37650 Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations 

B. Regulatory Flexibility Act 

This rule will not have a significant 

cost or administrative impact on 

contractors or offerors, or a significant 

effect beyond the internal operating 

procedures of DoD. Therefore, 

publication for public comment under 

41 U.S.C. 418b is not required. 

However, DoD will consider comments 

from small entities concerning the 

affected DFARS subparts in accordance 

with 5 U.S.C. 610. Such comments 

should cite DFARS Case 2008–D029. 

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. 

List of Subjects in 48 CFR Parts 217 and 

252 

Government procurement. 

Michele P. Peterson, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR parts 217 and 252 

are amended as follows: 

■ 1. The authority citation for 48 CFR 

Parts 217 and 252 continues to read as 

follows: 

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

Chapter 1. 

PART 217—SPECIAL CONTRACTING 

METHODS 

■ 2. Section 217.7404–4 is amended by 

designating the existing text as 

paragraph (a) and adding paragraph (b) 

to read as follows: 

217.7404–4 Limitations on obligations. 

* * * * * 

(b) In determining the appropriate 

amount to obligate, the contracting 

officer shall assess the contractor’s 

proposal for the undefinitized period 

and shall obligate funds only in an 

amount consistent with the contractor’s 

requirements for the undefinitized 

period. 

■ 3. Section 217.7404–6 is revised to 

read as follows: 

217.7404–6 Allowable profit. 

When the final price of a UCA is 

negotiated after a substantial portion of 

the required performance has been 

completed, the head of the contracting 

activity shall ensure the profit allowed 

reflects— 

(a) Any reduced cost risk to the 

contractor for costs incurred during 

contract performance before negotiation 

of the final price; 

(b) The contractor’s reduced cost risk 

for costs incurred during performance of 

the remainder of the contract; and 

(c) The requirements at 215.404–71– 

3(d)(2). The risk assessment shall be 

documented in the contract file. 

217.7405 [Redesignated as 217.7406] 

■ 4. Section 217.7405 is redesignated as 

section 217.7406. 

■ 5. A new section 217.7405 is added to 

read as follows: 

217.7405 Plans and reports. 

(a) To provide for enhanced 

management and oversight of UCAs, 

departments and agencies shall— 

(1) Prepare and maintain a 

Consolidated UCA Management Plan; 

and 

(2) Prepare semi-annual Consolidated 

UCA Management Reports addressing 

each UCA with an estimated value 

exceeding $5 million. 

(b) Consolidated UCA Management 

Reports and Consolidated UCA 

Management Plan updates shall be 

submitted to the Office of the Director, 

Defense Procurement and Acquisition 

Policy, by October 31 and April 30 of 

each year in accordance with the 

procedures at PGI 217.7405. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

252.217–7027 [Amended] 

■ 6. Section 252.217–7027 is amended 

in the introductory text by removing 

‘‘217.7405’’ and adding in its place 

‘‘217.7406’’. 

[FR Doc. E9–17947 Filed 7–28–09; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 225 and 252 

RIN 0750–AG31 

Defense Federal Acquisition 

Regulation Supplement; Trade 

Agreements—Costa Rica and Peru 

(DFARS Case 2008–D046) 

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 the Dominican 

Republic-Central America-United States 

Free Trade Agreement with respect to 

Costa Rica, and the United States-Peru 

Trade Promotion Agreement. The trade 

agreements waive the applicability of 

the Buy American Act for some foreign 

supplies and construction materials and 

specify procurement procedures 

designed to ensure fairness. 

DATES: Effective date: July 29, 2009. 

Comment date: Comments on the 

interim rule should be submitted in 

writing to the address shown below on 

or before September 28, 2009, to be 

considered in the formation of the final 

rule. 

ADDRESSES: You may submit comments, 

identified by DFARS Case 2008–D046, 

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–D046 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 3C132, 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 

This interim rule amends trade 

agreement provisions and clauses in 

DFARS Part 252 to implement the 

Dominican Republic-Central AmericaUnited States Free Trade Agreement 

with respect to Costa Rica, and the 

United States-Peru Trade Promotion 

Agreement. Congress approved these 

trade agreements in the Dominican 

Republic-Central America-United States 

Free Trade Agreement Implementation 

Act (Pub. L. 109–53) and the United 

States-Peru Trade Promotion Agreement 

Implementation Act (Pub. L. 110–138) 

(19 U.S.C. 3805 note). Presidential 

proclamations were published in the 

Federal Register on December 30, 2008, 

with regard to Costa Rica (73 FR 79585) 

and on January 22, 2009, with regard to 

Peru (74 FR 4105). The corresponding 

determinations by the Office of the 

United States Trade Representative were 

published in the Federal Register on 

January 6, 2009 (74 FR 472), and 


sroberts on DSKD5P82C1PROD with RULES
Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations 37651 

January 23, 2009 (74 FR 4264), 

respectively. The trade agreements 

waive the applicability of the Buy 

American Act for DoD acquisition of 

some foreign supplies and construction 

materials from Costa Rica and Peru and 

specify procurement procedures 

designed to ensure fairness. 

