Defense Federal Acquisition Regulation Supplement; Preservation of Tooling for Major Defense Acquisition Programs (DFARS Case 2008-D042), 11361-11363 [2011-4529]
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Federal Register / Vol. 76, No. 41 / Wednesday, March 2, 2011 / Rules and Regulations
(a) ‘‘NVOCC Negotiated Rate
Arrangement’’ or ‘‘NRA’’ means a written
and binding arrangement between an
NRA shipper and an eligible NVOCC to
provide specific transportation service
for a stated cargo quantity, from origin
to destination, on and after receipt of
the cargo by the carrier or its agent (or
the originating carrier in the case of
through transportation).
(b) ‘‘Rate’’ means a price stated for
providing a specified level of
transportation service for a stated cargo
quantity, from origin to destination, on
and after a stated date or within a
defined time frame.
(c) ‘‘Rules tariff’’ means a tariff or the
portion of a tariff, as defined by 46 CFR
520.2, containing the terms and
conditions governing the charges,
classifications, rules, regulations and
practices of an NVOCC, but does not
include a rate.
(d) ‘‘NRA shipper’’ means a cargo
owner, the person for whose account the
ocean transportation is provided, the
person to whom delivery is to be made,
a shippers’ association, or an ocean
transportation intermediary, as defined
in section 3(17)(B) of the Act (46 U.S.C.
40102(16)), that accepts responsibility
for payment of all applicable charges
under the NRA.
(e) ‘‘Affiliate’’ means two or more
entities which are under common
ownership or control by reason of being
parent and subsidiary or entities
associated with, under common control
with or otherwise related to each other
through common stock ownership or
common directors or officers.
Subpart B—Procedures Related to
NVOCC Negotiated Rate Arrangements
§ 532.4
NVOCC rules tariff.
Before entering into NRAs under this
Part, an NVOCC must provide electronic
access to its rules tariffs to the public
free of charge.
WReier-Aviles on DSKGBLS3C1PROD with RULES
§ 532.5 Requirements for NVOCC
negotiated rate arrangements.
In order to qualify for the exemptions
to the general rate publication
requirement as set forth in section
532.2, an NRA must:
(a) Be in writing;
(b) contain the legal name and address
of the parties and any affiliates; and
contain the names, title and addresses of
the representatives of the parties
agreeing to the NRA;
(c) be agreed to by both NRA shipper
and NVOCC, prior to the date on which
the cargo is received by the common
carrier or its agent (including originating
carriers in the case of through
transportation);
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15:24 Mar 01, 2011
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11361
(d) clearly specify the rate and the
shipment or shipments to which such
rate will apply; and
(e) may not be modified after the time
the initial shipment is received by the
carrier or its agent (including originating
carriers in the case of through
transportation).
By the Commission.
Karen V. Gregory,
Secretary.
§ 532.6
Defense Acquisition Regulations
System
Notices.
(a) An NVOCC wishing to invoke an
exemption pursuant to this part must
indicate that intention to the
Commission and to the public by:
(1) A prominent notice in its rules
tariff and bills of lading or equivalent
shipping documents; and
(2) By so indicating on its Form FMC–
1 on file with the Commission.
Subpart C—Recordkeeping
§ 532.7
Recordkeeping and audit.
§ 532.91 OMB control number issued
pursuant to the Paperwork Reduction Act.
The Commission has received OMB
approval for this collection of
information pursuant to the Paperwork
Reduction Act of 1995, as amended. In
accordance with that Act, agencies are
required to display a currently valid
control number. The valid control
number for this collection of
information is 3072–0071.
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BILLING CODE 6730–01–P
DEPARTMENT OF DEFENSE
48 CFR Part 207
RIN 0750–AG45
Defense Federal Acquisition
Regulation Supplement; Preservation
of Tooling for Major Defense
Acquisition Programs (DFARS Case
2008–D042)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
(a) An NVOCC invoking an exemption
pursuant to this part must maintain
original NRAs and all associated
records, including written
communications, in an organized,
readily accessible or retrievable manner
for 5 years from the completion date of
performance of the NRA by an NVOCC,
in a format easily produced to the
Commission.
