80 FR 72599 - Defense Federal Acquisition Regulation Supplement: Photovoltaic Devices From the United States (DFARS Case 2015-D007)
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System Federal Register Volume 80, Issue 224 (November 20, 2015)
Defense Acquisition Regulations System
Federal Register Volume 80, Issue 224 (November 20, 2015)
| Page Range | 72599-72606 | |
| FR Document | 2015-29551 |
[Federal Register Volume 80, Number 224 (Friday, November 20, 2015)] [Rules and Regulations] [Pages 72599-72606] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-29551] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 212, 225, and 252 [Docket DARS-2015-0024] RIN 0750-AI41 Defense Federal Acquisition Regulation Supplement: Photovoltaic Devices From the United States (DFARS Case 2015-D007) AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD). ACTION: Final rule. ----------------------------------------------------------------------- [[Page 72600]] SUMMARY: DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act for Fiscal Year 2015 that revises the restrictions relating to utilization of domestic photovoltaic devices. DATES: Effective November 20, 2015. FOR FURTHER INFORMATION CONTACT: Ms. Amy G. Williams, telephone 571- 372-6106; facsimile 571-372-6101. SUPPLEMENTARY INFORMATION: I. Background DoD published a proposed rule in the Federal Register at 80 FR 30119 on May 26, 2015, to implement section 858 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2015 (Pub. L. 113-291), which addresses utilization of domestic photovoltaic devices. Three respondents submitted comments on the proposed rule. II. Discussion and Analysis A. Summary of Significant Changes From the Proposed Rule There are no significant changes from the proposed rule. B. Analysis of Public Comments 1. Trade Agreements Act Comment: One respondent was very supportive of the exceptions for use of photovoltaic devices from designated countries in acquisitions covered by a Trade agreement. The respondent cited legal reasons for the exception (i.e., section 858 specifically states that the restrictions are ``subject to exceptions provided in the Trade Agreements Act of 1979 (19 U.S.C. 2501 et seq.) or otherwise provided by law.'' In addition, the respondent considered the preservation of the Trade Agreements Act exception critical to the deployment of photovoltaic devices to meet the needs of the DoD market in a timely and cost-efficient manner. Response: Both section 846 and section 858 state that the restrictions are subject to the exceptions provided in the Trade Agreements Act or otherwise provided by law. The Trade Agreements Act (19 U.S.C. 2501 et seq.) provides authority for the President to waive the Buy American Act and other discriminatory provisions (e.g., sections 846 and 858) for eligible products from designated countries. This authority has been delegated to the United States Trade Representative (USTR). The USTR has confirmed that the trade agreements provide an exception to the domestic source restrictions of section 858. Since the Trade Agreements Act exception is specifically provided in law, it remains in the final rule. 2. Covered Contract a. Enhanced Use Leases Comment: One respondent recommended that DoD should clarify that while the real estate procurement action related to the development of photovoltaic generating assets on DoD land is not subject to the DFARS, the purchase of the output of the photovoltaic devices is (1) a separate procurement action; (2) an acquisition under DoD procurement regulations; and (3) a covered contract under section 858. According to the respondent, DoD may accept the provision of payment of utility services as in-kind consideration for leasing DoD real property interests in an amount not less than the fair market value of the leasehold. Although the respondent agreed that the DFARS does not cover land leases, the respondent asserted that a power purchase agreement for the procurement of power generated from a photovoltaic device located on land awarded through enhanced-use lease (EUL) authority, whether a combined procurement or a separate procurement after the EUL is awarded, is not a real estate transaction, but is a covered contract because it is installed on DoD property and is an acquisition subject to the DFARS. Response: DoD land leases are not governed by the Federal Acquisition Regulations (FAR) or the DFARS, as the FAR system only covers acquisition of supplies and services. The term ``supplies'' is defined in the FAR as all property except land or interest in land. Therefore, power generated from a photovoltaic device and provided to an installation as in-kind consideration under a land lease is not governed by the FAR, DFARS, or this rule. Real property transactions are addressed under other authorities. To the extent the DoD is contracting for power through a FAR-type contract, this DFARS provision would apply. A separately signed power purchase agreement for the power generated by a photovoltaic device installed on DoD land outgranted under a DoD lease, is (1) a FAR contract and (2) a covered contract for the purposes of this rule. b. Off-Site Power Generation Comment: One respondent recommended that DoD should clarify that section 858 applies to covered contracts awarded by DoD components utilizing photovoltaic devices located on off-site, private property, so long as the photovoltaic devices are reserved for the use of DoD for the full economic life of the device. Response: The final Regulatory Flexibility Act analysis has been revised to clarify that section 858 applies to DoD when purchasing renewable power generated via photovoltaic devices. DoD can either purchase the photovoltaic devices (own, operate and maintain the devices for their full economic life), enter into Energy Savings Performance Contracts, or enter into power purchase agreements for the purchase of the power output from photovoltaic devices that are installed on DoD land or buildings, or off-site on private land. c. Need for Trade Agreements Act Exception Comment: According to one respondent, the broadened definition of ``covered contract'' will further enable expansion of the market transition to utility scale procurement of photovoltaic devices for military use. However, the respondent stated that without the Trade Agreements Act exception, the market will not be able to be served in a timely and efficient manner. Response: The Trade Agreements Act exception is specifically provided in law and remains in the final rule. 3. Definitions a. ``Domestic Photovoltaic Device'' Comment: According to one respondent, the modification of the definition of ``domestic photovoltaic device'' to include the requirement that the cost of all components mined, produced, or manufactured in the United States must exceed 50 percent of the cost of all components, makes the Trade Agreements Act exception even more essential. Response: The Trade Agreements Act exception is specifically provided in law and remains in the final rule. b. ``Substantial Transformation'' Comment: One respondent stated that DoD should amend paragraph (c) of the provision at DFARS 252.225-7018, Photovoltaic Devices-- Certificate, to explicitly adopt and apply the Department of Commerce's definition of ``substantial transformation'' for photovoltaic devices, stating that substantial transformation of a photovoltaic device takes place in the country where a photovoltaic device's cell is manufactured. Response: The interpretation of ``substantial transformation'' is outside the scope of this case. Section 858 did not address or modify the meaning of ``substantial transformation.'' Paragraph (c) of the provision at DFARS 252.225- [[Page 72601]] 7018 was not included in the Federal Register notice of the proposed rule under this case. The preamble to the proposed rule under this case specifically stated that the previous rule published to clarify this DoD policy will remain unaffected. Paragraph (c) was added to the provision at DFARS 252.225-7017 under DFARS Case 2014-D006, Photovoltaic Devices, to clarify how offerors should assess the rules of origin for photovoltaic devices to be utilized under covered DoD contracts. Paragraph (c) advises offerors to be consistent with country of origin determinations by the U.S. Customs and Border Protection with regard to importation of the same or similar photovoltaic devices into the United States. If the offeror is uncertain as to the origin of a photovoltaic device, the provision directs the offeror to request a determination from U.S. Customs and Border Protection. It is not within the purview of DoD to make such determinations. DoD published the final rule on April 21, 2014, after consultation with the United States Trade Representative and thorough analysis of the public comments received. c. ``U.S.