26996 Federal Register / Vol. 63, No. 94 / Friday, May 15, 1998 /Rules and Regulations

28. Section 436.575 is revised to read

as follows:

436.575 Maximum workweek-construction

schedule.

The contracting officer shall insert the

clause at 452.236–75, Maximum

Workweek-Construction Schedule, if the

clause at FAR 52.236–15 is used and the

contractor’s work schedule is restricted

by access to the facility or must be

coordinated with the schedule of

contract administration personnel.

452.211–1—452.211–6 [Redesignated as

452.211–70—452.211–75]

29.–30. Sections 452.211–1 through

452.211–6 are redesignated sections

452.211–70 through 452.211–75,

respectively.

452.232–1 [Redesignated as 452.232–70]

31. Section 452.232–1 is redesignated

as 452.232–70.

Done at Washington, D.C., this 7th day of

May, 1998.

W.R. Ashworth,

Director, Office of Procurement and Property

Management.

[FR Doc. 98–12841 Filed 5–14–98; 8:45 am]

BILLING CODE 3410–XE–P

DEPARTMENT OF AGRICULTURE

Office of Procurement and Property

Management

48 CFR Parts 426 and 452

[AGAR Case 96–01]

RIN 0599–AA00

Agriculture Acquisition Regulation;

Preference for Selected Biobased

Products

AGENCY: Office of Procurement and

Property Management, USDA.

ACTION: Final rule.

SUMMARY: This document amends the

Agriculture Acquisition Regulation

(AGAR) to establish policy and

procedures for set-asides and

preferences for products developed with

assistance provided by the Alternative

Agricultural Research and

Commercialization Corporation

(AARCC). This amendment is needed to

implement the set-asides and

preferences described in section 1665 of

the Food, Agriculture, Conservation and

Trade Act of 1990 (7 U.S.C. 5909).

USDA will use these new policies and

procedures to increase its acquisition of

AARCC supported products.

DATES: This rule is effective July 14,

1998.

FOR FURTHER INFORMATION CONTACT: J.R.

Holcombe, Jr., (202) 720–8484.

SUPPLEMENTARY INFORMATION:

I. Background

II. Analysis of Comments

III. Procedural Requirements

A. Executive Order Nos. 12866 and 12988.

B. Regulatory Flexibility Act.

C. Paperwork Reduction Act.

D. Small Business Regulatory Enforcement

Fairness Act

IV. Electronic Access Addresses

I. Background

The AGAR implements the Federal

Acquisition Regulation (FAR) (48 CFR

Ch. 1) where further implementation is

needed, and supplements the FAR when

coverage is needed for subject matter

not covered by the FAR. This rule

amends the AGAR to establish

acquisition preferences for selected

biobased products; i.e., nonfood,

nonfeed products made from

agricultural and forestry materials and

animal by-products.

The Alternative Agricultural Research

and Commercialization Corporation

(AARCC), a wholly-owned government

corporation of the Department of

Agriculture (USDA), provides financial

assistance to private companies and

other parties to commercialize biobased

products. Section 1665 of the Food,

Agriculture, Conservation, and Trade

Act of 1990 (7 U.S.C. 5909), added by

section 729 of the Federal Agriculture

Improvement and Reform Act of 1996

(Section 1665), authorizes Federal

executive agencies to establish setasides and preferences for biobased

products that have been commercialized

with assistance provided by AARCC.

In a Notice of Proposed Rulemaking

(62 FR 52081, October 6, 1997), USDA

announced that this proposed

amendment to the AGAR was available

for public review and comment during

a 60-day comment period. One

commenter, a trade association,

submitted comments on the proposed

rule to USDA. We considered these

comments and concluded that no

changes to the proposed rule were

required. In this rulemaking document,

USDA is finalizing the proposed

amendment to the AGAR.

We are making the following changes

to the AGAR:

(a) We are adding AGAR part 426,

Other Socioeconomic Programs, with a

subpart 426.70, Preference for Selected

Biobased Products. This subpart

establishes policy and procedures for

preferences and set-asides for products

developed with AARCC assistance.

(b) Provisions 452.226–70, Preferred

Products, 452.226–71, Set-aside for

Mandatory Products, and 452.226–72,

Price Preference for Award, are added to

AGAR part 452.

II. Analysis of Comments

We received one comment in

response to the Notice of Public

Rulemaking. A trade association

commented that it would be appropriate

to include biodiesel fuels and related

biobased products on Preference Lists

for biobased products established in

accordance with AGAR 426.7005. To

the extent that such fuels are products

developed with assistance from AARCC

(AARCC products), they would be

eligible for inclusion on the Preference

List. Biodiesel fuels that are not AARCC

products are outside the scope of the

rule and of Section 1665. Since

establishing preferences for other than

AARCC products is outside the scope of

this rule, we did not make any change

to the rule.

III. Procedural Requirements

A. Executive Order Nos. 12866 and

12988

A work plan was prepared for this

regulation and submitted to the Office of

Management and Budget pursuant to

Executive Order No. 12866. The rule has

been determined to be not significant for

the purposes of Executive Order No.

