[Federal Register: June 15, 2009 (Volume 74, Number 113)]
[Rules and Regulations]
[Page 28426-28430]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15jn09-17]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 25 and 52
[FAC 2005-33; FAR Case 2008-036; Item I; Docket 2009-0019, Sequence 1]
RIN 9000-AL23
Federal Acquisition Regulation; FAR Case 2008-036, Trade
Agreements--Costa Rica, Oman, and Peru
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
[[Page 28427]]
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on an interim
rule amending the Federal Acquisition Regulation (FAR) to implement the
Dominican Republic--Central America--United States Free Trade Agreement
with respect to Costa Rica, the United States-Oman Free Trade
Agreement, and the United States-Peru Trade Promotion Agreement.
DATES: Effective Date: June 15, 2009.
Comment Date: Interested parties should submit written comments to
the Regulatory Secretariat on or before August 14, 2009 to be
considered in the formulation of a final rule.
ADDRESSES: Submit comments identified by FAC 2005-33, FAR case 2008-
036, by any of the following methods:
Regulations.gov: http://www.regulations.gov.
Submit comments via the Federal eRulemaking portal by inputting
``FAR Case 2008-036'' under the heading ``Comment or Submission''.
Select the link ``Send a Comment or Submission'' that corresponds with
FAR Case 2008-036. Follow the instructions provided to complete the
``Public Comment and Submission Form''. Please include your name,
company name (if any), and ``FAR Case 2008-036'' on your attached
document.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (VPR), 1800 F Street, NW., Room 4041, ATTN: Hada Flowers,
Washington, DC 20405.
Instructions: Please submit comments only and cite FAC 2005-33, FAR
case 2008-036, in all correspondence related to this case. All comments
received will be posted without change to http://www.regulations.gov,
including any personal and/or business confidential information
provided.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Ms. Meredith Murphy, Procurement Analyst, at (202) 208-6925. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat at (202) 501-4755. Please cite FAC 2005-33, FAR
case 2008-036.
SUPPLEMENTARY INFORMATION:
A. Background
This rule amends FAR Part 25 and the corresponding clauses in Part
52 to implement the Dominican Republic--Central America--United States
Free Trade Agreement (CAFTA-DR) with respect to Costa Rica, the United
States-Oman Free Trade Agreement, and the United States-Peru Trade
Promotion Agreement.
Congress approved these trade agreements in the Dominican
Republic--Central America--United States Free Trade Agreement
Implementation Act (Pub. L. 109-53), the United States-Oman Free Trade
Agreement Implementation Act (Pub. L. 109-283) (19 U.S.C. 3805 note),
and the United States-Peru Trade Promotion Agreement Implementation Act
(Pub. L. 110-138) (19 U.S.C. 3805 note). These Acts waive the
applicability of the Buy American Act for some foreign supplies and
construction materials from Costa Rica, Oman, and Peru and specify
procurement procedures designed to ensure fairness in the acquisition
of supplies and services.
This interim rule adds Costa Rica, Oman, and Peru to the definition
of ``Free Trade Agreement country.'' The rule also deletes Costa Rica
from the definition of ``Caribbean Basin country'' because, in
accordance with Section 201(a)(3) of Pub. L. 109-53, when the CAFTA-DR
agreement enters into force with respect to a country, that country is
no longer designated as a beneficiary country for purposes of the
Caribbean Basin Economic Recovery Act.
The excluded services for the Oman and Peru FTAs are the same as
for the Bahrain FTA, CAFTA-DR, Chile FTA, and NAFTA. Costa Rica has the
same thresholds as the other CAFTA-DR countries.
The threshold for supply and service contracts of the Oman and Peru
FTAs is $194,000. Like the Morocco and Bahrain FTAs, the Oman and Peru
FTA thresholds for supplies and services is higher than the thresholds
for the other FTAs. Therefore, Omani and Peruvian end products are not
covered by the Buy American Act--Free Trade Agreements--Israeli Trade
Act provision and clause (FAR 52.225-3 and 52.225-4).
For construction contracts, the Oman FTA threshold is $8,817,449
and the Peru FTA threshold is $7,443,000. Like NAFTA and the Bahrain
FTA, the Omani threshold for construction is higher than the thresholds
of the other FTAs. Therefore Omani construction material, along with
Bahrainian and Mexican construction material, is excluded from coverage
under the Buy American Act--Construction Materials under the Trade
Agreements provision and clause for acquisitions less than $8,817,449
(52.225-11 Alternate I and 52.225-12 Alternate II, respectively).
Canadian construction material is not excluded, because it is covered
under the World Trade Organization Government Procurement Agreement.
