Federal Register / Vol. 77, No. 99 / Tuesday, May 22, 2012 / Rules and Regulations 30367 

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 204 

Government procurement. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR part 204 is 

amended to read as follows: 

PART 204—ADMINISTRATIVE 

MATTERS 

■ 1. The authority citation for 48 CFR 

part 204 continues to read as follows: 

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

chapter 1. 

■ 2. Section 204.804 is revised to read 

as follows: 

204.804 Closeout of contract files. 

(1) Contracting officers shall close out 

contracts in accordance with the 

procedures at PGI 204.804. The closeout 

date for file purposes shall be 

determined and documented by the 

procuring contracting officer. 

(2) The head of the contracting 

activity shall assign the highest priority 

to closeout of contracts awarded for 

performance in a contingency area. 

Heads of contracting activities must 

monitor and assess on a regular basis 

the progress of contingency contract 

closeout activities and take appropriate 

steps if a backlog occurs. For guidance 

on the planning and execution of 

closing out such contracts, see PGI 

207.105(b)(20)(C)(8) and PGI 

225.7404(e). 

[FR Doc. 2012–11562 Filed 5–21–12; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 204 and 243 

RIN 0750–AH56 

Defense Federal Acquisition 

Regulation Supplement: Order of 

Application for Modifications (DFARS 

Case 2012–D002) 

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 establish an order for 

application of contract modifications to 

resolve any potential conflicts that may 

arise from multiple modifications with 

the same effective date. 

DATES: Effective Date: May 22, 2012. 

FOR FURTHER INFORMATION CONTACT: Dr. 

Laura Welsh, telephone 571–372–6091. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD published a proposed rule in the 

Federal Register at 77 FR 2679 on 

January 19, 2012, to establish an order 

for application of contract 

modifications. DFARS subpart 204.70, 

Uniform Procurement Instrument 

Identification Numbers, prescribes 

numbering procedures for contract 

modifications and the Federal 

Acquisition Regulation (FAR) part 43.1, 

General, prescribes rules for 

determining the effective date of 

contract modifications. There are no 

rules to describe in what order to apply 

modifications to determine the actual 

content of a resulting modified contract. 

In order to determine the sequence of 

modifications to a contract or order, a 

method for determining the order of 

application for modifications is needed 

to resolve any conflict arising from 

multiple modifications with the same 

effective date. Therefore, this final rule 

adds DFARS text at 204.7007, Order of 

Application for Modifications, to 

resolve any potential conflict in these 

circumstances. One respondent 

submitted a public comment in 

response to the proposed rule. 

II. Discussion and Analysis of the 

Public Comment 

DoD considered the public comment 

in the development of the final rule, 

which is discussed as follows. 

Comment: A respondent suggested 

that a cross-reference to the proposed 

DFARS 204.7007 language be placed 

within DFARS part 243, Contract 

Modifications, as the rule addresses 

contract modifications. 

Response: In response to the 

respondent’s comment, a cross-reference 

to DFARS 204.7007 is added at DFARS 

243.172. No other changes were made to 

the proposed 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 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: 

This rule finalizes a proposed 

amendment to the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) which was published on 

January 19, 2012. DFARS subpart 

204.70, Uniform Procurement 

Instrument Identification Numbers, 

prescribes numbering procedures for 

contract modifications, and Federal 

Acquisition Regulation (FAR) subpart 

43.1, General, prescribes guidelines for 

determining the effective date. There are 

no rules to describe in what order to 

apply modifications to determine the 

actual content of a resulting modified 

contract. 

The objective of the rule is to provide 

a set of rules to the contracting officer 

to resolve any potential conflicts from 

multiple modifications with the same 

effective date. 

There were no public comments in 

response to the initial regulatory 

flexibility analysis. 

DoD received no comments by the 

Chief Counsel for Advocacy of the Small 

Business Administration in response to 

the proposed rule. 

The changes required to the DFARS 

by this case only affect the internal 

operating processes of DoD by 

establishing an order of application for 

contract modifications. These changes 

are not expected to have an economic 

impact on contractors. 

This rule does not impose any new 

reporting or recordkeeping 

requirements. 

The alternative to this rule is to 

continue relying on DFARS subpart 

204.70, which prescribes numbering 

procedures for contract modifications, 

and FAR subpart 43.1, which provides 

guidelines for determining the effective 

date. However, the cited text does not 

provide a clear structured path to ensure 

no ambiguity arises when determining 

in what order to apply modifications. 


srobinson on DSK4SPTVN1PROD with RULES2
30368 Federal Register / Vol. 77, No. 99 / Tuesday, May 22, 2012 / Rules and Regulations 

There is no significant economic impact 

on small entities. 

