit electronic parts; and with the regulations described at section that may be required to remedy the use • The contractor provides timely (i.e., 818(c)(3) of the NDAA for FY 2012, as or inclusion of such parts. within 60 days after the contractor amended (such regulations will be DATES: Comments on the proposed rule becomes aware) notice to the published as a final rule under DFARS should be submitted in writing to the Government. Case 2014–D005); address shown below on or before May A final rule is in process under • The contractor discovers the 24, 2016, to be considered in the DFARS Case 2014–D005, Detection and counterfeit electronic parts or suspect formation of a final rule. Avoidance of Counterfeit Parts—Further counterfeit electronic parts; and ADDRESSES: Submit comments Implementation, to implement section • The contractor provides timely identified by DFARS Case 2016–D010, 818(c)(3) of the NDAA for FY 2012, as notice to the Government. using any of the following methods: amended. A proposed rule was DoD is unable to estimate the number Æ Regulations.gov: http:// published under DFARS Case 2014– of small entities that will be impacted www.regulations.gov. Submit comments D005 in the Federal Register on by this rule. This rule will apply to all srobinson on DSK5SPTVN1PROD with PROPOSALS2 via the Federal eRulemaking portal by September 21, 2015 (80 FR 56939). The DoD prime and subcontractors with cost entering ‘‘DFARS Case 2016–D010’’ final rule under this case 2016–D010 contracts. This rule will only impact under the heading ‘‘Enter keyword or will not be published until after cost allowability if the contractor or ID’’ and selecting ‘‘Search.’’ Select the publication of the final rule under subcontractor has complied with link ‘‘Submit a Comment’’ that DFARS Case 2014–D005. DFARS 246.870, but nevertheless corresponds with ‘‘DFARS Case 2016– acquired, used, or included counterfeit D010.’’ Follow the instructions provided II. Discussion and Analysis electronic parts or suspect counterfeit at the ‘‘Submit a Comment’’ screen. This rule proposes to amend the cost electronic parts in performance of a DoD Please include your name, company principle at DFARS 231.205–71 to contract or subcontract, and has VerDate Sep<11>2014 21:34 Mar 24, 2016 Jkt 238001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 E:\FR\FM\25MRP2.SGM 25MRP2

17056 Federal Register / Vol. 81, No. 58 / Friday, March 25, 2016 / Proposed Rules discovered such parts and provided V. Paperwork Reduction Act for Fiscal Year 2013 (Pub. L. 112–239) timely notification to DoD. The rule does not contain information and section 885 of the National Defense There is no change to the projected collection requirements that require the Authorization Act for Fiscal Year 2016 reporting, recordkeeping, or other approval of the Office of Management (Pub. L. 114–92). compliance requirements associated and Budget under the Paperwork (b) The costs of counterfeit electronic Reduction Act (44 U.S.C. chapter 35). parts and suspect counterfeit electronic with the rule. parts and the costs of rework or The rule does not duplicate, overlap, List of Subjects in 48 CFR Parts 231 corrective action that may be required to or conflict with any other Federal rules. Government procurement. remedy the use or inclusion of such DoD has not identified any parts are unallowable, unless— Jennifer L. Hawes, alternatives that are consistent with the (1) The contractor has an operational Editor, Defense Acquisition Regulations system to detect and avoid counterfeit stated objectives of the applicable System. statute. However, DoD notes that the parts and suspect counterfeit electronic Therefore, 48 CFR part 231 is parts that has been reviewed and impacts of this rule are expected to be proposed to be amended as follows: approved by DoD pursuant to 244.303; beneficial, because it expands the allowability of costs for counterfeit parts (2) The counterfeit electronic parts or PART 231—CONTRACT COST suspect counterfeit electronic parts are or suspect counterfeit parts and the cost PRINCIPLES AND PROCEDURES Government-furnished property as of rework or corrective action that may ■ 1. The authority citation for 48 CFR defined in FAR 45.101 or were obtained be required to remedy the use or part 231 continues to read as follows: by the contractor in accordance with the inclusion of such parts. clause at DFARS 252.246–70XX, DoD invites comments from small Authority: 41 U.S.C. 1303 and 48 CFR Sources of Electronic Parts [as proposed chapter 1. business concerns and other interested to be added at 80 FR 56939, September parties on the expected impact of this ■ 2. Revise section 231.205–71 to read 21, 2015]; and rule on small entities. as follows: (3) The contractor— DoD will also consider comments 231.205–71 Costs related to counterfeit (i) Discovers the counterfeit electronic from small entities concerning the electronic parts and suspect counterfeit parts or suspect counterfeit electronic electronic parts. parts; and existing regulations in subparts affected by this rule in accordance with 5 U.S.C. (a) Scope. This subsection (ii) Provides timely (i.e., within 60 610. Interested parties must submit such implements the requirements of section days after the contractor becomes aware) 818(c)(2), National Defense notice to the cognizant contracting comments separately and should cite 5 Authorization Act for Fiscal Year 2012 officer(s). U.S.C 610 (DFARS Case 2016–D010), in (Pub. L. 112–81), as modified by section [FR Doc. 2016–06728 Filed 3–24–16; 8:45 am] correspondence. 833, National Defense Authorization Act BILLING CODE 5001–06–P srobinson on DSK5SPTVN1PROD with PROPOSALS2 VerDate Sep<11>2014 21:34 Mar 24, 2016 Jkt 238001 PO 00000 Frm 00007 Fmt 4701 Sfmt 9990 E:\FR\FM\25MRP2.SGM 25MRP2


Document Created: 2018-02-02 15:18:13
Document Modified: 2018-02-02 15:18:13
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionProposed rule.
DatesComments on the proposed rule should be submitted in writing to
ContactMs. Amy G. Williams, telephone 571- 372-6106.
FR Citation81 FR 17055 
RIN Number0750-AI86
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