Federal Register / Vol. 89, No. 205 / Wednesday, October 23, 2024 / Proposed Rules 84505 

spacecraft, subject to the EAR to its 

launch vehicle; and 

(ii) For the spacecraft referenced in 

paragraph (b)(1)(i) of this section, the 

scheduled launch date must be within 

six months of when the activities are 

conducted. 

(2) Exempted activities. The following 

activities are eligible for the exemption 

in this paragraph (b): 

(i) The export, reexport, retransfer, or 

temporary import of the following 

defense articles: 

(A) Electrical connectors described in 

paragraph (h)(29) of USML Category IV 

in part 121 of this subchapter, other 

than those used in ballistic missiles; and 

directly related interface control 

documents; 

(B) [Reserved] 

(ii) Encrypting, decrypting, relaying, 

or retransmitting, to or from a ground 

station, unmodified telemetry for the 

health, systems status, position, and 

velocity of space launch vehicles 

described in USML Category IV in part 

121 of this subchapter; 

(iii) The furnishing of assistance to a 

foreign person in the operation or use of 

an on-orbit defense article in support of 

fundamental research as defined at 

§ 120.34(a)(8) of this subchapter; and 

(iv) The furnishing of assistance to a 

foreign person in the operation or use of 

an on-orbit defense article to geolocate 

the following radiofrequency 

transmissions: 

(A) Emergency locator transmission 

(ELT) frequencies 121.5, 243.0, and 406 

MHz; 

(B) Automatic identification system 

(AIS) frequencies 161.975 and 162.025 

MHz; 

(C) Commercial VHF maritime mobile 

frequencies 156 through 174 MHz; and 

(D) Commercial non-satellite cellular 

telephone communications specified by 

the global system for mobile 

communications (GSM), universal 

mobile telecommunications system 

(UMTS), long-term evolution (LTE), or 

the following International Mobile 

Telecommunications (IMT) standards: 

IMT–2000 (3G), IMT-Advanced (4G), or 

IMT–2020 (5G). 

(c) Exemption for space tourism and 

research. No license or other approval is 

required for the export, reexport, or 

temporary import of manned spacecraft, 

subject to all of the following 

restrictions: 

(1) The spacecraft must be limited to 

suborbital trajectories; 

(2) The purpose of the activity must 

be limited to either space tourism or 

supporting fundamental research as 

defined at § 120.34(a)(8) of this 

subchapter; 

(3) The activity must not transfer 

registration, control, or ownership of the 

spacecraft to a foreign person; and 

(4) The spacecraft’s destinations, 

including planned diverts and 

contingencies, must be approved by the 

Federal Aviation Administration or its 

foreign equivalent, and must not 

include any proscribed destinations 

under § 126.1 of this subchapter. 

(d) Licensing of defense articles 

incorporated or integrated into EAR 

spacecraft. Articles described in 

paragraph (c), (d), or (e) of USML 

Category XV in part 121 of this 

subchapter may be licensed for export, 

reexport, or retransfer by the 

Department of Commerce’s Bureau of 

Industry and Security while they are 

incorporated in, and included as an 

integral part of, a spacecraft subject to 

the EAR. Articles do not become eligible 

for this licensing provision until 

incorporated into the spacecraft subject 

to the EAR. Exports, reexports, 

retransfers, or temporary imports of 

defense articles prior to incorporation, 

and directly related technical data and 

defense services, are not eligible for this 

licensing provision. Replacement 

articles, and articles subsequently 

unincorporated from the spacecraft, are 

not eligible for this licensing provision. 

Bonnie D. Jenkins, 

Under Secretary, Arms Control and 

International Security, Department of State. 

[FR Doc. 2024–24091 Filed 10–17–24; 4:15 pm] 

BILLING CODE 4710–25–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Part 25 

[FAR Case 2020–009, Docket No. FAR– 

2020–0009, Sequence No. 1] 

RIN 9000–AO07 

Federal Acquisition Regulation: List of 

Domestically Nonavailable Articles 

AGENCY: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Proposed rule. 

SUMMARY: DoD, GSA, and NASA are 

proposing to amend the Federal 

Acquisition Regulation (FAR) to revise 

the list of domestically nonavailable 

articles under the Buy American statute 

and implement requirements related to 

making future changes to the list. 

