11512 Federal Register / Vol. 74, No. 51 / Wednesday, March 18, 2009 / Proposed Rules 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This proposed 

rule, if made final, would delay the 

effective date of the NSR Aggregation 

Amendments and allow for sufficient 

time to conduct the reconsideration. 

Thus, Executive Order 13132 does not 

apply to these proposed regulation 

revisions. 

In the spirit of Executive Order 13121 

and consistent with EPA policy to 

promote communications between EPA 

and state and local governments, EPA is 

soliciting comments on this proposal 

from state and local officials. 

F. Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have Tribal 

implications as specified in Executive 

Order 13175. No tribal government 

currently has an approved tribal 

implementation plan under the CAA to 

implement the NSR program, therefore 

the Federal government is currently the 

NSR reviewing authority in Indian 

country. Thus, tribal governments 

should not experience added burden 

from this proposed action. Thus, 

Executive Order 13175 does not apply. 

EPA specifically solicits additional 

comment on the proposed revisions to 

the regulations from Tribal officials. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

EPA interprets EO 13045 (62 FR 

19885, April 23, 1997) as applying only 

to those regulatory actions that concern 

health or safety risks, such that the 

analysis required under section 5–501 of 

the EO has the potential to influence the 

regulation. This action is not subject to 

EO 13045 because this proposal is 

taking comment on delaying the 

effective date of the NSR Aggregation 

Amendments and allows for sufficient 

time to conduct the reconsideration. 

However, EPA solicits comments on 

whether the proposal would result in an 

adverse environmental effect that would 

have a disproportionate effect on 

children. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not a significant 

regulatory action under Executive Order 

12866. 

I. National Technology Transfer 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law No. 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

This proposed rulemaking does not 

involve technical standards. Therefore, 

EPA is not considering the use of any 

voluntary consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629 

(Feb. 16, 1994)) establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

Federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this 

proposed rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it does not affect the level of 

protection provided to human health or 

the environment. The proposed revision 

is taking comment on delaying the 

effective date of the NSR Aggregation 

Amendments and allows for sufficient 

time to conduct the reconsideration. As 

such, it does not adversely affect the 

health or safety of minority or low 

income populations. 

K. Determination Under Section 307(d) 

Pursuant to sections 307(d)(1)(E) and 

307(d)(1)(V) of the CAA, the 

Administrator determines that this 

action is subject to the provisions of 

section 307(d). Section 307(d)(1)(V) 

provides that the provisions of section 

307(d) apply to ‘‘such other actions as 

the Administrator may determine.’’ 

IV. Statutory Authority 

The statutory authority for this action 

is provided by sections 307(d)(7)(B), 

101, 111, 114, 116, and 301 of the CAA 

as amended (42 U.S.C. 7401, 7411, 7414, 

7416, and 7601). This notice is also 

subject to section 307(d) of the CAA (42 

U.S.C. 7407(d)). 

List of Subjects 

40 CFR Part 51 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Baseline 

emissions, Intergovernmental relations, 

Aggregation, Major modifications, 

Reporting and recordkeeping 

requirements. 

40 CFR Part 52 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Baseline 

emissions, Intergovernmental relations, 

Aggregation, Major modifications, 

Reporting and recordkeeping 

requirements. 

Dated: March 12, 2009. 

Lisa P. Jackson, 

Administrator. 

[FR Doc. E9–5996 Filed 3–17–09; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HOMELAND 

SECURITY 

48 CFR Parts 3009 and 3052 

[Docket No. DHS–2009–0017] 

RIN 1601–AA55 

Prohibition on Federal Protective 

Service Guard Services Contracts With 

Business Concerns Owned, 

Controlled, or Operated by an 

Individual Convicted of a Felony 

[HSAR Case 2009–001] 

AGENCY: Department of Homeland 

Security (DHS). 

ACTION: Proposed rule with request for 

comments. 

SUMMARY: DHS is proposing to amend 

the Homeland Security Acquisition 

Regulation (HSAR) to prohibit DHS 

from awarding a Federal Protective 

Service (FPS) contract for guard services 

to a business concern that is owned, 

controlled, or operated by an individual 

who has been convicted of a serious 

felony. The rule is necessary to 

implement the provisions of Public Law 

110–356, the Federal Protective Service 

Guard Contracting Reform Act of 2008. 

DATES: Comment date: Interested parties 

should submit written comments to the 


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Department of Homeland Security, 

Office of the Chief Procurement Officer, 

Acquisition Policy and Legislation, on 

or before April 17, 2009. 

