81 FR 17053 - Defense Federal Acquisition Regulation Supplement: Treatment of Interagency and State and Local Purchases (DFARS Case 2016-D009)

DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System

Federal Register Volume 81, Issue 58 (March 25, 2016)

Page Range		17053-17055
FR Document		2016-06727

DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act for Fiscal Year 2016 to provide that contracts executed by DoD as a result of the transfer of contracts from the General Services Administration, or for which DoD serves as an item manager for products on behalf of the General Services Administration, shall not be subject to certain domestic source restrictions, to the extent that such contracts are for the purchase of products by other Federal agencies or State or local governments.

Federal Register, Volume 81 Issue 58 (Friday, March 25, 2016)

[Federal Register Volume 81, Number 58 (Friday, March 25, 2016)]
[Proposed Rules]
[Pages 17053-17055]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-06727]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 225

[Docket DARS-2016-0007]
RIN 0750-AI88


Defense Federal Acquisition Regulation Supplement: Treatment of 
Interagency and State and Local Purchases (DFARS Case 2016-D009)

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

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to implement a section of the National 
Defense Authorization Act for Fiscal Year 2016 to provide that 
contracts executed by DoD as a result of the transfer of contracts from 
the General Services Administration, or for which DoD serves as an item 
manager for products on behalf of the General Services Administration, 
shall not be subject to certain domestic source restrictions, to the 
extent that such contracts are for the purchase of products by other 
Federal agencies or State or local governments.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before May 24, 2016, to be considered in 
the formation of a final rule.

ADDRESSES: Submit comments identified by DFARS Case 2016-D009, using 
any of the following methods:
    [cir] Regulations.gov: http://www.regulations.gov. Submit comments 
via the Federal eRulemaking portal by entering ``DFARS Case 2016-D009'' 
under the heading ``Enter keyword or ID'' and selecting ``Search.'' 
Select the link ``Submit a Comment'' that corresponds with ``DFARS Case 
2016-D009.'' Follow the instructions provided at the ``Submit a 
Comment'' screen. Please include your name, company name (if any), and 
``DFARS Case 2016-D009'' on your attached document.
    [cir] Email: [email protected]. Include DFARS Case 2016-D009 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, telephone 571-
372-6106.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD is proposing to amend the DFARS to implement section 897 of the 
National Defense Authorization Act for Fiscal Year 2016 (Pub. L. 114-
92). Section 897 entitled ``Treatment of Interagency and State and 
Local Purchases'' provides that contracts executed by DoD as a result 
of the

[[Page 17054]]

transfer of contracts from the General Services Administration (GSA) or 
for which DoD serves as an item manager for products on behalf of GSA 
shall not be subject to the requirements under 10 U.S.C. chapter 148 
(National Defense Technology and Industrial Base, Defense Investment, 
and Defense Conversion), to the extent that such contracts are for the 
purchase of products by other Federal agencies or State or local 
governments.
    10 U.S.C. chapter 148 includes domestic source restrictions at 10 
U.S.C. 2533a (Berry Amendment), 10 U.S.C. 2533b (specialty metals), and 
10 U.S.C. 2534 (miscellaneous domestic source restrictions), which are 
implemented in DFARS subpart 225.70 as follows:
     225.7002 (Berry Amendment).
     225.7003 (specialty metals purchased directly by DoD or 
aircraft, missile or space systems, ships, tank or automotive items, 
weapon systems, or ammunition containing specialty metals).
     225.7004 (buses).
     225.7005 (certain chemical weapons antidotes).
     225.7006 (air circuit breakers for naval vessels).
     225.7010 (certain naval vessel components).

II. Discussion and Analysis

    DoD reviewed the domestic source restrictions in 10 U.S.C. chapter 
148 as implemented in DFARS subpart 225.70. DoD proposes to amend DFARS 
225.7002-2, which implements 10 U.S.C. 2533a (Berry Amendment), to 
include an exception in a new paragraph (o) to implement section 897.
    DoD does not propose to amend DFARS 225.7003, which implements 10 
U.S.C. 2533b (specialty metals), because these restrictions apply to 
direct purchase of specialty metals by DoD or acquisition of items 
(e.g., aircraft or missiles containing specialty metals or components 
for naval vessels) that are of a military nature that GSA does not 
contract for and that another Federal agency or a State or local 
government would not be purchasing. Note that ``automotive item'' is 
defined at DFARS 225.7003 to cover military transport tactical vehicles 
and does not include commercially available off-the-shelf vehicles, 
construction equipment, or other self-propelled equipment such as 
cranes or aircraft ground support.
    DoD also does not propose to amend DFARS 225.7004 (buses), 225.7005 
(certain chemical weapons antidotes), 225.7006 (air circuit breakers 
for naval vessels), or 225.7010 (certain naval vessel components), 
which implement 10 U.S.C. 2534. With the exception of buses, these are 
items for which GSA does not contract. Furthermore, 10 U.S.C. 2534(f) 
sets forth a principle of statutory construction, which requires a 
subsequent law to specifically reference 10 U.S.C. 2534 in order to 
modify it. Section 897 does not specifically reference 10 U.S.C. 2534, 
so there is not the required indication that section 897 is authorizing 
a modification to 10 U.S.C. 2534. Applying section 897 to 10 U.S.C. 
2534, while not directly changing the language of 10 U.S.C. 2534, would 
change the way DoD currently applies 10 U.S.C. 2534.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold and for Commercial Items, Including Commercially Available 
Off-the-Shelf Items

    This case does not add any new provisions or clauses or impact any 
existing provisions or clauses.

