Defense Federal Acquisition Regulation Supplement; Transportation (DFARS Case 2003-D028), 51416-51419 [2010-20439]
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Federal Register / Vol. 75, No. 161 / Friday, August 20, 2010 / Rules and Regulations
(ii) An economic downturn, the
occurrence of a natural disaster, or
similar events in the service area that
severely restrict or reduce sources of
local funding support; or
(iii) The unexpected discontinuation
of local support from one or more
sources that a project has relied on for
a period of years.
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Dated: August 13, 2010.
Tom Bryant,
Associate General Counsel.
[FR Doc. 2010–20525 Filed 8–19–10; 8:45 am]
BILLING CODE 6050–28–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 202, 212, and 234
[DFARS Case 2008–D011]
Defense Federal Acquisition
Regulation Supplement; Acquisition of
Commercial Items
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
DoD is adopting as final,
without change, the interim rule that
amended the Defense Federal
Acquisition Regulation Supplement
(DFARS) to implement sections 805 and
815 of the National Defense
Authorization Act for Fiscal Year 2008.
This rule specified when time-andmaterials or labor-hour contracts may be
used for the acquisition of commercial
items, and revised the language to
address the conditions under which
major weapon systems or subsystems
may be treated as commercial items.
DATES: Effective Date: August 20, 2010.
FOR FURTHER INFORMATION CONTACT: Ms.
Cassandra R. Freeman, Defense
Acquisition Regulations System, OUSD
(AT&L) DPAP/DARS, 3060 Defense
Pentagon, Room 3B855, Washington, DC
20301–3060. Telephone 703–602–8383;
facsimile 703–602–0350. Please cite
DFARS Case 2008–D011.
SUPPLEMENTARY INFORMATION:
SUMMARY:
July 21, 2009, to clarify the types of
services to which this rule applies,
consistent with subsections (c)(1)(A)
and (c)(1)(C)(i) of section 805 of the
NDAA for Fiscal Year 2008. Section 805
specified when time-and-materials or
labor-hour contracts may be used for
commercial item acquisitions. Section
815 of the NDAA for Fiscal Year 2008
provided clarification regarding
situations under which the procurement
of a major weapon system, subsystems
of major weapon systems, and
components and spare parts for major
weapon systems, may be acquired using
procedures established for the
acquisition of commercial items.
Section 815 also clarified that the terms
‘‘general public’’ and ‘‘non-governmental
entities’’ with regard to sales of
commercial items, do not include the
Federal Government or a State, local, or
foreign government.
This rule was not subject to Office of
Management and Budget review under
Executive Order 12866, dated
September 30, 1993.
B. Regulatory Flexibility Act
DoD certifies that this rule will not
have a significant economic impact on
a substantial number of small entities
within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq.,
because the rule reinforces existing
requirements for the appropriate use of
commercial acquisition procedures and
for ensuring that contract prices are fair
and reasonable.
C. Paperwork Reduction Act
The Paperwork Reduction Act does
not apply because the rule does not
impose any information collection
requirements that require the approval
of the Office of Management and Budget
under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 202,
212, and 234
Government procurement.
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations
System.
Interim Rule Adopted as Final Without
Change
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A. Background
DoD published an interim rule at 74
FR 34263 on July 15, 2009, to
implement sections 805 and 815 of the
National Defense Authorization Act
(NDAA) for Fiscal Year 2008 (Pub. L.
110–181). A correction to the interim
rule was published at 74 FR 35825 on
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Accordingly, the interim rule
published at 74 FR 34263 on July 15,
2009, as corrected at 75 FR 35825 on
July 21, 2009, is adopted as final
without change.
■
[FR Doc. 2010–20436 Filed 8–19–10; 8:45 am]
BILLING CODE 5001–08–P
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 247 and 252
Defense Federal Acquisition
Regulation Supplement;
Transportation (DFARS Case 2003–
D028)
Defense Acquisition
Regulations System. Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
DoD is issuing a final rule,
with changes, amending the Defense
Federal Acquisition Regulation
Supplement (DFARS) to update text on
transportation matters relating to DoD
contracts.
SUMMARY:
Effective Date: August 20, 2010.
Ms.
Mary Overstreet, Defense Acquisition
Regulations System, OUSD (AT&L)
DPAP (DARS), 3060 Defense Pentagon,
Room 3B855, Washington, DC 20301–
3060. Telephone 703–602–0311;
facsimile 703–602–0350. Please cite
DFARS Case 2003–D028.
SUPPLEMENTARY INFORMATION:
DATES:
FOR FURTHER INFORMATION CONTACT:
A. Background
In keeping with the DFARS
Transformation initiative objective of
improving the efficiency and
effectiveness of the acquisition process,
while allowing the acquisition
workforce the flexibility to innovate,
DoD issued a proposed rule at 70 FR
43109 on July 26, 2005, to update text
on transportation matters relating to
DoD contracts, including clarifying
certain shipping procedures and
offering additional guidance on their
use.