ADDRESSES: Please submit written 

comments, identified by agency name 

and docket number DHS–2009–0017, by 

one of the following methods: 

(1) Federal eRulemaking Portal: 

http://www.regulations.gov. Follow the 

instructions for submitting comments. 

(2) By mail to the Department of 

Homeland Security, Office of the Chief 

Procurement Officer, Acquisition Policy 

and Legislation, ATTN: Gloria Sochon, 

245 Murray Drive, Bldg. 410 (RDS) 

Washington, DC 20528. 

FOR FURTHER INFORMATION CONTACT: 

Gloria Sochon, Senior Procurement 

Analyst, at (202) 447–3507 for 

clarification of content. Please cite 

HSAR Case 2008–002. 

SUPPLEMENTARY INFORMATION: 

I. Request for Comments 

II. Background 

III. Discussion of Proposed Rule 

IV. Regulatory Requirements 

A. Executive Order 12866 Assessment 

B. Regulatory Flexibility Act 

C. Paperwork Reduction Act 

I. Request for Comments 

Interested persons are invited to 

participate in this rulemaking by 

submitting written views and arguments 

on all aspects of this rule. Comments 

should be organized by HSAR Part, and 

address the specific section that is being 

commented on. All comments received 

will be posted without change to http:// 

www.regulations.gov, including any 

personal information provided. See 

ADDRESSES above for information on 

how to submit comments. If you submit 

comments by mail, please submit them 

in an unbound format, no larger than 

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. 

II. Background 

Public Law 110–356, the Federal 

Protective Service Guard Contracting 

Reform Act of 2008, prohibits DHS from 

awarding an FPS contract for guard 

services to any business concern that is 

owned, controlled, or operated by an 

individual who has been convicted of a 

felony. The proposed rule would 

implement this prohibition, identify 

which serious felonies may prohibit a 

contractor from being awarded a 

contract; require contractors to provide 

information regarding any relevant 

felony convictions when submitting 

bids or proposals; provide guidelines for 

the contracting officer to assess present 

responsibility, mitigating factors, and 

the risk associated with the previous 

conviction, and allow the contracting 

officer to award a contract under certain 

circumstances. 

The rule proposes that felonies which 

cast doubt on the integrity or business 

ethics of a business concern or are of a 

nature that is inconsistent with the 

mission of the Federal Protective 

Service are serious felonies which will 

prohibit a business concern from being 

awarded an FPS contract for guard 

services. Examples of serious felony 

convictions may include, but are not 

limited to: Fraud arising out of a 

contract with the federal, state or local 

government; bribery, graft or a conflict 

of interest; threatened or actual harm to 

a government official, family member or 

government property; crimes of 

violence; threat to national security; 

commercial bribery; counterfeiting, 

forgery or trafficking in vehicles the 

identification numbers of which have 

been altered; obstruction of justice, 

perjury or subornation of perjury, or 

bribery of a witness; felony for attempt 

to evade or defeat Federal tax or felony 

for willful failure to collect or pay over 

Federal tax. 

The proposed HSAR clause will 

require offerors to disclose whether they 

are or are not a business concern owned, 

controlled or operated by an individual 

convicted of a felony. If an offeror 

represents that they are owned, 

controlled or operated by an individual 

convicted of a felony they will need to 

submit a new award request with their 

bid or proposal or a previously 

approved award request. The award 

request will provide the basis for the 

request and details regarding the felony 

conviction to include: Name and date of 

birth of the individual convicted of a 

felony, the age of the conviction, nature 

and circumstances surrounding the 

conviction, protective measures taken 

by the individual or business concern to 

reduce or eliminate the risk of further 

misconduct, whether the individual has 

made full restitution for the felony and 

whether the individual has accepted 

responsibility for past misconduct 

resulting in the felony conviction. 

The proposed clause also provides 

that after award of an Indefinite 

Delivery/Indefinite Quantity Contract, 

Blanket Purchase Agreement, or other 

contractual instrument that may result 

in the issuance of task orders, calls, or 

exercise of options to extend the term of 

the contract, the contractor must 

provide notice of a felony conviction of 

any person who owns, controls, or 

operates the business concern. The 

contracting officer will review the 

conviction and make a new 

determination of eligibility prior to the 

issuance of any task order, call, or 

exercise of any option. 

The proposed rule would allow the 

contracting officer to review the basis 

for the award request and assess the risk 

associated with the felony conviction. 

Under certain circumstances, the 

contracting officer could award a 

contract for guard services to a business 

concern owned, controlled or operated 

by an individual convicted of a felony. 

Prior to such an award, the contracting 

officer will need to obtain the approval 

of the Head of the Contracting Activity 

for U.S. Immigration and Customs 

Enforcement. 

