[Federal Register Volume 80, Number 224 (Friday, November 20, 2015)]
[Proposed Rules]
[Pages 72672-72673]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-29558]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 225

[Docket DARS-2015-0053]
RIN 0750-AI77


Defense Federal Acquisition Regulation Supplement: Buy American 
and Balance of Payments Program--Clause Prescription (DFARS Case 2015-
D037)

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

ACTION: Proposed rule

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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to clarify how the clause prescription 
addresses applicability when an exception to the Buy American statute 
or Balance of Payments Program applies.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before January 19, 2016, to be considered 
in the formation of a final rule.

ADDRESSES: Submit comments identified by DFARS Case 2015-D037, using 
any of the following methods:
    [cir] Regulations.gov: http://www.regulations.gov. Submit comments 
via the Federal eRulemaking portal by entering ``DFARS Case 2015-D037'' 
under the heading ``Enter keyword or ID'' and selecting ``Search.'' 
Select the link ``Submit a Comment'' that corresponds with ``DFARS Case 
2015-D037.'' Follow the instructions provided at the ``Submit a 
Comment'' screen. Please include your name, company name (if any), and 
``DFARS Case 2015-D037'' on your attached document.
    [cir] Email: [email protected]. Include DFARS Case 2015-D037 in 
the subject line of the message.
    [cir] Fax: 571-372-6094.
    [cir] Mail: Defense Acquisition Regulations System, Attn: Ms. Tresa 
Sullivan, 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. Tresa Sullivan, telephone 571-372-
6089.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD is proposing to revise the DFARS to clarify when it is 
appropriate to not include DFARS clause 252.225-7001, Buy American and 
Balance of Payments Program, with regard to exceptions to the Buy 
American statute and Balance of Payment Program. The prescription for 
use of DFARS clause 252.225-7001 does not clearly make a distinction 
with regard to when an exception to the Buy American statute or Balance 
of Payments Program applies. As written, procurement offices may 
inaccurately believe that it is permissible to omit the clause if 
either situation occurs. However, the clause is required in 
solicitations and contracts unless (1) the acquisition is for supplies 
for use within the United States and an exception to the Buy American 
statute applies (e.g., nonavailability or public interest), or (2) the 
acquisition is for supplies for use outside the United States and an 
exception to the Balance of Payments Program applies.

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 it applies to internal procedures for Government contracting 
officers. This proposed rule clarifies how clause prescription 
addresses applicability when an exception to the Buy American statute 
or Balance of Payments Program applies. However, an initial regulatory 
flexibility analysis has

[[Page 72673]]

been performed and is summarized as follows:
    The objective of this proposed rule is to clarify the prescription 
for use of DFARS clause 252.225-7001, Buy American and Balance of 
Payments Program, to state that the clause does not apply when (1) the 
acquisition is for supplies for use within the United States and an 
exception to the Buy American statute applies, or (2) the acquisition 
is for supplies for use outside the United States and an exception to 
the Balance of Payments Program applies.
    DoD does not expect this proposed rule to have a significant impact 
on small entities within the meaning of the Regulatory Flexibility Act, 
5 U.S.C. 601, et seq., because it merely clarifies how the clause 
prescription addresses applicability when an exception to the Buy 
American statute or Balance of Payments Program applies.
    This proposed rule does not add any new reporting, recordkeeping, 
and other compliance requirements. The rule does not duplicate, 
overlap, or conflict with any other Federal rules. There are no known 
significant alternatives to the rule.
    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 2015-D037), in 
correspondence.

V. Paperwork Reduction Act

    The rule contains 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); however, these changes to the 
DFARS do not impose additional information collection requirements to 
the paperwork burden previously approved under OMB Control Number 0704-
0229, entitled Defense Federal Acquisition Regulation Supplement Part 
225, Foreign Acquisition and related clauses.

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 part 225 continues to read as follows:

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


225.1100  [Amended]

0
2. Remove ``Subparts'' in two places and add ``subparts'' in their 
place.
0
3. Amend section 225.1101 by--
0
a. Revising paragraph (2)(i)(C);
0
b. Redesignating paragraphs (2)(i)(D) and (E) as paragraphs (2)(i)(E) 
and (F); and
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c. Adding a new paragraph (2)(i)(D).
    The revision and addition read as follows:


225.1101  Acquisition of supplies.

* * * * *
    (2)(i) * * *
    (C) The acquisition is for supplies for use within the United 
States and an exception to the Buy American statute applies, e.g., 
nonavailability or public interest (see FAR 25.103 and 225.103); or
    (D) The acquisition is for supplies for use outside the United 
States and an exception to the Balance of Payments Program applies (see 
225.7501);
* * * * *
[FR Doc. 2015-29558 Filed 11-19-15; 8:45 am]
BILLING CODE 5001-06-P