[Federal Register Volume 59, Number 137 (Tuesday, July 19, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17359]
[[Page Unknown]]
[Federal Register: July 19, 1994]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 12
RIN 1090-AA41
Administrative and Audit Requirements and Cost Principles for
Assistance Programs
AGENCY: Office of the Secretary, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule is in response to section 310 of Public Law
103-138 and sections 502 and 503 of Public Law 103-126. Public Law 103-
138, the ``Department of the Interior and Related Agencies
Appropriations Act, 1994,'' and Public Law 103-126, the ``Energy and
Water Development Appropriations Act, 1994,'' extend the Buy American
requirements which had been included in the Department of the Interior
and Related Agencies Appropriations Act for Fiscal Year 1993, to awards
of financial assistance under the Department's general appropriation
for Fiscal Year 1994, as well as to similar awards by the Bureau of
Reclamation. These provisions require that no funds appropriated or
transferred pursuant to the Act can be expended by an entity unless the
entity agrees that in expending the assistance they will comply with
sections 2 through 4 of the Act of March 3, 1933 (41 U.S.C. 10a-10c,
popularly known as the ``Buy American Act'').
EFFECTIVE DATE: August 18, 1994.
FOR FURTHER INFORMATION CONTACT:
Dean A. Titcomb (Chief, Acquisition and Assistance Division), (202)
208-6431.
SUPPLEMENTARY INFORMATION: On October 5, 1992, the Department of the
Interior and Related Agencies Appropriations Act for Fiscal Year 1993
(``the Act'') was signed into law. Section 319 of the Act was entitled
``Buy American Requirements.'' The section applied to funds
appropriated or transferred pursuant to the Act for the purchase of any
equipment or product that may be authorized to be purchased with
financial assistance. The provision expressed the ``sense of the
Congress'' that entities receiving the assistance, purchase only
American-made equipment and products.
Section 319(b)(2) required that in providing the financial
assistance under the Act, the Secretary shall provide to each recipient
of the assistance a notice describing the requirement. No other
specific guidance was given regarding the implementation of this
requirement.
The Department proposed to revise 43 CFR part 12, by adding subpart
E to implement these requirements. No specific guidance was provided by
Congress, so the Department decided to base its implementation upon
similar rules in the Federal Acquisition Regulation (FAR).
The Department published a notice of proposed rulemaking on August
12, 1993 (58 FR 42918) to implement the requirements included in the
Department of the Interior and Related Agencies Appropriations Act for
Fiscal Year 1993. However, the final rule was not published before the
end of Fiscal Year 1993.
Following the inclusion of the Buy American Requirements in the
Department of the Interior and Related Agencies Appropriations Act,
1994 and the Energy and Water Development Appropriations Act, 1994, the
Department published a notice reopening the comment period on January
14, 1994 (59 FR 2343).
The Department proposed to continue its plans to revise 43 CFR part
12, by adding subpart E to implement the requirements and to issue a
final rule based on the proposed rule published on August 12, 1993.
Only one public comment was received in response to the notice of
proposed rulemaking. Although the purpose of reopening the comment
period was to allow for the receipt of more comments to be considered
prior to publication of the final rule, no additional public comments
were received.
Comments on the Proposed Rule
The commenter requested an exemption from the provisions of the
``Buy American Act'' because application of the provisions would entail
unreasonable costs unless documentation of the exempted articles or the
applicability of exception criteria was done. In addition, the
commenter stated that although these criteria are reasonable,
maintaining the additional layer of administration to monitor and
document such exceptions would be burdensome and self-defeating for
using the Department's funding assistance most effectively.
While we are sympathetic with their dilemma, the Department lacks
the authority to grant a blanket exemption to the provisions of the
Act.
Several internal comments received were considered and changes were
made in the final rule to reflect them. A discussion of these changes
follows:
Definitions for concern, labor surplus area, labor surplus area
concern and small business have been added to Sec. 12.705 in response
to a comment that without definitions, the terms are subject to more
than one interpretation.
Language in subparagraph (e) of Sec. 12.710(e) has been revised and
reflects a modified version of FAR coverage.
