Defense Federal Acquisition Regulation Supplement; Defense Trade Cooperation Treaty With the United Kingdom (DFARS 2012-D034), 30361-30365 [2012-11560]
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Federal Register / Vol. 77, No. 99 / Tuesday, May 22, 2012 / Rules and Regulations
List of Subjects in 48 CFR Part 252
DEPARTMENT OF DEFENSE
Government procurement.
Defense Acquisitions Regulations
System
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations
System.
48 CFR Parts 225 and 252
RIN 0750–AH70
Therefore, 48 CFR part 252 is
amended as follows:
Defense Federal Acquisition
Regulation Supplement; Defense Trade
Cooperation Treaty With the United
Kingdom (DFARS 2012–D034)
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
Defense Acquisition
Regulations System; Department of
Defense (DoD).
ACTION: Interim rule.
AGENCY:
1. The authority citation for 48 CFR
part 252 continues to read as follows:
■
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
252.225–7017
[Amended]
2. Section 252.225–7017 is amended
by—
■ a. In paragraph (a), in the definition of
‘‘Designated country,’’ paragraph (ii), by
removing ‘‘Australia, Bahrain, Canada,
Chile, Costa Rica’’ and adding
‘‘Australia, Bahrain, Canada, Chile,
Columbia, Costa Rica’’ in its place; and
■ b. In paragraph (a) in the definition of
‘‘Free Trade Agreement country’’
removing ‘‘Australia, Bahrain, Canada,
Chile, Costa Rica’’ and adding
‘‘Australia, Bahrain, Canada, Chile,
Columbia, Costa Rica’’ in its place.
■
252.225–7021
[Amended]
3. Section 252.225–7021 is amended
in paragraph (a), in the definition of
‘‘Designated country,’’ paragraph (ii), by
removing ‘‘Australia, Bahrain, Canada,
Chile, Costa Rica’’ and adding
‘‘Australia, Bahrain, Canada, Chile,
Columbia, Costa Rica’’ in its place.
■
252.225–7045
[Amended]
4. Section 252.225–7045 is amended
in paragraph (a), in the definition of
‘‘Designated country,’’ paragraph (2), by
removing ‘‘Australia, Bahrain, Canada,
Chile, Costa Rica’’ and adding
‘‘Australia, Bahrain, Canada, Chile,
Columbia, Costa Rica’’ in its place.
■
[FR Doc. 2012–11559 Filed 5–21–12; 8:45 am]
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DoD is issuing an interim rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to implement requirements of
the Treaty Between the Government of
the United States of America and the
Government of the United Kingdom of
Great Britain and Northern Ireland
Concerning Defense Trade Cooperation
(the Treaty) and the Security
Cooperation Act of 2010 regarding
export control regulations between the
United States and the United Kingdom.
The Treaty and statute establish an
Approved Community that includes
members of the U.S. Government and
the government of the United Kingdom.
DATES: Effective Date: May 22, 2012.
Comment date: Comments on the
interim rule should be submitted in
writing to the address shown below on
or before July 23, 2012, to be considered
in the formation of the final rule.
ADDRESSES: Submit comments
identified by DFARS Case 2012–D034,
using any of the following methods:
• Regulations.gov: https://
www.regulations.gov. Submit comments
via the Federal eRulemaking portal by
entering ‘‘DFARS Case 2012–D034’’
under the heading ‘‘Enter keyword or
ID’’ and selecting ‘‘Search.’’ Select the
link ‘‘Submit a Comment’’ that
corresponds with ‘‘DFARS Case 2012–
D034.’’ Follow the instructions provided
at the ‘‘Submit a Comment’’ screen.
Please include your name, company
name (if any), and ‘‘DFARS Case 2012–
D034’’ on your attached document.
• Email: dfars@osd.mil. Include
DFARS Case 2012–D034 in the subject
line of the message.
• Fax: 571–372–6094.
• Mail: Defense Acquisition
Regulations System, Attn: (Insert case
manager’s name), OUSD (AT&L) DPAP/
DARS, Room 3B855, 3060 Defense
Pentagon, Washington, DC 20301–3060.
Comments received generally will be
posted without change to https://
SUMMARY:
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30361
www.regulations.gov, including any
personal information provided. To
confirm receipt of your comment(s),
please check www.regulations.gov,
approximately two to three days after
submission to verify posting (except
allow 30 days for posting of comments
submitted by mail).
FOR FURTHER INFORMATION CONTACT: Ms.
Amy Williams, Defense Acquisition
Regulations System, OUSD (AT&L)
DPAP/DARS, Room 3B855, 3060
Defense Pentagon, Washington, DC
20301–3060. Telephone 571–372–6106;
facsimile 571–372–6101.
SUPPLEMENTARY INFORMATION:
I. Background
This rule streamlines the export
control regulations between the United
States and the United Kingdom under
specified circumstances.
The U.S. Government controls exports
of defense articles, technical data, and
defense services. The governing law is
the Arms Export Control Act (AECA) (22
U.S.C. 2778 et seq.) and implementing
regulations in the International Traffic
in Arms Regulations (ITAR) (22 CFR
120–130).
Under the ITAR, the Department of
State manages an export licensing
system in which numerous government
approvals are often necessary for
companies to hold discussions about
potential projects, pursue joint
activities, ship hardware, or transfer
know-how to one another, and even
sometimes to transfer engineers and
other company employees from one
country to another. This process can be
challenging and time consuming for
U.S. exporters and for foreign firms in
their supply chains.
The U.S. concluded the Treaty with
the United Kingdom to enable their
militaries, security authorities, and their
approved industries to exchange
defense articles, technical information,
and defense services more freely. The
Treaty establishes exemptions for
certain exports and transfers that meet
the Treaty requirements. Other exports
and transfers remain governed by AECA
and the ITAR.
The Treaty and implementing
arrangements with the United Kingdom
may be accessed at https://
www.state.gov/t/pm/rls/othr/misc/
92770.htm.
The implementing legislation is in
Title I of Pub. L. 111–266, the Security
Cooperation Act of 2010.
The Senate conditions upon
ratification are at https://
www.govtrack.us/congress/
billtext.xpd?bill=s111-3847.
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Federal Register / Vol. 77, No. 99 / Tuesday, May 22, 2012 / Rules and Regulations
The U.S. Department of State
regulations implementing the Treaty
with the United Kingdom are at 22 CFR
part 120.
The Treaty establishes an Approved
Community that includes members of
the U.S. Government and the
government of the United Kingdom,
including various Ministries,
Departments, and Agencies, as well as
selected defense and security companies
and facilities. Exports of most U.S.
defense articles, including technical
data and defense services, are generally
permitted to enter and to move freely
within this community, without the
need for government approvals and
licenses—provided that all persons
comply with all other statutory and
regulatory requirements concerning the
import of defense articles and defense
services or the possession or transfer of
defense articles,—when in support of—
• Combined U.S.-U.K. military or
counterterrorism operations;
• U.S.-U.K. cooperative security and
defense research, development,
production, and support programs;
• Mutually agreed to security and
defense projects that are for U.K.
