22036 Federal Register / Vol. 79, No. 76 / Monday, April 21, 2014 / Rules and Regulations 

Act. For purposes of complying with 

any applicable requirement that is 

triggered by, implemented or calculated 

from the PSD major source baseline 

date, such requirement, increment, or 

calculation shall, for sources located 

within the Commonwealth of the 

Northern Mariana Islands, use January 

13, 1997 as the PSD major source 

baseline date and trigger date for sulfur 

dioxide, PM10, and nitrogen dioxide. 

(b) [Reserved] 

[FR Doc. 2014–08611 Filed 4–18–14; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 201 

RIN 0750–AI21 

Defense Federal Acquisition 

Regulation Supplement: Contracting 

Officer’s Representative (DFARS Case 

2013–D023) 

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 remove coverage concerning 

contracting officer’s representative 

responsibilities that is procedural in 

nature. 

DATES: Effective April 21, 2014. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Janetta Brewer, telephone 571–372– 

6104. 

SUPPLEMENTARY INFORMATION: 

I. Discussion 

DoD is revising DFARS 201.602–2 to 

remove guidance that is internal to DoD 

concerning contracting officer’s 

representative (COR) responsibilities. 

COR responsibilities, addressed at 

DFARS Procedures, Guidance, and 

Information (PGI) 201.602–2, are also 

being revised in conjunction with this 

DFARS change. Included in the PGI 

update is a link to the DoD COR 

Handbook, dated March 22, 2012, which 

provides detailed guidance on COR 

appointments and duties. 

II. Publication of This Final Rule for 

Public Comment Is Not Required by 

Statute 

Publication of proposed regulations, 

41 U.S.C. 1707, is the statute which 

applies to the publication of the Federal 

Acquisition Regulation. Paragraph (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 the change is not substantive 

and only modifies the internal operating 

procedures of DoD. 

III. 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. This 

rule is not a major rule under 5 U.S.C. 

804. 

IV. 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. 

V. Paperwork Reduction Act 

The rule does not contain any 

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 201 

Government procurement. 

Manuel Quinones, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR part 201 is 

amended as follows: 

PART 201—FEDERAL ACQUISITION 

REGULATIONS SYSTEM 

■ 1. The authority citation for 48 CFR 

201 continues to read as follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

■ 2. Section 201.602–2 is revised to read 

as follows: 

201.602–2 Responsibilities. 

(d) Follow the procedures at PGI 

201.602–2 regarding designation, 

assignment, and responsibilities of a 

contracting officer’s representative 

(COR). 

(1) A COR shall be an employee, 

military or civilian, of the U.S. 

Government, a foreign government, or a 

North Atlantic Treaty Organization/

coalition partner. In no case shall 

contractor personnel serve as CORs. 

[FR Doc. 2014–08858 Filed 4–18–14; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 212, 216, 247, and 252 

RIN 0750–AH90 

Defense Federal Acquisition 

Regulation Supplement: Clauses With 

Alternates—Transportation (DFARS 

Case 2012–D057) 

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 revise and update 

transportation-related clauses and their 

prescriptions to create basic and 

alternate clauses structured in a manner 

to facilitate use of automated contract 

writing systems. The rule also includes 

the full text of each alternate, rather 

than only showing the paragraphs that 

differ from the basic clause. 

DATES: Effective April 21, 2014. 

FOR FURTHER INFORMATION CONTACT: 

Annette Gray, telephone 571–372–6093. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD published a proposed rule in the 

Federal Register at 78 FR 48397 on 

August 8, 2013, to revise the 

presentation of DFARS part 247 clauses 

with alternates and their prescriptions 

in the DFARS. One respondent 

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Federal Register / Vol. 79, No. 76 / Monday, April 21, 2014 / Rules and Regulations 22037 

submitted a public comment in 

response to the proposed rule. 

II. Discussion and Analysis 

DoD reviewed the public comment in 

the development of the final rule. A 

discussion of the comment is provided 

below. 

A. Public Comment 

Comment: The respondent 

recommended revising the prescription 

for the proposed clause at 252.216– 

70XX (renumbered 252.216–7010 in the 

final rule) to include a statement that 

the clause applies to requirements-type 

contracts. 

Response: DoD reviewed and 

accepted the public comment in the 

development of the final rule. In the 

prescription at DFARS 216.506(d) for 

the clause at 252.216–7010, 

Requirements, (formerly DFARS 

252.247–7015, Requirements) the phrase 

‘‘when a requirements contract is 

contemplated’’ is added. 