This is a significant regulatory action and, therefore, was subject
to review under Section 6(b) of Executive Order 12866, Regulatory
Planning and Review, dated September 30, 1993. This rule is not a major
rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
This interim rule is not expected 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. Although the rule
opens up Government procurement to the goods and services of Costa
Rica, Oman, and Peru, the Councils do not anticipate any significant
economic impact on U.S. small businesses. The Department of Defense
only applies the trade agreements to the non-defense items listed at
DFARS 225.401-70, and acquisitions that are set aside for small
businesses are exempt. Therefore, the Councils have not performed an
Initial Regulatory Flexibility Analysis. The Councils invite comments
from small business concerns and other interested parties on this
issue. The Councils will also consider comments from small entities
concerning the affected FAR parts 25 and 52 in accordance with 5 U.S.C.
610. Interested parties should submit such comments separately and
should cite 5 U.S.C. 601, et seq. (FAR Case 2008-036), in
correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does apply, because the interim rule
affects the certification and information collection requirements in
the provisions at FAR 52.212-3, 52.225-4, 52.225-6, and 52.225-11
currently approved under OMB clearances 9000-0136 (Commercial Item
Acquisition: FAR Sections Affected: Part 12; 52.212-1, and 52.212-3),
9000-0130 (Buy America Act, Trade Agreements Act Certificate: FAR
Sections Affected: 52.225-4), 9000-0025 (Buy American Act, Trade
Agreements Act Certificate: FAR Sections Affected: 52.225-6), and 9000-
0141 (Buy America Act--Construction: FAR Sections Affected: Subpart
25.2, 52.225-9, and 52.225-11) respectively. While the FAR Secretariat
believes this impact to be negligible, comments are invited on the
burden and number of entities affected as part of this rulemaking.
D. Determination to Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense (DoD), the Administrator of General
[[Page 28428]]
Services (GSA), and the Administrator of the National Aeronautics and
Space Administration (NASA) that urgent and compelling reasons exist to
promulgate this interim rule without prior opportunity for public
comment. This action is necessary because these free trade agreements
all took effect on January 1, 2009. However, pursuant to Pub. L. 98-577
and FAR 1.501, the Councils will consider public comments received in
response to this interim rule in the formation of the final rule.
List of Subjects in 48 CFR Parts 25 and 52
Government procurement.
Dated: June 9, 2009.
Al Matera,
Director, Office of Acquisition Policy.
0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 25 and 52 as set forth
below:
0
1. The authority citation for 48 CFR parts 25 and 52 continues to read
as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 25--FOREIGN ACQUISITION
0
2. Amend section 25.003 by--
0
a. Removing from the definition ``Caribbean Basin country'' the words
``Costa Rica,'';
0
b. Revising paragraph (2) of the definition ``Designated country''; and
removing from paragraph (4) the words ``Costa Rica''; and
0
c. Removing from the definition ``Free Trade Agreement country'' the
words ``Chile, Dominican'' and adding ``Chile, Costa Rica, Dominican''
in their place, and removing the word ``Nicaragua, or'' and adding
``Nicaragua, Oman, Peru, or'' in its place.
0
The revised text reads as follows:
25.003 Definitions.
* * * * *
Designated country * * *
(2) A Free Trade Agreement country (Australia, Bahrain, Canada,
Chile, Costa Rica, Dominican Republic, El Salvador, Guatemala,
Honduras, Mexico, Morocco, Nicaragua, Oman, Peru, or Singapore);
* * * * *
0
3. Amend section 25.400 by revising paragraphs (a)(2)(iii) through
(a)(2)(vii), and adding paragraphs (a)(2)(viii) and (a)(2)(ix) to read
as follows:
25.400 Scope of Subpart.
(a) * * *
(2) * * *
(iii) Singapore FTA (the United States-Singapore Free Trade
Agreement, as approved by Congress in the United States-Singapore Free
Trade Agreement Implementation Act (Pub. L. 108-78) (19 U.S.C. 3805
note));
(iv) Australia FTA (the United States-Australia Free Trade
Agreement, as approved by Congress in the United States-Australia Free
Trade Agreement Implementation Act (Pub. L. 108-286) (19 U.S.C. 3805
note));
(v) Morocco FTA (The United States--Morocco Free Trade Agreement,
as approved by Congress in the United States--Morocco Free Trade
Agreement Implementation Act (Pub. L. 108-302) (19 U.S.C. 3805 note));
(vi) CAFTA-DR (The Dominican Republic-Central America-United States
Free Trade Agreement, as approved by Congress in the Dominican
Republic-Central America-United States Free Trade Agreement
Implementation Act (Pub. L. 109-53) (19 U.S.C. 4001 note));
(vii) Bahrain FTA (the United States-Bahrain Free Trade Agreement,
as approved by Congress in the United States-Bahrain Free Trade
Agreement Implementation Act (Pub. L. 109-169) (19 U.S.C. 3805 note));
(viii) Oman FTA (the United States-Oman Free Trade Agreement, as
approved by Congress in the United States-Oman Free Trade Agreement
Implementation Act (Pub. L. 109-283) (19 U.S.C. 3805 note)); and
(ix) Peru FTA (the United States-Peru Trade Promotion Agreement, as
approved by Congress in the United States-Peru Trade Promotion
Agreement Implementation Act (Pub. L. 110-138) (19 U.S.C. 3805 note));
* * * * *
25.401 [Amended]
0
4. Amend section 25.401 in paragraph (b), in the table heading, by
removing from the fourth column ``Bahrain, FTA, CAFTA-DR, Chile FTA,
and NAFTA'' and adding ``Bahrain FTA, CAFTA-DR, Chile FTA, NAFTA, Oman
FTA and Peru FTA'' in its place.
