2022-23284. Defense Federal Acquisition Regulation Supplement: Removal of Passive Radio Frequency Requirements (DFARS Case 2022-D020)

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 remove passive radio frequency identification requirements.

DATES:

Effective October 28, 2022.

FOR FURTHER INFORMATION CONTACT:

Ms. Kimberly R. Ziegler, telephone [phone].

SUPPLEMENTARY INFORMATION:

I. Background

DoD is amending the DFARS to remove requirements for the use of passive radio frequency identification (RFID) tags for shipments that meet the criteria at DFARS 211.275-2. DoD no longer requires the use of passive RFID tags for shipments due to the use of more cost-effective technologies.

Accordingly, this rule removes and reserves the contract clause at DFARS 252.211-7006, Passive Radio Frequency Identification, which requires contractors to submit advance shipment notices to associate the passive RFID tag with the corresponding shipment, and removes and reserves section 211.275, Passive radio frequency identification. DFARS sections 211.275-1, Definitions; 211.275-2, Policy; and 211.275-3, Contract clause, are also removed. DFARS clause 252.211-7006 is removed from the list of solicitation provisions and contract clauses for the acquisition of commercial items at DFARS 212.301.

DoD issued the final rule for DFARS Case 2004-D011 (70 FR 53955) on September 13, 2005, to require that contractors affix passive RFID tags at the case and palletized unit load levels when shipping packaged operational rations, clothing, individual equipment, tools, personal demand items, or weapon system repair parts to two specific Defense Distribution Depots. The rule also required contractors to send an advance shipment notice to provide the association between the unique identification encoded on the passive tag(s) and the product information at the applicable case and palletized unit load level(s).

DoD later updated the passive RFID requirements and the associated contract clause at DFARS 252.211-7006 (76 FR 58142) on September 20, 2011, to expand the use of the tags to numerous sites and provide a new website that enabled contractors to find the RFID identifier for each specific DoD ship-to address that used RFID technology.

II. Publication of This Final Rule for Public Comment Is Not Required by Statute

The statute that applies to the publication of the Federal Acquisition Regulation (FAR) is 41 U.S.C. 1707, Publication of Proposed Regulations. Subsection (a)(1) of the statute requires that a procurement policy, regulation, procedure, or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because DoD is not issuing a new regulation; rather, this rule is removing an unneeded contract clause from the DFARS that will reduce the administrative burden on contractors or offerors.

III. Applicability to Contracts at or Below the Simplified Acquisition Threshold, for Commercial Products Including Commercially Available Off-the-Shelf (COTS) Items, and for Commercial Services

This rule does not impose any new requirements on contracts at or below the simplified acquisition threshold, for commercial products including commercially available off-the-shelf items, or for commercial services. The rule removes and reserves DFARS clause 252.211-7006, Passive Radio Frequency Identification, and removes the clause from the list of solicitation provisions and contract clauses for the acquisition of commercial items at DFARS 212.301.

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 E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.

V. Congressional Review Act

As required by the Congressional Review Act (5 U.S.C. 801-808) before an interim or final rule takes effect, DoD will submit a copy of the interim or final rule with the form, Submission of Federal Rules Under the Congressional Review Act, to the U.S. Senate, the U.S. House of Representatives, and to the Comptroller General of the United States. A major rule under the Congressional Review Act cannot take effect until 60 days after it is published in the Federal Register . The Office of Information and Regulatory Affairs has determined that this rule is not a major rule as defined by 5 U.S.C. 804.

VII. Regulatory Flexibility Act

The Regulatory Flexibility Act does not apply to this rule because this final rule does not constitute a significant DFARS revision within the meaning of FAR 1.501-1, and 41 U.S.C. 1707 does not require publication for public comment.

VIII. Paperwork Reduction Act

This rule removes the information collection requirements associated with the clause at DFARS 252.211.7006, Passive Radio Frequency Identification, currently approved under OMB Control Number 0704-0434, entitled “Radio Frequency Identification Advance Shipment Notices”. Accordingly, DoD submitted, and OMB approved, the following reduction of the annual reporting burden and OMB inventory of hours under OMB Control Number 0704-0434 as follows:

Respondents: 5,217.

Responses per respondent: 3,782.

Total annual responses: 19,732,850.

Hours per response: Approximately 1.16 seconds.

Total response burden hours: 6,358.

List of Subjects in 48 CFR Parts 211, 212, and 252

• Government procurement

Jennifer D. Johnson,

Editor/Publisher, Defense Acquisition Regulations System.

Therefore, 48 CFR parts 211, 212, and 252 are amended as follows:

1. The authority citation for 48 CFR parts 211, 212, and 252 continues to read as follows:

Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

PART 211—DESCRIBING AGENCY NEEDS

211.275

[Removed and Reserved]

2. Remove and reserve section 211.275.

211.275-1 through 211.275-3

[Removed]

3. Remove sections 211.275-1 through 211.275-3.

PART 212—ACQUISITION OF COMMERCIAL ITEMS

212.301

[Amended]

4. Amend section 212.301 by—

a. Removing paragraph (f)(iv)(B); and

b. Redesignating paragraphs (f)(iv)(C) and (D) as paragraphs (f)(iv)(B) and (C).

PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

252.211-7006

[Removed and Reserved]

5. Remove and reserve section 252.211-7006.