Federal Acquisition Regulation; Free Trade Agreement-Panama, 69723-69726 [2012-27906]

Download as PDF Federal Register / Vol. 77, No. 224 / Tuesday, November 20, 2012 / Rules and Regulations requirements beyond the FAR, the DoD acquisition official shall so inform the servicing nondefense agency contracting officer in writing. Nondefense agency contracting officers are responsible for ensuring support provided in response to DoD’s request complies with paragraph (b) of this section. (e) Waiver. The limitation in paragraph (a) of this section shall not apply to the acquisition of supplies and services on behalf of DoD by a nondefense agency during any fiscal year for which the Under Secretary of Defense for Acquisition, Technology, and Logistics has determined in writing that it is necessary in the interest of DoD to acquire supplies and services through the nondefense agency during the fiscal year. The written determination shall identify the acquisition categories to which the waiver applies. (f) Nondefense agency certifications, waivers, and additional information are available at http://www.acq.osd.mil/ dpap/cpic/cp/ interagency_acquisition.html. [FR Doc. 2012–27905 Filed 11–19–12; 8:45 am] BILLING CODE 6820–EP–P DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 25 and 52 [FAC 2005–62; FAR Case 2012–027; Item III; Docket 2012–0027, Sequence 01] RIN 9000–AM43 Federal Acquisition Regulation; Free Trade Agreement—Panama Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Interim rule. AGENCIES: DoD, GSA, and NASA are issuing an interim rule amending the Federal Acquisition Regulation (FAR) to implement the United States—Panama Trade Promotion Agreement. This Trade Promotion Agreement is a free trade agreement that provides for mutually non-discriminatory treatment of eligible products and services from Panama. DATES: Effective date: November 20, 2012. Comment date: Interested parties should submit written comments to the Regulatory Secretariat on or before wreier-aviles on DSK5TPTVN1PROD with SUMMARY: VerDate Mar<15>2010 15:15 Nov 19, 2012 Jkt 229001 January 22, 2013 to be considered in the formulation of a final rule. ADDRESSES: Submit comments identified by FAC 2005–62, FAR Case 2012–027, by any of the following methods: • Regulations.gov: http:// www.regulations.gov. Submit comments via the Federal eRulemaking portal by searching for ‘‘FAR Case 2012–027’’. Select the link ‘‘Submit a Comment’’ that corresponds with ‘‘FAR Case 2012– 027.’’ Follow the instructions provided at the ‘‘Submit a Comment’’ screen. Please include your name, company name (if any), and ‘‘FAR Case 2012– 027’’ on your attached document. • Fax: 202–501–4067. • Mail: General Services Administration, Regulatory Secretariat (MVCB), ATTN: Hada Flowers, 1275 First Street NE., 7th Floor, Washington, DC 20417. Instructions: Please submit comments only and cite FAC 2005–62, FAR Case 2012–027, in all correspondence related to this case. All comments received will be posted without change to http:// www.regulations.gov, including any personal and/or business confidential information provided. FOR FURTHER INFORMATION CONTACT: Ms. Cecelia L. Davis, Procurement Analyst, at 202–219–0202, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202–501– 4755. Please cite FAC 2005–62, FAR Case 2012–027. SUPPLEMENTARY INFORMATION: I. Background DoD, GSA, and NASA are issuing an interim rule amending FAR part 25 and the corresponding provisions and clauses in part 52 to implement the United States—Panama Trade Promotion Agreement Implementation Act (Pub. L. 112–43) (19 U.S.C. 3805 note). This Trade Promotion Agreement is designated in the FAR as the Panama Free Trade Agreement (FTA). This FTA provides for— • Waiver of the applicability of the Buy American statute (41 U.S.C. chapter 83) for some foreign supplies and construction materials from Panama; and • Applicability of specified procurement procedures designed to ensure fairness in the acquisition of supplies and services (see FAR 25.408). II. Discussion and Analysis This interim rule adds Panama to the definition of ‘‘Free Trade Agreement country’’ in multiple locations in the FAR. PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 69723 The Panama FTA covers acquisitions of supplies and services equal to or exceeding $202,000. The threshold for the Panama FTA is $7,777,000 for construction contracts. The Panama FTA threshold for supplies and services is higher than the threshold for supplies and services for most of the FTAs ($77,494), and equals the Bahrain, Morocco, Oman, and Peru FTA thresholds for supplies and services ($202,000). The excluded services for the Panama FTA are the same as for the Bahrain FTA, Dominican Republic— Central American FTA, Colombia FTA, Chile FTA, NAFTA, Oman FTA, and Peru FTA. III. Executive Order 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. IV. Regulatory Flexibility Act The Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration do 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. Although the rule now opens up Government procurement to the goods and services of Panama, DoD, GSA, and NASA do not anticipate any significant economic impact on U.S. small businesses. The Department of Defense only applies the trade agreements to the non-defense items listed at Defense Federal Acquisition Regulation Supplement (DFARS) 225.401–70, and acquisitions that are set aside or provide other form of preference for small businesses are exempt. FAR 19.502–2 states that acquisitions of supplies or services with an anticipated dollar value between $3,000 and $150,000 (with some exceptions) are automatically reserved for small business concerns. E:\FR\FM\20NOR2.SGM 20NOR2 69724 Federal Register / Vol. 77, No. 224 / Tuesday, November 20, 2012 / Rules and Regulations Therefore, an Initial Regulatory Flexibility Analysis has not been performed. DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact of this rule on small entities. DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by the rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C 