Defense Federal Acquisition Regulation Supplement; Foreign Acquisition, 73153-73156 [05-23721]
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Federal Register / Vol. 70, No. 236 / Friday, December 9, 2005 / Rules and Regulations
with Australia and Morocco, as
approved by Congress in the United
States-Australia Free Trade Agreement
Implementation Act (Public Law 108–
286) and the United States-Morocco
Free Trade Agreement Implementation
Act (Public Law 108–302). The Free
Trade Agreements were scheduled to
become effective on or after January 1,
2005. However, the United States Trade
Representative has informed DoD that
the Morocco Free Trade Agreement has
not yet entered into force. Therefore,
implementation of the Morocco Free
Trade Agreement is excluded from this
final rule. In addition, for consistency
with the Federal Acquisition Regulation
and other changes made by the interim
rule, this final rule amends the
definition of ‘‘eligible product’’ at
225.003 to include foreign construction
material.
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. DoD
applies the trade agreements to only
those non-defense items listed at
DFARS 225.401–70; and acquisitions
that are set aside for small business
concerns are exempt from application of
the trade agreements.
C. Paperwork Reduction Act
This rule affects the certification and
information collection requirements in
the provisions at DFARS 252.225–7020
and 252.225–7035, currently approved
under Office of Management and Budget
Control Number 0704–0229. The
impact, however, is negligible.
List of Subjects in 48 CFR Parts 225 and
252
Government procurement.
Accordingly, the interim rule
amending 48 CFR parts 225 and 252,
which was published at 70 FR 2361 on
January 13, 2005, is adopted as a final
rule with the following changes:
I
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.
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2. Section 225.003 is amended as
follows:
I a. In paragraph (5)(i)(B), by removing
‘‘or’’;
I b. By redesignating paragraph (5)(ii) as
paragraph (5)(iii); and
I c. By adding a new paragraph (5)(ii) to
read as follows:
I
225.003
Definitions.
*
*
*
*
*
(5) * * *
(ii) A foreign construction material
that is not subject to discriminatory
treatment, due to the applicability of a
trade agreement to a particular
acquisition; or
*
*
*
*
*
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
252.212–7001
[Amended]
3. Section 252.212–7001 is amended
as follows:
I a. By revising the clause date to read
‘‘(DEC 2005)’’; and
I b. In paragraph (b), in entry ‘‘252.225–
7021’’, by removing ‘‘(JUN 2005)’’ and
adding in its place ‘‘(DEC 2005)’’.
I
252.225–7021
[Amended]
4. Section 252.225–7021 is amended
as follows:
I a. By revising the clause date to read
‘‘(DEC 2005)’’; and
I b. In paragraph (a)(3)(ii), by removing
‘‘Morocco,’’.
I 5. Section 252.225–7045 is amended
as follows:
I a. By revising the clause date to read
‘‘(DEC 2005)’’;
I b. In paragraph (a), in the definition of
‘‘Designated country’’, in paragraph (2),
by removing ‘‘Morocco,’’; and
I c. By revising Alternate I to read as
follows:
I
252.225–7045 Balance of Payments
Program—Construction Material Under
Trade Agreements.
*
Michele P. Peterson,
Editor, Defense Acquisition Regulations
System.
I
PART 225—FOREIGN ACQUISITION
*
*
*
*
Alternate I (DEC 2005). As prescribed
in 225.7503(b), delete the definitions of
‘‘designated country’’ and ‘‘designated
country construction material’’ from the
definitions in paragraph (a) of the basic
clause, add the following definition of
‘‘Australian or Chilean construction
material’’ to paragraph (a) of the basic
clause, and substitute the following
paragraphs (b) and (c) for paragraphs (b)
and (c) of the basic clause:
Australian or Chilean construction
material means a construction material
that—
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73153
(1) Is wholly the growth, product, or
manufacture of Australia or Chile; or
(2) In the case of a construction
material that consists in whole or in part
of materials from another country, has
been substantially transformed in
Australia or Chile into a new and
different construction material distinct
from the materials from which it was
transformed.
(b) This clause implements the
Balance of Payments Program by
providing a preference for domestic
construction material. In addition, the
Contracting Officer has determined that
the WTO GPA and all Free Trade
Agreements except NAFTA apply to this
acquisition. Therefore, the Balance of
Payments Program restrictions are
waived for WTO GPA country,
Australian or Chilean, least developed
country, or Caribbean Basin country
construction material.