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

    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. Nevertheless, an 
initial regulatory flexibility analysis has been performed and is 
summarized as follows:
    This rule implements section 897 of the National Defense 
Authorization Act for Fiscal Year 2016. The objective of this rule is 
to eliminate the domestic source restrictions of 10 U.S.C. chapter 148 
when contracts executed by DoD as a result of the transfer of contracts 
from the General Services Administration (GSA) or for which DoD serves 
as an item manager for products on behalf of GSA, to the extent that 
such contracts are for the purchase of products by other Federal 
agencies or State or local governments.
    DoD does not anticipate frequent application of this rule. The rule 
removes a limitation on potential sources for the specified items. In 
the rare instance in which the circumstances of the statute apply, it 
is possible that an item could be acquired from a foreign source, 
rather than a domestic source, which could potentially be a small 
business. It is not possible to estimate the number of small entities 
that may be affected, because it is unknown the extent to which the 
given circumstances may occur.
    There are no projected reporting, recordkeeping, or other 
compliance requirements.
    The rule does not duplicate, overlap, or conflict with any other 
Federal rules.
    DoD has not identified any alternatives which would minimize any 
economic impact on small entities and still meet the requirements of 
the statute.
    DoD invites comments from small business concerns and other 
interested parties on the expected impact of this rule on small 
entities.
    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 2016-D009), in 
correspondence.

VI. 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 proposed to be amended as follows:

PART 225--FOREIGN ACQUISITION

0
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.

0
2. Amend section 225.7002-2 by adding paragraph (o) to read as follows:


225.7002-2  Exceptions.

* * * * *
    (o) Acquisitions that are interagency, State, or local purchases 
that are

[[Page 17055]]

executed by DoD as a result of the transfer of contracts from the 
General Services Administration or for which DoD serves as an item 
manager for products on behalf of the General Services Administration. 
According to section 897 of the National Defense Authorization Act for 
Fiscal Year 2016 (Pub. L. 114-92), such contracts shall not be subject 
to requirements under chapter 148 of title 10, United States Code 
(including 10 U.S.C. 2533a), to the extent such contracts are for 
purchases of products by other Federal agencies or State or local 
governments.
[FR Doc. 2016-06727 Filed 3-24-16; 8:45 am]
 BILLING CODE 5001-06-P

