Defense Federal Acquisition Regulation Supplement; Foreign Acquisition Amendments (DFARS Case 2011-D017), 32841-32843 [2011-13797]
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Federal Register / Vol. 76, No. 108 / Monday, June 6, 2011 / Rules and Regulations
(4) ll 252.219–7003, Small Business
Subcontracting Plan (DoD Contracts) (OCT
2010) (15 U.S.C. 637).
(5) ll 252.219–7004, Small Business
Subcontracting Plan (Test Program) (JAN
2011) (15 U.S.C. 637 note).
(6)(i) ll 252.225–7001, Buy American
Act and Balance of Payments Program (JAN
2009) (41 U.S.C. chapter 83, E.O. 10582).
(ii) ll Alternate I (DEC 2010) of 252.225–
7001.
(7) ll 252.225–7008, Restriction on
Acquisition of Specialty Metals (JUL 2009)
(10 U.S.C. 2533b).
(8) ll 252.225–7009, Restriction on
Acquisition of Certain Articles Containing
Specialty Metals (JAN 2011) (10 U.S.C.
2533b).
(9) ll 252.225–7012, Preference for
Certain Domestic Commodities (JUN 2010)
(10 U.S.C. 2533a).
(10) ll 252.225–7015, Restriction on
Acquisition of Hand or Measuring Tools (JUN
2005) (10 U.S.C. 2533a).
(11) ll 252.225–7016, Restriction on
Acquisition of Ball and Roller Bearings (DEC
2010) (Section 8065 of Pub. L. 107–117 and
the same restriction in subsequent DoD
appropriations acts).
(12)(i) ll 252.225–7021, Trade
Agreements (NOV 2009) (19 U.S.C. 2501–
2518 and 19 U.S.C. 3301 note).
(ii) ll Alternate I (SEP 2008) of 252.225–
7021.
(iii) ll Alternate II (DEC 2010) of
252.225–7021.
(13) ll 252.225–7027, Restriction on
Contingent Fees for Foreign Military Sales
(APR 2003) (22 U.S.C. 2779).
(14) ll 252.225–7028, Exclusionary
Policies and Practices of Foreign
Governments (APR 2003) (22 U.S.C. 2755).
(15)(i) ll 252.225–7036, Buy American
Act—Free Trade Agreements—Balance of
Payments Program (DEC 2010) (41 U.S.C.
chapter 83, and 19 U.S.C. 3301 note).
(ii) ll Alternate I (JUL 2009) of 252.225–
7036.
(iii) ll Alternate II (DEC 2010) of
252.225–7036.
(iv) ll Alternate III (DEC 2010) of
252.225–7036.
(16) ll 252.225–7038, Restriction on
Acquisition of Air Circuit Breakers (JUN
2005) (10 U.S.C. 2534(a)(3)).
(17) ll 252.226–7001, Utilization of
Indian Organizations, Indian-Owned
Economic Enterprises, and Native Hawaiian
Small Business Concerns (SEP 2004) (Section
8021 of Pub. L. 107–248 and similar sections
in subsequent DoD appropriations acts).
(18) ll 252.227–7015, Technical Data—
Commercial Items (MAR 2011) (10 U.S.C.
2320).
(19) ll 252.227–7037, Validation of
Restrictive Markings on Technical Data (SEP
1999) (10 U.S.C. 2321).
(20) ll 252.232–7003, Electronic
Submission of Payment Requests and
Receiving Reports (MAR 2008) (10 U.S.C.
2227).
(21) ll 252.237–7010, Prohibition on
Interrogation of Detainees by Contractor
Personnel (NOV 2010) (Section 1038 of Pub.
L. 111–84).
(22) ll 252.237–7019, Training for
Contractor Personnel Interacting with
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17:38 Jun 03, 2011
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Detainees (SEP 2006) (Section 1092 of Pub.
L. 108–375).
(23) ll 252.243–7002, Requests for
Equitable Adjustment (MAR 1998) (10 U.S.C.
2410).