-Made Photovoltaic Device'' Comment: One respondent recommended that DoD should revise the definition of U.S.-made photovoltaic device to conform to the other country of origin definitions applicable to photovoltaic devices and require U.S.-made photovoltaic devices to be wholly manufactured or substantially transformed in the United States. Response: The FAR was modified in February 2000 (FAC 97-15) to include the term ``U.S.-made end product,'' defined to mean an article that is mined, produced, or manufactured in the United States or that is substantially transformed in the United States into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. This term was introduced to provide an opportunity, when an acquisition is subject to the World Trade Organization Government Procurement Agreement, for products made in the United States (which are not designated country end products, and therefore not subject to the trade agreements rules of origin) to compete with designated country end products. Through a public interest class determination, DoD does not apply the Buy American Act to U.S.-made end products if the World Trade Organization Government Procurement Agreement applies. Therefore, when section 846 of the NDAA for FY 2011 required certain covered contracts awarded by DoD to contain a provision requiring the photovoltaic devices provided under the contract to comply with the Buy American Act, subject to the exceptions provided in the Trade Agreements Act of 1979, the DFARS applied the existing public interest class determination to exempt the utilization of U.S.-made photovoltaic devices (treating photovoltaic devices as a specific item fitting within the existing FAR definition of ``U.S.-made end products'') from the restrictions of section 846 and the Buy American Act. 4. Public Interest Determinations a. Impact on Domestic Manufacturing Comment: One respondent contended that issuing a public interest waiver as a work around to addressing differing documentation requirements between U.S.-based and designated country photovoltaic manufacturers would reduce the desired connection to domestic manufacturing activities, and therefore presents a suboptimal approach. Response: The public interest waiver of section 858 for acquisition of U.S.-made photovoltaic devices was not only to address differing documentation requirements, but to enable acquisition from a broad range of U.S. companies. Section 858 of the NDAA for FY 2015 allows the head of the department concerned to determine, on a case-by-case basis that application of section 858 is not in the public interest. As delegated in this rule, the head of the contracting activity concerned may make such a public interest determination for a variety of reasons. The rule provides a sample determination based on the utilization of a U.S.-made device because this is consistent with existing practice, except that now an individual determination is required each time utilization of U.S.-made devices is proposed. Use of this determination was suggested only when the value of the acquisition exceeds $204,000 and the World Trade Organization Government Procurement Agreement applies. It is in the Government's best interest to foster a competitive environment and encourage manufacturing in the United States. b. Time Delay Comment: One respondent, while recognizing that public interest determinations can provide flexibility, was concerned that obtaining an individual public interest determination on a case-by-case basis could cause delay in project implementation. Response: Section 858 specifically requires approval of public interest determinations on a case-by-case basis. The DFARS rule specifies the head of the contracting activity as approval authority. This approval process is not anticipated to unreasonably delay DoD procurements. 5. Sanctioned Countries Comment: One respondent recommended that the rule should ensure that companies from the list of sanctioned countries should be prohibited from undertaking U.S. military solar projects, regardless of where or how the goods are manufactured. Response: Since the FAR and DFARS contain specific implementation of the Office of Foreign Assets Control restrictions and additional title 10, U.S.C., statutory restrictions on contracting with prohibited sources that apply to both DoD prime contractors and to their subcontractors in accordance with flow down provisions, the rule does not need to be modified. Such prohibitions are already effectively implemented in the regulations that apply to contracts awarded by executive branch agencies U.S. Government and to contracts awarded by DoD military departments and defense agencies. III. Applicability Consistent with the determinations that DoD made with regard to application of the requirements of section 846 of NDAA for FY 2011, this rule does not apply the requirements of section 858 of the NDAA for FY 2015 to contracts at or below the simplified acquisition threshold (SAT), but does apply to contracts for the acquisition of commercial items, including commercially available off-the-shelf (COTS) items. A. Applicability to Contracts at or Below the SAT 41 U.S.C. 1905 governs the applicability of laws to contracts or subcontracts in amounts not greater than the simplified acquisition threshold. It is intended to limit the applicability of laws to such contracts or subcontracts. 41 U.S.C. 1905 provides that if a provision of law contains criminal or civil penalties, or if the FAR Council makes a written determination that it is not in the best interest of the Federal Government to exempt contracts or subcontracts at or below the SAT, the law will apply to them. The Director, Defense Procurement and Acquisition Policy (DPAP), is the appropriate authority to make comparable determinations for regulations to be [[Page 72602]] published in the DFARS, which is part of the FAR system of regulations. DoD did not make that determination. Therefore, this rule does not apply below the simplified acquisition threshold. B. Applicability to Contracts for the Acquisition of Commercial Items, Including COTS Items 41 U.S.C. 1906 governs the applicability of laws to contracts for the acquisition of commercial items, and is intended to limit the applicability of laws to contracts for the acquisition of commercial items. 41 U.S.C. 1906 provides that if a provision of law contains criminal or civil penalties, or if the FAR Council makes a written determination that it is not in the best interest of the Federal Government to exempt commercial item contracts, the provision of law will apply to contracts for the acquisition of commercial items. Likewise, 41 U.S.C. 1907 governs the applicability of laws to COTS items, with the Administrator for Federal Procurement Policy the decision authority to determine that it is in the best interest of the Government to apply a provision of law to acquisitions of COTS items in the FAR. The Director, DPAP, is the appropriate authority to make comparable determinations for regulations to be published in the DFARS, which is part of the FAR system of regulations. Given that the requirements of section 858 of the NDAA for FY 2015 were enacted to promote utilization of domestic photovoltaic devices, and since photovoltaic devices are generally COTS items, DoD has determined that it is in the best interest of the Federal Government to apply the rule to contracts for the acquisition of commercial items, including COTS items, as defined at FAR 2.101. An exception for contracts for the acquisition of commercial items, including COTS items, would exclude the contracts intended to be covered by the law, thereby undermining the overarching public policy purpose of the law. IV. 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. V. 