Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations 37645 

204.602 General. 

See PGI 204.602 for additional 

information on the Federal Procurement 

Data System (FPDS) and procedures for 

resolving technical or policy issues 

relating to FPDS. 

204.604 Responsibilities. 

(1) The process for reporting contract 

actions to FPDS should, where possible, 

be automated by incorporating it into 

contract writing systems. 

(2) Data in FPDS is stored indefinitely 

and is electronically retrievable. 

Therefore, the contracting officer may 

reference the contract action report 

(CAR) approval date in the associated 

Government contract file instead of 

including a paper copy of the 

electronically submitted CAR in the file. 

Such reference satisfies contract file 

documentation requirements of FAR 

4.803(a). 

(3) By December 15th of each year, the 

chief acquisition officer of each DoD 

component required to report its 

contract actions shall submit to the 

Director, Defense Procurement and 

Acquisition Policy, its annual 

certification and data validation results 

for the preceding fiscal year in 

accordance with the DoD Data 

Improvement Plan requirements at 

http://www.acq.osd.mil/dpap/pdi/eb. 

The Director, Defense Procurement and 

Acquisition Policy, will submit a 

consolidated DoD annual certification to 

the Office of Management and Budget 

by January 5th of each year. 

204.606 Reporting data. 

In addition to FAR 4.606, follow the 

procedures at PGI 204.606 for reporting 

data to FPDS. 

204.670 [Removed] 

■ 3. Section 204.670 is removed. 

■ 4. Section 204.902 is revised to read 

as follows: 

204.902 General. 

(b) DoD uses the Federal Procurement 

Data System (FPDS) to meet these 

reporting requirements. 

204.7203 [Amended] 

■ 5. Section 204.7203 is amended by 

removing paragraph (c). 

PART 219—SMALL BUSINESS 

PROGRAMS 

■ 6. Section 219.001 is amended by 

revising paragraph (2)(iv) to read as 

follows: 

219.001 Definitions. 

* * * * * 

(2) * * * 

(iv) Reporting contract actions with 

SDB concerns in the Federal 

Procurement Data System (FPDS). 

■ 7. Section 219.202–5 is amended by 

revising the introductory text to read as 

follows: 

219.202–5 Data collection and reporting 

requirements. 

Determine the premium percentage to 

be entered in the Federal Procurement 

Data System (FPDS) as follows: 

* * * * * 

PART 253—FORMS 

253.204 and 253.204–70 [Removed] 

■ 8. Sections 253.204 and 253.204–70 

are removed. 

[FR Doc. E9–17946 Filed 7–28–09; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 204, 236, 237, 239, 245, 

and 252 

RIN 0750–AF92 

Defense Federal Acquisition 

Regulation Supplement; Government 

Property (DFARS Case 2007–D020) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD has issued a final rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to update text addressing 

management of Government property in 

the possession of contractors. The 

DFARS changes are consistent with 

changes made to the Federal 

Acquisition Regulation (FAR). 

DATES: Effective Date: July 29, 2009. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Mark Gomersall, Defense Acquisition 

Regulations System, OUSD (AT&L) 

DPAP (DARS), IMD 3D139, 3062 

Defense Pentagon, Washington, DC 

20301–3062. Telephone 703–602–0302; 

facsimile 703–602–7887. Please cite 

DFARS Case 2007–D020. 

SUPPLEMENTARY INFORMATION: 

A. Background 

This final rule updates and 

reorganizes DFARS Subparts 245.1, 

245.3, 245.4, and 245.5 for consistency 

with FAR changes addressing 

management of government property in 

the possession of contractors, published 

at 72 FR 27364 on May 15, 2007. 

Related changes are made in Parts 204, 

236, 237, 239, and 252. The following 

table summarizes the DFARS changes in 

this rule: 

DFARS citation Changes made by this rule 

204.7003 ......................................... Removed ‘‘facilities contracts’’ from the list of contract types, consistent with the removal of references to 

facilities contracts from the FAR. 

237.7003 ......................................... Updated the reference to the applicable FAR Government Property clause. 

239.7402 ......................................... Updated and clarified the text in paragraphs (b)(3) and (4). 

245.104 ........................................... Updated and relocated the text to 245.105. 

245.301 ........................................... (1) Updated the definition of ‘‘facilities project’’ and relocated it to 237.7501. 

(2) Relocated the definition of ‘‘mapping, charting, and geodesy’’ to 245.101 without change. 

(3) Removed the definition of ‘‘provide,’’ since this term is now defined in FAR 45.101. 

