81 FR 28812 - Defense Federal Acquisition Regulation Supplement: Rights in Technical Data (DFARS Case 2016-D008)
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System Federal Register Volume 81, Issue 90 (May 10, 2016)
Defense Acquisition Regulations System
Federal Register Volume 81, Issue 90 (May 10, 2016)
| Page Range | 28812-28816 | |
| FR Document | 2016-10827 |
[Federal Register Volume 81, Number 90 (Tuesday, May 10, 2016)] [Proposed Rules] [Pages 28812-28816] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-10827] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 227 and 252 [Docket DARS-2016-0010] RIN 0750-AI91 Defense Federal Acquisition Regulation Supplement: Rights in Technical Data (DFARS Case 2016-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 2016 that addresses rights in technical data relating to major weapon systems, expanding application of the presumption that a commercial item has been developed entirely at private expense. DATES: Comments on the proposed rule should be submitted in writing to the address shown below on or before July 11, 2016, to be considered in the formation of a final rule. ADDRESSES: Submit comments identified by DFARS Case 2016-D008, 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-D008'' under the heading ``Enter keyword or ID'' and selecting ``Search.'' Select the link ``Submit a Comment'' that corresponds with ``DFARS Case 2016-D008.'' Follow the instructions provided at the ``Submit a Comment'' screen. Please include your name, company name (if any), and ``DFARS Case 2016-D008'' on your attached document. [cir] Email: [email protected]. Include DFARS Case 2016-D008 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 revise the DFARS to implement section 813(a) of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2016 (Pub. L. 114-92) that modifies 10 U.S.C. 2321(f) to address rights in technical data relating to major weapon systems. The validation of asserted restrictions on technical data is based on statutory requirements, codified primarily at 10 U.S.C. 2321, which are implemented in the DFARS at 227.7102-3 for commercial technical data and at 227.7103-13 for noncommercial technical data, and incorporated into individual contracts via the clause [[Page 28813]] DFARS 252.227-7037, Validation of Restrictive Markings on Technical Data, for both commercial technical data and noncommercial technical data. By long-standing policy, these requirements and procedures are adapted and applied to noncommercial computer software (see 227.7203-13 and clause 252.227-7019, Validation of Asserted Restrictions--Computer Software), but are not applied to commercial computer software. Since 1995, these validation procedures have included specialized presumptions and procedures for commercial technical data. For discussion purposes, these specialized requirements will be referred to as the ``Commercial Rule'' (see 10 U.S.C. 2320(b)(1) and 2321(f)). Under the Commercial Rule, a contracting officer is required to presume that a commercial item has been developed entirely at private expense, unless shown otherwise in accordance with the procedures at 10 U.S.C. 2321(f). Subsequently, section 802(b) of the NDAA for FY 2007, as amended by section 815(a)(2) of the NDAA for FY 2008, modified 10 U.S.C. 2321(f)(2) to establish another specialized set of procedures for technical data related to major systems (including subsystems or components thereof). For discussion purposes, this second set of specialized requirements has been referred to as the ``Major Systems Rule.'' Under the Major Systems Rule, a contracting officer's challenge to asserted restrictions on technical data relating to a major system shall be sustained unless the contractor or subcontractor submits information demonstrating that the item was developed exclusively at private expense; except for commercially available off-the-shelf (COTS) items, which remained subject to the Commercial Rule in all cases. The Major Systems Rule, as an exception to the Commercial Rule, was implemented in the DFARS via DFARS Case 2007-D003, which was published for comments as a proposed rule in the Federal Register on May 07, 2010 (75 FR 25161), and subsequently became effective via a final rule published on September 20, 2011 (76 FR 58144). As a result, the Commercial Rule was implemented for technical data at DFARS 227.7103- 13(c)(1) and in the clause at DFARS 252.227-7037(b)(1), and the Major Systems Rule was implemented at 227.7103-13(c)(2) and 252.227- 7037(b)(2). Additionally, the Major Systems Rule was applied to noncommercial computer software at 227.7203-13(d) and in the clause at 252.227-7019(f), although in the noncommercial computer software implementation the Major Systems Rule stands alone, rather than as an exception to the Commercial Rule, because neither the Commercial Rule, nor any element of the validation procedures overall, has been applied to commercial computer software. Section 813(a) revised 10 U.S.C. 2321(f) to amend both the Commercial Rule and the Major Systems Rule in two primary ways: (1) The major systems rule was narrowed to apply only to major weapon systems--essentially converting the Major Systems Rule into the Major Weapon Systems Rule. (2) The COTS exception to the Major Systems Rule was expanded to include three additional exceptions. More specifically, the formerly COTS-only exception was expanded to include-- (i) COTS items with modifications of a type customarily available in the commercial marketplace or minor modifications made to meet Federal Government requirements; (ii) Commercial subsystems or components of a major weapon system, if the major weapon system was acquired as a commercial item in accordance with 10 U.S.C. 2379(a); and (iii) Components of a subsystem, if the subsystem was acquired as a commercial item in accordance with 10 