Federal Register / Vol. 75, No. 176 / Monday, September 13, 2010 / Proposed Rules 55529 

Flooding source(s) Location of referenced elevation 

* Elevation in feet 

(NGVD) 

+ Elevation in feet 

(NAVD) 

# Depth in feet 

above ground 

∧Elevation in meters 

(MSL) 

Communities affected 

Effective Modified 

** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the referenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for 

exact locations of all BFEs to be changed. 

Send comments to Roy E. Wright, Deputy Director, Risk Analysis Division, Federal Insurance and Mitigation Administration, Federal Emergency 

Management Agency, 500 C Street, SW., Washington, DC 20472. 

ADDRESSES 

City of Aberdeen 

Maps are available for inspection at City Hall, 125 West Commerce Street, Aberdeen, MS 39730. 

City of Amory 

Maps are available for inspection at City Hall, 109 Front Street South, Amory, MS 38821. 

Unincorporated Areas of Monroe County 

Maps are available for inspection at the Monroe County Courthouse, 301 South Chestnut Street, Aberdeen, MS 39730. 

(Catalog of Federal Domestic Assistance No. 

97.022, ‘‘Flood Insurance.’’) 

Dated: September 1, 2010. 

Sandra K. Knight, 

Deputy Federal Insurance and Mitigation 

Administrator, Mitigation, Department of 

Homeland Security, Federal Emergency 

Management Agency. 

[FR Doc. 2010–22762 Filed 9–10–10; 8:45 am] 

BILLING CODE 9110–12–P 

DEPARTMENT OF HOMELAND 

SECURITY 

48 CFR Parts 3001, 3002, 3003, 3004, 

3005, 3006, 3009, 3012, 3018, 3022, 

3023, 3033, 3035, 3036, 3042, 3045, 

3052, and 3053 

[Docket No. DHS–2009–0085; HSAR Case 

2009–002] 

RIN 1601–AA28 

Homeland Security Acquisition 

Regulation (HSAR); Revision Initiative 

AGENCY: Office of the Chief Procurement 

Officer, DHS. 

ACTION: Proposed rule with request for 

comments. 

SUMMARY: DHS is proposing to amend 

multiple sections of the Homeland 

Security Acquisition Regulation (HSAR) 

to align existing content with the 

Federal Acquisition Regulation (FAR); 

to implement Section 695 of the PostKatrina Emergency Management Reform 

Act of 2006; to clarify agency 

acquisition regulations; and to provide 

editorial corrections. The HSAR Part 

3006 proposed amendment reflects the 

necessary implementation for the 

statutory change restricting the length of 

certain noncompetitive contracts 

entered into by the Department of 

Homeland Security to facilitate the 

response to or recovery from a natural 

disaster, act of terrorism, or other manmade disaster. 

DATES: Comments must reach the 

Department of Homeland Security, 

Office of the Chief Procurement Officer, 

Acquisition Policy and Legislation, on 

or before November 12, 2010, to be 

considered in the formulation of the 

final rule. 

ADDRESSES: Please submit written 

comments, identified by agency name 

and docket number DHS–2009–0085, by 

one of the following methods: 

(1) Federal eRulemaking Portal: 

http://www.regulations.gov. To submit 

comments, follow instructions on 

www.regulations.gov and use docket 

number DHS–2009–0085. 

(2) By mail to the Department of 

Homeland Security, Office of the Chief 

Procurement Officer, Acquisition Policy 

and Legislation, ATTN: Teresa 

McConahie, 245 Murray Drive, Bldg. 

410 (RDS), Washington, DC 20528. 

FOR FURTHER INFORMATION CONTACT: 

Teresa McConahie, Senior Procurement 

Analyst, at (202) 447–0271 for 

clarification of content. 

SUPPLEMENTARY INFORMATION: 

I. Request for Comments 

II. Background 

III. Discussion of Proposed Rule 

IV. Regulatory Analyses 

A. Executive Order 12866 Assessment 

B. Regulatory Flexibility Act 

C. Paperwork Reduction Act 

D. Executive Order 13132 (Federalism) 

E. National Environmental Policy Act 

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 

proposed 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://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 

81⁄2 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 post 

card or envelope. DHS will consider all 

comments and material received during 

the comment period. 

Docket: For access to the docket in 

order to read background documents or 

comments received, go to http:// 

www.regulations.gov, follow the 

instructions or review the FAQs tab on 

the home page. 

II. Background 

This proposed rule would amend the 

Department’s acquisition regulation 

which was initially issued in 2003. 68 

FR 67871 (Dec. 4, 2003) as amended at 

71 FR 25767 (May 2, 2006). Section 695 

of the Post-Katrina Emergency 

Management Reform Act of 2006 

(PKEMRA), Public Law 109–295, 120 

Stat. 1394, 1460 (Oct. 4, 2006), directed 

the Secretary to promulgate regulations 

establishing a 150-day contract period 

limit for declared disaster-or-recoveryrelated contracts ‘‘entered into using 

procedures other than competitive 

procedures.’’ Contracts to be covered by 

the proposed section 695 PKEMRA 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

55530 Federal Register / Vol. 75, No. 176 / Monday, September 13, 2010 / Proposed Rules 

regulation are those awarded in 

response to or recovery from certain 

events: (1) A major disaster or 

emergency declared by the President; (2) 

an uncontrolled fire that the Federal 

Emergency Management Agency has 

approved under a fire management 

assistance declaration; or (3) an incident 

for which the National Operations 

Center (NOC), through the National 

Response Coordination Center (NRCC), 

coordinates the activation of the 

appropriate Emergency Support 

Functions and the Secretary of 

Homeland Security has designated a 

Federal Resource Coordinator (FRC) to 

manage Federal resource support. 

Following is a description of events and 

processes leading to such declarations 

or designations. 

Stafford Act Major Disaster or 

Emergency Declaration 

The Robert T. Stafford Disaster Relief 

and Emergency Assistance Act, 42 

U.S.C. 5121 through 5207 (The Stafford 

Act), and its implementing regulations 

at 44 CFR part 206 set forth a process 

for a Governor to request the President 

to declare a major disaster or 

emergency: 

Æ If an event is beyond the combined 

response capabilities of the State and 

affected local governments; and 

Æ If, based on the findings of a joint 

Federal-State-local Preliminary Damage 

Assessment (PDA), the damages are of 

sufficient severity and magnitude to 

warrant assistance under the Stafford 

Act. In a particularly fast-moving or 

clearly devastating disaster, there may 

be an expedited declaration, and the 

PDA may be deferred until after the 

declaration. 

Æ The President may direct 

emergency assistance without a 

Governor’s request if an incident occurs 

that involves a subject area that is 

exclusively or preeminently the 

responsibility of the United States. The 

President will consult the Governor of 

any affected State, if practicable. 

Æ FEMA may provide accelerated 

Federal assistance and support where 

necessary to save lives, prevent human 

suffering, or mitigate severe damage, 

even in the absence of a specific request. 

The Governor of the affected State will 

be consulted if practicable, but this 

consultation shall not delay or impede 

the provision of such rapid assistance. 

Fire Management Assistance 

Declarations 

The Governor of a State submits the 

request for a fire management assistance 

declaration to the Regional Director 

while the fire is burning uncontrolled. 

The Regional Director gathers the State’s 

information, calls upon the Principal 

Advisor for an assessment, and develops 

a Regional summary and 

recommendation to be forwarded to the 

FEMA Recovery Division Director, or 

designee. The FEMA Recovery Division 

Director approves or denies the State’s 

request based on: 

The conditions that existed at the time 

of the State’s request; 

Whether or not the fire or fire complex 

threatens such destruction as would 

constitute a major disaster. 

