18030 Federal Register / Vol. 75, No. 67 / Thursday, April 8, 2010 / Rules and Regulations 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 204, 235, and 252 

RIN 0750–AF13 

Defense Federal Acquisition 

Regulation Supplement; ExportControlled Items (DFARS Case 2004– 

D010) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is adopting as final, with 

changes, an interim rule amending the 

Defense Federal Acquisition Regulation 

Supplement (DFARS) to address 

requirements for complying with export 

control laws and regulations when 

performing DoD contracts. The rule 

recognizes contractor responsibilities to 

comply with existing Department of 

Commerce and Department of State 

regulations and prescribes a contract 

clause to address those responsibilities. 

DATES: Effective Date: April 8, 2010. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Amy Williams, Defense Acquisition 

Regulations System, OUSD (AT&L) 

DPAP (DARS), 3060 Defense Pentagon, 

Room 3B855, Washington, DC 20301– 

3060. Telephone 703–602–0328; 

facsimile 703–602–0350. Please cite 

DFARS Case 2004–D010. 

SUPPLEMENTARY INFORMATION: 

A. Background 

DoD published an interim rule at 73 

FR 42274 on July 21, 2008, to address 

requirements for DoD contractors to 

comply with export control laws and 

regulations, particularly the 

International Traffic in Arms 

Regulations (ITAR) (22 CFR parts 120– 

130) issued by the Department of State, 

and the Export Administration 

Regulations (EAR) (15 CFR parts 730– 

774) issued by the Department of 

Commerce. The rule implemented 

section 890(a) of the National Defense 

Authorization Act for Fiscal Year 2008 

(Pub. L. 110–181) and also adopted 

recommendations resulting from 

proposed rules published at 70 FR 

39976 on July 12, 2005, and 71 FR 

46434 on August 14, 2006. This final 

rule does not address any export control 

regulations that may be imposed by the 

Department of Energy, the Nuclear 

Regulatory Commission, or the 

Department of the Treasury. 

DoD received comments from 12 

persons or organizations in response to 

the interim rule published on July 21, 

2008. The following is a discussion of 

the comments and the changes included 

in this final rule as a result of those 

comments: 

1. Need to Simplify 

a. Single-Clause Construct 

Comment: One respondent indicated 

that the interim rule used an 

unnecessarily complicated way to 

remind contractors of their 

responsibilities under existing export 

law. The respondent stated that the new 

clauses impose additional 

administrative requirements and 

recommended use of just one clause 

indicating that export-controlled items 

may be involved in the performance of 

the contract. This would eliminate the 

requirement for the contractor to notify 

the contracting officer under 252.204– 

7009(c). 

DoD Response: The purpose of this 

rule is to ensure that contractors are 

aware of their responsibilities to comply 

with export control laws and 

regulations. As stated in DFARS 

204.7303, it is in the interest of both the 

Government and the contractor to be 

aware of export controls as they apply 

to contract performance. The interim 

rule was designed to serve this common 

interest, to prompt appropriate research 

by Government requiring activities and 

communication between the parties to a 

potential contract, and to have the 

resulting contract include one of two 

clauses, so that each contract would 

reflect the parties’ expectation that the 

contractor either would or would not 

need access to, or would or would not 

generate, export-controlled items in 

performance of the contract. 

The final rule requires the use of a 

single clause in every solicitation and 

contract, and that clause is silent with 

regard to the parties’ expectations. By 

not stating specifically whether or not 

the parties expect performance of the 

contract to involve export-controlled 

items, the clause clearly makes the point 

that the contractor is responsible for 

understanding and complying with all 

applicable laws and regulations 

regarding export-controlled items. That 

responsibility exists independent of, 

and is not established or limited by, any 

information provided in the DFARS 

clause. 

