[Federal Register Volume 76, Number 108 (Monday, June 6, 2011)]

[Rules and Regulations]

[Pages 32840-32841]

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

[FR Doc No: 2011-13648]

Vol. 76

Monday,

No. 108

June 6, 2011

Part IV

Department of Defense

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Defense Acquisition Regulations System

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48 CFR Parts 203, 204, 225, et al.

Defense Federal Acquisition Regulation Supplements; Final Rules and Proposed Rules

Federal Register / Vol. 76 , No. 108 / Monday, June 6, 2011 / Rules and Regulations

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 203 and 252

RIN 0750-AG97

(DFARS Case 2011-D006)

AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD).

ACTION: Final rule.

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SUMMARY: DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to make some administrative corrections relating to DFARS clause 252.203-7003, Agency Office of the Inspector General.

DATES: Effective Date: June 6, 2011.

FOR FURTHER INFORMATION CONTACT: Meredith Murphy, Defense Acquisition Regulations System, OUSD (AT&L) DPAP (DARS), 3060 Defense Pentagon, Room 3B855, Washington, DC 20301-3060. Telephone 703-602-1302; facsimile 703-602-0350. Please cite DFARS Case 2011-D006.

SUPPLEMENTARY INFORMATION:

I. Background

On September 27, 2010, DoD published a final rule under DFARS Case 2010-D015, DoD Office of the Inspector General (75 FR 59101). That final rule provided the address for the DoD Office of the Inspector General, as required by FAR clause 52.203-13, Contractor Code of Business Ethics and Conduct.

This final rule corrects two omissions in that rule published in September 2010. At 203.1004(a), the clause prescription did not include the title of the clause at 252.203-7003. This rule adds the clause title to the prescription.

The clause prescription at 203.1004 states that the clause at DFARS 252.203-7003 is used in solicitations and contracts that include the FAR clause at 52.203-13. FAR clause 52.203-13 is applicable to commercial items and is listed in FAR clause 52.212-5. If the contractor must make disclosures to the agency office of the Inspector General, as required by paragraph (b)(3)(i) of FAR 52.203-13, the contractor would need to know the address of the agency office of the Inspector General. However, DFARS case 2010-D015 did not add the DFARS clause at 252.203-7003, which provides the address of the DoD Office of the Inspector General, to the list of contract terms and conditions required to implement statutes or Executive orders applicable to Defense acquisitions of commercial items (DFARS 252.212-7001). This final rule remedies that omission. The rule also updates the list of clauses at 252.212-7001.

II. Executive Orders 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 not a significant regulatory action and, therefore, was not 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.

III. Regulatory Flexibility Act

The Regulatory Flexibility Act does not apply to this rule because an initial regulatory flexibility analysis is only required for proposed or interim rules that require publication for public comment (5 U.S.C. 603) and a final regulatory flexibility analysis is only required for final rules that were previously published for public comment, and for which an initial regulatory flexibility analysis was prepared (5 U.S.C. 604).

This final rule does not constitute a significant DFARS revision as defined at FAR 1.501-1 because this rule will not have a significant cost or administrative impact on contractors or offerors, or a significant effect beyond the internal operating procedures of the Government. Therefore, publication for public comment under 41 U.S.C. 1707 is not required.

IV. Paperwork Reduction Act

The rule does not impose any new information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Parts 203 and 252

Government procurement.

Ynette R. Shelkin,

Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR parts 203 and 252 are amended as follows:

1. The authority citation for 48 CFR parts 203 and 252 continues to read as follows:

Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

PART 203--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF

INTEREST

2. Amend section 203.1004 by revising paragraph (a) to read as follows:

203.1004 Contract clauses.

(a) Use the clause at 252.203-7003, Agency Office of the Inspector General, in solicitations and contracts that include the FAR clause 52.203-13, Contractor Code of Business Ethics and Conduct.

* * * * *

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

3. Amend section 252.212-7001 by revising the clause date and revising paragraph (b) to read as follows:

252.212-7001 Contract Terms and Conditions Required to Implement Statutes or Executive Orders Applicable to Defense Acquisitions of Commercial Items.

* * * * *

CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR EXECUTIVE ORDERS APPLICABLE TO DEFENSE ACQUISITIONS OF COMMERCIAL ITEMS (JUN 2011)

* * * * *

(b) The Contractor agrees to comply with any clause that is checked on the following list of Defense FAR Supplement clauses which, if checked, is included in this contract by reference to implement provisions of law or Executive orders applicable to acquisitions of commercial items or components.

(1) ---- 252.203-7000, Requirements Relating to Compensation of Former DoD Officials (JAN 2009) (Section 847 of Pub. L. 110-181).

(2) ----252.203-7003, Agency Office of the Inspector General (SEP 2010) (Section 6101 of Pub. L. 110-252, 41 U.S.C. 3509 note).

(3) ---- 252.205-7000, Provision of Information to Cooperative Agreement Holders (DEC 1991) (10 U.S.C. 2416).

(4) ---- 252.219-7003, Small Business Subcontracting Plan (DoD Contracts) (OCT 2010) (15 U.S.C. 637).

(5) ---- 252.219-7004, Small Business Subcontracting Plan (Test Program) (JAN 2011) (15 U.S.C. 637 note).

(6)(i) ---- 252.225-7001, Buy American Act and Balance of Payments Program (JAN 2009) (41 U.S.C. chapter 83, E.O. 10582).

(ii) ---- Alternate I (DEC 2010) of 252.225-7001.

(7) ---- 252.225-7008, Restriction on Acquisition of Specialty Metals (JUL 2009) (10 U.S.C. 2533b).

(8) ---- 252.225-7009, Restriction on Acquisition of Certain Articles Containing Specialty Metals (JAN 2011) (10 U.S.C. 2533b).

(9) ---- 252.225-7012, Preference for Certain Domestic Commodities (JUN 2010) (10 U.S.C. 2533a).

(10) ---- 252.225-7015, Restriction on Acquisition of Hand or Measuring Tools (JUN 2005) (10 U.S.C. 2533a).