There are four criteria in which the 

FEMA Recovery Division Director, or 

designee, evaluates the threat posed by 

a fire or fire complex: 

• Threat to lives and improved 

property, including threats to critical 

facilities/infrastructure, and critical 

watershed areas; 

• Availability of State and local 

firefighting resources; 

• High fire danger conditions, as 

indicated by nationally accepted indices 

such as the National Fire Danger Ratings 

System; and 

• Potential major economic impact. 

After rendering a determination, the 

FEMA Recovery Division Director, or 

designee, notifies the Regional Director, 

who in turn notifies the State. 

Designation of Federal Resource 

Coordinator in Non-Stafford Act 

Situations 

The Department of Homeland 

Security (DHS) sometimes takes action 

to support a Federal department or 

agency that has requested DHS 

assistance in handling a disaster that 

falls under the requesting department or 

agency’s jurisdiction. Key operational 

units that may be activated include the 

National Response Coordination Center 

(NRCC), Regional Response 

Coordination Center (RRCC), and Joint 

Field Office (JFO). 

Federal departments and agencies 

routinely manage the response to 

incidents under their statutory or 

executive authority that do not require 

the assistance of other Federal agencies. 

When a Federal entity with primary 

responsibility and authority for 

handling an incident requires 

assistance, that agency may request DHS 

coordination of Federal multiagency 

assistance. In such cases, DHS 

coordinates assistance using the 

procedures and structures within the 

National Response Framework. 

Generally, the requesting agency funds 

the participation of other Federal 

departments and agencies in accordance 

with provisions of the Economy Act 

unless other pertinent authorities exist. 

To initiate Federal-to-Federal support, 

the requesting agency submits a request 

for assistance to the DHS Executive 

Secretary via the National Operations 

Center (NOC). Requests include a 

summary of the situation, types and 

amount of resources needed, financial 

information, and any other appropriate 

details. Upon approval of the request, 

the Secretary of Homeland Security 

issues an operations order to the NOC. 

The NOC, through the NRCC, 

coordinates the activation of the 

appropriate Emergency Support 

Functions. The Secretary of Homeland 

Security designates a Federal Resource 

Coordinator (FRC) to manage Federal 

resource support. In circumstances 

requiring extraordinary coordination, 

the Secretary may appoint a Principal 

Federal Official to serve as his or her 

representative in the field. 

The requesting agency then designates 

a senior official to work in coordination 

with the FRC as part of the Unified 

Coordination Group to identify and 

define specific support requirements. 

The requesting agency also provides 

comptrollers to the NRCC, RRCC, and 

JFO, as appropriate, to oversee financial 

management activities. An RRCC may 

be fully or partially activated to 

facilitate the deployment of resources 

until a JFO is established. Facilities, 

such as mobilization centers, may be 

established to accommodate personnel, 

equipment, and supplies. Federal 

agencies provide resources under 

interagency reimbursable agreements or 

their own authorities. 

Although the Department considered 

establishing separate disaster 

declaration standards applicable only to 

section 695, the Department determined 

it was not wise. Declaration of a disaster 

under such separate 695 standards 

would likely confuse the public if the 

President or other recognized officials 

did not make a declaration for the same 

incident under the Stafford Act or other 

pre-existing authority. 

In addition to fulfilling this 

Congressional mandate, this proposed 

rule would further align HSAR with the 

FAR by, among other changes, adding 

new departmental procedures to 

implement recent regulatory changes on 

contractor disclosures; clarifying 

existing content or policy, such as 

release of contract information; making 

editorial revisions of prior content, such 

as correcting typographical errors and 

Web site addresses; and making changes 

to other administrative information. 

III. Discussion of Proposed Rule 

This proposed rule would amend 48 

CFR parts 3001, 3002, 3003, 3004, 3005, 

3006, 3009, 3012, 3018, 3022, 3023, 

3033, 3035, 3036, 3042, 3045, 3052, and 

3053. The proposed changes to 48 CFR 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

Federal Register / Vol. 75, No. 176 / Monday, September 13, 2010 / Proposed Rules 55531 

part 3006 would implement section 695 

of the PKEMRA. DHS proposes to 

change the HSAR as described below. 

Part 3001 Federal Acquisition 

Regulations System 

• Add an authority section 3001.103. 

• Add one acquisition office, Office of 

Selective Acquisitions (OSA), to the 

arrangement of regulations section at 

HSAR 3001.105–2. 

• Update information in HSAR 

3001.105–3 for finding the HSAR, 

including accessing the HSAR online 

and add an internet site for accessing 

the Homeland Security Acquisition 

Manual (HSAM). 

• Remove the TSA exception to 

HSAR in HSAR 3001.301, which was 

inadvertently not removed when a 

technical amendment (73 FR 30318, 

May 27, 2008) was published, and 

provide edits or corrections for clarity 

throughout HSAR 3001 subparts. 

Part 3002 Definitions of Words and 

Terms 

• Add an additional office within 

components—the Office of Selective 

Acquisitions (OSA) within the DHS 

Management Directorate. 

• Amend the definition of ‘‘Head of 

the Contracting Activity (HCA)’’ to align 

with the FAR and provide the 

designated organization positions. 

• Amend the definition of ‘‘Senior 

Procurement Executive (SPE)’’ to 

identify his or her responsibilities under 

41 U.S.C. 414(c). 

• Amend the first paragraph in the 

definition of ‘‘Sensitive Information’’ to 

conform it to the related HSAR clause 

in 3052.204–71. 

• Remove the definition of 

‘‘simplified acquisition threshold’’ 

because there is no longer a need for a 

specialized definition given the prior 

removal of HSAR 48 CFR 3013.7004. 73 

FR 30317, 30318, May 27, 2008. 

Part 3003 Improper Business Practices 

and Personal Conflicts of Interest 

• Amend HSAR 3003.101–3 by 

expanding the reference to United States 

Office of Government Ethics regulations 

on the conduct and responsibilities of 

employees contained in 5 CFR part 

2635, to OGE regulations in parts 2634 

through 2641, and by eliminating the 

reference to a DHS replacement 

management directive. 

• Amend paragraph (a) of HSAR 

3003.204 by adding reference to FAR 

3.204(a); amend paragraph (b) to make 

the HCA, rather than the Chief of the 

Contracting Office (COCO), responsible 

for ensuring that hearing procedures 

required by FAR 3.204(b) are afforded 

the contractor; and amend paragraph (c) 

to add notification to the Office of 

Inspector General. References to 

‘‘Government legal counsel’’ are changed 

to ‘‘DHS legal counsel’’ for consistency 

with the HSAR definition of ‘‘legal 

counsel’’ at HSAR 3002.101 and usage 

conventions. 

• Add a new HSAR subpart 3003.10, 

Contractor Code of Business Ethics and 

Conduct, with instructions to 

contractors in HSAR 3003.1003 for 

making disclosure reports. This section 

lists a DHS Web site for obtaining the 

online, Contractor Disclosure Form 

provided by the DHS Office of Inspector 

General. HSAR section 3003.1004 

paragraph (a) contains directions for the 

contracting officer to insert a clause in 

solicitations and contracts with 

instructions for contractor disclosure of 

violations. Paragraph (b) of HSAR 

section 3003.1004 advises contracting 

officers that special posters and 

instructions may be issued for activities 

using disaster recovery funds and 

provides the Web site for obtaining the 

DHS Hotline Poster described in the 

clause at FAR 52.203–14. 

Part 3004 Administrative Matters 

Revise HSAR 3004.470 content for 

consistency and correct publication 

titles for previously identified DHS 

Security Directive and Handbook, and 

remove HSAR 3004.804–1 and its $3- 

million-or-less-estimated-contractamount limitation on the use of quick 

closeout procedures to allow for 

Contracting Officer’s flexibilities for 

contract closeout procedures. 

