Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Rules and Regulations 44313 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 211, 212, and 232 

RIN 0750–AI13 

Defense Federal Acquisition 

Regulation Supplement: Application of 

Certain Clauses to Acquisitions of 

Commercial Items (DFARS Case 2013– 

D035) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is issuing a final rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to clarify the applicability of 

two clauses to acquisitions of 

commercial items. 

DATES: Effective July 31, 2014. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Janetta Brewer, telephone 571–372– 

6104. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD published a proposed rule in the 

Federal Register at 78 FR 73472 on 

December 6, 2013, to clarify the 

applicability of DFARS 252.211–7008, 

Use of Government-Assigned Serial 

Numbers, and DFARS 252.232–7006, 

Wide Area WorkFlow Payment 

Instructions, to acquisitions of 

commercial items. The rule proposed 

adding these two clauses to the list at 

DFARS 212.301(f) of solicitation 

provisions and contract clauses for the 

acquisition of commercial items and 

revising the clause prescriptions to 

require their inclusion in solicitations 

and contracts for acquisitions using FAR 

part 12 procedures. One respondent 

submitted a public comment in 

response to the proposed rule. 

II. Discussion and Analysis 

DoD reviewed the public comment in 

the development of the final rule. There 

are no changes from the proposed rule 

in the final rule, except renumbering at 

212.301 due to DFARS baseline 

changes. A discussion of the comment 

is provided, as follows: 

Comment: The respondent stated that 

the rule appears to be a cost cutting 

measure that will reduce exploitation of 

tax monies being used to purchase 

products for the Government at an 

inflated rate. 

Response: The rule clarifies the 

applicability of DFARS 252.211–7008 

and 252.232–7006 to acquisitions of 

commercial items. 

III. 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. 

IV. Regulatory Flexibility Act 

A final regulatory flexibility analysis 

has been prepared consistent with the 

Regulatory Flexibility Act, 5 U.S.C. 601, 

et seq., and is summarized as follows: 

This rule revises DFARS part 212, 

Acquisition of Commercial Items, to 

clarify the applicability of DFARS 

252.211–7008, Use of GovernmentAssigned Serial Numbers, and DFARS 

252.232–7006, Wide Area WorkFlow 

Payment Instructions, to acquisitions of 

commercial items. 

This final rule applies to contractors, 

regardless of size or business 

ownership, when responding to DoD 

solicitations or being awarded contracts 

that are acquired utilizing FAR part 12 

procedures. The rule is not expected to 

have a significant impact on small 

entities as it merely clarifies the use of 

two DFARS clauses. The final rule is 

expected to have a slightly positive 

impact because the additional clarity 

will help contracting officers and small 

businesses better understand DoD’s 

requirements. 

No public comments were received in 

response to the initial regulatory 

flexibility analysis. The rule does not 

contain any reporting or recordkeeping 

requirements and does not require 

contractors to expend significant cost or 

effort. There are no known significant 

alternatives to the rule that would 

further minimize any economic impact 

of the rule on small entities 

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 Parts 211, 

212, and 232 

Government procurement. 

Amy G. Williams, 

Deputy, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR parts 211, 212, and 

232 are amended as follows: 

■ 1. The authority citation for 48 CFR 

parts 211, 212, and 232 continues to 

read as follows: 

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

chapter 1. 

PART 211—DESCRIBING AGENCY 

NEEDS 

■ 2. In section 211.274–6, paragraph (c) 

introductory text is revised to read as 

follows: 

211.274–6 Contract clauses. 

* * * * * 

(c) Use the clause at 252.211–7008, 

Use of Government-Assigned Serial 

Numbers, in solicitations and contracts, 

including solicitations and contracts 

using FAR part 12 procedures for the 

acquisition of commercial items, that— 

* * * * * 

PART 212—ACQUISITION OF 

COMMERCIAL ITEMS 

■ 3. Amend section 212.301 by— 

■ a. Redesignating— 

■ i. Paragraphs (f)(1ii) through (lxx) as 

(f)(liv) through (lxxii); 

■ ii. Paragraphs (f)(xv) through (li) as 

(f)(xvi) through (lii); and 

■ b. Adding new paragraphs (f)(xv) and 

(liii). 

■ The additions read as follows: 

212.301 Solicitation provisions and 

contract clauses for the acquisition of 

commercial items. 

(f) * * * 

(xv) Use the clause at 252.211–7008, 

Use of Government-Assigned Serial 

Numbers, as prescribed in 211.274–6(c). 

