81 FR 17047 - Defense Federal Acquisition Regulation Supplement: Buy American and Balance of Payments Program-Clause Prescription (DFARS Case 2015-D037)
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System Federal Register Volume 81, Issue 58 (March 25, 2016)
Defense Acquisition Regulations System
Federal Register Volume 81, Issue 58 (March 25, 2016)
| Page Range | 17047-17048 | |
| FR Document | 2016-06723 |
[Federal Register Volume 81, Number 58 (Friday, March 25, 2016)] [Rules and Regulations] [Pages 17047-17048] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-06723] ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Part 225 [Docket DARS-2015-0053] RIN 0750-AI77 Defense Federal Acquisition Regulation Supplement: Buy American and Balance of Payments Program--Clause Prescription (DFARS Case 2015- D037) AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to clarify how the clause prescription addresses applicability when an exception to the Buy American statute or Balance of Payments Program applies. DATES: Effective March 25, 2016. FOR FURTHER INFORMATION CONTACT: Mr. Christopher Stiller, telephone 571-372-6176. SUPPLEMENTARY INFORMATION: I. Background DoD published a proposed rule in the Federal Register at 80 FR 72672 on November 20, 2015, to revise the DFARS to clarify when it is appropriate to omit DFARS clause 252.225-7001 with regard to exceptions to the Buy American statute and Balance of Payment Program. There were no public comments submitted in response to the proposed rule. There are no changes from the proposed rule made in the final rule. II. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Off-the-Shelf Items The clause at DFARS 252.225-7001, Buy American Act and Balance of Payments Program, applies to acquisitions at or below the simplified acquisition threshold and for commercial items, including commercially available off-the-shelf items. This rule merely clarifies when it is appropriate to omit DFARS clause 252.225-7001 in accordance with existing exceptions to the Buy American statute and Balance of Payment Program. 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 (FRFA) has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. The FRFA is summarized as follows: [[Page 17048]] This rule is necessary to ensure that contracting officers do not mistakenly omit the clause at DFARS 252.225-7001, Buy American and Balance of Payments Program, when it is appropriate for inclusion in a solicitation and contract. The objective of the rule is to clarify the prescription for use of DFARS clause 252.225-7001 to state that the clause does not apply when the acquisition is for supplies for use either within the United States and an exception to the Buy American statute applies, or outside the United States and an exception to the Balance of Payments Program applies. There were no significant issues raised by the public in response to the initial regulatory flexibility analysis. This rule will apply to small entities that are awarded contracts that contain DFARS clause 252.225-7001; however, there is no impact on these small entities because the rule merely clarifies the clause prescription to correctly address applicability when an exception to the Buy American statute or Balance of Payments Program applies. The rule does not impose any additional reporting, recordkeeping, or other compliance requirements. No alternatives were identified that will accomplish the objectives of the rule. IV. 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 Part 225 Government procurement. Jennifer L. Hawes, Editor, Defense Acquisition Regulations System. Therefore, 48 CFR part 225 is amended as follows: PART 225--FOREIGN ACQUISITION 0 1. The authority citation for part 225 continues to read as follows: Authority: 41 U.S.C. 1303 and 48 CFR chapter 1. 225.1100 [Amended] 0 2. In section 225.1100, remove ``Subparts'' in two places and add ``subparts'' in their place. 0 3. Amend section 225.1101 by-- 0 a. Revising paragraph (2)(i)(C); 0 b. Redesignating paragraphs (2)(i)(D) and (E) as paragraphs (2)(i)(E) and (F); and 0 c. Adding a new paragraph (2)(i)(D). The revision and addition read as follows: 225.1101 Acquisition of supplies. * * * * * (2)(i) * * * (C) The acquisition is for supplies for use within the United States and an exception to the Buy American statute applies, e.g., nonavailability or public interest (see FAR 25.103 and 225.103); (D) The acquisition is for supplies for use outside the United States and an exception to the Balance of Payments Program applies (see 225.7501); * * * * * [FR Doc. 2016-06723 Filed 3-24-16; 8:45 am] BILLING CODE 5001-06-P
![Federal Register / Vol. 81, No. 58 / Friday, March 25, 2016 / Rules and Regulations 17047
count toward its small disadvantaged (3) If the competition is to be limited to statute or Balance of Payments Program
business goal, subcontracts awarded to— 8(a) concerns within one or more specific applies.
