Federal Register / Vol. 76, No. 108 / Monday, June 6, 2011 / Rules and Regulations 32841 

(4) ll 252.219–7003, Small Business 

Subcontracting Plan (DoD Contracts) (OCT 

2010) (15 U.S.C. 637). 

(5) ll 252.219–7004, Small Business 

Subcontracting Plan (Test Program) (JAN 

2011) (15 U.S.C. 637 note). 

(6)(i) ll 252.225–7001, Buy American 

Act and Balance of Payments Program (JAN 

2009) (41 U.S.C. chapter 83, E.O. 10582). 

(ii) ll Alternate I (DEC 2010) of 252.225– 

7001. 

(7) ll 252.225–7008, Restriction on 

Acquisition of Specialty Metals (JUL 2009) 

(10 U.S.C. 2533b). 

(8) ll 252.225–7009, Restriction on 

Acquisition of Certain Articles Containing 

Specialty Metals (JAN 2011) (10 U.S.C. 

2533b). 

(9) ll 252.225–7012, Preference for 

Certain Domestic Commodities (JUN 2010) 

(10 U.S.C. 2533a). 

(10) ll 252.225–7015, Restriction on 

Acquisition of Hand or Measuring Tools (JUN 

2005) (10 U.S.C. 2533a). 

(11) ll 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) ll 252.225–7021, Trade 

Agreements (NOV 2009) (19 U.S.C. 2501– 

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

(ii) ll Alternate I (SEP 2008) of 252.225– 

7021. 

(iii) ll Alternate II (DEC 2010) of 

252.225–7021. 

(13) ll 252.225–7027, Restriction on 

Contingent Fees for Foreign Military Sales 

(APR 2003) (22 U.S.C. 2779). 

(14) ll 252.225–7028, Exclusionary 

Policies and Practices of Foreign 

Governments (APR 2003) (22 U.S.C. 2755). 

(15)(i) ll 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) ll Alternate I (JUL 2009) of 252.225– 

7036. 

(iii) ll Alternate II (DEC 2010) of 

252.225–7036. 

(iv) ll Alternate III (DEC 2010) of 

252.225–7036. 

(16) ll 252.225–7038, Restriction on 

Acquisition of Air Circuit Breakers (JUN 

2005) (10 U.S.C. 2534(a)(3)). 

(17) ll 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) ll 252.227–7015, Technical Data— 

Commercial Items (MAR 2011) (10 U.S.C. 

2320). 

(19) ll 252.227–7037, Validation of 

Restrictive Markings on Technical Data (SEP 

1999) (10 U.S.C. 2321). 

(20) ll 252.232–7003, Electronic 

Submission of Payment Requests and 

Receiving Reports (MAR 2008) (10 U.S.C. 

2227). 

(21) ll 252.237–7010, Prohibition on 

Interrogation of Detainees by Contractor 

Personnel (NOV 2010) (Section 1038 of Pub. 

L. 111–84). 

(22) ll 252.237–7019, Training for 

Contractor Personnel Interacting with 

Detainees (SEP 2006) (Section 1092 of Pub. 

L. 108–375). 

(23) ll 252.243–7002, Requests for 

Equitable Adjustment (MAR 1998) (10 U.S.C. 

2410). 

(24) ll 252.246–7004, Safety of 

Facilities, Infrastructure, and Equipment For 

Military Operations (OCT 2010) (Section 807 

of Pub. L. 111–84). 

(25)ll 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) ll 252.247–7023, Transportation 

of Supplies by Sea (MAY 2002) (10 U.S.C. 

2631). 

(ii) ll Alternate I (MAR 2000) of 

252.247–7023. 

(iii) ll Alternate II (MAR 2000) of 

252.247–7023. 

(iv) ll Alternate III (MAY 2002) of 

252.247–7023. 

(27) ll 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 

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. 

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 

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32842 Federal Register / Vol. 76, No. 108 / Monday, June 6, 2011 / Rules and Regulations 

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 

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Federal Register / Vol. 76, No. 108 / Monday, June 6, 2011 / Rules and Regulations 32843 

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 

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. 

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: 

Æ 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. 

Æ E-mail: dfars@osd.mil. Include 

DFARS Case 2011–D021 in the subject 

line of the message. 

Æ Fax: 703–602–0350. 

Æ 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. 

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