Federal Acquisition Regulation; FAR Case 2004-017, Small Business Credit for Alaska Native Corporations and Indian Tribes, 46345-46357 [07-3798]

Download as PDF Federal Register / Vol. 72, No. 159 / Friday, August 17, 2007 / Rules and Regulations 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 Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Final rule. AGENCIES: 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. sroberts on PROD1PC70 with RULES 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: VerDate Aug<31>2005 16:40 Aug 16, 2007 Jkt 211001 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) PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 46345 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 E:\FR\FM\17AUR2.SGM 17AUR2 sroberts on PROD1PC70 with RULES 46346 Federal Register / Vol. 72, No. 159 / Friday, August 17, 2007 / Rules and Regulations 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 VerDate Aug<31>2005 16:40 Aug 16, 2007 Jkt 211001 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. PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 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 – E:\FR\FM\17AUR2.SGM 17AUR2 sroberts on PROD1PC70 with RULES Federal Register / Vol. 72, No. 159 / Friday, August 17, 2007 / Rules and Regulations 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. VerDate Aug<31>2005 16:40 Aug 16, 2007 Jkt 211001 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 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 46347 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: I 1. The authority citation for 48 CFR parts 19, 52, and 53 continues to read as follows: I E:\FR\FM\17AUR2.SGM 17AUR2 46348 Federal Register / Vol. 72, No. 159 / Friday, August 17, 2007 / Rules and Regulations 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: I 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). * * * * * I 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. sroberts on PROD1PC70 with RULES * * * * * (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 VerDate Aug<31>2005 16:40 Aug 16, 2007 Jkt 211001 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). * * * * * I 4. Amend section 19.704 by revising paragraphs (a)(1), (a)(2), (a)(3), and (a)(6) to read as follows: 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: I 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).) 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 I I I 19.704 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 * * * * 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 I c. Revising paragraphs (d)(1), (d)(2)(ii) and (vi), and (d)(6)(i) and (v) to read as follows: 52.219–9 Plan. * * Small Business Subcontracting * * * SMALL BUSINESS SUBCONTRACTING PLAN (SEP 2007) (b) * * * Alaska Native Corporation (ANC) means any Regional Corporation, Village Corporation, Urban Corporation, or Group E:\FR\FM\17AUR2.SGM 17AUR2 Federal Register / Vol. 72, No. 159 / Friday, August 17, 2007 / Rules and Regulations 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). * * * * * sroberts on PROD1PC70 with RULES (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 VerDate Aug<31>2005 16:40 Aug 16, 2007 Jkt 211001 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. PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 46349 (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. I 8. Revise section 53.301–294 to read as follows: I BILLING CODE 6820–EP–S 53.301–294 Subcontracting Report for Individual Contracts. E:\FR\FM\17AUR2.SGM 17AUR2 VerDate Aug<31>2005 Federal Register / Vol. 72, No. 159 / Friday, August 17, 2007 / Rules and Regulations 16:40 Aug 16, 2007 Jkt 211001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4725 E:\FR\FM\17AUR2.SGM 17AUR2 ER17AU07.000</GPH> sroberts on PROD1PC70 with RULES 46350 VerDate Aug<31>2005 16:40 Aug 16, 2007 Jkt 211001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4725 E:\FR\FM\17AUR2.SGM 17AUR2 46351 ER17AU07.001</GPH> sroberts on PROD1PC70 with RULES Federal Register / Vol. 72, No. 159 / Friday, August 17, 2007 / Rules and Regulations VerDate Aug<31>2005 Federal Register / Vol. 72, No. 159 / Friday, August 17, 2007 / Rules and Regulations 16:40 Aug 16, 2007 Jkt 211001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4725 E:\FR\FM\17AUR2.SGM 17AUR2 ER17AU07.002</GPH> sroberts on PROD1PC70 with RULES 46352 9. Revise section 53.301–295 to read as follows: I VerDate Aug<31>2005 16:40 Aug 16, 2007 Jkt 211001 53.301–295 PO 00000 Frm 00031 46353 Summary Subcontract Report. Fmt 4701 Sfmt 4700 E:\FR\FM\17AUR2.SGM 17AUR2 ER17AU07.003</GPH> sroberts on PROD1PC70 with RULES Federal Register / Vol. 72, No. 159 / Friday, August 17, 2007 / Rules and Regulations VerDate Aug<31>2005 Federal Register / Vol. 72, No. 159 / Friday, August 17, 2007 / Rules and Regulations 16:40 Aug 16, 2007 Jkt 211001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4725 E:\FR\FM\17AUR2.SGM 17AUR2 ER17AU07.004</GPH> sroberts on PROD1PC70 with RULES 46354 VerDate Aug<31>2005 16:40 Aug 16, 2007 Jkt 211001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4725 E:\FR\FM\17AUR2.SGM 17AUR2 46355 ER17AU07.005</GPH> sroberts on PROD1PC70 with RULES Federal Register / Vol. 72, No. 159 / Friday, August 17, 2007 / Rules and Regulations VerDate Aug<31>2005 Federal Register / Vol. 72, No. 159 / Friday, August 17, 2007 / Rules and Regulations 16:40 Aug 16, 2007 Jkt 211001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 E:\FR\FM\17AUR2.SGM 17AUR2 ER17AU07.006</GPH> sroberts on PROD1PC70 with RULES 46356 Federal Register / Vol. 72, No. 159 / Friday, August 17, 2007 / Rules and Regulations [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 Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Interim rule with request for comments. AGENCIES: 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’’, sroberts on PROD1PC70 with RULES SUMMARY: VerDate Aug<31>2005 16:40 Aug 16, 2007 Jkt 211001 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 PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 46357 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 E:\FR\FM\17AUR2.SGM 17AUR2

Agencies

[Federal Register Volume 72, Number 159 (Friday, August 17, 2007)]
[Rules and Regulations]
[Pages 46345-46357]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-3798]


-----------------------------------------------------------------------

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

[[Page 46346]]

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 Indian-owned 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 Indian-owned 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. service-disabled 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 -

[[Page 46347]]

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 not-for-profit Indian tribes from 
the 13 for-profit 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 for-profit 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.

0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 19, 52, and 53 as set 
forth below:
0
1. The authority citation for 48 CFR parts 19, 52, and 53 continues to 
read as follows:


[[Page 46348]]


    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

0
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).
* * * * *

0
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).
* * * * *

0
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 
veteran-owned 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, service-disabled veteran-owned small business, HUBZone small 
business, small disadvantaged business (including ANCs and Indian 
tribes) and women-owned 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 veteran-owned 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 women-owned small business 
concerns;
* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
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).)
* * * * *

0
6. Amend section 52.219-9 by--
0
a. Revising the clause date;
0
b. Adding in paragraph (b), in alphabetical order, the definitions 
``Alaska native Corporation (ANC'') and ``Indian tribe''; and
0
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

[[Page 46349]]

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]

0
7. Amend section 53.219 by removing from paragraphs (a) and (b) ``SEP 
2006'' and adding (SEP 2007) in its place.

0
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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[[Page 46351]]


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[[Page 46352]]


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[[Page 46353]]


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0
9. Revise section 53.301-295 to read as follows:


53.301-295  Summary Subcontract Report.

[[Page 46354]]

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[[Page 46355]]


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[[Page 46356]]


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[[Page 46357]]


[FR Doc. 07-3798 Filed 8-16-07; 8:45 am]
BILLING CODE 6820-EP-C