[Federal Register Volume 74, Number 151 (Friday, August 7, 2009)]
[Proposed Rules]
[Pages 39597-39598]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-18992]





48 CFR Part 25

[FAR Case 2009-013; Docket 2009-0026; Sequence 1]
RIN 9000-AL40

Federal Acquisition Regulation; FAR Case 2009-013, Nonavailable 

AGENCIES: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Proposed rule.


SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) are proposing to amend the 
Federal Acquisition Regulation (FAR) to revise the list of nonavailable 
articles at FAR 25.104(a). The Councils also request public comment as 
to whether some articles on the list of nonavailable articles are now 
mined, produced, or manufactured in the United States in sufficient and 
reasonably available commercial quantities and of a satisfactory 
quality and should therefore be removed from the list.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat on or before October 6, 2009 to be considered in 
the formulation of a final rule.

ADDRESSES: Submit comments identified by FAR case 2009-013 by any of 
the following methods:
     Regulations.gov: http://www.regulations.gov. Submit 
comments via the Federal eRulemaking portal by inputting ``FAR case 
2009-013'' under the heading ``Comment or Submission''. Select the link 
``Send a Comment or Submission'' that corresponds with FAR Case FAR 
case 2009-013. Follow the instructions provided to complete the 
``Public Comment and Submission Form''. Please include your name, 
company name (if any), and ``FAR case 2009-013'' on your attached 
     Fax: 202-501-4067.
     Mail: General Services Administration, Regulatory 
Secretariat (VPR), 1800 F Street, NW., Room 4041, ATTN: Hada Flowers, 
Washington, DC 20405.
    Instructions: Please submit comments only and cite FAR case FAR 
case 2009-013 in all correspondence related to this case. All comments 
received will be posted without change to http://www.regulations.gov, 
including any personal and/or business confidential information 

FOR FURTHER INFORMATION CONTACT: Ms. Meredith Murphy, Procurement 
Analyst, at (202) 208-6925 for clarification of content. For 
information pertaining to status or publication schedules, contact the 
Regulatory Secretariat at (202) 501-4755. Please cite FAR case FAR case 


A. Background

    The Buy American Act does not apply with respect to articles, 
materials, or supplies if articles, materials, or supplies of the class 
or kind to be acquired, either as end items or components, are not 
mined, produced, or manufactured in the United States in sufficient and 
reasonably available commercial quantities and of a satisfactory 
    A nonavailability determination has been made for the articles 
listed in FAR 25.104(a). As stated at FAR 25.103, this determination 
does not necessarily mean that there is no domestic source for the 
listed items, but that domestic sources can only meet 50 percent or 
less of total U.S. Government and nongovernment demand.
    Before acquisition of an article on the list, the procuring agency 
is responsible for conducting market research appropriate to the 
circumstances, including seeking domestic sources. This applies to 
acquisition of an article as--
    (A) An end product; or
    (B) A significant component (valued at more than 50 percent of the 
value of all the components).
    The class determination for articles on the list does not apply if 
the contracting officer learns at any time before the time designated 
for receipt of bids in sealed bidding or final offers in negotiation 
that an article on the list is available domestically in sufficient and 
reasonably available commercial quantities of a satisfactory quality to 
meet the requirements of the solicitation.
    The head of the contracting activity may make an individual 
determination that an article, material, or supply is not mined, 
produced, or manufactured in the United States in sufficient and 
reasonably available commercial quantities of a satisfactory quality. 
If the contracting officer considers that the nonavailability of an 
article is likely to affect future acquisitions, the contracting 
officer may submit a copy of the determination and supporting

[[Page 39598]]

documentation to the appropriate council identified in FAR 1.201-1, in 
accordance with agency procedures, for possible addition to the list in 
FAR 25.104.