III. Discussion of Proposed Rule 

The proposed rule would revise 

HSAR 48 CFR 3009.1 and add a clause 

3052.209–XX to implement Public Law 

110–356. It also makes technical 

corrections to HSAR 48 CFR 3009.1. 

IV. Regulatory Requirements 

A. Executive Order 12866 Assessment 

This is not a significant regulatory 

action and, therefore, was not subject to 

review under Section 6(b) of Executive 

Order 12866, Regulatory Planning and 

Review, dated September 30, 1993. The 

rule is not a major rule under 5 U.S.C. 

804. 

B. Regulatory Flexibility Act 

The Department of Homeland 

Security certifies that the proposed rule 

amending HSAR 48 CFR 3009.1 and 

3052.209 will not, if promulgated, have 

a significant impact on a substantial 

number of small entities within the 

meaning of the Regulatory Flexibility 

Act, 5 U.S.C. 601, et seq. The factual 

basis for certification is presented in the 

following analysis of the economic 

effects of the proposed rule. Application 

of the rule is limited to offerors or 

contractors providing guard services 

under the Federal Protective Service 

contract security guard program. 

Further, for these offerors and 

contractors, the economic impact of the 

rule is not expected to be substantial. 

Currently, FPS administers a contract 

inventory consisting of approximately 

125 contract vehicles for guard services 

with 46 different guard service vendors. 

These FPS contracts provide 14,000 

contract guards to protect 9,000 federal 

facilities. In FY2008, DHS issued 


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approximately 47 solicitations for guard 

services and awarded 55 contracts. For 

each solicitation issued, an average of 

10 offerors responded. 

The 46 vendors that provide guard 

services to FPS represent less than one 

percent of the industry. In 2005, the 

Small Business Administration, based 

on Bureau of Census data, estimated 

that there were 4,853 firms in Security 

Guards and Patrol Services Industry, 

North American Industry Classification 

System (NAICS) 561612 (Reference 

Federal Register notices of November 

10, 2005 (70 FR 68368) and June 30, 

2006 (71 FR 37490)). The Central 

Contractor Registration database (http:// 

www.ccr.gov) currently lists 5,784 active 

records for NAICS 561612. Of these, 

2,361, or 41 percent are identified as 

small businesses. 

Only those vendors that represent that 

they are owned, controlled, or operated 

by an individual convicted of a felony 

will need to submit a new award request 

with their bid or proposal or a 

previously approved award request. 

After award, a contractor will need to 

disclose felony convictions that occur 

during the term of the contract. DHS 

estimates that this may affect ten 

percent of offerors (fewer than 50 per 

year ¥47 solicitations × 10 offerors per 

solicitation × .1) and ten percent of 

contractors (fewer than five per year— 

46 guard service vendors × .1)). The 

award request must provide the basis for 

the request and details regarding the 

felony conviction to include: The age of 

the conviction, nature and 

circumstances surrounding the 

conviction, protective measures taken 

by the individual or business concern to 

reduce or eliminate the risk of further 

misconduct, whether the individual has 

made full restitution for the felony and 

whether the individual has accepted 

responsibility for past misconduct 

resulting in the felony conviction. 

Under certain circumstances, the 

contracting officer may still award a 

contract for guard services to a business 

concern owned, controlled or operated 

by an individual convicted of a felony. 

Only those felonies that cast doubt on 

the integrity or business ethics of the 

business concern or are of a nature that 

are inconsistent with the mission of the 

Federal Protective Service will prohibit 

a business concern from being awarded 

an FPS contract for guard services. 

Examples of serious felony convictions 

may include, but are not limited to: 

fraud arising out of a contract with the 

federal, state or local government, 

bribery, graft or a conflict of interest, 

threatened or actual harm to a 

government official, family member or 

government property, crimes of 

violence, threat to national security, 

commercial bribery, counterfeiting, 

forgery or trafficking in vehicles the 

identification numbers of which have 

been altered, obstruction of justice, 

perjury or subornation of perjury, or 

bribery of a witness, felony for attempt 

to evade or defeat Federal tax or felony 

for willful failure to collect or pay over 

Federal tax. 

Therefore, DHS has not performed an 

initial regulatory flexibility analysis. 

DHS invites comments from small 

businesses and other interested parties. 

DHS also will consider comments from 

small entities concerning the affected 

HSAR subpart in accordance with 5 

U.S.C. 610. Such comments should be 

submitted separately and should cite 

HSAR Case 2008–0002. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act (44 

U.S.C. Chapter 35) applies because the 

rule contains information collection 

requirements. 