(4) Removed the definitions of ‘‘agency-peculiar property,’’ ‘‘industrial plant equipment,’’ and ‘‘other plant 

equipment,’’ as they are no longer considered necessary. 

245.302–1(a) ................................... Revised to eliminate text addressing responsibilities for approval of facilities projects, as these responsibilities are addressed DoD Directive 4275.5. The remaining text is relocated to 237.7502, with cross-references added at 236.275 and 245.102(3). 

245.302–1(b) and DD Form 1419 .. Removed. The specified equipment screening procedures have become obsolete. 

245.302–2 and 245.302–7 .............. Removed. The separate procedures for facilities contracts are no longer necessary. 

245.303–2 ....................................... Updated and relocated to 245.102(2). 

245.307–2 ....................................... Removed. The corresponding FAR text has been removed. 


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37646 Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations 

DFARS citation Changes made by this rule 

245.310 ........................................... Updated and relocated to 245.102(1). 

245.310–70 ..................................... Relocated to 245.107–70. 

245.401 ........................................... Removed as unnecessary. 

245.403 ........................................... Relocated to 245.302(2). 

245.405 ........................................... Updated and relocated to 245.302(1) and (3). 

245.407 ........................................... Removed as unnecessary. 

Subpart 245.5 ................................. Removed as unnecessary. 

Part 252 .......................................... Updated references and clause titles. 

DoD published a proposed rule at 73 

FR 55007 on September 24, 2008, to 

address the DFARS changes. Three 

sources submitted comments on the 

proposed rule. A discussion of the 

comments is provided below. 

1. Comment: One respondent 

recommended retaining the definition of 

‘‘agency peculiar property’’. 

DoD Response: The term ‘‘agency 

peculiar property’’ is no longer used in 

DFARS Part 245. Therefore, the 

definition has been excluded from the 

final rule. 

2. Comment: One respondent 

recommended that the term ‘‘facilities’’ 

be defined and included within DFARS 

Part 245. 

DoD Response: The term ‘‘facilities’’ 

is defined in DoD Directive 4275.5, 

Acquisition and Management of 

Industrial Resources. The rule contains 

a reference to Directive 4275.5 in 

Subpart 237.75. 

3. Comment: One respondent 

suggested the addition of text at 245.105 

to specify that the administrative 

contracting officer will perform property 

administration in the absence of an 

assigned property administrator. 

DoD Response: DoD considers the 

additional text unnecessary, since the 

performance of contract property 

administration is already a contracting 

officer function listed in FAR 

42.302(26). However, for clarity, the 

term ‘‘property administrator’’ has been 

revised to ‘‘assigned property 

administrator’’ at 245.105. 

4. Comment: One respondent stated 

that the proposed text at 245.301(2) 

elevates the level of approval required 

for certain non-Government use of 

Government-owned equipment beyond 

that specified in the FAR, since FAR 

45.301 assigns this responsibility to the 

head of the contracting activity whereas 

the proposed DFARS rule requires 

assistant Secretary or agency head 

approval. 

DoD Response: This text has been 

excluded from the final rule. FAR 

45.301 adequately addresses use and 

rental policy. 

5. Comment: One respondent 

suggested the phrase ‘‘only if’’ be 

replaced with the term ‘‘provided’’ at 

DFARS 245.302(1)(i), with regard to the 

conditions placed on contracting officer 

approval of contractor use of 

Government property on work for 

foreign governments or international 

organizations. 

DoD Response: The text at DFARS 

245.302(1)(i) has been revised to replace 

the term ‘‘only if’’ with the term 

‘‘provided.’’ Additionally, to preserve 

contracting officer flexibility, the word 

‘‘shall’’ has been replaced with the word 

‘‘may’’ in that same paragraph. 

This rule was not subject to Office of 

Management and Budget review under 

Executive Order 12866, dated 

September 30, 1993. 

B. 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 the rule makes no significant 

change to DoD policy regarding the 

management of Government property in 

the possession of contractors. 

C. Paperwork Reduction Act 

The information collection 

requirements of DFARS Part 245 have 

been approved by the Office of 

Management and Budget under Control 

Number 0704–0246. 

List of Subjects in 48 CFR Parts 204, 

236, 237, 239, 245, and 252 

Government procurement. 

Michele P. Peterson, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR parts 204, 236, 237, 

239, 245, and 252 are amended as 

follows: 

■ 1. The authority citation for 48 CFR 

Parts 204, 236, 237, 239, 245, and 252 

continues to read as follows: 

Authority: 41 U.S.C. 421 and 48 CFR 

Chapter 1. 

