80468 Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Proposed Rules 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 203, 204, 212, and 215 

[Docket DARS–2023–0043; Req No. DARS– 

2024–00011–FR] 

RIN 0750–AK33 

Defense Federal Acquisition 

Regulation Supplement: Inapplicability 

of Additional Defense-Unique Laws 

and Certain Non-Statutory DFARS 

Clauses to Commercial Item Contracts 

(DFARS Case 2018–D074) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule. 

SUMMARY: DoD is proposing to amend 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

implement sections of the National 

Defense Authorization Acts for Fiscal 

Years 2018 and 2019 regarding 

applicability of certain solicitation 

provisions and contract clauses to 

contracts and subcontracts for 

commercial products, commercial 

services, and commercially available 

off-the-shelf items. 

DATES: Comments on the proposed rule 

should be submitted in writing to the 

address shown below on or before 

January 16, 2024, to be considered in 

the formation of a final rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2018–D074, 

using either of the following methods: 

Æ Federal eRulemaking Portal: https:// 

www.regulations.gov. Search for 

‘‘DFARS Case 2018–D074’’. Select 

‘‘Comment’’ and follow the instructions 

to submit a comment. Please include 

‘‘DFARS Case 2018–D074’’ on any 

attached documents. 

Æ Email: osd.dfars@mail.mil. Include 

DFARS Case 2018–D074 in the subject 

line of the message. 

Comments received generally will be 

posted without change to https://

www.regulations.gov, including any 

personal information provided. To 

confirm receipt of your comment(s), 

please check https://

www.regulations.gov, approximately 

two to three days after submission to 

verify posting. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Jeanette Snyder, telephone 703–508– 

7524. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD is proposing to amend the 

DFARS to implement paragraphs (b) and 

(c) of section 849 of the National 

Defense Authorization Act (NDAA) for 

Fiscal Year (FY) 2018 (Pub. L. 115–91). 

Section 849 paragraph (b) requires that 

DoD review the DFARS and propose 

revisions to eliminate certain contract 

clause requirements applicable to 

Federal Acquisition Regulation (FAR) 

part 12 commercial product and 

commercial service acquisitions, except 

for regulations required by law or 

Executive order, unless the Secretary of 

Defense determines that there is a 

specific reason not to eliminate the 

regulation. Section 849 paragraph (c) 

requires that DoD review the DFARS 

and propose revisions to eliminate 

certain contract clause requirements 

applicable to commercially available 

off-the-shelf (COTS) item subcontracts, 

except for regulations required by law or 

Executive order, unless the Secretary of 

Defense determines that there is a 

specific reason not to eliminate the 

regulation. 

DoD also proposes to amend the 

DFARS to implement paragraph (a) of 

section 837 of the NDAA for FY 2019 

(Pub. L. 115–232). Section 837 

paragraph (a) revises 10 U.S.C. 

2375(b)(2), redesignated as 10 U.S.C. 

3452(b)(2), by deleting the date ‘‘January 

1, 2015’’ and adding the date ‘‘October 

13, 1994’’ (the date of the Federal 

Acquisition Streamlining Act (FASA) of 

1994). See companion DFARS case 

2017–D010 proposed rule, published in 

the Federal Register at 83 FR 30646 on 

June 29, 2018, which examined 

commercial product and commercial 

service applicability for DoD-unique 

statutes and associated contract clauses 

issued on or after January 1, 2015. This 

proposed rule under DFARS Case 2018– 

D074 implements the section 837(a) 

change to 10 U.S.C. 3452(b)(2) to extend 

the required review of applicability of 

provisions of law or contract clauses to 

prime contracts for commercial 

products and commercial services 

enacted after October 13, 1994. 

Paragraphs (c)(2) and (d)(2) of 10 U.S.C. 

3452 contain similar requirements for 

subcontracts for commercial products 

and commercial services, and contracts 

for COTS items; however, the date of 

October 13, 1994, is not repeated in 

these sections. Following the precedent 

set in DFARS Case 2017–D010, for this 

proposed rule DoD has interpreted the 

date of October 13, 1994, as equally 

applicable to all three paragraphs, (b)(2), 

(c)(2), and (d)(2), since all three 

paragraphs are inter-related. 

