Federal Register / Vol. 77, No. 163 / Wednesday, August 22, 2012 / Rules and Regulations 50631 

Office pursuant to the Congressional 

Review Act, see 5 U.S.C. 801(a)(1)(A). 

List of Subjects in 47 CFR Part 73 

Radio, Radio broadcasting. 

Federal Communications Commission. 

Nazifa Sawez, 

Assistant Chief, Audio Division, Media 

Bureau. 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission amends 47 CFR part 73 as 

follows: 

PART 73—RADIO BROADCAST 

SERVICES 

■ 1. The authority citation for part 73 

continues to read as follows: 

Authority: 47 U.S.C. 154, 303, 334, 336 and 

339. 

§ 73.202 [Amended] 

■ 2. Section 73.202(b), the Table of FM 

Allotments under New York, is 

amended by adding Westfield, Channel 

265A. 

[FR Doc. 2012–20682 Filed 8–21–12; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF HOMELAND 

SECURITY 

48 CFR Parts 3001, 3002, 3003, 3004, 

3005, 3006, 3012, 3018, 3022, 3023, 

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

3053 

[Docket No. DHS–2009–0085] 

RIN 1601–AA28 

Homeland Security Acquisition 

Regulation (HSAR); Revision Initiative 

[HSAR Case 2009–002] 

AGENCY: Office of the Chief Procurement 

Officer, DHS. 

ACTION: Final rule. 

SUMMARY: DHS is issuing a final rule 

amending multiple sections of the 

Homeland Security Acquisition 

Regulation (HSAR). These amendments 

align existing content with the Federal 

Acquisition Regulation (FAR); 

implement Section 695 of the PostKatrina Emergency Management Reform 

Act of 2006 by 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; clarify agency 

acquisition regulations; and make 

editorial corrections. 

DATES: Effective Date: September 21, 

2012. 

FOR FURTHER INFORMATION CONTACT: 

Teresa McConahie, Office of the Chief 

Procurement Officer, Department of 

Homeland Security, (202) 447–0271. 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Discussion of Final Rule 

III. Regulatory Analyses 

A. Executive Order 12866 (Regulatory 

Planning and Review) and Executive 

Order 13563 (Improving Regulation and 

Regulatory Review) 

B. Regulatory Flexibility Act 

C. Paperwork Reduction Act 

D. Executive Order 13132 (Federalism) 

E. National Environmental Policy Act 

I. Background 

This final rule amends 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). On 

September 13, 2010, DHS published a 

notice of proposed rulemaking NPRM, 

with a public comment period ending 

on November 12, 2010. 75 FR 55529. 

DHS received no public comments on 

this NPRM. DHS is now adopting the 

proposed rule, with minor changes, as 

final. 

II. Discussion of Final Rule 

In the NPRM, DHS proposed various 

changes to the Homeland Security 

Acquisition Regulations (HSAR), 

including changes to 48 CFR part 3006 

implementing section 695 of the PostKatrina Emergency Management Reform 

Act of 2006 (PKEMRA), Public Law 

109–295, 120 Stat. 1394, 1460 (Oct. 4, 

2006). This final rule implements the 

majority of the changes described in the 

‘‘Discussion of Proposed Rule’’ section 

of the NPRM. See 75 FR 55530–55532. 

Additionally, as a result of further 

internal review, DHS is making several 

minor changes to the proposed rule in 

this final rule. The changes are 

administrative in nature and do not 

change the substance of the rule. The 

changes to the proposed rule include: 

(1) Adding an ‘‘s’’ to the word ‘‘System’’ 

in the phrase ‘‘DHS Sensitive System 

Handbook’’ at 3004.470–2; changing the 

phrase ‘‘DHS legal counsel’’ to ‘‘legal 

counsel’’ at 3003.204–(a); and correcting 

the citation at 3003.1003(a) to read 

‘‘(FAR) 48 CFR 52.203–13’’ in place of 

‘‘(FAR) 49 CFR 52.203–13’’. DHS is 

correcting these inadvertent 

typographical errors to ensure the final 

rule is clear and precise. 

DHS is also making a technical 

change by removing the proposed 

change at (HSAR) section 3009.403 

designating the DHS Heads of 

Contracting Activity as the DHS 

Suspension and Debarment Officials. 

The Secretary of Homeland Security has 

approved a new Suspension and 

Debarment program which eliminates 

the Heads of the Contracting Activities 

as Suspension and Debarment Officials. 

The change in the proposed rule is no 

longer necessary and is not included in 

this final rule. 

DHS is also correcting the title of the 

FEMA HCA at 3002.101 to read 

‘‘Director, Office of Acquisition 

Management (FEMA)’’ in place of 

‘‘Director, Procurement (FEMA)’’. This 

change is necessary due to a change in 

the naming convention for this office. 