(c) The Contractor shall use only
domestic, WTO GPA country,
Australian or Chilean, least developed
country, or Caribbean Basin country
construction material in performing this
contract, except for—
(1) Construction material valued at or
below the simplified acquisition
threshold in Part 2 of the Federal
Acquisition Regulation; or
(2) The construction material or
components listed by the Government
as follows:
[Contracting Officer to list applicable
excepted materials or indicate ‘‘none’’]
[FR Doc. 05–23722 Filed 12–8–05; 8:45 am]
BILLING CODE 5001–08–P
DEPARTMENT OF DEFENSE
48 CFR Parts 225 and 252
[DFARS Case 2003–D008]
Defense Federal Acquisition
Regulation Supplement; Foreign
Acquisition
Department of Defense (DoD).
Final rule.
AGENCY:
ACTION:
SUMMARY: DoD has issued a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to update text pertaining to the
acquisition of supplies and services
from foreign sources. This rule is a
result of a transformation initiative
undertaken by DoD to dramatically
change the purpose and content of the
DFARS.
DATES: Effective Date: December 9, 2005.
FOR FURTHER INFORMATION CONTACT: Ms.
Amy Williams, Defense Acquisition
Regulations System,
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73154
Federal Register / Vol. 70, No. 236 / Friday, December 9, 2005 / Rules and Regulations
OUSD(AT&L)DPAP(DAR), IMD 3C132,
3062 Defense Pentagon, Washington, DC
20301–3062. Telephone (703) 602–0328;
facsimile (703) 602–0350. Please cite
DFARS Case 2003–D008.
SUPPLEMENTARY INFORMATION:
A. Background
DFARS Transformation is a major
DoD initiative to dramatically change
the purpose and content of the DFARS.
The objective is to improve the
efficiency and effectiveness of the
acquisition process, while allowing the
acquisition workforce the flexibility to
innovate. The transformed DFARS will
contain only requirements of law, DoDwide policies, delegations of FAR
authorities, deviations from FAR
requirements, and policies/procedures
that have a significant effect beyond the
internal operating procedures of DoD or
a significant cost or administrative
impact on contractors or offerors.
Additional information on the DFARS
Transformation initiative is available at
https://www.acq.osd.mil/dpap/dars/
dfars/transformation/index.htm.
This final rule is a result of the
DFARS Transformation Initiative. The
DFARS changes include—
• Deletion of redundant or
unnecessary text at 225.000, 225.171,
225.871–1(b), 225.7301(a)(1) through
(3), and 225.7306.
• Deletion of text at 225.001, 225.504,
225.802, 225.870–1(d), 225.870–5,
225.870–7, 225.871–5(c), 225.872–4,
225.872–5, 225.872–6(c), 225.873–2,
225.902, 225.903, 225.7301, and
225.7302 containing internal DoD
procedures, guidance, or information.
This text has been relocated to the new
DFARS companion resource,
Procedures, Guidance, and Information
(PGI), available at https://
www.acq.osd.mil/dpap/dars/pgi.
• Clarification of DFARS text as
follows:
• 225.401–70—Addition of a
statutory reference and amendment of
the section heading.
• 225.408—Clarification that the
exception from FAR 25.408(a)(4) for
overseas acquisitions applies only to the
requirement for submission of offers in
U.S. dollars.
• 225.701—Expansion of the crossreference to restrictions on contracting
with firms owned or controlled by
foreign governments that support
terrorism (from 209.104–1(g)(i) to
209.104–1(g)).
• 225.871–6—Clarification that
property that is jointly acquired by the
members of a NATO cooperative project
may be disposed of in accordance with
the terms of the cooperative project
agreement, without regard to any laws
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of the United States applicable to the
disposal of property owned by the
United States.
• 225.7003—Clarification that the
waiver procedures in 225.7003 apply
only if specifically authorized by
reference elsewhere in Subpart 225.70.
• 225.7303–2(a)(3) and (redesignated)
225.7306—Addition of cross-references.
• 225.7501(a)(2)(iii)—Deletion of a
reference to DoD Directive, 4120.3,
Defense Standardization and
Specification Program, which was
cancelled in 1991.
DoD published a proposed rule at 70
FR 14625 on March 23, 2005. DoD
received no comments on the proposed
rule. Therefore, DoD has adopted the
proposed rule as a final rule, with an
additional change at 225.7301 to reflect
the text added to 225.7301 in the
interim rule published at 70 FR 57191
on September 30, 2005. Also, the text
proposed for addition to 225.802–70(c)
has been excluded from this final rule,
as this text was added to 225.7401(b) in
the final rule published at 70 FR 23790
on May 5, 2005.
