Federal Acquisition Regulation; FAR Case 2006-006, Free Trade Agreements-El Salvador, Honduras, and Nicaragua, 36935-36938 [06-5707]
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Federal Register / Vol. 71, No. 124 / Wednesday, June 28, 2006 / Rules and Regulations
22.1012–2
[Removed]
22.1012–3
[Redesignated as 22.1012–2]
22.1012–4 and 22.1012–5
[Removed]
23a. Remove sections 22.1012–2,
22.1012–4 and 22.1012–5; and
redesignate 22.1012–3 as 22.1012–2.
I 23b. In addition to the amendment
above, revise the redesignated section
22.1012–2 to read as follows:
I
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22.1012–2 Wage determinations based on
collective bargaining agreements.
(a) In sealed bidding, a new or
changed collective bargaining agreement
shall not be effective under section 4(c)
of the Act if the contracting agency has
received notice of the terms of the new
or changed collective bargaining
agreement less than 10 days before bid
opening and the contracting officer
determines that there is not reasonable
time to incorporate the new or changed
terms of the collective bargaining
agreement in the solicitation.
(b) For contractual actions other than
sealed bidding, a new or changed
collective bargaining agreement shall
not be effective under section 4(c) of the
Act if notice of the terms of the new or
changed collective bargaining agreement
is received by the contracting agency
after award of a successor contract or a
modification as specified in 22.1007(b),
provided that the contract start of
performance is within 30 days of the
award of the contract or of the specified
modification. If the contract does not
specify a start of performance date
which is within 30 days of the award of
the contract or of the specified
modification, or if contract performance
does not commence within 30 days of
the award of the contract or of the
specified modification, any notice of the
terms of a new or changed collective
bargaining agreement received by the
agency not less than 10 days before
commencement of the work shall be
effective for purposes of the successor
contract under section 4(c) of the Act.
(c) The limitations in paragraphs (a)
and (b) of this subsection shall apply
only if timely notification required in
22.1010 has been given.
(d) If the contracting officer has
submitted an e98 to Department of
Labor requesting a wage determination
based on a collective bargaining
agreement and has not received a
response from the Department of Labor
within 10 days, the contracting officer
shall contact the Wage and Hour
Division by telephone to determine
when the wage determination can be
expected. (The telephone number is
provided on the e98 website.) If the
Department of Labor is unable to
provide the wage determination by the
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latest date needed to maintain the
acquisition schedule, the contracting
officer shall incorporate the collective
bargaining agreement itself in a
solicitation or other contract action (e.g.,
exercise of option) and include a wage
determination referencing that
collective bargaining agreement created
by use of the WDOL website (see
22.1008–2(d)(2)).
I 24. Revise section 22.1014 to read as
follows:
22.1014 Delay over 60 days in bid opening
or commencement of work.
If a wage determination was obtained
through the e98 process, and bid
opening, or commencement of work
under a negotiated contract has been
delayed, for whatever reason, more than
60 days from the date indicated on the
previously submitted e98, the
contracting officer shall submit a new
e98. Any revision of a wage
determination received by the
contracting agency as a result of that
communication shall supersede the
earlier response as the wage
determination applicable to the
particular acquisition subject to the time
frames in 22.1012–1(b) and (c).
22.1017
36935
29. Amend section 52.222–48 by
revising the section and clause headings
as set forth below.
I
52.222–48 Exemption from Application of
Service Contract Act Provisions—
Contractor Certification.
*
*
*
*
*
EXEMPTION FROM APPLICATION OF
SERVICE CONTRACT ACT PROVISIONS—
CONTRACTOR CERTIFICATION (JUN 2006)
*
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*
52.222–49
*
*
[Amended]
30. Amend section 52.222–49 by
removing from the introductory text
‘‘and 22.1009–4(c)’’.
I
PART 53—FORMS
53.222
[Amended]
31. Amend section 53.222 by
removing ‘‘99,’’ from the section
heading; and removing and reserving
paragraph (b).
I
53.301
[Amended]
32. Remove sections 53.301–98,
53.301–98a, and 53.301–99.
[REMOVE SF’S 98, 98A AND 99]
I
[FR Doc. 06–5708 Filed 6–27–06; 8:45 am]
BILLING CODE 6820–EP–S
[Removed and Reserved]
25. Remove and reserve section
22.1017.
DEPARTMENT OF DEFENSE
PART 47—TRANSPORTATION
GENERAL SERVICES
ADMINISTRATION
I
26. Amend section 47.202 by revising
paragraph (a) to read as follows:
I
47.202
Presolicitation planning.
*
*
*
*
*
(a) The Service Contract Act of 1965
(SCA) requirement to obtain a wage
determination by accessing the Wage
Determination OnLine website (https://
www.wdol.gov) using the WDOL process
or by submitting a request directly to the
Department of Labor on this website
using the e98 process before the
issuance of an invitation for bid, request
for proposal, or commencement of
negotiations for any contract exceeding
$2,500 that may be subject to the SCA
(see Subpart 22.10);
*
*
*
*
*
PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
52.212–5
[Amended]
27. Amend section 52.212–5 by
revising the date of the clause to read
‘‘(JUN 2006)’’; and by removing
paragraph (c)(5).