(1) The clause at 3052.209–XX 

requires each offeror for FPS contract 

guard services to disclose whether it is 

owned, controlled or operated by an 

individual convicted of a felony. The 

representation is necessary to evaluate 

the offeror’s responsibility related to 

performing the required services in 

accordance with Public Law 110–356. 

An offeror that is owned, controlled or 

operated by a felon must also submit an 

award request with supporting 

documentation. DHS has determined 

that the burden for the responses is 

within the total estimated burden for 

information requested from prospective 

contractors in response to agency-issued 

solicitations approved under OMB 

Control No. 1600–0005. Based on 

FY2008 statistics, DHS has 

approximately 470 respondents to 

solicitations for contract guard services 

per year (47 solicitations with an 

average of 10 offers per solicitation), all 

of whom will make the representation. 

Of these, DHS estimates that 10 percent 

(47 per year) may submit award 

requests. DHS estimates the total burden 

on offerors to be 211.5 hours. This 

represents .1 percent of the total burden 

hours under OMB Control No. 1600– 

0005. 

(2) The clause at 3052.209–XX 

requires the contractor to report felony 

convictions after award of an Indefinite 

Delivery/Indefinite Quantity Contract, 

Blanket Purchase Agreement, or other 

contractual instrument that may result 

in the issuance of task orders, calls, or 

exercise of options to extend the term of 

the contract. The notice applies to a 

felony conviction of any person who 

owns, controls, or operates the business 

concern. DHS has determined that the 

burden for the responses is within the 

total estimated burden for information 

requested from contractors in response 

to OMB Control No. 1600–003 for 

information requested from contractors 

as part of post-contract award 

administration by DHS acquisition 

officials. DHS has 125 contracts for FPS 

guard services. Of these, DHS estimates 

that 10 percent will also submit a notice 

of felony conviction. DHS estimates the 

total burden on contractors to be 25 

hours. This represents less than .001 

percent of the total burden hours under 

OMB Control No. 1600–0003. 

List of Subjects in 48 CFR Parts 3009 

and 3052 

Government procurement. 

Richard K. Gunderson, 

Acting Chief Procurement Officer, 

Department of Homeland Security. 

■ Accordingly, DHS amends 48 CFR 

parts 3009 and 3052 as follows: 

■ 1. The authority citation for 48 CFR 

parts 3009 and 3052 continues to read 

as follows: 

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

PART 3009—CONTRACTOR 

QUALIFICATIONS 

■ 2. Redesignate section 3009.104–70 as 

section 3009.170 and redesignate 

sections 3009.104–71 through 

3009.104–75 as sections 3009.170–1 

through 3009.170–5, respectively. 

■ 3. Add sections 3009.171 through 

3009.171–9 to subpart 3009.1 to read as 

follows: 

3009.171 Prohibition on Federal Protective 

Service guard services contracts with 

business concerns owned, controlled, or 

operated by an individual convicted of a 

felony. 

3009.171–1 General. 

Except as provided in HSAR 48 CFR 

3009.171–6, the Department of 

Homeland Security (DHS) may not enter 

into a contract for guard services under 

the Federal Protective Service (FPS) 

guard services program with any 

business concern owned, controlled, or 

operated by an individual convicted of 

a serious felony. 

3009.171–2 Definitions. 

As used in this subpart— 

Business concern means a commercial 

enterprise and the people who 

constitute it. 

Convicted of a felony means any 

conviction of a felony in violation of 

state or federal criminal statutes, 

including the Uniform Code of Military 

Justice, whether entered on a verdict or 


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plea, including a plea of nolo 

contendere, for which a sentence has 

been imposed. 

Felony means an offense punishable 

by death or imprisonment for a term 

exceeding one year. 

Individual means any person, 

corporation, partnership, or other entity 

with a legally independent status. 

3009.171–3 Determination of eligibility for 

award of FPS guard service contracts. 

(a) Contracting officers shall make a 

determination of eligibility for award of 

FPS guard service contracts upon 

identification of the apparent successful 

offeror as a result of a solicitation for 

offers 

(b) Contractors shall be required to 

immediately notify the contracting 

officer in writing upon any felony 

conviction of personnel who own, 

control or operate a business concern as 

defined in (HSAR) 48 CFR 3009.171–4 

at any time during the duration of an 

Indefinite Delivery/Indefinite Quantity 

Contract, Blanket Purchase Agreements, 

or other contractual instrument that may 

result in the issuance of task orders, 

calls or option to extend the terms of a 

contract. Upon notification of a felony 

conviction the contracting officer will 

review and make a new determination 

of eligibility prior to the issuance of any 

task order, call or exercise of an option. 

