Federal Register / Vol. 72, No. 159 / Friday, August 17, 2007 / Rules and Regulations 46345 

18.204 Resources. 

* * * * * 

(b) OFPP Guidelines. The Office of 

Federal Procurement Policy (OFPP) 

‘‘Emergency Acquisitions Guide’’ is 

available at http://www.whitehouse.gov/ 

omb/procurement/guides/ 

emergencylacquisitionslguide.pdf. 

[FR Doc. 07–3797 Filed 8–16–07; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 19, 52, and 53 

[FAC 2005–19; FAR Case 2004–017; Item 

VII; Docket 2007–001; Sequence 6] 

RIN 9000–AK18 

Federal Acquisition Regulation; FAR 

Case 2004–017, Small Business Credit 

for Alaska Native Corporations and 

Indian Tribes 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Final rule. 

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council 

(Councils) have agreed on a final rule 

amending the Federal Acquisition 

Regulation (FAR) to implement section 

702 of the Emergency Supplemental 

Act, 2002, as amended by section 3003 

of the 2002 Supplemental 

Appropriations Act for Further 

Recovery From and Response to 

Terrorist Attacks on the United States. 

The law permits subcontracts awarded 

to Alaska Native Corporations (ANCs) 

and Indian tribes to be counted towards 

a contractor’s goals for subcontracting 

with small business (SB) and small 

disadvantaged business (SDB) concerns. 

DATES: Effective Date: September 17, 

2007. 

FOR FURTHER INFORMATION CONTACT: 

Contact Ms. Rhonda Cundiff, 

Procurement Analyst, at (202) 501–

0044, for clarification of content. For 

information pertaining to status or 

publication schedules, contact the FAR 

Secretariat at (202) 501–4755. Please 

cite FAC 2005–19, FAR case 2004–017. 

SUPPLEMENTARY INFORMATION: 

A. Background 

Section 702 of the Emergency 

Supplemental Act, 2002 (Public Law 

107–117), as amended by section 3003 

of the 2002 Supplemental 

Appropriations Act for Further 

Recovery From and Response to 

Terrorist Attacks on the United States 

(Public Law 107–206)(43 U.S.C. 1626), 

provides that subcontracts awarded to 

ANCs that are considered a minority 

and economically disadvantaged 

concern under the criteria at 43 U.S.C. 

1626(e)(1), and any of their direct and 

indirect subsidiary corporations, joint 

ventures, and partnerships that meet the 

requirements of 43 U.S.C. 1626(e)(2), 

shall be counted towards the 

satisfaction of a contractor’s goal for 

subcontracting with SB and SDB 

concerns. The law also provides that 

subcontracts awarded to Indian tribes 

that are recognized by the Bureau of 

Indian Affairs in accordance with 25 

U.S.C. 1452(c), and Indian-owned 

economic enterprises that meet the 

requirements of 25 U.S.C. 1452(e), may 

be counted towards the satisfaction of a 

contractor’s goal for subcontracting with 

SB and SDB concerns. Such credit is 

taken even where the ANC or Indian 

tribe may be ‘‘other than small’’ under 

the Small Business Administration 

(SBA) regulations. 

In addition, section 3003 provides 

that where lower-tier subcontracts exist, 

the ANC or Indian tribe shall designate 

the appropriate contractor or contractors 

to receive credit towards their SB and 

SDB subcontracting goals. Accordingly, 

the rule requires that, where one or 

more subcontractors are in the 

subcontract tier between the prime 

contractor and the ANC or Indian tribe, 

the ANC or Indian tribe shall designate 

the appropriate contractor(s) to count 

the subcontract towards its SB and SDB 

subcontracting goals. In most cases, the 

appropriate contractor is the contractor 

that awarded the subcontract to the 

ANC or Indian tribe. To help avoid 

possible double counting, the rule 

requires the ANC or Indian tribe to 

provide a copy of its written designation 

to the contracting officer, the prime 

contractor, and any subcontractors 

between the prime contractor and ANC 

or Indian tribe within 30 days of date of 

award to the ANC or Indian tribe. If the 

contracting officer does not receive a 

copy of the ANC or Indian tribe’s 

written designation within 30 days of 

the subcontract award, the contractor 

that awarded the subcontract to the 

ANC or Indian tribe will be considered 

the designated contractor. 

The law does not require the ANC or 

Indian tribe to be eligible for SDB or 8(a) 

certification. Similarly, the law does not 

provide for contractors to count 

subcontracts awarded to such an entity 

toward the evaluation of the extent of 

the participation of SDB concerns in the 

performance of certain North American 

Industry Classification System (NAICS) 

Industry codes unless the entity is 

certified as an SDB by SBA (FAR 

Subpart 19.12). 

