12702 Federal Register / Vol. 62, No. 51 / Monday, March 17, 1997 / Rules and Regulations

exceeds the cost of foreign material by more

than 6 percent, unless the agency head

determines a higher percentage to be

appropriate);

(ii) The application of the restriction of the

Buy American Act to a particular

construction material would be impracticable

or inconsistent with the public interest; or

(iii) The construction material is not mined,

produced, or manufactured in the United

States in sufficient and reasonably available

commercial quantities of a satisfactory

quality.

(5) The Contractor agrees that only

domestic construction materials, NAFTA

country construction materials, or designated

country construction materials will be used

by the Contractor, subcontractors, material

men, and suppliers in the performance of this

contract, except for foreign construction

materials, if any, listed in paragraph (b)(3) of

this clause.

(c) Request for determination. (1)

Contractors requesting to use foreign

construction material under paragraph (b)(4)

of this clause shall provide adequate

information for Government evaluation of the

request for a determination regarding the

inapplicability of the Buy American Act.

Each submission shall include a description

of the foreign and domestic construction

materials, including unit of measure,

quantity, price, time of delivery or

availability, location of the construction

project, name and address of the proposed

contractor, and a detailed justification of the

reason for use of foreign materials cited in

accordance with paragraph (b)(4) of this

clause. A submission based on unreasonable

cost shall include a reasonable survey of the

market and a completed price comparison

table in the format in paragraph (d) of this

clause. The price of construction material

shall include all delivery costs to the

construction site and any applicable duty

(whether or not a duty-free certificate may be

issued).

(2) If the Government determines after

contract award that an exception to the Buy

American Act applies, the contract shall be

modified to allow use of the foreign

construction material, and adequate

consideration shall be negotiated. However,

when the basis for the exception is the

unreasonable price of a domestic

construction material, adequate

consideration shall not be less than the

differential established in paragraph (b)(4)(i)

of this clause.

(3) If the Government does not determine

that an exception to the Buy American Act

applies, the use of that particular foreign

construction material will be a failure to

comply with the Act.

(d) For evaluation of requests under

paragraph (c) of this clause based on

unreasonable cost, the following information

and any applicable supporting data based on

the survey of suppliers shall be included in

the request:

FOREIGN AND DOMESTIC CONSTRUCTION MATERIALS PRICE COMPARISON

Construction material description Unit of

measure Quantity Price(dollars) 1

Item 1:

Foreign construction material ................................................................................................ ........................ ........................ ........................

Domestic construction material ............................................................................................. ........................ ........................ ........................

Item 2:

Foreign construction material ................................................................................................ ........................ ........................ ........................

Domestic construction material ............................................................................................. ........................ ........................ ........................

List name, address, telephone number, and contact for suppliers surveyed. Attach copy of response; if oral, attach summary.

Include other applicable supporting information.

1 Include all delivery costs to the construction site and any applicable duty (whether or not a duty-free entry certificate is issued).

(End of clause)

Alternate I (MAY 1997). As prescribed in

25.207(d)(2), substitute the following

paragraphs (b)(2) and (b)(5) for paragraphs

(b)(2) and (b)(5) of the basic clause:

(b)(2) The North American Free Trade

Agreement (NAFTA) provides that NAFTA

construction materials are exempted from

application of the Buy American Act.

(b)(5) The Contractor agrees that only

domestic construction materials or NAFTA

country construction materials will be used

by the Contractor, subcontractors, material

men, and suppliers in the performance of this

contract, except for other foreign

construction materials, if any, listed in

paragraph (b)(3) of this clause.

52.225–22 [Amended]

8. Section 52.225–22 is amended by

revising the clause date to read ‘‘(MAY

1997)’’; and in the definition of

‘‘Domestic construction material’’ by

removing ‘‘25.202(a)(3)’’ and inserting

‘‘25.202(a)(2)’’.

[FR Doc. 97–6315 Filed 3–14–97; 8:45 am]

BILLING CODE 6820–EP–P

DEPARTMENT OF DEFENSE

GENERAL SERVICES

ADMINISTRATION

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

48 CFR Parts 26 and 52

[FAC 90–46; FAR Case 95–306; Item VII]

RIN 9000–AH02

Federal Acquisition Regulation;

Collection of Historically Black

Colleges and Universities/Minority

Institutions Award Data

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 have

agreed on a final rule amending the

Federal Acquisition Regulation (FAR) to

implement Executive Order 12928,

which requires agencies to provide

periodic reporting on the progress made

in award of contracts to Historically

Black Colleges and Universities and

Minority Institutions. This regulatory

action was not subject to Office of

Management and Budget review under

Executive Order 12866, dated

September 30, 1993. This is not a major

rule under 5 U.S.C. 804.

DATES: Effective May 16, 1997.

FOR FURTHER INFORMATION CONTACT: Ms.

Linda Klein at (202) 501–3775 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 90–46, FAR case 95–

306.

SUPPLEMENTARY INFORMATION:

A. Background

This final rule amends FAR Parts 26

and 52 to implement Executive Order

12928, which states that agencies will

provide periodic reporting on their

progress made in awards to Historically

Black Colleges and Universities and

Minority Institutions. The rule contains

a new FAR subpart and solicitation

provision.