(11) ---- 252.225-7016, Restriction on Acquisition of Ball and Roller Bearings (DEC 2010) (Section 8065 of Pub. L. 107-117 and the same restriction in subsequent DoD appropriations acts).

(12)(i) ---- 252.225-7021, Trade Agreements (NOV 2009) (19 U.S.C. 2501-2518 and 19 U.S.C. 3301 note).

(ii) ---- Alternate I (SEP 2008) of 252.225-7021.

(iii) ---- Alternate II (DEC 2010) of 252.225-7021.

(13) ---- 252.225-7027, Restriction on Contingent Fees for Foreign Military Sales (APR 2003) (22 U.S.C. 2779).

(14) ---- 252.225-7028, Exclusionary Policies and Practices of Foreign Governments (APR 2003) (22 U.S.C. 2755).

(15)(i) ---- 252.225-7036, Buy American Act--Free Trade Agreements--Balance of Payments Program (DEC 2010) (41 U.S.C. chapter 83, and 19 U.S.C. 3301 note).

(ii) ---- Alternate I (JUL 2009) of 252.225-7036.

(iii) ---- Alternate II (DEC 2010) of 252.225-7036.

(iv) ---- Alternate III (DEC 2010) of 252.225-7036.

(16) ---- 252.225-7038, Restriction on Acquisition of Air

Circuit Breakers (JUN 2005) (10 U.S.C. 2534(a)(3)).

(17) ---- 252.226-7001, Utilization of Indian Organizations, Indian-Owned Economic Enterprises, and Native Hawaiian Small Business Concerns (SEP 2004) (Section 8021 of Pub. L. 107-248 and similar sections in subsequent DoD appropriations acts).

(18) ---- 252.227-7015, Technical Data--Commercial Items (MAR 2011) (10 U.S.C. 2320).

(19) ---- 252.227-7037, Validation of Restrictive Markings on Technical Data (SEP 1999) (10 U.S.C. 2321).

(20) ---- 252.232-7003, Electronic Submission of Payment Requests and Receiving Reports (MAR 2008) (10 U.S.C. 2227).

(21) ---- 252.237-7010, Prohibition on Interrogation of Detainees by Contractor Personnel (NOV 2010) (Section 1038 of Pub. L. 111-84).

(22) ---- 252.237-7019, Training for Contractor Personnel Interacting with Detainees (SEP 2006) (Section 1092 of Pub. L. 108-375).

(23) ---- 252.243-7002, Requests for Equitable Adjustment (MAR 1998) (10 U.S.C. 2410).

(24) ---- 252.246-7004, Safety of Facilities, Infrastructure, and Equipment For Military Operations (OCT 2010) (Section 807 of Pub. L. 111-84).

(25)---- 252.247-7003, Pass-Through of Motor Carrier Fuel Surcharge Adjustment to the Cost Bearer (SEP 2010) (Section 884 of Pub. L. 110-417).

(26)(i) ---- 252.247-7023, Transportation of Supplies by Sea (MAY 2002) (10 U.S.C. 2631).

(ii) ---- Alternate I (MAR 2000) of 252.247-7023.

(iii) ---- Alternate II (MAR 2000) of 252.247-7023.

(iv) ---- Alternate III (MAY 2002) of 252.247-7023.

(27) ---- 252.247-7024, Notification of Transportation of Supplies by Sea (MAR (2000) (10 U.S.C. 2631).

[FR Doc. 2011-13648 Filed 6-3-11; 8:45 am]

BILLING CODE 5001-08-P

[Federal Register Volume 76, Number 108 (Monday, June 6, 2011)]

[Rules and Regulations]

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

[FR Doc No: 2011-13368]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 225

RIN 0750-AH22

Defense Federal Acquisition Regulation Supplement; Fire-Resistant Fiber for Production of Military Uniforms (DFARS Case 2011-D021)

AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD).

ACTION: Interim rule with request for comments.

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SUMMARY: DoD is issuing an interim rule to implement section 821 of the National Defense Authorization Act for Fiscal Year 2011. Section 821 prohibits specification of the use of fire-resistant rayon fiber in solicitations issued before January 1, 2015.

DATES: Effective date: June 6, 2011.

Comment date: Comments on the interim rule should be submitted in writing to the address shown below on or before August 5, 2011.

ADDRESSES: Submit comments identified by DFARS Case 2011-D021, using any of the following methods:

[cir] Regulations.gov: http://www.regulations.gov.

Submit comments via the Federal eRulemaking portal by inputting ``DFARS Case 2011-D021'' under the heading ``Enter keyword or ID'' and selecting ``Search.'' Select the link ``Submit a Comment'' that corresponds with ``DFARS Case 2011-D021.'' Follow the instructions provided at the ``Submit a Comment'' screen. Please include your name, company name (if any), and ``DFARS Case 2011-D021'' on your attached document.

[cir] E-mail: dfars@osd.mil. Include DFARS Case 2011-D021 in the subject line of the message.

[cir] Fax: 703-602-0350.

[cir] Mail: Defense Acquisition Regulations System, Attn: Amy G. Williams, OUSD (AT&L) DPAP/DARS, Room 3B855, 3060 Defense Pentagon, Washington, DC 20301-3060.

Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To confirm receipt of your comment(s), please check http://www.regulations.gov approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail).

SUPPLEMENTARY INFORMATION:

I. Background

This interim rule amends DFARS subpart 225.70 to implement section 821 of the National Defense Authorization Act for Fiscal Year 2011 (Pub. L. 111-383). Section 821 prohibits specification of the use of fire-resistant rayon fiber in solicitations issued before January 1, 2015.

II. Executive Orders 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 not a significant regulatory action and, therefore, was not 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.

III. Regulatory Flexibility Act

DoD does 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. However, an initial regulatory flexibility analysis has been prepared and is summarized as follows:

The objectives of this interim rule are to prohibit specification of the use of fire-resistant rayon fiber in solicitations issued before January 1, 2015, as required by the statute. This will provide opportunity for offerors to propose alternative solutions to meet DoD requirements.

The legal basis for this interim rule is section 821 of the National Defense Authorization Act for Fiscal Year 2011 (Pub. L. 111-383).