3009.171–4 Determination of ownership, 

control, or operation. 

(a) The extent to which an individual 

owns, controls, or operates a business 

concern is determined on a case-by-case 

basis and depends on the specific facts 

of the individual’s situation. Upon the 

request of the contracting officer, and 

prior to contract award, such individual 

must provide documentation to the 

contracting officer to use in determining 

ownership, control, or operation. The 

refusal to provide or to timely provide 

such documentation may serve as 

grounds to preclude contract award. 

(b) The interest of a spouse or other 

family member in the same business 

concern will be imputed to the 

individual in determining the extent to 

which the individual owns, controls, or 

operates the business concern. 

(c) The following are examples of 

when an individual owns, controls, or 

operates a business concern. The 

examples are not inclusive. 

(1) The individual is the president or 

chief executive officer of the business 

concern. 

(2) The individual is a senior level 

executive within the business concern, 

such as the Chief Financial Officer, 

Chief Operating Officer or Chief 

contracting official. 

(3) The individual is a general partner 

in the business concern. 

(4) An individual who is a general 

partner in a limited partnership has 

control. An individual with a limited 

partnership interest of 25% or more has 

ownership or control. 

(5) An individual owns, controls, or 

operates a business concern when the 

individual has the: 

(i) Power to vote, directly or 

indirectly, 25% or more interest in any 

class of voting stock of the business 

concern; 

(ii) Ability to direct in any manner the 

election of a majority of the business 

concern’s directors or trustees; or 

(iii) Ability to exercise a controlling 

influence over the business concern’s 

management and policies. 

3009.171–5 Serious felonies prohibiting 

award. 

(a) Not all felony convictions will 

prohibit a business concern from being 

awarded a contract for FPS guard 

services. Those felonies that cast doubt 

on the integrity or business ethics of the 

business concern, or are of a nature that 

are inconsistent with the mission of the 

Federal Protective Service, are 

considered serious felonies that will 

prohibit contract award. 

(b) The following are examples of 

serious felonies prohibiting contract 

award. 

(1) Conviction of a felony involving 

fraud arising out of a contract with the 

federal, state or local government. 

(2) Conviction of a felony for bribery, 

graft or a conflict of interest. 

(3) Conviction of a felony involving 

threatened or actual harm to a 

government official or family member. 

(4) Conviction of a felony involving 

threatened or actual harm to 

government property. 

(5) Conviction of a felony involving a 

crime of violence. 

(6) Conviction of a felony involving a 

threat to national security. 

(7) Conviction of a felony for 

commercial bribery, counterfeiting, 

forgery or trafficking in vehicles the 

identification numbers of which have 

been altered. 

(8) Conviction of a felony for 

obstruction of justice, perjury or 

subornation of perjury, or bribery of a 

witness. 

(9) Conviction of a felony for attempt 

to evade or defeat Federal tax. 

(10) Conviction of a felony for willful 

failure to collect or pay over Federal tax. 

(11) Conviction on any other felony 

that meets the criteria of paragraph (a) 

of this subsection. 

3009.171–6 Guidelines for contracting 

officers. 

(a) In accordance with FAR subpart 

9.4, a contracting officer may not award 

a contract for FPS guard services to any 

business concern that is suspended, 

debarred or proposed for debarment 

unless the agency head determines that 

there is a compelling reason for such 

action. 

(b) The contracting officer shall not 

award a contract for FPS guard services 

to any business concern that is 

otherwise nonresponsible on the same 

contract. 

(c) The contracting officer shall not 

award an FPS guard services contract to 

any business concern that is owned, 

controlled or operated by an individual 

convicted of a serious felony as defined 

in (HSAR) 48 CFR 3009.171–5 except as 

provided in paragraph (e) of this 

subsection. 

(d) In making the determination of 

(HSAR) 48 CFR 3009.171–7, the 

contracting officer may not review the 

fact of the conviction itself, but may 

consider any information provided by 

the individual or business concern, and 

any information known to the 

contracting officer. Factors that the 

contracting officer may consider 

include, but are not limited to: 

(1) The age of the conviction. 

(2) The nature and circumstances 

surrounding the conviction. 

(3) Protective measures taken by the 

individual or business concern to 

reduce or eliminate the risk of further 

misconduct. 

(4) Whether the individual has made 

full restitution for the felony. 

(5) Whether the individual has 

accepted responsibility for past 

misconduct resulting in the felony 

conviction. 

(e) The contracting officer may 

determine that the conviction of an 

otherwise serious felony is of such age, 

or committed under such 

circumstances, that the underlying 

felonious misconduct no longer calls 

into question the individual or business 

concern’s integrity or business ethics, or 

that it is not inconsistent with the 

mission of the Federal Protective 

Service. Any such determination must 

be approved by the Head of the 

Contracting Activity (HCA) for U.S. 