DATES: Interested parties should submit 

written comments to the Regulatory 

Secretariat Division at the address 

shown below on or before December 23, 

2024 to be considered in the formation 

of the final rule. 

ADDRESSES: Submit comments in 

response to FAR Case 2020–009 to the 

Federal eRulemaking portal at https://

www.regulations.gov by searching for 

‘‘FAR Case 2020–009’’. Select the link 

‘‘Comment Now’’ that corresponds with 

‘‘FAR Case 2020–009’’. Follow the 

instructions provided on the ‘‘Comment 

Now’’ screen. Please include your name, 

company name (if any), and ‘‘FAR Case 

2020–009’’ on your attached document. 

If your comment cannot be submitted 

using https://www.regulations.gov, call 

or email the point of contact in the FOR

FURTHER INFORMATION CONTACT section of 

this document for alternate instructions. 

Instructions: Please submit comments 

only and cite ‘‘FAR Case 2020–009’’ in 

all correspondence related to this case. 

Comments received generally will be 

posted without change to https://

www.regulations.gov, including any 

personal and/or business confidential 

information provided. Public comments 

may be submitted as an individual, as 

an organization, or anonymously (see 

frequently asked questions at https://

www.regulations.gov/faq). To confirm 

receipt of your comment(s), please 

check https://www.regulations.gov, 

approximately two to three days after 

submission to verify posting. 

FOR FURTHER INFORMATION CONTACT: For 

clarification of content, contact Ms. 

Zenaida Delgado, Procurement Analyst, 

at 202–969–7207 or by email at 

zenaida.delgado@gsa.gov. For 

information pertaining to status, 

publication schedules, or alternate 

instructions for submitting comments if 

https://www.regulations.gov cannot be 

used, contact the Regulatory Secretariat 

Division at 202–501–4755 or 

GSARegSec@gsa.gov. Please cite FAR 

Case 2020–009. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD, GSA, and NASA are proposing 

to revise the list of domestically 

nonavailable articles at FAR 25.104(a) 

and take other actions to limit the use 

of regulatory nonavailability waivers 

consistent with section 9 of Executive 

Order (E.O.) 14005, Ensuring the Future 

Is Made in All of America by All of 

America’s Workers (86 FR 7475, January 

28, 2021). E.O. 14005 establishes 

policies to maximize the Federal 

Government’s use of goods, products, 


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and materials produced in the United 

States to help American businesses 

compete in strategic industries and 

ensure America’s workers thrive. A key 

pillar of the E.O. involves reducing the 

need for waivers to the Buy American 

statute (41 U.S.C. chapter 83), which 

generally requires that only 

domestically mined, produced, or 

manufactured articles be procured for 

public use in the United States. The Buy 

American statute provides an exception 

for articles not mined, produced, or 

manufactured in the United States in 

sufficient and reasonably available 

commercial quantities and of a 

satisfactory quality. 

Prior to issuance of E.O. 14005, FAR 

25.103(b)(2)(i) authorized the head of 

the contracting activity to make an 

individual determination of 

nonavailability without having to 

publicly share the rationale for the 

determination or the nature of the 

market research conducted. The agency 

simply reported to the Federal 

Procurement Data System if a 

nonavailability waiver was used on a 

particular acquisition. In addition, a 

written determination of nonavailability 

was not required if the acquisition was 

conducted using full and open 

competition, synopsized, and no offer 

for a domestic source was received. This 

process made it challenging for an 

existing Government contractor or 

potential new entrant to become aware 

if its capabilities were being overlooked. 

Further, if the contracting officer 

considered that the nonavailability of an 

article was likely to affect future 

acquisitions over a period of time, FAR 

25.103(b)(2)(ii) authorized the 

contracting officer to submit a copy of 

the determination and supporting 

documentation to the appropriate 

regulatory council identified in FAR 

1.201–1 (i.e., the Defense Acquisition 

Regulations Council or the Civilian 

Agency Acquisition Council), in 

accordance with agency procedures, to 

consider inclusion on the list of 

nonavailable articles at FAR 25.104(a). 

Inclusion of the article on the 

nonavailability list reduces the level of 

public outreach even further in light of 

the presumption of nonavailability. 