610 (FAC 2005–62, FAR Case 2012–027), in correspondence. V. Paperwork Reduction Act The Paperwork Reduction Act (44 U.S.C. chapter 35) does apply, because the interim rule affects the certification and information collection requirements in the provisions at FAR 52.212–3, 52.225–4, 52.225–6 and 52.225–11 currently approved under the Office of Management and Budget Control Numbers 9000–0136, titled: Commercial Item Acquisition, 9000–0130, titled: Buy American Act—Free Trade Agreements—Israeli Trade Act Certificate, 9000–0025, titled: Trade Agreements Certificate, and 9000–0141, titled: Buy American—Construction, respectively. The impact, however, is negligible because it is just a question of which category offered goods from Panama would be listed under. VI. Determination To Issue an Interim Rule A determination has been made under the authority of the Secretary of Defense (DoD), the Administrator of General Services (GSA), and the Administrator of the National Aeronautics and Space Administration (NASA) that urgent and compelling reasons exist to promulgate this interim rule without prior opportunity for public comment. This action is necessary because the effective date of the Free Trade Agreement with Panama is October 31, 2012. This is a reciprocal agreement, approved by Congress and the President of the United States. It is important for the United States Government to honor its new trade obligations to Panama, as Panama in turn honors its new trade obligations to the United States. However, pursuant to 41 U.S.C. 1707 and FAR 1.501–3(b), DoD, GSA, and NASA will consider public comments received in response to this interim rule in the formation of the final rule. List of Subjects in 48 CFR Parts 25 and 52. Government procurement. Dated: November 9, 2012. Laura Auletta, Director, Office of Governmentwide Acquisition Policy, Office of Acquisition Policy, Office of Governmentwide Policy. Therefore, DoD, GSA, and NASA amend 48 CFR parts 25 and 52 as set forth below: ■ 1. The authority citation for 48 CFR parts 25 and 52 is revised to read as follows: Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113. wreier-aviles on DSK5TPTVN1PROD with Jkt 229001 § 25.400 Scope of subpart. (a) * * * (2) * * * (x) Korea FTA (the United StatesKorea Free Trade Agreement Implementation Act (Pub. L. 112–41) (19 U.S.C 3805 note)); (xi) Colombia FTA (the United StatesColombia Trade Promotion Agreement Implementation Act (Pub. L. 112–42) (19 U.S.C. 3805 note)); and (xii) Panama FTA (the United StatesPanama Trade Promotion Agreement Implementation Act (Pub. L. 112–43) (19 U.S.C. 3805 note)); * * * * * § 25.401 [Amended] 4. Amend section 25.401 by removing from paragraph (b), in the table, in the heading, ‘‘Oman FTA, and Peru FTA’’ and adding ‘‘Oman FTA, Panama FTA, and Peru FTA’’ in its place. ■ PART 25—FOREIGN ACQUISITION 25.003 § 25.402 [Amended] 2. Amend section 25.003 by removing from both the definition of ‘‘Designated ■ PO 00000 Frm 00012 ■ * General. * * (b) * * * * Supply contract (equal to or exceeding) WTO GPA .................................................................................................................................... FTAs: Australia FTA ........................................................................................................................ Bahrain FTA ......................................................................................................................... CAFTA–DR (Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, and Nicaragua) ......................................................................................................................... Chile FTA .............................................................................................................................. Colombia FTA ....................................................................................................................... Korea FTA ............................................................................................................................ Morocco FTA ........................................................................................................................ NAFTA: —Canada .............................................................................................................................. —Mexico ............................................................................................................................... Oman FTA ............................................................................................................................ Panama FTA ........................................................................................................................ Peru FTA .............................................................................................................................. Singapore FTA ..................................................................................................................... Israeli Trade Act .......................................................................................................................... 15:15 Nov 19, 2012 3. Amend section 25.400 by revising paragraphs (a)(2)(x) and (a)(2)(xi); and adding paragraph (a)(2)(xii) to read as follows: ■ 5. Amend section 25.402 by revising the table in paragraph (b) to read as follows: Trade agreement VerDate Mar<15>2010 country’’ in paragraph (2), and the definition of ‘‘Free Trade Agreement country’’ the words ‘‘Oman, Peru,’’ and adding ‘‘Oman, Panama, Peru,’’ in their place. Fmt 4701 Sfmt 4700 * Service contract (equal to or exceeding) Construction contract (equal to or exceeding) $202,000 $202,000 $7,777,000 77,494 202,000 77,494 202,000 7,777,000 10,074,262 77,494 77,494 77,494 100,000 202,000 77,494 77,494 77,494 100,000 202,000 7,777,000 7,777,000 7,777,000 7,777,000 7,777,000 25,000 77,494 202,000 202,000 202,000 77,494 50,000 77,494 77,494 202,000 202,000 202,000 77,494 ........................ 10,074,262 10,074,262 10,074,262 7,777,000 7,777,000 7,777,000 ........................ E:\FR\FM\20NOR2.SGM 20NOR2 Federal Register / Vol. 77, No. 224 / Tuesday, November 20, 2012 / Rules and Regulations * * * * * PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 6. Amend section 52.212–3 by revising the date of the provision; and paragraphs (g)(1)(i), (g)(1)(ii), and (g)(4) to read as follows: ■ country end products (other than Bahrainian, Korean, Moroccan, Omani, Panamanian, or Peruvian end products) or Israeli end products as defined in the clause of this solicitation entitled ‘‘Buy American Act— Free Trade Agreements—Israeli Trade Act’’: Free Trade Agreement Country End Products (Other than Bahrainian, Korean, Moroccan, Omani, Panamanian, or Peruvian End Products) or Israeli End Products: 52.212–3 Offeror Representations and Certifications—Commercial Items. * * * * Line Item No. Country of Origin * * * * * [List as necessary] Country of Origin [List as necessary] wreier-aviles on DSK5TPTVN1PROD with * * * * * (g)(4) Buy American Act—Free Trade Agreements—Israeli Trade Act Certificate, Alternate III. If Alternate III to the clause at FAR 52.225–3 is included in this solicitation, substitute the following paragraph (g)(1)(ii) for paragraph (g)(1)(ii) of the basic provision: (g)(1)(ii) The offeror certifies that the following supplies are Free Trade Agreement VerDate Mar<15>2010 52.225–3 Buy American Act—Free Trade Agreements—Israeli Trade Act. 15:15 Nov 19, 2012 Jkt 229001 * * * * Buy American Act—Free Trade Agreement—Israeli Trade Act (NOV 2012) * (g)(1) Buy American Act—Free Trade Agreements—Israeli Trade Act Certificate. (Applies only if the clause at FAR 52.225–3, Buy American Act—Free Trade Agreements—Israeli Trade Act, is included in this solicitation.) (i) The offeror certifies that each end product, except those listed in paragraph (g)(1)(ii) or (g)(1)(iii) of this provision, is a domestic end product and that for other than COTS items, the offeror has considered components of unknown origin to have been mined, produced, or manufactured outside the United States. The terms ‘‘Bahrainian, Moroccan, Omani, Panamanian, or Peruvian end product,’’ ‘‘commercially available offthe-shelf (COTS) item,’’ ‘‘component,’’ ‘‘domestic end product,’’ ‘‘end product,’’ ‘‘foreign end product,’’ ‘‘Free Trade Agreement country,’’ ‘‘Free Trade Agreement country end product,’’ ‘‘Israeli end product,’’ and ‘‘United States’’ are defined in the clause of this solicitation entitled ‘‘Buy American Act—Free Trade Agreements—Israeli Trade Act.’’ (ii) The offeror certifies that the following supplies are Free Trade Agreement country end products (other than Bahrainian, Moroccan, Omani, Panamanian, or Peruvian end products) or Israeli end products as defined in the clause of this solicitation entitled ‘‘Buy American Act—Free Trade Agreements—Israeli Trade Act’’: Free Trade Agreement Country End Products (Other than Bahrainian, Moroccan, Omani, Panamanian, or Peruvian End Products) or Israeli End Products: Line Item No. ‘‘Oman, Panama, or Peru’’ in its place; and ■ 3. Removing from paragraph (c) ‘‘Oman, and Peru’’ and ‘‘Omani, or Peruvian’’ (twice) and adding ‘‘Oman, Panama, and Peru’’ and ‘‘Omani, Panamanian, or Peruvian’’ (twice) in their places, respectively. The revised text reads as follows: * Offeror Representations and Certifications—Commercial Items (NOV 2012) 69725 * * * * * 7. Amend section 52.212–5 by revising the date of the clause and paragraphs (b)(40) and (b)(41) to read as follows: ■ 52.212–5 Contract Terms and Conditions Required to Implement Statutes or Executive Orders—Commercial Items. * * * * * Contract Terms and Conditions Required To Implement Statutes or Executive Orders—Commercial Items (NOV 2012) * * * * * (b) * * * (40)(i) 52.225–3, Buy American Act—Free Trade Agreements—Israeli Trade Act (NOV 2012) (41 U.S.C. chapter 83, 19 U.S.C. 3301 note, 19 U.S.C. 2112 note, 19 U.S.C. 3805 note, 19 U.S.C. 4001 note, Pub. L. 103–182, 108–77, 108–78, 108–286, 108–302, 109–53, 109–169, 109–283, 110–138, 112–41, 112–42, and 112–43). (ii) Alternate I (MAR 2012) of 52.225–3. (iii) Alternate II (MAR 2012) of 52.225–3. (iv) Alternate III (NOV 2012) of 52.225–3. (41) 52.225–5, Trade Agreements (NOV 2012) (19 U.S.C. 2501, et seq., 19 U.S.C. 3301 note). * * * * * 8. Amend section 52.225–3 by— a. Revising the date of the clause; b. Revising the definitions in paragraph (a) of ‘‘Bahrainian, Moroccan, Omani, or Peruvian end product’’ and ‘‘Free Trade Agreement country’’; ■ c. Removing from paragraph (c) ‘‘Oman, and Peru’’ and ‘‘Omani, or Peruvian’’ (twice) and adding ‘‘Oman, Panama, and Peru’’ and ‘‘Omani, Panamanian, or Peruvian’’ (twice) in their places, respectively; and ■ d. Amending Alternate III by— ■ 1. Revising the introductory text of Alternate III; ■ 2. Revising the introductory paragraph of the definition of ‘‘Bahrainian, Korean, Moroccan, Omani, or Peruvian end product’’ and removing from paragraphs (1) and (2) ‘‘Oman, or Peru’’ and adding ■ ■ ■ PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 (a) Definitions. As used in this clause— Bahrainian, Moroccan, Omani, Panamanian, or Peruvian end product means an article that— (1) Is wholly the growth, product, or manufacture of Bahrain, Morocco, Oman, Panama, or Peru; or (2) In the case of an article that consists in whole or in part of materials from another country, has been substantially transformed in Bahrain, Morocco, Oman, Panama, or Peru into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to the article, provided that the value of those incidental services does not exceed that of the article itself. * * * * * Free Trade Agreement country means Australia, Bahrain, Canada, Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Oman, Panama, Peru, or Singapore. * * * * * Alternate III (NOV 2012). As prescribed in 25.1101(b)(1)(iv), delete the definition of ‘‘Bahrainian, Moroccan, Omani, Panamanian, or Peruvian end product’’ and add in its place the following definition of ‘‘Bahrainian, Korean, Moroccan, Omani, Panamanian, or Peruvian end product’’ in paragraph (a) of the basic clause; and substitute the