[Federal Register Volume 63, Number 94 (Friday, May 15, 1998)]
[Rules and Regulations]
[Pages 26993-26996]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-12841]


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DEPARTMENT OF AGRICULTURE

48 CFR Parts 401, 402, 403, 407, 408, 409, 411, 416, 419, 422, 424, 
425, 432, 434, 436, and 452

[AGAR Case 96-03]
RIN 0599-AA00


Office of Procurement and Property Management; Agriculture 
Acquisition Regulation; Miscellaneous Amendments

AGENCY: Office of Procurement and Property Management, USDA

ACTION: Direct final rule

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SUMMARY: The Department of Agriculture is publishing technical 
corrections to the Agriculture Acquisition Regulation (AGAR) as a final 
rule. We use the direct final rule process to make noncontroversial 
changes to the AGAR. We are amending the AGAR to reflect changes in the 
Federal Acquisition Regulation through Federal Acquisition Circular 97-
01 and to correct minor errors and omissions in the reissuance of the 
AGAR published on October 15, 1996 (61 FR 53645-53677).

EFFECTIVE DATE: This rule will be effective on July 14, 1998, unless we 
receive written adverse comments or written notice of intent to submit 
adverse comments on or before June 15, 1998. If adverse comments are 
received, the Department will publish a timely

[[Page 26994]]

withdrawal of the rule in the Federal Register.

ADDRESSES: Please submit any adverse comments, or a notice of intent to 
submit adverse comments, in writing to U.S. Department of Agriculture, 
Office of Procurement and Property Management, Procurement Policy 
Division, STOP 9303, 1400 Independence Avenue SW, Washington, DC 20250-
9303.

FOR FURTHER INFORMATION CONTACT: Joseph J. Daragan, (202) 720-5729.

SUPPLEMENTARY INFORMATION:

I. Background
II. Dates
III. Procedural Requirements
    A. Executive Order Nos. 12866 and 12988
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act
    D. Small Business Regulatory Enforcement Fairness Act
IV. Electronic Access Addresses

I. Background

    The AGAR implements the Federal Acquisition Regulation (FAR) (48 
CFR Ch. 1) where further implementation is needed, and supplements the 
FAR when coverage is needed for subject matter not covered by the FAR. 
The AGAR is being revised to reflect changes in the Federal Acquisition 
Regulation through Federal Acquisition Circular 97-01 and to correct 
minor errors and omissions in the AGAR. In this rulemaking document, 
the Department of Agriculture is making corrections to the AGAR as a 
direct final rule, since the corrections are non-controversial and 
unlikely to generate adverse comment. The corrections are clerical or 
procedural in nature, and do not affect the public.
    The following changes have been made to the rule.
    (a) AGAR 401.170 is added to inform users about the USDA 
Departmental Administration Procurement Homepage.
    (b) AGAR 402.101 is amended to change the title of the Senior 
Procurement Executive's organization.
    (c) AGAR 403.104-5, 422.608, 422.608-4, 425.203, and 425.204 have 
been removed to reflect amendments to the FAR.
    (d) AGAR 403.104-11, 416.404, 416.404-2, and 416.405 have been 
redesignated 403.104-10, 416.405, 416.405-2, and 416.406, respectively, 
to reflect amendments to the FAR.
    (e) The title of AGAR subpart 408.7 is amended to refer to the 
``severely disabled'' instead of the ``severely handicapped''.
    (f) The definition of ``debarring official'' in AGAR 409.403 is 
amended to clarify the authority of the Executive Vice President, 
Commodity Credit Corporation (CCC) to conduct suspension or debarment 
actions related to CCC commodity contracts. This amendment reflects 
suspension and debarment authority conferred on CCC by 7 CFR 1407.
    (g) AGAR 411.171 and 411.404 have been revised to reflect changes 
to the numbering of six clauses referenced in these sections.
    (h) AGAR 419.602-3 and 425.202 have been revised to reflect 
amendments to the FAR.
    (i) The schedule for submission of subcontract award data to the 
Office of Small and Disadvantaged Business Utilization by USDA agencies 
has been changed, and AGAR 419.201-73 is amended accordingly.
    (j) The citation to the definition of ``major system'' in the FAR 
is corrected to conform to an amendment to the FAR. AGAR 434.001 is 
revised to cite the definition at FAR 2.101.
    (k) AGAR part 436 is revised to remove subpart 436.3 and to 
redesignate 436.302 as 436.213-2 to reflect an amendment to the FAR.
    (l) AGAR 436.575, Maximum workweek--construction schedule, is 
revised to add a reference to FAR clause 52.236-15, Schedules for 
Construction Contracts.
    (m) Clauses 452.211-1 through 452.211-6 are redesignated 452.211-70 
through 452.211-75, respectively, to conform to the numbering scheme 
established by FAR 1.303. Clause 452.232-1 likewise is redesignated 
452.232-70 to conform to this numbering system.

