issue-1996-07-26•Federal Register final rules — 1996-07-26
Federal Register final rules — 1996-07-26
issue-1996-07-26Federal Register final rules — 1996-07-26Regulation
Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.
FR Doc. 96-19138 Interstate Pay-Per-Call and Other Information Services
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39084-39088]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19138]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 64
[CC Docket No. 93-22; CC Docket No. 96-146; FCC 96-289]
Interstate Pay-Per-Call and Other Information Services
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: The Commission adopted this Order to amend its rules governing
the provision of interstate pay-per-call and other information services
to conform with the requirements of Section 701 of the
Telecommunications Act of 1996 which amended Section 228 of the
Communications Act of 1934, as amended. The rules adopted in the Order
incorporate the amendments to Section 228 virtually verbatim and are
intended to protect consumers from abuses involving use of toll-free
numbers and tariffed service systems to levy charges for interstate
information services.
EFFECTIVE DATE: December 23, 1996.
FOR FURTHER INFORMATION CONTACT: Mary Romano, Enforcement Division,
Common Carrier Bureau, (202) 418-0960.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's Order
in CC Docket Nos. 93-22 and 96-146 [FCC 96-289], adopted June 28, 1996
and released July 11, 1996. The full text of the Order is available for
inspection and copying during normal business hours in the FCC
Reference Center, Room 239, 1919 M Street, N.W., Washington, D.C. The
full text of this Order may also be purchased from the Commission's
duplicating contractor, International Transcription Services, 2100 M
Street, N.W., Suite 140, Washington, D.C. 20037, (202) 857-3800. For a
document
[[Page 39085]]
relating to this Order, see a proposed rule involving interstate
information services published elsewhere in this issue.
Paperwork Reduction
Public reporting burden for collections of information is estimated
as follows:
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Est.
avg.
Sections hours Annual
per burden
response
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Section 64.1504..................................... 3750 10,500
Section 64.1510..................................... 1350 540,000
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Total Annual Burden: 550,500.
Frequency of Response: On Occasion.
These estimates include the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collections of information.
Send comments regarding these burden estimates or any other aspects of
the collections of information, including suggestions for reducing the
burden, to the Federal Communications Commission, Records Management
Branch, Room 234, Paperwork Reduction Project, Washington, D.C. 20554
and to the Office of Management and Budget, Paperwork Reduction
Project, Washington, D.C. 20503.
Summary of Order:
1. On June 28, 1996, the Commission adopted an Order in CC Docket
No. 93-22 and 96-146 (released July 11, 1996; FCC 96-289) that amends
Part 64 of the Commission's rules to conform with the
Telecommunications Act of 1996, Public Law 104-104, (1996 Act). Among
other things, the 1996 Act amended Section 228 of the Communications
Act of 1934, as amended, (Communications Act), 47 USC Sec. 228, to
enact new restrictions on the manner in which toll-free numbers may be
used to provide information services and to repeal of the statutory
exemption to pay-per-call status accorded to any tariffed service under
the Telephone Disclosure and Dispute Resolution Act of 1992, Public Law
102-556 (TDDRA). As set forth in the final rules and explained below,
the Commission amended its pay-per-call regulations to comply with the
statutory mandate that our rules reflect the new requirements of
Section 228 of the Communications Act.
I. Requirements of Amended Section 228
A. ``Billing for 800 Calls''--47 USC Sec. 228(c)(7)
2. The TDDRA placed limits on charging callers who place calls to
toll-free numbers to reach information services. The 1996 Act amends
Section 228(c) of the Communications Act to expand those restrictions.
The 1996 Act adds a new prohibition on ``the calling party being
assessed, by virtue of being asked to connect or otherwise transfer to
a pay-per-call service, a charge for the call [to an 800 or any other
toll-free number].'' 47 USC Sec. 228(c)(7)(E). The Commission added to
its rules Section 64.1504(e) to codify, verbatim, this statutory
provision.
3. The 1996 Act also modifies Section 228(c)(7)(C) to prohibit
charging callers for calls to toll-free numbers for conveyance of
information unless ``the calling party has a written agreement,
including an agreement transmitted through an electronic medium,'' or
``the calling party is charged for the information * * * by means of a
credit, prepaid, debit, charge, or calling card.'' 47 USC
Secs. 228(c)(7)(C)(i)-(ii), (c)(9). These requirements and the
Commission's new implementing regulations are explained below.
