2023-23434. Defense Federal Acquisition Regulation Supplement: New Designated Country-North Macedonia (DFARS Case 2024-D001)

AGENCY:

Defense Acquisition Regulations System, Department of Defense (DoD).

ACTION:

Final rule.

SUMMARY:

DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to add North Macedonia as a new designated country under the World Trade Organization Government Procurement Agreement.

DATES:

Effective October 30, 2023.

FOR FURTHER INFORMATION CONTACT:

Ms. Kimberly Bass, 703–717–3446.

SUPPLEMENTARY INFORMATION:

I. Background

On June 7, 2023, the World Trade Organization (WTO) Committee on Government Procurement approved the accession of North Macedonia to the WTO Government Procurement Agreement (GPA). This final rule amends the DFARS to add North Macedonia to the list of World Trade Organization (WTO) Government Procurement Agreement (GPA) countries wherever it appears in the DFARS, as part of the definition of “designated country”.

The Trade Agreements Act (19 U.S.C. 2501 et seq.) provides the authority for the President to waive the Buy American statute and other discriminatory provisions for eligible products from countries that have signed an international trade agreement with the United States (such as the WTO GPA). The President has delegated this authority to the U.S. Trade Representative.

The U.S. Trade Representative has determined that North Macedonia will provide appropriate reciprocal competitive Government procurement opportunities to United States products and services, because North Macedonia is a party to the WTO GPA. The U.S. Trade Representative published a notice in the Federal Register waiving the Buy American statute and other discriminatory provisions for eligible products from North Macedonia at 88 FR 68905 on October 4, 2023. The United States, which also is a party to the GPA, has agreed to waive discriminatory purchasing requirements for eligible products and suppliers of North Macedonia beginning on October 30, 2023, the date on which the WTO GPA will enter into force for North Macedonia.

II. Publication of This Final Rule for Public Comment Is Not Required by Statute

The statute that applies to the publication of the Federal Acquisition Regulation (FAR) is 41 U.S.C. 1707, Publication of Proposed Regulations. Subsection (a)(1) of the statute requires that a procurement policy, regulation, procedure, or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because it only amends the DFARS definition of “designated country” to reflect that North Macedonia is now a party to the WTO GPA, without significant effect beyond the internal operating procedures of the Government.

III. Applicability to Contracts at or Below the Simplified Acquisition Threshold (SAT) and for Commercial Products (Including Commercially Available Off-the-Shelf (COTS) Items), or for Commercial Services

This final rule amends the clauses at DFARS 252.225–7017, Photovoltaic Device; 252.225–7021, Trade Agreements; and 252.225–7045, Balance of Payments Program—Construction Material Under Trade Agreements. However, this final rule does not impose any new requirements on contracts at or below the SAT, for commercial products including COTS items, or for commercial services. This final rule does not change the applicability of the clauses to acquisitions at or below the SAT, to acquisitions of commercial products including COTS items, or to acquisitions of commercial services.

IV. Executive Orders 12866 and 13563

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, as amended.

V. Congressional Review Act

As required by the Congressional Review Act (5 U.S.C. 801–808) before an interim or final rule takes effect, DoD will submit a copy of the interim or final rule with the form, Submission of Federal Rules under the Congressional Review Act, to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. A major rule under the Congressional Review Act cannot take effect until 60 days after it is published in the Federal Register . The Office of Information and Regulatory Affairs has determined that this rule is not a major rule as defined by 5 U.S.C. 804.

VI. Regulatory Flexibility Act

The Regulatory Flexibility Act does not apply to this rule because this final rule does not constitute a significant DFARS revision within the meaning of FAR 1.501–1, and 41 U.S.C. 1707 does not require publication for public comment.

VII. Paperwork Reduction Act

This final rule affects the information collection requirements in the provisions at DFARS 252.225–7018, Photovoltaic Devices-Certificate; and 252.225–7020, Trade Agreements Certificate, currently approved under OMB Control Number 0704–0229, entitled DFARS Part 225, Foreign Acquisition, and associated clauses, in accordance with the Paperwork Reduction Act (44 U.S.C. chapter 35). DFARS provisions 252.225–7018 and 252.225–7020 rely on the definition of “designated country” in DFARS clauses 252.225–7017 and 252.225–7021, which now includes North Macedonia. The impact of this rule, however, is negligible, because the addition of North Macedonia to the definition of “designated country” merely provides another possible source of the items covered by these provisions and clauses.

List of Subjects in 48 CFR Part 252

• Government procurement

Jennifer D. Johnson,

Editor/Publisher, Defense Acquisition Regulations System.

Therefore, 48 CFR part 252 is amended as follows:

PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

1. The authority citation for 48 CFR part 252 continues to read as follows:

Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

252.225–7017

[Amended]

2. Amend section 252.225–7017—

a. By removing the clause date of “(DEC 2022)” and adding “(OCT 2023)” in its place; and

b. In paragraph (a) of the clause, in the definition of “Designated country” in paragraph (1), by adding, in alphabetical order, the country of “North Macedonia”.

252.225–7021

[Amended]

3. Amend section 252.225–7021—

a. In the basic clause—

i. By removing the clause date of “(JAN 2023)” and adding “(OCT 2023)” in its place;

ii. In paragraph (a), in the definition of “Designated country” in paragraph (1), by adding, in alphabetical order, the country of “North Macedonia”;

b. In the Alternate II clause—

i. By removing the clause date of “(JAN 2023)” and adding “(OCT 2023)” in its place; and

ii. In paragraph (a), in the definition of “Designated country” in paragraph (1), by adding, in alphabetical order, the country of “North Macedonia”.

252.225–7045

[Amended]

4. Amend section 252.225–7045—

a. In the basic clause—

i. By removing the clause date of “(JAN 2023)” and adding “(OCT 2023)” in its place;

ii. In paragraph (a), in the definition of “Designated country” in paragraph (1), by adding, in alphabetical order, the country of “North Macedonia”;

b. In the Alternate I clause—

i. By removing the clause date of “(JAN 2023)” and adding “(OCT 2023)” in its place;

ii. In paragraph (a), in the definition of “Designated country” in paragraph (1), by adding, in alphabetical order, the country of “North Macedonia”;

c. In the Alternate II clause—

i. By removing the clause date of “(JAN 2023)” and adding “(OCT 2023)” in its place;

ii. In paragraph (a), in the definition of “Designated country” in paragraph (1), by adding, in alphabetical order, the country of “North Macedonia”; and

d. In the Alternate III clause—

i. By removing the clause date of “(JAN 2023)” and adding “(OCT 2023)” in its place;

ii. In paragraph (a), in the definition of “Designated country” in paragraph (1), by adding, in alphabetical order, the country of “North Macedonia”.