Government use only; and
• U.S. Government end use.
Under the Treaty, instead of a U.S.
exporter preparing and requesting U.S.
Department of State approval of an
export license or Technical Assistance
Agreement for a project, which would
normally take around 45–60 days, the
exporter will verify information on the
U.S. Department of State Web site that—
• The U.K. industry member is a
member of the Approved Community;
• The project is on the list of
approved projects and items are for U.S.
Government end use; and
• The defense article is not on the
Exempted Technology List.
If the members of the United States
Community and United Kingdom
Community, the project, and the
technology are verified, then the U.S.
exporter and the U.K. member may
proceed without export licenses.
In addition to checking the above
three lists, an exporter using the Treaty
also must comply with any applicable
related ITAR requirements and 22 CFR
126.17(g) and other applicable U.S. laws
and regulations. These requirements
include marking and recordkeeping to
ensure that export-controlled items are
recognized as such and handled
accordingly. Similarly, DFARS 225.7902
implements requirements that relate to
exports that, for example, a prospective
contractor may make under a DoD
solicitation or that a contractor may
make in performance of a DoD contract.
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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 a significant
regulatory action and, therefore, was
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.,
because the rule does not impose
burdens on small businesses. Small
businesses that are exporters will
benefit from being able to use the
streamlined treaty process to make
exports that are associated with
responding to DoD solicitations and
performance of DoD contracts. However,
an initial regulatory flexibility analysis
has been performed and is summarized
as follows:
The objective of the rule is to
streamline the export control
regulations between the United States
and the United Kingdom under
specified circumstances. The legal basis
for the rule is the Security Cooperation
Act of 2010 (Pub. L. 111–266), enacted
October 8, 2010.
Although this rule adds a
representation that requires the
approval of the Office of Management
and Budget under 44 U.S.C. chapter 35,
the net effect will be to significantly
streamline and reduce paperwork
requirements between the United States
and the United Kingdom under the
process set forth in the Treaty as
implemented by the ITAR by no longer
requiring individual export control
licenses in certain circumstances within
the Approved Community. In short, one
representation per offeror will
streamline the current process.
The great majority of industry
members that comprise the Approved
Community are not small businesses
due to the specialized knowledge of
export control regulations and the cost
involved in compliance. Therefore, the
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cost is anticipated to be less than five
million dollars, but will accrue a net
cost savings by streamlining the
requirements of industry compared to
the present export control licensing
procedures.
The rule does not duplicate, overlap,
or conflict with any other Federal rules.
This rule implements the Treaty and
statute and DoD is not aware of any
alternative methods of achieving the
objectives of the rule. Furthermore, the
net impact of the rule is expected to be
beneficial to small businesses.
DoD invites comments from small
business concerns and other interested
parties on the expected impact of this
rule on small entities.
DoD will also consider comments
from small entities concerning the
existing regulations in subparts affected
by this rule in accordance with 5 U.S.C.
610. Interested parties must submit such
comments separately and should cite 5
U.S.C. 610 (DFARS Case 2012–D034), in
correspondence.
IV. Paperwork Reduction Act
The rule contains 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).
OMB has cleared this information
collection requirement under OMB
Control Number 0704–0488, titled:
Defense Trade Cooperation Treaty with
the United Kingdom (DFARS 252.225).
The annual reporting burden is
estimated as follows:
Respondents: 110.
Responses per respondent: 1.
Total annual responses: 110.
Preparation hours per response: 0.1.
Total response burden hours: 11.
This rule will result in a significantly
streamlined process and reduced
paperwork requirements overall
between the United States and the
United Kingdom under the process set
forth in the Treaty as implemented by
the ITAR by no longer requiring
individual export licenses within the
Approved Community. In short, one
representation per offeror will
streamline the current process.
B. Request for Comments Regarding
Paperwork Burden
Written comments and
recommendations on the information
collection, including suggestions for
reducing this burden, should be sent not
later than July 23, 2012 to Ms. Jasmeet
Seehra at the Office of Management and
Budget, Desk Officer for DoD, Room
10236, New Executive Office Building,
Washington, DC 20503, or email
Jasmeet_K._Seehra@omb.eop.gov, with a
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copy to the Defense Acquisition
Regulations System, Attn: (Ms. Amy
Williams), OUSD(AT&L)DPAP/DARS,
Room 3B855, 3060 Defense Pentagon,
Washington, DC 20301–3060.
Comments can be received from 30 to 60
days after the date of this notice, but
comments to OMB will be most useful
if received by OMB within 30 days after
the date of this notice.
Public comments are particularly
invited on: whether this collection of
information is necessary for the proper
performance of functions of the DFARS,
and will have practical utility; whether
our estimate of the public burden of this
collection of information is accurate,
and based on valid assumptions and
methodology; ways to enhance the
quality, utility, and clarity of the
information to be collected; and ways in
which we can minimize the burden of
the collection of information on those
who are to respond, through the use of
appropriate technological collection
techniques or other forms of information
technology.
To request more information on this
information collection or to obtain a
copy of the information collection and
associated collection instruments,
please write to the Defense Acquisition
Regulations System, Attn: (Ms. Amy
Williams), OUSD(AT&L)DPAP/DARS,
Room 3B855, 3060 Defense Pentagon,
Washington, DC 20301–3060, or email
dfars@osd.mil. Include DFARS Case
2012–D034 in the subject line of the
message. Requesters may obtain a copy
of the supporting statement from the
point of contact specified herein. Please
cite OMB Control Number 0704–0488,
Defense Trade Cooperation Treaty with
the United Kingdom (DFARS 252.225),
in all correspondence.
VI. Determination To Issue an Interim
Rule
A determination has been made under
the authority of the Secretary of Defense
that urgent and compelling reasons exist
to promulgate this interim rule without
prior opportunity for public comment.
This action is necessary because the
Department of State final rule
implementing the Treaty between the
Government of the United States of
America and the Government of the
United Kingdom of Great Britain and
Northern Ireland Concerning Defense
Trade Cooperation (Treaty Doc. 110–7)
and making other updates to the ITAR
became effective on April 13, 2012 (77
FR 23538 dated April 19, 2012).
Expedited implementation of an interim
DFARS rule is based upon the DFARS’
integral ties with the ITAR and the
National Industrial Security Program
Operating Manual (NISPOM). The
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NISPOM and DFARS regulations
operationalize the ITAR guidance for
members of the United States
Community and United Kingdom
Community in the Approved
Community responsible for most of the
operational functions.
However, pursuant to 41 U.S.C. 1707
and FAR 1.501–3(b), DoD 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 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.
