Federal Register / Vol. 78, No. 60 / Thursday, March 28, 2013 / Rules and Regulations 18877 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 252 

RIN 0750–AH72 

Defense Federal Acquisition 

Regulation Supplement: New Free 

Trade Agreement With Colombia 

(DFARS Case 2012–D032) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD has adopted as final, 

without change, an interim rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement the United 

States-Colombia Trade Promotion 

Agreement. This Trade Promotion 

Agreement is a free trade agreement that 

provides for mutually nondiscriminatory treatment of eligible 

products and services from Colombia. 

DATES: Effective date: March 28, 2013. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Amy Williams, Telephone 571–372– 

6106. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD published an interim rule in the 

Federal Register at 77 FR 31536 on May 

29, 2012, to implement the United 

States-Colombia Trade Promotion 

Agreement Implementation Act (Pub. L. 

112–42) (19 U.S.C. 3805 note). 

No public comments were received. 

Therefore, DoD is adopting the interim 

rule as final, without change. 

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 certifies that this final rule will 

not 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. 

Although the rule now opens up 

Government procurement to the goods 

and services of Colombia at or above the 

threshold of $77,494.00, DoD does not 

anticipate any significant economic 

impact on U.S. small businesses. DoD 

only applies the trade agreements to the 

non-defense items listed at DFARS 

225.401–70, and acquisitions that are set 

aside or provide other forms of 

preference for small businesses are 

exempt. FAR 19.502–2 states that 

acquisitions that do not exceed 

$150,000 (with some exceptions) are 

automatically reserved exclusively for 

small business concerns. 

IV. Paperwork Reduction Act 

This rule affects the certification and 

information collection requirements in 

the provision 252.225–7035, currently 

approved under OMB Control Number 

0704–0229, titled Defense Federal 

Acquisition Regulation Supplement Part 

225, Foreign Acquisition, and related 

clauses, in accordance with the 

Paperwork Reduction Act (44 U.S.C. 

chapter 35). OMB Control Number 

0704–0229 assessed the total burden 

related to part 225 at approximately 

57,230 hours. The impact, however, is 

negligible, because it is just a question 

of under which category offered goods 

from Colombia would be listed. 

List of Subjects in 48 CFR Part 252 

Government procurement. 

Kortnee Stewart, 

Editor, Defense Acquisition Regulations 

System. 

Interim Rule Adopted as Final Without 

Change 

Accordingly, the interim rule 

amending 48 CFR part 252, which was 

published at 77 FR 31536 on May 29, 

2012, is adopted as a final rule without 

change. 

[FR Doc. 2013–07108 Filed 3–27–13; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 252 

RIN 0750–AH78 

Defense Federal Acquisition 

Regulation Supplement; Specialty 

Metals—Definition of ‘‘Produce’’ 

(DFARS Case 2012–D041) 

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 revise the definition of 

‘‘produce’’ as it applies to specialty 

metals. The National Defense 

Authorization Act for Fiscal Year 2011 

directed DoD to review the definition of 

‘‘produce’’ to ensure its compliance 

with the statutory restrictions on 

specialty metals and to determine if a 

revision to the current rule was 

necessary and appropriate. 

DATES: Effective Date: March 28, 2013. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Amy Williams, Telephone 571–372– 

6106. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD published a proposed rule in the 

Federal Register at 77 FR 43474 on July 

24, 2012. DoD proposed to amend the 

definition of ‘‘produce’’ to eliminate the 

phrase ‘‘quenching and tempering’’ of 

armor steel plate, and to expand the 

application of the other listed 

technologies, currently restricted just to 

titanium and titanium alloys, to any 

specialty metal that could be formed by 

such technologies. 

DoD received comments on the 

proposed rule from 13 respondents. 