E.O. 14005 makes a number of 

changes to tighten the waiver process 

and strengthen efforts to increase 

reliance on domestic sourcing. First, 

with respect to individual waivers (see 

FAR 25.103(b)(2)(i)), the E.O. updates, 

centralizes, and provides transparency 

to the process for their issuance. Section 

4 of the E.O. established the Made in 

America Office (MIAO) in the Office of 

Management and Budget (OMB) to 

manage a centralized process for 

reviewing proposed agency 

nonavailability waivers for individual 

and multiple procurements. Agencies 

can no longer simply rely on the 

absence of domestic offers in a 

competition to justify a nonavailability 

waiver. OMB Memorandum M–21–26, 

Increasing Opportunities for Domestic 

Sourcing and Reducing the Need for 

Waivers from Made in America Laws, 

and guidance issued jointly by MIAO 

and the Office of Federal Procurement 

Policy (OFPP), Improving the 

Transparency of Made in America 

Waivers (October 26, 2021), provided 

direction to agencies for the 

development, coordination, and posting 

of waivers. In particular, the guidance 

instructs agencies to describe steps the 

agency has taken to understand market 

capabilities and capacity to help 

potential interested sources and supply 

chain experts identify where 

opportunities might have been missed 

and could be pursued when future 

needs arise. The guidance provides that 

waivers will cover individual 

transactions but allows agencies to 

pursue multi-procurement waivers for 

repetitive needs where market research 

indicates that domestic capability may 

be lacking for a period of time, provided 

the waiver is time limited. The guidance 

states that agencies should continually 

study the market and reflect recent 

analysis in their proposed waivers and 

not assume that there is no qualifying 

product simply because one was not 

found in a prior year. The guidance 

further directs that proposed waivers 

must be posted on the 

MadeinAmerica.gov website so that 

interested sellers can have a better 

understanding of where agencies are 

having trouble finding U.S.-made 

products. The guidance explains that 

greater transparency should lead to a 

more responsive supplier base and help 

agencies build diversity by pulling new 

entrants into the Federal marketplace. 

DoD, GSA, and NASA will address 

regulatory changes to FAR 25.103 

through a future rulemaking. 

Second, section 9 of E.O. 14005 

creates a new oversight mechanism to 

more carefully control the identification 

of articles eligible for inclusion at FAR 

25.104(a) (‘‘regulatory waivers’’, see 

FAR 25.103(b)(1)(i)). Section 9 requires 

the Director of OMB, through the 

Administrator of OFPP, to consult with 

the Secretary of Commerce and the 

Director of MIAO regarding any changes 

proposed by DoD, GSA, and NASA to 

the list of nonavailable articles 

identified at FAR 25.104(a). Section 9 of 

E.O. 14005 requires paying particular 

attention to economic analyses of 

relevant markets and available market 

research, to determine whether there is 

a reasonable basis to conclude that the 

article, material, or supply is not mined, 

produced, or manufactured in the 

United States in sufficient and 

reasonably available commercial 

quantities and of a satisfactory quality. 

DoD, GSA, and NASA are issuing this 

proposed rule to implement section 9 

and reduce reliance on regulatory 

waivers that can disincentivize 

domestic sourcing by signaling a lack of 

confidence in domestic manufacturers’ 

capacity to meet the Federal 

Government’s current demand or grow 

capacity to meet future demand. A 

general presumption of nonavailability 

discourages the type of ongoing, 

proactive engagement with industry to 

understand supply chains and market 

trends that is vital to strengthening 

domestic manufacturing. 

DoD, GSA, and NASA, in partnership 

with MIAO and OFPP, have conducted 

a proactive review of each of the 109 

articles on the existing nonavailable 

articles list. The current list of articles 

identified in FAR 25.104(a) is a wideranging mix of natural resources, 

compounds, materials, and other items 

of supply. Although some articles on the 

list have no known domestic production 

sources (e.g., quartz crystals or vanilla 

beans), many of the articles are known 

to have some domestic production 

sources, but those sources have been 

determined in the past to be inadequate 

to meet U.S. demand. Examples of such 

articles range from bismuth (not more 

than 10 percent of U.S. Government and 

nongovernment demand) to spices and 

herbs, in bulk, (not more than 40 

percent of U.S. Government and 

nongovernment demand). For additional 

discussion regarding the basis for 

removal of articles from the list at FAR 

25.104(a), see section IV. of this 

proposed rule preamble. 