PART 225—FOREIGN ACQUISITION
2. Add subpart 225.79 to read as
follows:
■
Subpart 225.79—EXPORT CONTROL
Sec.
225.7900 Scope of subpart.
225.7901 [Reserved]
225.7902 Defense Trade Cooperation Treaty
with the United Kingdom.
225.7902–1 Definitions.
225.7902–2 Purpose.
225.7902–3 Policy.
225.7902–4 Procedures.
225.7902–5 Solicitation provision and
contract clause.
225.7902–1
225.7900
Scope of subpart.
This subpart implements the
requirements of the Security
Cooperation Act of 2010 (Pub. L. 111–
266) and the Treaty Between the
Government of the United States of
America and the Government of the
United Kingdom of Great Britain and
Northern Ireland Concerning Defense
Trade Cooperation (the Treaty)
regarding export control. See PGI
225.7902 for additional information.
225.7901
[Reserved]
225.7902 Defense Trade Cooperation
Treaty with the United Kingdom.
This section implements the Treaty
and the Implementing Arrangement for
DoD solicitations and contracts that
authorize prospective contractors and
contractors to use the Treaty to respond
to DoD solicitations and in the
performance of DoD contracts.
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Definitions.
Approved Community, defense
articles, export, Implementing
Arrangement, qualifying defense
articles, transfer, Treaty, and U.S. DoD
Treaty-eligible requirements are defined
in DFARS clause 252.225–7047, Exports
by Approved Community Members in
Performance of the Contract.
225.7902–2
Purpose.
The Treaty permits the export of
certain U.S. defense articles, technical
data, and defense services, without U.S.
export licenses or other written
authorization under the International
Traffic in Arms Regulations (ITAR) into
and within the Approved Community,
as long as the exports are in support of
purposes specified in the Treaty. All
persons must continue to comply with
statutory and regulatory requirements
outside of DFARS and ITAR concerning
the import of defense articles and
defense services or the possession or
transfer of defense articles, including,
but not limited to, regulations issued by
the Bureau of Alcohol, Tobacco,
Firearms and Explosives found at 27
CFR Parts 447, 478, and 479, which are
unaffected by the Defense Trade
Cooperation Treaty between the United
States and the United Kingdom. The
Approved Community consists of U.S.
entities that are registered with the
Department of State and are eligible
exporters, the U.S. Government, and
certain governmental and commercial
facilities in the United Kingdom that are
approved and listed by the U.S.
Government. See PGI 225.7902–2 for
additional information.
225.7902–3
Subpart 225.79—EXPORT CONTROL
30363
Policy.
DoD will facilitate maximum use of
the Treaty by prospective contractors
responding to DoD solicitations and by
contractors eligible to export qualifying
defense articles under DoD contracts in
accordance with 22 CFR 126.17(g).
225.7902–4
Procedures.
(a) For all solicitations and contracts
eligible for Treaty coverage (see PGI
225.7902–4(1)), the program manager
shall identify in writing and submit to
the contracting officer prior to issuance
of a solicitation and prior to award of a
contract—
(1) The qualifying Treaty Scope
paragraph (Article 3(1)(a), 3(1)(b), or
3(1)(d)); and
(2) The qualifying defense article(s)
using the categories described in 22 CFR
126.17(g).
(b) If applicable, the program manager
shall also identify in writing and submit
to the contracting officer any specific
Part C, Treaty-exempted technology list
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items, terms, and conditions for
applicable contract line item numbers
(See PGI 225.7902–4(2)).
225.7902–5 Solicitation provision and
contract clause.
(a) Use the provision at 252.225–7046,
Exports by Approved Community
Members in Response to the
Solicitation, in solicitations containing
the clause at 252.225–7047.
(b)(1) Use the clause at 252.225–7047,
Exports by Approved Community
Members in Performance of the
Contract, in solicitations and contracts
when—
(i) Export-controlled items are
expected to be involved in the
performance of the contract and the
clause at 252.204–7008 is used; and
(ii) At least one contract line item is
intended to satisfy a U.S. DoD Treatyeligible requirement.
(2) The contracting officer shall
complete paragraph (b) of the clause
using information the program manager
provided as required by 225.7902–4(a).
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
3. Add section 252.225–7046 to read
as follows:
■
252.225–7046 Exports by Approved
Community Members in Response to the
Solicitation.
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As prescribed in 225.7902–5(a), use
the following provision:
EXPORTS BY APPROVED COMMUNITY
MEMBERS IN RESPONSE TO THE
SOLICITATION (MAY 2012)
(a) Definitions. The definitions of
Approved Community, defense articles,
export, Implementing Arrangement,
qualifying defense articles, transfer, Treaty,
and U.S. DoD Treaty-eligible requirements in
DFARS clause 252.225–7047 apply to this
provision.
(b) All contract line items in the
contemplated contract, except any identified
in this paragraph, are intended to satisfy U.S.
DoD Treaty-eligible requirements. Specific
defense articles exempt from Treaty
eligibility will be identified in those contract
line items that are otherwise Treaty-eligible.
CONTRACT LINE ITEMS NOT INTENDED
TO SATISFY U.S. DoD TREATY-ELIGIBLE
REQUIREMENTS:
lllllllllllllllllllll
[Enter Contract Line Item Number(s) or enter
‘‘None’’]
(c) Approved Community members
responding to the solicitation may only
export or transfer defense articles that
specifically respond to the stated
requirements of the solicitation.
(d) Subject to the other terms and
conditions of the solicitation and the
contemplated contract that affect the
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acceptability of foreign sources or foreign end
products, components, parts, or materials,
Approved Community members are
permitted, but not required, to use the Treaty
for exports or transfers of qualifying defense
articles in preparing a response to this
solicitation.
(e) Any conduct by an offeror responding
to this solicitation that falls outside the scope
of the Treaty, the Implementing
Arrangement, and the implementing
regulations of the Department of State in 22
CFR 126.17 (United Kingdom), and 22 CFR
126 Supplement No. 1 (exempted
technologies list) is subject to all applicable
International Traffic in Arms Regulations
(ITAR) requirements, including any criminal,
civil, and administrative penalties or
sanctions, as well as all other United States
statutory and regulatory requirements outside
of ITAR.