II. Discussion and Analysis 

DoD reviewed the public comments in 

the development of the final rule. A 

discussion of the comments and the 

changes made to the rule as a result of 

those comments is provided, as follows: 

A. Summary of Significant Changes 

The phrase ‘‘gas atomization’’ in the 

definition of ‘‘produce’’ has been 

revised to read ‘‘atomization,’’ in order 

to allow for other types of atomization 

(e.g., gas, water, centrifugal, plasma). 


srobinson on DSK4SPTVN1PROD with RULES
18878 Federal Register / Vol. 78, No. 60 / Thursday, March 28, 2013 / Rules and Regulations 

B. Analysis of Comments 

1. Definition of ‘‘Produce’’ 

Comment: All respondents strongly 

supported the proposed definition of 

‘‘produce.’’ Some of the benefits of the 

revised definition noted by the 

respondents are as follows: 

Provides domestic control of material 

vital to protection of our troops is 

critical to national security interests, 

promotes self-sufficiency of U.S. 

defense industry. 

Helps maintain a strong domestic 

armor steel plate industry and 

strengthens our defense industrial base, 

as well as the overall economic strength 

of the United States. Incentivizes 

investment in the manufacturing 

capacity, process technology, research 

and development necessary to meet the 

needs of the U.S. military, thereby 

reducing the possibility of supply 

shortages. Adds new U.S. steelmaking 

jobs, as well as jobs throughout the 

steelmaking supply chain. 

Is consistent with statutory language 

and legislative history. 

Response: Noted. 

2. Impact of Changes in Production 

Capacity of Domestic Producers of Steel 

Plate 

Comment: Some respondents 

commented on the statement by DoD in 

the Federal Register preamble to the 

proposed rule, that there is now 

sufficient capacity to meet DoD 

requirements, if DoD were to remove 

‘‘quenching and tempering of steel 

plate’’ from the definition of ‘‘produce.’’ 

One respondent expressed concern that 

by linking the regulatory definition of 

‘‘produce’’ to changes in capacity, DoD 

is creating uncertainty and discourages 

potential investors from building or 

maintaining domestic production. 

Several respondents also commented 

that there are already existing statutory 

authorities (i.e., the nonavailability and 

national security exceptions), which 

should provide sufficient flexibility and 

make it unnecessary to revisit the issue 

of the definition of ‘‘produce.’’ 

Response: Since these respondents are 

all strongly in support of the proposed 

rule, no change is necessary in the final 

rule. 

3. Other Processes 

Comment: One respondent expressed 

support for DoD’s decision to amend the 

definition of ‘‘produce’’ to create a 

uniform definition for all specialty 

metals. Several respondents noted that 

the definition now only includes those 

technologies that make a significant 

contribution equivalent to melting, and 

allows for flexibility and future 

technology advances that could replace 

the melt stage for certain specialty 

metals. 

Response: Noted. 

Comment: One respondent stated that 

atomization of metal is not always 

achieved by using a stream of gas. 

Atomization may also be achieved by 

rotating molten metal at high speeds. 

Therefore, the respondent 

recommended deletion of the word 

‘‘gas’’ from the proposed definition of 

‘‘produce.’’ 

Response: DoD has removed the word 

‘‘gas’’ from the final rule. 

Comment: The same respondent 

stated that the final consolidation of 

metal powders produced through 

atomization would not be sufficient to 

confer domestic origin on the resulting 

article, because the atomization process 

uses molten metal. Therefore, the metal 

powder produced through atomization 

is a melt-derived powder, rather than a 

non-melt derived powder. The 

respondent did not request a change to 

the rule with regard to this issue, but 

requested clarification in the preamble 

to the final rule that articles produced 

from melt-derived metal powders, 

including metal powders produced 

through atomization, would have to be 

consolidated from domestically melted 

metal powders in order to be considered 

products of the United States. 

Response: DoD has created a vertical 

list to improve the clarity with regard to 

the three processes that constitute 

production, and must therefore be 

performed in the United States: (i) 

Atomization; (ii); sputtering; or (iii) final 

consolidation of non-melt derived 

powders. 

It is very clear that final consolidation 

only constitutes production with regard 

to metal powders that are derived by 

non-melt processes (such as mechanical 

or chemical processes). It is acceptable 

for non-melt processes to occur outside 

the United States, as long as final 

consolidation occurs in the United 

States, but any processes involving 

melting must occur in the United States. 