The advantages of changing to a 

single-clause construct include— 

(1) Raising awareness, by inclusion of 

the appropriate words in every DoD 

solicitation and contract, that 

contractors have a responsibility to 

comply with all applicable laws and 

regulations regarding export-controlled 

items; 

(2) Eliminating any possible 

ambiguities that might complicate 

enforcement of export control laws and 

regulations by the Commerce, State, and 

Justice Departments, since there will be 

no statements in DoD contract clauses 

that indicate a DoD assessment 

regarding the applicability of export 

controls to performance of the contract; 

(3) A much simpler DFARS 

requirement; and 

(4) Elimination of the engagement or 

associated work that would have been 

required to implement the two-clause 

construct. 

The possible disadvantages of 

changing to a single-clause construct 

include— 

(1) Questionable effectiveness of the 

single clause in raising offeror and 

contractor awareness of export controls 

as they apply to the performance of any 

particular contract, since it will be a 

standard clause automatically included 

in all contracts; and 

(2) Elimination of the requirement 

that requiring activities and contracting 

officers be aware, in each case, of the 

parties’ expectations with regard to 

performance of a contract involving 

export-controlled items. 

After serious consideration of the pros 

and cons, and after extensive internal 

U.S. Government consultation, DoD has 

determined that a single clause best 

serves the interests of the Government 

and industry. 

b. Contractor Obligation 

Comment: Several respondents stated 

that the clauses at 252.225–7008 and 

252.225–7009 imposed a burden on the 

contractor to assess whether contracted 

research will generate export-controlled 

items. The respondent suggested an 

approach for DoD to guide its 

contractors toward compliant exporting 

under DoD contracts. 

DoD Response: The suggested 

approach was based on the premise that 

it is the responsibility of DoD to guide 

its contractor as the contractor 

determines whether the results of 

research under its contracts are exportcontrolled. DoD disagrees with this 

premise. Export control laws and 

regulations already exist, and 

contractors are obliged to comply with 

them whether or not a DoD contract 

points out this fact to the contractor. 

The clause serves to remind offerors and 

contractors of their existing obligations. 


jlentini on DSKJ8SOYB1PROD with RULES2
Federal Register / Vol. 75, No. 67 / Thursday, April 8, 2010 / Rules and Regulations 18031 

2. Definition of ‘‘Export-Controlled 

Items’’ 

a. Broadness of Definition 

Comment: One respondent stated that, 

since ‘‘export-controlled items’’ are 

defined as items subject to the EAR or 

the ITAR, and since EAR controls are 

very broad, very few contracts should 

include the clause at 252.204–7009, 

because virtually all contracts would 

involve an ‘‘export-controlled item’’ 

subject to the EAR. The example given 

was that commercial encryption found 

in most software applications is 

controlled by the EAR. This would 

mean that if a contractor needs to use 

certain commercial software 

applications in performance of the 

contract, the clause at 252.204–7008 

would be appropriate, because the 

contractor would need access to ‘‘exportcontrolled items.’’ If the definition is 

intended to be this broad, there seems 

to be little purpose in having the twoclause construct. 

DoD Response: DoD consulted with 

the Department of Commerce, which 

concluded that the EAR portion of the 

definition of ‘‘export-controlled items’’ is 

accurate and should remain broad to 

ensure that contractors are aware of all 

potential responsibilities under the 

EAR. For the reasons stated in the 

response to Comment 1a above, the twoclause construct has been eliminated. 

b. Release to U.S. Persons in the United 

States 

Comment: Several respondents were 

concerned that, as defined in the 

interim rule, ‘‘export-controlled items’’ 

excludes EAR-controlled commodities 

released to foreign persons in the United 

States, but does not exclude (and thus 

has the effect of including) EARcontrolled commodities released to U.S. 

persons in the United States. 