1. ``Subscription Agreements for Billing for Information Provided Via
Toll-Free Calls''--47 USC Sec. 228(c)(8)
4. ``In General''--47 USC Sec. 228(c)(8)(A). The 1996 Act
enumerates specific requirements that must be followed when information
services are charged to callers to an 800 or other toll-free number
pursuant to a written presubscription agreement.
As provided in 47 USC Sec. 228(c)(8)(A)(i)-(vi), the agreement must
include:
(i) the rate at which charges are assessed for the information;
(ii) the information provider's name;
(iii) the information provider's business address;
(iv) the information provider's regular business telephone number;
(v) the information provider's agreement to notify the subscriber
at least one billing cycle in advance of all future changes in the
rates charged for the information; and
(vi) the subscriber's choice of payment method, which may be by
direct remit, debit, prepaid account, phone bill, or credit or calling
card.
The Commission added to its rules Sections 64.1504(c)(1)(i)-(vi) to
codify, verbatim, these statutory requirements governing
presubscription agreements to obtain information services available
through a toll-free number.
5. ``Billing Arrangements''--47 U.S.C. 228(c)(8)(B). The 1996 Act
prescribes new requirements for common carriers who bill telephone
subscribers for information services that are available through a toll-
free number and provided pursuant to a written presubscription
agreement. Section 228(c)(8)(B)(i) provides that
If a subscriber elects * * to pay by means of a phone bill, * *
* the [written presubscription] agreement shall clearly explain that
the subscriber will be assessed for calls made to the information
service from the subscriber's phone line.
Further, under Section 228(c)(8)(B) (ii)-(iii), any telephone bill
containing such charges must display the toll-free number that was
dialed to access the information service and contain a prominent
disclaimer stating that local and long distance telephone service may
not be disconnected for failure to pay disputed information-service
charges. The Commission added to its rules Secs. 64.1504(c)(vi) and
64.1510(c) and amended Sec. 64.1510(b) to codify, virtually verbatim,
these statutory requirements governing billing of presubscribed
information services through a telephone bill.
6. ``Use of PINs to Prevent Unauthorized Access''--47 U.S.C.
228(c)(8)(C). The 1996 Act provides that a presubscription agreement to
obtain information services through a toll-free number must include ``a
unique personal identification number or other subscriber-specific
identifier,'' a requirement that ``a subscriber use this number or
identifier to obtain access to the information provided,''
``instructions on its use,'' and assurance ``that services accessed by
use of the subscriber's personal identification number or subscriber-
specific identifier'' will be billed in the manner specified by the
subscriber (e.g., ``direct remit, debit, prepaid account, phone bill,
or credit or calling card''). 47 U.S.C. 228(c)(8)(C), (c)(8)(A)(vi).
The Commission added to its rules Sec. 64.1504(c)(vii) to codify,
virtually verbatim, these statutory requirements governing PINs.
7. ``Exceptions''--47 U.S.C. 228(c)(8)(D). The 1996 Act establishes
exceptions to the requirement for written presubscription ``for calls
utilizing telecommunications devices for the deaf, for directory
services provided by a common carrier or its affiliate or by a local
exchange carrier or its affiliate, or for any purchase of goods or of
services that are not information services.'' 47 U.S.C. 228(c)(8)(D).
The
[[Page 39086]]
Commission added to its rules Sec. 64.1504(f)(1) to codify, verbatim,
these statutory exceptions to the requirement that presubscription be
executed in writing for information services available through a toll-
free number.
8. ``Termination of Service''--47 U.S.C. 228(c)(8)(E). The 1996 Act
directs common carriers to investigate promptly complaints that a
presubscribed information service accessed through an 800 or other
toll-free number has not been provided in accordance with the statutory
requirements. Carriers also explicitly are accorded authority to
terminate service to an IP who fails to provide evidence of a written
presubscription agreement for disputed charges. The Commission added to
its rules Sec. 64.1503(b) to codify, virtually verbatim, statutory
provisions involving common carriers' investigations of complaints and
termination of service.
9. ``Treatment of Remedies''--47 U.S.C. 228(c)(8)(F). Section
228(c)(8)(F) provides that the remedies specified in Section 228(c)
``are in addition to any other remedies that are available under [the
Commission's forfeiture authority in] Title V of [the Communications]
Act. This provision simply specifies that both the Commission's Title V
statutory penal provisions and the remedies contained in Section
228(c), (e.g., termination of service to an information provider) may
be invoked against parties who violate Commission rules or orders
concerning interstate information services. The Commission determined
that the provision is effectively implemented by the statute alone and
need not be added to our pay-per-call regulations, which govern the
conduct of common carriers who transmit or bill and collect for pay-
per-call or other information services.
