Agriculture Acquisition Regulation: Miscellaneous Amendments (AGAR Case 2004-01), 41-50 [04-28439]

Download as PDF Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations PART 352—SOLICITATION PROVISIONS AND CONTRACT CLAUSES Subpart 352.2—Texts of Provisions and Clauses 352.224–70 [Amended] 17. In section 352.224–70, remove paragraphs (b) and (f) and redesignate paragraph (c) as (b), paragraph (d) as (c), paragraph (e) as (d), paragraph (g) as (e), paragraph (h) as (f), and paragraph (i) as (g). I 352.270–8 [Amended] 18.–20. Amend section 352.270–8 in paragraph (a) by removing ‘‘Office for Protection from Research Risks (OPRR), National Institutes of Health,’’ and adding ‘‘Office for Human Research Protections (OHRP)’’ in its place; amend the last sentence of paragraph (d) in section 352.270–8 by removing ‘‘National Institutes of Health’’ and replacing with ‘‘OpDiv’’; and remove the last sentence of paragraph (e) in section 352.270–8 and add ‘‘The contracting officer will direct the offeror/contractor to the OHRP IRB Registration and Assurance Filing website, found at https://www.hhs.gov/ohrp/ or to the physical address if the offeror/contractor cannot access the Internet. HHS regulations for the protection of human subjects may be found at: https:// www.access.gpo.gov/nara/cfr/ waisidx_01/45cfr46_01.html’’ in its place. I the contractor expressly agrees to waive any rights to invoke the jurisdiction of local national courts where this contract is performed and agrees to accept the exclusive jurisdiction of the United States Armed Services Board of Contract Appeals and the United States Court of Federal Claims for hearing and determination of any and all disputes that may arise under the Disputes clause of this contract. [FR Doc. 04–27697 Filed 12–30–04; 8:45 am] BILLING CODE 4151–17–P DEPARTMENT OF AGRICULTURE Office of Procurement and Property Management 48 CFR Parts 401, 403, 404, 405, 406, 407, 408, 410, 411, 413, 414, 415, 416, 419, 422, 423, 424, 425, 426, 428, 432, 433, 434, 436, 439, 445, 450, 452, and 453 RIN 0599–AA11 Agriculture Acquisition Regulation: Miscellaneous Amendments (AGAR Case 2004–01) Office of Procurement and Property Management, USDA. ACTION: Direct final rule. AGENCY: SUMMARY: The Department of Agriculture (USDA) is publishing technical amendments to the Agriculture Acquisition Regulation (AGAR) as a final rule. We use the direct final rule process to make noncontroversial changes to the AGAR. We 352.270–9 [Amended] are amending the AGAR to update organizational references to USDA I 21.–22. Amend section 352.270–9 by components; to update citations to removing the heading in paragraph (a) statutes and to Executive Orders; to reading ‘‘Notice to Offerors of Requirement for Adequate Assurance of update or clarify internal procedures; Protection of Vertebrate Animal Subjects and to reflect changes in the Federal Acquisition Regulation through Federal (Sep. 1985)’’ and adding ‘‘Notice to Offerors of Requirement for Compliance Acquisition Circular 2001–24. with the Public Health Service Policy on DATES: This rule will be effective on April 4, 2005, unless we receive written Humane Care and Use of Laboratory adverse comments or written notice of Animals (Revised 1986, Reprinted intent to submit adverse comments on 2000)’’ in its place; and amend section or before February 2, 2005. If adverse 352.270–9 by removing in the comments are received, USDA will undesignated paragraph under the publish a timely withdrawal of the rule heading ‘‘Office for Protection from in the Federal Register. Research Risks (OPRR),’’ and adding ‘‘Office of Laboratory Animal Welfare ADDRESSES: Please submit any adverse (OLAW)’’ in its place. comments, or a notice of intent to submit adverse comments, identified by I 23. Add new section 352.333–7001, to AGAR Case 2004–01 or Regulatory read as follows: Information Number (RIN) 0599–AA11, 352.333–7001 Choice of Law (Overseas). by any of the following methods: As prescribed in 333.215–70, use the • Federal eRulemaking Portal: https:// following clause: www.regulations.gov. Follow the instructions for submitting comments. Choice of Law (Overseas) • E-mail: joe.daragan@usda.gov. This contract shall be construed and Include AGAR Case 2004–01 or RIN interpreted in accordance with the 0599–AA11 in the subject line of the substantive laws of the United States of message. America. By the execution of this contract, VerDate jul<14>2003 14:40 Dec 30, 2004 Jkt 205001 PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 41 • Fax: (202) 720–8972. • Mail: U.S. Department of Agriculture, Office of Procurement and Property Management, Procurement Policy Division, STOP 9303, 1400 Independence Avenue, SW., Washington, DC 20250–9303. • Hand Delivery/Courier: U.S. Department of Agriculture, Office of Procurement and Property Management, Procurement Policy Division, Reporter’s Building, 300 7th Street, SW., Room 310A, Washington, DC 20024. All submissions received must include the agency name and AGAR Case number or RIN for this rulemaking. All comments received will be posted without change to https://www.usda.gov/ procurement/policy/agar.html, including any personal information provided. FOR FURTHER INFORMATION CONTACT: Joseph J. Daragan, (202) 720–5729. SUPPLEMENTARY INFORMATION: I. Background II. Procedural Requirements A. Executive Order Nos. 12866 and 12988 B. Regulatory Flexibility Act C. Paperwork Reduction Act D. Small Business Regulatory Enforcement Fairness Act E. Unfunded Mandates Reform Act F. Executive Order 13132: Federalism G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments I. Background The AGAR implements the Federal Acquisition Regulation (FAR) (48 CFR ch. 1) where further implementation is needed, and supplements the FAR when coverage is needed for subject matter not covered by the FAR. The AGAR is being revised to reflect changes in the FAR made by Federal Acquisition Circulars (FACs) 97–02 through 2001– 24 and to implement changes in USDA delegated authorities and internal procedures since October 2001. In this rulemaking document, USDA is making corrections to the AGAR as a direct final rule, since the corrections are noncontroversial and unlikely to generate adverse comment. The corrections are clerical or procedural in nature and do not affect the public. Rules that an agency believes are noncontroversial and unlikely to result in adverse comments may be published in the Federal Register as direct final rules. The Office of Procurement and Property Management published a policy statement in the Federal Register (63 FR 9158, February 24, 1998) notifying the public of its intent to use direct final rulemaking in appropriate circumstances. E:\FR\FM\03JAR1.SGM 03JAR1 42 Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations This rule makes the following changes to the AGAR: (a) Added parts. We are adding parts 410 and 439 to the AGAR. Part 410 is added to establish procedures for market research. Part 439 is added to incorporate supplementary guidance on USDA internal procedures for acquisition of information technology. (b) Added subparts. We have added the following subparts to the AGAR: (1) Subpart 404.2 is added to refer to internal procedures for entering Taxpayer Identification Number information into USDA’s financial system. (2) Subpart 404.11 is added to supplement FAR 4.11, Central Contractor Registration, by clarifying the contracting officer’s role in the registration process. (3) Subpart 425.6 is added to incorporate newly redesignated 425.602 (redesignated from 425.1002). (c) Revised part. Part 423 is revised to reflect amendments to the FAR, to establish agency procedures to implement FAR Part 23 as amended, to remove directions concerning a superseded recycling and waste prevention program, and to provide internal guidance concerning its successor affirmative procurement program. (d) Removed subparts. We have removed and reserved the following subparts: (1) Subpart 407.3 is removed and reserved pending revision to FAR subpart 7.3 and Departmental directives to conform to the procedures and policy of Office of Management and Budget Circular A–76 dated May 21, 2004. (2) Subpart 425.3 is removed and reserved to reflect an amendment to the FAR. (3) Subpart 425.4 is removed and reserved because it is no longer necessary to publicize redeterminations of the Trade Agreement Act dollar thresholds as a Departmental Notice. The information is readily available on the USDA procurement Web site. (4) Subpart 426.70 is removed and reserved because legislation establishing the program it implemented was repealed by Public Law 107–171, section 6201(a). AGAR provisions 452.226–70 through 452.226–72 are removed and reserved for the same reason. (5) Subpart 445.6 is removed and reserved. This subpart implemented a property-screening requirement that was removed from the FAR. (6) Subpart 450.1 is removed and reserved to reflect an amendment to the FAR. VerDate jul<14>2003 14:40 Dec 30, 2004 Jkt 205001 (e) Redesignated sections. We have moved the following sections as follows to reflect amendments to the structure of the FAR: (1) Paragraph (a) of 403.104–10 is redesignated 403.104–7, and paragraph (b) of 403.104–10 is removed. (2) Section 403.409 is redesignated 403.405, and the citation therein to the corresponding FAR segment is updated. (3) Section 411.105 is redesignated 411.106. (4) Section 432.905 is redesignated 432.904, and its heading is amended. (5) Section 432.906 is redesignated 432.007. (f) Amendments to organizational references. The following amendments reflect changes in organizational designations or delegations of authority: (1) In 401.301, ‘‘Food and Consumer Service’’ and ‘‘Office of Operations’’ are amended to read ‘‘Food and Nutrition Service’’, and ‘‘Departmental Administration’’, respectively. (2) Sections 404.403, 405.404–1, and 414.409–2 are amended to reflect the delegation of authority over classified information to the Personnel and Document Security Division, Office of Procurement and Property Management. (3) Subpart 408.7 is amended to reflect organizational changes and a change in organizational title within USDA’s Javits-Wagner-O’Day (JWOD) program. (4) Part 434 is amended to reflect the delegation of authority over information technology acquisition to the Chief Information Officer. (g) Paragraph (b) of 401.105–1 is revised to inform users that the AGAR is no longer available in loose-leaf form. An electronic version of the AGAR is available at USDA’s Procurement Homepage for downloading and reproduction. (h) Paragraph (c) of 401.105–1 is revised to reflect the cancellation of Office of Federal Procurement Policy Policy Letter 83–2. Citations to the ‘‘Hardin Statement of Policy’’ (36 FR 13804, July 24, 1971), to the Office of Federal Procurement Policy Act, 41 U.S.C. 418b, and to FAR 1.301 are added to refer to other policy and law governing amendments to the AGAR. (i) Section 401.170 is revised to update the Internet address for the USDA Procurement Homepage. (j) Section 401.201–1 is amended to improve clarity. (k) Section 401.371 is amended to specify that AGAR Advisories are only available in electronic format. (l) Section 403.502 is amended to correct a citation to the Anti-Kickback Act (41 U.S.C. 51–58). (m) Subpart 404.6 is amended to remove references to the USDA PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 Procurement Reporting System (PRS). PRS was a feeder system that has been replaced by the Federal Procurement Data System-Next Generation (FPDS– NG). Subpart 404.6 also is amended to implement changes in reporting required by FAR 4.602, Federal Procurement Data System. (n) Section 404.870 is revised, and 404.870–1 and 404.870–2 are removed. Guidance on document numbering will be provided by AGAR Advisories until USDA’s Integrated Acquisition System is fully implemented. (o) Section 405.403 is amended to reflect an amendment to the FAR. (p) Section 406.501 is revised to reflect a change in organizational title and to add an internal notification requirement. (q) Section 407.170 is amended to remove reference to a cancelled Departmental Directive. (r) Section 408.705 is amended as an editorial change, adopting the phrase ‘‘performance plan’’ in preference to the phrase ‘‘action plan’’. (s) Section 408.1103 is amended to add references to alternative fuels and tires with recovered material content. (t) Section 411.101 is added to specify the level at which a determination that a voluntary standard is inconsistent with law or otherwise impracticable may be made. (u) Sections 413.307 and 453.213 are amended to allow the use of Optional Forms 347 and 348 when a simplified acquisition utilizes the USDA Integrated Acquisition System. (v) Paragraph (d) of 415.207 is amended to update a citation to FAR 3.104–4. (w) Section 416.505 is amended to update an organizational title and to require Heads of Contracting Activities to designate task order ombudsmen for their contracting activities. (x) Subpart 419.2 is revised to include HubZone and veteran-owned small business concerns, to require small business coordinators to review large contract requirements for bundling, and to remove fixed due dates for subcontract reports, because these dates may vary. (y) The heading of 419.508 is amended to reflect an amendment to the FAR. (z) The heading of subpart 419.6 is amended to reflect an amendment to the FAR. (aa) Section 422.604–2 is amended to update a citation to FAR 22.604–2(b). (ab) Paragraph (b) of 422.807 is amended to reflect an amendment to FAR 22.807. (ac) Subpart 422.13 is revised as follows: E:\FR\FM\03JAR1.SGM 03JAR1 Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations (1) The heading of subpart 422.13 is amended to reflect an amendment to the FAR. (2) Section 422.1303 is redesignated 422.1305 and revised to reflect an amendment to the FAR. (3) Section 422.1306 is redesignated 422.1308, and the corresponding citation to the FAR amended, to reflect an amendment to the FAR. (ad) The heading of subpart 422.14 is amended to reflect an amendment to the FAR. (ae) Section 422.1403 is amended to reflect an amendment to the FAR. (af) Section 424.203 is amended to remove unnecessary language. (ag) Subpart 425.1 is revised to reflect amendments to the FAR. (ah) The heading of 425.202 is amended, and the citation therein to the FAR is amended, to reflect an amendment to the FAR. (ai) Subpart 425.6 is added to incorporate material currently in subpart 425.10, in order to reflect an amendment to the FAR. Section 425.1002 is redesignated 425.602, its heading is amended, and the citation therein to the FAR is amended. (aj) Subpart 425.9 is redesignated 425.10, and its heading is amended, to reflect an amendment to the FAR. (ak) Section 425.901 is redesignated 425.1001, and the citation therein to the FAR is amended, to reflect an amendment to the FAR. Subpart 425.9 is removed and reserved. (al) The heading of subpart 428.1 is amended to reflect an amendment to the FAR. (am) The heading of subpart 428.2 is amended to reflect an amendment to the FAR. (an) Section 432.905 is redesignated 432.904, and its heading is amended, to reflect an amendment to the FAR. (ao) Section 432.906 is moved to 432.007 to reflect an amendment to the FAR. (ap) Section 433.104 is removed and reserved to simplify USDA’s internal protest procedures. (aq) Section 452.211–70 is amended to correct an error in citation to 452.211–71. (ar) Section 452.232–70 is amended to correct a typographical error. (as) Section 452.236–78 is removed and reserved. This section referred to standard specifications that are now obsolete. II. Procedural Requirements A. Executive Orders Nos. 12866 and 12988 USDA prepared a work plan for this regulation and submitted it to the Office VerDate jul<14>2003 14:40 Dec 30, 2004 Jkt 205001 of Management and Budget (OMB) pursuant to Executive Order No. 12866. OMB determined that the rule was not significant for the purposes of Executive Order No. 12866. Therefore, the rule has not been reviewed by OMB. USDA has reviewed this rule in accordance with Executive Order No. 12988, Civil Justice Reform. The rule meets the applicable standards in section 3 of Executive Order No. 12988. B. Regulatory Flexibility Act USDA reviewed this rule under the Regulatory Flexibility Act, 5 U.S.C. 601– 611, which requires preparation of a regulatory flexibility analysis for any rule which is likely to have significant economic impact on a substantial number of small entities. USDA certifies that this rule will not have a significant economic effect on a substantial number of small entities, and, therefore, no regulatory flexibility analysis has been prepared. However, comments from small entities concerning parts affected by the proposed rule will be considered. Such comments must be submitted separately and cite 5 U.S.C. 609 (AGAR Case 2004–01) in correspondence. C. Paperwork Reduction Act No information collection or recordkeeping requirements are imposed on the public by this rule. Accordingly no OMB clearance is required by the Paperwork Reduction Act, 44 U.S.C. Chapter 35, or OMB implementing regulations at 5 CFR part 1320. D. Small Business Regulatory Enforcement Fairness Act A report on this rule has been submitted to each House of Congress and the Comptroller General in accordance with the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 801–808. This rule is not a major rule for purposes of the Act. E. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531–1538, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. USDA has determined that this rule does not contain a Federal mandate. USDA has also determined that this rule would not significantly or uniquely affect small governments. Accordingly, the rule is not subject to the requirements of Title II of UMRA. F. Executive Order 13132: Federalism Executive Order 13132, Federalism (64 FR 43255, August 10, 1999), PO 00000 Frm 00041 Fmt 4700 Sfmt 4700 43 imposes requirements in the development of regulatory policies that have federalism implications. ‘‘Policies that have federalism implications’’ are defined in the Executive Order to include regulations that have ‘‘substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.’’ USDA has determined that this rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The rule will not impose substantial costs on States and localities. Accordingly, this rule is not subject to the procedural requirements of Executive Order 13132 for regulatory policies having federalism implications. G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 9, 2000), imposes requirements in the development of regulatory policies that have tribal implications. Executive Order 13175 defines ‘‘policies that have tribal implications’’ as those having ‘‘substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.’’ USDA has determined that this rule does not have tribal implications and, therefore, the consultation and coordination requirements of Executive Order 13175 do not apply to this rule. List of Subjects in 48 CFR Parts 401, 403, 404, 405, 406, 407, 408, 410, 411, 413, 414, 415, 416, 419, 422, 423, 424, 425, 426, 428, 432, 433, 434, 436, 439, 445, 450, 452, and 453 Acquisition regulations, Government contracts, Government procurement, Procurement. I For the reasons set out in the preamble, 48 CFR Chapter 4 is amended as set forth below: I 1. The authority citation for parts 401, 403, 404, 405, 406, 407, 408, 411, 413, 414, 415, 416, 419, 422, 424, 425, 426, 428, 432, 433, 436, 445, 450, 452, and 453 continues to read as follows: Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c). E:\FR\FM\03JAR1.SGM 03JAR1 44 Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations PART 401—AGRICULTURE ACQUISITION REGULATION SYSTEM USDA Procurement Web site at https:// www.usda.gov/procurement/. 2. Revise paragraphs (b) and (c) of 401.105–1 to read as follows: PART 403—IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST I 401.105–1 Publication and code arrangement. * * * * (b) The AGAR and its subsequent changes are published in: (1) Daily issues of the Federal Register, (2) Cumulative form in the CFR, and, (3) Electronic form on the USDA Departmental Administration Procurement Homepage (see 401.170). (c) Section 553(a)(2) of the Administrative Procedure Act, 5 U.S.C. 553, provides an exception from the standard public rulemaking procedures to the extent that the rule involves a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts. In 1971, Secretary of Agriculture Hardin announced a voluntary partial waiver from the Administrative Procedure Act exception, and USDA agencies generally are required to provide notice and an opportunity for public comment on proposed rules (36 FR 13804, July 24, 1971). The AGAR has been promulgated and may be revised from time to time in accordance with the rulemaking procedures of the Administrative Procedure Act. The USDA also is required to publish for public comment procurement regulations in the Federal Register, pursuant to the Office of Federal Procurement Policy Act (41 U.S.C. 418b), and FAR 1.301. I 3. Amend 401.170 to remove ‘‘URL https://www.usda.gov/da/procure.html’’ and add, in its place, ‘‘URL https:// www.usda.gov/procurement/’’. I 4. Revise paragraph (b) of 401.201–1 to read as follows: 401.201–1 The two councils. * * * * * (b) The Procurement Policy Division will coordinate proposed FAR revisions within USDA. I 5. Amend 401.301 as follows: I a. Remove ‘‘Food and Consumer Service’’ and add, in its place, ‘‘Food and Nutrition Service’’. I b. Remove ‘‘Office of Operations’’ and add, in its place, ‘‘Departmental Administration’’. I 6. Add paragraph (d) to 401.371, to read as follows: 401.371 AGAR Advisories. * * * * * (d) AGAR Advisories are only available in electronic format on the VerDate jul<14>2003 14:40 Dec 30, 2004 Jkt 205001 7. Remove ‘‘(a)’’ and paragraph (b) in 403.104–10, and redesignate 403.104–10 as 403.104–7. I 8. Amend 403.409 to remove ‘‘FAR 3.409(b)’’, and add, in its place, ‘‘FAR 3.405(b)’’, and redesignate 403.409 as 403.405. I 9. Amend 403.502 to remove ‘‘(41 U.S.C. 51–54)’’, and add, in its place, ‘‘(41 U.S.C. 51–58)’’. I * PART 404—ADMINISTRATIVE MATTERS Advisories issued by the Office of Procurement and Property Management. (b) Separate submission of the TIN or type of organization information, in accordance with 52.204–3 or 52.212–3, is not required for contractors registered in the Central Contractor Registration (CCR) database. I 12. Revise 404.403 to read as follows: 404.403 Responsibilities of contracting officers. When a proposed solicitation is likely to require access to classified information, the contracting officer shall consult with the Information Security Staff, Personnel and Document Security Division, Office of Procurement and Property Management, regarding the procedures that must be followed. 10. Revise the table of contents to read as follows: 404.601 Subpart 404.2—Contract Distribution Sec. 404.203 Taxpayer identification information. I I I [Removed and Reserved] 13. Remove and reserve 404.601. 14. Revise 404.602 to read as follows: 404.602 Federal Procurement Data System. Subpart 404.8—Government Contract Files 404.870 Document numbering system. (a) Contracting activities shall report contract actions into the Federal Procurement Data System in accordance with the instructions issued or distributed by the SPE. (b) The unique identifier for each contract action reported to the Federal Procurement Data System shall begin with the two-letter USDA Agency Prefix ‘‘AG’’. I 15. Revise subpart 404.8 to read as follows: Subpart 404.11—Central Contractor Registration 404.1103 Procedures. Subpart 404.8—Government Contract Files Subpart 404.4—Safeguarding Classified Information Within Industry 404.403 Responsibilities of contracting officers. Subpart 404.6—Government Contract Reporting 404.601 [Reserved] 404.602 Federal Procurement Data System. Subpart 404.70—Precontract Notices 404.7001 Solicitation provision. Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c). 11. Add subpart 404.2 to read as follows: I Subpart 404.2—Contract Distribution 404.203 Taxpayer identification information. (a) If the contractor furnishes taxpayer identification number (TIN) and type of organization information pursuant to solicitation provision 52.204–3 or 52.212–3, and the USDA Office of the Chief Financial Officer, Controller Operations Division, New Orleans will be the payment office, that information will be entered into the Foundation Financial Information System (FFIS) in accordance with FFIS Vendor Table Maintenance Procedures set forth in FFIS Bulletins issued by the Office of the Chief Financial Officer and AGAR PO 00000 Frm 00042 Fmt 4700 Sfmt 4700 404.870 Document numbering system. The SPE shall issue AGAR Advisories to establish and maintain a numbering system for USDA contracts, modifications, and delivery/task orders. USDA contracting offices shall number contracts, modifications, and orders in accordance with this numbering system. I 16. Add subpart 404.11 to read as follows: Subpart 404.11—Central Contractor Registration 404.1103 Procedures. (a) Contracting officers and other USDA employees shall not enter information into the Central Contractor Registration (CCR) database on behalf of prospective contractors. Prospective contractors who are unable to register on-line at the CCR Web site should be advised to submit a written application to CCR for registration into the CCR database. USDA employees may assist prospective contractors by downloading E:\FR\FM\03JAR1.SGM 03JAR1 Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations the registration template, CCR handbook, and other information from the CCR Web site and providing copies of that material to requesters. Written applications for registration may be submitted to Department of Defense Central Contractor Registration, 74 Washington Ave., Suite 7, Battle Creek, MI 49017–3084. (b) Verification that the prospective contractor is registered in the CCR database shall be done via the CCR Internet Web site https://www.ccr.gov. This verification process using the CCR Web site applies both to acquisitions executed using USDA legacy procurement systems and the USDA Integrated Acquisition System. (c) AGAR Advisories issued by the Office of Procurement and Property Management will address internal procedures for integration of contractor information in the CCR database with the USDA FFIS payment system. PART 405—PUBLICIZING CONTRACT ACTIONS 405.403 [Amended] 17. Amend 405.403 to remove ‘‘FAR 5.403(a)’’ and add, in its place, ‘‘FAR 5.403’’. I 18. Revise paragraph (b) of 405.404–1 to read as follows: I 405.404–1 Release procedures. * * * * * (b) Classified information shall not be released without the approval of the Information Security Staff, Personnel and Document Security Division, Office of Procurement and Property Management. Departmental Manuals and Regulations (3400 series) contain guidance on classified information. PART 406—COMPETITION REQUIREMENTS I 19. Revise 406.501 to read as follows: 406.501 PART 407—ACQUISITION PLANNING 20. Revise 407.170 to read as follows: 407.170 Advance acquisition plans. Each HCA shall maintain an advance acquisition planning system. VerDate jul<14>2003 14:40 Dec 30, 2004 I 21. Remove and reserve subpart 407.3. Jkt 205001 Wagner-O’Day Act Procurement List in order to achieve USDA’s goal to increase participation in this program. 410.002 PART 408—REQUIRED SOURCES OF SUPPLIES AND SERVICES Subpart 408.7—Amended Procedures. Market research must include obtaining information on the commercial quality assurance practices as an alternative for Government inspection and testing prior to tender for acceptance. 22. Amend subpart 408.7 to remove the word ‘‘Advocate’’ wherever it appears and add, in its place, the word ‘‘Liaison.’’ I 23. Revise 408.701 to read as follows: PART 411—DESCRIBING AGENCY NEEDS 408.701 Definitions. I Committee Member is the Presidential appointee representing USDA as a member of the Committee for Purchase from People Who Are Blind or Severely Disabled. Organization head is the Under Secretary or Assistant Secretary of a mission area or the head of a USDA staff office. 408.705 [Amended] 24. Amend 408.705 to remove the word ‘‘action’’ and add, in its place, the word ‘‘performance.’’ I 25. Revise 408.1103 to read as follows: I 408.1103 Contract requirements. If the requirement includes the need for the vendor to provide operational maintenance such as fueling, lubrication, or other fluid changes or replenishment, the contracting officer shall include in the contract: (1) A requirement for the use of fluids and lubricants containing the maximum available amounts of recovered materials, and alternative fuels whenever available; and (2) A preference for retreaded tires meeting the Federal retread specifications, tires with the maximum recovered material content, or retreading services for the tires on the vehicle. PART 410—MARKET RESEARCH Requirements. (a) The Chief, Procurement Policy Division, Office of Procurement and Property Management, has been designated as the Competition Advocate for USDA. (b) Each HCA shall designate a competition advocate for the contracting activity. The HCA shall forward a copy of the designation memorandum to the Competition Advocate for USDA. I Subpart 407.3—[Removed and Reserved] 45 26. Add new Part 410, to read as follows: I Sec. 410.001 410.002 I 27. Add new 411.101, as follows: 411.101 Order of precedence for requirements documents. (a) Office of Management and Budget (OMB) Circular A–119 establishes a Federal policy requiring the use of voluntary consensus standards in lieu of government-unique standards except where inconsistent with law or otherwise impractical. (b) The HCA is authorized to submit the determination required by OMB Circular A–119 that a voluntary standard is inconsistent with law or otherwise impracticable. The HCA must submit the determination to OMB through the National Institute of Standards and Technology in accordance with the Circular with a copy provided to the SPE. I 28. Redesignate 411.105 as 411.106. PART 413—SIMPLIFIED ACQUISITION PROCEDURES I 29. Revise 413.307 to read as follows: 413.307 Forms. Form AD–838, Purchase Order, is prescribed for use by USDA in lieu of Optional Forms (OFs) 347 and 348 except that use of the OF 347 and OF 348 is authorized when utilizing the USDA Integrated Acquisition System. PART 414—SEALED BIDDING Policy. Procedures. 