This rule was not subject to Office of
Management and Budget review under
Executive Order 12866, dated
September 30, 1993.
PART 225—FOREIGN ACQUISITION
225.000
[Removed]
2. Section 225.000 is removed.
3. Section 225.001 is revised to read
as follows:
I
I
225.001
General.
For guidance on evaluating offers of
foreign end products, see PGI 225.001.
225.171
[Removed]
4. Section 225.171 is removed.
5. Section 225.401–70 is amended by
revising the section heading and the last
sentence of the introductory text to read
as follows:
I
I
225.401–70 End products subject to trade
agreements.
* * * However, 225.003 expands the
definition of Caribbean Basin country
end products to include petroleum and
any product derived from petroleum, in
accordance with Section 8094 of Pub. L.
103–139.
*
*
*
*
*
I 6. Section 225.408 is revised to read
as follows:
225.408
Procedures.
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 updates, streamlines,
and clarifies DFARS text, but makes no
significant change to DoD contracting
policy.
(a)(4) The requirements of FAR
25.408(a)(4), on submission of offers in
U.S. dollars, do not apply to overseas
acquisitions or to Defense Energy
Support Center post, camp, or station
overseas requirements.
I 7. Section 225.504 is revised to read
as follows:
225.504
C. Paperwork Reduction Act
Evaluation examples.
For examples that illustrate the
evaluation procedures in 225.502(c)(ii),
see PGI 225.504.
I 8. Section 225.701 is revised to read
as follows:
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.
225.701
List of Subjects in 48 CFR Parts 225 and
252
225.802
Restrictions.
See 209.104–1(g) for restrictions on
contracting with firms owned or
controlled by foreign governments.
I 9. Section 225.802 is revised to read
as follows:
Procedures.
Michele P. Peterson,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR parts 225 and 252
are amended as follows:
I 1. The authority citation for 48 CFR
parts 225 and 252 continues to read as
follows:
(b) Information on memoranda of
understanding and other international
agreements is available at PGI
225.802(b).
I 10. Section 225.870–1 is amended by
revising paragraph (d) and removing
paragraph (e). The revised text reads as
follows:
225.870–1
Government procurement.
I
Authority: 41 U.S.C. 421 and 48 CFR
Chapter 1.
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General.
*
*
*
*
*
(d) For additional information on
production rights, data, and
information; services provided by
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Canadian Commercial Corporation;
audit; and inspection, see PGI 225.870–
1(d).
I 11. Section 225.870–5 is revised to
read as follows:
225.870–5
Contract administration.
Follow the contract administration
procedures at PGI 225.870–5.
I 12. Section 225.870–7 is revised to
read as follows:
225.870–7
supplies.
Acceptance of Canadian
14. Section 225.871–1 is revised to
read as follows:
I
Scope.
This section implements 22 U.S.C.
2767 and 10 U.S.C. 2350b.
I 15. Section 225.871–5 is amended by
revising paragraph (b) and removing
paragraph (c). The revised text reads as
follows:
Directed subcontracting.
*
*
*
*
*
(b) In some instances, it may not be
feasible to name specific subcontractors
at the time the agreement is concluded.
However, the agreement shall clearly
state the general provisions for work
sharing at the prime and subcontract
level. For additional information on
cooperative project agreements, see PGI
225.871–5.
I 16. Section 225.871–6 is revised to
read as follows:
225.871–6
Disposal of property.
Dispose of property that is jointly
acquired by the members of a
cooperative project under the
procedures established in the agreement
or in a manner consistent with the terms
of the agreement, without regard to any
laws of the United States applicable to
the disposal of property owned by the
United States.
I 17. Section 225.872–4 is revised to
read as follows:
225.872–4
Individual determinations.
If the offer of an end product from a
qualifying country source listed in
225.872–1(b), as evaluated, is low or
otherwise eligible for award, prepare a
determination and findings exempting
the acquisition from the Buy American
Act and the Balance of Payments
Program as inconsistent with the public
interest, unless another exception such
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225.872–6
225.7302
Contract administration.
*
225.871 North Atlantic Treaty Organization
(NATO) cooperative projects.
225.871–5
*
*
*
*
(b) Follow the contract administration
procedures at PGI 225.872–5(b).
(c) Information on quality assurance
delegations to foreign governments is in
Subpart 246.4, Government Contract
Quality Assurance.