In the NPRM, DHS proposed to delete 

paragraph (d) of clause 3052.216–71, 

Determination of Award Fee, to align 

the HSAR with the OMB guidance, 

Appropriate Use of Incentive Contracts 

(Dec. 4, 2007). This final rule also 

revises the date of the entire clause to 

distinguish the existing version of the 

clause from the revised version. 

The NPRM also proposed the 

inclusion of paragraph (k)(1) of 

3052.204–71 Alternate I regarding 

contractor employee access. In this final 

rule, the proposed change to paragraph 

(k)(1) is not included because a similar 

provision already exists at (HSAR) 

3004.470–2, citing to the DHS Sensitive 

Systems Policy Directive 4300A and the 

DHS 4300A Sensitive Systems 

Handbook both of which address 

contractor employee access. 

Throughout this final rule, references 

to Title 41 of the United States Code 

have been revised to reflect the 

recodification of Title 41 under Public 

Law 111–350, January 4, 2011. 

III. Regulatory Analyses 

A. Executive Order 12866 (Regulatory 

Planning and Review) and Executive 

Order 13563 (Improving Regulation and 

Regulatory Review) 

This is not a significant regulatory 

action under Section 6(b) of Executive 

Order 12866, as supplemented by 

Executive Order 13563, and the Office 

of Management and Budget has not 

reviewed this final rule. This final 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 final rule will not have 

a significant economic impact on a 

substantial number of small entities 

within the meaning of the Regulatory 


wreier-aviles on DSK7SPTVN1PROD with RULES
50632 Federal Register / Vol. 77, No. 163 / Wednesday, August 22, 2012 / Rules and Regulations 

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. 

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 Management and Budget 

(OMB), for review and approval any 

reporting requirements inherent in a 

rule. The Paperwork Reduction Act 

applies to this final rule. However, the 

information collection requirements 

imposed by the provisions 3052.205–70 

and 3052.212–70 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 3052.203–70 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 February 28, 

2015, respectively. The extension for 

1600–0003 is currently under review at 

OMB. 

D. Executive Order 13132 (Federalism) 

This final rule will 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 warrant the 

preparation of a federalism impact 

statement. 

E. National Environmental Policy Act 

We have analyzed this final 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 

have made a 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, is 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. 

List of Subjects in 48 CFR Parts 3001, 

3002, 3003, 3004, 3005, 3006, 3012, 

3018, 3022, 3023, 3033, 3035, 3036, 

3042, 3045, 3052 and 3053 

Government procurement. 

Daniel L. Clever, 

Deputy Chief Procurement Officer, 

Department of Homeland Security. 

Accordingly, DHS amends 48 CFR 

parts 3001, 3002, 3003, 3004, 3005, 

3006, 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, 3022, 3023, 3033, 3035, 3036, 

3042, 3045, and 3053 is revised to read 

as follows: 

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

1707, 41 U.S.C. 1702, 48 CFR part 1, subpart 

1.3, and DHS Delegation Number 0702. 

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. 1702 and DHS Delegation 

Number 0702, under authority of 5 

U.S.C. 301–302, the Office of Federal 

Procurement Policy Act, Pub. L. No. 93– 

400, 88 Stat. 796 (1974), including 

sections 22 and 25, 41 U.S.C. 1707, 1302 

and 1303, and (FAR) 48 CFR part 1, 

subpart 1.3. 

■ 3. Revise section 3001.105–2 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: 


wreier-aviles on DSK7SPTVN1PROD with RULES
Federal Register / Vol. 77, No. 163 / Wednesday, August 22, 2012 / Rules and Regulations 50633 

3001.301–71 Effective Date. 

* * * * * 

(c) When required by law, contracting 

officers must modify existing contracts 

to include HSAR changes. Otherwise, 

and where feasible, contracting officers 

should consider using the Changes 

clause 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); 

(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, Office of Acquisition 

Management (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. 1702 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 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. 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 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) 48 CFR 

52.203–13 must use the electronic 

Contractor Disclosure Form at http:// 

www.oig.dhs.gov. 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. 


wreier-aviles on DSK7SPTVN1PROD with RULES
50634 Federal Register / Vol. 77, No. 163 / Wednesday, August 22, 2012 / Rules and Regulations 

3003.1004 Contract clauses. 

(a) The contracting officer shall insert 

the clause at (HSAR) 48 CFR 3052.203– 

70, Instructions for Contractor 

Disclosure of Violations, in solicitations 

and contracts containing the clause at 

(FAR) 48 CFR 52.203–13. 

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 Systems 

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) * * * 

(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 

3052.205–70, 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. 

(d)(1)(iii) 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: 

(A) 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); 

(B) 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 

(C) 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 


wreier-aviles on DSK7SPTVN1PROD with RULES
Federal Register / Vol. 77, No. 163 / Wednesday, August 22, 2012 / Rules and Regulations 50635 

CFR 3006.302–270(d)(1)(iii) 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 section 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 section 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 man-made 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. 