In subparagraph (d)(4) of Sec. 12.710; subparagraphs (a) and (c) of
Sec. 12.715; subparagraph (a) of Sec. 12.720; subparagraphs (b) (3) and
(4) of Sec. 12.730; subparagraphs (a) (2) and (3) of Sec. 12.810; and
subparagraphs (a) and (b) of Sec. 12.815 the head of the grantee
organization or a designee at a level no lower than the grantee's
designated awarding official now makes the nonavailability
determination or has approval authority. This change was made in
response to a comment that to require recipients to obtain Departmental
approval when not specifically required by statute imposed an
unnecessary administrative and paperwork burden.
In Sec. 12.720, the list of excepted articles, materials and
supplies has been removed from the rule. A reference to the existing
list in FAR Sec. 25.108 (48 CFR 25.108) is included instead.
In Sec. 12.820, the language has been changed to state that
violation of the Buy American Act is a cause for debarment and
information concerning a failure to comply with the requirements shall
be promptly reported, investigated, and referred when appropriate to
the Department of the Interior employee responsible for administering
the assistance agreement. This change was made in response to a comment
that the existing language precluded application of any discretion or
judgement in applying debarment remedy in the case of a Buy American
Act violation. The commenter also stated that the existing language
denied the recipient any opportunity for the due process hearings
required by the debarment regulations and denied the recipient any
opportunity to lessen the punishment by implementing corrective or
remedial actions. The new language describes the review process more
comprehensively.
In subparagraph (b) of Sec. 12.725, the word, ``grantee'' has been
added to more clearly specify that the awarding official of the
organization shall insert the clause at Sec. 12.730, Buy American Act-
Supplies and the word, ``in'' was inserted before solicitations.
In Sec. 12.825, the word, ``grantee'' has been added to more
clearly specify that the awarding official of the grantee organization
shall insert the clause at Sec. 12.830, Buy American Act-Construction
Materials.
Several typographical errors have now been corrected. These include
the following:
Section 12.110 Policy, has been corrected to read Sec. 12.710.
The reference to Sec. 12.120 in subparagraph (a)(3) in Sec. 12.810
has been corrected to read Sec. 12.720.
Because of the applicability of different appropriation acts and a
slight change in the language, the wording in the notice in
subparagraph (b) of Sec. 12.710 has been changed to account for the
reference to language in Public Law 103-138. A separate notice has been
added with subparagraph (c) of Sec. 12.710 to account for the reference
to language in Public Law 103-126 and its use only for awards made by
the Bureau of Reclamation.
Clarification was requested regarding the use of the term
``agency'' since in the rule it could be read in some places as
referring to the Federal granting agency, but in others it looked like
it meant some level in the recipient organization. The change made to
use the term, ``head of the grantee organization or a designee at a
level no lower than the grantee's designated awarding official'' adds
clarity.
Another commenter asked that clarification be added concerning
whether the Buy American Act takes precedence over related State laws
(thus requiring equal consideration of all domestic products) or
whether States may continue to apply their own restriction, as long as
the resultant award is for a domestic product. Our interpretation of 43
CFR part 12, Subpart C, is that States are required to ensure that
every purchase order or other contract includes any clauses required by
Federal statutes and executive orders and their implementing
regulations. On this basis, the requirements of the Act take precedence
over related State laws.
Executive Order 12866, Paperwork Reduction Act, and Regulatory
Flexibility Act
This rule was not subject to Office of Management and Budget review
under Executive Order 12866.
The Department has determined that this rule will not have a
significant economic impact on a substantial number of small entities
since it is anticipated that no additional costs will be imposed on a
substantial number of small entities as a result of the rule. This rule
does not contain a collection of information subject to the Paperwork
Reduction Act of 1980 (44 U.S.C. 3501 et seq.).
Environmental Effects
The Department has determined that this rule does not constitute a
major Federal action having a significant impact on the human
environment under the National Environmental Policy Act of 1969.
Executive Order No. 12778
The Department has certified to the Office of Management and Budget
that this rule meets the applicable standards provided in Sections 2(a)
and 2(b)(2) of Executive Order No. 12778.