This final rule is a result of the
DFARS Transformation initiative. The
changes to the final rule—
Æ Delete text on transportation
matters that are sufficiently addressed
in the Federal Acquisition Regulation or
in DoD transportation regulations;
Æ Clarify requirements for inclusion
of shipping instructions in solicitations
and contracts; and
Æ Delete procedures for contracting
for the preparation of property for
shipment or storage; and for preparation
of consignment instructions. Text on
these subjects will be relocated to the
DFARS companion resource,
Procedures, Guidance, and Information
(PGI). Additional information on PGI is
available at https://www.acq.osd.mil/
dpap/dars/pgi.
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Federal Register / Vol. 75, No. 161 / Friday, August 20, 2010 / Rules and Regulations
B. Public Comments
No public comments were received in
response to the proposed rule.
List of Subjects in 48 CFR Parts 247 and
252
C. Summary of Changes to the Proposed
Rule
The following changes to the
proposed rule resulted from DoD
deliberations:
Æ 247.001 indicates the availability of
additional information at PGI 247.001
for the Voluntary Intermodal Sealift
Agreement program.
Æ 247.200 indicates the availability of
additional guidance at PGI 247.200 for
procurement of transportation or related
services.
Æ 247.270–3, proposed for deletion,
has been retained (redesignated as
240.270–2).
Æ 247.271–2, proposed for deletion,
has been retained (redesignated as
247.271–1).
Æ 247.271–4(i) (redesignated as
247.271–3(i)) indicates the availability
of additional information at PGI
247.271–3(c)(1) for demurrage and
detention charges.
Æ 247.301 indicates the availability of
guidance at PGI 247.301 relating to
Government Purchase Card purchases
that require shipments to destinations
outside CONUS.
Æ 247.371 (redesignated as 247.370)
indicates the availability of guidance at
PGI 247.370 relating to DD Form 1384,
Transportation Control and Movement
Document.
This is not a significant regulatory
action, and therefore, is not subject to
review under Section 6(b) of Executive
Order 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations
System.
247.271–1
Therefore, DoD is amending 48 CFR
parts 247 and 252 as follows:
■ 1. The authority citation for 48 CFR
parts 247 and 252 continues to read as
follows:
247.271–2 and 247.271–3
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D. Regulatory Flexibility Act
DoD certifies that this final rule will
not have a significant economic impact
on a substantial number of small entities
within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq.,
because the rule addresses internal DoD
requirements for transportation
planning and management. Therefore,
DoD has not performed a final
regulatory flexibility analysis. No
comments were received from small
business concerns and other interested
parties on the expected impact of this
rule on small entities.
E. Paperwork Reduction Act
The Paperwork Reduction Act does
not apply because the rule does not
impose any information collection
requirements that require the approval
of the Office of Management and Budget
under 44 U.S.C. 3501, et seq.
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Government procurement.
■
Authority: 41 U.S.C. 421 and 48 CFR
chapter 1.
247.270–6
51417
[Redesignated]
9. Section 247.270–6 is redesignated
as section 247.270–4.
■
■
[Removed]
10. Section 247.271–1 is removed.
[Redesignated]
11. Sections 247.271–2 and 247.271–
3 are redesignated as sections 247.271–
1 and 247.271–2, respectively.
■ 12. Newly designated section
247.271–2 is revised to read as follows:
■
247.271–2
Procedures.
2. Section 247.001 is revised to read
as follows:
Follow the procedures at PGI
247.271–2 for contracting for the
preparation of personal property for
shipment or storage.
247.001
247.271–4
PART 247—TRANSPORTATION
■
Definitions.
For definitions of ‘‘Civil Reserve Air
Fleet’’ and ‘‘Voluntary Intermodal Sealift
Agreement,’’ see Joint Pub 1–02, DoD
Dictionary of Military and Associated
Terms. See additional information at
PGI 247.001 for the Voluntary
Intermodal Sealift Agreement program.
Subpart 247.1
[Removed]
[Redesignated]
13. Section 247.271–4 is redesignated
as section 247.271–3.
■ 14. Newly designated section
247.271–3 is amended by revising
paragraphs (c) and (i) to read as follows:
■
247.271–3 Solicitation provisions,
schedule formats, and contract clauses.
This subpart does not apply to the
operation of vessels owned by, or
bareboat chartered by, the Government.
See additional guidance at PGI 247.200
for procurement of transportation or
related services.
■ 5. Section 247.206 is revised to read
as follows:
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(c) In solicitations and resulting
contracts, the schedules provided by the
installation personal property shipping
office. Follow the procedures at PGI
247.271–3(c) for use of schedules.