PART 204—ADMINISTRATIVE 

MATTERS 

■ 2. Section 204.7003 is amended as 

follows: 

■ a. In paragraph (a)(3)(iii) by removing 

‘‘facilities contracts,’’; and 

■ b. By revising paragraph (a)(3)(v) to 

read as follows: 

204.7003 Basic PII number. 

(a) * * * 

(3) * * * 

(v) Reserved—E 

* * * * * 

PART 236—CONSTRUCTION AND 

ARCHITECT-ENGINEER CONTRACTS 

■ 3. Section 236.275 is added to read as 

follows: 

236.275 Construction of industrial 

resources. 

See Subpart 237.75 for policy relating 

to facilities projects. 

PART 237—SERVICE CONTRACTING 

■ 4. Section 237.7003 is amended by 

revising paragraph (c) to read as follows: 

237.7003 Solicitation provisions and 

contract clauses. 

* * * * * 

(c) Use the clause at FAR 52.245–1, 

Government Property, with its Alternate 

I, in solicitations and contracts that 

include port of entry requirements. 

■ 5. Subpart 237.75 is added to read as 

follows: 

Subpart 237.75—Acquisition and 

Management of Industrial Resources 

Sec. 

237.7501 Definition. 

237.7502 Policy. 

Subpart 237.75—Acquisition and 

Management of Industrial Resources 

237.7501 Definition. 

Facilities project, as used in this 

subpart, means a Government project to 

provide, modernize, or replace real 

property for use by a contractor in 

performing a Government contract or 

subcontract. 

237.7502 Policy. 

(a) Comply with DoD Directive 

4275.5, Acquisition and Management of 

Industrial Resources, in processing 

requests for facilities projects. 


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Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations 37647 

(b) Departments and agencies shall 

submit reports of facilities projects to 

the House and Senate Armed Services 

Committees— 

(1) At least 30 days before starting 

facilities projects involving real 

property (10 U.S.C. 2662); and 

(2) In advance of starting construction 

for a facilities project regardless of cost. 

Use DD Form 1391, FY__ Military 

Construction Project Data, to notify 

congressional committees of projects 

that are not included in the annual 

budget. 

PART 239—ACQUISITION OF 

INFORMATION TECHNOLOGY 

■ 6. Section 239.7402 is amended by 

revising paragraphs (b)(3) and (4) to read 

as follows: 

239.7402 Policy. 

* * * * * 

(b) * * * 

(3) Except as provided in paragraph 

(b)(4) of this section, contractors and 

subcontractors shall normally provide 

all required property, to include 

telecommunications security equipment 

or related devices, in accordance with 

FAR 45.102. In some cases, such as for 

communications security (COMSEC) 

equipment designated as controlled 

cryptographic item (CCI), contractors or 

subcontractors must also meet 

ownership eligibility conditions. 

(4) The head of the agency may 

authorize provision of the necessary 

property as Government-furnished 

property or acquisition as contractoracquired property, as long as conditions 

of FAR 45.102(b) are met. 

* * * * * 

PART 245—GOVERNMENT PROPERTY 

■ 7. Subparts 245.1 and 245.3 are 

revised to read as follows: 

Subpart 245.1—General 

Sec. 

245.101 Definitions. 

245.102 Policy. 

245.105 Contractor’s property management 

system compliance. 

245.107–70 Contract clause. 

Subpart 245.1—General 

245.101 Definitions. 

Mapping, charting, and geodesy 

property, as used in this subpart, is 

defined in the clause at 252.245–7000, 

Government-Furnished Mapping, 

Charting, and Geodesy Property. 

245.102 Policy. 

(1) Mapping, charting, and geodesy 

property. All Government-furnished 

mapping, charting, and geodesy (MC&G) 

property is under the control of the 

Director, National Geospatial 

Intelligence Agency. 

(i) MC&G property shall not be 

duplicated, copied, or otherwise 

reproduced for purposes other than 

those necessary for contract 

performance. 

(ii) Upon completion of contract 

performance, the contracting officer 

shall— 

(A) Contact the Director, National 

Geospatial Intelligence Agency, 4600 

Sangamore Road, Bethesda, MD 20816– 

5003, for disposition instructions; 

(B) Direct the contractor to destroy or 

return all Government-furnished MC&G 

property not consumed during contract 

performance; and 

(C) Specify the destination and means 

of shipment for property to be returned 

to the Government. 