It should be noted that a clause that 

is inapplicable to a contract for 

commercial products is also 

inapplicable to a contract for COTS 

items, which are commercial products, 

but a clause that is applicable to a 

contract for commercial products may 

be inapplicable to a contract for COTS 

items. The reason for this distinction is 

because a COTS item, while a subset of 

commercial products, is unique in that 

it is offered to the Government without 

modification and in the same form in 

which it is sold in the commercial 

marketplace. 

II. Discussion and Analysis 

DoD identified the DFARS solicitation 

provisions and contract clauses 

published as interim or final rules after 

October 13, 1994, excluding those 

reviewed under DFARS case 2017– 

D010, and determined whether the 

provisions and clauses were based on 

statute, Executive order, or policy. New 

interim or final rules published after the 

publication of DFARS case 2017–D010 

on June 29, 2018, were also identified 

and evaluated under this proposed rule. 

Provisions and clauses listed at DFARS 

section 212.301 as applicable to the 

acquisition of commercial products and 

commercial services were included in 

the review. 

The proposed rule adds to the list of 

inapplicable provisions and clauses at 

DFARS 212.370, Inapplicability of 

Certain Provisions and Clauses to 

Contracts and Subcontracts for the 

Acquisition of Commercial Products, 

Commercial Services, and Commercially 

Available Off-the-shelf Items, two 

provisions and one clause that are 

removed from paragraph (f) at DFARS 

212.301, Solicitation Provisions and 

Contract Clauses for the Acquisition of 

Commercial Products and Commercial 

Services. These provisions and clause 

will no longer be applicable to contracts 

and subcontracts for the acquisition of 

commercial products, commercial 

services, and COTS items: 

• DFARS 252.203–7003, Agency 

Office of the Inspector General. 

• DFARS 252.203–7005, 

Representation Relating to 

Compensation of Former DoD Officials. 

• DFARS 252.215–7007, Notice of 

Intent to Resolicit. 

The proposed rule updates the text at 

DFARS 212.371, Inapplicability of 

Certain Provisions and Clauses to 

Contracts for the Acquisition of 

Commercially Available Off-the-shelf 

Items, to conform to the change at 10 

U.S.C. 3452(b)(2) by replacing the date 

of January 1, 2015, with October 13, 

1994. In addition, two provisions and 

two clauses, listed at DFARS 212.301, 


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are included on the list at DFARS 

212.371. This means that although these 

provisions and clauses are applicable to 

contracts for the acquisition of 

commercial products and commercial 

services, they are not applicable to 

contracts for the acquisition of COTS 

items: 

• 252.204–7008, Compliance with 

Safeguarding Covered Defense 

Information Controls. 

• 252.204–7019, Notice of NIST SP 

800–171 DoD Assessment 

Requirements. 

• 252.204–7020, NIST SP 800–171 

DoD Assessment Requirements. 

• 252.204–7021, Cybersecurity 

Maturity Model Certification 

Requirements. 

The proposed rule revises the 

following prescriptions for two 

provisions and one clause to remove the 

requirement to include the provisions 

and clause in solicitations using FAR 

part 12 procedures for the acquisition of 

commercial products and commercial 

services: 

• The prescription at DFARS 

203.171–4(b) for the provision at DFARS 

252.203–7005, Representation Relating 

to Compensation of Former DoD 

Officials. 

• The prescription at DFARS 

203.1004(a) for the clause at DFARS 

252.203–7003, Agency Office of the 

Inspector General. 

• The prescription at DFARS 

215.371–6, for the provision at DFARS 

252.215–7007, Notice of Intent to 

Resolicit. 

DFARS 204.7403(b) is amended to 

add the phrase ‘‘that involve litigation 

support services’’ to clarify the 

application of the clause at 252.204– 

7015, Notice of Authorized Disclosure 

of Information for Litigation Support. At 

DFARS 212.301, the list of provisions 

and clauses under paragraph (f) is 

amended to add statutory references or 

expand on the existing references cited 

for several clauses and provisions. 

Section 212.504, Applicability of 

Certain Laws to Subcontracts for the 

Acquisition of Commercial Products 

and Commercial Services, is amended to 

remove the reference to 10 U.S.C. 4871, 

Reporting Requirement Regarding 

Dealings with Terrorist Countries, 

which is obsolete. The reporting 

requirement expired on September 30, 

1996. 