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 implements section 858 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2015 (Pub. L. 113-291), by changing the regulatory coverage on utilization of domestic photovoltaic devices under certain covered contracts. The objective of this rule is to further promote utilization of domestic photovoltaic devices under DoD covered contracts, while maintaining compliance with trade agreements, reciprocal defense procurement memoranda of understanding, and DoD policy with regard to the acquisition of designated country photovoltaic devices, qualifying country photovoltaic devices, and U.S.-made photovoltaic devices. There were no significant issues raised by the public comments in response to the initial regulatory flexibility analysis. There was one comment on the terminology used to describe the applicability of the rule to small entities, but this did not impact the numerical analysis or the rule itself. This rule generally applies at the prime contract level to other than small entities. When purchasing renewable power generated via photovoltaic devices, DoD can either purchase the photovoltaic devices and thereby own, operate, and maintain the devices for their full economic life (already covered in DFARS part 225 under standard Buy American Act/Trade Agreements regulations) or, for example, may do some variation of the following: a. Enter into an energy savings performance contract, which is a contracting method in which the contractor provides capital to facilitate energy savings projects and maintains them in exchange for a portion of the energy savings generated. Under this arrangement, the Government would take title to the devices during contract performance or at the conclusion of the contract. For example, the Defense Logistics Agency-Energy uses the master Department of Energy indefinite delivery-indefinite quantity contract and awards task orders off that contract. Of the 16 contractors, all are large businesses. There are subcontracting goals that each contractor has to meet, but the ultimate task order award is made to a large business. b. Enter into a power purchase agreement, also referred to as a utility service contract, for the purchase of the power output of photovoltaic devices that are installed on DoD land or buildings, or on private land, but are owned, operated, and maintained by the contractor. At the conclusion of the contract, DoD would either require the contractor to dismantle and remove the photovoltaic equipment or abandon the equipment in place. Prime contractors for this type of contract would generally be large businesses, based on the capital costs involved in these projects. However, many developers tend to subcontract out the majority of work to smaller companies. There are approximately 80 manufacturers of photovoltaic devices. We do not currently have data available on whether any of the manufacturers of photovoltaic devices are small entities, because the Federal Procurement Data System does not collect such data on subcontractors. There are no new reporting burdens under this rule. There are some negligible variations to the existing reporting burdens. Furthermore, since the prime contractors subject to this rule are other than small businesses, the reporting requirements will not impact small entities. However, under section 858, if the aggregate value of the photovoltaic devices to be utilized under a contract is less than $204,000, or unless a waiver is obtained for the utilization of U.S.- made products when the aggregate value of the photovoltaic devices is $204,000 or more, there will be a requirement to track the origin of the components of the domestic photovoltaic devices. However, DoD estimates that most covered contracts will involve utilization of photovoltaic devices with an aggregate value in excess of $204,000 and expects to grant waivers as appropriate. DoD did not identify any significant alternatives that meet the requirements of the statute and would have less impact on small entities. The ability for the Government to grant a waiver of section 858 if it is inconsistent with the public interest to preclude utilization of U.S.-made photovoltaic devices when the World Trade Organization Government Procurement Agreement is applicable (i.e., the aggregate value of the photovoltaic devices to be utilized is $204,000 or more) will greatly reduce the burden on manufacturers of [[Page 72603]] photovoltaic devices, regardless of the size of the entity. VI. 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); however, these changes to the DFARS do not impose additional information collection requirements to the paperwork burden previously approved under OMB Control Number 0704- 0229, entitled ``Defense Federal Acquisition Regulation Supplement (DFARS) Part 225, Foreign Acquisition, and related clauses at DFARS 252.225.'' List of Subjects in 48 CFR Parts 212, 225, and 252 Government procurement. Jennifer L. Hawes, Editor, Defense Acquisition Regulations System. Therefore, 48 CFR parts 212, 225, and 252 are amended as follows: 0 1. The authority citation for parts 212, 225, and 252 continues to read as follows: Authority: 41 U.S.C. 1303 and 48 CFR chapter 1. PART 212--ACQUISITION OF COMMERCIAL ITEMS 0 2. In section 212.301, revise paragraphs (f)(x)(J) and (f)(x)(K) to read as follows: 212.301 Solicitation provisions and contract clauses for the acquisition of commercial items. * * * * * (f) * * * (x) * * * (J) Use the clause at 252.225-7017, Photovoltaic Devices, as prescribed in 225.7017-5(a), to comply with section 858 of Public Law 113-291). (K) Use the provision at 252.225-7018, Photovoltaic Devices-- Certificate, as prescribed in 225.7017-5(b), to comply with section 858 of Public Law 113-291. * * * * * PART 225--FOREIGN ACQUISITION 0 3. Amend section 225.7017 by-- 0 a. Revising sections 225.7017-1 through 225.7017-3; 0 b. Redesignating section 225.7017-4 as 225.7017-5; 0 c. Adding new section 225.7017-4; and 0 d. In the newly redesignated 225.7017-5, revising the section heading and paragraph (a). The revisions and addition read as follows: 225.7017 Utilization of domestic photovoltaic devices. 225.7017-1 Definitions. As used in this section-- Caribbean Basin country photovoltaic device means a photovoltaic device that-- (1) Is wholly manufactured in a Caribbean Basin country; or (2) In the case of a photovoltaic device that consists in whole or in part of materials from another country, has been substantially transformed in a Caribbean Basin country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed, provided that the photovoltaic device is not subsequently substantially transformed outside of a Caribbean Basin country. Covered contract means contract awarded by DoD that, by means other than DoD purchase as end products, provides for a photovoltaic device to be-- (1) Installed in the United States on DoD property or in a facility owned by DoD; or (2) Reserved for the exclusive use of DoD in the United States for the full economic life of the device. Designated country photovoltaic device means a World Trade Organization Government Procurement Agreement (WTO GPA) country photovoltaic device, a Free Trade Agreement country photovoltaic device, a least developed country photovoltaic device, or a Caribbean Basin country photovoltaic device. Domestic photovoltaic device means a photovoltaic device that-- (1) Is manufactured in the United States; and (2) The cost of its components that are mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all components. The cost of components includes transportation costs to the place of incorporation into the end product and U.S. duty (whether or not a duty-free entry certificate is issued). Scrap generated, collected, and prepared for processing in the United States is considered domestic. Foreign photovoltaic device means a photovoltaic device other than a domestic photovoltaic device. Free Trade Agreement country photovoltaic device means a photovoltaic device that-- (1) Is wholly manufactured in a Free Trade Agreement country; or (2) In the case of a photovoltaic device that consists in whole or in part of materials from another country, has been substantially transformed in a Free Trade Agreement country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed, provided that the photovoltaic device is not subsequently substantially transformed outside of a Free Trade Agreement country. Least developed country photovoltaic device means a photovoltaic device that-- (1) Is wholly manufactured in a least developed country; or (2) In the case of a photovoltaic device that consists in whole or in part of materials from another country, has been substantially transformed in a least developed country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed, provided that the photovoltaic device is not subsequently substantially transformed outside of a least developed country. Photovoltaic device means a device that converts light directly into electricity through a solid-state, semiconductor process. Qualifying country photovoltaic device means a photovoltaic device manufactured in a qualifying country. U.S.