II. Discussion and Analysis 

The following summarizes the 

proposed changes to the FAR: 

A. Proposed Revisions to the List at FAR 

25.104(a) 

DoD, GSA, and NASA are proposing 

to remove numerous articles from the 

nonavailability list as a general reset of 

the list to remove a presumption of 

nonavailability as a means to encourage 

further market research and send a 

signal to industry. This may mean that 

contracting officers will do more market 

research on domestic availability of the 

removed products. It also may 

encourage domestic producers to take 

an interest in the articles removed from 

the nonavailability list. Proposed 


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removals include the following articles: 

acetylene, black; agar, bulk; anise; 

asbestos, amosite, chrysotile, and 

crocidolite; bauxite; beef, corned, 

canned; beef extract; bephenium 

hydroxynaphthoate; cadmium, ores and 

flue dust; calcium cyanamide; castor 

beans and castor oil; chalk, English; 

chicle; cinchona bark; cobalt, in 

cathodes, rondelles, or other primary 

ore and metal forms; colchicine 

alkaloid, raw; copra; crane rail (85- 

pound per foot); cryolite, natural; 

dammar gum; diamonds, industrial, 

stones and abrasives; emetine, bulk; 

ergot, crude; erythrityl tetranitrate; goat 

hair canvas; goat and kidskins; graphite, 

natural, crystalline, crucible grade; hand 

file sets (Swiss pattern); handsewing 

needles; ipecac, root; iodine, crude; 

kauri gum; lac; lavender oil; leather, 

sheepskin, hair type; manganese; 

menthol, natural bulk; mica; 

microprocessor chips (brought onto a 

Government construction site as 

separate units for incorporation into 

building systems during construction or 

repair and alteration of real property); 

nickel, primary, in ingots, pigs, shots, 

cathodes, or similar forms; nickel oxide 

and nickel salts; nux vomica, crude; 

oiticica oil; olive oil; olives (green), 

pitted or unpitted, or stuffed, in bulk; 

opium, crude; petroleum, crude oil, 

unfinished oils, and finished products; 

pine needle oil; platinum and related 

group metals, refined, as sponge, 

powder, ingots, or cast bars; pyrethrum 

flowers; quebracho; quinidine; quinine; 

rabbit fur felt; radium salts, source and 

special nuclear materials; rosettes; 

santonin, crude; secretin; shellac; 

sugars, raw; talc, block, steatite; 

tantalum; thread, metallic (gold); thyme 

oil; triprolidine hydrochloride; 

tungsten; wax, carnauba; wire glass; 

woods, logs, veneer, and lumber of the 

following species: Alaskan yellow 

cedar, angelique, balsa, ekki, greenheart, 

lignum vitae, mahogany, and teak; yarn, 

50 Denier rayon; and yeast, active dry 

and instant active dry. 

There is no substantial evidence that 

there is a major increase in the 

availability of the articles being deleted, 

but there is evidence that there is 

capacity for many of the articles being 

removed. Review of several publications 

such as periodicals from the United 

States Geological Survey (USGS) shows 

that for many of these articles there is 

some degree of domestic capacity. For 

example, according to the USGS, the 

United States produces 43,000 metric 

tons of mica per year, and the Economic 

Research Service of the U.S. Department 

of Agriculture reports that the United 

States is one of the world’s largest 

producers of raw sugar. For additional 

discussion regarding the basis for 

removal of these articles from the list, 

see section IV. of this proposed rule 

preamble. 

B. Proposed Protocols To Amend the 

List at FAR 25.104(a) 

The rule proposes adding FAR 

language to implement the requirements 

of section 9 of E.O. 14005 requiring 

consultation with the Secretary of 

Commerce and the MIAO Director prior 

to any changes to the list at FAR 

25.104(a). The proposed rule retains the 

current standard for inclusion on the 

list, which is that domestic sources can 

only meet 50 percent or less of total U.S. 