For this proposed rule, DoD evaluated 

solicitation provisions or contract 

clauses in relation to 10 U.S.C. 3452 

(e)(1), (e)(2), and (e)(3), i.e., those that 

implement a statute that provides for 

criminal or civil penalties, implement 

10 U.S.C. 4862 or 4863, or implement 

statutes that specifically referred to 10 

U.S.C. 3452 and provided for 

applicability to contracts for commercial 

products and commercial services. DoD 

also identified pre-FASA provisions and 

clauses. A list of those provisions and 

clauses follows this paragraph. No 

provisions or clauses were identified as 

implementing statutes that specifically 

referred to 10 U.S.C. 3452. 

The following provisions and clauses 

implement statutes that provide for 

criminal or civil penalties: 

• 252.203–7000, Requirements 

Relating to Compensation of Former 

DoD Officials. 

• 252.203–7002, Requirement to 

Inform Employees of Whistleblower 

Rights. 

• 252.246–7007, Contractor 

Counterfeit Electronic Part Detection 

and Avoidance System. (Applies to 

subcontracts.) 

• 252.246–7008, Sources of Electronic 

Parts. 

• 252.247–7027, Riding Gang Member 

Requirements. 

The following provisions and clauses 

implement 10 U.S.C. 4862 or 4863: 

• 252.225–7006, Acquisition of the 

American Flag. 

• 252.225–7008, Restriction on 

Acquisition of Specialty Metals. 

• 252.225–7009, Restriction on 

Acquisition of Certain Articles 

Containing Specialty Metals. 

• 252.225–7010, Commercial 

Derivative Military Article-Specialty 

Metals Compliance Certificate. 

• 252.225–7012, Preference for 

Certain Domestic Commodities. 

• 252.225–7015, Restriction on 

Acquisition of Hand or Measuring 

Tools. 

• 252.225–7029, Acquisition of 

Uniform Components for Afghan 

Military or Afghan National Police. 

The following clauses existed prior to 

FASA (i.e., before October 14, 1994). 

• 252.205–7000, Provision of 

Information to Cooperative Agreement 

Holders. 

• 252.219–7003, Small Business 

Subcontracting Plan (DoD Contracts). 

• 252.225–7001, Buy American and 

Balance of Payments Program. 

• 252.247–7023, Transportation of 

Supplies by Sea. 

• 252.247–7025, Reflagging or Repair 

Work. 

III. Applicability to Contracts at or 

Below the Simplified Acquisition 

Threshold (SAT), for Commercial 

Products, Including Commercially 

Available Off-the-Shelf (COTS) Items, 

and for Commercial Services 

This proposed rule does not create 

any new solicitation provisions or 

contract clauses. However, the proposed 

rule proposes to change to the 

applicability of the following provisions 

and clause by making them inapplicable 

to contracts and subcontracts for the 

acquisition of commercial products, 

commercial services, and COTS items: 

(1) 252.203–7003, Agency Office of the 

Inspector General; (2) 252.203–7005, 

Representation Relating to 

Compensation of Former DoD Officials; 

and (3) 252.215–7007, Notice of Intent 

to Resolicit. 

IV. Expected Impact of the Proposed 

Rule 

This proposed rule, when finalized, 

could impact any large or small 

business that is awarded a commercial 

contract by DoD. The proposed rule 

does not add any new solicitation 

provisions or contract clauses. Rather, 

there may be a reduction in burden on 

contractors by making two solicitation 

provisions and one contract clause no 

longer applicable to solicitations and 

contracts for commercial products, 

commercial services, and COTS items. 

V. 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, as amended. 

VI. Regulatory Flexibility Act 

DoD does not expect this proposed 

rule, when finalized, 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. 

However, an initial regulatory flexibility 

analysis has been performed and is 

summarized as follows: 

DoD is proposing to amend the 

Defense Federal Acquisition Regulation 

Supplement (DFARS) to implement 

sections of the National Defense 

Authorization Act (NDAA) for Fiscal 

Year (FY) 2018 and the NDAA for FY 

2019 regarding applicability of certain 

solicitation provisions and contract 

clauses to contracts and subcontracts for 

commercial products, commercial 


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80470 Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Proposed Rules 

services, and commercially available 

off-the-shelf (COTS) items. 

