[Federal Register Volume 75, Number 188 (Wednesday, September 29, 2010)]
[Rules and Regulations]
[Pages 60266-60268]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-24206]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 25 and 52

[FAC 2005-46; FAR Case 2009-039; Item VII; Docket 2010-0104, Sequence 
1]
RIN 9000-AL62


Federal Acquisition Regulation; Buy American Exemption for 
Commercial Information Technology--Construction Material

AGENCIES: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Interim rule with request for comments.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) are issuing an interim rule 
amending the Federal Acquisition Regulation (FAR) to implement section 
615 of Division C, Title VI, of the Consolidated Appropriations Act, 
2010 (Pub. L. 111-117). Section 615 authorizes exemption from the Buy 
American Act for acquisition of information technology that is a 
commercial item.

DATES: Effective Date: September 29, 2010.
    Comment Date: Interested parties should submit written comments to 
the Regulatory Secretariat on or before November 29, 2010 to be 
considered in the formulation of a final rule.

ADDRESSES: Submit comments identified by FAC 2005-46, FAR Case 2009-
039, by any of the following methods:
    <bullet> Regulations.gov: http://www.regulations.gov. Submit 
comments via the Federal eRulemaking portal by inputting ``FAR Case 
2009-039'' under the heading ``Enter Keyword or ID'' and selecting 
``Search.'' Select the link ``Submit a Comment'' that corresponds with 
``FAR Case 2009-039.'' Follow the instructions provided at the ``Submit 
a Comment'' screen. Please include your name, company name (if any), 
and ``FAR Case 2009-039'' on your attached document.
    <bullet> Fax: 202-501-4067.
    <bullet> Mail: General Services Administration, Regulatory 
Secretariat (MVCB), 1800 F Street, NW., Room 4041, ATTN: Hada Flowers, 
Washington, DC 20405.

[[Page 60267]]

    Instructions: Please submit comments only and cite FAC 2005-46, FAR 
Case 2009-039, in all correspondence related to this case. All comments 
received will be posted without change to http://www.regulations.gov, 
including any personal and/or business confidential information 
provided.

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact 
Ms. Cecelia L. Davis, Procurement Analyst, at (202) 219-0202. For 
information pertaining to status or publication schedules, contact the 
Regulatory Secretariat at (202) 501-4755. Please cite FAC 2005-46, FAR 
Case 2009-039.

SUPPLEMENTARY INFORMATION:

A. Background

    This interim rule amends FAR subparts 25.2 and 52.2 to implement 
section 615 of Division C, Title VI, of the Consolidated Appropriations 
Act, 2010 (Pub. L. 111-117). Section 615 authorizes exemption from the 
Buy American Act for acquisition of information technology that is a 
commercial item.
    This same exemption has appeared every year since Fiscal Year 2004 
(section 535(a) of Division F, Title V, Consolidated Appropriations 
Act, 2004 (Pub. L. 108-199)). The Fiscal Year 2004 exemption was 
implemented through deviations by the individual agencies. 
Subsequently, regulations were published to implement the exemption for 
supplies (71 FR 223, January 3, 2006). The exemption for construction 
material was not implemented until publication of this interim rule.
    The interim rule is based on the probability that the exemption of 
commercial information technology is likely to continue. If the 
exception does not appear in a future appropriations act, a prompt 
change to the FAR will be made to limit applicability of the exemption 
to the fiscal years to which it applies.
    ``Information technology'' and ``Commercial item'' are already 
defined in FAR part 2.
    This is a significant regulatory action and, therefore, was subject 
to review under Section 6(b) of Executive Order 12866, Regulatory 
Planning and Review, dated September 30, 1993. This rule is not a major 
rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

    The Councils do 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., 
because the rule simplifies the treatment of construction material that 
is also a commercial information technology item, which constitutes a 
small percentage of the overall construction material in a project. 
This interim rule does not affect small business set-asides to the 
prime contractor or the small business subcontracting goals. 
Construction contracts that exceed $7,804,000 and are subject to trade 
agreements already exempt designated country construction material from 
the Buy American Act. Therefore, an Initial Regulatory Flexibility 
Analysis has not been performed. The Councils invite comments from 
small business concerns and other interested parties on the expected 
impact of this rule on small entities.
    The Councils will also consider comments from small entities 
concerning the existing regulations in the FAR subparts 25 and 52 
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 (FAC 2005-46, FAR Case 2009-039) in all correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does apply because the changes to the 
FAR will slightly reduce the information collection requirements 
currently approved by the Office of Management and Budget (OMB Control 
number 9000-0141, entitled Buy America Act--Construction--FAR Sections 
Affected: Subpart 25.2; 52.225-9; and 52.225-11) but we estimate that 
the impact will be negligible.

D. Determination To Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Defense (DoD), the Administrator of General Services (GSA), and the 
Administrator of the National Aeronautics and Space Administration 
(NASA) that urgent and compelling reasons exist to promulgate this 
interim rule without prior opportunity for public comment. This action 
is necessary to implement the changes resulting from the enactment of 
section 615 of Division C, Title VI, of the Consolidated Appropriations 
Act, 2010 (Pub. L. 111-117), effective December 16, 2009. However, 
pursuant to 41 U.S.C. 418b and FAR 1.501-3(b), the Councils will 
consider public comments received in response to this interim rule in 
the formation of the final rule.

List of Subjects in 48 CFR Parts 25 and 52

    Government procurement.

    Dated: September 21, 2010.
Edward Loeb,
Director, Acquisition Policy Division.

0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 25 and 52 as set forth 
below:
0
1. The authority citation for 48 CFR parts 25 and 52 continues to read 
as follows:

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

PART 25--FOREIGN ACQUISITION

0
2. Amend section 25.202 by revising the introductory text of paragraph 
(a), and by adding paragraph (a)(4) to read as follows:


25.202  Exceptions.

    (a) When one of the following exceptions applies, the contracting 
officer may allow the contractor to acquire foreign construction 
materials without regard to the restrictions of the Buy American Act:
* * * * *
    (4) Information technology that is a commercial item. The 
restriction on purchasing foreign construction material does not apply 
to the acquisition of information technology that is a commercial item, 
when using Fiscal Year 2004 or subsequent fiscal year funds (Section 
535(a) of Division F, Title V, Consolidated Appropriations Act, 2004, 
and similar sections in subsequent appropriations acts).
* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
3. Amend section 52.225-9 by revising the date of the clause and 
paragraph (b)(2) to read as follows:


52.225-9  Buy American--Construction Materials.

* * * * *

BUY AMERICAN--CONSTRUCTION MATERIALS (SEP 2010)

* * * * *
    (b) * * *
    (2) This requirement does not apply to information technology 
that is a commercial item or to the construction materials or 
components listed by the Government as follows:
* * * * *

0
4. Amend section 52.225-11 by revising the date of the clause and 
paragraph (b)(3) to read as follows:


52.225-11  Buy American Act--Construction Materials under Trade 
Agreements.

* * * * *

[[Page 60268]]

BUY AMERICAN ACT--CONSTRUCTION MATERIALS UNDER TRADE AGREEMENTS (SEP 
2010)

* * * * *
    (b) * * *
    (3) The requirement in paragraph (b)(2) of this clause does not 
apply to information technology that is a commercial item or to the 
construction materials or components listed by the Government as 
follows:

[Contracting Officer to list applicable excepted materials or 
indicate ``none'']
* * * * *
[FR Doc. 2010-24206 Filed 9-28-10; 8:45 am]
BILLING CODE 6820-EP-P