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: 

DoD has issued a final rule amending 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

revise the definition of ‘‘produce’’ as it 

applies to specialty metals. The 

National Defense Authorization Act for 

Fiscal Year 2011 directed DoD to review 

the definition of ‘‘produce’’ to ensure its 

compliance with 10 U.S.C. 2533b and to 

determine if a revision to the current 

rule was necessary and appropriate. 

The objective of the proposed rule is 

to revise the definition of ‘‘produce’’ as 

it applies to production of specialty 

metals, in response to comments 

received and consideration of current 

technologies for production of specialty 

metals other than titanium. The legal 

basis for the rule is 10 U.S.C. 2533b. No 

significant issues were raised by the 

public comments in response to the 

initial regulatory flexibility analysis. 

There were no comments filed by the 

Chief Counsel for Advocacy of the Small 

Business Administration. 

The final rule affects primarily 

producers of specialty metal steel armor 

plate, and manufacturers that supply 

steel armor plate that will be 

incorporated into end items to be 

acquired by DoD. Producers of specialty 

metals are generally large businesses. 

There is a high capitalization 

requirement to establish a business that 

can melt or produce specialty metals. 

The small business size standard for 

primary metal manufacturing ranges 

from 500 to 1,000 employees. All the 

specialty metals producers reviewed 

had more than 500 employees. There are 

numerous manufacturers of products 

containing specialty metals, either as 

prime contractors or subcontractors. 

DoD does not have the data to determine 

the total number of these manufacturers, 

or the number that are small businesses, 

because the Federal Procurement Data 

System only collects data on prime 

contractors and end items, not 

subcontractors and components of end 

items. 

There are no projected reporting, 

recordkeeping, or other compliance 

requirements. 

DoD did not identify any significant 

alternatives to the rule which would 

minimize any impact of the rule on 


srobinson on DSK4SPTVN1PROD with RULES
Federal Register / Vol. 78, No. 60 / Thursday, March 28, 2013 / Rules and Regulations 18879 

small entities and still meet the 

requirements of the statute 10 U.S.C. 

2533b. 

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 Part 252 

Government procurement. 

Kortnee Stewart, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, DoD amends 48 CFR part 

252 as follows: 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 1. The authority citation for part 252 

continues to read as follows: 

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

Chapter 1. 

252.212–7001 [Amended] 

■ 2. Section 252.212–7001 is amended 

by— 

■ a. Removing clause date ‘‘(FEB 2013)’’ 

and adding ‘‘(MAR 2013)’’ in its place; 

and 

■ b. In paragraph (b)(7), by removing the 

clause date ‘‘(JUL 2009)’’ and adding 

‘‘(MAR 2013)’’ in its place; and 

■ c. In paragraph (b)(8), by removing the 

clause date ‘‘(JUN 2012)’’ and adding 

‘‘(MAR 2013)’’ in its place. 

■ 3. Section 252.225–7008 is amended 

by— 

■ a. Removing clause date ‘‘(JUL 2009)’’ 

and adding ‘‘(MAR 2013)’’ in its place; 

and 

■ b. Removing the numerical 

designations preceding the definition 

headings of ‘‘Alloy’’; ‘‘Produce’’; 

‘‘Specialty metal’’; and ‘‘Steel’’. 

■ c. Revising the definition of 

‘‘Produce’’ in paragraph (a) to read as 

follows: 

252.225–7008 Restriction on Acquisition 

of Specialty Metals. 

* * * * * 

(a) * * * 

Produce means— 

(i) Atomization; 

(ii) Sputtering; or 

(iii) Final consolidation of non-melt 

derived metal powders. 

* * * * * 

■ 4. Section 252.225–7009 is amended 

by— 

■ a. Removing clause date ‘‘(JUN 2012)’’ 

and adding ‘‘(MAR 2013)’’ in its place; 

and 

■ b. Removing the numerical 

designations preceding the definition 

headings of ‘‘Alloy’’; ‘‘Assembly’’; 

‘‘Commercial derivative military 

article’’; ‘‘Commercially available offthe-shelf item’’; ‘‘Component’’; 

‘‘Electronic component’’; ‘‘End item’’; 

‘‘High performance magnet’’; 

‘‘Produce’’; ‘‘Qualifying country’’; 

‘‘Required form’’; ‘‘Specialty metal’’; 

‘‘Steel’’; and ‘‘Subsystem’’. 