The two major sources of fire-resistant fiber used in DoD products either come from DuPont (product called Nomex) or The Lenzing Group, Austria (product called Fire-Resistant Rayon). In order to manufacture a fire-resistant uniform currently being sourced by the services, three products are blended together to meet desired cost, availability, and performance criteria:

Nylon;

Para-aramid (Kevlar by DuPont or Twaron by Teijin (the Netherlands)); and

Either Nomex (DuPont) or Fire-Resistant Rayon (Lenzing).

DuPont is a domestic large business and the other players are foreign. Therefore, this rule will have minimal impact on U.S. small businesses.

This rule does not impose any reporting or recordkeeping requirements.

The rule does not duplicate, overlap, or conflict with any other Federal rules.

There are no significant alternatives to accomplish the stated objectives of this rule. The rule specifically implements the statutory requirement.

DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

DoD will also consider comments from small entities concerning the existing regulations in subparts 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 (DFARS Case 2011-D021) in correspondence.

V. Paperwork Reduction Act

The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

VI. Determination To Issue an Interim Rule

A determination has been made under the authority of the Secretary of Defense, that urgent and compelling reasons exist to publish an interim rule prior to affording the public an opportunity to comment. This interim rule implements section 821 of the National Defense Authorization Act for Fiscal Year 2011. This requirement became effective upon enactment on January 7, 2011. This action is necessary in order to enable contracting officers to comply with this new requirement. Comments received in response to this interim rule will be considered in the formation of the final rule.

List of Subjects in 48 CFR Part 225

Government procurement.

Ynette R. Shelkin,

Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR part 225 is 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. 1303 and 48 CFR chapter 1.

2. In subpart 225.70, add section 225.7016 to read as follows:

225.7016 Prohibition.

In accordance with section 821 of the National Defense Authorization Act for Fiscal Year 2011, do not include in any solicitation issued before January 1, 2015, a requirement that proposals submitted pursuant to such solicitation shall include the use of fire-resistant rayon fiber.

[FR Doc. 2011-13368 Filed 6-3-11; 8:45 am]

BILLING CODE 5001-08-P

[Federal Register Volume 76, Number 108 (Monday, June 6, 2011)]

[Rules and Regulations]

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

[FR Doc No: 2011-13797]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 225 and 252

RIN 0750-AH16

Defense Federal Acquisition Regulation Supplement; Foreign

Acquisition Amendments (DFARS Case 2011-D017)

AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD).

ACTION: Final rule.

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SUMMARY: DoD is amending the Defense Federal Acquisition Regulation Supplement (DFARS) to correct several anomalies resulting from recent changes relating to source of ball and roller bearing components, eligibility of Peruvian end products under trade agreements, and participation of foreign contractors in acquisitions in support of operations in Afghanistan.

DATES: Effective Date: June 6, 2011.

FOR FURTHER INFORMATION CONTACT: Ms. Amy G. Williams, Defense Acquisition Regulations System, OUSD (AT&L) DPAP/DARS, Room 3B855, 3060 Defense Pentagon, Washington, DC 20301-3060. Telephone 703-602-0328; facsimile 703-602-0350.

SUPPLEMENTARY INFORMATION:

I. Background

DoD is amending the DFARS to correct several anomalies resulting from recent changes relating to source of ball and roller bearing components, participation of foreign contractors in acquisitions in support of operations in Afghanistan, and eligibility of Peruvian end products under trade agreements.

A. Restriction on Ball and Roller Bearings

DoD published a proposed rule, Restrictions on Ball and Roller Bearings (DFARS Case 2006-D029), in the Federal Register (75 FR 25167) on May 7, 2010 with request for comments. DoD received comments from three respondents and addressed the comments in the publication of the final rule (75 FR 76297) on December 8, 2010. DFARS Case 2006-D029 retained the existing definition of ``bearing component''. As used in DFARS part 225 and the DFARS clause 252.225-7016, ``bearing component'' means the bearing element, retainer, inner race, or outer race (see 252.225-7016(a)). However, that rule added a new requirement at 225.7009-2(a)(2) and 252.225-7016(b)(2) that for each ball or roller bearing, the cost of the bearing components ``mined, produced, or manufactured'' in the United States or Canada must exceed 50 percent of the total cost of the bearing components of that ball or roller bearing.

The phrase ``mined, produced, or manufactured'' was adopted from the Buy American Act, which applies broadly to many types of items.

This rule applies only to bearing components, which are manufactured items and not mined or produced. As used in the DFARS, the term ``bearing component'' does not refer to the materials that are utilized in the manufacture of the bearing components. There is no restriction with regard to where the iron ore is mined or where the resultant steel in a bearing component is produced. The requirement at 225.7009-2(a)(2) and 252.225-7016(b)(2) that for each ball or roller bearing, the cost of the bearing components ``mined, produced, or manufactured'' in the United States or Canada must exceed 50 percent of the total cost of the bearing components of that ball or roller bearing, has the same meaning as a requirement that for each ball or roller bearing, the cost of the bearing components ``manufactured'' in the United States or Canada must exceed 50 percent of the total cost of the bearing components of that ball or roller bearing. The words ``mined'' and ``produced'' are extraneous because they are inapplicable, since a ball or roller bearing is manufactured and not mined or produced. Therefore, this final rule under DFARS Case 2011-D017 removes the words ``mined, produced, or'' and retains only the term ``manufactured'', to clarify the definition and alleviate any confusion these extraneous words may cause industry or Government personnel.

This final rule also makes a conforming change to the clause date for 252.225-7016, Restriction on the Acquisition of Ball and Roller Bearings, in the clause at 252.212-7001, Contract Terms and Conditions Required to Implement Statutes or Executive Orders Applicable to Defense Acquisitions of Commercial Items.

B. Foreign Participation in Acquisitions in Support of Operations in Afghanistan

DoD published a proposed rule, ``Foreign Participation in Acquisitions in Support of Operations in Afghanistan'' on January 6, 2010 (DFARS Case 2009-D012)(75 FR 832), with request for public comments. DoD did not receive any public comments on the proposed rule. DoD published the final rule in the Federal Register (75 FR 81915) on December 29, 2010.