■ 22. 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 

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. 

1707, 41 U.S.C. 1702, 48 CFR part 1, subpart 

1.3, and DHS Delegation Number 0702. 

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. 

■ 23. 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. 

1707, 41 U.S.C. 1702, 48 CFR part 1, subpart 

1.3, and DHS Delegation Number 0702. 

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 

■ 24. 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 

■ 25. Amend Part 3023 by revising the 

heading to read as set forth above. 

* * * * * 

3023.1002 [Removed] 

■ 26a. Amend subpart 3023.10 by 

removing section 3023.1002. 

■ 26b. 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 

■ 27. 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] 

■ 28a. Amend subpart 3035.70 by 

removing section 3035.7000. 

■ 28b. 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] 

■ 29. Remove section 3036.201. 

PART 3042—CONTRACT 

ADMINISTRATION AND AUDIT 

SERVICES 

Subpart 3042.2 [Removed] 

■ 30. Remove subpart 3042.2. 

■ 31. Revise section 3042.1502 to read 

as follows: 


wreier-aviles on DSK7SPTVN1PROD with RULES
50636 Federal Register / Vol. 77, No. 163 / Wednesday, August 22, 2012 / Rules and Regulations 

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 sections 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 sections 

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 sections 42.1502 and 42.1503. 

PART 3045—[REMOVED AND 

RESERVED] 

■ 32. Under the authority of 5 U.S.C. 

301–302, part 3045 is removed and 

reserved. 

PART 3052—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 33. Amend section 3052.101 by 

adding the following note: 

Subpart 3052.1—Instructions for Using 

Provisions and Clauses 

Sec. 

3052.101 Using Part 3052. 

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). 

■ 34. Amend subpart 3052.2 by adding 

3052.203–70 to read: 

3052.203–70 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 ([DATE]) 

When making a written disclosure 

under the clause at FAR 52.203–13, 

paragraph (b)(3), the Contractor shall 

use the Contractor Disclosure Form at 

http://www.oig.dhs.gov 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 

email 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. 

■ 35–36. 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, by 

removing paragraph (k)(1) of the 

alternate and renumbering paragraphs 

(k)(2) and (3) to (k)(1) and (2) 

respectively, and by revising the date of 

Alternate I. 

The revisions read as follows: 

3052.204–71 Contractor employee access 

([DATE]) 

(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 ([DATE])’’ 

* * * * * 

■ 37. Amend subpart 3052.2 by adding 

3052.205–70 to read as follows: 

3052.205–70 Advertisements, Publicizing 

Awards, and Releases. 

As prescribed in (HSAR) 48 CFR 

3005.470–2, insert the following clause: 

Advertisements, Publicizing Awards, and 

Releases ([DATE]) 

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 ([DATE]). 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) 

■ 38. Amend subpart 3052.2 by adding 

section 3052.212–70 to read as follows: 

3052.212–70 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 

([DATE]) 

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. 

ll3052.209–72 Organizational Conflicts 

of Interest. 

ll3052.216–70 Evaluation of Offers 

Subject to An Economic Price Adjustment 

Clause. 

ll3052.219–72 Evaluation of Prime 

Contractor Participation in the DHS Mentor 

Prote ́ge ́ Program. 

(b) Clauses. 

ll3052.203–70 Instructions for Contractor 

Disclosure of Violations. 

ll3052.204–70 Security Requirements for 

Unclassified Information Technology 

Resources. 

ll3052.204–71 Contractor Employee 

Access. 

llAlternate I 

ll3052.205–70 Advertisement, 

Publicizing Awards, and Releases. 


wreier-aviles on DSK7SPTVN1PROD with RULES
Federal Register / Vol. 77, No. 163 / Wednesday, August 22, 2012 / Rules and Regulations 50637 

ll3052.209–73 Limitation on Future 

Contracting. 

ll3052.215–70 Key Personnel or 

Facilities. 

ll3052.216–71 Determination of Award 

Fee. 

ll3052.216–72 Performance Evaluation 

Plan. 

ll3052.216–73 Distribution of Award 

Fee. 

ll3052.217–91 Performance. (USCG) 

ll3052.217–92 Inspection and Manner of 

Doing Work. (USCG) 

ll3052.217–93 Subcontracts. (USCG) 

ll3052.217–94 Lay Days. (USCG) 

ll3052.217–95 Liability and Insurance. 

(USCG) 

ll3052.217–96 Title. (USCG) 

ll3052.217–97 Discharge of Liens. 

