[Federal Register Volume 75, Number 188 (Wednesday, September 29, 2010)]
[Rules and Regulations]
[Pages 60266-60268]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-24206]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 25 and 52
[FAC 2005-46; FAR Case 2009-039; Item VII; Docket 2010-0104, Sequence
1]
RIN 9000-AL62
Federal Acquisition Regulation; Buy American Exemption for
Commercial Information Technology--Construction Material
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule with request for comments.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) are issuing an interim rule
amending the Federal Acquisition Regulation (FAR) to implement section
615 of Division C, Title VI, of the Consolidated Appropriations Act,
2010 (Pub. L. 111-117). Section 615 authorizes exemption from the Buy
American Act for acquisition of information technology that is a
commercial item.
DATES: Effective Date: September 29, 2010.
Comment Date: Interested parties should submit written comments to
the Regulatory Secretariat on or before November 29, 2010 to be
considered in the formulation of a final rule.
ADDRESSES: Submit comments identified by FAC 2005-46, FAR Case 2009-
039, by any of the following methods:
Regulations.gov: http://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by inputting ``FAR Case
2009-039'' under the heading ``Enter Keyword or ID'' and selecting
``Search.'' Select the link ``Submit a Comment'' that corresponds with
``FAR Case 2009-039.'' Follow the instructions provided at the ``Submit
a Comment'' screen. Please include your name, company name (if any),
and ``FAR Case 2009-039'' on your attached document.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (MVCB), 1800 F Street, NW., Room 4041, ATTN: Hada Flowers,
Washington, DC 20405.
[[Page 60267]]
Instructions: Please submit comments only and cite FAC 2005-46, FAR
Case 2009-039, 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. Cecelia L. Davis, Procurement Analyst, at (202) 219-0202. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat at (202) 501-4755. Please cite FAC 2005-46, FAR
Case 2009-039.
SUPPLEMENTARY INFORMATION:
A. Background
This interim rule amends FAR subparts 25.2 and 52.2 to implement
section 615 of Division C, Title VI, of the Consolidated Appropriations
Act, 2010 (Pub. L. 111-117). Section 615 authorizes exemption from the
Buy American Act for acquisition of information technology that is a
commercial item.
This same exemption has appeared every year since Fiscal Year 2004
(section 535(a) of Division F, Title V, Consolidated Appropriations
Act, 2004 (Pub. L. 108-199)). The Fiscal Year 2004 exemption was
implemented through deviations by the individual agencies.
Subsequently, regulations were published to implement the exemption for
supplies (71 FR 223, January 3, 2006). The exemption for construction
material was not implemented until publication of this interim rule.
The interim rule is based on the probability that the exemption of
commercial information technology is likely to continue. If the
exception does not appear in a future appropriations act, a prompt
change to the FAR will be made to limit applicability of the exemption
to the fiscal years to which it applies.
``Information technology'' and ``Commercial item'' are already
defined in FAR part 2.
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
The Councils do not expect this interim 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 rule simplifies the treatment of construction material that
is also a commercial information technology item, which constitutes a
small percentage of the overall construction material in a project.
This interim rule does not affect small business set-asides to the
prime contractor or the small business subcontracting goals.
Construction contracts that exceed $7,804,000 and are subject to trade
agreements already exempt designated country construction material from
the Buy American Act. Therefore, an Initial Regulatory Flexibility
Analysis has not been performed. The Councils invite comments from
small business concerns and other interested parties on the expected
impact of this rule on small entities.
The Councils will also consider comments from small entities
concerning the existing regulations in the FAR subparts 25 and 52
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 (FAC 2005-46, FAR Case 2009-039) in all correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does apply because the changes to the
FAR will slightly reduce the information collection requirements
currently approved by the Office of Management and Budget (OMB Control
number 9000-0141, entitled Buy America Act--Construction--FAR Sections
Affected: Subpart 25.2; 52.225-9; and 52.225-11) but we estimate that
the impact will be negligible.
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 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 to implement the changes resulting from the enactment of
section 615 of Division C, Title VI, of the Consolidated Appropriations
Act, 2010 (Pub. L. 111-117), effective December 16, 2009. However,
pursuant to 41 U.S.C. 418b and FAR 1.501-3(b), 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: September 21, 2010.
Edward Loeb,
Director, Acquisition Policy Division.
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 25.202 by revising the introductory text of paragraph
(a), and by adding paragraph (a)(4) to read as follows:
25.202 Exceptions.
(a) When one of the following exceptions applies, the contracting
officer may allow the contractor to acquire foreign construction
materials without regard to the restrictions of the Buy American Act:
* * * * *
(4) Information technology that is a commercial item. The
restriction on purchasing foreign construction material does not apply
to the acquisition of information technology that is a commercial item,
when using Fiscal Year 2004 or subsequent fiscal year funds (Section
535(a) of Division F, Title V, Consolidated Appropriations Act, 2004,
and similar sections in subsequent appropriations acts).
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
3. Amend section 52.225-9 by revising the date of the clause and
paragraph (b)(2) to read as follows:
52.225-9 Buy American--Construction Materials.
* * * * *
BUY AMERICAN--CONSTRUCTION MATERIALS (SEP 2010)
* * * * *
(b) * * *
(2) This requirement does not apply to information technology
that is a commercial item or to the construction materials or
components listed by the Government as follows:
* * * * *
0
4. Amend section 52.225-11 by revising the date of the clause and
paragraph (b)(3) to read as follows:
52.225-11 Buy American Act--Construction Materials under Trade
Agreements.
* * * * *
[[Page 60268]]
BUY AMERICAN ACT--CONSTRUCTION MATERIALS UNDER TRADE AGREEMENTS (SEP
2010)
* * * * *
(b) * * *
(3) The requirement in paragraph (b)(2) of this clause does not
apply to information technology that is a commercial item or to the
construction materials or components listed by the Government as
follows:
[Contracting Officer to list applicable excepted materials or
indicate ``none'']
* * * * *
[FR Doc. 2010-24206 Filed 9-28-10; 8:45 am]
BILLING CODE 6820-EP-P