I 19. Section 225.872–6 is amended by
revising paragraph (c) to read as follows:
governments or international
organizations through FMS agreements.
The agreement is documented in a
Letter of Offer and Acceptance (LOA)
(see DoD 5105.38–M, Security
Assistance Management Manual).
(b) Conduct FMS acquisitions under
the same acquisition and contract
management procedures used for other
defense acquisitions.
(c) Follow the additional procedures
at PGI 225.7301(c) for preparation of
solicitations and contracts that include
FMS requirements.
(d) See 229.170 for policy on contracts
financed under U.S. assistance programs
that involve payment of foreign country
value added taxes or customs duties.
225.872–5
For information on the acceptance of
Canadian supplies, see PGI 225.870–7.
I 13. Section 225.871 is revised to read
as follows:
225.871–1
as the Trade Agreements Act applies.
Follow the procedures at PGI 225.872–
4.
I 18. Section 225.872–5 is amended by
revising paragraphs (b) and (c) and by
removing paragraph (d). The revised
text reads as follows:
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Audit.
*
Guidance.
*
*
*
*
(c) Handle requests for audits in
qualifying countries in accordance with
215.404–2(c), but follow the additional
procedures at PGI 225.872–6(c).
I 20. Section 225.873–2 is revised to
read as follows:
For guidance on the role of the
contracting officer in FMS programs that
will require an acquisition, see PGI
225.7302.
I 24. Section 225.7303–2 is amended in
paragraph (a)(3) by revising the
introductory text to read as follows:
225.873–2
225.7303–2 Cost of doing business with a
foreign government or an international
organization.
Procedures.
When an offeror or a contractor
identifies a levy included in an offered
or contract price, follow the procedures
at PGI 225.873–2.
I 21. Sections 225.902 and 225.903 are
revised to read as follows:
225.902
225.7303–4
Procedures.
[Amended]
25. Section 225.7303–4 is amended in
paragraph (b)(1) by revising the last
parenthetical to read ‘‘(see
225.7307(a))’’.
I
Follow the entry and release
procedures at PGI 225.902.
225.903
(a) * * *
(3) Offset costs (also see 225.7306).
*
*
*
*
*
Exempted supplies.
(b)(i) For an explanation of the term
‘‘supplies,’’ see PGI 225.903(b)(i).
(ii) The duty-free certificate shall be
printed, stamped, or typed on the face
of, or attached to, Customs Form 7501.
A duly designated officer or civilian
official of the appropriate department or
agency shall execute the certificate in
the format provided at PGI
225.903(b)(ii).
I 22. Section 225.7003 is amended in
paragraph (a) by revising the
introductory text to read as follows:
225.7306
I
[Removed]
26. Section 225.7306 is removed.
225.7307 and 225.7308
[Redesignated]
27. Sections 225.7307 and 225.7308
are redesignated as sections 225.7306
and 225.7307, respectively.
I 28. Newly designated section
225.7306 is revised to read as follows:
I
225.7306
Offset arrangements.
(a) The waiver procedures of this
section apply only if specifically
authorized by reference elsewhere in
this subpart. The restrictions on certain
foreign purchases under 10 U.S.C.
2534(a) may be waived as follows:
*
*
*
*
*
I 23. Sections 225.7301 and 225.7302
are revised to read as follows:
In accordance with the Presidential
policy statement of April 16, 1990, DoD
does not encourage, enter into, or
commit U.S. firms to FMS offset
arrangements. The decision whether to
engage in offsets, and the responsibility
for negotiating and implementing offset
arrangements, resides with the
companies involved. (Also see
225.7303–2(a)(3).)
I 29. Section 225.7501 is amended by
revising paragraph (a)(2)(iii) to read as
follows:
225.7301
225.7501
225.7003 Waiver of restrictions of 10
U.S.C. 2534.
General.
(a) The U.S. Government sells defense
articles and services to foreign
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*
Policy.
*
*
(a) * * *
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*
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(2) * * *
(iii) A spare part for foreignmanufactured vehicles, equipment,
machinery, or systems, provided the
acquisition is restricted to the original
manufacturer or its supplier;
*
*
*
*
*
List of Topics
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
252.225–7027 and 252.225–7028
[Amended]
30. Sections 252.225–7027 and
252.225–7028 are amended in the
introductory text by removing
‘‘225.7308’’ and adding in its place
‘‘225.7307’’.