30. Revise 414.409–2 to read as follows: Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c) I 410.001 414.409–2 Policy. In addition to those uses listed in FAR 10.001, agencies must use the results of market research to— (a) Ensure the minimum use of hazardous or toxic materials; (b) Ensure the maximum use of biobased products and biofuels; and (c) Identify products and services on or eligible for addition to the Javits- PO 00000 Frm 00043 Fmt 4700 Sfmt 4700 Award of classified contracts. Disposition of classified information shall be in accordance with Departmental Regulation and Manual (3400 Series) and in accordance with direction issued by the Information Security Staff, Personnel and Document Security Division, Office of Procurement and Property Management. E:\FR\FM\03JAR1.SGM 03JAR1 46 Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations PART 415—CONTRACTING BY NEGOTIATION 415.207 [Amended] 31. In paragraph (d) of 415.207, remove ‘‘FAR 3.104–5’’, and add, in its place, ‘‘FAR 3.104–4’’. I PART 416—TYPES OF CONTRACTS 32. Revise paragraphs (a) and (b) of 416.505 to read as follows: I 416.505 Ordering. (a) The Chief, Procurement Policy Division, Office of Procurement and Property Management, has been designated as the Departmental Task Order Ombudsman. (b) Each HCA shall designate a task order ombudsman for the contracting activity. The HCA shall forward a copy of the designation memorandum to the Departmental Task Order Ombudsman. Contracting activity ombudsmen shall review and resolve complaints from contractors concerning task or delivery orders placed by the contracting activity. * * * * * PART 419—SMALL BUSINESS PROGRAMS 33.–35. Revise subpart 419.2 to read as follows: I Subpart 419.2—Policies Sec. 419.201 General policy. 419.201–70 Office of Small and Disadvantaged Business Utilization (OSDBU). 419.201–71 Small business coordinators. 419.201–73 Reports. 419.201 General policy. It is the policy of USDA to provide maximum practicable contracting and subcontracting opportunities to small business (SB), small disadvantaged business (SDB), HUBZone small business, women-owned business (WOB), veteran-owned small business (VOSB), and service-disabled veteranowned small business (SDVOSB) concerns. 419.201–70 Office of Small and Disadvantaged Business Utilization (OSDBU). The Office of Small and Disadvantaged Business Utilization (OSDBU) develops rules, policy, procedures and guidelines for the effective administration of USDA’s small business program that includes all categories named under 419.201. 419.201–71 Small business coordinators. The head of the contracting activity (HCA) or a representative of the HCA VerDate jul<14>2003 14:40 Dec 30, 2004 Jkt 205001 shall designate in writing a small business coordinator in each contracting office. Supervisors of small business coordinators are encouraged to provide sufficient time for the coordinators to carry out their small business program duties. Coordinators’ duties shall include, but not be limited to, the following: (a) Reviewing each proposed acquisition expected to exceed the simplified acquisition threshold prior to its solicitation. The coordinator shall: (1) Recommend section 8(a), HUBZone, or SDVOSB action and identify potential contractors, or (2) Identify available SDB, WOB, and VOSB to be solicited by competitive procedures. Coordinators shall document the contract file with recommendations made and actions taken. (b) Participating in goal-setting procedures and planning activities and establishing aggressive SDB, WOB, and SDVOSB goals based on the annual review of advance acquisition plans. (c) Participating in the review of those contracts which require the successful offeror to submit written plans for the utilization of small businesses as subcontractors to include all preference program areas in 419.201. (d) Ensuring that purchases exceeding $2,500 and not exceeding the simplified acquisition threshold are reserved exclusively for small businesses, including all preference program areas named in 419.201. This policy shall be implemented unless the contracting officer is unable to obtain offers from two or more small business concerns that are competitive with market prices and in terms of quality and delivery of the goods or services being purchased. (e) Maintaining comprehensive source listings of small businesses. (f) Upon written request, providing small businesses (in the preference program areas named in 419.201) the bidders’ mailing lists of individuals receiving solicitations which will contain the subcontracting clause entitled ‘‘Utilization of Small Business Concerns’’ (FAR 52.219–8). These lists may be limited to those supplies or services of major interest to the requesting firms. (g) Developing a program of contacts with local and small (to include all preference program areas named in 419.201) trade, business, and professional associations and organizations and Indian tribal councils to apprise them of USDA’s program needs and recurring contract requirements. (h) Periodically meeting with program managers to discuss requirements of the PO 00000 Frm 00044 Fmt 4700 Sfmt 4700 small business preference program, to explore the feasibility of breaking large complex requirements into smaller lots suitable for participation by small firms, and to encourage program managers to meet with these firms so that their capabilities can be demonstrated. (i) Establishing internal operating procedures which implement the requirements of the regulations as set forth in this part 419. (j) Compiling data and preparing all reports pertaining to the small business program activities, and ensuring that these reports are accurate, complete and up-to-date. (k) Assisting and counseling small business firms. (l) Reviewing proposed large contract requirements that may be bundled to determine the potential for breaking out components suitable for purchase from small business firms. (m) Ensuring that the SBA Resident Procurement Center Representative (PCR) is provided an opportunity and reasonable time to review any solicitation that meets the dollar threshold for small business (including all preference program areas named in 419.201) subcontracting plans. 419.201–73 Reports. The Director, OSDBU, shall be responsible for submitting reports concerning USDA’s progress and achievements in the procurement preference program. 36. Amend the heading of 419.508 to remove ‘‘Solicitation provisions’’ and add, in its place, ‘‘Solicitation provisions and contract clauses’’. I 37. Amend the heading of subpart 419.6 to remove ‘‘Determinations of Eligibility’’ and add, in its place, ‘‘Determinations of Responsibility’’. I PART 422—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS 422.604–2 I [Amended] 38.–39. Amend 422.604–2 as follows: a. Remove ‘‘FAR 22.604–2(c)’’ and add, in its place, ‘‘FAR 22.604–2(b)’’. I b. Remove ‘‘Secretary of labor’’ and add, in its place, ‘‘Secretary of Labor’’. I 40. Amend 422.807 to remove ‘‘Director, Office of Federal Contract Compliance Programs’’, and add, in its place, ‘‘Deputy Assistant Secretary for Federal Contract Compliance Programs, Department of Labor’’. I 41. Revise subpart 422.13 to read as follows: I E:\FR\FM\03JAR1.SGM 03JAR1 Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations Subpart 422.13—Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans Subpart 423.6—Notice of Radioactive Material 423.601 Requirements. Sec. 422.1305 422.1308 Waivers. Complaint procedures. 422.1305 Waivers. Subpart 423.7—Contracting for Environmentally Preferable Products and Services 423.703 Policy. (a) The Assistant Secretary for Administration is authorized to make the waiver determination in FAR 22.1305(b) that a contract is essential to the national security. (b) The contracting officer shall submit requests for exemptions under FAR 22.1305(a) and (b) through the HCA to the SPE for determination by the Assistant Secretary for Administration or referral to the Deputy Assistant Secretary for Federal Contract Compliance Programs, Department of Labor as appropriate. 422.1308 PART 423—ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE 44. Revise Part 423 to read as follows: Subpart 423.1—[Reserved] Subpart 423.2—Energy and Water Efficiency and Renewable Energy Sec. 423.202 Policy. Subpart 423.4—Use of Recovered Materials 423.400 Scope of subpart. 423.402 [Reserved] 423.403 Policy. 423.404 Agency affirmative procurement programs. 423.405 Procedures. Subpart 423.5—Drug-Free Workplace 423.506 Suspension of payments, termination of contract, and debarment and suspension actions. VerDate jul<14>2003 14:40 Dec 30, 2004 Jkt 205001 Subpart 423.1—[Reserved] Subpart 423.2—Energy and Water Efficiency and Renewable Energy 423.202 Policy. Information on Energy Star, energy efficient, water efficient, and low standby products covered by this policy is available via the Internet at https:// www.eere.energy.gov/femp/ technologies/eeproducts.cfm. Subpart 423.4—Use of Recovered Materials Complaint procedures. The contracting officer shall forward complaints received about the administration of the Vietnam Era Veterans Readjustment Assistance Act directly to the Department of Labor as prescribed in FAR 22.1308. I 42. Amend the heading of subpart 422.14 to remove the words ‘‘the Handicapped’’ and add, in their place, ‘‘Workers With Disabilities’’. I 43. Amend paragraph (a) of 422.1403 to remove the words ‘‘concurrence of the Director, OFCCP’’ and add, in their place, the words ‘‘the concurrence of the Deputy Assistant Secretary for Federal Contract Compliance Programs, Department of Labor’’. I Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c). 423.400 Scope of subpart. This subpart implements and supplements FAR policies and procedures for acquiring products and services when preference is given to offers of products containing recovered materials. This subpart further supplements FAR subpart 23.4 by providing guidance for affirmative procurement programs in accordance with Executive Order 13101 and 42 U.S.C. 6962. 423.402 [Reserved] 423.403 Policy. It is the policy of USDA to acquire and use Environmental Protection Agency (EPA) designated recycled content products. 423.404 Agency affirmative procurement programs. The USDA affirmative procurement program (APP) policy applicable to all USDA agencies and staff offices is hereby established. The components of this APP include: (a) Recovered Materials Preference Program. In accord with the requirements of Section 402(c) of Executive Order 13101, Greening the Government Through Recycling, Waste Prevention, and Federal Acquisition, USDA agencies will include, in all applicable solicitations and contracts, a preference for products and services which meet or exceed the EPA purchasing guidelines as contained in the EPA product Recovered Materials Advisory Notices (RMANs). Agencies may choose an evaluation factor preference, or other method of indicating preference in accord with PO 00000 Frm 00045 Fmt 4700 Sfmt 4700 47 their agency needs. Agencies will, as appropriate, eliminate virgin material requirements in contract specifications and replace them with a statement of preference for recycled materials. (b) Promotion program. USDA agencies will actively promote a preference for recovered materials, environmentally preferable products, and biobased products in contacts with vendors, in written materials, and other appropriate opportunities. (c) Reasonable estimation of recovered materials used in the performance of contracts. USDA agencies annually will provide in writing to the USDA Senior Procurement Executive, in response to a call for data for the Resource Conservation and Recovery report, reasonable estimates, certification, and verification of recovered material used in the performance of contracts. (d) Annual review and monitoring of effectiveness of the program. USDA agencies will provide an annual assessment of the effectiveness of their affirmative procurement program actions in increasing the purchase and use of EPA designated products. (e) Purchase of EPA designated products. USDA agencies will require that 100% of purchases of EPAdesignated products contain recovered material, unless the item cannot be acquired— (1) Competitively within a reasonable time frame; (2) Meeting appropriate performance standards; or (3) At a reasonable price. (f) The 100% purchase requirement of paragraph (e) of this section applies to all USDA agency purchases, including those at or below the micro-purchase threshold. 423.405 Procedures. (a) The threshold of purchase for EPA designated items is $10,000 per year at the USDA departmental, not individual agency, level. Therefore, the APP requirements above, including the 100% purchase requirement, apply at the individual agency and staff office level. (b) Contracting officers should refer to EPA’s list of designated products and products identified as recycled content when purchasing supplies or services. Information on EPA designated products is available at: www.epa.gov/ cpg/products.htm. (c) All agencies and USDA Contracting Officers must take necessary actions to carry out the provisions of the USDA APP policy described in this subpart. E:\FR\FM\03JAR1.SGM 03JAR1 48 Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations Subpart 423.5—Drug-Free Workplace 423.506 Suspension of payments, termination of contract, and debarment and suspension actions. (a) The contracting officer may recommend waiver of the determination to suspend payments, to terminate a contract, or to debar or to suspend a contractor. (b) The recommendation shall be submitted through the HCA to the SPE and shall include a full description of the disruption of USDA operations should the determination not be waived. (c) The SPE will submit the request for a waiver to the Secretary with a recommendation for action. Subpart 423.6—Notice of Radioactive Material 423.601 Requirements. The HCA shall establish a system of instructions to identify the installation/ facility radiation protection officer. Subpart 423.7—Contracting for Environmentally Preferable Products and Services 423.703 PART 424—PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION 45. Revise 424.203 to read as follows: 424.203 Policy. USDA regulations implementing the Freedom of Information Act are found in 7 CFR, Subtitle A, Part 1, Subpart A. Contracting officers shall follow these regulations when responding to requests for information. PART 425—FOREIGN ACQUISITION 46. Revise the table of contents of part 425 to read as follows: I Subpart 425.1—Buy American Act— Supplies Sec. 425.102 [Reserved] VerDate jul<14>2003 14:40 Dec 30, 2004 Exceptions. Nonavailable articles. Determining reasonableness of Jkt 205001 Subpart 425.3—[Removed and Reserved] I [Reserved] Subpart 425.2—Buy American Act— Construction Materials 425.202 Exceptions. 425.203 [Reserved] 425.204 [Reserved] 49. Remove and reserve subpart 425.3. Subpart 425.4—[Removed and Reserved] Subpart 425.3—[Reserved] 50. Remove and reserve subpart 425.4. 51. Add subpart 425.6, to read as follows: Subpart 425.4—[Reserved] Subpart 425.6—Trade Sanctions Subpart 425.6—Trade Sanctions 425.602 Exceptions. 425.602 Subpart 425.9—[Reserved] Subpart 425.10—Additional Foreign Acquisition Regulations 425.1001 Waiver of right to examination of records. Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c). 