2. ``Charges by Credit, Prepaid, Debit, Charge, or Calling Card in
Absence of Agreement''--47 U.S.C. 228(c)(9)
10. The 1996 Act establishes payment by prepaid account, debit,
credit, charge, or calling card as alternatives to written
presubscription for information services charged to callers to 800 or
other toll-free numbers provided that all such calls begin with an
introductory disclosure message that--
(A) clearly states that there is a charge for the call;
(B) clearly states the service's total cost per minute and any
other fees for the service or for any service to which the caller may
be transferred;
(C) explains that the charge must be billed on either a credit,
prepaid, debit, charge, or calling card;
(D) asks the caller for the card number; clearly states that
charges for the call begin at the end of the introductory message; and
(E) clearly states that the caller can hang up at or before the end
of the introductory message without incurring any charge whatsoever.
47 U.S.C. 228(c)(9) (A)-(F). The Commission added to its rules
Sec. 64.1504(c)(2) to codify, verbatim, these statutory provisions
governing use of a prepaid account, debit, credit, charge, or calling
card to pay for information services that are accessed through an 800
or other toll-free number.
11. ``Bypass of Introductory Disclosure Message''--47 U.S.C.
228(c)(10). Under the 1996 Act, IPs may install a bypass mechanism so
that repeat callers to an information service accessed through an 800
or other toll free number can ``avoid listening to the introductory
message, provided that the information providers shall disable such a
bypass mechanism after the institution of any price increase and for a
period of time determined to be sufficient by the Federal Trade
Commission to give callers adequate and sufficient notice of a price
increase.'' The Commission added to its rules Sec. 64.1504(f)(2) to
codify, verbatim, these statutory provisions governing mechanisms that
permit repeat callers to bypass the introductory message required for
all information services that are accessed through an 800 or other
toll-free number and that bill through a prepaid account, debit,
credit, charge, or calling card rather than by means of a
presubscription agreement.
B. Definitions
1. Pay-Per-Call Services--47 U.S.C. Sec. 228(i)
12. The 1996 Act redefines the term ``pay-per-call services'' by
eliminating the exemption accorded to any service provided pursuant to
tariff under the TDDRA. The Commission amended Section 64.1501(a) of
its rules to remove the tariffed services exception.
2. Calling Card--47 U.S.C. Sec. 228(c)(11)
13. After recognizing payment by ``calling card'' as an acceptable
means of obtaining information services available through a toll-free
number, the 1996 Act defines a calling card as ``an identifying number
or code unique to the individual, that is issued to the individual by a
common carrier and enables the individual to be charged by means of a
phone bill for charges incurred independent of where the call
originates.'' The Commission added to its rules Section 64.1501(c) to
codify, verbatim, the statutory definition of ``calling card.''
3. Presubscription or Comparable Arrangement--47 CFR Sec. 1501(b).
14. Neither the TDDRA nor the 1996 Act defines the term
``presubscription or comparable arrangement,'' which Section 228(i)(2)
establishes as an exemption to pay-per-call status. In implementing the
TDDRA, however, the Commission and the FTC adopted identical
definitions intended to guard against uncontrolled access to
information services and to ensure that consumers receive information
necessary to make informed choices about whether to subscribe to such
services. The 1996 Act does not directly mandate modification of the
presubscription definition contained in Section 64.1501(b) of our
rules. The Commission determined, however, that certain aspects of the
definition are inconsistent with statutory requirements governing
presubscription to information services available through 800 or other
toll-free numbers. Therefore, the Commission added to its rules Section
64.1501(b)(6) to specify that presubscription arrangements to obtain
information services provided by means of an 800 or other toll-free
number must conform to the requirements of Section 64.1504(c). This
amendment incorporates into the Commission's general presubscription
definition statutory requirements that govern 800-number
presubscription.
II. Procedural Issues
A. Administrative Procedure Act Requirements
15. Because the rule changes set forth in Appendix A and adopted
herein simply conform the Commission's rules to the statute, the
Commission found for good cause that compliance with the notice and
comment provisions of the Administrative Procedure Act is unnecessary.