12866. Therefore, the rule has not been

reviewed by the Office of Management

and Budget. This rule has been

reviewed in accordance with Executive

Order No. 12988, Civil Justice Reform.

The rule meets the applicable standards

in section 3 of Executive Order No.

12988.

B. Regulatory Flexibility Act

This rule was reviewed under the

Regulatory Flexibility Act, 5 U.S.C. 601–

611, which requires preparation of a

regulatory flexibility analysis for any

rule which is likely to have significant

economic impact on a substantial

number of small entities. This final rule

will not have an adverse impact on a

substantial number of small businesses.

In Fiscal Year 1997, USDA contract

purchases from small business concerns

totaled $710 million, not including

commodity purchases. USDA purchases

of AARCC products are unlikely to

exceed $1 million annually, even with

preferences. The anticipated dollar

volume of AARCC product purchases

thus would be less than 0.1% of the

volume of products and services USDA

now purchases from small businesses.

Furthermore, AARCC product purchases

will be made almost entirely from small

businesses.

Our analysis of the impact of AARCC

preferences suggests that the AARCC
Federal Register / Vol. 63, No. 94 / Friday, May 15, 1998 /Rules and Regulations 26997

preference program will benefit small

business concerns. While Section 1665

does not require that all AARCC

products be manufactured by or

provided by small business concerns,

the AARCC program concentrates on

assistance for small businesses in the

development of new commercial items.

Almost all AARCC products eligible for

set-asides or preferences under this rule

will be provided by small businesses.

The majority of businesses supported by

AARCC are start-up companies. Thus,

the overall impact of this final rule on

small entities will be positive.

USDA solicited comments from small

entities concerning the impact of the

proposed rule in the Notice of Proposed

Rulemaking publicizing the proposed

rule for comment (62 FR 52081, October

6, 1997). No comments from small

entities were received.

USDA certifies that this rule will not

have a significant economic effect on a

substantial number of small entities,

and, therefore, no regulatory flexibility

analysis has been prepared.

C. Paperwork Reduction Act

No information collection or

recordkeeping requirements are

imposed on the public by this rule.

Accordingly no OMB clearance is

required by section 350(h) of the

Paperwork Reduction Act, 44 U.S.C.

3501, et. seq., or OMB’s implementing

regulation at 5 CFR Part 1320.

D. Small Business Regulatory

Enforcement Fairness Act

This rule has been submitted to each

House of Congress and the Comptroller

General in accordance with the Small

Business Regulatory Enforcement

Fairness Act of 1996, 5 U.S.C. 801, et

seq.

IV. Electronic Access Addresses

You may send electronic mail (E-mail)

to RHOLCOMBE@USDA.GOV, or

contact us via fax at (202) 720–8972, if

you would like additional information

about this rule.

List of Subjects in 48 CFR Parts 426 and

452

Agriculture, Government

procurement.

For the reasons set out in this

preamble, the Department is amending

Chapter 4 of Title 48 of the Code of

Federal Regulations as follows:

1. Add Part 426 to read as follows:

PART 426—OTHER SOCIOECONOMIC

PROGRAMS

Subpart 426.70—Preference for Selected

Biobased Products

Sec.

426.7000 Scope of subpart.

426.7001 Applicability.

426.7002 Authority.

426.7003 Policy.

426.7004 Definitions.

426.7005 Preference list.

426.7006 Use of a set-aside or a price

preference.

426.7007 Use of a technical evaluation

preference.

426.7008 Identification of preferred

products.

426.7009 Contract provisions.

Authority: 5 U.S.C. 301; 7 U.S.C. 5909; 40

U.S.C. 486(c).

Subpart 426.70—Preference for

Selected Biobased Products

426.7000 Scope of subpart.

This subpart supplements the FAR to

implement the set-asides and

preferences described in section 1665 of

the Food, Agriculture, Conservation and

Trade Act of 1990 (7 U.S.C. 5909).

426.7001 Applicability.

This subpart applies to USDA and all

of its components, including

corporations.

426.7002 Authority.

Section 1665 of the Food, Agriculture,

Conservation and Trade Act of 1990 (7

U.S.C. 5909) authorizes USDA to

establish set-asides and other

preferences for products that have been

assisted by the Alternative Agricultural

Research and Commercialization

Corporation (AARCC).

426.7003 Policy.

(a) AARCC provides financial

assistance to private companies and

other parties to commercialize nonfood,

nonfeed products made from

agricultural and forestry materials and

animal by-products (biobased products).

Biobased products by their nature are

environmentally friendly, and, in many

instances, use agricultural material that

otherwise would be waste. It is the

policy of USDA to acquire AARCC

products to the maximum extent

practicable. This policy applies to all

acquisitions of products regardless of

dollar value.

(b) USDA shall satisfy its

requirements for products the same or

essentially the same as AARCC products

by applying the preferences or set-asides

described by this subpart.

426.7004 Definitions.

As used in this subpart—

AARCC products are products

developed with assistance provided by

AARCC as authorized by 7 U.S.C. 5905.

Acquisitions of products means an

acquisition of one or more products for

the use of the Government.