Several respondents believed the 

intent of the rule to be that the clause 

at 252.204–7008 is not required when 

the contract will require access to 

Commerce Control List (CCL) 

commodities solely within the United 

States. However, as written, the 

unintended consequence is a 

requirement that the clause be included 

when U.S. persons need access to CCL 

commodities in the United States. The 

respondents suggested deleting the 

phrase ‘‘to foreign nationals’’ from the 

second sentence in 252.204–7008(a)(2) 

and 252.204–7009(a)(2) to achieve the 

intended result. 

Another respondent pointed out that 

the interim rule required the clause at 

252.204–7008 in contracts involving 

commodities that are subject to the EAR 

and that are used solely in the United 

States, which would not create an 

export issue under the EAR. 

DoD Response: As a result of the 

decision to adopt a single, mandatory 

clause, the text related to the release of 

technology or software source code 

subject to the EAR to foreign nationals 

in the United States (or ‘‘deemed 

exports’’) has been removed from the 

rule. Since the single clause is silent 

with regard to whether the contract is or 

is not expected to involve exportcontrolled items, there is no need to 

include language on deemed exports. 

Contractors will have a responsibility to 

consult the EAR for all activities that 

may require authorization from the 

Department of Commerce, including the 

release of technology and source code 

subject to the EAR to foreign nationals. 

c. Differentiation Between Equipment 

and Technical Information 

Comment: One respondent 

recommended that DoD change the 

definition of ‘‘export-controlled items’’ 

so that it does not create confusion and 

allow the possibility of incorrect 

application of the clauses by including 

both controlled equipment and other 

tangible items, and controlled technical 

information, in the definition. The 

respondent’s rationale was that export 

control regulations apply differently to 

these two categories. While export 

controls apply to the export abroad of 

both, export controls do not apply to the 

mere use or transfer of equipment or 

tangible items in the United States 

without providing defense services or 

related technical data. 

DoD Response: The definition of 

‘‘export-controlled items’’ has a scope 

that fits the scope of the DFARS rule. 

The rule applies to export-controlled 

items, including information and 

technology. This broadening of the 

rule’s applicability beyond ‘‘exportcontrolled information and technology’’ 

was logical and also required by section 

890(a) of Public Law 110–181. The 

applicable export controls may indeed 

operate differently for each of the two 

categories. However, this fact exists 

independent of the DFARS rule, and has 

no bearing on the DFARS definition of 

export-controlled items. 

3. Relationship of the DFARS Rule to 

the EAR and the ITAR 

a. DoD Should Identify ExportControlled Items 

Comment: One respondent 

recommended that the rule (1) require 

the contracting agency to identify, by 

specific provision in the applicable 

export control regulation, those exportcontrolled items to which contractors or 

subcontractors will have access, and (2) 

require the contracting officer to notify 

the contractor of those items prior to 

release. The comment appeared to be 

limited to a subset of export-controlled 

items, specifically those that would be 

furnished or released by the 

Government to the contractor. 

DoD Response: The interim rule did 

not include a requirement for 

identifying in the contract clause any 

specific export-controlled items to be 

involved in contract performance. As 

stated in the preamble to the interim 

rule published on July 21, 2008, such a 

requirement was determined to be 

unacceptable to the agencies of the 

Federal Government (i.e., Departments 

of State, Commerce, and Justice) 

responsible for enforcing export control 

laws and regulations (i.e., the ITAR and 

the EAR). From their point of view, it 

is important that any contract clause be 

free of information that could possibly 

create ambiguity about the contractor’s 

responsibility to comply with all 

applicable laws and regulations 

regarding export-controlled items, 

which exists independent of, and is not 

established or limited by, the 

information provided in the DFARS rule 

or the prescribed contract clauses. The 

final rule prescribes a single clause that 

has no such content. Additionally, 

authorization to release and for 

releasing export-controlled items is 

covered by export control laws and 

regulations and is, therefore, 

independent of, and beyond the scope 

of, this DFARS rule. 

b. DoD Should Determine if Research Is 

Export Controlled 

Comment: One respondent stated that 

it is DoD’s responsibility to determine 

whether the results of research under its 

contracts are export-controlled and that, 

since DoD has a leading technical input 

to any commodity jurisdiction action, 

DoD should be comfortable with 

advising contractors as to whether DoD 

considers the results of research 

conducted under its contracts to be 

export-controlled, or with providing 

‘‘DoD export direction.’’ 