I
[FR Doc. 05–23721 Filed 12–8–05; 8:45 am]
BILLING CODE 5001–08–P
DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials
Safety Administration
49 CFR Parts 105, 106, 107, 110, 171,
172, 173, 174, 175, 176, 177, 178 and
180
[Docket No. PHMSA–2005–22208 (HM–240)]
RIN 2137–AE12
Hazardous Materials: Incorporation of
Statutorily Mandated Revisions to the
Hazardous Materials Regulations
Pipeline and Hazardous
Materials Safety Administration
(PHMSA), DOT.
ACTION: Final rule.
AGENCY:
SUMMARY: This final rule revises
terminology, definitions, and
requirements for consistency with the
Hazardous Materials Safety and Security
Reauthorization Act of 2005. These
amendments include revising the
definitions of ‘‘hazmat employee’’ and
‘‘hazmat employer;’’ revision of
shipping paper retention requirements;
providing a security plan exception for
farmers; adding conditional
applicability of postal laws and
regulations; and replacement of
‘‘Exemption’’ with ‘‘Special permit.’’
DATES: Effective date: January 9, 2006.
FOR FURTHER INFORMATION CONTACT:
Cameron Satterthwaite or Kurt
Eichenlaub, Office of Hazardous
Materials Standards, (202) 366–8553,
Pipeline and Hazardous Materials Safety
Administration, U.S. Department of
Transportation, 400 Seventh Street,
SW., Washington, DC 20590–0001.
SUPPLEMENTARY INFORMATION:
VerDate Aug<31>2005
16:58 Dec 08, 2005
Jkt 208001
I. Background
II. Summary of Issues
A. Definitions of ‘‘hazmat employee’’ and
‘‘hazmat employer’’
B. Revision of shipping paper retention
requirements
C. Security plan exception for farmers
D. Applicability of postal laws and
regulations
E. Replacement of ‘‘Exemption’’ with
‘‘Special permit’’
III. Regulatory Analysis
A. Statutory/Legal Authority for This
Rulemaking
B. Executive Order 12866 and DOT
Regulatory Policies and Procedures
C. Executive Order 13132
D. Executive Order 13175
E. Regulatory Flexibility Act, Executive
Order 13272, and DOT Procedures and
Policies
F. Unfunded Mandates Reform Act of 1995
G. Paperwork Reduction Act
H. Environmental Impact Analysis
I. Regulation Identifier Number (RIN)
I. Background
Section 5103 of the Federal
Hazardous Materials Transportation
Law (Federal hazmat law; 49 U.S.C.
5101 et seq.) authorizes the Pipeline and
Hazardous Materials Safety
Administration (PHMSA) to prescribe
safety and security regulations for the
transportation of hazardous materials in
interstate, intrastate, and foreign
commerce. The Hazardous Materials
Safety and Security Reauthorization Act
of 2005 (the Act; Title VII of Pub. L.
109–59, 119 Stat. 1144 (August 10,
2005)) amended Federal hazmat law by
revising certain terminology,
definitions, and requirements. This final
rule revises the Hazardous Materials
Regulations (HMR; 49 CFR parts 171–
180) and the hazardous materials
program and rulemaking procedures in
49 CFR parts 105, 106 and 107 to be
consistent with changes mandated by
the Act.
Because these amendments are
mandated and self-executing, notice and
public procedure are unnecessary. By
making these amendments effective
without the customary 30-day delay
following publication, the changes will
appear in the next revision of Title 49,
Code of Federal Regulations.
The following is a summary of the
changes made in this final rule.
II. Summary of Issues
The Act mandates revisions to the
following provisions of the HMR and
the hazardous materials program and
rulemaking procedures:
A. Definitions of ‘‘hazmat employee’’ and
‘‘hazmat employer’’
B. Revision of shipping paper retention
requirements
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C. Security plan exception for farmers
D. Applicability of postal laws and
regulations
E. Replacement of ‘‘Exemption’’ with
‘‘Special permit’’
A. Definitions of ‘‘Hazmat Employee’’
and ‘‘Hazmat Employer’’
We are revising the definitions of
‘‘hazmat employee’’ and ‘‘hazmat
employer’’ in § 171.8 for consistency
with editorial revisions adopted under
the Act. We are revising the definitions
of ‘‘hazmat employee’’ and ‘‘hazmat
employer’’ to specify both of these
definitions include self-employed
individuals. Also, both definitions are
revised to include persons that
represent, mark, certify, or sell
packaging components as qualified for
use in transporting hazardous materials
in commerce. In addition, the Act
amends § 5107 of Federal hazmat law to
mandate general awareness and safety
training pursuant to § 172.704 of the
HMR for railroad maintenance-of-way
employees and railroad signalmen.
