1296 Federal Register / Vol. 72, No. 7 / Thursday, January 11, 2007 / Rules and Regulations 

INDIANA OZONE

[8-Hour standard] 

Designated area 

Designation a Classification 

Date1 Type Date Type 

* * * * * * * 

Fort Wayne, IN: Allen County ................................................................................. 2/12/07 Attainment

* * * * * * * 

a Includes Indian Country located in each county or area, except as otherwise specified. 

1This date is June 15, 2004, unless otherwise noted. 

[FR Doc. E7–255 Filed 1–10–07; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HOMELAND 

SECURITY 

48 CFR Parts 3001, 3002, and 3033 

[Docket No. DHS–2007–0001] 

RIN 1601–AA42 

Revision of Department of Homeland 

Security Acquisition Regulation 

AGENCY: Department of Homeland 

Security. 

ACTION: Interim rule with requests for 

comments. 

SUMMARY: The Department of Homeland 

Security (DHS) is amending its 

acquisition regulation to reflect a 

statutorily-mandated jurisdictional 

change for the agency Board of Contract 

Appeals from the Department of 

Transportation Board of Contract 

Appeals to the Civilian Board of 

Contract Appeals. DHS is also making 

several non-substantive amendments to 

its acquisition regulation in order to 

reflect organization changes. 

DATES: This rule is effective January 11, 

2007. Comments must reach the 

Department of Homeland Security, 

Office of the Chief Procurement Officer, 

Acquisition Policy on or before 

February 12, 2007, to be considered in 

the formation of the final rule. 

ADDRESSES: Please submit written 

comments, identified by agency name 

and docket number DHS–2007–0001, 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 Oversight, ATTN: Anne Terry, 245 

Murray Drive, Bldg. 410 (RDS), 

Washington, DC 20528. 

FOR FURTHER INFORMATION CONTACT: 

Anne Terry, Department of Homeland 

Security, Office of the Chief 

Procurement Officer, Acquisition 

Policy, at (202) 447–5253. 

SUPPLEMENTARY INFORMATION: 

I. Request for Comments 

II. Background 

III. Discussion of Interim Rule 

IV. Regulatory Requirements 

A. Executive Order 12866 Assessment 

B. Regulatory Flexibility Act 

C. Good Cause To Issue an Interim Rule 

I. Request for Comments 

Interested persons are invited to 

participate in this rulemaking by 

submitting written data, views, or 

arguments on all aspects of this rule. 

Comments should be organized by 

Homeland Security Acquisition 

Regulation (HSAR) Part, and address the 

specific section that is being commented 

on. All comments received will be 

posted without change to http:// 

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 

postcard or envelope. DHS will consider 

all comments and material received 

during the comment period. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http:// 

www.regulations.gov. 

II. Background 

In the National Defense Authorization 

Act for Fiscal Year 2006, Congress 

established the Civilian Board of 

Contract Appeals (CBCA), and 

terminated every agency Board of 

Contract Appeals (BCA), except those 

for the armed services, the Tennessee 

Valley Authority, and the U.S. Postal 

Service. Public Law 109–163, Title VIII, 

section 847. 

The General Services Administration 

(GSA) announced this change by Notice 

in the Federal Register. See 71 FR 

65825 (Nov. 9, 2006). In that Notice, 

GSA stated that, effective January 6, 

2007, jurisdiction would be transferred 

from the BCAs for GSA and the 

Departments of Agriculture, Energy, 

Housing and Urban Development, 

Interior, Labor, Transportation, and 

Veterans Affairs to the CBCA. 

Through January 5, 2007, DHS 

contract appeals were handled by the 

Department of Transportation’s BCA. 

However, on January 6, 2007, BCA 

jurisdiction for DHS transferred to the 

CBCA. While the statutory change with 

regard to BCA jurisdiction was selfexecuting, this rule is required to ensure 

that the information contained in the 

HSAR regarding contract appeals is 

accurate, and corresponds to the 

requirements of section 847 of the 2006 

National Defense Authorization Act. 

This rule also provides technical 

amendments to correct organizational 

information reflected in the HSAR. 

General changes made to HSAR by 

this rulemaking are provided in the list 

below. 

III. Discussion of Interim Rule 

The interim rule revises HSAR 48 

CFR 3001.104, 3002.270, 3033.201, 

3033.211 and 3033.214 to implement 

Public Law 109–163, Title VIII, Section 

847 (jurisdictional change for hearing 

and deciding contract appeals for DHS). 