0
5. Amend section 25.402 by revising the table following paragraph (b)
to read as follows:
25.402 General.
* * * * *
(b) * * *
----------------------------------------------------------------------------------------------------------------
Supply Contract Service Contract Construction
Trade Agreement (equal to or (equal to or Contract (equal
exceeding) exceeding) to or exceeding)
----------------------------------------------------------------------------------------------------------------
WTO GPA................................................... $194,000 $194,000 $7,443,000
FTAs...................................................... ................ ................ ................
Australia FTA............................................ 67,826 67,826 7,443,000
Bahrain FTA.............................................. 194,000 194,000 8,817,449
CAFTA-DR (Costa Rica, Dominican Republic, El Salvador, 67,826 67,826 7,443,000
Guatemala, Honduras, and Nicaragua)......................
Chile FTA................................................ 67,826 67,826 7,443,000
Morocco FTA.............................................. 194,000 194,000 7,443,000
NAFTA.................................................... ................ ................
-Canada.................................................. 25,000 67,826 8,817,449
-Mexico.................................................. 67,826 67,826 8,817,449
Oman FTA................................................. 194,000 194,000 8,817,449
Peru FTA................................................. 194,000 194,000 7,443,000
Singapore FTA............................................ 67,826 67,826 7,443,000
Israeli Trade Act......................................... 50,000 -- --
----------------------------------------------------------------------------------------------------------------
[[Page 28429]]
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
52.212-3 [Amended]
0
6. Amend section 52.212-3 by revising the date of the provision to read
``(JUN 2009)''; and by removing from paragraphs (g)(1)(i) and
(g)(1)(ii) ``Bahrainian or Moroccan'' and adding ``Bahrainian,
Moroccan, Omani, or Peruvian'' in its place each time it appears (three
times).
0
7. Amend section 52.212-5 by revising the date of the clause, and
paragraphs (b)(32)(i) and (b)(33) to read as follows:
52.212-5 Contract Terms and Conditions Required to Implement Statutes
or Executive Orders--Commercial Items.
* * * * *
Contract Terms and Conditions Required To Implement Statutes or
Executive Orders--Commercial Items (JUN 2009)
* * * * *
(b) * * *
---- (32)(i) 52.225-3, Buy American Act--Free Trade Agreements--
Israeli Trade Act (JUN 2009) (41 U.S.C. 10a-10d, 19 U.S.C. 3301
note, 19 U.S.C. 2112 note, 19 U.S.C. 3805 note, Pub. L. 108-77, 108-
78, 108-286, 108-302, 109-53, 109-169, 109-283, and 110-138).
* * * * *
---- (33) 52.225-5, Trade Agreements (JUN 2009) (19 U.S.C. 2501,
et seq., 19 U.S.C. 3301 note).
* * * * *
0
8. Amend section 52.225-3 by--
0
a. Revising the date of the clause;
0
b. Revising the definitions ``Bahrainian or Moroccan end product'' and
``Free Trade Agreement country''; and
0
c. Removing from paragraph (c) ``the Bahrain and Morocco FTAs'' and
adding ``the Bahrain, Morocco, Oman, and Peru FTAs'' in its place, and
removing ``other than a Bahrainian or Moroccan'' and adding ``other
than a Bahrainian, Moroccan, Omani, or Peruvian'' in its place each
time it appears (twice).
0
The revised text reads as follows:
52.225-3 Buy American Act--Free Trade Agreements--Israeli Trade Act.
* * * * *
Buy American Act--Free Trade Agreements--Israeli Trade Act (JUN 2009)
* * * * *
(a) * * *
Bahrainian, Moroccan, Omani, or Peruvian end product means an
article that--
(1) Is wholly the growth, product, or manufacture of Bahrain,
Morocco, Oman, or Peru ; or
(2) In the case of an article that consists in whole or in part
of materials from another country, has been substantially
transformed in Bahrain, Morocco, Oman, or Peru into a new and
different article of commerce with a name, character, or use
distinct from that of the article or articles from which it was
transformed. The term refers to a product offered for purchase under
a supply contract, but for purposes of calculating the value of the
end product includes services (except transportation services)
incidental to the article, provided that the value of those
incidental services does not exceed that of the article itself.