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(i) The clause at 252.247–7014,
Demurrage. See additional information
at PGI 247.271–3(c)(1) for demurrage
and detention charges.
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■ 15. Section 247.301 is revised to read
as follows:
247.206 Preparation of solicitations and
contracts.
247.301
3. Subpart 247.1 is removed.
■ 4. Section 247.200 is revised to read
as follows:
■
247.200
Scope of subpart.
Consistent with FAR 15.304 and
215.304, consider using the following as
evaluation factors or subfactors:
(1) Record of claims involving loss or
damage; and
(2) Commitment of transportation
assets to readiness support (e.g., Civil
Reserve Air Fleet and Voluntary
Intermodal Sealift Agreement).
247.270–1
■
[Removed]
6. Section 247.270–1 is removed.
247.270–2, 247.270–3, and 247.270–4
[Redesignated]
7. Sections 247.270–2, 247.270–3, and
247.270–4 are redesignated as sections
247.270–1, 247.270–2, and 247.270–3,
respectively.
■
247.270–5
■
[Removed]
8. Section 247.270–5 is removed.
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*
General.
See PGI 247.301 for transportation
guidance relating to Government
Purchase Card purchases that require
shipments to destinations outside
CONUS.
■ 15a. Sections 247.305–10 and
247.305–70 are revised to read as
follows:
247.305–10 Packing, marking, and
consignment instructions.
Follow the procedures at PGI
247.305–10 for preparation of
consignment instructions.
247.305–70 Returnable containers other
than cylinders.
Use the clause at 252.247–7021,
Returnable Containers Other Than
Cylinders, in solicitations and contracts
for supplies involving contractorfurnished returnable reels, spools, or
other returnable containers if the
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Federal Register / Vol. 75, No. 161 / Friday, August 20, 2010 / Rules and Regulations
contractor is to retain title to the
containers.
247.370
■
[Removed]
16. Section 247.370 is removed.
247.371 and 247.372
[Redesignated]
17. Sections 247.371 and 247.372 are
redesignated as sections 247.370 and
247.371, respectively.
■ 18. Newly designated sections
247.370 and 247.371 are revised to read
as follows:
■
247.370 DD Form 1384, Transportation
Control and Movement Document.
The transportation office of the
shipping activity prepares the DD Form
1384 to accompany all shipments made
through a military air or water port, in
accordance with DoD 4500.9–R, Defense
Transportation Regulation, Part II,
Chapter 203. A link to this document is
available in PGI 247.370.
247.371 DD Form 1653, Transportation
Data for Solicitations.
The transportation specialist prepares
the DD Form 1653 to accompany
requirements for the acquisition of
supplies. The completed form should
contain recommendations for suitable
f.o.b. terms and other suggested
transportation provisions for inclusion
in the solicitation.
247.373
[Redesignated]
19. Section 247.373 is redesignated as
section 247.372.
■ 20. Section 247.573–1 is amended by
revising paragraphs (b) and (c) to read
as follows:
■
247.573–1 Ocean transportation incidental
to a contract for supplies, services, or
construction.
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(b) DD Form 1653, Transportation
Data for Solicitations, shall be used—
(1) By the requesting activity in
developing the Government estimate for
transportation costs; and
(2) By the contracting officer in
ensuring that valid shipping
instructions and delivery terms are
included in solicitations and contracts
that may involve transportation of
supplies by sea.
(c) If the contractor notifies the
contracting officer that the contractor or
a subcontractor considers that—
(1) No U.S.-flag vessels are available,
the contracting officer must request
confirmation of the nonavailability
from—
(i) The Commander, Military Sealift
Command (MSC), through the Contracts
and Business Management Directorate,
MSC; or
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(ii) The Commander, Military Surface
Deployment and Distribution (SDDC),
through the SDDC global e-mailbox
sddc.ops.ffw@us.army.mil and the
Principal Assistant Responsible for
Contracting, SDDC.
(2) The proposed freight charges to
the Government, the contractor, or any
subcontractor are higher than charges
for transportation of like goods to
private persons, the contracting officer
may approve a request for an exception
to the requirement to ship on U.S.-flag
vessels for a particular shipment.
(i) Prior to granting an exception, the
contracting officer must request advice,
oral or written, from the Commander,
MSC, or the Commander, MTMC.
(ii) In advising the contracting officer
whether to grant the exception, the
Commander, MSC, or the Commander,
SDDC, must consider, as appropriate,
evidence from—
(A) Published tariffs;
(B) Industry publications;
(C) The Maritime Administration; and
(D) Any other available sources.