(b) NRAs and all associated records
and written communications are subject
to inspection and reproduction requests
under section 515.31(g) of this chapter.
An NVOCC shall produce the requested
NRAs and associated records, including
written communications, promptly in
response to a Commission request. All
records produced must be in English or
be accompanied by a certified English
translation.
(c) Failure to keep or timely produce
original NRAs and associated records
and written communications will
disqualify an NVOCC from the
operation of the exemption provided
pursuant to this part, regardless of
whether it has been invoked by notice
as set forth above, and may result in a
Commission finding of a violation of 46
U.S.C. 41104(1), 41104(2)(A) or other
acts prohibited by the Shipping Act.
PO 00000
[FR Doc. 2011–4599 Filed 3–1–11; 8:45 am]
DoD is issuing a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to implement section 815 of
the National Defense Authorization Act
for Fiscal Year 2009. Section 815
addresses the preservation of tooling for
major defense acquisition programs.
DATES: Effective Date: March 2, 2011.
FOR FURTHER INFORMATION CONTACT: Ms.
Meredith Murphy, 703–602–1302.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Background
Section 815 of the National Defense
Authorization Act for Fiscal Year 2009
(Pub. L. 110–417) impacts the
acquisition planning process. Section
815, entitled ‘‘Preservation of Tooling
for Major Defense Acquisition
Programs,’’ mandates the publication of
guidance requiring the ‘‘preservation
and storage of unique tooling associated
with the production of hardware for a
major defense acquisition program
through the end of the service life of the
end item associated with such a
program.’’ The statute states that the
guidance must—
• Require that the milestone decision
authority (MDA) approve a plan for the
preservation and storage of ‘‘such
tooling prior to Milestone C approval;’’
• Require the MDA to periodically
review the plan to ensure that it remains
adequate and in the best interest of DoD;
and
• Provide a mechanism for the
Secretary of Defense to waive the
requirement under certain
circumstances.
DoD published a proposed rule in the
Federal Register (75 FR 25159) on May
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Federal Register / Vol. 76, No. 41 / Wednesday, March 2, 2011 / Rules and Regulations
7, 2010, to address the new statutory
requirements. The rule proposed to add
a new paragraph (S–73) to DFARS
207.106, Additional requirements for
major systems. The topic of subpart
207.1 is Acquisition Plans.
WReier-Aviles on DSKGBLS3C1PROD with RULES
II. Discussion and Analysis
The public comment period closed
July 6, 2010. Four respondents
submitted comments on six issues. A
discussion of the comments is provided
in the following paragraphs.
A. Rule May Not Fully Implement the
Statute
Comment: A respondent generally
agreed with the proposed rule, but
noted that it implemented only two of
the three requirements of section 815,
omitting the key language requiring the
‘‘milestone decision authority (to)
periodically review the plan required by
(section 815(a)(1)) prior to the end of the
service life of the end item, to ensure
that the preservation and storage of such
tooling remains adequate and in the best
interest of the Department of Defense.’’
The respondent stated that the periodic
review requirement should be included
in the proposed rule.
In addition, the respondent believes
that the proposed rule should require
the contractor to develop adequate
procedures for the preservation and
storage of the special tooling and to
document compliance.
Response: No changes have been
made to the rule in response to these
comments for several reasons. First, the
DFARS has not been used to outline
MDA determinations in the past. The
appropriate location for requirements
being placed on MDAs is in the DoD
5000 series regulations and/or directives
from senior DoD leaders. Further, the
requirement at section 815(a)(2) has
been implemented in a Deputy
Secretary of Defense memorandum
dated August 3, 2009, entitled
‘‘Preservation and Storage of Tooling for
Major Defense Acquisition Programs
(MDAPs).’’ The preservation policy,
according to the memorandum, will be
included in the next update to DoDI
5000.02.
With regard to the second part of the
respondent’s comment, DoD notes that
the clause at FAR 52.245–1,
Government Property, requires the
contractor to ‘‘have a system to manage
(control, use, preserve, protect, repair,
and maintain) Government property in
its possession.’’ (See FAR 52.245–1(b).)