Another respondent stated that 

increased security benefits will be 

reaped if DoD diligently identifies those 

portions of fundamental research 

projects that it believes may be exportcontrolled. Several other respondents 

stated that the Government needs to 

convey to the universities the 

information that certain work is exportcontrolled. 

DoD Response: The DFARS clauses in 

the interim rule did not establish the 

export controls with which exporters 

are obliged to comply. The ITAR and 


jlentini on DSKJ8SOYB1PROD with RULES2
18032 Federal Register / Vol. 75, No. 67 / Thursday, April 8, 2010 / Rules and Regulations 

the EAR, not the DFARS clauses, 

impose the burden on exporters to know 

if the work they are doing, whether or 

not under a DoD contract, will involve 

export-controlled items. Exporters have 

strict liability to comply with the ITAR 

and the EAR. DoD’s responsibilities 

under the DFARS rule in no way relieve 

DoD contractors of the responsibilities 

they have under the ITAR and the EAR. 

DoD does not have authority to issue 

‘‘export direction’’ regarding contractor 

responsibilities to comply with the 

ITAR and the EAR. 

c. Inappropriate Encouragement of the 

Use of Export Controls 

Comment: One respondent stated that 

the DFARS rule would encourage 

unintentionally the use of export 

controls in cases where an exclusion 

would apply. 

DoD Response: Export controls and 

exclusions are established by the ITAR 

and the EAR independent of DFARS 

requirements. In providing single-clause 

guidance to contracting officers and 

contractors with reference to the 

operative regulations, any potential for 

independent interpretation or 

encouragement should be eliminated. 

d. Contractor Liability 

Comment: One respondent stated that 

the rule is silent on contractor liability, 

making it unclear as to what approach 

contractors must take in the event of an 

unauthorized export when the submittal 

of a voluntary disclosure to the State 

Department’s Directorate of Defense 

Trade Controls or the Commerce 

Department’s Office of Export 

Enforcement would be appropriate. The 

ITAR and the EAR lay out well-defined 

steps for submitting voluntary 

disclosures. It is not clear whether the 

DFARS rule would require the 

contractor to make disclosures with the 

DoD contracting officer in addition to 

those made under the ITAR or the EAR. 

The rule should clearly state that any 

matters related to controlled data should 

be addressed in accordance with 

existing State Department or Commerce 

Department regulations. 

DoD Response: The interim rule’s 

statements at 204.7302, and 252.204– 

7008(c), (d), and (e), were intended to 

make clear that the ITAR and the EAR 

govern the control of exports and 

enforcement of export controls, and that 

questions about the ITAR go to the State 

Department and questions about the 

EAR go to the Commerce Department. 

After consultation with the Departments 

of State and Commerce, DoD concluded 

that a change might enhance the clarity 

of the rule in this regard, without 

mentioning any particular ITAR or EAR 

requirement (such as voluntary 

disclosure), since mentioning one 

requirement could create confusion 

about the many requirements left 

unmentioned. Therefore, paragraph (d) 

(formerly paragraph (e)) of the clause at 

252.204–7008 has been amended to 

state that ‘‘nothing in the terms of this 

contract adds to, changes, supersedes, or 

waives any of the requirements of 

applicable Federal laws, Executive 

orders, and regulations * * *’’ 

e. Process for Determining whether 

Export-Controlled Items are Involved 

Comment: One respondent stated that 

the procedure prescribed by the rule can 

result in the Government issuing a 

solicitation that includes the clause at 

252.204–7008, but provides no insight 

as to why the Government considered 

that clause appropriate. The rule should 

(1) give contractors the opportunity to 

consider whether the work can be 

performed without the contractor 

needing access to or generating exportcontrolled items, (2) provide explicitly 

for consultation with contractors, DoD 

contracting officers, and agencies 

responsible for the EAR and the ITAR in 

making a determination if exportcontrolled items are expected to be 

involved; and (3) provide for revisiting 

the determination after receipt of 

proposals but before award of the 

contract. 

