8272 Federal Register / Vol. 75, No. 36 / Wednesday, February 24, 2010 / Rules and Regulations 

respond to a collection of information 

unless it displays a currently valid OMB 

control number, or is otherwise required 

to submit the specific information by a 

statute. The OMB control numbers for 

EPA’s regulations are codified in 40 CFR 

chapter I, after appearing in the 

preamble of the final rule, are further 

displayed either by publication in the 

Federal Register or by other appropriate 

means, such as on the related collection 

instrument or form, if applicable. The 

display of OMB control numbers in 

certain EPA regulations is consolidated 

in a list at 40 CFR 9.1. 

The information collection activities 

related to the submission of information 

pursuant to TSCA section 5 have 

already been approved by OMB under 

OMB Control No. 2070–0012 (EPA 

Information Collection Request [ICR] 

No. 574). The burden for that ICR is 

estimated to average 100 hours per 

respondent, including time for reading 

the regulations, processing, compiling, 

and reviewing the requested data, 

generating the request, storing, filing, 

and maintaining the data. 

This action is not subject to noticeand-comment requirements under the 

APA or any other statute, and is not 

subject to the provisions of the 

Regulatory Flexibility Act (RFA) (5 

U.S.C. 601 et seq.), or to sections 202 

and 205 of the Unfunded Mandates 

Reform Act of 1995 (UMRA) (Public 

Law 104–4). In addition, this action 

does not significantly or uniquely affect 

small governments or impose a 

significant intergovernmental mandate, 

as described in sections 203 and 204 of 

UMRA. This action will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132, entitled 

Federalism (64 FR 43255, August 10, 

1999). Nor does this action significantly 

or uniquely affect the communities of 

tribal governments as specified by 

Executive Order 13175, entitled 

Consultation and Coordination with 

Indian Tribal Governments (59 FR 

22951, November 9, 2000). 

Executive Orders 13045, entitled 

Protection of Children from 

Environmental Health Risks and Safety 

Risks (62 FR 19885, April 23, 1997) and 

13211, entitled Actions Concerning 

Regulations that Significantly Affect 

Energy Supply, Distribution, or Use (66 

FR 28355, May 22, 2001), do not apply 

to this action because this action is not 

‘‘economically significant’’ as defined by 

section 3(f) of Executive Order 12866. 

Nor does this action establish an 

environmental standard that may have a 

negatively disproportionate effect on 

children, or otherwise have any 

significant adverse effect on the supply, 

distribution, or use of energy. 

This action does not involve any 

technical standards that require the 

Agency’s consideration of voluntary 

consensus standards pursuant to section 

12(d) of the National Technology 

Transfer and Advancement Act of 1995 

(NTTAA), Public Law 104–113, section 

12(d) (15 U.S.C. 272 note). 

This action will not have an adverse 

impact on the environmental and health 

conditions in low-income and minority 

communities. Therefore, under 

Executive Order 12898, entitled Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations (59 FR 7629, 

February 16, 1994), the Agency is not 

required to and has not considered 

environmental justice-related issues. 

V. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1966, does not apply 

because this action is not a rule for 

purposes of 5 U.S.C. 804(3). 

List of Subjects in 40 CFR Subchapter 

R 

Environmental protection, Chemical 

substances, Hazardous substances, 

Imports, Manuafacturing, Reporting and 

recordkeeping requirements. 

Dated: February 17, 2010. 

James Jones, 

Acting Assistant Administrator, Office of 

Prevention, Pesticides and Toxic Substances. 

[FR Doc. 2010–3675 Filed 2–23–10; 8:45 am] 

BILLING CODE 6560–50–S 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 207 

[DFARS Case 2009–D014] 

RIN 0750–AG61 

Defense Federal Acquisition 

Regulation Supplement; Acquisition 

Strategies To Ensure Competition 

Throughout the Life Cycle of Major 

Defense Acquisition Programs 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Interim rule with request for 

comments. 

SUMMARY: DoD is issuing an interim rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement the Weapon 

Systems Acquisition Reform Act of 

2009, section 202, Acquisition Strategies 

to Ensure Competition throughout the 

Lifecycle of Major Defense Acquisition 

Programs. 

DATES: Effective Date: February 24, 

2010. 

Comment Date: Comments on this 

interim rule should be submitted in 

writing to the address shown below on 

or before April 26, 2010, to be 

considered in the formation of the final 

rule. 

ADDRESSES: You may submit comments, 

identified by DFARS Case 2009–D014, 

using any of the following methods: 

Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

E-mail: dfars@osd.mil. Include 

DFARS Case 2009–D014 in the subject 

line of the message. 

Fax: 703–602–0350. 

Mail: Defense Acquisition Regulations 

System, Attn: Ms. Meredith Murphy, 

OUSD (AT&L) DPAP (DARS), 3060 

Defense Pentagon, Room 3B855, 

Washington, DC 20301–3060. 

Hand Delivery/Courier: Defense 

Acquisition Regulations System, Crystal 

Square 4, Suite 200A, 241 18th Street, 

Arlington, VA 22202–3402. 

Comments received generally will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. 

FOR FURTHER INFORMATION CONTACT: 

Ms. Meredith Murphy, 703–602–1302. 