I
52.222–47
[Removed and Reserved]
28. Remove and reserve section
52.222–47.
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NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 25 and 52
[FAC 2005–10; FAR Case 2006–006; Item
V; Docket 2006–0020, Sequence 10]
RIN 9000–AK49
Federal Acquisition Regulation; FAR
Case 2006–006, Free Trade
Agreements—El Salvador, Honduras,
and Nicaragua
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Interim rule with request for
comments.
AGENCIES:
SUMMARY: The Civilian Agency
Acquisition Council and the Defense
Acquisition Regulations Council
(Councils) have agreed on an interim
rule amending the Federal Acquisition
Regulation (FAR) to implement the
Dominican Republic-Central AmericaUnited States Free Trade Agreement
with respect to El Salvador, Honduras,
and Nicaragua.
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Effective Date: June 28, 2006.
Comment Date: Interested parties
should submit written comments to the
FAR Secretariat on or before August 28,
2006 to be considered in the
formulation of a final rule.
ADDRESSES: Submit comments
identified by FAC 2005–10, FAR case
2006–006 by any of the following
methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Agency Web site: https://
www.acquisition.gov/far/
ProposedRules/comments.htm. Click on
the FAR case number to submit
comments.
• E-mail: farcase.2006–006@gsa.gov.
Include FAC 2005–10, FAR case 2006–
006, in the subject line of the message.
• Fax: 202–501–4067.
• Mail: General Services
Administration, Regulatory Secretariat
(VIR), 1800 F Street, NW, Room 4035,
ATTN: Laurieann Duarte, Washington,
DC 20405.
Instructions: Please submit comments
only and cite FAC 2005–10, FAR case
2006–006, in all correspondence related
to this case. All comments received will
be posted without change to https://
www.acquisition.gov/far/
ProposedRules/comments.htm,
including any personal and/or business
confidential information provided.
FOR FURTHER INFORMATION CONTACT For
clarification of content, contact Ms.
Gloria Sochon, Procurement Analyst, at
(202) 219–0311. Please cite FAC 2005–
10, FAR case 2006–006. For information
pertaining to status or publication
schedules, contact the FAR Secretariat
at (202) 501–4755.
SUPPLEMENTARY INFORMATION:
DATES:
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A. Background
This rule amends FAR Part 25 and the
clauses at 52.212–3, Offeror
Representations and Certifications—
Commercial Items, 52.212–5, Contract
Terms and Conditions Required to
Implement Statutes or Executive
Orders—Commercial Items, 52.225–3,
Buy American Act—Free Trade
Agreements—Israeli Trade Act, 52.225–
4, Buy American Act—Free Trade
Agreements—Israeli Trade Act
Certificate, 52.225–5, Trade Agreements,
52.225–11, Buy American Act—
Construction Materials under Trade
Agreements, and 52.225–12, Notice of
Buy American Act Requirement—
Construction Materials under Trade
Agreements, to implement the
Dominican Republic—Central
America—United States Free Trade
Agreement (CAFTA-DR) with respect to
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El Salvador, Honduras, and Nicaragua.
Congress approved the CAFTA-DR in
the Dominican Republic—Central
America—United States Free Trade
Agreement Implementation Act (Public
Law 109–53). Other signatory countries
to the CAFTA-DR are Costa Rica, the
Dominican Republic, and Guatemala.
These regulations will be amended
when the CAFTA-DR takes effect for
these other countries. The CAFTA-DR
waives the applicability of the Buy
American Act for some foreign supplies
and construction materials from El
Salvador, Honduras, and Nicaragua and
specifies procurement procedures
designed to ensure fairness in the
acquisition of supplies and services.
The excluded services for the CAFTADR are the same as for the Chile FTA
and NAFTA. For supply and service
contracts, the CAFTA-DR has the same
threshold as the other FTAs ($64,786),
except the Morocco FTA and the
NAFTA with respect to supply contracts
involving Canada. For construction
contracts, CAFTA-DR has the same
threshold as the Chile FTA, Morocco
FTA, Singapore FTA, and the WTO GPA
($7,407,000), lower than the NAFTA
threshold of $8,422,165.
This is not a significant regulatory
action and, therefore, was not subject to
review under Section 6(b) of Executive
Order 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
B. Regulatory Flexibility Act
The interim rule is not expected 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.
Although the rule opens up Government
procurement to the goods and services
of El Salvador, Honduras, and
Nicaragua, the Councils do not
anticipate any significant economic
impact on U.S. small businesses. The
Department of Defense only applies the
trade agreements to the non-defense
items listed at DFARS 225.401–70, and
acquisitions that are set aside for small
businesses are exempt. Therefore, an
Initial Regulatory Flexibility Analysis
has not been performed. The Councils
will consider comments from small
entities concerning the affected FAR
parts 25 and 52 in accordance with 5
U.S.C. 610. Interested parties must
submit such comments separately and
should cite 5 U.S.C 601, et seq. (FAC
2005–10, FAR case 2006–006), in
correspondence.