(24) ll 252.246–7004, Safety of
Facilities, Infrastructure, and Equipment For
Military Operations (OCT 2010) (Section 807
of Pub. L. 111–84).
(25)ll 252.247–7003, Pass-Through of
Motor Carrier Fuel Surcharge Adjustment to
the Cost Bearer (SEP 2010) (Section 884 of
Pub. L. 110–417).
(26)(i) ll 252.247–7023, Transportation
of Supplies by Sea (MAY 2002) (10 U.S.C.
2631).
(ii) ll Alternate I (MAR 2000) of
252.247–7023.
(iii) ll Alternate II (MAR 2000) of
252.247–7023.
(iv) ll Alternate III (MAY 2002) of
252.247–7023.
(27) ll 252.247–7024, Notification of
Transportation of Supplies by Sea (MAR
(2000) (10 U.S.C. 2631).
[FR Doc. 2011–13648 Filed 6–3–11; 8:45 am]
BILLING CODE 5001–08–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 225 and 252
RIN 0750–AH16
Defense Federal Acquisition
Regulation Supplement; Foreign
Acquisition Amendments (DFARS
Case 2011–D017)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
DoD is amending the Defense
Federal Acquisition Regulation
Supplement (DFARS) to correct several
anomalies resulting from recent changes
relating to source of ball and roller
bearing components, eligibility of
Peruvian end products under trade
agreements, and participation of foreign
contractors in acquisitions in support of
operations in Afghanistan.
DATES: Effective Date: June 6, 2011.
FOR FURTHER INFORMATION CONTACT: Ms.
Amy G. Williams, Defense Acquisition
Regulations System, OUSD (AT&L)
DPAP/DARS, Room 3B855, 3060
Defense Pentagon, Washington, DC
20301–3060. Telephone 703–602–0328;
facsimile 703–602–0350.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Background
DoD is amending the DFARS to
correct several anomalies resulting from
recent changes relating to source of ball
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32841
and roller bearing components,
participation of foreign contractors in
acquisitions in support of operations in
Afghanistan, and eligibility of Peruvian
end products under trade agreements.
A. Restriction on Ball and Roller
Bearings
DoD published a proposed rule,
Restrictions on Ball and Roller Bearings
(DFARS Case 2006–D029), in the
Federal Register (75 FR 25167) on May
7, 2010 with request for comments. DoD
received comments from three
respondents and addressed the
comments in the publication of the final
rule (75 FR 76297) on December 8, 2010.
DFARS Case 2006–D029 retained the
existing definition of ‘‘bearing
component’’. As used in DFARS part
225 and the DFARS clause 252.225–
7016, ‘‘bearing component’’ means the
bearing element, retainer, inner race, or
outer race (see 252.225–7016(a)).
However, that rule added a new
requirement at 225.7009–2(a)(2) and
252.225–7016(b)(2) that for each ball or
roller bearing, the cost of the bearing
components ‘‘mined, produced, or
manufactured’’ in the United States or
Canada must exceed 50 percent of the
total cost of the bearing components of
that ball or roller bearing.
The phrase ‘‘mined, produced, or
manufactured’’ was adopted from the
Buy American Act, which applies
broadly to many types of items. This
rule applies only to bearing
components, which are manufactured
items and not mined or produced. As
used in the DFARS, the term ‘‘bearing
component’’ does not refer to the
materials that are utilized in the
manufacture of the bearing components.
There is no restriction with regard to
where the iron ore is mined or where
the resultant steel in a bearing
component is produced. The
requirement at 225.7009–2(a)(2) and
252.225–7016(b)(2) that for each ball or
roller bearing, the cost of the bearing
components ‘‘mined, produced, or
manufactured’’ in the United States or
Canada must exceed 50 percent of the
total cost of the bearing components of
that ball or roller bearing, has the same
meaning as a requirement that for each
ball or roller bearing, the cost of the
bearing components ‘‘manufactured’’ in
the United States or Canada must
exceed 50 percent of the total cost of the
bearing components of that ball or roller
bearing. The words ‘‘mined’’ and
‘‘produced’’ are extraneous because they
are inapplicable, since a ball or roller
bearing is manufactured and not mined
or produced. Therefore, this final rule
under DFARS Case 2011–D017 removes
the words ‘‘mined, produced, or’’ and
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retains only the term ‘‘manufactured’’, to
clarify the definition and alleviate any
confusion these extraneous words may
cause industry or Government
personnel.