(3) The freight charges proposed by
U.S.-flag carriers are excessive or
otherwise unreasonable—
(i) The contracting officer must
prepare a report in determination and
finding format, and must—
(A) Take into consideration that the
1904 Act is, in part, a subsidy of the
U.S.-flag commercial shipping industry
that recognizes that lower prices may be
available from foreign-flag carriers.
Therefore, a lower price for use of a
foreign-flag vessel is not a sufficient
basis, on its own, to determine that the
freight rate proposed by the U.S.-flag
carrier is excessive or otherwise
unreasonable. However, such a price
differential may indicate a need for
further review;
(B) Consider, accordingly, not only
excessive profits to the carrier (to
include vessel owner or operator), if
ascertainable, but also excessive costs to
the Government (i.e., costs beyond the
economic penalty normally incurred by
excluding foreign competition) resulting
from the use of U.S.-flag vessels in
extraordinarily inefficient
circumstances; and
(C) Include an analysis of whether the
cost is excessive, taking into account
factors such as—
(1) The differential between the
freight charges proposed by the U.S.-flag
carrier and an estimate of what foreignflag carriers would charge based upon a
price analysis;
(2) A comparison of U.S.-flag rates
charged on comparable routes;
(3) Efficiency of operation regardless
of rate differential (e.g., suitability of the
vessel for the required transportation in
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terms of cargo requirements or vessel
capacity, and the commercial
reasonableness of vessel positioning
required); and
(4) Any other relevant economic and
financial considerations.
(ii) The contracting officer must
forward the report to—
(A) The Commander, MSC, through
the Contracts and Business Management
Directorate, MSC; or
(B) The Commander, through the
SDDC global e-mailbox:
sddc.ops.ffw@us.army.mil and the
Principal Assistant Responsible for
Contracting, SDDC.
(iii) If in agreement with the
contracting officer, the Commander,
MSC, or the Commander, SDDC, will
forward the report to the Secretary of
the Navy or the Secretary of the Army,
respectively, for a determination as to
whether the proposed freight charges
are excessive or otherwise unreasonable.
247.573–2
[Amended]
21. Section 247.573–2 paragraph (d) is
amended by removing the acronym
‘‘MTMC’’ and adding in its place the
acronym ‘‘SDDC’’ each time it appears as
follows:
■ a. In paragraph (d)(1) introductory
text;
■ b. In paragraph (d)(1)(i);
■ c. In paragraph (d)(1)(ii)(B);
■ d. In paragraph (d)(1)(iii);
■ e. In paragraph (d)(2);
■ f. In paragraph (d)(3)(ii)(B); and
■ g. In paragraph (d)(3)(iii).
■
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
252.247–7000 through 252.247–7002 and
252.247–7004 through 252.247–7007
[Amended]
22. Sections 252.247–7000 through
252.247–7002 and 252.247–7004
through 252.247–7007 are amended in
the introductory text by removing
‘‘247.270–6’’ and adding in its place
‘‘247.270–4’’.
■
252.247–7008
[Amended]
23. Section 252.247–7008 and its
Alternate I are amended in the
introductory text by removing ‘‘247.271–
4’’ and adding in its place ‘‘247.271–3’’.
■
252.247–7009 through 252.247–7012
[Amended]
24. Sections 252.247–7009 through
252.247–7012 are amended in the
introductory text by removing ‘‘247.271–
4’’ and adding in its place ‘‘247.271–3’’.
■
252.247–7013
[Amended]
25. Section 252.247–7013 is amended
in the introductory text as follows:
■
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a. By removing ‘‘247.271–4’’ and
adding in its place ‘‘247.271–3’’; and
■ b. By removing the parenthetical ‘‘(see
247.271–2(b))’’.
■
252.247–7014 and 252.247–7016 through
252.247–7020 [Amended]
26. Sections 252.247–7014 and
252.247–7016 through 252.247–7020 are
amended in the introductory text by
removing ‘‘247.271–4’’ and adding in its
place ‘‘247.271–3’’.
■
[FR Doc. 2010–20439 Filed 8–19–10; 8:45 am]
BILLING CODE 5001–08–P
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
49 CFR Part 390
[Docket No. FMCSA–2005–23315]
RIN 2126–AB25
Requirements for Intermodal
Equipment Providers and for Motor
Carriers and Drivers Operating
Intermodal Equipment
and motor carriers to prepare a DVIR on
an item of IME if no damage, defects, or
deficiencies are discovered by, or
reported to, the driver, is extended until
June 30, 2011.
ADDRESSES:
• Public Access to the Docket: You
may view, print, and download this
final rule and all related documents and
background material on-line at https://
www.regulations.gov, using the Docket
ID Number FMCSA–2005–23315. These
documents can also be examined and
copied for a fee at the U.S. Department
of Transportation, Docket Operations,
West Building-Ground Floor, Room
W12–140, 1200 New Jersey Avenue, SE.,
Washington, DC, between 9 a.m. and 5
p.m., Monday through Friday, except
Federal holidays.