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C. Paperwork Reduction Act
The Paperwork Reduction Act does
not apply because the changes to the
FAR do not impose 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
(DoD), the Administrator of General
Services (GSA), and the Administrator
of the National Aeronautics and Space
Administration (NASA) that urgent and
compelling reasons exist to promulgate
this interim rule without prior
opportunity for public comment. This
action is necessary because the CAFTADR took effect with respect to El
Salvador on March 1, 2006, and took
effect with respect to Honduras and
Nicaragua on April 1, 2006. However,
pursuant to Public Law 98–577 and FAR
1.501, the Councils will consider public
comments received in response to this
interim rule in the formation of the final
rule.
List of Subjects in 48 CFR Parts 25 and
52
Government procurement.
Dated: June 20, 2006.
Ralph De Stefano,
Director, Contract Policy Division.
Therefore, DoD, GSA, and NASA
amend 48 CFR parts 25 and 52 as set
forth below:
I 1. The authority citation for 48 CFR
parts 25 and 52 continues to read as
follows:
I
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 137; and 42 U.S.C. 2473(c).
PART 25—FOREIGN ACQUISITION
2. Amend section 25.003 by—
a. Revising the definition ‘‘Caribbean
Basin country’’
I b. Revising paragraph (2) of the
definition ‘‘Designated country’’ and
removing from paragraph (4) of the
definition ‘‘El Salvador,’’, ‘‘Honduras,’’,
and ‘‘Nicaragua,’’ and
I c. Revising the definition ‘‘Free Trade
Agreement country’’.
I The revised text reads as follows:
I
I
25.003
Definitions.
*
*
*
*
*
Caribbean Basin country means any of
the following countries: Antigua and
Barbuda, Aruba, Bahamas, Barbados,
Belize, British Virgin Islands, Costa
Rica, Dominica, Dominican Republic,
Grenada, Guatemala, Guyana, Haiti,
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Jamaica, Montserrat, Netherlands
Antilles, St. Kitts and Nevis, St. Lucia,
St. Vincent and the Grenadines, or
Trinidad and Tobago.
*
*
*
*
*
Designated country * * *
(1) * * *
(2) A Free Trade Agreement country
(Australia, Canada, Chile, El Salvador,
Honduras, Mexico, Morocco, Nicaragua,
or Singapore);
*
*
*
*
*
Free Trade Agreement country means
Australia, Canada, Chile, El Salvador,
Honduras, Mexico, Morocco, Nicaragua,
or Singapore.
*
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I 3. Amend section 25.400 by removing
from the end of paragraph (a)(2)(iv) the
word ‘‘and’’ adding at the end of
paragraph (a)(2)(v) the word ‘‘and’’; and
adding a new paragraph (a)(2)(vi) to
read as follows:
25.400
Scope of Subpart.
(a) * * *
(2) * * *
(i) * * *
(vi) CAFTA-DR (The Dominican
Republic-Central America-United States
Free Trade Agreement, as approved by
Congress in the Dominican RepublicCentral America-United States Free
Trade Agreement Implementation Act
(Pub. L. 109–53);
*
*
*
*
*
25.401
[Amended]
4. Amend section 25.401 in paragraph
(b), in the table heading, by removing
from the third column ‘‘NAFTA and
Chile FTA’’ and adding ‘‘NAFTA,
CAFTA-DR, and Chile FTA’’ in its
place.
I
25.402
[Amended]
5. Amend section 25.402 in paragraph
(b), in the table, by adding after
‘‘Australia FTA’’ the entry ‘‘CAFTA-DR
(El Salvador, Honduras, and
Nicaragua’’) and in its corresponding
line items ‘‘64,786’’, ‘‘64,786’’, and
‘‘7,407,000’’, respectively.
I 6. Amend section 25.405 by adding a
new sentence to the end of the
paragraph to read as follows:
I
25.405
Caribbean Basin Trade Initiative.
* * * In accordance with Section 201
(a)(3) of the Dominican Republic—
Central America—United States Free
Trade Implementation Act (Pub. L. 109–
53), when the CAFTA-DR agreement
enters into force with respect to a
country, that country is no longer
designated as a beneficiary country for
purposes of the Caribbean Basin
Economic Recovery Act, and is therefore
no longer included in the definition of
‘‘Caribbean Basin country’’ for purposes
of the Caribbean Basin Trade Initiative.
PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
7. Amend section 52.212–3 by—
a. Revising the date of the clause;
I b. Removing from paragraph (g)(1)(i)
‘‘and ‘‘United States’’ and adding ‘‘‘‘Free
Trade Agreement country,’’ and ‘‘United
States’’’’ in its place;
I c. Revising paragraph (g)(1)(ii); and
I d. Revising the paragraph headings for
(g)(2) and (g)(3) by removing the
parenthetical ‘‘(JAN 2004)’’.
I The revised text reads as follows:
I
I
52.212–3 Offeror Representations and
Certifications—Commercial Items.
*
*
*
[List as necessary]
*
52.212–5
*
*
The revised and added text reads as
follows:
[Amended]
8. Amend section 52.212–5 by—
a. Revising the date of the clause to
read ‘‘(JUN 2006)’’;
I b. Removing from paragraph (b)(24)(i)
‘‘(APR 2006)’’ and adding ‘‘(JUN 2006)’’
in its place and adding to the end of the
paragraph ‘‘, and 109–53’’; and
I c. Removing from paragraph (b)(25)
‘‘(APR 2006)’’ and adding ‘‘(JUN 2006)’’
in its place.