Immigration and Customs Enforcement. 

3009.171–7 Contract award approval 

procedures for contractors with felony 

convictions. 

(a) The HCA for U.S. Immigration and 

Customs Enforcement has sole 

discretion to approve a request to permit 

award of a contract for FPS guard 

services to a business concern owned, 


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controlled, or operated by an individual 

convicted of a felony, for any reason 

permitted by this regulation. This 

authority is not delegable. 

(b) A business concern owned, 

operated or controlled by an individual 

convicted of a felony may submit an 

award request to the contracting officer. 

The basis for such request shall be that 

the subject felony is not a serious felony 

as defined by this regulation, or that 

such individual no longer owns, 

controls or operates the business 

concern. The business concern shall 

bear the burden of proof for award 

requests. 

(c) A copy of the award approval 

request with supporting documentation 

or the approved request shall be 

attached with the bid or proposal. 

(d) An award approval request shall 

contain the basis for the request. If the 

basis for the request is that the subject 

felony is not a serious felony as defined 

by this regulation the award approval 

request shall contain, at a minimum, the 

following information: 

(1) Name and Date of Birth of 

Individual Convicted of a felony 

(2) Date sentenced 

(3) Statute/Charge 

(4) Docket/Case Number 

(5) Court/Jurisdiction 

(6) The nature and circumstances 

surrounding the conviction 

(7) Protective measures taken by the 

individual or business concern to 

reduce or eliminate the risk of further 

misconduct. 

(8) Whether the individual has made 

full restitution for the felony 

(9) Whether the individual has 

accepted responsibility for past 

misconduct resulting in the felony 

conviction. 

(e) If the contracting officer is unable 

to affirmatively determine that the 

subject felony is not a serious felony as 

defined by this regulation, or that such 

individual no longer owns, controls or 

operates the business concern, the 

contracting officer shall deny the award 

approval request and not forward such 

request to the HCA for U.S. Immigration 

and Customs Enforcement 

(f) If the contracting officer 

affirmatively determines that the subject 

felony is not a serious felony as defined 

by this regulation, or that such 

individual no longer owns, controls or 

operates the business concern, the 

contracting officer shall refer the request 

to the HCA for U.S. Immigration and 

Customs Enforcement with a 

recommendation that the request be 

approved. 

3009.171–8 Ineligible contractors. 

Any business concern determined to 

be ineligible for award under (HSAR) 48 

CFR 3009.171–4 shall be ineligible to 

receive a contract for guard services 

under the Federal Protective Service 

guard program until such time as: 

(a) The concern demonstrates that it 

has addressed and resolved the issues 

that resulted in the determination of 

ineligibility, and 

(b) Either: 

(1) The contracting officer makes an 

affirmative determination that the 

business concern is not owned, 

operated, or controlled by an individual 

convicted of a felony based on current 

information, or 

(2) The HCA for U.S. Immigration and 

Customs Enforcement approves an 

award request under (HSAR) 48 CFR 

3009.171–6. 

3009.171–9 Clause. 

Insert the clause (HSAR) 48 CFR 

3052.209–XX, Prohibition on Federal 

Protective Service guard services 

contracts with business concerns 

owned, controlled, or operated by an 

individual convicted of a felony, in all 

solicitations and contracts for FPS guard 

services. 

PART 3052—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 4. Add section 3052.209–XX as 

follows: 

3052.209–XX Prohibition on Federal 

Protective Service guard services contracts 

with business concerns owned, controlled, 

or operated by an individual convicted of a 

felony 

As prescribed at (HSAR) 48 CFR 

3009.171–9, insert the following clause: 

Prohibition on Federal Protective Service 

Guard Services Contracts With Business 

Concerns Owned, Controlled, or Operated by 

an Individual Convicted of a Felony (Date) 

(a) Prohibitions. Section 2 of the Federal 

Protective Service Guard Contracting Reform 

Act of 2008, Public Law 110–356, prohibits 

the Department of Homeland Security from 

entering into a contract for guard services 

under the Federal Protective Service (FPS) 

guard services program with any business 

concern owned, controlled, or operated by an 

individual convicted of a serious felony. 

(b) Definitions. As used in this clause: 

Business concern means a commercial 

enterprise and the people who constitute it. 

Felony means an offense punishable by 

death or imprisonment for a term exceeding 

one year. 

