58142 Federal Register / Vol. 76, No. 182 / Tuesday, September 20, 2011 / Rules and Regulations 

NAICS code referenced for this solicitation), 

as of the date of this offer, and are 

incorporated in this offer by reference (see 

FAR 4.1201); except for the changes 

identified below [offeror to insert changes, 

identifying change by provision number, title, 

date]. These amended representation(s) and/ 

or certification(s) are also incorporated in 

this offer and are current, accurate, and 

complete as of the date of this offer. 

FAR/DFARS provision No. Title Date Change 

Any changes provided by the offeror are 

applicable to this solicitation only, and do 

not result in an update to the representations 

and certifications posted on ORCA. 

(End of provision) 

[FR Doc. 2011–23947 Filed 9–19–11; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 211 and 252 

RIN 0750–AH05 

Defense Federal Acquisition 

Regulation Supplement; Passive Radio 

Frequency Identification (DFARS Case 

2010–D014) 

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 update requirements 

relating to the use of passive radio 

frequency identification (RFID). 

DATES: Effective Date: September 20, 

2011. 

FOR FURTHER INFORMATION CONTACT: 

Dustin Pitsch, telephone 703–602–0289. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD published a proposed rule in the 

Federal Register at 76 FR 9714 on 

February 26, 2011, in response to a 

request of the Office of Logistics and 

Materiel Readiness of the Office of the 

Secretary of Defense (Acquisition, 

Technology, and Logistics) to update 

requirements relating to the use of 

passive radio frequency identification 

(RFID). 

II. Discussion and Analysis 

DoD received comments from two 

respondents in response to the proposed 

rule. One respondent expressed general 

support for the rule. 

Comment: A respondent stated that 

RFID tags will play an expanded role in 

inventory management and asset 

protection for the DoD and expanded 

use should occur soon. 

Response: DoD agrees that RFID use 

in inventory management is expanding 

and will continue to expand. 

Comment: A respondent stated that 

RFID tracking is not the current industry 

standard for inventory management of 

pharmaceuticals and that adding this 

requirement would cost the suppliers 

and DoD a significant amount of time 

and money to implement. This 

respondent believes that the current use 

of 2D barcodes is sufficient for tracking 

pharmaceuticals and that the DoD 

should not require the use of passive 

RFID. 

Response: DoD agrees and the final 

rule does not include a requirement for 

passive RFID use for pharmaceuticals. 

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 a significant 

regulatory action and, therefore, was 

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 has prepared a Final Regulatory 

Flexibility Analysis (FRFA) consistent 

with the Regulatory Flexibility Act, 

5 U.S.C. 601, et seq. The FRFA is 

summarized as follows. 

The DFARS previously listed 

approximately 20 specific DoD activity 

addresses and provides the authority for 

using other ship-to locations ‘‘outside 

the contiguous United States’’ under 

certain circumstances. However, the 

Defense Logistics Agency and the Navy 

proposed adding more than 200 

additional sites, making it impracticable 

to list all DoD passive RFID addresses in 

the DFARS text or its associated clause. 

Instead, this rule adds a Web site for 

contractors to find the RFID Identifier 

for each specific DoD ship-to address 

that uses RFID technology. Including 

the Web site in the DFARS has the 

added benefit of enabling the addition 

of new ship-to addresses in the future as 

necessary without the need to revise the 

DFARS in each case. This final rule 

amends the revised, shortened list of 

ship-to addresses at DFARS 211.275– 

2(a)(2) to allow contracting officers to 

add tagging requirements to contract 

deliverables shipping to DoDAACs not 

specifically included in the list as they 

deem necessary. 

The current OMB information 

collection justification for the clause 

associated with the current DFARS, 

252.211–7006, entitled ‘‘Radio 

Frequency Identification,’’ lists the 

number of contractors impacted by the 

RFID requirement as 25,500. While each 

contractor has multiple submissions 

(one for each shipment), it takes only 

1.12 seconds per response. The rule 

changes impact, if any, should decrease 

the response time and not increase it. 

V. Paperwork Reduction Act 

There are information collection 

requirements associated with the use of 

RFIDs. However, there will be no 

substantive change to the existing 

information collection requirements 

currently approved under OMB 

Information Control Number 0704– 

0434, DFARS; Radio Frequency 

Identification Advance Shipment 

Notices. Therefore, DoD has determined 

that the final rule has no material 

impact on the approved collection. 

List of Subjects in 48 CFR Parts 211 and 

252 

Government procurement. 