B. Rule Should Cover All Property
Comment: One respondent
commented that ‘‘(i)ndustry agrees with
the concept to sustain capability and
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15:24 Mar 01, 2011
Jkt 223001
supportability to the extent needed
under major weapons systems.’’ To that
end, the respondent believes that this
requirement should not be limited to
special tooling, but should include ‘‘all
property, i.e., special test equipment,
ground support equipment, machine
tools and machines and other
intangibles to maintain capability.’’
Response: DoD is fully compliant
with section 815, which addresses only
special tooling.
With regard to tangible property, DoD
notes that major systems acquisition
contracts are required to include the
clause at FAR 52.245–1, Government
Property, which incorporates a basic
storage requirement applicable to more
than just special tooling (see FAR
52.245–1(f)(1)(viii)(A)). Further, in
accordance with section 815, the MDA
is required to ‘‘approve a plan, including
the identification of any contract
clauses, facilities, and funding required,
for the preservation and storage of such
tooling prior to Milestone C approval.’’
This requirement is fully addressed by
the Deputy Secretary of Defense
memorandum dated August 3, 2009,
which states that ‘‘MDAP Program
Managers shall include a plan for
preservation and storage of unique
tooling as an annex to the Life Cycle
Sustainment Plan (LCSP) submitted for
Milestone Decision Authority (MDA)
approval at Milestone C. The unique
tooling annex shall include the
identification of any contract clauses,
facilities, and funding required for the
preservation and storage of such tooling
and shall describe how unique tooling
retention will continue to be reviewed
during the life of the program.’’
DoD considers ‘‘intangibles,’’ as the
term relates to major systems
acquisitions, to be a reference to
technical data. A contractor’s rights in
technical data are fully addressed in
FAR and DFARS parts 27 and 227
respectively, and need not be addressed
with the section 815 coverage.
C. ‘‘Unique Tooling’’
Comment: Two respondents noted
that the statute and the August 3, 2009,
implementing memorandum use the
term ‘‘unique tooling,’’ not ‘‘special
tooling.’’ Both recommended that
DFARS 207.106(S–73) be revised to use
the term ‘‘unique tooling’’ and to add a
definition to that paragraph as follows:
‘‘For DoD purposes, unique tooling shall
mean special tooling as defined in
Federal Acquisition Regulation
2.101(b).’’
Response: DoD has determined that
the use of ‘‘special tooling’’ in
207.106(S–73) correctly implements the
statute, and no change is necessary.
PO 00000
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Respondents agree that ‘‘unique
tooling’’ and ‘‘special tooling’’ have the
same meaning. However, there is no
reason to use ‘‘unique tooling’’ in the
coverage and then define it using a
reference to FAR 2.101. That would
contravene the FAR drafting convention
to use a single term consistently to
express the same meaning.
D. Approval of Preservation Plan
Comment: One respondent correctly
noted that section 815 requires the MDA
to approve the special tooling
preservation plan prior to Milestone C
approval (section 815(a)(1)). The
respondent is concerned, however, with
the lack of specificity about when the
plan must be approved, claiming that it
‘‘risks undermining the very purpose of
the rule and its antecedent legislation.’’
The respondent recommended
modifying DFARS 207.106 to require, or
at least encourage, DoD to draft such
plans before a program is given
Milestone B approval.
Response: DoD has determined that
DFARS is already fully compliant with
the statute, and that no change is
necessary. Further, while the plan must
be approved prior to Milestone C
approval, there is no limit in the
regulations on how far in advance of
Milestone C the special tooling
preservation plan can be approved, as
long as it is approved at a point in the
system’s life that is logical.
E. End of the Service Life of the Item
Comment: One respondent noted that
section 815(a) requires that the special
tooling be preserved ‘‘through the end of
the service life of the end item
associated with such a program.’’ The
respondent believes that ‘‘end item’’
refers to a ‘‘component’’ of the major
system, not the major system itself. As
noted by the respondent, it is possible
that one component of a system may be
replaced over the course of the
production of the system as a whole,
and it would be wasteful to maintain the
special tooling for the now-obsolete
component until production ends for
the major system.
