DPN20140731

[Federal Register Volume 79, Number 147 (Thursday, July 31, 2014)]

[Rules and Regulations]

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

[FR Doc No: 2014-17941]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 211, 212, and 232

RIN 0750-AI13

Defense Federal Acquisition Regulation Supplement: Application of Certain Clauses to Acquisitions of Commercial Items (DFARS Case 2013-D035)

AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD).

ACTION: Final rule.

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SUMMARY: DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to clarify the applicability of two clauses to acquisitions of commercial items.

DATES: Effective July 31, 2014.

FOR FURTHER INFORMATION CONTACT: Ms. Janetta Brewer, telephone 571-372-6104.

SUPPLEMENTARY INFORMATION:

I. Background

DoD published a proposed rule in the Federal Register at 78 FR 73472 on December 6, 2013, to clarify the applicability of DFARS 252.211-7008, Use of Government-Assigned Serial Numbers, and DFARS 252.232-7006, Wide Area WorkFlow Payment Instructions, to acquisitions of commercial items. The rule proposed adding these two clauses to the list at DFARS 212.301(f) of solicitation provisions and contract clauses for the acquisition of commercial items and revising the clause prescriptions to require their inclusion in solicitations and contracts for acquisitions using FAR part 12 procedures. One respondent submitted a public comment in response to the proposed rule.

II. Discussion and Analysis

DoD reviewed the public comment in the development of the final rule. There are no changes from the proposed rule in the final rule, except renumbering at 212.301 due to DFARS baseline changes. A discussion of the comment is provided, as follows:

Comment: The respondent stated that the rule appears to be a cost cutting measure that will reduce exploitation of tax monies being used to purchase products for the Government at an inflated rate. Response: The rule clarifies the applicability of DFARS 252.211-7008 and 252.232-7006 to acquisitions of commercial items.

III. Executive Orders 12866 and 13563

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

IV. Regulatory Flexibility Act

A final regulatory flexibility analysis has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., and is summarized as follows:

This rule revises DFARS part 212, Acquisition of Commercial Items, to clarify the applicability of DFARS 252.211-7008, Use of Government-Assigned Serial Numbers, and DFARS 252.232-7006, Wide Area WorkFlow Payment Instructions, to acquisitions of commercial items.

This final rule applies to contractors, regardless of size or business ownership, when responding to DoD solicitations or being awarded contracts that are acquired utilizing FAR part 12 procedures. The rule is not expected to have a significant impact on small entities as it merely clarifies the use of two DFARS clauses. The final rule is expected to have a slightly positive impact because the additional clarity will help contracting officers and small businesses better understand DoD's requirements.

No public comments were received in response to the initial regulatory flexibility analysis. The rule does not contain any reporting or recordkeeping requirements and does not require contractors to expend significant cost or effort. There are no known significant alternatives to the rule that would further minimize any economic impact of the rule on small entities

V. Paperwork Reduction Act

The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Parts 211, 212, and 232

Government procurement.

Amy G. Williams,

Deputy, Defense Acquisition Regulations System.

Therefore, 48 CFR parts 211, 212, and 232 are amended as follows:

1. The authority citation for 48 CFR parts 211, 212, and 232 continues to read as follows:

Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

PART 211--DESCRIBING AGENCY NEEDS

2. In section 211.274-6, paragraph (c) introductory text is revised to read as follows:

211.274-6 Contract clauses.

* * * * *

(c) Use the clause at 252.211-7008, Use of Government-Assigned Serial Numbers, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that--

* * * * *

PART 212--ACQUISITION OF COMMERCIAL ITEMS

3. Amend section 212.301 by--

a. Redesignating--

i. Paragraphs (f)(1ii) through (lxx) as (f)(liv) through (lxxii);

ii. Paragraphs (f)(xv) through (li) as (f)(xvi) through (lii); and

b. Adding new paragraphs (f)(xv) and (liii).

The additions read as follows:

212.301 Solicitation provisions and contract clauses for the acquisition of commercial items.

(f) * * *

(xv) Use the clause at 252.211-7008, Use of Government-Assigned Serial Numbers, as prescribed in 211.274-6(c).

* * * * *

(liii) Use the clause at 252.232 -7006, Wide Area WorkFlow Payment Instructions, as prescribed in 232.7004(b).