B. Other Changes 

Minor editorial changes were made: 

(1) To standardize language used in the 

final rule for the clause prescriptions 

and prefaces in order to provide 

uniform arrangement in the regulations, 

and (2) in 252.247–7023, to provide for 

consistent use of the term ‘‘foreign-flag 

vessels’’ in the clause. 

III. 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. This 

rule is not a major rule under 5 U.S.C. 

804. 

IV. Regulatory Flexibility Act 

A final regulatory flexibility analysis 

has been prepared consistent with the 

Regulatory Flexibility Act, 5 U.S.C. 601, 

et seq., and is summarized as follows: 

This rule amends the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to revise and update 

transportation-related clauses and their 

prescriptions to create basic and 

alternate clauses structured in a manner 

to facilitate use of automated contract 

writing systems. The rule also includes 

the full text of each alternate, rather 

than only showing the paragraphs that 

differ from the basic clause. 

There will be an initial small impact 

on potential offerors, including small 

businesses, because this rule provides 

an unfamiliar format for provision/

clause alternates in solicitations and 

contracts issued by DoD contracting 

activities. According to the Federal 

Procurement Data System, in Fiscal 

Year 2012, DoD made approximately 

270,000 contract awards (not including 

modification and orders) that exceeded 

the micro-purchase threshold, of which 

approximately 180,000 (67%) were 

awarded to small businesses. It is 

unknown how many of these contracts 

were awarded that included an alternate 

to a DFARS provision or clause. Since 

similar changes are being made (by part 

number) to all DFARS prescriptions and 

clauses and these changes are not 

substantive, this rule is expected to 

result in a net savings for potential 

offerors, including small businesses, by 

increasing clarity. 

No comments were received from the 

public on the Regulatory Flexibility 

analysis. No comments were received 

from the Chief Counsel for Advocacy of 

the Small Business Administration. 

This rule does not add any new 

reporting, recordkeeping, or other 

compliance requirements. It should not 

result in any economic impact on small 

entities. 

There are no alternatives to this rule 

that would attain the stated objective of 

making the terms of clause alternates 

clearer and that will facilitate the use of 

automated contract writing systems. 

V. Paperwork Reduction Act 

The rule does not contain any 

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 Parts 212, 

216, 247, and 252 

Government procurement. 

Manuel Quinones, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR parts 212, 216, 247, 

and 252 are amended as follows: 

■ 1. The authority citation for 48 CFR 

parts 212, 216, 247, and 252 continues 

to read as follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

PART 212—ACQUISITION OF 

COMMERCIAL ITEMS 

■ 2. Amend section 212.301 by revising 

paragraph (f)(lxv) to read as follows: 

212.301 Solicitation provisions and 

contract clauses for the acquisition of 

commercial items. 

(f) * * * 

(lxv) Use the basic or one of the 

alternates of the clause at 252.247–7023, 

Transportation of Supplies by Sea, as 

prescribed in 247.574(b), to comply 

with the Cargo Preference Act of 1904 

(10 U.S.C. 2631(a)). 

(A) Use the basic clause as prescribed 

in 247.574(b)(1). 

(B) Use the alternate I clause as 

prescribed in 247.574(b)(2). 

(C) Use the alternate II clause as 

prescribed in 247.574(b)(3). 

* * * * * 

PART 216—TYPES OF CONTRACTS 

■ 3. In 216.506, revise paragraph (d) to 

read as follows: 

216.506 Solicitation provisions and 

contract clauses. 

* * * * * 

(d) Use the basic or the alternate of 

the clause at 252.216–7010, 

Requirements, in lieu of the clause at 

FAR 52.216–21, Requirements, in 

solicitations and contracts when a 

requirements contract for the 

preparation of personal property for 

shipment or storage, or for the 

performance of intra-city or intra-area 

movement, is contemplated. 

(1) Use the basic clause if the 

acquisition does not involve a partial 

small business set-aside. 

(2) Use the alternate I clause if the 

acquisition involves a partial small 

business set-aside. 

* * * * * 

PART 247—TRANSPORTATION 

■ 4. Revise the section 247.271 heading 

to read as follows: 

247.271 Contracts for the preparation of 

personal property for shipment or storage 

or for performance of intra-city or intra-area 

movement. 

