[Federal Register Volume 77, Number 224 (Tuesday, November 20, 2012)]
[Rules and Regulations]
[Pages 69723-69726]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-27906]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 25 and 52
[FAC 2005-62; FAR Case 2012-027; Item III; Docket 2012-0027, Sequence
01]
RIN 9000-AM43
Federal Acquisition Regulation; Free Trade Agreement--Panama
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule.
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SUMMARY: DoD, GSA, and NASA are issuing an interim rule amending the
Federal Acquisition Regulation (FAR) to implement the United States--
Panama Trade Promotion Agreement. This Trade Promotion Agreement is a
free trade agreement that provides for mutually non-discriminatory
treatment of eligible products and services from Panama.
DATES: Effective date: November 20, 2012.
Comment date: Interested parties should submit written comments to
the Regulatory Secretariat on or before January 22, 2013 to be
considered in the formulation of a final rule.
ADDRESSES: Submit comments identified by FAC 2005-62, FAR Case 2012-
027, by any of the following methods:
Regulations.gov: http://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by searching for ``FAR Case
2012-027''. Select the link ``Submit a Comment'' that corresponds with
``FAR Case 2012-027.'' Follow the instructions provided at the ``Submit
a Comment'' screen. Please include your name, company name (if any),
and ``FAR Case 2012-027'' on your attached document.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (MVCB), ATTN: Hada Flowers, 1275 First Street NE., 7th
Floor, Washington, DC 20417.
Instructions: Please submit comments only and cite FAC 2005-62, FAR
Case 2012-027, 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: Ms. Cecelia L. Davis, Procurement
Analyst, at 202-219-0202, for clarification of content. For information
pertaining to status or publication schedules, contact the Regulatory
Secretariat at 202-501-4755. Please cite FAC 2005-62, FAR Case 2012-
027.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA are issuing an interim rule amending FAR part 25
and the corresponding provisions and clauses in part 52 to implement
the United States--Panama Trade Promotion Agreement Implementation Act
(Pub. L. 112-43) (19 U.S.C. 3805 note).
This Trade Promotion Agreement is designated in the FAR as the
Panama Free Trade Agreement (FTA). This FTA provides for--
Waiver of the applicability of the Buy American statute
(41 U.S.C. chapter 83) for some foreign supplies and construction
materials from Panama; and
Applicability of specified procurement procedures designed
to ensure fairness in the acquisition of supplies and services (see FAR
25.408).
II. Discussion and Analysis
This interim rule adds Panama to the definition of ``Free Trade
Agreement country'' in multiple locations in the FAR.
The Panama FTA covers acquisitions of supplies and services equal
to or exceeding $202,000. The threshold for the Panama FTA is
$7,777,000 for construction contracts. The Panama FTA threshold for
supplies and services is higher than the threshold for supplies and
services for most of the FTAs ($77,494), and equals the Bahrain,
Morocco, Oman, and Peru FTA thresholds for supplies and services
($202,000). The excluded services for the Panama FTA are the same as
for the Bahrain FTA, Dominican Republic--Central American FTA, Colombia
FTA, Chile FTA, NAFTA, Oman FTA, and Peru FTA.
III. Executive Order 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 a significant regulatory action and, therefore, was 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.
IV. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration 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. Although the rule now opens up
Government procurement to the goods and services of Panama, DoD, GSA,
and NASA 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 Defense Federal
Acquisition Regulation Supplement (DFARS) 225.401-70, and acquisitions
that are set aside or provide other form of preference for small
businesses are exempt. FAR 19.502-2 states that acquisitions of
supplies or services with an anticipated dollar value between $3,000
and $150,000 (with some exceptions) are automatically reserved for
small business concerns.
[[Page 69724]]
Therefore, an Initial Regulatory Flexibility Analysis has not been
performed. DoD, GSA, and NASA invite comments from small business
concerns and other interested parties on the expected impact of this
rule on small entities.
DoD, GSA, and NASA will also consider comments from small entities
concerning the existing regulations in subparts affected by the 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 2005-62, FAR Case
2012-027), in correspondence.
V. Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) 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 the Office of
Management and Budget Control Numbers 9000-0136, titled: Commercial
Item Acquisition, 9000-0130, titled: Buy American Act--Free Trade
Agreements--Israeli Trade Act Certificate, 9000-0025, titled: Trade
Agreements Certificate, and 9000-0141, titled: Buy American--
Construction, respectively. The impact, however, is negligible because
it is just a question of which category offered goods from Panama would
be listed under.
VI. 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 because the effective date of the Free Trade Agreement
with Panama is October 31, 2012. This is a reciprocal agreement,
approved by Congress and the President of the United States. It is
important for the United States Government to honor its new trade
obligations to Panama, as Panama in turn honors its new trade
obligations to the United States. However, pursuant to 41 U.S.C. 1707
and FAR 1.501-3(b), DoD, GSA, and NASA 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: November 9, 2012.
Laura Auletta,
Director, Office of Governmentwide Acquisition Policy, Office of
Acquisition Policy, Office of Governmentwide Policy.
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 is revised to read
as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51
U.S.C. 20113.
PART 25--FOREIGN ACQUISITION
25.003 [Amended]
0
2. Amend section 25.003 by removing from both the definition of
``Designated country'' in paragraph (2), and the definition of ``Free
Trade Agreement country'' the words ``Oman, Peru,'' and adding ``Oman,
Panama, Peru,'' in their place.
0
3. Amend section 25.400 by revising paragraphs (a)(2)(x) and
(a)(2)(xi); and adding paragraph (a)(2)(xii) to read as follows:
Sec. 25.400 Scope of subpart.
(a) * * *
(2) * * *
(x) Korea FTA (the United States-Korea Free Trade Agreement
Implementation Act (Pub. L. 112-41) (19 U.S.C 3805 note));
(xi) Colombia FTA (the United States-Colombia Trade Promotion
Agreement Implementation Act (Pub. L. 112-42) (19 U.S.C. 3805 note));
and
(xii) Panama FTA (the United States-Panama Trade Promotion
Agreement Implementation Act (Pub. L. 112-43) (19 U.S.C. 3805 note));
* * * * *
Sec. 25.401 [Amended]
0
4. Amend section 25.401 by removing from paragraph (b), in the table,
in the heading, ``Oman FTA, and Peru FTA'' and adding ``Oman FTA,
Panama FTA, and Peru FTA'' in its place.
0
5. Amend section 25.402 by revising the table in paragraph (b) to read
as follows:
Sec. 25.402 General.
* * * * *
(b) * * *
----------------------------------------------------------------------------------------------------------------
Supply Service Construction
contract contract contract
Trade agreement (equal to or (equal to or (equal to or
exceeding) exceeding) exceeding)
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WTO GPA......................................................... $202,000 $202,000 $7,777,000
FTAs:
Australia FTA............................................... 77,494 77,494 7,777,000
Bahrain FTA................................................. 202,000 202,000 10,074,262
CAFTA-DR (Costa Rica, Dominican Republic, El Salvador, 77,494 77,494 7,777,000
Guatemala, Honduras, and Nicaragua)........................
Chile FTA................................................... 77,494 77,494 7,777,000
Colombia FTA................................................ 77,494 77,494 7,777,000
Korea FTA................................................... 100,000 100,000 7,777,000
Morocco FTA................................................. 202,000 202,000 7,777,000
NAFTA:
--Canada.................................................... 25,000 77,494 10,074,262
--Mexico.................................................... 77,494 77,494 10,074,262
Oman FTA.................................................... 202,000 202,000 10,074,262
Panama FTA.................................................. 202,000 202,000 7,777,000
Peru FTA.................................................... 202,000 202,000 7,777,000
Singapore FTA............................................... 77,494 77,494 7,777,000
Israeli Trade Act............................................... 50,000 .............. ..............
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[[Page 69725]]
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
6. Amend section 52.212-3 by revising the date of the provision; and
paragraphs (g)(1)(i), (g)(1)(ii), and (g)(4) to read as follows:
52.212-3 Offeror Representations and Certifications--Commercial
Items.
