832 Federal Register / Vol. 75, No. 3 / Wednesday, January 6, 2010 / Proposed Rules 

85As part of developing proposed and final rules, 

the Agency will consider whether facilities within 

the classes identified in this notice that have RCRA 

permits or are subject to interim status requirements 

under RCRA, and already are subject to RCRA 

financial assurance and facility-wide corrective 

action requirements, also need to be subject to 

financial responsibility requirements under 

CERCLA Section 108(b). In addition, EPA is aware, 

and will consider in its development of proposed 

and final rules, that some facilities within the 

classes identified in this notice may be subject to 

other financial responsibility requirements. 

materials containing CERCLA hazardous 

substances, (3) the Wood Product 

Manufacturing industry (NAICS 321), 

(4) the Fabricated Metal Product 

Manufacturing industry (NAICS 332), 

and (5) the Electronics and Electrical 

Equipment Manufacturing industry 

(NAICS 334 and 335), as classes of 

facilities that require further study 

before EPA begins development of a 

proposed regulation under CERCLA 

Section 108(b). Once the in-depth 

analysis is complete, the Agency will 

decide whether to begin development of 

a proposed regulation for these classes 

of facilities.85

Dated: December 30, 2009. 

Lisa P. Jackson, 

Administrator. 

[FR Doc. E9–31399 Filed 1–5–10; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 225 and 252 

Defense Federal Acquisition 

Regulation Supplement; Foreign 

Participation in Acquisitions in 

Support of Operations in Afghanistan 

(DFARS Case 2009–D012) 

AGENCY: Department of Defense (DoD). 

ACTION: Proposed rule with request for 

comment. 

SUMMARY: DoD is proposing to amend 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

implement: Waiver of the section 302(a) 

of the Trade Agreements Act of 1979, as 

amended, which prohibits acquisitions 

of products or services from nondesignated countries, in order to allow 

acquisition from the nine South 

Caucasus/Central and South Asian (SC/ 

CASA) states; and Determination of 

inapplicability of the Balance of 

Payments Program evaluation factor to 

offers of products (other than arms, 

ammunition, or war materials) from the 

SC/CASA states to support operations in 

Afghanistan. 

DATES: Comment date: Comments on the 

proposed rule should be submitted in 

writing to the address shown below on 

or before March 9, 2009 to be 

considered in the formulation of the 

final rule. 

ADDRESSES: You may submit comments, 

identified by DFARS Case 2009–D012, 

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 2009–D012 in the subject 

line of the message. 

• Fax: (703) 602–7887. 

• Mail: Defense Acquisition 

Regulations System, Attn: Ms. Amy 

Williams, OUSD (AT&L) DPAP (DARS), 

IMD 3D139, 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 

On July 9, 2009, the Deputy Secretary 

of Defense issued a waiver of the 

procurement prohibition of Section 

302(a) of the Trade Agreements Act of 

1979 with regard to acquisitions by the 

Department of Defense or by the General 

Services Administration, on behalf of 

DoD, in support of operations in 

Afghanistan. This waiver applies to 

offers of products and services from the 

following nine South Caucasus/Central 

and South Asian (SC/CASA) states: 

Armenia, Azerbaijan, Georgia, 

Kazakhstan, Kyrgyzstan, Pakistan, 

Tajikistan, Turkmenistan, and 

Uzbekistan. This waiver was authorized 

by the United States Trade 

Representative by letter of June 2, 2009. 

In addition, the Deputy Secretary of 

Defense also made a determination that 

it would be inconsistent with the public 

interest to apply the provisions of the 

Balance of Payments Program to offers 

of products (other than arms, 

ammunition, or war materials) and 

construction materials from these SC/ 

CASA states acquired in direct support 

of operations in Afghanistan. For 

purposes of this rule, the term 

‘‘products other than arms, ammunition, 

or war materials’’ equates to the 

products listed at DFARS 225.401–70. 

The draft proposed rule adds a new 

section 225.7704 to Subpart 225.77, 

Acquisitions in Support of Operations 

in Iraq or Afghanistan, to specifically 

address the two determinations by the 

Deputy Secretary of Defense relating to 

acquisitions in support of operations in 

Afghanistan. 

More specifically, in order to 

implement the waiver of the Trade 

Agreements Act of 1979 prohibition on 

acquisitions of products or services from 

non-designated countries, the proposed 

rule— 

• Adds in the subpart on Trade 

Agreements (225.401 and 225.403) cross 

references to 225.7704–1; 

• Adds alternates to the trade 

agreements provision and clause 

(252.225–7020 and –7021, with 

conforming changes to the provision 

and clause prescriptions at 225.1101 

paragraphs (5) and (6)); and 

• Adds a requirement to the clauses 

at 252.225–7021 and 252.225–7045 that 

the contractor shall inform its 

government of its participation in the 

acquisition and that it generally will not 

have such opportunity in the future 

unless its government provides 

reciprocal procurement opportunities to 

U.S. products and services and 

suppliers of such products and services. 

In order to implement the 

determination of the inapplicability of 

the Balance of Payments Program to end 

products and construction material from 

the SC/CASA states, the proposed 

rule— 

• Modifies Subpart 225.5, to provide 

that whenever the acquisition is in 

support of operations in Afghanistan, 

offers of end products (other than arms, 

ammunition, and war materials) from 

SC/CASA states shall be treated the 

same as qualifying country offers; 

• Modifies Subpart 225.75, Balance of 

Payments Program, to provide 

exceptions in 225.7501(b)(1)(iii) and 

(b)(2), with cross references to 

225.7704–2; 

• Adds alternates to the Balance of 

Payments Program provisions and 

clauses at 252.225–7000, –7001, –7035, 

–7036–7044, and –7045, with 

conforming changes to the provision 

and clause prescriptions at 225.1101 

paragraphs (1), (2), (10), and (11) and 

225.7503. 