following paragraph (c) for paragraph (c) of the basic clause. Bahrainian, Korean, Moroccan, Omani, Panamanian, or Peruvian end product means an article that— * * * * * 9. Amend section 52.225–4 by— a. Revising the date of the provision; b. Removing once from paragraph (a) and twice from paragraph (b) ‘‘Omani, or Peruvian’’ and adding ‘‘Omani, Panamanian, or Peruvian’’ in its place; and ■ c. Revising the date of Alternate III; and removing twice from paragraph (b) ‘‘Omani, or Peruvian’’ and adding ‘‘Omani, Panamanian, or Peruvian’’ in their places. ■ ■ ■ E:\FR\FM\20NOR2.SGM 20NOR2 69726 Federal Register / Vol. 77, No. 224 / Tuesday, November 20, 2012 / Rules and Regulations The revised text reads as follows: 52.225–4 Buy American Act—Free Trade Agreements—Israeli Trade Act Certificate. * * * * * Buy American Act—Free Trade Agreements—Israeli Trade Act Certificate (NOV 2012) * * * * * 10. Amend section 52.225–5 by— a. Revising the date of the clause; b. Removing from paragraph (a), in the definition of ‘‘Designated country’’ in paragraph (2), ‘‘Oman, Peru,’’ and adding ‘‘Oman, Panama, Peru,’’ in its place. The revised text reads as follows: ■ ■ ■ 52.225–5 * * Trade Agreements. * * a. Revising the date of the clause; and b. Removing from paragraph (a), in the definition of ‘‘Designated country’’ in paragraph (2), ‘‘Oman, Peru,’’ and adding ‘‘Oman, Panama, Peru,’’ in its place; and removing from the definition of ‘‘Recovery Act designated country’’ in paragraph (2) ‘‘Oman, Peru,’’ and adding ‘‘Oman, Panama, Peru,’’ in its place. The revised text reads as follows: ■ ■ * 52.225–23 Required Use of American Iron, Steel, and Manufactured Goods—Buy American Act—Construction Materials Under Trade Agreements. * * Trade Agreements (NOV 2012) * * * * Required Use of American Iron, Steel, and Manufactured Goods—Buy American Act—Construction Materials Under Trade Agreements (NOV 2012) * * * * [FR Doc. 2012–27906 Filed 11–19–12; 8:45 am] * * * * 11. Amend section 52.225–11 by— a. Revising the date of the clause; b. Removing from paragraph (a), in the definition of ‘‘Designated country’’ in paragraph (2), ‘‘Oman, Peru,’’ and adding ‘‘Oman, Panama, Peru,’’ in its place; and The revised text reads as follows: and National Aeronautics and Space Administration (NASA). ACTION: Small Entity Compliance Guide. This document is issued under the joint authority of DOD, GSA, and NASA. This Small Entity Compliance Guide has been prepared in accordance with section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996. It consists of a summary of the rule appearing in Federal Acquisition Circular (FAC) 2005–62, which amends the Federal Acquisition Regulation (FAR). An asterisk (*) next to a rule indicates that a regulatory flexibility analysis has been prepared. Interested parties may obtain further information regarding this rule by referring to FAC 2005–62, which precedes this document. These documents are also available via the Internet at http://www.regulations.gov. SUMMARY: * BILLING CODE 6820–EP–P ■ ■ ■ DEPARTMENT OF DEFENSE DATES: GENERAL SERVICES ADMINISTRATION FOR FURTHER INFORMATION CONTACT: 52.225–11 Buy American Act— Construction Materials Under Trade Agreements. * * * * NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Chapter 1 [Docket FAR 2012–0081, Sequence 7] * Buy American Act—Construction Materials Under Trade Agreements (NOV 2012) For clarification of content, contact the analyst whose name appears in the table below. Please cite FAC 2005–62 and the FAR case number. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202–501–4755. Federal Acquisition Regulation; Federal Acquisition Circular 2005–62; Small Entity Compliance Guide * November 20, 2012. AGENCY: ■ Department of Defense (DoD), General Services Administration (GSA), * * * * 12. Amend section 52.225–23 by— LIST OF RULES IN FAC 2005–62 Item Subject I ......................... II* ...................... Updates to Contract Reporting and Central Contractor Registration ................................................ Interagency Acquisitions: Compliance by Nondefense Agencies with Defense Procurement Requirements. Free Trade Agreement—Panama ...................................................................................................... III ....................... wreier-aviles on DSK5TPTVN1PROD with SUPPLEMENTARY INFORMATION: Summaries for each FAR rule follow. For the actual revisions and/or amendments made by these FAR cases, refer to the specific item numbers and subjects set forth in the documents following these item summaries. FAC 2005–62 amends the FAR as specified below: Item I—Updates to Contract Reporting and Central Contractor Registration (FAR Case 2010–014) GSA, DOD, and NASA published a proposed rule in the Federal Register at 76 FR 73564 on November 29, 2011 to VerDate Mar<15>2010 15:15 Nov 19, 2012 Jkt 229001 FAR case revise the practice for and limit the use of generic Data Universal Numbering System (DUNS) Numbers, update policies on reporting into the Federal Procurement Data System (FPDS), and revise clauses for Central Contractor Registration (CCR) and DUNS Number reporting. The rule increases transparency by reducing the use of generic DUNs, but may require more small businesses to register in CCR. The rule clarifies that non-appropriated fund awards will generally not be included in FPDS. The rule also clarifies requirements for agencies to submit and review contract action reports in FPDS. PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 Analyst 2010–014 2012–010 Loeb. Corrigan. 2012–027 Davis. This rule uses the existing term ‘‘Central Contractor Registration’’ rather than ‘‘System for Award Management,’’ because FAR Case 2012–033 will address the terminology update to ‘‘System for Award Management’’ throughout the FAR. Item II—Interagency Acquisitions: Compliance by Nondefense Agencies With Defense Procurement Requirements (FAR Case 2012–010) This interim rule amends the FAR to implement section 801 of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110–181), as E:\FR\FM\20NOR2.SGM 20NOR2