I 9. Amend section 52.225–3 by—
I a. Revising the date of the clause;
I b. Removing from paragraph (a) the
definition ‘‘End product of Australia,
Canada, Chile, Mexico, or Singapore’’;
and adding, in alphabetical order, the
definitions ‘‘Free Trade Agreement
country’’, ‘‘Free Trade Agreement
country end product’’, and ‘‘Moroccan
end product’’; and
I c. Revising the last sentence in
paragraph (c).
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52.225–3 Buy American Act—Free Trade
Agreements—Israeli Trade Act.
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BUY AMERICAN ACT—FREE TRADE
AGREEMENTS—ISRAELI TRADE ACT (JUN
2006)
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Definitions. * * *
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*
*
Free Trade Agreement country means
Australia, Canada, Chile, El Salvador,
Honduras, Mexico, Morocco, Nicaragua,
or Singapore.
Free Trade Agreement country end
product means an article that—
(1) Is wholly the growth, product, or
manufacture of a Free Trade Agreement
country; or
(2) In the case of an article that
consists in whole or in part of materials
from another country, has been
substantially transformed in a Free
Trade Agreement country into a new
and different article of commerce with
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(g)(1) * * *
(i) * * *
(ii) The offeror certifies that the
following supplies are Free Trade
Agreement country end products (other
than Moroccan end products) or Israeli
end products as defined in the clause of
this solicitation entitled ‘‘Buy American
Act—Free Trade Agreements—Israeli
Trade Act’’:
Free Trade Agreement Country End
Products (Other than Moroccan End
Products) or Israeli End Products:
COUNTRY OF ORIGIN
llllllllll
llllllllll
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*
OFFEROR REPRESENTATIONS AND
CERTIFICATIONS—COMMERCIAL ITEMS
(JUN 2006)
LINE ITEM NO.
llllllllll
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36937
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a name, character, or use distinct from
that of the article or articles from which
it was transformed. The term refers to a
product offered for purchase under a
supply contract, but for purposes of
calculating the value of the end product
includes services (except transportation
services) incidental to the article,
provided that the value of those
incidental services does not exceed that
of the article itself.
*
*
*
*
*
Moroccan end product means an
article that—
(1) Is wholly the growth, product, or
manufacture of Morocco; or
(2) In the case of an article that
consists in whole or in part of materials
from another country, has been
substantially transformed in Morocco
into a new and different article of
commerce with a name, character, or
use distinct from that of the article or
articles from which it was transformed.
The term refers to a product offered for
purchase under a supply contract, but
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for purposes of calculating the value of
the end product includes services
(except transportation services)
incidental to the article, provided that
the value of those incidental services
does not exceed that of the article itself.
*
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*
*
*
(c) * * * If the Contractor specified in
its offer that the Contractor would
supply a Free Trade Agreement country
end product (other than a Moroccan end
product) or an Israeli end product, then
the Contractor shall supply a Free Trade
Agreement country end product (other
than a Moroccan end product), an Israeli
end product or, at the Contractor’s
option, a domestic end product.
*
*
*
*
*
I 10. Amend section 52.225–4 by—
I a. Revising the date of the clause;
I b. Revising the second sentence of
paragraph (a); and
I c. Revising paragraph (b).
I The revised text reads as follows:
52.225–4 Buy American Act—Free Trade
Agreements—Israeli Trade Act Certificate.
*
*
*
*
*
BUY AMERICAN ACT—FREE TRADE
AGREEMENTS—ISRAELI TRADE ACT
CERTIFICATE (JUN 2006)
(a) * * * The terms ‘‘component,’’
‘‘domestic end product,’’ ‘‘end
product,’’ ‘‘foreign end product,’’ ‘‘Free
Trade Agreement country,’’ ‘‘Free Trade
Agreement country end product,’’
‘‘Israeli end product,’’ ‘‘Moroccan end
product,’’ and ‘‘United States’’ are
defined in the clause of this solicitation
entitled ‘‘Buy American Act—Free
Trade Agreements—Israeli Trade Act.’’
(b) The offeror certifies that the
following supplies are Free Trade
Agreement country end products (other
than Moroccan end products) or Israeli
end products as defined in the clause of
this solicitation entitled ‘‘Buy American
Act—Free Trade Agreements—Israeli
Trade Act’’:
Free Trade Agreement Country End
Products (Other than Moroccan End
Products) or Israeli End Products:
LINE ITEM NO.
llllllllll
llllllllll
llllllllll
[List as necessary]
*
*
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*
I 11. Amend section 52.225–5 by—
I a. Revising the date of the clause; and
I b. In paragraph (a), in the definition
‘‘Designated country’’, revising
paragraph (2), and removing from
paragraph (4) ‘‘El Salvador’’,
‘‘Honduras,’’, and ‘‘Nicaragua,’’.
I The revised text reads as follows:
52.225–5
*
*
Trade Agreements.
*
*
*
TRADE AGREEMENTS (JUN 2006)
*
*
*
*
*
(a) Definitions. * * *
Designated country * * *
(1) * * *
(2) Free Trade Agreement country
(Australia, Canada, Chile, El Salvador,
Honduras, Mexico, Morocco, Nicaragua,
or Singapore).
