[Federal Register Volume 78, Number 235 (Friday, December 6, 2013)]
[Proposed Rules]
[Pages 73474-73475]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-29154]



Defense Acquisition Regulations System

48 CFR Part 225

RIN 0750-AI11

Defense Federal Acquisition Regulation Supplement: Domestically 
Nonavailable Articles--Elimination of DoD-Unique List (DFARS Case 2013-

AGENCY: Defense Acquisition Regulations System, Department of Defense 

ACTION: Proposed rule.


SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to remove the DoD-unique list of 
nonavailable articles because these items have been found to be either 
available domestically or are not used by DoD.

DATES: Comment date: Comments on the proposed rule should be submitted 
in writing to the address shown below on or before February 4, 2014, to 
be considered in the formation of a final rule.

ADDRESSES: Submit comments identified by DFARS Case 2013-D020, using 
any of the following methods:
    [cir] Regulations.gov: http://www.regulations.gov. Submit comments 
via the Federal eRulemaking portal by entering ``DFARS Case 2013-D020'' 
under the heading ``Enter keyword or ID'' and selecting ``Search.'' 
Select the link ``Submit a Comment'' that corresponds with ``DFARS Case 
2013-D020.'' Follow the instructions provided at the ``Submit a 
Comment'' screen. Please include your name, company name (if any), and 
``DFARS Case 2013-D020'' on your attached document.
    [cir] Email: [email protected]. Include DFARS Case 2013-D020 in the 
subject line of the message.
    [cir] Fax: 571-372-6094.
    [cir] Mail: Defense Acquisition Regulations System, Attn: Lee 
Renna, OUSD (AT&L) DPAP/DARS, Room 3B855, 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: Lee Renna, Defense Acquisition 
Regulations System, OUSD (AT&L) DPAP/DARS, Room 3B855, 3060 Defense 
Pentagon, Washington, DC 20301-3060. Telephone 571-372-6095; facsimile 


I. Background

    DoD is proposing to revise the DFARS to remove section 225.104 in 
its entirety, because the articles currently listed no longer qualify 
as an exception to the Buy American statute (41 U.S.C. section 
8302(a)), on the basis of their nonavailability.

II. Discussion and Analysis

    DoD has determined that domestic aluminum-clad steel wire available 
in the United States meets the two-part test used at FAR 25.101(a) to 
define a domestic end product, i.e., this item is known to be 
manufactured in the United States and the cost of the domestic 
components in this item exceed 50 percent of the sum total cost of the 
components of the product. In addition, the domestic sources that 
supply this item are capable of meeting 50 percent or more of the total 
U.S. Government and nongovernment demand, as required by FAR 25.103(1).
    Sperm oil is not used by DoD. Sperm oil is obtained from sperm 
whales, which are listed in 50 CFR section 17.11 as an endangered 
species; therefore, in accordance with the Endangered Species Act of 
1973 (16 U.S.C. sections 1531-1544), it is unlawful to engage in any 
activity that could bring harm to these animals. It is possible to 
obtain ``pre-Act'' sperm oil, i.e., sperm oil, including derivatives 
thereof, which was lawfully held within the United States on or before 
December 28, 1973; however, as previously stated, DoD does not use this 
product in any application.

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

    DoD does 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 is removing the DoD-unique list of nonavailable 
articles that have been found to be either available domestically or 
are not used by DoD. Of the two items on the list, aluminum-clad steel 
is produced and available in the United States, and DoD does not use 
sperm oil. However, an initial regulatory flexibility analysis has been 
performed and is summarized as follows:

[[Page 73475]]

    (1) The removal of the nonavailability exception to the Buy 
American statute for aluminum-clad steel wire will neither increase nor 
decrease small businesses' participation in future procurements, 
particularly with regard to set-asides under the Small Business 
Program. This conclusion is primarily attributed to the application of 
the nonmanufacturer rule. Under the nonmanufacturer rule, any small 
business concern proposing to furnish a product that it did not itself 
manufacture must furnish the product of a domestic small business 
manufacturer. However, in industries where the Small Business 
Administration (SBA) has determined there are no domestic small 
business manufacturers, SBA may issue a waiver to the nonmanufacturer 
rule to permit small businesses to provide any firm's product (see FAR 
19.102(f)(7)). Reinstatement of the Buy American statute restrictions 
has no effect on the application of the nonmanufacturer rule.
    (2) With respect to the procurement of sperm oil, DoD does not use 
this product in any application. As such, a discussion of future 
procurement opportunities for this substance is no longer relevant.
    This rule does not add any new information collection requirements. 
The rule does not duplicate, overlap, or conflict with any other 
Federal rules. No alternatives were identified that will accomplish the 
objectives of the rule.
    DoD invites comments from small business concerns and other 
interested parties on the expected impact of this rule on small 
    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 2013-D020), in 

V. Paperwork Reduction Act

    This 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.

Manuel Quinones,
Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR part 225 is proposed to be amended as follows:


1. The authority citation for 48 CFR part 225 continues to read as 

    Authority:  41 U.S.C. 1303 and 48 CFR chapter 1.

225.104  [Removed]

2. Remove section 225.104.

[FR Doc. 2013-29154 Filed 12-5-13; 8:45 am]