U.S.C. 2379(b). II. Discussion and Analysis A. Implementation of the Statutory Changes for Validation of Asserted Restrictions on Technical Data Because the DFARS already included an implementation of the Commercial Rule and Major Systems Rule, and section 813(a) revised only particular characteristics and subelements of the Major Systems Rule, the implementation of the statutory changes is relatively straightforward. More specifically, the Major Systems Rule is amended to apply only in the case of a major weapon system (see revised DFARS 227.7103-13(c)(2)(ii), and 252.227-7037(b)(2)), and the exception to the Major Systems Rule that previously referenced only COTS items, was expanded to include the three new exceptions, as well (see new DFARS 227.7103-13(c)(2)(ii)(1) through (3), and 252.227-7037(b)(2)(i)). In addition, a minor change was made to the coverage for the Commercial Rule, which had previously referred to COTS items as always being covered by the Commercial Rule. Under the new schema, which includes four categories of items that are exceptions to the Major Weapon Systems Rule, and thereby are always governed by the Commercial Rule, it was deemed to be too complicated to refer to all four exceptions in both the coverage for the Commercial Rule and the Major Weapon Systems Rule. Accordingly, the exceptions are listed only within the Major Weapon Systems Rule, and the Commercial Rule merely cross- references that coverage as an exception to the Commercial Rule. In addition to avoiding unnecessary duplication in the coverage, this approach provides an advantage in circumstances involving an assertion regarding any type of commercial item that is not part of a major weapon system or subsystem thereof, such that there would be no need to parse through the entire Major Weapon Systems Rule only to find that the item is covered by one of the exceptions to the Major Weapon Systems Rule, and thus still covered by the Commercial Rule. B. Application of the Revised Requirements and Procedures to Validation of Asserted Restrictions on Computer Software DoD has made no additional edits to extend the section 813(a) construct to noncommercial computer software, and has deleted the baseline coverage of noncommercial computer software in major systems, currently at DFARS 227.7203-13(d) and 252.227-7019(f), because the purpose for the Major Weapon Systems Rule is to function as an exception to the Commercial Rule; but in the context of computer software, these validation procedures do not apply to commercial computer software, and the coverage for noncommercial computer software is concerned only with the Major Weapon Systems Rule procedures for noncommercial computer software. In the end, the application of the Major Weapon Systems Rule in those cases is extremely unlikely to reach a result that is any different from the application of the ``normal'' rules for noncommercial computer software. More specifically, in all cases the Government cannot initiate a challenge unless it has a reasonable basis to do so (see DFARS 227.7203-13(a) and (e)(3)(i), and 252.227-7019(d)(3) and (e)(1) for noncommercial computer software; see also 227.7103-13(a), (c)(1), and (d)(4), and 252.227-7037(d)(2) for technical data). After a challenge is initiated, both the Major Weapon Systems Rule and the ``normal'' validation procedures would result in the challenge being sustained unless the contractor provides information to demonstrate that the noncommercial computer software was developed exclusively at private expense. [[Page 28814]] 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 add any new provisions or clauses or add new requirements to existing provision or clauses. Rather, when acquiring major weapon systems, it expands the circumstances relating to commerciality in which the contracting officer shall presume that development was exclusively at private expense. IV. 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. V. Regulatory Flexibility Act DoD does not expect this proposed 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. However, an initial regulatory flexibility analysis has been performed and is summarized as follows: This proposed rule was initiated to implement section 813(a) of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2016 (Pub. L. 114-92). The objective of this rule is to reduce the requirement to respond to Government challenges of restricted rights, by expanding the applicability of the presumption regarding development exclusively at private expense in accordance with section 813(a) of the NDAA for FY 2016. DoD cannot accurately determine the number of small entities that will be affected by this change in the regulations, because DoD does not have sufficient information about subcontract awards of subsystems and components of major weapon systems. However, DoD estimates an annual reduction of 50 prechallenge requests for information and 2 challenges of asserted technical data restrictions. DoD further estimates, based on data from the DoD FY 2014 Small Business Procurement Scorecard, that this reduction in challenges will affect about 17 small businesses (52 prechallenges/challenges x 33 percent of subcontract awards to small businesses). The proposed rule reduces the requirement to respond to Government challenge of restricted rights. Under current regulations, the presumption regarding development exclusively at private expense does not apply to major systems or subsystems or components thereof, except for commercially available off-the-shelf items. This rule expands applicability of the presumption regarding development exclusively at private expense with regard to a major weapon system, or a subsystem or component thereof, to cover--A commercial subsystem or component of a major weapon system, if the major weapon system was acquired as a commercial item in