[Federal Register Volume 61, Number 251 (Monday, December 30, 1996)] [Rules and Regulations] [Pages 68666-68668] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 96-33033] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF THE INTERIOR Office of the Secretary 43 CFR Part 12 RIN 1090-AA59 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 the ``Omnibus Consolidated Appropriations Act of 1997,'' and the ``Energy and Water Development Appropriations Act, 1997.'' Section 307(a) of Public Law 104-208 required [[Page 68667]] that no funds made available in the Act may be expended by an entity unless the entity agrees that in expending the funds 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''). As it did for awards governed by this provision made since FY 1993, the Department continues to interpret this requirement to apply to assistance programs. Section 307(b)(1) of Public Law 104-208 again states that it is the sense of Congress that all equipment and products purchased with funds made available in the Act should be American-made. Likewise, the Department is again taking the position that Congressional intent is different for awards made by the Bureau of Reclamation. As such, only the provisions in the regulation addressing the sense of Congress (section 12.700 and the notice requirements (sections 12.710) will apply to awards made by the Bureau of Reclamation using appropriated funds for FY 1997.) In addition, a minor correction is being made to a cite in the definition of ``domestic and product'' in Section 12.705. EFFECTIVE DATE: December 30, 1996. FOR FURTHER INFORMATION CONTACT: Debra E. Sonderman, (Director, Procurement and Property Management Systems), (202) 208-3336. SUPPLEMENTARY INFORMATION: On September 30, 1996, the Omnibus Consolidated Appropriations Act of 1997 (``the Act'') was signed into law Section 307(a) of the Act was entitled ``Compliance with Buy American Act.'' 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. Section 307(b)(1) expressed the ``sense of the Congress'' that entities receiving the assistance purchase only American-made equipment and products. Section 307(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. As in prior years, no other specific guidance was given regarding the implementation of this requirement. The Department is revising Subpart E of 43 CFR Part 12, to implement these requirements for awards made using appropriated funds for FY 1997. No specific guidance was provided by Congress, so the Department decided to continue its implementation of these requirements based upon the final rule published in the Federal Register on July 19, 1994 (59 FR 36713). Because of the applicability of different appropriation acts and the fact that the requirements are different, the notice in subparagraph (b) of section 12.710 has been changed to account for the reference to language in Public Law 104-208. A separate notice included in subparagraph (c) of section 12.710 has been amended to account for the reference to language in Public Law 104-206 and its use only for awards made by the Bureau of Reclamation. Finding of Good Cause for Waiver of Proposed Rulemaking and for Making Rule Effective upon Publication In accordance with the Administrative Procedure Act (5 U.S.C. 553), it is usually the practice of the Department to offer interested parties the opportunity to comment on proposed regulations. However, the Department waives notice and comment on these regulations under section 553(b)(B) of the Administrative Procedure Act (5 U.S.C. 553(b)(B)). This section provides that notice and comment for rulemaking is not required when the agency for good cause finds that notice and public procedures are impracticable, unnecessary, or contrary to the public interest. The Department believes public comment on the revision of this regulation is unnecessary because the substance of these provisions is based on statutory requirements governing the award of assistance with appropriated funds for FY 1997, that the Department is unable to change. The Administrative Procedure Act provides that rules be published at least 30 days prior to their effective date, except as otherwise provided by an agency on a finding of good cause (5 U.S.C. 553(d)(3)). In this case, because this requirement is a statutory condition of expenditure of appropriated funds in this fiscal year, the Department has determined that the rule must be effective upon publication. Executive Order 12866, Paperwork Reduction Act, and Regulatory Flexibility Act This rule was not subject to Office Management and Budget review under Executive Order 12866. The Department has determined that this rule will not have a significant economic impact on 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. List of Subjects in 43 CFR Part 12 Administrative practice and procedure, Contract programs, Cooperative agreements, Grant programs, Grants administration, Reporting and recordkeeping requirements. Dated: December 4, 1996. Bonnie R. Cohen, Assistant Secretary--Policy, Management and Budget. Title 43 of the Code of Federal Regulations, part 12 is amended as follows: 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. 6101 note, 7501, 41 U.S.C. 252a, 701 et seq; sec. 501, Pub. L. 104-206, 110 Stat. 2984; sec. 307, Pub. L. 104-208, 110 Stat. 3009; E.O. 12549, 3 CFR, 1986 Comp., p. 189; E.O. 12674, 3 CFR, 1989 Comp., 215; E.O. 12689, 3 CFR, 1989 Comp., p. 235; 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. Section 12.700 is revised to read as follows: Sec. 12.700 Scope. This subpart implements section 307 of the Omnibus Consolidated Appropriations Act of 1997 (Public Law 104-208, 110 Stat. 3009) and section 501 of the Energy and Water Development Appropriations Act, 1997 (Public Law 104-206, 110 Stat. 2984). For awards made under the authority of section 307(a) of Public Law 104-208, this subpart requires that no funds made available in the Act may be expended by an entity unless the entity agrees that in expending the funds 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 501 of Public Law 104-206, 110 Stat. 2984, only applies to [[Page 68668]] awards made by the Bureau of Reclamation. In addition, for these awards, there is only a requirement that in providing financial assistance to, or entering into any contract with, any entity using funds made available in this Act, the Secretary, to the greatest extent practicable, will provide to the entity a notice describing a statement within the Act made by Congress. This statement concerns the sense of the Congress that to the greatest extent practicable, all equipment and products purchased with funds made available in the Act, should be American-made. Therefore, for Fiscal Year 1997 awards, only the requirements in Section 12.700 and 12.710 will apply to awards made by the Bureau of Reclamation. 3. Section 12.705 is amended by revising the fourth sentence included in the definition of domestic end product to read as follows: Sec. 12.705 Definitions. * * * * * Domestic end product * * * Components of foreign origin of the same class or kind for which determinations have been made in accordance with Section 12.710(d) (3) and (4) are treated as domestic. * * * * * * * * 4. Paragraphs (a), (b), and (c) of Section 12.710 are revised to read as follows: Sec. 12.710 Policy. (a) In the case of any equipment or product that may be authorized to be purchased with financial assistance provided using funds made available under Public Law 104-208, 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 104-208, 110 Stat. 3009, bureaus and offices excluding the Bureau of Reclamation will provide to each recipient of the assistance the following notice: Notice: Pursuant to Sec. 307 of the Omnibus Consolidated Appropriations Act of 1997, Public Law 104-208, 110 Stat. 3009, 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 using funds made available under Public Law 104-206, to the greatest extent practicable, the Bureau of Reclamation will provide to each recipient of the assistance the following notice: Notice: Pursuant to Sec. 501 of the Energy and Water Development Appropriations Act, 1997, Public Law 104-206, 110 Stat. 2984, please be advised of the following: It is the sense of the Congress, that to the greatest extent practicable, all equipment and products purchased with funds made available in this Act should be American-made. * * * * * [FR Doc. 96-33033 Filed 12-27-96; 8:45 am] BILLING CODE 4310-RF-M