Government and nongovernment 

demand. See FAR 25.103(b)(1)(i). It also 

retains the requirement that the 

procuring agency is responsible for 

conducting market research appropriate 

to the circumstances, including seeking 

domestic sources before acquisition of 

an article on the list. This applies to 

acquisition of an article as either an end 

product or a significant component 

(valued at more than 50 percent of the 

value of all the components). 

Finally, the class determination for 

articles on the list will continue to be 

deemed inapplicable if the contracting 

officer learns at any time before the time 

designated for receipt of bids in sealed 

bidding or final offers in negotiated 

procurements that an article on the list 

is available domestically in sufficient 

and reasonably available commercial 

quantities of a satisfactory quality to 

meet the requirements of the 

solicitation. See FAR 25.103(b)(1)(iii). 

III. Applicability to Contracts at or 

Below the Simplified Acquisition 

Threshold (SAT) and for Commercial 

Products (Including Commercially 

Available Off-the-Shelf (COTS) Items), 

or for Commercial Services 

This rule does not create new 

solicitation provisions or contract 

clauses or impact any existing 

provisions or clauses. 

IV. Expected Impact of the Rule 

The proposed rule would 

substantially reduce the number of 

articles on the list at FAR 25.104(a) that 

are presumed by regulation to be 

nonavailable in the United States in 

sufficient and reasonably available 

commercial quantities and of a 

satisfactory quality. Removal of an 

article from the list means that if such 

articles are acquired by the agency in 

the future, the agency may no longer 

presume the article is not available 

domestically. Instead, the agency must 

submit a proposed waiver to MIAO 

explaining the basis for concluding the 

article is not available domestically, 

including the market research 

conducted to find domestic sources, and 

post the proposed waiver on 

MadeinAmerica.gov. Over time, 

decreased reliance on regulatory 

waivers and greater use of individual 

waivers that are reviewed centrally and 

posted publicly should contribute to a 

more dynamic, diverse, and competitive 

domestic industrial base. As a general 

matter, regulatory waivers 

disincentivize domestic sourcing by 

signaling a lack of confidence in its 

capacity to meet the Federal 

Government’s current demand or grow 

capacity to meet future demand. Use of 

individualized waivers in lieu of 

regulatory waivers that are coordinated 

centrally and posted for public 

awareness should encourage the type of 

ongoing, proactive engagement with 

industry to understand supply chains 

and market trends that is vital to 

strengthening domestic manufacturing 

and reducing the need for waivers over 

time. As explained in OMB 

Memorandum M–21–26 and the joint 

memorandum MIAO and OFPP issued 

on October 26, 2021, there are a number 

of strategic advantages to central review 

and posting of waivers, including: the 

ability for MIAO and agencies to share 

market research information and insight 

that might lead to the identification of 

domestic sources in future acquisitions; 

the ability for agencies to send a clear 

demand signal to industry of the Federal 

Government’s desire to reduce reliance 

on foreign-made items; the ability for 

potential sources to see opportunities 

for new domestic providers, and for 

existing domestic providers that may 

have been overlooked to see if agencies 

may have missed market capabilities in 

their market research; and the 

opportunity for MIAO to bring greater 

consistency in use of waivers across the 

Government through its feedback to 

agencies. The heightened transparency 

provided on individual waivers can be 

especially beneficial in furthering both 

contractor resilience by reducing 

transaction costs for potential sellers 

and diversity by lowering a barrier to 

entry for small businesses and new 

entrants to the Federal market that may 

struggle to find work opportunities. 

There are 109 articles currently 

subject to regulatory waiver. In the past, 

DoD, GSA, and NASA have largely 

relied on public comment to identify 

articles that should be removed from the 

list. For example, an advance notice of 

proposed rulemaking was issued at 85 

FR 28596 on May 13, 2020, seeking 

information that would assist in 


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identifying domestic capabilities and for 

evaluating whether some articles on the 

list at FAR 25.104(a) should be removed 

because they are now mined, produced, 

or manufactured in the United States in 

sufficient and reasonably available 

commercial quantities and of a 

satisfactory quality. While public input 

and insight remains an important part of 

the review process, DoD, GSA, and 

NASA conducted a proactive review of 

each article, in consultation with MIAO 

and OFPP, to determine if the 

presumption of nonavailability remains 

appropriate. This review will help to 

ensure the list more accurately reflects 

market conditions and to avoid 

overlooking domestic capabilities. 