-made photovoltaic device means a photovoltaic device that-- (1) Is manufactured in the United States; or (2) Is substantially transformed in the United States into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed, provided that the photovoltaic device is not subsequently substantially transformed outside of the United States. WTO GPA country photovoltaic device means a photovoltaic device that-- (1) Is wholly manufactured in a WTO GPA country; or (2) In the case of a photovoltaic device that consists in whole or in part of materials from another country, has been substantially transformed in a WTO GPA country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed, provided that the photovoltaic device is not subsequently substantially transformed outside of a WTO GPA country. 225.7017-2 Restriction. In accordance with section 858 of the National Defense Authorization Act for Fiscal Year 2015, photovoltaic devices [[Page 72604]] provided under any covered contract shall be domestic photovoltaic devices, except as provided in 225.7017-3 and 225.7017-4. 225.7017-3 Exceptions. (a) Free Trade Agreements. For a covered contract that utilizes photovoltaic devices valued at $25,000 or more, photovoltaic devices may be utilized from a country covered under the acquisition by a Free Trade Agreement, depending upon dollar threshold (see FAR subpart 25.4). (b) World Trade Organization--Government Procurement Agreement. For covered contracts that utilize photovoltaic devices that are valued at $204,000 or more, only domestic photovoltaic devices or designated country photovoltaic devices may be utilized, unless acquisition of U.S.-made or qualifying country photovoltaic devices is allowed pursuant to a waiver in accordance with 225.7017-4(a). 225.7017-4 Waivers. The head of the contracting activity is authorized to waive, on a case-by-case basis, the application of the restriction in 225.7017-2 upon determination that one of the following circumstances applies (see PGI 225.7017-4 for sample determinations and findings): (a) Inconsistent with the public interest. For example, a public interest waiver may be appropriate to allow-- (1) Utilization of U.S.-made photovoltaic devices if the aggregate value of the photovoltaic devices to be utilized under the contract exceeds $204,000; or (2) Utilization of photovoltaic devices from a qualifying country, regardless of dollar value. (b) Unreasonable cost. A determination that the cost of a domestic photovoltaic device is unreasonable may be appropriate if-- (1) The aggregate value of the photovoltaic devices to be utilized under the contract does not exceed $204,000; and (2) The offeror documents that the price of the foreign photovoltaic devices plus 50 percent is less than the price of comparable domestic photovoltaic devices. 225.7017-5 Solicitation provision and contract clause. (a)(1) Use the clause at 252.225-7017, Photovoltaic Devices, in solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items, for a contract that-- (i) Is expected to exceed the simplified acquisition threshold; and (ii) May be a covered contract, i.e., a contract that provides for a photovoltaic device to be-- (A) Installed in the United States on DoD property or in a facility owned by DoD; or (B) Reserved for the exclusive use of DoD in the United States for the full economic life of the device. (2) Use the clause in the resultant contract, including contracts using FAR part 12 procedures for the acquisition of commercial items, if it is a covered contract. * * * * * PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES 0 4. Amend section 252.225-7017-- 0 a. In the introductory text, by removing ``225.7017-4(a)'' and adding ``225.7017-5(a)'' in its place; 0 b. By removing the clause date ``(OCT 2015)'' and adding ``(NOV 2015)'' in its place; 0 c. In paragraph (a), by removing ``an article that'' and adding ``a photovoltaic device that'' in its place wherever it appears, and revising the definition of ``Domestic photovoltaic device''; and 0 d. By revising paragraphs (b) and (c). The revisions read as follows: 252.225-7017 Photovoltaic Devices. * * * * * (a) * * * Domestic photovoltaic device means a photovoltaic device-- (i) Manufactured in the United States; and (ii) The cost of its components that are mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all components. The cost of components includes transportation costs to the place of incorporation into the end product and U.S. duty (whether or not a duty-free entry certificate is issued). Scrap generated, collected, and prepared for processing in the United States is considered domestic. * * * * * (b) This clause implements section 858 of the National Defense Authorization Act for Fiscal Year 2015 (Pub. L. 113-291). (c) Restriction. If the Contractor specified in its offer in the Photovoltaic Devices--Certificate provision of the solicitation that the estimated value of the photovoltaic devices to be utilized in performance of this contract would be-- (1) Less than $25,000, then the Contractor shall utilize only domestic photovoltaic devices unless, in its offer, it specified utilization of qualifying country or other foreign photovoltaic devices in paragraph (d)(2) of the Photovoltaic Devices--Certificate provision of the solicitation. If the Contractor certified in its offer that it will utilize a qualifying country photovoltaic device, then the Contractor shall utilize a qualifying country photovoltaic device as specified, or, at the Contractor's option, a domestic photovoltaic device; (2) $25,000 or more but less than $79,507, then the Contractor shall utilize in the performance of this contract only domestic photovoltaic devices unless, in its offer, it specified utilization of Canadian, qualifying country, or other foreign photovoltaic devices in paragraph (d)(3) of the Photovoltaic Devices--Certificate provision of the solicitation. If the Contractor certified in its offer that it will utilize a qualifying country photovoltaic device or a Canadian photovoltaic device, then the Contractor shall utilize a qualifying country photovoltaic device or a Canadian photovoltaic device as specified, or, at the Contractor's option, a domestic photovoltaic device; (3) $79,507 or more but less than $100,000, then the Contractor shall utilize under this contract only domestic photovoltaic devices or Free Trade Agreement country photovoltaic devices (other than Bahrainian, Korean, Moroccan, Panamanian, or Peruvian photovoltaic devices), unless, in its offer, it specified utilization of qualifying country or other foreign photovoltaic devices in paragraph (d)(4) of the Photovoltaic Devices--Certificate provision of the solicitation. If the Contractor certified in its offer that it will utilize a qualifying country photovoltaic device or a Free Trade Agreement country photovoltaic device (other than a Bahrainian, Korean, Moroccan, Panamanian, or Peruvian photovoltaic device), then the Contractor shall utilize a qualifying country photovoltaic device; a Free Trade Agreement country photovoltaic device (other than a Bahrainian, Korean, Moroccan, Panamanian, or Peruvian photovoltaic device) as specified; or, at the Contractor's option, a domestic photovoltaic device; (4) $100,000 or more but less than $204,000, then the Contractor shall utilize under this contract only domestic photovoltaic devices or Free Trade Agreement country photovoltaic devices (other than Bahrainian, Moroccan, Panamanian, or Peruvian photovoltaic devices), unless, in its offer, it specified utilization of qualifying country or other foreign photovoltaic devices in paragraph (d)(5) [[Page 72605]] of the Photovoltaic Devices--Certificate provision of the solicitation. If the Contractor certified in its offer that it will utilize a qualifying country photovoltaic device or a Free Trade Agreement country photovoltaic device (other than a Bahrainian, Moroccan, Panamanian, or Peruvian photovoltaic device), then the Contractor shall utilize a qualifying country photovoltaic device; a Free Trade Agreement country photovoltaic device (other than a Bahrainian, Moroccan, Panamanian, or Peruvian photovoltaic device) as specified; or, at the Contractor's option, a domestic photovoltaic device; or (5) $204,000 or more, then the Contractor shall utilize under this contract only domestic or designated country photovoltaic devices unless, in its offer, it specified utilization of U.S.