This final rule also makes a
conforming change to the clause date for
252.225–7016, Restriction on the
Acquisition of Ball and Roller Bearings,
in the clause at 252.212–7001, Contract
Terms and Conditions Required to
Implement Statutes or Executive Orders
Applicable to Defense Acquisitions of
Commercial Items.
B. Foreign Participation in Acquisitions
in Support of Operations in Afghanistan
DoD published a proposed rule,
‘‘Foreign Participation in Acquisitions in
Support of Operations in Afghanistan’’
on January 6, 2010 (DFARS Case 2009–
D012)(75 FR 832), with request for
public comments. DoD did not receive
any public comments on the proposed
rule. DoD published the final rule in the
Federal Register (75 FR 81915) on
December 29, 2010.
Although no public comments were
received, DoD realized that the
requirement for a contractor to inform
its government of its participation in the
acquisition should only apply if the
contractor is from a South Caucasus/
Central and South Asian (SC/CASA)
state. The United States Trade
Representative, when providing
authority to the Secretary of Defense to
waive the procurement prohibition in
section 302(a) of the Trade Agreements
Act of 1979 (USTR letter of June 2,
2009), included the provision that
contractors from the SC/CASA states,
which would not have been eligible to
participate in the acquisition absent the
waiver, advise their governments that
they will generally not have such
opportunities in the future unless their
governments provide reciprocal
procurement opportunities to U.S.
products and services.
This requirement has meaning only
when applied to a contractor from an
SC/CASA state, to which the waiver
applies. The required statement that the
contractor would not have been eligible
to participate in the acquisition absent
the waiver would not be true for a
contractor from other than an SC/CASA
state. It would also be meaningless to
ask a U.S. contractor to notify its
government (the U.S. Government) that
it should provide reciprocal
procurement opportunities to U.S.
products and services. However, the
proposed rule did not explicitly limit
the application of this requirement to
contractors from an SC/CASA state.
The final rule under DFARS Case
2009–D012 revised paragraph (d) of
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Jkt 223001
Alternate II of DFARS clause 252.225–
7021, Trade Agreements, to limit
applicability to contractors from an SC/
CASA state. The final rule inadvertently
omitted similar amendment of the same
requirement in paragraphs (d) of
Alternates II and III of DFARS clause
252.225–7045, Balance of Payments
Program—Construction Material Under
Trade Agreements.
This final rule under DFARS Case
2011–D017 remedies that oversight,
adding ‘‘If the Contractor is from an SC/
CASA state’’ to paragraph (d) in
Alternates II and III of DFARS clause
252.225–7045, Buy American Act—Free
Trade Agreements—Balance of
Payments Program Certificate, to
conform to the same revision made
under DFARS Case 2009–D012 to
paragraph (d) of Alternate I of DFARS
clause 252.225–7021.
C. Trade Agreements—Peru
The Peruvian Free Trade Agreement
was initially implemented by DFARS
Case 2008–D046, Trade Agreement—
Costa Rica and Peru, that was published
as an interim rule with a request for
public comment (74 FR 37650). No
public comments were received and the
interim rule was converted to a final
rule without change on July 29, 2009 (75
FR 179). This final rule added Peru to
the definition of ‘‘Free Trade Agreement
country’’ in DFARS clauses 252.225–
7021, 252.225–7036, and 252.225–7045.