Articles were identified as suitable for 

removal from the list if one or more of 

the following criteria were met: (i) there 

is a demonstrated domestic capacity to 

source the article; (ii) more limited 

duration waivers with centralized 

management would provide important 

insight into Government supply chains, 

including critical supply chains with 

national or economic security 

implications; (iii) there is limited 

Government demand for the article; or 

(iv) the articles are believed to be 

obsolete. 

Articles proposed for removal from 

the list based on an expectation of 

sufficient and reasonably available 

commercial quantities include 

petroleum, crude oil, unfinished oils, 

and finished products, as the domestic 

crude oil capacity of the United States 

makes it the world’s largest producer of 

crude oil according to the U.S. Energy 

Information Administration. Similarly, 

according to the USGS’ Mineral 

Commodity Summary for Cadmium in 

January 2024, the United States has 

demonstrated a domestic capacity of 

cadmium that has allowed it to become 

a net exporter of this metal. Talc, block, 

steatite is an additional article for 

which, according to Mineral 

Commodities Summaries for 2024, the 

United States domestic capacity was 

capable of meeting domestic demand. 

The report indicated that the United 

States’ net import reliance for talc as a 

percentage of apparent consumption 

was six percent in 2023. Other articles 

expected to meet this criterion include: 

beef, corned, canned; beef extract; 

leather, sheepskin, hair type; sugars, 

raw; and yeast, active dry and instant 

active dry. 

Articles proposed for removal from 

the list based on the conclusion that 

more limited duration waivers with 

centralized management would provide 

important insight into Government 

supply chains include: bauxite; cobalt, 

in cathodes, rondelles, or other primary 

ore and metal forms; diamonds, 

industrial, stones and abrasives; goat 

hair canvas; goat and kidskins; graphite, 

natural, crystalline, crucible grade; 

iodine, crude; manganese; mica; 

microprocessor chips (brought onto a 

Government construction site as 

separate units for incorporation into 

building systems during construction or 

repair and alteration of real property); 

nickel, primary, in ingots, pigs, shots, 

cathodes, or similar forms, nickel oxide 

and nickel salts; olive oil; olives (green), 

pitted or unpitted, or stuffed, in bulk; 

platinum and related group metals, 

refined, as sponge, powder, ingots, or 

cast bars; tantalum; and tungsten. Many 

of these articles fall within critical 

supply chains that were prioritized for 

strengthening under E.O. 14017, 

America’s Supply Chains, for reasons of 

national or economic security. 

Articles proposed for removal from 

the list because there is limited 

Government demand for the article 

include: acetylene, black; agar, bulk; 

chalk, English; anise; bephenium 

hydroxynaphthoate; calcium 

cyanamide; castor beans and castor oil; 

chicle; cinchona bark; colchicine 

alkaloid, raw; copra; crane rail (85- 

pound per foot); cryolite, natural; 

dammar gum; emetine, bulk; ergot, 

crude; erythrityl tetranitrate; hand file 

sets (Swiss pattern); handsewing 

needles; lac; lavender oil; menthol, 

natural bulk; nux vomica, crude; oiticica 

oil; opium, crude; pine needle oil; 

pyrethrum flowers; quebracho; 

quinidine; quinine; rabbit fur felt; 

radium salts, source and special nuclear 

materials; rosettes; secretin; shellac; 

thread, metallic (gold); thyme oil; 

triprolidine hydrochloride; wax, 

carnauba; wire glass; woods, logs, 

veneer, and lumber of the following 

species: Alaskan yellow cedar, 

angelique, balsa, ekki, greenheart, 

lignum vitae, mahogany, and teak; and 

yarn, 50 Denier rayon. 

Articles proposed for removal from 

the list because they are believed to be 

obsolete include asbestos, amosite, 

chrysotile, and crocidolite; ipecac, root; 

kauri gum; and santonin, crude. The 

removal of asbestos from the list meets 

the obsolescence criteria because of the 

Environmental Protection Agency’s ban 

on ongoing uses of asbestos. 

In total, DoD, GSA, and NASA are 

proposing to remove 70 articles from the 

list at FAR 25.104(a). This would reduce 

the existing list by more than half. 