-made or qualifying country photovoltaic devices in paragraph (d)(6)(ii) or (iii) respectively of the Photovoltaic Devices--Certificate provision of the solicitation. If the Contractor certified in its offer that it will utilize a designated country, U.S.-made, or qualifying country photovoltaic device, then the Contractor shall utilize a designated country, U.S.-made, or qualifying country photovoltaic device as specified, or, at the Contractor's option, a domestic photovoltaic device. (End of clause) 0 5. Amend section 252.225-7018-- 0 a. In the introductory text, by removing ``225.7017-4(b)'' and adding ``225.7017-5(b)'' in its place; 0 b. By removing the clause date ``(OCT 2015)'' and adding ``(NOV 2015)'' in its place; 0 c. By revising paragraph (b); 0 d. In paragraph (c), by removing ``(See http://www.cbp.gov/xp/cgov/trade/legal/rulings.)'' and adding ``(See http://www.cbp.gov/trade/rulings.)'' in its place; and 0 e. By revising paragraph (d). The revisions read as follows: 252.225-7018 Photovoltaic Devices--Certificate. * * * * * (b) Restrictions. The following restrictions apply, depending on the estimated aggregate value of photovoltaic devices to be utilized under a resultant contract: (1) If less than $204,000, then the Government will not accept an offer specifying the use of-- (i) Other foreign photovoltaic devices in paragraph (d)(2)(iii), (d)(3)(iii), (d)(4)(iii), or (d)(5)(iii) of this provision, unless the offeror documents to the satisfaction of the Contracting Officer that the price of the foreign photovoltaic device plus 50 percent is less than the price of a comparable domestic photovoltaic device and the Government determines in accordance with DFARS 225.217-4(b) that the price of a comparable domestic photovoltaic device would be unreasonable; and (ii) A qualifying country photovoltaic device unless the Government determines in accordance with DFARS 225.217-4(a) that it is in the public interest to allow use of a qualifying country photovoltaic device. (2) If $204,000 or more, then the Government will consider only offers that utilize photovoltaic devices that are domestic or designated country photovoltaic devices, unless the Government determines in accordance with DFARS 225.7017-4(a) that it is in the public interest to allow use of a qualifying country photovoltaic device from Egypt or Turkey, or a U.S.-made photovoltaic device. * * * * * (d) Certification and identification of country of origin. [The offeror shall check the block and fill in the blank for one of the following paragraphs, based on the estimated value and the country of origin of photovoltaic devices to be utilized in performance of the contract:] __(1) No photovoltaic devices will be utilized in performance of the contract. (2) If less than $25,000-- __(i) The offeror certifies that each photovoltaic device to be utilized in performance of the contract is a domestic photovoltaic device; __(ii) The offeror certifies that each photovoltaic device to be utilized in performance of the contract is a qualifying country photovoltaic device [Offeror to specify country of origin__]; or __(iii) The foreign (other than qualifying country) photovoltaic devices to be utilized in performance of the contract are the product of ___. [Offeror to specify country of origin, if known, and provide documentation that the cost of a domestic photovoltaic device would be unreasonable in comparison to the cost of the proposed foreign photovoltaic device, i.e., that the price of the foreign photovoltaic device plus 50 percent is less than the price of a comparable domestic photovoltaic device.] (3) If $25,000 or more but less than $79,507-- __(i) The offeror certifies that each photovoltaic device to be utilized in performance of the contract is a domestic photovoltaic device or a Canadian photovoltaic device [Offeror to specify country of origin__]; __(ii) The offeror certifies that each photovoltaic device to be utilized in performance of the contract is a qualifying country photovoltaic device [Offeror to specify country of origin__]; or __(iii) The foreign (other than qualifying country or Canadian) photovoltaic devices to be utilized in performance of the contract are the product of ___. [Offeror to specify country of origin, if known, and provide documentation that the cost of a domestic photovoltaic device would be unreasonable in comparison to the cost of the proposed foreign photovoltaic device, i.e., that the price of the foreign photovoltaic device plus 50 percent is less than the price of a comparable domestic photovoltaic device.] (4) If $79,507 or more but less than $100,000-- __(i) The offeror certifies that each photovoltaic device to be utilized in performance of the contract is a domestic photovoltaic device or a Free Trade Agreement country photovoltaic device (other than a Bahrainian, Korean, Moroccan, Panamanian, or Peruvian photovoltaic device) [Offeror to specify country of origin__]; __(ii) The offeror certifies that each photovoltaic device to be utilized in performance of the contract is a qualifying country photovoltaic device (except an Australian or Canadian photovoltaic device, to be listed in paragraph (d)(4)(i) of this provision as a Free Trade Agreement country photovoltaic device) [Offeror to specify country of origin__]; or __(iii) The offered foreign photovoltaic devices (other than those from countries listed in paragraph (d)(4)(i) or (d)(4)(ii) of this provision) are the product of ___. [Offeror to specify country of origin, if known, and provide documentation that the cost of a domestic photovoltaic device would be unreasonable in comparison to the cost of the proposed foreign photovoltaic device, i.e., that the price of the foreign photovoltaic device plus 50 percent is less than the price of a comparable domestic photovoltaic device.] (5) If $100,000 or more but less than $204,000-- __(i) The offeror certifies that each photovoltaic device to be utilized in performance of the contract is a domestic photovoltaic device or a Free Trade Agreement country photovoltaic device (other than a Bahrainian, Moroccan, Panamanian, or Peruvian photovoltaic device) [Offeror to specify country of origin__]; __(ii) The offeror certifies that each photovoltaic device to be utilized in performance of the contract is a qualifying country photovoltaic device (except an Australian or Canadian [[Page 72606]] photovoltaic device, to be listed in paragraph (d)(5)(i) of this provision as a Free Trade Agreement country photovoltaic device) [Offeror to specify country of origin__]; or __(iii) The offered foreign photovoltaic devices (other than those from countries listed in paragraph (d)(5)(i) or (d)(5)(ii) of this provision) are the product of ___. [Offeror to specify country of origin, if known, and provide documentation that the cost of a domestic photovoltaic device would be unreasonable in comparison to the cost of the proposed foreign photovoltaic device, i.e., that the price of the foreign photovoltaic device plus 50 percent is less than the price of a comparable domestic photovoltaic device.] (6) If $204,000 or more, the Offeror certifies that each photovoltaic device to be used in performance of the contract is-- __(i) A domestic or designated country photovoltaic device [Offeror to specify country of origin__]; __(ii) A U.S.-made photovoltaic device; or __(iii) A qualifying country photovoltaic device from Egypt of Turkey (photovoltaic devices from other qualifying countries to be listed in paragraph (d)(6)(i) of this provision as designated country photovoltaic devices). [Offeror to specify country of origin__.] (End of provision) [FR Doc. 2015-29551 Filed 11-19-15; 8:45 am] BILLING CODE 5001-06-P
![Federal Register / Vol. 80, No. 224 / Friday, November 20, 2015 / Rules and Regulations 72599
§ 180.401 [Amended] § 180.476 Triflumizole; tolerances for § 180.515 [Amended]
residues.