Response: DoD agrees with the
respondent that it is possible, even
likely, that one or more individual
components of a major system will be
replaced over the life of the major
system. However, DoD points out that
DoD policies are focused at the system
level, and the requirement in section
815 is for a plan for the preservation and
storage of the tooling associated with
the production of hardware for a major
defense acquisition program. DoD
thinks that any complete plan would
include the possibility of replacement
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Federal Register / Vol. 76, No. 41 / Wednesday, March 2, 2011 / Rules and Regulations
upgraded components and would not
contemplate maintaining and storing
any special tooling for components that
are no longer a part of the major system
end item.
F. Repricing Ongoing Programs
Comment: A respondent stated its
belief that ‘‘the final rule must allow
contractors to reprice ongoing programs
should the plans for preserving tooling
for major defense acquisition programs
add additional requirements on to
existing programs.’’
Response: The comment is outside the
scope of this case. Further, whenever
new or additional requirements are
added to a contract, it can only be
accomplished via a bilateral
modification and with equitable
consideration. This contract rule is not
unique to MDAPs or toolingpreservation requirements. Therefore,
this case need not address such a
circumstance specifically with regard to
the preservation of tooling. To do so
would add inappropriate redundancy to
the DFARS.
III. Executive Order 12866
This is not a significant regulatory
action and, therefore, was not subject to
review by the Office of Management and
Budget under Executive Order 12866,
dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
WReier-Aviles on DSKGBLS3C1PROD with RULES
IV. 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
procedural matters. Specifically, this
implementation of section 815 of the
National Defense Authorization Act for
Fiscal Year 2009, ‘‘Preservation of
Tooling for Major Defense Acquisition
Programs,’’ requires that—
1. The DoD Milestone Decision
Authority (MDA) approve a plan for the
preservation and storage of unique
tooling associated with the production
of hardware for a major defense
acquisition program through the end of
the service life of the end item; and
2. The MDA periodically review the
plan to ensure that it remains adequate
and in the best interest of DoD.
V. Paperwork Reduction Act
15:24 Mar 01, 2011
Jkt 223001
Government procurement.
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR part 207 is
amended as follows:
PART 207—ACQUISITION PLANNING
1. The authority citation for 48 CFR
part 207 continues to read as follows:
■
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
2. Add paragraph (S–73) to section
207.106 to read as follows:
■
207.106 Additional requirements for major
systems.
*
*
*
*
*
(S–73) In accordance with section 815
of the National Defense Authorization
Act for Fiscal Year 2009 (Pub. L. 110–
417) and DoD policy requirements,
acquisition plans for major weapons
systems shall include a plan for the
preservation and storage of special
tooling associated with the production
of hardware for major defense
acquisition programs through the end of
the service life of the related weapons
system. The plan shall include the
identification of any contract clauses,
facilities, and funding required for the
preservation and storage of such tooling.
The Undersecretary of Defense for
Acquisition, Technology, and Logistics
(USD (AT&L)) may waive this
requirement if USD (AT&L) determines
that it is in the best interest of DoD.
[FR Doc. 2011–4529 Filed 3–1–11; 8:45 am]
BILLING CODE 5001–08–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 209, 227, 252
Defense Federal Acquisition
Regulation Supplement; Government
Support Contractor Access to
Technical Data (DFARS Case 2009–
D031)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Interim rule.
AGENCY:
DoD is issuing an interim rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to implement section 821 of
the National Defense Authorization Act
for Fiscal Year 2010. Section 821
SUMMARY:
The rule does not impose 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).
VerDate Mar<15>2010
List of Subjects in 48 CFR Part 207
PO 00000
Frm 00045
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11363
provides authority for certain types of
Government support contractors to have
access to proprietary technical data
belonging to prime contractors and
other third parties, provided that the
technical data owner may require the
support contractor to execute a nondisclosure agreement having certain
restrictions and remedies.