accordance with DFARS subpart 234.70 (10 U.S.C. 2379(a)); A component of a subsystem, if the subsystem was acquired as a commercial item in accordance with DFARS subpart 234.70 (10 U.S.C. 2379(b)); and Commercially available off-the-shelf items with modifications of a type customarily available in the commercial marketplace or minor modifications made to meet Federal Government requirements. The classes of small entities that will be affected by this reduction are small businesses that provide any items in the above categories that are not challenged due to the new statute. The rule does not duplicate, overlap, or conflict with any other Federal rules. This rule reduces the burden on small entities to the maximum extent permitted by 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 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-D008), in correspondence. VI. Paperwork Reduction Act This rule affects the information collection requirements in the provisions at DFARS 252.227-7019 and 252.227-7037, currently approved under OMB Control Number 0704-0369, entitled ``Defense Federal Acquisition Regulation Supplement (DFARS): Rights in Technical Data and Computer Software,'' in accordance with the Paperwork Reduction Act (44 U.S.C. chapter 35). The rule is expected to result in a reduction of 1,040 hours in the total estimated burden hours. DoD will submit a change request to OMB to document the reduction in burden hours at the final rule stage. A. Based on the advice of DoD subject matter experts, DoD currently estimates approximately 500 prechallenge requests for information and approximately 20 challenges per year associated with DFARS clause 252.227-7019, Validation of Asserted Restrictions--Computer Software, and 252.227-7037, Validation of Restrictive Markings on Technical Data. Including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information, the estimated average burden to respond to a prechallenge request for information is 10 hours, and the estimated average burden to respond to each challenge, is 270 hours, resulting in a weighted average of approximately 20 hours per response. Under current regulations, the presumption regarding development exclusively at private expense does not apply to major systems or subsystems or components thereof, except for commercially available off-the-shelf items. This rule expands applicability of the presumption regarding development exclusively at private expense with regard to a major weapon system, or a subsystem or component thereof, to cover-- A commercial subsystem or component of a major weapon system, if the major weapon system was acquired as a commercial item in accordance with DFARS subpart 234.70 (10 U.S.C. 2379(a)); A component of a subsystem, if the subsystem was acquired as a commercial item in accordance with DFARS subpart 234.70 (10 U.S.C. 2379(b)); and Commercially available off-the-shelf items with modifications of a type customarily available in the commercial marketplace or minor modifications made to meet Federal Government requirements. Therefore, DoD estimates a reduction of about 10 percent in the estimated number of prechallenge requests for information and challenges under DFARS 252.227-7019 and 252.227-7037 as follows: [[Page 28815]] ---------------------------------------------------------------------------------------------------------------- Current requirement Revised Delta ---------------------------------------------------------------------------------------------------------------- Respondents..................................................... 520 468 52 Responses per respondent........................................ 1 1 1 ----------------------------------------------- Total annual responses...................................... 520 468 52 Preparation hours per response.................................. 20 20 20 ----------------------------------------------- Total response burden hours............................. 10,400 9,360 1,040 ---------------------------------------------------------------------------------------------------------------- B. Request for Comments Regarding Paperwork Burden Written comments and recommendations on the proposed information collection, including suggestions for reducing this burden, should be sent to Ms. Jasmeet Seehra at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503, or email [email protected], with a copy to the Defense Acquisition Regulations System, Attn: Ms. Amy G. Williams, OUSD(AT&L)DPAP/DARS, Room 3B941, 3060 Defense Pentagon, Washington, DC 20301-3060. Comments can be received from 30 to 60 days after the date of this proposed rule, but comments to OMB will be most useful if received by OMB within 30 days after the date of this proposed rule. Public comments are particularly invited on: whether this collection of information is necessary for the proper performance of functions of the DFARS, and will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology. To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Defense Acquisition Regulations System, Attn: Ms. Amy G. Williams, OUSD(AT&L)DPAP/DARS, Room 3B941, 3060 Defense Pentagon, Washington, DC 20301-3060, or email [email protected]. Include DFARS Case 2016-D008 in the subject line of the message. List of Subjects in 48 CFR Parts 227 and 252 Government procurement. Jennifer L. Hawes, Editor, Defense Acquisition Regulations System. Therefore, 48 CFR parts 227 and 252 is proposed to be amended as follows: 0 1. The authority citation for parts 227 and 252 continues to read as follows: Authority: 41 U.S.C. 1303 and 48 CFR chapter 1. PART 227--PATENT, DATA, AND COPYRIGHTS 0 2. Amend section 227.7103-13 by-- 0 a. In paragraph (c)(1), removing ``commercial item, component, or process'' and adding ``commercial item'' in its place and removing ``the item, component or process'' and adding ``that item'' in its place; and 0 b. Revising paragraphs (c)(2)(i) and (ii). The revisions read as follows: 227.7103-13 Government right to review, verify, challenge and validate asserted restrictions. * * * * * (c) * * * (2) * * * (i) Commercial items. Except as provided in paragraph (c)(2)(ii) of this subsection, contracting officers shall presume that a commercial item was developed exclusively at private expense whether or not a contractor or subcontractor submits a justification in response to a challenge notice. When a challenge is warranted, a contractor's or subcontractor's failure to respond to the challenge notice cannot be the sole basis for issuing a final decision denying the validity of an asserted restriction. (ii) Major weapon systems. When the contracting officer challenges an asserted restriction regarding technical data for a major weapon system or a subsystem or component thereof on the basis that the technology was not developed exclusively at private expense-- (A) The presumption in paragraph (c)(2)(i) of this subsection applies to-- (1) A commercial subsystem or component of a major weapon system, if the major weapon system was acquired as a commercial item in accordance with subpart 234.70 (10 U.S.C. 2379(a)); (2) A component of a subsystem, if the subsystem was acquired as a commercial item in accordance with subpart 234.70 (10 U.S.C. 2379(b)); and (3) Any other component, if the component is a commercially available off-the-shelf item or a commercially available off-the-shelf item with modifications of a type customarily available in the commercial marketplace or minor modifications made to meet Federal Government requirements; and (B) In all other cases, the contracting officer shall sustain the challenge unless information provided by the contractor or subcontractor demonstrates that the item was developed exclusively at private expense. * * * * * 227.7203-13 [Amended] 0 3. Section 227.7203-13 is amended by removing paragraph (d) and redesignating paragraphs (e), (f), and (g) as paragraphs (d), (e), and (f), respectively. PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES 0 4. Amend section 252.227-7019 by-- 0 a. Removing the clause date ``(SEPT 2011)'' and adding ``(DATE)'' in its place; 0 b. Removing paragraph (f); 0 c. Redesignating paragraphs (g), (h), (i), and (j) as paragraphs (f), (g), (h), and (i), respectively; 0 d. In newly redesignated paragraph (f)(5)-- 0 i. Removing ``(g)(1)'' and adding ``(f)(1)'' in its place; 0 ii. Removing ``Officer will'' and adding ``Officer shall'' in its place; and 0 iii. Removing ``paragraph (f) of this clause and''; 0 f. In newly redesignated paragraph (f)(6) introductory text, removing ``the written explanation furnished pursuant to paragraph (f)(1) of this clause, or any other'' and adding ``any'' in its place; [[Page 28816]] 0 g. In newly redesignated paragraph (g)(1) introductory text, removing ``(h)(3)'' and adding ``(g)(3)'' in its place; and 0 h. In newly redesignated paragraph (g)(3), removing ``(h)(1)'' and adding ``(g)(1)'' in its place. 0 5. Amend section 252.227-7037 by-- 0 a. Removing the clause date ``(JUN 2013)'' and adding ``(DATE)'' in its place; and 0 b. Revising paragraphs (b)(1) and (2). The revision reads as follows: 252.227-7037 Validation of restrictive markings on technical data. (b) * * * (1) Commercial items. (i) Except as provided in paragraph (b)(2) of this clause, the Contracting Officer will presume that the Contractor's or a subcontractor's asserted use or release restrictions with respect to a commercial item is justified on the basis that the item was developed exclusively at private expense. (ii) The Contracting Officer will not challenge such assertions unless the Contracting Officer has information that demonstrates that the commercial item was not developed exclusively at private expense. (2) Major weapon systems. In the case of a challenge to a use or release restriction that is asserted with respect to data of the Contractor or a subcontractor for a major weapon system or a subsystem or component thereof on the basis that the major weapon system, subsystem, or component was developed exclusively at private expense-- (i) The presumption in paragraph (b)(1) of this clause applies to-- (A) A commercial subsystem or component of a major weapon system, if the major weapon system was acquired as a commercial item in accordance with DFARS subpart 234.70 (10 U.S.C. 2379(a)); (B) A component of a subsystem, if the subsystem was acquired as a commercial item in accordance with DFARS subpart 234.70 (10 U.S.C. 2379(b)); and (C) Any other component, if the component is a commercially available off-the-shelf item or a commercially available off-the-shelf item with modifications of a type customarily available in the commercial marketplace or minor modifications made to meet Federal Government requirements; and (ii) In all other cases, the challenge to the use or release restriction will be sustained unless information provided by the Contractor or a subcontractor demonstrates that the item or process was developed exclusively at private expense. * * * * * [FR Doc. 2016-10827 Filed 5-9-16; 8:45 am] BILLING CODE 5001-06-P
![28812 Federal Register / Vol. 81, No. 90 / Tuesday, May 10, 2016 / Proposed Rules
not occur. We are proposing to approve • Is not subject to requirements of Year 2016 that addresses rights in
UDEQ’s submittal with regard to the Section 12(d) of the National technical data relating to major weapon
requirements of section 110(a)(2)(D)(i) Technology Transfer and Advancement systems, expanding application of the
prongs 1 and 2 for the 2008 Pb NAAQS. Act of 1995 (15 U.S.C. 272 note) because presumption that a commercial item has
application of those requirements would been developed entirely at private
IV. Proposed Action
be inconsistent with the Clean Air Act; expense.