In order to make some further
implementation of the Peru Free Trade
Agreement in the trade agreements
clauses, DoD utilized the final rule
issued under DFARS Case 2009–D012,
although the issue of the Peru Free
Trade Agreement was peripheral to the
main purpose of that case. DoD added
a definition of Peruvian end products
and added Peruvian end products to the
Free Trade Agreement country end
products that are not eligible products
in the provision and clause at DFARS
252.225–7035 and 252.225–7036. This
is consistent with the Peru Free Trade
Agreement and the FAR, and ensures
that Peruvian end products are not
erroneously treated as eligible products
in acquisitions that do not exceed the
World Trade Organization Government
Procurement Agreement threshold.
This change, however, created an
inconsistency between Alternate I and
the basic clause 252.225–7035. The
basic clause now includes in paragraph
(b)(2) the phrase ‘‘Free Trade Agreement
country end products other than
Bahrainian end products or Moroccan
end products, or Peruvian end
products.’’ The Alternate I, which limits
the applicable Free Trade Agreements to
just Canada, misquotes the phrase that
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is to be removed and replaced with the
phrase ‘‘Canadian end products.’’
Alternate I still quotes the old unrevised
phrase as ‘‘Free Trade Agreement
country end products other than
Bahrainian end products or Moroccan
end products’’ and leaves off ‘‘or
Peruvian end products’’ that was added
by 2009–D012 final rule. Even though
this phrase is being removed by
Alternate I, the misquote creates an
inconsistency, which might cause some
confusion, although all of the
corresponding regulations make it clear
that the Peruvian Trade Agreement does
not apply below the threshold of
$70,079, when Alternate I is used (see
threshold at FAR 25.402(b), clause
prescription at DFARS 225.1101(10)(i),
and comparable FAR clause 52.225–3
Alternate I).
These DFARS changes are
characterized as clarifications and
corrections to DFARS language that do
not constitute significant revisions, as
defined in FAR 1.501–1, because they
do not alter the substantive meaning of
the coverage.
II. 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. This
rule is not a major rule under 5 U.S.C.
804.
III. Regulatory Flexibility Act
The Regulatory Flexibility Act does
not apply to this rule because an initial
regulatory flexibility analysis is only
required for proposed or interim rules
that require publication for public
comment (5 U.S.C. 603) and a final
regulatory flexibility analysis is only
required for final rules that were
previously published for public
comment, and for which an initial
regulatory flexibility analysis was
prepared (5 U.S.C. 604).
This final rule does not constitute a
significant DFARS revision as defined at
FAR 1.501–1 because this rule will not
have a significant cost or administrative
impact on contractors or offerors, or a
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Federal Register / Vol. 76, No. 108 / Monday, June 6, 2011 / Rules and Regulations
significant effect beyond the internal
operating procedures of the
Government. Therefore, publication for
public comment under 41 U.S.C. 1707 is
not required.
IV. Paperwork Reduction Act
The final rule does not contain any
information collection requirements that
require the approval of the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
chapter 35).
List of Subjects in 48 CFR Parts 225 and
252
Government procurement.
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR parts 225 and 252
are amended as follows:
■ 1. The authority citation for 48 CFR
parts 225 and 252 continues to read as
follows:
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
substitute the phrase ‘‘Canadian end
products’’ for the phrase ‘‘Free Trade
Agreement country end products other than
Bahrainian end products, Moroccan end
products, or Peruvian end products’’ in
paragraphs (b)(2) and (c)(2)(ii) of the basic
provision; and delete the phrase ‘‘Australian
or’’ from paragraph (c)(2)(i) of the basic
provision.
252.225–7045
[Amended]
6. Amend section 252.225–7045 as
follows:
■ a. Revise the clause date of Alternate
II by removing ‘‘(DEC 2010)’’ and adding
in its place ‘‘(JUN 2011)’’.
■ b. Amend paragraph (d) of Alternate II
by removing ‘‘The’’ and adding in its
place ‘‘If the Contractor is from an SC/
CASA state, the’’.
■ c. Revise the clause date of Alternate
III by removing ‘‘(DEC 2010)’’ and
adding in its place ‘‘(JUN 2011)’’.