Although no public comments were received, DoD realized that the requirement for a contractor to inform its government of its participation in the acquisition should only apply if the contractor is from a South Caucasus/Central and South Asian (SC/CASA) state. The United States Trade Representative, when providing authority to the Secretary of Defense to waive the procurement prohibition in section 302(a) of the Trade Agreements Act of 1979 (USTR letter of June 2, 2009), included the provision that contractors from the SC/CASA states, which would not have been eligible to participate in the acquisition absent the waiver, advise their governments that they will generally not have such opportunities in the future unless their governments provide reciprocal procurement opportunities to U.S. products and services.

This requirement has meaning only when applied to a contractor from

an SC/CASA state, to which the waiver applies. The required statement that the contractor would not have been eligible to participate in the acquisition absent the waiver would not be true for a contractor from other than an SC/CASA state. It would also be meaningless to ask a U.S. contractor to notify its government (the U.S. Government) that it should provide reciprocal procurement opportunities to U.S. products and services. However, the proposed rule did not explicitly limit the application of this requirement to contractors from an SC/CASA state.

The final rule under DFARS Case 2009-D012 revised paragraph (d) of Alternate II of DFARS clause 252.225-7021, Trade Agreements, to limit applicability to contractors from an SC/CASA state. The final rule inadvertently omitted similar amendment of the same requirement in paragraphs (d) of Alternates II and III of DFARS clause 252.225-7045, Balance of Payments Program--Construction Material Under Trade Agreements.

This final rule under DFARS Case 2011-D017 remedies that oversight, adding ``If the Contractor is from an SC/CASA state'' to paragraph (d) in Alternates II and III of DFARS clause 252.225-7045, Buy American Act--Free Trade Agreements--Balance of Payments Program Certificate, to conform to the same revision made under DFARS Case 2009-D012 to paragraph (d) of Alternate I of DFARS clause 252.225-7021.

C. Trade Agreements--Peru

The Peruvian Free Trade Agreement was initially implemented by DFARS Case 2008-D046, Trade Agreement--Costa Rica and Peru, that was published as an interim rule with a request for public comment (74 FR 37650). No public comments were received and the interim rule was converted to a final rule without change on July 29, 2009 (75 FR 179).

This final rule added Peru to the definition of ``Free Trade Agreement country'' in DFARS clauses 252.225-7021, 252.225-7036, and 252.225-7045.

In order to make some further implementation of the Peru Free Trade Agreement in the trade agreements clauses, DoD utilized the final rule issued under DFARS Case 2009-D012, although the issue of the Peru Free Trade Agreement was peripheral to the main purpose of that case. DoD added a definition of Peruvian end products and added Peruvian end products to the Free Trade Agreement country end products that are not eligible products in the provision and clause at DFARS 252.225-7035 and 252.225-7036. This is consistent with the Peru Free Trade Agreement and the FAR, and ensures that Peruvian end products are not erroneously treated as eligible products in acquisitions that do not exceed the World Trade Organization Government Procurement Agreement threshold.

This change, however, created an inconsistency between Alternate I and the basic clause 252.225-7035. The basic clause now includes in paragraph (b)(2) the phrase ``Free Trade Agreement country end products other than Bahrainian end products or Moroccan end products, or Peruvian end products.'' The Alternate I, which limits the applicable Free Trade Agreements to just Canada, misquotes the phrase that is to be removed and replaced with the phrase ``Canadian end products.''

Alternate I still quotes the old unrevised phrase as ``Free Trade Agreement country end products other than Bahrainian end products or Moroccan end products'' and leaves off ``or Peruvian end products'' that was added by 2009-D012 final rule. Even though this phrase is being removed by Alternate I, the misquote creates an inconsistency, which might cause some confusion, although all of the corresponding regulations make it clear that the Peruvian Trade Agreement does not apply below the threshold of $70,079, when Alternate I is used (see threshold at FAR 25.402(b), clause prescription at DFARS 225.1101(10)(i), and comparable FAR clause 52.225-3 Alternate I).

These DFARS changes are characterized as clarifications and corrections to DFARS language that do not constitute significant revisions, as defined in FAR 1.501-1, because they do not alter the substantive meaning of the coverage.

II. Executive Orders 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 not a significant regulatory action and, therefore, was not 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.

III. Regulatory Flexibility Act

The Regulatory Flexibility Act does not apply to this rule because an initial regulatory flexibility analysis is only required for proposed or interim rules that require publication for public comment (5 U.S.C. 603) and a final regulatory flexibility analysis is only required for final rules that were previously published for public comment, and for which an initial regulatory flexibility analysis was prepared (5 U.S.C. 604).

This final rule does not constitute a significant DFARS revision as defined at FAR 1.501-1 because this rule will not have a significant cost or administrative impact on contractors or offerors, or a significant effect beyond the internal operating procedures of the Government. Therefore, publication for public comment under 41 U.S.C. 1707 is not required.

IV. Paperwork Reduction Act

The final rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Parts 225 and 252

Government procurement.

Ynette R. Shelkin,

Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR parts 225 and 252 are amended as follows:

1. The authority citation for 48 CFR parts 225 and 252 continues to read as follows:

Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

PART 225--FOREIGN ACQUISITION

225.7009-2 [Amended]

2. Amend section 225.7009-2 by removing from paragraph (a)(2) the words ``mined, produced, or''.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

252.212-7001 [Amended]

3. Amend section 252.212-7001 by revising the clause date in paragraph (b)(11) by removing ``(DEC 2010)'' and adding in its place ``(JUN 2011)''.

252.225-7016 [Amended]

4. Amend section 252.225-7016 as follows:

a. Revise the clause date by removing ``(DEC 2010)'' and adding in its place ``(JUN 2011)''.

b. Amend paragraph (b)(2) by removing the words ``mined, produced, or''.

