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Published Document: 2022-26689 (87 FR 76988)
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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 sections of the National Defense Authorization Act for Fiscal Year 2021 and sections of the National Defense Authorization Act for Fiscal Year 2022 related to the transfer and reorganization of the defense acquisition statutes.
DATES:
Effective December 30, 2022.
FOR FURTHER INFORMATION CONTACT:
Ms. Kimberly Ziegler, telephone 703-901-3176.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is amending the DFARS to implement Title XVIII of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2021 (Pub. L. 116-283), Transfer and Reorganization of Defense Acquisition Statutes, which revised numerous statutory references used throughout the DFARS. The rule also implements Title XVII of the NDAA for FY 2022 (Pub. L. 117-81), Technical Amendments Related to the Transfer and Reorganization of Defense Acquisition Statutes, which provided technical, conforming, and clerical amendments related to Title XVIII of the NDAA for FY 2021. The rule also provides the new location of notes that were moved by the Office of the Law Revision Counsel of the United States House of Representatives as a result of the reorganization.
The rule makes several minor corrections to the DFARS apart from the changes related to the reorganization. These corrections include updates to organizational office names, statutory titles, the addition of codification citations for authorization acts, and the removal of citations for statutes that have been repealed.
( printed page 76989)
II. Publication of This Final Rule for Public Comment Is Not Required by Statute
The statute that applies to the publication of the Federal Acquisition Regulation (FAR) is 41 U.S.C. 1707. Subsection (a)(1) of the statute requires that a procurement policy, regulation, procedure, or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because DoD is not issuing new regulation; rather, this rule only updates statutory references in the existing regulations and has no significant cost or administrative impact on contractors or offerors.
III. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Services and Commercial Products, Including Commercially Available Off-the-Shelf Items
This rule does not create any new solicitation provisions or contract clauses. It does not change the applicability of any existing provisions or clauses included in solicitations or contracts valued at or below the simplified acquisition threshold or for commercial services or commercial products, including commercially available off-the-shelf items.
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 not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.
V. Congressional Review Act
As required by the Congressional Review Act (5 U.S.C. 801-808) before an interim or final rule takes effect, DoD will submit a copy of the final rule with the form, Submission of Federal Rules under the Congressional Review Act, to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. A major rule under the Congressional Review Act cannot take effect until 60 days after it is published in the
Federal Register
. The Office of Information and Regulatory Affairs has determined that this rule is not a major rule as defined by 5 U.S.C. 804.
VI. Regulatory Flexibility Act
The Regulatory Flexibility Act does not apply to this rule, because this final rule does not constitute a significant DFARS revision within the meaning of FAR 1.501-1, and 41 U.S.C. 1707 does not require publication for public comment.
VII. Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) does apply; however, the changes to these DFARS clauses do not impose additional information collection requirements to the paperwork burden previously approved under the following OMB Control Numbers:
0704-0187, Information Collection in Support of the DoD Acquisition Process (Various Miscellaneous Requirements).
0704-0332, Defense Federal Acquisition Regulation Supplement (DFARS) Appendix I.
0704-0369, DFARS Subpart 227.71, Rights in Technical Data, and Subpart 227.72, Rights in Computer Software and Computer Software Documentation, and related provisions and clauses.
0704-0397, Defense Federal Acquisition Regulation Supplement (DFARS) Part 243, Contract Modifications and Related Clause at DFARS 252.243-7002.
0704-0533, Defense Federal Acquisition Regulation Supplement (DFARS) Part 249, Termination of Contracts, and a Related Clause at DFARS 252.249-7002, Notification of Anticipated Contract Termination or Reduction.
0704-0574, Defense Federal Acquisition Regulation Supplement (DFARS) Part 215: Only One Offer and Related Clauses at 252.215.
5. Amend section 203.900 in the introductory text and paragraph (a)(i) and paragraph (a)(ii) introductory text by removing “ 10 U.S.C. 2409” and adding “10 U.S.C. 4701” in its place.
b. In paragraph (a)(2) by removing “ 10 U.S.C. 2371b” and “section (a)(2),” and adding “10 U.S.C. 4022” and “section (a)(2)” in their places, respectively.
15. Amend section 207.103 in paragraph (h) introductory text by removing “ 10 U.S.C. 2304(c)(3)” and “Section” and adding “10 U.S.C. 3204(a)(3)” and “section” in their places, respectively.
c. In paragraph (S-70)(1) introductory text by removing “section 802(a) of the National Defense Authorization Act for Fiscal Year 2007 ( Pub. L. 109-364)” and adding “10 U.S.C. 3774(a)” in its place;
(C) In accordance with 10 U.S.C. 4874(b)(1)(A), the Secretary of Defense may waive the prohibition in paragraph (g)(ii)(A) of this section upon determining that the waiver is essential to the national security interests of the United States. The Secretary has delegated authority to grant this waiver
( printed page 76991)
to the Under Secretary of Defense for Intelligence. Waiver requests, prepared by the requiring activity in coordination with the contracting officer, shall be processed through the Principal Director, Defense Pricing and Contracting, Office of the Under Secretary of Defense (Acquisition and Sustainment), and shall include a proposed national interest determination. The proposed national interest determination, prepared by the requiring activity in coordination with the contracting officer, shall include—
a. In paragraphs (a)(1) introductory text and (a)(2) introductory text by removing “ 10 U.S.C. 2305 note” and adding “10 U.S.C. 3241 note prec.” in their places;
a. In paragraph (c)(1)(ii)(D)( 1)(
i) by removing “section 816 of the National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115-232)” and adding “10 U.S.C. 3403(d)(3)” in its place; and
b. In paragraph (c)(1)(ii)(D)( 3)(
i) by removing “section 816 of the National Defense Authorization Act for Fiscal Year 2020 (Pub. L. 116-92)” and adding “10 U.S.C. 3403(d)(3)” in its place.