(2) Government supply sources. When 

a contractor will be responsible for 

preparing requisitioning documentation 

to acquire Government-furnished 

property from Government supply 

sources, include in the contract the 

requirement to prepare the 

documentation in accordance with DoD 

4000.25–1–M, Military Standard 

Requisitioning and Issue Procedures 

(MILSTRIP). Copies are available from 

the address cited at PGI 251.102. 

(3) Acquisition and management of 

industrial resources. See Subpart 237.75 

for policy relating to facilities projects. 

245.105 Contractor’s property 

management system compliance. 

The assigned property administrator 

shall perform property administration in 

accordance with department or agency 

procedures. 

245.107–70 Contract clause. 

Use the clause at 252.245–7000, 

Government-Furnished Mapping, 

Charting, and Geodesy Property, in 

solicitations and contracts when 

mapping, charting, and geodesy 

property is to be furnished. 

Subpart 245.3—Authorizing the Use 

and Rental of Government Property 

245.302 Contracts with foreign 

governments or international organizations. 

(1) General. 

(i) Approval. A contractor may use 

Government property on work for 

foreign governments and international 

organizations only when approved in 

writing by the contracting officer having 

cognizance of the property. The 

contracting officer may grant approval, 

provided— 

(A) The use will not interfere with 

foreseeable requirements of the United 

States; 

(B) The work is undertaken as a DoD 

foreign military sale; or 

(C) For a direct commercial sale, the 

foreign country or international 

organization would be authorized to 

contract with the department concerned 

under the Arms Export Control Act. 

(ii) Use charges. 

(A) The Use and Charges clause is 

applicable on direct commercial sales to 

foreign governments or international 

organizations. 

(B) When a particular foreign 

government or international 

organization has funded the acquisition 

of property, do not assess the foreign 

government or international 

organization rental charges or 

nonrecurring recoupments for the use of 

such property. 

(2) Special tooling and special test 

equipment. 

(i) DoD normally recovers a fair share 

of nonrecurring costs of special tooling 

and special test equipment by including 

these costs in its calculation of the 

nonrecurring cost recoupment charge 

when major defense equipment is sold 

by foreign military sales or direct 

commercial sales to foreign 

governments or international 

organizations. ‘‘Major defense 

equipment’’ is defined in DoD Directive 

2140.2, Recoupment of Nonrecurring 

Costs on Sales of U.S. Items, as any item 

of significant military equipment on the 

United States Munitions List having a 

nonrecurring research, development, 

test, and evaluation cost of more than 

$50 million or a total production cost of 

more than $200 million. 

(ii) When the cost thresholds in 

paragraph (2)(i) of this section are not 

met, the contracting officer shall assess 

rental charges for use of special tooling 

and special test equipment pursuant to 

the Use and Charges clause if 

administratively practicable. 

(3) Waivers. 

(i) Rental charges for use of U.S. 

production and research property on 

commercial sales transactions to the 

Government of Canada are waived for 

all commercial contracts. This waiver is 

based on an understanding wherein the 

Government of Canada has agreed to 

waive its rental charges. 

(ii) Requests for waiver or reduction 

of charges for the use of Government 

property on work for foreign 

governments or international 

organizations shall be submitted to the 

contracting officer, who shall refer the 

matter through contracting channels. In 

response to these requests, approvals 

may be granted only by the Director, 

Defense Security Cooperation Agency, 

for particular sales that are consistent 

with paragraph (1)(i)(C) of this section. 


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37648 Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations 

Subparts 245.4 and 245.5 [Removed] 

■ 8. Subparts 245.4 and 245.5 are 

removed. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

252.217–7005 [Amended] 

■ 9. Section 252.217–7005 is amended 

as follows: 

■ a. By revising the clause date to read 

‘‘(JUL 2009)’’; and 

■ b. In paragraph (e)(7) by removing 

‘‘(Fixed-Price Contracts)’’. 

252.217–7010 [Amended] 

■ 10. Section 252.217–7010 is amended 

as follows: 

■ a. By revising the clause date to read 

‘‘(JUL 2009)’’; and 

■ b. In paragraph (c)(3) by removing 

‘‘(Fixed Price Contracts)’’. 

252.242–7004 [Amended] 

■ 11. Section 252.242–7004 is amended 

as follows: 

■ a. By revising the clause date to read 

‘‘(JUL 2009)’’; and 

■ b. In paragraph (e)(9) introductory 

text, in the first sentence, by removing 

‘‘Regardless of the provisions of FAR 

45.505–3(f)(1)(ii), have’’ and adding in 

its place ‘‘Have’’. 

