Defense Federal Acquisition Regulation Supplement; Defense Trade Cooperation Treaties With Australia and the United Kingdom (DFARS 2012-D034), 36108-36113 [2013-14298]
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36108
Federal Register / Vol. 78, No. 116 / Monday, June 17, 2013 / Rules and Regulations
Flooding source(s)
* Elevation in feet
(NGVD)
+ Elevation in feet
(NAVD)
# Depth in feet
above ground
∧Elevation in
meters
(MSL)
Modified
Location of referenced elevation
Sandlick Creek Tributary 2
(backwater effects from
Sandlick Creek).
From the Sandlick Creek confluence to approximately
1,600 feet upstream of the Sandlick Creek confluence.
+449
Communities
affected
Unincorporated Areas of
Muhlenberg County.
* National Geodetic Vertical Datum.
+North American Vertical Datum.
#Depth in feet above ground.
∧Mean Sea Level, rounded to the nearest 0.1 meter.
ADDRESSES
City of Central City
Maps are available for inspection
City of Drakesboro
Maps are available for inspection
City of Greenville
Maps are available for inspection
City of South Carrollton
Maps are available for inspection
at City Hall, 214 North 1st Street, Central City, KY 42330.
at City Hall, 212 West Mose Rager Boulevard, Drakesboro, KY 42337.
at City Hall, 118 Court Street, Greenville, KY 42345.
at City Hall, 10515 U.S. Route 431, South Carrollton, KY 42374.
Unincorporated Areas of Muhlenberg County
Maps are available for inspection at the Muhlenberg County Judicial Building, 136 South Main Street, Greenville, KY 42345.
(Catalog of Federal Domestic Assistance No.
97.022, ‘‘Flood Insurance.’’)
Dated: June 3, 2013.
Roy E. Wright,
Deputy Associate Administrator for
Mitigation, Department of Homeland
Security, Federal Emergency Management
Agency.
[FR Doc. 2013–14292 Filed 6–14–13; 8:45 am]
BILLING CODE 9110–12–P
DEPARTMENT OF DEFENSE
Defense Acquisitions Regulations
System
and Northern Ireland Concerning
Defense Trade Cooperation (the U.S.U.K. DTC Treaty) and the Security
Cooperation Act of 2010 regarding
export control regulations between the
United States and the United Kingdom.
The final rule also implements the
Treaty Between the Government of the
United States of America and the
Government of Australia Concerning
Defense Trade Cooperation.
DATES: Effective Date: June 17, 2013.
FOR FURTHER INFORMATION CONTACT: Ms.
Amy Williams, Telephone 571–372–
6106.
SUPPLEMENTARY INFORMATION:
48 CFR Parts 204, 225, 235, and 252
I. Background
RIN 0750–AH70
DoD published an interim rule in the
Federal Register at 77 FR 30361 on May
22, 2012, to implement requirements of
the Treaty Between the Government of
the United States of America and the
Government of the United Kingdom of
Great Britain and Northern Ireland
Concerning Defense Trade Cooperation
(the U.S.-U.K. DTC Treaty) and the
Security Cooperation Act of 2010
regarding export control regulations
between the United States and the
United Kingdom. The public comment
period ended on July 23, 2012. Two
respondents submitted comments.
The Treaty Between the Government
of the United States of America and the
Government of Australia Concerning
Defense Trade Cooperation (the U.S.Australia DTC Treaty) was approved by
Defense Federal Acquisition
Regulation Supplement; Defense Trade
Cooperation Treaties With Australia
and the United Kingdom (DFARS 2012–
D034)
Defense Acquisition
Regulations System; Department of
Defense (DoD).
ACTION: Final rule.
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AGENCY:
DoD has adopted as final,
with changes, the interim rule amending
the Defense Federal Acquisition
Regulation Supplement (DFARS) to
implement requirements of the Treaty
Between the Government of the United
States of America and the Government
of the United Kingdom of Great Britain
SUMMARY:
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Congress simultaneously with the U.S.U.K. DTC Treaty in Title I of the
Security Trade Cooperation Act of 2010.
The Department of State implementing
regulation was published in the Federal
Register on April 11, 2013, at 78 FR
21523, effective when the U.S.-Australia
DTC Treaty entered into force on May
16, 2013. This final rule also
implements the U.S.-Australia DTC
Treaty, the associated Implementing
Arrangement, and the Department of
State implementing regulations, which
all have provisions that generally
parallel the provisions of the U.S.-U.K.
DTC Treaty and its implementing
arrangements and regulations.
This rule streamlines the export
control regulations between the United
States and Australia and the United
States and the United Kingdom under
specified circumstances.
The U.S. Government controls exports
of defense articles, technical data, and
defense services. The governing law is
the Arms Export Control Act (22 U.S.C.
2778 et seq.) and implementing
regulations in the International Traffic
in Arms Regulations (ITAR) (22 CFR
120–130).
Under the ITAR, the Department of
State manages an export licensing
system in which numerous government
approvals are often necessary for
companies to hold discussions about
potential projects, pursue joint
activities, ship hardware, or transfer
know-how to one another, and even
sometimes to transfer engineers and
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other company employees from one
country to another. This process can be
challenging and time consuming for
U.S. exporters and for foreign firms in
their supply chains.
The U.S. concluded the DTC Treaties
with Australia and the United Kingdom
to enable their militaries, security
authorities, and their approved
industries to exchange defense articles,
technical information, and defense
services more freely. The DTC Treaties
establish certain exemptions from ITAR
requirements. Other exports and
transfers remain governed by the Arms
Export Control Act and the ITAR.
The DTC Treaties, Implementing
Arrangements, and other useful
resources may be accessed at https://
pmddtc.state.gov/treaties/.
The implementing legislation is in
Title I of Pub. L. 111–266, the Security
Cooperation Act of 2010.
The U.S. Department of State
regulations implementing the Treaties
with Australia and the United Kingdom
are at 22 CFR parts 120 and 126.
II. Discussion and Analysis of the
Public Comments
DoD reviewed the public comments in
the development of the final rule. DoD
responses are applicable to both treaties.
A discussion of the comments and the
changes made to the rule as a result of
those comments are provided as
follows:
A. Summary of Significant Changes
From the Interim Rule
The final rule has added
implementation of the U.S.-Australia
DTC Treaty, the associated
Implementing Arrangement, and the
Department of State implementing
regulations, comparable to the
implementation of the U.S.-U.K. DTC
Treaty.
B. Analysis of Public Comments
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1. Support the Intent of the Interim Rule
Comment: Both respondents support
the Defense Cooperation Treaty with the
United Kingdom and the intent to
facilitate trade by streamlining the
export of defense articles. One
respondent commended the Defense
Acquisition Regulations (DAR) Council
on recognizing the importance of the
implementation of the U.S.-U.K DTC
Treaty. The respondent also
commended the DAR Council on
designating portions of the solicitations
that are (or are not) subject to the Treaty.
This provides offerors with a common
understanding of the export control
requirements of a particular acquisition.
Second, the respondent views the
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interim rule as heightening awareness of
export controls.
Response: Noted.
2. Identification of Line Items That Are
U.S. DoD Treaty-Eligible Requirements
Comment: The same respondent,
however, was of the opinion that DoD
does not have legal authority to make de
facto jurisdictional determinations
regarding whether a particular product
is a U.S. DoD Treaty-eligible
requirement. According to the
respondent, contractors do have the
right to self-classify, but the only
Government entity that can make a
definitive determination is the
Department of State, Directorate of
Defense Trade Controls. The respondent
recommended that the final rule
establish a process for program
managers and contracting officers to
coordinate with the Directorate of
Defense Trade Controls with respect to
determinations regarding solicitations
and contract line items that would be
suitable for U.S.-U.K. DTC Treaty
treatment, so that companies can rely on
the determination.
Response: DoD and the U.K. Ministry
of Defence have jointly established a
Management Board to resolve such
issues, adopted a detailed management
plan, and conducted Pathfinder
Exercises to test the process with
industry participants.
DoD slightly revised the wording of
the final rule at DFARS 225.7902–4 to
address the concern that the program
manager and contracting officer do not
have the authority to determine Treaty
eligibility.
3. Representation
Comment: One respondent questioned
the need for the representation, because
a failure to comply with the ITAR
provides an independent basis for
regulatory enforcement against an
offending contractor by the Department
of State or the Department of Justice,
and neither the Treaty nor the ITAR
suggest the need for additional
representations or certifications.