■ d. Amend paragraph (d) of Alternate
III by removing ‘‘The’’ and adding in its
place ‘‘If the Contractor is from an SC/
CASA state, the’’.
■
[FR Doc. 2011–13797 Filed 6–3–11; 8:45 am]
BILLING CODE 5001–08–P
PART 225—FOREIGN ACQUISITION
225.7009–2
DEPARTMENT OF DEFENSE
[Amended]
2. Amend section 225.7009–2 by
removing from paragraph (a)(2) the
words ‘‘mined, produced, or’’.
■
Defense Acquisition Regulations
System
48 CFR Part 225
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
252.212–7001
RIN 0750–AH22
Defense Federal Acquisition
Regulation Supplement; Fire-Resistant
Fiber for Production of Military
Uniforms (DFARS Case 2011–D021)
[Amended]
3. Amend section 252.212–7001 by
revising the clause date in paragraph
(b)(11) by removing ‘‘(DEC 2010)’’ and
adding in its place ‘‘(JUN 2011)’’.
■
252.225–7016
[Amended]
4. Amend section 252.225–7016 as
follows:
■ a. Revise the clause date by removing
‘‘(DEC 2010)’’ and adding in its place
‘‘(JUN 2011)’’.
■ b. Amend paragraph (b)(2) by
removing the words ‘‘mined, produced,
or’’.
■ 5. Amend section 252.225–7035 by
revising Alternate I to read as follows:
■
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252.225–7035 Buy American Act—Free
Trade Agreements—Balance of Payments
Program Certificate
ALTERNATE I (JUN 2011)
As prescribed in 225.1101(10)(ii),
substitute the phrase ‘‘Canadian end product’’
for the phrases ‘‘Bahrainian end product,’’
‘‘Free Trade Agreement country,’’ ‘‘Free Trade
Agreement country end product,’’ ‘‘Moroccan
end product,’’ and ‘‘Peruvian end product’’ in
paragraph (a) of the basic provision;
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17:38 Jun 03, 2011
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Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Interim rule with request for
comments.
AGENCY:
DoD is issuing an interim rule
to implement section 821 of the
National Defense Authorization Act for
Fiscal Year 2011. Section 821 prohibits
specification of the use of fire-resistant
rayon fiber in solicitations issued before
January 1, 2015.
DATES: Effective date: June 6, 2011.
Comment date: Comments on the
interim rule should be submitted in
writing to the address shown below on
or before August 5, 2011.
ADDRESSES: Submit comments
identified by DFARS Case 2011–D021,
using any of the following methods:
Æ Regulations.gov: https://
www.regulations.gov.
Submit comments via the Federal
eRulemaking portal by inputting
SUMMARY:
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32843
‘‘DFARS Case 2011–D021’’ under the
heading ‘‘Enter keyword or ID’’ and
selecting ‘‘Search.’’ Select the link
‘‘Submit a Comment’’ that corresponds
with ‘‘DFARS Case 2011–D021.’’ Follow
the instructions provided at the ‘‘Submit
a Comment’’ screen. Please include your
name, company name (if any), and
‘‘DFARS Case 2011–D021’’ on your
attached document.
Æ E-mail: dfars@osd.mil. Include
DFARS Case 2011–D021 in the subject
line of the message.
Æ Fax: 703–602–0350.
Æ Mail: Defense Acquisition
Regulations System, Attn: Amy G.
Williams, OUSD (AT&L) DPAP/DARS,
Room 3B855, 3060 Defense Pentagon,
Washington, DC 20301–3060.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal information provided. To
confirm receipt of your comment(s),
please check https://www.regulations.gov
approximately two to three days after
submission to verify posting (except
allow 30 days for posting of comments
submitted by mail).
SUPPLEMENTARY INFORMATION:
I. Background
This interim rule amends DFARS
subpart 225.70 to implement section
821 of the National Defense
Authorization Act for Fiscal Year 2011
(Pub. L. 111–383). Section 821 prohibits
specification of the use of fire-resistant
rayon fiber in solicitations issued before
January 1, 2015.