Other changes: 

• Definitions of ‘‘South Caucasus/ 

Central and South Asian (SC/CASA) 

state,’’ SC/CASA state construction 

material, and ‘‘SC/CASA state end 

product’’ have been added at 225.003, 

because these terms are used in more 

than one subpart. 

• Conforming change were made to 

the clause dates in 252.212–7001. 

• A correction is made to Alternate I 

of 252.225–7035 to delete the phrase 

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Federal Register / Vol. 75, No. 3 / Wednesday, January 6, 2010 / Proposed Rules 833 

‘‘Australian or’’ from paragraph (c)(2)(i). 

It was overlooked when the Free Trade 

Agreement with Australia was added 

that Alternate I also required revision 

(when only trade agreement with 

Canada is applicable). 

• A correction is made to the 

paragraph number of Canadian end 

product of Alternate I 252.225–7036 to 

conform to changes to the paragraph 

number of ‘‘Free Trade Agreement end 

product’’ in the basic clause of 252.225– 

7036. 

• A correction is made to Alternate I 

of 252.225–7045, to add in paragraph 

(b), line 4, that the Bahrain Free Trade 

Agreement does not apply. 

This rule was subject to Office of 

Management and Budget review under 

Executive Order 12866, dated 

September 30, 1993. 

B. Regulatory Flexibility Act 

DoD does not expect this 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., because this rule only impacts 

acquisition that are in support of 

operations in Afghanistan. Therefore, 

DoD has not performed an initial 

regulatory flexibility analysis. DoD 

invites comments from small businesses 

and other interested parties on this 

issue. DoD also will consider comments 

from small entities concerning the 

affected FAR subparts in accordance 

with 5 U.S.C. 610. Such comments 

should be submitted separately and 

should cite DFARS Case 2009–D012. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act applies 

because the rule proposes to modify 

information collection requirements that 

have been approved by the Office of 

Management and Budget under 44 

U.S.C. 3501, et seq. However, the impact 

on existing approved information 

collection requirements is expected to 

be negligible. 

In addition, this proposed rule 

contains a new information collection 

requirement that requires approval by 

the Office of Management and Budget 

under 44 U.S.C. 3501, et seq. DoD 

invites comments on the following 

aspects of the proposed rule: (a) 

Whether the collection of information is 

necessary for the proper performance of 

the functions of DoD, including whether 

the information will have practical 

utility; (b) the accuracy of the estimate 

of the burden of the information 

collection; (c) ways to enhance the 

quality, utility, and clarity of the 

information to be collected; and (d) 

ways to minimize the burden of the 

information collection on respondents, 

including the use of automated 

collection techniques or other forms of 

information technology. The following 

is a summary of the information 

collection requirement. 

Title: Defense Federal Acquisition 

Regulation Supplement (DFARS); 

Foreign Participation in Acquisitions in 

Support of Operations in Afghanistan. 

Type of Request: New collection. 

Number of Respondents: 100. 

Responses per Respondent: 1. 

Annual Responses: 100. 

Average Burden per Response: .25 

hours. 

Annual Burden Hours: 25. 

Needs and Uses: DoD needs the 

contractors from South Caucasus/ 

Central and South Asian states to inform 

their governments regarding their 

participation in DoD acquisitions and 

also to advise their governments that 

they generally will not have such 

opportunities in the future unless their 

governments provide reciprocal 

procurement opportunities to U.S. 

products and services and suppliers of 

such products and services. This is 

necessary to comply with a condition of 

the waiver authority provided by the 

United States Trade Representative to 

the Secretary of Defense. 

Affected Public: Businesses or other 

for-profit institutions. 

Respondent’s Obligation: Required to 

obtain or retain benefits. 

Frequency: On occasion. 

Written comments and 

recommendations on the proposed 

information collection should be sent to 

Ms. Jasmeet Seehra at the Office of 

Management and Budget, Desk Officer 

for DoD, Room 10236, New Executive 

Office Building, Washington, DC 20503, 

with a copy to the Defense Acquisition 

Regulations System, Attn: Ms. Amy 

Williams, OUSD (AT&L) DPAP (DARS), 

IMD 3D139, 3062 Defense Pentagon, 

Washington, DC 20301–3062. 

Comments can be received from 30 to 60 

days after the date of this notice, but 

comments to OMB will be most useful 

if received by OMB within 30 days after 

the date of this notice. 

To request more information on this 

proposed information collection or to 

obtain a copy of the proposal and 

associated collection instruments, 

please write to the Defense Acquisition 

Regulations System, Attn: Ms. Amy 

Williams, OUSD (AT&L) DPAP (DARS), 

IMD 3D139, 3062 Defense Pentagon, 

Washington, DC 20301–3062. 

List of Subjects in 48 CFR Parts 225 and 

252 

Government procurement. 

Amy G. Williams, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, DoD proposes amending 48 

CFR parts 225 and 252 as set forth 

below: 

1. The authority citation for 48 CFR 

parts 225 and 252 continues to read as 

follows: 

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

Chapter 1. 

