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[Federal Register Volume 77, Number 126 (Friday, June 29, 2012)]
[Rules and Regulations]
[Pages 38734-38736]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-15563]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 225 and 252

RIN 0750-AH73

Defense Federal Acquisition Regulation Supplement; Acquisition of 
Tents and Other Temporary Structures (DFARS Case 2012-D015)

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

ACTION: Interim rule.

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SUMMARY: DoD is issuing an interim rule to implement sections of the 
National Defense Authorization Act for Fiscal Year 2012 that address 
the acquisition of tents and other temporary structures.

DATES: Effective date: June 29, 2012.
    Comment date: Comments are due by August 28, 2012.

ADDRESSES: Submit comments identified by DFARS Case 2012-D015, using 
any of the following methods:
    [cir] Regulations.gov: http://www.regulations.gov.
    Submit comments via the Federal eRulemaking portal by inserting 
``DFARS Case 2012-D015'' under the heading ``Enter keyword or ID'' and 
selecting ``Search.'' Select the link ``Submit a Comment'' that 
corresponds with ``DFARS Case 2012-D015.'' Follow the instructions 
provided at the ``Submit a Comment'' screen. Please include your name, 
company name (if any), and ``DFARS Case 2012-D015'' on your attached 
document.
    [cir] Email: dfars@osd.mil. Include DFARS Case 2012-D015 in the 
subject line of the message.
    [cir] Fax: 571-372-6094.
    [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 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 and the associated 
DFARS clauses at 252.212-7001 and

[[Page 38735]]

252.225-7012, in order to implement sections 368 and 821 of the 
National Defense Authorization Act for Fiscal Year 2012 (Pub. L. 112-
81).
     Section 368 requires award of contracts that provide the 
best value, when acquiring tents and other temporary structures, 
regardless of whether purchased by DoD or by another agency on behalf 
of DoD.
     Section 821 amends 10 U.S.C. 2533a (the ``Berry 
Amendment''), to extend the restriction requiring acquisition of 
domestic tents to include the structural components of tents, 
applicable to acquisitions that exceed the simplified acquisition 
threshold. There is also an exception for domestic nonavailability (see 
DFARS 225.7002-2).
    The interim rule provides a definition of ``structural component of 
a tent'' and also provides examples of the type of temporary structures 
covered by this regulation.

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 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--
     Require that contracts for the acquisition of tents and 
other temporary structures provide best value, regardless of whether 
purchased by DoD or by another agency on behalf of DoD; and
     Extend the domestic source restriction of 10 U.S.C. 2533a 
(the ``Berry Amendment'') to cover the structural components of tents, 
in order to promote the use of domestic materials and enhance growth of 
the United States economy.
    The legal basis for this interim rule is sections 368 and 821 of 
the National Defense Authorization Act for Fiscal Year 2012 (Pub. L. 
112-81).
    The requirement to award contracts that provide best value to the 
Government does not have any impact on small business entities, because 
that is already a general requirement for all acquisitions.
    The domestic source restriction on the structural components of 
tents may affect approximately 40 or less small business concerns at 
the prime contract level. Review of the Fiscal Year 2011 data on 
acquisition of items with product or service code 8340 (tents or 
tarpaulins) identified 49 actions with small business concerns 
(contracts or orders), estimated value of $48.6 million, of which about 
10 percent appeared to be for other than tents (e.g., prefabricated 
metal buildings and components, metal household furnishings, or 
electrical equipment). The Federal Procurement Data System does not 
provide data on components, so it is not known the extent to which the 
providers of tents currently utilize domestic or foreign structural 
components. An exception may be granted if a component is domestically 
nonavailable. However, this rule promotes the use of domestic 
components, and should, therefore, be favorable to small entities that 
provide domestic structural components of tents. The requirements of 
the rule will not apply below the simplified acquisition threshold.
    This rule does not impose any reporting or recordkeeping 
requirements.
    The rule does not duplicate, overlap, or conflict with any other 
Federal rules.
    DoD did not identify any significant alternatives that would 
accomplish the stated objectives of the statute. 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 2012-D015) in 
correspondence.