(4) Agencies must establish reporting procedures to meet the congressional notification requirements of paragraph (d)(1) of this section. The head of the agency must submit a copy of each notice to the Principal Director, Defense Pricing and Contracting (DPC), Office of the Under Secretary of Defense (Acquisition and Sustainment) (OUSD(A&S)), and to the Deputy Under Secretary of Defense (Comptroller) (Program/Budget) (OUSD(C)(P/B)).
t. In paragraph (h)(6) by removing “Acquisition, Technology, and Logistics ( 10 U.S.C. 2306b(i)(7))” and adding “Acquisition and Sustainment (10 U.S.C. 3501(i)(7))” in its place;
57. Amend section 219.703 in paragraph (a) by removing “ 10 U.S.C. 2410d and section 9077 of Pub. L.” and adding “10 U.S.C. 3903 and section 9077 of Public Law” in its place.
60. Amend section 223.802 by removing “Section” and “ 10 U.S.C. 2301 (repealed) note” and adding “section” and “10 U.S.C. 3201 note prec.” in their places, respectively.
61. Amend section 225.103 in paragraphs (a)(ii)(A) introductory text and (a)(ii)(B) introductory text by removing “ 10 U.S.C. 2533” and adding “10 U.S.C. 4861” in their places.
a. In paragraph (a) by removing “(section 817 of the National Defense Authorization Act for Fiscal Year 2017 ( Pub. L. 114-328))” and adding “(37 U.S.C. 418(b)(4))” in its place; and
73. Amend section 225.7007-1 in paragraph (b) by removing “ 10 U.S.C. 2534” wherever it appears and “subsection” and adding “10 U.S.C. 4864” and “section” in their places, respectively.
101. Amend section 232.903 by removing “section 852 of the National Defense Authorization Act for Fiscal Year 2019 ( Pub. L. 115-232)” and adding “10 U.S.C. 3801(b)” in its place.
106. Amend section 233.204-70 by removing “ 10 U.S.C. 2410(b)” and “relied under Pub. L.” and adding “10 U.S.C. 3862” and “relief under Public Law” in their places, respectively.
123. Amend section 239.7301 in the definitions of “Covered item of supply”, “Covered system” introductory text, and “Supply chain risk” by removing “ 10 U.S.C. 2339a” and adding “10 U.S.C. 3252” in their places.
130. Amend section 242.7000 in paragraph (a), in the definition of “Covered contract”, by removing “ 10 U.S.C. 2302 note” and adding “10 U.S.C. 3841 note prec.” in its place.
133. Amend section 243.204-71 in paragraph (c) by removing “ 10 U.S.C. 2410(a)” wherever it appears and “Subpart” and adding “10 U.S.C. 3862(a)” and “subpart” in their places, respectively.
136. Amend section 250.102-1 in paragraph (d) by removing “Acquisition, Technology, and Logistics (USD (AT&L))”, “ 10 U.S.C. 133”, and “(AT&L)” and adding “Acquisition and Sustainment (USD (A&S))”, “10 U.S.C. 133(b)”, and “(A&S)” in their places, respectively.
137. Amend section 250.104-3-70 in the introductory text and paragraphs (a) and (b) by removing “ 10 U.S.C. 2354” and adding “10 U.S.C. 3861” in their places.
PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES
138. Amend section 252.203-7001—
a. By revising the section heading and the clause date;
b. In paragraphs (d) introductory text and (e) introductory text by removing “ 10 U.S.C. 2408” and adding “10 U.S.C. 4656” in their places; and
a. By removing the clause date “(JAN 2008)” and adding “(DEC 2022)” in its place; and
b. In paragraph (f) by removing “ 10 U.S.C. 2410p, as added by section 807 of the National Defense Authorization Act for Fiscal Year 2007 (Pub. L. 109-364)” and adding “10 U.S.C. 4292” in its place.
a. By removing the clause date “(JUL 2009)” and adding “(DEC 2022)” in its place; and
b. In paragraph (e) by removing “ 10 U.S.C. 2410p, as added by section 807 of the National Defense Authorization Act for Fiscal Year 2007 (Pub. L. 109-364), and section 802 of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181)” and adding “10 U.S.C. 4292” in its place.
a. By removing the clause date “(MAR 2022)” and adding “(DEC 2022)” in its place; and
b. In the paragraph (a), in definition of “Nontraditional defense contractor”, by removing “ 10 U.S.C. 2302(9)” and adding “10 U.S.C. 3014” in its place.
148. Amend section 252.216-7009—
a. By revising the section heading, the clause date, and the clause introductory text;
b. By redesignating paragraphs (1) and (2) as paragraphs (a) and (b);
c. In the newly redesignated paragraphs (a) and (b) by removing “ 10 U.S.C. 2409” wherever it appears and adding “10 U.S.C. 4701” in their places.
a. By revising the section heading and clause date;
b. In the paragraph (a), in the definition of “Supply chain risk”, and paragraphs (c) and (d) by removing “ 10 U.S.C. 2339a” and adding “10 U.S.C. 3252” in their places.