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 204 and 

243 

Government procurement. 

Mary Overstreet, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR parts 204 and 243 

are amended as follows: 

PART 204—ADMINISTRATIVE 

MATTERS 

■ 1. The authority citation for 48 CFR 

part 204 continues to read as follows: 

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

chapter 1. 

■ 2. Section 204.7007 is added to read 

as follows: 

204.7007 Order of application for 

modifications. 

(a) Circumstances may exist in which 

the numeric order of the modifications 

to a contract is not the order in which 

the changes to the contract actually take 

effect. 

(b) In order to determine the sequence 

of modifications to a contract or order, 

the modifications will be applied in the 

following order: 

(1) Modifications will be applied in 

order of the effective date on the 

modification; 

(2) In the event of two or more 

modifications with the same effective 

date, modifications will be applied in 

signature date order; 

(3) In the event of two or more 

modifications with the same effective 

date and the same signature date, 

procuring contracting office 

modifications will be applied in 

numeric order, followed by contract 

administration office modifications in 

numeric order. 

PART 243—CONTRACT 

MODIFICATIONS 

■ 3. The authority citation for 48 CFR 

part 243 is revised to read as follows: 

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

chapter 1. 

■ 4. Section 243.172 is added to read as 

follows: 

243.172 Application of modifications. 

Follow the procedures in 204.7007 for 

determining the sequence for 

application of modifications to a 

contract or order. 

[FR Doc. 2012–11563 Filed 5–21–12; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 212, 225, and 252 

RIN 0750–AH43 

Defense Federal Acquisition 

Regulation Supplement; Utilization of 

Domestic Photovoltaic Devices 

(DFARS Case 2011–D046) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is adopting as final, with 

change, an interim rule amending the 

Defense Federal Acquisition Regulation 

Supplement (DFARS) to implement a 

section of the National Defense 

Authorization Act for Fiscal Year 2011. 

The section provides that photovoltaic 

devices to be utilized in performance of 

any covered contract shall comply with 

the Buy American statute, subject to the 

exceptions provided in the Trade 

Agreements Act of 1979 or otherwise 

provided by law. 

DATES: Effective date: May 22, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Amy G. Williams, telephone 571–372– 

6106. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD published an interim rule in the 

Federal Register at 76 FR 78858 on 

December 20, 2011 and also issued 

technical amendments to the interim 

rule in the Federal Register at 77 FR 

13013 on March 5, 2012. One 

respondent submitted a comment in 

response to the interim rule. 

II. Discussion and analysis 

Only one response was received. The 

respondent provided an editorial 

comment which has been incorporated 

in the final rule (see DFARS 225.7017– 

3(c)(1)). 

There have also been some baseline 

changes since the publication of the 

interim 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 expects that this interim rule 

may 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. 

Therefore, a final regulatory flexibility 

analysis has been prepared and is 

summarized as follows: 

This final rule implements section 

846 of the National Defense 

Authorization Act for Fiscal Year 2011 

(Pub. L. 111–383) by providing 

regulatory coverage on utilization of 

domestic photovoltaic devices under 

certain covered contracts. 

The objective of the rule is to promote 

utilization of domestic photovoltaic 

devices under energy savings contracts, 

utility service contracts, or private 

housing contracts awarded by DoD, if 

such contract does not include DoD 

purchase of photovoltaic devices as end 

products, but will nevertheless result in 

ownership of photovoltaic devices by 

DoD. According to the statute, DoD is 

deemed to own a photovoltaic device if 

the device is— 

(1) Installed on DoD property or in a 

facility owned by DoD; and 

(2) Reserved for the exclusive use of 

DoD for the full economic life of the 

device. 

The legal basis for the rule is section 

846 of the National Defense 

Authorization Act for Fiscal Year 2011. 

No significant issues were raised by 

the public comments. 

No comments were filed by the Chief 

Counsel for Advocacy of the Small 

Business Administration. 

This rule generally applies to other 

than small entities. When purchasing 

renewable power generated via on-site 

photovoltaic devices, DoD can either 

purchase the photovoltaic devices and 

thereby own, operate, and maintain the 

devices for their full economic life 

(already covered in DFARS part 225) or 

can do variations of the following: 


srobinson on DSK4SPTVN1PROD with RULES2