[Federal Register Volume 86, Number 248 (Thursday, December 30, 2021)]
[Rules and Regulations]
[Pages 74528-74531]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-28083]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 22, 25, and 52

[FAC 2022-03; FAR Case 2022-001; Docket No. FAR-2021-0054; Sequence No. 
1]
RIN 9000-AO38


Federal Acquisition Regulation: Trade Agreements Thresholds

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

ACTION: Final rule.

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SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the 
Federal Acquisition Regulation (FAR) to incorporate revised thresholds 
for application of the World Trade Organization Government Procurement 
Agreement and the Free Trade Agreements, as determined by the United 
States Trade Representative.

DATES: Effective January 1, 2022.

FOR FURTHER INFORMATION CONTACT: Mr. Curtis E. Glover, Sr., Procurement 
Analyst, at 202-501-1448 or by email at [email protected] for 
clarification of content. For information pertaining to status or 
publication schedules, contact the Regulatory Secretariat Division at 
202-501-4755 or [email protected]. Please cite FAC 2022-03, FAR Case 
2022-001.

SUPPLEMENTARY INFORMATION: 

I. Background

    Approximately every two years, the trade agreements thresholds for 
the World Trade Organization Government Procurement Agreement (WTO GPA) 
and the free trade agreements (FTAs) are adjusted according to 
predetermined formulae under the agreements. These thresholds become 
effective on January 1, 2022. On November 26, 2021 (86 FR 67579), the 
United States Trade Representative (USTR) published new procurement 
thresholds. DoD, GSA, and NASA are not changing the Canada thresholds 
because of the United States-Mexico-Canada Agreement Implementation 
Act, which is being implemented in FAR Case 2020-014, United States-
Mexico-Canada Agreement. FAR Case 2020-014 was published as a proposed 
rule on December 13, 2021.
    The United States Trade Representative has specified the following 
new thresholds:

----------------------------------------------------------------------------------------------------------------
                                                                      Supply          Service      Construction
                                                                     contract        contract        contract
                         Trade agreement                           (equal to or    (equal to or    (equal to or
                                                                    exceeding)      exceeding)      exceeding)
----------------------------------------------------------------------------------------------------------------
    WTO GPA.....................................................        $183,000        $183,000      $7,032,000
FTAs:

[[Page 74529]]

 
    Australia FTA...............................................           2,319          92,319       7,032,000
    Bahrain FTA.................................................         183,000         183,000      12,001,460
    CAFTA-DR (Costa Rica, Dominican Republic, El Salvador,                92,319          92,319       7,032,000
     Guatemala, Honduras, and Nicaragua)........................
    Chile FTA...................................................          92,319          92,319       7,032,000
    Colombia FTA................................................          92,319          92,319       7,032,000
    Korea FTA...................................................         100,000         100,000       7,032,000
    Morocco FTA.................................................         183,000         183,000       7,032,000
NAFTA:
    Canada......................................................          25,000          83,099      10,802,884
    Mexico......................................................          92,319          92,319      12,001,460
    Oman FTA....................................................         183,000         183,000      12,001,460
    Panama FTA..................................................         183,000         183,000       7,032,000
    Peru FTA....................................................         183,000         183,000       7,032,000
    Singapore FTA...............................................          92,319          92,319       7,032,000
    Israeli Trade Act...........................................          50,000  ..............  ..............
----------------------------------------------------------------------------------------------------------------

II. Discussion and Analysis

    This final rule implements the new thresholds in FAR subpart 25.4, 
Trade Agreements, and other sections in the FAR that include trade 
agreements thresholds (i.e., 22.1503, 25.202, 25.603, 25.1101, and 
25.1102).
    In addition, changes are required to the provision at 52.204-8, 
Annual Representations and Certifications, and the clause at 52.222-19, 
Child Labor-Cooperation with Authorities and Remedies, with conforming 
changes to the clause dates in 52.212-5, Contract Terms and Conditions 
Required to Implement Statutes or Executive Orders-Commercial Products 
and Commercial Services, and 52.213-4, Terms and Conditions-Simplified 
Acquisitions (Other Than Commercial Products and Commercial Services).

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

    The statute that applies to the publication of the FAR is 41 U.S.C. 
1707. Subsection (a)(1) of 41 U.S.C. 1707 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 it only adjusts the thresholds according to predetermined 
formulae to adjust for changes in economic conditions, thus maintaining 
the status quo, without significant effect beyond the internal 
operating procedures of the Government.