Another respondent recommended
changing the contractor’s representation
in the provision at 252.225–7046, which
requires the offeror to check one of two
boxes (that exports or transfers were
made and complied with the Treaty, or
no such exports or transfers were made)
to a more general statement requiring
the contractor to acknowledge the
contractor’s obligation to comply with
all treaty provisions. The respondent’s
rationale for this change was that large
DoD contractors with separate
departments responsible for
Government contracting and ITAR
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36109
compliance will need to establish
complex procedures to gather the
necessary data to support an affirmative
or negative representation.
Response: DoD has retained the
representation in the final rule without
change. The clause at DFARS 252.225–
7047, Exports by Approved Community
Members in Performance of the
Contract, applies only to performance
after contract award. The provision at
DFARS 252.225–7046, Exports by
Approved Community Members in
Response to the Solicitation, including
the representation, is necessary in order
to ensure compliance by offerors prior
to contract award.
It is not apparent how an offeror
could accurately respond to the
representation that it has complied with
all Treaty provisions, as proposed by the
respondent, without gathering an equal
amount of data as that required by the
representation in the interim rule, to
know whether any exports or transfers
of qualifying defense articles were
made, and that any such exports or
transfers were made in accordance with
the Treaty.
C. Other Changes
1. The final rule uses the correct full
title of the Treaty at 225.7900(b) and
then refers to the Treaty as ‘‘the U.S.U.K. DTC Treaty,’’ in order to more
specifically identify the Treaty and to
distinguish it from the U.S.-Australia
DTC Treaty.
2. The final rule reflects changes in
the wording of the clauses 252.225–
7046 and 252.225–7047 to use the term
‘‘Treaty-eligible’’ and ‘‘not Treatyeligible’’ consistently in the rule, in
order to avoid possible confusion that
introduction of the term ‘‘exemption’’
invited.
3. DFARS 225.79, Export Control, and
the associated clause at DFARS
252.204–7008, Export-Controlled Items,
are moved to DFARS 225.7901 and
252.225–7048, respectively, to co-locate
related coverage on export control in
one subpart. A conforming change was
made to DFARS 235.071.
II. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
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flexibility. This is not a significant
regulatory action and, therefore, was not
subject to review under section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
III. Regulatory Flexibility Act
DoD does not expect this final rule to
have a significant economic impact on
a substantial number of small entities
within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq.,
because the rule does not impose
burdens on small businesses. Small
businesses that are exporters will
benefit from being able to use the
streamlined treaty process to make
exports that are associated with
responding to DoD solicitations and
performance of DoD contracts. However,
a final regulatory flexibility analysis has
been performed and is summarized as
follows:
This rule implements requirements
of—
The Treaty Between the Government
of the United States of America and the
Government of Australia Concerning
Defense Trade Cooperation (U.S.Australia DTC Treaty); and
The Treaty Between the Government
of the United States of America and the
Government of the United Kingdom of
Great Britain and Northern Ireland
Concerning Defense Trade Cooperation
(the U.S.-U.K. DTC Treaty).
The objective of the rule is to
streamlines the export control
regulations between the United States
and Australia and between the United
States and the United Kingdom under
specified circumstances. The legal basis
for the rule is the Security Cooperation
Act of 2010 (Pub. L. 111–266), enacted
October 8, 2010.
There were no significant issues
raised by the public in response to the
initial regulatory flexibility analysis.
The Chief Counsel for Advocacy of the
Small Business Administration did not
file any comments in response to the
rule.
The great majority of industry
members of the Approved Community
are not small businesses due to the
specialized knowledge of export control
regulations and the cost involved in
compliance. Small businesses that are
exporters will benefit from being able to
use the streamlined treaty process to
make exports that are associated with
responding to DoD solicitations and
performance of DoD contracts.
Although the interim rule added a
representation that required the
approval of the Office of Management
and Budget under 44 U.S.C. 3501, et
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seq., the net effect will be to
significantly streamline and reduce
paperwork requirements under the
systems set forth in the DTC Treaties
and regulated by the ITAR by no longer
requiring individual export control
licenses within the Approved
Community. In short, one representation
per offeror will replace multiple
requirements under the present system.
This rule implements Treaties and
statute and DoD is not aware of any
alternative methods of achieving the
objectives of the rule. Furthermore, the
net impact of the rule is expected to be
beneficial to small businesses.
IV. Paperwork Reduction Act
The rule contains information
collection requirements that require the
approval of the Office of Management
and Budget under the Paperwork
Reduction Act (44 U.S.C. chapter 35).
OMB has cleared this information
collection requirement under OMB
Control Number 0704–0488, titled:
Defense Trade Cooperation Treaty with
the United Kingdom.
The annual reporting burden is
estimated as follows:
Respondents: 110.
Responses per respondent: 1.
Total annual responses: 110.
Preparation hours per response: 0.1.
Total response burden hours: 11.
This rule will result in a significantly
streamlined process and reduced
paperwork requirements overall under
the processes set forth in the DTC
Treaties as implemented by the ITAR by
no longer requiring individual export
licenses within the Approved
Community. In short, one representation
per offeror will streamline the current
process.
List of Subjects in 48 CFR Parts 204,
225, 235, and 252
Government procurement.
Kortnee Stewart,
Editor, Defense Acquisition Regulations
System.
Therefore, DoD amends 48 CFR parts
204, 225, 235, and 252 as follows:
■ 1. The authority citation for parts 204,
225, 235, and 252 continues to read as
follows:
Authority: 41 U.S.C. 1303 and 48 CFR
Chapter 1.
PART 204—ADMINISTRATIVE
MATTERS
Subpart 204.73—[Removed]
■
2. Remove subpart 204.73.
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PART 225—FOREIGN ACQUISITION
3. Subpart 225.79 is revised to read as
follows:
■
225.7900
Scope of subpart.
This subpart implements—
(a) Section 890(a) of the National
Defense Authorization Act for Fiscal
Year 2008 (Pub. L. 110–181); and
(b) The requirements regarding export
control of Title I of the Security
Cooperation Act of 2010 (Pub. L. 111–
266); the Treaty Between the
Government of the United States of
America and the Government of
Australia Concerning Defense Trade
Cooperation (the U.S.-Australia DTC
Treaty); and the Treaty Between the
Government of the United States of
America and the Government the
United Kingdom of Great Britain and
Northern Ireland Concerning Defense
Trade Cooperation (the U.S.-U.K. DTC
Treaty). See PGI 225.7902 for additional
information.
225.7901
Export-controlled items.
This section implements section
890(a) of the National Defense
Authorization Act for Fiscal Year 2008
(Pub. L. 110–181).
225.7901–1
Definitions.
‘‘Export-controlled items,’’ as used in
this section, is defined in the clause at
252.225–7048.
225.7901–2
General.
Certain types of items are subject to
export controls in accordance with the
Arms Export Control Act (22 U.S.C.
2751, et seq.), the International Traffic
in Arms Regulations (22 CFR parts 120–
130), the Export Administration Act of
1979, as amended (50 U.S.C. App. 2401
et seq.), and the Export Administration
Regulations (15 CFR parts 730–774). See
PGI 225.7901–2 for additional
information.
225.7901–3
Policy.
(a) It is in the interest of both the
Government and the contractor to be
aware of export controls as they apply
to the performance of DoD contracts.
(b) It is the contractor’s responsibility
to comply with all applicable laws and
regulations regarding export-controlled
items. This responsibility exists
independent of, and is not established
or limited by, this section.
225.7901–4
Contract clause.
Use the clause at 252.225–7048,
Export-Controlled Items, in all
solicitations and contracts.
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225.7902
Treaties.
Defense Trade Cooperation
This section implements the Defense
Trade Cooperation (DTC) Treaties with
Australia and the United Kingdom and
the associated Implementing
Arrangements for DoD solicitations and
contracts that authorize prospective
contractors and contractors to use the
DTC Treaties to respond to DoD
solicitations and in the performance of
DoD contracts.
225.7902–1
Definitions.
‘‘Approved community,’’ ‘‘defense
articles,’’ ‘‘Defense Trade Cooperation
(DTC) Treaty’’, ‘‘export,’’ ‘‘Implementing
Arrangement,’’ ‘‘qualifying defense
articles,’’ ‘‘transfer,’’ and ‘‘U.S. DoD
Treaty-eligible requirements’’ are
defined in contract clause DFARS
252.225–7047, Exports by Approved
Community Members in Performance of
the Contract.