Agencies

[Federal Register Volume 77, Number 224 (Tuesday, November 20, 2012)]
[Rules and Regulations]
[Pages 69723-69726]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-27906]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 25 and 52

[FAC 2005-62; FAR Case 2012-027; Item III; Docket 2012-0027, Sequence 
01]
RIN 9000-AM43


Federal Acquisition Regulation; Free Trade Agreement--Panama

AGENCIES: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Interim rule.

-----------------------------------------------------------------------

SUMMARY: DoD, GSA, and NASA are issuing an interim rule amending the 
Federal Acquisition Regulation (FAR) to implement the United States--
Panama Trade Promotion Agreement. This Trade Promotion Agreement is a 
free trade agreement that provides for mutually non-discriminatory 
treatment of eligible products and services from Panama.

DATES: Effective date: November 20, 2012.
    Comment date: Interested parties should submit written comments to 
the Regulatory Secretariat on or before January 22, 2013 to be 
considered in the formulation of a final rule.

ADDRESSES: Submit comments identified by FAC 2005-62, FAR Case 2012-
027, by any of the following methods:
     Regulations.gov: http://www.regulations.gov. Submit 
comments via the Federal eRulemaking portal by searching for ``FAR Case 
2012-027''. Select the link ``Submit a Comment'' that corresponds with 
``FAR Case 2012-027.'' Follow the instructions provided at the ``Submit 
a Comment'' screen. Please include your name, company name (if any), 
and ``FAR Case 2012-027'' on your attached document.
     Fax: 202-501-4067.
     Mail: General Services Administration, Regulatory 
Secretariat (MVCB), ATTN: Hada Flowers, 1275 First Street NE., 7th 
Floor, Washington, DC 20417.
    Instructions: Please submit comments only and cite FAC 2005-62, FAR 
Case 2012-027, in all correspondence related to this case. All comments 
received will be posted without change to http://www.regulations.gov, 
including any personal and/or business confidential information 
provided.

FOR FURTHER INFORMATION CONTACT: Ms. Cecelia L. Davis, Procurement 
Analyst, at 202-219-0202, for clarification of content. For information 
pertaining to status or publication schedules, contact the Regulatory 
Secretariat at 202-501-4755. Please cite FAC 2005-62, FAR Case 2012-
027.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD, GSA, and NASA are issuing an interim rule amending FAR part 25 
and the corresponding provisions and clauses in part 52 to implement 
the United States--Panama Trade Promotion Agreement Implementation Act 
(Pub. L. 112-43) (19 U.S.C. 3805 note).
    This Trade Promotion Agreement is designated in the FAR as the 
Panama Free Trade Agreement (FTA). This FTA provides for--
     Waiver of the applicability of the Buy American statute 
(41 U.S.C. chapter 83) for some foreign supplies and construction 
materials from Panama; and
     Applicability of specified procurement procedures designed 
to ensure fairness in the acquisition of supplies and services (see FAR 
25.408).

II. Discussion and Analysis

    This interim rule adds Panama to the definition of ``Free Trade 
Agreement country'' in multiple locations in the FAR.
    The Panama FTA covers acquisitions of supplies and services equal 
to or exceeding $202,000. The threshold for the Panama FTA is 
$7,777,000 for construction contracts. The Panama FTA threshold for 
supplies and services is higher than the threshold for supplies and 
services for most of the FTAs ($77,494), and equals the Bahrain, 
Morocco, Oman, and Peru FTA thresholds for supplies and services 
($202,000). The excluded services for the Panama FTA are the same as 
for the Bahrain FTA, Dominican Republic--Central American FTA, Colombia 
FTA, Chile FTA, NAFTA, Oman FTA, and Peru FTA.

