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empts amounts received or accrued under any 4 and 5, the contracwi
contract or subcontract for any of the following:

with the Board in order to obtain exempuan. 1. A standard commercial article;

The contractor is not required to file an applica2. An article which is identical in every material

tion for exemption of any of these items, but respect with a standard commercial article (hereinafter in this subpart referred to as a "like article");

may elect to do so; or the contractor may waive 3. An article in a standard commercial class of the exemption expressly with respect to all or articles;

any of such items. The contractor shall not be 4. A standard commercial service;

entitled to claim exemption for any like articles, 5. A service which is reasonably comparable with a standard commercial service (hereinafter in this sub

standard commercial services, or like services, part referred to as a "like service").

to which the 3-month period prescribed in secThe exemption of item 1 is applied by the con

tion 106(e)(3)(B)(i) of the act is applicable, tractor itself, without application to the Board, and in the same application to claim exemption or it may be waived. With respect to items 2, 3, for articles in one or more standard commercial

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342.1

(d) Time for filing.--Except as set forth in thereupon begin to run, except as proviuum-
$ 1467.22(e) (1), every contractor who claims the succeeding paragraphs of this section,
that the exemption provided in paragraph (1) (b) When application is defective.--If,
(B) or (C) or paragraph (2) of section 106(e) within sixty (60) days after the filing of an
of the act is applicable to any of its receipts or Application for Commercial Exemption, the
accruals in a fiscal year, under prime contracts

Board sends to the contractor a written notice with the Departments or subcontracts, shall file that such application is in the opinion of the an Application for Commercial Exemption as Board incomplete or otherwise defective in any soon as practicable after the close of such fiscal material respect, and that exception has been year, but in no event later than the date upon

taken thereto in such respect, the filing of such which the contractor is required to file the application will not be considered to be the filStandard Form of Contractor's Report with ing of the information and data prescribed in respect to such fiscal year. If the Application paragraph (3) of section 106(e) of the act, suffor Commercial Exemption is filed on or before

ficient to start the running of the applicable 3the date upon which the contractor is required month or 6-month period prescribed in said to file the Standard Form of Contractor's Re- paragraph, and such period will not begin to port with respect to such fiscal year, the con- run until such defect has been corrected by the tractor shall not be required to file the Standard filing of the information or data specified in the Form of Contractor's Report until the date

notice of the Board. If the contractor fails to prescribed in g 1470.3(d) of this subchapter

correct the defect within a reasonable time after for the filing thereof or until the thirtieth day such notice, the Board may deny the application after the Board sends to the contractor written of the contractor for exemption. notice of the action of the Board on the claim (c) When additional information is refor exemption, whichever occurs later. If, as quired.If, within sixty (60) days after the fila result of such action of the Board, the re- ing of an Application for Commercial Exempnegotiable receipts or accruals of the contractor tion, the Board sends to the contractor a written and all related contractors in such fiscal year request to furnish specific additional informaaggregate less than the minimum amount for tion or data to support the claim for exemption, renegotiation prescribed in section 105(f) (1) the filing of such application will not be considof the act, the contractor shall not be required ered to be a filing of information and data sufto file the Standard Form of Contractor's Re- ficient to start the running of the applicable port but shall be entitled, if it elects so to do, 3-month or 6-month period prescribed in section to file the Statement of Non-Applicability with

106(e) (3) of the act, and such period will respect to such fiscal year.

not begin to run until a complete and satis1467.32 Duty to furnish additional infor

factory filing of the additional information or mation. The filing of an Application for

data so requested has been made. Any such addi

tional information or data, when filed, will be Commercial Exemption in accordance with the

deemed a part of the Application for Commerprovisions of this section will not relieve any

cial Exemption. If such additional filing is comprime contractor or subcontractor of the duty

plete and satisfactory, the Board as soon as to furnish any other information, records or

possible thereafter will send to the contractor a data which are determined by the Board to be

written notice that the additional information necessary to carry out its responsibilities under

and data is complete and satisfactory and that section 106(e) of the act.

