30644 Federal Register / Vol. 83, No. 126 / Friday, June 29, 2018 / Proposed Rules 

specify other procedures necessary for 

resolution of the proceeding. Replies to 

answers must be filed within fifteen (15) 

days after submission of the answer. 

* * * * * 

(i) Section 76.7 applies to petitions for 

relief filed under this section, except as 

otherwise provided in this section. 

[FR Doc. 2018–14014 Filed 6–28–18; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 211 

[Docket DARS–2018–0021] 

RIN 0750–AJ23 

Defense Federal Acquisition 

Regulation Supplement: Use of 

Commercial or Non-Government 

Standards (DFARS Case 2017–D014) 

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) 

implement a section of the National 

Defense Authorization Act for Fiscal 

Year 2017 (Pub. L. 114–328), which 

requires DoD to revise the DFARS to 

encourage contractors to propose 

commercial or non-Government 

standards and industry-wide practices 

that meet the intent of military 

specifications and standards. 

DATES: Comments on the proposed rule 

should be submitted in writing to the 

address shown below on or before 

August 28, 2018, to be considered in the 

formation of a final rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2017–D014, 

using any of the following methods: 

Æ Federal eRulemaking Portal: http:// 

www.regulations.gov. Search for 

‘‘DFARS Case 2017–D014.’’ Select 

‘‘Comment Now’’ and follow the 

instructions provided to submit a 

comment. Please include ‘‘DFARS Case 

2017–D014’’ on any attached 

documents. 

Æ Email: osd.dfars@mail.mil. Include 

DFARS Case 2017–D014 in the subject 

line of the message. 

Æ Fax: 571–372–6094. 

Æ Mail: Defense Acquisition 

Regulations System, Attn: Mr. Mark 

Gomersall, OUSD(A&S)DPAP/DARS, 

Room 3B941, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Comments received generally will be 

posted without change to http://

www.regulations.gov, including any 

personal information provided. To 

confirm receipt of your comment(s), 

please check www.regulations.gov, 

approximately 2 to 3 days after 

submission to verify posting (except 

allow 30 days for posting of comments 

submitted by mail). 

FOR FURTHER INFORMATION CONTACT: Mr. 

Mark Gomersall, telephone 571–372– 

6099. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD is proposing to amend the 

DFARS to implement section 875(c) of 

the National Defense Authorization Act 

(NDAA) for Fiscal Year (FY) 2017 (Pub. 

L. 114–328). Section 875(c) requires 

DoD to revise the DFARS to encourage 

contractors to propose commercial or 

non-Government standards and 

industry-wide practices that meet the 

intent of military specifications and 

standards. 

II. Discussion and Analysis 

DoD is proposing to amend DFARS 

211.107(b) to require the use of Federal 

Acquisition Regulation (FAR) provision 

52.211–7, Alternatives to GovernmentUnique Standards, in DoD solicitations 

and contracts that include military or 

Government-unique specifications and 

standards; and, in so doing, encourage 

and permit offerors to propose 

alternatives to Government-unique 

standards using an existing FAR 

provision. 

The use of FAR provision 52.211–7 is 

optional for agencies that report their 

use of voluntary consensus standards to 

the National Institute of Standards and 

Technology using the categorical 

reporting method. However, Office of 

Management and Budget (OMB) 

Circular A–119, Federal Participation in 

the Development and Use of Voluntary 

Consensus Standards and in Conformity 

Assessment Activities, requires, at 

paragraph 12.a.(4), that agencies using 

the categorical method of reporting 

method must ‘‘Enable potential offerors 

to suggest voluntary consensus 

standards that can replace Governmentunique standards.’’ Use of this existing 

FAR provision will enable DoD to meet 

the intent of section 875(c). 

In response to OMB Circular A–119, 

the National Institute of Standards and 

Technology collects reports from 

Federal Agencies on their use of 

Government-unique standards, which is 

reported annually to Congress. DoD 

statistics used for that report do not 

differentiate among the many different 

types of Government-unique Standards. 

The overriding conceptual approach is 

to reduce Government reliance on 

standards produced by Government 

entities for their own use. 

As a matter of existing policy, DoD 

discourages the use of military 

specifications and standards in 

solicitations. As stated in DoD Directive 

5000.01: ‘‘When using performancebased strategies, contract requirements 

shall be stated in performance terms, 

limiting the use of military 

specifications and standards to 

Government-unique requirements 

only.’’ However, to meet the intent of 

section 875(c) of the NDAA for FY 2017, 

DoD is proposing to amend DFARS 

211.107(b) to require the use of FAR 

provision 52.211–7, Alternatives to 

Government-Unique Standards, in DoD 

solicitations and contracts that include 

military or Government-unique 

specifications and standards to 

encourage and permit offerors to 

propose alternatives to Governmentunique standards. 

III. Applicability to Contracts at or 

Below the Simplified Acquisition 

Threshold (SAT) and Contracts for 

Commercial Items, Including 

Commercially Available Off-the-Shelf 

(COTS) Items 

The purpose of this rule is to 

implement section 875(c) of the NDAA 

for FY 2017, which requires DoD to 

revise the DFARS to encourage 

contractors to propose commercial or 

non-Government standards and 

industry-wide practices that meet the 

intent of military specifications and 

standards. DoD does not intend to apply 

the requirements of section 875(c) to 

solicitations for contracts valued at or 

below the SAT or to contracts for 

commercial items, including COTS 

items, because such contracts do not 

generally include or require use of 

military or Government-unique 

standards or specifications. 