Part 3005 Publicizing Contract Actions 

Add HSAR 3005.470, Contractor 

Award Announcements, 

Advertisements, and Releases, which 

addresses DHS policy that precludes 

contractors from referring to DHS 

contracts in commercial advertising in a 

manner that states or implies the 

Government approves or endorses the 

product or service or considers it 

superior to other products or services. It 

also incorporates the requirement from 

HSAR 3052.242–71 for advance 

approval of the contracting officer for 

release of contract information under 

contracts that involve sensitive or 

classified information. DHS is 

combining the coverage into a single 

clause, HSAR 3052.205–xx and its 

alternate, to eliminate the potential for 

confusion and facilitate post-award 

contract management. 

Part 3006 Competition Requirements 

Add the implementation of section 

695 of the Department of Homeland 

Security Appropriations Act, 2007, 

Public Law 109–295, Title VI, which 

establishes a limitation on the length of 

certain noncompetitive contracts. The 

law restricts the period of performance 

to 150 days for contracts above the 

simplified acquisition threshold that 

have been entered into by DHS to 

facilitate the response and recovery 

from a natural disaster, act of terrorism, 

or other man-made disaster, where the 

award was made with other than full 

and open competition under the FAR 

subpart 6.302–2, Unusual and 

Compelling Urgency. In order to 

implement the statutory requirement, 

DHS proposes to add: HSAR 3006.302– 

1, Only one responsible source and no 

other supplies or services will satisfy 

agency requirements; HSAR 3006.302– 

270, Unusual and Compelling Urgency; 

HSAR 3006.303, Justifications, HSAR 

3006.303–270, Contents, and HSAR 

3006.304, Approval of the Justification. 

Part 3009 Contractor Qualifications 

Add HSAR 3009.403 to identify the 

HCA as the debarring and suspending 

official without authority to redelegate. 

Part 3012 Acquisition of Commercial 

Items 

Remove the HSAR Part 3012 

‘‘Reserved’’ identification and add new 

content, including the prescription for 

the new HSAR clause, 3052.212–XX, 

Contract Terms and Conditions 

Applicable to DHS Acquisition of 

Commercial Items. 

Part 3018 Emergency Acquisitions 

Remove HSAR Part 3018 ‘‘Reserved’’ 

identification and add a reference in 

HSAR 3018 for Emergency Acquisitions 

and Available Acquisition Flexibilities. 

Part 3023 Environment, Conservation, 

Occupational Safety, and Drug-Free 

Workplace 

Amend HSAR Part 3023 to align with 

the current FAR Part 23 title and 

provide information regarding the DHS 

Sustainable Practices policy. 

Part 3033 Protests, Disputes, and 

Appeals 

Amend HSAR 3033 to add 

instructions that ensure protests 

involving classified information for the 

Office of Selective Acquisitions (OSA) 

are transmitted through appropriately 

cleared individuals at GAO, the United 

States Federal Court of Claims, or 

internal protest resolution officials. 

Part 3035 Research and Development 

Contracting 

Amend HSAR 3035.70 to remove 

section 3035.7000, add a section 

3035.70–1 to clarify DHS policy 

regarding dissemination of nonmstockstill on DSKH9S0YB1PROD with PROPOSALS

55532 Federal Register / Vol. 75, No. 176 / Monday, September 13, 2010 / Proposed Rules 

sensitive research information by 

educational institutions, and add a 

section 3035.70–2 to clarify the 

prescription for using the clause at 

HSAR 3052.235–70 for contracts that do 

not involve sensitive or classified 

information and to instruct the 

contracting officer to prepare an 

appropriate clause for contracts 

involving sensitive or classified 

information. 

Part 3036 Construction and ArchitectEngineer Contracts 

Remove HSAR 3036.2, to align with 

FAR Case 2006–022 changes (74 FR 

31557, July 1, 2009), effective July 1, 

2009, which moved the associated FAR 

36 content to FAR subpart 42.15. 

Part 3042 Contract Administration 

and Audit Services 

• Amend HSAR 3042.1502 to identify 

the Contractors Performance 

Assessment Reporting System (CPARS) 

and its modules, Construction 

Contractor Appraisal Support System 

(CCASS) for construction contracts and 

Architect-Engineer Contract 

Administration Support System 

(ACASS) for architect-engineer contracts 

to report contractor performance. 

CPARS replaces the National Institute of 

Health’s CPS as the designated system 

for DHS reporting on contractor 

performance. 

• Delete HSAR 3042.202–70 which 

prescribed the clause at HSAR 

3052.242–71. The changes at HSAR 

3005.470, 3035.70, 3052.205–XX and 

3052.235–70 provide coverage on 

dissemination of contract information. 

Part 3045 Government Property 

Remove the content in HSAR Part 

3045 which is obsolete as a result of the 

FAR Part 45 rewrite. (72 FR 27364, May 

15, 2007) 

Part 3052 Solicitation Provisions and 

Contract Clauses 

• Add the new clause at HSAR 

3052.203–XX Instructions for Contractor 

Disclosure of Violations. 

• Amend HSAR clause 3052.204–71 

to provide typographical corrections 

and remove the Department of State 

publication which is no longer 

published and replace with appropriate 

guidance. 

• Add the new clause at HSAR 

3052.205–XX Advertisements, 

Publicizing Awards, and Releases, and 

its Alternate I. 

• Add the new clause HSAR 

3052.212–XX, Contract Terms and 

Conditions Applicable to DHS 

Acquisition of Commercial Items. 

• Amend clause HSAR 3052.216–71, 

Determination of Award Fee to delete 

the content addressing rollover of award 

fee amounts from one period to 

subsequent periods to align with the 

OMB guidance, Appropriate Use of 

Incentive Contracts issued December 4, 

2007. 

• Amend the reference to the 

prescription of HSAR 3052.235–70 for 

consistency with changes to HSAR 

3035.70–2. 

• Delete the clauses at HSAR 

3052.242–71 and 3052.245–70. 

Procedures for dissemination of 

information will be incorporated into 

HSAR 3052.205–XX. HSAR 3052.245– 

70 clause is rendered obsolete with the 

Part 3045 removal. 

• Add a note to HSAR 3052.101 

identifying where the HSAR Provision 

and Clause matrix can be found on the 

DHS Web site at http://www.dhs.gov/ 

xopnbiz/ under Policy and Regulations, 

Homeland Security Acquisition 

Regulation (HSAR). 

Other technical corrections include 

editing DHS Form numbers in the HSAR 

regulatory text in Parts 3004, 3022, and 

3053 to conform to the DHS published 

forms numbers and removal of HSAR 

3053.245–70, Report of Government 

property to conform to the removal of 

Part 3045 content. 

IV. Regulatory Analyses 

A. Executive Order 12866 Assessment 

This is not a significant regulatory 

action under Section 6(b) of Executive 

Order 12866, Regulatory Planning and 

Review, dated September 30, 1993. The 

Office of Management and Budget has 

not reviewed it under the Order. This 

proposed rule is not a major rule under 

5 U.S.C. 804. 

B. Regulatory Flexibility Act 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601–612), the term ‘‘small 

entities’’ comprises of small businesses, 

not for profit organizations that are 

independently owned and operated and 

are not dominant in their fields, and 

government jurisdictions with 

populations of less than 50,000. DHS 

certifies that this proposed rule will not 

have a significant economic impact on 

a substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act because the rule applies 

to internal approval procedures, 

supplements the Federal Acquisition 

Regulations, and is intended to clarify 

or eliminate existing agency acquisition 

regulations and policies. DHS has not 

performed an initial regulatory 

flexibility analysis. DHS invites 

comments from small entities and other 

interested parties. Such comments 

should be submitted separately and 

should cite HSAR Case 2009–002. See 

ADDRESSES above for information on 

how to submit comments. 