the applicable 3-month or 6-month period began 1467.33 Effect of filing Application for to run on the date of such additional filing. If Commercial Exemption.-- (a) In general. the contractor fails to furnish the additional inWhen the Application for Commercial Exemp- formation or data within a reasonable time tion is filed, it will be considered that the con- after the request therefor, the Board may deny tractor has filed the information and data the application of the contractor for the prescribed in paragraph (3) of section 106(e) exemption. of the act, and the applicable 3-month or 6- (d) When material mis-statement occurs.month period prescribed in said paragraph will If the Application for Commercial Exemption

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filed by any contractor contains a mis-statement plies, the Board will give written notice of such
of a material fact, the applicable 3-month or determination to the contractor and will advise
6-month period prescribed in section 106(e) the contractor that its sales of such article or
(3) of the act will not begin to run until such service in the fiscal year under review are not
mis-statement has been corrected, with or with- exempt under section 106(e) of the act.
out any notice or request from the Board, and 1467.37 Exemption not applicable to re-
notwithstanding that the Board previously may

lated subcontracts.The exemption provided
have notified the contractor that such appli- in section 106(e) of the act is limited to prime
cation had been accepted as complete and contracts and subcontracts meeting the condi-
satisfactory.

tions prescribed in said subsection (e). It does 1467.34 Grant of exemption.--If, within not extend to related subcontracts. With rethe applicable 3-month or 6-month period pre- spect to any such subcontracts, the exemption, scribed in section 106(e) (3) of the act, com- if claimed, must be independently established. puted in accordance with the provisions of Section 106(a)(7) of the act, which exempts § 1467.33, or within any longer period stipulated subcontracts under certain exempt prime conby mutual agreement, the Board determines tracts or subcontracts, does not apply to subthat any article or service for which exemption contracts under prime contracts or subcontracts has been claimed by the contractor in the Ap- exempted under section 106(e) of the act (see plication for Commercial Exemption is an $ 1453.6 of this subchapter). article or service to which the exemption applies, the Board will give written notice of such

SUBPART C-FISCAL YEARS ENDING AFTER determination to the contractor and will advise

OCTOBER 24, 1968 the contractor that its sales of such article or

1467.41 Statutory provision.—The regulaservice in the fiscal year under review are ex

tions in this subpart apply only with respect to empt under section 106(e) of the act. Except

amounts received or accrued in fiscal years endas provided in $ 1467.33(d), such exemption

ing after October 24, 1968. Such regulations imshall be fixed and final.

plement the provisions of section 106(e) of the 1467.35 Accrual of exemption by failure

act as amended by Public Law 90-634, which of Board to act. If, within the applicable

reads as follows: 3-month or 6-month period prescribed in section

(e) Mandatory exemption for standard commercial 106(e) (3) of the act, computed in accordance

articles and services.__(1) Articles and services.--The with the provisions of $ 1467.33, or within any

provisions of this title shall not apply to amounts relonger period stipulated by mutual agreement, ceived or accrued in a fiscal year under any contract the Board fails to determine that any article or subcontract for any article or service which (with or service for which exemption has been claimed respect to such fiscal year) is

(A) a standard commercial article; or by the contractor in the Application for Com

(B) a service which is a standard commercial servmercial Exemption is not an article or service

ice or is reasonably comparable with a standard comto which the exemption applies, the sales of such

mercial service. article or service in the fiscal year under review (2) Classes of articles. The provisions of this title shall be exempt under section 106(e) of the act shall not apply to amounts received or accrued in a and, except as provided in § 1467.33(d), such fiscal year under any contract or subcontract for an

article which (with respect to such fiscal year) is an exemption shall be fixed and final.

article in a standard commercial class of articles. 1467.36 Denial of exemption. If, within

(3) Applications.--Paragraph (1)(B) and parathe applicable 3-month or 6-month period pre

graph (2) shall apply to amounts received or accrued scribed in section 106(e) (3) of the act, com

in a fiscal year under any contract or subcontract for puted in accordance with the provisions of

an article or service only if $ 1467.33, or within any longer period stipulated (A) the contractor or subcontractor at his election by mutual agreement, the Board determines files, at such time and in such form and detail as the that any article or service for which exemption

Board shall by regulations prescribe, an application

containing such information and data as may be rehas been claimed by the contractor in the Appli

quired by the Board under its regulations for the cation for Commercial Exemption is not an

purpose of enabling it to make a determination under article or service to which the exemption ap- the applicable paragraph, and

