Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 2417 

(1) The authority to make the 

determination authorized in FAR 

16.504(c)(1)(ii)(D)(1)(iv) shall not be 

delegated below the level of the senior 

procurement executive. 

(3) A copy of any determination made 

in accordance with FAR 

16.504(c)(1)(ii)(D) shall be submitted to: 

Deputy Director, Defense Procurement 

(Contract Policy and International 

Contracting), OUSD (AT&L) DPAP 

(CPIC), 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

[FR Doc. E9–673 Filed 1–14–09; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 225, 236, and 252 

RIN 0750–AG16 

Defense Federal Acquisition 

Regulation Supplement; Steel for 

Military Construction Projects (DFARS 

Case 2008–D038) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Interim rule with request for 

comments. 

SUMMARY: DoD has issued an interim 

rule amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement Section 108 of 

the Military Construction and Veterans 

Affairs Appropriations Act, 2009. 

Section 108 requires that American steel 

producers, fabricators, and 

manufacturers be given the opportunity 

to compete for contracts and 

subcontracts for the acquisition of steel 

for use in military construction projects 

or activities. 

DATES: Effective date: January 15, 2009. 

Comment date: Comments on the 

interim rule should be submitted in 

writing to the address shown below on 

or before March 16, 2009, to be 

considered in the formation of the final 

rule. 

ADDRESSES: You may submit comments, 

identified by DFARS Case 2008–D038, 

using any of the following methods: 

Æ Federal eRulemaking Portal: 

http://www.regulations.gov. Follow the 

instructions for submitting comments. 

Æ E-mail: dfars@osd.mil. Include 

DFARS Case 2008–D038 in the subject 

line of the message. 

Æ Fax: 703–602–7887. 

Æ Mail: Defense Acquisition 

Regulations System, Attn: Ms. Amy 

Williams, OUSD (AT&L) DPAP (DARS), 

IMD 3D139, 3062 Defense Pentagon, 

Washington, DC 20301–3062. 

Æ Hand Delivery/Courier: Defense 

Acquisition Regulations System, Crystal 

Square 4, Suite 200A, 241 18th Street, 

Arlington, VA 22202–3402. 

Comments received generally will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Amy Williams, 703–602–0328. 

SUPPLEMENTARY INFORMATION: 

A. Background 

Section 108 of the Military 

Construction and Veterans Affairs 

Appropriations Act, 2009 (Pub. L. 110– 

329, Division E) prohibits the use of 

funds appropriated in Title I of that Act 

for the procurement of steel for any 

military construction project or activity 

for which American steel producers, 

fabricators, or manufacturers have been 

denied the opportunity to compete. This 

interim rule adds DFARS policy and a 

contract clause to implement the 

statutory prohibition. 

This rule was not subject to Office of 

Management and Budget review under 

Executive Order 12866, dated 

September 30, 1993. 

B. Regulatory Flexibility Act 

DoD has prepared an initial regulatory 

flexibility analysis consistent with 5 

U.S.C. 603. A copy of the analysis may 

be obtained from the point of contact 

specified herein. The analysis is 

summarized as follows: 

This interim rule implements Section 

108 of the Military Construction and 

Veterans Affairs Appropriations Act, 

2009. The objective of the rule is to 

ensure that American steel producers, 

fabricators, and manufacturers are given 

the opportunity to compete for contracts 

and subcontracts for the acquisition of 

steel for use in military construction 

projects and activities. Existing Buy 

American Act and Balance of Payments 

Program requirements, implemented in 

FAR Subpart 25.2 and DFARS Subpart 

225.75 respectively, already provide for 

DoD acquisition of domestic 

construction materials, including steel. 

However, this DFARS rule will prohibit 

use of the exceptions to Buy American 

Act/Balance of Program requirements 

otherwise permitted by FAR/DFARS, 

with regard to the acquisition of steel, 

unless American steel producers, 

fabricators, and manufacturers are first 

provided the opportunity to compete. 