C. Paperwork Reduction Act 

Under the Paperwork Reduction Act 

of 1995, Public Law 104–13, all 

Departments are required to submit to 

the Office of Budget and Management 

(OMB), for review and approval any 

reporting requirements inherent in a 

rule. 

The Paperwork Reduction Act applies 

to this proposed rule. However, the 

information collection requirements 

imposed by the provisions 3052.205–XX 

and 3052.212–XX are currently covered 

by the approved information collection 

requirements for provisions (OMB 

Clearance numbers 1600–0003, PostContract Award Information, and 1600– 

0005, Solicitation of Proposal 

Information for Award of Public 

Contracts). DHS considers that any 

changes due to the use of these clauses 

will be within the estimated hours for 

the existing approved OMB clearance. 

The clause at 3052.203–XX does not 

create a new information collection 

requirement. It provides a format for 

contractors to use when making a 

disclosure under FAR 3.1003 and 

52.203–13. The FAR disclosure 

requirements are approved under OMB 

Clearance Number 9000–0164. 

You need not respond to a collection 

of information unless it displays a 

currently valid control number from 

OMB. Use of these two information 

collections, 1600–0003 and 1600–0005, 

has been approved by OMB until 

January 31, 2012, and October 31, 2011, 

respectively. 

D. Executive Order 13132 (Federalism) 

The proposed rule would not have 

substantial direct effect 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. Therefore, in 

accordance with section 6 of Executive 

Order 13132, DHS has determined that 

this rule does not have sufficient 

federalism implications to warrant the 

preparation of a federalism impact 

statement. 

E. National Environmental Policy Act 

We have analyzed this proposed rule 

under Department of Homeland 

Security Management Directive 023–01 

which guides the Department in 

complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

Federal Register / Vol. 75, No. 176 / Monday, September 13, 2010 / Proposed Rules 55533 

have made a preliminary determination 

this action is one of a category of actions 

which do not individually or 

cumulatively have a significant effect on 

the human environment. This rule, 

which does not involve any 

extraordinary circumstances, appears to 

be categorically excluded under 

paragraphs A3(b) and A3(d) in Table I 

of Appendix A of Directive 023–01 

because it implements legislation and 

amends acquisition regulations without 

changing the regulations’ environmental 

effect. We seek comments or 

information pertinent to these 

determinations. 

List of Subjects in 48 CFR Parts 3001, 

3002, 3003, 3004, 3005, 3006, 3009, 

3012, 3018, 3022, 3023, 3033, 3035, 

3036, 3042, 3045, 3052 and 3053 

Government procurement. 

Dated: August 26, 2010. 

Richard K. Gunderson, 

Acting Chief Procurement Officer, 

Department of Homeland Security. 

Accordingly, DHS amends 48 CFR 

parts 3001, 3002, 3003, 3004, 3005, 

3006, 3009, 3012, 3018, 3022, 3023, 

3033, 3035, 3036, 3042, 3045, 3052, and 

3053 as follows: 

1. The authority citation for 48 CFR 

parts 3001, 3002, 3003, 3004, 3005, 

3006, 3009, 3022, 3023, 3033, 3035, 

3036, 3042, 3045, 3052 and 3053 

continues to read as follows: 

Authority: 5 U.S.C. 301–302, 41 U.S.C. 

418b(a) and (b), 41 U.S.C. 414, 48 CFR part 

1, subpart 1.3, and DHS Delegation Number 

0700. 

PART 3001—FEDERAL ACQUISITION 

REGULATION SYSTEM 

2. Amend Subpart 3001.1 by adding 

section 3001.103 to read as follows: 

3001.103 Authority. 

The HSAR is issued by DHS’s Chief 

Procurement Officer, who is the Senior 

Procurement Executive (SPE), see 41 

U.S.C. 414 and DHS Delegation Number 

0700, under authority of 5 U.S.C. 301– 

302, the Office of Federal Procurement 

Policy Act, Public Law 93–400, 88 Stat. 

796 (1974), including sections 22 and 

25, 41 U.S.C. 418b and 421, and (FAR) 

48 CFR part 1, subpart 1.3. 

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 (FAR) 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 and abbreviations apply: 

DHS Management (MGMT), including 

the Office of Procurement Operations 

(OPO) and the Office of Selective 

Acquisitions (OSA); 

Federal Emergency Management Agency 

(FEMA); 

Federal Law Enforcement Training 

Center (FLETC); 

Transportation Security Administration 

(TSA); 

U.S. Coast Guard (USCG); 

U.S. Customs and Border Protection 

(CBP); 

U.S. Immigration and Customs 

Enforcement (ICE); and 

U.S. Secret Service (USSS). 

4. Revise section 3001.105–3 to read 

as follows: 

3001.105–3 Copies. 

Official versions of the HSAR are 

available in the Code of Federal 

Regulations, as supplemented and 

revised from time to time by the Federal 

Register, both of which are available 

from the Government Printing Office in 

paper and electronic form. The HSAR is 

also available in electronic form at 

http://www.dhs.gov. A convenient but 

unofficial up-to-date version of the 

HSAR is also available from the 

Government Printing office at http:// 

www.gpoaccess.gov/ecfr/index.html. 

The Homeland Security Acquisition 

Manual (HSAM), which complements 

the HSAR, can also be found at http:// 

www.dhs.gov. 

5. In section 3001.301, revise 

paragraph (a)(1) to read as follows: 

3001.301 Policy. 

(a)(1) The HSAR is issued for 

Departmental guidance according to the 

policy cited in (FAR) 48 CFR 1.301. The 

HSAR establishes uniform Department 

of Homeland Security policies and 

procedures for all acquisition activities 

within the Department of Homeland 

Security. Component supplemental 

acquisition regulations to be inserted in 

the HSAR as a HSAR supplement 

regulation must be reviewed and 

approved by the Chief Procurement 

Officer (CPO) before the CPO authorizes 

and submits the proposed content for 

publication in the Federal Register 

under (FAR) 48 CFR part 1, subparts 1.3 

and 1.5. 

* * * * * 

3001.301–70 [Amended] 

6. Amend section 3001.301–70 in 

paragraph (a) introductory text by 

removing ‘‘20598’’ and adding ‘‘20528’’ 

in its place. 

7. In section 3001.301–71, revise 

paragraph (c) to read as follows: 

3001.301–71 Effective Date. 

* * * * * 

(c) Contracting officers must modify 

existing contracts to include HSAR 

changes where required to do so by law. 

Otherwise, contracting officers should 

consider using the Changes clause, 

where feasible, or other suitable 

authority, to modify existing contracts 

to include HSAR changes. 

8. In section 3001.303, revise 

paragraph (a)(3) to read as follows: 

3001.303 Publication and codification. 

(a) * * * 

(3) Coverage in HSAR chapter 30 that 

supplements the FAR will use part, 

subpart, section, and subsection 

numbers ending in ‘‘70’’ through ‘‘89’’. A 

series of numbers beginning with ‘‘70’’ is 

used for provisions and clauses (e.g., 

(HSAR) 48 CFR 3001.301–70). 

* * * * * 

3001.304 [Amended] 

9. Amend section 3001.304 in 

paragraph (a) by adding the words 

‘‘Department of’’ before the words 

‘‘Homeland Security’’ in the first 

sentence. 

3001.403 [Amended] 

10. Amend section 3001.403 by 

removing the word ‘‘deviation’’ in the 

first sentence and adding the word 

‘‘deviations’’ in its place. 