Mary Overstreet, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR parts 211 and 252 

are amended as follows: 

■ 1. The authority citation for 48 CFR 

parts 211 and 252 continues to read as 

follows: 

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

chapter 1. 


sroberts on DSK5SPTVN1PROD with RULES
Federal Register / Vol. 76, No. 182 / Tuesday, September 20, 2011 / Rules and Regulations 58143 

PART 211—DESCRIBING AGENCY 

NEEDS 

■ 2. The section heading for section 

211.275 is revised to read as follows: 

211.275 Passive radio frequency 

identification. 

211.275–1 [Amended] 

■ 3. Section 211.275–1 is amended to 

add the word ‘‘Passive’’ before the 

phrase ‘‘Radio Frequency 

Identification’’. 

■ 4. Section 211.275–2 is amended to— 

■ a. Revise paragraph (a) introductory 

text; and 

■ b. Revise paragraph (a)(2). 

The revisions read as follows: 

211.275–2 Policy. 

(a) Except as provided in paragraph 

(b) of this section, radio frequency 

identification (RFID), in the form of a 

passive RFID tag, is required for cases 

and palletized unit loads packaging 

levels and any additional consolidation 

level(s) deemed necessary by the 

requiring activity for shipments of items 

that— 

* * * * * 

(2) Will be shipped to one of the 

locations listed at http:// 

www.acq.osd.mil/log/rfid/ or to— 

(i) A location outside the contiguous 

United States when the shipment has 

been assigned Transportation Priority 1; 

or 

(ii) Any additional location(s) deemed 

necessary by the requiring activity. 

* * * * * 

■ 5. Section 211.275–3 is revised to read 

as follows: 

211.275–3 Contract clause. 

Use the clause at 252.211–7006, 

Passive Radio Frequency Identification, 

in solicitations and contracts that will 

require shipment of items meeting the 

criteria at 211.275–2, and complete 

paragraph (b)(1)(ii) of the clause at 

252.211–7006 as appropriate. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 6. Section 252.211–7006 is revised to 

read as follows: 

252.211–7006 Passive Radio Frequency 

Identification. 

As prescribed in 211.275–3, use the 

following clause: 

Passive Radio Frequency Identification (SEP 

2011) 

(a) Definitions. As used in this clause— 

Advance shipment notice means an 

electronic notification used to list the 

contents of a shipment of goods as well as 

additional information relating to the 

shipment, such as passive radio frequency 

identification (RFID) or item unique 

identification (IUID) information, order 

information, product description, physical 

characteristics, type of packaging, marking, 

carrier information, and configuration of 

goods within the transportation equipment. 

Bulk commodities means the following 

commodities, when shipped in rail tank cars, 

tanker trucks, trailers, other bulk wheeled 

conveyances, or pipelines: 

(1) Sand. 

(2) Gravel. 

(3) Bulk liquids (water, chemicals, or 

petroleum products). 

(4) Ready-mix concrete or similar 

construction materials. 

(5) Coal or combustibles such as firewood. 

(6) Agricultural products such as seeds, 

grains, or animal feed. 

Case means either a MIL–STD–129 defined 

exterior container within a palletized unit 

load or a MIL–STD–129 defined individual 

shipping container. 

Electronic Product CodeTM (EPC®) means 

an identification scheme for universally 

identifying physical objects via RFID tags and 

other means. The standardized EPCTM data 

consists of an EPCTM (or EPCTM identifier) 

that uniquely identifies an individual object, 

as well as an optional filter value when 

judged to be necessary to enable effective and 

efficient reading of the EPCTM tags. In 

addition to this standardized data, certain 

classes of EPCTM tags will allow user-defined 

data. The EPCTM Tag Data Standards will 

define the length and position of this data, 

without defining its content. 

EPCglobal® means a subscriber-driven 

organization comprised of industry leaders 

and organizations focused on creating global 

standards for the adoption of passive RFID 

technology. 

Exterior container means a MIL–STD–129 

defined container, bundle, or assembly that 

is sufficient by reason of material, design, 

and construction to protect unit packs and 

intermediate containers and their contents 

during shipment and storage. It can be a unit 

pack or a container with a combination of 

unit packs or intermediate containers. An 

exterior container may or may not be used as 

a shipping container. 

Palletized unit load means a MIL–STD–129 

defined quantity of items, packed or 

unpacked, arranged on a pallet in a specified 

manner and secured, strapped, or fastened on 

the pallet so that the whole palletized load 

is handled as a single unit. A palletized or 

skidded load is not considered to be a 

shipping container. A loaded 463L System 

pallet is not considered to be a palletized 

unit load. Refer to the Defense Transportation 

Regulation, DoD 4500.9–R, Part II, Chapter 

203, for marking of 463L System pallets. 