225.7902–2
Purpose.
The DTC Treaties permit the export of
certain U.S. defense articles, technical
data, and defense services, without U.S.
export licenses or other written
authorization under the International
Traffic in Arms Regulation (ITAR) into
and within the Approved Community,
as long as the exports are in support of
purposes specified in the DTC Treaties.
All persons must continue to comply
with statutory and regulatory
requirements outside of DFARS and
ITAR concerning the import of defense
articles and defense services or the
possession or transfer of defense
articles, including, but not limited to,
regulations issued by the Bureau of
Alcohol, Tobacco, Firearms and
Explosives found at 27 CFR parts 447,
478, and 479, which are unaffected by
the DTC Treaties. The Approved
Community consists of U.S. entities that
are registered with the Department of
State and are eligible exporters, the U.S.
Government, and certain governmental
and commercial facilities in Australia
and the United Kingdom that are
approved and listed by the U.S.
Government. See PGI 225.7902–2 for
additional information.
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225.7902–3
Policy.
DoD will facilitate maximum use of
the DTC Treaties by prospective
contractors responding to DoD
solicitations and by contractors eligible
to export qualifying defense articles
under DoD contracts in accordance with
22 CFR 126.16(g) and 22 CFR 126.17(g).
225.7902–4
Procedures.
(a) For all solicitations and contracts
that may be eligible for DTC Treaty
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coverage (see PGI 225.7902–4(1)), the
program manager shall identify in
writing and submit to the contracting
officer prior to issuance of a solicitation
and prior to award of a contract—
(1) The qualifying DTC Treaty Scope
paragraph (Article 3(1)(a), 3(1)(b), or
3(1)(d) of the U.S.-Australia DTC Treaty
or Article (3)(1)(a), (3(1)(b), or 3(1)(d) of
the U.S.-U.K. DTC Treaty); and
(2) The qualifying defense article(s)
using the categories described in 22 CFR
126.16(g) and 22 CFR 126.17(g).
(b) If applicable, the program manager
shall also identify in writing and submit
to the contracting officer any specific
Part C, DTC Treaty-exempted
technology list items, terms and
conditions for applicable contract line
item numbers (See PGI 225.7902–4(2)).
225.7902–5 Solicitation provision and
contract clause.
(a) Use the provision at 252.225–7046,
Exports by Approved Community
Members in Response to the
Solicitation, in solicitations containing
the clause at 252.225–7047.
(b)(1) Use the clause at 252.225–7047,
Exports by Approved Community
Members in Performance of the
Contract, in solicitations and contracts
when—
(i) Export-controlled items are
expected to be involved in the
performance of the contract and the
clause at 252.204–7008 is used; and
(ii) At least one contract line item is
intended to satisfy a U.S. DoD Treatyeligible requirement.
(2) The contracting officer shall
complete paragraph (b) of the clause
using information the program manager
provided as required by 225.7902–4(a).
PART 235—RESEARCH AND
DEVELOPMENT CONTRACTING
235.071
[Amended]
4. Section 235.071 is amended by
removing ‘‘Subpart 204.73’’ and adding
‘‘225.7901’’ in its place.
■
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
252.204–7008
[Removed and Reserved]
5. Remove and reserve section
252.204–7008.
■ 6. Section 252.225–7046 is revised to
read as follows:
■
252.225–7046 Exports by Approved
Community Members in Response to the
Solicitation.
As prescribed in 225.7902–5(a), use
the following provision:
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Exports by Approved Community
Members in Response to the
Solicitation (June 2013)
(a) Definitions. The definitions of
‘‘Approved Community’’, ‘‘defense articles’’,
‘‘Defense Trade Cooperation (DTC) Treaty’’,
‘‘export’’, ‘‘Implementing Arrangement’’,
‘‘qualifying defense articles’’, ‘‘transfer’’, and
‘‘U.S. DoD Treaty-eligible requirements’’ in
DFARS clause 252.225–7047 apply to this
provision.
(b) All contract line items in the
contemplated contract, except any identified
in this paragraph, are intended to satisfy U.S.
DoD Treaty-eligible requirements. Specific
defense articles that are not U.S. DoD Treatyeligible will be identified as such in those
contract line items that are otherwise U.S.
DoD Treaty-eligible.
CONTRACT LINE ITEMS NOT INTENDED
TO SATISFY U.S. DoD TREATY-ELIGIBLE
REQUIREMENTS:
lllllllllllllllllllll
[Enter Contract Line Item Number(s) or enter
‘‘None’’]
(c) Approved Community members
responding to the solicitation may only
export or transfer defense articles that
specifically respond to the stated
requirements of the solicitation.
(d) Subject to the other terms and
conditions of the solicitation and the
contemplated contract that affect the
acceptability of foreign sources or foreign end
products, components, parts, or materials,
Approved Community members are
permitted, but not required, to use the DTC
Treaties for exports or transfers of qualifying
defense articles in preparing a response to
this solicitation.
(e) Any conduct by an offeror responding
to this solicitation that falls outside the scope
of the DTC Treaties, the Implementing
Arrangements, and the implementing
regulations of the Department of State in 22
CFR 126.16 (Australia), 22 CFR 126.17
(United Kingdom), and 22 CFR 126
Supplement No. 1 (exempted technologies
list) is subject to all applicable International
Traffic in Arms Regulations (ITAR)
requirements, including any criminal, civil,
and administrative penalties or sanctions, as
well as all other United States statutory and
regulatory requirements outside of ITAR.
(f) If the offeror uses the procedures
established pursuant to the DTC Treaties, the
offeror agrees that, with regard to the export
or transfer of a qualifying defense article
associated with responding to the
solicitation, the offeror shall—
(1) Comply with the requirements and
provisions of the applicable DTC Treaties,
the Implementing Arrangements, and
corresponding regulations (including the
ITAR) of the U.S. Government and the
government of Australia or of the United
Kingdom, as applicable; and
(2) Prior to the export or transfer of a
qualifying defense article—
(i) Mark, identify, transmit, store, and
handle any defense articles provided for the
purpose of responding to such solicitations,
as well as any defense articles provided with
or developed pursuant to their responses to
such solicitations, in accordance with the
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DTC Treaties, the Implementing
Arrangements, and corresponding regulations
of the United States Government and the
government of Australia or the government of
the United Kingdom, as applicable,
including, but not limited to, the marking
and classification requirements described in
the applicable regulations;
(ii) Comply with the re-transfer or re-export
provisions of the DTC Treaties, the
Implementing Arrangements, and
corresponding regulations of the United
States Government and the government of
Australia or the government of the United
Kingdom, as applicable, including, but not
limited to, the re-transfer and re-export
requirements described in the applicable
regulations; and
(iii) Acknowledge that any conduct that
falls outside or in violation of the DTC
Treaties, Implementing Arrangements, and
implementing regulations of the applicable
government including, but not limited to,
unauthorized re-transfer or re-export in
violation of the procedures established in the
applicable Implementing Arrangement and
implementing regulations, remains subject to
applicable licensing requirements of the
government of Australia, the government of
the United Kingdom, and the United States
Government, as applicable, including any
criminal, civil, and administrative penalties
or sanctions contained therein.
(g) Representation. The offeror shall check
one of the following boxes and sign the
representation:
b The offeror represents that export(s) or
transfer(s) of qualifying defense articles were
made in preparing its response to this
solicitation and that such export(s) or
transfer(s) complied with the requirements of
this provision.
lllllllllllllllllllll
Name/Title of Duly Authorized
Representative
Date
b The offeror represents that no export(s)
or transfer(s) of qualifying defense articles
were made in preparing its response to this
solicitation.
lllllllllllllllllllll
Name/Title of Duly Authorized
Representative
Date
(h) Subcontracts. The offeror shall flow
down the substance of this provision,
including this paragraph (h), but excluding
the representation at paragraph (g), to any
subcontractor at any tier intending to use the
DTC Treaties in responding to this
solicitation.
(End of provision)
7. Section 252.225–7047 is revised to
read as follows:
■
mstockstill on DSK4VPTVN1PROD with RULES
252.225–7047 Exports by Approved
Community Members in Performance of the
Contract.
As prescribed in 225.7902–5(b), use
the following clause:
Exports by Approved Community
Members in Performance of the
Contract (June 2013)
(a) Definitions. As used in this clause—
VerDate Mar<15>2010
18:01 Jun 14, 2013
Jkt 229001
‘‘Approved Community’’ means the U.S.