■ 21. In § 180.401, remove the entry for ■ 39. In § 180.515, remove the entries
‘‘Rice, straw’’ from the table in (a) * * * for ‘‘Caneberry subgroup 13A,’’ ‘‘Cotton,
paragraph (a). (1) * * * hulls,’’ ‘‘Cotton, meal,’’ ‘‘Cotton, refined
oil’’ and ‘‘Rice, straw’’ from the table in
§ 180.417 [Amended] Parts
Commodity per million paragraph (a).
■ 22. In § 180.417, remove the entry for
‘‘Rice, straw’’ from the table in § 180.517 [Amended]
Berry, low growing, subgroup
paragraph (a)(1). 13–07G, except cranberry 2.0 ■ 40. In § 180.517, remove the entry for
Brassica, head and stem, ‘‘Rice, straw’’ from the table in
§ 180.418 [Amended] subgroup 5A ...................... 8.0 paragraph (a).
■ 23. In § 180.418, remove the entry for Brassica, leafy greens, sub-
‘‘Rice, straw’’ from the table in group 5B ........................... 40 § 180.541 [Removed]
Canistel ................................. 2.5
paragraph (a)(2). ■ 41. Remove § 180.541.
Cherry, sweet ....................... 1.5
§ 180.425 [Amended] Cherry, tart ............................ 1.5 § 180.555 [Amended]
Cilantro, leaves ..................... 35
■ 24. In § 180.425, remove the entry for Fruit, pome, group 11–10 ..... 0.50 ■ 42. In § 180.555, remove the entry for
‘‘Rice, straw’’ from the table in Fruit, small, vine climbing, ‘‘Rice, straw’’ from the table in
paragraph (a). except fuzzy kiwifruit, sub- paragraph (a).
group 13–07F .................... 2.5
§ 180.434 [Amended] Hazelnut ................................ 0.05 § 180.570 [Amended]
■ 25. In § 180.434, remove the entry for Hop, dried cones .................. 50
■43. In § 180.570, remove the entry for
‘‘Rice, straw’’ from the table in Leafy greens subgroup 4A,
except spinach .................. 35 ‘‘Rice, straw’’ from the table in
paragraph (a). Mango ................................... 2.5 paragraph (a)(2).
§ 180.438 [Amended] Papaya .................................. 2.5
§ 180.577 [Amended]
Pineapple .............................. 4.0
■ 26. In § 180.438, remove the entry for Sapodilla ............................... 2.5 ■ 44. In § 180.577, remove the entry for
‘‘Rice, straw’’ from the table in Sapote, black ........................ 2.5 ‘‘Rice, straw’’ from the table in
paragraph (a)(1) and from the table in Sapote, mamey .................... 2.5 paragraph (a).
paragraph (a)(2). Star apple ............................. 2.5
Swiss chard .......................... 18 § 180.602 [Amended]
§ 180.439 [Amended] Tomato .................................. 1.5
Turnip, greens ...................... 40 ■ 45. In § 180.602, remove the entry for
■ 27. In § 180.439, remove the entry for Vegetable, cucurbit, group 9 0.5 ‘‘Hop, dried cones’’ from the table in
‘‘Rice, straw’’ from the table in paragraph (a).
paragraph (a). (2) * * * § 180.605 [Amended]
§ 180.441 [Amended]
Parts ■ 46. In § 180.605, remove the entry for
■ 28. In § 180.441, remove the entry for Commodity per million ‘‘Rice, straw’’ from the table in
‘‘Soybean, soapstock’’ from the table in paragraph (a).
paragraph (a)(1). Cattle, fat .............................. 0.10
Cattle, meat byproducts ....... 0.20 § 180.625 [Amended]
§ 180.445 [Amended] Goat, fat ................................ 0.10
Goat, meat byproducts ......... 0.20 ■ 47. In § 180.625, remove the entry for
■ 29. In § 180.445, remove the entry for Horse, fat .............................. 0.10 ‘‘Rice, straw’’ from the table in
‘‘Rice, straw’’ from the table in Horse, meat byproducts ....... 0.20 paragraph (a).
paragraph (a). Sheep, fat ............................. 0.10 [FR Doc. 2015–28491 Filed 11–19–15; 8:45 am]
Sheep, meat byproducts ...... 0.20
§ 180.447 [Amended] BILLING CODE 6560–50–P
■ 30. In § 180.447, remove the entry for * * * * *
‘‘Rice, straw’’ from the table in
paragraph (a)(2). § 180.479 [Amended] DEPARTMENT OF DEFENSE
■ 35. In § 180.479, remove the entry for
§ 180.451 [Amended]
‘‘Rice, straw’’ from the table in Defense Acquisition Regulations
■ 31. In § 180.451, remove the entry for paragraph (a)(2). System
‘‘Rice, straw’’ from the table in
paragraph (a). § 180.484 [Amended] 48 CFR Parts 212, 225, and 252
■ 36. In § 180.484, remove the entry for [Docket DARS–2015–0024]
§ 180.463 [Amended]
‘‘Rice, straw’’ from the table in
■ 32. In § 180.463, remove the entry for paragraph (a). RIN 0750–AI41
‘‘Rice, straw’’ from the table in
paragraph (a)(1). § 180.495 [Amended] Defense Federal Acquisition
■ 37. In § 180.495, remove the entry for Regulation Supplement: Photovoltaic
§ 180.473 [Amended] Devices From the United States
‘‘Coriander, leaves’’ from the table in
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■ 33. In § 180.473, remove the entry for paragraph (a). (DFARS Case 2015–D007)
‘‘Rice, straw’’ from the table in
§ 180.507 [Amended] AGENCY: Defense Acquisition
paragraph (a).