DoD Response: The single-clause 

construct of the final rule eliminates the 

concerns expressed by this comment. 

4. Fundamental Research and the 

Clause at DFARS 252.204–7000, 

Disclosure of Information 

Comments: The fundamental research 

aspect of the rule was a key focus of 

respondents. Ten of the twelve 

respondents represented a university or 

the university community. Two of the 

university respondents acknowledged 

that, on occasion, universities under 

contracts with DoD can and do have 

access to export-controlled items in 

fundamental research, noting that this is 

done in compliance with applicable 

export control laws and without 

publication restrictions on the results of 

their fundamental research. Comments 

associated with fundamental research 

had several common themes: 

Æ Concern that the DFARS definition 

of ‘‘fundamental research’’ (from 

National Security Decision Directive 

(NSDD) 189) is different than the 

definitions in the ITAR and the EAR. 

The distinction between ‘‘fundamental 

research’’ and ‘‘applied research’’ is dealt 

with adequately in the ITAR and the 

EAR and DoD should avoid adding 

complexity or confusion with this 

DFARS rule. 

Æ Belief that an exclusion for 

fundamental research exists with regard 

to export controls, i.e., if a contract is for 

fundamental research and with a 

university, export controls cannot 

possibly apply. The EAR and the ITAR 

were cited to support this belief. 

Æ Focus on fundamental research 

rather than on the contract, to the extent 

that one respondent suggested 

identifying which export-controlled 

items are subject to the clause at 

252.204–7008 and what part of the 

contract work is fundamental research 

subject to the clause at 252.204–7009. 

Æ Confusion regarding, concerns 

about, or arguments against the 

assertion in the DoD statement in the 

preamble to the interim rule published 

on July 21, 2008, that there is a 

borderline where fundamental research 

meets more advanced applied research 

and development. 

Æ Concern that contracting officers, in 

the event that export-controlled items 

are expected to be involved in the 

conduct of university research, may 

erroneously conclude that the results of 

university research must necessarily 

contain sensitive information or 

information not appropriate for public 

release, and may impose the clause at 

DFARS 252.204–7000, Disclosure of 

Information, or other access and 

dissemination restrictions on the 

contract. Application of publication 

restrictions on university research 

destroys the university’s ability to 

conduct the research as fundamental 

research that is not subject to export 

control restrictions, and could lead to 

restrictions on the involvement of 

foreign researchers. Therefore, 

universities were concerned that the 

rule may restrict the conduct of 

fundamental research on university 

campuses. 

Æ Recommendations that the rule 

refer to the June 26, 2008, Under 

Secretary of Defense (Acquisition, 

Technology, and Logistics) 

memorandum on the subject of 

‘‘Contracted Fundamental Research,’’ 

and that the rule include the 

memorandum’s guidance to DoD 

officials for contracting with 

universities for fundamental research. 

Æ The need to instruct requiring 

activities and contracting officers to 

manage fundamental research projects 

such that they do not become subject to 

export controls. 

DoD Response: The two-clause 

construct has been eliminated in the 

final rule, which prescribes a single 

clause for use in all DoD solicitations 

and contracts. The single clause is silent 


jlentini on DSKJ8SOYB1PROD with RULES2
Federal Register / Vol. 75, No. 67 / Thursday, April 8, 2010 / Rules and Regulations 18033 

with regard to whether the contract is or 

is not expected to involve exportcontrolled items. There is no need in the 

revised context to mention any 

particular type or category of contracts, 

including research and development 

contracts. The clause puts all 

contractors, including universities 

performing contracts for fundamental 

research only, on notice that they are 

responsible for complying with all 

applicable export control laws and 

regulations. 

