[Federal Register Volume 65, Number 38 (Friday, February 25, 2000)]
[Rules and Regulations]
[Pages 10031-10033]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-4387]


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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1806, 1825, 1852 and 1853


Foreign Acquisition

AGENCY: National Aeronautics and Space Administration (NASA).

ACTION: Final rule.

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SUMMARY: This final rule conforms the NASA FAR Supplement (NFS) to 
Federal Acquisition regulations on Foreign Acquisition, finalized in 
Federal Acquisition Circular (FAC) 97-15. It also refines internal 
agency coordination procedures.

EFFECTIVE DATE: February 25, 2000.

FOR FURTHER INFORMATION CONTACT: Patrick Flynn, NASA, Office of 
Procurement, Contract Management Division (Code HK), (202) 358-0460, e-
mail: [email protected].

SUPPLEMENTARY INFORMATION:

A. Background

    This final rule conforms the NASA FAR Supplement to Item No. II of 
FAC 97-15, which became final on December 27, 1999, and enters into 
effect on February 25, 2000. Internal coordination procedures have been 
clarified, but no substantive changes have been made to NASA policy.

B. Regulatory Flexibility Act

    NASA certifies that this final rule will not have a significant 
economic impact on a substantial number of small business entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) because it 
does not impose any new requirements.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to 
the NFS do not impose any recordkeeping or information collection 
requirements, or collections of information from offerors, contractors, 
or members of the public that require the approval of the Office of 
Management and Budget under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Parts 1806, 1825, 1852, and 1853

    Government procurement.

Tom Luedtke,
Associate Administrator for Procurement.


    Accordingly, 48 CFR Parts 1806, 1825, 1852, and 1853 are amended as 
follows:
    1. The authority citation for 48 CFR Parts 1806, 1825, 1852, and 
1852 continues to read as follows:

    Authority: 42 U.S.C. 2473(c)(1).

PART 1806--COMPETITIVE REQUIREMENTS

    2. In section 1806.303-1, revise paragraph (d) to read as follows:


1806.303-1  Requirements.

* * * * *
    (d) The contracting officer shall send a copy of each approved 
justification or D&F that cites the authority of FAR 6.302-3(a)(2)(i) 
or FAR 6.302-7 to NASA Headquarters, Office of Procurement (Code HK), 
unless one of the exceptions at FAR 25.403 applies to the acquisition. 
The transmittal shall indicate that the justification is being 
furnished under FAR 6.303-1(d).

PART 1825--FOREIGN ACQUISITION

    3. Revise Part 1825 to read as follows:

PART 1825 FOREIGN ACQUISITION

Sec.
1825.003   Definitions.
1825.003-70   NASA definitions.
Subpart 1825.1 Buy American Act--Supplies
1825.103   Exceptions.
Subpart 1825.4 Trade Agreements
1825.400   Scope of subpart.
Subpart 1825.9 Customs and Duties
1825.901   Policy.
1825.903   Exempted supplies.
Subpart 1825.10 Additional Foreign Acquisition Regulations
1825.1001   Waiver of right to examination of records.
1825.1002   Use of foreign currency.
Subpart 1825.11 Solicitation Provisions and Contract Clauses
1825.1101   Acquisition of supplies.
1825.1103   Other provisions and clauses.
1825.1103-70   Export control.
Subpart 1825.70 Foreign Contract and International Agreement Clearances
1825.7000   Scope of subpart.
1825.7001   Definition.
1825.7002   Foreign Contracts.
1825.7003   International Agreements.
1825.003   Definitions.
1825.003-70   NASA definitions.
    ``Canadian end product'', for an item with an estimated value of 
$25,000 or less, means an unmanufactured end product mined or produced 
in Canada or an end product manufactured in Canada, if the cost of its 
components mined, produced, or manufactured in Canada or the United 
States exceeds 50 percent of the cost of all its components. The cost 
of components includes transportation costs to the place of 
incorporation into the end product. For an end product with an 
estimated value in excess of $25,000, the definition at FAR 25.003 
applies.

[[Page 10032]]

Subpart 1825.1-- Buy American Act--Supplies


1825.103  Exceptions.

    (a)(i) The procurement officer must send proposed public interest 
determinations to the Associate Administrator for Procurement (Code HS) 
for approval.
    (ii) The Associate Administrator for Procurement has determined 
that it is inconsistent with the public interest to apply restrictions 
of the Buy American Act to Canadian end products with estimated values 
of $25,000 or less as defined in 1825.003-70. Accordingly, contracting 
officers must evaluate all offers for such Canadian end products on a 
parity with offers for domestic end products, except that applicable 
duty (whether or not a duty free entry certificate may be issued) must 
be included in evaluating offers for Canadian end products.