PART 225—FOREIGN ACQUISITION 

225.003 [Amended] 

2. Amend section 225.003 by: 

a. Redesignating existing paragraphs 

(12) and (13) as paragraph (15) and (16); 

and 

b. Adding new paragraphs (12), (13), 

and (14), and 

3. Amend section 225.401 by: 

a. Redesignating paragraphs (a)(2) 

introductory text and (a)(2)(A), (a)(2)(B), 

and (a)(2)(C) as paragraphs (a)(2)(A) 

introductory text and paragraphs 

(a)(2)(A)(1), (a)(2)(A)(2), and (a)(2)(A)(3), 

respectively; and 

b. Adding paragraph (a)(2)(B) to read 

as follows: 

225.401 Exceptions. 

(a) * * * 

(2) * * * 

(B) Public interest exceptions for 

certain countries when acquiring 

products or services in support of 

operations in Afghanistan are in 

225.7704–1. 

* * * * * 

4. Amend section 225.403 by adding 

paragraph (c)(iii) to read as follows: 

225.403 World Trade Organization 

Government Procurement Agreement and 

Free Trade Agreements. 

(c) * * * 

(iii) The acquisition is in support of 

operations in Afghanistan (see 

225.7704–1). 

5. Amend section 225.502 by adding 

introductory text to read as follows: 

225.502 Application. 

Whenever the acquisition is in 

support of operations in Afghanistan, 

treat the offers of end products listed in 

225.401–70 from South Caucasus or 

Central and South Asian states the same 

as qualifying country offers. 

* * * * * 

6. Amend section 225.1101 by: 

a. Redesignating paragraph (1) as 

paragraph (1)(i); 

b. Adding paragraph (1)(ii); 

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834 Federal Register / Vol. 75, No. 3 / Wednesday, January 6, 2010 / Proposed Rules 

c. Redesignating existing paragraphs 

(2) introductory text, (2)(i), (2)(ii), 

(2)(iii), (2)(iv) introductory text, 

(2)(iv)(A), (2)(iv)(B), and (2)(v) as 

paragraph (2)(i) introductory text, 

(2)(i)(A), (2)(i)(B), (2)(i)(C), (2)(i)(D) 

introductory text, (2)(i)(D)(1) and 

(2)(i)(D)(2), and (2)(i)(E) respectively; 

d. Adding paragraph (2)(ii); 

e. Redesignating paragraph (5) as 

paragraph (5)(i); 

f. Adding paragraph (5)(ii); 

e. Redesignating paragraph (6)(iii) as 

(6)(iv); 

f. Adding paragraph (6)(iii); 

g. Redesignating paragraph (10) as 

paragraph (10)(i); 

h. Adding paragraphs (10)(ii), (10)(iii), 

and (10)(iv); and 

i. Revising paragraphs (11)(i)(A) and 

(11)(i)(B) to read as follows: 

225.1101 Acquisition of supplies. 

(1) * * * 

(ii) Use the provision with its 

Alternate I when the acquisition is of 

end products listed in 225.401–70 in 

support of operations in Afghanistan. 

* * * * * 

(ii) Use the clause with its Alternate 

I when the acquisition is of end 

products listed in 225.401–70 in 

support of operations in Afghanistan. 

* * * * * 

(5) * * * 

(ii) Use the provision with its 

Alternate I when the acquisition is of 

end products in support of operations in 

Afghanistan. 

(6) * * * 

(iii) Use the clause with its Alternate 

II when the acquisition is of end 

products in support of operations in 

Afghanistan and Alternate I is not 

applicable. 

* * * * * 

(10) * * * 

(iii) Use the provision with its 

alternate II when the clause at 252.225– 

7036 is used with its Alternate II. 

(iv) Use the provision with its 

Alternate III when the clause at 

252.225–7036 is used with its Alternate 

III. 

(11)(i) * * * 

(A) Use the basic clause when the 

estimated value equals or exceeds 

$67,826 except if the acquisition is of 

end products in support of operations in 

Afghanistan, use with its Alternate II. 

(B) Use the clause with its Alternate 

I when the estimated value equals or 

exceeds $25,000 but is less than $67,826 

except if the acquisition is of end 

products in support of operations in 

Afghanistan, use with its Alternate III. 

* * * * * 

7. Amend Section 225.7501 by: 

a. Redesignating existing paragraph 

(b)(1)(iii) as paragraph (b)(1)(iv); 

b. Adding paragraph (b)(1)(iii); and 

c. Revising paragraph (b)(2) to read as 

follows: 

225.7501 Policy. 

* * * * * 

(b) * * * 

(1) * * * 

(iii), If the acquisition is in support of 

operations in Afghanistan, a South 

Caucasus/Central and South Asian state 

end product listed in 225.401–70 (see 

225.7704–2); or 

* * * * * 

(2) The construction material is an 

eligible product or, if the acquisition is 

in support of operations in Afghanistan, 

the construction material is a South 

Caucasus/Central and South Asian state 

construction material (see 225.7704–2); 

or 

* * * * * 

8. Amend section 225.7503 by: 

a. Redesignating paragraph (a) as 

paragraph (a)(1); 

b. Adding paragraph (a)(2); 

c. Revising paragraph (b) to read as 

follows: 

225.7503 Contract clauses. 

* * * * * 

(a) * * * 

(2) Use the clause with its Alternate 

I if the acquisition is in support of 

operations in Afghanistan. 

(b)(1) Use the clause at 252.225–7045, 

Balance of Payments Program— 

Construction Material Under Trade 

Agreements, in solicitations and 

contracts for construction to be 

performed outside the United States 

with a value of $7,443,000 or more, 

except as provided in paragraph (b)(4) of 

this section. 

(2) For acquisitions with a value of 

$7,443,000 or more, but less than 

$8,817,449, use the clause with its 

Alternate I unless the acquisition is in 

support of operations in Afghanistan, 

use the clause with its Alternate III. 