*
*
*
*
*
I 12. Amend section 52.225–11 by—
I a. Revising the date of the clause;
I b. In paragraph (a), in the definition
‘‘Designated country’’, revising
paragraph (2), and removing from
paragraph (4) ‘‘El Salvador,’’
‘‘Honduras,’’ and Nicaragua,’’; and
I c. Revising Alternate I.
I The revised text reads as follows:
52.225–11 Buy American Act—
Construction Materials under Trade
Agreements.
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*
*
*
*
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(a) Definitions. * * *
Designated country * * *
(2) Free Trade Agreement country
(Australia, Canada, Chile, El Salvador,
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Honduras, Mexico, Morocco, Nicaragua,
or Singapore);
*
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*
*
Alternate I ‘‘(JUN 2006)’’. As prescribed in
25.1102(c)(3), add the following definition of
‘‘Mexican construction material’’ to
paragraph (a) of the basic clause, and
substitute the following paragraphs (b)(1) and
(b)(2) for paragraphs (b)(1) and (b)(2) of the
basic clause:
Mexican construction material means a
construction material that—
(1) Is wholly the growth, product, or
manufacture of Mexico; 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 Mexico into a new and
different construction material distinct from
the materials from which it was transformed.
(b) Construction materials. (1) This clause
implements the Buy American Act (41 U.S.C.
10a - 10d) by providing a preference for
domestic construction material. In addition,
the Contracting Officer has determined that
the WTO GPA and all the Free Trade
Agreements except NAFTA apply to this
acquisition. Therefore, the Buy American Act
restrictions are waived for designated
country construction materials other than
Mexican construction materials.
(2) The Contractor shall use only domestic
or designated country construction material
other than Mexican construction material in
performing this contract, except as provided
in paragraphs (b)(3) and (b)(4) of this clause.
Alternate II ‘‘(JUN 2006)’’. As prescribed in
25.1102(d)(3), add the definition of ‘‘Mexican
construction material’’ to paragraph (a) and
substitute the following paragraph (d) for
paragraph (d) of the basic provision:
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[FR Doc. 06–5707 Filed 6–27–06; 8:45 am]
52.225–12 Notice of Buy American Act
Requirement—Construction Materials
Under Trade Agreements.
*
*
(3) If the Government determines that a
particular exception requested in accordance
with paragraph (c) of FAR clause 52.225–11
does not apply, the Government will evaluate
only those offers based on use of the
equivalent domestic or designated country
construction material other than Mexican
construction material. An offer based on use
of the foreign construction material for which
an exception was requested—
13. In section 52.225–12, amend
Alternate II by revising the introductory
text; removing paragraph (a); and
revising paragraph (d)(1) and the
introductory text of paragraph (d)(3) to
read as follows:
*
*
(d) Alternate offers. (1) When an offer
includes foreign construction material,
except foreign construction material from a
designated country other than Mexico, that is
not listed by the Government in this
solicitation in paragraph (b)(3) of FAR clause
52.225–11, the offeror also may submit an
alternate offer based on use of equivalent
domestic or designated country construction
material other than Mexican construction
material.
I
BUY AMERICAN ACT—CONSTRUCTION
MATERIALS UNDER TRADE AGREEMENTS
(JUN 2006)
*
COUNTRY OF ORIGIN
llllllllll
llllllllll
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E:\FR\FM\28JNR3.SGM
28JNR3
]]>Agencies
[Federal Register Volume 71, Number 124 (Wednesday, June 28, 2006)]
[Rules and Regulations]
[Pages 36935-36938]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-5707]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 25 and 52
[FAC 2005-10; FAR Case 2006-006; Item V; Docket 2006-0020, Sequence 10]
RIN 9000-AK49
Federal Acquisition Regulation; FAR Case 2006-006, Free Trade
Agreements--El Salvador, Honduras, and Nicaragua
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on an interim
rule amending the Federal Acquisition Regulation (FAR) to implement the
Dominican Republic-Central America-United States Free Trade Agreement
with respect to El Salvador, Honduras, and Nicaragua.
[[Page 36936]]
DATES: Effective Date: June 28, 2006.
Comment Date: Interested parties should submit written comments to
the FAR Secretariat on or before August 28, 2006 to be considered in
the formulation of a final rule.
ADDRESSES: Submit comments identified by FAC 2005-10, FAR case 2006-006
by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Agency Web site: https://www.acquisition.gov/far/
ProposedRules/comments.htm. Click on the FAR case number to submit
comments.
E-mail: farcase.2006-006@gsa.gov. Include FAC 2005-10, FAR
case 2006-006, in the subject line of the message.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (VIR), 1800 F Street, NW, Room 4035, ATTN: Laurieann
Duarte, Washington, DC 20405.
Instructions: Please submit comments only and cite FAC 2005-10, FAR
case 2006-006, in all correspondence related to this case. All comments
received will be posted without change to https://www.acquisition.gov/
far/ProposedRules/comments.htm, including any personal and/or business
confidential information provided.