II. 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. This
rule is not a major rule under 5 U.S.C.
804.
III. Regulatory Flexibility Act
DoD does not expect this interim 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.
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Agencies
[Federal Register Volume 76, Number 108 (Monday, June 6, 2011)]
[Rules and Regulations]
[Pages 32841-32843]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-13797]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 225 and 252
RIN 0750-AH16
Defense Federal Acquisition Regulation Supplement; Foreign
Acquisition Amendments (DFARS Case 2011-D017)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD is amending the Defense Federal Acquisition Regulation
Supplement (DFARS) to correct several anomalies resulting from recent
changes relating to source of ball and roller bearing components,
eligibility of Peruvian end products under trade agreements, and
participation of foreign contractors in acquisitions in support of
operations in Afghanistan.
DATES: Effective Date: June 6, 2011.
FOR FURTHER INFORMATION CONTACT: Ms. Amy G. Williams, Defense
Acquisition Regulations System, OUSD (AT&L) DPAP/DARS, Room 3B855, 3060
Defense Pentagon, Washington, DC 20301-3060. Telephone 703-602-0328;
facsimile 703-602-0350.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is amending the DFARS to correct several anomalies resulting
from recent changes relating to source of ball and roller bearing
components, participation of foreign contractors in acquisitions in
support of operations in Afghanistan, and eligibility of Peruvian end
products under trade agreements.
A. Restriction on Ball and Roller Bearings
DoD published a proposed rule, Restrictions on Ball and Roller
Bearings (DFARS Case 2006-D029), in the Federal Register (75 FR 25167)
on May 7, 2010 with request for comments. DoD received comments from
three respondents and addressed the comments in the publication of the
final rule (75 FR 76297) on December 8, 2010. DFARS Case 2006-D029
retained the existing definition of ``bearing component''. As used in
DFARS part 225 and the DFARS clause 252.225-7016, ``bearing component''
means the bearing element, retainer, inner race, or outer race (see
252.225-7016(a)). However, that rule added a new requirement at
225.7009-2(a)(2) and 252.225-7016(b)(2) that for each ball or roller
bearing, the cost of the bearing components ``mined, produced, or
manufactured'' in the United States or Canada must exceed 50 percent of
the total cost of the bearing components of that ball or roller
bearing.
The phrase ``mined, produced, or manufactured'' was adopted from
the Buy American Act, which applies broadly to many types of items.
This rule applies only to bearing components, which are manufactured
items and not mined or produced. As used in the DFARS, the term
``bearing component'' does not refer to the materials that are utilized
in the manufacture of the bearing components. There is no restriction
with regard to where the iron ore is mined or where the resultant steel
in a bearing component is produced. The requirement at 225.7009-2(a)(2)
and 252.225-7016(b)(2) that for each ball or roller bearing, the cost
of the bearing components ``mined, produced, or manufactured'' in the
United States or Canada must exceed 50 percent of the total cost of the
bearing components of that ball or roller bearing, has the same meaning
as a requirement that for each ball or roller bearing, the cost of the
bearing components ``manufactured'' in the United States or Canada must
exceed 50 percent of the total cost of the bearing components of that
ball or roller bearing. The words ``mined'' and ``produced'' are
extraneous because they are inapplicable, since a ball or roller
bearing is manufactured and not mined or produced. Therefore, this
final rule under DFARS Case 2011-D017 removes the words ``mined,
produced, or'' and
[[Page 32842]]
retains only the term ``manufactured'', to clarify the definition and
alleviate any confusion these extraneous words may cause industry or
Government personnel.
This final rule also makes a conforming change to the clause date
for 252.225-7016, Restriction on the Acquisition of Ball and Roller
Bearings, in the clause at 252.212-7001, Contract Terms and Conditions
Required to Implement Statutes or Executive Orders Applicable to
Defense Acquisitions of Commercial Items.