(1) Protege firms which are qualified SBA regions or districts, then the offeror’s
DATES: Effective March 25, 2016.
organizations employing the severely approved business plan is on the file and
disabled; and serviced by llll. [Contracting Officer FOR FURTHER INFORMATION CONTACT: Mr.
(2) Former protege firms that meet the completes by inserting the appropriate SBA Christopher Stiller, telephone 571–372–
criteria in section 831(g)(4) of Public Law District and/or Regional Office(s) as 6176.
101–510. identified by the SBA.] SUPPLEMENTARY INFORMATION:
(d) The master plan is approved by the (b) By submission of its offer, the Offeror
Contractor’s cognizant contract represents that it meets all of the criteria set I. Background
administration activity. forth in paragraph (a) of this clause. DoD published a proposed rule in the
(e) In those subcontracting plans which (c) Any award resulting from this
specifically identify small businesses, the Federal Register at 80 FR 72672 on
solicitation will be made directly by the
Contractor shall notify the Administrative November 20, 2015, to revise the
Contracting Officer to the successful 8(a)
Contracting Officer of any substitutions of offeror selected through the evaluation DFARS to clarify when it is appropriate
firms that are not small business firms, for criteria set forth in this solicitation. to omit DFARS clause 252.225–7001
the small business firms specifically (d)(1) Agreement. A small business with regard to exceptions to the Buy
identified in the subcontracting plan. concern submitting an offer in its own name American statute and Balance of
Notifications shall be in writing and shall shall furnish, in performing the contract, Payment Program. There were no public
occur within a reasonable period of time after only end items manufactured or produced by comments submitted in response to the
award of the subcontract. Contractor- small business concerns in the United States
specified formats shall be acceptable. proposed rule. There are no changes
or its outlying areas, unless— from the proposed rule made in the final
(f)(1) For DoD, the Contractor shall submit
(i) The SBA has determined that there are rule.
reports in eSRS as follows:
no small business manufacturers or
(i) The Standard Form 294, Subcontracting
Report for Individual Contracts, shall be
processors in the Federal market place in II. Applicability to Contracts at or
submitted in accordance with the accordance with FAR 19.502–2(c); Below the Simplified Acquisition
instructions on that form. (ii) The acquisition is processed under Threshold and for Commercial Items,
(ii) An SSR for other than a commercial simplified acquisition procedures and the Including Commercially Available Off-
subcontracting plan, or construction and total amount of this contract does not exceed the-Shelf Items
related maintenance repair contracts, shall be $25,000, in which case a small business
submitted in eSRS to the department or concern may furnish the product of any The clause at DFARS 252.225–7001,
agency within DoD that administers the domestic firm; or Buy American Act and Balance of
majority of the Contractor’s individual (iii) The acquisition is a construction or Payments Program, applies to
subcontracting plans. An example would be service contract. acquisitions at or below the simplified
Defense Finance and Accounting Service or (2) The llll [insert name of SBA’s acquisition threshold and for
Missile Defense Agency. contractor] will notify the llll [insert commercial items, including
(2) For DoD, the authority to acknowledge name of contracting agency] Contracting
commercially available off-the-shelf
receipt or reject reports in eSRS is as follows: Officer in writing immediately upon entering
an agreement (either oral or written) to items. This rule merely clarifies when it
(i) Except as provided in paragraph (f)(2)(ii)
of this clause, the authority to acknowledge transfer all or part of its stock or other is appropriate to omit DFARS clause
receipt or reject SSRs in eSRS resides with ownership interest to any other party. 252.225–7001 in accordance with
the SSR Coordinator at the department or existing exceptions to the Buy American
agency that administers the majority of the (End of clause) statute and Balance of Payment
Contractor’s individual subcontracting plans. [FR Doc. 2016–06722 Filed 3–24–16; 8:45 am] Program.