5. Amend section 252.225-7035 by revising Alternate I to read as follows:

252.225-7035 Buy American Act--Free Trade Agreements--Balance of Payments Program Certificate

ALTERNATE I (JUN 2011)

As prescribed in 225.1101(10)(ii), substitute the phrase ``Canadian end product'' for the phrases ``Bahrainian end product,'' ``Free Trade Agreement country,'' ``Free Trade Agreement country end product,'' ``Moroccan end product,'' and ``Peruvian end product'' in paragraph (a) of the basic provision; substitute the phrase ``Canadian end products'' for the phrase ``Free Trade Agreement country end products other than Bahrainian end products, Moroccan end products, or Peruvian end products'' in paragraphs (b)(2) and (c)(2)(ii) of the basic provision; and delete the phrase ``Australian or'' from paragraph (c)(2)(i) of the basic provision.

252.225-7045 [Amended]

6. Amend section 252.225-7045 as follows:

a. Revise the clause date of Alternate II by removing ``(DEC 2010)'' and adding in its place ``(JUN 2011)''.

b. Amend paragraph (d) of Alternate II by removing ``The'' and adding in its place ``If the Contractor is from an SC/CASA state, the''.

c. Revise the clause date of Alternate III by removing ``(DEC 2010)'' and adding in its place ``(JUN 2011)''.

d. Amend paragraph (d) of Alternate III by removing ``The'' and adding in its place ``If the Contractor is from an SC/CASA state, the''.

[FR Doc. 2011-13797 Filed 6-3-11; 8:45 am]

BILLING CODE 5001-08-P

[Federal Register Volume 76, Number 108 (Monday, June 6, 2011)]

[Proposed Rules]

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

[FR Doc No: 2011-13367]

Federal Register / Vol. 76, No. 108 / Monday, June 6, 2011 / Proposed

Rules

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 252

RIN 0750-AH21

Defense Federal Acquisition Regulation Supplement; Definition of

``Qualifying Country End Product'' (DFARS Case 2011-D028)

AGENCY: Defense Acquisition Regulations System, Department of Defense

(DoD).

ACTION: Proposed rule.

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SUMMARY: DoD is issuing a proposed rule to amend the definition of ``qualifying country end product'' by eliminating the component test for qualifying country end products that are commercially available off-the-shelf items.

DATES: Comments on the proposed rule should be submitted in writing to the address shown below on or before August 5, 2011, to be considered in the formation of the final rule.

ADDRESSES: Submit comments identified by DFARS Case 2011-D028, using any of the following methods:

[cir] Regulations.gov: http://www.regulations.gov.

Submit comments via the Federal eRulemaking portal by inputting ``DFARS Case 2011-D028'' under the heading ``Enter keyword or ID'' and selecting ``Search.'' Select the link ``Submit a Comment'' that corresponds with ``DFARS Case 2011-D028.'' Follow the instructions provided at the ``Submit a Comment'' screen. Please include your name, company name (if any), and ``DFARS Case 2011-D028'' on your attached document.

[cir] E-mail: dfars@osd.mil. Include DFARS Case 2011-D028 in the subject line of the message.

[cir] Fax: 703-602-0350.

[cir] Mail: Defense Acquisition Regulations System, Attn: Amy G. Williams, OUSD (AT&L) DPAP/DARS, Room 3B855, 3060 Defense Pentagon, Washington, DC 20301-3060.

Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To confirm receipt of your comment(s), please check http://www.regulations.gov approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail).

SUPPLEMENTARY INFORMATION:

I. Background

This rule proposes to amend the definition of ``qualifying country end product'' to remove the component test for qualifying country end products that are commercially available off-the-shelf items.

Under the Buy American Act, there is a two-part test to define a domestic end product. The product must be manufactured in the United States and there is a formula based on the cost of foreign components compared to the cost of all components. Under FAR Case 2000-305, the component test was waived for the acquisition of commercially available off-the-shelf (COTS) items (see FAR 25.001(c)(1)). Likewise, the component test for the DFARS definition of ``domestic end product'' was waived by the interim rule of DFARS Case 2008-D009 (74 FR 2422, January 15, 2009) and final rule published December 24, 2009 (74 FR 68384). These changes were based on a determination signed by the Administrator for Federal Procurement Policy on February 14, 2008, regarding laws applicable to the acquisition of COTS items. According to the determination, the component test of the Buy American Act (41 U.S.C. chapter 83) does not apply to COTS items.

The definition of ``qualifying country end product'' is not statutory, but it was modeled after the definition of ``domestic end product'' as a matter of policy. Therefore, it is within the authority of DoD to change this definition as a matter of policy, to waive the component test for qualifying country end products that are COTS items, so that it will not be necessary to try to track the origin of components of COTS items that are manufactured in a qualifying country, in order to determine that an end product is a qualifying country end product.

II. Executive Orders 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.

III. Regulatory Flexibility Act

DoD does not expect this rule to have a significant 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 only affects manufacturers of COTS items in qualifying countries, removing an administrative burden for the qualifying country manufacturer and the Government personnel acquiring the items. The Regulatory Flexibility Act is intended to protect small entities in the United States, not foreign entities, regardless of size. For the definition of ``small business'', the Regulatory Flexibility Act refers to the Small Business Act, which in turn allows the SBA Administrator to specify detailed definitions or standards. 5 U.S.C. 601(3) and 15 U.S.C. 632(a). The SBA regulations at 13 CFR 121.105 discuss who is a small business: '' (a)(1) Except for small agricultural cooperatives, a business concern eligible for assistance from SBA as a small business is a business entity organized for profit, with a place of business located in the United States, and which operates primarily within the United States or which makes a significant contribution to the U.S. economy through payment of taxes or use of American products, materials or labor.'' The comparable change has already been enacted for the benefit of U.S. manufacturers of COTS items in the DFARS which aligns with the FAR. Therefore, an initial regulatory flexibility analysis has not been performed. DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

DoD will also consider comments from small entities concerning the existing regulations in subparts 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 (DFARS Case 2011-D029) in correspondence.

V. Paperwork Reduction Act

The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Part 252

Government procurement.

Ynette R. Shelkin,

Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR part 252 is proposed to be amended as follows:

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

1. The authority citation for 48 CFR part 252 continues to read as follows:

Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

2. Amend section 252.212-7001 by revising the clause date, and paragraphs (b)(5)(i), (b)(11)(i), (b)(14)(i), (b)(20), and (b)(21) to read as as follows:

252.212-7001 Contract terms and conditions required to implement statutes or executive orders applicable to defense acquisitions of commercial items.