3001.602–3 [Amended] 

11. Amend section 3001.602–3 by 

removing the words ‘‘Department of 

Homeland Security (DHS)’’ in the first 

sentence and adding in their place 

‘‘DHS’’. 

PART 3002—DEFINITIONS OF WORDS 

AND TERMS 

12. Amend section 3002.101 by 

removing the definition of ‘‘Simplified 

acquisition threshold’’ and revising the 

definitions of ‘‘Component’’, ‘‘Head of 

the Contracting Activity (HCA)’’, ‘‘Senior 

Procurement Executive (SPE)’’, and the 

introductory paragraph of the ‘‘Sensitive 

Information’’ definition to read as 

follows: 

3002.101 Definitions. 

* * * * * 

Component means the following 

entities for purposes of this chapter: 

(1) DHS Management (MGMT), 

including the Office of Procurement 

Operations (OPO) and the Office of 

Selective Acquisitions (OSA); 

(2) Federal Emergency Management 

Agency (FEMA); 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

55534 Federal Register / Vol. 75, No. 176 / Monday, September 13, 2010 / Proposed Rules 

(3) Federal Law Enforcement Training 

Center (FLETC); 

(4) Transportation Security 

Administration (TSA); 

(5) U.S. Coast Guard (USCG); 

(6) U.S. Customs and Border 

Protection (CBP); 

(7) U.S. Immigration and Customs 

Enforcement (ICE); and 

(8) U.S. Secret Service (USSS). 

* * * * * 

Head of the Contracting Activity 

(HCA) means the official who has 

overall responsibility for managing the 

contracting activity. For DHS, the HCAs 

are: 

(1) Director, Office of Procurement 

Operations (OPO); 

(2) Director, Office of Selective 

Acquisitions (OSA); 

(3) Director, Procurement (FEMA) 

(4) Chief, Procurement Division 

(FLETC); 

(5) Assistant Administrator for 

Acquisition (TSA); 

(6) Director of Contracting and 

Procurement (USCG); 

(7) Executive Director, Procurement 

(CBP); 

(8) Director, Office of Acquisition 

Management (ICE); and 

(9) Chief, Procurement Operations 

(USSS). 

* * * * * 

Senior Procurement Executive (SPE) 

for the Department of Homeland 

Security means the DHS Chief 

Procurement Officer (CPO), who is the 

individual appointed pursuant to 41 

U.S.C. 414(c) to be responsible for 

management direction of the 

procurement system of DHS, including 

implementation of the unique 

procurement policies, regulations, and 

standards of DHS. 

Sensitive Information, as used in this 

Chapter, means any information which 

if lost, misused, disclosed, or, without 

authorization, is accessed or modified, 

could adversely affect the national or 

homeland security interest, the conduct 

of Federal programs, or the privacy to 

which individuals are entitled under 5 

U.S.C. 552a (the Privacy Act), but which 

has not been specifically authorized 

under criteria established by an 

Executive Order or an Act of Congress 

to be kept secret in the interest of 

national defense, homeland security or 

foreign policy. This definition includes 

the following categories of information: 

* * * * * 

3002.270 [Amended] 

13. Amend the abbreviation list entry 

in section 3002.270 by removing ‘‘HCA 

Head of Contracting Activity’’ and 

adding in its place ‘‘HCA Head of the 

Contracting Activity’’. 

PART 3003—IMPROPER BUSINESS 

PRACTICES AND PERSONAL 

CONFLICTS OF INTEREST 

14. Revise section 3003.101–3 to read 

as follows: 

3003.101–3 Agency regulations. 

The United States Office of 

Government Ethics has promulgated 

regulations applicable to the entire 

Executive Branch that address the 

conduct matters referenced in (FAR) 48 

CFR 3.101–3. See 5 CFR vol. 3, ch. XVI, 

subch. B. The Department of Homeland 

Security has also issued Management 

Directive 0480.1, Ethics/Standards of 

Conduct. 

15. Revise section 3003.204 to read as 

follows: 

3003.204 Treatment of violations. 

(a) The HCA is the official designated 

to make the determination under (FAR) 

48 CFR 3.204(a) whether a gratuities 

violation has occurred. If the HCA has 

been personally and substantially 

involved in the specific procurement, 

the advice of the DHS legal counsel 

should be sought to determine whether 

the CPO should designate an alternate 

decision maker. 

(b) The HCA shall ensure that the 

hearing procedures required by (FAR) 

48 CFR 3.204(b) are afforded to the 

contractor. DHS legal counsel shall be 

consulted regarding the appropriateness 

of the hearing procedures that are 

established. 

(c) If the HCA determines that the 

alleged gratuities violation occurred the 

HCA shall consult with DHS legal 

counsel regarding appropriate action 

and notify the Office of Inspector 

General. 

16. Add Subpart 3003.10 to read as 

follows: 

Subpart 3003.10—Contractor Code of 

Business Ethics and Conduct 

Sec. 

3003.1003 Requirements. 

3003.1004 Contract clauses. 

Subpart 3003.10—Contractor Code of 

Business Ethics and Conduct 

3003.1003 Requirements. 

(a) Contractor requirements. 

Contractors making written disclosures 

under the clause at (FAR) 49 CFR 

52.203–13 must use the electronic form 

at http://www.dhs.gov/xoig/ 

gc_1233236886677.shtm. Contractors 

making disclosures under contracts 

which do not contain the clause at 

(FAR) 48 CFR 52.203–13 are encouraged 

to also use this electronic form. 

3003.1004 Contract clauses. 

(a) The contracting officer shall insert 

the clause at (HSAR) 48 CFR 3052.203– 

XX, Instructions for Contractor 

Disclosure of Violations, in solicitations 

and contracts containing the clause at 

(FAR) 48 CFR 52.203–13. 

(b)(1) There may be different or 

additional DHS OIG hotline posters for 

specific events. When the DHS OIG 

publishes a specific event hotline 

poster, DHS will notify the Office of 

Federal Procurement Policy for further 

instructions on dissemination. 

(2)(ii) The contracting officer should 

complete paragraph (b)(3) of the clause 

at (FAR) 48 CFR 52.203–14 by 

identifying the Web site from which the 

hotline poster can be obtained, http:// 

www.dhs.gov/xoig/assets/ 

DHS_OIG_Hotline.pdf, or the Web site 

from which the Disaster Fraud Hotline 

poster can be obtained for use in 

contracts involving disaster relief 

operations, http://www.dhs.gov/xoig/ 

assets/DHS_OIG_Hotline_Fraud.pdf. 

PART 3004—ADMINISTRATIVE 

MATTERS 

17. Amend section 3004.470–2 by 

revising paragraph (a) to read as follows: 

3004.470–2 Policy. 

(a) DHS’s policies and procedures on 

contractor personnel security 

requirements are set forth in various 

management directives (MDs), 

Directives, and Instructions. MD 

11042.1, Safeguarding Sensitive But 

Unclassified (For Official Use Only) 

Information describes how contractors 

must handle sensitive but unclassified 

information. The DHS Sensitive 

Systems Policy Directive 4300A and the 

DHS 4300A Sensitive System 

Handbook, provide the policies and 

procedures on security for Information 

Technology resources. Compliance with 

these policies and procedures, as 

amended, is required. 

* * * * * 

3004.470–3 [Amended] 

18. Amend section 3004.470–3 in 

paragraph (b) in the second sentence by 

removing the word ‘‘Officers’’ and 

adding ‘‘officers’’ in its place. 

3004.804–1 [Removed] 

19a. Remove section 3004.804–1. 

19b. In section 3004.804–570, revise 

paragraphs (a)(1) through (a)(3) to read 

as follows: 

3004.804–570 Supporting closeout 

documents. 