Government, U.S. entities that are registered
and eligible exporters, and certain
government and industry facilities in
Australia or the United Kingdom that are
approved and listed by the U.S. Government.
‘‘Australia Community member’’ means an
Australian government authority or
nongovernmental entity or facility on the
Australia Community list accessible at
https://pmddtc.state.gov/treaties/.
‘‘Defense articles’’ means articles, services,
and related technical data, including
software, in tangible or intangible form, listed
on the United States Munitions List of the
International Traffic in Arms Regulations
(ITAR), as modified or amended.
‘‘Defense Trade Cooperation (DTC) Treaty’’
means—
(1) The Treaty Between the Government of
the United States of America and the
government of the United Kingdom of Great
Britain and Northern Ireland concerning
Defense Trade Cooperation, signed at
Washington and London on June 21 and 26,
2007; or
(2) The Treaty Between the Government of
the United States of America and the
Government of Australia Concerning Defense
Trade Cooperation, signed at Sydney on
September 5, 2007].
‘‘Export’’ means the initial movement of
defense articles from the United States
Community to the United Kingdom
Community.
‘‘Implementing Arrangement’’ means—
(1) The Implementing Arrangement
Pursuant to the Treaty between the
Government of the United States of America
and the Government of the United Kingdom
of Great Britain and Northern Ireland
Concerning Defense Trade Cooperation,
signed on February 14, 2008; or
(2) The Implementing Arrangement
Pursuant to the Treaty between the
Government of the United States of America
and the Government of Australia Concerning
Defense Trade Cooperation, signed on March
14, 2008.
‘‘Qualifying defense articles’’ means
defense articles that are not exempt from the
scope of the DTC Treaties as defined in 22
CFR 126.16(g) and 22 CFR 126.17(g).
‘‘Transfer’’ means the movement of
previously exported defense articles within
the Approved Community.
‘‘United Kingdom Community member’’
means a United Kingdom government
authority or nongovernmental entity or
facility on the United Kingdom Community
list accessible at https://pmddtc.state.gov.
‘‘United States Community’’ means—
(1) Departments and agencies of the U.S.
Government, including their personnel, with,
as appropriate, security accreditation and a
need-to-know; and
(2) Nongovernmental U.S. entities
registered with the Department of State and
eligible to export defense articles under U.S.
law and regulation, including their
employees, with, as appropriate, security
accreditation and a need-to-know.
‘‘U.S. DoD Treaty-eligible requirements’’
means any defense article acquired by the
DoD for use in a combined military or
counterterrorism operation, cooperative
PO 00000
Frm 00030
Fmt 4700
Sfmt 4700
research, development, production or
support program, or DoD end use, as
described in Article 3 of the U.S.-U.K. DTC
Treaty and sections 2 and 3 of the associated
Implementing Arrangement; and Article 3 of
the U.S.-Australia DTC Treaty and sections 2
and 3 of the associated Implementing
Arrangement.
(b) All contract line items in this contract,
except any identified in this paragraph, are
intended to satisfy U.S. DoD Treaty-eligible
requirements. Specific defense articles that
are not U.S. DoD Treaty-eligible will be
identified as such in those contract line items
that are otherwise U.S. DoD Treaty-eligible.
CONTRACT LINE ITEMS NOT INTENDED
TO SATISFY U.S. DoD TREATY-ELIGIBLE
REQUIREMENTS:
lllllllllllllllllllll
[Enter Contract Line Item Number(s) or enter
‘‘None’’]
(c) Subject to the other terms and
conditions of this contract that affect the
acceptability of foreign sources or foreign end
products, components, parts, or materials,
Approved Community members are
permitted, but not required, to use the DTC
Treaties for exports or transfers of qualifying
defense articles in performance of the
contract.
(d) Any conduct by the Contractor that falls
outside the scope of the DTC Treaties, the
Implementing Arrangements, and 22 CFR
126.16(g) and 22 CFR 126.17(g) is subject to
all applicable ITAR requirements, including
any criminal, civil, and administrative
penalties or sanctions, as well as all other
United States statutory and regulatory
requirements outside of ITAR, including, but
not limited to, regulations issued by the
Bureau of Alcohol, Tobacco, Firearms and
Explosives found at 27 CFR parts 447, 478,
and 479, which are unaffected by the DTC
Treaties.
(e) If the Contractor is an Approved
Community member, the Contractor agrees
that—
(1) The Contractor shall comply with the
requirements of the DTC Treaties, the
Implementing Arrangements, the ITAR, and
corresponding regulations of the U.S.
Government and the government of Australia
or the government of the United Kingdom, as
applicable; and
(2) Prior to the export or transfer of a
qualifying defense article the Contractor—
(i) Shall mark, identify, transmit, store, and
handle any defense articles provided for the
purpose of responding to such solicitations,
as well as any defense articles provided with
or developed pursuant to their responses to
such solicitations, in accordance with the
DTC Treaties, the Implementing
Arrangements, and corresponding regulations
of the United States Government and the
government of Australia or the government of
the United Kingdom, as applicable,
including, but not limited to, the marking
and classification requirements described in
the applicable regulations;
(ii) Shall comply with the re-transfer or reexport provisions of the DTC Treaties, the
Implementing Arrangements, and
corresponding regulations of the United
States Government and the government of
Australia or the government of the United
E:\FR\FM\17JNR1.SGM
17JNR1
Federal Register / Vol. 78, No. 116 / Monday, June 17, 2013 / Rules and Regulations
Kingdom, as applicable, including, but not
limited to, the re-transfer and re-export
requirements described in the applicable
regulations; and
(iii) Shall acknowledge that any conduct
that falls outside or in violation of the DTC
Treaties, Implementing Arrangements, and
implementing regulations of the applicable
government including, but not limited to,
unauthorized re-transfer or re-export in
violation of the procedures established in the
applicable Implementing Arrangement and
implementing regulations, remains subject to
applicable licensing requirements of the
government of Australia, the government of
the United Kingdom, and the United States
Government, including any criminal, civil,
and administrative penalties or sanctions
contained therein.
(f) The contractor shall include the
substance of this clause, including this
paragraph (f), in all subcontracts that may
require exports or transfers of qualifying
defense articles in connection with deliveries
under the contract.
(2) The Arms Export Control Act (22 U.S.C.
2751, et seq.);
(3) The International Emergency Economic
Powers Act (50 U.S.C. 1701, et seq.);
(4) The Export Administration Regulations
(15 CFR Parts 730–774);
(5) The International Traffic in Arms
Regulations (22 CFR Parts 120–130); and
(6) Executive Order 13222, as extended.
(e) The Contractor shall include the
substance of this clause, including this
paragraph (e), in all subcontracts.
8. Add section 252.225–7048 to read
as follows:
Defense Federal Acquisition
Regulation Supplement; Technical
Amendments
■
252.225–7048
Export-Controlled Items.
As prescribed in 225.7901–4, use the
following clause:
mstockstill on DSK4VPTVN1PROD with RULES
Export-Controlled Items (June 2013)
(a) Definition. ‘‘Export-controlled items,’’
as used in this clause, means items subject
to the Export Administration Regulations
(EAR) (15 CFR Parts 730–774) or the
International Traffic in Arms Regulations
(ITAR) (22 CFR Parts 120–130). The term
includes—
(1) ‘‘Defense items,’’ defined in the Arms
Export Control Act, 22 U.S.C. 2778(j)(4)(A),
as defense articles, defense services, and
related technical data, and further defined in
the ITAR, 22 CFR Part 120; and
(2) ‘‘Items,’’ defined in the EAR as
‘‘commodities’’, ‘‘software’’, and
‘‘technology,’’ terms that are also defined in
the EAR, 15 CFR 772.1.
(b) The Contractor shall comply with all
applicable laws and regulations regarding
export-controlled items, including, but not
limited to, the requirement for contractors to
register with the Department of State in
accordance with the ITAR. The Contractor
shall consult with the Department of State
regarding any questions relating to
compliance with the ITAR and shall consult
with the Department of Commerce regarding
any questions relating to compliance with the
EAR.
(c) The Contractor’s responsibility to
comply with all applicable laws and
regulations regarding export-controlled items
exists independent of, and is not established
or limited by, the information provided by
this clause.