The rule is expected to benefit 

American steel producers, fabricators, 

and manufacturers by ensuring they are 

provided an opportunity to compete for 

contracts and subcontracts for the 

acquisition of steel for use in military 

construction projects and activities. 

DoD invites comments from small 

businesses and other interested parties. 

DoD also will consider comments from 

small entities concerning the affected 

DFARS subparts in accordance with 5 

U.S.C. 610. Such comments should be 

submitted separately and should cite 

DFARS Case 2008–D038. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply, because the rule does not 

impose any information collection 

requirements that require the approval 

of the Office of Management and Budget 

under 44 U.S.C. 3501, et seq. 

D. 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 

Section 108 of the Military Construction 

and Veterans Affairs Appropriations 

Act, 2009 (Pub. L. 110–329, Division E). 

Section 108 establishes a prohibition on 

the expenditure of funds for the 

procurement of steel for any military 

construction project or activity, unless 

American steel producers, fabricators, 

and manufacturers have been provided 

an opportunity to compete. Comments 

received in response to this interim rule 

will be considered in the formation of 

the final rule. 

List of Subjects in 48 CFR Parts 225, 

236, and 252 

Government procurement. 

Michele P. Peterson, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR parts 225, 236, and 

252 are amended as follows: 

■ 1. The authority citation for 48 CFR 

parts 225, 236, and 252 continues to 

read as follows: 

Authority: 41 U.S.C. 421 and 48 CFR 

chapter 1. 

PART 225—FOREIGN ACQUISITION 

■ 2. Section 225.7014 is revised to read 

as follows: 

225.7014 Restrictions on military 

construction. 

(a) For restriction on award of military 

construction contracts to be performed 

in the United States outlying areas in 

the Pacific and on Kwajalein Atoll, or in 

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2418 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 

countries bordering the Arabian Gulf, 

see 236.273(a). 

(b) For restriction on acquisition of 

steel for use in military construction 

projects, see 236.274. 

PART 236—CONSTRUCTION AND 

ARCHITECT-ENGINEER CONTRACTS 

■ 3. Section 236.274 is added to read as 

follows: 

236.274 Restriction on acquisition of steel 

for use in military construction projects. 

In accordance with section 108 of the 

Military Construction and Veterans 

Affairs Appropriations Act, 2009 (Pub. 

L. 110–329, Division E), do not acquire, 

or allow a contractor to acquire, steel for 

any construction project or activity for 

which American steel producers, 

fabricators, or manufacturers have been 

denied the opportunity to compete for 

such acquisition of steel. 

■ 4. Section 236.570 is amended as 

follows: 

■ a. By redesignating paragraph (d) as 

paragraph (e); and 

■ b. By adding a new paragraph (d) to 

read as follows: 

236.570 Additional provisions and 

clauses. 

* * * * * 

(d) Use the clause at 252.236–7013, 

Requirement for Competition 

Opportunity for American Steel 

Producers, Fabricators, and 

Manufacturers, in solicitations and 

contracts that— 

(1) Use funds appropriated by Title I 

of the Military Construction and 

Veterans Affairs Appropriations Act, 

2009 (Pub. L. 110–329, Division E); and 

(2) May require the acquisition of 

steel as a construction material. 

* * * * * 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 5. Section 252.236–7013 is added to 

read as follows: 

252.236–7013 Requirement for 

competition opportunity for american steel 

producers, fabricators, and manufacturers. 

As prescribed in 236.570(d), use the 

following clause: 

REQUIREMENT FOR COMPETITION 

OPPORTUNITY FOR AMERICAN 

STEEL PRODUCERS, FABRICATORS, 

AND MANUFACTURERS (JAN 2009) 

(a) Definition. Construction material, as 

used in this clause, means an article, 

material, or supply brought to the 

construction site by the Contractor or a 

subcontractor for incorporation into the 

building or work. 