Subpart 1825.4--Trade Agreements


1825.400  Scope of subpart.

    (b) The Buy American Act and the Balance of Payments Program apply 
to all acquisitions of Japanese end products or services in excess of 
$2,500.

Subpart 1825.9--Customs and Duties


1825.901  Policy.

    NASA has statutory authority to exempt certain articles from import 
duties, including articles that will be launched into space, spare 
parts for such articles, ground support equipment, and unique equipment 
used in connection with an international program or launch service 
agreement. This authority is fully described in 14 CFR part 1217.


1825.903  Exempted supplies.

    (a) Through delegation from the Associate Administrator for 
Procurement, Procurement Officers are authorized to certify duty free 
entry for articles imported into the United States, if those articles 
are procured by NASA or by other U.S. Government agencies, or by U.S. 
Government contractors or subcontractors when title to the articles is 
or will be vested in the U.S. Government in accordance with the terms 
of the contract or subcontract. Procurement officers shall complete 
Customs Form 7501, Entry Summary (available from your nearest Service 
Port (http://www.customs.ustreas.gov/location/ports/index.htm) or from 
(https://extranet.hq.nasa.gov/nef/user/form__search.cfm)) and the 
certification set forth in 14 CFR 1217.104(a) or 1217.104(c)(http://www.access.gpo.gov/nara/cfr/cfr-retrieve.html#page1). All duty-free 
certificates must be coordinated with the center Chief Counsel. 
Procurement officers must maintain a record of each certification and 
make this record available for periodic review by NASA Headquarters and 
the U.S. Customs Service.

Subpart 1825.10--Additional Foreign Acquisition Regulations


1825.1001  Waiver of right to examination of records.

    (b) The Administrator is the approval authority for waivers. The 
contracting officer must submit the waiver request, consisting of the 
determination and findings prescribed in FAR 25.1001(b) and any 
relevant supporting information, to the Headquarters Office of 
Procurement (Code HS).


1825.1002  Use of foreign currency.

    (a) The NASA Headquarters Comptroller (Code B) is the designated 
official for making the determination of the feasibility of using 
excess or near-excess currency.

Subpart 1825.11--Solicitation Provisions and Contract Clauses


1825.1101  Acquisition of supplies.

    (e) The contracting officer must add paragraph (k) as set forth in 
1852.225-8, Duty-Free Entry of Space Articles, in solicitations and 
contracts when the supplies that will be accorded duty-free entry are 
identifiable before award. Insert the supplies determined in accordance 
with FAR subpart 25.9 and 1825.903.


1825.1103  Other provisions and clauses.


1825.1103-70  Export control.

    (a) Background. (1) NASA contractors and subcontractors are subject 
to U.S. export control laws and regulations, including the 
International Traffic in Arms Regulations (ITAR), 22 CFR parts 120 
through 130, and the Export Administration Regulations (EAR), 15 CFR 
parts 730 through 799. The contractor is responsible for obtaining the 
appropriate licenses or other approvals from the Department of State or 
the Department of Commerce when it exports hardware, technical data, or 
software, or provides technical assistance to a foreign destination or 
``foreign person'', as defined in 22 CFR 120.16, and there are no 
applicable or available exemptions/exceptions to the ITAR/EAR, 
respectively. A person who is lawfully admitted for permanent residence 
in the United States is not a ``foreign person''. (See 22 CFR 120.16 
and 15 CFR 734.2(b)(2)(ii).)
    (2) The exemption at 22 CFR 125.4(b)(3) of the ITAR provides that a 
contractor may export technical data without a license if the contract 
between the agency and the exporter provides for the export of the 
data. The clause at 1852.225-70, Alternate I, provides contractual 
authority for the exemption, but the exemption is available only after 
the contracting officer, or designated representative, provides written 
authorization or direction enabling its use. It is NASA policy that the 
exemption at 22 CFR 125.4(b)(3) may only be used when technical data 
(including software) is exchanged with a NASA foreign partner pursuant 
to the terms of an international agreement in furtherance of an 
international collaborative effort. The contracting officer must obtain 
the approval of the Center Export Administrator before granting the 
contractor the authority to use this exemption.
    (b) Contract clause. Insert the clause at 1852.225-70, Export 
Licenses, in all solicitations and contracts, except in contracts with 
foreign entities. Insert the clause with its Alternate I when the NASA 
project office indicates that technical data (including software) is to 
be exchanged by the contractor with a NASA foreign partner pursuant to 
an international agreement.