III. Executive Order 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.

IV. Regulatory Flexibility Act

    The Department of Defense, the General Services Administration, and 
the National Aeronautics and Space Administration do 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. Although the rule now opens up 
Government procurement to the goods and services of Panama, DoD, GSA, 
and NASA do not anticipate any significant economic impact on U.S. 
small businesses. The Department of Defense only applies the trade 
agreements to the non-defense items listed at Defense Federal 
Acquisition Regulation Supplement (DFARS) 225.401-70, and acquisitions 
that are set aside or provide other form of preference for small 
businesses are exempt. FAR 19.502-2 states that acquisitions of 
supplies or services with an anticipated dollar value between $3,000 
and $150,000 (with some exceptions) are automatically reserved for 
small business concerns.

[[Page 69724]]

    Therefore, an Initial Regulatory Flexibility Analysis has not been 
performed. DoD, GSA, and NASA invite comments from small business 
concerns and other interested parties on the expected impact of this 
rule on small entities.
    DoD, GSA, and NASA will also consider comments from small entities 
concerning the existing regulations in subparts affected by the rule in 
accordance with 5 U.S.C. 610. Interested parties must submit such 
comments separately and should cite 5 U.S.C 610 (FAC 2005-62, FAR Case 
2012-027), in correspondence.

V. Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. chapter 35) does apply, 
because the interim rule affects the certification and information 
collection requirements in the provisions at FAR 52.212-3, 52.225-4, 
52.225-6 and 52.225-11 currently approved under the Office of 
Management and Budget Control Numbers 9000-0136, titled: Commercial 
Item Acquisition, 9000-0130, titled: Buy American Act--Free Trade 
Agreements--Israeli Trade Act Certificate, 9000-0025, titled: Trade 
Agreements Certificate, and 9000-0141, titled: Buy American--
Construction, respectively. The impact, however, is negligible because 
it is just a question of which category offered goods from Panama would 
be listed under.

VI. Determination To Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Defense (DoD), the Administrator of General Services (GSA), and the 
Administrator of the National Aeronautics and Space Administration 
(NASA) that urgent and compelling reasons exist to promulgate this 
interim rule without prior opportunity for public comment. This action 
is necessary because the effective date of the Free Trade Agreement 
with Panama is October 31, 2012. This is a reciprocal agreement, 
approved by Congress and the President of the United States. It is 
important for the United States Government to honor its new trade 
obligations to Panama, as Panama in turn honors its new trade 
obligations to the United States. However, pursuant to 41 U.S.C. 1707 
and FAR 1.501-3(b), DoD, GSA, and NASA will consider public comments 
received in response to this interim rule in the formation of the final 
rule.

List of Subjects in 48 CFR Parts 25 and 52.

    Government procurement.

    Dated: November 9, 2012.
Laura Auletta,
Director, Office of Governmentwide Acquisition Policy, Office of 
Acquisition Policy, Office of Governmentwide Policy.

    Therefore, DoD, GSA, and NASA amend 48 CFR parts 25 and 52 as set 
forth below:

0
1. The authority citation for 48 CFR parts 25 and 52 is revised to read 
as follows:

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 
U.S.C. 20113.

PART 25--FOREIGN ACQUISITION


25.003  [Amended]

0
2. Amend section 25.003 by removing from both the definition of 
``Designated country'' in paragraph (2), and the definition of ``Free 
Trade Agreement country'' the words ``Oman, Peru,'' and adding ``Oman, 
Panama, Peru,'' in their place.

0
3. Amend section 25.400 by revising paragraphs (a)(2)(x) and 
(a)(2)(xi); and adding paragraph (a)(2)(xii) to read as follows:


Sec.  25.400  Scope of subpart.

    (a) * * *
    (2) * * *
    (x) Korea FTA (the United States-Korea Free Trade Agreement 
Implementation Act (Pub. L. 112-41) (19 U.S.C 3805 note));
    (xi) Colombia FTA (the United States-Colombia Trade Promotion 
Agreement Implementation Act (Pub. L. 112-42) (19 U.S.C. 3805 note)); 
and
    (xii) Panama FTA (the United States-Panama Trade Promotion 
Agreement Implementation Act (Pub. L. 112-43) (19 U.S.C. 3805 note));
* * * * *


Sec.  25.401   [Amended]

0
4. Amend section 25.401 by removing from paragraph (b), in the table, 
in the heading, ``Oman FTA, and Peru FTA'' and adding ``Oman FTA, 
Panama FTA, and Peru FTA'' in its place.

0
5. Amend section 25.402 by revising the table in paragraph (b) to read 
as follows:


Sec.  25.402   General.