(f) If the offeror uses the procedures
established pursuant to the Treaty, the offeror
agrees that, with regard to the export or
transfer of a qualifying defense article
associated with responding to the
solicitation, the offeror shall—
(1) Comply with the requirements and
provisions of the Treaty, the Implementing
Arrangement, and corresponding regulations
(including the ITAR) of the U.S. Government
and the government of the United Kingdom;
(2) Prior to the export or transfer of a
qualifying defense article—
(i) Mark, identify, transmit, store, and
handle any defense articles provided for the
purpose of responding to such solicitations,
as well as any defense articles provided with
or developed pursuant to their responses to
such solicitations, in accordance with the
Treaty, the Implementing Arrangement, and
corresponding United States Government and
the government of the United Kingdom
regulations including, but not limited to, the
marking and classification requirements
described in the applicable regulations;
(ii) Comply with the re-transfer or re-export
provisions of the Treaty, the Implementing
Arrangement, and corresponding United
States Government and the government of the
United Kingdom regulations, including, but
not limited to, the re-transfer and re-export
requirements described in the applicable
regulations; and
(iii) Acknowledge that any conduct that
falls outside or in violation of the Treaty,
Implementing Arrangement, and
implementing regulations of the applicable
government including, but not limited to,
unauthorized re-transfer or re-export in
violation of the procedures established in the
applicable Implementing Arrangement and
implementing regulations, remains subject to
applicable licensing requirements of the
government of the United Kingdom and the
United States Government, including any
criminal, civil, and administrative penalties
or sanctions contained therein; and
(3) Flow down the substance of this
provision, including this paragraph (f)(3), to
any subcontractor at any tier intending to use
the Treaty in responding to this solicitation.
(g) Representation. The offeror shall check
one of the following boxes and sign the
representation:
b The offeror represents that export(s) or
transfer(s) of qualifying defense articles were
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made in preparing its response to this
solicitation and that such export(s) or
transfer(s) complied with the requirements of
this provision.
lllllllllllllllllllll
Name/Title of Duly Authorized
Representative
lllllllllllllllllllll
Date
b The offeror represents that no export(s)
or transfer(s) of qualifying defense articles
were made in preparing its response to this
solicitation.
lllllllllllllllllllll
Name/Title of Duly Authorized
Representative
lllllllllllllllllllll
Date
(End of provision)
■ 4. Add section 252.225–7047 to read
as follows:
252.225–7047 Exports by Approved
Community Members in Performance of the
Contract.
As prescribed in 225.7902–5(b), use
the following clause:
EXPORTS BY APPROVED COMMUNITY
MEMBERS IN PERFORMANCE OF THE
CONTRACT (MAY 2012)
(a) Definitions. As used in this clause—
Approved Community means the U.S.
Government, U.S. entities that are registered
and eligible exporters, and certain
government and industry facilities in the
United Kingdom that are approved and listed
by the U.S. Government.
Defense articles means articles, services,
and related technical data, including
software, in tangible or intangible form, listed
on the United States Munitions List of the
International Traffic in Arms Regulations
(ITAR), as modified or amended.
Export means the initial movement of
defense articles from the United States
Community to the United Kingdom
Community.
Implementing Arrangement means the
Implementing Arrangement Pursuant to the
Treaty between the Government of the
United States of America and the government
of the United Kingdom of Great Britain and
Northern Ireland Concerning Defense Trade
Cooperation signed on February 14, 2008.
Qualifying defense articles means defense
articles that are not exempt from the scope
of the Treaty as defined in 22 CFR 126.17(g).
Transfer means the movement of
previously exported defense articles within
the Approved Community.
Treaty means the Treaty between the
Government of the United States of America
and the government of the United Kingdom
of Great Britain and Northern Ireland
Concerning Defense Trade Cooperation
signed at Washington and London on June 21
and 26, 2007.
United Kingdom Community member
means a United Kingdom government
authority or nongovernmental entity or
facility on the United Kingdom Community
list accessible at https://pmddtc.state.gov.
United States Community means—
(1) Departments and agencies of the U.S.
Government, including their personnel, with,
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22MYR2
srobinson on DSK4SPTVN1PROD with RULES2
Federal Register / Vol. 77, No. 99 / Tuesday, May 22, 2012 / Rules and Regulations
as appropriate, security accreditation and a
need-to-know; and
(2) Nongovernmental U.S. entities
registered with the Department of State and
eligible to export defense articles under U.S.
law and regulation, including their
employees, with, as appropriate, security
accreditation and a need-to-know.
U.S. DoD Treaty-eligible requirements
means any defense article acquired by DoD
for use in a combined military or
counterterrorism operation, cooperative
research, development, production, or
support program, or DoD end use, as
described in Article 3 of the Treaty and
Sections 2 and 3 of the Implementing
Arrangement.
(b) All contract line items in this contract,
except any identified in this paragraph, are
intended to satisfy U.S. DoD Treaty-eligible
requirements. Specific defense articles
exempt from Treaty eligibility will be
identified in those contract line items that are
otherwise Treaty-eligible.
CONTRACT LINE ITEMS NOT INTENDED
TO SATISFY U.S. DoD TREATY-ELIGIBLE
REQUIREMENTS:
lllllllllllllllllllll
[Enter Contract Line Item Number(s) or enter
‘‘None’’]
(c) Subject to the other terms and
conditions of this contract that affect the
acceptability of foreign sources or foreign end
products, components, parts, or materials,
Approved Community members are
permitted, but not required, to use the Treaty
for exports or transfers of qualifying defense
articles in performance of the contract.
(d) Any conduct by the Contractor that falls
outside the scope of the Treaty, the
Implementing Arrangement, and 22 CFR
126.17(g) is subject to all applicable ITAR
requirements, including any criminal, civil,
and administrative penalties or sanctions, as
well as all other United States statutory and
regulatory requirements outside of ITAR,
including, but not limited to, regulations
issued by the Bureau of Alcohol, Tobacco,
Firearms and Explosives found at 27 CFR
Parts 447, 478, and 479, which are unaffected
by the Treaty.
(e) If the Contractor is an Approved
Community member, the Contractor agrees
that—
(1) The Contractor shall comply with the
requirements of the Treaty, the Implementing
Arrangement, the ITAR, and corresponding
regulations of the U.S. Government and the
government of the United Kingdom; and
(2) Prior to the export or transfer of a
qualifying defense article, the Contractor—
(i) Shall mark, identify, transmit, store, and
handle any defense articles provided for the
purpose of responding to such solicitations,
as well as any defense articles provided with
or developed pursuant to their responses to
such solicitations, in accordance with the
Treaty, the Implementing Arrangement, and
corresponding United States Government and
the government of the United Kingdom
regulations including, but not limited to, the
marking and classification requirements
described in the applicable regulations;
(ii) Shall comply with the re-transfer or reexport provisions of the Treaty, this
VerDate Mar<15>2010
17:23 May 21, 2012
Jkt 226001
Implementing Arrangement, and
corresponding United States Government and
the government of the United Kingdom
regulations, including, but not limited to, the
re-transfer and re-export requirements
described in the applicable regulations; and
(iii) Shall acknowledge that any conduct
that falls outside or in violation of the Treaty,
Implementing Arrangement, and
implementing regulations of the applicable
government including, but not limited to,
unauthorized re-transfer or re-export in
violation of the procedures established in the
applicable Implementing Arrangement and
implementing regulations, remains subject to
applicable licensing requirements of the
government of the United Kingdom and the
United States Government, including any
criminal, civil, and administrative penalties
or sanctions contained therein.