The proposed rule provides these 

benefits at minimal cost to Federal 

contractors or the Government. There 

should be no cost to Federal contractors 

from the proposed reduction of articles 

on the regulatory waiver list, as the 

transition to individual waivers should 

increase transparency and reduce 

transaction costs associated with finding 

domestic opportunities. 

The proposed rule is expected to 

create only minimal additional 

procurement costs to the Government 

due to the low amount of spend and the 

low number of contract actions for the 

articles removed from the list. In fiscal 

year (FY) 2023, the Federal contract 

spend for the articles removed from the 

list was estimated to be under $150 

million, which represents less than 0.02 

percent of the total Federal contract 

spend for the same year. In FY 2023, the 

number of Federal contract actions for 

the articles removed from the list was 

estimated to be under 10,000 Federal 

contract actions, which represents less 

than 0.02 percent of the total number of 

Federal contract actions for the same 

year. This data set excludes petroleum, 

crude oil, unfinished oils, and finished 

products. For the under 10,000 Federal 

contract actions estimated to be 

potentially impacted by the articles’ 

removal from the list, agencies will still 

be able to use preexisting procedures to 

seek an individual waiver from MIAO. 

Additionally, for articles for which 

market research shows domestic 

capability may not be sufficient for a 

period of time and the agency has a 

need for repetitive purchases under an 

indefinite-delivery contract, the agency 

may pursue a time-bound multiprocurement waiver. 

The potential procurement costs to 

the Government are reduced further 

when considering the nature of some of 

the articles to be removed. The articles 

removed include many items that are no 

longer procured in significant amounts 

or are obsolete. It is estimated that 

approximately half of the articles on the 

list have not been procured in 

significant quantities in FY 2021 

through FY 2023, are obsolete or greatly 

reduced in their use (e.g., santonin), or 

are subject to regulatory changes since 

they were added to the nonavailable 

articles list (e.g., asbestos). 

V. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 (as 

amended by E.O. 14094) and 13563 

direct agencies to assess the 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 


khammond on DSKJM1Z7X2PROD with PROPOSALS
Federal Register / Vol. 89, No. 205 / Wednesday, October 23, 2024 / Proposed Rules 84509 

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. 

VI. Regulatory Flexibility Act 

DoD, GSA, and NASA do not expect 

this proposed rule, if finalized, 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. 601–612, 

because the rule is not implementing 

any requirements with which small 

entities must comply. However, an 

Initial Regulatory Flexibility Analysis 

(IRFA) has been performed and is 

summarized as follows: 

DoD, GSA, and NASA are proposing to 

amend the FAR to revise the list of 

domestically nonavailable articles under the 

Buy American statute and the protocols to 

amend the list. 

The objective of this rule is to revise the 

list of nonavailable articles at FAR 25.104(a). 

The rule also seeks to implement section 9 

of E.O. 14005. Promulgation of the FAR is 

authorized by 40 U.S.C. 121(c); 10 U.S.C. 

chapter 4 and 10 U.S.C. chapter 137 legacy 

provisions (see 10 U.S.C. 3016); and 51 

U.S.C. 20113. 

The proposed rule impacts all entities that 

do business with the Federal Government, 

including the over 331,899 small business 

registrants in the System for Award 

Management. However, DoD, GSA, and 

NASA do not expect this proposed rule, if 

finalized, to have a significant economic 

impact on a substantial number of small 

entities because the rule is not implementing 

any requirements with which small entities 

must comply. It is expected that this 

proposed rule will encourage small 

businesses to take an interest in building 

domestic manufacturing capabilities and 

capacity; this would be a positive impact 

though not a substantial impact. 

The proposed rule does not include 

additional, or change any existing, reporting 

or recordkeeping requirements. The rule does 

not duplicate, overlap, or conflict with any 

other Federal rules. There are no available 

alternatives to the proposed rule to 

accomplish the desired objective of E.O. 

14005. 

The Regulatory Secretariat Division 

has submitted a copy of the IRFA to the 

Chief Counsel for Advocacy of the Small 

Business Administration. A copy of the 

IRFA may be obtained from the 

Regulatory Secretariat Division. DoD, 

GSA, and NASA invite comments from 

small business concerns and other 

interested parties on the expected 

impact of this proposed rule on small 

entities. 