The objective of this proposed rule is 

to implement paragraphs (b) and (c) of 

section 849 of the NDAA for FY 2018 

(Pub. L. 115–91). Section 849 paragraph 

(b) requires an amendment to the 

DFARS to eliminate certain contract 

clause requirements applicable to FAR 

part 12 commercial product and 

commercial service acquisitions, except 

for regulations required by law or 

Executive order, unless the Secretary of 

Defense determines that there is a 

specific reason not to eliminate the 

regulation. Section 849 paragraph (c) 

requires an amendment to the DFARS to 

eliminate certain contract clause 

requirements applicable to COTS item 

subcontracts, except for regulations 

required by law or Executive order, 

unless the Secretary of Defense 

determines that there is a specific 

reason not to eliminate the regulation. 

This proposed rule also includes 

revisions to implement paragraph (a) of 

section 837 of the NDAA for FY 2019 

(Pub. L. 115–232). Section 837 

paragraph (a) revises 10 U.S.C. 

2375(b)(2), redesignated as 10 U.S.C. 

3452(b)(2), by deleting the date ‘‘January 

1, 2015’’ and adding the date ‘‘October 

13, 1994.’’ This proposed rule 

implements the change at 10 U.S.C. 

3452(b)(2) by proposing an amendment 

to the DFARS to eliminate solicitation 

provisions and contract clauses enacted 

after October 13, 1994, not including the 

provisions or clauses referred to in 10 

U.S.C. 3452 (e)(1), (e)(2), and (e)(3), from 

commercial product and commercial 

service solicitations and contracts, 

respectively, unless the Under Secretary 

of Defense for Acquisition and 

Sustainment makes a written 

determination that it would not be in 

the best interest of the Department of 

Defense to exclude them. 

According to data from the Federal 

Procurement Data System for FY 2020 

through FY 2022, DoD awarded 

approximately 31,968 contracts for 

commercial products, commercial 

services, or COTS items to an average of 

13,952 unique small entities per year. 

The proposed rule applies to all entities 

that do business with DoD and is not 

expected to have a significant impact on 

these entities, regardless of business 

size. 

This proposed rule does not include 

any new reporting, recordkeeping, or 

other compliance requirements for small 

entities. 

The proposed rule does not duplicate, 

overlap, or conflict with any other 

Federal rules. 

There are no known significant 

alternative approaches to the proposed 

rule that would meet the requirements 

of the applicable statute. 

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 2018–D074), in 

correspondence. 

VII. Paperwork Reduction Act 

The proposed 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 203, 

204, 212, and 215 

Government procurement. 

Jennifer D. Johnson, 

Editor/Publisher, Defense Acquisition 

Regulations System. 

Therefore, 48 CFR parts 203, 204, 212, 

and 215 are proposed to be amended as 

follows: 

■ 1. The authority citation for parts 203, 

204, 212, and 215 continues to read as 

follows: 

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

chapter 1. 

PART 203—IMPROPER BUSINESS 

PRACTICES AND PERSONAL 

CONFLICTS OF INTEREST 

203.171–4 [Amended] 

■ 2. Amend section 203.171–4 in 

paragraph (b) by removing ‘‘solicitations 

using FAR part 12 procedures for the 

acquisition of commercial products and 

commercial services and’’. 

203.1004 [Amended] 

■ 3. Amend section 203.1004 in 

paragraph (a) by removing ‘‘, including 

solicitations and contracts using FAR 

part 12 procedures for the acquisition of 

commercial products and commercial 

services,’’. 

PART 204—ADMINISTRATIVE AND 

INFORMATION MATTERS 

204.7403 [Amended] 

■ 4. Amend section 204.7403 in 

paragraph (b) by removing ‘‘contracts, 

including’’ and adding ‘‘contracts that 

involve litigation support services, 

including’’ in its place. 