17054 Federal Register / Vol. 81, No. 58 / Friday, March 25, 2016 / Proposed Rules

transfer of contracts from the General buses, these are items for which GSA Federal agencies or State or local
Services Administration (GSA) or for does not contract. Furthermore, 10 governments.
which DoD serves as an item manager U.S.C. 2534(f) sets forth a principle of DoD does not anticipate frequent
for products on behalf of GSA shall not statutory construction, which requires a application of this rule. The rule
be subject to the requirements under 10 subsequent law to specifically reference removes a limitation on potential
U.S.C. chapter 148 (National Defense 10 U.S.C. 2534 in order to modify it. sources for the specified items. In the
Technology and Industrial Base, Section 897 does not specifically rare instance in which the
Defense Investment, and Defense reference 10 U.S.C. 2534, so there is not circumstances of the statute apply, it is
Conversion), to the extent that such the required indication that section 897 possible that an item could be acquired
contracts are for the purchase of is authorizing a modification to 10 from a foreign source, rather than a
products by other Federal agencies or U.S.C. 2534. Applying section 897 to 10 domestic source, which could
State or local governments. U.S.C. 2534, while not directly changing potentially be a small business. It is not
10 U.S.C. chapter 148 includes the language of 10 U.S.C. 2534, would possible to estimate the number of small
domestic source restrictions at 10 U.S.C. change the way DoD currently applies entities that may be affected, because it
2533a (Berry Amendment), 10 U.S.C. 10 U.S.C. 2534. is unknown the extent to which the
2533b (specialty metals), and 10 U.S.C. given circumstances may occur.
2534 (miscellaneous domestic source III. Applicability to Contracts at or There are no projected reporting,
restrictions), which are implemented in Below the Simplified Acquisition recordkeeping, or other compliance
DFARS subpart 225.70 as follows: Threshold and for Commercial Items, requirements.
• 225.7002 (Berry Amendment). Including Commercially Available Off- The rule does not duplicate, overlap,
• 225.7003 (specialty metals the-Shelf Items or conflict with any other Federal rules.
purchased directly by DoD or aircraft, This case does not add any new DoD has not identified any
missile or space systems, ships, tank or provisions or clauses or impact any alternatives which would minimize any
automotive items, weapon systems, or existing provisions or clauses. economic impact on small entities and
ammunition containing specialty still meet the requirements of the
metals). IV. Executive Orders 12866 and 13563 statute.
• 225.7004 (buses). Executive Orders (E.O.s) 12866 and DoD invites comments from small
• 225.7005 (certain chemical 13563 direct agencies to assess all costs business concerns and other interested
weapons antidotes). and benefits of available regulatory parties on the expected impact of this
• 225.7006 (air circuit breakers for rule on small entities.
alternatives and, if regulation is
naval vessels). DoD will also consider comments
necessary, to select regulatory
• 225.7010 (certain naval vessel from small entities concerning the
approaches that maximize net benefits
components). existing regulations in subparts affected
(including potential economic,
II. Discussion and Analysis environmental, public health and safety by this rule in accordance with 5 U.S.C.
effects, distributive impacts, and 610. Interested parties must submit such
DoD reviewed the domestic source
equity). E.O. 13563 emphasizes the comments separately and should cite 5
restrictions in 10 U.S.C. chapter 148 as
importance of quantifying both costs U.S.C 610 (DFARS Case 2016–D009), in
implemented in DFARS subpart 225.70.
and benefits, of reducing costs, of correspondence.
DoD proposes to amend DFARS
225.7002–2, which implements 10 harmonizing rules, and of promoting VI. Paperwork Reduction Act
U.S.C. 2533a (Berry Amendment), to flexibility. This is not a significant
regulatory action and, therefore, was not The rule does not contain any
include an exception in a new information collection requirements that
paragraph (o) to implement section 897. subject to review under section 6(b) of
E.O. 12866, Regulatory Planning and require the approval of the Office of
DoD does not propose to amend Management and Budget under the
DFARS 225.7003, which implements 10 Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C. Paperwork Reduction Act (44 U.S.C.
U.S.C. 2533b (specialty metals), because chapter 35).
these restrictions apply to direct 804.
purchase of specialty metals by DoD or V. Regulatory Flexibility Act List of Subjects in 48 CFR Part 225
acquisition of items (e.g., aircraft or Government procurement.
missiles containing specialty metals or DoD does not expect this rule to have
components for naval vessels) that are of a significant economic impact on a Jennifer L. Hawes,
a military nature that GSA does not substantial number of small entities Editor, Defense Acquisition Regulations
contract for and that another Federal within the meaning of the Regulatory System.
agency or a State or local government Flexibility Act, 5 U.S.C. 601, et seq. Therefore, 48 CFR part 225 is
would not be purchasing. Note that Nevertheless, an initial regulatory proposed to be amended as follows:
‘‘automotive item’’ is defined at DFARS flexibility analysis has been performed
225.7003 to cover military transport and is summarized as follows: PART 225—FOREIGN ACQUISITION
tactical vehicles and does not include This rule implements section 897 of
commercially available off-the-shelf the National Defense Authorization Act ■ 1. The authority citation for 48 CFR
vehicles, construction equipment, or for Fiscal Year 2016. The objective of part 225 continues to read as follows:
srobinson on DSK5SPTVN1PROD with PROPOSALS2

other self-propelled equipment such as this rule is to eliminate the domestic Authority: 41 U.S.C. 1303 and 48 CFR
cranes or aircraft ground support. source restrictions of 10 U.S.C. chapter chapter 1.
DoD also does not propose to amend 148 when contracts executed by DoD as ■ 2. Amend section 225.7002–2 by
DFARS 225.7004 (buses), 225.7005 a result of the transfer of contracts from adding paragraph (o) to read as follows:
(certain chemical weapons antidotes), the General Services Administration
225.7006 (air circuit breakers for naval (GSA) or for which DoD serves as an 225.7002–2 Exceptions.
vessels), or 225.7010 (certain naval item manager for products on behalf of * * * * *
vessel components), which implement GSA, to the extent that such contracts (o) Acquisitions that are interagency,
10 U.S.C. 2534. With the exception of are for the purchase of products by other State, or local purchases that are

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Document Created: 2018-02-02 15:17:42
Document Modified: 2018-02-02 15:17:42

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		Proposed Rules
Action		Proposed rule.
Dates		Comments on the proposed rule should be submitted in writing to
Contact		Ms. Amy G. Williams, telephone 571- 372-6106.
FR Citation		81 FR 17053
RIN Number		0750-AI88

81 FR 17053 - Defense Federal Acquisition Regulation Supplement: Treatment of Interagency and State and Local Purchases (DFARS Case 2016-D009)

DEPARTMENT OF DEFENSEDefense Acquisition Regulations System

Federal Register Volume 81, Issue 58 (March 25, 2016)

DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System