(d) Nothing in the terms of this contract
adds, changes, supersedes, or waives any of
the requirements of applicable Federal laws,
Executive orders, and regulations, including
but not limited to—
(1) The Export Administration Act of 1979,
as amended (50 U.S.C. App. 2401, et seq.);
VerDate Mar<15>2010
18:01 Jun 14, 2013
Jkt 229001
(End of clause)
36113
222.7404(c)’’ after the word
‘‘procedures’’.
[FR Doc. 2013–14295 Filed 6–14–13; 8:45 am]
BILLING CODE 5001–06–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 622
[FR Doc. 2013–14298 Filed 6–14–13; 8:45 am]
BILLING CODE 5001–06–P
[Docket No. 120815345–3525–02]
RIN 0648–BC41
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Part 222
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
DoD is making a technical
amendment to the Defense Federal
Acquisition Regulation Supplement
(DFARS) to provide needed editorial
changes.
DATES: Effective Date: June 17, 2013.
FOR FURTHER INFORMATION CONTACT: Ms.
Kortnee Stewart, Defense Acquisition
Regulations System,
OUSD(AT&L)DPAP(DARS), Room
3B855, 3060 Defense Pentagon,
Washington, DC 20301–3060.
Telephone 571–372–6100; facsimile
571–372–6094.
SUPPLEMENTARY INFORMATION: This final
rule amends the DFARS to insert a PGI
pointer at Subpart 222.7404(c).
SUMMARY:
List of Subjects in 48 CFR Part 222
Government procurement.
Kortnee Stewart
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR part 222 is
amended as follows:
PART 222—APPLICATION OF LABOR
LAWS TO GOVERNMENT
ACQUISITIONS
1. The authority citation for 48 CFR
part 222 continue to read as follows:
■
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
2. Section 222.7404(c) is amended by
inserting the words ‘‘and PGI
■
PO 00000
Frm 00031
Fmt 4700
Sfmt 4700
Snapper-Grouper Fishery Off the
Southern Atlantic States; Regulatory
Amendment 13
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
NMFS implements
management measures described in a
regulatory amendment (Regulatory
Amendment 13) to the Fishery
Management Plan for the SnapperGrouper Fishery of the South Atlantic
Region (FMP), as prepared by the South
Atlantic Fishery Management Council
(Council). This final rule revises the
annual catch limits (ACLs), including
sector ACLs, for 37 snapper-grouper
species based on updated landings data.
The purpose of this rule is to ensure that
the ACLs are based on the best scientific
information available, and to prevent
unnecessary negative socio-economic
impacts to participants in the snappergrouper fishery and fishing community
that could occur if the ACLs are not
revised, in accordance with the
provisions set forth in the MagnusonStevens Fishery Conservation and
Management Act (Magnuson-Stevens
Act).
SUMMARY:
DATES:
This rule is effective July 17,
2013.
Electronic copies of the
regulatory amendment, which includes
an environmental assessment,
regulatory impact review, Regulatory
Flexibility Act analysis, and fishery
impact statement, may be obtained from
the Southeast Regional Office Web site
at https://sero.nmfs.noaa.gov/sf/
SASnapperGrouperHomepage.htm.
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
Nikhil Mehta, Southeast Regional
Office, NMFS, telephone: 727–824–
5305, or email: Nikhil.Mehta@noaa.gov.
SUPPLEMENTARY INFORMATION: The
snapper-grouper fishery of the South
E:\FR\FM\17JNR1.SGM
17JNR1
]]>Agencies
[Federal Register Volume 78, Number 116 (Monday, June 17, 2013)]
[Rules and Regulations]
[Pages 36108-36113]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-14298]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisitions Regulations System
48 CFR Parts 204, 225, 235, and 252
RIN 0750-AH70
Defense Federal Acquisition Regulation Supplement; Defense Trade
Cooperation Treaties With Australia and the United Kingdom (DFARS 2012-
D034)
AGENCY: Defense Acquisition Regulations System; Department of Defense
(DoD).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD has adopted as final, with changes, the interim rule
amending the Defense Federal Acquisition Regulation Supplement (DFARS)
to implement requirements of the Treaty Between the Government of the
United States of America and the Government of the United Kingdom of
Great Britain and Northern Ireland Concerning Defense Trade Cooperation
(the U.S.-U.K. DTC Treaty) and the Security Cooperation Act of 2010
regarding export control regulations between the United States and the
United Kingdom. The final rule also implements the Treaty Between the
Government of the United States of America and the Government of
Australia Concerning Defense Trade Cooperation.
DATES: Effective Date: June 17, 2013.
FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, Telephone 571-372-
6106.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published an interim rule in the Federal Register at 77 FR
30361 on May 22, 2012, to implement requirements of the Treaty Between
the Government of the United States of America and the Government of
the United Kingdom of Great Britain and Northern Ireland Concerning
Defense Trade Cooperation (the U.S.-U.K. DTC Treaty) and the Security
Cooperation Act of 2010 regarding export control regulations between
the United States and the United Kingdom. The public comment period
ended on July 23, 2012. Two respondents submitted comments.
The Treaty Between the Government of the United States of America
and the Government of Australia Concerning Defense Trade Cooperation
(the U.S.-Australia DTC Treaty) was approved by Congress simultaneously
with the U.S.-U.K. DTC Treaty in Title I of the Security Trade
Cooperation Act of 2010. The Department of State implementing
regulation was published in the Federal Register on April 11, 2013, at
78 FR 21523, effective when the U.S.-Australia DTC Treaty entered into
force on May 16, 2013. This final rule also implements the U.S.-
Australia DTC Treaty, the associated Implementing Arrangement, and the
Department of State implementing regulations, which all have provisions
that generally parallel the provisions of the U.S.-U.K. DTC Treaty and
its implementing arrangements and regulations.
This rule streamlines the export control regulations between the
United States and Australia and the United States and the United
Kingdom under specified circumstances.
The U.S. Government controls exports of defense articles, technical
data, and defense services. The governing law is the Arms Export
Control Act (22 U.S.C. 2778 et seq.) and implementing regulations in
the International Traffic in Arms Regulations (ITAR) (22 CFR 120-130).
Under the ITAR, the Department of State manages an export licensing
system in which numerous government approvals are often necessary for
companies to hold discussions about potential projects, pursue joint
activities, ship hardware, or transfer know-how to one another, and
even sometimes to transfer engineers and
[[Page 36109]]
other company employees from one country to another. This process can
be challenging and time consuming for U.S. exporters and for foreign
firms in their supply chains.
The U.S. concluded the DTC Treaties with Australia and the United
Kingdom to enable their militaries, security authorities, and their
approved industries to exchange defense articles, technical
information, and defense services more freely. The DTC Treaties
establish certain exemptions from ITAR requirements. Other exports and
transfers remain governed by the Arms Export Control Act and the ITAR.
The DTC Treaties, Implementing Arrangements, and other useful
resources may be accessed at https://pmddtc.state.gov/treaties/.
The implementing legislation is in Title I of Pub. L. 111-266, the
Security Cooperation Act of 2010.
The U.S. Department of State regulations implementing the Treaties
with Australia and the United Kingdom are at 22 CFR parts 120 and 126.
II. Discussion and Analysis of the Public Comments
DoD reviewed the public comments in the development of the final
rule. DoD responses are applicable to both treaties. A discussion of
the comments and the changes made to the rule as a result of those
comments are provided as follows:
A. Summary of Significant Changes From the Interim Rule
The final rule has added implementation of the U.S.-Australia DTC
Treaty, the associated Implementing Arrangement, and the Department of
State implementing regulations, comparable to the implementation of the
U.S.-U.K. DTC Treaty.
B. Analysis of Public Comments
1. Support the Intent of the Interim Rule
Comment: Both respondents support the Defense Cooperation Treaty
with the United Kingdom and the intent to facilitate trade by
streamlining the export of defense articles. One respondent commended
the Defense Acquisition Regulations (DAR) Council on recognizing the
importance of the implementation of the U.S.-U.K DTC Treaty. The
respondent also commended the DAR Council on designating portions of
the solicitations that are (or are not) subject to the Treaty. This
provides offerors with a common understanding of the export control
requirements of a particular acquisition. Second, the respondent views
the interim rule as heightening awareness of export controls.
Response: Noted.