(USCG) 

ll3052.217–98 Delays. (USCG) 

ll3052.217–99 Department of Labor 

Safety and Health Regulations for Ship 

Repair. (USCG) 

ll3052.217–100 Guarantee. (USCG) 

ll3052.219–70 Small Business 

Subcontracting Plan Reporting. 

ll3052.219–71 DHS Mentor Prote ́ge ́

Program. 

ll3052.228–70 Insurance. 

ll3052.228–90 Notification of Miller Act 

Payment Bond Protection. (USCG) 

ll3052.228–91 Loss of or Damage to 

Leased Aircraft. (USCG) 

ll3052.228–92 Fair Market Value of 

Aircraft. (USCG) 

ll3052.228–93 Risk and Indemnities. 

(USCG) 

ll3052.236–70 Special Provisions for 

Work at Operating Airports. 

ll3052.242–72 Contracting Officer’s 

Technical Representative. 

ll3052.247–70 F.o.B. Origin Information. 

llAlternate I 

llAlternate II 

ll3052.247–71 F.o.B. Origin Only. 

ll3052.247–72 F.o.B. Destination Only. 

(End of clause) 

3052.216–71 [Amended] 

■ 39. Amend section 3052.216–71, 

Determination of Award Fee by 

removing the words ‘‘(DEC 2003)’’ from 

the title of the clause, adding in their 

place the words ‘‘([DATE])’’ and by 

removing paragraph (d). 

3052.235–70 [Amended] 

■ 40. 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] 

■ 41. Remove section 3052.242–71. 

3052.245–70 [Removed] 

■ 42. Remove section 3052.245–70. 

PART 3053—FORMS 

■ 43. 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)(3).) 

(b) DHS Form 700–2, Contractor’s 

Assignment of Refunds, Rebates, Credits 

and Other Amounts. (See (HSAR) 48 

CFR 3004.804–570(a)(2).) 

(c) DHS Form 700–3, Contractor 

Release. (See (HSAR) 48 CFR 3004.804– 

570(a)(1).) 

3053.222–70 [Amended] 

■ 44. 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] 

■ 45. 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] 

■ 46. Remove and reserve section 

3053.245–70. 

[FR Doc. 2012–20440 Filed 8–21–12; 8:45 am] 

BILLING CODE 9110–9B–P 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

49 CFR Part 594 

[Docket No. NHTSA–2012–0080; Notice 2] 

RIN 2127–AL09 

Schedule of Fees Authorized 

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), DOT. 

ACTION: Final rule. 

SUMMARY: This document adopts fees for 

Fiscal Year 2013 and until further 

notice, as authorized by 49 U.S.C. 

30141, relating to the registration of 

importers and the importation of motor 

vehicles not certified as conforming to 

the Federal motor vehicle safety 

standards (FMVSS). These fees are 

needed to maintain the registered 

importer (RI) program. 

We are increasing the fees for the 

registration of a new RI from $795 to 

$805 and the annual fee for renewing an 

existing registration from $670 to $676. 

The fee to reimburse Customs for 

conformance bond processing costs will 

decrease from $9.93 to $9.09 per bond. 

The fee for the review, processing, 

handling, and disbursement of cash 

deposits that are submitted in lieu of a 

conformance bond will decrease from 

$514 to $495. We are decreasing the fees 

for the importation of a vehicle covered 

by an import eligibility decision made 

on an individual model and model year 

basis. For vehicles determined eligible 

based on their substantial similarity to 

a U.S. certified vehicle, the fee will 

decrease from $158 to $101. For 

vehicles determined eligible based on 

their capability of being modified to 

comply with all applicable FMVSS, the 

fee will also decrease from $158 to $101. 

The fee for the inspection of a vehicle 

will remain $827. The fee for processing 

a conformity package will decrease from 

$17 to $12. If the vehicle has been 

entered electronically with Customs 

through the Automated Broker Interface 

(ABI) and the RI has an email address, 

the fee for processing the conformity 

package will continue to be $6, 

provided the fee is paid by credit card. 

If NHTSA finds that the information in 

the entry or the conformity package is 

incorrect, the processing fee will remain 

$57, representing the fee that is 

currently charged when there are one or 

more errors in the ABI entry or 

omissions in the statement of 

conformity. 

DATES: The amendments established by 

this final rule will become effective on 

October 1, 2012. Petitions for 

reconsideration must be received by 

NHTSA not later than October 9, 2012. 

ADDRESSES: Petitions for reconsideration 

of this final rule should refer to the 

docket and notice numbers identified 

above and be submitted to: 

Administrator, National Highway 

Traffic Safety Administration, 1200 New 

Jersey Avenue SE., West Building, 

Washington, DC 20590. It is requested, 

but not required, that 10 copies of the 

petition be submitted. The petition must 

be received not later than 45 days after 

publication of this final rule in the 

Federal Register. Petitions filed after 

that time will be considered petitions 

filed by interested persons to initiate 

rulemaking pursuant to 49 U.S.C. 

chapter 301. 


wreier-aviles on DSK7SPTVN1PROD with RULES