(3) If the acquisition is for 

construction with a value of more than 

$8,817,449 or more and is in support of 

operations in Afghanistan, use the 

clause with its Alternate II. 

(4) If the acquisition is for 

construction with a value of $7,443,000 

or more, but less than $8,817,449, and 

is in support of operations in 

Afghanistan, use the clause with its 

Alternate III. 

9. Revise section 225.7700 to read as 

follows: 

225.7700 Scope. 

(a) Section 886 and Section 892 of the 

National Defense Authorization Act for 

Fiscal Year 2008 (Pub. L. 110–181); and 

(b) The determinations by the Deputy 

Secretary of Defense regarding 

participation of the countries of the 

South Caucasus or Central and South 

Asia in acquisition in support of 

operations in Afghanistan. 

10. Add sections 225.7704, 225.7704– 

1, 225.7704–2, and 225.7704–3 to read 

as follows: 

225.7704 Acquisitions of products and 

services from South Caucasus/Central and 

South Asian (SC/CASA) state in support of 

operations in Afghanistan. 

225.7704–1 Applicability of trade 

agreements. 

As authorized by the United States 

Trade Representative, the Secretary of 

Defense has waived the prohibition in 

section 302(a) of the Trade Agreements 

Act (see Subpart 225.4) for acquisitions 

by DoD, and by GSA on behalf of DoD, 

of products and services from SC/CASA 

states in direct support of operations in 

Afghanistan. 

225.7704–2 Applicability of balance of 

payments program. 

The Deputy Secretary of Defense has 

determined, because of importance to 

national security, that it would be 

inconsistent with the public interest to 

apply the provisions of the Balance of 

Payments Program (see Subpart 225.75) 

to offers of end products other than 

arms, ammunition, and war materials 

(i.e., end products listed in 225.401–70) 

and construction materials from the SC/ 

CASA states that are being acquired by 

or on behalf of the DoD in direct support 

of operations in Afghanistan. 

225.7704–3 Solicitation provisions and 

contract clauses. 

Appropriate solicitation provisions 

and contract clauses are prescribed as 

alternates to the Buy American-Trade 

Agreements-Balance of Payments 

Programs solicitation provisions and 

contract clauses prescribed at 225.1101 

and 225.7503. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

11. Amend section 252.212–7001 by: 

a. Revising the clause date; 

b. Redesignating paragraph (b)(5) as 

paragraph (b)(5)(i); 

c. Adding paragraph (b)(5)(ii); 

d. Redesignating paragraph (b)(10) as 

paragraph (b)(10)(i); 

e. Revising new paragraph (b)(10)(i); 

and 

f. Adding paragraphs (b)(10)(ii), 

(b)(12)(iii), and (b)(12)(iv) to read as 

follows: 

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Federal Register / Vol. 75, No. 3 / Wednesday, January 6, 2010 / Proposed Rules 835 

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)ll 252.225–7001, Buy 

American Act and Balance of Payments 

Program (JAN 2009) (41 U.S.C. 10a–10d, 

E.O. 10582). 

(ii) ll Alternate I (DATE) of 

252.225–7001. 

* * * * * 

(10)(i) ll 252.225–7021, Trade 

Agreements (DATE) (19 U.S.C. 2501– 

2518 and 19 U.S.C. 3301 note). 

(ii)ll Alternate I (DATE) of 

252.225–7021. 

* * * * * 

(12)(i) ll 252.225–7036, Buy 

American Act—Free Trade 

Agreements—Balance of Payments 

Program (MAR 2007) (41 U.S.C. 10a– 

10d and 19 U.S.C. 3301 note). 

(ii) ll Alternate I (DATE) of 

252.225–7036. 

(iii) ll Alternate II (DATE) of 

252.225–7036. 

(iv) ll Alternate I II (DATE) of 

252.225–7036. 

* * * * * 

12. Amend section 252.225–7000 by 

revising the introductory text and 

adding Alternate I at the end of the 

section to read as follows: 

252.225–7000 Buy American Act—Balance 

of Payments Program Certificate. 

As prescribed in 225.1101(1)(i), use 

the following provision: 

* * * * * 

Alternate I (Date) 

As prescribed in 225.1101(1)(ii), add 

the terms ‘‘South Caucasus/Central and 

South Asian (SC/CASA) state’’ and ‘‘SC/ 

CASA state end product’’ in paragraph 

(a) and replace the phrase ‘‘qualifying 

country end products’’ in paragraphs 

(b)(2) and (c)(2) with the phrase 

‘‘qualifying country end products or SC/ 

CASA state end products.’’ 

13. Amend section 252.225–7001 by 

revising the introductory text and 

adding Alternate I at the end of the 

section to read as follows: 

252.225–7001 Buy American Act and 

Balance of Payments Program. 

As prescribed in 225.1101(2)(i), use 

the following clause: 

* * * * * 

Alternate I (Date) 

As prescribed in 225.1101(2)(ii), add 

the following definitions to paragraph 

(a) and substitute the following 

paragraphs (b) and (c) for paragraphs (b) 

and (c) of the basic clause: 

(a)(10) ‘‘South Caucasus/Central and 

South Asian (SC/CASA) state’’ means 

Armenia, Azerbaijan, Georgia, 

Kazakhstan, Kyrgyzstan, Pakistan, 

Tajikistan, Turkmenistan, or 

Uzbekistan. 

(11) ‘‘SC/CASA state end product’’ 

means an article that— 

(i) Is wholly the growth, product, or 

manufacture of an SC/CASA state; or 

(ii) In the case of an article that 

consists in whole or in part of materials 

from another country, has been 

substantially transformed in an SC/ 

CASA state 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 its supply, 

provided that the value of those 

incidental services does not exceed the 

value of the product itself. 