47. Revise subpart 425.1 to read as follows: I Subpart 425.1—Buy American Act— Supplies 425.102 Policy. (a) USDA’s Affirmative Procurement Program promotes energy-efficiency, water conservation, and the acquisition of environmentally preferable products and services. In its acquisitions, USDA will support federal ‘‘green purchasing’’ principles in the acquisition of products and services that are environmentally preferable or that are biobased content products and services. (b) USDA agencies will actively promote this preference for environmentally preferable products and biobased products in contacts with vendors, in written materials, and other appropriate opportunities. I 425.103 425.104 425.105 cost. 425.108 Exceptions. I Exceptions. The Secretary, without power of redelegation, has the authority to make the necessary determination(s) and authorize award(s) of contract(s) in accordance with FAR 25.602(b). Subpart 425.9—[Removed and Reserved] 52. Remove and reserve subpart 425.9. 53. Revise subpart 425.10 to read as follows: I I Subpart 425.10—Additional Foreign Acquisition Regulations [Reserved] 425.103 I 425.1001 records. Waiver of right to examination of (a) The Senior Procurement Executive (SPE) shall make the determination prescribed in FAR 25.103(a). (b) Copies of determinations of nonavailability in accordance with FAR 25.103(b)(2) or 25.202(a)(2), for articles, material or supplies not listed in FAR 25.104, may be submitted to the SPE for submission to the Civilian Agency Acquisition Council (CAAC). The SPE shall make the determination under FAR 25.1001(a)(2)(iii). 425.104 I Nonavailable articles. Information required by FAR 25.104(b) shall be submitted to the SPE for submission to the CAAC. 425.105 cost. PART 428—BONDS AND INSURANCE 55. Revise the heading of subpart 428.1 to read as follows: Subpart 428.1—Bonds And Other Financial Protections 56. Revise the heading of subpart 428.2 to read as follows: I Frm 00046 Fmt 4700 Subpart 428.2—Sureties And Other Security For Bonds PART 432—CONTRACT FINANCING 57. Redesignate 432.905 as 432.904, and revise the section heading to read as follows: I 432.904 I [Reserved] 48. Amend 425.202 as follows: I a. In the heading of 425.202, remove the word ‘‘Policy’’ and add, in its place, ‘‘Exceptions’’. I b. Remove ‘‘FAR 25.202(a)(3)’’, and add, in its place, ‘‘FAR 25.202(a)(1)’’. I PO 00000 54. Remove and reserve subpart 426.70. I Determining reasonableness of The SPE may make the determination prescribed in FAR 25.105(a). Requests for a determination by the SPE shall be submitted by the HCA, in writing, and shall provide a detailed justification supporting why evaluation factors higher than those listed in FAR 25.102(b)(1) and (2) should be applied to determine whether the offered price of a domestic end product is unreasonable. 425.108 PART 426—OTHER SOCIOECONOMIC PROGRAMS Sfmt 4700 Determining payment due dates. 58. Redesignate 432.906 as 432.007. PART 433—PROTESTS, DISPUTES AND APPEALS 59. In Part 433, revise all references to ‘‘General Accounting Office’’ to read ‘‘Government Accountability Office’’. I E:\FR\FM\03JAR1.SGM 03JAR1 Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations 433.104 I [Removed and Reserved] 60. Remove and reserve 433.104. PART 434—MAJOR SYSTEM ACQUISITION I 61. Revise Part 434 to read as follows: Subpart 434.0—General Sec. 434.001 Definitions. 434.002 Policy. 434.003 Responsibilities. 434.004 Acquisition strategy. 434.005 General requirements. 434.005–6 Full production. Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c). Subpart 434.0—General 434.001 Definitions. Pursuant to OMB Circular No. A–109 (A–109) and the definition at FAR 2.101, within USDA, a system shall be considered a major system if: (a) The total acquisition costs (for information technology, life cycle costs) are estimated to be $50 million or more, or (b) The system, regardless of estimated acquisition or life cycle costs, has been specifically designated to be a major system by the USDA Acquisition Executive or by the Major Information Technology Systems Executive. 434.002 Policy. In addition to the policy guidance at FAR 34.002 and other parts of the FAR, the policies outlined in paragraph 6 of A–109 should serve as guidelines for all contracting activities in planning and developing systems, major or otherwise. 434.003 Responsibilities. (a) The Secretary of Agriculture or other designated USDA key executive is responsible for making four key decisions in each major system acquisition process. These are listed in paragraph 9 of A–109 and elaborated on in paragraphs 10 through 13. The key executives of USDA (Secretary, Deputy Secretary, Under Secretaries and Assistant Secretaries) individually or as a group will participate in this decision making process. (b) The Chief Information Officer (CIO) is the Major Information Technology Systems Executive. For acquisitions of information technology, the CIO will ensure that A–109 is implemented in USDA and that the management objectives of the Circular are realized. The CIO is responsible for designating the program manager for each major information technology system acquisition, designating an acquisition to be a major information VerDate jul<14>2003 16:52 Dec 30, 2004 Jkt 205001 technology system acquisition, and approving the written charter and project control system for each major information technology system acquisition. (c) The Assistant Secretary for Administration (ASA) is the USDA Acquisition Executive for major system acquisitions other than acquisitions of information technology. The ASA will ensure that A–109 is implemented in USDA and that the management objectives of the Circular are realized. The ASA is responsible for designating the program manager for each major system acquisition, designating an acquisition to be a major system acquisition, and approving the written charter and project control system for each major system acquisition. (d) Heads of contracting activities must: (1) Ensure compliance with the requirements of A–109, FAR Part 34 and AGAR Part 434. (2) Ensure that potential major system acquisitions are brought to the attention of the USDA Acquisition Executive or the Major Information Technology Systems Executive, as appropriate. (3) Recommend qualified candidates for designation as program managers for each major system acquisition within their jurisdiction. (4) Ensure that program managers fulfill their responsibilities and discharge their duties. (5) Cooperate with the ASA and Major Information. Technology Systems Executive in implementing the requirements of A– 109. (e) The program manager is responsible for planning and executing the major system acquisition, ensuring appropriate coordination with the USDA Acquisition Executive and Major Information Technology Systems Executive and other key USDA executives. 434.004 Acquisition strategy. (a) The program manager will develop, in coordination with the Acquisition Executive or Major Information Technology Systems Executive, a written charter outlining the authority, responsibility, accountability, and budget for accomplishing the proposed objective. (b) The program manager will develop, subject to the approval of the Acquisition Executive or Major Information Technology Systems Executive, a project control system to schedule, monitor, and regularly report on all aspects of the project. The control system shall establish reporting periods and milestones consistent with the key PO 00000 Frm 00047 Fmt 4700 Sfmt 4700 49 decisions listed in paragraph 9 of A– 109. (c) Upon initiation of the project, the program manager will report regularly to the Acquisition Executive or Major Information Technology Systems Executive. (d) Specific procedures and requirements for information technology systems are included in the USDA Information Technology Capital Planning and Investment Control Guide which can be accessed on the USDA OCIO Web site at https:// www.ocio.usda.gov. 434.005 General requirements. 434.005–6 Full production. The Secretary or the USDA key executive designated by the Secretary for the specific program is the agency head for the purposes of FAR 34.005–6. PART 436—CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS 436.578 I [Removed and Reserved] 62. Remove and reserve 436.578. PART 439—ACQUISITION OF INFORMATION TECHNOLOGY I 63. Add Part 439 to read as follows: Subpart 439.1—General Sec. 439.101 Policy. Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c). Subpart 439.1—General 439.101 Policy. (a) In addition to policy and regulatory guidance contained in the FAR and AGAR: (1) The USDA Information Technology Capital Planning and Investment Control Guide (CPIC) establishes requirements for the acquisition of information technology. (2) Specific thresholds at which USDA Office of the Chief Information Officer Information Technology Acquisition Approval is required have been established. (3) The procurement authority delegated to USDA Agencies is established in Departmental Regulations 5000 series. (4) The CPIC Guide and USDA CIO policy and procedural guidance are available on the USDA OCIO Web site at https://www.ocio.usda.gov. Notices of changes in the Information Technology Acquisition Approval Thresholds are also promulgated by AGAR Advisory. (b) Acquisition of on-line courseware libraries and learning management system services requires specific E:\FR\FM\03JAR1.SGM 03JAR1 50 Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations approval of the ASA and CIO. Information regarding the specific approval requirements and processes is promulgated by AGAR Advisory. PART 445—GOVERNMENT PROPERTY BILLING CODE 3410–96–P Subpart 445.6—[Removed and Reserved] I Done in Washington, DC, this 21st day of December, 2004. W.R. Ashworth, Director, Office of Procurement and Property Management. [FR Doc. 04–28439 Filed 12–30–04; 8:45 am] 64. Remove and reserve subpart 445.6. DEPARTMENT OF TRANSPORTATION PART 450—EXTRAORDINARY CONTRACTUAL ACTIONS Research and Special Programs Administration Subpart 450.1—[Removed and Reserved] 49 CFR Part 199 I [Docket RSPA–97–2995; Notice 12] 65. Remove and reserve subpart 450.1. PART 452—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 452.211–70 [Amended] Pipeline Safety: Random Drug Testing Rate Research and Special Programs Administration (RSPA), DOT. ACTION: Notice of minimum annual percentage rate for random drug testing. AGENCY: I 66. Amend paragraph (a) of 452.211– 70 to remove the words ‘‘clause 452.211– SUMMARY: Each year pipeline operators 2’’ and add, in their place, ‘‘clause randomly select employees to test for 452.211–71’’. prohibited drugs. The number of selections may not be less than the 452.215–71 [Amended] minimum annual percentage rate the I 67. In paragraph (c) of 452.215–71, Research and Special Programs remove the words ‘‘Requirements for Administration’s (RSPA) Office of Cost or Pricing Data or Other Than Cost Pipeline Safety (OPS) determines, either or Pricing Data’’ and add, in their place, 50 percent or 25 percent of covered ‘‘Requirements for Cost or Pricing Data or employees, based on the industry’s Information Other Than Cost or Pricing positive rate of random tests. In Data’’. accordance with applicable standards, RSPA/OPS has determined that the 452.226–70, 452.226–71 and 452.226–72 positive rate of random drug tests [Removed and Reserved] reported by operators this calendar year I 68. Remove and reserve 452.226–70, for testing done in calendar year 2003 is 452.226–71, and 452.226–72. less than 1.0 percent. Therefore, in calendar year 2005, the minimum 452.232–70 [Amended] annual percentage rate for random drug I 69. In 452.232–70, remove the words testing is 25 percent of covered ‘‘Payments Under Fixed-Price employees. Construction Contract’’ and add, in their DATES: Effective January 1, 2005, place, ‘‘Payments Under Fixed-Price through December 31, 2005. Construction Contracts’’. FOR FURTHER INFORMATION CONTACT: 452.236–78 [Removed and Reserved] Sheila Wright, RSPA, OPS, Room 2103, I 70. Remove and reserve 452.236–78. U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC PART 453—FORMS 20590, telephone (202) 366–4554 or email sheila.wright@rspa.dot.gov. I 71. Revise 453.213 to read as follows: SUPPLEMENTARY INFORMATION: Operators 453.213 Simplified Acquisition and other of gas, hazardous liquid, and carbon simplified purchase procedures (AD–838). dioxide pipelines and operators of liquefied natural gas facilities must Form AD–838, Purchase Order, is annually submit Management prescribed for use as a Simplified Information System (MIS) reports of Acquisition Procedure/delivery order/ drug testing done in the previous task order document in lieu of OF 347 calendar year (49 CFR 199.119(a)). One and OF 348, except that use of the OF of the uses of this information is to 347 and OF 348 is authorized when calculate the minimum annual utilizing the USDA Integrated percentage rate at which operators must Acquisition System (See 413.307). VerDate jul<14>2003 14:40 Dec 30, 2004 Jkt 205001 PO 00000 Frm 00048 Fmt 4700 Sfmt 4700 randomly select covered employees for drug testing during the next calendar year (49 CFR 199.105(c)(2)). If the minimum annual percentage rate for random drug testing is 50 percent, RSPA/OPS may lower the rate to 25 percent if RSPA/OPS determines that the positive rate reported for random tests for two consecutive calendar years is less than 1.0 percent (49 CFR 199.105(c)(3)). If the minimum annual percentage rate is 25 percent, RSPA/ OPS will increase the rate to 50 percent if RSPA/OPS determines that the positive rate reported for random tests for any calendar year is equal to or greater than 1.0 percent (49 CFR 199.105(c)(4)). Part 199 defines ‘‘positive rate’’ as ‘‘the number of positive results for random drug tests * * * plus the number of refusals of random tests * * *, divided by the total number of random drug tests * * * plus the number of refusals of random tests. * * *’’ Through calendar year 1996, the minimum annual percentage rate for random drug testing in the pipeline industry was 50 percent of covered employees. Based on MIS reports of random testing done in calendar years 1994 and 1995, RSPA/OPS lowered the minimum rate from 50 percent to 25 percent for calendar year 1997 (61 FR 60206; November 27, 1996). The minimum rate remained at 25 percent in calendar years 1998 (62 FR 59297; Nov. 3, 1997); 1999 (63 FR 58324; Oct. 30, 1998); 2000 (64 FR 66788; Nov. 30, 1999); 2001 (65 FR 81409; Dec. 26, 2000); 2002 (67 FR 2611; Jan. 18, 2002); 2003 (67 FR 78388; Dec. 24, 2002); and 2004 (68 FR 69046; Dec. 11, 2003). Using the MIS reports received this year for drug testing done in calendar year 2003, RSPA/OPS calculated the positive rate of random testing to be 0.83 percent. Since the positive rate continues to be less than 1.0 percent, RSPA/OPS is announcing that the minimum annual percentage rate for random drug testing is 25 percent of covered employees for the period January 1, 2005 through December 31, 2005. Authority: 49 U.S.C. 5103, 60102, 60104, 60108, 60117, and 60118; 49 CFR 1.53. Issued in Washington, DC on December 22, 2004. Stacey L. Gerard, Associate Administrator for Pipeline Safety. [FR Doc. 04–28679 Filed 12–30–04; 8:45 am] BILLING CODE 4910–60–P E:\FR\FM\03JAR1.SGM 03JAR1