Subpart 1825.70--Foreign Contract and International Agreement 
Clearances


1825.7000  Scope of subpart.

    This subpart prescribes policy and procedures for pre-award 
clearance of foreign contracts, and for coordination of international 
agreements that contemplate award of contracts using appropriated 
funds.


1825.7001  Definition.

    Foreign contract acquisition, as used in this subpart, means the 
acquisition by negotiation of supplies or services, including 
construction and research and development when the work is to be 
performed outside the United States, its possessions, and Puerto Rico 
by a foreign government or instrumentality thereof or by a foreign 
private contractor. The term does not include--
    (a) Negotiation of contracts with domestic concerns involving work 
to be performed outside the United States, its possessions, and Puerto 
Rico; or
    (b) Contracts with the Canadian Commercial Corporation.


1825.7002  Foreign contracts.

    (a) Policy. Following the procedure in paragraph (b) of this 
section, the Acquisition Team must coordinate with

[[Page 10033]]

Headquarters before initiating any foreign contract acquisition if the 
acquisition is valued above $100,000 or involves export control issues. 
An acquisition involves export control issues if it entails--
    (1) Importing or exporting goods or technical data from or to a 
country listed in 22 CFR 126.1(a) or 126.1(d) (Subchapter M, the 
International Traffic in Arms Regulations) (http://www.pmdtc.org/itar2.htm);
    (2) Importing or exporting Defense Articles or Defense Services on 
the United States Munitions List at 22 CFR part 121 which would require 
NASA to obtain a license from the State Department's Office of Defense 
Trade Controls;
    (3) Exporting goods or technical data on the Commerce Control List 
at 15 CFR part 774 and that require NASA to obtain either a Special or 
an Individual Validated License;
    (4) Importing and/or exporting goods or technical data from or to 
an entity listed in 15 CFR part 740, Supplement 1, Country Group D; or
    (5) Exporting and/or importing of goods, technology, or services to 
or from any entity subject to transaction control, embargo, or 
sanctions pursuant to 31 CFR Chapter V.
    (b) Procedure.
    (1) The Headquarters or field installation technical office 
requiring a foreign contract acquisition meeting any of the criteria 
listed in paragraph (a) of this section must submit the following 
information to the Headquarters Office of External Relations (Code I) 
through the contracting officer and the Headquarters Office of 
Procurement (Code HS)--
    (i) The name of the foreign entity, the country or countries 
involved, and the purpose of the contract;
    (ii) The Space Act agreement(s) involved, if any;
    (iii) A description of the goods or technical data requiring prior 
written approval or the issuance of the license for their import or 
export from the Departments of Commerce, State, or Treasury; and
    (iv) The reason why the acquisition is being placed with a foreign 
entity.
    (2) All coordination required between NASA and the Departments of 
Commerce, State, and Treasury regarding foreign contract acquisitions 
shall be accomplished through the Headquarters Office of External 
Relations (Code I).
    (3) The lead-time for obtaining an export license is 60 to 90 days. 
Requests for Headquarters clearance should be initiated as early as 
possible.


1825.7003  International agreements.

    Office of Procurement (Code HS) concurrence is required for all 
Memoranda of Understanding with foreign entities and for other types of 
international agreements which contemplate the procurement of goods or 
services using U.S. appropriated funds. No Code H concurrence is 
required for agreements which are done solely on a cooperative basis.

PART 1852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    4. Add section 1852.225-8 to read as follows:


1852.225-8  Duty-free entry of space articles.

    As prescribed in 1825.1101(e), add the following paragraph (k) to 
the basic clause at FAR 52.225-8:

    (k) The following supplies will be given duty-free entry:
[Insert the supplies that are to be accorded duty-free entry.]
(End of addition)


    5. Amend the introductory text of section 1852.225-70 and Alternate 
I to section 1852.225-70 by deleting ``1825.970-2'' and adding 
``1825.1103-70(b)'' in its place.


1852.225-71 and 1852.225-7  [Removed]

    6. Remove sections 1852.225-71 and 1852.225-73.

PART 1853--FORMS

    7. Add Section 1853.225 to read as follows:


1853.225  Foreign Acquisition (Customs Form 7501).

    Customs Form 7501, Entry Summary. Prescribed in 1825.903 and 14 CFR 
1217.104.
[FR Doc. 00-4387 Filed 2-24-00; 8:45 am]
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