The Councils initially interpreted 

section 702 of Public Law 107–117, as 

amended by section 3003 of Public Law 

107–206, to allow Indian tribes to be 

counted towards a contractor’s goal for 

subcontracting with SB concerns but not 

SDB concerns. Upon further 

consideration, the Councils believe their 

initial interpretation was incorrect. 

Nothing in the plain language of the 

statute or the legislative history 

indicates that Congress intended to treat 

Indian tribes differently than ANCs. In 

addition, the Councils believe 

interpreting the statute to treat Indian 

tribes differently contradicts the intent 

of other laws (e.g., Small Business Act 

and Technical Corrections Act of 1994 

(Public Law 103–263)) and longstanding 

Government policy that attempts to 

eliminate distinctions between the 

various Indian tribes, including ANCs 

and Indian-owned economic 

enterprises. Therefore, the rule allows 

Indian tribes to also be counted as SDBs. 

In addition, the Councils initially 

interpreted the statute to allow certain 

entities owned and controlled by ANCs 

to also be counted towards a 

contractor’s goal for subcontracting with 

SB and SDB concerns but did not 

believe the statute authorized entities 

owned and controlled by Indian tribes 

to be counted towards a contractor’s 

goal for subcontracting with SB and 

SDB concerns. Upon further 

consideration, the Councils believe their 

initial interpretation was also incorrect. 

Section 16 of the Indian Reorganization 

Act of 1934 (25 U.S.C. 476), as 

amended, prohibits departments or 

agencies from promulgating any 

regulation or making any decision or 

determination that classifies, enhances, 

or diminishes the privileges and 

immunities available to an Indian tribe 

relative to other federally recognized 

tribes. Excluding entities owned and 

controlled by Indian tribes from the 

treatment afforded by section 702 of 

Public Law 107–117, as amended by 

section 3003 of Public Law 107–206 (43 

U.S.C. 1626) to other federally 

recognized tribes diminishes the 

privileges available to entities owned 

and controlled by Indian tribes and 

enhances the privileges available to 

entities owned and controlled by ANCs. 

Therefore, the rule provides the same 


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treatment for entities owned and 

controlled by Indian tribes. 

DoD, GSA, and NASA published a 

proposed rule in the Federal Register at 

70 FR 32553, June 3, 2005. Twenty-eight 

respondents submitted comments on the 

proposed rule which are discussed 

below. 

a. Comment: Excluding Indian-owned 

economic enterprises contradicts the 

congressional intent underlying a 

plethora of laws and regulations 

generally applicable to tribes and 

Indian-owned economic enterprises. 

Distinguishing Indian-owned economic 

enterprises from Indian tribes is a 

departure from longstanding 

Government policy which consistently 

recognizes the practical necessity of 

tribes operating Indian-owned economic 

enterprises. Indian tribes only perform 

contracts through their legally distinct 

Indian-owned economic enterprises. 

Excluding these Indian-owned 

economic enterprises provides little 

productive assistance to Indian tribes. 

Response: Section 16 of the Indian 

Reorganization Act of 1934 (25 U.S.C. 

476), as amended, prohibits 

departments or agencies from 

promulgating any regulation or making 

any decision or determination that 

classifies, enhances, or diminishes the 

privileges and immunities available to 

an Indian tribe relative to other federally 

recognized tribes. Excluding Indianowned economic enterprises from the 

treatment afforded by section 702 of 

Public Law 107–117, as amended by 

section 3003 of Public Law 107–206 (43 

U.S.C. 1626) to other federally 

recognized tribes diminishes the 

privileges available to Indian-owned 

economic enterprises and enhances the 

privileges available to ANCs direct and 

indirect subsidiary corporations, joint 

ventures, and partnerships. The rule 

was revised to provide the same 

treatment for Indian-owned economic 

enterprises. 

b. Comment: Allow Indian tribes and 

Indian-owned economic enterprises to 

be counted as SB or SDB like ANCs. 

Congress and the SBA have consistently 

provided ANC, Indian tribes, and 

entities they own and operate with 

comparable standing. Nothing in the 

statute suggests Congress intended to 

provide less help to Indian tribes. 

Response: Nothing in the plain 

language of the statute or the legislative 

history indicates that Congress intended 

to treat Indian tribes differently than 

ANCs. Interpreting the statute to 

provide a different treatment for Indian 

tribes contradicts the intent of 

provisions of other laws (e.g., Small 

Business Act, Technical Corrections Act 

of 1994) and longstanding Government 

policy that attempts to eliminate 

distinctions between the various Indian 

tribes, including ANCs and Indianowned economic enterprises. The rule 

was revised to also allow Indian tribes 

to be counted as SDBs. 

c. Comment: The rule says the 

contractor awarding the subcontract is, 

in most cases, the appropriate contractor 

to count the subcontract towards its SB 

or SDB goals. However, the rule does 

not provide any guidelines or criteria for 

determining when it might be 

appropriate to designate the award to a 

contractor other than the contractor 

awarding the subcontract. Recommend 

the Councils establish guidelines and 

criteria to ensure consistent and 

equitable decision making on the part of 

ANCs and Indian tribes. 

