[Federal Register: April 12, 2006 (Volume 71, Number 70)]
[Proposed Rules]               
[Page 18694-18695]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12ap06-27]                         

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DEPARTMENT OF DEFENSE

48 CFR Part 225

RIN 0750-AF23

 
Defense Acquisition Regulations System; Defense Federal 
Acquisition Regulation Supplement; Buy American Act Exemption for 
Commercial Information Technology (DFARS Case 2005-D011)

AGENCY: Defense Acquisition Regulations System, 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 implement provisions of annual 
appropriations acts that authorize an exemption from the Buy American 
Act for the acquisition of commercial information technology.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before June 12, 2006 to be considered in 
the formation of the final rule.

ADDRESSES: You may submit comments, identified by DFARS Case 2005-D011, 
using any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 

Follow the instructions for submitting comments.
     E-mail: dfars@osd.mil. Include DFARS Case 2005-D011 in the 
subject line of the message.
     Fax: (703) 602-0350.
     Mail: Defense Acquisition Regulations System, Attn: Ms. 
Amy Williams, OUSD (AT&L) DPAP (DARS), IMD 3C132, 3062 Defense 
Pentagon, Washington, DC 20301-3062.
     Hand Delivery/Courier: Defense Acquisition Regulations 
System, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA 
22202-3402.
    Comments received generally will be posted without change to http://www.regulations.gov
, including any personal information provided.


FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, (703) 602-0328.

SUPPLEMENTARY INFORMATION: 

A. Background

    Section 535 of Division F of the Consolidated Appropriations Act, 
2004 (Pub. L. 108-199); Section 517 of Division H of the Consolidated 
Appropriations Act, 2005 (Pub. L. 108-447); and Section 717 of the 
Consolidated Appropriations Act, 2006 (Pub. L. 109-115) provide an 
exemption from the Buy American Act for the acquisition of information 
technology that is a commercial item. This proposed rule amends the 
acquisition procedures in DFARS part 225 to reflect the exemption. The 
proposed rule applies the same exemption to the Balance of Payments 
Program policy in DFARS subpart 225.75, since the Balance of Payments 
Program is an extension of the Buy American Act restrictions to 
acquisitions of supplies for overseas use. The proposed rule will 
eliminate the need for issuance of annual deviations to address the 
exemption.
    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 has prepared an initial regulatory flexibility analysis 
consistent with 5 U.S.C. 603. The analysis is summarized as follows:
    The objective of the proposed rule is to promote Government access 
to commercial information technology, by eliminating the application of 
domestic source requirements to the acquisition of such information 
technology. The proposed rule will apply to entities interested in 
providing commercial information technology products to

[[Page 18695]]

DoD. Such entities will no longer need to track the origin of 
components to determine if an information technology product complies 
with Buy American Act requirements. As a result, manufacturers of 
domestic components of information technology products may face 
increased competition from manufacturers of foreign components. There 
are no significant alternatives to the proposed rule that would 
accomplish the objectives of the applicable statutes.
    A copy of the analysis may be obtained from the point of contact 
specified herein. 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 
2005-D011.

C. Paperwork Reduction Act

    The proposed rule will reduce the information collection 
requirements that have been approved by the Office of Management and 
Budget, under Clearance Number 0704-0229, for use through May 31, 2007. 
Under this clearance, 36,175 annual burden hours have been approved for 
the provision at DFARS 252.225-7000, Buy American Act-Balance of 
Payments Program Certificate; and 1,000 annual burden hours have been 
approved for the provision at DFARS 252.225-7035, Buy American Act-Free 
Trade Agreements-Balance of Payments Program Certificate. DoD estimates 
that the proposed rule will result in a 5 percent reduction in the 
burden hours for the provision at DFARS 252.225-7000 (1,800 hours) and 
a 50 percent reduction in the burden hours for the provision at DFARS 
252.225-7035 (500 hours).

List of Subjects in 48 CFR Part 225

    Government procurement.

Michele P. Peterson,
Editor, Defense Acquisition Regulations System.
    Therefore, 48 CFR part 225 is proposed to be amended as follows:

PART 225--FOREIGN ACQUISITION

    1. The authority citation for 48 CFR part 225 continues to read as 
follows:


    Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.

    2. Section 225.1101 is amended by revising paragraph (2)(iii), 
paragraph (10)(i) introductory text, and paragraph (10)(ii) to read as 
follows:


225.1101  Acquisition of supplies.

* * * * *
    (2) * * *
    (iii) An exception to the Buy American Act or Balance of Payments 
Program applies (see FAR 25.103, 225.103, and 225.7501); or
* * * * *
    (10)(i) Except as provided in paragraph (10)(ii) of this section, 
use the clause at 252.225-7036, Buy American Act--Free Trade 
Agreements--Balance of Payments Program, instead of the clause at FAR 
52.225-3, Buy American Act--Free Trade Agreements--Israeli Trade Act, 
in solicitations and contracts for the items listed at 225.401-70, when 
the estimated value equals or exceeds $25,000, but is less than 
$193,000, and a Free Trade Agreement applies to the acquisition.
* * * * *
    (ii) Do not use the clause if--
    (A) Purchase from foreign sources is restricted (see 
225.401(a)(2)), unless the contracting officer anticipates a waiver of 
the restriction; or
    (B) Acquiring information technology that is a commercial item, 
using fiscal year 2004 or subsequent funds (Section 535 of Division F 
of the Consolidated Appropriations Act, 2004 (Pub. L. 108-199), and the 
same provision in subsequent appropriations acts).
* * * * *
    3. Section 225.7501 is amended by revising paragraphs (a)(2)(iv) 
and (v) and adding paragraph (a)(2)(vi) to read as follows:


225.7501  Policy.

* * * * *
    (a) * * *
    (2) * * *
    (iv) An industrial gas;
    (v) A brand drug specified by the Defense Medical Materiel Board; 
or
    (vi) Information technology that is a commercial item, using fiscal 
year 2004 or subsequent funds (Section 535 of Division F of the 
Consolidated Appropriations Act, 2004 (Pub. L. 108-199), and the same 
provision in subsequent appropriations acts);
* * * * *
[FR Doc. E6-5281 Filed 4-11-06; 8:45 am]

BILLING CODE 5001-08-P