* * * * *

CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR EXECUTIVE ORDERS APPLICABLE TO DEFENSE ACQUISITIONS OF COMMERCIAL ITEMS (DATE)

* * * * *

(b) * * *

(5)(i)--------252.225-7001, Buy American Act and Balance of Payments Program (DATE) (41 U.S.C. chapter 83, E.O. 10582).

* * * * *

(11)(i)--------252.225-7021, Trade Agreements (DATE) (19 U.S.C. 2501-2518 and 19 U.S.C. 3301 note)

* * * * *

(14)(i)-------- 252.225-7036, Buy American Act--Free Trade Agreements--Balance of Payments Program (DATE) (41 U.S.C. chapter 83 and 19 U.S.C. 3301 note)

* * * * *

(20)--------252.237-7010, Prohibition on Interrogation of Detainees by Contractor Personnel (NOV 2010) (Section 1038 of Pub. L. 111-84).

(21)--------252.237-7019, Training for Contractor Personnel Interacting with Detainees (SEP 2006) (Section 1092 of Public Law 108-375).

* * * * *

3. Amend section 252.225-7001 by revising the clause date, paragraph (a)(8), and paragraph (b) to read as follows:

252.225-7001 Buy American Act and Balance of Payments Program.

* * * * *

BUY AMERICAN ACT AND BALANCE OF PAYMENTS PROGRAM (DATE)

(a) * * *

(8) Qualifying country end product means--

(i) An unmanufactured end product mined or produced in a qualifying country; or

(ii) An end product manufactured in a qualifying country if--

(A) The cost of the following types of components exceeds 50 percent of the cost of all its components:

(1) Components mined, produced, or manufactured in a qualifying country.

(2) Components mined, produced, or manufactured in the United States.

(3) Components of foreign origin of a class or kind for which the Government has determined that sufficient and reasonably available commercial quantities of a satisfactory quality are not mined, produced, or manufactured in the United States; or

(B) The end product is a COTS item.

* * * * *

(b) This clause implements the Buy American Act (41 U.S.C. chapter 83). In accordance with 41 U.S.C. 1907, the component test of the Buy American Act is waived for an end product that is a COTS item (see section 12.505(a)(1) of the Federal Acquisition Regulation). Unless otherwise specified, this clause applies to all line items in the contract.

* * * * *

4. Amend section 252.225-7021 by revising the clause date and paragraph (a)(10) to read as follows:

252.225-7021 Trade agreements.

* * * * *

TRADE AGREEMENTS (DATE)

(a) * * *

(10) Qualifying country end product means--

(i) An unmanufactured end product mined or produced in a qualifying country; or

(ii) An end product manufactured in a qualifying country if--

(A) The cost of the following types of components exceeds 50 percent of the cost of all its components:

(1) Components mined, produced, or manufactured in a qualifying country.

(2) Components mined, produced, or manufactured in the United States.

(3) Components of foreign origin of a class or kind for which the Government has determined that sufficient and reasonably available commercial quantities of a satisfactory quality are not mined, produced, or manufactured in the United States; or

(B) The end product is a COTS item.

* * * * *

5. Amend section 252.225-7036 by revising the clause date and paragraph (a)(13) to read as follows:

252.225-7036 Buy American Act--Free Trade Agreements--Balance of Payments Program.

* * * * *

BUY AMERICAN ACT--FREE TRADE AGREEMENTS--BALANCE OF PAYMENTS PROGRAM (DATE)

(a) * * *

(13) Qualifying country end product means--

(i) An unmanufactured end product mined or produced in a qualifying country; or

(ii) An end product manufactured in a qualifying country if--

(A) The cost of the following types of components exceeds 50 percent of the cost of all its components:

(1) Components mined, produced, or manufactured in a qualifying country.

(2) Components mined, produced, or manufactured in the United States.

(3) Components of foreign origin of a class or kind for which the Government has determined that sufficient and reasonably available commercial quantities of a satisfactory quality are not mined, produced, or manufactured in the United States; or

(B) The end product is a COTS item.

* * * * *

[FR Doc. 2011-13367 Filed 6-3-11; 8:45 am]

BILLING CODE 5001-08-P

[Federal Register Volume 76, Number 108 (Monday, June 6, 2011)]

[Proposed Rules]

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

[FR Doc No: 2011-13365]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 203, 204, and 252

RIN 0750-AG99

Defense Federal Acquisition Regulation Supplement; Representation Relating to Compensation of Former DoD Officials (DFARS Case 2010-D020)

AGENCY: Defense Acquisition Regulations System; Department of Defense (DoD).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to require that offerors represent whether former DoD officials employed by the offeror are in compliance with post-employment restrictions.

DATES: Comments on the proposed rule should be submitted in writing to the address shown below on or before August 5, 2011, to be considered in the formation of the final rule.

ADDRESSES: Submit comments identified by DFARS Case 2010-D020, using any of the following methods:

[cir] Regulations.gov: http://www.regulations.gov.

Submit comments via the Federal eRulemaking portal by inputting ``DFARS Case 2010-D020'' under the heading ``Enter keyword or ID'' and selecting ``Search.'' Select the link ``Submit a Comment'' that corresponds with ``DFARS Case 2010-D020.'' Follow the instructions provided at the ``Submit a Comment'' screen. Please include your name, company name (if any), and ``DFARS Case 2010-D020'' on your attached document.

[cir] E-mail: dfars@osd.mil. Include DFARS Case 2010-D020 in the subject line of the message.

[cir] Fax: 703-602-0350.

[cir] Mail: Defense Acquisition Regulations System, Attn: Ms. Meredith Murphy, OUSD (AT&L) DPAP/DARS, Room 3B855, 3060 Defense Pentagon, Washington, DC 20301-3060.

Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To confirm receipt of your comment(s), please check http://www.regulations.gov approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail).

FOR FURTHER INFORMATION CONTACT: Ms. Meredith Murphy, Defense Acquisition Regulations System, OUSD (AT&L) DPAP/DARS, 3060 Defense Pentagon, Room 3B855, Washington, DC 20301-3060. Telephone 703-602-1302; facsimile 703-602-0350. Please cite DFARS Case 2010-D020.