Response: Neither the statute nor the 

legislative history addresses when it 

might be appropriate to designate the 

credit to a contractor other than the 

contractor awarding the subcontract and 

the Councils are unaware of specific 

situations where it would be 

appropriate to do so. However, the 

language of the statute is clear and 

unambiguous on this point by stating 

‘‘where lower tier subcontractors exist, 

the entity shall designate the 

appropriate contractor or contractors to 

receive such credit.’’ The Councils 

invited industry to comment on the 

feasibility of the proposed approach and 

any alternatives for complying with the 

law. No alternatives were identified. In 

accordance with the statute, the final 

rule requires the ANC or Indian Tribe to 

designate the contractor or contractors 

to receive credit for the award. 

d. Comment: Identify the mechanism 

the ANCs and Indian tribes will use to 

communicate the contractor or 

contractors that have been designated to 

receive the small business and/or small 

disadvantaged business credit. Address 

whether the designated contractor or 

contractors are required to retain the 

designation document in their 

procurement records. 

Response: The rule was revised to 

require the ANC or Indian tribe to 

provide copies of the written 

designation(s) to the contracting officer, 

prime contractor, and any 

subcontractors between the prime 

contractor and ANC or Indian tribe 

within 30 days of date of award to the 

ANC or Indian tribe. If the contracting 

officer does not receive a copy of the 

ANC or Indian tribe’s written 

designation within 30 days of the 

subcontract award, the contractor that 

awarded the subcontract to the ANC or 

Indian tribe will be considered the 

designated contractor. 

e. Comment: The instructions on the 

proposed Standard Forms (SF) 294 and 

295 are ambiguous because the forms 

show inclusion of ANCs and Indian 

tribes in the HUBZone category but the 

language in the proposed rule makes no 

reference to this provision. 

Response: SFs 294 and 295 have been 

revised and no longer include ANCs and 

Indian tribes in the HUBZone category. 

f. Comment: The rule allows large 

ANCs and Indian tribes to be included 

in both the SB and Large Business (LB) 

concerns categories on SFs 294 and 295. 

This will distort the contractor’s total 

subcontracting base dollars since ‘‘total’’

is calculated as ‘‘SB’’ plus ‘‘LB.’’ Also, 

the performance percentages for the 

other subcategories of SB (e.g. servicedisabled veteran-owned small business) 

will be negatively impacted because 

these figures are stated as a percentage 

of ‘‘total’’. Recommend that subcontract 

awards to large ANCs and Indian tribes 

be excluded from the LB category. 

Response: The Councils revised SFs 

294 and 295 to address this issue. 

g. Comment: Allow contractors to take 

credit for awards to entities that obtain 

their ANC or federally-recognized tribal 

status in the middle of a Government 

reporting cycle. 

Response: The entity’s status at the 

time of subcontract award is the status 

to be reported in subsequent periods 

consistent with the treatment for 

reporting any other subcontract award. 

h. Comment: In collaboration with the 

Bureau of Indian Affairs, develop a 

single source that identifies ANCs, 

Indian tribes, and Indian-owned 

economic enterprises to help industry 

locate the entities. In the interim, 

modify the Central Contractor 

Registration (CCR) database to capture 

these additional supplier designations. 

Response: The Team believes industry 

can easily locate these entities using 

market research. In addition, the CCR 

database already has the necessary 

categories to capture this data under 

Native American entities. Vendors can 

register as Alaska Native Corporation 

Owned Firms, American Indian Owned, 

Indian Tribe (Federally Recognized), 

Tribally Owned Firms, etc. However, 

only prime contractors are required to 

be registered in the CCR. 

i. Comment: Object to the rule. This 

rule is another step toward eliminating 

the truly small disadvantaged business 

in America. Over the past five years 

special legislation has exempted ANCs 

and tribally-owned businesses, many of 

which are multi-billion dollar 

corporations, from the rules that all 

other small disadvantaged businesses 

must comply with – size standards, 

affiliation rules, sole source limits –


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making it difficult to compete with 

ANCs and tribally-owned 

businesses.This rule will extend the 

pattern of ANC dominance to the 

subcontracting arena. Treating ANCs 

and Indian Tribes as small businesses 

when they exceed the size standards for 

their applicable NAICS codes does a 

grave disservice to other small 

businesses that are required to function 

as large businesses when they exceed 

the size standard. Instead, the 

Government should develop new 

programs that help these entities 

compete with large business. SBA, GSA 

and other Government agencies do not 

monitor and enforce the regulations that 

provide additional benefits to ANCs. As 

a result, the benefits extended to ANCs 

are commonly abused and exaggerated. 