This rule also establishes additional 

technical amendments at HSAR 48 CFR 

3001.105–2 and 3002.101 to correct 

nomenclature for the Federal Emergency 

Management Agency in the HSAR. 

IV. Regulatory Requirements 

A. Executive Order 12866 Assessment 

DHS has determined that this interim 

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

804, nor is it a significant regulatory 

action under Executive Order 12866, 

Regulatory Planning and Review. It 

therefore does not require an assessment 

of potential costs and benefits under 


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Federal Register / Vol. 72, No. 7 / Thursday, January 11, 2007 / Rules and Regulations 1297 

section 6(a)(3) of that Order, nor has it 

been reviewed by the Office of 

Management and Budget. 

B. Small Entities 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601–612), the term ‘‘small 

entities’’ comprises small businesses, 

not-for-profit organizations that are 

independently owned and operated and 

are not dominant in their fields, and 

governmental jurisdictions with 

populations of less than 50,000. This 

interim rule is not expected to have a 

significant economic impact on a 

substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act. 

C. Good Cause To Issue an Interim Rule 

A determination has been made under 

the authority of the Secretary of 

Homeland Security that urgent and 

compelling reasons exist to promulgate 

this interim rule regarding jurisdictional 

changes to hearing and deciding 

contract appeals for DHS without prior 

opportunity for public comment. This 

action is necessary because the effective 

date for the transfer of jurisdiction from 

the DOTBCA to the CBCA for DHS 

contract appeals was January 6, 2007. 

While the statute is self-executing, DHS 

believes that it is important to amend its 

regulations promptly in order to ensure 

that the regulation reflects accurate 

information as to the contract appeals 

process. Moreover, the jurisdictional 

changes reflected in this rule are the 

results of Congressional action, rather 

than a new DHS policy. Accordingly, 

providing an opportunity to comment 

before the change is implemented is 

impracticable and not in the public 

interest. 

However, pursuant to Public Law 98–

577 and Federal Acquisition Regulation 

(FAR) 48 CFR 1.501, DHS will consider 

public comments received in response 

to this interim rule in the formation of 

the final rule. 

List of Subjects in 48 CFR Parts 3001, 

3002, and 3033 

Government procurement. 

Dated: January 4, 2007. 

Elaine C. Duke, 

Chief Procurement Officer. 

■ Accordingly, DHS amends 48 CFR 

parts 3001, 3002 and 3033 as follows: 

PART 3001—FEDERAL ACQUISITION 

REGULATION SYSTEM 

■ 1. The authority citation for 48 CFR 

parts 3001, 3002, and 3033 continues to 

read as follows: 

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

■ 2. Amend Section 3001.104 by 

revising paragraphs (b) and (c) to read 

as follows: 

3001.104 Applicability. 

* * * * * 

(b) The Transportation Security 

Administration (TSA) exception to this 

regulation is authorized by the Aviation 

and Transportation Security Act of 2001 

(section 101(a) of Public Law 107–71). 

(c) Contracts involving NonAppropriated Fund Instrumentalities 

(NAFIs) must contain suitable dispute 

provisions and may provide for 

appellate dispute jurisdiction in the 

Civilian Board of Contract Appeals 

(CBCA). However, the contract must not 

attempt to confer court jurisdiction that 

does not otherwise exist. 

* * * * * 

■ 3. Amend Section 3001.105–2 by 

revising paragraph (a) to read as follows: 

3001.105–2 Arrangement of regulations. 

(a) General. The HSAR, which 

encompasses both Department-wide and 

Component-unique guidance, conforms 

to the arrangement and numbering 

system prescribed by 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 apply: 

Bureau of Customs and Border 

Protection (CBP); 

Bureau of Immigration and Customs 

Enforcement (ICE); 

DHS Office of Procurement Operations 

(OPO); 

Federal Emergency Management Agency 

(FEMA); 

Federal Law Enforcement Training 

Center (FLETC); 

Transportation Security Administration 

(TSA); 

U.S. Coast Guard (USCG); and 

U.S. Secret Service (USSS). 