IV. Applicability

    This interim rule does not apply below the simplified acquisition 
threshold. Section 821 amends 10 U.S.C. 2533a (the ``Berry 
Amendment''), which specifically exempts acquisitions below the 
simplified acquisition threshold. The ``Berry Amendment'', implemented 
at DFARS clause 252.225-7012, Preference for Certain Domestic 
Commodities, specifically applies to contracts or subcontracts for the 
acquisition of commercial items that are articles, items, specialty 
metals, or tools covered by the ``Berry Amendment'' (including tents 
and components of tents) (see section 8109 of Pub. L. 104-208) and is 
included in the clause list in DFARS clause 252.212-7001, Contract 
Terms and Conditions required to Implement Statutes or Executive Orders 
Applicable to Defense Acquisitions of Commercial Items.
    Section 368 only imposes requirements on the internal operating 
procedures of DoD, and does not address application below the 
simplified acquisition threshold. Most acquisitions of tents and other 
temporary structures exceed the simplified acquisition threshold. In 
accordance with 41 U.S.C. 1901, simplified acquisition procedures are 
to be used to promote efficiency and economy in contracting to avoid 
unnecessary burdens for agencies and contractors. Written acquisition 
plans are not required for acquisitions below the simplified 
acquisition threshold. Therefore, this rule does not apply to 
acquisitions of tents and other temporary structures below the 
simplified acquisition threshold.

V. Paperwork Reduction Act

    This rule does not impose 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 sections 368 and 821 of the National 
Defense Authorization Act for Fiscal Year 2012. This requirement became 
effective upon enactment, December 23, 2011. This action is necessary 
in order to enable contracting officers to comply with this new 
requirement, which will promote the use of domestic materials and 
enhance growth of the United States economy. Pursuant to 41 U.S.C. 1707 
and FAR 1.501-3(b), comments received in response to this interim rule 
will be

[[Page 38736]]

considered in the formation of the final rule.

List of Subjects in 48 CFR Part 225 and 252

    Government procurement.

Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.

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

0
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

0
2. Amend section 225.7001 by revising paragraph (e) to read as follows:

225.7001  Definitions.

* * * * *
    (e) Structural component of a tent is defined in the clause at 
252.225-7012, Preference for Certain Domestic Commodities.

0
3. Amend section 225.7002-1 by revising paragraph (a)(3) to read as 
follows:

225.7002-1   Restrictions.

* * * * *
    (a) * * *
    (3) Tents and the structural components of tents, tarpaulins, or 
covers. In addition, in accordance with section 368 of the National 
Defense Authorization Act for Fiscal Year 2012 (Pub. L. 112-81)--
    (i) When acquiring tents or other temporary structures for use by 
the Armed Forces, the contracting officer shall award contracts that 
provide the best value (see FAR 15.101). Temporary structures covered 
by this paragraph (a)(3)(i) are nonpermanent buildings, including 
tactical shelters, nonpermanent modular or pre-fabricated buildings, or 
portable or relocatable buildings, such as trailers or equipment 
configured for occupancy (see also DFARS 246.270-2)). Determination of 
best value includes consideration of the total life-cycle costs of such 
tents or structures, including the costs associated with any equipment, 
fuel, or electricity needed to heat, cool, or light such tents or 
structures (see FAR 7.105(a)(3)(i) and PGI 207.105(a)(3)(i)).
    (ii) These requirements apply to any agency or department that 
acquires tents or other temporary structures on behalf of DoD (see FAR 
17.503(d)(2)).
* * * * *

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

252.212-7001  [Amended]

0
4. Amend section 252.212-7001 in paragraph (b)(9) by removing ``(JUN 
2010)'' and adding ``(JUN 2012)'' in its place.

0
5. Amend section 252.225-7012--
0
a. By removing the clause date ``(JUN 2010)'' and adding ``(JUN 2012)'' 
in its place;
0
b. In paragraph (a), by removing the numerical designations (1) through 
(5) from the definitions and adding, in alphabetical order, the 
definition of ``Structural component of a tent''; and
0
c. By revising paragraph (b)(3).
    The addition and revision read as follows:

252.225-7012  Preference for Certain Domestic Commodities.

* * * * *
    (a) * * *
    Structural component of a tent--
    (i) Means a component that contributes to the form and stability of 
the tent (e.g., poles, frames, flooring, guy ropes, pegs);
    (ii) Does not include equipment such as heating, cooling, or 
lighting.
* * * * *
    (b) * * *
    (3) Tents and structural components of tents, tarpaulins, and 
covers.
* * * * *

[FR Doc. 2012-15563 Filed 6-28-12; 8:45 am]
BILLING CODE 5001-06-P
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