(b) The Contractor shall provide American 

steel producers, fabricators, and 

manufacturers the opportunity to compete 

when acquiring steel as a construction 

material (e.g., steel beams, rods, cables, 

plates). 

(c) The Contractor shall insert the 

substance of this clause, including this 

paragraph (c), in any subcontract that 

involves the acquisition of steel as a 

construction material. 

(End of clause) 

■ 6. Section 252.244–7000 is amended 

as follows: 

■ a. By revising the clause date; 

■ b. By redesignating paragraphs (b) 

through (d) as paragraphs (c) through (e) 

respectively; and 

■ c. By adding a new paragraph (b) to 

read as follows: 

252.244–7000 Subcontracts for 

commercial items and commercial 

components (DOD contracts). 

* * * * * 

SUBCONTRACTS FOR COMMERCIAL 

ITEMS AND COMMERCIAL 

COMPONENTS (DOD CONTRACTS) 

(JAN 2009) 

* * * * * 

(b) 252.236–7013 Requirement for 

Competition Opportunity for American Steel 

Producers, Fabricators, and Manufacturers 

(Pub. L. 110–329, Division E, Section 108). 

* * * * * 

[FR Doc. E9–677 Filed 1–14–09; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 225 and 252 

RIN 0750–AF82 

Defense Federal Acquisition 

Regulation Supplement; DoD Law of 

War Program (DFARS Case 2006– 

D035) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD has issued a final rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to address requirements for 

DoD contractors to institute effective 

programs to prevent violations of the 

law of war by contractor personnel 

authorized to accompany U.S. Armed 

Forces deployed outside the United 

States. 

DATES: Effective Date: January 15, 2009. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Angie Sawyer, Defense Acquisition 

Regulations System, OUSD (AT&L) 

DPAP (DARS), IMD 3D139, 3062 

Defense Pentagon, Washington, DC 

20301–3062. Telephone 703–602–8384; 

facsimile 703–602–7887. Please cite 

DFARS Case 2006–D035. 

SUPPLEMENTARY INFORMATION: 

A. Background 

This final rule amends the clause at 

DFARS 252.225–7040, Contractor 

Personnel Authorized To Accompany 

U.S. Armed Forces Deployed Outside 

the United States, to address 

requirements for DoD contractors to 

institute effective programs to prevent 

law of war violations by contractor 

personnel. The rule requires that 

deploying contractor personnel receive 

appropriate law of war training, and that 

contractor personnel report any 

violations of the law of war to the 

appropriate authorities. The DFARS rule 

is consistent with the policy in DoD 

Directive 2311.01E, DoD Law of War 

Program, dated May 9, 2006. 

DoD published a proposed rule at 73 

FR 1853 on January 10, 2008. Four 

sources submitted comments on the 

proposed rule. A discussion of the 

comments is provided below. 

1. Comment: The limitation on the 

use of Web-based basic law of war 

training is overly restrictive (i.e., must 

be approved by the contracting officer). 

The training should be available at any 

time for completion via a Web-based 

source to prevent delays in meeting 

training requirements. 

DoD Response: Deployed contractor 

personnel must process through a 

deployment center, in accordance with 

paragraph (f) of the clause at DFARS 

252.225–7040. DoD has provided 

training materials to all the predeployment training centers as the 

primary method of meeting basic 

training requirements. Web-based 

training is intended to substitute for live 

pre-deployment training only when 

determined to be appropriate by the 

contracting officer. 

2. Comment: To ensure the 

availability of advanced training when 

needed, advanced training should be 

handled as an in-processing matter and 

should be provided at an in-theater/incountry central processing center for 

newly arriving contractor personnel. 

DoD Response: Advanced training 

could be provided at in-processing, as 

long as the Judge Advocates or other 

Government counsel are involved. The 

DFARS rule has been amended to 

provide additional flexibility in meeting 

advanced law of war training 

requirements. However, government 

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