[Federal Register Volume 61, Number 137 (Tuesday, July 16, 1996)]
[Proposed Rules]
[Pages 37032-37034]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17920]


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DEPARTMENT OF AGRICULTURE

48 CFR Parts 401 Through 453

RIN 0599-AA00


Agriculture Acquisition Regulation; Revision

AGENCY: Procurement and Property Management, Department of Agriculture.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This notice invites written comments on a proposed amendment 
to the Agriculture Acquisition Regulation (AGAR). We are revising the 
AGAR to reflect changes in acquisition law and regulations since the 
AGAR's last major revision in 1988, to update organizational references 
throughout the AGAR, and to streamline the AGAR as part of the 
President's Regulatory Reform Initiative.

DATES: Comments must be submitted on or before September 16, 1996.

ADDRESSES: Requests for a copy of the proposed rule should be sent to 
U.S. Department of Agriculture. Procurement and Property Management, 
Procurement Policy Division, STOP 9303, 1400 Independence Avenue SW., 
Washington, DC 20250-9303. The Procurement Policy Division has also 
posted a copy of the proposed rule on the Internet for review at 
WWW.USDA.GOV/DA/PROCURE/AGAR.HTM. Submit written comments to the 
Procurement Policy Division at the mailing address listed above, 
through the Internet at [email protected] (alternate: 
[email protected]), or via fax at (202) 720-8972.

FOR FURTHER INFORMATION CONTACT:
Joseph J. Daragan, U.S. Department of Agriculture, Procurement and 
Property Management, STOP 9303, 1400 Independence Avenue SW., 
Washington, DC 20250-9303, (202) 720-5729.

SUPPLEMENTARY INFORMATION:
I. Background
II. Procedural Requirements
    A. Executive Order 12866.
    B. Regulatory Flexibility Act.
    C. Paperwork Reduction Act.
III. Public Comments

I. Background

    The AGAR implements the Federal Acquisition Regulation (FAR), 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 as part of the National Performance Review (NPR) program to 
eliminate necessary

[[Page 37033]]

regulations and improve those that remain in force.
    As an initial step in the NPR regulatory review initiative, the 
Department of Agriculture (USDA) identified parts of the AGAR which 
required updating or streamlining. USDA's review indicated that almost 
all parts required revision. Accordingly, USDA has reviewed and made 
revisions to substantially all parts of the AGAR. In an Advance Notice 
of Proposed Rulemaking (61 FR 7456, February 28, 1996). USDA sought 
comments and suggestions from the public concerning what changes should 
be made to the AGAR. One comment was received from a USDA field office. 
The commenter suggested a change to AGAR part 416; this comment has 
been implemented.
    The principal effects of the proposed rule are as follows:
    (a) References to the Director, Office of Operations, in the AGAR 
are revised to refer to the Senior Procurement Executive (SPE) to 
reflect the reorganization of USDA's Departmental Administration.
    (b) To the extent permitted by the FAR, responsibilities have been 
delegated to the lowest appropriate organizational level.
    (c) Section 401.103-70 is redesignated section 401.370 and revised 
to allow promulgation of interim policies and procedures outside the 
AGAR, subject to the policies of FAR subpart 1.3.
    (d) Section 401.371 is added to establish AGAR Advisories to 
communicate guidance on acquisition issues to establish internal 
acquisition policies and procedures on an interim basis.
    (e) Subpart 403.1 is added to address standards of conduct and 
procurement integrity issues.
    (f) Subpart 405.3 is added to establish procedures for announcement 
of contract awards over $1 million.
    (g) Subpart 405.5 is revised to clarify procedures for publication 
of paid advertisements.
    (h) Subpart 406.2 is added to designate the SPE as the individual 
authorized to make the FAR 6.202 determination.
    (i) Section 407.305 and the accompanying clauses at 452.207-70 and 
452.207-71 are removed since existing FAR coverage is deemed adequate.
    (j) Subpart 407.5 is added to implement FAR subpart 7.5, Inherently 
Governmental Functions.
    (k) 408.7 is added to create an advocacy program for the 
acquisition of products and services from the non-profit agencies 
employing people who are blind or severely disabled.
    (l) Subpart 408.11 is added to establish a preference for recovered 
materials in the leasing vehicles.
    (m) Section 409.504 and the accompanying clause at 452.209-70 are 
removed as superfluous.
    (n) Part 410 is redesignated as part 411 and is revised to 
eliminate unnecessary text and to authorize the Head of the Contracting 
Activity (HCA) to make market acceptance determinations in accordance 
with FAR 11.103(a).
    (o) Subpart 412.1 is redesignated subpart 411.4 and is amended to 
remove prescriptions for clauses at 452.212-70 and 452.212-71. The 
corresponding clauses at 452.212-70 and 452.212-71 are also removed.
    (p) Part 412 is revised to provide coverage for the acquisition of 
commercial items. Subpart 412.3 is added to designate the HCA as the 
individual authorized to approve requests to tailor clauses and terms 
and conditions for commercial items in accordance with FAR 12.302(c).
    (q) Section 413.501 is added to permit issuance of purchase orders 
on other than a fixed price basis if authorized by contracting activity 
written procedures.
    (r) Section 413.505-3 is added to state that use of Standard Form 
44 is not authorized within USDA, and section 413.505-70 is removed 
since form AD-744, Purchase Order-Invoice-Voucher, is no longer used by 
USDA.
    (s) Section 414.407-3 is revised to delegate the authority to make 
mistake in bid determinations to HCA's.
    (t) Section 415.407 is amended to remove prescriptions for 
solicitation provisions at 452.215-73, 452.215-74, and 452.215-75, and 
the corresponding provisions are removed, to eliminate collection of 
unnecessary information from offerors and to provide flexibility to 
tailor requests for proposal submissions.
    (u) Section 415.612 is amended to remove the requirement that the 
HCA must be the formal source selection official for negotiated 
contracts over $500,000.
    (v) Section 415.902 is revised to authorize use of another Federal 
Agency's formalized structured approach for establishing profit or fee 
objectives.
    (w) Section 416.000 is added to allow the use of contract types 
described in FAR part 16 for simplified acquisitions.
    (x) Subpart 416.3, section 416.403, and section 416.404-1 are 
removed because FAR coverage is deemed adequate.
    (y) Section 416.404-2 is amended to remove material adequately 
covered by the FAR.
    (z) Section 417.204 is added to authorize HCA's to approve option 
contracts exceeding 5 years in accordance with FAR 17.204(e).
    (aa) Section 417.204 is amended to remove prescriptions for clauses 
at 452.217-74, 452.217-75, 452.217-76, 452.217-77, 452.217-78, and 
452.217-79, since they have been superseded by FAR clauses 52.217-6, 
52.217-7, and 52.217-9. The referenced AGAR clauses are likewise 
removed from part 452.
    (ab) Subpart 417.4 is removed since USDA does not use the leader 
company contracting method.
    (ac) Subpart 417.6 is removed since USDA does not have the 
requisite statutory authority to enter into management and operating 
contracts.
    (ad) Section 422.302 is added to provide procedures for review of 
liquidated damages assessed under section 104(c) of the Contract Work 
Hours and Safety Standards Act.
    (ae) Subpart 422.70 is added to provide guidance for compliance 
with E.O. 12989, Economy and Efficiency in Government Procurement 
Through Compliance with Certain Immigration and Naturalization Act 
Provisions, February 13, 1996.
    (af) Part 423 is revised to update the part and to address changes 
in environmental and safety law and in the FAR.
    (ag) Subpart 423.4 is added to incorporate USDA's Acquisition, 
Recycling, and Waste Prevention Program, initiated to comply with 42 
U.S.C. 6901, et seq., and with E.O. 12873, Federal Acquisition, 
Recycling, and Waste Prevention, October 20, 1993.
    (ah) Subpart 430.2 is revised to update procedures for waivers of 
the Cost Accounting Standards and of Disclosure Statements.
    (ai) Section 432.006 is added to provide procedures for reduction 
or suspension of contract payments upon finding of fraud.
    (aj) Subparts 432.1 and 432.2 are added to supplement FAR coverage 
on financing for commercial and non-commercial items.
    (ak) Subpart 432.6 is added to implement the FAR coverage on 
contract debts.
    (al) Subpart 432.7 is added to address USDA specific funding 
issues.
    (am) Part 433 is modified to provide an alternate forum for agency 
protests.
    (an) Part 434 is amended to remove superfluous material and to 
identify the official(s) authorized to make the decisions under FAR 
34.005-6.
    (ao) Section 436.602-1 is amended to remove obsolete selection 
criteria.
    (ap) Section 437.110 is amended to remove the prescription for the 
clause at