* * * * *

PART 232--CONTRACT FINANCING

4. In section 232.7004, revise the section heading and paragraph (b) to read as follows:

232.7004 Contract clauses.

* * * * *

(b) Use the clause at 252.232-7006, Wide Area WorkFlow Payment Instructions, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, when 252.232-7003 is used and neither 232.7003(b) nor

[FR Doc. 2014-17941 Filed 7-30-14; 8:45 am]

BILLING CODE 5001-06-P

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[Federal Register Volume 79, Number 147 (Thursday, July 31, 2014)]

[Rules and Regulations]

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

[FR Doc No: 2014-17940]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 225

RIN 0750-AI11

Defense Federal Acquisition Regulation Supplement: Domestically Nonavailable Articles--Elimination of DoD-Unique List (DFARS Case 2013-D020)

AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD).

ACTION: Final rule.

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SUMMARY: DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to remove the DoD-unique list of domestically nonavailable articles because these items have been found to be either available domestically or are not used by DoD.

DATES: Effective July 31, 2014.

FOR FURTHER INFORMATION CONTACT: Ms. Lee Renna, telephone 571-372-6095.

SUPPLEMENTARY INFORMATION:

I. Background

DoD published a proposed rule in the Federal Register at 78 FR 73474 on December 6, 2013, to remove section 225.104 in its entirety because the articles currently listed no longer qualify as an exception to the Buy American statute (41 U.S.C. 8302(a)), on the basis of their nonavailability. The two items listed at section 225.104 that are being removed have been found to be either (1) available from domestic producers in the case of aluminum clad steel wire, or (2) DoD does not use the item in the case of the sperm-whale oil. Two public comments were submitted in response to the proposed rule.

II. Discussion and Analysis

No changes are being made to the final rule as a result of the two public comments. The first respondent stated support for the rule and the second respondent noted that there should be no change to the rule.

III. Executive Orders 12866 and 13563 Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

IV. Regulatory Flexibility Act

A final regulatory flexibility analysis has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., and is summarized as follows.

This final rule amends the Defense Acquisition Regulation Supplement (DFARS) by removing the DoD-unique list of domestically nonavailable articles that have been found to be either available domestically or are not used by DoD. Of the two items on the list, aluminum-clad steel is produced and available in the United States, and DoD does not use sperm-whale oil.

This rule will not have an impact on small entities as it merely removes from the DFARS a listing of an item that is now domestically available and an item that is not used by DoD. The removal of the nonavailability exception to the Buy American statute for aluminum-clad steel wire will neither increase nor decrease small businesses' participation in future procurements, particularly with regard to set-asides under the Small Business Program. This conclusion is primarily attributed to the application of the nonmanufacturer rule. Under the nonmanufacturer rule, any small business concern proposing to furnish a product that it did not itself manufacture must furnish the product of a domestic small business manufacturer. However, in industries where the Small Business Administration (SBA) has determined there are no domestic small business manufacturers, SBA may issue a waiver to the nonmanufacturer rule to permit small businesses to provide any firm's product (see FAR 19.102(f)(7). Reinstatement of the Buy American statute restrictions has no effect on the application of the nonmanufacturer rule. With respect to the procurement of sperm-whale oil, DoD does not use this product in any application. As such, a discussion of future procurement opportunities for this substance is no longer relevant.

No comments were received from the public in response to the initial regulatory flexibility analysis. This rule does not add any new information collection, reporting, or record keeping requirements. No alternatives were identified that will accomplish the objectives of the rule.

V. Paperwork Reduction Act

This rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Part 225

Government procurement.

Amy G. Williams,

Deputy, Defense Acquisition Regulations System.

Therefore, 48 CFR part 225 is amended as follows:

PART 225--FOREIGN ACQUISITION

1. The authority citation for 48 CFR part 225 continues to read as follows:

Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

225.104 [Removed]

2. Remove section 225.104.

[FR Doc. 2014-17940 Filed 7-30-14; 8:45 am]

BILLING CODE 5001-06-P

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[Federal Register Volume 79, Number 147 (Thursday, July 31, 2014)]

[Rules and Regulations]

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

[FR Doc No: 2014-17942]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 225 and 236

RIN 0750-AI33

Defense Federal Acquisition Regulation Supplement: Use of Military Construction Funds in Countries Bordering the Arabian Sea (DFARS Case 2014-D016)

AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD).