SUPPLEMENTARY INFORMATION: 

A. Background 

On May 22, 2009, The Weapon 

Systems Acquisition Reform Act (Pub. 

L. 111–23) was enacted to improve the 

organization and procedures of DoD for 

the acquisition of major weapon 

systems. This law establishes new 

oversight entities within DoD, as well as 

new and varied weapon system 

acquisition and management reporting 

requirements. 

Section 202 directs the Secretary of 

Defense (SECDEF) to ensure that the 

acquisition strategy for each MDAP 

includes: (1) Measures to ensure 

competition at both the prime contract 

and subcontract level of the MDAP 

throughout its life cycle as a means to 

improve contractor performance; and 

(2) adequate documentation of the 

rationale for selection of the 


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Federal Register / Vol. 75, No. 36 / Wednesday, February 24, 2010 / Rules and Regulations 8273 

subcontractor tier or tiers. It also 

outlines measures to ensure such 

competition. Furthermore, it requires 

the SECDEF: (1) To take specified 

actions to ensure fair and objective 

‘‘make-buy’’ decisions by prime 

contractors on MDAPs; and 

(2) whenever a decision regarding the 

source of repair results in a plan to 

award a contract for performance of 

maintenance and sustainment of a major 

weapon system, to ensure that such 

contract is awarded on a competitive 

basis with full consideration of all 

sources. 

B. Regulatory Flexibility Act 

DoD does not expect this interim rule 

to 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 change is to internal 

Government operating procedures. 

Therefore, an Initial Regulatory 

Flexibility Analysis has not been 

performed. DoD invites comments from 

small business concerns and other 

interested parties on the expected 

impact of this rule on small entities. 

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 2009–D014) 

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. 

D. Determination To Issue an Interim 

Rule 

A determination has been made under 

the authority of the Secretary of Defense 

(DoD) that urgent and compelling 

reasons exist to promulgate this interim 

rule without prior opportunity for 

public comments. This action is 

necessary because section 202 of the 

Weapon Systems Acquisition Reform 

Act of 2009 became effective upon 

enactment on May 22, 2009. However, 

pursuant to 41 U.S.C. 418b, DoD will 

consider public comments received in 

response to this interim rule in the 

formation of the final rule. 

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: 

■ 1. The authority citation for 48 CFR 

part 207 continues to read as follows: 

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

Chapter 1. 

PART 207—ACQUISITION PLANNING 

■ 2. Section 207.106 is amended by 

adding a new paragraph (S–72) to read 

as follows: 

207.106 Additional requirements for major 

systems. 

* * * * * 

(S–72)(1) In accordance with section 

202 of the Weapon Systems Acquisition 

Reform Act of 2009 (Pub. L. 111–23), 

acquisition plans for major defense 

acquisition programs as defined in 10 

U.S.C. 2430, shall include measures 

that— 

(i) Ensure competition, or the option 

of competition, at both the prime 

contract level and subcontract level (at 

such tier or tiers as are appropriate) 

throughout the program life cycle as a 

means to improve contractor 

performance; and 

(ii) Document the rationale for the 

selection of the appropriate subcontract 

tier or tiers under paragraph (S–72)(1)(i) 

of this section, and the measures which 

will be employed to ensure competition, 

or the option of competition. 

(2) Measures to ensure competition, or 

the option of competition, may include, 

but are not limited to, cost-effective 

measures intended to achieve the 

following: 

(i) Competitive prototyping. 

(ii) Dual-sourcing. 

(iii) Unbundling of contracts. 

(iv) Funding of next-generation 

prototype systems or subsystems. 

(v) Use of modular, open architectures 

to enable competition for upgrades. 

(vi) Use of build-to-print approaches 

to enable production through multiple 

sources. 

(vii) Acquisition of complete 

technical data packages. 

(viii) Periodic competitions for 

subsystem upgrades. 

(ix) Licensing of additional suppliers. 

(x) Periodic system or program 

reviews to address long-term 

competitive effects of program 

decisions. 

(3) In order to ensure fair and 

objective ‘‘make-or-buy’’ decisions by 

prime contractors, acquisition strategies 

and resultant solicitations and contracts 

shall— 

(i) Require prime contractors to give 

full and fair consideration to qualified 

sources other than the prime contractor 

for the development or construction of 

major subsystems and components of 

major weapon systems; 

(ii) Provide for Government 

surveillance of the process by which 

prime contractors consider such sources 

and determine whether to conduct such 

development or construction in-house 

or through a subcontract; and 

(iii) Provide for the assessment of the 

extent to which the prime contractor has 

given full and fair consideration to 

qualified sources in sourcing decisions 

as a part of past performance 

evaluations. 

(4) Whenever a source-of-repair 

decision results in a plan to award a 

contract for the performance of 

maintenance and sustainment services 

on a major weapon system, to the 

maximum extent practicable and 

consistent with statutory requirements, 

the acquisition plan shall prescribe that 

award will be made on a competitive 

basis after giving full consideration to 

all sources (including sources that 

partner or subcontract with public or 

private sector repair activities). 

[FR Doc. 2010–3713 Filed 2–23–10; 8:45 am] 

BILLING CODE 5001–08–P 


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