PART 3002—DEFINITIONS OF WORDS 

AND TERMS 

■ 4. Amend Section 3002.101 by 

revising the definition for ‘‘Component’’

to read as follows: 

3002.101 Definitions. 

* * * * * 

Component means the following 

entities for purposes of this chapter: 

(1) Bureau of Customs and Border 

Protection (CBP); 

(2) Bureau of Immigration and 

Customs Enforcement (ICE); 

(3) DHS Office of Procurement 

Operations (OPO); 

(4) Federal Emergency Management 

Agency (FEMA); 

(5) Federal Law Enforcement Training 

Center (FLETC); 

(6) Transportation Security 

Administration (TSA); (TSA is exempt 

from the HSAR and HSAM, pursuant to 

the ‘‘Aviation and Transportation 

Security Act of 2001’’); 

(7) U.S. Coast Guard (USCG); and 

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

* * * * * 

■ 5. Section 3002.270 is revised to read 

as follows: 

3002.270 Abbreviations. 

CBCA Civilian Board of Contract 

Appeals 

CFO Chief Financial Officer 

CIO Chief Information Officer 

COCO Chief of the Contracting Office 

COR Contracting Officer’s 

Representative 

COTR Contracting Officer’s Technical 

Representative 

CPO Chief Procurement Officer 

D&F Determination and Findings 

FOIA Freedom of Information Act 

HCA Head of Contracting Activity 

J&A Justification and Approval for 

Other than Full and Open 

Competition 

KO Contracting Officer 

MD Management Directive 

OCPO Office of the Chief Procurement 

Officer 

OIG Office of the Inspector General 

OSDBU Office of Small and 

Disadvantaged Business Utilization 

PCR SBA’s Procurement Center 

Representative 

RFP Request for Proposal 

SBA Small Business Administration 

SBS Small Business Specialist 

SPE Senior Procurement Executive 

PART 3033—PROTESTS, DISPUTES, 

AND APPEALS 

■ 6. Section 3033.201 is revised to read 

as follows: 

3033.201 Definitions. 

Agency Board of Contract Appeals 

means the Civilian Board of Contract 

Appeals (CBCA). 

■ 7. Section 3033.211 is revised to read 

as follows: 

3033.211 Contracting Officer’s decision. 

For DHS contracts, the Board of 

Contract Appeals (BCA) noted in (FAR) 

33.211 is the Civilian Board of Contract 

Appeals (CBCA) 1800 F Street, NW., 

Washington, DC 20405. 

■ 8. Section 3033.214(c) introductory 

text is revised to read as follows: 

3033.214 Alternate disputes resolution 

(ADR). 

(c) The Administrative Dispute 

Resolution Act (ADRA) of 1996, as 

amended, 5 U.S.C. 571, et seq., 


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1298 Federal Register / Vol. 72, No. 7 / Thursday, January 11, 2007 / Rules and Regulations 

authorizes and encourages agencies to 

use mediation, conciliation, arbitration, 

and other techniques for the prompt and 

informal resolution of disputes, and for 

other purposes. CBCA guidance on ADR 

may be obtained at http:// 

www.gsbca.gsa.gov/CBCA-17712-v1- 

CBCA_ADR_INFORMATION.pdf or 

from the CBCA upon request. ADR 

procedures may be used—

* * * * * 

[FR Doc. 07–61 Filed 1–8–07; 11:15 am] 

BILLING CODE 4410–10–P 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary 

49 CFR Part 40 

[Docket OST–2007–26828] 

RIN 2105–AD64 

Procedures for Transportation 

Workplace Drug and Alcohol Testing 

Programs: Procedures for NonEvidential Alcohol Screening Devices 

AGENCY: Office of the Secretary, DOT. 

ACTION: Interim final rule. 

SUMMARY: The National Highway 

Transportation Safety Administration 

(NHTSA) has recently approved a new 

breath tube alcohol screening device 

(ASD) which will qualify for use in DOT 

Agency regulated testing once it appears 

on NHTSA’s conforming products list 

(CPL). This interim final rule (IFR) will 

provide procedures for use of the new 

device and remove procedures for a 

previously approved breath tube ASD 

which is no longer being manufactured. 

DATES: This rule is effective January 11, 

2007. Comments to the interim final 

rule should be submitted by February 

12, 2007. Late-filed comments will be 

considered to the extent practicable. 

ADDRESSES: Written Comments: Submit 

written comments to the Docket 

Management System, U.S. Department 

of Transportation, Room PL–401, 400 

Seventh Street, SW., Washington, DC 

20590–0001. You may submit comments 

identified by the docket number (OST–

2007–26828) by any of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the online 

instructions for submitting comments. 

• Web site: http://dms.dot.gov. 

Follow the instructions for submitting 

comments on the DOT electronic docket 

site. 

• Fax: 1–202–493–2478. 