252.245–7000 [Amended] 

■ 12. Section 252.245–7000 is amended 

in the introductory text by removing 

‘‘245.310–70’’ and adding in its place 

‘‘245.107–70’’. 

[FR Doc. E9–17954 Filed 7–28–09; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 207, 235, and 252 

RIN 0750–AF96 

Defense Federal Acquisition 

Regulation Supplement; Protection of 

Human Subjects in Research Projects 

(DFARS Case 2007–D008) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD has issued a final rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to address requirements for the 

protection of human subjects involved 

in research projects. The rule contains a 

clause for use in contracts that include 

or may include research involving 

human subjects. 

DATES: Effective Date: July 29, 2009. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Mark Gomersall, Defense Acquisition 

Regulations System, OUSD (AT&L) 

DPAP (DARS), IMD 3D139, 3062 

Defense Pentagon, Washington, DC 

20301–3062. Telephone 703–602–0302; 

facsimile 703–602–7887. Please cite 

DFARS Case 2007–D008. 

SUPPLEMENTARY INFORMATION: 

A. Background 

This final rule adds DFARS policy 

addressing statutory and regulatory 

requirements for the ethical treatment of 

human subjects involved in research 

projects. The rule contains a clause for 

use in contracts involving human 

subjects in research, to inform 

contractors of their responsibilities for 

compliance with 32 CFR Part 219; DoD 

Directive 3216.02; applicable DoD 

component policies; 10 U.S.C. 980; and, 

when applicable, Food and Drug 

Administration policies and regulations. 

DoD published a proposed rule at 73 

FR 63666 on October 27, 2008. DoD 

received no comments on the proposed 

rule. Therefore, DoD has adopted the 

proposed rule as a final rule without 

change. 

This rule was subject to Office of 

Management and Budget review under 

Executive Order 12866, dated 

September 30, 1993. 

B. 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 the rule is a reinforcement of 

existing requirements and obligations 

that apply with regard to the protection 

of human subjects involved in research 

projects. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply, because the rule does not 

contain any new information collection 

requirements that require the approval 

of the Office of Management and Budget 

under 44 U.S.C. 3501, et seq. 

List of Subjects in 48 CFR Parts 207, 

235, and 252 

Government procurement. 

Michele P. Peterson, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR parts 207, 235, and 

252 are amended as follows: 

■ 1. The authority citation for 48 CFR 

parts 207, 235, and 252 continues to 

read as follows: 

Authority: 41 U.S.C. 421 and 48 CFR 

Chapter 1. 

PART 207—ACQUISITION PLANNING 

■ 2. Section 207.172 is added to read as 

follows: 

207.172 Human research. 

Any DoD component sponsoring 

research involving human subjects— 

(a) Is responsible for oversight of 

compliance with 32 CFR Part 219, 

Protection of Human Subjects; and 

(b) Must have a Human Research 

Protection Official, as defined in the 

clause at 252.235–7004, Protection of 

Human Subjects, and identified in the 

DoD component’s Human Research 

Protection Management Plan. This 

official is responsible for the oversight 

and execution of the requirements of the 

clause at 252.235–7004 and shall be 

identified in acquisition planning. 

PART 235—RESEARCH AND 

DEVELOPMENT CONTRACTING 

■ 3. Section 235.072 is amended by 

adding paragraph (e) to read as follows: 

235.072 Additional contract clauses. 

* * * * * 

(e) Use the clause at 252.235–7004, 

Protection of Human Subjects, in 

solicitations and contracts that include 

or may include research involving 

human subjects in accordance with 32 

CFR Part 219, DoD Directive 3216.02, 

and 10 U.S.C. 980, including research 

that meets exemption criteria under 32 

CFR 219.101(b). The clause— 

(1) Applies to solicitations and 

contracts awarded by any DoD 

component, regardless of mission or 

funding Program Element Code; and 

(2) Does not apply to use of cadaver 

materials alone, which are not directly 

regulated by 32 CFR Part 219 or DoD 

Directive 3216.02, and which are 

governed by other DoD policies and 

applicable State and local laws. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 4. Section 252.235–7004 is added to 

read as follows: 

252.235–7004 Protection of Human 

Subjects. 

As prescribed in 235.072(e), use the 

following clause: 


sroberts on DSKD5P82C1PROD with RULES