FOR FURTHER INFORMATION CONTACT For clarification of content, contact
Ms. Gloria Sochon, Procurement Analyst, at (202) 219-0311. Please cite
FAC 2005-10, FAR case 2006-006. For information pertaining to status or
publication schedules, contact the FAR Secretariat at (202) 501-4755.
SUPPLEMENTARY INFORMATION:
A. Background
This rule amends FAR Part 25 and the clauses at 52.212-3, Offeror
Representations and Certifications--Commercial Items, 52.212-5,
Contract Terms and Conditions Required to Implement Statutes or
Executive Orders--Commercial Items, 52.225-3, Buy American Act--Free
Trade Agreements--Israeli Trade Act, 52.225-4, Buy American Act--Free
Trade Agreements--Israeli Trade Act Certificate, 52.225-5, Trade
Agreements, 52.225-11, Buy American Act--Construction Materials under
Trade Agreements, and 52.225-12, Notice of Buy American Act
Requirement--Construction Materials under Trade Agreements, to
implement the Dominican Republic--Central America--United States Free
Trade Agreement (CAFTA-DR) with respect to El Salvador, Honduras, and
Nicaragua. Congress approved the CAFTA-DR in the Dominican Republic--
Central America--United States Free Trade Agreement Implementation Act
(Public Law 109-53). Other signatory countries to the CAFTA-DR are
Costa Rica, the Dominican Republic, and Guatemala. These regulations
will be amended when the CAFTA-DR takes effect for these other
countries. The CAFTA-DR waives the applicability of the Buy American
Act for some foreign supplies and construction materials from El
Salvador, Honduras, and Nicaragua and specifies procurement procedures
designed to ensure fairness in the acquisition of supplies and
services.
The excluded services for the CAFTA-DR are the same as for the
Chile FTA and NAFTA. For supply and service contracts, the CAFTA-DR has
the same threshold as the other FTAs ($64,786), except the Morocco FTA
and the NAFTA with respect to supply contracts involving Canada. For
construction contracts, CAFTA-DR has the same threshold as the Chile
FTA, Morocco FTA, Singapore FTA, and the WTO GPA ($7,407,000), lower
than the NAFTA threshold of $8,422,165.
This is not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
The interim rule is not expected 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. Although the rule
opens up Government procurement to the goods and services of El
Salvador, Honduras, and Nicaragua, the Councils do not anticipate any
significant economic impact on U.S. small businesses. The Department of
Defense only applies the trade agreements to the non-defense items
listed at DFARS 225.401-70, and acquisitions that are set aside for
small businesses are exempt. Therefore, an Initial Regulatory
Flexibility Analysis has not been performed. The Councils will consider
comments from small entities concerning the affected FAR parts 25 and
52 in accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C 601, et seq. (FAC 2005-10,
FAR case 2006-006), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose 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 (DoD), the Administrator of General Services (GSA), and the
Administrator of the National Aeronautics and Space Administration
(NASA) that urgent and compelling reasons exist to promulgate this
interim rule without prior opportunity for public comment. This action
is necessary because the CAFTA-DR took effect with respect to El
Salvador on March 1, 2006, and took effect with respect to Honduras and
Nicaragua on April 1, 2006. However, pursuant to Public Law 98-577 and
FAR 1.501, the Councils will consider public comments received in
response to this interim rule in the formation of the final rule.
List of Subjects in 48 CFR Parts 25 and 52
Government procurement.
Dated: June 20, 2006.
Ralph De Stefano,
Director, Contract Policy Division.
0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 25 and 52 as set forth
below:
0
1. The authority citation for 48 CFR parts 25 and 52 continues to read
as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 25--FOREIGN ACQUISITION
0
2. Amend section 25.003 by--
0
a. Revising the definition ``Caribbean Basin country''
0
b. Revising paragraph (2) of the definition ``Designated country'' and
removing from paragraph (4) of the definition ``El Salvador,'',
``Honduras,'', and ``Nicaragua,'' and
0
c. Revising the definition ``Free Trade Agreement country''.
0
The revised text reads as follows:
25.003 Definitions.
* * * * *
Caribbean Basin country means any of the following countries:
Antigua and Barbuda, Aruba, Bahamas, Barbados, Belize, British Virgin
Islands, Costa Rica, Dominica, Dominican Republic, Grenada, Guatemala,
Guyana, Haiti,
[[Page 36937]]
Jamaica, Montserrat, Netherlands Antilles, St. Kitts and Nevis, St.
Lucia, St. Vincent and the Grenadines, or Trinidad and Tobago.
* * * * *
Designated country * * *
(1) * * *
(2) A Free Trade Agreement country (Australia, Canada, Chile, El
Salvador, Honduras, Mexico, Morocco, Nicaragua, or Singapore);
* * * * *
Free Trade Agreement country means Australia, Canada, Chile, El
Salvador, Honduras, Mexico, Morocco, Nicaragua, or Singapore.