Therefore, we are also revising the
definition of ‘‘hazmat employee’’ to
include railroad maintenance-of-way
employees and railroad signalmen. To
provide rail carriers with sufficient time
to implement the new training
requirements, we are requiring initial
training for maintenance-of-way
employees and railroad signalmen to be
completed by October 1, 2006.
Section 172.704 requires each hazmat
employee to receive general awareness/
familiarization training, functionspecific training, safety training, and
security awareness training. Functionspecific training is not necessary for
railroad maintenance-of-way employees
and railroad signalmen who do not
perform functions specifically regulated
under the HMR. Thus, we are revising
§ 172.704(e) to provide an exception
from function-specific training for such
railroad maintenance-of-way employees
and railroad signalmen. We are also
excepting railroad maintenance-of-way
employees and railroad signalmen from
the requirement in § 172.704(a)(4) for
security awareness training because
such training is not mandated under the
Act. However, we may consider
requiring such training for railroad
maintenance-of-way employees and
railroad signalmen in a future
rulemaking.
B. Revision of Shipping Paper Retention
Requirements
Under the HMR, each person who
provides a shipping paper must retain a
copy of the shipping paper for 375 days
after the hazardous material is accepted
by the initial carrier. Each carrier must
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]]>Agencies
[Federal Register Volume 70, Number 236 (Friday, December 9, 2005)]
[Rules and Regulations]
[Pages 73153-73156]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-23721]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
48 CFR Parts 225 and 252
[DFARS Case 2003-D008]
Defense Federal Acquisition Regulation Supplement; Foreign
Acquisition
AGENCY: Department of Defense (DoD).
ACTION: Final rule.
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SUMMARY: DoD has issued a final rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to update text pertaining to
the acquisition of supplies and services from foreign sources. This
rule is a result of a transformation initiative undertaken by DoD to
dramatically change the purpose and content of the DFARS.
DATES: Effective Date: December 9, 2005.
FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, Defense Acquisition
Regulations System,
[[Page 73154]]
OUSD(AT&L)DPAP(DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC
20301-3062. Telephone (703) 602-0328; facsimile (703) 602-0350. Please
cite DFARS Case 2003-D008.
SUPPLEMENTARY INFORMATION:
A. Background
DFARS Transformation is a major DoD initiative to dramatically
change the purpose and content of the DFARS. The objective is to
improve the efficiency and effectiveness of the acquisition process,
while allowing the acquisition workforce the flexibility to innovate.
The transformed DFARS will contain only requirements of law, DoD-wide
policies, delegations of FAR authorities, deviations from FAR
requirements, and policies/procedures that have a significant effect
beyond the internal operating procedures of DoD or a significant cost
or administrative impact on contractors or offerors. Additional
information on the DFARS Transformation initiative is available at
https://www.acq.osd.mil/dpap/dars/dfars/transformation/index.htm.
This final rule is a result of the DFARS Transformation Initiative.
The DFARS changes include--
Deletion of redundant or unnecessary text at 225.000,
225.171, 225.871-1(b), 225.7301(a)(1) through (3), and 225.7306.
Deletion of text at 225.001, 225.504, 225.802, 225.870-
1(d), 225.870-5, 225.870-7, 225.871-5(c), 225.872-4, 225.872-5,
225.872-6(c), 225.873-2, 225.902, 225.903, 225.7301, and 225.7302
containing internal DoD procedures, guidance, or information. This text
has been relocated to the new DFARS companion resource, Procedures,
Guidance, and Information (PGI), available at https://www.acq.osd.mil/
dpap/dars/pgi.
Clarification of DFARS text as follows:
225.401-70--Addition of a statutory reference and
amendment of the section heading.
225.408--Clarification that the exception from FAR
25.408(a)(4) for overseas acquisitions applies only to the requirement
for submission of offers in U.S. dollars.
225.701--Expansion of the cross-reference to restrictions
on contracting with firms owned or controlled by foreign governments
that support terrorism (from 209.104-1(g)(i) to 209.104-1(g)).
225.871-6--Clarification that property that is jointly
acquired by the members of a NATO cooperative project may be disposed
of in accordance with the terms of the cooperative project agreement,
without regard to any laws of the United States applicable to the
disposal of property owned by the United States.
