Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations 41

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).

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

http://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: http://

www.access.gpo.gov/nara/cfr/

waisidx_01/45cfr46_01.html’’ in its 

place.

352.270–9 [Amended]

■ 21.–22. Amend section 352.270–9 by 

removing the heading in paragraph (a) 

reading ‘‘Notice to Offerors of 

Requirement for Adequate Assurance of 

Protection of Vertebrate Animal Subjects 

(Sep. 1985)’’ and adding ‘‘Notice to 

Offerors of Requirement for Compliance 

with the Public Health Service Policy on 

Humane Care and Use of Laboratory 

Animals (Revised 1986, Reprinted 

2000)’’ in its place; and amend section 

352.270–9 by removing in the 

undesignated paragraph under the 

heading ‘‘Office for Protection from 

Research Risks (OPRR),’’ and adding 

‘‘Office of Laboratory Animal Welfare 

(OLAW)’’ in its place.

■ 23. Add new section 352.333–7001, to 

read as follows:

352.333–7001 Choice of Law (Overseas). 

As prescribed in 333.215–70, use the 

following clause:

Choice of Law (Overseas) 

This contract shall be construed and 

interpreted in accordance with the 

substantive laws of the United States of 

America. By the execution of this contract, 

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)

AGENCY: Office of Procurement and 

Property Management, USDA.

ACTION: Direct final rule.

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 

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: http://

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 http://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. 

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. 

(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:

Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations 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.

■ For the reasons set out in the preamble, 

48 CFR Chapter 4 is amended as set forth 

below:

■ 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).

44 Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations 

PART 401—AGRICULTURE 

ACQUISITION REGULATION SYSTEM

■ 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.

■ 3. Amend 401.170 to remove ‘‘URL 

http://www.usda.gov/da/procure.html’’

and add, in its place, ‘‘URL http://

www.usda.gov/procurement/’’.

■ 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.

■ 5. Amend 401.301 as follows:

■ a. Remove ‘‘Food and Consumer 

Service’’ and add, in its place, ‘‘Food and 

Nutrition Service’’.

■ b. Remove ‘‘Office of Operations’’ and 

add, in its place, ‘‘Departmental 

Administration’’.

■ 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 http://

www.usda.gov/procurement/.

PART 403—IMPROPER BUSINESS 

PRACTICES AND PERSONAL 

CONFLICTS OF INTEREST

■ 7. Remove ‘‘(a)’’ and paragraph (b) in 

403.104–10, and redesignate 403.104–10 

as 403.104–7.

■ 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.

■ 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

■ 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).

■ 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.

■ 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]

■ 13. Remove and reserve 404.601.

■ 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’’.

■ 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.

■ 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 

Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations 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 http://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’’.

■ 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

■ 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

■ 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]

■ 21. Remove and reserve subpart 407.3.

PART 408—REQUIRED SOURCES OF 

SUPPLIES AND SERVICES

Subpart 408.7—Amended

■ 22. Amend subpart 408.7 to remove the 

word ‘‘Advocate’’ wherever it appears 

and add, in its place, the word ‘‘Liaison.’’

■ 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]

■ 24. Amend 408.705 to remove the 

word ‘‘action’’ and add, in its place, the 

word ‘‘performance.’’

■ 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

■ 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 JavitsWagner-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

■ 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.

■ 28. Redesignate 411.105 as 411.106.

PART 413—SIMPLIFIED ACQUISITION 

PROCEDURES

■ 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

■ 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.

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’’.

PART 416—TYPES OF CONTRACTS

■ 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

■ 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 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 

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.

■ 36. Amend the heading of 419.508 to 

remove ‘‘Solicitation provisions’’ and 

add, in its place, ‘‘Solicitation provisions 

and contract clauses’’.

■ 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]

■ 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)’’.

■ b. Remove ‘‘Secretary of labor’’ and 

add, in its place, ‘‘Secretary of Labor’’.