* * * * *
0
3. Amend section 25.400 by removing from the end of paragraph
(a)(2)(iv) the word ``and'' adding at the end of paragraph (a)(2)(v)
the word ``and''; and adding a new paragraph (a)(2)(vi) to read as
follows:
25.400 Scope of Subpart.
(a) * * *
(2) * * *
(i) * * *
(vi) CAFTA-DR (The Dominican Republic-Central America-United States
Free Trade Agreement, as approved by Congress in the Dominican
Republic-Central America-United States Free Trade Agreement
Implementation Act (Pub. L. 109-53);
* * * * *
25.401 [Amended]
0
4. Amend section 25.401 in paragraph (b), in the table heading, by
removing from the third column ``NAFTA and Chile FTA'' and adding
``NAFTA, CAFTA-DR, and Chile FTA'' in its place.
25.402 [Amended]
0
5. Amend section 25.402 in paragraph (b), in the table, by adding after
``Australia FTA'' the entry ``CAFTA-DR (El Salvador, Honduras, and
Nicaragua'') and in its corresponding line items ``64,786'',
``64,786'', and ``7,407,000'', respectively.
0
6. Amend section 25.405 by adding a new sentence to the end of the
paragraph to read as follows:
25.405 Caribbean Basin Trade Initiative.
* * * In accordance with Section 201 (a)(3) of the Dominican
Republic--Central America--United States Free Trade Implementation Act
(Pub. L. 109-53), when the CAFTA-DR agreement enters into force with
respect to a country, that country is no longer designated as a
beneficiary country for purposes of the Caribbean Basin Economic
Recovery Act, and is therefore no longer included in the definition of
``Caribbean Basin country'' for purposes of the Caribbean Basin Trade
Initiative.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
7. Amend section 52.212-3 by--
0
a. Revising the date of the clause;
0
b. Removing from paragraph (g)(1)(i) ``and ``United States'' and adding
````Free Trade Agreement country,'' and ``United States'''' in its
place;
0
c. Revising paragraph (g)(1)(ii); and
0
d. Revising the paragraph headings for (g)(2) and (g)(3) by removing
the parenthetical ``(JAN 2004)''.
0
The revised text reads as follows:
52.212-3 Offeror Representations and Certifications--Commercial Items.
* * * * *
OFFEROR REPRESENTATIONS AND CERTIFICATIONS--COMMERCIAL ITEMS
(JUN 2006)
* * * * *
(g)(1) * * *
(i) * * *
(ii) The offeror certifies that the following supplies are Free
Trade Agreement country end products (other than Moroccan end products)
or Israeli end products as defined in the clause of this solicitation
entitled ``Buy American Act--Free Trade Agreements--Israeli Trade
Act'':
Free Trade Agreement Country End Products (Other than Moroccan End
Products) or Israeli End Products:
Line Item No.
--------------------
--------------------
--------------------
[List as necessary]
* * * * *
52.212-5 [Amended]
0
8. Amend section 52.212-5 by--
0
a. Revising the date of the clause to read ``(JUN 2006)'';
0
b. Removing from paragraph (b)(24)(i) ``(APR 2006)'' and adding ``(JUN
2006)'' in its place and adding to the end of the paragraph ``, and
109-53''; and
0
c. Removing from paragraph (b)(25) ``(APR 2006)'' and adding ``(JUN
2006)'' in its place.
0
9. Amend section 52.225-3 by--
0
a. Revising the date of the clause;
0
b. Removing from paragraph (a) the definition ``End product of
Australia, Canada, Chile, Mexico, or Singapore''; and adding, in
alphabetical order, the definitions ``Free Trade Agreement country'',
``Free Trade Agreement country end product'', and ``Moroccan end
product''; and
0
c. Revising the last sentence in paragraph (c).
0
The revised and added text reads as follows:
52.225-3 Buy American Act--Free Trade Agreements--Israeli Trade Act.
* * * * *
BUY AMERICAN ACT--FREE TRADE AGREEMENTS--ISRAELI TRADE ACT (JUN
2006)
* * * * *
Definitions. * * *
* * * * *
Free Trade Agreement country means Australia, Canada, Chile, El
Salvador, Honduras, Mexico, Morocco, Nicaragua, or Singapore.
Free Trade Agreement country end product means an article that--
(1) Is wholly the growth, product, or manufacture of a Free Trade
Agreement country; or
(2) In the case of an article that consists in whole or in part of
materials from another country, has been substantially transformed in a
Free Trade Agreement country into a new and different article of
commerce with a name, character, or use distinct from that of the
article or articles from which it was transformed. The term refers to a
product offered for purchase under a supply contract, but for purposes
of calculating the value of the end product includes services (except
transportation services) incidental to the article, provided that the
value of those incidental services does not exceed that of the article
itself.
* * * * *
Moroccan end product means an article that--
(1) Is wholly the growth, product, or manufacture of Morocco; or
(2) In the case of an article that consists in whole or in part of
materials from another country, has been substantially transformed in
Morocco into a new and different article of commerce with a name,
character, or use distinct from that of the article or articles from
which it was transformed. The term refers to a product offered for
purchase under a supply contract, but
[[Page 36938]]
for purposes of calculating the value of the end product includes
services (except transportation services) incidental to the article,
provided that the value of those incidental services does not exceed
that of the article itself.
* * * * *
(c) * * * If the Contractor specified in its offer that the
Contractor would supply a Free Trade Agreement country end product
(other than a Moroccan end product) or an Israeli end product, then the
Contractor shall supply a Free Trade Agreement country end product
(other than a Moroccan end product), an Israeli end product or, at the
Contractor's option, a domestic end product.