Agencies

[Federal Register Volume 70, Number 1 (Monday, January 3, 2005)]
[Rules and Regulations]
[Pages 41-50]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 04-28439]


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DEPARTMENT OF AGRICULTURE

Office of Procurement and Property Management

48 CFR Parts 401, 403, 404, 405, 406, 407, 408, 410, 411, 413, 414, 
415, 416, 419, 422, 423, 424, 425, 426, 428, 432, 433, 434, 436, 
439, 445, 450, 452, and 453

RIN 0599-AA11


Agriculture Acquisition Regulation: Miscellaneous Amendments 
(AGAR Case 2004-01)

AGENCY: Office of Procurement and Property Management, USDA.

ACTION: Direct final rule.

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SUMMARY: The Department of Agriculture (USDA) is publishing technical 
amendments to the Agriculture Acquisition Regulation (AGAR) as a final 
rule. We use the direct final rule process to make non-controversial 
changes to the AGAR. We are amending the AGAR to update organizational 
references to USDA components; to update citations to statutes and to 
Executive Orders; to update or clarify internal procedures; and to 
reflect changes in the Federal Acquisition Regulation through Federal 
Acquisition Circular 2001-24.

DATES: This rule will be effective on April 4, 2005, unless we receive 
written adverse comments or written notice of intent to submit adverse 
comments on or before February 2, 2005. If adverse comments are 
received, USDA will publish a timely withdrawal of the rule in the 
Federal Register.

ADDRESSES: Please submit any adverse comments, or a notice of intent to 
submit adverse comments, identified by AGAR Case 2004-01 or Regulatory 
Information Number (RIN) 0599-AA11, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: joe.daragan@usda.gov. Include AGAR Case 2004-01 or 
RIN 0599-AA11 in the subject line of the message.
     Fax: (202) 720-8972.
     Mail: U.S. Department of Agriculture, Office of 
Procurement and Property Management, Procurement Policy Division, STOP 
9303, 1400 Independence Avenue, SW., Washington, DC 20250-9303.
     Hand Delivery/Courier: U.S. Department of Agriculture, 
Office of Procurement and Property Management, Procurement Policy 
Division, Reporter's Building, 300 7th Street, SW., Room 310A, 
Washington, DC 20024.
    All submissions received must include the agency name and AGAR Case 
number or RIN for this rulemaking. All comments received will be posted 
without change to https://www.usda.gov/procurement/policy/agar.html, 
including any personal information provided.

FOR FURTHER INFORMATION CONTACT: Joseph J. Daragan, (202) 720-5729.

SUPPLEMENTARY INFORMATION: 

I. Background
II. Procedural Requirements
    A. Executive Order Nos. 12866 and 12988
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act
    D. Small Business Regulatory Enforcement Fairness Act
    E. Unfunded Mandates Reform Act
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments

I. Background

    The AGAR implements the Federal Acquisition Regulation (FAR) (48 
CFR ch. 1) where further implementation is needed, and supplements the 
FAR when coverage is needed for subject matter not covered by the FAR. 
The AGAR is being revised to reflect changes in the FAR made by Federal 
Acquisition Circulars (FACs) 97-02 through 2001-24 and to implement 
changes in USDA delegated authorities and internal procedures since 
October 2001. In this rulemaking document, USDA is making corrections 
to the AGAR as a direct final rule, since the corrections are non-
controversial and unlikely to generate adverse comment. The corrections 
are clerical or procedural in nature and do not affect the public.
    Rules that an agency believes are noncontroversial and unlikely to 
result in adverse comments may be published in the Federal Register as 
direct final rules. The Office of Procurement and Property Management 
published a policy statement in the Federal Register (63 FR 9158, 
February 24, 1998) notifying the public of its intent to use direct 
final rulemaking in appropriate circumstances.

[[Page 42]]

    This rule makes the following changes to the AGAR:
    (a) Added parts. We are adding parts 410 and 439 to the AGAR. Part 
410 is added to establish procedures for market research. Part 439 is 
added to incorporate supplementary guidance on USDA internal procedures 
for acquisition of information technology.
    (b) Added subparts. We have added the following subparts to the 
AGAR:
    (1) Subpart 404.2 is added to refer to internal procedures for 
entering Taxpayer Identification Number information into USDA's 
financial system.
    (2) Subpart 404.11 is added to supplement FAR 4.11, Central 
Contractor Registration, by clarifying the contracting officer's role 
in the registration process.
    (3) Subpart 425.6 is added to incorporate newly redesignated 
425.602 (redesignated from 425.1002).
    (c) Revised part. Part 423 is revised to reflect amendments to the 
FAR, to establish agency procedures to implement FAR Part 23 as 
amended, to remove directions concerning a superseded recycling and 
waste prevention program, and to provide internal guidance concerning 
its successor affirmative procurement program.
    (d) Removed subparts. We have removed and reserved the following 
subparts:
    (1) Subpart 407.3 is removed and reserved pending revision to FAR 
subpart 7.3 and Departmental directives to conform to the procedures 
and policy of Office of Management and Budget Circular A-76 dated May 
21, 2004.
    (2) Subpart 425.3 is removed and reserved to reflect an amendment 
to the FAR.
    (3) Subpart 425.4 is removed and reserved because it is no longer 
necessary to publicize redeterminations of the Trade Agreement Act 
dollar thresholds as a Departmental Notice. The information is readily 
available on the USDA procurement Web site.
    (4) Subpart 426.70 is removed and reserved because legislation 
establishing the program it implemented was repealed by Public Law 107-
171, section 6201(a). AGAR provisions 452.226-70 through 452.226-72 are 
removed and reserved for the same reason.
    (5) Subpart 445.6 is removed and reserved. This subpart implemented 
a property-screening requirement that was removed from the FAR.
    (6) Subpart 450.1 is removed and reserved to reflect an amendment 
to the FAR.
    (e) Redesignated sections. We have moved the following sections as 
follows to reflect amendments to the structure of the FAR:
    (1) Paragraph (a) of 403.104-10 is redesignated 403.104-7, and 
paragraph (b) of 403.104-10 is removed.
    (2) Section 403.409 is redesignated 403.405, and the citation 
therein to the corresponding FAR segment is updated.
    (3) Section 411.105 is redesignated 411.106.
    (4) Section 432.905 is redesignated 432.904, and its heading is 
amended.
    (5) Section 432.906 is redesignated 432.007.
    (f) Amendments to organizational references. The following 
amendments reflect changes in organizational designations or 
delegations of authority:
    (1) In 401.301, ``Food and Consumer Service'' and ``Office of 
Operations'' are amended to read ``Food and Nutrition Service'', and 
``Departmental Administration'', respectively.
    (2) Sections 404.403, 405.404-1, and 414.409-2 are amended to 
reflect the delegation of authority over classified information to the 
Personnel and Document Security Division, Office of Procurement and 
Property Management.
    (3) Subpart 408.7 is amended to reflect organizational changes and 
a change in organizational title within USDA's Javits-Wagner-O'Day 
(JWOD) program.
    (4) Part 434 is amended to reflect the delegation of authority over 
information technology acquisition to the Chief Information Officer.
    (g) Paragraph (b) of 401.105-1 is revised to inform users that the 
AGAR is no longer available in loose-leaf form. An electronic version 
of the AGAR is available at USDA's Procurement Homepage for downloading 
and reproduction.
    (h) Paragraph (c) of 401.105-1 is revised to reflect the 
cancellation of Office of Federal Procurement Policy Policy Letter 83-
2. Citations to the ``Hardin Statement of Policy'' (36 FR 13804, July 
24, 1971), to the Office of Federal Procurement Policy Act, 41 U.S.C. 
418b, and to FAR 1.301 are added to refer to other policy and law 
governing amendments to the AGAR.
    (i) Section 401.170 is revised to update the Internet address for 
the USDA Procurement Homepage.
    (j) Section 401.201-1 is amended to improve clarity.
    (k) Section 401.371 is amended to specify that AGAR Advisories are 
only available in electronic format.
    (l) Section 403.502 is amended to correct a citation to the Anti-
Kickback Act (41 U.S.C. 51-58).
    (m) Subpart 404.6 is amended to remove references to the USDA 
Procurement Reporting System (PRS). PRS was a feeder system that has 
been replaced by the Federal Procurement Data System-Next Generation 
(FPDS-NG). Subpart 404.6 also is amended to implement changes in 
reporting required by FAR 4.602, Federal Procurement Data System.
    (n) Section 404.870 is revised, and 404.870-1 and 404.870-2 are 
removed. Guidance on document numbering will be provided by AGAR 
Advisories until USDA's Integrated Acquisition System is fully 
implemented.
    (o) Section 405.403 is amended to reflect an amendment to the FAR.
    (p) Section 406.501 is revised to reflect a change in 
organizational title and to add an internal notification requirement.
    (q) Section 407.170 is amended to remove reference to a cancelled 
Departmental Directive.
    (r) Section 408.705 is amended as an editorial change, adopting the 
phrase ``performance plan'' in preference to the phrase ``action 
plan''.
    (s) Section 408.1103 is amended to add references to alternative 
fuels and tires with recovered material content.
    (t) Section 411.101 is added to specify the level at which a 
determination that a voluntary standard is inconsistent with law or 
otherwise impracticable may be made.
    (u) Sections 413.307 and 453.213 are amended to allow the use of 
Optional Forms 347 and 348 when a simplified acquisition utilizes the 
USDA Integrated Acquisition System.
    (v) Paragraph (d) of 415.207 is amended to update a citation to FAR 
3.104-4.
    (w) Section 416.505 is amended to update an organizational title 
and to require Heads of Contracting Activities to designate task order 
ombudsmen for their contracting activities.
    (x) Subpart 419.2 is revised to include HubZone and veteran-owned 
small business concerns, to require small business coordinators to 
review large contract requirements for bundling, and to remove fixed 
due dates for subcontract reports, because these dates may vary.
    (y) The heading of 419.508 is amended to reflect an amendment to 
the FAR.
    (z) The heading of subpart 419.6 is amended to reflect an amendment 
to the FAR.
    (aa) Section 422.604-2 is amended to update a citation to FAR 
22.604-2(b).
    (ab) Paragraph (b) of 422.807 is amended to reflect an amendment to 
FAR 22.807.
    (ac) Subpart 422.13 is revised as follows:

[[Page 43]]

    (1) The heading of subpart 422.13 is amended to reflect an 
amendment to the FAR.
    (2) Section 422.1303 is redesignated 422.1305 and revised to 
reflect an amendment to the FAR.
    (3) Section 422.1306 is redesignated 422.1308, and the 
corresponding citation to the FAR amended, to reflect an amendment to 
the FAR.
    (ad) The heading of subpart 422.14 is amended to reflect an 
amendment to the FAR.
    (ae) Section 422.1403 is amended to reflect an amendment to the 
FAR.
    (af) Section 424.203 is amended to remove unnecessary language.
    (ag) Subpart 425.1 is revised to reflect amendments to the FAR.
    (ah) The heading of 425.202 is amended, and the citation therein to 
the FAR is amended, to reflect an amendment to the FAR.
    (ai) Subpart 425.6 is added to incorporate material currently in 
subpart 425.10, in order to reflect an amendment to the FAR. Section 
425.1002 is redesignated 425.602, its heading is amended, and the 
citation therein to the FAR is amended.
    (aj) Subpart 425.9 is redesignated 425.10, and its heading is 
amended, to reflect an amendment to the FAR.
    (ak) Section 425.901 is redesignated 425.1001, and the citation 
therein to the FAR is amended, to reflect an amendment to the FAR. 
Subpart 425.9 is removed and reserved.
    (al) The heading of subpart 428.1 is amended to reflect an 
amendment to the FAR.
    (am) The heading of subpart 428.2 is amended to reflect an 
amendment to the FAR.
    (an) Section 432.905 is redesignated 432.904, and its heading is 
amended, to reflect an amendment to the FAR.
    (ao) Section 432.906 is moved to 432.007 to reflect an amendment to 
the FAR.
    (ap) Section 433.104 is removed and reserved to simplify
    USDA's internal protest procedures.
    (aq) Section 452.211-70 is amended to correct an error in citation 
to 452.211-71.
    (ar) Section 452.232-70 is amended to correct a typographical 
error.
    (as) Section 452.236-78 is removed and reserved. This section 
referred to standard specifications that are now obsolete.