(B) the Board determines that such article or serv- (iii) at least 55 percent of the aborcu
ice is, or fails to determine that such article or service accruals in such fiscal year by the contractor or sub-
is not, an article or service to which such paragraph contractor from the performance of such service and
applies, within the following periods after the date such standard commercial service are not (without
of filing such application :

regard to this subsection) subject to this title ; and
(i) in the case of paragraph (1) (B), three months ; (F) the term "standard commercial class of articles"
(ii) in the case of paragraph (2), six months; or means, with respect to any fiscal year, two or more

(iii) in either case, any longer period stipulated by articles with respect to which the following conditions mutual agreement.

are met: (4) Definitions.--For the purposes of this subsec- (i) at least one of such articles either is customarily tions.--

maintained in stock by the contractor or subcontractor (A) the term "article" includes any material, part, or is offered for sale in accordance with a price schedule component, assembly, machinery, equipment, or other regularly maintained by the contractor or subconpersonal property ;

tractor, (B) the term "standard commercial article” means, (ii) all of such articles are of the same kind and with respect to any fiscal year, an article

manufactured of the same or substitute materials (i) which either is customarily maintained in stock (without necessarily being of identical specifications), by the contractor or subcontractor or is offered for (iii) the price of each of such articles under any sale in accordance with a price schedule regularly contract or subcontract subject to this title is not in maintained by the contractor or subcontractor,

excess of the lowest price at which such article is sold (ii) the price of which under any contract or sub- in similar quantity by the contractor or subcontractor contract subject to this title is not in excess of the for civilian industrial or commercial use, except for lowest price at which such article is sold in similar any excess attributable to the cost of accelerated dequantity by the contractor or subcontractor for civil- livery or other significantly different circumstances, ian industrial or commercial use, except for any ex- (iv) all of such articles are sold at reasonably comcess attributable to the cost of accelerated delivery or parable prices, and other significantly different circumstances, and

(v) at least 55 percent of the aggregate receipts or (iii) from the sales of which by the contractor or accruals in such fiscal year by the contractor or subsubcontractor at least 55 percent of the receipts or contractor from sales of all such articles are not accruals in such fiscal year are not (without regard to (without regard to this subsection and subsection (c) this subsection and subsection (c) of this section) sub- of this section) subject to this title. ject to this title;

1467.42 Application of exemption..(a) (C) the term “service" means any processing or Effective date.-The exemption provided in secother operation performed by chemical, electrical,

tion 106(e) of the act (as amended by Public physical, or mechanical methods directly on materials owned by another person;

Law 90-634), and the regulations contained in (D) the term “standard commercial service" means, this subpart, are applicable only with respect to with respect to any fiscal year, a servicemo

fiscal years ending after October 24, 1968. Refer(i) the price of which under any contract or subcon

ences in this subpart to section 106(e) of the tract subject to this title is not in excess of the lowest

act mean said section as so amended. The exprice at which such service is performed under similar circumstances by the contractor or subcontractor for

emption applies to amounts received or accrued civilian industrial or commercial purposes, and in any such fiscal year under prime contracts

(ii) from the performance of which by the con- with the Departments and subcontracts, withtractor or subcontractor at least 55 percent of the

out regard to whether such prime contracts or receipts or accruals in such fiscal year are not (without

subcontracts were made before or during such regard to this subsection) subject to this title ;

(E) a service is, with respect to any fiscal year, "reasonably comparable with a standard commercial (b) Scope. Section 106(e) of the act exservice" only if

empts amounts received or accrued under (i) such service is of the same or a similar kind, any contract or subcontract for any of the perforined with the same or similar materials, and has following: the same or a similar result, without necessarily involv- (1) A standard commercial article; ing identical operations, as a standard commercial serv

(2) An article in a standard commercial class ice from the performance of which the contractor or

of articles; subcontractor has receipts or accruals in such fiscal

(3) A standard commercial service; year,

(4) A service which is reasonably compar(ii) the price of such service under any contract or

able with a standard commercial service (heresubcontract subject to this title is not in excess of the

inafter in this subpart referred to as a “like lowest price at which such service is performed under

service”). similar circumstances by the contractor or subcontractor for civilian industrial or commercial purposes, and The exemption of Item 1 may be applied by a

353

fiscal year.

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