* * * * * 

■ 5. Amend section 247.271–3 by— 

■ a. In the introductory text, removing 

‘‘and for performance of intra-city or 

intra-area movement,’’ and adding ‘‘or 

for performance of intra-city or intraarea movement,’’ in its place; 

■ b. Revising paragraph (a); 

■ c. Removing paragraph (j) and 

redesignating paragraphs (k) through (p) 

as paragraphs (j) through (o), 

respectively; and 

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22038 Federal Register / Vol. 79, No. 76 / Monday, April 21, 2014 / Rules and Regulations 

■ d. Adding a new paragraph (p). 

The revision and addition read as 

follows: 

247.271–3 Solicitation provisions, 

schedule formats, and contract clauses. 

* * * * * 

(a) Use the basic or the alternate of the 

provision at 252.247–7008, Evaluation 

of Bids. 

(1) Use the basic provision when there 

are no ‘‘additional services’’ items being 

added to the schedule. 

(2) Use the alternate I provision when 

adding ‘‘additional services’’ items to 

the schedule. 

* * * * * 

(p) See the prescription at 216.506(d) 

requiring the use of 252.216–7010, 

Requirements. 

■ 6. In 247.574, revise paragraph (b) to 

read as follows: 

247.574 Solicitation provisions and 

contract clauses. 

* * * * * 

(b) Use the basic or one of the 

alternates of the clause at 252.247–7023, 

Transportation of Supplies by Sea, in all 

solicitations and contracts, including 

solicitations and contracts using FAR 

part 12 procedures for the acquisition of 

commercial items, except those for 

direct purchase of ocean transportation 

services. 

(1) Use the basic clause unless any of 

the supplies to be transported are 

commercial items that are— 

(i) Shipped in direct support of U.S. 

military contingency operations, 

exercises, or forces deployed in 

humanitarian or peacekeeping 

operations when the contract is not a 

construction contract; or 

(ii) Commissary or exchange cargoes 

transported outside of the Defense 

Transportation System when the 

contract is not a construction contract. 

(2) Use the alternate I clause if any of 

the supplies to be transported are 

commercial items that are shipped in 

direct support of U.S. military 

contingency operations, exercises, or 

forces deployed in humanitarian or 

peacekeeping operations when the 

contract is not a construction contract. 

(3) Use the alternate II clause if any 

of the supplies to be transported are 

commercial items that are commissary 

or exchange cargoes transported outside 

of the Defense Transportation System 

(10 U.S.C. 2643), when the contract is 

not a construction contract. 

* * * * * 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 7. Add section 252.216–7010 to read 

as follows: 

252.216–7010 Requirements. 

As prescribed in 216.506(d), use one 

of the following clauses: 

Basic. As prescribed at 216.506(d)(1), 

use the following clause. 

REQUIREMENTS—BASIC (APR 2014) 

(a) This is a requirements contract for the 

supplies or services specified and effective 

for the period stated in the Schedule. The 

quantities of supplies or services specified in 

the Schedule are estimates only and are not 

purchased by this contract. Except as this 

contract may otherwise provide, if the 

Government’s requirements do not result in 

orders in the quantities described as 

‘‘estimated’’ or ‘‘maximum’’ in the Schedule, 

that fact shall not constitute the basis for an 

equitable price adjustment. 

(b) Delivery or performance shall be made 

only as authorized by orders issued in 

accordance with the Ordering clause. Subject 

to any limitations in the Order Limitations 

clause or elsewhere in this contract, the 

Contractor shall furnish to the Government 

all supplies or services specified in the 

Schedule and called for by orders issued in 

accordance with the Ordering clause. The 

Government may issue orders requiring 

delivery to multiple destinations or 

performance at multiple locations. 

(c) Except as this contract otherwise 

provides, the Government shall order from 

the Contractor all the supplies or services 

specified in the Schedule that are required to 

be purchased by the Government activity or 

activities specified in the Schedule. 

(d) The Government is not required to 

purchase from the Contractor requirements in 

excess of any limit on total orders under this 

contract. 

(e) If the Government urgently requires 

delivery of any quantity of an item before the 

earliest date that delivery may be specified 

under this contract, and if the Contractor will 

not accept an order providing for the 

accelerated delivery, the Government may 

acquire the urgently required goods or 

services from another source. 

(f) Orders issued during the effective 

period of this contract and not completed 

within that time shall be completed by the 

Contractor within the time specified in the 

order. The rights and obligations of the 

Contractor and the Government for those 

orders shall be governed by the terms of this 

contract to the same extent as if completed 

during the effective period. 

(End of clause) 

Alternate I. As prescribed in 

216.506(d)(2), use the following clause, 

which uses a different paragraph (c) 

than the basic clause. 