II. Procedural Requirements

A. Executive Orders Nos. 12866 and 12988

    USDA prepared a work plan for this regulation and submitted it to 
the Office of Management and Budget (OMB) pursuant to Executive Order 
No. 12866. OMB determined that the rule was not significant for the 
purposes of Executive Order No. 12866. Therefore, the rule has not been 
reviewed by OMB. USDA has reviewed this rule in accordance with 
Executive Order No. 12988, Civil Justice Reform. The rule meets the 
applicable standards in section 3 of Executive Order No. 12988.

B. Regulatory Flexibility Act

    USDA reviewed this rule under the Regulatory Flexibility Act, 5 
U.S.C. 601-611, which requires preparation of a regulatory flexibility 
analysis for any rule which is likely to have significant economic 
impact on a substantial number of small entities. USDA certifies that 
this rule will not have a significant economic effect on a substantial 
number of small entities, and, therefore, no regulatory flexibility 
analysis has been prepared. However, comments from small entities 
concerning parts affected by the proposed rule will be considered. Such 
comments must be submitted separately and cite 5 U.S.C. 609 (AGAR Case 
2004-01) in correspondence.

C. Paperwork Reduction Act

    No information collection or recordkeeping requirements are imposed 
on the public by this rule. Accordingly no OMB clearance is required by 
the Paperwork Reduction Act, 44 U.S.C. Chapter 35, or OMB implementing 
regulations at 5 CFR part 1320.

D. Small Business Regulatory Enforcement Fairness Act

    A report on this rule has been submitted to each House of Congress 
and the Comptroller General in accordance with the Small Business 
Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 801-808. This 
rule is not a major rule for purposes of the Act.

E. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 
U.S.C. 1531-1538, establishes requirements for Federal agencies to 
assess the effects of their regulatory actions on State, local, and 
tribal governments and the private sector. USDA has determined that 
this rule does not contain a Federal mandate. USDA has also determined 
that this rule would not significantly or uniquely affect small 
governments. Accordingly, the rule is not subject to the requirements 
of Title II of UMRA.

F. Executive Order 13132: Federalism

    Executive Order 13132, Federalism (64 FR 43255, August 10, 1999), 
imposes requirements in the development of regulatory policies that 
have federalism implications. ``Policies that have federalism 
implications'' are defined in the Executive Order to include 
regulations that have ``substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government.''
    USDA has determined that this rule does not have federalism 
implications. It will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132. 
The rule will not impose substantial costs on States and localities. 
Accordingly, this rule is not subject to the procedural requirements of 
Executive Order 13132 for regulatory policies having federalism 
implications.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, Consultation and Coordination with Indian 
Tribal Governments (65 FR 67249, November 9, 2000), imposes 
requirements in the development of regulatory policies that have tribal 
implications. Executive Order 13175 defines ``policies that have tribal 
implications'' as those having ``substantial direct effects on one or 
more Indian tribes, on the relationship between the Federal Government 
and Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes.'' USDA has determined 
that this rule does not have tribal implications and, therefore, the 
consultation and coordination requirements of Executive Order 13175 do 
not apply to this rule.

List of Subjects in 48 CFR Parts 401, 403, 404, 405, 406, 407, 408, 
410, 411, 413, 414, 415, 416, 419, 422, 423, 424, 425, 426, 428, 
432, 433, 434, 436, 439, 445, 450, 452, and 453

    Acquisition regulations, Government contracts, Government 
procurement, Procurement.

0
For the reasons set out in the preamble, 48 CFR Chapter 4 is amended as 
set forth below:
0
1. The authority citation for parts 401, 403, 404, 405, 406, 407, 408, 
411, 413, 414, 415, 416, 419, 422, 424, 425, 426, 428, 432, 433, 436, 
445, 450, 452, and 453 continues to read as follows:

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

[[Page 44]]

PART 401--AGRICULTURE ACQUISITION REGULATION SYSTEM

0
2. Revise paragraphs (b) and (c) of 401.105-1 to read as follows:


401.105-1  Publication and code arrangement.

* * * * *
    (b) The AGAR and its subsequent changes are published in:
    (1) Daily issues of the Federal Register,
    (2) Cumulative form in the CFR, and,
    (3) Electronic form on the USDA Departmental Administration 
Procurement Homepage (see 401.170).
    (c) Section 553(a)(2) of the Administrative Procedure Act, 5 U.S.C. 
553, provides an exception from the standard public rulemaking 
procedures to the extent that the rule involves a matter relating to 
agency management or personnel or to public property, loans, grants, 
benefits, or contracts. In 1971, Secretary of Agriculture Hardin 
announced a voluntary partial waiver from the Administrative Procedure 
Act exception, and USDA agencies generally are required to provide 
notice and an opportunity for public comment on proposed rules (36 FR 
13804, July 24, 1971). The AGAR has been promulgated and may be revised 
from time to time in accordance with the rulemaking procedures of the 
Administrative Procedure Act. The USDA also is required to publish for 
public comment procurement regulations in the Federal Register, 
pursuant to the Office of Federal Procurement Policy Act (41 U.S.C. 
418b), and FAR 1.301.

0
3. Amend 401.170 to remove ``URL https://www.usda.gov/da/procure.html'' 
and add, in its place, ``URL https://www.usda.gov/procurement/''.

0
4. Revise paragraph (b) of 401.201-1 to read as follows:


401.201-1  The two councils.

* * * * *
    (b) The Procurement Policy Division will coordinate proposed FAR 
revisions within USDA.

0
5. Amend 401.301 as follows:
0
a. Remove ``Food and Consumer Service'' and add, in its place, ``Food 
and Nutrition Service''.
0
b. Remove ``Office of Operations'' and add, in its place, 
``Departmental Administration''.

0
6. Add paragraph (d) to 401.371, to read as follows:


401.371  AGAR Advisories.

* * * * *
    (d) AGAR Advisories are only available in electronic format on the 
USDA Procurement Web site at https://www.usda.gov/procurement/.

PART 403--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF 
INTEREST

0
7. Remove ``(a)'' and paragraph (b) in 403.104-10, and redesignate 
403.104-10 as 403.104-7.

0
8. Amend 403.409 to remove ``FAR 3.409(b)'', and add, in its place, 
``FAR 3.405(b)'', and redesignate 403.409 as 403.405.

0
9. Amend 403.502 to remove ``(41 U.S.C. 51-54)'', and add, in its 
place, ``(41 U.S.C. 51-58)''.

PART 404--ADMINISTRATIVE MATTERS

0
10. Revise the table of contents to read as follows:
Subpart 404.2--Contract Distribution
Sec.
404.203 Taxpayer identification information.
Subpart 404.4--Safeguarding Classified Information Within Industry
404.403 Responsibilities of contracting officers.
Subpart 404.6--Government Contract Reporting
404.601 [Reserved]
404.602 Federal Procurement Data System.
Subpart 404.8--Government Contract Files
404.870 Document numbering system.
Subpart 404.11--Central Contractor Registration
404.1103 Procedures.
Subpart 404.70--Precontract Notices
404.7001 Solicitation provision.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).


0
11. Add subpart 404.2 to read as follows:

Subpart 404.2--Contract Distribution


404.203  Taxpayer identification information.

    (a) If the contractor furnishes taxpayer identification number 
(TIN) and type of organization information pursuant to solicitation 
provision 52.204-3 or 52.212-3, and the USDA Office of the Chief 
Financial Officer, Controller Operations Division, New Orleans will be 
the payment office, that information will be entered into the 
Foundation Financial Information System (FFIS) in accordance with FFIS 
Vendor Table Maintenance Procedures set forth in FFIS Bulletins issued 
by the Office of the Chief Financial Officer and AGAR Advisories issued 
by the Office of Procurement and Property Management.
    (b) Separate submission of the TIN or type of organization 
information, in accordance with 52.204-3 or 52.212-3, is not required 
for contractors registered in the Central Contractor Registration (CCR) 
database.

0
12. Revise 404.403 to read as follows:


404.403  Responsibilities of contracting officers.

    When a proposed solicitation is likely to require access to 
classified information, the contracting officer shall consult with the 
Information Security Staff, Personnel and Document Security Division, 
Office of Procurement and Property Management, regarding the procedures 
that must be followed.


404.601  [Removed and Reserved]

0
13. Remove and reserve 404.601.

0
14. Revise 404.602 to read as follows:


404.602  Federal Procurement Data System.

    (a) Contracting activities shall report contract actions into the 
Federal Procurement Data System in accordance with the instructions 
issued or distributed by the SPE.
    (b) The unique identifier for each contract action reported to the 
Federal Procurement Data System shall begin with the two-letter USDA 
Agency Prefix ``AG''.

0
15. Revise subpart 404.8 to read as follows:

Subpart 404.8--Government Contract Files


404.870  Document numbering system.

    The SPE shall issue AGAR Advisories to establish and maintain a 
numbering system for USDA contracts, modifications, and delivery/task 
orders. USDA contracting offices shall number contracts, modifications, 
and orders in accordance with this numbering system.

0
16. Add subpart 404.11 to read as follows:

Subpart 404.11--Central Contractor Registration


404.1103  Procedures.

    (a) Contracting officers and other USDA employees shall not enter 
information into the Central Contractor Registration (CCR) database on 
behalf of prospective contractors. Prospective contractors who are 
unable to register on-line at the CCR Web site should be advised to 
submit a written application to CCR for registration into the CCR 
database. USDA employees may assist prospective contractors by 
downloading

[[Page 45]]

the registration template, CCR handbook, and other information from the 
CCR Web site and providing copies of that material to requesters. 
Written applications for registration may be submitted to Department of 
Defense Central Contractor Registration, 74 Washington Ave., Suite 7, 
Battle Creek, MI 49017-3084.
    (b) Verification that the prospective contractor is registered in 
the CCR database shall be done via the CCR Internet Web site https://
www.ccr.gov. This verification process using the CCR Web site applies 
both to acquisitions executed using USDA legacy procurement systems and 
the USDA Integrated Acquisition System.
    (c) AGAR Advisories issued by the Office of Procurement and 
Property Management will address internal procedures for integration of 
contractor information in the CCR database with the USDA FFIS payment 
system.

PART 405--PUBLICIZING CONTRACT ACTIONS


405.403  [Amended]

0
17. Amend 405.403 to remove ``FAR 5.403(a)'' and add, in its place, 
``FAR 5.403''.

0
18. Revise paragraph (b) of 405.404-1 to read as follows:


405.404-1  Release procedures.

* * * * *
    (b) Classified information shall not be released without the 
approval of the Information Security Staff, Personnel and Document 
Security Division, Office of Procurement and Property Management. 
Departmental Manuals and Regulations (3400 series) contain guidance on 
classified information.

PART 406--COMPETITION REQUIREMENTS

0
19. Revise 406.501 to read as follows:


406.501  Requirements.

    (a) The Chief, Procurement Policy Division, Office of Procurement 
and Property Management, has been designated as the Competition 
Advocate for USDA.
    (b) Each HCA shall designate a competition advocate for the 
contracting activity. The HCA shall forward a copy of the designation 
memorandum to the Competition Advocate for USDA.

PART 407--ACQUISITION PLANNING

0
20. Revise 407.170 to read as follows:


407.170  Advance acquisition plans.

    Each HCA shall maintain an advance acquisition planning system.

Subpart 407.3--[Removed and Reserved]

0
21. Remove and reserve subpart 407.3.

PART 408--REQUIRED SOURCES OF SUPPLIES AND SERVICES

Subpart 408.7--Amended

0
22. Amend subpart 408.7 to remove the word ``Advocate'' wherever it 
appears and add, in its place, the word ``Liaison.''

0
23. Revise 408.701 to read as follows:


408.701  Definitions.

    Committee Member is the Presidential appointee representing USDA as 
a member of the Committee for Purchase from People Who Are Blind or 
Severely Disabled.
    Organization head is the Under Secretary or Assistant Secretary of 
a mission area or the head of a USDA staff office.