PART 212—ACQUISITION OF 

COMMERCIAL PRODUCTS AND 

COMMERCIAL SERVICES 

■ 5. Amend section 212.301— 

■ a. In paragraph (f)(i)(B) by removing 

‘‘section 847 of Pub. L. 110–181’’ and 

adding ‘‘section 847 of the National 

Defense Authorization Act for Fiscal 

Year 2008 (Pub. L. 110–181)’’ in its 

place; 

■ b. By removing paragraphs (f)(i)(D) 

and (E); 

■ c. By revising paragraphs (f)(ii)(B) 

through (D); 

■ d. By removing paragraph (f)(vi)(C); 

■ e. By redesignating paragraphs 

(f)(vi)(D), (E), and (F) as paragraphs 

(f)(vi)(C), (D), and (E), respectively; 

■ f. By revising paragraph (f)(viii)(D); 

■ g. By revising paragraphs (f)(x)(J) 

through (L), (T), and (Z); 

■ h. In paragraph (f)(xi)(A) by removing 

‘‘Pub. L.’’ and adding ‘‘Public Law’’ in 

its place; 

■ i. By revising paragraph (f)(xi)(B); 

■ j. In paragraph (f)(xii)(C) by removing 

‘‘227.7102–4(c)’’ and adding ‘‘227.7102– 

4(c), to comply with 10 U.S.C. 3781– 

3786’’ in its place; 

■ k. In paragraph (f)(xiv)(D) by removing 

‘‘232.7102’’ and adding ‘‘232.7102, to 

comply with 26 U.S.C. 6331(h)’’ in its 

place; 

■ l. By revising paragraphs (f)(xv)(A) 

and (B); 

■ m. By revising paragraph (f)(xix)(B); 

and 

■ n. By revising paragraph (f)(xx)(A) and 

(E). 

The revisions read as follows: 

212.301 Solicitation provisions and 

contract clauses for the acquisition of 

commercial products and commercial 

services. 

* * * * * 

(f) * * * 

(ii) * * * 

(B) Use the provision at 252.204– 

7008, Compliance with Safeguarding 

Covered Defense Information Controls, 

as prescribed in 204.7304(a), to comply 

with section 941 of the National Defense 

Authorization Act for Fiscal Year 2013 

(Pub. L. 112–239) and section 1632 of 

the National Defense Authorization Act 

for Fiscal Year 2015 (Pub. L. 113–291). 

(C) Use the clause at 252.204–7009, 

Limitations on the Use or Disclosure of 

Third-Party Contractor Reported Cyber 

Incident Information, as prescribed in 

204.7304(b), to comply with section 941 

of the National Defense Authorization 

Act for Fiscal Year 2013 (Pub. L. 112– 

239) and section 1632 of the National 

Defense Authorization Act for Fiscal 

Year 2015 (Pub. L. 113–291). 

(D) Use the clause at 252.204–7012, 

Safeguarding Covered Defense 


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Information and Cyber Incident 

Reporting, as prescribed in 204.7304(c), 

to comply with section 941 of the 

National Defense Authorization Act for 

Fiscal Year 2013 (Pub. L. 112–239) and 

section 1632 of the National Defense 

Authorization Act for Fiscal Year 2015 

(Pub. L. 113–291). 

* * * * * 

(viii) * * * 

(D) Use the provision at 252.219– 

7012, Competition for Religious-Related 

Services, as prescribed in 219.270–3, to 

comply with section 898 of the National 

Defense Authorization Act for Fiscal 

Year 2016 (Pub. L. 114–92). 

* * * * * 

(x) * * * 

(J) Use the clause at 252.225–7016, 

Restriction on Acquisition of Ball and 

Roller Bearings, as prescribed in 

225.7009–5, to comply with section 

8065 of Public Law 107–117 and the 

same restriction in subsequent DoD 

appropriations acts. 

(K) Use the clause at 252.225–7017, 

Photovoltaic Devices, as prescribed in 

225.7017–4(a), to comply with section 

846 of the National Defense 

Authorization Act for Fiscal Year 2011 

(Pub. L. 111–383). 

(L) Use the provision at 252.225– 

7018, Photovoltaic Devices—Certificate, 

as prescribed in 225.7017–4(b), to 

comply with section 846 of the National 

Defense Authorization Act for Fiscal 

Year 2011 (Pub. L. 111–383). 

* * * * * 

(T) Use the clause at 252.225–7029, 

Acquisition of Uniform Components for 

Afghan Military or Afghan National 

Police, as prescribed in 225.7703–4(d), 

to comply with section 826 of the 

National Defense Authorization Act for 

Fiscal Year 2013 (Pub. L. 112–239). 