Convicted of a felony means any 

conviction of a felony in violation of state or 

federal criminal statutes, including the 

Uniform Code of Military Justice, whether 

entered on a verdict or plea, including a plea 

of nolo contendere, for which a sentence has 

been imposed. 

Individual means any person, corporation, 

partnership, or other entity with a legally 

independent status. 

(c) The extent to which an individual 

owns, controls, or operates a business 

concern is determined on a case-by-case basis 

and depends on the specific facts of the 

individual’s situation. Upon the request of 

the Contracting Officer, and prior to contract 

award, such individual must provide 

documentation to the Contracting Officer to 

use in determining ownership, control, or 

operation. The refusal to timely provide such 

documentation may serve as grounds to 

preclude contract award. 

(1) The interest of a spouse or other family 

member in the same organization will be 

imputed to the individual in determining the 

extent to which the individual owns, 

controls, or operates a business concern. 

(2) The following are examples of when an 

individual owns, controls, or operates a 

business concern. The examples are not 

inclusive. 

(i) The individual is the president or chief 

executive officer of the business concern. 

(ii) The individual is a senior level 

executive within the business concern, such 

as the Chief Financial Officer, Chief 

Operating Officer or Chief contracting 

official. 

(iii) The individual is a general partner in 

the business concern. 

(iv) An individual who is a general partner 

in a limited partnership has control. An 

individual with a limited partnership interest 

of 25% or more has ownership or control. 

(v) An individual owns, controls, or 

operates a business concern when the 

individual has the: 

(A) Power to vote, directly or indirectly, 

25% or more interest in any class of voting 

stock of the business concern; Ability to 

direct in any manner the election of a 

majority of the business concern’s directors 

or trustees; or 

(B) Ability to exercise a controlling 

influence over the business concern’s 

management and policies. 

(d) Award request. 

(1) A business concern owned, operated or 

controlled by an individual convicted of a 

felony may submit an award request to the 

Contracting Officer. The basis for such 

request shall be that the subject felony is not 

a serious felony as defined by this regulation, 

or that such individual no longer owns, 

controls or operates the business concern. 

The business concern shall bear the burden 

of proof for award requests. 

(2) If the Contracting Officer, in his or her 

sole discretion, is unable to affirmatively 

determine that the subject felony is not a 

serious felony as defined by this regulation, 

or that such individual no longer owns, 

controls or operates the business concern, the 

Contracting Officer shall deny the award 

request. The Head of the Contracting Activity 

for U.S. Immigration and Customs 

Enforcement has sole discretion to approve 

an award request. 

(3) A copy of the award request with 

supporting documentation or the approved 

award request shall be attached with the bid 

or proposal. 

(4) An award request shall contain the 

basis for the request. If the basis for the 


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Federal Register / Vol. 74, No. 51 / Wednesday, March 18, 2009 / Proposed Rules 11517 

request is that the subject felony is not a 

serious felony as defined by this regulation 

the award request shall contain, at a 

minimum, the following information: 

(i) Name and Date of Birth of Individual 

Convicted of a felony. 

(ii) Date sentenced. 

(iii) Statute/Charge. 

(iv) Docket/Case Number. 

(v) Court/Jurisdiction. 

(vi) The nature and circumstances 

surrounding the conviction. 

(vii) Protective measures taken by the 

individual or business concern to reduce or 

eliminate the risk of further misconduct. 

(viii) Whether the individual has made full 

restitution for the felony 

(ix) Whether the individual has accepted 

responsibility for past misconduct resulting 

in the felony conviction. 

(e) Privacy Statement. The offeror will 

provide the following statement to any 

individual whose information will be 

submitted in an award request pursuant to 

paragraph (d)(4) of this clause. 

Privacy Act Notice. The collection of this 

information is authorized by the Federal 

Protective Service Guard Contracting Reform 

Act of 2008 (Pub. L. 110–356) and 

Department of Homeland Security (DHS) 

implementing regulations at Homeland 

Security Acquisition Regulation (HSAR) 48 

CFR 3009.171. This information is being 

collected to determine whether an individual 

that owns, controls, or operates the business 

concern submitting this offer has been 

convicted of a felony that would disqualify 

the offeror from receiving an award. This 

information will be used by and disclosed to 

DHS personnel and contractors or other 

agents who require this information to 

determine whether an award request should 

be approved or denied. Additionally, DHS 

may share this personal information with the 

U.S. Justice Department and other Federal 

and State agencies for collection, 

enforcement, investigatory, or litigation 

purposes, or as otherwise authorized 

pursuant to its published Privacy Act system 

of records notice. Submission of this 

information by the individual is voluntary, 

however, failure to provide it may result in 

denial of an award to the offeror. 