REQUIREMENTS—ALTERNATE I 

(APR 2014) 

(a) This is a requirements contract for the 

supplies or services specified and effective 

for the period stated in the Schedule. The 

quantities of supplies or services specified in 

the Schedule are estimates only and are not 

purchased by this contract. Except as this 

contract may otherwise provide, if the 

Government’s requirements do not result in 

orders in the quantities described as 

‘‘estimated’’ or ‘‘maximum’’ in the Schedule, 

that fact shall not constitute the basis for an 

equitable price adjustment. 

(b) Delivery or performance shall be made 

only as authorized by orders issued in 

accordance with the Ordering clause. Subject 

to any limitations in the Order Limitations 

clause or elsewhere in this contract, the 

Contractor shall furnish to the Government 

all supplies or services specified in the 

Schedule and called for by orders issued in 

accordance with the Ordering clause. The 

Government may issue orders requiring 

delivery to multiple destinations or 

performance at multiple locations. 

(c) The Government’s requirements for 

each item or subitem of supplies or services 

described in the Schedule are being 

purchased through one non-set-aside contract 

and one set-aside contract. Therefore, the 

Government shall order from each Contractor 

approximately one-half of the total supplies 

or services specified in the Schedule that are 

required to be purchased by the specified 

Government activity or activities. The 

Government may choose between the setaside Contractor and the non-set-aside 

Contractor in placing any particular order. 

However, the Government shall allocate 

successive orders, in accordance with its 

delivery requirements, to maintain as close a 

ratio as is reasonably practicable between the 

total quantities ordered from the two 

Contractors. 

(d) The Government is not required to 

purchase from the Contractor requirements in 

excess of any limit on total orders under this 

contract. 

(e) If the Government urgently requires 

delivery of any quantity of an item before the 

earliest date that delivery may be specified 

under this contract, and if the Contractor will 

not accept an order providing for the 

accelerated delivery, the Government may 

acquire the urgently required goods or 

services from another source. 

(f) Orders issued during the effective 

period of this contract and not completed 

within that time shall be completed by the 

Contractor within the time specified in the 

order. The rights and obligations of the 

Contractor and the Government for those 

orders shall be governed by the terms of this 

contract to the same extent as if completed 

during the effective period. 

(End of clause) 

■ 8. Amend section 252.247–7008 by— 

■ a. Revising the introductory text, 

clause title and date; and 

■ b. Revising Alternate I. 

The revisions read as follows: 

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Federal Register / Vol. 79, No. 76 / Monday, April 21, 2014 / Rules and Regulations 22039 

252.247–7008 Evaluation of Bids. 

As prescribed in 247.271–3(a), use 

one of the following provisions: 

Basic. As prescribed at 247.271– 

3(a)(1), use the following provision. 

EVALUATION OF BIDS—BASIC (APR 

2014) 

* * * * * 

Alternate I. As prescribed in 247.271– 

4(a)(2), use the following provision, which 

adds a paragraph (e) not included in the basic 

provision. 

EVALUATION OF BIDS—ALTERNATE 

I (APR 2014) 

(a) The Government will evaluate bids on 

the basis of total aggregate price of all items 

within an area of performance under a given 

schedule. 

(1) An offeror must bid on all items within 

a specified area of performance for a given 

schedule. Failure to do so shall be cause for 

rejection of the bid for that area of 

performance of that Schedule. If there is to 

be no charge for an item, an entry such as 

‘‘No Charge,’’ or the letters ‘‘N/C’’ or ‘‘0,’’ 

must be made in the unit price column of the 

Schedule. 

(2) Any bid which stipulates minimum 

charges or graduated prices for any or all 

items shall be rejected for that area of 

performance within the Schedule. 

(b) In addition to other factors, the 

Contracting Officer will evaluate bids on the 

basis of advantages or disadvantages to the 

Government that might result from making 

more than one award (multiple awards). 

(1) In making this evaluation, the 

Contracting Officer will assume that the 

administrative cost to the Government for 

issuing and administering each contract 

awarded under this solicitation would be 

$500. 

(2) Individual awards will be for the items 

and combinations of items which result in 

the lowest aggregate cost to the Government, 

including the administrative costs in 

paragraph (b)(1). 

(c) When drayage is necessary for the 

accomplishment of any item in the bid 

schedule, the Offeror shall include in the 

unit price any costs for bridge or ferry tolls, 

road use charges or similar expenses. 