Regulations System, Department of
■ 34. In § 180.476, revise the table in ■ 38. In § 180.507, remove the entry for Defense (DoD).
paragraph (a)(1) and revise the table in ‘‘Rice, straw’’ from the table in
ACTION: Final rule.
paragraph (a)(2) to read as follows: paragraph (a)(1).
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![Federal Register / Vol. 80, No. 224 / Friday, November 20, 2015 / Rules and Regulations 72605
of the Photovoltaic Devices—Certificate price of a comparable domestic performance of the contract is a
provision of the solicitation. If the photovoltaic device and the qualifying country photovoltaic device
Contractor certified in its offer that it Government determines in accordance [Offeror to specify country of origin__];
will utilize a qualifying country with DFARS 225.217–4(b) that the price or
photovoltaic device or a Free Trade of a comparable domestic photovoltaic __(iii) The foreign (other than
Agreement country photovoltaic device device would be unreasonable; and qualifying country or Canadian)
(other than a Bahrainian, Moroccan, (ii) A qualifying country photovoltaic photovoltaic devices to be utilized in
Panamanian, or Peruvian photovoltaic device unless the Government performance of the contract are the
device), then the Contractor shall utilize determines in accordance with DFARS product of ___. [Offeror to specify
a qualifying country photovoltaic 225.217–4(a) that it is in the public country of origin, if known, and provide
device; a Free Trade Agreement country interest to allow use of a qualifying documentation that the cost of a
photovoltaic device (other than a country photovoltaic device. domestic photovoltaic device would be
Bahrainian, Moroccan, Panamanian, or (2) If $204,000 or more, then the unreasonable in comparison to the cost
Peruvian photovoltaic device) as Government will consider only offers of the proposed foreign photovoltaic
specified; or, at the Contractor’s option, that utilize photovoltaic devices that are device, i.e., that the price of the foreign
a domestic photovoltaic device; or domestic or designated country photovoltaic device plus 50 percent is
(5) $204,000 or more, then the photovoltaic devices, unless the less than the price of a comparable
Contractor shall utilize under this Government determines in accordance domestic photovoltaic device.]
contract only domestic or designated with DFARS 225.7017–4(a) that it is in (4) If $79,507 or more but less than
country photovoltaic devices unless, in the public interest to allow use of a $100,000—
its offer, it specified utilization of U.S.- qualifying country photovoltaic device __(i) The offeror certifies that each
made or qualifying country photovoltaic from Egypt or Turkey, or a U.S.-made photovoltaic device to be utilized in
devices in paragraph (d)(6)(ii) or (iii) photovoltaic device. performance of the contract is a
respectively of the Photovoltaic domestic photovoltaic device or a Free
* * * * * Trade Agreement country photovoltaic
Devices—Certificate provision of the (d) Certification and identification of
solicitation. If the Contractor certified in device (other than a Bahrainian, Korean,
country of origin. [The offeror shall Moroccan, Panamanian, or Peruvian
its offer that it will utilize a designated check the block and fill in the blank for
country, U.S.-made, or qualifying photovoltaic device) [Offeror to specify
one of the following paragraphs, based country of origin__];
country photovoltaic device, then the on the estimated value and the country
Contractor shall utilize a designated __(ii) The offeror certifies that each
of origin of photovoltaic devices to be photovoltaic device to be utilized in
country, U.S.-made, or qualifying utilized in performance of the contract:]
country photovoltaic device as performance of the contract is a
__(1) No photovoltaic devices will be qualifying country photovoltaic device
specified, or, at the Contractor’s option, utilized in performance of the contract.
a domestic photovoltaic device. (except an Australian or Canadian
(2) If less than $25,000— photovoltaic device, to be listed in
(End of clause) __(i) The offeror certifies that each paragraph (d)(4)(i) of this provision as a
■ 5. Amend section 252.225–7018— photovoltaic device to be utilized in Free Trade Agreement country
■ a. In the introductory text, by performance of the contract is a photovoltaic device) [Offeror to specify
removing ‘‘225.7017–4(b)’’ and adding domestic photovoltaic device; country of origin__]; or
‘‘225.7017–5(b)’’ in its place; __(ii) The offeror certifies that each __(iii) The offered foreign
■ b. By removing the clause date ‘‘(OCT photovoltaic device to be utilized in photovoltaic devices (other than those
2015)’’ and adding ‘‘(NOV 2015)’’ in its performance of the contract is a from countries listed in paragraph
place; qualifying country photovoltaic device
■ c. By revising paragraph (b);
(d)(4)(i) or (d)(4)(ii) of this provision) are
■ d. In paragraph (c), by removing ‘‘(See
[Offeror to specify country of origin__]; the product of ___. [Offeror to specify
or country of origin, if known, and provide
http://www.cbp.gov/xp/cgov/trade/ __(iii) The foreign (other than
legal/rulings.)’’ and adding ‘‘(See http:// documentation that the cost of a
qualifying country) photovoltaic devices domestic photovoltaic device would be
www.cbp.gov/trade/rulings.)’’ in its to be utilized in performance of the
place; and unreasonable in comparison to the cost
contract are the product of ___. [Offeror of the proposed foreign photovoltaic
■ e. By revising paragraph (d).
to specify country of origin, if known, device, i.e., that the price of the foreign
The revisions read as follows:
and provide documentation that the photovoltaic device plus 50 percent is
252.225–7018 Photovoltaic Devices— cost of a domestic photovoltaic device less than the price of a comparable
Certificate. would be unreasonable in comparison domestic photovoltaic device.]
* * * * * to the cost of the proposed foreign (5) If $100,000 or more but less than
(b) Restrictions. The following photovoltaic device, i.e., that the price $204,000—
restrictions apply, depending on the of the foreign photovoltaic device plus __(i) The offeror certifies that each
estimated aggregate value of 50 percent is less than the price of a photovoltaic device to be utilized in
photovoltaic devices to be utilized comparable domestic photovoltaic performance of the contract is a
under a resultant contract: device.] domestic photovoltaic device or a Free
(1) If less than $204,000, then the (3) If $25,000 or more but less than Trade Agreement country photovoltaic
Government will not accept an offer $79,507— device (other than a Bahrainian,
specifying the use of— __(i) The offeror certifies that each Moroccan, Panamanian, or Peruvian
(i) Other foreign photovoltaic devices photovoltaic device to be utilized in photovoltaic device) [Offeror to specify
tkelley on DSK3SPTVN1PROD with RULES
in paragraph (d)(2)(iii), (d)(3)(iii), performance of the contract is a country of origin__];
(d)(4)(iii), or (d)(5)(iii) of this provision, domestic photovoltaic device or a __(ii) The offeror certifies that each
unless the offeror documents to the Canadian photovoltaic device [Offeror photovoltaic device to be utilized in
satisfaction of the Contracting Officer to specify country of origin__]; performance of the contract is a
that the price of the foreign photovoltaic __(ii) The offeror certifies that each qualifying country photovoltaic device
device plus 50 percent is less than the photovoltaic device to be utilized in (except an Australian or Canadian
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![72606 Federal Register / Vol. 80, No. 224 / Friday, November 20, 2015 / Rules and Regulations
photovoltaic device, to be listed in DATES: Effective November 20, 2015. procedures of the Government and has
paragraph (d)(5)(i) of this provision as a FOR FURTHER INFORMATION CONTACT: Ms. no cost or administrative impact on
Free Trade Agreement country Tresa Sullivan, telephone 571–372– contractors or offerors.