(a) * * * 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

Federal Register / Vol. 75, No. 176 / Monday, September 13, 2010 / Proposed Rules 55535 

(1) DHS Form 700–3, Contractor’s 

Release (e.g., see (FAR) 48 CFR 52.216– 

7); 

(2) DHS Form 700–2, Contractor’s 

Assignment of Refunds, Rebates, Credits 

and Other Amounts (e.g., see (FAR) 48 

CFR 52.216–7); 

(3) DHS Form 700–1, Cumulative 

Claim and Reconciliation Statement 

(e.g., see (FAR) 48 CFR 4.804–5(a)(13); 

and 

* * * * * 

PART 3005—PUBLICIZING CONTRACT 

ACTIONS 

20. Amend Subpart 3005.4 by adding 

sections 3005.470, 3005.470–1, and 

3005.470–2 to read as follows: 

3005.470 Contractor award 

announcements, advertisements, and 

releases. 

3005.470–1 Policy. 

(a) DHS policy requires its contracting 

officers to restrict DHS contractors from 

referring to its DHS contract(s) in 

commercial advertising in a manner that 

states or implies the Government 

approves or endorses the contractor’s 

products or services or considers them 

superior to other products or services. 

The intent of this policy is to prevent 

the appearance of Government bias 

toward any product or service. 

(b) The Department’s contractors 

share the responsibility for protecting 

sensitive and classified information 

related to efforts under their contracts. 

For any contract that involves sensitive 

or classified information, prior to the 

release of any contract award 

announcement, advertisement, or other 

release of information pertaining to the 

contract, the contractor must obtain the 

approval of the responsible contracting 

officer. 

3005.470–2 Contract clauses. 

(a) Insert the clause at (HSAR) 48 CFR 

3052.205–XX, Advertisements, 

Publicizing Awards, and Releases, in all 

solicitations and contracts that exceed 

the simplified acquisition threshold. 

(b) Except for research contracts with 

educational institutions, if the contract 

involves sensitive or classified 

information, use the clause with its 

Alternate I. For research contracts with 

educational institutions, see (HSAR) 48 

CFR 3035.70–2(b). 

PART 3006—COMPETITION 

REQUIREMENTS 

21. Amend subpart 3006.3 by adding 

sections 3006.302–1, 3006.302–270, 

3006.303, 3006.303–270, 3006.304, and 

3006.304–70 to read as follows: 

Subpart 3006.3—Other Than Full and 

Open Competition 

* * * * * 

3006.302–1 Only one responsible source 

and no other supplies or services will 

satisfy agency requirements. 

3006.302–270 Unusual and compelling 

urgency. 

* * * * * 

3006.303 Justifications. 

3006.303–270 Content. 

3006.304 Approval of justification. 

3006.304–70 DHS Approval of justification. 

3006.302–1 Only one responsible source 

and no other supplies or services will 

satisfy agency requirements. 

(b)(4) The contracting officer may rely 

on this exception in the case where only 

one source is available to provide 

additional units or replacement items 

under a specific make and model 

requirement, but only where the CPO 

has determined in accordance with the 

agency’s standardization program that 

only the specific make(s) and model(s) 

will satisfy the agency’s needs. 

3006.302–270 Unusual and compelling 

urgency. 

(c)(3) For contract awards to facilitate 

the response to or recovery from a 

natural disaster, act of terrorism, or 

other man-made disaster, that relies on 

this exception, the period of 

performance shall be limited to the 

minimum period necessary to meet the 

urgent and compelling requirements of 

the work to be performed and to enter 

into another contract for the required 

goods or services through the use of 

competitive procedures, but in no event 

shall the period of performance exceed 

150 days, unless the Head of the 

Contracting Activity (or higher approval 

authority if required by (FAR) 48 CFR 

6.304 or DHS procedures) determines 

that exceptional circumstances apply, 

approving the justification as set forth in 

(HSAR) 48 CFR 3006.304. The 

limitation on the period of performance 

applies to contracts awarded in 

response to, or to recovery from: 

(i) A major disaster or emergency 

declared by the President under Title IV 

or Title V of the Robert T. Stafford 

Disaster Relief and Emergency 

Assistance Act, as amended (42 U.S.C. 

5121–5207) (see http://www.fema.gov/ 

news/disasters.fema#sev2 for a list of 

declarations); 

(ii) An uncontrolled fire or fire 

complex, threatening such destruction 

as would constitute a major disaster, 

and for which the Federal Emergency 

Management Agency has approved a fire 

management assistance declaration in 

accordance with regulatory criteria at 44 

CFR 204.21 (see http://www.fema.gov/ 

news/disasters.fema#sev2 for a list of 

declarations); or 

(iii) An incident for which the 

National Operations Center (NOC), 

through the National Response 

Coordination Center (NRCC), 

coordinates the activation of the 

appropriate Emergency Support 

Functions and the Secretary of 

Homeland Security has designated a 

Federal Resource Coordinator (FRC) to 

manage Federal resource support. 

* * * * * 

3006.303 Justifications. 

3006.303–270 Content. 

(a)(9)(iv) For a proposed contract 

subject to the restrictions of (HSAR) 48 

CFR 3006.302–270(c)(3) and where 

(FAR) 48 CFR 6.302–2 is cited as the 

authority, the exceptional circumstances 

allowing for an award for a period of 

performance in excess of 150 days. 

3006.304 Approval of justification. 

3006.304–70 DHS Approval of justification. 

A justification for other than full and 

open competition that cites (FAR) 48 

CFR Part 6.302–2 as its authority shall 

be approved in writing by the HCA 

(unless a higher approval authority is 

required in accordance with (FAR) 48 

CFR Part 6.304 or DHS procedures) for 

a proposed DHS contract to facilitate the 

response to or recovery from a natural 

disaster, act of terrorism, or other manmade disaster with a period of 

performance in excess of 150 days. The 

justification should make plain the 

exceptional circumstances that justify 

the duration of the contract. This 

authority may not be redelegated by the 

HCA. 

PART 3009—CONTRACTOR 

QUALIFICATIONS 

22. Amend subpart 3009.4 by adding 

section 3009.403 to read as follows: 

3009.403 Definitions. 

Debarring official means the Head of 

the Contracting Activity (HCA). The 

authority to impose debarment may not 

be redelegated by the HCA. 

Suspending official means the HCA. 

The authority to impose suspension 

may not be redelegated by the HCA. 

23. Add part 3012 to read: 

PART 3012—ACQUISITION OF 

COMMERCIAL ITEMS 

Subpart 3012.3—Solicitation 

Provisions and Contract Clauses for 

the Acquisition of Commercial Items 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

55536 Federal Register / Vol. 75, No. 176 / Monday, September 13, 2010 / Proposed Rules 

Sec. 

3012.301 Solicitation provisions and 

contract clauses for the acquisition of 

commercial items. 

Authority: 5 U.S.C. 301–302, 41 U.S.C. 

418b(a) and (b), 41 U.S.C. 414, 48 CFR part 

1, subpart 1.3, and DHS Delegation Number 

0700. 

3012.301 Solicitation provisions and 

contract clauses for the acquisition of 

commercial items. 

(f) Solicitation provisions and 

contract clauses. Insert (HSAR) 48 CFR 

3052.212–70, Contract Terms and 

Conditions Applicable to DHS 

Acquisition of Commercial Items, in any 

solicitation or contract for commercial 

items when any of the provisions or 

clauses listed therein applies and where 

incorporation by reference of each 

selected provision or clause is, to the 

maximum extent practicable, consistent 

with customary commercial practice. If 

necessary, tailor this clause. 

24. Add part 3018 to read: 

PART 3018—EMERGENCY 

ACQUISITIONS 

Subpart 3018.1—Available Acquisition 

Flexibilities 

Sec. 