IV. Expected Impact of the Rule

    This final rule will adjust the thresholds for application of the 
WTO GPA and FTAs, as determined by the USTR. For acquisitions covered 
by the WTO GPA or FTAs, the USTR has waived the Buy American statute 
and other discriminatory provisions for eligible products. As a result, 
eligible products and services will receive equal consideration with 
domestic offers if the estimated value of the contract meets or exceeds 
the new thresholds set by the USTR. This rule is not expected to 
significantly impact domestic offerors or offerors covered by the WTO 
GPA or a FTA, because the threshold adjustments made under this rule 
simply accommodate changes in economic conditions while maintaining the 
status quo.

V. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold and for Commercial Products, Including Commercially Available 
Off-the-Shelf Items, or for Commercial Services

    This rule amends the FAR to make minor revisions in the thresholds 
for application of the WTO GPA and the FTAs. The revisions do not add 
any new burdens or, except for the thresholds changes themselves, 
impact applicability of clauses and provisions at or below the 
simplified acquisition threshold, to acquisitions of commercial 
products (including commercially available off-the-shelf items), or to 
acquisition of commercial services.

VI. 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.

VII. Congressional Review Act

    As required by the Congressional Review Act (5 U.S.C. 801-808) 
before an interim or final rule takes effect, DoD, GSA, and NASA will 
send the rule and the ``Submission of Federal Rules Under the 
Congressional Review Act'' form to each House of the Congress and to 
the Comptroller General of the United States. A major rule cannot take 
effect until 60 days after it is published in the Federal Register. The 
Office of Information and Regulatory Affairs (OIRA) in the Office of 
Management and Budget has determined that this is not a major rule 
under 5 U.S.C. 804.

VIII. 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. 601-612) are 
not applicable. Accordingly, no regulatory flexibility analysis is 
required, and none has been prepared.

[[Page 74530]]

IX. Paperwork Reduction Act

    This rule affects the information collection requirements in the 
provisions at 52.225-2, 52.225-4, 52.225-6 and 52.225-10, and the 
clauses at FAR 52.225-9, 52.225-11, 52.225-21, and 52.225-23, currently 
approved under OMB Control Number 9000-0024, entitled ``Buy American 
Act, Trade Agreements, and Duty-Free Entry, in accordance with the 
Paperwork Reduction Act (44 U.S.C. 3501-3521).The impact, however, is 
negligible, because the threshold changes are in line with inflation 
and maintain the status quo. As a result, there is no change to the 
estimated burden.

List of Subjects in 48 CFR Parts 22, 25, and 52

    Government procurement.

William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.

    Therefore, DoD, GSA, and NASA amend 48 CFR parts 22, 25, and 52 as 
set forth below:

0
1. The authority citation for 48 CFR parts 22, 25, and 52 continues to 
read as follows:

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 
U.S.C. 20113.

PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS


22.1503  [Amended]

0
2. Amend section 22.1503 by--
0
a. Removing from paragraph (b)(3) ``$83,099'' and adding ``$92,319'' in 
its place; and
0
b. Removing from paragraph (b)(4) ``$182,000'' and adding ``$183,000'' 
in its place.

PART 25--FOREIGN ACQUISITION


25.202  [Amended]

0
3. Amend section 25.202 by removing from paragraph (c) ``$7,008,000'' 
and adding ``$7,032,000'' in its place.

0
4. Amend section 25.402 by revising table 1 to paragraph (b) to read as 
follows:


25.402  General.

* * * * *
    (b) * * *

                                            Table 1 to Paragraph (b)
----------------------------------------------------------------------------------------------------------------
                                                                      Supply          Service      Construction
                                                                     contract        contract        contract
                         Trade agreement                           (equal to or    (equal to or    (equal to or
                                                                    exceeding)      exceeding)      exceeding)
----------------------------------------------------------------------------------------------------------------
    WTO GPA.....................................................        $183,000        $183,000      $7,032,000
FTAs:
    Australia FTA...............................................          92,319          92,319       7,032,000
    Bahrain FTA.................................................         183,000         183,000      12,001,460
    CAFTA-DR (Costa Rica, Dominican Republic, El-Salvador,                92,319          92,319       7,032,000
     Guatemala, Honduras, and Nicaragua)........................
    Chile FTA...................................................          92,319          92,319       7,032,000
    Colombia FTA................................................          92,319          92,319       7,032,000
    Korea FTA...................................................         100,000         100,000       7,032,000
    Morocco FTA.................................................         183,000         183,000       7,032,000
NAFTA:
    --Canada....................................................          25,000          83,099      10,802,884
    --Mexico....................................................          92,319          92,319      12,001,460
    Oman FTA....................................................         183,000         183,000      12,001,460
    Panama FTA..................................................         183,000         183,000       7,032,000
    Peru FTA....................................................         183,000         183,000       7,032,000
    Singapore FTA...............................................          92,319          92,319       7,032,000
    Israeli Trade Act...........................................          50,000  ..............  ..............
----------------------------------------------------------------------------------------------------------------

25.603  [Amended]

0
5. Amend section 25.603 by removing from paragraph (c)(1) 
``$7,008,000'' and adding ``$7,032,000'' in its place.


25.1101  [Amended]

0
6. Amend section 25.1101 by--
0
a. Removing from paragraph (b)(1)(i)(A) ``$182,000'' and adding 
``$183,000'' in its place;
0
b. Removing from paragraphs (b)(1)(iii) and (iv) ``$83,099'' and adding 
``$92,319'' in its place;
0
c. Removing from paragraphs (b)(2)(iii) and (iv) ``$83,099'' and adding 
``$92,319'' in its place;
0
d. Removing from paragraph (c)(1) ``$182,000'' and ``WTO GPA applies'' 
and adding ``$183,000'' and ``WTO GPA'' in their places, respectively; 
and
0
e. Removing from paragraph (d) ``$182,000'' and adding ``$183,000'' in 
its place.


25.1102  [Amended]

0
7. Amend section 25.1102 by--
0
a. Removing from the paragraph (a) introductory text paragraph (c) 
introductory text ``$7,008,000'' and adding ``$7,032,000'' in its 
place; and
0
b. Removing from paragraphs (c)(3) and (d)(3) ``$7,008,000'' and 
``$10,802,884'' adding ``$7,032,000'' and ``$12,001,460'' in their 
places, respectively.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
8. Amend section 52.204-8 by--
0
a. Revising the date of the provision; and
0
b. Removing from paragraphs (c)(1)(xxi)(C) and (D) ``$83,099'' and 
adding ``$92,319'' in its place.
    The revision reads as follows:


52.204-8  Annual Representations and Certifications.

* * * * *

Annual Representations and Certifications (Jan 2022)

* * * * *

0
9. Amend section 52.212-5 by--
0
a. Revising the date of the clause; and
0
b. Removing from paragraph (b)(28) ``(JAN 2020)'' and adding ``(JAN 
2022)'' in its place.
    The revisions read as follows:

[[Page 74531]]

52.212-5  Contract Terms and Conditions Required to Implement Statutes 
or Executive Orders--Commercial Products and Commercial Services.

* * * * *

Contract Terms and Conditions Required To Implement Statutes or 
Executive Orders--Commercial Products and Commercial Services (Jan 
2022)

* * * * *

0
10. Amend section 52.213-4 by--
0
a. Revising the date of the clause; and
0
b. Removing from paragraph (b)(1)(ii) ``(JAN 2020)'' and adding ``(JAN 
2022)'' in its place.
    The revision reads as follows:


52.213-4  Terms and Conditions--Simplified Acquisitions (Other Than 
Commercial Products and Commercial Services).

* * * * *

Terms and Conditions--Simplified Acquisitions (Other Than Commercial 
Products and Commercial Services) (Jan 2022)

* * * * *

0
11. Amend section 52.222-19 by--
0
a. Revising the date of the clause; and
0
b. Removing from paragraph (a)(3) ``$83,099'' and adding ``$92,319'' in 
its place; and
0
c. Removing from paragraph (a)(4) ``$182,000'' and adding ``$183,000'' 
in its place.
    The revision reads as follows:


52.222-19  Child Labor--Cooperation with Authorities and Remedies.

* * * * *

Child Labor--Cooperation With Authorities and Remedies (Jan 2022)

* * * * *
 [FR Doc. 2021-28083 Filed 12-29-21; 8:45 am]
 BILLING CODE 6820-EP-P