Acquisitions involving the use of

products means an acquisition in which

a Government contractor uses products

in contract performance.

Price preference means an amount,

expressed as a percentage, to be used in

the evaluation of offers in an acquisition

of products.

Set-aside means a requirement that

vendors responding to a solicitation

offer AARCC products.

Solicitation includes actions taken

under parts 12, 13, 14, 15, and 36 of the

Federal Acquisition Regulation.

Technical evaluation preference

means the use of an award factor or

subfactor in which the Government

expresses its preference for AARCC

products.

426.7005 Preference list.

(a) The Office of Procurement and

Policy Management (OPPM) and

AARCC jointly shall establish and

maintain a Preference List for AARCC

products.

(b) The Preference List shall contain

the list of preferred products, source

information for these products, the

type(s) of preference to be applied, the

beginning and ending dates for the use

of preferences, and other terms

established to define the preference

given to a product.

(c) The Preference List will be

publicized within USDA by means of

AGAR Advisories (see 401.371). Copies

of the Preference List may be obtained

from OPPM. The Preference List will

also be posted on the World Wide Web

at the USDA Procurement Home Page.

426.7006 Use of a set-aside or a price

preference.

Acquisitions for products the same or

essentially the same as those products

appearing on the Preference List shall

either be set-aside exclusively or shall

include a price preference for those

products shown on the Preference List.

The actual price preference to be used

shall be determined by the requiring

office but may not exceed the

percentage shown on the Preference

List.

426.7007 Use of a technical evaluation

preference.

Acquisitions involving the use of

products the same or essentially the

same as those products appearing on the

Preference List shall include a technical

evaluation preference, if authorized in
26998 Federal Register / Vol. 63, No. 94 / Friday, May 15, 1998 /Rules and Regulations

the Preference List. The technical

evaluation preference may be

determined by the contracting officer

specifically for each acquisition.

426.7008 Identification of preferred

products.

(a) Products subject to a set-aside or

technical preference shall be separately

listed in the schedule, specification, or

performance work statement.

(b) Products subject to a price

preference shall be separately listed in

the schedule.

426.7009 Contract provisions.

(a) Each solicitation containing a price

or technical preference under this

subpart shall contain the provision

452.226–70, Preferred Products.

(b) Each solicitation for products

subject to a set-aside shall include the

provision 452.226–71, Set-Aside For

Mandatory Products.

(c) Each solicitation for products

subject to a price preference shall

include the provision 452.226–72, Price

Preference for Award.

(d) Solicitations for products may

contain both the provision in 452.226–

71 and the provision found in 452.226–

72.

(e) The provisions prescribed in this

section are not required for acquisitions

accomplished using the purchase card

as a stand alone tool.

PART 452—SOLICITATION

PROVISIONS AND CONTRACT

CLAUSES

2. The authority citation for Part 452

continues to read as follows:

Authority: 5 U.S.C. 301 and 40 U.S.C.

486(c).

3. Add sections 452.226–70, 452.226–

71, and 452.226–72 to read as follows:

452.226–70 Preferred Products.

As prescribed in 426.7009(a), include

the following provision:

Preferred Products (May 1998)

Specific products required by this

solicitation and resulting contract are subject

to a price or a technical preference. A list of

these products, the specific preference, and

the manufacturer or producer is included

below.

Contract Line Item (or other location in this

solicitation): * llllllllllllll

Product: llllllllllllllll

Manufacturer/Producer: * llllllll

lllllllllllllllllllll

lllllllllllllllllllll

lllllllllllllllllllll

Preference: * llllllllllllll

lllllllllllllllllllll

(End of provision)

* For each line item to which a

preference applies, Contracting officer

shall insert appropriate information.

452.226–71 Set-aside for Mandatory

Products.

As prescribed in 426.7009(b), include

the following provision:

Set-Aside for Mandatory Products (May

1998)

Specific products are set-aside as

mandatory products. These are separately

listed in the schedule, specifications, or

performance work statement. Specific terms

governing the set-aside, and source

information for the products are shown

below.

Contract Line Item (or other location in this

solicitation): * llllllllllllll

lllllllllllllllllllll

Product: * llllllllllllllll

Manufacturer/Producer: * llllllll

lllllllllllllllllllll

lllllllllllllllllllll

lllllllllllllllllllll

Set-Aside Terms: * llllllllllll

lllllllllllllllllllll

(End of provision)

* For each line item to which a set-aside

applies, Contracting officer shall insert

appropriate information.

452.226–72 Price Preference for Award.

As prescribed in 426.7009(c), include

the following provision:

Price Preference for Award (May 1998)

Certain products listed in the schedule of

this solicitation are subject to a price

preference. A list of these products, the

amount of the preference, and source

information is included in provision 452.226-

70, Preferred Products. For purposes of

evaluation of offers only, the offered prices

for these products will be reduced by the

price preference listed in the solicitation.

(End of provision)

Done at Washington, D.C., this 7th day of

May, 1998.

W.R. Ashworth,

Director, Office of Procurement and Property

Management.

[FR Doc. 98–12842 Filed 5–14–98; 8:45 am]

BILLING CODE 3410–XE–P