Additionally, this interim rule
amends the DFARS to provide needed
editorial changes.
DATES: Effective date: March 2, 2011.
Comment date: Comments on the
interim rule should be submitted to the
address shown below on or before May
2, 2011, to be considered in the
formation of the final rule.
ADDRESSES: You may submit comments,
identified by DFARS Case 2009–D031,
using any of the following methods:
Æ Regulations.gov: https://
www.regulations.gov.
Submit comments via the Federal
eRulemaking portal by inputting
‘‘DFARS Case 2009–D031’’ under the
heading ‘‘Enter keyword or ID’’ and
selecting ‘‘Search.’’ Select the link
‘‘Submit a Comment’’ that corresponds
with ‘‘DFARS Case 2009–D031.’’ Follow
the instructions provided at the ‘‘Submit
a Comment’’ screen. Please include your
name, company name (if any), and
‘‘DFARS Case 2009–D031’’ on your
attached document.
Æ E-mail: dfars@osd.mil. Include
DFARS Case 2009–D031 in the subject
line of the message.
Æ Fax: 703–602–0350.
Æ Mail: Defense Acquisition
Regulations System, Attn: Ms. Amy G.
Williams, OUSD (AT&L) DPAP/DARS,
Room 3B855, 3060 Defense Pentagon,
Washington, DC 20301–3060.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal information provided. To
confirm receipt of your comment(s),
please check https://www.regulations.gov
approximately two to three days after
submission to verify posting (except
allow 30 days for posting of comments
submitted by mail).
FOR FURTHER INFORMATION CONTACT: Ms.
Amy Williams, 703–602–0328.
SUPPLEMENTARY INFORMATION:
I. Background
Section 821 of the National Defense
Authorization Act for Fiscal Year 2010
(Pub. L. 111–84) was enacted October
28, 2009. Section 821 provides authority
for certain types of Government support
contractors to have access to proprietary
technical data belonging to prime
contractors and other third parties,
provided that the technical data owner
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]]>Agencies
[Federal Register Volume 76, Number 41 (Wednesday, March 2, 2011)]
[Rules and Regulations]
[Pages 11361-11363]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-4529]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Part 207
RIN 0750-AG45
Defense Federal Acquisition Regulation Supplement; Preservation
of Tooling for Major Defense Acquisition Programs (DFARS Case 2008-
D042)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD is issuing a final rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to implement section 815 of
the National Defense Authorization Act for Fiscal Year 2009. Section
815 addresses the preservation of tooling for major defense acquisition
programs.
DATES: Effective Date: March 2, 2011.
FOR FURTHER INFORMATION CONTACT: Ms. Meredith Murphy, 703-602-1302.
SUPPLEMENTARY INFORMATION:
I. Background
Section 815 of the National Defense Authorization Act for Fiscal
Year 2009 (Pub. L. 110-417) impacts the acquisition planning process.
Section 815, entitled ``Preservation of Tooling for Major Defense
Acquisition Programs,'' mandates the publication of guidance requiring
the ``preservation and storage of unique tooling associated with the
production of hardware for a major defense acquisition program through
the end of the service life of the end item associated with such a
program.'' The statute states that the guidance must--
Require that the milestone decision authority (MDA)
approve a plan for the preservation and storage of ``such tooling prior
to Milestone C approval;''
Require the MDA to periodically review the plan to ensure
that it remains adequate and in the best interest of DoD; and
Provide a mechanism for the Secretary of Defense to waive
the requirement under certain circumstances.
DoD published a proposed rule in the Federal Register (75 FR 25159)
on May
[[Page 11362]]
7, 2010, to address the new statutory requirements. The rule proposed
to add a new paragraph (S-73) to DFARS 207.106, Additional requirements
for major systems. The topic of subpart 207.1 is Acquisition Plans.
II. Discussion and Analysis
The public comment period closed July 6, 2010. Four respondents
submitted comments on six issues. A discussion of the comments is
provided in the following paragraphs.