(d) Unless otherwise provided in this 

solicitation, the Offeror shall state prices in 

amounts per hundred pounds on gross or net 

weights, whichever is applicable. All charges 

shall be subject to, and payable on, the basis 

of 100 pounds minimum weight for 

unaccompanied baggage and a 500 pound 

minimum weight for household goods, net or 

gross weight, whichever is applicable. 

(e) Notwithstanding paragraph (a), when 

‘‘additional services’’ are added to any 

schedule, such ‘‘additional services’’ items 

will not be considered in the evaluation of 

bids. 

(End of provision) 

252.247–7015 [Removed and Reserved] 

■ 9. Remove and reserve section 

252.247–7015. 

■ 10. Amend section 252.247–7023 by— 

■ a. Revising the introductory text, 

clause title and date; 

■ b. In paragraph (a), removing the 

numerical paragraph designations of (1) 

through (7) for the definition 

paragraphs; and removing ‘‘foreign flag 

vessel’’ and adding ‘‘foreign-flag vessel’’ 

in its place. 

■ c. In paragraph (d), removing ‘‘for use 

of other than U.S.-flag vessels’’ and 

adding ‘‘for use of foreign-flag vessels’’ 

in its place. 

■ d. In paragraph (f) introductory text, 

removing ‘‘The Contractor shall’’ and 

adding ‘‘If this contract exceeds the 

simplified acquisition threshold, the 

Contractor shall’’ in its place; and in 

paragraphs (f)(3) and (4), removing 

‘‘non-U.S.-flag’’ and adding ‘‘foreignflag’’ in its place 

■ e. In paragraph (g), removing ‘‘If the 

final invoice’’ and adding ‘‘If this 

contract exceeds the simplified 

acquisition threshold and the final 

invoice’’ in its place; and removing 

‘‘non-U.S.-flag vessels’’ and adding 

‘‘foreign-flag vessels’’ in its place. 

■ f. Revising Alternate I and Alternate II; 

and 

■ g. Removing Alternate III. 

The revisions read as follows: 

252.247–7023 Transportation of Supplies 

by Sea. 

As prescribed in 247.574(b), use one 

of the following clauses: 

Basic. As prescribed in 247.574(b)(1), 

use the following clause. 

TRANSPORTATION OF SUPPLIES BY 

SEA—BASIC (APR 2014) 

* * * * * 

Alternate I. As prescribed in 

247.574(b)(2), use the following clause, 

which uses a different paragraph (b) 

than the basic clause. 

TRANSPORTATION OF SUPPLIES BY 

SEA—ALTERNATE I (APR 2014) 

(a) Definitions. As used in this clause— 

Components means articles, materials, and 

supplies incorporated directly into end 

products at any level of manufacture, 

fabrication, or assembly by the Contractor or 

any subcontractor. 

Department of Defense (DoD) means the 

Army, Navy, Air Force, Marine Corps, and 

defense agencies. 

Foreign-flag vessel means any vessel that is 

not a U.S.-flag vessel. 

Ocean transportation means any 

transportation aboard a ship, vessel, boat, 

barge, or ferry through international waters. 

Subcontractor means a supplier, 

materialman, distributor, or vendor at any 

level below the prime contractor whose 

contractual obligation to perform results 

from, or is conditioned upon, award of the 

prime contract and who is performing any 

part of the work or other requirement of the 

prime contract. 

Supplies means all property, except land 

and interests in land, that is clearly 

identifiable for eventual use by or owned by 

the DoD at the time of transportation by sea. 

(i) An item is clearly identifiable for 

eventual use by the DoD if, for example, the 

contract documentation contains a reference 

to a DoD contract number or a military 

destination. 

(ii) Supplies includes (but is not limited to) 

public works; buildings and facilities; ships; 

floating equipment and vessels of every 

character, type, and description, with parts, 

subassemblies, accessories, and equipment; 

machine tools; material; equipment; stores of 

all kinds; end items; construction materials; 

and components of the foregoing. 

U.S.-flag vessel means a vessel of the 

United States or belonging to the United 

States, including any vessel registered or 

having national status under the laws of the 

United States. 

(b)(1) The Contractor shall use U.S.-flag 

vessels when transporting any supplies by 

sea under this contract. 

(2) A subcontractor transporting supplies 

by sea under this contract shall use U.S.-flag 

vessels if the supplies being transported 

are— 

(i) Noncommercial items; or 

(ii) Commercial items that— 

(A) The Contractor is reselling or 

distributing to the Government without 

adding value (generally, the Contractor does 

not add value to items that it subcontracts for 

f.o.b. destination shipment); 

(B) Are shipped in direct support of U.S. 

military contingency operations, exercises, or 

forces deployed in humanitarian or 

peacekeeping operations (Note: This contract 

requires shipment of commercial items in 

direct support of U.S. military contingency 

operations, exercises, or forces deployed in 

humanitarian or peacekeeping operations); or 

(C) Are commissary or exchange cargoes 

transported outside of the Defense 

Transportation System in accordance with 10 

U.S.C. 2643. 