List of Subjects in 43 CFR Part 12
Cooperative agreements, Grants administration, Grant program.
Dated: June 29, 1994.
Ira Michael Heyman,
Acting Assistant Secretary-Policy, Management and Budget.
Title 43, part 12 of the Code of Federal Regulations is amended as
set forth below:
PART 12--ADMINISTRATIVE AND AUDIT REQUIREMENTS AND COST PRINCIPLES
FOR ASSISTANCE PROGRAMS
1. The authority citation for part 12 is revised to read as
follows:
Authority: 5 U.S.C. 301; 31 U.S.C. 7501; 41 U.S.C. 701 et seq.;
sec. 310, Pub. L. 103-138, 107 Stat. 1379; sections 502 and 503,
Pub. L. 103-126, 107 Stat. 1312; E.O. 12549, 3 CFR, 1986 Comp., p.
189; E.O. 12674, 3 CFR, 1989 Comp., p. 215; E.O. 12731, 3 CFR, 1990
Comp., p. 306; OMB Circular A-102; OMB Circular A-110; OMB Circular
A-128; and OMB Circular A-133.
2. Part 12 is amended by adding Subpart E to read as set forth
below.
Subpart E--Buy American Requirements for Assistance Programs
Buy American Act--Supplies
Sec.
12.700 Scope.
12.705 Definitions.
12.710 Policy.
12.715 Evaluating offers.
12.720 Excepted articles, materials, and supplies.
12.725 Solicitation provisions and contract clause.
12.730 Buy American Act--Supplies.
Buy American Act--Construction Materials
12.800 Scope.
12.805 Definitions.
12.810 Policy.
12.815 Evaluating offers.
12.820 Violations.
12.825 Solicitation provision and contract clause.
12.830 Buy American Act--Construction materials.
Subpart E--Buy American Requirements for Assistance Programs
Buy American Act--Supplies
Sec. 12.700 Scope.
This subpart implements section 310 of the Department of the
Interior and Related Agencies Appropriations Act for Fiscal Year 1994
(Public Law 103-138, 107 Stat. 1312) and section 502 of the Energy and
Water Development Appropriations Act, 1994 (Public Law 103-126, 107
Stat. 1379). This subpart requires that no funds appropriated or
transferred pursuant to the respective Act may be expended by an entity
unless the entity agrees that in expending the assistance the entity
will comply with sections 2 through 4 of the Act of March 3, 1933 (41
U.S.C. 10a-10c, popularly known as the ``Buy American Act''). It
applies to procurement contracts under grants and cooperative
agreements which provide for the purchase of equipment and products.
Section 502 of Public Law 103-126, 107 Stat. 1379, only applies to
awards made by the Bureau of Reclamation.
Sec. 12.705 Definitions.
Components, as used in this subpart, means those articles,
materials, and supplies incorporated directly into the end products.
Concern, as used in this subpart, means any business entity
organized for profit (even if its ownership is in the hands of a
nonprofit entity) with a place of business located in the United States
and which makes a significant contribution to the U.S. economy through
payment of taxes and/or use of American products, to an individual,
partnership, corporation, joint venture, association, or cooperative.
Domestic end product, as used in this subpart, means (a) an
unmanufactured end product mined or produced in the United States; or
(b) an end product manufactured in the United States, if the cost of
its components mined, produced, or manufactured in the United States
exceeds 50 percent of the cost of all its components. (In determining
if an end product is domestic, only the end product and its components
shall be considered.) The cost of each component includes
transportation costs to the place of incorporation into the end product
and any applicable duty (whether or not a duty-free entry certificate
is issued). Components of foreign origin of the same class or kind for
which determinations have been made in accordance with Sec. 12.710(c)
(3) and (4) are treated as domestic. Scrap generated, collected, and
prepared for processing in the United States is considered domestic. On
acquisitions above $25,000 in value, components of Canadian origin are
treated as domestic.
Domestic offer, as used in this subpart, means an offered price for
a domestic end product, including transportation to destination.
End product, as used in this subpart, means those articles,
materials, and supplies to be acquired for public use under the grant,
cooperative agreement, or procurement contract awarded under the grant
or cooperative agreement.