(ii) The authority to acknowledge receipt or BILLING CODE 5001–06–P
reject SSRs for construction and related III. Executive Orders 12866 and 13563
maintenance and repair contracts resides Executive Orders (E.O.s) 12866 and
with the SSR Coordinator for each DEPARTMENT OF DEFENSE 13563 direct agencies to assess all costs
department or agency.
and benefits of available regulatory
(End of clause) Defense Acquisition Regulations alternatives and, if regulation is
System necessary, to select regulatory
■ 6. Revise section 252.219–7010 to
read as follows: approaches that maximize net benefits
48 CFR Part 225 (including potential economic,
252.219–7010 Notification of Competition [Docket DARS–2015–0053] environmental, public health and safety
Limited to Eligible 8(a) Concerns— effects, distributive impacts, and
Partnership Agreement RIN 0750–AI77
equity). E.O. 13563 emphasizes the
As prescribed in 219.811–3(2), use the importance of quantifying both costs
following clause: Defense Federal Acquisition
Regulation Supplement: Buy American and benefits, of reducing costs, of
NOTIFICATION OF COMPETITION and Balance of Payments Program— harmonizing rules, and of promoting
LIMITED TO ELIGIBLE 8(A) CONCERNS— Clause Prescription (DFARS Case flexibility. This is not a significant
PARTNERSHIP AGREEMENT (MAR 2016)
2015–D037) regulatory action and, therefore, was not
(a) Offers are solicited only from small subject to review under section 6(b) of
business concerns expressly certified by the AGENCY: Defense Acquisition E.O. 12866, Regulatory Planning and
Small Business Administration (SBA) for Regulations System, Department of Review, dated September 30, 1993. This
participation in the SBA’s 8(a) Program and Defense (DoD). rule is not a major rule under 5 U.S.C.
which meet the following criteria at the time 804.
ACTION: Final rule.
srobinson on DSK5SPTVN1PROD with RULES3
of submission of offer:
(1) The Offeror is in conformance with the SUMMARY: DoD is issuing a final rule IV. Regulatory Flexibility Act
8(a) support limitation set forth in its
approved business plan.
amending the Defense Federal A final regulatory flexibility analysis
(2) The Offeror is in conformance with the Acquisition Regulation Supplement (FRFA) has been prepared consistent
Business Activity Targets set forth in its (DFARS) to clarify how the clause with the Regulatory Flexibility Act, 5
approved business plan or any remedial prescription addresses applicability U.S.C. 601, et seq. The FRFA is
action directed by the SBA. when an exception to the Buy American summarized as follows:
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![17048 Federal Register / Vol. 81, No. 58 / Friday, March 25, 2016 / Rules and Regulations
This rule is necessary to ensure that The revision and addition read as Regulation (FAR) is 41 U.S.C. 1707
contracting officers do not mistakenly follows: entitled ‘‘Publication of proposed
omit the clause at DFARS 252.225– regulations.’’ Paragraph (a)(1) of the
225.1101 Acquisition of supplies.
7001, Buy American and Balance of statute requires that a procurement
Payments Program, when it is * * * * * policy, regulation, procedure or form
appropriate for inclusion in a (2)(i) * * *
(C) The acquisition is for supplies for (including an amendment or
solicitation and contract. The objective modification thereof) must be published
of the rule is to clarify the prescription use within the United States and an
exception to the Buy American statute for public comment if it relates to the
for use of DFARS clause 252.225–7001 expenditure of appropriated funds, and
to state that the clause does not apply applies, e.g., nonavailability or public
interest (see FAR 25.103 and 225.103); has either a significant effect beyond the
when the acquisition is for supplies for internal operating procedures of the
(D) The acquisition is for supplies for
use either within the United States and agency issuing the policy, regulation,
use outside the United States and an
an exception to the Buy American
exception to the Balance of Payments procedure or form, or has a significant
statute applies, or outside the United
Program applies (see 225.7501); cost or administrative impact on
States and an exception to the Balance
of Payments Program applies. * * * * * contractors or offerors. This final rule is
There were no significant issues [FR Doc. 2016–06723 Filed 3–24–16; 8:45 am] not required to be published for public
raised by the public in response to the BILLING CODE 5001–06–P comment, because it merely removes
initial regulatory flexibility analysis. obsolete text from the DFARS and
This rule will apply to small entities affects only the internal operating
that are awarded contracts that contain DEPARTMENT OF DEFENSE procedures of the Government. As such,
DFARS clause 252.225–7001; however, the change has no significant cost or
Defense Acquisition Regulations
there is no impact on these small System administrative impact on contractors or
entities because the rule merely clarifies offerors.
