[Federal Register Volume 62, Number 1 (Thursday, January 2, 1997)]
[Rules and Regulations]
[Pages 261-262]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-33210]
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DEPARTMENT OF DEFENSE
48 CFR Parts 5, 14, 15, 17, 25, 27, and 52
[FAC 90-45; FAR Case 93-310; Item VI]
RIN 9000-AF60
Federal Acquisition Regulation; Implementation of the North
American Free Trade Agreement Implementation Act
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule adopted as final with changes.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule
implementing the North American Free Trade Agreement (NAFTA)
Implementation Act related to applications of the Buy American Act
provisions to acquisition of certain Mexican and Canadian products.
This regulatory action was not subject to Office of Management and
Budget review under Executive Order 12866, dated September 30, 1993,
and is not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: January 1, 1997.
FOR FURTHER INFORMATION CONTACT: Mr. Paul L. Linfield at (202) 501-1757
in reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405, (202) 501-
4755. Please cite FAC 90-45, FAR case 93-310.
SUPPLEMENTARY INFORMATION:
A. Background
An interim rule was published in the Federal Register on January 5,
1994 (59 FR 544, FAC 90-19), FAR case 93-310, to implement NAFTA. Based
on the analysis of public comments, a revised interim rule was
published in the Federal Register on June 20, 1996 (61 FR 31646) (FAC
90-39). One late public comment was received and considered, but was
not incorporated in the final rule. This final rule does contain
revisions resulting from public comments received on FAR Case 96-312
published as Item II in this FAC. Upon consideration of those public
comments, certifications eliminated under the interim rule published at
61 FR 31646 are being retained. The Government believes if the
certifications were eliminated, offerors would be required to submit
more detailed information regarding the origins of offered products.
Without this information, enforcing a national policy grounded in vital
economic and security interests would be extremely difficult. To
satisfy this national policy interest, the self-policing discipline of
a certification was determined to be the less burdensome alternative.
B. Regulatory Flexibility Act
This final rule is expected 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
waives the Buy American Act for certain Mexican and Canadian products.
A Final Regulatory Flexibility Analysis (FRFA) has been prepared. A
copy of the FRFA may be obtained from the FAR Secretariat. The FRFA is
summarized as follows: This final rule generally applies to all
businesses, large and small, that contract with Federal agencies other
than the Department of Defense for supply contracts with an estimated
value above $25,000. This final rule also applies to Federal
construction contracts, including those awarded by the Department of
Defense, with an acquisition value of $6,500,000 or more. Although U.S.
businesses may face increased competition from Canadian or Mexican
firms, they may also find an increased market for their materials in
Canada and Mexico.
C. Paperwork Reduction Act
The Paperwork Reduction Act applies because the provision at FAR
52.225-20 requires offerors to list the line item number and the
country of origin for any end product other than a domestic end
product. Accordingly, a request for clearance of the information
collection requirement was submitted to the Office of Management and
Budget under 44 U.S.C. 3501, et seq. and has been approved under OMB
Control Number 9000-0130.
List of Subjects in 48 CFR Parts 5, 14, 15, 17, 25, 27, and 52
Government procurement.
Dated: December 24, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Interim Rule Adopted as Final With Changes
Accordingly, the interim rule amending 48 CFR Parts 5, 14, 15, 17,
25, 27, and 52, which was published at 59 FR 544 on January 5, 1994,
and amended by the interim rule published at 61 FR 31646 on June 20,
1996, is adopted as final with changes as set forth below:
1. The authority citation for 48 CFR Parts 5, 14, 15, 17, 25, 27,
and 52 continues to read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 25--FOREIGN ACQUISITION
25.408 [Amended]
2. Section 25.408 is amended in paragraph (a)(3) by removing the
word ``Provision'' in the title of the provision and inserting
``Certificate''.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
3. Section 52.212-3 is amended by revising the date of the
provision and paragraphs (g)(1)(i), (g)(1)(iii), and (g)(2) to read as
follows:
52.212-3 Offeror Representations and Certifications--Commercial Items.