(f) The contractor shall include the
substance of this clause, including this
paragraph (f), in all subcontracts that may
require exports or transfers of qualifying
defense articles in connection with deliveries
under the contract.
(End of clause)
[FR Doc. 2012–11560 Filed 5–21–12; 8:45 am]
BILLING CODE 5001–06–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Part 225
RIN 0750–AH68
Defense Federal Acquisition
Regulation Supplement: Report on
Waiver of Prohibition on Acquisition
From Communist Chinese Military
Companies (DFARS Case 2012–D023)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
DoD is issuing a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to implement the requirement
in the National Defense Authorization
Act for Fiscal Year 2012 to report to the
congressional defense committees
before issuing a waiver of the
prohibition on acquisition of United
States Munitions List items from
Communist Chinese military
companies.
SUMMARY:
Effective Date: May 22, 2012.
Ms.
Amy G. Williams, Defense Acquisition
Regulations System, OUSD (AT&L)
DPAP/DARS, Room 3B855, 3060
Defense Pentagon, Washington, DC
20301–3060. Telephone 571–372–6106;
facsimile 571–372–6094.
DATES:
FOR FURTHER INFORMATION CONTACT:
PO 00000
Frm 00011
Fmt 4701
Sfmt 4700
30365
SUPPLEMENTARY INFORMATION:
I. Background
Section 1243 of the National Defense
Authorization Act for Fiscal Year 2012
(Pub. L. 112–81) requires a report to the
congressional defense committees not
less than 15 days before issuing a waiver
to the requirements of section 1211 of
the National Defense Authorization Act
for Fiscal Year 2006 (Pub. L. 109–163),
implemented at DFARS 225.770,
Prohibition on acquisition of United
States Munitions List items from
Communist Chinese military
companies. The prior requirement was
for a report within 30 days after the date
of the waiver. The final rule also adds
the requirement to send a copy of the
report to Defense Procurement and
Acquisition Policy.
II. Publication of This Final Rule for
Public Comment Is Not Required by
Statute
‘‘Publication of proposed
regulations,’’ 41 U.S.C. 1707, is the
statute which applies to the publication
of the Federal Acquisition Regulation.
Paragraph (a)(1) of the statute requires
that a procurement policy, regulation,
procedure, or form (including an
amendment or modification thereof)
must be published for public comment
if it relates to the expenditure of
appropriated funds, and has either a
significant effect beyond the internal
operating procedures of the agency
issuing the policy, regulation,
procedure, or form, or has a significant
cost or administrative impact on
contractors or offerors. This final rule is
not required to be published for public
comment because the rule merely alters
the timing of the report to the
congressional defense committees when
issuing a waiver of the prohibition on
acquisition of United States Munitions
List items from Communist Chinese
military companies, adds the
requirement to send a copy of the report
to Defense Procurement and Acquisition
Policy, and further specifies the
required contents of the report. These
requirements affect only the internal
operating procedures of the
Government.
III. 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
E:\FR\FM\22MYR2.SGM
22MYR2
]]>Agencies
[Federal Register Volume 77, Number 99 (Tuesday, May 22, 2012)]
[Rules and Regulations]
[Pages 30361-30365]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-11560]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisitions Regulations System
48 CFR Parts 225 and 252
RIN 0750-AH70
Defense Federal Acquisition Regulation Supplement; Defense Trade
Cooperation Treaty With the United Kingdom (DFARS 2012-D034)
AGENCY: Defense Acquisition Regulations System; Department of Defense
(DoD).
ACTION: Interim rule.
-----------------------------------------------------------------------
SUMMARY: DoD is issuing an interim rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to implement requirements of
the Treaty Between the Government of the United States of America and
the Government of the United Kingdom of Great Britain and Northern
Ireland Concerning Defense Trade Cooperation (the Treaty) and the
Security Cooperation Act of 2010 regarding export control regulations
between the United States and the United Kingdom. The Treaty and
statute establish an Approved Community that includes members of the
U.S. Government and the government of the United Kingdom.
DATES: Effective Date: May 22, 2012.
Comment date: Comments on the interim rule should be submitted in
writing to the address shown below on or before July 23, 2012, to be
considered in the formation of the final rule.
ADDRESSES: Submit comments identified by DFARS Case 2012-D034, using
any of the following methods:
Regulations.gov: https://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by entering ``DFARS Case
2012-D034'' under the heading ``Enter keyword or ID'' and selecting
``Search.'' Select the link ``Submit a Comment'' that corresponds with
``DFARS Case 2012-D034.'' Follow the instructions provided at the
``Submit a Comment'' screen. Please include your name, company name (if
any), and ``DFARS Case 2012-D034'' on your attached document.
Email: dfars@osd.mil. Include DFARS Case 2012-D034 in the
subject line of the message.
Fax: 571-372-6094.
Mail: Defense Acquisition Regulations System, Attn:
(Insert case manager's name), 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 www.regulations.gov,
approximately two to three days after submission to verify posting
(except allow 30 days for posting of comments submitted by mail).
FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, Defense Acquisition
Regulations System, OUSD (AT&L) DPAP/DARS, Room 3B855, 3060 Defense
Pentagon, Washington, DC 20301-3060. Telephone 571-372-6106; facsimile
571-372-6101.
SUPPLEMENTARY INFORMATION:
I. Background
This rule streamlines the export control regulations between the
United States and the United Kingdom under specified circumstances.
The U.S. Government controls exports of defense articles, technical
data, and defense services. The governing law is the Arms Export
Control Act (AECA) (22 U.S.C. 2778 et seq.) and implementing
regulations in the International Traffic in Arms Regulations (ITAR) (22
CFR 120-130).
Under the ITAR, the Department of State manages an export licensing
system in which numerous government approvals are often necessary for
companies to hold discussions about potential projects, pursue joint
activities, ship hardware, or transfer know-how to one another, and
even sometimes to transfer engineers and other company employees from
one country to another. This process can be challenging and time
consuming for U.S. exporters and for foreign firms in their supply
chains.
The U.S. concluded the Treaty with the United Kingdom to enable
their militaries, security authorities, and their approved industries
to exchange defense articles, technical information, and defense
services more freely. The Treaty establishes exemptions for certain
exports and transfers that meet the Treaty requirements. Other exports
and transfers remain governed by AECA and the ITAR.
The Treaty and implementing arrangements with the United Kingdom
may be accessed at https://www.state.gov/t/pm/rls/othr/misc/92770.htm.
The implementing legislation is in Title I of Pub. L. 111-266, the
Security Cooperation Act of 2010.
The Senate conditions upon ratification are at https://www.govtrack.us/congress/billtext.xpd?bill=s111-3847.