(c) The Contractor and its subcontractors 

may request that the Contracting Officer 

authorize shipment in foreign-flag vessels, or 

designate available U.S.-flag vessels, if the 

Contractor or a subcontractor believes that— 

(1) U.S.-flag vessels are not available for 

timely shipment; 

(2) The freight charges are inordinately 

excessive or unreasonable; or 

(3) Freight charges are higher than charges 

to private persons for transportation of like 

goods. 

(d) The Contractor must submit any request 

for use of foreign-flag vessels in writing to the 

Contracting Officer at least 45 days prior to 

the sailing date necessary to meet its delivery 

schedules. The Contracting Officer will 

process requests submitted after such date(s) 

as expeditiously as possible, but the 

Contracting Officer’s failure to grant 

approvals to meet the shipper’s sailing date 

will not of itself constitute a compensable 

delay under this or any other clause of this 

contract. Requests shall contain at a 

minimum— 

(1) Type, weight, and cube of cargo; 

(2) Required shipping date; 

(3) Special handling and discharge 

requirements; 

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22040 Federal Register / Vol. 79, No. 76 / Monday, April 21, 2014 / Rules and Regulations 

(4) Loading and discharge points; 

(5) Name of shipper and consignee; 

(6) Prime contract number; and 

(7) A documented description of efforts 

made to secure U.S.-flag vessels, including 

points of contact (with names and telephone 

numbers) with at least two U.S.-flag carriers 

contacted. Copies of telephone notes, 

telegraphic and facsimile message or letters 

will be sufficient for this purpose. 

(e) The Contractor shall, within 30 days 

after each shipment covered by this clause, 

provide the Contracting Officer and the 

Maritime Administration, Office of Cargo 

Preference, U.S. Department of 

Transportation, 400 Seventh Street SW., 

Washington, DC 20590, one copy of the rated 

on board vessel operating carrier’s ocean bill 

of lading, which shall contain the following 

information: 

(1) Prime contract number; 

(2) Name of vessel; 

(3) Vessel flag of registry; 

(4) Date of loading; 

(5) Port of loading; 

(6) Port of final discharge; 

(7) Description of commodity; 

(8) Gross weight in pounds and cubic feet 

if available; 

(9) Total ocean freight in U.S. dollars; and 

(10) Name of steamship company. 

(f) If this contract exceeds the simplified 

acquisition threshold, the Contractor shall 

provide with its final invoice under this 

contract a representation that to the best of 

its knowledge and belief— 

(1) No ocean transportation was used in the 

performance of this contract; 

(2) Ocean transportation was used and only 

U.S.-flag vessels were used for all ocean 

shipments under the contract; 

(3) Ocean transportation was used, and the 

Contractor had the written consent of the 

Contracting Officer for all foreign-flag ocean 

transportation; or 

(4) Ocean transportation was used and 

some or all of the shipments were made on 

foreign-flag vessels without the written 

consent of the Contracting Officer. The 

Contractor shall describe these shipments in 

the following format: 

Item description Contract line items Quantity 

TOTAL .....................

(g) If this contract exceeds the simplified 

acquisition threshold and the final invoice 

does not include the required representation, 

the Government will reject and return it to 

the Contractor as an improper invoice for the 

purposes of the Prompt Payment clause of 

this contract. In the event there has been 

unauthorized use of foreign-flag vessels in 

the performance of this contract, the 

Contracting Officer is entitled to equitably 

adjust the contract, based on the 

unauthorized use. 

(h) In the award of subcontracts for the 

types of supplies described in paragraph 

(b)(2) of this clause, including subcontracts 

for commercial items, the Contractor shall 

flow down the requirements of this clause as 

follows: 

(1) The Contractor shall insert the 

substance of this clause, including this 

paragraph (h), in subcontracts that exceed the 

simplified acquisition threshold in part 2 of 

the Federal Acquisition Regulation. 

(2) The Contractor shall insert the 

substance of paragraphs (a) through (e) of this 

clause, and this paragraph (h), in 

subcontracts that are at or below the 

simplified acquisition threshold in part 2 of 

the Federal Acquisition Regulation. 