225.7003--Clarification that the waiver procedures in
225.7003 apply only if specifically authorized by reference elsewhere
in Subpart 225.70.
225.7303-2(a)(3) and (redesignated) 225.7306--Addition of
cross-references.
225.7501(a)(2)(iii)--Deletion of a reference to DoD
Directive, 4120.3, Defense Standardization and Specification Program,
which was cancelled in 1991.
DoD published a proposed rule at 70 FR 14625 on March 23, 2005. DoD
received no comments on the proposed rule. Therefore, DoD has adopted
the proposed rule as a final rule, with an additional change at
225.7301 to reflect the text added to 225.7301 in the interim rule
published at 70 FR 57191 on September 30, 2005. Also, the text proposed
for addition to 225.802-70(c) has been excluded from this final rule,
as this text was added to 225.7401(b) in the final rule published at 70
FR 23790 on May 5, 2005.
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 updates, streamlines, and clarifies DFARS text, but
makes no significant change to DoD contracting policy.
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.
List of Subjects in 48 CFR Parts 225 and 252
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations System.
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Therefore, 48 CFR parts 225 and 252 are amended as follows:
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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
225.000 [Removed]
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2. Section 225.000 is removed.
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3. Section 225.001 is revised to read as follows:
225.001 General.
For guidance on evaluating offers of foreign end products, see PGI
225.001.
225.171 [Removed]
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4. Section 225.171 is removed.
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5. Section 225.401-70 is amended by revising the section heading and
the last sentence of the introductory text to read as follows:
225.401-70 End products subject to trade agreements.
* * * However, 225.003 expands the definition of Caribbean Basin
country end products to include petroleum and any product derived from
petroleum, in accordance with Section 8094 of Pub. L. 103-139.
* * * * *
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6. Section 225.408 is revised to read as follows:
225.408 Procedures.
(a)(4) The requirements of FAR 25.408(a)(4), on submission of
offers in U.S. dollars, do not apply to overseas acquisitions or to
Defense Energy Support Center post, camp, or station overseas
requirements.
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7. Section 225.504 is revised to read as follows:
225.504 Evaluation examples.
For examples that illustrate the evaluation procedures in
225.502(c)(ii), see PGI 225.504.
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8. Section 225.701 is revised to read as follows:
225.701 Restrictions.
See 209.104-1(g) for restrictions on contracting with firms owned
or controlled by foreign governments.
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9. Section 225.802 is revised to read as follows:
225.802 Procedures.
(b) Information on memoranda of understanding and other
international agreements is available at PGI 225.802(b).
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10. Section 225.870-1 is amended by revising paragraph (d) and removing
paragraph (e). The revised text reads as follows:
225.870-1 General.
* * * * *
(d) For additional information on production rights, data, and
information; services provided by
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Canadian Commercial Corporation; audit; and inspection, see PGI
225.870-1(d).
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11. Section 225.870-5 is revised to read as follows:
225.870-5 Contract administration.
Follow the contract administration procedures at PGI 225.870-5.
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12. Section 225.870-7 is revised to read as follows:
225.870-7 Acceptance of Canadian supplies.
For information on the acceptance of Canadian supplies, see PGI
225.870-7.
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13. Section 225.871 is revised to read as follows:
225.871 North Atlantic Treaty Organization (NATO) cooperative
projects.
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14. Section 225.871-1 is revised to read as follows:
225.871-1 Scope.
This section implements 22 U.S.C. 2767 and 10 U.S.C. 2350b.
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15. Section 225.871-5 is amended by revising paragraph (b) and removing
paragraph (c). The revised text reads as follows:
225.871-5 Directed subcontracting.
* * * * *
(b) In some instances, it may not be feasible to name specific
subcontractors at the time the agreement is concluded. However, the
agreement shall clearly state the general provisions for work sharing
at the prime and subcontract level. For additional information on
cooperative project agreements, see PGI 225.871-5.
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16. Section 225.871-6 is revised to read as follows:
225.871-6 Disposal of property.
Dispose of property that is jointly acquired by the members of a
cooperative project under the procedures established in the agreement
or in a manner consistent with the terms of the agreement, without
regard to any laws of the United States applicable to the disposal of
property owned by the United States.
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17. Section 225.872-4 is revised to read as follows:
225.872-4 Individual determinations.
If the offer of an end product from a qualifying country source
listed in 225.872-1(b), as evaluated, is low or otherwise eligible for
award, prepare a determination and findings exempting the acquisition
from the Buy American Act and the Balance of Payments Program as
inconsistent with the public interest, unless another exception such as
the Trade Agreements Act applies. Follow the procedures at PGI 225.872-
4.