See 5 U.S.C. Sec. 553(b)(B). Moreover, to the extent that the
provisions of the 1996 Act mirror proposals set forth in the
Commission's Further Notice of Proposed Rule Making, Policies and Rules
Implementing the Telephone Disclosure and Dispute Resolution Act, CC
Docket No. 93-22, 59 FR 46806 (September 12, 1994), notice and comment
requirements have been satisfied.
Ordering Clauses
16. Accordingly, it is ordered, pursuant to Sections 1, 4(i), 4(j),
and 228 of the Communications Act, 47 U.S.C. Secs. 152, 154(i), 154(j),
and 228, that 47 CFR Part 64 IS AMENDED as set forth below, effective
December 23, 1996.
17. It Is further ordered that CC Docket No. 93-22 is hereby
terminated.
[[Page 39087]]
List of Subjects in 47 CFR Part 64
Communications common carriers, Computer technology, Federal
Communications Commission, Telephone.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Rules Changes
Part 64 of Title 47 of the Code of Federal Regulations is amended
as follows:
PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS
1. The authority citation for Part 64 continues to read as follows:
Authority: Sec. 4, 48 Stat. 1066, as amended; 47 U.S.C. 154,
unless otherwise noted. Interpret or apply secs. 201, 218, 226, 228,
48 Stat 1070, as amended, 1077; 47 U.S.C. 201, 218, 226, 228 unless
otherwise noted.
2. The heading of Subpart O of Part 64 is revised to read as
follows:
Subpart O--Interstate Pay-Per-Call and Other Information Services
3. Section 64.1501 is revised to read as follows:
Sec. 64.1501 Definitions.
For purposes of this subpart, the following definitions shall
apply:
(a) Pay-per-call service means any service:
(1) In which any person provides or purports to provide:
(i) Audio information or audio entertainment produced or packaged
by such person;
(ii) Access to simultaneous voice conversation services; or
(iii) Any service, including the provision of a product, the
charges for which are assessed on the basis of the completion of the
call;
(2) For which the caller pays a per-call or per-time-interval
charge that is greater than, or in addition to, the charge for
transmission of the call; and
(3) Which is accessed through use of a 900 number;
(4) Provided, however, such term does not include directory
services provided by a common carrier or its affiliate or by a local
exchange carrier or its affiliate, or any service for which users are
assessed charges only after entering into a presubscription or
comparable arrangement with the provider of such service.
(b) Presubscription or comparable arrangement means a contractual
agreement in which:
(1) The service provider clearly and conspicuously discloses to the
consumer all material terms and conditions associated with the use of
the service, including the service provider's name and address, a
business telephone number which the consumer may use to obtain
additional information or to register a complaint, and the rates for
the service;
(2) The service provider agrees to notify the consumer of any
future rate changes;
(3) The consumer agrees to use the service on the terms and
conditions disclosed by the service provider; and
(4) The service provider requires the use of an identification
number or other means to prevent unauthorized access to the service by
nonsubscribers;
(5) Provided, however, that disclosure of a credit, prepaid
account, debit, charge, or calling card number, along with
authorization to bill that number, made during the course of a call to
an information service shall constitute a presubscription or comparable
arrangement if an introductory message containing the information
specified in Sec. 64.1504(c)(2) is provided prior to, and independent
of, assessment of any charges. No other action taken by a consumer
during the course of a call to an information service, for which
charges are assessed, can create a presubscription or comparable
arrangement.
(6) Provided, that a presubscription arrangement to obtain
information services provided by means of a toll-free number shall
conform to the requirements of Sec. 64.1504(c).
(c) Calling card means an identifying number or code unique to the
individual, that is issued to the individual by a common carrier and
enables the individual to be charged by means of a phone bill for
charges incurred independent of where the call originates.
4. Section 64.1503 is revised to read as follows:
Sec. 64.1503 Termination of pay-per-call and other information
programs.
(a) Any common carrier assigning a telephone number to a provider
of interstate pay-per-call service shall specify by contract or tariff
that pay-per-call programs not in compliance with Sec. 64.1502 shall be
terminated following written notice to the information provider. The
information provider shall be afforded a period of no less than seven
and no more than 14 days during which a program may be brought into
compliance. Programs not in compliance at the expiration of such period
shall be terminated immediately.