(End of clause) 

Alternate II. As prescribed in 

247.574(b)(3), use the following clause, 

which uses a different paragraph (b) 

than the basic clause. 

TRANSPORTATION OF SUPPLIES BY 

SEA—ALTERNATE II (APR 2014) 

(a) Definitions. As used in this clause— 

Components means articles, materials, and 

supplies incorporated directly into end 

products at any level of manufacture, 

fabrication, or assembly by the Contractor or 

any subcontractor. 

Department of Defense (DoD) means the 

Army, Navy, Air Force, Marine Corps, and 

defense agencies. 

Foreign-flag vessel means any vessel that is 

not a U.S.-flag vessel. 

Ocean transportation means any 

transportation aboard a ship, vessel, boat, 

barge, or ferry through international waters. 

Subcontractor means a supplier, 

materialman, distributor, or vendor at any 

level below the prime contractor whose 

contractual obligation to perform results 

from, or is conditioned upon, award of the 

prime contract and who is performing any 

part of the work or other requirement of the 

prime contract. 

Supplies means all property, except land 

and interests in land, that is clearly 

identifiable for eventual use by or owned by 

the DoD at the time of transportation by sea. 

(i) An item is clearly identifiable for 

eventual use by the DoD if, for example, the 

contract documentation contains a reference 

to a DoD contract number or a military 

destination. 

(ii) Supplies includes (but is not limited to) 

public works; buildings and facilities; ships; 

floating equipment and vessels of every 

character, type, and description, with parts, 

subassemblies, accessories, and equipment; 

machine tools; material; equipment; stores of 

all kinds; end items; construction materials; 

and components of the foregoing. 

U.S.-flag vessel means a vessel of the 

United States or belonging to the United 

States, including any vessel registered or 

having national status under the laws of the 

United States. 

(b)(1) The Contractor shall use U.S.-flag 

vessels when transporting any supplies by 

sea under this contract. 

(2) A subcontractor transporting supplies 

by sea under this contract shall use U.S.-flag 

vessels if the supplies being transported 

are— 

(i) Noncommercial items; or 

(ii) Commercial items that— 

(A) The Contractor is reselling or 

distributing to the Government without 

adding value (generally, the Contractor does 

not add value to items that it subcontracts for 

f.o.b. destination shipment); 

(B) Are shipped in direct support of U.S. 

military contingency operations, exercises, or 

forces deployed in humanitarian or 

peacekeeping operations; or 

(C) Are commissary or exchange cargoes 

transported outside of the Defense 

Transportation System in accordance with 10 

U.S.C. 2643 (Note: This contract requires 

transportation of commissary or exchange 

cargoes outside of the Defense Transportation 

System in accordance with 10 U.S.C. 2643). 

(c) The Contractor and its subcontractors 

may request that the Contracting Officer 

authorize shipment in foreign-flag vessels, or 

designate available U.S.-flag vessels, if the 

Contractor or a subcontractor believes that— 

(1) U.S.-flag vessels are not available for 

timely shipment; 

(2) The freight charges are inordinately 

excessive or unreasonable; or 

(3) Freight charges are higher than charges 

to private persons for transportation of like 

goods. 

(d) The Contractor must submit any request 

for use of foreign-flag vessels in writing to the 

Contracting Officer at least 45 days prior to 

the sailing date necessary to meet its delivery 

schedules. The Contracting Officer will 

process requests submitted after such date(s) 

as expeditiously as possible, but the 

Contracting Officer’s failure to grant 

approvals to meet the shipper’s sailing date 

will not of itself constitute a compensable 

delay under this or any other clause of this 

contract. Requests shall contain at a 

minimum— 

(1) Type, weight, and cube of cargo; 

(2) Required shipping date; 

(3) Special handling and discharge 

requirements; 

(4) Loading and discharge points; 

(5) Name of shipper and consignee; 

(6) Prime contract number; and 

(7) A documented description of efforts 

made to secure U.S.-flag vessels, including 

points of contact (with names and telephone 

numbers) with at least two U.S.-flag carriers 

contacted. Copies of telephone notes, 

telegraphic and facsimile message or letters 

will be sufficient for this purpose. 