(b) This clause implements the 

Balance of Payments Program. Unless 

otherwise specified, this clause applies 

to all line items in the contract. 

(c) The Contractor shall deliver only 

domestic end products unless, in its 

offer, it specified delivery of other end 

products in the Buy American Act 

Balance of Payments Program Certificate 

provision of the solicitation. If the 

Contractor certified in its offer that it 

will deliver a qualifying country end 

product or an SC/CASA state end 

product, the Contractor shall deliver a 

qualifying country end product an 

SC/CASA state end product, or, at the 

Contractor’s option, a domestic end 

product. 

* * * * * 

14. Amend section 252.225–7020 by 

revising the introductory text and 

adding Alternate I at the end of the 

section to read as follows: 

252.225–7020 Trade Agreements 

Certificate. 

As prescribed in 225.1101(5)(i), use 

the following provision: 

* * * * * 

Alternate I (Date) 

As prescribed in 225.1101(5)(ii), 

substitute the following paragraphs (a), 

(b)(2) and (c) for paragraph (a), (b)(2) 

and (c) of the basic clause: 

(a) Definitions. ‘‘Designated country 

end product,’’ ‘‘nondesignated country 

end product,’’ ‘‘qualifying country end 

product,’’ ‘‘South Caucasus/Central and 

South Asian (SC/CASA) state,’’ ‘‘SC/ 

CASA state end product,’’ and ‘‘U.S.- 

made end product’’ have the meanings 

given in the Trade Agreements clause of 

this solicitation. 

(b)(2) Will consider only offers of end 

products that are U.S.-made, qualifying 

country, SC/CASA state, or designated 

country end products unless— 

(c) Certification and identification of 

country of origin. 

(1) For all line items subject to the 

Trade Agreements clause of this 

solicitation, the offeror certifies that 

each end product to be delivered under 

this contract, except those listed in 

paragraph (c)(2)(ii) of this provision, is 

a U.S.-made, qualifying country, SC/ 

CASA state, or designated country end 

product. 

(2)(i) The following supplies are SC/ 

CASA state end products: 

(Line Item Number) 

(Country of Origin) 

lllllllllllllllllll

(ii) The following are other 

nondesignated country end products: 

(Line Item Number) 

(Country of Origin) 

15. Amend section 252.225–7021 by 

revising the introductory text and 

adding Alternate I at the end of the 

section to read as follows: 

252.225–7021 Trade Agreements. 

As prescribed in 225.1101(6)(i), use 

the following clause: 

* * * * * 

Alternate I (Date) 

As prescribed in 225.1101(5)(iii), add 

the following new definitions to 

paragraph (a), substitute the following 

paragraph (c) for paragraph (c) of the 

basic clause, and add the following 

paragraph (d): 

(a)(14) ‘‘South Caucasus/Central and 

South Asian (SC/CASA) state’’ means 

Armenia, Azerbaijan, Georgia, 

Kazakhstan, Kyrgyzstan, Pakistan, 

Tajikistan, Turkmenistan, or 

Uzbekistan. 

(15) ‘‘SC/CASA state end product’’ 

means an article that— 

(i) Is wholly the growth, product, or 

manufacture of an SC/CASA state; or 

(ii) In the case of an article that 

consists in whole or in part of materials 

from another country, has been 

substantially transformed in an SC/ 

CASA state 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 

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836 Federal Register / Vol. 75, No. 3 / Wednesday, January 6, 2010 / Proposed Rules 

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 its supply, 

provided that the value of those 

incidental services does not exceed the 

value of the product itself. 

(c) The Contractor shall deliver under 

this contract only U.S.-made, qualifying 

country, SC/CASA state, or designated 

country end products unless— 

(1) In its offer, the Contractor 

specified delivery of other 

nondesignated country end products in 

the Trade Agreements Certificate 

provision of the solicitation; and 

(2)(i) Offers of U.S.-made, qualifying 

country, SC/CASA state, or designated 

country end products from responsive, 

responsible offerors are either not 

received or are insufficient to fill the 

Government’s requirements; or 

(ii) A national interest waiver has 

been granted. (d) The contractor shall 

inform its government of its 

participation in this acquisition and that 

it generally will not have such 

opportunity in the future unless its 

government provides reciprocal 

procurement opportunities to U.S. 

products and services and suppliers of 

such products and services. 

16. Amend section 252.225–7035 by 

revising the introductory text; revising 

Alternate I; and adding Alternate II and 

Alternate III at the end of the section to 

read as follows: 

252.225–7035 Buy American Act—Free 

Trade Agreements—Balance of Payments 

Program Certificate. 

As prescribed in 225.1101(10)(i), use 

the following provision: 

* * * * * 

Alternate I (Date) 

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,’’ and ‘‘Moroccan 

end product’’ in paragraph (a) of the 

basic provision; and substitute the 

phrase ‘‘Canadian end products’’ for the 

phrase ‘‘Free Trade Agreement country 

end products other than Bahrainian end 

products or Moroccan 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. 

Alternate II (Date) 

As prescribed in 225.1101(10)(iii), 

add the terms ‘‘South Caucasus/Central 

and South Asian (SC/CASA) state’’ and 

‘‘SC/CASA state end product’’ in 

paragraph (a) and substitute the 

following paragraphs (b)(2) and (c)(2)(i) 

for paragraphs (b)(2) and (c)(2)(i) of the 

basic clause 

(b)(2) For line items subject to Free 

Trade Agreements, will evaluate offers 

of qualifying country end products, SC/ 

CASA state end products, or Free Trade 

Agreement country end products other 

than Bahrainian end products or 

Moroccan end products without regard 

to the restrictions of the Buy American 

Act or the Balance of Payments 

Program. 