The rule provides additional benefits to 

ANCs that the Government is not 

prepared to monitor or enforce. 

Response: This rule implements 

section 702 of Public Law 107–117, as 

amended by section 3003 of Public Law 

107–206. It permits subcontracts 

awarded to certain ANCs and Indian 

tribes to be counted towards a 

contractor’s SB and SDB goals even 

though those businesses may not be 

small or certified SDBs. We have 

modified SFs 294 and 295 to help 

ensure that subcontract award 

information is reported. 

j. Comment: Restrict the percent of the 

SDB goal that can be satisfied by awards 

to ANCs to prevent a wholesale takeover 

of the SDB subcontracting program by 

ANCs. 

Response: The statute contained no 

such limits. Therefore, the Councils 

have no authority to restrict the percent 

of the SDB goal that can be satisfied by 

awards to ANCs. 

k. Comment: Allowing a contractor, 

other than the contractor awarding the 

subcontract, to receive SB or SDB credit 

for awards by one of its lower-tier 

subcontractors will be a disincentive to 

prime contractor’s outreach efforts. 

Response: The statute requires the 

ANC or Indian tribe to designate the 

appropriate contractor or contractors to 

receive credit towards their 

subcontracting goals. 

l. Comment: The same rule should 

apply to Native Hawaiian Organizations 

(NHOs), Native Hawaiian-owned small 

businesses, Native Hawaiian-owned 8(a) 

small disadvantaged businesses and 

Native Hawaiian certified 8(a) firms. 

Under section 8021 of the 2004 

Appropriations Act, NHOs were 

afforded the same eligibility for certain 

types of non-competitively awarded 

contracts as Alaska Native Corporations 

and Indian tribally-owned 8(a) firms. 

Response: The statute only addressed 

ANC and Indian tribes. Statutory 

authority would be required to expand 

the authority to Hawaiian entities. 

m. Comment: Distinguish the 562 notfor-profit Indian tribes from the 13 forprofit ANCs in the Regulatory 

Flexibility Act statement. The 562 

federally recognized Indian tribes 

formed under the Indian Reorganization 

Act, as amended, are all not-for-profit 

entities organized under the Federal 

Government. An additional 13 regional 

ANC established pursuant to the Alaska 

Native Claims Settlement Act (ANSCA) 

of 1971, as amended, are for-profit 

businesses organized under the State of 

Alaska laws. 

Response: Whether the Indian tribe or 

ANC is a not-for-profit entity or a forprofit business does not affect the 

implementation of section 702 of Public 

Law 107–117. 

n. Comment: Require ANCs to provide 

the Indian tribe(s) within their region 

copies of the Subcontract Report on 

Individual Contracts (SF 294) because 

the tribes have an interest in ANC 

activities within their regions. 

Response: The Indian tribes are not a 

party to the contracts that require 

submission of the SF 294. Therefore, the 

Councils lack the authority to require 

the ANCs to provide copies of the SF 

294 to the Indian tribes. 

This is not a significant regulatory 

action and, therefore, was not subject to 

review under Section 6(b) of Executive 

Order 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

rule is not a major rule under 5 U.S.C. 

804. 

B. Regulatory Flexibility Act 

The Regulatory Flexibility Act, 5 

U.S.C. 601, et seq., applies to this final 

rule. The Councils prepared a Final 

Regulatory Flexibility Analysis (FRFA), 

and it is summarized as follows: 

The changes may 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 law allows other than SB 

Federal contractors to receive SDB and SB 

subcontract credit for subcontracts awarded 

to Indian tribes and ANCs, regardless of 

whether they are a SB or are SDB certified. 

SBs and certified SDBs may be adversely 

impacted, to the extent that there are Indian 

tribes or ANCs that are large businesses and 

may now be more likely to be used as 

subcontractors or suppliers on Federal 

contracts. 

Section 702 of Public Law 107–117, as 

amended by section 3003 of Public Law 107–

206 (43 U.S.C. 1626) provides that 

subcontracts awarded to an ANC that is 

considered a minority and economically 

disadvantaged concern under the criteria at 

43 U.S.C. 1626(e)(1), and any of its direct and 

indirect subsidiary corporations, joint 

ventures, and partnerships that meet the 

requirements of 43 U.S.C. 1626(e)(2), or 

Indian tribes, and any Indian-owned 

economic enterprises meeting the 

requirements of 25 U.S.C. 1452 can be 

counted towards a contractor’s goal for 

subcontracting with SB and SDB concerns. 