408.705  [Amended]

0
24. Amend 408.705 to remove the word ``action'' and add, in its place, 
the word ``performance.''

0
25. Revise 408.1103 to read as follows:


408.1103  Contract requirements.

    If the requirement includes the need for the vendor to provide 
operational maintenance such as fueling, lubrication, or other fluid 
changes or replenishment, the contracting officer shall include in the 
contract:
    (1) A requirement for the use of fluids and lubricants containing 
the maximum available amounts of recovered materials, and alternative 
fuels whenever available; and
    (2) A preference for retreaded tires meeting the Federal retread 
specifications, tires with the maximum recovered material content, or 
retreading services for the tires on the vehicle.

PART 410--MARKET RESEARCH

0
26. Add new Part 410, to read as follows:
Sec.
410.001 Policy.
410.002 Procedures.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c)


410.001  Policy.

    In addition to those uses listed in FAR 10.001, agencies must use 
the results of market research to--
    (a) Ensure the minimum use of hazardous or toxic materials;
    (b) Ensure the maximum use of biobased products and biofuels; and
    (c) Identify products and services on or eligible for addition to 
the Javits-Wagner-O'Day Act Procurement List in order to achieve USDA's 
goal to increase participation in this program.


410.002  Procedures.

    Market research must include obtaining information on the 
commercial quality assurance practices as an alternative for Government 
inspection and testing prior to tender for acceptance.

PART 411--DESCRIBING AGENCY NEEDS

0
27. Add new 411.101, as follows:


411.101  Order of precedence for requirements documents.

    (a) Office of Management and Budget (OMB) Circular A-119 
establishes a Federal policy requiring the use of voluntary consensus 
standards in lieu of government-unique standards except where 
inconsistent with law or otherwise impractical.
    (b) The HCA is authorized to submit the determination required by 
OMB Circular A-119 that a voluntary standard is inconsistent with law 
or otherwise impracticable. The HCA must submit the determination to 
OMB through the National Institute of Standards and Technology in 
accordance with the Circular with a copy provided to the SPE.

0
28. Redesignate 411.105 as 411.106.

PART 413--SIMPLIFIED ACQUISITION PROCEDURES

0
29. Revise 413.307 to read as follows:


413.307  Forms.

    Form AD-838, Purchase Order, is prescribed for use by USDA in lieu 
of Optional Forms (OFs) 347 and 348 except that use of the OF 347 and 
OF 348 is authorized when utilizing the USDA Integrated Acquisition 
System.

PART 414--SEALED BIDDING

0
30. Revise 414.409-2 to read as follows:


414.409-2  Award of classified contracts.

    Disposition of classified information shall be in accordance with 
Departmental Regulation and Manual (3400 Series) and in accordance with 
direction issued by the Information Security Staff, Personnel and 
Document Security Division, Office of Procurement and Property 
Management.

[[Page 46]]

PART 415--CONTRACTING BY NEGOTIATION


415.207  [Amended]

0
31. In paragraph (d) of 415.207, remove ``FAR 3.104-5'', and add, in 
its place, ``FAR 3.104-4''.

PART 416--TYPES OF CONTRACTS

0
32. Revise paragraphs (a) and (b) of 416.505 to read as follows:


416.505  Ordering.

    (a) The Chief, Procurement Policy Division, Office of Procurement 
and Property Management, has been designated as the Departmental Task 
Order Ombudsman.
    (b) Each HCA shall designate a task order ombudsman for the 
contracting activity. The HCA shall forward a copy of the designation 
memorandum to the Departmental Task Order Ombudsman. Contracting 
activity ombudsmen shall review and resolve complaints from contractors 
concerning task or delivery orders placed by the contracting activity.
* * * * *

PART 419--SMALL BUSINESS PROGRAMS

0
33.-35. Revise subpart 419.2 to read as follows:
Subpart 419.2--Policies
Sec.
419.201 General policy.
419.201-70 Office of Small and Disadvantaged Business Utilization 
(OSDBU).
419.201-71 Small business coordinators.
419.201-73 Reports.


419.201  General policy.

    It is the policy of USDA to provide maximum practicable contracting 
and subcontracting opportunities to small business (SB), small 
disadvantaged business (SDB), HUBZone small business, women-owned 
business (WOB), veteran-owned small business (VOSB), and service-
disabled veteran-owned small business (SDVOSB) concerns.


419.201-70  Office of Small and Disadvantaged Business Utilization 
(OSDBU).

    The Office of Small and Disadvantaged Business Utilization (OSDBU) 
develops rules, policy, procedures and guidelines for the effective 
administration of USDA's small business program that includes all 
categories named under 419.201.


419.201-71  Small business coordinators.

    The head of the contracting activity (HCA) or a representative of 
the HCA shall designate in writing a small business coordinator in each 
contracting office. Supervisors of small business coordinators are 
encouraged to provide sufficient time for the coordinators to carry out 
their small business program duties. Coordinators' duties shall 
include, but not be limited to, the following:
    (a) Reviewing each proposed acquisition expected to exceed the 
simplified acquisition threshold prior to its solicitation. The 
coordinator shall:
    (1) Recommend section 8(a), HUBZone, or SDVOSB action and identify 
potential contractors, or
    (2) Identify available SDB, WOB, and VOSB to be solicited by 
competitive procedures. Coordinators shall document the contract file 
with recommendations made and actions taken.
    (b) Participating in goal-setting procedures and planning 
activities and establishing aggressive SDB, WOB, and SDVOSB goals based 
on the annual review of advance acquisition plans.
    (c) Participating in the review of those contracts which require 
the successful offeror to submit written plans for the utilization of 
small businesses as subcontractors to include all preference program 
areas in 419.201.
    (d) Ensuring that purchases exceeding $2,500 and not exceeding the 
simplified acquisition threshold are reserved exclusively for small 
businesses, including all preference program areas named in 419.201. 
This policy shall be implemented unless the contracting officer is 
unable to obtain offers from two or more small business concerns that 
are competitive with market prices and in terms of quality and delivery 
of the goods or services being purchased.
    (e) Maintaining comprehensive source listings of small businesses.
    (f) Upon written request, providing small businesses (in the 
preference program areas named in 419.201) the bidders' mailing lists 
of individuals receiving solicitations which will contain the 
subcontracting clause entitled ``Utilization of Small Business 
Concerns'' (FAR 52.219-8). These lists may be limited to those supplies 
or services of major interest to the requesting firms.
    (g) Developing a program of contacts with local and small (to 
include all preference program areas named in 419.201) trade, business, 
and professional associations and organizations and Indian tribal 
councils to apprise them of USDA's program needs and recurring contract 
requirements.
    (h) Periodically meeting with program managers to discuss 
requirements of the small business preference program, to explore the 
feasibility of breaking large complex requirements into smaller lots 
suitable for participation by small firms, and to encourage program 
managers to meet with these firms so that their capabilities can be 
demonstrated.
    (i) Establishing internal operating procedures which implement the 
requirements of the regulations as set forth in this part 419.
    (j) Compiling data and preparing all reports pertaining to the 
small business program activities, and ensuring that these reports are 
accurate, complete and up-to-date.
    (k) Assisting and counseling small business firms.
    (l) Reviewing proposed large contract requirements that may be 
bundled to determine the potential for breaking out components suitable 
for purchase from small business firms.
    (m) Ensuring that the SBA Resident Procurement Center 
Representative (PCR) is provided an opportunity and reasonable time to 
review any solicitation that meets the dollar threshold for small 
business (including all preference program areas named in 419.201) 
subcontracting plans.


419.201-73  Reports.

    The Director, OSDBU, shall be responsible for submitting reports 
concerning USDA's progress and achievements in the procurement 
preference program.

0
36. Amend the heading of 419.508 to remove ``Solicitation provisions'' 
and add, in its place, ``Solicitation provisions and contract 
clauses''.

0
37. Amend the heading of subpart 419.6 to remove ``Determinations of 
Eligibility'' and add, in its place, ``Determinations of 
Responsibility''.

PART 422--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS


422.604-2  [Amended]

0
38.-39. Amend 422.604-2 as follows:

0
a. Remove ``FAR 22.604-2(c)'' and add, in its place, ``FAR 22.604-
2(b)''.

0
b. Remove ``Secretary of labor'' and add, in its place, ``Secretary of 
Labor''.

0
40. Amend 422.807 to remove ``Director, Office of Federal Contract 
Compliance Programs'', and add, in its place, ``Deputy Assistant 
Secretary for Federal Contract Compliance Programs, Department of 
Labor''.

0
41. Revise subpart 422.13 to read as follows:

[[Page 47]]

Subpart 422.13--Special Disabled Veterans, Veterans of the Vietnam 
Era, and Other Eligible Veterans

Sec.
422.1305 Waivers.
422.1308 Complaint procedures.


422.1305  Waivers.

    (a) The Assistant Secretary for Administration is authorized to 
make the waiver determination in FAR 22.1305(b) that a contract is 
essential to the national security.
    (b) The contracting officer shall submit requests for exemptions 
under FAR 22.1305(a) and (b) through the HCA to the SPE for 
determination by the Assistant Secretary for Administration or referral 
to the Deputy Assistant Secretary for Federal Contract Compliance 
Programs, Department of Labor as appropriate.


422.1308  Complaint procedures.

    The contracting officer shall forward complaints received about the 
administration of the Vietnam Era Veterans Readjustment Assistance Act 
directly to the Department of Labor as prescribed in FAR 22.1308.

0
42. Amend the heading of subpart 422.14 to remove the words ``the 
Handicapped'' and add, in their place, ``Workers With Disabilities''.

0
43. Amend paragraph (a) of 422.1403 to remove the words ``concurrence 
of the Director, OFCCP'' and add, in their place, the words ``the 
concurrence of the Deputy Assistant Secretary for Federal Contract 
Compliance Programs, Department of Labor''.

PART 423--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE 
ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

0
44. Revise Part 423 to read as follows:
Subpart 423.1--[Reserved]
Subpart 423.2--Energy and Water Efficiency and Renewable Energy
Sec.
423.202 Policy.
Subpart 423.4--Use of Recovered Materials
423.400 Scope of subpart.
423.402 [Reserved]
423.403 Policy.
423.404 Agency affirmative procurement programs.
423.405 Procedures.
Subpart 423.5--Drug-Free Workplace
423.506 Suspension of payments, termination of contract, and 
debarment and suspension actions.
Subpart 423.6--Notice of Radioactive Material
423.601 Requirements.
Subpart 423.7--Contracting for Environmentally Preferable Products and 
Services
423.703 Policy.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

Subpart 423.1--[Reserved]

Subpart 423.2--Energy and Water Efficiency and Renewable Energy

423.202 Policy.
    Information on Energy Star, energy efficient, water efficient, and 
low standby products covered by this policy is available via the 
Internet at https://www.eere.energy.gov/femp/technologies/
eeproducts.cfm.

Subpart 423.4--Use of Recovered Materials


423.400  Scope of subpart.

    This subpart implements and supplements FAR policies and procedures 
for acquiring products and services when preference is given to offers 
of products containing recovered materials. This subpart further 
supplements FAR subpart 23.4 by providing guidance for affirmative 
procurement programs in accordance with Executive Order 13101 and 42 
U.S.C. 6962.


423.402  [Reserved]


423.403  Policy.

    It is the policy of USDA to acquire and use Environmental 
Protection Agency (EPA) designated recycled content products.


423.404  Agency affirmative procurement programs.

    The USDA affirmative procurement program (APP) policy applicable to 
all USDA agencies and staff offices is hereby established. The 
components of this APP include:
    (a) Recovered Materials Preference Program. In accord with the 
requirements of Section 402(c) of Executive Order 13101, Greening the 
Government Through Recycling, Waste Prevention, and Federal 
Acquisition, USDA agencies will include, in all applicable 
solicitations and contracts, a preference for products and services 
which meet or exceed the EPA purchasing guidelines as contained in the 
EPA product Recovered Materials Advisory Notices (RMANs). Agencies may 
choose an evaluation factor preference, or other method of indicating 
preference in accord with their agency needs. Agencies will, as 
appropriate, eliminate virgin material requirements in contract 
specifications and replace them with a statement of preference for 
recycled materials.
    (b) Promotion program. USDA agencies will actively promote a 
preference for recovered materials, environmentally preferable 
products, and biobased products in contacts with vendors, in written 
materials, and other appropriate opportunities.
    (c) Reasonable estimation of recovered materials used in the 
performance of contracts. USDA agencies annually will provide in 
writing to the USDA Senior Procurement Executive, in response to a call 
for data for the Resource Conservation and Recovery report, reasonable 
estimates, certification, and verification of recovered material used 
in the performance of contracts.
    (d) Annual review and monitoring of effectiveness of the program. 
USDA agencies will provide an annual assessment of the effectiveness of 
their affirmative procurement program actions in increasing the 
purchase and use of EPA designated products.
    (e) Purchase of EPA designated products. USDA agencies will require 
that 100% of purchases of EPA-designated products contain recovered 
material, unless the item cannot be acquired--
    (1) Competitively within a reasonable time frame;
    (2) Meeting appropriate performance standards; or
    (3) At a reasonable price.
    (f) The 100% purchase requirement of paragraph (e) of this section 
applies to all USDA agency purchases, including those at or below the 
micro-purchase threshold.