(c)(2)(i) The offeror certifies that the 

following supplies are qualifying 

country (except Australian or Canadian) 

or SC/CASA state end products: 

(Line Item Number) 

(Country of Origin) 

lllllllllllllllllll

Alternate III (Date) 

As prescribed in 225.1101(10)(iv), 

substitute the following paragraphs (a), 

(b)(2), (c)(2)(i), and (c)(2)(ii) for 

paragraphs (a), (b)(2), (c)(2)(i), and 

(c)(2)(ii) of the basic clause: 

(a) Definitions. ‘‘Canadian end 

product,’’ ‘‘commercially available offthe-shelf (COTS) item,’’ ‘‘domestic end 

product,’’ ‘‘foreign end product,’’ 

‘‘qualifying country end product,’’ ‘‘SC/ 

CASA state end product,’’ and ‘‘United 

States’’ have the meanings given in the 

Buy American Act—Free Trade 

Agreements—Balance of Payments 

Program clause of this solicitation. 

(b)(2) For line items subject to Free 

Trade Agreements, will evaluate offers 

of qualifying country end products, SC/ 

CASA state end products, or Canadian 

end products without regard to the 

restrictions of the Buy American Act or 

the Balance of Payments Program. 

(c)(2)(i) The offeror certifies that the 

following supplies are qualifying 

country (except Canadian) or SC/CASA 

state end products: 

(Line Item Number) 

(Country of Origin) 

lllllllllllllllllll

(c)(2)(ii) The offeror certifies that the 

following supplies are Canadian end 

products: 

(Line Item Number) 

(Country of Origin) 

lllllllllllllllllll

17. Amend section 252.225–7036 by 

revising Alternate I; adding Alternate II 

and Alternate III at the end of the 

section to read as follows: 

252.225–7036 Buy American Act—Free 

Trade Agreements—Balance of Payments 

Program. 

* * * * * 

Alternate I (Date) 

As prescribed in 225.1101(11)(i)(B), 

substitute the following paragraphs 

(a)(8) and (c) for paragraphs (a)(8) and 

(c) of the basic clause: 

(a)(8) * * * 

Alternate II (Date) 

As prescribed in 225.1101(11)(i)(A), 

add the following new definitions to 

paragraph (a) and substitute the 

following paragraph (c) for paragraph (c) 

of the basic clause: 

(a)(14) ‘‘South Caucasus/Central and 

South Asian (SC/CASA) state’’ means 

Armenia, Azerbaijan, Georgia, 

Kazakhstan, Kyrgyzstan, Pakistan, 

Tajikistan, Turkmenistan, or 

Uzbekistan. 

(15) ‘‘SC/CASA state end product’’ 

means an article that— 

(i) Is wholly the growth, product, or 

manufacture of an SC/CASA state; or 

(ii) In the case of an article that 

consists in whole or in part of materials 

from another country, has been 

substantially transformed in an SC/ 

CASA state 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 its supply, 

provided that the value of those 

incidental services does not exceed the 

value of the product itself. 

(c) The Contractor shall deliver under 

this contract only domestic end 

products unless, in its offer, it specified 

delivery of qualifying country end 

products, SC/CASA state end products, 

Free Trade Agreement country end 

products other than Bahrainian end 

products or Moroccan end products, or 

other foreign end products in the Buy 

American Act—Free Trade 

Agreements—Balance of Payments 

Program Certificate provision of the 

solicitation. If the Contractor certified in 

its offer that it will deliver a qualifying 

country end product, SC/CASA state 

end products, or a Free Trade 

Agreement country end product other 

than a Bahrainian end product or a 

Moroccan end product, the Contractor 

shall deliver a qualifying country end 

product, an SC/CASA state end product, 

a Free Trade Agreement country end 

product other than a Bahrainian end 

product or a Moroccan end product, or, 

at the Contractor’s option, a domestic 

end product. 

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Federal Register / Vol. 75, No. 3 / Wednesday, January 6, 2010 / Proposed Rules 837 

Alternate III (Date) 

As prescribed in 225.1101(11)(i)(B), 

add the following definitions to 

paragraph (a) and substitute the 

following paragraph (c) for paragraph (c) 

of the basic clause, 

(a)(14) ‘‘Canadian end product,’’ 

means an article that— 

(i) Is wholly the growth, product, or 

manufacture of Canada; or 

(ii) In the case of an article that 

consists in whole or in part of materials 

from another country, has been 

substantially transformed in Canada 

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 its supply, provided that 

the value of those incidental services 

does not exceed the value of the product 

itself. 

(15) ‘‘South Caucasus/Central and 

South Asian (SC/CASA) state’’ means 

Armenia, Azerbaijan, Georgia, 

Kazakhstan, Kyrgyzstan, Pakistan, 

Tajikistan, Turkmenistan, or 

Uzbekistan. 

(16) ‘‘SC/CASA state end product’’ 

means an article that— 

(i) Is wholly the growth, product, or 

manufacture of an SC/CASA state; or 

(ii) In the case of an article that 

consists in whole or in part of materials 

from another country, has been 

substantially transformed in an SC/ 

CASA state 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 its supply, 

provided that the value of those 

incidental services does not exceed the 

value of the product itself. 