SUPPLEMENTARY INFORMATION:

I. Background

A. Statutory Requirements

The principal statutory restrictions concerning post-government employment for DoD and other Federal employees after leaving Government employment are found in 18 U.S.C. 207 and 41 U.S.C. 2104 (formerly, 41 U.S.C. 423), and 5 CFR parts 2637 and 2641.

1. 18 U.S.C. 207

18 U.S.C. 207 prohibits an individual from representing a contractor to their former agency on particular matters involving specific parties that they handled while working for the Federal Government for defined cooling-off periods that vary according to the former official's involvement and position:

a. Former personnel are permanently barred from representing their new employer to their former agencies for matters on which they were personally and substantially involved.

b. Even if the former officials were not directly involved in the matter, former personnel may not represent their new employer to their former agency on matters that were pending under their official responsibility in their last year of service for two years after leaving Federal service.

c. Former senior-level officers and employees may not contact their former agency on particular government matters that are pending or are of substantial interest to the former agency for one year after leaving Federal service.

2. 41 U.S.C. 2104 (Formerly, 41 U.S.C. 423)

DoD and other Government acquisition officials may not accept compensation from a defense contractor during a one year cooling-off period if the official performed certain duties at DoD involving the contractor and a contract valued in excess of $10 million. However, the individual may accept employment from a division or affiliate that does not produce the same or similar items.

3. Section 847 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2008

Section 847 requires that senior DoD officials who have been personally and substantially involved in contracts over $10 million request a written post-employment ethics opinion before receiving compensation from a contractor. It also applies to the employees who are affected by the one-year compensation ban of 41 U.S.C. 2104.

B. Current Acquisition Regulations

1. FAR 3.104 implements 41 U.S.C 2104 and 18 U.S.C. 207.

2. DFARS 203.104 implements procurement integrity for DoD.

3. DFARS 203.171-3 is an implementation of section 847 of the NDAA for FY 2008. Pursuant to DFARS 203.171-3, defense contractors may not knowingly provide compensation to ``covered DoD officials'' (as defined by a January 2009 DFARS Clause 252.203-7000, Requirements Relating to Compensation of Former DoD Officials) who left Government employment on or after January 28, 2008, unless the contractor first determines that the former employee has received, or has requested at least 30 days prior to receiving compensation from the contractor, the post-employment ethics opinion regarding post-employment restrictions. DFARS 252.203-7000 incorporates this prohibition of knowingly compensating former DoD ``covered officials,'' into DoD contracts. The DFARS does not require additional action from the DoD contractor or covered employee in the event that the covered employee has not received an opinion on post-employment restrictions. In addition, the clause does not cover DoD employees who left the Government prior to January 28, 2008.

C. General Accountability Office (GAO) Study GAO-08-485

Congress included a provision in the National Defense Authorization Act for Fiscal Year 2007 (Pub. L. 109-364, section 851) requiring GAO to report on recent employment of former DoD Officials by major defense contractors. In May 2008, the GAO issued a report, ``Defense Contracting: Post-Government Employment of Former DoD Officials Needs Greater Transparency'' (GAO-08-485). GAO auditors focused on 52 major defense contractors.

The GAO found that contractors under-reported the employment of former DoD officials to the extent that they employed almost twice as many they reported.

GAO estimated that approximately 422 former DoD officials (post-Government employment) were working on defense contracts under the responsibility of their former agency. At least nine of those individuals could have been performing services under the same contract for which they had prior program responsibility. GAO concluded that the results of the study indicated that defense contractors may employ a substantial number of former DoD officials on assignments related to their former positions.

According to GAO, DoD does not have a mechanism for monitoring former senior officials and acquisition officials when they begin their new jobs with defense contractors. DoD's practice of providing written ethics opinions to senior and acquisition officials who request them provides only limited transparency, although DoD is in the process of implementing a single database for collecting and retaining this information.

The GAO report showed that major defense contractors are not currently ensuring that former DoD senior officials and acquisition executives working on contracts are in compliance with post-employment restrictions. GAO concluded that greater transparency is needed by DoD with respect to former senior and acquisition executives (i.e., DoD ``covered officials'') to ensure compliance with applicable post-employment restrictions.

D. Proposed Rule

The proposed provision will remedy this deficiency by requiring offerors to submit representations at the time of contract award that all former DoD officials that are covered by the Procurement Integrity Act are in compliance with post-employment restrictions set forth in DFARS 203.171-3 and DFARS 252.203-7000. The representation goes further in also requiring a representation that former DoD employees employed by the contractor are also in compliance with additional post-employment restrictions of 18 U.S.C. 207 and 5 CFR parts 2637 and 2631, including FAR 3.104-2.

This representation will be required in contracts for commercial items. This representation is an enforcement mechanism for DFARS clause 252.203-7000, which is required in contracts for commercial items (see 252.212-7001(b)(1)). Therefore, the representation has been added to 252.212-7000.

II. Executive Orders 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 not a significant regulatory action and, therefore, was not 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.

III. Regulatory Flexibility Act

DoD does not expect this proposed 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. Nevertheless, an initial regulatory flexibility analysis has been prepared, and is summarized as follows:

This proposed rule is in response to a study by the General Accountability Office, ``Defense Contracting: Post-Government Employment of Former DoD Officials Needs Greater Transparency'' (GAO-08-485), issued in May 2008. The GAO found that contractors under-reported the employment of former DoD officials to the extent that they employed almost twice as many as they reported. The GAO report showed that major defense contractors are not currently ensuring that former DoD senior officials and acquisition executives working on contracts are in compliance with post-employment restrictions.

The objective of the proposed rule is to remedy this deficiency reported by the GAO by requiring offerors to submit representations at the time of contract award that all former DoD officials that are covered by the Procurement Integrity Act are in compliance with post-employment restrictions set forth in DFARS 203.171-3 and DFARS 252.203-7000, as required by section 847 of the National Defense Authorization Act for Fiscal Year 2008. The representation goes further in also requiring a representation that former DoD employees employed by the contractor are also in compliance with additional post-employment restrictions of 18 U.S.C. 207 and 5 CFR parts 2637 and 2631, including FAR 3.104-2.