[[Page 30362]]
The U.S. Department of State regulations implementing the Treaty
with the United Kingdom are at 22 CFR part 120.
The Treaty establishes an Approved Community that includes members
of the U.S. Government and the government of the United Kingdom,
including various Ministries, Departments, and Agencies, as well as
selected defense and security companies and facilities. Exports of most
U.S. defense articles, including technical data and defense services,
are generally permitted to enter and to move freely within this
community, without the need for government approvals and licenses--
provided that all persons comply with all other statutory and
regulatory requirements concerning the import of defense articles and
defense services or the possession or transfer of defense articles,--
when in support of--
Combined U.S.-U.K. military or counterterrorism
operations;
U.S.-U.K. cooperative security and defense research,
development, production, and support programs;
Mutually agreed to security and defense projects that are
for U.K. Government use only; and
U.S. Government end use.
Under the Treaty, instead of a U.S. exporter preparing and requesting
U.S. Department of State approval of an export license or Technical
Assistance Agreement for a project, which would normally take around
45-60 days, the exporter will verify information on the U.S. Department
of State Web site that--
The U.K. industry member is a member of the Approved
Community;
The project is on the list of approved projects and items
are for U.S. Government end use; and
The defense article is not on the Exempted Technology
List.
If the members of the United States Community and United Kingdom
Community, the project, and the technology are verified, then the U.S.
exporter and the U.K. member may proceed without export licenses.
In addition to checking the above three lists, an exporter using
the Treaty also must comply with any applicable related ITAR
requirements and 22 CFR 126.17(g) and other applicable U.S. laws and
regulations. These requirements include marking and recordkeeping to
ensure that export-controlled items are recognized as such and handled
accordingly. Similarly, DFARS 225.7902 implements requirements that
relate to exports that, for example, a prospective contractor may make
under a DoD solicitation or that a contractor may make in performance
of a DoD contract.
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 a significant regulatory action and, therefore, was 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.,
because the rule does not impose burdens on small businesses. Small
businesses that are exporters will benefit from being able to use the
streamlined treaty process to make exports that are associated with
responding to DoD solicitations and performance of DoD contracts.
However, an initial regulatory flexibility analysis has been performed
and is summarized as follows:
The objective of the rule is to streamline the export control
regulations between the United States and the United Kingdom under
specified circumstances. The legal basis for the rule is the Security
Cooperation Act of 2010 (Pub. L. 111-266), enacted October 8, 2010.
Although this rule adds a representation that requires the approval
of the Office of Management and Budget under 44 U.S.C. chapter 35, the
net effect will be to significantly streamline and reduce paperwork
requirements between the United States and the United Kingdom under the
process set forth in the Treaty as implemented by the ITAR by no longer
requiring individual export control licenses in certain circumstances
within the Approved Community. In short, one representation per offeror
will streamline the current process.
The great majority of industry members that comprise the Approved
Community are not small businesses due to the specialized knowledge of
export control regulations and the cost involved in compliance.
Therefore, the cost is anticipated to be less than five million
dollars, but will accrue a net cost savings by streamlining the
requirements of industry compared to the present export control
licensing procedures.
The rule does not duplicate, overlap, or conflict with any other
Federal rules.
This rule implements the Treaty and statute and DoD is not aware of
any alternative methods of achieving the objectives of the rule.
Furthermore, the net impact of the rule is expected to be beneficial to
small businesses.
DoD invites comments from small business concerns and other
interested parties on the expected impact of this rule on small
entities.
DoD will also consider comments from small entities concerning the
existing regulations in subparts affected by this rule in accordance
with 5 U.S.C. 610. Interested parties must submit such comments
separately and should cite 5 U.S.C. 610 (DFARS Case 2012-D034), in
correspondence.
IV. Paperwork Reduction Act
The rule contains 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). OMB has cleared this information
collection requirement under OMB Control Number 0704-0488, titled:
Defense Trade Cooperation Treaty with the United Kingdom (DFARS
252.225).
The annual reporting burden is estimated as follows:
Respondents: 110.
Responses per respondent: 1.
Total annual responses: 110.
Preparation hours per response: 0.1.
Total response burden hours: 11.
This rule will result in a significantly streamlined process and
reduced paperwork requirements overall between the United States and
the United Kingdom under the process set forth in the Treaty as
implemented by the ITAR by no longer requiring individual export
licenses within the Approved Community. In short, one representation
per offeror will streamline the current process.
B. Request for Comments Regarding Paperwork Burden
Written comments and recommendations on the information collection,
including suggestions for reducing this burden, should be sent not
later than July 23, 2012 to Ms. Jasmeet Seehra at the Office of
Management and Budget, Desk Officer for DoD, Room 10236, New Executive
Office Building, Washington, DC 20503, or email Jasmeet_K._Seehra@omb.eop.gov, with a
[[Page 30363]]
copy to the Defense Acquisition Regulations System, Attn: (Ms. Amy
Williams), OUSD(AT&L)DPAP/DARS, Room 3B855, 3060 Defense Pentagon,
Washington, DC 20301-3060. Comments can be received from 30 to 60 days
after the date of this notice, but comments to OMB will be most useful
if received by OMB within 30 days after the date of this notice.
Public comments are particularly invited on: whether this
collection of information is necessary for the proper performance of
functions of the DFARS, and will have practical utility; whether our
estimate of the public burden of this collection of information is
accurate, and based on valid assumptions and methodology; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways in which we can minimize the burden of the
collection of information on those who are to respond, through the use
of appropriate technological collection techniques or other forms of
information technology.
To request more information on this information collection or to
obtain a copy of the information collection and associated collection
instruments, please write to the Defense Acquisition Regulations
System, Attn: (Ms. Amy Williams), OUSD(AT&L)DPAP/DARS, Room 3B855, 3060
Defense Pentagon, Washington, DC 20301-3060, or email dfars@osd.mil.
Include DFARS Case 2012-D034 in the subject line of the message.
Requesters may obtain a copy of the supporting statement from the point
of contact specified herein. Please cite OMB Control Number 0704-0488,
Defense Trade Cooperation Treaty with the United Kingdom (DFARS
252.225), in all correspondence.
VI. Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense that urgent and compelling reasons exist to promulgate this
interim rule without prior opportunity for public comment. This action
is necessary because the Department of State final rule implementing
the Treaty between the Government of the United States of America and
the Government of the United Kingdom of Great Britain and Northern
Ireland Concerning Defense Trade Cooperation (Treaty Doc. 110-7) and
making other updates to the ITAR became effective on April 13, 2012 (77
FR 23538 dated April 19, 2012). Expedited implementation of an interim
DFARS rule is based upon the DFARS' integral ties with the ITAR and the
National Industrial Security Program Operating Manual (NISPOM). The
NISPOM and DFARS regulations operationalize the ITAR guidance for
members of the United States Community and United Kingdom Community in
the Approved Community responsible for most of the operational
functions.