2. Identification of Line Items That Are U.S. DoD Treaty-Eligible
Requirements
Comment: The same respondent, however, was of the opinion that DoD
does not have legal authority to make de facto jurisdictional
determinations regarding whether a particular product is a U.S. DoD
Treaty-eligible requirement. According to the respondent, contractors
do have the right to self-classify, but the only Government entity that
can make a definitive determination is the Department of State,
Directorate of Defense Trade Controls. The respondent recommended that
the final rule establish a process for program managers and contracting
officers to coordinate with the Directorate of Defense Trade Controls
with respect to determinations regarding solicitations and contract
line items that would be suitable for U.S.-U.K. DTC Treaty treatment,
so that companies can rely on the determination.
Response: DoD and the U.K. Ministry of Defence have jointly
established a Management Board to resolve such issues, adopted a
detailed management plan, and conducted Pathfinder Exercises to test
the process with industry participants.
DoD slightly revised the wording of the final rule at DFARS
225.7902-4 to address the concern that the program manager and
contracting officer do not have the authority to determine Treaty
eligibility.
3. Representation
Comment: One respondent questioned the need for the representation,
because a failure to comply with the ITAR provides an independent basis
for regulatory enforcement against an offending contractor by the
Department of State or the Department of Justice, and neither the
Treaty nor the ITAR suggest the need for additional representations or
certifications.
Another respondent recommended changing the contractor's
representation in the provision at 252.225-7046, which requires the
offeror to check one of two boxes (that exports or transfers were made
and complied with the Treaty, or no such exports or transfers were
made) to a more general statement requiring the contractor to
acknowledge the contractor's obligation to comply with all treaty
provisions. The respondent's rationale for this change was that large
DoD contractors with separate departments responsible for Government
contracting and ITAR compliance will need to establish complex
procedures to gather the necessary data to support an affirmative or
negative representation.
Response: DoD has retained the representation in the final rule
without change. The clause at DFARS 252.225-7047, Exports by Approved
Community Members in Performance of the Contract, applies only to
performance after contract award. The provision at DFARS 252.225-7046,
Exports by Approved Community Members in Response to the Solicitation,
including the representation, is necessary in order to ensure
compliance by offerors prior to contract award.
It is not apparent how an offeror could accurately respond to the
representation that it has complied with all Treaty provisions, as
proposed by the respondent, without gathering an equal amount of data
as that required by the representation in the interim rule, to know
whether any exports or transfers of qualifying defense articles were
made, and that any such exports or transfers were made in accordance
with the Treaty.
C. Other Changes
1. The final rule uses the correct full title of the Treaty at
225.7900(b) and then refers to the Treaty as ``the U.S.-U.K. DTC
Treaty,'' in order to more specifically identify the Treaty and to
distinguish it from the U.S.-Australia DTC Treaty.
2. The final rule reflects changes in the wording of the clauses
252.225-7046 and 252.225-7047 to use the term ``Treaty-eligible'' and
``not Treaty-eligible'' consistently in the rule, in order to avoid
possible confusion that introduction of the term ``exemption'' invited.
3. DFARS 225.79, Export Control, and the associated clause at DFARS
252.204-7008, Export-Controlled Items, are moved to DFARS 225.7901 and
252.225-7048, respectively, to co-locate related coverage on export
control in one subpart. A conforming change was made to DFARS 235.071.
II. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting
[[Page 36110]]
flexibility. This is not a significant regulatory action and,
therefore, was not subject to review under section 6(b) of E.O. 12866,
Regulatory Planning and Review, dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
III. Regulatory Flexibility Act
DoD does not expect this final rule to have a significant economic
impact on a substantial number of small entities within the meaning of
the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the rule
does not impose burdens on small businesses. Small businesses that are
exporters will benefit from being able to use the streamlined treaty
process to make exports that are associated with responding to DoD
solicitations and performance of DoD contracts. However, a final
regulatory flexibility analysis has been performed and is summarized as
follows:
This rule implements requirements of--
The Treaty Between the Government of the United States of America
and the Government of Australia Concerning Defense Trade Cooperation
(U.S.-Australia DTC Treaty); and
The Treaty Between the Government of the United States of America
and the Government of the United Kingdom of Great Britain and Northern
Ireland Concerning Defense Trade Cooperation (the U.S.-U.K. DTC
Treaty).
The objective of the rule is to streamlines the export control
regulations between the United States and Australia and between the
United States and the United Kingdom under specified circumstances. The
legal basis for the rule is the Security Cooperation Act of 2010 (Pub.
L. 111-266), enacted October 8, 2010.
There were no significant issues raised by the public in response
to the initial regulatory flexibility analysis. The Chief Counsel for
Advocacy of the Small Business Administration did not file any comments
in response to the rule.
The great majority of industry members of the Approved Community
are not small businesses due to the specialized knowledge of export
control regulations and the cost involved in compliance. Small
businesses that are exporters will benefit from being able to use the
streamlined treaty process to make exports that are associated with
responding to DoD solicitations and performance of DoD contracts.
Although the interim rule added a representation that required the
approval of the Office of Management and Budget under 44 U.S.C. 3501,
et seq., the net effect will be to significantly streamline and reduce
paperwork requirements under the systems set forth in the DTC Treaties
and regulated by the ITAR by no longer requiring individual export
control licenses within the Approved Community. In short, one
representation per offeror will replace multiple requirements under the
present system.
This rule implements Treaties and statute and DoD is not aware of
any alternative methods of achieving the objectives of the rule.
Furthermore, the net impact of the rule is expected to be beneficial to
small businesses.
IV. Paperwork Reduction Act
The rule contains information collection requirements that require
the approval of the Office of Management and Budget under the Paperwork
Reduction Act (44 U.S.C. chapter 35). OMB has cleared this information
collection requirement under OMB Control Number 0704-0488, titled:
Defense Trade Cooperation Treaty with the United Kingdom.
The annual reporting burden is estimated as follows:
Respondents: 110.
Responses per respondent: 1.
Total annual responses: 110.
Preparation hours per response: 0.1.
Total response burden hours: 11.
This rule will result in a significantly streamlined process and
reduced paperwork requirements overall under the processes set forth in
the DTC Treaties as implemented by the ITAR by no longer requiring
individual export licenses within the Approved Community. In short, one
representation per offeror will streamline the current process.
List of Subjects in 48 CFR Parts 204, 225, 235, and 252
Government procurement.
Kortnee Stewart,
Editor, Defense Acquisition Regulations System.
Therefore, DoD amends 48 CFR parts 204, 225, 235, and 252 as
follows:
0
1. The authority citation for parts 204, 225, 235, and 252 continues to
read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR Chapter 1.
PART 204--ADMINISTRATIVE MATTERS
Subpart 204.73--[Removed]
0
2. Remove subpart 204.73.
PART 225--FOREIGN ACQUISITION
0
3. Subpart 225.79 is revised to read as follows:
225.7900 Scope of subpart.
This subpart implements--
(a) Section 890(a) of the National Defense Authorization Act for
Fiscal Year 2008 (Pub. L. 110-181); and
(b) The requirements regarding export control of Title I of the
Security Cooperation Act of 2010 (Pub. L. 111-266); the Treaty Between
the Government of the United States of America and the Government of
Australia Concerning Defense Trade Cooperation (the U.S.-Australia DTC
Treaty); and the Treaty Between the Government of the United States of
America and the Government the United Kingdom of Great Britain and
Northern Ireland Concerning Defense Trade Cooperation (the U.S.-U.K.
DTC Treaty). See PGI 225.7902 for additional information.
225.7901 Export-controlled items.
This section implements section 890(a) of the National Defense
Authorization Act for Fiscal Year 2008 (Pub. L. 110-181).
225.7901-1 Definitions.
``Export-controlled items,'' as used in this section, is defined in
the clause at 252.225-7048.
225.7901-2 General.
Certain types of items are subject to export controls in accordance
with the Arms Export Control Act (22 U.S.C. 2751, et seq.), the
International Traffic in Arms Regulations (22 CFR parts 120-130), the
Export Administration Act of 1979, as amended (50 U.S.C. App. 2401 et
seq.), and the Export Administration Regulations (15 CFR parts 730-
774). See PGI 225.7901-2 for additional information.
225.7901-3 Policy.
(a) It is in the interest of both the Government and the contractor
to be aware of export controls as they apply to the performance of DoD
contracts.
(b) It is the contractor's responsibility to comply with all
applicable laws and regulations regarding export-controlled items. This
responsibility exists independent of, and is not established or limited
by, this section.
225.7901-4 Contract clause.