3018.109 Priorities and allocations. 

Authority: 5 U.S.C. 301–302, 41 U.S.C. 

418b(a) and (b), 41 U.S.C. 414, 48 CFR part 

1, subpart 1.3, and DHS Delegation Number 

0700. 

3018.109 Priorities and allocations. 

DHS Components may assign priority 

ratings on contracts and orders as 

authorized by the Defense Priorities and 

Allocation System (DPAS). (See (HSAR) 

48 CFR 3011.602.) 

PART 3022—APPLICATION OF LABOR 

LAWS TO GOVERNMENT 

ACQUISITIONS 

25. Amend section 3022.406–9(c)(1) 

by removing ‘‘DHS Form 0700–04’’ and 

adding in its place ‘‘DHS Form 700–4’’. 

PART 3023—ENVIRONMENT, ENERGY 

AND WATER EFFICIENCY, 

RENEWABLE ENERGY 

TECHNOLOGIES, OCCUPATIONAL 

SAFETY, AND DRUG-FREE 

WORKPLACE 

26. Amend Part 3023 by revising the 

heading to read as set forth above. 

* * * * * 

3023.1002 [Removed] 

27a. Amend subpart 3023.10 by 

removing section 3023.1002. 

27b. Add section 3023.1004 to read as 

follows: 

3023.1004 Requirements. 

DHS Directive 023–02 Environmental 

Compliance Program provides guidance 

and direction for compliance with 

environmental laws, regulations and 

executive orders. DHS Directive 025–01, 

Sustainable Practices for Environmental, 

Energy and Transportation, provides 

guidance and direction for compliance 

with green purchasing and other 

sustainable practices contained in 

Executive Order 13423. Contracting 

officers shall ensure that solicitations 

and contracts contain appropriate 

sustainable practices requirements, 

provisions and clauses. Contractors 

shall support the DHS Environmental 

Policy by taking appropriate actions to 

eliminate or reduce their impacts on the 

environment. 

PART 3033—PROTESTS, DISPUTES, 

AND APPEALS 

28. Amend part 3033 by adding 

subpart 3033.1 to read as follows: 

Subpart 3033.1—Protests 

Sec. 

3033.102 General. 

3033.102–90 Protests on classified 

solicitations (OSA). 

3033.102–90 Protests on classified 

solicitations (OSA). 

To ensure that classified information 

is protected and appropriate security 

measures are coordinated as required, 

protests involving classified 

solicitations issued by the Office of 

Selective Acquisitions (OSA) shall be 

submitted directly to the contracting 

officer for further transmission to the 

GAO, the United States Court of Federal 

Claims, or for internal resolution in the 

case of agency protests. Specific 

instructions will be provided in Section 

L of the solicitation. 

PART 3035—RESEARCH AND 

DEVELOPMENT CONTRACTING 

3035.7000 [Removed] 

29a. Amend subpart 3035.70 by 

removing section 3035.7000. 

29b. Add sections 3035.70–1 and 

3035.70–2 to read as follows: 

3035.70–1 Policy. 

The Department of Homeland 

Security (DHS) desires widespread 

dissemination of the results of funded 

non-sensitive research. The Contractor, 

therefore, may publish (subject to the 

provisions of the ‘‘Data Rights’’ and 

‘‘Patent Rights’’ clauses of the contract) 

research results in professional journals, 

books, trade publications, or other 

appropriate media. 

3035.70–2 Contract clause. 

(a) The contracting officer shall use 

the clause at (HSAR) 48 CFR 3052.235– 

70, Dissemination of Information— 

Educational Institutions, in contracts 

with educational institutions for 

research that is not sensitive or 

classified. 

(b) If the contract involves sensitive or 

classified research, the contracting 

officer shall prepare and insert a Special 

Contract Requirement that conditions 

dissemination upon the approval of a 

designated Government official. 

PART 3036—CONSTRUCTION AND 

ARCHITECT-ENGINEER CONTRACTS 

3036.201 [Removed] 

30. Remove section 3036.201. 

PART 3042—CONTRACT 

ADMINISTRATION AND AUDIT 

SERVICES 

Subpart 3042.2—[Removed] 

31. Remove subpart 3042.2. 

32. Revise section 3042.1502 to read 

as follows: 

3042.1502 Policy. 

(a) Components shall use the 

Contractor Performance Assessment 

Reporting System (CPARS) or other 

performance reporting system as 

designated by the DHS Chief 

Procurement Officer for evaluating 

contractor performance in accordance 

with (FAR) 48 CFR Parts 42.1502 and 

42.1503. 

(e) Components shall use the 

Construction Contractor Appraisal 

Support System (CCASS) module of 

CPARS, or other performance reporting 

system as designated by the DHS Chief 

Procurement Officer for evaluating 

construction contractor performance in 

accordance with (FAR) 48 CFR Parts 

42.1502 and 42.1503. 

(f) Components shall use the 

Architect-Engineer Contract 

Administration Support System 

(ACASS) module of CPARS or other 

performance reporting system as 

designated by the DHS Chief 

Procurement Officer for evaluating 

architect-engineer contractor 

performance in accordance with (FAR) 

48 CFR Parts 42.1502 and 42.1503. 

PART 3045—[REMOVED AND 

RESERVED] 

33. Under the authority of 5 U.S.C. 

301–302, part 3045 is removed and 

reserved. 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

Federal Register / Vol. 75, No. 176 / Monday, September 13, 2010 / Proposed Rules 55537 

PART 3052—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

34. Amend section 3052.101 by 

adding the following note at the end of 

the section to read as follows: 

3052.101 Using Part 3052. 

* * * * * 

Note to 3052.101: The solicitation 

provisions and contract clauses matrix 

referencing all HSAR provisions and clauses 

is available at http://www.dhs.gov/xopnbiz/ 

under Policy and Regulations, Homeland 

Security Acquisition Regulation (HSAR). 

35. Amend subpart 3052.2 by adding 

3052.203–XX to read: 

3052.203–XX Instructions for Contractor 

Disclosure of Violations. 

As prescribed in (HSAR) 48 CFR 

3003.1004(a), insert the following 

clause: 

Instructions for Contractor Disclosure of 

Violations 

(MON XXXX) 

When making a written disclosure under 

the clause at FAR 52.213–13, paragraph (3), 

the Contractor shall use the form at http:// 

www.dhs.gov/xoig/gc_1233236886677.shtm 

and submit the disclosure electronically to 

the Department of Homeland Security Office 

of Inspector General. The Contractor shall 

provide a copy of the disclosure to the 

Contracting Officer by e-mail or facsimile on 

the same business day as the submission to 

the Office of Inspector General. The 

Contractor shall provide the Contracting 

Officer a concurrent copy of any supporting 

materials submitted to the Office of Inspector 

General. 

36–37. Amend section 3052.204–71: 

a. By capitalizing the first letter of every 

occurrence of the words ‘‘contractor’’ and 

‘‘government’’ and by revising paragraph (a) 

of the clause; and 

b. In Alternate I by capitalizing the first 

letters of every occurrence of the words 

‘‘contractor’’ and ‘‘contracting officer’’ in the 

alternate content and by revising paragraph 

(k)(1) of the alternate. 

The revisions read as follows: 

3052.204–71 Contractor employee access. 