photovoltaic device) [Offeror to specify 6089.
country of origin__]; or III. Executive Orders 12866 and 13563
SUPPLEMENTARY INFORMATION:
__(iii) The offered foreign Executive Orders (E.O.s) 12866 and
photovoltaic devices (other than those I. Background 13563 direct agencies to assess all costs
from countries listed in paragraph Section 814 of the National Defense and benefits of available regulatory
(d)(5)(i) or (d)(5)(ii) of this provision) are Authorization Act for Fiscal Year 2007 alternatives and, if regulation is
the product of ___. [Offeror to specify (Pub. L. 109–364) requires that DoD
country of origin, if known, and provide necessary, to select regulatory
provide guidance on the appropriate use approaches that maximize net benefits
documentation that the cost of a of award and incentive fees in DoD
domestic photovoltaic device would be (including potential economic,
acquisition programs, including the environmental, public health and safety
unreasonable in comparison to the cost requirement to ensure that DoD collects
of the proposed foreign photovoltaic effects, distributive impacts, and
relevant data on award and incentive equity). E.O. 13563 emphasizes the
device, i.e., that the price of the foreign fees paid to contractors and has
photovoltaic device plus 50 percent is importance of quantifying both costs
mechanisms in place to evaluate such
less than the price of a comparable and benefits, of reducing costs, of
data on a regular basis. DFARS 216.401–
domestic photovoltaic device.] harmonizing rules, and of promoting
70, Data collection, states this latter
(6) If $204,000 or more, the Offeror requirement of section 814. Previously, flexibility. This is not a significant
certifies that each photovoltaic device to DoD collected award and incentive fee regulatory action and, therefore, was not
be used in performance of the contract data semiannually by a manual data call subject to review under section 6(b) of
is— from the DoD components, which was E.O. 12866, Regulatory Planning and
__(i) A domestic or designated Review, dated September 30, 1993. This
very labor-intensive. On April 6, 2015
country photovoltaic device [Offeror to rule is not a major rule under 5 U.S.C.
(80 FR 18323), DoD removed from
specify country of origin__]; 804.
DFARS 216.401–70 the requirement to
__(ii) A U.S.-made photovoltaic
follow the reporting requirements in the IV. Regulatory Flexibility Act
device; or
associated DFARS Procedures,
__(iii) A qualifying country
Guidance, and Information, because The Regulatory Flexibility Act does
photovoltaic device from Egypt of
DoD can now obtain relevant data not apply to this rule because this final
Turkey (photovoltaic devices from other
through peer reviews and other sources, rule does not constitute a significant
qualifying countries to be listed in
such as the Contract Business Analysis DFARS revision within the meaning of
paragraph (d)(6)(i) of this provision as
Repository (CBAR). This final rule FAR 1.501–1, and 41 U.S.C. 1707 does
designated country photovoltaic
removes the remaining statement about not require publication for public
devices). [Offeror to specify country of
the statutory requirements of section comment.
origin__.]
814. Retention of this statement in the
(End of provision) DFARS is no longer necessary, because V. Paperwork Reduction Act
[FR Doc. 2015–29551 Filed 11–19–15; 8:45 am] there is no longer a need to collect data
directly from the contracting officer or The rule does not contain any
BILLING CODE 5001–06–P
other members of the contracting information collection requirements that
community in the military departments require the approval of the Office of
DEPARTMENT OF DEFENSE or defense agencies. Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
Defense Acquisition Regulations II. Publication of This Final Rule for chapter 35).
System Public Comment Is Not Required by
Statute List of Subjects in 48 CFR Part 216
48 CFR Part 216 The statute that applies to the Government procurement.
[Docket DARS–2015–0048] publication of the Federal Acquisition
Regulation (FAR) is 41 U.S.C. 1707 Jennifer L. Hawes,
RIN 0750–AI73 entitled ‘‘Publication of Proposed Editor, Defense Acquisition Regulations
Regulations.’’ Paragraph (a)(1) of the System.
Defense Federal Acquisition statute requires that a procurement
Regulation Supplement: Eliminate Data policy, regulation, procedure or form Therefore, 48 CFR part 216 is
Collection Requirement (DFARS Case (including an amendment or amended as follows:
2015–D031) modification thereof) must be published
for public comment if it relates to the PART 216—TYPES OF CONTRACTS
AGENCY: Defense Acquisition
Regulations System, Department of expenditure of appropriated funds, and
Defense (DoD). has either a significant effect beyond the ■ 1. The authority citation for 48 CFR
internal operating procedures of the part 216 continues to read as follows:
ACTION: Final rule.
agency issuing the policy, regulation, Authority: 41 U.S.C. 1303 and 48 CFR
SUMMARY: DoD is issuing a final rule procedure or form, or has a significant chapter 1.
amending the Defense Federal cost or administrative impact on
tkelley on DSK3SPTVN1PROD with RULES
Acquisition Regulation Supplement contractors or offerors. This final rule is 216.401–70 [Removed]
(DFARS) to eliminate a requirement for not required to be published for public
■ 2. Remove section 216.401–70.
military departments and defense comment, because it deletes an
agencies to collect and report relevant unnecessary statement from the DFARS. [FR Doc. 2015–29556 Filed 11–19–15; 8:45 am]
data on award and incentive fees paid This revision has no significant effect BILLING CODE 5001–06–P
to contractors. beyond the internal operating
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Document Created: 2015-12-14 13:59:11
Document Modified: 2015-12-14 13:59:11
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | Effective November 20, 2015. | |
| Contact | Ms. Amy G. Williams, telephone 571- 372-6106; facsimile 571-372-6101. | |
| FR Citation | 80 FR 72599 | |
| RIN Number | 0750-AI41 | |
| CFR Citation | 48
CFR
212 48 CFR 225 48 CFR 252 |
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