DoD, GSA, and NASA will also 

consider comments from small entities 

concerning the existing regulations in 

subparts affected by the rule in 

accordance with 5 U.S.C. 610. Interested 

parties must submit such comments 

separately and should cite 5 U.S.C. 610 

(FAR Case 2020–009), in 

correspondence. 

VII. 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. 

3501–3521). 

List of Subjects in 48 CFR Part 25 

Government procurement. 

William F. Clark, 

Director, Office of Government-wide 

Acquisition Policy, Office of Acquisition 

Policy, Office of Government-wide Policy. 

Therefore, DoD, GSA, and NASA 

propose amending 48 CFR part 25 as set 

forth below: 

■ 1. The authority citation for 48 CFR 

part 25 continues to read as follows: 

Authority: 40 U.S.C. 121(c); 10 U.S.C. 

chapter 4 and 10 U.S.C. chapter 137 legacy 

provisions (see 10 U.S.C. 3016); and 51 

U.S.C. 20113. 

PART 25—FOREIGN ACQUISITION 

■ 2. Revise section 25.104 to read as 

follows: 

25.104 Nonavailable articles. 

(a) The following articles have been 

determined to be nonavailable in 

accordance with 25.103(b)(1)(i): 

Antimony, as metal or oxide. 

Bamboo shoots. 

Bananas. 

Bismuth. 

Books, trade, text, technical, or 

scientific; newspapers; pamphlets; 

magazines; periodicals; printed briefs 

and films; not printed in the United 

States and for which domestic editions 

are not available. 

Brazil nuts, unroasted. 

Capers. 

Cashew nuts. 

Chestnuts. 

Chrome ore or chromite. 

Cocoa beans. 

Coconut and coconut meat, 

unsweetened, in shredded, desiccated, 

or similarly prepared form. 

Coffee, raw or green bean. 

Cork, wood or bark and waste. 

Cover glass, microscope slide. 

Fair linen, altar. 

Fibers of the following types: abaca, 

abace, agave, coir, flax, jute, jute 

burlaps, palmyra, and sisal. 

Grapefruit sections, canned. 

Hemp yarn. 

Hog bristles for brushes. 

Hyoscine, bulk. 

Modacrylic fiber. 

Nitroguanidine (also known as 

picrite). 

Oranges, mandarin, canned. 

Pineapple, canned. 

Quartz crystals. 

Rubber, crude and latex (natural). 

Rutile. 

Silk, raw and unmanufactured. 

Spare and replacement parts for 

equipment of foreign manufacture, and 

for which domestic parts are not 

available. 

Spices and herbs, in bulk. 

Swords and scabbards. 

Tapioca flour and cassava. 

Tartar, crude; tartaric acid and cream 

of tartar in bulk. 

Tea in bulk. 

Tin in bars, blocks, and pigs. 

Vanilla beans. 

Venom, cobra. 

Water chestnuts. 

(b) To amend the list of nonavailable 

articles, an economic analysis is 

required of relevant markets and 

available market research, to determine 

whether there is a reasonable basis to 

conclude that the article, material, or 

supply is not mined, produced, or 

manufactured in the United States in 

sufficient and reasonably available 

commercial quantities and of a 

satisfactory quality. This analysis will 

be performed by the Director of the 

Office of Management and Budget 

(OMB), through the Administrator of the 

Office of Federal Procurement Policy, 

who will consult with the Secretary of 

Commerce and the Director of the 

OMB’s Made in America Office on any 

proposed changes. (Executive Order 

14005 of January 25, 2021, Ensuring the 

Future Is Made in All of America by All 

of America’s Workers, Section 9). 

(c) This list will be published in the 

Federal Register for public comment no 

less frequently than once every five 

years. Unsolicited recommendations for 

deletions from this list may be 

submitted at any time and should 

provide sufficient data and rationale to 

permit evaluation (see 1.502). An 

economic analysis as described in 

paragraph (b) of this section will be 

used to support changes to the list. 

[FR Doc. 2024–24395 Filed 10–22–24; 8:45 am] 

BILLING CODE 6820–EP–P 


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