The EPA is proposing to approve CAA and DATES: Comments on the proposed rule
section 110(a)(2)(D)(i)(I) prongs 1 and 2 • Does not provide the EPA with the should be submitted in writing to the
for the 2008 Pb NAAQS, and proposing discretionary authority to address, as address shown below on or before July
to disapprove prongs 1 and 2 for the appropriate, disproportionate human 11, 2016, to be considered in the
2008 ozone NAAQS based on health or environmental effects, using formation of a final rule.
consideration of modeling results in practicable and legally permissible ADDRESSES: Submit comments
EPA’s August 4, 2015 NODA. The EPA methods, under Executive Order 12898
is soliciting public comments on this identified by DFARS Case 2016–D008,
(59 FR 7629, February 16, 1994). using any of the following methods:
proposed action and will consider In addition, the SIP does not apply on Æ Regulations.gov: http://
public comments received during the any Indian reservation land or in any www.regulations.gov. Submit comments
comment period. other area where the EPA or an Indian via the Federal eRulemaking portal by
V. Statutory and Executive Order tribe has demonstrated that a tribe has entering ‘‘DFARS Case 2016–D008’’
Reviews jurisdiction. In those areas of Indian under the heading ‘‘Enter keyword or
country, the proposed rule does not ID’’ and selecting ‘‘Search.’’ Select the
Under the CAA, the Administrator is have tribal implications and will not
required to approve a SIP submission link ‘‘Submit a Comment’’ that
impose substantial direct costs on tribal corresponds with ‘‘DFARS Case 2016–
that complies with the provisions of the governments or preempt tribal law as
Act and applicable federal regulations. D008.’’ Follow the instructions provided
specified by Executive Order 13175 (65 at the ‘‘Submit a Comment’’ screen.
42 U.S.C. 7410(k); 40 CFR 52.02(a). FR 67249, November 9, 2000).
Thus, in reviewing SIP submissions, the Please include your name, company
EPA’s role is to approve state actions, List of Subjects in 40 CFR Part 52 name (if any), and ‘‘DFARS Case 2016–
provided that they meet the criteria of D008’’ on your attached document.
Environmental protection, Air Æ Email: osd.dfars@mail.mil. Include
the Clean Air Act. Accordingly, this pollution control, Carbon monoxide,
proposed action merely proposes DFARS Case 2016–D008 in the subject
Incorporation by reference, line of the message.
approval of some state law as meeting Intergovernmental relations, Lead, Æ Fax: 571–372–6094.
federal requirements and proposes Nitrogen dioxide, Ozone, Particulate Æ Mail: Defense Acquisition
disapproval of other state law because it matter, Reporting and recordkeeping Regulations System, Attn: Ms. Amy G.
does not meet federal requirements; this requirements, Sulfur oxides, Volatile Williams, OUSD(AT&L)DPAP/DARS,
proposed action does not propose organic compounds. Room 3B941, 3060 Defense Pentagon,
additional requirements beyond those
Authority: 42 U.S.C. 7401 et seq. Washington, DC 20301–3060.
imposed by state law. For that reason, Comments received generally will be
this proposed action: Dated: April 26, 2016.
posted without change to http://
• Is not a significant regulatory action Shaun L. McGrath,
www.regulations.gov, including any
subject to review by the Office of Regional Administrator, Region 8. personal information provided. To
Management and Budget under [FR Doc. 2016–10893 Filed 5–9–16; 8:45 am] confirm receipt of your comment(s),
Executive Orders 12866 (58 FR 51735, BILLING CODE 6560–50–P please check www.regulations.gov,
October 4, 1993) and 13563 (76 FR 3821, approximately two to three days after
January 21, 2011); submission to verify posting (except
• Does not impose an information
DEPARTMENT OF DEFENSE allow 30 days for posting of comments
collection burden under the provisions
submitted by mail).
of the Paperwork Reduction Act (44 Defense Acquisition Regulations
U.S.C. 3501 et seq.); FOR FURTHER INFORMATION CONTACT: Ms.