Such credit can be taken even where the 

ANC or Indian tribe may be ‘‘other than 

small’’ under the Small Business 

Administration (SBA) regulations or is not 

certified as an SDB pursuant to SBA’s 

regulations. 

According to the Department of Interior, 

there are approximately 550 Indian tribes and 

ANCs. Information was not available on the 

number of these entities that were large 

business, small business or small 

disadvantaged business. One comment 

received on the summary of the IRFA that 

was in the Federal Register Notice for the 

proposed rule was that there are 562 Indian 

tribes, some of which are Alaska Native and 

all of which are non-profit, and 12 ANCs, all 

of which are for profit. No information was 

provided in the comment on the number of 

Indian tribes or ANCs that are small entities. 

The FAR Secretariat has submitted a 

copy of the FRFA to the Chief Counsel 

for Advocacy of the Small Business 

Administration. Interested parties may 

obtain a copy from the FAR Secretariat. 

The Councils will consider comments 

from small entities concerning the 

affected FAR Parts in accordance with 5 

U.S.C. 610. Interested parties must 

submit such comments separately and 

should cite 5 U.S.C. 610, et seq. (FAC 

2005–19, FAR Case 2004–017), in 

correspondence. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act (Public 

Law 104–13) applies because this final 

rule contains information collection 

requirements. Accordingly, the FAR 

Secretariat will forward a request for 

approval of a revision to the information 

collection requirements concerning 

OMB Clearances 9000–0006 (Standard 

Form 294) and 9000–0007 (Standard 

Form 295) to the Office of Management 

and Budget under 44 U.S.C. 3501, et 

seq. Public comments concerning this 

request will be invited through a 

subsequent Federal Register Notice. 

List of Subjects in 48 CFR Parts 19, 52, 

and 53 

Government procurement. 

Dated: July 30, 2007. 

Al Matera, 

Acting Director, Contract Policy Division. 

■ Therefore, DoD, GSA, and NASA 

amend 48 CFR parts 19, 52, and 53 as 

set forth below: 

■ 1. The authority citation for 48 CFR 

parts 19, 52, and 53 continues to read 

as follows: 


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Authority: 40 U.S.C. 121(c); 10 U.S.C. 

chapter 137; and 42 U.S.C. 2473(c). 

PART 19—SMALL BUSINESS 

PROGRAMS 

■ 2. Amend section 19.701 by adding in 

alphabetical order, the definitions 

‘‘Alaska Native Corporation (ANC)’’ and 

‘‘Indian tribe’’ to read as follows: 

19.701 Definitions. 

* * * * * 

Alaska Native Corporation (ANC) 

means any Regional Corporation, 

Village Corporation, Urban Corporation, 

or Group Corporation organized under 

the laws of the State of Alaska in 

accordance with the Alaska Native 

Claims Settlement Act, as amended (43 

U.S.C.A. 1601, et seq.) and which is 

considered a minority and economically 

disadvantaged concern under the 

criteria at 43 U.S.C. 1626(e)(1). This 

definition also includes ANC direct and 

indirect subsidiary corporations, joint 

ventures, and partnerships that meet the 

requirements of 43 U.S.C. 1626(e)(2). 

* * * * * 

Indian tribe means any Indian tribe, 

band, group, pueblo, or community, 

including native villages and native 

groups (including corporations 

organized by Kenai, Juneau, Sitka, and 

Kodiak) as defined in the Alaska Native 

Claims Settlement Act (43 U.S.C.A. 

1601 et seq.), that is recognized by the 

Federal Government as eligible for 

services from the Bureau of Indian 

Affairs in accordance with 25 U.S.C. 

1452(c). This definition also includes 

Indian-owned economic enterprises that 

meet the requirements of 25 U.S.C. 

1452(e). 

* * * * * 

■ 3. Amend section 19.703 in the 

introductory text of paragraph (a) by 

removing the word ‘‘To’’ and adding 

‘‘Except as provided in paragraph (c) of 

this section to’’ in its place; by 

redesignating paragraph (c) as paragraph 

(d); and by adding new paragraph (c) to 

read as follows: 

19.703 Eligibility requirements for 

participating in the program. 

* * * * * 

(c)(1) In accordance with 43 U.S.C. 

1626, the following procedures apply: 

(i) Subcontracts awarded to an ANC 

or Indian tribe shall be counted towards 

the subcontracting goals for small 

business and small disadvantaged 

business (SDB) concerns, regardless of 

the size or Small Business 

Administration certification status of 

the ANC or Indian tribe. 

(ii) Where one or more subcontractors 

are in the subcontract tier between the 

prime contractor and the ANC or Indian 

tribe, the ANC or Indian tribe shall 

designate the appropriate contractor(s) 

to count the subcontract towards its 

small business and small disadvantaged 

business subcontracting goals. 