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18. Section 225.872-5 is amended by revising paragraphs (b) and (c) and
by removing paragraph (d). The revised text reads as follows:
225.872-5 Contract administration.
* * * * *
(b) Follow the contract administration procedures at PGI 225.872-
5(b).
(c) Information on quality assurance delegations to foreign
governments is in Subpart 246.4, Government Contract Quality Assurance.
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19. Section 225.872-6 is amended by revising paragraph (c) to read as
follows:
225.872-6 Audit.
* * * * *
(c) Handle requests for audits in qualifying countries in
accordance with 215.404-2(c), but follow the additional procedures at
PGI 225.872-6(c).
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20. Section 225.873-2 is revised to read as follows:
225.873-2 Procedures.
When an offeror or a contractor identifies a levy included in an
offered or contract price, follow the procedures at PGI 225.873-2.
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21. Sections 225.902 and 225.903 are revised to read as follows:
225.902 Procedures.
Follow the entry and release procedures at PGI 225.902.
225.903 Exempted supplies.
(b)(i) For an explanation of the term ``supplies,'' see PGI
225.903(b)(i).
(ii) The duty-free certificate shall be printed, stamped, or typed
on the face of, or attached to, Customs Form 7501. A duly designated
officer or civilian official of the appropriate department or agency
shall execute the certificate in the format provided at PGI
225.903(b)(ii).
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22. Section 225.7003 is amended in paragraph (a) by revising the
introductory text to read as follows:
225.7003 Waiver of restrictions of 10 U.S.C. 2534.
(a) The waiver procedures of this section apply only if
specifically authorized by reference elsewhere in this subpart. The
restrictions on certain foreign purchases under 10 U.S.C. 2534(a) may
be waived as follows:
* * * * *
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23. Sections 225.7301 and 225.7302 are revised to read as follows:
225.7301 General.
(a) The U.S. Government sells defense articles and services to
foreign governments or international organizations through FMS
agreements. The agreement is documented in a Letter of Offer and
Acceptance (LOA) (see DoD 5105.38-M, Security Assistance Management
Manual).
(b) Conduct FMS acquisitions under the same acquisition and
contract management procedures used for other defense acquisitions.
(c) Follow the additional procedures at PGI 225.7301(c) for
preparation of solicitations and contracts that include FMS
requirements.
(d) See 229.170 for policy on contracts financed under U.S.
assistance programs that involve payment of foreign country value added
taxes or customs duties.
225.7302 Guidance.
For guidance on the role of the contracting officer in FMS programs
that will require an acquisition, see PGI 225.7302.
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24. Section 225.7303-2 is amended in paragraph (a)(3) by revising the
introductory text to read as follows:
225.7303-2 Cost of doing business with a foreign government or an
international organization.
(a) * * *
(3) Offset costs (also see 225.7306).
* * * * *
225.7303-4 [Amended]
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25. Section 225.7303-4 is amended in paragraph (b)(1) by revising the
last parenthetical to read ``(see 225.7307(a))''.
225.7306 [Removed]
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26. Section 225.7306 is removed.
225.7307 and 225.7308 [Redesignated]
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27. Sections 225.7307 and 225.7308 are redesignated as sections
225.7306 and 225.7307, respectively.
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28. Newly designated section 225.7306 is revised to read as follows:
225.7306 Offset arrangements.
In accordance with the Presidential policy statement of April 16,
1990, DoD does not encourage, enter into, or commit U.S. firms to FMS
offset arrangements. The decision whether to engage in offsets, and the
responsibility for negotiating and implementing offset arrangements,
resides with the companies involved. (Also see 225.7303-2(a)(3).)
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29. Section 225.7501 is amended by revising paragraph (a)(2)(iii) to
read as follows:
225.7501 Policy.
* * * * *
(a) * * *
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(2) * * *
(iii) A spare part for foreign-manufactured vehicles, equipment,
machinery, or systems, provided the acquisition is restricted to the
original manufacturer or its supplier;
* * * * *
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
252.225-7027 and 252.225-7028 [Amended]
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30. Sections 252.225-7027 and 252.225-7028 are amended in the
introductory text by removing ``225.7308'' and adding in its place
``225.7307''.
[FR Doc. 05-23721 Filed 12-8-05; 8:45 am]
BILLING CODE 5001-08-P