FOR FURTHER INFORMATION CONTACT: Ms.
Deborah M. Freund, Vehicle and
Roadside Operations Division, Office of
Bus and Truck Standards and
Operations (MC–PSV), Federal Motor
Carrier Safety Administration, 1200
New Jersey Avenue, SE., Washington,
DC 20590; telephone (202) 366–4325.
SUPPLEMENTARY INFORMATION:
Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Final rule; partial extension of
compliance date.
Legal Basis
The FMCSA extends until
June 30, 2011, the June 30, 2010,
compliance date of its December 29,
2009, final rule concerning the
inspection, repair, and maintenance of
intermodal equipment (IME),
specifically with respect to the
requirement for drivers and motor
carriers to prepare a driver-vehicle
inspection report (DVIR) on an item of
IME even if no damage, defects, or
deficiencies are discovered by, or
reported to, the driver. This action is
being taken to provide the Agency with
sufficient time to address, through a
notice-and-comment rulemaking
proceeding, an issue raised in a petition
for rulemaking submitted on March 31,
2010, by the Ocean Carrier Equipment
Management Association (OCEMA) and
the Institute of International Container
Lessors (IICL) (also referred to as ‘‘the
petitioners’’). The requirements for
intermodal equipment providers (IEPs)
to have in place inspection, repair and
maintenance programs, and a process
for receiving and taking appropriate
action in response to DVIRs on which
damage, defects, or deficiencies are
reported, remain in effect.
DATES: Compliance Date: As of August
20, 2010, the compliance date for the
requirement in § 390.42(b) for drivers
Background
AGENCY:
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SUMMARY:
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The legal basis of the December 17,
2008 final rule (73 FR 76794) is also
applicable to this rule.
On December 17, 2008, FMCSA
published a final rule adopting
regulations to implement section 4118
of the Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A
Legacy for Users (SAFETEA–LU) (Pub.
L. 109–59, 119 Stat. 1144, 1729, August
10, 2005). The regulations require IEPs
to register and file with FMCSA an
Intermodal Equipment Provider
Identification Report (Form MCS–150C);
establish a systematic inspection, repair,
and maintenance program to ensure the
safe operating condition of each
intermodal chassis; maintain
documentation of their maintenance
program; and provide a means to
effectively respond to driver and motor
carrier reports about intermodal chassis
mechanical defects and deficiencies.
The regulations also require IEPs to
mark each intermodal chassis offered for
transportation in interstate commerce
with a U.S. Department of
Transportation (USDOT) identification
number. These regulations, for the first
time, made IEPs subject to the Federal
Motor Carrier Safety Regulations
(FMCSRs), and called for shared safety
responsibility among IEPs, motor
carriers, and drivers. Additionally,
FMCSA adopted inspection
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51419
requirements for motor carriers and
drivers operating IME. Improved
maintenance is expected to result in
fewer chassis being placed out-ofservice and fewer breakdowns involving
intermodal chassis, thus improving the
Nation’s intermodal transportation
system. Because inadequately
maintained intermodal chassis create
risks for crashes, the regulations help
ensure that commercial motor vehicle
(CMV) operations are safer.
On December 29, 2009, FMCSA
amended the December 2008 final rule
to: (1) Create an additional marking
option for identifying the IEP
responsible for the inspection, repair,
and maintenance of items of IME in
response to a petition for
reconsideration from the Intermodal
Association of North America (IANA);
(2) clarify regulatory text and correct an
inadvertent error in response to a
petition for reconsideration from
OCEMA; and (3) extend the deadline for
IEPs, motor carriers, and drivers
operating IME to comply with certain
provisions pertaining to driver-vehicle
inspections in response to a petition
filed by OCEMA (74 FR 68703).
OCEMA/IICL Petition
On March 31, 2010, OCEMA and IICL
submitted a joint petition to FMCSA
requesting the repeal of the provision in
§ 390.42(b) of the FMCSRs that requires
motor carriers to prepare and transmit a
DVIR to the IEP at the time the IME is
returned to the IEP even when no
damage, defects, or deficiencies are
noted (hereafter referred to as a ‘‘nodefect DVIR’’). The petitioners contend
that requiring the preparation and
transmittal of these no-defect DVIRs
imposes an undue burden on drivers,
motor carriers, IEPs, and intermodal
facilities nationwide. The petitioners
estimate that a no-defect DVIR
requirement will necessitate the
completion, transmission, review, and
retention of over 38 million unnecessary
reports annually. In fact, the petitioners
believe that the added administrative
burdens of the requirement to file nodefect DVIRs actually could undermine
the goal of safe IME. A copy of the
petition has been placed in the docket
referenced at the beginning of this
notice.