DoD does not have the authority to 

establish in the DFARS a presumption 

that DoD contracts for fundamental 

research do not involve exportcontrolled items or that contractors 

performing DoD contracts for 

fundamental research may assume that 

the ITAR and the EAR do not apply to 

what they do or produce in the 

performance of the contract. 

After considering the public 

comments associated with this aspect of 

the rule, DoD concluded that the rule 

would be improved by removing the 

references to fundamental research. The 

result is a simpler, clearer rule, with 

nothing that will distract the reader 

from the focus on the contractor’s 

responsibility for complying with the 

ITAR and the EAR. Therefore, the final 

rule does not define or mention 

fundamental research. The clause is 

written to apply to all contracts, and 

there is no exception for contracts for 

fundamental research. The operation of 

the DFARS rule will be independent of, 

and have no bearing on, the 

applicability of NSDD 189, EAR, or 

ITAR definitions of ‘‘fundamental 

research’’ to a given contract. The 

interim rule did not, and the final rule 

does not, impose restrictions on the 

publication or dissemination of the 

results of research under research 

contracts. 

5. Alternatives at 252.204–7009(c), 

Particularly the Alternative for 

Termination for Convenience of the 

Government 

Paragraph (c) of the clause at 252.204– 

7009 in the interim rule required the 

contractor to notify the contracting 

officer if, during performance of the 

contract, the contractor became aware 

that it would generate or need access to 

export-controlled items. The contracting 

officer would then modify the contract 

to include the clause at DFARS 

252.204–7008; negotiate a contract 

modification to eliminate the 

requirement for work involving exportcontrolled items; or terminate the 

contract, in whole or in part, for the 

convenience of the Government. 

Comments: Many respondents were 

concerned with the alternative of 

terminating the contract for the 

convenience of the Government. 

Several respondents suggested that 

contractors should also have the right to 

terminate for convenience of the 

contractor. Most of these respondents 

cite, for comparison purposes, FAR 

clause 52.204–2, Security Requirements, 

Alternate I, which, in paragraph (g), 

permits the contractor to request the 

contracting officer to terminate the 

contract in whole or in part in 

accordance with the terms of the 

Termination for the Convenience of the 

Government clause. 

One respondent considered that the 

interim rule would unnecessarily 

encourage a contracting officer to 

potentially terminate a contract for 

convenience rather than modify the 

contract. 

Another respondent was concerned, 

in general, that the unilateral nature of 

these provisions and the amount of 

discretion left to the contracting officer 

increase the ambiguity and uncertainty 

of the rule. The respondent requested 

that the final rule provide explicitly for 

consultation with contractors as to 

whether the research can be conducted 

without using export-controlled items. 

DoD Response: The final rule removes 

the clause at 252.204–7009, including 

the language that was of concern to the 

respondents. 

6. Flow-Down of Clauses to 

Subcontracts 

a. Flow-Down of 252.204–7008 

Comment: One respondent stated that, 

unless the term ‘‘foreign nationals’’ is 

deleted from paragraph (2) of the 

definition of ‘‘export-controlled items,’’ 

contractors would be required to flow 

down the clause at DFARS 252.204– 

7008 to subcontracts in cases in which 

U.S. persons need access to EARcontrolled commodities, but not in 

which foreign persons need access to 

these items. 

DoD Response: The statement 

regarding foreign nationals has been 

excluded from the definition of ‘‘exportcontrolled items.’’ 

b. Flowdown of 252.204–7000 

Comment: One respondent stated that 

mandatory flow down of the clause at 

DFARS 252.204–7000, Disclosure of 

Information, from industry prime 

contractors to universities is perhaps the 

single largest impediment to efficient 

contracting between universities and 

their DoD-sponsored prime contractors. 

