[Federal Register Volume 75, Number 194 (Thursday, October 7, 2010)]
[Proposed Rules]
[Pages 62069-62070]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-25266]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 25

[FAR Case 2009-041; Docket 2010-0105, Sequence 1]
RIN 9000-AL65


Federal Acquisition Regulation; Sudan Waiver Process

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

ACTION: Proposed rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (the Councils) are proposing to amend 
the Federal Acquisition Regulation (FAR) to revise section 25.702, 
Prohibition on contracting with entities that conduct restricted 
business operations in Sudan, to add specific criteria that an agency 
must address in a waiver request and a waiver consultation process 
regarding foreign policy aspects of the waiver request for 
consultations. This information will be provided, in a waiver request, 
to the President or his appointed designee for consideration on whether 
the prohibition on awarding a contract to a contractor that conducts 
business in Sudan should be waived.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat on or before December 6, 2010 to be considered 
in the formulation of a final rule.

ADDRESSES: Submit comments identified by FAR Case 2009-041 by any of 
the following methods:
     Regulations.gov: http://www.regulations.gov.
    Submit comments via the Federal eRulemaking portal by inputting 
``FAR Case 2009-041'' under the heading ``Enter Keyword or ID'' and 
selecting ``Search.'' Select the link ``Submit a Comment'' that 
corresponds with ``FAR Case 2009-041.'' Follow the instructions 
provided at the ``Submit a Comment'' screen. Please include your name, 
company name (if any), and ``FAR Case 2009-041'' on your attached 
document.
     Fax: 202-501-4067.
     Mail: General Services Administration, Regulatory 
Secretariat (MVCB), 1800 F Street, NW., Room 4041, ATTN: Hada Flowers, 
Washington, DC 20405.
    Instructions: Please submit comments only and cite FAR Case 2009-
041, 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 provided.

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact 
Mr. Ernest Woodson, Procurement Analyst, at (202) 501-3775. For 
information pertaining to status or publication schedules, contact the 
Regulatory Secretariat at (202) 501-4755. Please cite FAR Case 2009-
041.

SUPPLEMENTARY INFORMATION: 

A. Background

    The Civilian Agency Acquisition Council and the Defense Acquisition 
Regulations Council (Councils) published a final rule, FAR Case 2008-
004, Prohibition on Restricted Business Operations in Sudan and Imports 
from Burma, in the Federal Register at 74 FR 40463 on August 11, 2009, 
amending the FAR to implement section 6 of the Sudan Accountability and 
Divestment Act of 2007, Public Law 110-174. Section 6 requires 
certification in each contract entered into by an Executive Agency that 
the contractor does not conduct certain business operations in Sudan as 
described in the act. Additionally, section 6 establishes the 
President's authority to waive this requirement, on a case-by-case 
basis, if the President determines and certifies in writing to the 
appropriate congressional committees that it is in the national 
interest to do so.
    Section 6 of the Sudan Accountability and Divestment Act of 2007 
was implemented in the FAR but did not include a waiver consultation 
process and specific criteria for the waiver request. With the addition 
of these changes, the FAR will provide consistent guidance on specific 
criteria that must be included in the waiver request for consideration; 
and establish a consultation process to ensure all waiver request are 
reviewed by the appropriate agency experts.
    The Councils propose to amend FAR 25.702-4 to add (1) waiver 
criteria that agencies must address when requesting a waiver to enter 
into a contract with a firm that conducts restricted business 
operations in Sudan that will include specific criteria for the waiver 
request; and (2) a waiver consultation process that will require all 
requests to be submitted through the Office of Federal Procurement 
Policy (OFPP) to the President or his appointed designee for 
consideration. OFPP will be required to consult with the President's 
National Security Council, Office of African Affairs and the Department 
of State Sudan Office and Sanctions Office on foreign policy matters 
relevant to the waiver request and include this information in the 
recommendation to the President. All waiver requests must clearly 
explain why the product or service must be procured from the offeror 
for which the waiver is requested and why it is in the national 
interest to waive the statutory prohibition against contracting with an 
offeror that conducts prohibited business operations in Sudan. In 
addition, the waiver request must address any humanitarian efforts 
engaged in by the offeror, the human rights impact of doing business 
with that offeror, and the extent of the offeror's business operations 
in Sudan. All of the information required to be included in the waiver 
request will be considered in determining whether to recommend that the 
President waive the prohibition.
    Additionally, individual and class waiver requests will be 
considered for a specific contract or class of contracts, as long as 
the waiver request has been reviewed and cleared by the agency head 
prior to submitting it to OFPP and the request includes the appropriate 
waiver information specified at FAR 25.702-4(c)(3). However, a waiver 
will not be issued for an indefinite period of time, and may be 
cancelled, if warranted.
    In accordance with section 6 of the Sudan Accountability and 
Divestment Act of 2007, the Administrator of Federal Procurement Policy 
is required to submit semiannual reports, on April 15th and October 
15th, to Congress, on waivers approved by the President. OFPP has 
submitted two reports to Congress since the publication of the first 
rule, FAR Case 2008-004, Prohibition on Restricted Business Operations 
in Sudan and Imports from Burma, but is proposing to include this 
reporting requirement in the FAR to emphasize this waiver process and 
reporting requirement.
    This is a significant regulatory action and, therefore, was subject 
to review under section 6 of Executive Order 12866, Regulatory Planning 
and Review,

