[Federal Register: March 23, 2005 (Volume 70, Number 55)]
[Proposed Rules]
[Page 14628]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23mr05-51]
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DEPARTMENT OF DEFENSE
48 CFR Parts 225 and 252
[DFARS Case 2004-D034]
Defense Federal Acquisition Regulation Supplement; Restrictions
on Totally Enclosed Lifeboat Survival Systems
AGENCY: Department of Defense (DoD).
ACTION: Proposed rule with request for comments.
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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to remove text addressing restrictions on
the acquisition of totally enclosed lifeboat survival systems. The text
proposed for removal is based on fiscal year 1994 and 1995
appropriations act provisions that are no longer considered applicable,
or is based on statutory provisions that apply only to the Navy.
DATES: Comments on the proposed rule should be submitted in writing to
the address shown below on or before May 23, 2005, to be considered in
the formation of the final rule.
ADDRESSES: You may submit comments, identified by DFARS Case 2004-D034,
using any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Defense Acquisition Regulations Web Site: http://emissary.acq.osd.mil/dar/dfars.nsf/pubcomm.
Follow the instructions for
submitting comments.
E-mail: dfars@osd.mil. Include DFARS Case 2004-D034 in the
subject line of the message.
Fax: (703) 602-0350.
Mail: Defense Acquisition Regulations Council, Attn: Ms.
Amy Williams, OUSD(AT&L)DPAP(DAR), IMD 3C132, 3062 Defense Pentagon,
Washington, DC 20301-3062.
Hand Delivery/Courier: Defense Acquisition Regulations
Council, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA
22202-3402.
All comments received will be posted to http://emissary.acq.osd.mil/dar/dfars.nsf
.
FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, (703) 602-0328.
SUPPLEMENTARY INFORMATION:
A. Background
This proposed rule removes DFARS 225.7008, Restrictions on totally
enclosed lifeboat survival systems, and the corresponding contract
clause at DFARS 252.225-7039. These restrictions implement Section 8124
of the Fiscal Year 1994 DoD Appropriations Act (Public Law 103-139),
Section 8093 of the Fiscal Year 1995 DoD Appropriations Act (Public Law
103-335), and 10 U.S.C. 2534. Both appropriations act provisions state
that none of the funds appropriated in ``this or any other Act'' could
be used for the purchase of a totally enclosed lifeboat and associated
davits and winches, if less than 50 percent of the entire system's
components are manufactured in the United States, and if less than 50
percent of the labor in the manufacture and assembly of the entire
system is performed in the United States.
There is a presumption that any provision in an annual
appropriations act is effective only for that fiscal year, unless
permanency is clearly indicated by words of futurity, or the provision
is of a general nature, bearing no relation to the object of the
appropriations. At the time of implementation of the restrictions on
acquisition of totally enclosed lifeboat systems in the DFARS, DoD
interpreted the phrase ``this or any other Act'' to impart futurity to
the restrictions on acquisition of totally enclosed lifeboat systems.
DoD has reevaluated this interpretation and has determined that the
appropriations act provisions upon which the DFARS coverage is based
were not permanent legislation. This position is supported by review of
case law, including a U.S. Comptroller General decision of September
16, 1987, B-228838, in which the General Accounting Office held that
language such as ``this or any other Act'' does not indicate futurity.
10 U.S.C. 2534(a) restricts the acquisition of totally enclosed
lifeboats that are components of naval vessels. Since this restriction
impacts only the Navy, and 10 U.S.C. 2534(h) specifies that DoD may not
use contract clauses or certifications, but must use management and
oversight techniques, to implement this restriction, DFARS coverage for
implementation of this restriction is considered unnecessary.
This rule was not subject to Office of Management and Budget review
under Executive Order 12866, dated September 30, 1993.
B. Regulatory Flexibility Act
DoD does not expect this 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 domestic
source restrictions of 10 U.S.C. 2534 still apply to the acquisition of
totally enclosed lifeboats that are components of naval vessels.
Therefore, DoD has not performed an initial regulatory flexibility
analysis. DoD invites comments from small businesses and other
interested parties. DoD also will consider comments from small entities
concerning the affected DFARS subparts in accordance with 5 U.S.C. 610.
Such comments should be submitted separately and should cite DFARS Case
2004-D034.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the rule does
not contain any information collection requirements that require the
approval of the Office of Management and Budget under 44 U.S.C. 3501,
et seq.
List of Subjects in 48 CFR Parts 225 and 252
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations System.
Therefore, DoD proposes to amend 48 CFR Parts 225 and 252 as
follows:
1. The authority citation for 48 CFR Parts 225 and 252 continues to
read as follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
PART 225--FOREIGN ACQUISITION
Sec. Sec. 225.7008 through 225.7008-4 [Removed and Reserved]
2. Sections 225.7008 through 225.7008-4 are removed and reserved.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
Sec. 252.225-7039 [Removed and Reserved]
3. Section 252.225-7039 is removed and reserved.
[FR Doc. 05-5632 Filed 3-22-05; 8:45 am]
BILLING CODE 5001-08-P