95-16158. Defense Federal Acquisition Regulation Supplement; Determinations Under the Buy American Act

[Federal Register Volume 60, Number 127 (Monday, July 3, 1995)]
[Rules and Regulations]
[Pages 34470-34471]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-16158]



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DEPARTMENT OF DEFENSE
48 CFR Part 225


Defense Federal Acquisition Regulation Supplement; Determinations 
Under the Buy American Act

AGENCY: Department of Defense (DoD).

ACTION: Interim rule with request for comment.

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SUMMARY: The Director of Defense Procurement has issued an interim rule 
amending the Defense Federal Acquisition Regulation Supplement (DFARS) 
to expand the guidance regarding public interest exceptions to the Buy 
American Act.

DATES: Effective Date: July 3, 1995.
    Comment date: Comments on the interim rule should be submitted in 
writing to the address shown below on or before September 1, 1995, to 
be considered in the formulation of the final rule.

ADDRESSES: Interested parties should submit written comments to: 
Defense Acquisition Regulations Council, Attn: Ms. Amy Williams, 
PDUSD(A&T)DP(DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC 
20301-3062. Telefax number [phone]. Please cite DFARS Case 94-
D313 in all correspondence related to this issue.

FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, [phone].

SUPPLEMENTARY INFORMATION:

A. Background

    This interim DFARS rule implements Section 812 of the Fiscal Year 
1995 Defense Authorization Act (Pub. L. 103-337). Section 812 adds 
several factors to the series of factors at 10 U.S.C. 2533 that DoD 
must consider when determining whether to grant a public interest 
exception to the Buy American Act (41 U.S.C. 10). In addition, this 
rule revises the internal DoD approval requirements for granting such 
exceptions.

B. Regulatory Flexibility Act

    This interim rule is not 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 DFARS 
already permits DoD to grant public interest exceptions to the Buy 
American Act, where the purposes of the Buy American Act are not 
served. This interim rule merely amends the DFARS guidance to reflect a 
recent change to the list of considerations at 10 U.S.C. 2533, and to 
streamline internal DoD approval requirements. An Initial Regulatory 
Flexibility Analysis has therefore not been performed. Comments are 
invited from small businesses and other interested parties. Comments 
from small entities concerning the affected DFARS subparts will also be 
considered in accordance with Section 610 of the Act. Such comments 
must be submitted separately and cite DFARS Case 94-D313 in 
correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because this interim 
rule does not impose any new information collection requirements which 
require the approval of OMB 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 compelling reasons exist to publish this interim rule 
prior to affording the public an opportunity to comment. This action is 
necessary to implement Section 812 of the Fiscal Year 1995 Defense 
Authorization Act (Pub. L. 103-337). Comments received in response to 
the publication of this interim rule will be considered in formulating 
the final rule.

List of Subjects in 48 CFR Part 225

    Government procurement.
Michelle P. Peterson,
Executive Editor, Defense Acquisition Regulations Council.

    Therefore, 48 CFR Part 225 is amended as follows:


    1. The authority citation for 48 CFR part 225 is revised to read as 
follows:

    Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.

PART 225--FOREIGN ACQUISITION

    2. Section 225.102 is amended by revising paragraph (a)(3) to 
read as follows:


225.102  Policy.

    (a)(2) * * *
    (3)(A) Specific public interest exceptions for DoD are in 225.872.
    (B) Normally, use the evaluation procedures in 225.105, but 
consider recommending a public interest exception where the purposes of 
the 

[[Page 34471]]
Buy American Act are not served, or in order to meet a need set forth 
in 10 U.S.C. 2533. For example, a public interest exception may be 
appropriate--
    (1) If accepting the low domestic offer will involve substantial 
foreign expenditures, or accepting the low foreign offer will involve 
substantial domestic expenditures;
    (2) To ensure access to advanced state-of-the-art commercial 
technology; or
    (3) To maintain the same source of supply for spare and replacement 
parts (also see paragraph (b)(iii)(B) of this section)--
    (i) For an end item that qualifies as an American good; or
    (ii) In order not to impair integration of the military and 
commercial industrial base.
    (C) A determination whether to grant a public interest exception 
shall be made after consideration of the factors in 10 U.S.C. 2533--
    (1) At a level above the contracting officer for acquisitions 
valued at less than $100,000;
    (2) By the head of the contracting activity for acquisitions valued 
at $100,000 or more but less than $1,000,000; or
    (3) By the agency head for acquisitions valued at $1,000,000 or 
more.
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[FR Doc. 95-16158 Filed 6-30-95; 8:45 am]
BILLING CODE 5000-04-M