[[Page 62070]]

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 rule does not impose any additional requirements on small 
businesses. An Initial Regulatory Flexibility Analysis has, therefore, 
not been performed. The Councils invite comments from small business 
concerns and other interested parties on the expected impact of this 
rule on small entities.
    The Councils will also consider comments from small entities 
concerning the existing regulations in parts 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 (FAR Case 2000-041) in 
all correspondence.

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: September 28, 2010.
Edward Loeb,
Director, Acquisition Policy Division.

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

PART 25--FOREIGN ACQUISITION

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

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

    2. Amend section 25.702-4 by revising paragraph (b), and adding 
paragraphs (c) and (d) to read as follows:


25.702-4  Waiver.

* * * * *
    (b) An agency seeking waiver of the requirement shall submit the 
request through the Administrator of the Office of Federal Procurement 
Policy (OFPP), allowing sufficient time for review and approval. Upon 
receipt of the waiver request, OFPP shall consult with the President's 
National Security Council, Office of African Affairs, and the 
Department of State Sudan Office and Sanctions Office to assess foreign 
policy aspects of making a national interest recommendation.
    (c) Agencies may request a waiver on an individual or class basis; 
however, waivers are not indefinite and can be cancelled if warranted.
    (1) A class waiver may be requested only when the class of supplies 
is not available from any other source and it is in the national 
interest.
    (2) Prior to submitting the waiver request, the request must be 
reviewed and cleared by the agency head.
    (3) All waiver requests must include the following information:
    (i) Agency name, complete mailing address, and point of contact 
name, telephone number, and e-mail address.
    (ii) Offeror's name, complete mailing address, and point of contact 
name, telephone number, and e-mail address.
    (iii) Description/nature of product or service.
    (iv) The total cost and length of the contract.
    (v) Justification, with market research demonstrating that no other 
offeror can provide the product or service and stating why the product 
or service must be procured from this offeror, as well as why it is in 
the national interest for the President to waive the prohibition on 
contracting with this offeror that conducts restricted business 
operations in Sudan, including consideration of foreign policy aspects 
identified in consultation(s) pursuant to 25.702-4(b).
    (vi) Documentation regarding the offeror's past performance and 
integrity (see the Past Performance Information Retrieval System 
(including the Federal Awardee Performance Information and Integrity 
System at http://www.ppirs.gov) and any other relevant information).
    (vii) Information regarding the offeror's relationship or 
connection with other firms that conduct prohibited business operations 
in Sudan.
    (viii) Any humanitarian efforts engaged in by the offeror, the 
human rights impact of doing business with the offeror for which the 
waiver is requested, and the extent of the offeror's business 
operations in Sudan.
    (d) The consultation in 25.702-4(b) and the information in 25.702-
4(c)(3) will be considered in determining whether to recommend that the 
President waive the requirement of subsection 25.702-2. In accordance 
with section 6(c) of the Sudan Accountability and Divestment Act of 
2007, OFPP will submit a report to Congress, semiannually on April 15th 
and October 15th, on the waivers granted.

[FR Doc. 2010-25266 Filed 10-6-10; 8:45 am]
BILLING CODE 6820-EP-P