■ c. Revising the definition of 

‘‘Produce’’ in paragraph (a) to read as 

follows: 

252.225–7009 Restriction on Acquisition 

of Certain Articles Containing Specialty 

Metals. 

* * * * * 

(a) * * * 

Produce means— 

(i) Atomization; 

(ii) Sputtering; or 

(iii) Final consolidation of non-melt 

derived metal powders. 

* * * * * 

252.244–7000 [Amended] 

■ 5. Section 252.244–7000 is amended 

by— 

■ a. Removing clause date ‘‘(JUN 2012)’’ 

and adding ‘‘(MAR 2013)’’ in its place; 

and 

■ b. In paragraph (b), by removing the 

clause date ‘‘(JUN 2012)’’ and adding 

‘‘(MAR 2013)’’ in its place. 

[FR Doc. 2013–07107 Filed 3–27–13; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 660 

[Docket No. 120313185–3252–01] 

RIN 0648–BC01 

Fisheries Off West Coast States; 

Pacific Coast Groundfish Fishery; 

Trawl Rationalization Program; 

Reconsideration of Allocation of 

Whiting 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: This action revises several 

portions of the Pacific Coast Groundfish 

Fishery Trawl Rationalization Program 

(program) regulations in response to a 

court order requiring the National 

Marine Fisheries Service (NMFS) to 

reconsider the initial allocation of 

Pacific whiting (whiting) to the 

shorebased individual fishing quota 

(IFQ) fishery and the at-sea mothership 

fishery. Additionally, NMFS concludes 

after review of public comments and the 

record as a whole, that the Pacific 

Fishery Management Council’s 

(Council’s) recommendation to maintain 

the existing initial allocations of whiting 

is consistent with the MagnusonStevens Fishery Conservation and 

Management Act (MSA), the Pacific 

Coast Groundfish Fishery Management 

Plan (Groundfish FMP), and other 

applicable law. This final rule will 

affect the transfer of quota share (QS) 

and individual bycatch quota (IBQ) 

between QS accounts in the shorebased 

IFQ fishery, and severability of catch 

history assignments (CHAs) in the 

mothership fishery, both of which will 

be allowed on specified dates, with the 

exception of widow rockfish. Widow 

rockfish is no longer an overfished 

species and transfer of QS for this 

species will be reinstated pending 

reconsideration of the allocation of 

widow rockfish QS in a future action. 

The divestiture period for widow 

rockfish QS in the IFQ fishery will also 

be delayed indefinitely. 

DATES: This rule is effective April 1, 

2013. 

ADDRESSES: Information relevant to this 

final rule, which includes a final 

environmental assessment (EA), and a 

final regulatory flexibility analysis 

(FRFA), including a regulatory impact 

review (RIR), are available from William 

W. Stelle, Jr., Regional Administrator, 

Northwest Region, NMFS, 7600 Sand 

Point Way NE., Seattle, WA 98115– 

0070. Electronic copies of this final rule 

are also available at the NMFS 

Northwest Region Web site: http:// 

www.nwr.noaa.gov. 

FOR FURTHER INFORMATION CONTACT: 

Ariel Jacobs, 206–526–4491; (fax) 206– 

526–6736; Ariel.Jacobs@noaa.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

This final rule revises several 

provisions of the Pacific coast trawl 

rationalization program and supersedes 

regulatory delays and/or revisions 

NMFS established through temporary 

emergency action in a final rule 

published on August 1, 2012 (77 FR 

45508), and extended on January 17, 

2013 (78 FR 3848). Specifically, this 

action will: 

(1) Allow transfer of QS or IBQ 

(except for widow rockfish QS) between 

QS permit holders in the shorebased 

IFQ fishery beginning January 1, 2014; 

(2) Require QS permit holders in the 

shorebased IFQ fishery holding QS or 


srobinson on DSK4SPTVN1PROD with RULES