Use the clause at 252.225-7048, Export-Controlled Items, in all
solicitations and contracts.
[[Page 36111]]
225.7902 Defense Trade Cooperation Treaties.
This section implements the Defense Trade Cooperation (DTC)
Treaties with Australia and the United Kingdom and the associated
Implementing Arrangements for DoD solicitations and contracts that
authorize prospective contractors and contractors to use the DTC
Treaties to respond to DoD solicitations and in the performance of DoD
contracts.
225.7902-1 Definitions.
``Approved community,'' ``defense articles,'' ``Defense Trade
Cooperation (DTC) Treaty'', ``export,'' ``Implementing Arrangement,''
``qualifying defense articles,'' ``transfer,'' and ``U.S. DoD Treaty-
eligible requirements'' are defined in contract clause DFARS 252.225-
7047, Exports by Approved Community Members in Performance of the
Contract.
225.7902-2 Purpose.
The DTC Treaties permit the export of certain U.S. defense
articles, technical data, and defense services, without U.S. export
licenses or other written authorization under the International Traffic
in Arms Regulation (ITAR) into and within the Approved Community, as
long as the exports are in support of purposes specified in the DTC
Treaties. All persons must continue to comply with statutory and
regulatory requirements outside of DFARS and ITAR concerning the import
of defense articles and defense services or the possession or transfer
of defense articles, including, but not limited to, regulations issued
by the Bureau of Alcohol, Tobacco, Firearms and Explosives found at 27
CFR parts 447, 478, and 479, which are unaffected by the DTC Treaties.
The Approved Community consists of U.S. entities that are registered
with the Department of State and are eligible exporters, the U.S.
Government, and certain governmental and commercial facilities in
Australia and the United Kingdom that are approved and listed by the
U.S. Government. See PGI 225.7902-2 for additional information.
225.7902-3 Policy.
DoD will facilitate maximum use of the DTC Treaties by prospective
contractors responding to DoD solicitations and by contractors eligible
to export qualifying defense articles under DoD contracts in accordance
with 22 CFR 126.16(g) and 22 CFR 126.17(g).
225.7902-4 Procedures.
(a) For all solicitations and contracts that may be eligible for
DTC Treaty coverage (see PGI 225.7902-4(1)), the program manager shall
identify in writing and submit to the contracting officer prior to
issuance of a solicitation and prior to award of a contract--
(1) The qualifying DTC Treaty Scope paragraph (Article 3(1)(a),
3(1)(b), or 3(1)(d) of the U.S.-Australia DTC Treaty or Article
(3)(1)(a), (3(1)(b), or 3(1)(d) of the U.S.-U.K. DTC Treaty); and
(2) The qualifying defense article(s) using the categories
described in 22 CFR 126.16(g) and 22 CFR 126.17(g).
(b) If applicable, the program manager shall also identify in
writing and submit to the contracting officer any specific Part C, DTC
Treaty-exempted technology list items, terms and conditions for
applicable contract line item numbers (See PGI 225.7902-4(2)).
225.7902-5 Solicitation provision and contract clause.
(a) Use the provision at 252.225-7046, Exports by Approved
Community Members in Response to the Solicitation, in solicitations
containing the clause at 252.225-7047.
(b)(1) Use the clause at 252.225-7047, Exports by Approved
Community Members in Performance of the Contract, in solicitations and
contracts when--
(i) Export-controlled items are expected to be involved in the
performance of the contract and the clause at 252.204-7008 is used; and
(ii) At least one contract line item is intended to satisfy a U.S.
DoD Treaty-eligible requirement.
(2) The contracting officer shall complete paragraph (b) of the
clause using information the program manager provided as required by
225.7902-4(a).
PART 235--RESEARCH AND DEVELOPMENT CONTRACTING
235.071 [Amended]
0
4. Section 235.071 is amended by removing ``Subpart 204.73'' and adding
``225.7901'' in its place.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
252.204-7008 [Removed and Reserved]
0
5. Remove and reserve section 252.204-7008.
0
6. Section 252.225-7046 is revised to read as follows:
252.225-7046 Exports by Approved Community Members in Response to the
Solicitation.
As prescribed in 225.7902-5(a), use the following provision:
Exports by Approved Community Members in Response to the Solicitation
(June 2013)
(a) Definitions. The definitions of ``Approved Community'',
``defense articles'', ``Defense Trade Cooperation (DTC) Treaty'',
``export'', ``Implementing Arrangement'', ``qualifying defense
articles'', ``transfer'', and ``U.S. DoD Treaty-eligible
requirements'' in DFARS clause 252.225-7047 apply to this provision.
(b) All contract line items in the contemplated contract, except
any identified in this paragraph, are intended to satisfy U.S. DoD
Treaty-eligible requirements. Specific defense articles that are not
U.S. DoD Treaty-eligible will be identified as such in those
contract line items that are otherwise U.S. DoD Treaty-eligible.
CONTRACT LINE ITEMS NOT INTENDED TO SATISFY U.S. DoD TREATY-ELIGIBLE
REQUIREMENTS:
-----------------------------------------------------------------------
[Enter Contract Line Item Number(s) or enter ``None'']
(c) Approved Community members responding to the solicitation
may only export or transfer defense articles that specifically
respond to the stated requirements of the solicitation.
(d) Subject to the other terms and conditions of the
solicitation and the contemplated contract that affect the
acceptability of foreign sources or foreign end products,
components, parts, or materials, Approved Community members are
permitted, but not required, to use the DTC Treaties for exports or
transfers of qualifying defense articles in preparing a response to
this solicitation.
(e) Any conduct by an offeror responding to this solicitation
that falls outside the scope of the DTC Treaties, the Implementing
Arrangements, and the implementing regulations of the Department of
State in 22 CFR 126.16 (Australia), 22 CFR 126.17 (United Kingdom),
and 22 CFR 126 Supplement No. 1 (exempted technologies list) is
subject to all applicable International Traffic in Arms Regulations
(ITAR) requirements, including any criminal, civil, and
administrative penalties or sanctions, as well as all other United
States statutory and regulatory requirements outside of ITAR.
(f) If the offeror uses the procedures established pursuant to
the DTC Treaties, the offeror agrees that, with regard to the export
or transfer of a qualifying defense article associated with
responding to the solicitation, the offeror shall--
(1) Comply with the requirements and provisions of the
applicable DTC Treaties, the Implementing Arrangements, and
corresponding regulations (including the ITAR) of the U.S.
Government and the government of Australia or of the United Kingdom,
as applicable; and
(2) Prior to the export or transfer of a qualifying defense
article--
(i) Mark, identify, transmit, store, and handle any defense
articles provided for the purpose of responding to such
solicitations, as well as any defense articles provided with or
developed pursuant to their responses to such solicitations, in
accordance with the
[[Page 36112]]
DTC Treaties, the Implementing Arrangements, and corresponding
regulations of the United States Government and the government of
Australia or the government of the United Kingdom, as applicable,
including, but not limited to, the marking and classification
requirements described in the applicable regulations;
(ii) Comply with the re-transfer or re-export provisions of the
DTC Treaties, the Implementing Arrangements, and corresponding
regulations of the United States Government and the government of
Australia or the government of the United Kingdom, as applicable,
including, but not limited to, the re-transfer and re-export
requirements described in the applicable regulations; and
(iii) Acknowledge that any conduct that falls outside or in
violation of the DTC Treaties, Implementing Arrangements, and
implementing regulations of the applicable government including, but
not limited to, unauthorized re-transfer or re-export in violation
of the procedures established in the applicable Implementing
Arrangement and implementing regulations, remains subject to
applicable licensing requirements of the government of Australia,
the government of the United Kingdom, and the United States
Government, as applicable, including any criminal, civil, and
administrative penalties or sanctions contained therein.
(g) Representation. The offeror shall check one of the following
boxes and sign the representation:
[squ] The offeror represents that export(s) or transfer(s) of
qualifying defense articles were made in preparing its response to
this solicitation and that such export(s) or transfer(s) complied
with the requirements of this provision.
-----------------------------------------------------------------------
Name/Title of Duly Authorized Representative Date
[squ] The offeror represents that no export(s) or transfer(s) of
qualifying defense articles were made in preparing its response to
this solicitation.
-----------------------------------------------------------------------
Name/Title of Duly Authorized Representative Date
(h) Subcontracts. The offeror shall flow down the substance of
this provision, including this paragraph (h), but excluding the
representation at paragraph (g), to any subcontractor at any tier
intending to use the DTC Treaties in responding to this
solicitation.