* * * * *
Offeror Representations and Certifications--Commercial Items (NOV 2012)
* * * * *
(g)(1) Buy American Act--Free Trade Agreements--Israeli Trade
Act Certificate. (Applies only if the clause at FAR 52.225-3, Buy
American Act--Free Trade Agreements--Israeli Trade Act, is included
in this solicitation.)
(i) The offeror certifies that each end product, except those
listed in paragraph (g)(1)(ii) or (g)(1)(iii) of this provision, is
a domestic end product and that for other than COTS items, the
offeror has considered components of unknown origin to have been
mined, produced, or manufactured outside the United States. The
terms ``Bahrainian, Moroccan, Omani, Panamanian, or Peruvian end
product,'' ``commercially available off-the-shelf (COTS) item,''
``component,'' ``domestic end product,'' ``end product,'' ``foreign
end product,'' ``Free Trade Agreement country,'' ``Free Trade
Agreement country end product,'' ``Israeli end product,'' and
``United States'' are defined in the clause of this solicitation
entitled ``Buy American Act--Free Trade Agreements--Israeli Trade
Act.''
(ii) The offeror certifies that the following supplies are Free
Trade Agreement country end products (other than Bahrainian,
Moroccan, Omani, Panamanian, or Peruvian end products) or Israeli
end products as defined in the clause of this solicitation entitled
``Buy American Act--Free Trade Agreements--Israeli Trade Act'':
Free Trade Agreement Country End Products (Other than
Bahrainian, Moroccan, Omani, Panamanian, or Peruvian End Products)
or Israeli End Products:
Line Item No. Country of Origin
----------------------------------------- ---------------------------
----------------------------------------- ---------------------------
----------------------------------------- ---------------------------
[List as necessary]
* * * * *
(g)(4) Buy American Act--Free Trade Agreements--Israeli Trade
Act Certificate, Alternate III. If Alternate III to the clause at
FAR 52.225-3 is included in this solicitation, substitute the
following paragraph (g)(1)(ii) for paragraph (g)(1)(ii) of the basic
provision:
(g)(1)(ii) The offeror certifies that the following supplies are
Free Trade Agreement country end products (other than Bahrainian,
Korean, Moroccan, Omani, Panamanian, or Peruvian end products) or
Israeli end products as defined in the clause of this solicitation
entitled ``Buy American Act--Free Trade Agreements--Israeli Trade
Act'':
Free Trade Agreement Country End Products (Other than
Bahrainian, Korean, Moroccan, Omani, Panamanian, or Peruvian End
Products) or Israeli End Products:
Line Item No. Country of Origin
----------------------------------------- ---------------------------
----------------------------------------- ---------------------------
----------------------------------------- ---------------------------
[List as necessary]
* * * * *
0
7. Amend section 52.212-5 by revising the date of the clause and
paragraphs (b)(40) and (b)(41) 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 (NOV 2012)
* * * * *
(b) * * *
(40)(i) 52.225-3, Buy American Act--Free Trade Agreements--
Israeli Trade Act (NOV 2012) (41 U.S.C. chapter 83, 19 U.S.C. 3301
note, 19 U.S.C. 2112 note, 19 U.S.C. 3805 note, 19 U.S.C. 4001 note,
Pub. L. 103-182, 108-77, 108-78, 108-286, 108-302, 109-53, 109-169,
109-283, 110-138, 112-41, 112-42, and 112-43).
(ii) Alternate I (MAR 2012) of 52.225-3.
(iii) Alternate II (MAR 2012) of 52.225-3.
(iv) Alternate III (NOV 2012) of 52.225-3.
(41) 52.225-5, Trade Agreements (NOV 2012) (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 in paragraph (a) of ``Bahrainian, Moroccan,
Omani, or Peruvian end product'' and ``Free Trade Agreement country'';
0
c. Removing from paragraph (c) ``Oman, and Peru'' and ``Omani, or
Peruvian'' (twice) and adding ``Oman, Panama, and Peru'' and ``Omani,
Panamanian, or Peruvian'' (twice) in their places, respectively; and
0
d. Amending Alternate III by--
0
1. Revising the introductory text of Alternate III;
0
2. Revising the introductory paragraph of the definition of
``Bahrainian, Korean, Moroccan, Omani, or Peruvian end product'' and
removing from paragraphs (1) and (2) ``Oman, or Peru'' and adding
``Oman, Panama, or Peru'' in its place; and
0
3. Removing from paragraph (c) ``Oman, and Peru'' and ``Omani, or
Peruvian'' (twice) and adding ``Oman, Panama, and Peru'' and ``Omani,
Panamanian, or Peruvian'' (twice) in their places, respectively.