(A) In most cases, the appropriate 

contractor is the contractor that awarded 

the subcontract to the ANC or Indian 

tribe. 

(B) If the ANC or Indian tribe 

designates more than one contractor to 

count the subcontract toward its goals, 

the ANC or Indian tribe shall designate 

only a portion of the total subcontract 

award to each contractor. The sum of 

the amounts designated to various 

contractors cannot exceed the total 

value of the subcontract. 

(C) The ANC or Indian tribe shall give 

a copy of the written designation to the 

contracting officer, the prime contractor, 

and the subcontractors in between the 

prime contractor and the ANC or Indian 

tribe within 30 days of the date of the 

subcontract award. 

(D) If the contracting officer does not 

receive a copy of the ANC’s or the 

Indian tribe’s written designation within 

30 days of the subcontract award, the 

contractor that awarded the subcontract 

to the ANC or Indian tribe will be 

considered the designated contractor. 

(2) A contractor acting in good faith 

may rely on the written representation 

of an ANC or an Indian tribe as to the 

status of the ANC or Indian tribe unless 

an interested party challenges its status 

or the contracting officer has 

independent reason to question its 

status. In the event of a challenge of a 

representation of an ANC or Indian 

tribe, the interested parties shall follow 

the procedures at 26.103(b) through (e). 

* * * * * 

■ 4. Amend section 19.704 by revising 

paragraphs (a)(1), (a)(2), (a)(3), and (a)(6) 

to read as follows: 

19.704 Subcontracting plan requirements. 

(a) * * * 

(1) Separate percentage goals for using 

small business (including ANCs and 

Indian tribes), veteran-owned small 

business, service-disabled veteranowned small business, HUBZone small 

business, small disadvantaged business 

(including ANCs and Indian tribes) and 

women-owned small business concerns 

as subcontractors; 

(2) A statement of the total dollars 

planned to be subcontracted and a 

statement of the total dollars planned to 

be subcontracted to small business 

(including ANCs and Indian tribes), 

veteran-owned small business, servicedisabled veteran-owned small business, 

HUBZone small business, small 

disadvantaged business (including 

ANCs and Indian tribes) and womenowned small business concerns; 

(3) A description of the principal 

types of supplies and services to be 

subcontracted and an identification of 

types planned for subcontracting to 

small business (including ANCs and 

Indian tribes), veteran-owned small 

business, service-disabled veteranowned small business, HUBZone small 

business, small disadvantaged business 

(including ANCs and Indian tribes), and 

women-owned small business concerns; 

* * * * * 

(6) A statement as to whether or not 

the offeror included indirect costs in 

establishing subcontracting goals, and a 

description of the method used to 

determine the proportionate share of 

indirect costs to be incurred with small 

business (including ANCs and Indian 

tribes), veteran-owned small business, 

service-disabled veteran-owned small 

business, HUBZone small business, 

small disadvantaged business (including 

ANCs and Indian tribes), and womenowned small business concerns; 

* * * * * 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

■ 5. Amend section 52.212–5 by 

revising the clause date and revising 

paragraph (b)(8)(i) to read as follows: 

52.212–5 Contract Terms and Conditions 

Required to Implement Statutes or 

Executive Orders—Commercial Items. 

* * * * * 

CONTRACT TERMS AND CONDITIONS 

REQUIRED TO IMPLEMENT STATUTES OR 

EXECUTIVE ORDERS—COMMERCIAL 

ITEMS (SEP 2007) 

* * * * * 

(b) * * * 

(8)(i) 52.219–9, Small Business 

Subcontracting Plan (SEP 2007) (15 U.S.C. 

637(d)(4).) 

* * * * * 

■ 6. Amend section 52.219–9 by—

■ a. Revising the clause date; 

■ b. Adding in paragraph (b), in 

alphabetical order, the definitions 

‘‘Alaska native Corporation (ANC’’) and 

‘‘Indian tribe’’; and 

■ c. Revising paragraphs (d)(1), (d)(2)(ii) 

and (vi), and (d)(6)(i) and (v) to read as 

follows: 

52.219–9 Small Business Subcontracting 

Plan. 

* * * * * 

SMALL BUSINESS SUBCONTRACTING 

PLAN (SEP 2007) 

(b) * * * 

Alaska Native Corporation (ANC) means 

any Regional Corporation, Village 

Corporation, Urban Corporation, or Group 


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Corporation organized under the laws of the 

State of Alaska in accordance with the Alaska 

Native Claims Settlement Act, as amended 

(43 U.S.C. 1601, et seq.) and which is 

considered a minority and economically 

disadvantaged concern under the criteria at 

43 U.S.C. 1626(e)(1). This definition also 

includes ANC direct and indirect subsidiary 

corporations, joint ventures, and partnerships 

that meet the requirements of 43 U.S.C. 

