[Federal Register Volume 85, Number 109 (Friday, June 5, 2020)]
[Rules and Regulations]
[Pages 34533-34535]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-11756]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Part 225
[Docket DARS-2018-0004]
RIN 0750-AJ22
Defense Federal Acquisition Regulation Supplement: Restrictions
on Acquisitions From Foreign Sources (DFARS Case 2017-D011); Correction
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Correcting amendments.
-----------------------------------------------------------------------
SUMMARY: On December 21, 2018, DoD published a final rule to implement
sections of the National Defense Authorization Act for Fiscal Year
2017, including a section that added Australia and the United Kingdom
to the definition of the ``National Technology and Industrial Base.''
This action corrects several sections of the regulations where the
revised definition of the ``National Technology and Industrial Base''
was inadvertently not implemented. This document corrects the final
regulations in order to acquire from Australia or the United Kingdom,
without waiver, certain naval vessel components.
DATES: Effective June 5, 2020.
FOR FURTHER INFORMATION CONTACT: Ms. Amy G. Williams, telephone 571-
372-6106.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule in the Federal Register at 83 FR
42828 on August 24, 2018, that included implementation of section
881(b) of the National Defense Authorization Act (NDAA) for Fiscal Year
(FY) 2017. The final rule was published in the Federal Register at 83
FR 65560 on December 21, 2018. Section 881(b) amends 10 U.S.C. 2500(1)
by adding Australia and the United Kingdom of Great Britain and
Northern Ireland to the United States and Canada, as countries within
which the activities of the national technology and industrial base are
conducted. Title 10 U.S.C. 2534 requires that DoD only procure certain
items, if the manufacturer of the items is part of the national
technology and industrial base, unless a waiver is granted by the
Secretary of Defense (previously delegated to the Under Secretary of
Defense (Acquisition, Technology, and Logistics); now the Under
Secretary of Defense (Acquisition and Sustainment). The Under Secretary
of Defense (Acquisition, Technology and Logistics) had granted annual
waivers for certain naval vessel components from the United Kingdom.
Such waivers are no longer required now that the United Kingdom is part
of the national technology and industrial base.
II. Discussion and Analysis
At the time of the final rule, the DFARS addressed the following
restrictions of 10 U.S.C. 25234:
----------------------------------------------------------------------------------------------------------------
Citation Item Waiver Action taken
----------------------------------------------------------------------------------------------------------------
225.7004......................... Foreign buses............ No...................... Added Australia and U.K.
at 225.7004-1 and
225.7004-3.
225.7006, 252.225-7037, and Air circuit breakers for Yes--U.K................ Added Australia and U.K.
252.225-7038. naval vessels. at 225.7006-1. Added
Australia at 252.225-
7037(b) and 252.225-
7038. Removed the
information regarding
the U.K. waiver at
225.7006-3(b) and
225.7006-4(a)(2).
225.7010......................... Certain naval vessel Yes--U.K................ Inadvertently, no action
components: taken.
gyrocompasses,
electronic navigation
chart systems, steering
controls, pumps,
propulsion and machinery
control systems, totally
enclosed lifeboats.
----------------------------------------------------------------------------------------------------------------
The actions comparable to those that were taken with regard to the
air circuit breakers for naval vessels should have been taken for the
other naval vessel components. These naval vessel components are listed
in a separate section, because 10 U.S.C. 2534(h) prohibits the use of
contract clauses or certifications to implement this restriction.
Australia and the United Kingdom should have been added to the list of
countries in the national technology and industrial base at DFARS
225.7010-1 and paragraph (b) addressing the waiver for items from the
U.K. at 225.7010-3 should have been removed. Because of the existing
waiver for certain naval vessel components from the United Kingdom,
this lack of action has only impacted the acquisition of these naval
vessel components from Australia.
In addition, there is a section at DFARS 225.7008 that addresses
the waiver of restrictions of 10 U.S.C. 2534 in general. For
consistency with the new definition of ``national technology and
industrial base,'' Australia and the United Kingdom should have been
added to the discussions of satisfactory quality, only one source, and
unreasonable costs at DFARS 225.7008(a)(2)(ii) and (iii) and (a)(3)
[[Page 34534]]
respectively; and 225.7008(b) that addresses the waiver of the
restrictions of 10 U.S.C. 2534(a) for certain items manufactured in the
United Kingdom should have been deleted as no longer necessary. There
have been no requests for waiver of 10 U.S.C. 2534 since the final rule
was issued.
