Rule2023-15154
Defense Federal Acquisition Regulation Supplement: Restriction on Acquisition of Personal Protective Equipment and Certain Items From Non-Allied Foreign Nations (DFARS Case 2022-D009)
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 20, 2023
Effective
July 20, 2023
Issuing agencies
Defense DepartmentDefense Acquisition Regulations System
Abstract
DoD is adopting as final, with changes, an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act for Fiscal Year 2022 that restricts the acquisition of personal protective equipment and certain other items from the Democratic People's Republic of North Korea, the People's Republic of China, the Russian Federation, and the Islamic Republic of Iran.
Full Text
<html>
<head>
<title>Federal Register, Volume 88 Issue 138 (Thursday, July 20, 2023)</title>
</head>
<body><pre>
[Federal Register Volume 88, Number 138 (Thursday, July 20, 2023)]
[Rules and Regulations]
[Pages 46904-46905]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-15154]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 212, 225, and 252
[Docket DARS-2023-0003]
RIN 0750-AL60
Defense Federal Acquisition Regulation Supplement: Restriction on
Acquisition of Personal Protective Equipment and Certain Items From
Non-Allied Foreign Nations (DFARS Case 2022-D009)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD is adopting as final, with changes, an interim rule
amending the Defense Federal Acquisition Regulation Supplement (DFARS)
to implement a section of the National Defense Authorization Act for
Fiscal Year 2022 that restricts the acquisition of personal protective
equipment and certain other items from the Democratic People's Republic
of North Korea, the People's Republic of China, the Russian Federation,
and the Islamic Republic of Iran.
DATES: Effective July 20, 2023.
FOR FURTHER INFORMATION CONTACT: Ms. Kimberly Bass, telephone 703-717-
3446.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published an interim rule in the Federal Register at 88 FR 6600
on January 31, 2023, to implement section 802 of the National Defense
Authorization Act (NDAA) for Fiscal Year (FY) 2022 (Pub. L. 117-81) (10
U.S.C. 2533e) and section 881 of the NDAA for FY 2023 (Pub. L. 117-
263). Section 802 adds the restriction to 10 U.S.C. 2533e (transferred
to 10 U.S.C. 4875) that limits the acquisition of covered items
(personal protective equipment and certain other items) from any of the
following covered countries, subject to exceptions: the Democratic
People's Republic of North Korea, the People's Republic of China, the
Russian Federation, and the Islamic Republic of Iran.
There were no public comments submitted in response to the interim
rule. Minor changes are made throughout the rule to remove references
to section 802 of the NDAA for FY 2022. Those references are
unnecessary, because section 802 has
[[Page 46905]]
been codified at 10 U.S.C. 4875, which is referenced in the rule.
II. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT) and for Commercial Products, Including Commercially
Available Off-the-Shelf (COTS) Items, and Commercial Services
The clause at DFARS 252.225-7061, Restriction on the Acquisition of
Personal Protective Equipment and Certain Other Items from Non-Allied
Foreign Nations, is prescribed at DFARS 225.7023-4 for use in
solicitations and contracts with an estimated value above $150,000,
including solicitations and contracts using FAR part 12 procedures for
the acquisition of commercial products, including COTS items, and
commercial services, that are for the acquisition of covered items for
use within the United States. Consistent with the determination that
DoD made with regard to the application of the requirements of section
802 of the NDAA for FY 2022, DFARS clause 252.225-7061 applies to
acquisitions above $150,000 and to contracts for the acquisition of
commercial products, including COTS items, and commercial services.
III. 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, dated September 30, 1993.
IV. 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.
V. Regulatory Flexibility Act
A final regulatory flexibility analysis has been prepared
consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.
and is summarized as follows:
This final rule is necessary to finalize an interim rule that
revised the Defense Federal Acquisition Regulation Supplement (DFARS)
to implement section 802 of the National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2022 (Pub. L. 117-81) (10 U.S.C. 2533e,
transferred to 10 U.S.C. 4875). Section 802 restricts the acquisition
of a covered item, defined as an article or item of personal protective
equipment for use in preventing the spread of disease, such as by
exposure to infected individuals or contamination or infection by
infectious material, or other items for sanitizing and disinfecting,
testing, gauze, and bandages, from The Democratic People's Republic of
North Korea, The People's Republic of China, The Russian Federation, or
The Islamic Republic of Iran. The objective of the rule is to finalize
the implementation of section 802 of the NDAA for FY 2022.
There were no public comments received in response to the initial
regulatory flexibility analysis.
Based on data from the Federal Procurement Data System for FY 2019,
2020, and 2021, DoD awarded an average of 1,677 contracts in the United
States that equaled or exceeded $150,000 in value and were for the
acquisition of medical, dental, or veterinary equipment and supplies
(excluding covered items for use outside the United States). These
contracts were awarded to 192 unique entities, of which 105 were small
entities. It is not known what percentage of these awards might involve
personal protective equipment and other materials and components from
the Democratic People's Republic of North Korea, The People's Republic
of China, The Russian Federation, or the Islamic Republic of Iran.
There are no projected reporting or recordkeeping requirements.
However, there may be minor compliance costs to validate with suppliers
the origin of covered items, materials, and components.
In accordance with section 802, DoD is excepting acquisitions--
<bullet> Equal to or less than $150,000;
<bullet> For covered items for use outside the United States; and
<bullet> If a covered item of satisfactory quality and quantity is
not available in the required form from nations other than The
Democratic People's Republic of North Korea, The People's Republic of
China, The Russian Federation, or the Islamic Republic of Iran.
DoD was unable to identify any other alternatives that would reduce
burden on small businesses and still meet the objectives of the
statute.
VI. Paperwork Reduction Act
This rule does not contain any information collection requirements
that require the approval of the Office of Management and Budget under
the Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects in 48 CFR Parts 212, 225, and 252
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.
Accordingly, the interim rule amending 48 CFR parts 212, 225, and
252, which was published at 88 FR 6600 on January 31, 2023, is adopted
as final with the following changes.
0
1. The authority citation for parts 212 and 225 continues to read as
follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 212--ACQUISITION OF COMMERCIAL PRODUCTS AND COMMERCIAL
SERVICES
212.301 [Amended]
0
2. Amend section 212.301 in paragraph (f)(ix)(MM) by removing ``section
802 of the National Defense Authorization Act for Fiscal Year 2022
(Pub. L. 117-81) (10 U.S.C. 4875)'' and adding ``10 U.S.C. 4875'' in
its place.
PART 225--FOREIGN ACQUISITION
0
3. Revise section 225.7023-2 to read as follows:
225.7023-2 Restriction.
Except as provided in 225.7023-3, do not acquire a covered item
from a covered country in accordance with 10 U.S.C. 4875.
[FR Doc. 2023-15154 Filed 7-19-23; 8:45 am]
BILLING CODE 5001-06-P
</pre></body>
</html>Indexed from Federal Register on July 20, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.