[Federal Register Volume 77, Number 99 (Tuesday, May 22, 2012)]
[Rules and Regulations]
[Pages 30365-30366]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-11561]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 225

RIN 0750-AH68


Defense Federal Acquisition Regulation Supplement: Report on 
Waiver of Prohibition on Acquisition From Communist Chinese Military 
Companies (DFARS Case 2012-D023)

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

ACTION: Final rule.

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SUMMARY: DoD is issuing a final rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to implement the requirement 
in the National Defense Authorization Act for Fiscal Year 2012 to 
report to the congressional defense committees before issuing a waiver 
of the prohibition on acquisition of United States Munitions List items 
from Communist Chinese military companies.

DATES: Effective Date: May 22, 2012.

FOR FURTHER INFORMATION CONTACT: Ms. Amy G. Williams, Defense 
Acquisition Regulations System, OUSD (AT&L) DPAP/DARS, Room 3B855, 3060 
Defense Pentagon, Washington, DC 20301-3060. Telephone 571-372-6106; 
facsimile 571-372-6094.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 1243 of the National Defense Authorization Act for Fiscal 
Year 2012 (Pub. L. 112-81) requires a report to the congressional 
defense committees not less than 15 days before issuing a waiver to the 
requirements of section 1211 of the National Defense Authorization Act 
for Fiscal Year 2006 (Pub. L. 109-163), implemented at DFARS 225.770, 
Prohibition on acquisition of United States Munitions List items from 
Communist Chinese military companies. The prior requirement was for a 
report within 30 days after the date of the waiver. The final rule also 
adds the requirement to send a copy of the report to Defense 
Procurement and Acquisition Policy.

II. Publication of This Final Rule for Public Comment Is Not Required 
by Statute

    ``Publication of proposed regulations,'' 41 U.S.C. 1707, is the 
statute which applies to the publication of the Federal Acquisition 
Regulation. Paragraph (a)(1) of the statute requires that a procurement 
policy, regulation, procedure, or form (including an amendment or 
modification thereof) must be published for public comment if it 
relates to the expenditure of appropriated funds, and has either a 
significant effect beyond the internal operating procedures of the 
agency issuing the policy, regulation, procedure, or form, or has a 
significant cost or administrative impact on contractors or offerors. 
This final rule is not required to be published for public comment 
because the rule merely alters the timing of the report to the 
congressional defense committees when issuing a waiver of the 
prohibition on acquisition of United States Munitions List items from 
Communist Chinese military companies, adds the requirement to send a 
copy of the report to Defense Procurement and Acquisition Policy, and 
further specifies the required contents of the report. These 
requirements affect only the internal operating procedures of the 
Government.

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

[[Page 30366]]

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

    The Regulatory Flexibility Act does not apply to this rule because 
this final rule does not constitute a significant DFARS revision within 
the meaning of FAR 1.501-1 and 41 U.S.C. 1707 does not require 
publication for public comment.

V. Paperwork Reduction Act

    This final 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.

Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR part 225 is 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.


225.770  [Amended]

0
2. Section 225.770 is amended in the first sentence to remove ``Section 
1211'' and add ``section 1211'' in its place and add ``and section 1243 
of the National Defense Authorization Act for Fiscal Year 2012 (Pub. L. 
112-81)'' at the end of the sentence.

0
3. Section 225.770-5 is amended by revising paragraph (c) to read as 
follows:


225.770-5  Waiver of prohibition.

* * * * *
    (c)(1) The official granting a waiver shall submit a report to the 
congressional defense committees, with a copy to the Director of 
Defense Procurement and Acquisition Policy (see PGI 225.770-5), not 
less than 15 days before issuing the waiver.
    (2) In the report, the official shall--
    (i) Identify the specific reasons for the waiver; and
    (ii) Include recommendations as to what actions may be taken to 
develop alternative sourcing capabilities in the future.

[FR Doc. 2012-11561 Filed 5-21-12; 8:45 am]
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