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452.237-72, and the corresponding clause, since FAR 52.237-1 may be 
used instead of this clause.
    (aq) Section 442.704 and the clause at 452.242-70 are removed, 
since the FAR provides identical coverage.
    (ar) Section 442.1502 is added to delegate to HCA's responsibility 
for establishing past performance evaluation procedures and systems as 
required by FAR 42.1502 and 42.1503.
    (at) Section 449.501 is added to delegate authority to HCA's to 
approve the use of special purpose termination clauses pursuant to FAR 
49.501.

II. Procedural Requirements

A. Executive Order 12866

    A work plan was prepared for this regulation and submitted to the 
Office of Management and Budget pursuant to Executive Order 12866. The 
proposed rule has been determined to be not significant for the 
purposes of Executive Order 12866. Therefore, the proposed rule has not 
been reviewed by the Office of Management and Budget.

B. Review Under the Regulatory Flexibility Act

    The proposed rule was reviewed 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. The AGAR is 
issued to implement or supplement the FAR, and does not materially add 
to the impact of the FAR regulations it implements or supplements. USDA 
certifies that this proposed 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 Revision) in correspondence.

C. Paperwork Reduction Act

    Information collection and recordkeeping required by the AGAR have 
been approved by the OMB. OMB control numbers 0505-0010, 0505-0011, 
0505-0013, 0505-0014, 0505-0015, and 0505-0016 apply to the AGAR. No 
additional information collection or recordkeeping requirements are 
imposed on the public by this proposed rulemaking. Accordingly no OMB 
clearance is required by section 350(h) of the Paperwork Reduction Act, 
44 U.S.C. 3501, et. seq., or OMB's implementing regulation at 5 CFR 
Part 1320.

III. Public Comments

    Interested persons are invited to participate in this rulemaking by 
submitting views and comments with respect to the proposed AGAR 
revision set out in this notice. All written comments will be carefully 
assessed and fully considered prior to publication of the final rule.

List of Subjects in 48 CFR Parts 401 Through 453

    Government contracts, Government procurement.

    For the reasons set out in this preamble, the Department proposes 
to amend Chapter 4 of Title 48 of the Code of Federal Regulations. 
Copies of the proposed rule may be obtained from the addresses set 
forth above.
W.R. Ashworth,
Director, Procurement and Property Management.
[FR Doc. 96-17920 Filed 7-15-96; 8:45 am]
BILLING CODE 3410-XE-M