(f) Disclosure. The offeror under this 

solicitation represents that [Check one]: 

llit is not a business concern owned, 

controlled, or operated by an individual 

convicted of a felony; or 

llit is a business concern owned, 

controlled, or operated by an individual 

convicted of a felony, and has submitted an 

award request pursuant to paragraph (d) of 

this clause. 

(g) If a request is applied for, the offeror 

shall attach the request with supporting 

documentation, to the bid or proposal. The 

supporting documentation may include 

copies of prior award requests granted to the 

offeror. 

(h) The notification in this paragraph 

applies if this is an indefinite delivery/ 

indefinite quantity contract, blanket purchase 

agreement, or other contractual instrument 

that may result in the issuance of task orders, 

calls or option to extend the terms of a 

contract. The Contractor must immediately 

notify the Contracting Officer in writing upon 

any felony conviction of personnel who own, 

control or operate a business concern as 

defined in paragraph (c) of this clause at any 

time during the performance of this contract. 

Upon notification of a felony conviction the 

Contracting Officer will review and make a 

new determination of eligibility prior to the 

issuance of any task order, call or exercise of 

an option. 

(End of clause) 

[FR Doc. E9–5795 Filed 3–17–09; 8:45 am] 

BILLING CODE 4410–10–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 622 

[Docket No. 090220217–9226–01] 

RIN 0648–AX66 

Fisheries of the Caribbean, Gulf of 

Mexico, and South Atlantic; Reef Fish 

Resources of the Gulf of Mexico; 

Commercial Sector of the Reef Fish 

Fishery of the Gulf of Mexico; Control 

Date 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Advance notice of proposed 

rulemaking; consideration of a control 

date. 

SUMMARY: NMFS announces that it is 

establishing a revised control date that 

may be used to control future access to 

the commercial sector of the reef fish 

fishery operating in the exclusive 

economic zone (EEZ) of the Gulf of 

Mexico (Gulf). If changes to the 

management regime are developed and 

implemented under the MagnusonStevens Fishery Conservation and 

Management Act (Magnuson-Stevens 

Act), a control date could be used to 

limit the number of participants in the 

fishery. This announcement is intended, 

in part, to promote awareness of the 

potential eligibility criteria for future 

access so as to discourage speculative 

entry into the fishery while the Gulf of 

Mexico Fishery Management Council 

(Council) and NMFS consider whether 

and how access to the commercial 

sector of the reef fish fishery should be 

controlled. 

DATES: Comments must be received on 

of before 5 p.m., eastern time, April 17, 

2009. 

ADDRESSES: You may submit comments, 

identified by RIN 0648–AX66, by any 

one of the following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal http:// 

www.regulations.gov. 

• Mail: Cynthia Meyer, NMFS 

Southeast Regional Office, Sustainable 

Fisheries Division, 263 13th Avenue 

South, St. Petersburg, FL 33701. 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. 

To submit comments through the 

Federal e-Rulemaking Portal: http:// 

www.regulations.gov, enter ‘‘NOAANMFS–2009–0039’’ in the keyword 

search, then select ‘‘Send a Comment or 

Submission.’’ NMFS will accept 

anonymous comments (enter N/A in the 

required fields, if you wish to remain 

anonymous). You may submit 

attachments to electronic comments in 

Microsoft Word, Excel, WordPerfect, or 

Adobe PDF file formats only. 

SUPPLEMENTARY INFORMATION: The 

commercial sector of the Gulf reef fish 

fishery is managed under the Fishery 

Management Plan for the Reef Fish 

Resources of the Gulf of Mexico (FMP). 

The FMP was prepared by the Council, 

and implemented under the authority of 

the Magnuson-Stevens Act. A 

moratorium on the issuance of new 

commercial reef fish permits was 

established by Amendment 4 to the 

FMP in May 1992. The moratorium has 

been maintained since that time with 

the implementation of Amendments 9, 

11, and 17. The Council implemented 

Amendment 24 on August 17, 2005, to 

replace the commercial reef fish permit 

moratorium that was set to expire on 

December 31, 2005, with a permanent 

limited access system. 

This notice would inform participants 

in the Gulf reef fish fishery of the 

Council’s intention to consider further 

limiting access within the commercial 

sector of the Gulf reef fish fishery. 

Specifically, the Council may consider 

creating additional restrictions 

including limiting participation by gear 

type or by specific species to only those 

vessels or participants that have catch 

histories in excess of some minimum 

landings threshold. Should the Council 

take such future action to further restrict 

participation in the commercial sector 

of the Gulf reef fish fishery, it intends 

to use December 31, 2008, as a possible 

control date regarding the eligibility of 


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