1626(e)(2). 

* * * * * 

Indian tribe means any Indian tribe, band, 

group, pueblo, or community, including 

native villages and native groups (including 

corporations organized by Kenai, Juneau, 

Sitka, and Kodiak) as defined in the Alaska 

Native Claims Settlement Act (43 U.S.C.A. 

1601 et seq.), that is recognized by the 

Federal Government as eligible for services 

from the Bureau of Indian Affairs in 

accordance with 25 U.S.C. 1452(c). This 

definition also includes Indian-owned 

economic enterprises that meet the 

requirements of 25 U.S.C. 1452(e). 

* * * * * 

(d) * * * 

(1) In accordance with 43 U.S.C. 1626: 

(i) Subcontracts awarded to an ANC or 

Indian tribe shall be counted towards the 

subcontracting goals for small business and 

small disadvantaged business (SDB) 

concerns, regardless of the size or Small 

Business Administration certification status 

of the ANC or Indian tribe. 

(ii) Where one or more subcontractors are 

in the subcontract tier between the prime 

contractor and the ANC or Indian tribe, the 

ANC or Indian tribe shall designate the 

appropriate contractor(s) to count the 

subcontract towards its small business and 

small disadvantaged business subcontracting 

goals. 

(A) In most cases, the appropriate 

Contractor is the Contractor that awarded the 

subcontract to the ANC or Indian tribe. 

(B) If the ANC or Indian tribe designates 

more than one Contractor to count the 

subcontract toward its goals, the ANC or 

Indian tribe shall designate only a portion of 

the total subcontract award to each 

Contractor. The sum of the amounts 

designated to various Contractors cannot 

exceed the total value of the subcontract. 

(C) The ANC or Indian tribe shall give a 

copy of the written designation to the 

Contracting Officer, the prime Contractor, 

and the subcontractors in between the prime 

Contractor and the ANC or Indian tribe 

within 30 days of the date of the subcontract 

award. 

(D) If the Contracting Officer does not 

receive a copy of the ANC’s or the Indian 

tribe’s written designation within 30 days of 

the subcontract award, the Contractor that 

awarded the subcontract to the ANC or 

Indian tribe will be considered the 

designated Contractor. 

(2) * * * 

(ii) Total dollars planned to be 

subcontracted to small business concerns 

(including ANC and Indian tribes); 

* * * * * 

(vi) Total dollars planned to be 

subcontracted to small disadvantaged 

business concerns (including ANCs and 

Indian tribes); and 

* * * * * 

(6) * * * 

(i) Small business concerns (including 

ANC and Indian tribes); 

* * * * * 

(v) Small disadvantaged business concerns 

(including ANC and Indian tribes); and 

* * * * * 

PART 53—FORMS 

53.219 [Amended] 

■ 7. Amend section 53.219 by removing 

from paragraphs (a) and (b) ‘‘SEP 2006’’

and adding (SEP 2007) in its place. 

■ 8. Revise section 53.301–294 to read 

as follows: 

BILLING CODE 6820–EP–S 

53.301–294 Subcontracting Report for 

Individual Contracts. 


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■ 9. Revise section 53.301–295 to read 

as follows: 

53.301–295 Summary Subcontract Report. 


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[FR Doc. 07–3798 Filed 8–16–07; 8:45 am] 

BILLING CODE 6820–EP–C 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 22, 25, and 52 

[FAC 2005–19; FAR Case 2006–028; Item 

VIII; Docket 2007–0001, Sequence 01] 

RIN 9000–AK77 

Federal Acquisition Regulation; FAR 

Case 2006–028, New Designated 

Countries—Bulgaria, Dominican 

Republic, and Romania 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Interim rule with request for 

comments. 

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council 

(Councils) have agreed on an interim 

rule amending the Federal Acquisition 

Regulation (FAR) to implement the 

Dominican Republic—Central 

America—United States Free Trade 

Agreement with respect to the 

Dominican Republic. The rule also adds 

Bulgaria and Romania to the list of 

World Trade Organization Government 

Procurement Agreement countries. 

DATES: Effective Date: August 17, 2007. 

Comment Date: Interested parties 

should submit written comments to the 

FAR Secretariat on or before October 16, 

2007 to be considered in the 

formulation of a final rule. 

ADDRESSES: Submit comments 

identified by FAC 2005–19, FAR case 

2006–028, by any of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Search for any 

document by first selecting the proper 

document types and selecting ‘‘Federal 

Acquisition Regulation’’ as the agency 

of choice. At the ‘‘Keyword’’ prompt, 

type in the FAR case number (for 

example, FAR case 2006–028) and click 

on the ‘‘Submit’’ button. Please include 

your name and company name (if any) 

inside the document. 