(e) The Contractor shall, within 30 days 

after each shipment covered by this clause, 

provide the Contracting Officer and the 

Maritime Administration, Office of Cargo 

Preference, U.S. Department of 

Transportation, 400 Seventh Street SW., 

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Federal Register / Vol. 79, No. 76 / Monday, April 21, 2014 / Rules and Regulations 22041 

Washington, DC 20590, one copy of the rated 

on board vessel operating carrier’s ocean bill 

of lading, which shall contain the following 

information: 

(1) Prime contract number; 

(2) Name of vessel; 

(3) Vessel flag of registry; 

(4) Date of loading; 

(5) Port of loading; 

(6) Port of final discharge; 

(7) Description of commodity; 

(8) Gross weight in pounds and cubic feet 

if available; 

(9) Total ocean freight in U.S. dollars; and 

(10) Name of steamship company. 

(f) If this contract exceeds the simplified 

acquisition threshold, the Contractor shall 

provide with its final invoice under this 

contract a representation that to the best of 

its knowledge and belief— 

(1) No ocean transportation was used in the 

performance of this contract; 

(2) Ocean transportation was used and only 

U.S.-flag vessels were used for all ocean 

shipments under the contract; 

(3) Ocean transportation was used, and the 

Contractor had the written consent of the 

Contracting Officer for all foreign-flag ocean 

transportation; or 

(4) Ocean transportation was used and 

some or all of the shipments were made on 

foreign-flag vessels without the written 

consent of the Contracting Officer. The 

Contractor shall describe these shipments in 

the following format: 

Item description Contract line items Quantity 

TOTAL .....................

(g) If this contract exceeds the simplified 

acquisition threshold and the final invoice 

does not include the required representation, 

the Government will reject and return it to 

the Contractor as an improper invoice for the 

purposes of the Prompt Payment clause of 

this contract. In the event there has been 

unauthorized use of foreign-flag vessels in 

the performance of this contract, the 

Contracting Officer is entitled to equitably 

adjust the contract, based on the 

unauthorized use. 

(h) In the award of subcontracts for the 

types of supplies described in paragraph 

(b)(2) of this clause, including subcontracts 

for commercial items, the Contractor shall 

flow down the requirements of this clause as 

follows: 

(1) The Contractor shall insert the 

substance of this clause, including this 

paragraph (h), in subcontracts that exceed the 

simplified acquisition threshold in part 2 of 

the Federal Acquisition Regulation. 

(2) The Contractor shall insert the 

substance of paragraphs (a) through (e) of this 

clause, and this paragraph (h), in 

subcontracts that are at or below the 

simplified acquisition threshold in part 2 of 

the Federal Acquisition Regulation. 

(End of clause) 

[FR Doc. 2014–08855 Filed 4–18–14; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 252 

RIN 0750–AI18 

Defense Federal Acquisition 

Regulation Supplement: Photovoltaic 

Devices (DFARS Case 2014–D006) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD has adopted as final, 

without change, an interim rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to clarify rules of origin under 

trade agreements for photovoltaic 

devices to be utilized under covered 

DoD contracts, as required by a section 

of the National Defense Authorization 

Act for Fiscal Year 2011. 

DATES: Effective April 21, 2014. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Amy G. Williams, telephone 571–372– 

6106. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD published an interim rule in the 

Federal Register at 78 FR 76993 on 

December 20, 2013, to clarify rules of 

origin under trade agreements for 

photovoltaic devices to be utilized 

under covered DoD contracts, as 

required by a section of the National 

Defense Authorization Act for Fiscal 

Year 2011. One respondent submitted a 

public comment in response to the 

interim rule. 

II. Discussion and Analysis 

DoD reviewed the public comment in 

the development of the final rule. The 

interim rule was converted to a final 

rule without change. The one comment 

received related to performance of a net 

zero green house gas analysis, and was 

outside the scope of the rule. 

III. 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. 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 this rule will only have an 

impact on the determination of whether 

photovoltaic devices are substantially 

transformed in a designated country. No 

domestic entities will be impacted 

because the United States is not a 

designated country. For the definition of 

‘‘small business,’’ the Regulatory 

Flexibility Act refers to the Small 

Business Act, which in turn allows the 

U.S. Small Business Administration 

(SBA) Administrator to specify detailed 

definitions or standards (5 U.S.C. 601(3) 

and 15 U.S.C. 632(a)). The SBA 

regulations at 13 CFR 121.105 discuss 

who is a small business: ‘‘(a)(1) Except 

for small agricultural cooperatives, a 

business concern eligible for assistance 

from SBA as a small business is a 

business entity organized for profit, 

with a place of business located in the 

United States, and which operates 

primarily within the United States or 

which makes a significant contribution 

to the U.S. economy through payment of 

taxes or use of American products, 

materials or labor. 

V. Paperwork Reduction Act 

The rule contains 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); 

however, these changes to the DFARS 

do not impose additional information 

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