1. Proposed Additions to List

    Accordingly, the Defense Supply Center Philadelphia (DSCP), a field 
activity of the Defense Logistics Agency (DLA), has requested addition 
of yeast (active dry and instant active dry) and canned pineapple. The 
results of DSCP market research are summarized as follows:
    a. Active Dry Yeast and Instant Active Dry Yeasts. Through contacts 
with industry, reviews of customer requirements and an analysis of 
market availability, DSCP has determined that there are no domestic 
sources for active dry yeast and instant active dry yeast. All 
production domestically of active dry yeast and instant active dry 
yeast has ceased with processing shifted to production facilities in 
Mexico and Canada. Active dry yeast and instant active dry yeast are 
key ingredients in the baking of fresh bread and yeast-raised products. 
Contact was made with DSCP's customers, and all have stated that there 
are no acceptable alternatives to the active dry yeast and instant 
active dry yeast, items that are fundamental in the preparation of 
quick breads, white breads, rolls, variety grain breads, specialty 
breads, and yeast-raised products such as donuts and sweet rolls.
    b. Pineapple, Solid Pack, Canned. There are no longer any domestic 
sources for canned pineapple in its various solid pack forms, including 
rings, chunks, tidbits, and crushed. The last domestic source closed 
its only plant in June 2007. Domestic canned pineapple has been 
supplanted by cheaper, imported products. Canned pineapple is used on 
the menus of the U.S. Military Services and as an ingredient in certain 
recipes. While it has been used by the military worldwide, it is 
especially important to customers, such as Navy ships, that need a 
longer shelf life item because they have limited access to fresh 

2. Proposed Revision of List

    A previous FAR Case, 2003-007, added to the list at FAR 25.104(a) 
an article titled ``modacrylic fur ruff'' (69 FR 34241, June 18, 2004). 
This addition was based upon a domestic nonavailability determination 
approved by the Under Secretary of Defense (Acquisition, Technology and 
Logistics) dated December 11, 2002, for modacrylic fiber. Therefore, 
this rule proposes to correct the listing to read ``modacrylic fiber'' 
in lieu of ``modacrylic fur ruff.''

3. Publication of List for Comment

    In addition, FAR 25.104(b) requires publication of the list of 
nonavailable articles for public comment in the Federal Register no 
less frequently than once every five years. The list was last published 
for comment on May 18, 2004 (69 FR 28104) (FAR Case 2004-024). The 
Councils are seeking comment on whether some articles on the list 
should be removed because they are now mined, produced, or manufactured 
in the United States in sufficient and reasonably available commercial 
quantities and of a satisfactory quality. Specific information with 
regard to domestic production capacity in relation to U.S. Government 
and nongovernment demand and the quality of domestically produced items 
would be most helpful in determining whether articles should remain on 
or be removed from the list. A sources-sought notice will also be 
published in FedBizOpps in an effort to increase the awareness of this 
    This is not a significant regulatory action and, therefore, was not 
subject to review under Section 6(b) of Executive Order 12866, 
Regulatory Planning and Review, dated September 30, 1993. This rule is 
not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

    The Councils do not expect this proposed rule to have a significant 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., 
because the Councils do not expect that there are domestic small 
businesses that can fulfill the Government's requirements for the 
proposed added items. An Initial Regulatory Flexibility Analysis has, 
therefore, not been performed. We invite comments from small businesses 
and other interested parties. The Councils will consider comments from 
small entities concerning the affected FAR Part 25 in accordance with 5 
U.S.C. 610. Interested parties must submit such comments separately and 
should cite 5 U.S.C. 601, et seq. (FAR case 2009-013), in 

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the proposed 
changes to the FAR do not impose information collection requirements 
that require the approval of the Office of Management and Budget under 
44 U.S.C. Chapter 35, et seq.

List of Subjects in 48 CFR Part 25

    Government procurement.

    Dated: July 22, 2009.
Al Matera,
Director, Office of Acquisition Policy.

    Therefore, DoD, GSA, and NASA propose amending 48 CFR part 25 as 
set forth below:


    1. The authority citation for 48 CFR part 25 continues to read as 

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

25.104   [Amended]

    2. Amend section 25.104 by removing from paragraph (a) ``Modacrylic 
fur ruff'' and adding ``Modacrylic fiber'' in its place, and by adding, 
in alphabetical order, ``Pineapple, canned'' and ``Yeast, active dry 
and instant active dry''.

[FR Doc. E9-18992 Filed 8-6-09; 8:45 am]