System Amy G. Williams, telephone 571–372–
• Is certified as not having a
significant economic impact on a 6106.
48 CFR Parts 227 and 252
substantial number of small entities SUPPLEMENTARY INFORMATION:
under the Regulatory Flexibility Act (5 [Docket DARS–2016–0010]
I. Background
U.S.C. 601 et seq.); RIN 0750–AI91
• Does not contain any unfunded DoD is proposing to revise the DFARS
mandate or significantly or uniquely Defense Federal Acquisition to implement section 813(a) of the
affect small governments, as described Regulation Supplement: Rights in National Defense Authorization Act
in the Unfunded Mandates Reform Act Technical Data (DFARS Case 2016– (NDAA) for Fiscal Year (FY) 2016 (Pub.
of 1995 (Pub. L.104–4); D008) L. 114–92) that modifies 10 U.S.C.
• Does not have Federalism 2321(f) to address rights in technical
implications as specified in Executive AGENCY: Defense Acquisition data relating to major weapon systems.
Order 13132 (64 FR 43255, August 10, Regulations System, Department of The validation of asserted restrictions
on technical data is based on statutory
ehiers on DSK5VPTVN1PROD with PROPOSALS
1999); Defense (DoD).
• Is not an economically significant ACTION: Proposed rule. requirements, codified primarily at 10
regulatory action based on health or U.S.C. 2321, which are implemented in
safety risks subject to Executive Order SUMMARY: DoD is proposing to amend the DFARS at 227.7102–3 for
13045 (62 FR 19885, April 23, 1997); the Defense Federal Acquisition commercial technical data and at
• Is not a significant regulatory action Regulation Supplement (DFARS) to 227.7103–13 for noncommercial
subject to Executive Order 13211 (66 FR implement a section of the National technical data, and incorporated into
28355, May 22, 2001); Defense Authorization Act for Fiscal individual contracts via the clause
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![Federal Register / Vol. 81, No. 90 / Tuesday, May 10, 2016 / Proposed Rules 28815
Current Revised Delta
requirement
Respondents ................................................................................................................................ 520 468 52
Responses per respondent ......................................................................................................... 1 1 1
Total annual responses ........................................................................................................ 520 468 52
Preparation hours per response .................................................................................................. 20 20 20
Total response burden hours ........................................................................................ 10,400 9,360 1,040
B. Request for Comments Regarding List of Subjects in 48 CFR Parts 227 and (1) A commercial subsystem or
Paperwork Burden 252 component of a major weapon system,
Government procurement. if the major weapon system was
Written comments and acquired as a commercial item in
recommendations on the proposed Jennifer L. Hawes, accordance with subpart 234.70 (10
information collection, including Editor, Defense Acquisition Regulations U.S.C. 2379(a));
suggestions for reducing this burden, System. (2) A component of a subsystem, if the
should be sent to Ms. Jasmeet Seehra at Therefore, 48 CFR parts 227 and 252 subsystem was acquired as a
the Office of Management and Budget, is proposed to be amended as follows: commercial item in accordance with
Desk Officer for DoD, Room 10236, New subpart 234.70 (10 U.S.C. 2379(b)); and
■ 1. The authority citation for parts 227
Executive Office Building, Washington, (3) Any other component, if the
and 252 continues to read as follows: component is a commercially available
DC 20503, or email Jasmeet_K._Seehra@
omb.eop.gov, with a copy to the Defense Authority: 41 U.S.C. 1303 and 48 CFR off-the-shelf item or a commercially
chapter 1. available off-the-shelf item with
Acquisition Regulations System, Attn:
Ms. Amy G. Williams, modifications of a type customarily
PART 227—PATENT, DATA, AND available in the commercial marketplace
OUSD(AT&L)DPAP/DARS, Room COPYRIGHTS
3B941, 3060 Defense Pentagon, or minor modifications made to meet
Washington, DC 20301–3060. ■ 2. Amend section 227.7103–13 by— Federal Government requirements; and
■ a. In paragraph (c)(1), removing (B) In all other cases, the contracting
Comments can be received from 30 to 60
‘‘commercial item, component, or officer shall sustain the challenge unless
days after the date of this proposed rule,
process’’ and adding ‘‘commercial item’’ information provided by the contractor
but comments to OMB will be most or subcontractor demonstrates that the
useful if received by OMB within 30 in its place and removing ‘‘the item,
component or process’’ and adding item was developed exclusively at
days after the date of this proposed rule. private expense.
