Defense Federal Acquisition Regulation Supplement; Restrictions on Totally Enclosed Lifeboat Survival Systems, 14628 [05-5632]

Agencies

• DEPARTMENT OF DEFENSE

[Federal Register Volume 70, Number 55 (Wednesday, March 23, 2005)]
[Proposed Rules]
[Page 14628]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-5632]


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DEPARTMENT OF DEFENSE

48 CFR Parts 225 and 252

[DFARS Case 2004-D034]


Defense Federal Acquisition Regulation Supplement; Restrictions 
on Totally Enclosed Lifeboat Survival Systems

AGENCY: Department of Defense (DoD).

ACTION: Proposed rule with request for comments.

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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to remove text addressing restrictions on 
the acquisition of totally enclosed lifeboat survival systems. The text 
proposed for removal is based on fiscal year 1994 and 1995 
appropriations act provisions that are no longer considered applicable, 
or is based on statutory provisions that apply only to the Navy.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before May 23, 2005, to be considered in 
the formation of the final rule.

ADDRESSES: You may submit comments, identified by DFARS Case 2004-D034, 
using any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Defense Acquisition Regulations Web Site: https://
emissary.acq.osd.mil/dar/dfars.nsf/pubcomm. Follow the instructions for 
submitting comments.
     E-mail: dfars@osd.mil. Include DFARS Case 2004-D034 in the 
subject line of the message.
     Fax: (703) 602-0350.
     Mail: Defense Acquisition Regulations Council, Attn: Ms. 
Amy Williams, OUSD(AT&L)DPAP(DAR), IMD 3C132, 3062 Defense Pentagon, 
Washington, DC 20301-3062.
     Hand Delivery/Courier: Defense Acquisition Regulations 
Council, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA 
22202-3402.
    All comments received will be posted to https://
emissary.acq.osd.mil/dar/dfars.nsf.

FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, (703) 602-0328.

SUPPLEMENTARY INFORMATION:

A. Background

    This proposed rule removes DFARS 225.7008, Restrictions on totally 
enclosed lifeboat survival systems, and the corresponding contract 
clause at DFARS 252.225-7039. These restrictions implement Section 8124 
of the Fiscal Year 1994 DoD Appropriations Act (Public Law 103-139), 
Section 8093 of the Fiscal Year 1995 DoD Appropriations Act (Public Law 
103-335), and 10 U.S.C. 2534. Both appropriations act provisions state 
that none of the funds appropriated in ``this or any other Act'' could 
be used for the purchase of a totally enclosed lifeboat and associated 
davits and winches, if less than 50 percent of the entire system's 
components are manufactured in the United States, and if less than 50 
percent of the labor in the manufacture and assembly of the entire 
system is performed in the United States.
    There is a presumption that any provision in an annual 
appropriations act is effective only for that fiscal year, unless 
permanency is clearly indicated by words of futurity, or the provision 
is of a general nature, bearing no relation to the object of the 
appropriations. At the time of implementation of the restrictions on 
acquisition of totally enclosed lifeboat systems in the DFARS, DoD 
interpreted the phrase ``this or any other Act'' to impart futurity to 
the restrictions on acquisition of totally enclosed lifeboat systems. 
DoD has reevaluated this interpretation and has determined that the 
appropriations act provisions upon which the DFARS coverage is based 
were not permanent legislation. This position is supported by review of 
case law, including a U.S. Comptroller General decision of September 
16, 1987, B-228838, in which the General Accounting Office held that 
language such as ``this or any other Act'' does not indicate futurity.
    10 U.S.C. 2534(a) restricts the acquisition of totally enclosed 
lifeboats that are components of naval vessels. Since this restriction 
impacts only the Navy, and 10 U.S.C. 2534(h) specifies that DoD may not 
use contract clauses or certifications, but must use management and 
oversight techniques, to implement this restriction, DFARS coverage for 
implementation of this restriction is considered unnecessary.
    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 domestic 
source restrictions of 10 U.S.C. 2534 still apply to the acquisition of 
totally enclosed lifeboats that are components of naval vessels. 
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 
2004-D034.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the rule does 
not contain any 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 225 and 252

    Government procurement.

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

    Therefore, DoD proposes to amend 48 CFR Parts 225 and 252 as 
follows:
    1. The authority citation for 48 CFR Parts 225 and 252 continues to 
read as follows:


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

PART 225--FOREIGN ACQUISITION


Sec.  Sec.  225.7008 through 225.7008-4  [Removed and Reserved]

    2. Sections 225.7008 through 225.7008-4 are removed and reserved.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


Sec.  252.225-7039  [Removed and Reserved]

    3. Section 252.225-7039 is removed and reserved.

[FR Doc. 05-5632 Filed 3-22-05; 8:45 am]
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