* * * * * 

(Z) Use the clause at 252.225–7039, 

Defense Contractors Performing Private 

Security Functions Outside the United 

States, as prescribed in 225.302–6, to 

comply with section 862 of the National 

Defense Authorization Act for Fiscal 

Year 2008 (Pub L. 110–181). 

* * * * * 

(xi) * * * 

(B) Use the provision at 252.226– 

7002, Representation for Demonstration 

Project for Contractors Employing 

Persons with Disabilities, as prescribed 

in 226.7203, to comply with section 853 

of the National Defense Authorization 

Act for Fiscal Year 2004 (Pub. L. 108– 

136). 

* * * * * 

(xv) * * * 

(A) Use the clause at 252.237–7010, 

Prohibition on Interrogation of 

Detainees by Contractor Personnel, as 

prescribed in 237.173–5, to comply with 

section 1038 of the National Defense 

Authorization Act for Fiscal Year 2010 

(Pub. L. 111–84). 

(B) Use the clause at 252.237–7019, 

Training for Contractor Personnel 

Interacting with Detainees, as prescribed 

in 237.171–4, to comply with section 

1092 of the National Defense 

Authorization Act for Fiscal Year 2005 

(Pub. L. 108–375). 

* * * * * 

(xix) * * * 

(B) Use the clause at 252.246–7004, 

Safety of Facilities, Infrastructure, and 

Equipment for Military Operations, as 

prescribed in 246.270–4, to comply with 

section 807 of the National Defense 

Authorization Act for Fiscal Year 2010 

(Pub. L. 111–84). 

* * * * * 

(xx) * * * 

(A) Use the clause at 252.247–7003, 

Pass-Through of Motor Carrier Fuel 

Surcharge Adjustment to the Cost 

Bearer, as prescribed in 247.207, to 

comply with section 884 of the National 

Defense Authorization Act for Fiscal 

Year 2009 (Pub. L. 110–417). 

* * * * * 

(E) Use the provision at 252.247– 

7026, Evaluation Preference for Use of 

Domestic Shipyards—Applicable to 

Acquisition of Carriage by Vessel for 

DoD Cargo in the Coastwise or 

Noncontiguous Trade, as prescribed in 

247.574(d), to comply with section 1017 

of the National Defense Authorization 

Act for Fiscal Year 2007 (Pub. L. 109– 

364). 

* * * * * 

■ 6. Amend section 212.370 by adding 

paragraphs (b) through (d) to read as 

follows: 

212.370 Inapplicability of certain 

provisions and clauses to contracts and 

subcontracts for the acquisition of 

commercial products, commercial services, 

and commercially available off-the-shelf 

items. 

* * * * * 

(b) 252.203–7003, Agency Office of 

the Inspector General. 

(c) 252.203–7005, Representation 

Relating to Compensation of Former 

DoD Officials. 

(d) 252.215–7007, Notice of Intent to 

Resolicit. 

■ 7. Amend section 212.371 by— 

■ a. Revising the introductory text; and 

■ b. Adding paragraphs (b) through (e). 

The revision and additions read as 

follows: 

212.371 Inapplicability of certain 

provisions and clauses to contracts for the 

acquisition of commercially available offthe-shelf items. 

Commercially available off-the-shelf 

(COTS) items are a subset of commercial 

products. Therefore, the provisions and 

clauses listed in 212.370 as not 

applicable to contracts or subcontracts 

for the acquisition of commercial 

products are also not applicable to 

contracts or subcontracts for the 

acquisition of COTS items. In addition, 

the following provisions and clauses 

published after October 14, 1994, not 

expressly authorized in law, are not 

applicable or are modified in their 

applicability to contracts for the 

acquisition of COTS items: 

* * * * * 

(b) 252.204–7008, Compliance with 

Safeguarding Covered Defense 

Information Controls. 

(c) 252.204–7019, Notice of NIST SP 

800–171 DoD Assessment 

Requirements. 

(d) 252.204–7020, NIST SP 800–171 

DoD Assessment Requirements. 

(e) 252.204–7021, Cybersecurity 

Maturity Model Certification 

Requirements. 