■ 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’’.

■ 41. Revise subpart 422.13 to read as 

follows:

Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations 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.

■ 42. Amend the heading of subpart 

422.14 to remove the words ‘‘the 

Handicapped’’ and add, in their place, 

‘‘Workers With Disabilities’’.

■ 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

■ 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 http://

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 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.

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 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

■ 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:

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).

■ 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]

■ 48. Amend 425.202 as follows:

■ a. In the heading of 425.202, remove 

the word ‘‘Policy’’ and add, in its place, 

‘‘Exceptions’’.

■ b. Remove ‘‘FAR 25.202(a)(3)’’, and 

add, in its place, ‘‘FAR 25.202(a)(1)’’.

Subpart 425.3—[Removed and 

Reserved]

■ 49. Remove and reserve subpart 425.3.

Subpart 425.4—[Removed and 

Reserved]

■ 50. Remove and reserve subpart 425.4.

■ 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]

■ 52. Remove and reserve subpart 425.9.

■ 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

■ 54. Remove and reserve subpart 

426.70.

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:

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:

432.904 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’’.

Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Rules and Regulations 49

433.104 [Removed and Reserved]

■ 60. Remove and reserve 433.104.

PART 434—MAJOR SYSTEM 

ACQUISITION

■ 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 http://

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]

■ 62. Remove and reserve 436.578.

PART 439—ACQUISITION OF 

INFORMATION TECHNOLOGY

■ 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 http://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

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

Subpart 445.6—[Removed and 

Reserved]

■ 64. Remove and reserve subpart 445.6.

PART 450—EXTRAORDINARY 

CONTRACTUAL ACTIONS

Subpart 450.1—[Removed and 

Reserved]

■ 65. Remove and reserve subpart 450.1.

PART 452—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES

452.211–70 [Amended]

■ 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]

■ 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]

■ 68. Remove and reserve 452.226–70, 

452.226–71, and 452.226–72.

452.232–70 [Amended]

■ 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]

■ 70. Remove and reserve 452.236–78.

PART 453—FORMS

■ 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

DEPARTMENT OF TRANSPORTATION

Research and Special Programs 

Administration 

49 CFR Part 199 

[Docket RSPA–97–2995; Notice 12] 

Pipeline Safety: Random Drug Testing 

Rate

AGENCY: Research and Special Programs 

Administration (RSPA), DOT.

ACTION: Notice of minimum annual 

percentage rate for random drug testing. 

SUMMARY: Each year pipeline operators 

randomly select employees to test for 

prohibited drugs. The number of 

selections may not be less than the 

minimum annual percentage rate the 

Research and Special Programs 

Administration’s (RSPA) Office of 

Pipeline Safety (OPS) determines, either 

50 percent or 25 percent of covered 

employees, based on the industry’s 

positive rate of random tests. In 

accordance with applicable standards, 

RSPA/OPS has determined that the 

positive rate of random drug tests 

reported by operators this calendar year 

for testing done in calendar year 2003 is 

less than 1.0 percent. Therefore, in 

calendar year 2005, the minimum 

annual percentage rate for random drug 

testing is 25 percent of covered 

employees.

DATES: Effective January 1, 2005, 

through December 31, 2005.

FOR FURTHER INFORMATION CONTACT:

Sheila Wright, RSPA, OPS, Room 2103, 

U.S. Department of Transportation, 400 

Seventh Street, SW., Washington, DC 

20590, telephone (202) 366–4554 or email sheila.wright@rspa.dot.gov.

SUPPLEMENTARY INFORMATION: Operators 

of gas, hazardous liquid, and carbon 

dioxide pipelines and operators of 

liquefied natural gas facilities must 

annually submit Management 

Information System (MIS) reports of 

drug testing done in the previous 

calendar year (49 CFR 199.119(a)). One 

of the uses of this information is to 

calculate the minimum annual 

percentage rate at which operators must 

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