* * * * *
0
10. Amend section 52.225-4 by--
0
a. Revising the date of the clause;
0
b. Revising the second sentence of paragraph (a); and
0
c. Revising paragraph (b).
0
The revised text reads as follows:
52.225-4 Buy American Act--Free Trade Agreements--Israeli Trade Act
Certificate.
* * * * *
BUY AMERICAN ACT--FREE TRADE AGREEMENTS--ISRAELI TRADE ACT
CERTIFICATE (JUN 2006)
(a) * * * The terms ``component,'' ``domestic end product,'' ``end
product,'' ``foreign end product,'' ``Free Trade Agreement country,''
``Free Trade Agreement country end product,'' ``Israeli end product,''
``Moroccan end product,'' and ``United States'' are defined in the
clause of this solicitation entitled ``Buy American Act--Free Trade
Agreements--Israeli Trade Act.''
(b) The offeror certifies that the following supplies are Free
Trade Agreement country end products (other than Moroccan end products)
or Israeli end products as defined in the clause of this solicitation
entitled ``Buy American Act--Free Trade Agreements--Israeli Trade
Act'':
Free Trade Agreement Country End Products (Other than Moroccan End
Products) or Israeli End Products:
Line Item No.
--------------------
--------------------
--------------------
[List as necessary]
* * * * *
0
11. Amend section 52.225-5 by--
0
a. Revising the date of the clause; and
0
b. In paragraph (a), in the definition ``Designated country'', revising
paragraph (2), and removing from paragraph (4) ``El Salvador'',
``Honduras,'', and ``Nicaragua,''.
0
The revised text reads as follows:
52.225-5 Trade Agreements.
* * * * *
TRADE AGREEMENTS (JUN 2006)
* * * * *
(a) Definitions. * * *
Designated country * * *
(1) * * *
(2) Free Trade Agreement country (Australia, Canada, Chile, El
Salvador, Honduras, Mexico, Morocco, Nicaragua, or Singapore).
* * * * *
0
12. Amend section 52.225-11 by--
0
a. Revising the date of the clause;
0
b. In paragraph (a), in the definition ``Designated country'', revising
paragraph (2), and removing from paragraph (4) ``El Salvador,''
``Honduras,'' and Nicaragua,''; and
0
c. Revising Alternate I.
0
The revised text reads as follows:
52.225-11 Buy American Act--Construction Materials under Trade
Agreements.
* * * * *
BUY AMERICAN ACT--CONSTRUCTION MATERIALS UNDER TRADE AGREEMENTS
(JUN 2006)
* * * * *
(a) Definitions. * * *
Designated country * * *
(2) Free Trade Agreement country (Australia, Canada, Chile, El
Salvador, Honduras, Mexico, Morocco, Nicaragua, or Singapore);
* * * * *
Alternate I ``(JUN 2006)''. As prescribed in 25.1102(c)(3), add
the following definition of ``Mexican construction material'' to
paragraph (a) of the basic clause, and substitute the following
paragraphs (b)(1) and (b)(2) for paragraphs (b)(1) and (b)(2) of the
basic clause:
Mexican construction material means a construction material
that--
(1) Is wholly the growth, product, or manufacture of Mexico; 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 Mexico into a new and different
construction material distinct from the materials from which it was
transformed.
(b) Construction materials. (1) This clause implements the Buy
American Act (41 U.S.C. 10a - 10d) by providing a preference for
domestic construction material. In addition, the Contracting Officer
has determined that the WTO GPA and all the Free Trade Agreements
except NAFTA apply to this acquisition. Therefore, the Buy American
Act restrictions are waived for designated country construction
materials other than Mexican construction materials.
(2) The Contractor shall use only domestic or designated country
construction material other than Mexican construction material in
performing this contract, except as provided in paragraphs (b)(3)
and (b)(4) of this clause.
0
13. In section 52.225-12, amend Alternate II by revising the
introductory text; removing paragraph (a); and revising paragraph
(d)(1) and the introductory text of paragraph (d)(3) to read as
follows:
52.225-12 Notice of Buy American Act Requirement--Construction
Materials Under Trade Agreements.
* * * * *
Alternate II ``(JUN 2006)''. As prescribed in 25.1102(d)(3), add
the definition of ``Mexican construction material'' to paragraph (a)
and substitute the following paragraph (d) for paragraph (d) of the
basic provision:
* * * * *
(d) Alternate offers. (1) When an offer includes foreign
construction material, except foreign construction material from a
designated country other than Mexico, that is not listed by the
Government in this solicitation in paragraph (b)(3) of FAR clause
52.225-11, the offeror also may submit an alternate offer based on
use of equivalent domestic or designated country construction
material other than Mexican construction material.
* * * * *
(3) If the Government determines that a particular exception
requested in accordance with paragraph (c) of FAR clause 52.225-11
does not apply, the Government will evaluate only those offers based
on use of the equivalent domestic or designated country construction
material other than Mexican construction material. An offer based on
use of the foreign construction material for which an exception was
requested--
* * * * *
[FR Doc. 06-5707 Filed 6-27-06; 8:45 am]
BILLING CODE 6820-EP-S