‘‘that item’’ in its place; and
Public comments are particularly ■ b. Revising paragraphs (c)(2)(i) and * * * * *
invited on: whether this collection of (ii).
information is necessary for the proper 227.7203–13 [Amended]
The revisions read as follows:
performance of functions of the DFARS, ■ 3. Section 227.7203–13 is amended by
and will have practical utility; whether 227.7103–13 Government right to review, removing paragraph (d) and
our estimate of the public burden of this verify, challenge and validate asserted redesignating paragraphs (e), (f), and (g)
restrictions. as paragraphs (d), (e), and (f),
collection of information is accurate,
and based on valid assumptions and * * * * * respectively.
methodology; ways to enhance the (c) * * *
(2) * * * PART 252—SOLICITATION
quality, utility, and clarity of the PROVISIONS AND CONTRACT
information to be collected; and ways in (i) Commercial items. Except as
provided in paragraph (c)(2)(ii) of this CLAUSES
which we can minimize the burden of
subsection, contracting officers shall ■ 4. Amend section 252.227–7019 by—
the collection of information on those
presume that a commercial item was ■ a. Removing the clause date ‘‘(SEPT
who are to respond, through the use of
developed exclusively at private 2011)’’ and adding ‘‘(DATE)’’ in its
appropriate technological collection
expense whether or not a contractor or place;
techniques or other forms of information subcontractor submits a justification in ■ b. Removing paragraph (f);
technology. response to a challenge notice. When a ■ c. Redesignating paragraphs (g), (h),
To request more information on this challenge is warranted, a contractor’s or (i), and (j) as paragraphs (f), (g), (h), and
proposed information collection or to subcontractor’s failure to respond to the (i), respectively;
obtain a copy of the proposal and challenge notice cannot be the sole basis ■ d. In newly redesignated paragraph
associated collection instruments, for issuing a final decision denying the (f)(5)—
please write to the Defense Acquisition validity of an asserted restriction. ■ i. Removing ‘‘(g)(1)’’ and adding
Regulations System, Attn: Ms. Amy G. (ii) Major weapon systems. When the ‘‘(f)(1)’’ in its place;
Williams, OUSD(AT&L)DPAP/DARS, contracting officer challenges an ■ ii. Removing ‘‘Officer will’’ and
asserted restriction regarding technical
ehiers on DSK5VPTVN1PROD with PROPOSALS
Room 3B941, 3060 Defense Pentagon, adding ‘‘Officer shall’’ in its place; and
Washington, DC 20301–3060, or email data for a major weapon system or a ■ iii. Removing ‘‘paragraph (f) of this
osd.dfars@mail.mil. Include DFARS subsystem or component thereof on the clause and’’;
Case 2016–D008 in the subject line of basis that the technology was not ■ f. In newly redesignated paragraph
the message. developed exclusively at private (f)(6) introductory text, removing ‘‘the
expense— written explanation furnished pursuant
(A) The presumption in paragraph to paragraph (f)(1) of this clause, or any
(c)(2)(i) of this subsection applies to— other’’ and adding ‘‘any’’ in its place;
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![28816 Federal Register / Vol. 81, No. 90 / Tuesday, May 10, 2016 / Proposed Rules
■ g. In newly redesignated paragraph was developed exclusively at private approximately two to three days after
(g)(1) introductory text, removing expense. submission to verify posting (except
‘‘(h)(3)’’ and adding ‘‘(g)(3)’’ in its place; * * * * * allow 30 days for posting of comments
and [FR Doc. 2016–10827 Filed 5–9–16; 8:45 am] submitted by mail).
■ h. In newly redesignated paragraph BILLING CODE 5001–06–P FOR FURTHER INFORMATION CONTACT: Mr.
(g)(3), removing ‘‘(h)(1)’’ and adding Christopher Stiller, telephone 571–372–
‘‘(g)(1)’’ in its place. 6176.
■ 5. Amend section 252.227–7037 by— DEPARTMENT OF DEFENSE SUPPLEMENTARY INFORMATION:
■ a. Removing the clause date ‘‘(JUN
Defense Acquisition Regulations I. Background
2013)’’ and adding ‘‘(DATE)’’ in its
place; and System This rule proposes to revise the
■ b. Revising paragraphs (b)(1) and (2). DFARS to update DFARS clause
The revision reads as follows: 48 CFR Part 252 252.203–7004, Display of Hotline
[Docket DARS–2016–0016] Posters. This clause currently requires
252.227–7037 Validation of restrictive the display of a DoD fraud hotline
markings on technical data. RIN 0750–AI94 poster, a separate combating trafficking
(b) * * * in persons poster, and a whistleblower
Defense Federal Acquisition protection poster. DoD has consolidated
(1) Commercial items. (i) Except as
Regulation Supplement: Display of the posters into one poster to reduce the
provided in paragraph (b)(2) of this
Hotline Posters (DFARS Case 2016– number of posters required to be
clause, the Contracting Officer will
D018) displayed and proposes updating the
presume that the Contractor’s or a
subcontractor’s asserted use or release AGENCY: Defense Acquisition clause accordingly. This rule also
restrictions with respect to a Regulations System, Department of removes the United States-only
commercial item is justified on the basis Defense (DoD). restriction for use of the DoD poster,
that the item was developed exclusively ACTION: Proposed rule.