B. Foreign Participation in Acquisitions in Support of Operations in
Afghanistan
DoD published a proposed rule, ``Foreign Participation in
Acquisitions in Support of Operations in Afghanistan'' on January 6,
2010 (DFARS Case 2009-D012)(75 FR 832), with request for public
comments. DoD did not receive any public comments on the proposed rule.
DoD published the final rule in the Federal Register (75 FR 81915) on
December 29, 2010.
Although no public comments were received, DoD realized that the
requirement for a contractor to inform its government of its
participation in the acquisition should only apply if the contractor is
from a South Caucasus/Central and South Asian (SC/CASA) state. The
United States Trade Representative, when providing authority to the
Secretary of Defense to waive the procurement prohibition in section
302(a) of the Trade Agreements Act of 1979 (USTR letter of June 2,
2009), included the provision that contractors from the SC/CASA states,
which would not have been eligible to participate in the acquisition
absent the waiver, advise their governments that they will generally
not have such opportunities in the future unless their governments
provide reciprocal procurement opportunities to U.S. products and
services.
This requirement has meaning only when applied to a contractor from
an SC/CASA state, to which the waiver applies. The required statement
that the contractor would not have been eligible to participate in the
acquisition absent the waiver would not be true for a contractor from
other than an SC/CASA state. It would also be meaningless to ask a U.S.
contractor to notify its government (the U.S. Government) that it
should provide reciprocal procurement opportunities to U.S. products
and services. However, the proposed rule did not explicitly limit the
application of this requirement to contractors from an SC/CASA state.
The final rule under DFARS Case 2009-D012 revised paragraph (d) of
Alternate II of DFARS clause 252.225-7021, Trade Agreements, to limit
applicability to contractors from an SC/CASA state. The final rule
inadvertently omitted similar amendment of the same requirement in
paragraphs (d) of Alternates II and III of DFARS clause 252.225-7045,
Balance of Payments Program--Construction Material Under Trade
Agreements.
This final rule under DFARS Case 2011-D017 remedies that oversight,
adding ``If the Contractor is from an SC/CASA state'' to paragraph (d)
in Alternates II and III of DFARS clause 252.225-7045, Buy American
Act--Free Trade Agreements--Balance of Payments Program Certificate, to
conform to the same revision made under DFARS Case 2009-D012 to
paragraph (d) of Alternate I of DFARS clause 252.225-7021.
C. Trade Agreements--Peru
The Peruvian Free Trade Agreement was initially implemented by
DFARS Case 2008-D046, Trade Agreement--Costa Rica and Peru, that was
published as an interim rule with a request for public comment (74 FR
37650). No public comments were received and the interim rule was
converted to a final rule without change on July 29, 2009 (75 FR 179).
This final rule added Peru to the definition of ``Free Trade Agreement
country'' in DFARS clauses 252.225-7021, 252.225-7036, and 252.225-
7045.
In order to make some further implementation of the Peru Free Trade
Agreement in the trade agreements clauses, DoD utilized the final rule
issued under DFARS Case 2009-D012, although the issue of the Peru Free
Trade Agreement was peripheral to the main purpose of that case. DoD
added a definition of Peruvian end products and added Peruvian end
products to the Free Trade Agreement country end products that are not
eligible products in the provision and clause at DFARS 252.225-7035 and
252.225-7036. This is consistent with the Peru Free Trade Agreement and
the FAR, and ensures that Peruvian end products are not erroneously
treated as eligible products in acquisitions that do not exceed the
World Trade Organization Government Procurement Agreement threshold.
This change, however, created an inconsistency between Alternate I
and the basic clause 252.225-7035. The basic clause now includes in
paragraph (b)(2) the phrase ``Free Trade Agreement country end products
other than Bahrainian end products or Moroccan end products, or
Peruvian end products.'' The Alternate I, which limits the applicable
Free Trade Agreements to just Canada, misquotes the phrase that is to
be removed and replaced with the phrase ``Canadian end products.''
