Federal Register / Vol. 76, No. 41 / Wednesday, March 2, 2011 / Rules and Regulations 11361 

(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. 

§ 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); 

(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). 

§ 532.6 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. 

(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. 

§ 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. 

By the Commission. 

Karen V. Gregory, 

Secretary. 

[FR Doc. 2011–4599 Filed 3–1–11; 8:45 am] 

BILLING CODE 6730–01–P 

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 

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11362 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. 

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 

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Federal Register / Vol. 76, No. 41 / Wednesday, March 2, 2011 / Rules and Regulations 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 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. 

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 

■ 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) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Interim rule. 

SUMMARY: 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 

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: http:// 

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 http:// 

www.regulations.gov, including any 

personal information provided. To 

confirm receipt of your comment(s), 

please check http://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 

WReier-Aviles on DSKGBLS3C1PROD with RULES