The petitioners presented four
arguments against the DVIR element of
the current rule:
• SAFETEA–LU only requires DVIRs
for known damage or defects. Congress
could have added a requirement to file
no-defect DVIRs but did not do so. As
such, the regulatory imposition of nodefect DVIRs is not required by law and
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]]>Agencies
[Federal Register Volume 75, Number 161 (Friday, August 20, 2010)]
[Rules and Regulations]
[Pages 51416-51419]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-20439]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 247 and 252
Defense Federal Acquisition Regulation Supplement; Transportation
(DFARS Case 2003-D028)
AGENCY: Defense Acquisition Regulations System. Department of Defense
(DoD).
ACTION: Final rule.
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SUMMARY: DoD is issuing a final rule, with changes, amending the
Defense Federal Acquisition Regulation Supplement (DFARS) to update
text on transportation matters relating to DoD contracts.
DATES: Effective Date: August 20, 2010.
FOR FURTHER INFORMATION CONTACT: Ms. Mary Overstreet, Defense
Acquisition Regulations System, OUSD (AT&L) DPAP (DARS), 3060 Defense
Pentagon, Room 3B855, Washington, DC 20301-3060. Telephone 703-602-
0311; facsimile 703-602-0350. Please cite DFARS Case 2003-D028.
SUPPLEMENTARY INFORMATION:
A. Background
In keeping with the DFARS Transformation initiative objective of
improving the efficiency and effectiveness of the acquisition process,
while allowing the acquisition workforce the flexibility to innovate,
DoD issued a proposed rule at 70 FR 43109 on July 26, 2005, to update
text on transportation matters relating to DoD contracts, including
clarifying certain shipping procedures and offering additional guidance
on their use.
This final rule is a result of the DFARS Transformation initiative.
The changes to the final rule--
[cir] Delete text on transportation matters that are sufficiently
addressed in the Federal Acquisition Regulation or in DoD
transportation regulations;
[cir] Clarify requirements for inclusion of shipping instructions
in solicitations and contracts; and
[cir] Delete procedures for contracting for the preparation of
property for shipment or storage; and for preparation of consignment
instructions. Text on these subjects will be relocated to the DFARS
companion resource, Procedures, Guidance, and Information (PGI).
Additional information on PGI is available at https://www.acq.osd.mil/dpap/dars/pgi.
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B. Public Comments
No public comments were received in response to the proposed rule.
C. Summary of Changes to the Proposed Rule
The following changes to the proposed rule resulted from DoD
deliberations:
[cir] 247.001 indicates the availability of additional information
at PGI 247.001 for the Voluntary Intermodal Sealift Agreement program.
[cir] 247.200 indicates the availability of additional guidance at
PGI 247.200 for procurement of transportation or related services.
[cir] 247.270-3, proposed for deletion, has been retained
(redesignated as 240.270-2).
[cir] 247.271-2, proposed for deletion, has been retained
(redesignated as 247.271-1).
[cir] 247.271-4(i) (redesignated as 247.271-3(i)) indicates the
availability of additional information at PGI 247.271-3(c)(1) for
demurrage and detention charges.
[cir] 247.301 indicates the availability of guidance at PGI 247.301
relating to Government Purchase Card purchases that require shipments
to destinations outside CONUS.
[cir] 247.371 (redesignated as 247.370) indicates the availability
of guidance at PGI 247.370 relating to DD Form 1384, Transportation
Control and Movement Document.
This is not a significant regulatory action, and therefore, is not
subject to review under Section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
D. Regulatory Flexibility Act
DoD certifies that this final rule will not have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.,
because the rule addresses internal DoD requirements for transportation
planning and management. Therefore, DoD has not performed a final
regulatory flexibility analysis. No comments were received from small
business concerns and other interested parties on the expected impact
of this rule on small entities.
E. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the rule does
not impose any information collection requirements that require the
approval of the Office of Management and Budget under 44 U.S.C. 3501,
et seq.
List of Subjects in 48 CFR Parts 247 and 252
Government procurement.
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.
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Therefore, DoD is amending 48 CFR parts 247 and 252 as follows:
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1. The authority citation for 48 CFR parts 247 and 252 continues to
read as follows:
Authority: 41 U.S.C. 421 and 48 CFR chapter 1.
PART 247--TRANSPORTATION
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2. Section 247.001 is revised to read as follows:
247.001 Definitions.
For definitions of ``Civil Reserve Air Fleet'' and ``Voluntary
Intermodal Sealift Agreement,'' see Joint Pub 1-02, DoD Dictionary of
Military and Associated Terms. See additional information at PGI
247.001 for the Voluntary Intermodal Sealift Agreement program.