DoD Response: The clause at DFARS 

252.204–7000 is not prescribed by 

DFARS subpart 204.73. Therefore, 

changes to this clause or its prescription 

are outside the scope of this DFARS 

rule. 

7. Training 

Comment: One respondent stated that 

DoD should ensure export control 

compliance training for all DoD 

personnel involved in research and 

development acquisitions. Another 

respondent stated that extensive 

Government training would be needed 

for DoD requiring and contracting 

personnel, to permit selection of the 

appropriate contract clause as well as 

proper administration of the clause. 

DoD Response: The final rule’s 

prescription of a single clause for use in 

all solicitations and contracts eliminates 

the aspects of the interim rule that 

created the greatest need for additional 

training for requiring and contracting 

personnel. Nevertheless, DoD has a 

continuing interest in improving the 

training available on export controlrelated matters. Web-based training on 

this subject is available presently to DoD 

personnel through the Defense 

Acquisition University. 

This rule was reviewed by the Office 

of Management and Budget under 

Executive Order 12866, dated 

September 30, 1993. 

B. 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 all contractors, including small 

entities, are already subject to exportcontrol laws and regulations. The 

requirements of this rule reinforce 

existing responsibilities. 

DoD will also consider comments 

from small entities concerning the 

existing regulations in subparts affected 

by this rule in accordance with 5 U.S.C. 

610. Interested parties must submit such 

comments separately and should cite 5 

U.S.C. 610 (DFARS Case 2004–D010) in 

correspondence. 

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. 


jlentini on DSKJ8SOYB1PROD with RULES2
18034 Federal Register / Vol. 75, No. 67 / Thursday, April 8, 2010 / Rules and Regulations 

List of Subjects in 48 CFR Parts 204, 

235, and 252 

Government procurement. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

■ Accordingly, the interim rule 

amending 48 CFR parts 204, 235, and 

252, which was published at 74 FR 

42274, July 21, 2008, is adopted as a 

final rule with the following changes: 

■ 1. The authority citation for 48 CFR 

parts 204, 235, and 252 continues to 

read as follows: 

Authority: 41 U.S.C. 421 and 48 CFR 

chapter 1. 

PART 204—ADMINISTRATIVE 

MATTERS 

■ 2. Subpart 204.73 is revised to read as 

follows: 

Subpart 204.73—Export-Controlled Items 

Sec. 

204.7300 Scope of subpart. 

204.7301 Definitions. 

204.7302 General. 

204.7303 Policy. 

204.7304 Contract clauses. 

Subpart 204.73—Export-Controlled 

Items 

204.7300 Scope of subpart. 

This subpart implements section 

890(a) of the National Defense 

Authorization Act for Fiscal Year 2008 

(Pub. L. 110–181). 

204.7301 Definitions. 

Export-controlled items, as used in 

this subpart, is defined in the clause at 

252.204–7008. 

204.7302 General. 

Certain types of items are subject to 

export controls in accordance with the 

Arms Export Control Act (22 U.S.C. 

2751, et seq.), the International Traffic 

in Arms Regulations (22 CFR parts 120– 

130), the Export Administration Act of 

1979, as amended (50 U.S.C. App. 2401, 

et seq.), and the Export Administration 

Regulations (15 CFR parts 730–774). See 

PGI 204.7302 for additional information. 

204.7303 Policy. 

(a) It is in the interest of both the 

Government and the contractor to be 

aware of export controls as they apply 

to the performance of DoD contracts. 

(b) It is the contractor’s responsibility 

to comply with all applicable laws and 

regulations regarding export-controlled 

items. This responsibility exists 

independent of, and is not established 

or limited by, this subpart. 

204.7304 Contract clauses. 

Use the clause at 252.204–7008, 

Export-Controlled Items, in all 

solicitations and contracts. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 3. Section 252.204–7008 is revised to 

read as follows: 

252.204–7008 Export-Controlled Items. 