You may also search for any 

document by clicking on the ‘‘Advanced 

search/document search’’ tab at the top 

of the screen, selecting from the agency 

field ‘‘Federal Acquisition Regulation’’, 

and typing the FAR case number in the 

keyword field. Select the ‘‘Submit’’

button. 

• Fax: 202–501–4067. 

• Mail: General Services 

Administration, Regulatory Secretariat 

(VIR), 1800 F Street, NW, Room 4035, 

ATTN: Laurieann Duarte, Washington, 

DC 20405. 

Instructions: Please submit comments 

only and cite FAC 2005–19, FAR case 

2006–028, in all correspondence related 

to this case. All comments received will 

be posted without change to http:// 

www.regulations.gov, including any 

personal and/or business confidential 

information provided. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Meredith Murphy, Procurement 

Analyst, at (202) 208–6925 for 

clarification of content. Please cite FAC 

2005–19, FAR case 2006–028. For 

information pertaining to status or 

publication schedules, contact the FAR 

Secretariat at (202) 501–4755. 

SUPPLEMENTARY INFORMATION: 

A. Background 

This rule amends FAR Part 25 and the 

corresponding clauses in Part 52 to 

implement the Dominican Republic—

Central America—United States Free 

Trade Agreement (CAFTA-DR) with 

respect to the Dominican Republic. 

Congress approved this trade agreement 

in the Dominican Republic—Central 

America—United States Free Trade 

Agreement Implementation Act (Public 

Law 109–53). This trade agreement 

waives the applicability of the Buy 

American Act for some foreign supplies 

and construction materials from the 

Dominican Republic and specifies 

procurement procedures designed to 

ensure fairness in the acquisition of 

supplies and services. 

This interim rule adds the Dominican 

Republic to the definition of ‘‘Free 

Trade Agreement country.’’ The rule 

also deletes the Dominican Republic 

from the definition of ‘‘Caribbean Basin 

country’’ because, in accordance with 

Section 201(a)(3) of Pub. L. 109–53, 

when the CAFTA-DR agreement enters 

into force with respect to a country, that 

country is no longer designated as a 

beneficiary country for purposes of the 

Caribbean Basin Economic Recovery 

Act. 

The Councils changed the heading for 

excluded service on line 6 of the table 

at 25.401(b) to read ‘‘Transportation, 

travel, and relocation services. . .’’ as 

being reflective of the wording of the 

majority of the Free Trade Agreements, 

including the CAFTA-DR. 

The Dominican Republic has the same 

thresholds as the other CAFTA-DR 

countries ($64,786 for supply and 

service contracts, $7,407,000 for 

construction contracts). 

This rule also adds Bulgaria and 

Romania to the list of World Trade 

Organization Government Procurement 

Agreement countries in wherever it 

appears, whether as a separate 

definition, part of the definition of 

designated countries, or as part of the 

list of countries exempt from the 

prohibition of acquisition of products 

produced by forced or indentured child 

labor (22.1503, 25.003, 52.222–19, 

52.225–5, and 52.225–11). 

This is not a significant regulatory 

action and, therefore, was not subject to 

review under Section 6(b) of Executive 

Order 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

rule is not a major rule under 5 U.S.C. 

804. 

B. Regulatory Flexibility Act 

The 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. 

Although the rule opens up Government 

procurement to the goods and services 

of Bulgaria, the Dominican Republic, 

and Romania, the Councils do not 

anticipate any significant economic 

impact on U.S. small businesses. The 

Department of Defense only applies the 

trade agreements to the non-defense 

items listed at DFARS 225.401–70, and 

acquisitions that are set aside for small 

businesses are exempt. Therefore, an 

Initial Regulatory Flexibility Analysis 

has not been performed. The Councils 

will consider comments from small 

entities concerning the affected FAR 

Parts 22, 25, and 52 in accordance with 

5 U.S.C. 610. Interested parties must 

submit such comments separately and 

should cite 5 U.S.C 601, et seq. (FAC 

2005–19, FAR case 2006–028), in 

correspondence. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

apply; however, these changes to the 

FAR do not impose additional 

information collection requirements to 

the paperwork burden previously 

approved under OMB Control Numbers 

9000–0025, 9000–0130, 9000–0136, and 

9000–0141 respectively. The interim 

rule affects the certification and 

information collection requirements in 

the provisions at FAR 52.212–3, 52.225–

4, 52.225–6, and 52.225–11. 

D. Determination to Issue an Interim 

Rule 

A determination has been made under 

the authority of the Secretary of Defense 


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