[Federal Register Volume 72, Number 7 (Thursday, January 11, 2007)]
[Rules and Regulations]
[Pages 1296-1298]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-61]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

48 CFR Parts 3001, 3002, and 3033

[Docket No. DHS-2007-0001]
RIN 1601-AA42


Revision of Department of Homeland Security Acquisition 
Regulation

AGENCY: Department of Homeland Security.

ACTION: Interim rule with requests for comments.

-----------------------------------------------------------------------

SUMMARY: The Department of Homeland Security (DHS) is amending its 
acquisition regulation to reflect a statutorily-mandated jurisdictional 
change for the agency Board of Contract Appeals from the Department of 
Transportation Board of Contract Appeals to the Civilian Board of 
Contract Appeals. DHS is also making several non-substantive amendments 
to its acquisition regulation in order to reflect organization changes.

DATES: This rule is effective January 11, 2007. Comments must reach the 
Department of Homeland Security, Office of the Chief Procurement 
Officer, Acquisition Policy on or before February 12, 2007, to be 
considered in the formation of the final rule.

ADDRESSES: Please submit written comments, identified by agency name 
and docket number DHS-2007-0001, by one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the instructions for submitting comments.
    (2) By mail to the Department of Homeland Security, Office of the 
Chief Procurement Officer, Acquisition Policy and Oversight, ATTN: Anne 
Terry, 245 Murray Drive, Bldg. 410 (RDS), Washington, DC 20528.

FOR FURTHER INFORMATION CONTACT: Anne Terry, Department of Homeland 
Security, Office of the Chief Procurement Officer, Acquisition Policy, 
at (202) 447-5253.

SUPPLEMENTARY INFORMATION:

I. Request for Comments
II. Background
III. Discussion of Interim Rule
IV. Regulatory Requirements
    A. Executive Order 12866 Assessment
    B. Regulatory Flexibility Act
    C. Good Cause To Issue an Interim Rule

I. Request for Comments

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of this 
rule. Comments should be organized by Homeland Security Acquisition 
Regulation (HSAR) Part, and address the specific section that is being 
commented on. All comments received will be posted without change to 
http://www.regulations.gov, including any personal information 
provided. See ADDRESSES above for information on how to submit 
comments. If you submit comments by mail, please submit them in an 
unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. If you would like DHS to acknowledge 
receipt of comments submitted by mail, please enclose a self-addressed, 
stamped postcard or envelope. DHS will consider all comments and 
material received during the comment period.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov.

II. Background

    In the National Defense Authorization Act for Fiscal Year 2006, 
Congress established the Civilian Board of Contract Appeals (CBCA), and 
terminated every agency Board of Contract Appeals (BCA), except those 
for the armed services, the Tennessee Valley Authority, and the U.S. 
Postal Service. Public Law 109-163, Title VIII, section 847.
    The General Services Administration (GSA) announced this change by 
Notice in the Federal Register. See 71 FR 65825 (Nov. 9, 2006). In that 
Notice, GSA stated that, effective January 6, 2007, jurisdiction would 
be transferred from the BCAs for GSA and the Departments of 
Agriculture, Energy, Housing and Urban Development, Interior, Labor, 
Transportation, and Veterans Affairs to the CBCA.
    Through January 5, 2007, DHS contract appeals were handled by the 
Department of Transportation's BCA. However, on January 6, 2007, BCA 
jurisdiction for DHS transferred to the CBCA. While the statutory 
change with regard to BCA jurisdiction was self-executing, this rule is 
required to ensure that the information contained in the HSAR regarding 
contract appeals is accurate, and corresponds to the requirements of 
section 847 of the 2006 National Defense Authorization Act.
    This rule also provides technical amendments to correct 
organizational information reflected in the HSAR.
    General changes made to HSAR by this rulemaking are provided in the 
list below.

III. Discussion of Interim Rule

    The interim rule revises HSAR 48 CFR 3001.104, 3002.270, 3033.201, 
3033.211 and 3033.214 to implement Public Law 109-163, Title VIII, 
Section 847 (jurisdictional change for hearing and deciding contract 
appeals for DHS).
    This rule also establishes additional technical amendments at HSAR 
48 CFR 3001.105-2 and 3002.101 to correct nomenclature for the Federal 
Emergency Management Agency in the HSAR.

IV. Regulatory Requirements

A. Executive Order 12866 Assessment

    DHS has determined that this interim rule is not a major rule under 
5 U.S.C. 804, nor is it a significant regulatory action under Executive 
Order 12866, Regulatory Planning and Review. It therefore does not 
require an assessment of potential costs and benefits under

[[Page 1297]]

section 6(a)(3) of that Order, nor has it been reviewed by the Office 
of Management and Budget.

B. Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the term 
``small entities'' comprises small businesses, not-for-profit 
organizations that are independently owned and operated and are not 
dominant in their fields, and governmental jurisdictions with 
populations of less than 50,000. This interim rule is not expected to 
have a significant economic impact on a substantial number of small 
entities within the meaning of the Regulatory Flexibility Act.

C. Good Cause To Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Homeland Security that urgent and compelling reasons exist to 
promulgate this interim rule regarding jurisdictional changes to 
hearing and deciding contract appeals for DHS without prior opportunity 
for public comment. This action is necessary because the effective date 
for the transfer of jurisdiction from the DOTBCA to the CBCA for DHS 
contract appeals was January 6, 2007. While the statute is self-
executing, DHS believes that it is important to amend its regulations 
promptly in order to ensure that the regulation reflects accurate 
information as to the contract appeals process. Moreover, the 
jurisdictional changes reflected in this rule are the results of 
Congressional action, rather than a new DHS policy. Accordingly, 
providing an opportunity to comment before the change is implemented is 
impracticable and not in the public interest.
    However, pursuant to Public Law 98-577 and Federal Acquisition 
Regulation (FAR) 48 CFR 1.501, DHS will consider public comments 
received in response to this interim rule in the formation of the final 
rule.