A proposed rule was published in the

Federal Register at 61 FR 31792, June

20, 1996. Five sources submitted

comments in response to the proposed
Federal Register / Vol. 62, No. 51 / Monday, March 17, 1997 / Rules and Regulations 12703

rule. All comments were considered in

the development of the final rule.

B. Regulatory Flexibility Act

The Department of Defense, the

General Services Administration, and

the National Aeronautics and Space

Administration certify that this final

rule will not 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 primarily pertains to Government

reporting requirements and merely

requires offerors to provide certain

identification information when

responding to a solicitation.

C. Paperwork Reduction Act

The Paperwork Reduction Act is

deemed to apply because the final rule

contains a new information collection

requirement. Accordingly, a request for

approval of a new information

collection requirement has been

submitted to the Office of Management

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

seq. Public comments concerning this

request were invited through a Federal

Register notice published on January 16,

1997.

List of Subjects in 48 CFR Parts 26 and

52

Government procurement.

Dated: March 7, 1997.

Edward C. Loeb,

Director, Federal AcquisitionPolicy Division.

Therefore, 48 CFR Parts 26 and 52 are

amended as set forth below:

1. The authority citation for 48 CFR

Parts 26 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 26—OTHER SOCIOECONOMIC

PROGRAMS

2. Subpart 26.3, consisting of sections

26.300 through 26.304, is added to read

as follows:

Subpart 26.3—Historically Black

Colleges and Universities and Minority

Institutions

Sec.

26.300 Scope of subpart.

26.301 Definitions.

26.302 General policy.

26.303 Data collection and reporting

requirements.

26.304 Solicitation provision.

26.300 Scope of subpart.

(a) This subpart implements

Executive Order 12928 of September 16,

1994, which promotes participation of

Historically Black Colleges and

Universities (HBCUs) and Minority

Institutions (MIs) in Federal

procurement.

(b) This subpart does not pertain to

contracts performed entirely outside the

United States, its possessions, Puerto

Rico, and the Trust Territory of the

Pacific Islands.

26.301 Definitions.

As used in this subpart—

Historically Black College or

University means an institution

determined by the Secretary of

Education to meet the requirements of

34 CFR 608.2. For DoD, NASA, and the

Coast Guard, the term also includes any

nonprofit research institution that was

an integral part of such a college or

university before November 14, 1986.

Minority Institution means an

institution of higher education meeting

the requirements of Section 1046(3) of

the Higher Education Act of 1965 (20

U.S.C. 1135d–5(3)) which, for the

purpose of this subpart, includes a

Hispanic-serving institution of higher

education as defined in Section

316(b)(1) of the Act (20 U.S.C.

1059c(b)(1)).

26.302 General policy.

It is the policy of the Government to

promote participation of HBCUs and

MIs in Federal procurement.

26.303 Data collection and reporting

requirements.

Executive Order 12928 requires

periodic reporting to the President on

the progress of departments and

agencies in complying with the laws

and requirements mentioned in the

Executive order.

26.304 Solicitation provision.

The contracting officer shall insert the

provision at 52.226–2, Historically

Black College or University and

Minority Institution Representation, in

solicitations exceeding the micropurchase threshold, for research,

studies, supplies, or services of the type

normally acquired from higher

educational institutions.

PART 52—SOLICITATION PROVISIONS

AND CONTRACT CLAUSES

3. Section 52.226–2 is added to read

as follows:

52.226–2 Historically Black College or

University and Minority Institution

Representation.

As prescribed in 26.304, insert the

following provision:

HISTORICALLY BLACK COLLEGE OR

UNIVERSITY AND MINORITY

INSTITUTION REPRESENTATION (MAY

1997)

(a) Definitions. As used in this provision—

Historically Black College or University

means an institution determined by the

Secretary of Education to meet the

requirements of 34 CFR 608.2. For the

Department of Defense, the National

Aeronautics and Space Administration, and

the Coast Guard, the term also includes any

nonprofit research institution that was an

integral part of such a college or university

before November 14, 1986.

Minority Institution means an institution of

higher education meeting the requirements of

Section 1046(3) of the Higher Education Act

of 1965 (20 U.S.C. 1135d–5(3)) which, for the

purpose of this provision, includes a

Hispanic-serving institution of higher

education as defined in Section 316(b)(1) of

the Act (20 U.S.C. 1059c(b)(1)).

(b) Representation. The offeror represents

that it—

b is b is not a Historically Black College

or University;

b is b is not a Minority Institution.

(End of provision)

[FR Doc. 97–6316 Filed 3–14–97; 8:45 am]

BILLING CODE 6820–EP–P

DEPARTMENT OF DEFENSE

GENERAL SERVICES

ADMINISTRATION

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

48 CFR Part 31

[FAC 90–46; FAR Case 95–021; Item VIII]

RIN 9000–AH04

Federal Acquisition Regulation;

Allowability of Foreign Selling Costs

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 have

agreed on a final rule amending the

Federal Acquisition Regulation (FAR) to

remove the ceiling on allowable foreign

selling costs. This regulatory action was

not subject to Office of Management and

Budget review under Executive Order

12866, dated September 30, 1993. This

is not a major rule under 5 U.S.C. 804.

DATES: Effective May 16, 1997.

FOR FURTHER INFORMATION CONTACT: Mr.

Ralph DeStefano at (202) 501–1758 in

reference to this FAR case. For general

information, contact the FAR

Secretariat, Room 4037, GS Building,

Washington, DC 20405, (202) 501–4755.