because the human trafficking poster
at private expense. requires display outside the United
(ii) The Contracting Officer will not SUMMARY: DoD is proposing to amend States, even though the fraud hotline
challenge such assertions unless the the Defense Federal Acquisition poster did not. Additionally, if the
Contracting Officer has information that Regulation Supplement (DFARS) to contract is funded, in whole or in part,
demonstrates that the commercial item consolidate the multiple hotline posters by the Department of Homeland
was not developed exclusively at into one poster that delineates multiple Security (DHS) disaster relief funds and
private expense. reportable offenses. the work is to be performed in the
(2) Major weapon systems. In the case DATES: Comments on the proposed rule United States, the DHS fraud hotline
of a challenge to a use or release should be submitted in writing to the poster must also be displayed. The
restriction that is asserted with respect address shown below on or before July clause also is amended to provide
to data of the Contractor or a 11, 2016, to be considered in the contact information for obtaining the
subcontractor for a major weapon formation of a final rule. DHS poster.
system or a subsystem or component ADDRESSES: Submit comments II. Executive Orders 12866 and 13563
thereof on the basis that the major identified by DFARS Case 2016–D018, Executive Orders (E.O.s) 12866 and
weapon system, subsystem, or using any of the following methods: 13563 direct agencies to assess all costs
component was developed exclusively Æ Regulations.gov: http:// and benefits of available regulatory
at private expense— www.regulations.gov. Submit comments alternatives and, if regulation is
(i) The presumption in paragraph via the Federal eRulemaking portal by necessary, to select regulatory
(b)(1) of this clause applies to— entering ‘‘DFARS Case 2016–D018’’ approaches that maximize net benefits
(A) A commercial subsystem or under the heading ‘‘Enter keyword or (including potential economic,
component of a major weapon system, ID’’ and selecting ‘‘Search.’’ Select the environmental, public health and safety
if the major weapon system was link ‘‘Submit a Comment’’ that effects, distributive impacts, and
acquired as a commercial item in corresponds with ‘‘DFARS Case 2016– equity). E.O. 13563 emphasizes the
accordance with DFARS subpart 234.70 D018.’’ Follow the instructions provided importance of quantifying both costs
(10 U.S.C. 2379(a)); at the ‘‘Submit a Comment’’ screen. and benefits, of reducing costs, of
(B) A component of a subsystem, if Please include your name, company harmonizing rules, and of promoting
the subsystem was acquired as a name (if any), and ‘‘DFARS Case 2016– flexibility. This is not a significant
commercial item in accordance with D018’’ on your attached document. regulatory action and, therefore, was not
DFARS subpart 234.70 (10 U.S.C. Æ Email: osd.dfars@mail.mil. Include subject to review under section 6(b) of
2379(b)); and DFARS Case 2016–D018 in the subject E.O. 12866, Regulatory Planning and
(C) Any other component, if the line of the message. Review, dated September 30, 1993. This
component is a commercially available Æ Fax: 571–372–6094. rule is not a major rule under 5 U.S.C.
off-the-shelf item or a commercially Æ Mail: Defense Acquisition 804.
available off-the-shelf item with Regulations System, Attn: Mr.
modifications of a type customarily Christopher Stiller, OUSD(AT&L)DPAP/ III. Regulatory Flexibility Act
available in the commercial marketplace DARS, Room 3B941, 3060 Defense DoD does not expect this proposed
ehiers on DSK5VPTVN1PROD with PROPOSALS
or minor modifications made to meet Pentagon, Washington, DC 20301–3060. rule to have a significant economic
Federal Government requirements; and Comments received generally will be impact on a substantial number of small
(ii) In all other cases, the challenge to posted without change to http:// entities within the meaning of the
the use or release restriction will be www.regulations.gov, including any Regulatory Flexibility Act, 5 U.S.C. 601,
sustained unless information provided personal information provided. To et seq. However, an initial regulatory
by the Contractor or a subcontractor confirm receipt of your comment(s), flexibility analysis has been performed
demonstrates that the item or process please check www.regulations.gov, and is summarized as follows:
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Document Created: 2016-05-10 05:19:31
Document Modified: 2016-05-10 05:19:31
| 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 | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | Comments on the proposed rule should be submitted in writing to | |
| Contact | Ms. Amy G. Williams, telephone 571- 372-6106. | |
| FR Citation | 81 FR 28812 | |
| RIN Number | 0750-AI91 | |
| CFR Citation | 48
CFR
227 48 CFR 252 |
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