Federal Acquisition Regulation; Free Trade Agreement-Panama, 69723-69726 [2012-27906]
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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 https://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
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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: https://
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 https://
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.
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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.
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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.
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§ 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));
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§ 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.
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PART 25—FOREIGN ACQUISITION
25.003
§ 25.402
[Amended]
2. Amend section 25.003 by removing
from both the definition of ‘‘Designated
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General.
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(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.
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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
........................
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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.
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Line Item No.
Country of Origin
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[List as necessary]
Country of Origin
[List as necessary]
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(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
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52.225–3 Buy American Act—Free Trade
Agreements—Israeli Trade Act.
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Buy American Act—Free Trade
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
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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.
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Contract Terms and Conditions
Required To Implement Statutes or
Executive Orders—Commercial Items
(NOV 2012)
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(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).
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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
■
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(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.
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*
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.
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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—
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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.
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The revised text reads as follows:
52.225–4 Buy American Act—Free Trade
Agreements—Israeli Trade Act Certificate.
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Buy American Act—Free Trade
Agreements—Israeli Trade Act
Certificate (NOV 2012)
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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:
■
■
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52.225–23 Required Use of American Iron,
Steel, and Manufactured Goods—Buy
American Act—Construction Materials
Under Trade Agreements.
*
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Trade Agreements (NOV 2012)
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Required Use of American Iron, Steel,
and Manufactured Goods—Buy
American Act—Construction Materials
Under Trade Agreements (NOV 2012)
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[FR Doc. 2012–27906 Filed 11–19–12; 8:45 am]
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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 https://www.regulations.gov.
SUMMARY:
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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.
*
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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),
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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 .......................
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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
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15:15 Nov 19, 2012
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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.
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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]
-----------------------------------------------------------------------
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: https://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 https://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