212.504 [Amended] 

■ 8. Amend section 212.504— 

■ a. By removing paragraph (a)(xiii); 

■ b. By redesignating paragraphs (a)(xiv) 

and (xv) as paragraphs (a)(xiii) and (xiv), 

respectively; and 

■ c. In the newly redesignated 

paragraph (a)(xiv) by removing ‘‘(section 

8065 of Pub. L. 107–117)’’ and adding 

‘‘(section 8065, Pub. L. 107–117)’’ in its 

place. 

212.505 [Amended] 

■ 9. Amend section 212.505 

introductory text by removing ‘‘or 

modified in their applicability’’ and 

adding ‘‘or are modified in their 

applicability’’ in its place. 

PART 215—CONTRACTING BY 

NEGOTIATION 

■ 10. Amend section 215.371–4— 

■ a. In paragraph (a) introductory text by 

removing ‘‘section’’; and 

■ b. By adding paragraph (a)(7). 

The addition reads as follows: 

215.371–4 Exceptions. 

(a) * * * 

(7) Acquisitions of commercial 

products and commercial services using 

FAR part 12 procedures. 

* * * * * 

215.371–6 [Amended] 

■ 11. Amend section 215.371–6 by 

removing ‘‘, including solicitations 


khammond on DSKJM1Z7X2PROD with PROPOSALS2
80472 Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Proposed Rules 

using FAR part 12 procedures for the 

acquisition of commercial products and 

commercial services,’’. 

[FR Doc. 2023–25160 Filed 11–16–23; 8:45 am] 

BILLING CODE 6001–FR–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 212, 225, and 252 

[Docket DARS–2023–0042; Req No. DARS– 

2024–00012–FR] 

RIN 0750–AL40 

Defense Federal Acquisition 

Regulation Supplement: Limitation on 

the Acquisition of Certain Goods Other 

Than United States Goods (DFARS 

Case 2021–D022) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule. 

SUMMARY: DoD is proposing to amend 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

implement two sections of the National 

Defense Authorization Act for Fiscal 

Year 2021, one section of the National 

Defense Authorization Act for Fiscal 

Year 2022, one section of the National 

Defense Authorization Act for Fiscal 

Year 2023, and one section of the 

Consolidated Appropriations Act, 2023. 

These statutes remove limitations and 

restrictions on certain components that 

are no longer required, add new 

limitations on other components, 

subject to exceptions. 

DATES: Comments on the proposed rule 

should be submitted in writing to the 

address shown below on or before 

January 16, 2024, to be considered in 

the formation of a final rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2021–D022, 

using any of the following methods: 

Æ Federal eRulemaking Portal: https:// 

www.regulations.gov. Search for DFARS 

Case 2021–D022. Select ‘‘Comment’’ 

and follow the instructions to submit a 

comment. Please include ‘‘DFARS Case 

2021–D022’’ on any attached 

documents. 

Æ Email: osd.dfars@mail.mil. Include 

DFARS Case 2021–D022 in the subject 

line of the message. 

Comments received generally will be 

posted without change to https://

www.regulations.gov, including any 

personal information provided. To 

confirm receipt of your comment(s), 

please check https://

www.regulations.gov, approximately 

two to three days after submission to 

verify posting. 

FOR FURTHER INFORMATION CONTACT: 

Kimberly Bass, telephone 703–717– 

3446. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD is proposing to revise the DFARS 

to implement sections 845 and 1603 of 

the National Defense Authorization Act 

(NDAA) for Fiscal Year (FY) 2021 (Pub. 

L. 116–283); section 816 of the NDAA 

for FY 2022 (Pub. L. 117–81); section 

853 of the NDAA for FY 2023 (Pub. L. 

117–263), and section 8016 of the 

Consolidated Appropriations Act of 

2023 (Pub. L. 117–328). These sections 

amend 10 U.S.C. 2534, now 10 U.S.C. 

4864, to require acquisition of certain 

items and components from the national 

technology and industrial base. The 

national technology and industrial base 

is defined at 10 U.S.C. 4801 as the 

United States, Australia, Canada, New 

Zealand, or the United Kingdom. 