Subpart 247.1 [Removed]
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3. Subpart 247.1 is removed.
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4. Section 247.200 is revised to read as follows:
247.200 Scope of subpart.
This subpart does not apply to the operation of vessels owned by,
or bareboat chartered by, the Government. See additional guidance at
PGI 247.200 for procurement of transportation or related services.
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5. Section 247.206 is revised to read as follows:
247.206 Preparation of solicitations and contracts.
Consistent with FAR 15.304 and 215.304, consider using the
following as evaluation factors or subfactors:
(1) Record of claims involving loss or damage; and
(2) Commitment of transportation assets to readiness support (e.g.,
Civil Reserve Air Fleet and Voluntary Intermodal Sealift Agreement).
247.270-1 [Removed]
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6. Section 247.270-1 is removed.
247.270-2, 247.270-3, and 247.270-4 [Redesignated]
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7. Sections 247.270-2, 247.270-3, and 247.270-4 are redesignated as
sections 247.270-1, 247.270-2, and 247.270-3, respectively.
247.270-5 [Removed]
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8. Section 247.270-5 is removed.
247.270-6 [Redesignated]
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9. Section 247.270-6 is redesignated as section 247.270-4.
247.271-1 [Removed]
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10. Section 247.271-1 is removed.
247.271-2 and 247.271-3 [Redesignated]
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11. Sections 247.271-2 and 247.271-3 are redesignated as sections
247.271-1 and 247.271-2, respectively.
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12. Newly designated section 247.271-2 is revised to read as follows:
247.271-2 Procedures.
Follow the procedures at PGI 247.271-2 for contracting for the
preparation of personal property for shipment or storage.
247.271-4 [Redesignated]
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13. Section 247.271-4 is redesignated as section 247.271-3.
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14. Newly designated section 247.271-3 is amended by revising
paragraphs (c) and (i) to read as follows:
247.271-3 Solicitation provisions, schedule formats, and contract
clauses.
* * * * *
(c) In solicitations and resulting contracts, the schedules
provided by the installation personal property shipping office. Follow
the procedures at PGI 247.271-3(c) for use of schedules.
* * * * *
(i) The clause at 252.247-7014, Demurrage. See additional
information at PGI 247.271-3(c)(1) for demurrage and detention charges.
* * * * *
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15. Section 247.301 is revised to read as follows:
247.301 General.
See PGI 247.301 for transportation guidance relating to Government
Purchase Card purchases that require shipments to destinations outside
CONUS.
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15a. Sections 247.305-10 and 247.305-70 are revised to read as follows:
247.305-10 Packing, marking, and consignment instructions.
Follow the procedures at PGI 247.305-10 for preparation of
consignment instructions.
247.305-70 Returnable containers other than cylinders.
Use the clause at 252.247-7021, Returnable Containers Other Than
Cylinders, in solicitations and contracts for supplies involving
contractor-furnished returnable reels, spools, or other returnable
containers if the
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contractor is to retain title to the containers.
247.370 [Removed]
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16. Section 247.370 is removed.
247.371 and 247.372 [Redesignated]
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17. Sections 247.371 and 247.372 are redesignated as sections 247.370
and 247.371, respectively.
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18. Newly designated sections 247.370 and 247.371 are revised to read
as follows:
247.370 DD Form 1384, Transportation Control and Movement Document.
The transportation office of the shipping activity prepares the DD
Form 1384 to accompany all shipments made through a military air or
water port, in accordance with DoD 4500.9-R, Defense Transportation
Regulation, Part II, Chapter 203. A link to this document is available
in PGI 247.370.
247.371 DD Form 1653, Transportation Data for Solicitations.
The transportation specialist prepares the DD Form 1653 to
accompany requirements for the acquisition of supplies. The completed
form should contain recommendations for suitable f.o.b. terms and other
suggested transportation provisions for inclusion in the solicitation.
247.373 [Redesignated]
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19. Section 247.373 is redesignated as section 247.372.
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20. Section 247.573-1 is amended by revising paragraphs (b) and (c) to
read as follows:
247.573-1 Ocean transportation incidental to a contract for supplies,
services, or construction.
* * * * *
(b) DD Form 1653, Transportation Data for Solicitations, shall be
used--
(1) By the requesting activity in developing the Government
estimate for transportation costs; and
(2) By the contracting officer in ensuring that valid shipping
instructions and delivery terms are included in solicitations and
contracts that may involve transportation of supplies by sea.
(c) If the contractor notifies the contracting officer that the
contractor or a subcontractor considers that--
(1) No U.S.-flag vessels are available, the contracting officer
must request confirmation of the nonavailability from--
(i) The Commander, Military Sealift Command (MSC), through the
Contracts and Business Management Directorate, MSC; or
(ii) The Commander, Military Surface Deployment and Distribution
(SDDC), through the SDDC global e-mailbox sddc.ops.ffw@us.army.mil and
the Principal Assistant Responsible for Contracting, SDDC.