* * * * *
    (b) * * *

----------------------------------------------------------------------------------------------------------------
                                                                      Supply          Service      Construction
                                                                     contract        contract        contract
                         Trade agreement                           (equal to or    (equal to or    (equal to or
                                                                    exceeding)      exceeding)      exceeding)
----------------------------------------------------------------------------------------------------------------
WTO GPA.........................................................        $202,000        $202,000      $7,777,000
FTAs:
    Australia FTA...............................................          77,494          77,494       7,777,000
    Bahrain FTA.................................................         202,000         202,000      10,074,262
    CAFTA-DR (Costa Rica, Dominican Republic, El Salvador,                77,494          77,494       7,777,000
     Guatemala, Honduras, and Nicaragua)........................
    Chile FTA...................................................          77,494          77,494       7,777,000
    Colombia FTA................................................          77,494          77,494       7,777,000
    Korea FTA...................................................         100,000         100,000       7,777,000
    Morocco FTA.................................................         202,000         202,000       7,777,000
NAFTA:
    --Canada....................................................          25,000          77,494      10,074,262
    --Mexico....................................................          77,494          77,494      10,074,262
    Oman FTA....................................................         202,000         202,000      10,074,262
    Panama FTA..................................................         202,000         202,000       7,777,000
    Peru FTA....................................................         202,000         202,000       7,777,000
    Singapore FTA...............................................          77,494          77,494       7,777,000
Israeli Trade Act...............................................          50,000  ..............  ..............
----------------------------------------------------------------------------------------------------------------


[[Page 69725]]

* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
6. Amend section 52.212-3 by revising the date of the provision; and 
paragraphs (g)(1)(i), (g)(1)(ii), and (g)(4) to read as follows:


52.212-3   Offeror Representations and Certifications--Commercial 
Items.

* * * * *

Offeror Representations and Certifications--Commercial Items (NOV 2012)

* * * * *

    (g)(1) Buy American Act--Free Trade Agreements--Israeli Trade 
Act Certificate. (Applies only if the clause at FAR 52.225-3, Buy 
American Act--Free Trade Agreements--Israeli Trade Act, is included 
in this solicitation.)
    (i) The offeror certifies that each end product, except those 
listed in paragraph (g)(1)(ii) or (g)(1)(iii) of this provision, is 
a domestic end product and that for other than COTS items, the 
offeror has considered components of unknown origin to have been 
mined, produced, or manufactured outside the United States. The 
terms ``Bahrainian, Moroccan, Omani, Panamanian, or Peruvian end 
product,'' ``commercially available off-the-shelf (COTS) item,'' 
``component,'' ``domestic end product,'' ``end product,'' ``foreign 
end product,'' ``Free Trade Agreement country,'' ``Free Trade 
Agreement country end product,'' ``Israeli end product,'' and 
``United States'' are defined in the clause of this solicitation 
entitled ``Buy American Act--Free Trade Agreements--Israeli Trade 
Act.''
    (ii) The offeror certifies that the following supplies are Free 
Trade Agreement country end products (other than Bahrainian, 
Moroccan, Omani, Panamanian, or Peruvian end products) or Israeli 
end products as defined in the clause of this solicitation entitled 
``Buy American Act--Free Trade Agreements--Israeli Trade Act'':
    Free Trade Agreement Country End Products (Other than 
Bahrainian, Moroccan, Omani, Panamanian, or Peruvian End Products) 
or Israeli End Products:

 
              Line Item No.                        Country of Origin
 
 
-----------------------------------------    ---------------------------
 
-----------------------------------------    ---------------------------
 
-----------------------------------------    ---------------------------
                           [List as necessary]
 

* * * * *
    (g)(4) Buy American Act--Free Trade Agreements--Israeli Trade 
Act Certificate, Alternate III. If Alternate III to the clause at 
FAR 52.225-3 is included in this solicitation, substitute the 
following paragraph (g)(1)(ii) for paragraph (g)(1)(ii) of the basic 
provision:
    (g)(1)(ii) The offeror certifies that the following supplies are 
Free Trade Agreement country end products (other than Bahrainian, 
Korean, Moroccan, Omani, Panamanian, or Peruvian end products) or 
Israeli end products as defined in the clause of this solicitation 
entitled ``Buy American Act--Free Trade Agreements--Israeli Trade 
Act'':
    Free Trade Agreement Country End Products (Other than 
Bahrainian, Korean, Moroccan, Omani, Panamanian, or Peruvian End 
Products) or Israeli End Products:

 
              Line Item No.                        Country of Origin
 
 
-----------------------------------------    ---------------------------
 
-----------------------------------------    ---------------------------
 
-----------------------------------------    ---------------------------
                           [List as necessary]
 

* * * * *
0
7. Amend section 52.212-5 by revising the date of the clause and 
paragraphs (b)(40) and (b)(41) to read as follows:


52.212-5   Contract Terms and Conditions Required to Implement Statutes 
or Executive Orders--Commercial Items.

* * * * *

Contract Terms and Conditions Required To Implement Statutes or 
Executive Orders--Commercial Items (NOV 2012)

* * * * *
    (b) * * *
    (40)(i) 52.225-3, Buy American Act--Free Trade Agreements--
Israeli Trade Act (NOV 2012) (41 U.S.C. chapter 83, 19 U.S.C. 3301 
note, 19 U.S.C. 2112 note, 19 U.S.C. 3805 note, 19 U.S.C. 4001 note, 
Pub. L. 103-182, 108-77, 108-78, 108-286, 108-302, 109-53, 109-169, 
109-283, 110-138, 112-41, 112-42, and 112-43).
    (ii) Alternate I (MAR 2012) of 52.225-3.
    (iii) Alternate II (MAR 2012) of 52.225-3.
    (iv) Alternate III (NOV 2012) of 52.225-3.
    (41) 52.225-5, Trade Agreements (NOV 2012) (19 U.S.C. 2501, et 
seq., 19 U.S.C. 3301 note).
* * * * *