List of Subjects in 48 CFR Parts 3001, 3002, and 3033

    Government procurement.

    Dated: January 4, 2007.
Elaine C. Duke,
Chief Procurement Officer.

0
Accordingly, DHS amends 48 CFR parts 3001, 3002 and 3033 as follows:

PART 3001--FEDERAL ACQUISITION REGULATION SYSTEM

0
1. The authority citation for 48 CFR parts 3001, 3002, and 3033 
continues to read as follows:

    Authority: 41 U.S.C. 418b (a) and (b).


0
2. Amend Section 3001.104 by revising paragraphs (b) and (c) to read as 
follows:


3001.104  Applicability.

* * * * *
    (b) The Transportation Security Administration (TSA) exception to 
this regulation is authorized by the Aviation and Transportation 
Security Act of 2001 (section 101(a) of Public Law 107-71).
    (c) Contracts involving Non-Appropriated Fund Instrumentalities 
(NAFIs) must contain suitable dispute provisions and may provide for 
appellate dispute jurisdiction in the Civilian Board of Contract 
Appeals (CBCA). However, the contract must not attempt to confer court 
jurisdiction that does not otherwise exist.
* * * * *

0
3. Amend Section 3001.105-2 by revising paragraph (a) to read as 
follows:


3001.105-2  Arrangement of regulations.

    (a) General. The HSAR, which encompasses both Department-wide and 
Component-unique guidance, conforms to the arrangement and numbering 
system prescribed by 48 CFR 1.105-2. Guidance that is unique to a 
Component contains the organization's acronym or abbreviation directly 
following the title. The following acronyms apply:

Bureau of Customs and Border Protection (CBP);
Bureau of Immigration and Customs Enforcement (ICE);
DHS Office of Procurement Operations (OPO);
Federal Emergency Management Agency (FEMA);
Federal Law Enforcement Training Center (FLETC);
Transportation Security Administration (TSA);
U.S. Coast Guard (USCG); and
U.S. Secret Service (USSS).

PART 3002--DEFINITIONS OF WORDS AND TERMS

0
4. Amend Section 3002.101 by revising the definition for ``Component'' 
to read as follows:


3002.101  Definitions.

* * * * *
    Component means the following entities for purposes of this 
chapter:
    (1) Bureau of Customs and Border Protection (CBP);
    (2) Bureau of Immigration and Customs Enforcement (ICE);
    (3) DHS Office of Procurement Operations (OPO);
    (4) Federal Emergency Management Agency (FEMA);
    (5) Federal Law Enforcement Training Center (FLETC);
    (6) Transportation Security Administration (TSA); (TSA is exempt 
from the HSAR and HSAM, pursuant to the ``Aviation and Transportation 
Security Act of 2001'');
    (7) U.S. Coast Guard (USCG); and
    (8) U.S. Secret Service (USSS).
* * * * *

0
5. Section 3002.270 is revised to read as follows:


3002.270  Abbreviations.

CBCA Civilian Board of Contract Appeals
CFO Chief Financial Officer
CIO Chief Information Officer
COCO Chief of the Contracting Office
COR Contracting Officer's Representative
COTR Contracting Officer's Technical Representative
CPO Chief Procurement Officer
D&F Determination and Findings
FOIA Freedom of Information Act
HCA Head of Contracting Activity
J&A Justification and Approval for Other than Full and Open Competition
KO Contracting Officer
MD Management Directive
OCPO Office of the Chief Procurement Officer
OIG Office of the Inspector General
OSDBU Office of Small and Disadvantaged Business Utilization
PCR SBA's Procurement Center Representative
RFP Request for Proposal
SBA Small Business Administration
SBS Small Business Specialist
SPE Senior Procurement Executive

PART 3033--PROTESTS, DISPUTES, AND APPEALS

0
6. Section 3033.201 is revised to read as follows:


3033.201  Definitions.

    Agency Board of Contract Appeals means the Civilian Board of 
Contract Appeals (CBCA).

0
7. Section 3033.211 is revised to read as follows:


3033.211  Contracting Officer's decision.

    For DHS contracts, the Board of Contract Appeals (BCA) noted in 
(FAR) 33.211 is the Civilian Board of Contract Appeals (CBCA) 1800 F 
Street, NW., Washington, DC 20405.

0
8. Section 3033.214(c) introductory text is revised to read as follows:


3033.214  Alternate disputes resolution (ADR).

    (c) The Administrative Dispute Resolution Act (ADRA) of 1996, as 
amended, 5 U.S.C. 571, et seq.,

[[Page 1298]]

authorizes and encourages agencies to use mediation, conciliation, 
arbitration, and other techniques for the prompt and informal 
resolution of disputes, and for other purposes. CBCA guidance on ADR 
may be obtained at http://www.gsbca.gsa.gov/CBCA-17712-v1-CBCA_ADR_INFORMATION.pdf or from the CBCA upon request. ADR procedures may be 
used--
* * * * *
[FR Doc. 07-61 Filed 1-8-07; 11:15 am]
BILLING CODE 4410-10-P