(2) The proposed freight charges to the Government, the contractor,
or any subcontractor are higher than charges for transportation of like
goods to private persons, the contracting officer may approve a request
for an exception to the requirement to ship on U.S.-flag vessels for a
particular shipment.
(i) Prior to granting an exception, the contracting officer must
request advice, oral or written, from the Commander, MSC, or the
Commander, MTMC.
(ii) In advising the contracting officer whether to grant the
exception, the Commander, MSC, or the Commander, SDDC, must consider,
as appropriate, evidence from--
(A) Published tariffs;
(B) Industry publications;
(C) The Maritime Administration; and
(D) Any other available sources.
(3) The freight charges proposed by U.S.-flag carriers are
excessive or otherwise unreasonable--
(i) The contracting officer must prepare a report in determination
and finding format, and must--
(A) Take into consideration that the 1904 Act is, in part, a
subsidy of the U.S.-flag commercial shipping industry that recognizes
that lower prices may be available from foreign-flag carriers.
Therefore, a lower price for use of a foreign-flag vessel is not a
sufficient basis, on its own, to determine that the freight rate
proposed by the U.S.-flag carrier is excessive or otherwise
unreasonable. However, such a price differential may indicate a need
for further review;
(B) Consider, accordingly, not only excessive profits to the
carrier (to include vessel owner or operator), if ascertainable, but
also excessive costs to the Government (i.e., costs beyond the economic
penalty normally incurred by excluding foreign competition) resulting
from the use of U.S.-flag vessels in extraordinarily inefficient
circumstances; and
(C) Include an analysis of whether the cost is excessive, taking
into account factors such as--
(1) The differential between the freight charges proposed by the
U.S.-flag carrier and an estimate of what foreign-flag carriers would
charge based upon a price analysis;
(2) A comparison of U.S.-flag rates charged on comparable routes;
(3) Efficiency of operation regardless of rate differential (e.g.,
suitability of the vessel for the required transportation in terms of
cargo requirements or vessel capacity, and the commercial
reasonableness of vessel positioning required); and
(4) Any other relevant economic and financial considerations.
(ii) The contracting officer must forward the report to--
(A) The Commander, MSC, through the Contracts and Business
Management Directorate, MSC; or
(B) The Commander, through the SDDC global e-mailbox:
sddc.ops.ffw@us.army.mil and the Principal Assistant Responsible for
Contracting, SDDC.
(iii) If in agreement with the contracting officer, the Commander,
MSC, or the Commander, SDDC, will forward the report to the Secretary
of the Navy or the Secretary of the Army, respectively, for a
determination as to whether the proposed freight charges are excessive
or otherwise unreasonable.
247.573-2 [Amended]
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21. Section 247.573-2 paragraph (d) is amended by removing the acronym
``MTMC'' and adding in its place the acronym ``SDDC'' each time it
appears as follows:
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a. In paragraph (d)(1) introductory text;
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b. In paragraph (d)(1)(i);
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c. In paragraph (d)(1)(ii)(B);
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d. In paragraph (d)(1)(iii);
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e. In paragraph (d)(2);
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f. In paragraph (d)(3)(ii)(B); and
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g. In paragraph (d)(3)(iii).
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
252.247-7000 through 252.247-7002 and 252.247-7004 through 252.247-
7007 [Amended]
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22. Sections 252.247-7000 through 252.247-7002 and 252.247-7004 through
252.247-7007 are amended in the introductory text by removing
``247.270-6'' and adding in its place ``247.270-4''.
252.247-7008 [Amended]
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23. Section 252.247-7008 and its Alternate I are amended in the
introductory text by removing ``247.271-4'' and adding in its place
``247.271-3''.
252.247-7009 through 252.247-7012 [Amended]
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24. Sections 252.247-7009 through 252.247-7012 are amended in the
introductory text by removing ``247.271-4'' and adding in its place
``247.271-3''.
252.247-7013 [Amended]
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25. Section 252.247-7013 is amended in the introductory text as
follows:
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a. By removing ``247.271-4'' and adding in its place ``247.271-3''; and
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b. By removing the parenthetical ``(see 247.271-2(b))''.
252.247-7014 and 252.247-7016 through 252.247-7020 [Amended]
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26. Sections 252.247-7014 and 252.247-7016 through 252.247-7020 are
amended in the introductory text by removing ``247.271-4'' and adding
in its place ``247.271-3''.
[FR Doc. 2010-20439 Filed 8-19-10; 8:45 am]
BILLING CODE 5001-08-P