II. Procedural Requirements

A. Executive Order Nos. 12866 and 12988

    A work plan was prepared for this regulation and submitted to the 
Office of Management and Budget pursuant to Executive Order No. 12866. 
The rule has been determined to be not significant for the purposes of 
Executive Order No. 12866. Therefore, the rule has not been reviewed by 
the Office of Management and Budget. This rule has been reviewed in 
accordance with Executive Order No. 12988, Civil Justice Reform. The 
proposed rule meets the applicable standards in section 3 of Executive 
Order No. 12988.

B. Regulatory Flexibility Act

    This rule was reviewed under the Regulatory Flexibility Act, 5 
U.S.C. 601-611, which requires preparation of a regulatory flexibility 
analysis for any rule which is likely to have significant economic 
impact on a substantial number of small entities. The corrections to 
the AGAR do not affect the way in which USDA conducts its acquisitions 
or otherwise interacts with the public. USDA certifies that this 
proposed rule will not have a significant economic effect on a 
substantial number of small entities, and, therefore, no regulatory 
flexibility analysis has been prepared.

C. Paperwork Reduction Act

    No information collection or recordkeeping requirements are imposed 
on the public by this final rule. Accordingly no OMB clearance is 
required by section 350(h) of the Paperwork Reduction Act, 44 U.S.C. 
3501, et seq., or OMB's implementing regulation at 5 CFR Part 1320.

D. Small Business Regulatory Enforcement Fairness Act

    This final rule has been submitted to each House of Congress and 
the Comptroller General in accordance with the Small Business 
Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 801 et seq.

IV. Electronic Access Addresses

    You may send electronic mail (E-mail) to <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="ce848a8f9c8f898f808e9b9d8a8fe0898198">[email protected]</a>, or 
contact us via fax at (202) 720-8972, if you would like additional 
information about this rule, or if you wish to submit comments.

List of Subjects in 48 CFR Parts 401, 402, 403, 407, 408, 409, 411, 
416, 419, 422, 424, 425, 432, 434, 436, and 452

    For the reasons set out in the preamble, 48 CFR Chapter 4 is 
amended as set forth below:
    1. The authority citation for parts 401, 402, 403, 407, 408, 409, 
411, 416, 419, 422, 424, 425, 432, 434, 436 and 452, continues to read 
as follows:

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    2.-3. Section 401.170 is added to read as follows:


401.170  Electronic access to regulatory information.

    The USDA Departmental Administration Procurement Homepage provides 
access to the AGAR, AGAR amendments (circulars), AGAR Advisories, and 
other USDA procurement policy and guidance in electronic form. The 
Internet address for the Procurement Homepage is URL <a href="http://
www.usda.gov/da/procure.html">http://
www.usda.gov/da/procure.html</a>.


402.101  [Amended]

    4. In section 402.101 in the definition of Senior Procurement 
Executive (SPE),

[[Page 26995]]

remove the words ``Director, Procurement and Property Management, 
Policy Analysis and Coordination Center'' and add, in their place, 
``Director, Office of Procurement and Property Management''.


403.104-5  [Removed]

    5. Section 403.104-5 is removed and reserved.


403.104-11  [Redesignated as 403.104-10]

    6. Section 403.104-11 is redesignated as 403.104-10.
    7.-8. Newly designated section 403.104-10 is amended by revising 
the heading and paragraph (b) to read as follows:


403.104-10  Violations or possible violations.

* * * * *
    (b) Heads of contracting activities (HCA's) or their designees who 
receive information concerning any violation or possible violation of 
the Act shall take action in accordance with FAR 3.104-10(b).


407.503  [Amended]

    9. In paragraph (b)(4) of section 407.503, remove the word 
``activity'' and add, in its place, the word ``activity's''.

PART 408--[AMENDED]

    10. In Part 408, remove the word ``Handicapped'' wherever it 
appears and add, in its place, the word ``Disabled''.

PART 409--[AMENDED]

    11. Section 409.403 is revised to read as follows:


409.403  Definitions.

    Debarring official. Pursuant to the Secretary's delegations of 
authority in 7 CFR 2.24, the Senior Procurement Executive (SPE) is 
designated as the debarring official (Department Debarring Officer) 
with the following exceptions:
    (a) For commodity contracts awarded on behalf of the Commodity 
Credit Corporation (CCC), the Executive Vice President, CCC, or his 
designee is designated as the debarring official pursuant to 7 CFR part 
1407.
    (b) For contracts awarded under the School Lunch and Surplus 
Removal Programs (42 U.S.C. 1755 and 7 U.S.C. 612c), the Department 
Debarring Officer has delegated debarring authority to the Agricultural 
Marketing Service (AMS).