In addition, this rule amends DFARS 

225.003 to exclude Oman from the 

definition of ‘‘Free Trade Agreement 

country’’ for purposes of DoD 

acquisitions. Oman was added to the 

Federal Acquisition Regulation 

definition of ‘‘Free Trade Agreement 

country’’ to implement the United 

States-Oman Free Trade Agreement. 

However, the government procurement 

obligations in the United States-Oman 

Free Trade Agreement do not apply to 

DoD. 

For administrative purposes only, the 

corresponding amendments to DFARS 

252.212–7001, to update the dates of 

listed clauses affected by this rule, are 

shown with the amendments to DFARS 

Case 2008–D003 published elsewhere in 

this edition of the Federal Register. 

This rule was subject to Office of 

Management and Budget review under 

Executive Order 12866, dated 

September 30, 1993. 

B. Regulatory Flexibility Act 

DoD does not expect this 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. 

Although the rule opens up DoD 

procurement to the products of Costa 

Rica and Peru, DoD does not believe 

there will be a significant economic 

impact on U.S. small businesses. DoD 

applies the trade agreements to only 

those non-defense items listed at 

DFARS 225.401–70, and acquisitions 

that are set aside for small businesses 

are exempt from application of the trade 

agreements. Therefore, DoD has not 

performed an initial regulatory 

flexibility analysis. 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–D046. 

C. Paperwork Reduction Act 

This interim rule affects the 

certification and information collection 

requirements in the provisions at 

DFARS 252.225–7020 and 252.225– 

7035, currently approved under Office 

of Management and Budget Control 

Number 0704–0229. The impact, 

however, is negligible. 

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 

the Dominican Republic-Central 

America-United States Free Trade 

Agreement with respect to Costa Rica 

and the United States-Peru Trade 

Promotion Agreement, as approved by 

Congress in Public Laws 109–53 and 

110–138. The trade agreement with 

Costa Rica took effect on January 1, 

2009, and the trade agreement with Peru 

took effect on February 1, 2009. 

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 and 

252 

Government procurement. 

Michele P. Peterson, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR parts 225 and 252 

are amended as follows: 

■ 1. The authority citation for 48 CFR 

Parts 225 and 252 continues to read as 

follows: 

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

Chapter 1. 

PART 225—FOREIGN ACQUISITION 

■ 2. Section 225.003 is amended as 

follows: 

■ a. By redesignating paragraphs (7) 

through (12) as paragraphs (8) through 

(13) respectively; and 

■ b. By adding a new paragraph (7) to 

read as follows: 

225.003 Definitions. 

* * * * * 

(7) Free Trade Agreement country 

does not include Oman. 

* * * * * 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 3. Section 252.225–7021 is amended 

as follows: 

■ a. By revising the clause date and 

paragraph (a)(3)(ii); and 

■ b. In paragraph (a)(3)(iv) by removing 

‘‘Costa Rica,’’. The revised text reads as 

follows: 

252.225–7021 Trade Agreements. 

* * * * * 

TRADE AGREEMENTS (JUL 2009) 

(a) * * * 

(3) * * * 

(ii) A Free Trade Agreement country 

(Australia, Bahrain, Canada, Chile, Costa 

Rica, Dominican Republic, El Salvador, 

Guatemala, Honduras, Mexico, Morocco, 

Nicaragua, Peru, or Singapore); 

* * * * * 

■ 4. Section 252.225–7036 is amended 

by revising the clause date and 

paragraph (a)(7) to read as follows: 

252.225–7036 Buy American Act—Free 

Trade Agreements—Balance of Payments 

Program. 

* * * * * 

BUY AMERICAN ACT—FREE TRADE 

AGREEMENTS—BALANCE OF 

PAYMENTS PROGRAM (JUL 2009) 

(a) * * * 

(7) Free Trade Agreement country means 

Australia, Bahrain, Canada, Chile, Costa Rica, 

Dominican Republic, El Salvador, Guatemala, 

Honduras, Mexico, Morocco, Nicaragua, 

Peru, or Singapore; 

* * * * * 

■ 5. Section 252.225–7045 is amended 

as follows: 

■ a. By revising the clause date; 

■ b. In paragraph (a), in the definition of 

‘‘Designated country’’, by revising 

paragraph (2); and 

■ c. In paragraph (a), in the definition of 

‘‘Designated country’’, paragraph (4), by 

removing ‘‘Costa Rica,’’. 

The revised text reads as follows: 

252.225–7045 Balance of Payments 

Program—Construction Material Under 

Trade Agreements. 

* * * * * 

BALANCE OF PAYMENTS 

PROGRAM—CONSTRUCTION 

MATERIAL UNDER TRADE 

AGREEMENTS (JUL 2009) 

(a) * * * 

Designated country means— 

* * * * * 

(2) A Free Trade Agreement country 

(Australia, Bahrain, Canada, Chile, Costa 

Rica, Dominican Republic, El Salvador, 

Guatemala, Honduras, Mexico, Morocco, 

Nicaragua, Peru, or Singapore); 

* * * * * 

[FR Doc. E9–17950 Filed 7–28–09; 8:45 am] 

BILLING CODE 5001–08–P 


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