As prescribed in 204.7304, use the 

following clause: 

Export-Controlled Items (Apr 2010) 

(a) Definition. Export-controlled items, as 

used in this clause, means items subject to 

the Export Administration Regulations (EAR) 

(15 CFR parts 730–774) or the International 

Traffic in Arms Regulations (ITAR) (22 CFR 

parts 120–130). The term includes: 

(1) Defense items, defined in the Arms 

Export Control Act, 22 U.S.C. 2778(j)(4)(A), 

as defense articles, defense services, and 

related technical data, and further defined in 

the ITAR, 22 CFR part 120. 

(2) Items, defined in the EAR as 

‘‘commodities, software, and technology,’’ 

terms that are also defined in the EAR, 15 

CFR 772.1. 

(b) The Contractor shall comply with all 

applicable laws and regulations regarding 

export-controlled items, including, but not 

limited to, the requirement for Contractors to 

register with the Department of State in 

accordance with the ITAR. The Contractor 

shall consult with the Department of State 

regarding any questions relating to 

compliance with the ITAR and shall consult 

with the Department of Commerce regarding 

any questions relating to compliance with the 

EAR. 

(c) The Contractor’s responsibility to 

comply with all applicable laws and 

regulations regarding export-controlled items 

exists independent of, and is not established 

or limited by, the information provided by 

this clause. 

(d) Nothing in the terms of this contract 

adds to, changes, supersedes, or waives any 

of the requirements of applicable Federal 

laws, Executive orders, and regulations, 

including but not limited to— 

(1) The Export Administration Act of 1979, 

as amended (50 U.S.C. App. 2401, et seq.); 

(2) The Arms Export Control Act (22 U.S.C. 

2751, et seq.); 

(3) The International Emergency Economic 

Powers Act (50 U.S.C. 1701, et seq.); 

(4) The Export Administration Regulations 

(15 CFR parts 730–774); 

(5) The International Traffic in Arms 

Regulations (22 CFR parts 120–130); and 

(6) Executive Order 13222, as extended. 

(e) The Contractor shall include the 

substance of this clause, including this 

paragraph (e), in all subcontracts. 

(End of clause) 

Section 252.204–7009 [Removed and 

Reserved] 

■ 4. Section 252.204–7009 is removed 

and reserved. 

[FR Doc. 2010–7258 Filed 4–7–10; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 234 and 235 

RIN 0750–AF79 

Defense Federal Acquisition 

Regulation Supplement; Research and 

Development Contract Type 

Determination (DFARS Case 2006– 

D053) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is adopting as final, 

without change, an interim rule that 

requires the Milestone Decision 

Authority (MDA) for a major defense 

acquisition program (MDAP) to select 

the contract type for a development 

program that is consistent with the level 

of program risk in accordance with 

section 818 of the National Defense 

Authorization Act (NDAA) for Fiscal 

Year 2007. 

DATES: Effective Date: April 8, 2010. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Mark Gomersall, 703–602–0302. Please 

cite DFARS case 2006–D053. 

SUPPLEMENTARY INFORMATION: 

A. Background 

DoD published an interim rule at 73 

FR 4117 on January 24, 2008, to 

implement section 818 of the National 

Defense Authorization Act for Fiscal 

Year 2007 (Pub. L. 109–364). Section 

818 requires DoD to modify regulations 

regarding the determination of contract 

type for development programs. Such 

regulations require the Milestone 

Decision Authority (MDA) for a major 

defense acquisition program (MDAP) to 

select the contract type for a 

development program that is consistent 

with the level of program risk. The MDA 

may select a fixed-price type contract, 

including a fixed-price incentive 

contract; or a cost-type contract, 

provided certain written determination 

requirements are satisfied. 

The interim rule added a new section 

at DFARS 234.004 to implement the 

requirements of section 818 of Public 

Law 109–364, applicable to MDAPs, and 


jlentini on DSKJ8SOYB1PROD with RULES2