Passive RFID tag means a tag that reflects 

energy from the reader/interrogator or that 

receives and temporarily stores a small 

amount of energy from the reader/ 

interrogator signal in order to generate the tag 

response. The only acceptable tags are EPC 

Class 1 passive RFID tags that meet the 

EPCglobalTM Class 1 Generation 2 standard. 

Radio frequency identification (RFID) 

means an automatic identification and data 

capture technology comprising one or more 

reader/interrogators and one or more radio 

frequency transponders in which data 

transfer is achieved by means of suitably 

modulated inductive or radiating 

electromagnetic carriers. 

Shipping container means a MIL–STD–129 

defined exterior container that meets carrier 

regulations and is of sufficient strength, by 

reason of material, design, and construction, 

to be shipped safely without further packing 

(e.g., wooden boxes or crates, fiber and metal 

drums, and corrugated and solid fiberboard 

boxes). 

(b)(1) Except as provided in paragraph 

(b)(2) of this clause, the Contractor shall affix 

passive RFID tags, at the case- and palletizedunit-load packaging levels, for shipments of 

items that— 

(i) Are in any of the following classes of 

supply, as defined in DoD 4140.1–R, DoD 

Supply Chain Materiel Management 

Regulation, AP1.1.11: 

(A) Subclass of Class I—Packaged 

operational rations. 

(B) Class II—Clothing, individual 

equipment, tentage, organizational tool kits, 

hand tools, and administrative and 

housekeeping supplies and equipment. 

(C) Class IIIP—Packaged petroleum, 

lubricants, oils, preservatives, chemicals, and 

additives. 

(D) Class IV—Construction and barrier 

materials. 

(E) Class VI—Personal demand items (nonmilitary sales items). 

(F) Subclass of Class VIII—Medical 

materials (excluding pharmaceuticals, 

biologicals, and reagents—suppliers should 

limit the mixing of excluded and nonexcluded materials). 

(G) Class IX—Repair parts and components 

including kits, assemblies and subassemblies, 

reparable and consumable items required for 

maintenance support of all equipment, 

excluding medical-peculiar repair parts; and 

(ii) Are being shipped to one of the 

locations listed at http://www.acq.osd.mil/ 

log/rfid/ or to— 

(A) A location outside the contiguous 

United States when the shipment has been 

assigned Transportation Priority 1, or to— 

(B) The following location(s) deemed 

necessary by the requiring activity: 


sroberts on DSK5SPTVN1PROD with RULES
58144 Federal Register / Vol. 76, No. 182 / Tuesday, September 20, 2011 / Rules and Regulations 

Contract line, subline, or 

exhibit line item number Location name City State DoDAAC 

(2) The following are excluded from the 

requirements of paragraph (b)(1) of this 

clause: 

(i) Shipments of bulk commodities. 

(ii) Shipments to locations other than 

Defense Distribution Depots when the 

contract includes the clause at FAR 52.213– 

1, Fast Payment Procedures. 

(c) The Contractor shall— 

(1) Ensure that the data encoded on each 

passive RFID tag are globally unique (i.e., the 

tag ID is never repeated across two or more 

RFID tags) and conforms to the requirements 

in paragraph (d) of this clause; 

(2) Use passive tags that are readable; and 

(3) Ensure that the passive tag is affixed at 

the appropriate location on the specific level 

of packaging, in accordance with MIL–STD– 

129 (Section 4.9.2) tag placement 

specifications. 

(d) Data syntax and standards. The 

Contractor shall encode an approved RFID 

tag using the instructions provided in the 

EPCTM Tag Data Standards in effect at the 

time of contract award. The EPCTM Tag Data 

Standards are available at http:// 

www.epcglobalinc.org/standards/. 

(1) If the Contractor is an EPCglobalTM

subscriber and possesses a unique EPCTM

company prefix, the Contractor may use any 

of the identifiers and encoding instructions 

described in the most recent EPCTM Tag Data 

Standards document to encode tags. 

(2) If the Contractor chooses to employ the 

DoD identifier, the Contractor shall use its 

previously assigned Commercial and 

Government Entity (CAGE) code and shall 

encode the tags in accordance with the tag 

identifier details located at http:// 

www.acq.osd.mil/log/rfid/tag_data.htm. If 

the Contractor uses a third-party packaging 

house to encode its tags, the CAGE code of 

the third-party packaging house is 

acceptable. 