However, pursuant to 41 U.S.C. 1707 and FAR 1.501-3(b), DoD 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 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
0
2. Add subpart 225.79 to read as follows:
Subpart 225.79--EXPORT CONTROL
Sec.
225.7900 Scope of subpart.
225.7901 [Reserved]
225.7902 Defense Trade Cooperation Treaty with the United Kingdom.
225.7902-1 Definitions.
225.7902-2 Purpose.
225.7902-3 Policy.
225.7902-4 Procedures.
225.7902-5 Solicitation provision and contract clause.
Subpart 225.79--EXPORT CONTROL
225.7900 Scope of subpart.
This subpart implements the requirements of the Security
Cooperation Act of 2010 (Pub. L. 111-266) and the Treaty Between the
Government of the United States of America and the Government of the
United Kingdom of Great Britain and Northern Ireland Concerning Defense
Trade Cooperation (the Treaty) regarding export control. See PGI
225.7902 for additional information.
225.7901 [Reserved]
225.7902 Defense Trade Cooperation Treaty with the United Kingdom.
This section implements the Treaty and the Implementing Arrangement
for DoD solicitations and contracts that authorize prospective
contractors and contractors to use the Treaty to respond to DoD
solicitations and in the performance of DoD contracts.
225.7902-1 Definitions.
Approved Community, defense articles, export, Implementing
Arrangement, qualifying defense articles, transfer, Treaty, and U.S.
DoD Treaty-eligible requirements are defined in DFARS clause 252.225-
7047, Exports by Approved Community Members in Performance of the
Contract.
225.7902-2 Purpose.
The Treaty permits the export of certain U.S. defense articles,
technical data, and defense services, without U.S. export licenses or
other written authorization under the International Traffic in Arms
Regulations (ITAR) into and within the Approved Community, as long as
the exports are in support of purposes specified in the Treaty. All
persons must continue to comply with statutory and regulatory
requirements outside of DFARS and ITAR concerning the import of defense
articles and defense services or the possession or transfer of defense
articles, including, but not limited to, regulations issued by the
Bureau of Alcohol, Tobacco, Firearms and Explosives found at 27 CFR
Parts 447, 478, and 479, which are unaffected by the Defense Trade
Cooperation Treaty between the United States and the United Kingdom.
The Approved Community consists of U.S. entities that are registered
with the Department of State and are eligible exporters, the U.S.
Government, and certain governmental and commercial facilities in the
United Kingdom that are approved and listed by the U.S. Government. See
PGI 225.7902-2 for additional information.
225.7902-3 Policy.
DoD will facilitate maximum use of the Treaty by prospective
contractors responding to DoD solicitations and by contractors eligible
to export qualifying defense articles under DoD contracts in accordance
with 22 CFR 126.17(g).
225.7902-4 Procedures.
(a) For all solicitations and contracts eligible for Treaty
coverage (see PGI 225.7902-4(1)), the program manager shall identify in
writing and submit to the contracting officer prior to issuance of a
solicitation and prior to award of a contract--
(1) The qualifying Treaty Scope paragraph (Article 3(1)(a),
3(1)(b), or 3(1)(d)); and
(2) The qualifying defense article(s) using the categories
described in 22 CFR 126.17(g).
(b) If applicable, the program manager shall also identify in
writing and submit to the contracting officer any specific Part C,
Treaty-exempted technology list
[[Page 30364]]
items, terms, and conditions for applicable contract line item numbers
(See PGI 225.7902-4(2)).
225.7902-5 Solicitation provision and contract clause.
(a) Use the provision at 252.225-7046, Exports by Approved
Community Members in Response to the Solicitation, in solicitations
containing the clause at 252.225-7047.
(b)(1) Use the clause at 252.225-7047, Exports by Approved
Community Members in Performance of the Contract, in solicitations and
contracts when--
(i) Export-controlled items are expected to be involved in the
performance of the contract and the clause at 252.204-7008 is used; and
(ii) At least one contract line item is intended to satisfy a U.S.
DoD Treaty-eligible requirement.
(2) The contracting officer shall complete paragraph (b) of the
clause using information the program manager provided as required by
225.7902-4(a).
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
3. Add section 252.225-7046 to read as follows:
252.225-7046 Exports by Approved Community Members in Response to the
Solicitation.
As prescribed in 225.7902-5(a), use the following provision:
EXPORTS BY APPROVED COMMUNITY MEMBERS IN RESPONSE TO THE SOLICITATION
(MAY 2012)
(a) Definitions. The definitions of Approved Community, defense
articles, export, Implementing Arrangement, qualifying defense
articles, transfer, Treaty, and U.S. DoD Treaty-eligible
requirements in DFARS clause 252.225-7047 apply to this provision.
(b) All contract line items in the contemplated contract, except
any identified in this paragraph, are intended to satisfy U.S. DoD
Treaty-eligible requirements. Specific defense articles exempt from
Treaty eligibility will be identified in those contract line items
that are otherwise Treaty-eligible.
CONTRACT LINE ITEMS NOT INTENDED TO SATISFY U.S. DoD TREATY-ELIGIBLE
REQUIREMENTS:
-----------------------------------------------------------------------
[Enter Contract Line Item Number(s) or enter ``None'']
(c) Approved Community members responding to the solicitation
may only export or transfer defense articles that specifically
respond to the stated requirements of the solicitation.
(d) Subject to the other terms and conditions of the
solicitation and the contemplated contract that affect the
acceptability of foreign sources or foreign end products,
components, parts, or materials, Approved Community members are
permitted, but not required, to use the Treaty for exports or
transfers of qualifying defense articles in preparing a response to
this solicitation.
(e) Any conduct by an offeror responding to this solicitation
that falls outside the scope of the Treaty, the Implementing
Arrangement, and the implementing regulations of the Department of
State in 22 CFR 126.17 (United Kingdom), and 22 CFR 126 Supplement
No. 1 (exempted technologies list) is subject to all applicable
International Traffic in Arms Regulations (ITAR) requirements,
including any criminal, civil, and administrative penalties or
sanctions, as well as all other United States statutory and
regulatory requirements outside of ITAR.
