[Federal Register: October 4, 2006 (Volume 71, Number 192)]
[Rules and Regulations]               
[Page 58537-58538]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04oc06-18]                         

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 212 and 234

RIN 0750-AF38

 
Defense Federal Acquisition Regulation Supplement; Acquisition of 
Major Weapon Systems as Commercial Items (DFARS Case 2006-D012)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Interim rule with request for comments.

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SUMMARY: DoD has issued an interim rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to implement Section 803 of 
the National Defense Authorization Act for Fiscal Year 2006. Section 
803 places limitations on the acquisition of a major weapon system as a 
commercial item.

DATES: Effective date: October 4, 2006.
    Comment date: Comments on the interim rule should be submitted in 
writing to the address shown below on or before December 4, 2006, to be 
considered in the formation of the final rule.

ADDRESSES: You may submit comments, identified by DFARS Case 2006-D012, 
using any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 

Follow the instructions for submitting comments.
     E-mail: dfars@osd.mil. Include DFARS Case 2006-D012 in the 
subject line of the message.
     Fax: (703) 602-0350.
     Mail: Defense Acquisition Regulations System, Attn: Mr. 
Bill Sain, OUSD(AT&L)DPAP(DARS), IMD 3C132, 3062 Defense Pentagon, 
Washington, DC 20301-3062.
     Hand Delivery/Courier: Defense Acquisition Regulations 
System, Crystal

[[Page 58538]]

Square 4, Suite 200A, 241 18th Street, Arlington, VA 22202-3402.
    Comments received generally will be posted without change to http://www.regulations.gov
, including any personal information provided.


FOR FURTHER INFORMATION CONTACT: Mr. Bill Sain, (703) 602-0293.

SUPPLEMENTARY INFORMATION: 

A. Background

    This interim rule adds DFARS policy to implement Section 803 of the 
National Defense Authorization Act for Fiscal Year 2006 (Pub. L. 109-
163). Section 803 permits the treatment or acquisition of a major 
weapon system as a commercial item only if (1) the Secretary of Defense 
determines that the major weapon system meets the definition of 
commercial item at 41 U.S.C. 403(12) and such treatment is necessary to 
meet national security objectives; and (2) the congressional defense 
committees are notified at least 30 days before such treatment or 
acquisition occurs.
    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 does not expect this rule 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., because the rule 
relates to internal DoD considerations regarding the acquisition of 
major weapons systems. Therefore, DoD has not performed an initial 
regulatory flexibility analysis. DoD invites comments from small 
businesses and other interested parties. DoD also will consider 
comments from small entities concerning the affected DFARS subparts in 
accordance with 5 U.S.C. 610. Such comments should be submitted 
separately and should cite DFARS Case 2006-D012.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply, because the rule does 
not impose any information collection requirements that require the 
approval of the Office of Management and Budget under 44 U.S.C. 3501, 
et seq.

D. Determination To Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Defense that urgent and compelling reasons exist to publish an 
interim rule prior to affording the public an opportunity to comment. 
This interim rule implements Section 803 of the National Defense 
Authorization Act for Fiscal Year 2006 (Pub. L. 109-163), which 
requires that, before DoD may treat or acquire a major weapon system as 
a commercial item (1) the Secretary of Defense must determine that the 
major weapon system meets the definition of commercial item at 41 
U.S.C. 403(12) and that such treatment is necessary to meet national 
security objectives; and (2) the congressional defense committees must 
be notified at least 30 days in advance. Comments received in response 
to this interim rule will be considered in the formation of the final 
rule.

List of Subjects in 48 CFR Parts 212 and 234

    Government procurement.

Michele P. Peterson,
Editor, Defense Acquisition Regulations System.

0
Therefore, 48 CFR Parts 212 and 234 are amended as follows:
0
1. The authority citation for 48 CFR Parts 212 and 234 continues to 
read as follows:

    Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.

PART 212--ACQUISITION OF COMMERCIAL ITEMS

0
2. Section 212.270 is added to read as follows:


Sec.  212.270  Major weapon systems as commercial items.

    The DoD policy for acquiring major weapon systems as commercial 
items is in Subpart 234.70.

PART 234--MAJOR SYSTEM ACQUISITION

0
3. Subpart 234.70 is added to read as follows:

Subpart 234.70--Acquisition of Major Weapon Systems as Commercial 
Items

Sec.
234.7000 Scope of subpart.
234.7001 Definition.
234.7002 Policy.

Subpart 234.70--Acquisition of Major Weapon Systems as Commercial 
Items


Sec.  234.7000  Scope of subpart.

    This subpart--
    (a) Implements 10 U.S.C. 2379; and
    (b) Requires a determination by the Secretary of Defense and a 
notification to Congress before acquiring a major weapon system as a 
commercial item.


Sec.  234.7001  Definition.

    Major weapon system, as used in this subpart, means a weapon system 
acquired pursuant to a major defense acquisition program, as defined in 
10 U.S.C. 2430 to be a program that--
    (1) Is not a highly sensitive classified program, as determined by 
the Secretary of Defense; and
    (2)(i) Is designated by the Secretary of Defense as a major defense 
acquisition program; or
    (ii) Is estimated by the Secretary of Defense to require an 
eventual total expenditure for research, development, test, and 
evaluation of more than $300,000,000 (based on fiscal year 1990 
constant dollars) or an eventual total expenditures for procurement of 
more than $1,800,000,000 (based on fiscal year 1990 constant dollars).


Sec.  234.7002  Policy.

    (a) A DoD major weapon system may be treated as a commercial item, 
or acquired under procedures established for the acquisition of 
commercial items, only if--
    (1) The Secretary of Defense determines that--
    (i) The major weapon system is a commercial item as defined in FAR 
2.101; and
    (ii) Such treatment is necessary to meet national security 
objectives; and
    (2) The congressional defense committees are notified at least 30 
days before such treatment or acquisition occurs. Follow the procedures 
at PGI 234.7002.
    (b) A subsystem or component of a major weapon system that meets 
the definition of a commercial item--
    (1) Shall be acquired under the procedures established for the 
acquisition of commercial items (see FAR Part 12); and
    (2) Is not subject to the requirements of paragraph (a) of this 
section.
    (c) The authority of the Secretary of Defense to make a 
determination under paragraph (a)(1) of this section may not be 
delegated below the level of Deputy Secretary of Defense.

 [FR Doc. E6-16398 Filed 10-3-06; 8:45 am]

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