* * * * * 

(liii) Use the clause at 252.232 -7006, 

Wide Area WorkFlow Payment 

Instructions, as prescribed in 

232.7004(b). 

* * * * * 

PART 232—CONTRACT FINANCING 

■ 4. In section 232.7004, revise the 

section heading and paragraph (b) to 

read as follows: 

232.7004 Contract clauses. 

* * * * * 

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44314 Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Rules and Regulations 

(b) Use the clause at 252.232–7006, 

Wide Area WorkFlow Payment 

Instructions, in solicitations and 

contracts, including solicitations and 

contracts using FAR part 12 procedures 

for the acquisition of commercial items, 

when 252.232–7003 is used and neither 

232.7003(b) nor (c) apply. See PGI 

232.7004 for instructions on completing 

the clause. 

[FR Doc. 2014–17941 Filed 7–30–14; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 225 

RIN 0750–AI11 

Defense Federal Acquisition 

Regulation Supplement: Domestically 

Nonavailable Articles—Elimination of 

DoD-Unique List (DFARS Case 2013– 

D020) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is issuing a final rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to remove the DoD-unique list 

of domestically nonavailable articles 

because these items have been found to 

be either available domestically or are 

not used by DoD. 

DATES: Effective July 31, 2014. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Lee Renna, telephone 571–372–6095. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD published a proposed rule in the 

Federal Register at 78 FR 73474 on 

December 6, 2013, to remove section 

225.104 in its entirety because the 

articles currently listed no longer 

qualify as an exception to the Buy 

American statute (41 U.S.C. 8302(a)), on 

the basis of their nonavailability. The 

two items listed at section 225.104 that 

are being removed have been found to 

be either (1) available from domestic 

producers in the case of aluminum clad 

steel wire, or (2) DoD does not use the 

item in the case of the sperm-whale oil. 

Two public comments were submitted 

in response to the proposed rule. 

II. Discussion and Analysis 

No changes are being made to the 

final rule as a result of the two public 

comments. The first respondent stated 

support for the rule and the second 

respondent noted that there should be 

no change to the rule. 

III. 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. 

IV. Regulatory Flexibility Act 

A final regulatory flexibility analysis 

has been prepared consistent with the 

Regulatory Flexibility Act, 5 U.S.C. 601, 

et seq., and is summarized as follows. 

This final rule amends the Defense 

Acquisition Regulation Supplement 

(DFARS) by removing the DoD-unique 

list of domestically nonavailable articles 

that have been found to be either 

available domestically or are not used 

by DoD. Of the two items on the list, 

aluminum-clad steel is produced and 

available in the United States, and DoD 

does not use sperm-whale oil. 

This rule will not have an impact on 

small entities as it merely removes from 

the DFARS a listing of an item that is 

now domestically available and an item 

that is not used by DoD. The removal of 

the nonavailability exception to the Buy 

American statute for aluminum-clad 

steel wire will neither increase nor 

decrease small businesses’ participation 

in future procurements, particularly 

with regard to set-asides under the 

Small Business Program. This 

conclusion is primarily attributed to the 

application of the nonmanufacturer 

rule. Under the nonmanufacturer rule, 

any small business concern proposing to 

furnish a product that it did not itself 

manufacture must furnish the product 

of a domestic small business 

manufacturer. However, in industries 

where the Small Business 

Administration (SBA) has determined 

there are no domestic small business 

manufacturers, SBA may issue a waiver 

to the nonmanufacturer rule to permit 

small businesses to provide any firm’s 

product (see FAR 19.102(f)(7). 

Reinstatement of the Buy American 

statute restrictions has no effect on the 

application of the nonmanufacturer 

rule. With respect to the procurement of 

sperm-whale oil, DoD does not use this 

product in any application. As such, a 

discussion of future procurement 

opportunities for this substance is no 

longer relevant. 

No comments were received from the 

public in response to the initial 

regulatory flexibility analysis. This rule 

does not add any new information 

collection, reporting, or record keeping 

requirements. No alternatives were 

identified that will accomplish the 

objectives of the rule. 

V. Paperwork Reduction Act 

This 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 225 

Government procurement. 

Amy G. Williams, 

Deputy, 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. 

225.104 [Removed] 

■ 2. Remove section 225.104. 

[FR Doc. 2014–17940 Filed 7–30–14; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 225 and 236 

RIN 0750–AI33 

Defense Federal Acquisition 

Regulation Supplement: Use of Military 

Construction Funds in Countries 

Bordering the Arabian Sea (DFARS 

Case 2014–D016) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Interim rule. 

SUMMARY: DoD is issuing an interim rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement sections of the 

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