(f) If the offeror uses the procedures established pursuant to
the Treaty, the offeror agrees that, with regard to the export or
transfer of a qualifying defense article associated with responding
to the solicitation, the offeror shall--
(1) Comply with the requirements and provisions of the Treaty,
the Implementing Arrangement, and corresponding regulations
(including the ITAR) of the U.S. Government and the government of
the United Kingdom;
(2) Prior to the export or transfer of a qualifying defense
article--
(i) Mark, identify, transmit, store, and handle any defense
articles provided for the purpose of responding to such
solicitations, as well as any defense articles provided with or
developed pursuant to their responses to such solicitations, in
accordance with the Treaty, the Implementing Arrangement, and
corresponding United States Government and the government of the
United Kingdom regulations including, but not limited to, the
marking and classification requirements described in the applicable
regulations;
(ii) Comply with the re-transfer or re-export provisions of the
Treaty, the Implementing Arrangement, and corresponding United
States Government and the government of the United Kingdom
regulations, including, but not limited to, the re-transfer and re-
export requirements described in the applicable regulations; and
(iii) Acknowledge that any conduct that falls outside or in
violation of the Treaty, Implementing Arrangement, and implementing
regulations of the applicable government including, but not limited
to, unauthorized re-transfer or re-export in violation of the
procedures established in the applicable Implementing Arrangement
and implementing regulations, remains subject to applicable
licensing requirements of the government of the United Kingdom and
the United States Government, including any criminal, civil, and
administrative penalties or sanctions contained therein; and
(3) Flow down the substance of this provision, including this
paragraph (f)(3), to any subcontractor at any tier intending to use
the Treaty in responding to this solicitation.
(g) Representation. The offeror shall check one of the following
boxes and sign the representation:
[square] The offeror represents that export(s) or transfer(s) of
qualifying defense articles were made in preparing its response to
this solicitation and that such export(s) or transfer(s) complied
with the requirements of this provision.
-----------------------------------------------------------------------
Name/Title of Duly Authorized Representative
-----------------------------------------------------------------------
Date
[square] The offeror represents that no export(s) or transfer(s)
of qualifying defense articles were made in preparing its response
to this solicitation.
-----------------------------------------------------------------------
Name/Title of Duly Authorized Representative
-----------------------------------------------------------------------
Date
(End of provision)
0
4. Add section 252.225-7047 to read as follows:
252.225-7047 Exports by Approved Community Members in Performance of
the Contract.
As prescribed in 225.7902-5(b), use the following clause:
EXPORTS BY APPROVED COMMUNITY MEMBERS IN PERFORMANCE OF THE CONTRACT
(MAY 2012)
(a) Definitions. As used in this clause--
Approved Community means the U.S. Government, U.S. entities that
are registered and eligible exporters, and certain government and
industry facilities in the United Kingdom that are approved and
listed by the U.S. Government.
Defense articles means articles, services, and related technical
data, including software, in tangible or intangible form, listed on
the United States Munitions List of the International Traffic in
Arms Regulations (ITAR), as modified or amended.
Export means the initial movement of defense articles from the
United States Community to the United Kingdom Community.
Implementing Arrangement means the Implementing Arrangement
Pursuant to the Treaty between the Government of the United States
of America and the government of the United Kingdom of Great Britain
and Northern Ireland Concerning Defense Trade Cooperation signed on
February 14, 2008.
Qualifying defense articles means defense articles that are not
exempt from the scope of the Treaty as defined in 22 CFR 126.17(g).
Transfer means the movement of previously exported defense
articles within the Approved Community.
Treaty means the Treaty between the Government of the United
States of America and the government of the United Kingdom of Great
Britain and Northern Ireland Concerning Defense Trade Cooperation
signed at Washington and London on June 21 and 26, 2007.
United Kingdom Community member means a United Kingdom
government authority or nongovernmental entity or facility on the
United Kingdom Community list accessible at https://pmddtc.state.gov.
United States Community means--
(1) Departments and agencies of the U.S. Government, including
their personnel, with,
[[Page 30365]]
as appropriate, security accreditation and a need-to-know; and
(2) Nongovernmental U.S. entities registered with the Department
of State and eligible to export defense articles under U.S. law and
regulation, including their employees, with, as appropriate,
security accreditation and a need-to-know.
U.S. DoD Treaty-eligible requirements means any defense article
acquired by DoD for use in a combined military or counterterrorism
operation, cooperative research, development, production, or support
program, or DoD end use, as described in Article 3 of the Treaty and
Sections 2 and 3 of the Implementing Arrangement.
(b) All contract line items in this contract, except any
identified in this paragraph, are intended to satisfy U.S. DoD
Treaty-eligible requirements. Specific defense articles exempt from
Treaty eligibility will be identified in those contract line items
that are otherwise Treaty-eligible.
CONTRACT LINE ITEMS NOT INTENDED TO SATISFY U.S. DoD TREATY-ELIGIBLE
REQUIREMENTS:
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[Enter Contract Line Item Number(s) or enter ``None'']
(c) Subject to the other terms and conditions of this contract
that affect the acceptability of foreign sources or foreign end
products, components, parts, or materials, Approved Community
members are permitted, but not required, to use the Treaty for
exports or transfers of qualifying defense articles in performance
of the contract.
(d) Any conduct by the Contractor that falls outside the scope
of the Treaty, the Implementing Arrangement, and 22 CFR 126.17(g) is
subject to all applicable ITAR requirements, including any criminal,
civil, and administrative penalties or sanctions, as well as all
other United States statutory and regulatory requirements outside of
ITAR, including, but not limited to, regulations issued by the
Bureau of Alcohol, Tobacco, Firearms and Explosives found at 27 CFR
Parts 447, 478, and 479, which are unaffected by the Treaty.
(e) If the Contractor is an Approved Community member, the
Contractor agrees that--
(1) The Contractor shall comply with the requirements of the
Treaty, the Implementing Arrangement, the ITAR, and corresponding
regulations of the U.S. Government and the government of the United
Kingdom; and
(2) Prior to the export or transfer of a qualifying defense
article, the Contractor--
(i) Shall mark, identify, transmit, store, and handle any
defense articles provided for the purpose of responding to such
solicitations, as well as any defense articles provided with or
developed pursuant to their responses to such solicitations, in
accordance with the Treaty, the Implementing Arrangement, and
corresponding United States Government and the government of the
United Kingdom regulations including, but not limited to, the
marking and classification requirements described in the applicable
regulations;
(ii) Shall comply with the re-transfer or re-export provisions
of the Treaty, this Implementing Arrangement, and corresponding
United States Government and the government of the United Kingdom
regulations, including, but not limited to, the re-transfer and re-
export requirements described in the applicable regulations; and
(iii) Shall acknowledge that any conduct that falls outside or
in violation of the Treaty, Implementing Arrangement, and
implementing regulations of the applicable government including, but
not limited to, unauthorized re-transfer or re-export in violation
of the procedures established in the applicable Implementing
Arrangement and implementing regulations, remains subject to
applicable licensing requirements of the government of the United
Kingdom and the United States Government, including any criminal,
civil, and administrative penalties or sanctions contained therein.
(f) The contractor shall include the substance of this clause,
including this paragraph (f), in all subcontracts that may require
exports or transfers of qualifying defense articles in connection
with deliveries under the contract.
(End of clause)
[FR Doc. 2012-11560 Filed 5-21-12; 8:45 am]
BILLING CODE 5001-06-P