Foreign end product, as used in this subpart, means an end product
other than a domestic end product.
Foreign offer, as used in this subpart, means an offered price for
a foreign end product, including transportation to destination and duty
(whether or not a duty-free entry certificate is issued).
Instrumentality, as used in this subpart, does not include an
agency or division of the government of a country.
Labor surplus area, as used in this subpart, means a geographical
area identified by the Department of Labor in accordance with 20 CFR
part 654, subpart A, as an area of concentrated unemployment or
underemployment or an area of labor surplus.
Labor surplus area concern, as used in this subpart, means a
concern that together with its first-tier subcontractors will perform
substantially in labor surplus areas. Performance is substantially in
labor surplus areas if the costs incurred under the contract on account
of manufacturing, production, or performance of appropriate services in
labor surplus areas exceed 50 percent of the contract price.
United States, as used in this subpart, means the states thereof,
the District of Columbia, and the territories and possessions of the
United States.
Sec. 12.710 Policy.
(a) In the case of any equipment or product that may be authorized
to be purchased with financial assistance provided under Public Law
103-138, it is the sense of Congress that entities receiving the
assistance should, in expending the assistance, purchase only American-
made equipment and products.
(b) In awarding financial assistance under Public Law 103-138,
bureaus and offices excluding the Bureau of Reclamation shall provide
to each recipient of the assistance a notice providing the statement in
the following format:
Notice
Pursuant to Sec. 310 of the Department of the Interior and
Related Agencies Appropriations Act, 1994, Public Law 103-138, 107
Stat. 1312, please be advised of the following:
In the case of any equipment or product that may be authorized
to be purchased with financial assistance provided using funds made
available in this Act, it is the sense of the Congress that entities
receiving the assistance should, in expending the assistance,
purchase only American-made equipment and products.
(c) In awarding financial assistance under Public Law 103-126, the
Bureau
of Reclamation shall provide to each recipient of the assistance a
notice providing the statement in the following format:
Notice
Pursuant to Sec. 503 of the Energy and Water Development
Appropriations Act, 1994, Public Law 103-126, please be advised of
the following:
In the case of any equipment or products that may be authorized
to be purchased with financial assistance provided under this Act,
it is the sense of the Congress that entities receiving such
assistance should, in expending the assistance, purchase only
American-made equipment and products.
(d) The Buy American Act requires that only domestic end products
be acquired for public use, except articles, materials, and supplies--
(1) For use outside the United States;
(2) For which the cost would be unreasonable, as determined in
accordance with Sec. 12.715;
(3) For which the agency head determines that domestic preference
would be inconsistent with the public interest; or
(4) That are not mined, produced, or manufactured in the United
States in sufficient and reasonable available commercial quantities, of
a satisfactory quality (see Sec. 12.720).
(e) The grantee's contracting officer may make a nonavailability
determination under Sec. 12.710(d)(4) for a procurement contract
awarded under the grant or cooperative agreement if--
(1) The procurement action was conducted by full and open
competition;
(2) The procurement action was publicly advertised; and
(3) No offer for a domestic end product was received; or
(f) The head of the grantee's contracting activity or designee may
make a nonavailability determination under Sec. 12.710(d)(4) for any
circumstance other than specified in paragraph (e) of this section.
Sec. 12.715 Evaluating offers.
(a) Unless the head of the grantee organization or a designee at a
level no lower than the grantee's designated awarding official
determines otherwise, the offered price of a domestic end product is
unreasonable when the lowest acceptable domestic offer exceeds the
lowest acceptable foreign offer (see Sec. 12.705), inclusive of duty,
by--
(1) More than 6 percent, if the domestic offer is from a large
business that is not a labor surplus area concern; or
(2) More than 12 percent, if the domestic offer is from a small
business concern or any labor surplus area concern.
(b) The evaluation in paragraph (a) of this section shall be
applied on an item-by-item basis or to any group of items on which
award may be made as specifically provided by the solicitation.
(c) If an award of more than $250,000 would be made to a domestic
concern if the 12-percent factor were applied, but not if the 6-percent
factor were applied, the head of the grantee organization or a designee
at a level no lower than the grantee's designated awarding official
shall decide whether award to the domestic concern would involve
unreasonable cost.