III. Publication of This Final Rule Correction for Public Comment Is
Not Required by Statute
The statute that applies to the publication of the Federal
Acquisition Regulation (FAR) is 41 U.S.C. 1707 entitled ``Publication
of Proposed Regulations.'' 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 correction is not required to be published for public
comment, because the public received notice and opportunity to comment
on the proposed rule, which stated that--
The rule was implementing section 881(b) of the NDAA for
FY 2017, that Australia and the United Kingdom were now included as the
countries within which the activities of the national technology and
industrial base are conducted;
Title 10 U.S.C. 2534 requires that DoD only procure
certain items if the manufacturer of the items is part of the national
technology and industrial base; and
DFARS sections that implement the restrictions of 10
U.S.C. 2534 are being modified to allow acquisitions from Australia and
the United Kingdom.
In addition, the proposed rule mentioned that annual waivers
authorizing purchases from the United Kingdom cover air circuit
breakers for naval vessels and certain other naval vessel components.
Immediate correction of the error is necessary, because the new
definition of national technology and industrial base has been in
effect since December 2, 2019, and this correction is necessary in
order to avoid inconsistent implementation of the restrictions of 10
U.S.C. 2534.
IV. Applicability to Contracts at or Below the Simplified Acquisition
Threshold and for Commercial Items, Including Commercially Available
Off-the-Shelf Items
This final rule correction does not impact any provisions or
clauses.
V. 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.
VI. Executive Order 13771
This final rule correction rule is not an E.O. 13771 regulatory
action, because this rule is not significant under E.O. 12866.
VII. Regulatory Flexibility Act
Because a notice of proposed rulemaking and an opportunity for
public comment are not required to be given for this rule under 41
U.S.C. 1707(a)(1) (see section III. of this preamble), the analytical
requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
are not applicable. Accordingly, no regulatory flexibility analysis is
required, and none has been prepared.
VIII. Paperwork Reduction Act
The final rule correction 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.
Jennifer Lee Hawes,
Regulatory Control Officer, 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.
0
2. Amend section 225.7008 by--
0
a. Removing paragraph (b).
0
b. Redesignating paragraph (a)(2) and (3) as paragraphs (b) and (c),
respectively;
0
c. Redesignating paragraphs (a) introductory text and (a)(1)(i) through
(iv) as undesignated introductory text and paragraphs (a)(1) through
(4), respectively;
0
d. In the newly redesignated paragraph (a)(1) introductory text,
removing ``(Acquisition, Technology, and Logistics) (USD(AT&L))'' and
adding ``(Acquisition and Sustainment) (USD(A&S))'' in its place;
0
e. Further redesignating newly redesignated paragraphs (a)(1)(A) and
(B) as paragraphs (a)(1)(i) and (ii), respectively;
0
f. Further redesignating newly redesignated paragraphs (a)(4)(A) and
(B) as paragraphs (a)(4)(i) and (ii), respectively;
0
g. Further redesignating newly redesignated paragraphs (b)(i) through
(v) as paragraphs (b)(1) through (5), respectively; and
0
h. Revising newly redesignated paragraphs (b)(2) and (3) and (c).
The revisions read as follows:
225.7008 Waiver of restrictions of 10 U.S.C. 2534.
* * * * *
(b) * * *
(2) Satisfactory quality items manufactured in the United States,
Australia, or Canada, or the United Kingdom are not available.
(3) Application of the restriction would result in the existence of
only one source for the item in the United States, Australia, or
Canada, or the United Kingdom.
* * * * *
(c) A restriction is waived when it would cause unreasonable costs.
The cost of an item of U.S., Australian, Canadian, or United Kingdom
origin is unreasonable if it exceeds 150 percent of the offered price,
inclusive of duty, of items that are not of U.S., Australian, Canadian,
or United Kingdom origin.
225.7010-1 [Amended]
0
3. Amend section 225.7010-1 introductory text by removing ``United
States or Canada'' and adding ``United States, Australia, Canada, or
the United Kingdom'' in its place.
0
4. Revise section 225.7010-3 to read as follows:
[[Page 34535]]
225.7010-3 Waiver.
The waiver criteria at 225.7008(a) apply to this restriction.
[FR Doc. 2020-11756 Filed 6-4-20; 8:45 am]
BILLING CODE 5001-06-P