The rule requires a representation from all offerors that respond to a DoD solicitation. However, the representation will only require preparatory effort if the offeror employs or otherwise provides compensation to former DoD officials covered by the Procurement Integrity Act. There is no impact on the offeror unless the former DoD officials covered by the Procurement Integrity Act are not in compliance with the post-employment restrictions. A covered DoD official is already defined in the clause at DFARS 252.203-7000, Requirements Relating to Compensation of Former DoD Employees. In the period of 2001-2006, 1.85 million former military and civilian personnel left DoD service. A ``covered DoD official'' only includes former DoD officials holding certain positions and who left within the past two years. The GAO found that the 1.85 million personnel who had left DoD service over a six-year period included only 35,192 who had served in the type of senior or acquisition official positions that made them subject to post-government employment restrictions, if they were subsequently hired by defense contractors. Dividing by 35,192 (to reduce the six-year period to a two-year period), we estimate that 11,730 of those officials would have left within the last two years. We estimate that 7,635 of these former officials may accept employment with a defense contractor (about 65 percent). The GAO study found 2,435 of these covered officials employed by 52 major defense contractors. Of the remaining 5,200 former officials covered by the Procurement Integrity Act, we estimate that 3,900 (75 percent) of them may work for small business concerns.

There is no information collection requirement associated with this proposed rule. Offerors make the representation by submission of an offer. They are not allowed to submit an offer if they can not make the representation. In order to submit an offer, small entities that hire a former DoD official covered by the Procurement Integrity Act will have to check the compliance of such employees with various applicable post-employment restrictions. DFARS 252.203-7000, Requirements Relating to Compensation of Former DoD Officials, already requires contractors to determine that a covered DoD official has sought and received, or has not received after 30 days of seeking, a written opinion from the appropriate DoD ethics counselor, regarding the applicability of post-employment restrictions to the activities that the official is expected to undertake on behalf of the contractor. Therefore, this representation of compliance does not impose an additional burden on the offeror.

The rule does not duplicate, overlap, or conflict with any other Federal rules.

There are no known significant alternatives to the rule that would achieve the objectives of the rule.

DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

DoD 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 (DFARS Case 2010-D020) in correspondence.

IV. Paperwork Reduction Act

The rule does not impose any new information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Parts 203 and 252

Government procurement.

Ynette R. Shelkin,

Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR parts 203, 204, and 252 are proposed to be amended as follows:

1. The authority citation for 48 CFR parts 203, 204, and 252 continues to read as follows:

Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

PART 203--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF

INTEREST

2. Revise section 203.171-4 to read as follows:

203.171-4 Solicitation provisions and contract clause.

(a) Use the clause at 252.203-7000, Requirements Relating to Compensation of Former DoD Officials, in all solicitations and contracts.

(b) Use the provision at 252.203-70XX, Representation Relating to Compensation of Former DoD Officials, in all solicitations.

PART 204--ADMINISTRATIVE MATTERS

3. Amend section 204.1202 by redesignating paragraphs (2)(i) through (xii) as paragraphs (2)(ii) through (xiii) and adding new paragraph (2)(i) to read as follows, 204.1202 Solicitation provision and contract clause.

* * * * *

(2) * * *

(i) 252.203-70XX, Representation Relating to Compensation of Former DoD Officials.

* * * * *

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

4. Add section 252.203-70XX to read as follows:

252.203-70XX Representation Relating to Compensation of Former DoD Officials.

As prescribed in 203.171-4(b), insert the following provision:

REPRESENTATION RELATING TO COMPENSATION OF FORMER DOD OFFICIALS (DATE)

(a) Definition. Covered DoD official is defined in the clause at 252.203-7000, Requirements Relating to Compensation of Former DoD Officials.

(b) By submission of this offer, the offeror represents, to the best of its knowledge and belief, that all covered DoD officials employed by or otherwise receiving compensation from the offeror are presently in compliance with--

(1) Defense Federal Acquisition Regulation Supplement (DFARS) 203.171-3 and DFARS 252.203-7000; and

(2) Other post-employment restrictions covered by 18 U.S.C. 207 and 5 CFR parts 2637 and 2631, including Federal Acquisition Regulation 3.104-2.

(End of provision)

5. Amend section 252.212-7000 by revising the clause date, revising paragraph (a), and adding paragraph (d) to read as follows:

252.212-7000 Offeror Representations and Certifications--Commercial Items.

* * * * *

OFFEROR REPRESENTATIONS AND CERTIFICATIONS--COMMERCIAL ITEMS (JUN 2011)

(a) Definitions. As used in this clause--

Covered DoD official is defined in the clause at 252.203-7000, Requirements Relating to Compensation of Former DoD Officials. Foreign person means any person other than a United States person as defined in Section 16(2) of the Export Administration Act of 1979 (50 U.S.C. App. Sec. 2415).

United States means the 50 States, the District of Columbia, outlying areas, and the outer Continental Shelf as defined in 43 U.S.C. 1331.

United States person is defined in section 16(2) of the Export Administration Act of 1979 and means any United States resident or national (other than an individual resident outside the United States and employed by other than a United States person), any domestic concern (including any permanent domestic establishment of any foreign concern), and any foreign subsidiary or affiliate (including any permanent foreign establishment) of any domestic concern which is controlled in fact by such domestic concern, as determined under regulations of the President.

* * * * *

(d) Representation Relating to Compensation of Former DoD Officials. By submission of this offer, the offeror represents, to the best of its knowledge and belief, that all covered DoD officials employed by or otherwise receiving compensation from the offeror, are presently in compliance with--

(1) Defense Federal Acquisition Regulation Supplement (DFARS) 203.171-3 and DFARS 252.203-7000, Requirements Relating to Compensation of Former DoD Officials; and

(2) Other post-employment restrictions covered by 18 U.S.C. 207 and 5 CFR parts 2637 and 2631, including Federal Acquisition Regulation 3.104-2.

(End of provision)

[FR Doc. 2011-13365 Filed 6-3-11; 8:45 am]

BILLING CODE 5001-08-P