PART 411--[AMENDED]

    12. Section 411.171 is revised to read as follows:


411.171  Solicitation provisions and contract clauses.

    (a) Contracting officers shall insert the provision at 452.211-70, 
Brand Name or Equal, in solicitations, other than those for 
construction, where ``brand name or equal'' purchase descriptions are 
used.
    (b) Contracting officers shall insert the clause at 452.211-71, 
Equal Products Offered, in solicitations, other than those for 
construction, where the provision at 452.211-70 is included.
    (c) Contracting officers shall insert the clause at 452.211-72, 
Statement of Work/Specifications, when the description (statement of 
work) or specification(s) is included in Section J of the solicitation.
    (d) Contracting officers shall insert the clause at 452.211-73, 
Attachment to Statement of Work/Specifications, when there are 
attachments to the description (statement of work) or specifications.
    13. Section 411.404 is revised to read as follows:


411.404  Contract clauses.

    (a) The contracting officer shall insert the clause at 452.211-74, 
Period of Performance, when it is necessary to specify a period of 
performance, beginning on the date of award, date of receipt of notice 
of award, or a specified date.
    (b) The contracting officer shall insert the clause at 452.211-75, 
Effective Period of the Contract, when it is necessary to specify the 
effective period of the contract.

PART 416--[AMENDED]

    14. In subpart 416.4, sections 416.404, 416.404-2, and 416.405 are 
redesignated 416.405, 416.405-2, and 416.406, respectively.

PART 419--[AMENDED]

    15. Section 419.201-73 is amended by revising paragraph (b) to read 
as follows:


419.201-73  Reports.

* * * * *
    (b) The following dates must be adhered to in regard to the 
reporting of subcontract award data.

SF-294 Reports
    Frequency: Twice a Year.
    Cut-off date (Reporting Period Ending): March 31.
    Date Due at Contracting Activity: April 30.
    Cut-off date (Reporting Period Ending): September 30.
    Date Due at Contracting Activity: October 30.
SF-295 Reports
    Frequency: Once a Year.
    Cut-off date (12 Month-Period Ending): September 30.
    Date Due at OSDBU: October 30.

    16. Section 419.602-3 is revised to read as follows:


Sec. 419.602-3  Resolving differences between the agency and the Small 
Business Administration.

    The HCA is authorized to appeal the issuance of a COC to SBA 
Headquarters as provided by FAR 19.602-3(a).


422.608  [Removed]

    17. Section 422.608 is removed and reserved.


422.608-4  [Removed]

    18. Section 422.608-4 is removed.


424.202  [Redesignated as 424.203]

    19. Section 424.202 is redesignated as section 424.203.

PART 425--[AMENDED]

    20.-21. Section 425.202 is revised to read as follows:


425.202  Policy.

    (a) The SPE shall make the determination prescribed in FAR 
25.202(a)(3).
    (b) If a contracting officer proposes that the use of a particular 
domestic construction material should be waived for a contract on the 
grounds that its use would be impracticable, the contracting officer 
shall submit a proposed determination with supporting information 
through the HCA to the SPE for approval or disapproval.


425.203  [Removed]


425.204  [Removed]

    22. Sections 425.203 and 425.204 are removed and reserved.


432.111  [Amended]

    23. In section 432.111, remove ``452.232-1'' and add, in its place, 
``452.232-70''.


434.001  [Amended]

    24. In section 434.001, in the introductory text, remove ``34.001'' 
and add, in its place, ``2.101''.

PART 436--[AMENDED]

    25.-26. Sections 436.213 and 436.213-2 are added to read as 
follows:


436.213  Special procedures for sealed bidding in construction 
contracting.


436.213-2  Presolicitation notices.

    The authority to waive a presolicitation notice is restricted to 
the HCA.

Subpart 436.3--[Removed]

    27. Subpart 436.3 is removed and reserved.

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    28. Section 436.575 is revised to read as follows:


436.575  Maximum workweek-construction schedule.

    The contracting officer shall insert the clause at 452.236-75, 
Maximum Workweek-Construction Schedule, if the clause at FAR 52.236-15 
is used and the contractor's work schedule is restricted by access to 
the facility or must be coordinated with the schedule of contract 
administration personnel.


452.211-1--452.211-6  [Redesignated as 452.211-70--452.211-75]

    29.-30. Sections 452.211-1 through 452.211-6 are redesignated 
sections 452.211-70 through 452.211-75, respectively.


452.232-1  [Redesignated as 452.232-70]

    31. Section 452.232-1 is redesignated as 452.232-70.

    Done at Washington, D.C., this 7th day of May, 1998.
W.R. Ashworth,
Director, Office of Procurement and Property Management.
[FR Doc. 98-12841 Filed 5-14-98; 8:45 am]
BILLING CODE 3410-XE-P


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