The revised text reads as follows:
52.225-3 Buy American Act--Free Trade Agreements--Israeli Trade Act.
* * * * *
Buy American Act--Free Trade Agreement--Israeli Trade Act (NOV 2012)
(a) Definitions. As used in this clause--
Bahrainian, Moroccan, Omani, Panamanian, or Peruvian end product
means an article that--
(1) Is wholly the growth, product, or manufacture of Bahrain,
Morocco, Oman, Panama, 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, Panama, 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, Colombia, Costa Rica, Dominican Republic, El Salvador,
Guatemala, Honduras, Korea (Republic of), Mexico, Morocco,
Nicaragua, Oman, Panama, Peru, or Singapore.
* * * * *
Alternate III (NOV 2012). As prescribed in 25.1101(b)(1)(iv),
delete the definition of ``Bahrainian, Moroccan, Omani, Panamanian,
or Peruvian end product'' and add in its place the following
definition of ``Bahrainian, Korean, Moroccan, Omani, Panamanian, or
Peruvian end product'' in paragraph (a) of the basic clause; and
substitute the following paragraph (c) for paragraph (c) of the
basic clause.
Bahrainian, Korean, Moroccan, Omani, Panamanian, or Peruvian end
product means an article that--
* * * * *
0
9. Amend section 52.225-4 by--
0
a. Revising the date of the provision;
0
b. Removing once from paragraph (a) and twice from paragraph (b)
``Omani, or Peruvian'' and adding ``Omani, Panamanian, or Peruvian'' in
its place; and
0
c. Revising the date of Alternate III; and removing twice from
paragraph (b) ``Omani, or Peruvian'' and adding ``Omani, Panamanian, or
Peruvian'' in their places.
[[Page 69726]]
The revised text reads as follows:
52.225-4 Buy American Act--Free Trade Agreements--Israeli Trade Act
Certificate.
* * * * *
Buy American Act--Free Trade Agreements--Israeli Trade Act Certificate
(NOV 2012)
* * * * *
0
10. Amend section 52.225-5 by--
0
a. Revising the date of the clause;
0
b. Removing from paragraph (a), in the definition of ``Designated
country'' in paragraph (2), ``Oman, Peru,'' and adding ``Oman, Panama,
Peru,'' in its place.
The revised text reads as follows:
52.225-5 Trade Agreements.
* * * * *
Trade Agreements (NOV 2012)
* * * * *
0
11. Amend section 52.225-11 by--
0
a. Revising the date of the clause;
0
b. Removing from paragraph (a), in the definition of ``Designated
country'' in paragraph (2), ``Oman, Peru,'' and adding ``Oman, Panama,
Peru,'' in its place; and
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 (NOV
2012)
* * * * *
0
12. Amend section 52.225-23 by--
0
a. Revising the date of the clause; and
0
b. Removing from paragraph (a), in the definition of ``Designated
country'' in paragraph (2), ``Oman, Peru,'' and adding ``Oman, Panama,
Peru,'' in its place; and removing from the definition of ``Recovery
Act designated country'' in paragraph (2) ``Oman, Peru,'' and adding
``Oman, Panama, Peru,'' in its place.
The revised text reads as follows:
52.225-23 Required Use of American Iron, Steel, and Manufactured
Goods--Buy American Act--Construction Materials Under Trade Agreements.
* * * * *
Required Use of American Iron, Steel, and Manufactured Goods--Buy
American Act--Construction Materials Under Trade Agreements (NOV 2012)
* * * * *
[FR Doc. 2012-27906 Filed 11-19-12; 8:45 am]
BILLING CODE 6820-EP-P