A. Rule May Not Fully Implement the Statute
Comment: A respondent generally agreed with the proposed rule, but
noted that it implemented only two of the three requirements of section
815, omitting the key language requiring the ``milestone decision
authority (to) periodically review the plan required by (section
815(a)(1)) prior to the end of the service life of the end item, to
ensure that the preservation and storage of such tooling remains
adequate and in the best interest of the Department of Defense.'' The
respondent stated that the periodic review requirement should be
included in the proposed rule.
In addition, the respondent believes that the proposed rule should
require the contractor to develop adequate procedures for the
preservation and storage of the special tooling and to document
compliance.
Response: No changes have been made to the rule in response to
these comments for several reasons. First, the DFARS has not been used
to outline MDA determinations in the past. The appropriate location for
requirements being placed on MDAs is in the DoD 5000 series regulations
and/or directives from senior DoD leaders. Further, the requirement at
section 815(a)(2) has been implemented in a Deputy Secretary of Defense
memorandum dated August 3, 2009, entitled ``Preservation and Storage of
Tooling for Major Defense Acquisition Programs (MDAPs).'' The
preservation policy, according to the memorandum, will be included in
the next update to DoDI 5000.02.
With regard to the second part of the respondent's comment, DoD
notes that the clause at FAR 52.245-1, Government Property, requires
the contractor to ``have a system to manage (control, use, preserve,
protect, repair, and maintain) Government property in its possession.''
(See FAR 52.245-1(b).)
B. Rule Should Cover All Property
Comment: One respondent commented that ``(i)ndustry agrees with the
concept to sustain capability and supportability to the extent needed
under major weapons systems.'' To that end, the respondent believes
that this requirement should not be limited to special tooling, but
should include ``all property, i.e., special test equipment, ground
support equipment, machine tools and machines and other intangibles to
maintain capability.''
Response: DoD is fully compliant with section 815, which addresses
only special tooling.
With regard to tangible property, DoD notes that major systems
acquisition contracts are required to include the clause at FAR 52.245-
1, Government Property, which incorporates a basic storage requirement
applicable to more than just special tooling (see FAR 52.245-
1(f)(1)(viii)(A)). Further, in accordance with section 815, the MDA is
required to ``approve a plan, including the identification of any
contract clauses, facilities, and funding required, for the
preservation and storage of such tooling prior to Milestone C
approval.'' This requirement is fully addressed by the Deputy Secretary
of Defense memorandum dated August 3, 2009, which states that ``MDAP
Program Managers shall include a plan for preservation and storage of
unique tooling as an annex to the Life Cycle Sustainment Plan (LCSP)
submitted for Milestone Decision Authority (MDA) approval at Milestone
C. The unique tooling annex shall include the identification of any
contract clauses, facilities, and funding required for the preservation
and storage of such tooling and shall describe how unique tooling
retention will continue to be reviewed during the life of the
program.''
DoD considers ``intangibles,'' as the term relates to major systems
acquisitions, to be a reference to technical data. A contractor's
rights in technical data are fully addressed in FAR and DFARS parts 27
and 227 respectively, and need not be addressed with the section 815
coverage.
C. ``Unique Tooling''
Comment: Two respondents noted that the statute and the August 3,
2009, implementing memorandum use the term ``unique tooling,'' not
``special tooling.'' Both recommended that DFARS 207.106(S-73) be
revised to use the term ``unique tooling'' and to add a definition to
that paragraph as follows: ``For DoD purposes, unique tooling shall
mean special tooling as defined in Federal Acquisition Regulation
2.101(b).''
Response: DoD has determined that the use of ``special tooling'' in
207.106(S-73) correctly implements the statute, and no change is
necessary.
Respondents agree that ``unique tooling'' and ``special tooling''
have the same meaning. However, there is no reason to use ``unique
tooling'' in the coverage and then define it using a reference to FAR
2.101. That would contravene the FAR drafting convention to use a
single term consistently to express the same meaning.