* * * * *
OFFEROR REPRESENTATIONS AND CERTIFICATIONS--COMMERCIAL ITEMS (JAN 1997)
* * * * *
(g)(1) * * *
(i) The offeror certifies that each end product being offered,
except those listed in paragraph (g)(1)(ii) of this provision, is a
domestic end product (as defined in the clause entitled ``Buy
American Act--North American Free Trade Agreement
[[Page 262]]
Implementation Act--Balance of Payments Program,'' and that
components of unknown origin have been considered to have been
mined, produced, or manufactured outside the United States.
* * * * *
(iii) Offers will be evaluated by giving certain preferences to
domestic end products or NAFTA country end products over other end
products. In order to obtain these preferences in the evaluation of
each excluded end product listed in paragraph (g)(1)(ii) of this
provision, offerors must identify and certify below those excluded
end products that are NAFTA country end products. Products that are
not identified and certified below will not be deemed NAFTA country
end products. The offeror certifies that the following supplies
qualify as ``NAFTA country end products'' as that term is defined in
the clause entitled ``Buy American Act--North American Free Trade
Agreement Implementation Act--Balance of Payments Program'':
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(Insert line item numbers)
* * * * *
(2) Alternate I. If Alternate I to the clause at 52.225-21 is
included in this solicitation, substitute the following paragraph
(g)(1)(iii) for paragraph (g)(1)(iii) of this provision:
(g)(1)(iii) Offers will be evaluated by giving certain
preferences to domestic end products or Canadian end products over
other end products. In order to obtain these preferences in the
evaluation of each excluded end product listed in paragraph (b) of
this provision, offerors must identify and certify below those
excluded end products that are Canadian end products. Products that
are not identified and certified below will not be deemed Canadian
end products.
The offeror certifies that the following supplies qualify as
``Canadian end products'' as that term is defined in the clause
entitled ``Buy American Act--North American Free Trade Agreement
Implementation Act--Balance of Payments Program'':
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(Insert line item numbers)
* * * * *
(End of provision)
4. Section 52.225-20 is amended in the section heading and
provision heading by removing the word ``Provision'' and inserting
``Certificate''; revising the date of the provision and its Alternate I
to read ``(JAN 1997)''; revising paragraph (a) of the provision;
revising the first paragraph of paragraph (c) of the provision and of
Alternate I; and by inserting the words ``offeror certifies that the''
after the first word ``The'' in the first sentence of the second
paragraph of paragraph (c) of the provision and of Alternate I to read
as follows:
52.225-20 Buy American Act--North American Free Trade Agreement
Implementation Act--Balance of Payments Program Certificate.
* * * * *
BUY AMERICAN ACT--NORTH AMERICAN FREE TRADE AGREEMENT IMPLEMENTATION
ACT--BALANCE OF PAYMENTS PROGRAM CERTIFICATE
(JAN 1997)
(a) The offeror certifies that each end product being offered,
except those listed in paragraph (b) of this provision, is a
domestic end product (as defined in the clause entitled ``Buy
American Act--North American Free Trade Agreement Implementation
Act--Balance of Payments Program'') and that components of unknown
origin have been considered to have been mined, produced, or
manufactured outside the United States.
* * * * *
(c) Offers will be evaluated by giving certain preferences to
domestic end products or NAFTA country end products over other end
products. In order to obtain these preferences in the evaluation of
each excluded end product listed in paragraph (b) of this provision,
offerors must identify and certify below those excluded end products
that are NAFTA country end products. Products that are not
identified and certified below will not be deemed NAFTA country end
products.
* * * * *
Alternate I (JAN 1997). * * *
(c) Offers will be evaluated by giving certain preferences to
domestic end products or Canadian end products over other end
products. In order to obtain these preferences in the evaluation of
each excluded end product listed in paragraph (b) of this provision,
offerors must identify and certify below those excluded end products
that are Canadian end products. Products that are not identified
below will not be deemed Canadian end products.
* * * * *
52.225-21 [Amended]
5. Section 52.225-21 is amended by revising the date of the clause
to read ``(JAN 1997)'' and by removing the word ``specifying'' in the
fourth sentence of paragraph (c) of the clause and of Alternate I and
inserting ``certifying''.
[FR Doc. 96-33210 Filed 12-31-96; 8:45 am]
BILLING CODE 6820-EP-P