• Mail: Docket Management System; 

U.S. Department of Transportation, 400 

Seventh Street, SW., Nassif Building, 

Room PL–401, Washington, DC 20590–

0001. 

• Hand Delivery: To the Docket 

Management System; Room PL–401 on 

the plaza level of the Nassif Building, 

400 Seventh Street, SW., Washington, 

DC between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal 

Holidays. 

Instructions: All submissions must 

include the agency name and docket 

number or Regulatory Identification 

Number (RIN) for this notice. Note that 

all comments received will be posted 

without change to http://dms.dot.gov 

including any personal information 

provided. 

FOR FURTHER INFORMATION CONTACT: 

George Ellis or Bohdan Baczara, Office 

of Drug and Alcohol Policy and 

Compliance, Room 10403, 400 Seventh 

Street, SW., Washington, DC 20590; 

202–366–3784 (voice), 202–366–3897 

(fax), or bohdan.baczara@dot.gov (email). 

SUPPLEMENTARY INFORMATION: 

Purpose 

Department regulations require that in 

order for an employer to utilize a 

specific ASD to conduct required DOT 

alcohol tests, the device must (a) Have 

been approved by NHTSA as meeting 

required model specifications, (b) be 

published by NHTSA in the Federal 

Register on their most current ASD CPL, 

and (c) have Department-approved 

procedures in part 40 for its use. The 

procedures in this IFR will ensure that 

the NHTSA-approved breath tube ASD 

will be immediately available for use by 

employers upon publication of 

NHTSA’s ASD CPL in the Federal 

Register. 

Background 

When it originally published its 

alcohol testing rules on February 15, 

1994 (54 FR 7302 et seq.), the 

Department established breath testing 

using evidential breath testing devices 

(EBTs) as the required method. 

However, in response to comments 

requesting additional flexibility in 

testing methods, the Department said 

that NHTSA would develop model 

specifications for non-evidential alcohol 

screening devices, evaluate additional 

screening devices against those 

specifications, and periodically publish 

a conforming products list of screening 

devices that met the model 

specifications. The Department noted, 

too, that the Department would also 

have to undertake separate rulemaking 

proceedings to establish part 40 

procedures for use by DOT-regulated 

industries of any devices approved by 

NHTSA. 

On April 20, 1995 (60 FR 19675), the 

Department published procedures for 

use of both breath and saliva ASDs. At 

that time, the Department did not 

anticipate that additional breath and 

saliva screening devices would be 

developed that would necessitate new 

procedures for their use. As a result, the 

revised part 40 published December 19, 

2000 (65 FR 79462) stated, in part, that 

ASDs on the NHTSA CPL could be used 

for part 40 alcohol screening tests. 

Because NHTSA added an ASD to their 

CPL and the Department had no 

procedures for its use, we were forced 

to amend that rule. On August 9, 2001 

(65 FR 41944), part 40 was amended to 

read, ‘‘You may use an ASD that is on 

the NHTSA CPL for DOT alcohol tests 

only if there are instructions for its use 

in this part.’’

On October 1, 2002 (67 FR 61521), the 

Department published procedures for 

the use of a breath tube ASD that had 

been approved by NHTSA and added to 

their May 4, 2001 CPL (66 FR 22639). 

By 2005, that device was no longer 

being manufactured, and was removed 

from the CPL effective September 19, 

2005 (70 FR 54972). 

NHTSA has recently approved a new 

breath tube ASD and anticipates adding 

it to their CPL in late January 2007. 

However, the breath tube procedures 

currently in our regulation are not 

consistent with instructions for use of 

the newly approved ASD. In this IFR, 

we have amended part 40 by 

eliminating procedures specific for the 

breath tube ASD which is no longer 

being manufactured and adding 

procedures for use of the newly 

approved device. 

Instructions for use of the new ASD 

are generally similar to those for the 

previously approved breath tube device. 

The principal difference is in how the 

alcohol result is read by the technician. 

Instead of comparing the color of the 

crystals in the ASD with the colored 

crystals in a manufacturer-produced 

control tube, the new ASD uses an 

electronic analyzer to provide the 

technician and the employee with an 

automated visual result of negative (a 

flashing green light) or positive (a 

flashing red light) at 0.02. The 

Department will retain the requirement 

to read the result within 15 minutes of 

the test to ensure a confirmation test, 

when necessary, is conducted in a 

timely manner. 

The addition of an electronic analyzer 

with this type of breath tube ASD will 

also add an entry to the list of fatal flaws 

which would require the alcohol 

screening test to be cancelled. 


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