Alternate I still quotes the old unrevised phrase as ``Free Trade
Agreement country end products other than Bahrainian end products or
Moroccan end products'' and leaves off ``or Peruvian end products''
that was added by 2009-D012 final rule. Even though this phrase is
being removed by Alternate I, the misquote creates an inconsistency,
which might cause some confusion, although all of the corresponding
regulations make it clear that the Peruvian Trade Agreement does not
apply below the threshold of $70,079, when Alternate I is used (see
threshold at FAR 25.402(b), clause prescription at DFARS
225.1101(10)(i), and comparable FAR clause 52.225-3 Alternate I).
These DFARS changes are characterized as clarifications and
corrections to DFARS language that do not constitute significant
revisions, as defined in FAR 1.501-1, because they do not alter the
substantive meaning of the coverage.
II. 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. This rule is not a major rule
under 5 U.S.C. 804.
III. Regulatory Flexibility Act
The Regulatory Flexibility Act does not apply to this rule because
an initial regulatory flexibility analysis is only required for
proposed or interim rules that require publication for public comment
(5 U.S.C. 603) and a final regulatory flexibility analysis is only
required for final rules that were previously published for public
comment, and for which an initial regulatory flexibility analysis was
prepared (5 U.S.C. 604).
This final rule does not constitute a significant DFARS revision as
defined at FAR 1.501-1 because this rule will not have a significant
cost or administrative impact on contractors or offerors, or a
[[Page 32843]]
significant effect beyond the internal operating procedures of the
Government. Therefore, publication for public comment under 41 U.S.C.
1707 is not required.
IV. Paperwork Reduction Act
The final rule does not contain any information collection
requirements that require the approval of the Office of Management and
Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects in 48 CFR Parts 225 and 252
Government procurement.
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 225 and 252 are amended as follows:
0
1. The authority citation for 48 CFR parts 225 and 252 continues to
read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 225--FOREIGN ACQUISITION
225.7009-2 [Amended]
0
2. Amend section 225.7009-2 by removing from paragraph (a)(2) the words
``mined, produced, or''.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
252.212-7001 [Amended]
0
3. Amend section 252.212-7001 by revising the clause date in paragraph
(b)(11) by removing ``(DEC 2010)'' and adding in its place ``(JUN
2011)''.
252.225-7016 [Amended]
0
4. Amend section 252.225-7016 as follows:
0
a. Revise the clause date by removing ``(DEC 2010)'' and adding in its
place ``(JUN 2011)''.
0
b. Amend paragraph (b)(2) by removing the words ``mined, produced,
or''.
0
5. Amend section 252.225-7035 by revising Alternate I to read as
follows:
252.225-7035 Buy American Act--Free Trade Agreements--Balance of
Payments Program Certificate
ALTERNATE I (JUN 2011)
As prescribed in 225.1101(10)(ii), substitute the phrase
``Canadian end product'' for the phrases ``Bahrainian end product,''
``Free Trade Agreement country,'' ``Free Trade Agreement country end
product,'' ``Moroccan end product,'' and ``Peruvian end product'' in
paragraph (a) of the basic provision; substitute the phrase
``Canadian end products'' for the phrase ``Free Trade Agreement
country end products other than Bahrainian end products, Moroccan
end products, or Peruvian end products'' in paragraphs (b)(2) and
(c)(2)(ii) of the basic provision; and delete the phrase
``Australian or'' from paragraph (c)(2)(i) of the basic provision.
252.225-7045 [Amended]
0
6. Amend section 252.225-7045 as follows:
0
a. Revise the clause date of Alternate II by removing ``(DEC 2010)''
and adding in its place ``(JUN 2011)''.
0
b. Amend paragraph (d) of Alternate II by removing ``The'' and adding
in its place ``If the Contractor is from an SC/CASA state, the''.
0
c. Revise the clause date of Alternate III by removing ``(DEC 2010)''
and adding in its place ``(JUN 2011)''.
0
d. Amend paragraph (d) of Alternate III by removing ``The'' and adding
in its place ``If the Contractor is from an SC/CASA state, the''.
[FR Doc. 2011-13797 Filed 6-3-11; 8:45 am]
BILLING CODE 5001-08-P