(End of provision)
0
7. Section 252.225-7047 is revised to read as follows:
252.225-7047 Exports by Approved Community Members in Performance of
the Contract.
As prescribed in 225.7902-5(b), use the following clause:
Exports by Approved Community Members in Performance of the Contract
(June 2013)
(a) Definitions. As used in this clause--
``Approved Community'' means the U.S. Government, U.S. entities
that are registered and eligible exporters, and certain government
and industry facilities in Australia or the United Kingdom that are
approved and listed by the U.S. Government.
``Australia Community member'' means an Australian government
authority or nongovernmental entity or facility on the Australia
Community list accessible at https://pmddtc.state.gov/treaties/.
``Defense articles'' means articles, services, and related
technical data, including software, in tangible or intangible form,
listed on the United States Munitions List of the International
Traffic in Arms Regulations (ITAR), as modified or amended.
``Defense Trade Cooperation (DTC) Treaty'' means--
(1) The Treaty Between the Government of the United States of
America and the government of the United Kingdom of Great Britain
and Northern Ireland concerning Defense Trade Cooperation, signed at
Washington and London on June 21 and 26, 2007; or
(2) The Treaty Between the Government of the United States of
America and the Government of Australia Concerning Defense Trade
Cooperation, signed at Sydney on September 5, 2007].
``Export'' means the initial movement of defense articles from
the United States Community to the United Kingdom Community.
``Implementing Arrangement'' means--
(1) The Implementing Arrangement Pursuant to the Treaty between
the Government of the United States of America and the Government of
the United Kingdom of Great Britain and Northern Ireland Concerning
Defense Trade Cooperation, signed on February 14, 2008; or
(2) The Implementing Arrangement Pursuant to the Treaty between
the Government of the United States of America and the Government of
Australia Concerning Defense Trade Cooperation, signed on March 14,
2008.
``Qualifying defense articles'' means defense articles that are
not exempt from the scope of the DTC Treaties as defined in 22 CFR
126.16(g) and 22 CFR 126.17(g).
``Transfer'' means the movement of previously exported defense
articles within the Approved Community.
``United Kingdom Community member'' means a United Kingdom
government authority or nongovernmental entity or facility on the
United Kingdom Community list accessible at https://pmddtc.state.gov.
``United States Community'' means--
(1) Departments and agencies of the U.S. Government, including
their personnel, with, as appropriate, security accreditation and a
need-to-know; and
(2) Nongovernmental U.S. entities registered with the Department
of State and eligible to export defense articles under U.S. law and
regulation, including their employees, with, as appropriate,
security accreditation and a need-to-know.
``U.S. DoD Treaty-eligible requirements'' means any defense
article acquired by the DoD for use in a combined military or
counterterrorism operation, cooperative research, development,
production or support program, or DoD end use, as described in
Article 3 of the U.S.-U.K. DTC Treaty and sections 2 and 3 of the
associated Implementing Arrangement; and Article 3 of the U.S.-
Australia DTC Treaty and sections 2 and 3 of the associated
Implementing Arrangement.
(b) All contract line items in this contract, except any
identified in this paragraph, are intended to satisfy U.S. DoD
Treaty-eligible requirements. Specific defense articles that are not
U.S. DoD Treaty-eligible will be identified as such in those
contract line items that are otherwise U.S. DoD Treaty-eligible.
CONTRACT LINE ITEMS NOT INTENDED TO SATISFY U.S. DoD TREATY-ELIGIBLE
REQUIREMENTS:
-----------------------------------------------------------------------
[Enter Contract Line Item Number(s) or enter ``None'']
(c) Subject to the other terms and conditions of this contract
that affect the acceptability of foreign sources or foreign end
products, components, parts, or materials, Approved Community
members are permitted, but not required, to use the DTC Treaties for
exports or transfers of qualifying defense articles in performance
of the contract.
(d) Any conduct by the Contractor that falls outside the scope
of the DTC Treaties, the Implementing Arrangements, and 22 CFR
126.16(g) and 22 CFR 126.17(g) is subject to all applicable ITAR
requirements, including any criminal, civil, and administrative
penalties or sanctions, as well as all other United States statutory
and regulatory requirements outside of ITAR, including, but not
limited to, regulations issued by the Bureau of Alcohol, Tobacco,
Firearms and Explosives found at 27 CFR parts 447, 478, and 479,
which are unaffected by the DTC Treaties.
(e) If the Contractor is an Approved Community member, the
Contractor agrees that--
(1) The Contractor shall comply with the requirements of the DTC
Treaties, the Implementing Arrangements, the ITAR, and corresponding
regulations of the U.S. Government and the government of Australia
or the government of the United Kingdom, as applicable; and
(2) Prior to the export or transfer of a qualifying defense
article the Contractor--
(i) Shall mark, identify, transmit, store, and handle any
defense articles provided for the purpose of responding to such
solicitations, as well as any defense articles provided with or
developed pursuant to their responses to such solicitations, in
accordance with the DTC Treaties, the Implementing Arrangements, and
corresponding regulations of the United States Government and the
government of Australia or the government of the United Kingdom, as
applicable, including, but not limited to, the marking and
classification requirements described in the applicable regulations;
(ii) Shall comply with the re-transfer or re-export provisions
of the DTC Treaties, the Implementing Arrangements, and
corresponding regulations of the United States Government and the
government of Australia or the government of the United
[[Page 36113]]
Kingdom, as applicable, including, but not limited to, the re-
transfer and re-export requirements described in the applicable
regulations; and
(iii) Shall acknowledge that any conduct that falls outside or
in violation of the DTC Treaties, Implementing Arrangements, and
implementing regulations of the applicable government including, but
not limited to, unauthorized re-transfer or re-export in violation
of the procedures established in the applicable Implementing
Arrangement and implementing regulations, remains subject to
applicable licensing requirements of the government of Australia,
the government of the United Kingdom, and the United States
Government, including any criminal, civil, and administrative
penalties or sanctions contained therein.
(f) The contractor shall include the substance of this clause,
including this paragraph (f), in all subcontracts that may require
exports or transfers of qualifying defense articles in connection
with deliveries under the contract.
0
8. Add section 252.225-7048 to read as follows:
252.225-7048 Export-Controlled Items.
As prescribed in 225.7901-4, use the following clause:
Export-Controlled Items (June 2013)
(a) Definition. ``Export-controlled items,'' as used in this
clause, means items subject to the Export Administration Regulations
(EAR) (15 CFR Parts 730-774) or the International Traffic in Arms
Regulations (ITAR) (22 CFR Parts 120-130). The term includes--
(1) ``Defense items,'' defined in the Arms Export Control Act,
22 U.S.C. 2778(j)(4)(A), as defense articles, defense services, and
related technical data, and further defined in the ITAR, 22 CFR Part
120; and
(2) ``Items,'' defined in the EAR as ``commodities'',
``software'', and ``technology,'' terms that are also defined in the
EAR, 15 CFR 772.1.
(b) The Contractor shall comply with all applicable laws and
regulations regarding export-controlled items, including, but not
limited to, the requirement for contractors to register with the
Department of State in accordance with the ITAR. The Contractor
shall consult with the Department of State regarding any questions
relating to compliance with the ITAR and shall consult with the
Department of Commerce regarding any questions relating to
compliance with the EAR.
(c) The Contractor's responsibility to comply with all
applicable laws and regulations regarding export-controlled items
exists independent of, and is not established or limited by, the
information provided by this clause.
(d) Nothing in the terms of this contract adds, changes,
supersedes, or waives any of the requirements of applicable Federal
laws, Executive orders, and regulations, including but not limited
to--
(1) The Export Administration Act of 1979, as amended (50 U.S.C.
App. 2401, et seq.);
(2) The Arms Export Control Act (22 U.S.C. 2751, et seq.);
(3) The International Emergency Economic Powers Act (50 U.S.C.
1701, et seq.);
(4) The Export Administration Regulations (15 CFR Parts 730-
774);
(5) The International Traffic in Arms Regulations (22 CFR Parts
120-130); and
(6) Executive Order 13222, as extended.
(e) The Contractor shall include the substance of this clause,
including this paragraph (e), in all subcontracts.
(End of clause)
[FR Doc. 2013-14298 Filed 6-14-13; 8:45 am]
BILLING CODE 5001-06-P