Sec. 12.720 Excepted articles, materials, and supplies.
(a) As indicated in the Federal Acquisition Regulation (FAR), one
or more agencies have determined that the articles, materials, and
supplies on the list referred to in paragraph (b) of this section are
not mined, produced, or manufactured in the United States in sufficient
and reasonably available commercial quantities of a satisfactory
quality. This referenced list in paragraph (b) of this section is
furnished for information only; an article, material or supply listed
therein may be treated as domestic only when the head of the grantee
organization or a designee at a level no lower than the grantee's
designated awarding official has made a determination that it is not
mined, produced, or manufactured in the United States in sufficient and
reasonably available quantities of a satisfactory quality.
(b) Refer to the current list of excepted articles, materials, and
supplies in FAR 25.108 (48 CFR 25.108).
Sec. 12.725 Solicitation provisions and contract clause.
(a) When quotations are obtained orally, vendors shall be informed
that only domestic end products, other than end products excepted on a
blanket or individual basis (see Sec. 12.720), shall be acceptable,
unless the price for an offered domestic end product is unreasonable
(see Sec. 12.715).
(b) The grantee awarding officer shall insert the clause at
Sec. 12.730, Buy American Act--Supplies, in solicitations for
procurement contracts awarded under the grant or cooperative agreement
for the purchase of supplies, or for services involving the furnishing
of supplies, for use within the United States.
Sec. 12.730 Buy America Act--Supplies
As prescribed in Sec. 12.725, insert the following clause:
Buy American Act--Supplies
(a) The Buy American Act (41 U.S.C. 10) provides that the
Government give preference to domestic end products.
Components, as used in this clause, means those articles,
materials, and supplies incorporated directly into the end products.
Domestic end product, as used in this clause, means an
unmanufactured end product mined or produced in the United States,
if the cost of its components mined, produced, or manufactured in
the United States exceeds 50 percent of the cost of all its
components. Components of foreign origin of the same class or kind
as the products referred to in paragraphs (b)(2) or (3) of this
clause shall be treated as domestic.
End products, as used in this clause, means those articles,
materials, and supplies to be acquired for public use under this
contract.
(b) The contractor shall deliver only domestic end products,
except those--
(1) For use outside the United States;
(2) That the Government determines are not mined, produced, or
manufactured in the United States in sufficient and reasonably
available commercial quantities of a satisfactory quality;
(3) For which the head of the grantee organization or a designee
at a level no lower than the grantee's designated awarding official
determines that domestic preference would be inconsistent with the
public interest; or
(4) For which the head of the grantee organization or a designee
at a level no lower than the grantee's designated awarding official
determines the cost to be unreasonable (see Sec. 12.715).
(End of clause)
Buy American Act--Construction Materials
Sec. 12.800 Scope.
This subpart implements the Buy American Act (41 U.S.C. 10). It
applies to procurement contracts awarded under a grant or cooperative
agreement for the construction, alteration, or repair of any public
building or public work in the United States.
Sec. 12.805 Definitions.
Components, as used in this subpart, means those articles,
materials, and supplies incorporated directly into construction
materials.
Construction, as used in this subpart, means construction,
alteration, or repair of any public building or public work in the
United States.
Construction materials, as used in this subpart, means an article,
material, and supply brought to the construction site for incorporation
into the building or work.
Construction material also includes an item brought to the site
pre-assembled from articles, materials, and supplies. However,
emergency life safety systems, such as emergency lighting, fire alarm,
and audio evacuation systems, which are discrete systems incorporated
into a public building or work and which are produced as a complete
system, shall be evaluated as a single and distinct construction
material regardless of when or how the individual parts or components
of such systems are delivered to the construction site.
Domestic construction material, as used in this section, means: (a)
An unmanufactured construction material mined or produced in the United
States, or (b) a construction material manufactured in the United
States, if the cost of its components mined, produced, or manufactured
in the United States exceeds 50 percent of the cost of all its
components. (In determining whether a construction material is
domestic, only the construction material and its components shall be
considered.) The cost of each component includes transportation costs
to the place of incorporation into the construction material and any
applicable duty (whether or not a duty-free entry certificate is
issued). Components of foreign origin of the same class or kind for
which determinations have been made in accordance with
Sec. 12.810(a)(3) are treated as domestic.