(c) The Contractor shall deliver under 

this contract only domestic end 

products unless, in its offer, it specified 

delivery of qualifying country end 

products, SC/CASA state end products, 

Canadian end products, or other foreign 

end products in the Buy American 

Act—Free Trade Agreements—Balance 

of Payments Program Certificate 

provision of the solicitation. If the 

Contractor certified in its offer that it 

will deliver a qualifying country end 

product, SC/CASA state end products, 

or a Canadian end product, the 

Contractor shall deliver a qualifying 

country end product, an SC/CASA state 

end product, a Canadian end product or, 

at the Contractor’s option, a domestic 

end product. 

18. Amend section 252.225–7044 by 

adding Alternate I at the end of the 

section. 

252.225–7044 Balance of Payments 

Program—Construction Material. 

* * * * * 

Alternate I (Date) 

As prescribed in 225.7503(a) 

225.7503(a)(ii), add the following 

definitions to paragraph (a) and replace 

the phrase ‘‘domestic construction 

material’’ in the second sentence of 

paragraph (b) with the phrase ‘‘domestic 

construction material or SC/CASA state 

construction material.’’ 

‘‘South Caucasus/Central and South 

Asian (SC/CASA) state’’ means 

Armenia, Azerbaijan, Georgia, 

Kazakhstan, Kyrgyzstan, Pakistan, 

Tajikistan, Turkmenistan, or 

Uzbekistan. 

‘‘SC/CASA state construction 

material’’ means construction material 

that— 

(i) Is wholly the growth, product, or 

manufacture of an SC/CASA state; or 

(ii) In the case of a construction 

material that consists in whole or in part 

of materials from another country, has 

been substantially transformed in an 

SC/CASA state into a new and different 

construction material distinct from the 

material from which it was transformed. 

19. Amend section 252.225–7045 by 

revising the clause date of Alternate I; 

revising paragraph (b) of Alernate I; and 

adding Alternate II and Alternate III to 

read as follows: 

252.225–7045 Balance of Payments 

Program—Construction Material Under 

Trade Agreements. 

* * * * * 

Alternate I (Date). * * * 

(b) This clause implements the 

Balance of Payments Program by 

providing a preference for domestic 

construction material. In addition, the 

Contracting Officer has determined that 

the WTO GPA and all Free Trade 

Agreements except NAFTA and the 

Bahrain Free Trade Agreement apply to 

this acquisition. Therefore, the Balance 

of Payments Program restrictions are 

waived for designated country 

construction material other than 

Bahrainian or Mexican construction 

material. 

* * * * * 

Alternate II (Date) 

As prescribed in 225.7503(b)(iii), add 

the following definitions to paragraph 

(a); substitute the following paragraph 

(b) and the introductory text of 

paragraph (c) for paragraph (b) and the 

introductory text of paragraph (c) of the 

basic clause; and add the following 

paragraph (d): ‘‘South Caucasus/Central 

and South Asian (SC/CASA) state’’ 

means Armenia, Azerbaijan, Georgia, 

Kazakhstan, Kyrgyzstan, Pakistan, 

Tajikistan, Turkmenistan, or 

Uzbekistan. 

‘‘SC/CASA state construction 

material’’ means construction material 

that— 

(i) Is wholly the growth, product, or 

manufacture of an SC/CASA state; or 

(ii) In the case of a construction 

material that consists in whole or in part 

of materials from another country, has 

been substantially transformed in an 

SC/CASA state into a new and different 

construction material distinct from the 

material from which it was transformed. 

(b) This clause implements the 

Balance of Payments Program by 

providing a preference for domestic 

construction material. In addition, the 

Contracting Officer has determined that 

the WTO GPA, Free Trade Agreements, 

and other waivers relating to 

acquisitions in support of operations in 

Afghanistan apply to this acquisition. 

Therefore, the Balance of Payments 

Program restrictions are waived for SC/ 

CASA state and designated country 

construction materials. 

(c) The Contractor shall use only 

domestic, SC/CASA state. or designated 

country construction material in 

performing this contract, except for— 

(d) The contractor shall inform its 

government of its participation in this 

acquisition and that it generally will not 

have such opportunity in the future 

unless its government provides 

reciprocal procurement opportunities to 

U.S. products and services and 

suppliers of such products and services. 

Alternate III (Date) As prescribed in 

225.7503(b)(iv), add the following 

definitions to paragraph (a); substitute 

the following paragraph (b) and the 

introductory text of paragraph (c) for 

paragraph (b) and the introductory text 

of paragraph (c) of the basic clause; and 

add the following paragraph (d): 

‘‘South Caucasus/Central and South 

Asian (SC/CASA) state’’ means 

Armenia, Azerbaijan, Georgia, 

Kazakhstan, Kyrgyzstan, Pakistan, 

Tajikistan, Turkmenistan, or 

Uzbekistan. 

‘‘SC/CASA state construction 

material’’ means construction material 

that— 

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838 Federal Register / Vol. 75, No. 3 / Wednesday, January 6, 2010 / Proposed Rules 

(i) Is wholly the growth, product, or 

manufacture of an SC/CASA state; or 

(ii) In the case of a construction 

material that consists in whole or in part 

of materials from another country, has 

been substantially transformed in an 

SC/CASA state into a new and different 

construction material distinct from the 

material from which it was transformed. 

(b) This clause implements the 

Balance of Payments Program by 

providing a preference for domestic 

construction material. In addition, the 

Contracting Officer has determined that 

the WTO GPA, all Free Trade 

Agreements except NAFTA and the 

Bahrain Free Trade Agreement, and 

other waivers relating to acquisitions in 

support of operations in Afghanistan 

apply to this acquisition. Therefore, the 

Balance of Payments Program 

restrictions are waived for SC/CASA 

state and designated country 

construction material other than 

Bahrainian or Mexican construction 

material. 