* * * * *
Free Trade Agreement country means Australia, Bahrain, Canada,
Chile, Costa Rica, Dominican Republic, El Salvador, Guatemala,
Honduras, Mexico, Morocco, Nicaragua, Oman, Peru, or Singapore.
* * * * *
52.225-4 [Amended]
0
9. Amend section 52.225-4 by--
0
a. Revising the date of the provision to read ``(JUN 2009)''; and
0
b. Removing from paragraphs (a) and (b) ``Bahrainian or Moroccan'' and
adding ``Bahrainian, Moroccan, Omani, or Peruvian'' in its place each
time it appears (three times).
0
10. Amend section 52.225-5 by--
0
a. Revising the date of the clause; and
0
b. Revising paragraph (2) in the definition ``Designated country''; and
removing from paragraph (4) of that definition the words ``Costa
Rica,''.
0
The revised text reads as follows:
52.225-5 Trade Agreements.
* * * * *
Trade Agreements (JUN 2009)
(a) * * *
Designated country * * *
(2) A Free Trade Agreement country (Australia, Bahrain, Canada,
Chile, Costa Rica, Dominican Republic, El Salvador, Guatemala,
Honduras, Mexico, Morocco, Nicaragua, Oman, Peru, or Singapore);
* * * * *
0
11. Amend section 52.225-11 by--
0
a. Revising the date of the clause;
0
b. Amending paragraph (a) in the definition ``Designated country'' by--
0
1. Revising paragraph (2); and
0
2. Removing from paragraph (4) ``Costa Rica,'';
0
c. Amending Alternate I, by--
0
1. Revising the date of Alternate I;
0
2. Removing from the introductory paragraph text and in the definition
``Bahrainian or Mexican construction material'' ``Bahrainian or
Mexican'' and adding ``Bahrainian, Mexican, or Omani'' in its place
(twice);
0
3. Removing from the definition ``Bahrainian or Mexican construction
material'' in paragraphs (1) and (2) ``Bahrain or Mexico'' and adding
``Bahrain, Mexico, or Oman'' in its place (twice);
0
4. Revising paragraph (b)(1); and
0
5. Removing from paragraph (b)(2) ``other than Bahrainian or Mexican''
and adding ``other than Bahrainian, Mexican, or Omani'' in its place.
0
The revised text reads as follows:
52.225-11 Buy American Act--Construction Materials Under Trade
Agreements.
* * * * *
Buy American Act--Construction Materials Under Trade Agreements (JUN
2009)
(a) Definitions. * * *
* * * * *
Designated country * * *
(2) A Free Trade Agreement country (Australia, Bahrain, Canada,
Chile, Costa Rica, Dominican Republic, El Salvador, Guatemala,
Honduras, Mexico, Morocco, Nicaragua, Oman, Peru, or Singapore);
* * * * *
Alternate I (JUN 2009). * * *
* * * * *
(b) Construction materials. (1) This clause implements the Buy
American Act (41 U.S.C. 10a-10d) by providing a preference for
domestic construction material. In accordance with 41 U.S.C. 431,
the component test of the Buy American Act is waived for
construction material that is a COTS item (See FAR 12.505(a)(2)). In
addition, the Contracting Officer has determined that the WTO GPA
and all the Free Trade Agreements except the Bahrain FTA, NAFTA, and
the Oman FTA apply to this acquisition. Therefore, the Buy American
Act restrictions are waived for designated country construction
materials other than Bahrainian, Mexican, or Omani construction
materials.
* * * * *
0
12. Amend section 52.225-12 in Alternate II by--
0
a. Revising the date of Alternate II;
0
b. Removing from the introductory paragraph text ``Bahrainian or
Mexican'' and adding ``Bahrainian, Mexican, or Omani'' in its place;
0
c. Revising paragraph (d)(1); and
0
d. Removing from paragraph (d)(3) ``Bahrainian or Mexican'' and adding
``Bahrainian, Mexican, or Omani'' in its place.
52.225-12 Notice of Buy American Act Requirement--Construction
Materials Under Trade Agreements.
* * * * *
Alternate II (JUN 2009) * * *
(d) Alternate offers. (1) When an offer includes foreign
construction material, except foreign construction material from a
designated country other than Bahrain, Mexico, or Oman that is not
listed by the Government in this solicitation in paragraph (b)(3) of
FAR clause 52.225-11, the offeror also may submit an alternate offer
based on
[[Page 28430]]
use of equivalent domestic or designated country construction
material other than Bahrainian, Mexican, or Omani construction
material.
* * * * *
[FR Doc. E9-13978 Filed 6-12-09; 8:45 am]
BILLING CODE 6820-EP-S