IV. 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 


sradovich on DSK3GMQ082PROD with PROPOSALS
Federal Register / Vol. 83, No. 126 / Friday, June 29, 2018 / Proposed Rules 30645 

E.O. 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

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

804. 

V. Executive Order 13771 

This rule is not an E.O. 13771, 

Reducing Regulation and Controlling 

Regulatory Costs, regulatory action, 

because this rule is not significant under 

E.O. 12866. 

VI. Regulatory Flexibility Act 

DoD does not expect this proposed 

rule to have a significant economic 

impact on a substantial number of small 

entities within the meaning of the 

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

601 et. seq. However, an initial 

regulatory flexibility analysis has been 

prepared and is summarized as follows: 

This proposed rule implements 

section 875(c) of the National Defense 

Authorization Act (NDAA) for FY 2017 

(Pub. L. 114–328). 

The objective of this rule is to clarify 

the use of FAR 52.211–7, Alternatives to 

Government-Unique Standards, in DoD 

solicitations and contracts that include 

military or Government-unique 

specifications and standards. This will 

encourage and permit Offerors to 

propose alternatives to Governmentunique standards by using an existing 

FAR provision. The legal basis for this 

rule is section 875(c) of the NDAA for 

FY 2017 (Pub. L. 114–328). 

The rule will apply to both large and 

small entities to the extent that such 

entities receive Government 

solicitations containing Governmentunique standards and FAR provision 

52.211–7, Alternatives to Governmentunique Standards. Such entities may 

already be familiar with this provision 

as it has been in place since its 

publication in 1998 (63 FR 68344, 

December 10, 1998). 

As a matter of policy, DoD 

discourages the use of military 

specifications and standards in 

solicitations. As stated in DoD Directive 

5000.01: ‘‘When using performancebased strategies, contract requirements 

shall be stated in performance terms, 

limiting the use of military 

specifications and standards to 

Government-unique requirements 

only.’’ 

In addition, between 1994 and 2000, 

over 29,000 military specifications and 

standards were cancelled. Of those, 

6,100 were canceled without 

replacement, and 3,500 were 

superseded by nongovernment 

standards. Moreover, DoD participates 

in over 120 private sector standardsdeveloping organizations such as 

ASTM, ANSI, ISO and IEEE. Voluntary 

consensus standards adopted by DoD 

are also listed in the Defense Logistics 

Agency ASSIST database to identify the 

source for obtaining the adopted 

standards. 

Based on Federal Procurement Data 

System data for product service code 

(PSC) 5342 (hardware, weapon systems), 

this rule could potentially apply to 

approximately 757 unique entities, of 

which 585 are small businesses. This is 

based on the number of DoD contract 

awards in fiscal year 2016 for PSC 5342. 

It cannot be discerned how many of the 

contract awards required the use of a 

military specification or standard. 

Further, given the DoD policy of 

discouraging the use of military 

specifications and standards in 

solicitations, this rule would likely 

impact no more than 40 offerors or 

potential contractors (the approximate 

number of DoD contractors involved in 

major weapons systems, which are more 

likely to require Government 

specifications). 

Accordingly, DoD estimates that this 

rule will have limited application. 

However, given the fact that some small 

number of DoD solicitations may 

include a military specification or 

standard—generally limited to those 

involving a major weapons system, this 

rule would provide a permissive means 

for offerors to propose reducing 

regulatory burden on a given 

solicitation. 

This rule does not contain reporting 

and recordkeeping requirements, since 

it merely revises guidance to contracting 

officers for use of FAR clause 52.211–7, 

Alternatives to Government-unique 

Standards. 

As an alternative to this proposed 

rule, DoD could create a stand-alone 

DoD provision. Such a provision, 

however, would largely duplicate, 

overlap, and potentially conflict with 

the requirements of the existing 

provision at FAR 52.211–7. 

DoD does not expect this proposed 

rule to have a significant economic 

impact on small entities. The rule will 

have a positive impact on both large and 

small contractors, in that they will now 

be permitted to propose alternatives to 

Government standards using an existing 

FAR provision, the same provision used 

for other, i.e., non-DoD Government 

solicitations. 

The rule does not duplicate, overlap, 

or conflict with any other Federal rules. 

There are no significant alternatives that 

meet the requirement of the statute. 

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 2017–D014), in 

correspondence. 

VII. Paperwork Reduction Act 

The Paperwork Reduction Act (44 

U.S.C. chapter 35) applies. The rule 

contains information collection 

requirements. OMB has cleared this 

information collection requirement 

under OMB control number 9000–0153, 

titled, OMB Circular A–119; FAR 

Sections Affected: 52.211–7 and 53.105. 

List of Subjects in 48 CFR Part 211 

Government procurement. 

Amy G. Williams, 

Deputy, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR part 211 is 

proposed to be amended as follows: 

PART 211—DESCRIBING AGENCY 

NEEDS 

■ 1. The authority citation for part 211 

continues to read as follows: 

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

chapter 1. 

■ 2. Revise section 211.107 to read as 

follows: 

211.107 Solicitation provision. 

(b) Use the provision at FAR 52.211– 

7, Alternatives to Government-Unique 

Standards, in DoD solicitations that 

include military or Government-unique 

specifications and standards. 

■ 3. Revise section 211.201 to read as 

follows: 

211.201 Identification and availability of 

specifications. 

Follow the procedures at PGI 211.201 

for obtaining specifications, standards, 

and data item descriptions from the 

DLA ASSIST database, including DoD 

adoption notices on voluntary 

consensus standards. 

[FR Doc. 2018–14039 Filed 6–28–18; 8:45 am] 

BILLING CODE 5000–06–P 


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