(c) The Contractor shall use only 

domestic, SC/CASA state, or designated 

country construction material other than 

Bahrainian or Mexican construction 

material in performing this contract, 

except for— 

(d) The contractor shall inform its 

government of its participation in this 

acquisition and that it generally will not 

have such opportunity in the future 

unless its government provides 

reciprocal procurement opportunities to 

U.S. products and services and 

suppliers of such products and services. 

[FR Doc. E9–30292 Filed 1–5–10; 8:12 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR 223 and 224 

[Docket No. 0912231440–91443–01] 

RIN 0648–XT28 

Endangered and Threatened Wildlife; 

Notice of 90–Day Finding on a Petition 

to List Atlantic Sturgeon as Threatened 

or Endangered under the Endangered 

Species Act (ESA) 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Department of Commerce. 

ACTION: 90–day petition finding; request 

for information. 

SUMMARY: We (NMFS) announce a 90– 

day finding on a petition to list Atlantic 

sturgeon (Acipenser oxyrinchus 

oxyrinchus) as endangered, or to list 

multiple distinct population segments 

(DPSs) as threatened or endangered and 

designate critical habitat under the ESA. 

We find that the petition presents 

substantial scientific or commercial 

information indicating that the 

petitioned actions may be warranted. A 

status review for Atlantic sturgeon was 

completed in February 2007, and we are 

currently preparing a determination on 

whether listing the species or DPSs of 

the species as threatened or endangered 

is warranted. To ensure that the 

determination considers information 

that is comprehensive and current, we 

solicit scientific and commercial 

information regarding this species. 

DATES: Information and comments must 

be submitted to NMFS by February 5, 

2010. 

ADDRESSES: You may submit comments, 

information, or data, identified by the 

Regulation Identifier Number (RIN), 

0648 XT28, by any of the following 

methods: 

Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal: http:// 

www.regulations.gov. 

Mail: Assistant Regional 

Administrator, Protected Resources 

Division, NMFS, Northeast Regional 

Office, 55 Great Republic Drive, 

Gloucester, MA 01930 (for Atlantic 

sturgeon populations occurring in the 

Northeast); or Assistant Regional 

Administrator, Protected Resources 

Division, NMFS, Southeast Regional 

Office, 263 13th Avenue South, St. 

Petersburg, FL 33701 (for Atlantic 

sturgeon populations occurring in the 

Southeast). 

Facsimile (fax): 978–281–9394 (for 

Atlantic sturgeon populations occurring 

in the Northeast); 727–824–5309 (for 

Atlantic sturgeon populations occurring 

in the Southeast). 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit confidential business 

information or otherwise sensitive or 

protected information. 

We will accept anonymous 

comments. Attachments to electronic 

comments will be accepted in Microsoft 

Word, Excel, WordPerfect, or Adobe 

PDF file formats only. 

Interested persons may obtain a copy 

of this petition and the 2007 status 

review from the above addresses or 

online from the NMFS website: http:// 

www.nmfs.noaa.gov/pr/species/fish/ 

atlanticsturgeon.htm#documents. 

FOR FURTHER INFORMATION CONTACT: 

Kimberly Damon-Randall or Lynn 

Lankshear, (978) 282–8485 and (978) 

282–8473, NMFS Northeast Region; 

Kelly Shotts, NMFS Southeast Region, 

(727) 824–5312; or Lisa Manning, 

NMFS, Office of Protected Resources, 

(301) 713–1401. 

SUPPLEMENTARY INFORMATION: 

Background 

On October 6, 2009, we received a 

petition from the Natural Resources 

Defense Council (NRDC) to list Atlantic 

sturgeon as endangered under the ESA. 

As an alternative, the petitioner 

requested that the species be delineated 

and listed as the five DPSs described in 

the 2007 Status Review of Atlantic 

Sturgeon (SRT, 2007); i.e., Gulf of 

Maine, New York Bight, Chesapeake 

Bay, Carolina, and South Atlantic DPS, 

with the Gulf of Maine and South 

Atlantic DPSs listed as threatened, and 

the remaining three DPSs listed as 

endangered. The petitioner also 

requested that critical habitat be 

designated for Atlantic sturgeon under 

the ESA. The petition summarizes how 

the species has declined as a result of 

overfishing during the 19th century and 

has failed to recover in the time since 

a coast-wide fishing moratorium was 

put in place in 1998. The petition cites 

bycatch, degraded water quality, dams, 

dredging, and ship strikes as the most 

important factors contributing to the 

continued decline of this species. The 

petition also cites global warming as a 

factor that will become increasingly 

significant as a stressor on Atlantic 

sturgeon populations by exacerbating 

harmfully low dissolved oxygen (DO) 

concentrations (or hypoxic water 

conditions), to which Atlantic sturgeon 

are particularly sensitive. The petition 

summarizes the biology, status, and 

threats for Atlantic sturgeon and for 

each petitioned DPS. 

As described in the petition and in 

the 2007 status review (SRT, 2007), the 

historic range of Atlantic sturgeon in the 

United States included approximately 

38 rivers, from the St. Croix River in 

Maine to the Saint Johns River in 

Florida. Atlantic sturgeon were also 

historically present in approximately 

four river systems in Canada. The Gulf 

of Maine DPS includes the Penobscot, 

Saco and Merrimack Rivers, and the 

estuarial complex of the Kennebec, 

Androscoggin, and Sheepscot Rivers. 

The New York Bight DPS includes the 

Taunton, Connecticut, Hudson, and 

Delaware River systems. The 

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