Section 845 of the NDAA for FY 2021 

amends 10 U.S.C. 4864(a) to update the 

list of components for naval vessels at 

paragraphs (a)(2)(A) through (E). 

Subsequently, section 816 of the NDAA 

for FY 2022 added to the list of 

components for naval vessels welded 

shipboard anchor and mooring chain, 

without size restrictions, at 10 U.S.C. 

4864(a)(2)(F). Section 845 also added 

components for T–AO 205 class vessels 

at 10 U.S.C. 4864(a)(4). Section 853 of 

the NDAA for FY 2023 added T–ARC 

class vessels at 10 U.S.C. 4864(a)(4) 

along with the component list for T–AO 

205 class vessels. Section 1603 of the 

NDAA for FY 2021 added limitations on 

procurement of satellite star trackers at 

10 U.S.C. 4864(a)(5). Section 8016 of the 

Consolidated Appropriations Act, 2023 

provided waiver authority to the 

Secretary of the Service responsible for 

the procurement of welded shipboard 

anchor and mooring chain. 

Section 845, in updating the list of 

components for naval vessels at 10 

U.S.C. 4864, removed prior paragraphs 

(a)(2) through (5) and redesignated 

paragraph (a)(6), components for 

auxiliary ships (large medium-speed 

diesel engines), as paragraph (a)(3). The 

removed paragraphs were: (a)(2) 

chemical weapons antidote; (a)(3)(A) 

components for naval vessels consisting 

of air circuit breakers, welded shipboard 

anchor and mooring chain with a 

diameter of four inches or less, vessel 

propellers; and (a)(3)(B) components of 

vessel unique to marine applications of 

gyrocompasses, electronic navigation 

chart systems, steering controls, pumps, 

propulsion and machinery control 

systems, and totally enclosed lifeboats; 

(a)(4), valves and machine tools; and 

(a)(5), ball bearings and roller bearings. 

Additionally, section 845 struck 

paragraph (j), Inapplicability to certain 

contracts to purchase ball bearings or 

roller bearings, and redesignated 

paragraph (k), Limitation on certain 

procurements application process, as 

paragraph (j). 

II. Discussion and Analysis 

Updates to 10 U.S.C. 2534, now 10 

U.S.C. 4864, have been incrementally 

implemented over time in various 

DFARS sections under subpart 225.70 as 

follows: 225.7004, Restriction on 

acquisition of foreign buses; 225.7006, 

Restrictions on air circuit breakers for 

naval vessels; 225.7007, Restrictions on 

anchor and mooring chain; 225.7008, 

Waiver of restrictions of 10 U.S.C. 4864; 

and 225.7010, Restrictions on certain 

naval vessel and auxiliary ship 

components. This proposed rule 

aggregates the requirements subject to 

10 U.S.C. 4864 under one 

comprehensive DFARS section at 

225.7004 to facilitate comprehension of 

and compliance with the limitations, 

exceptions, and waivers applicable to 

acquisition of certain goods other than 

U.S. goods. As a result, DFARS sections 

225.7006 through 225.7008 and section 

225.7010 are proposed to be 

incorporated, as appropriate and in 

alignment with the statutory 

requirements being implemented, into a 

single DFARS section 225.7004 titled, 

‘‘Restrictions on the procurement of 

goods other than U.S. goods.’’ 

Accordingly, sections 225.7006 through 

225.7008 and 225.7010 would be 

removed and reserved. DFARS section 

225.7009, Restriction on ball and roller 

bearings, remains as a standalone 

section as the authority for this section 

is derived from Appropriations Acts, 

and not from 10 U.S.C. 4864. 

DFARS section 225.7004, Restrictions 

on the procurement of goods other than 

U.S. goods, is established as the 

framework for all coverage related to 

implementing 10 U.S.C. 4864. The 

current DFARS section 225.7004, 

Restriction on acquisition of foreign 

buses, is incorporated into this new 

redesignated section along with relevant 

coverage to implement the statutes 

addressed in section I, Background, of 

this preamble. The new DFARS section 

225.7004 addresses the following: 

• 225.7004–0, Scope; added to state 

that the section implements 10 U.S.C. 

4864. 

• 225.7004–1, Definitions; adds new 

definitions for ‘‘national technology and 

industrial base’’ and ‘‘star tracker.’’ 


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