Foreign construction material, as used in this section, means as
construction material other than a domestic construction material.
United States (see Sec. 12.705).
Sec. 412.810 Policy.
(a) The Buy American Act requires that only domestic construction
materials be used in construction in the United States, except when--
(1) The cost would be unreasonable as determined in accordance with
Sec. 12.815;
(2) The head of the grantee organization or a designee at a level
no lower than the grantee's designated awarding official determines
that use of a particular domestic construction material would be
impracticable; or
(3) The head of the grantee organization or a designee at a level
no lower than the grantee's designated awarding official determines the
construction material is not mined, produced, or manufactured in the
United States in sufficient and reasonably available commercial
quantities of a satisfactory quality (see Sec. 12.720).
(b) When it is determined for any reasons stated in this section
that certain foreign construction materials may be used, the excepted
materials shall be listed in the agreement. Findings justifying the
exception shall be available for public inspection.
Sec. 12.815 Evaluating offers.
(a) The restrictions of the Buy American Act do not apply when the
head of the grantee organization or a designee at a level no lower than
the grantee's designated awarding official determines that using a
particular domestic construction material would unreasonably increase
the cost or would be impracticable.
(b) When proposed awards are submitted to the head of the grantee
organization or a designee at a level no lower than the grantee's
designated awarding official for approval, each submission shall
include a description of the materials, including unit and quantity,
estimated costs, location of the construction project, name and address
of the proposed contractor, and a detailed justification of the
impracticability of using domestic materials.
Sec. 12.820 Violations.
Violation of the Buy American Act in the performance of a
procurement construction contract under a grant or cooperative
agreement is a cause for debarment. Information concerning a failure to
comply with the clause at Sec. 12.830, Buy American Act--Construction
Materials, shall be promptly reported, investigated, and referred, when
appropriate to the appropriate U.S. Department of the Interior employee
responsible for administering the grant or cooperative agreement. (For
debarment procedures, see subpart D of this part).
Sec. 12.825 Solicitation provision and contract clause.
The grantee awarding official shall insert the clause at
Sec. 12.830, Buy American Act--Construction Materials, in solicitations
for procurement contracts awarded under a grant or cooperative
agreement for construction inside the United States.
Sec. 12.830 Buy American Act--Construction materials.
As prescribed in Sec. 12.825, insert the following clause in
solicitations for procurement contracts awarded under a grant or
cooperative agreement for construction inside the United States:
Buy American Act--Construction Materials
(a) The Buy American Act (41 U.S.C. 10) provides that the
Government give preference to domestic construction material.
Components, used in this clause, means those articles,
materials, and supplies incorporated directly into construction
materials.
Construction material, as used in this clause, means an article,
material, or supply brought to the construction site for
incorporation into the building or work. Construction material also
includes an item brought to the site pre-assembled from articles,
materials or supplies. However, emergency life safety systems, such
as emergency lighting, fire alarm, and audio evacuation systems,
which are discrete systems incorporated into a public building or
work and which are produced as a complete system, shall be evaluated
as a single and distinct construction material regardless of when or
how the individual parts or components of such systems are delivered
to the construction site.
Domestic construction material, as used in this clause, means
(a) an unmanufactured construction material mined or produced in the
United States, or (b) a construction material manufactured in the
United States, if the cost of its components mined, produced, or
manufactured in the United States exceeds 50 percent of the cost of
all its components. Components of foreign origin of the same class
or kind as the construction materials determined to be unavailable
pursuant to Sec. 12.810(a)(3) of 43 CFR part 12, subpart E shall be
treated as domestic.
(b) The contractor agrees that only domestic construction
material will be used by the contractor, subcontractors,
materialmen, and suppliers in the performance of this agreement,
except for foreign construction materials, if any, listed in this
agreement.
(End of clause)
[FR Doc. 94-17359 Filed 7-18-94; 8:45 am]
BILLING CODE 4310-RF-M