D. Approval of Preservation Plan
Comment: One respondent correctly noted that section 815 requires
the MDA to approve the special tooling preservation plan prior to
Milestone C approval (section 815(a)(1)). The respondent is concerned,
however, with the lack of specificity about when the plan must be
approved, claiming that it ``risks undermining the very purpose of the
rule and its antecedent legislation.'' The respondent recommended
modifying DFARS 207.106 to require, or at least encourage, DoD to draft
such plans before a program is given Milestone B approval.
Response: DoD has determined that DFARS is already fully compliant
with the statute, and that no change is necessary. Further, while the
plan must be approved prior to Milestone C approval, there is no limit
in the regulations on how far in advance of Milestone C the special
tooling preservation plan can be approved, as long as it is approved at
a point in the system's life that is logical.
E. End of the Service Life of the Item
Comment: One respondent noted that section 815(a) requires that the
special tooling be preserved ``through the end of the service life of
the end item associated with such a program.'' The respondent believes
that ``end item'' refers to a ``component'' of the major system, not
the major system itself. As noted by the respondent, it is possible
that one component of a system may be replaced over the course of the
production of the system as a whole, and it would be wasteful to
maintain the special tooling for the now-obsolete component until
production ends for the major system.
Response: DoD agrees with the respondent that it is possible, even
likely, that one or more individual components of a major system will
be replaced over the life of the major system. However, DoD points out
that DoD policies are focused at the system level, and the requirement
in section 815 is for a plan for the preservation and storage of the
tooling associated with the production of hardware for a major defense
acquisition program. DoD thinks that any complete plan would include
the possibility of replacement
[[Page 11363]]
upgraded components and would not contemplate maintaining and storing
any special tooling for components that are no longer a part of the
major system end item.
F. Repricing Ongoing Programs
Comment: A respondent stated its belief that ``the final rule must
allow contractors to reprice ongoing programs should the plans for
preserving tooling for major defense acquisition programs add
additional requirements on to existing programs.''
Response: The comment is outside the scope of this case. Further,
whenever new or additional requirements are added to a contract, it can
only be accomplished via a bilateral modification and with equitable
consideration. This contract rule is not unique to MDAPs or tooling-
preservation requirements. Therefore, this case need not address such a
circumstance specifically with regard to the preservation of tooling.
To do so would add inappropriate redundancy to the DFARS.
III. Executive Order 12866
This is not a significant regulatory action and, therefore, was not
subject to review by the Office of Management and Budget under
Executive Order 12866, dated September 30, 1993. This rule is not a
major rule under 5 U.S.C. 804.
IV. 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 procedural matters.
Specifically, this implementation of section 815 of the National
Defense Authorization Act for Fiscal Year 2009, ``Preservation of
Tooling for Major Defense Acquisition Programs,'' requires that--
1. The DoD Milestone Decision Authority (MDA) approve a plan for
the preservation and storage of unique tooling associated with the
production of hardware for a major defense acquisition program through
the end of the service life of the end item; and
2. The MDA periodically review the plan to ensure that it remains
adequate and in the best interest of DoD.
V. Paperwork Reduction Act
The rule does not impose 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 Part 207
Government procurement.
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.
Therefore, 48 CFR part 207 is amended as follows:
PART 207--ACQUISITION PLANNING
0
1. The authority citation for 48 CFR part 207 continues to read as
follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
0
2. Add paragraph (S-73) to section 207.106 to read as follows:
207.106 Additional requirements for major systems.
* * * * *
(S-73) In accordance with section 815 of the National Defense
Authorization Act for Fiscal Year 2009 (Pub. L. 110-417) and DoD policy
requirements, acquisition plans for major weapons systems shall include
a plan for the preservation and storage of special tooling associated
with the production of hardware for major defense acquisition programs
through the end of the service life of the related weapons system. The
plan shall include the identification of any contract clauses,
facilities, and funding required for the preservation and storage of
such tooling. The Undersecretary of Defense for Acquisition,
Technology, and Logistics (USD (AT&L)) may waive this requirement if
USD (AT&L) determines that it is in the best interest of DoD.
[FR Doc. 2011-4529 Filed 3-1-11; 8:45 am]
BILLING CODE 5001-08-P