the clause prescription to correctly 48 CFR Parts 211 and 225
address applicability when an exception III. Executive Orders 12866 and 13563
to the Buy American statute or Balance [Docket DARS–2016–0003]
Executive Orders (E.O.s) 12866 and
of Payments Program applies. RIN 0750–AI85 13563 direct agencies to assess all costs
The rule does not impose any and benefits of available regulatory
additional reporting, recordkeeping, or Defense Federal Acquisition alternatives and, if regulation is
other compliance requirements. Regulation Supplement: Prohibition on necessary, to select regulatory
No alternatives were identified that Requiring the Use of Fire-resistant
will accomplish the objectives of the approaches that maximize net benefits
Rayon Fiber (DFARS Case 2016–D012)
rule. (including potential economic,
AGENCY: Defense Acquisition environmental, public health and safety
IV. Paperwork Reduction Act Regulations System, Department of effects, distributive impacts, and
The rule does not contain any Defense (DoD). equity). E.O. 13563 emphasizes the
information collection requirements that ACTION: Final rule. importance of quantifying both costs
require the approval of the Office of and benefits, of reducing costs, of
SUMMARY: DoD is issuing a final rule
Management and Budget under the harmonizing rules, and of promoting
amending the Defense Federal
Paperwork Reduction Act (44 U.S.C. flexibility. This is not a significant
Acquisition Regulation Supplement
chapter 35). regulatory action and, therefore, was not
(DFARS) to delete obsolete text
List of Subjects in 48 CFR Part 225 requiring the use of fire-resistant rayon subject to review under section 6(b) of
fiber. E.O. 12866, Regulatory Planning and
Government procurement. Review, dated September 30, 1993. This
DATES: Effective March 25, 2016.
Jennifer L. Hawes, rule is not a major rule under 5 U.S.C.
FOR FURTHER INFORMATION CONTACT: Mr.
Editor, Defense Acquisition Regulations 804.
Christopher Stiller, at 571–372–6176.
System.
SUPPLEMENTARY INFORMATION: IV. Regulatory Flexibility Act
Therefore, 48 CFR part 225 is
amended as follows: I. Background The Regulatory Flexibility Act does
DFARS 225.7016 prohibits requiring not apply to this rule because this final
PART 225—FOREIGN ACQUISITION the use of fire-resistant rayon fiber in rule does not constitute a significant
any solicitation issued before January 1, DFARS revision within the meaning of
■ 1. The authority citation for part 225 2015. This prohibition was FAR 1.501–1, and 41 U.S.C. 1707 does
continues to read as follows: implemented in accordance with not require publication for public
Authority: 41 U.S.C. 1303 and 48 CFR section 821 of the National Defense comment.
chapter 1. Authorization Act for Fiscal Year 2011.
Since the effective period imposed by V. Paperwork Reduction Act
225.1100 [Amended]
the statute has passed, the DFARS text The rule does not contain any
■ 2. In section 225.1100, remove is now obsolete. Therefore, this final
‘‘Subparts’’ in two places and add information collection requirements that
rule removes DFARS 225.7016 and the
srobinson on DSK5SPTVN1PROD with RULES3
‘‘subparts’’ in their place. require the approval of the Office of
cross reference at 211.170.
■ 3. Amend section 225.1101 by—
Management and Budget under the
■ a. Revising paragraph (2)(i)(C);
II. Publication of This Final Rule for Paperwork Reduction Act (44 U.S.C.
■ b. Redesignating paragraphs (2)(i)(D)
Public Comment Is Not Required by chapter 35).
and (E) as paragraphs (2)(i)(E) and (F); Statute
and The statute that applies to the
■ c. Adding a new paragraph (2)(i)(D). publication of the Federal Acquisition
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Document Created: 2018-02-02 15:17:35
Document Modified: 2018-02-02 15:17:35
| 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 March 25, 2016. | |
| Contact | Mr. Christopher Stiller, telephone 571-372-6176. | |
| FR Citation | 81 FR 17047 | |
| RIN Number | 0750-AI77 |
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