ACTION: Interim rule.

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SUMMARY: DoD is issuing an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement sections of the Military Construction and Veterans Affairs, and Related Agencies Appropriations Act, 2014, that restricts use of military construction funds in various countries, including countries bordering the Arabian Sea.

DATES: Effective July 31, 2014.

Comment Date: Comments on the interim rule should be submitted in writing to the address shown below on or before September 29, 2014, to be considered in the formation of a final rule.

ADDRESSES: Submit comments identified by DFARS Case 2014-D016, using any of the following methods:

[cir] Regulations.gov: http://www.regulations.gov. Submit comments

via the Federal eRulemaking portal by entering ``DFARS Case 2014-D016'' under the heading ``Enter keyword or ID'' and selecting ``Search.'' Select the link ``Submit a Comment'' that corresponds with ``DFARS Case 2014-D016.'' Follow the instructions provided at the ``Submit a Comment'' screen. Please include your name, company name (if any), and ``DFARS Case 2014-D016'' on your attached document.

[cir] Email: osd.dfars@mail.mil. Include DFARS Case 2014-D016 in the subject line of the message.

[cir] Fax: 571-372-6094.

[cir] Mail: Defense Acquisition Regulations System, Attn: Ms. Amy G. Williams, OUSD(AT&L)DPAP/DARS, Room 3B941, 3060 Defense Pentagon, Washington, DC 20301-3060.

Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To confirm receipt of your comment(s), please check www.regulations.gov, approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail).

FOR FURTHER INFORMATION CONTACT: Ms. Amy G. Williams, Defense Acquisition Regulations System, OUSD(AT&L)DPAP/DARS, Room 3B941, 3060 Defense Pentagon, Washington, DC 20301-3060. Telephone 571-372-6106.

SUPPLEMENTARY INFORMATION:

I. Background

Since 1997, sections 111 and 112 of the annual military construction appropriations acts restrict use of military construction funds for acquisitions exceeding certain dollar thresholds of architect-engineer services and military construction contracts to be performed in certain foreign countries. With some exceptions, these restrictions require award to a U.S. firm or provide a preference for award to a U.S, firm.

These restrictions were first implemented as an interim rule in the DFARS under DFARS Case 1997-D307 (63 FR 11526) on March 9, 1998.

II. Discussion and Analysis

This interim rule revises the DFARS to implement sections 111 and 112 of the Military Construction and Veterans Affairs, and Related Agencies Appropriations Act, 2014 (Division J of Pub. L. 113-76). The only change required is to apply the restriction to contracts to be performed in the countries bordering the Arabian Sea (rather than the Arabian Gulf). These countries are India, Iran, Oman, Pakistan, Somalia, and Yemen.

III. Executive Orders 12866 and 13563

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the 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

DoD does not expect this 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 it applies to a very limited number of small entities. However, an initial regulatory flexibility analysis has been performed and is summarized as follows:

This rule is necessary to implement the restrictions on award to other than U.S. firms when awarding certain military construction and architect-engineer contracts to be performed in countries bordering the Arabian Sea.

The objective of this rule is to implement sections 111 and 112 of the Military Construction and Veterans Affairs, and Related Agencies Appropriations Act, 2014 (Division J of Pub. L. 113-76). This rule revises the preference for award to U.S. firms of military construction contracts that have an estimated value greater than $1,000,000 and the restriction requiring award only to U.S. firms for architect-engineer contracts that have an estimated value greater than $500,000, to make it applicable to contracts to be performed in a country bordering the Arabian Sea, rather than a country bordering the Arabian Gulf (as required in earlier statutes).

This will only apply to a very limited number of small entities--those entities that submit offers in response to solicitations for military construction contracts that have an estimated value greater than $1,000,000 and architect-engineer contracts that have an estimated value greater than $500,000, when the contracts are to be performed in countries bordering the Arabian Sea.

There is a DFARS provision that requires for offerors to represent whether they are a U.S. firm. This rule impacts the prescription for applicability of that provision (changing Arabian Gulf to Arabian Sea).

The rule does not duplicate, overlap, or conflict with any other Federal rules.

This rule does not impose any significant economic burden on small firms. The offeror must represent if it is a U.S. firm, but in return for a positive representation is granted a preference for award of the contract. DoD did not identify any alternatives that could reduce the burden and still meet the objectives of the rule.

DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (DFARS Case 2014-D016), in correspondence.

V. Paperwork Reduction Act

The Paperwork Reduction Act (44 U.S.C. chapter 35) does apply, however, the rule does not impose any new information collection requirements to the paperwork burden previously approved under OMB Control Number 0704-0255, Defense Federal Acquisition Regulation Supplement (DFARS) Part 236, Construction and Architect-Engineer Contracts. The rule modifies the prescription for use of the provision at DFARS 252.236-7010, Overseas Military Construction--Preference for United States Firms, in an amount of less than 8 hours. Any change in the burden hours due to the changed prescription will be negligible.

VI. Determination To Issue an Interim Rule

A determination has been made under the authority of the Secretary of Defense that urgent and compelling reasons exist to promulgate this interim rule without prior opportunity for public comment. This action is necessary because this rule implements sections 111 and 112 of the Military Construction and Veterans Affairs, and Related Agencies Appropriations Act, 2014 (Division J of Pub. L. 113-76). Delay in making this change to the DFARS may result in (1) the appropriations act restrictions being incorrectly applied to military construction and architect-engineer contracts to be performed in countries bordering the Arabian Gulf and (2) possible misuse of appropriated funds if DoD fails to provide appropriate preference for U.S. firms when performing such contracts in the countries bordering the Arabian Sea. Issuance as an interim rule is necessary to ensure immediate preference for U.S. firms when awarding construction contracts to be performed in countries bordering the Arabian Sea, in order to comply with the law and support the U.S. industrial base.

However, pursuant to 41 U.S.C. 1707 and FAR 1.501-3(b), DoD will consider public comments received in response to this interim rule in the formation of the final rule.''

List of Subjects in 48 CFR Parts 225 and 236

Government procurement.

Amy G. Williams,

Deputy, Defense Acquisition Regulations System.

Therefore, 48 CFR parts 225 and 236 are amended as follows:

1. The authority citation for 48 CFR parts 225 and 236 continues to read as follows:

Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

PART 225--FOREIGN ACQUISITION

225.7014 [Amended]

2. In section 225.7014, amend paragraph (a) by removing ``Arabian Gulf'' and adding ``Arabian Sea'' in its place.

225.7015 [Amended]

3. Amend section 225.7015 by removing ``Arabian Gulf'' and adding ``Arabian Sea'' in its place.

PART 236--SPECIAL ASPECTS OF CONTRACTING FOR CONSTRUCTION

4. In section 236.273, revise paragraph (a) introductory text to read as follows:

236.273 Construction in foreign countries.

(a) In accordance with section 112 of the Military Construction and Veterans Affairs and Related Agencies Appropriations Act, 2014 (Division J of Pub. L. 113-76) and similar sections in subsequent military construction appropriations acts, military construction contracts funded with military construction appropriations, that are estimated to exceed $1,000,000 and are to be performed in the United States outlying areas in the Pacific and on Kwajalein Atoll, or in countries bordering the Arabian Sea (i.e., India, Iran, Oman, Pakistan, Somalia, and Yemen)], shall be awarded only to United States firms, unless--

* * * * *

236.570 [Amended]

5. In section 236.570, amend paragraph (c)(1) by removing ``Arabian Gulf'' and adding ``Arabian Sea'' in its place.

6. Revise section 236.602-70 to read as follows:

236.602-70 Restriction on award of overseas architect-engineer contracts to foreign firms.

In accordance with section 111 of the Military Construction and Veterans Affairs and Related Agencies Appropriations Act, 2014 (Division J of Pub. L. 113-76) and similar sections in subsequent military construction appropriations acts, architect-engineer contracts funded by military construction appropriations that are estimated to exceed $500,000 and are to be performed in Japan, in any North Atlantic Treaty Organization member country, or in countries bordering the Arabian Sea (i.e., India, Iran, Oman, Pakistan, Somalia, and Yemen), shall be awarded only to United States firms or to joint ventures of United States and host nation firms.

236.609-70 [Amended]

7. In section 236.609-70, amend paragraph (b)(3), by removing ``Arabian Gulf'' and adding ``Arabian Sea'' in its place.

[FR Doc. 2014-17942 Filed 7-30-14; 8:45 am]

BILLING CODE 5001-06-P