(3) Regardless of the selected encoding 

scheme, the Contractor with which the 

Department holds the contract is responsible 

for ensuring that the tag ID encoded on each 

passive RFID tag is globally unique, per the 

requirements in paragraph (c)(1) of this 

clause. 

(e) Advance shipment notice. The 

Contractor shall use Wide Area WorkFlow 

(WAWF), as required by DFARS 252.232– 

7003, Electronic Submission of Payment 

Requests, to electronically submit advance 

shipment notice(s) with the RFID tag ID(s) 

(specified in paragraph (d) of this clause) in 

advance of the shipment in accordance with 

the procedures at https://wawf.eb.mil/. 

(End of clause) 

[FR Doc. 2011–23945 Filed 9–19–11; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 212, 227, and 252 

RIN 0750–AF84 

Defense Federal Acquisition 

Regulation Supplement; Presumption 

of Development Exclusively at Private 

Expense (DFARS Case 2007–D003) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is issuing a final rule to 

amend the Defense Federal Acquisition 

Regulation Supplement to implement 

sections of the Fiscal Year (FY) 2007 

and 2008 National Defense 

Authorization Act, including special 

requirements and procedures related to 

the validation of a contractor’s or 

subcontractor’s asserted restrictions on 

technical data and computer software. 

DATES: Effective date: September 20, 

2011. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Manuel Quinones, 703–602–8383. 

SUPPLEMENTARY INFORMATION: 

I. Background 

This final rule amends the Defense 

Federal Acquisition Regulation 

Supplement (DFARS) to implement 

section 802(b) of the FY 2007 National 

Defense Authorization Act (NDAA) 

(Pub. L. 109–364) and section 815 of the 

FY 2008 NDAA (Pub. L. 110–181). 

Section 802(b) modified 10 U.S.C. 

2321(f)(2) with regard to the 

presumption of development at private 

expense for major systems. Section 815 

revised 10 U.S.C. 2321(f)(2) to exempt 

commercially available off-the-shelf 

items from the requirements that section 

802(b) established for major systems. 

This final rule implements special 

requirements and procedures related to 

the validation of a contractor’s or 

subcontractor’s asserted restrictions on 

technical data and computer software. 

More specifically, the final rule affects 

these validation procedures in the 

context of two special categories of 

items: Commercial items (including 

commercially available off-the-shelf 

items), which may be referred to as the 

‘‘Commercial Rule;’’ and major systems 

(including subsystems and components 

of major systems), which may be 

referred to as the ‘‘Major Systems Rule.’’ 

DoD published a proposed rule with 

a request for comments in the Federal 

Register on May 7, 2010 (75 FR 25161). 

Two respondents provided comments. 

II. Discussion and Analysis of the 

Public Comments 

A discussion of the comments and the 

changes made to the rule as a result of 

those comments are provided as 

follows. 

A. Prescribing a Noncommercial Clause 

for Technical Data Related to a 

Commercial Item 

Comment: Two respondents described 

the prescriptions at DFARS 227.7102– 

3(b) and 227.7103–6(a) as new 

requirements that exceed the changes 

necessary to implement the statute. 

Response: The operative elements of 

the clause prescription at DFARS 

227.7102–3(b) were a part of the last 

major revision of Part 227 in 1995. The 

substance of the prescription has not 

changed in the proposed rule; the 

requirement was redesignated as DFARS 

227.7102–(4)(b) and revised to crossreference the prescription added to 

DFARS 227.7103–6(a). This follows 

DFARS drafting principles to use only a 

single prescription for each clause, 

using cross-references when necessary. 

As such, the prescription at DFARS 

227.7103–6(a) serves as the primary 

source for prescribing all uses of the 

clause at DFARS 252.227–7013, with a 

cross-reference at 227.7102–(4)(b). 

Comment: A respondent 

recommended that the criteria ‘‘or will 

pay any portion of the development 

costs’’ should be eliminated because the 

Government should not receive the 

benefit of something it may or may not 

pay for in the future outside of the 

contract. 

Response: The ‘‘will pay’’ criterion 

has been used since 1995. The term 

‘‘will’’ is used to denote an anticipated 

future action or result, and there is no 

evidence that this criterion has been or 

should be interpreted as seeking to be 

used in a contract when the criteria 

used to invoke the clause has not, and 

is not, expected to occur during the 

contract. 


sroberts on DSK5SPTVN1PROD with RULES