423.405  Procedures.

    (a) The threshold of purchase for EPA designated items is $10,000 
per year at the USDA departmental, not individual agency, level. 
Therefore, the APP requirements above, including the 100% purchase 
requirement, apply at the individual agency and staff office level.
    (b) Contracting officers should refer to EPA's list of designated 
products and products identified as recycled content when purchasing 
supplies or services. Information on EPA designated products is 
available at: www.epa.gov/cpg/products.htm.
    (c) All agencies and USDA Contracting Officers must take necessary 
actions to carry out the provisions of the USDA APP policy described in 
this subpart.

[[Page 48]]

Subpart 423.5--Drug-Free Workplace


423.506  Suspension of payments, termination of contract, and debarment 
and suspension actions.

    (a) The contracting officer may recommend waiver of the 
determination to suspend payments, to terminate a contract, or to debar 
or to suspend a contractor.
    (b) The recommendation shall be submitted through the HCA to the 
SPE and shall include a full description of the disruption of USDA 
operations should the determination not be waived.
    (c) The SPE will submit the request for a waiver to the Secretary 
with a recommendation for action.

Subpart 423.6--Notice of Radioactive Material


423.601  Requirements.

    The HCA shall establish a system of instructions to identify the 
installation/facility radiation protection officer.

Subpart 423.7--Contracting for Environmentally Preferable Products 
and Services


423.703  Policy.

    (a) USDA's Affirmative Procurement Program promotes energy-
efficiency, water conservation, and the acquisition of environmentally 
preferable products and services. In its acquisitions, USDA will 
support federal ``green purchasing'' principles in the acquisition of 
products and services that are environmentally preferable or that are 
biobased content products and services.
    (b) USDA agencies will actively promote this preference for 
environmentally preferable products and biobased products in contacts 
with vendors, in written materials, and other appropriate 
opportunities.

PART 424--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

0
45. Revise 424.203 to read as follows:


424.203  Policy.

    USDA regulations implementing the Freedom of Information Act are 
found in 7 CFR, Subtitle A, Part 1, Subpart A. Contracting officers 
shall follow these regulations when responding to requests for 
information.

PART 425--FOREIGN ACQUISITION

0
46. Revise the table of contents of part 425 to read as follows:
Subpart 425.1--Buy American Act--Supplies
Sec.
425.102 [Reserved]
425.103 Exceptions.
425.104 Nonavailable articles.
425.105 Determining reasonableness of cost.
425.108 [Reserved]
Subpart 425.2--Buy American Act--Construction Materials
425.202 Exceptions.
425.203 [Reserved]
425.204 [Reserved]
Subpart 425.3--[Reserved]
Subpart 425.4--[Reserved]
Subpart 425.6--Trade Sanctions
425.602 Exceptions.
Subpart 425.9--[Reserved]
Subpart 425.10--Additional Foreign Acquisition Regulations
425.1001 Waiver of right to examination of records.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).


0
47. Revise subpart 425.1 to read as follows:

Subpart 425.1--Buy American Act--Supplies


425.102  [Reserved]


425.103  Exceptions.

    (a) The Senior Procurement Executive (SPE) shall make the 
determination prescribed in FAR 25.103(a).
    (b) Copies of determinations of nonavailability in accordance with 
FAR 25.103(b)(2) or 25.202(a)(2), for articles, material or supplies 
not listed in FAR 25.104, may be submitted to the SPE for submission to 
the Civilian Agency Acquisition Council (CAAC).


425.104  Nonavailable articles.

    Information required by FAR 25.104(b) shall be submitted to the SPE 
for submission to the CAAC.


425.105  Determining reasonableness of cost.

    The SPE may make the determination prescribed in FAR 25.105(a). 
Requests for a determination by the SPE shall be submitted by the HCA, 
in writing, and shall provide a detailed justification supporting why 
evaluation factors higher than those listed in FAR 25.102(b)(1) and (2) 
should be applied to determine whether the offered price of a domestic 
end product is unreasonable.


425.108  [Reserved]

0
48. Amend 425.202 as follows:

0
a. In the heading of 425.202, remove the word ``Policy'' and add, in 
its place, ``Exceptions''.

0
b. Remove ``FAR 25.202(a)(3)'', and add, in its place, ``FAR 
25.202(a)(1)''.

Subpart 425.3--[Removed and Reserved]

0
49. Remove and reserve subpart 425.3.

Subpart 425.4--[Removed and Reserved]

0
50. Remove and reserve subpart 425.4.

0
51. Add subpart 425.6, to read as follows:

Subpart 425.6--Trade Sanctions


425.602  Exceptions.

    The Secretary, without power of redelegation, has the authority to 
make the necessary determination(s) and authorize award(s) of 
contract(s) in accordance with FAR 25.602(b).

Subpart 425.9--[Removed and Reserved]

0
52. Remove and reserve subpart 425.9.

0
53. Revise subpart 425.10 to read as follows:

Subpart 425.10--Additional Foreign Acquisition Regulations


425.1001  Waiver of right to examination of records.

    The SPE shall make the determination under FAR 25.1001(a)(2)(iii).

PART 426--OTHER SOCIOECONOMIC PROGRAMS

0
54. Remove and reserve subpart 426.70.

PART 428--BONDS AND INSURANCE

0
55. Revise the heading of subpart 428.1 to read as follows:

Subpart 428.1--Bonds And Other Financial Protections

0
56. Revise the heading of subpart 428.2 to read as follows:

Subpart 428.2--Sureties And Other Security For Bonds

PART 432--CONTRACT FINANCING

0
57. Redesignate 432.905 as 432.904, and revise the section heading to 
read as follows:


432.904  Determining payment due dates.

0
58. Redesignate 432.906 as 432.007.

PART 433--PROTESTS, DISPUTES AND APPEALS

0
59. In Part 433, revise all references to ``General Accounting Office'' 
to read ``Government Accountability Office''.

[[Page 49]]

433.104  [Removed and Reserved]

0
60. Remove and reserve 433.104.

PART 434--MAJOR SYSTEM ACQUISITION

0
61. Revise Part 434 to read as follows:
Subpart 434.0--General
Sec.
434.001 Definitions.
434.002 Policy.
434.003 Responsibilities.
434.004 Acquisition strategy.
434.005 General requirements.
434.005-6 Full production.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

Subpart 434.0--General


434.001  Definitions.

    Pursuant to OMB Circular No. A-109 (A-109) and the definition at 
FAR 2.101, within USDA, a system shall be considered a major system if:
    (a) The total acquisition costs (for information technology, life 
cycle costs) are estimated to be $50 million or more, or
    (b) The system, regardless of estimated acquisition or life cycle 
costs, has been specifically designated to be a major system by the 
USDA Acquisition Executive or by the Major Information Technology 
Systems Executive.


434.002  Policy.

    In addition to the policy guidance at FAR 34.002 and other parts of 
the FAR, the policies outlined in paragraph 6 of A-109 should serve as 
guidelines for all contracting activities in planning and developing 
systems, major or otherwise.


434.003  Responsibilities.

    (a) The Secretary of Agriculture or other designated USDA key 
executive is responsible for making four key decisions in each major 
system acquisition process. These are listed in paragraph 9 of A-109 
and elaborated on in paragraphs 10 through 13. The key executives of 
USDA (Secretary, Deputy Secretary, Under Secretaries and Assistant 
Secretaries) individually or as a group will participate in this 
decision making process.
    (b) The Chief Information Officer (CIO) is the Major Information 
Technology Systems Executive. For acquisitions of information 
technology, the CIO will ensure that A-109 is implemented in USDA and 
that the management objectives of the Circular are realized. The CIO is 
responsible for designating the program manager for each major 
information technology system acquisition, designating an acquisition 
to be a major information technology system acquisition, and approving 
the written charter and project control system for each major 
information technology system acquisition.
    (c) The Assistant Secretary for Administration (ASA) is the USDA 
Acquisition Executive for major system acquisitions other than 
acquisitions of information technology. The ASA will ensure that A-109 
is implemented in USDA and that the management objectives of the 
Circular are realized. The ASA is responsible for designating the 
program manager for each major system acquisition, designating an 
acquisition to be a major system acquisition, and approving the written 
charter and project control system for each major system acquisition.
    (d) Heads of contracting activities must:
    (1) Ensure compliance with the requirements of A-109, FAR Part 34 
and AGAR Part 434.
    (2) Ensure that potential major system acquisitions are brought to 
the attention of the USDA Acquisition Executive or the Major 
Information Technology Systems Executive, as appropriate.
    (3) Recommend qualified candidates for designation as program 
managers for each major system acquisition within their jurisdiction.
    (4) Ensure that program managers fulfill their responsibilities and 
discharge their duties.
    (5) Cooperate with the ASA and Major Information.
    Technology Systems Executive in implementing the requirements of A-
109.
    (e) The program manager is responsible for planning and executing 
the major system acquisition, ensuring appropriate coordination with 
the USDA Acquisition Executive and Major Information Technology Systems 
Executive and other key USDA executives.


434.004  Acquisition strategy.

    (a) The program manager will develop, in coordination with the 
Acquisition Executive or Major Information Technology Systems 
Executive, a written charter outlining the authority, responsibility, 
accountability, and budget for accomplishing the proposed objective.
    (b) The program manager will develop, subject to the approval of 
the Acquisition Executive or Major Information Technology Systems 
Executive, a project control system to schedule, monitor, and regularly 
report on all aspects of the project. The control system shall 
establish reporting periods and milestones consistent with the key 
decisions listed in paragraph 9 of A-109.
    (c) Upon initiation of the project, the program manager will report 
regularly to the Acquisition Executive or Major Information Technology 
Systems Executive.
    (d) Specific procedures and requirements for information technology 
systems are included in the USDA Information Technology Capital 
Planning and Investment Control Guide which can be accessed on the USDA 
OCIO Web site at https://www.ocio.usda.gov.


434.005  General requirements.


434.005-6  Full production.

    The Secretary or the USDA key executive designated by the Secretary 
for the specific program is the agency head for the purposes of FAR 
34.005-6.

PART 436--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS


436.578  [Removed and Reserved]

0
62. Remove and reserve 436.578.

PART 439--ACQUISITION OF INFORMATION TECHNOLOGY

0
63. Add Part 439 to read as follows:
Subpart 439.1--General
Sec.
439.101 Policy.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

Subpart 439.1--General


439.101  Policy.

    (a) In addition to policy and regulatory guidance contained in the 
FAR and AGAR:
    (1) The USDA Information Technology Capital Planning and Investment 
Control Guide (CPIC) establishes requirements for the acquisition of 
information technology.
    (2) Specific thresholds at which USDA Office of the Chief 
Information Officer Information Technology Acquisition Approval is 
required have been established.
    (3) The procurement authority delegated to USDA Agencies is 
established in Departmental Regulations 5000 series.
    (4) The CPIC Guide and USDA CIO policy and procedural guidance are 
available on the USDA OCIO Web site at https://www.ocio.usda.gov. 
Notices of changes in the Information Technology Acquisition Approval 
Thresholds are also promulgated by AGAR Advisory.
    (b) Acquisition of on-line courseware libraries and learning 
management system services requires specific

[[Page 50]]

approval of the ASA and CIO. Information regarding the specific 
approval requirements and processes is promulgated by AGAR Advisory.

PART 445--GOVERNMENT PROPERTY

Subpart 445.6--[Removed and Reserved]

0
64. Remove and reserve subpart 445.6.

PART 450--EXTRAORDINARY CONTRACTUAL ACTIONS

Subpart 450.1--[Removed and Reserved]

0
65. Remove and reserve subpart 450.1.

PART 452--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


452.211-70  [Amended]

0
66. Amend paragraph (a) of 452.211-70 to remove the words ``clause 
452.211-2'' and add, in their place, ``clause 452.211-71''.


452.215-71  [Amended]

0
67. In paragraph (c) of 452.215-71, remove the words ``Requirements for 
Cost or Pricing Data or Other Than Cost or Pricing Data'' and add, in 
their place, ``Requirements for Cost or Pricing Data or Information 
Other Than Cost or Pricing Data''.


452.226-70, 452.226-71 and 452.226-72  [Removed and Reserved]

0
68. Remove and reserve 452.226-70, 452.226-71, and 452.226-72.


452.232-70  [Amended]

0
69. In 452.232-70, remove the words ``Payments Under Fixed-Price 
Construction Contract'' and add, in their place, ``Payments Under 
Fixed-Price Construction Contracts''.


452.236-78  [Removed and Reserved]

0
70. Remove and reserve 452.236-78.

PART 453--FORMS

0
71. Revise 453.213 to read as follows:


453.213  Simplified Acquisition and other simplified purchase 
procedures (AD-838).

    Form AD-838, Purchase Order, is prescribed for use as a Simplified 
Acquisition Procedure/delivery order/task order document in lieu of OF 
347 and OF 348, except that use of the OF 347 and OF 348 is authorized 
when utilizing the USDA Integrated Acquisition System (See 413.307).

    Done in Washington, DC, this 21st day of December, 2004.
W.R. Ashworth,
Director, Office of Procurement and Property Management.
[FR Doc. 04-28439 Filed 12-30-04; 8:45 am]
BILLING CODE 3410-96-P