(MON XXXX) 

(a) Sensitive Information, as used in this 

clause, means any information, which if lost, 

misused, disclosed, or, without authorization 

is accessed, or modified, could adversely 

affect the national or homeland security 

interest, the conduct of Federal programs, or 

the privacy to which individuals are entitled 

under section 552a of title 5, United States 

Code (the Privacy Act), but which has not 

been specifically authorized under criteria 

established by an Executive Order or an Act 

of Congress to be kept secret in the interest 

of national defense, homeland security or 

foreign policy. This definition includes the 

following categories of information: 

* * * * * 

‘‘Alternate I (MON XXXX)’’ 

* * * * * 

(k) * * * 

(1) The individual must be a legal 

permanent resident of the U.S., citizens of 

Ireland, Israel, or the Republic of the 

Philippines, or to nationals of those countries 

allied with the United States in a current 

defense effort; 

* * * * * 

38. Amend subpart 3052.2 by adding 

3052.205–XX to read as follows: 

3052.205–XX Advertisements, Publicizing 

Awards, and Releases. 

As prescribed in (HSAR) 48 CFR 

3005.470–2, insert the following clause: 

Advertisements, Publicizing Awards, and 

Releases 

(MON XXXX) 

The Contractor shall not refer to this 

contract in commercial advertising or similar 

promotions in such a manner as to state or 

imply that the product or service provided is 

endorsed or preferred by the Federal 

Government or is considered by the 

Government to be superior to other products 

or services. 

(End of clause) 

Alternate I (MON XXXX). If a contract 

involves sensitive or classified information, 

designate the paragraph in the base clause as 

(a) and add the following paragraph (b) to the 

clause: 

(b) All advertisements, releases, 

announcements, or other publication 

regarding this contract or the agency 

programs and projects covered under it, or 

the results or conclusions made pursuant to 

performance, must be approved by the 

Contracting Officer. Under no circumstances 

shall the Contractor, or anyone acting on 

behalf of the Contractor, refer to the supplies, 

services, or equipment furnished pursuant to 

the provisions of this contract in any 

publicity, release, or commercial advertising 

without first obtaining explicit written 

consent to do so from the Contracting Officer. 

(End of clause) 

39. Amend subpart 3052.2 by adding 

section 3052.212–XX to read as follows: 

3052.212–XX Contract Terms and 

Conditions Applicable to DHS Acquisition 

of Commercial Items 

As prescribed in (HSAR) 48 CFR 

3012.301, insert the following clause: 

Contract Terms and Conditions Applicable 

to DHS Acquisition of Commercial Items 

(MON XXXX) 

The Contractor agrees to comply with any 

provision or clause that is incorporated 

herein by reference to implement agency 

policy applicable to acquisition of 

commercial items or components. The 

provision or clause in effect based on the 

applicable regulation cited on the date the 

solicitation is issued applies unless 

otherwise stated herein. The following 

provisions and clauses are incorporated by 

reference: [The Contracting Officer should 

either check the provisions and clauses that 

apply or delete the provisions and clauses 

that do not apply from the list. The 

Contracting Officer may add the date of the 

provision or clause if desired for clarity.] 

(a) Provisions. 

lll3052.209–72 Organizational Conflicts 

of Interest. 

lll3052.219–72 Evaluation of Prime 

Contractor Participation in the DHS 

Mentor Prote ́ge ́ Program. 

(b) Clauses. 

lll3052.203–XX Instructions for 

Contractor Disclosure of Violations. 

lll3052.204–70 Security Requirements 

for Unclassified Information Technology 

Resources. 

lll3052.205–XX Advertisement, 

Publicizing Awards, and Releases 

lllAlternate I 

lll3052.204–71 Contractor Employee 

Access 

lll3052.209–73 Limitation on Future 

Contracting. 

lll3052.215–70 Key Personnel or 

Facilities. 

lll3052.216–70 Evaluation of Offers 

Subject to An Economic Price 

Adjustment Clause. 

lll3052.216–71 Determination of Award 

Fee. 

lll3052.216–72 Performance Evaluation 

Plan. 

lll3052.216–73 Distribution of Award 

Fee. 

lll3052.217–91 Performance. (USCG) 

lll3052.217–92 Inspection and Manner 

of Doing Work. (USCG) 

lll3052.217–93 Subcontracts. (USCG) 

lll3052.217–94 Lay Days. (USCG) 

lll3052.217–95 Liability and Insurance. 

(USCG) 

lll3052.217–96 Title. (USCG) 

lll3052.217–97 Discharge of Liens. 

(USCG) 

lll3052.217–98 Delays. (USCG) 

lll3052.217–99 Department of Labor 

Safety and Health Regulations for Ship 

Repair. (USCG) 

lll3052.217–100 Guarantee. (USCG) 

lll3052.219–70 Small Business 

Subcontracting Plan Reporting. 

lll3052.219–71 DHS Mentor Prote ́ge ́

Program. 

lll3052.228–70 Insurance. 

lll3052.228–90 Notification of Miller 

Act Payment Bond Protection. (USCG) 

lll3052.228–91 Loss of or Damage to 

Leased Aircraft. (USCG) 

lll3052.228–92 Fair Market Value of 

Aircraft. (USCG) 

lll3052.228–93 Risk and Indemnities. 

(USCG) 

lll3052.236–70 Special Provisions for 

Work at Operating Airports. 

lll3052.242–70 Contracting Officer’s 

Technical Representative. 

lll3052.247–70 F.o.B. Origin 

Information. 

lllAlternate I 

lllAlternate II 

lll3052.247–71 F.o.B. Origin Only. 

lll3052.247–72 F.o.B. Destination Only. 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

55538 Federal Register / Vol. 75, No. 176 / Monday, September 13, 2010 / Proposed Rules 

(End of clause) 

3052.216–71 [Amended] 

40. Remove paragraph (d) of clause 

3052.216–71, Determination of Award 

Fee. 

3052.235–70 [Amended] 

41. Amend section 3052.235–70 by 

removing the words ‘‘48 CFR 3035.7000’’ 

in the introductory paragraph and 

adding in their place the reference to 

‘‘48 CFR 3035.70–2.’’ 

3052.242–71 [Removed] 

42. Remove section 3052.242–71. 

3052.245–70 [Removed] 

43. Remove section 3052.245–70. 

PART 3053—FORMS 

44a. Amend section 3053–204–70 by 

revising paragraphs (a) through (c) to 

read as follows: 

3053.204–70 Administrative matters. 

* * * * * 

(a) DHS Form 700–1, Cumulative 

Claim and Reconciliation Statement. 

(See (HSAR) 48 CFR 3004.804– 

570(a)(1).) 

(b) DHS Form 700–2, Contractor’s 

Assignment of Refunds, Rebates, Credits 

and Other Amounts. (See (HSAR) 48 

CFR 3004.570(a)(2).) 

(c) DHS Form 700–3, Contractor 

Release. (See (HSAR) 48 CFR 3004.804– 

570(a)(3).) 

3053.222–70 [Amended] 

44b. Amend section 3053.222–70 by 

removing ‘‘DHS Form 0700–04’’ in the 

last line and adding ‘‘DHS Form 700–4’’ 

in its place. 

3053.303 [Amended] 

44c. Amend section 3053.303 by 

removing ‘‘DHS Form 0700–01’’, ‘‘DHS 

Form 0700–02’’, ‘‘DHS Form 0700–03’’, 

and ‘‘DHS Form 0700–04’’ from the table 

in the ‘‘Form No.’’ column, and adding 

in their place, respectively ‘‘DHS Form 

700–1’’, ‘‘DHS Form 700–2’’, ‘‘DHS Form 

700–3’’, and ‘‘DHS Form 700–4’’; and by 

removing the whole entry for 

‘‘Contractor Report of Government 

Property/DHS Form 0700–05.’’ 

3053.245–70 [Removed and Reserved] 

45. Remove and reserve section 

3053.245–70. 

[FR Doc. 2010–21897 Filed 9–10–10; 8:45 am] 

BILLING CODE 9110–9B–P 

mstockstill on DSKH9S0YB1PROD with PROPOSALS