0
8. Amend section 52.225-3 by--
0
a. Revising the date of the clause;
0
b. Revising the definitions in paragraph (a) of ``Bahrainian, Moroccan, 
Omani, or Peruvian end product'' and ``Free Trade Agreement country'';
0
c. Removing from paragraph (c) ``Oman, and Peru'' and ``Omani, or 
Peruvian'' (twice) and adding ``Oman, Panama, and Peru'' and ``Omani, 
Panamanian, or Peruvian'' (twice) in their places, respectively; and
0
d. Amending Alternate III by--
0
1. Revising the introductory text of Alternate III;
0
2. Revising the introductory paragraph of the definition of 
``Bahrainian, Korean, Moroccan, Omani, or Peruvian end product'' and 
removing from paragraphs (1) and (2) ``Oman, or Peru'' and adding 
``Oman, Panama, or Peru'' in its place; and
0
3. Removing from paragraph (c) ``Oman, and Peru'' and ``Omani, or 
Peruvian'' (twice) and adding ``Oman, Panama, and Peru'' and ``Omani, 
Panamanian, or Peruvian'' (twice) in their places, respectively.
    The revised text reads as follows:


52.225-3   Buy American Act--Free Trade Agreements--Israeli Trade Act.

* * * * *

Buy American Act--Free Trade Agreement--Israeli Trade Act (NOV 2012)

    (a) Definitions. As used in this clause--
    Bahrainian, Moroccan, Omani, Panamanian, or Peruvian end product 
means an article that--
    (1) Is wholly the growth, product, or manufacture of Bahrain, 
Morocco, Oman, Panama, or Peru; or
    (2) In the case of an article that consists in whole or in part 
of materials from another country, has been substantially 
transformed in Bahrain, Morocco, Oman, Panama, or Peru into a new 
and different article of commerce with a name, character, or use 
distinct from that of the article or articles from which it was 
transformed. The term refers to a product offered for purchase under 
a supply contract, but for purposes of calculating the value of the 
end product includes services (except transportation services) 
incidental to the article, provided that the value of those 
incidental services does not exceed that of the article itself.
* * * * *
    Free Trade Agreement country means Australia, Bahrain, Canada, 
Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, 
Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, 
Nicaragua, Oman, Panama, Peru, or Singapore.
* * * * *
    Alternate III (NOV 2012). As prescribed in 25.1101(b)(1)(iv), 
delete the definition of ``Bahrainian, Moroccan, Omani, Panamanian, 
or Peruvian end product'' and add in its place the following 
definition of ``Bahrainian, Korean, Moroccan, Omani, Panamanian, or 
Peruvian end product'' in paragraph (a) of the basic clause; and 
substitute the following paragraph (c) for paragraph (c) of the 
basic clause.
    Bahrainian, Korean, Moroccan, Omani, Panamanian, or Peruvian end 
product means an article that--
* * * * *

0
9. Amend section 52.225-4 by--
0
a. Revising the date of the provision;
0
b. Removing once from paragraph (a) and twice from paragraph (b) 
``Omani, or Peruvian'' and adding ``Omani, Panamanian, or Peruvian'' in 
its place; and
0
c. Revising the date of Alternate III; and removing twice from 
paragraph (b) ``Omani, or Peruvian'' and adding ``Omani, Panamanian, or 
Peruvian'' in their places.

[[Page 69726]]

    The revised text reads as follows:


52.225-4   Buy American Act--Free Trade Agreements--Israeli Trade Act 
Certificate.

* * * * *

Buy American Act--Free Trade Agreements--Israeli Trade Act Certificate 
(NOV 2012)

* * * * *

0
10. Amend section 52.225-5 by--
0
a. Revising the date of the clause;
0
b. Removing from paragraph (a), in the definition of ``Designated 
country'' in paragraph (2), ``Oman, Peru,'' and adding ``Oman, Panama, 
Peru,'' in its place.
    The revised text reads as follows:


52.225-5   Trade Agreements.

* * * * *

Trade Agreements (NOV 2012)

* * * * *
0
11. Amend section 52.225-11 by--
0
a. Revising the date of the clause;
0
b. Removing from paragraph (a), in the definition of ``Designated 
country'' in paragraph (2), ``Oman, Peru,'' and adding ``Oman, Panama, 
Peru,'' in its place; and
    The revised text reads as follows:


52.225-11   Buy American Act--Construction Materials Under Trade 
Agreements.

* * * * *

Buy American Act--Construction Materials Under Trade Agreements (NOV 
2012)

* * * * *
0
12. Amend section 52.225-23 by--
0
a. Revising the date of the clause; and
0
b. Removing from paragraph (a), in the definition of ``Designated 
country'' in paragraph (2), ``Oman, Peru,'' and adding ``Oman, Panama, 
Peru,'' in its place; and removing from the definition of ``Recovery 
Act designated country'' in paragraph (2) ``Oman, Peru,'' and adding 
``Oman, Panama, Peru,'' in its place.
    The revised text reads as follows:


52.225-23   Required Use of American Iron, Steel, and Manufactured 
Goods--Buy American Act--Construction Materials Under Trade Agreements.

* * * * *

Required Use of American Iron, Steel, and Manufactured Goods--Buy 
American Act--Construction Materials Under Trade Agreements (NOV 2012)

* * * * *
[FR Doc. 2012-27906 Filed 11-19-12; 8:45 am]
BILLING CODE 6820-EP-P