(b) Any common carrier providing transmission or billing and
collection services to a provider of interstate information service
through any 800 telephone number, or other telephone number advertised
or widely understood to be toll-free, shall promptly investigate any
complaint that such service is not provided in accordance with
Sec. 64.1504 or Sec. 64.1510(c), and, if the carrier reasonably
determines that the complaint is valid, may terminate the provision of
service to an information provider unless the provider supplies
evidence of a written agreement that meets the requirements of this
Sec. 64.1504(c)(1).
5. Section 64.1504 is revised to read as follows:
Sec. 64.1504 Restrictions on the use of toll-free numbers.
A common carrier shall prohibit by tariff or contract the use of
any 800 telephone number, or other telephone number advertised or
widely understood to be toll-free, in a manner that would result in:
(a) The calling party or the subscriber to the originating line
being assessed, by virtue of completing the call, a charge for a call;
(b) The calling party being connected to a pay-per-call service;
(c) The calling party being charged for information conveyed during
the call unless:
(1) The calling party has a written agreement (including an
agreement transmitted through electronic medium) that specifies the
material terms and conditions under which the information is offered
and includes:
(i) The rate at which charges are assessed for the information;
(ii) The information provider's name;
(iii) The information provider's business address;
(iv) The information provider's regular business telephone number;
(v) The information provider's agreement to notify the subscriber
at least one billing cycle in advance of all future changes in the
rates charged for the information;
(vi) The subscriber's choice of payment method, which may be by
direct remit, debit, prepaid account, phone bill, or credit or calling
card and, if a subscriber elects to pay by means of phone bill, a clear
explanation that the subscriber will be assessed for calls made to the
information service from the subscriber's phone line;
(vii) A unique personal identification number or other subscriber-
specific identifier that must be used to obtain access to the
information service and instructions on its use, and, in addition,
assures that any charges for services
[[Page 39088]]
accessed by use of the subscriber's personal identification number or
subscriber-specific identifier be assessed to subscriber's source of
payment elected pursuant to paragraph (c)(1)(vi) of this section; or
(2) The calling party is charged for the information by means of a
credit, prepaid, debit, charge, or calling card and the information
service provider includes in response to each call an introductory
message that:
(i) Clearly states that there is a charge for the call;
(ii) Clearly states the service's total cost per minute and any
other fees for the service or for any service to which the caller may
be transferred;
(iii) Explains that the charges must be billed on either a credit,
prepaid, debit, charge, or calling card;
(iv) Asks the caller for the card number;
(v) Clearly states that charges for the call begin at the end of
the introductory message; and
(vi) Clearly states that the caller can hang at or before the end
of the introductory message without incurring any charge whatsoever.
(d) The calling party being called back collect for the provision
of audio or data information services, simultaneous voice conversation
services, or products; and
(e) The calling party being assessed by virtue of the caller being
asked to connect or otherwise transfer to a pay-per-call service, a
charge for the call.
(f) Provided, however, that:
(1) Notwithstanding paragraph (c)(1) of this section, a written
agreement that meets the requirements of that paragraph is not required
for:
(i) Calls utilizing telecommunications devices for the deaf;
(ii) Directory services provided by a common carrier or its
affiliate or by a local exchange carrier or its affiliate; or
(iii) Any purchase of goods or of services that are not information
services.
(2) The requirements of paragraph (c)(2) of this section shall not
apply to calls from repeat callers using a bypass mechanism to avoid
listening to the introductory message: Provided, That information
providers shall disable such a bypass mechanism after the institution
of any price increase for a period of time determined to be sufficient
by the Federal Trade Commission to give callers adequate and sufficient
notice of a price increase.
6. In Section 64.1510, paragraph (b) is revised and new paragraph
(c) is added to read as follows:
Sec. 64.1510 Billing and collection of pay-per-call and similar
service charges.
* * * * *
(b) Any common carrier offering billing and collection services to
an entity providing interstate information services on a collect basis
shall, to the extent possible, display the billing information in the
manner described in paragraphs (a)(2)(i), (A), (B), (D) and (a)(2)(ii)
of this section.
(c) If a subscriber elects, pursuant to Sec. 64.1504(c)(1)(vi), to
pay by means of a phone bill for any information service provided by
through any 800 telephone number, or other telephone number advertised
or widely understood to be toll-free, the phone bill shall:
(1) Include, in prominent type, the following disclaimer: ``Common
carriers may not disconnect local or long distance telephone service
for failure to pay disputed charges for information services;'' and
(2) Clearly list the 800 or other toll-free number dialed.
[FR Doc. 96-19138 Filed 7-25-96; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-19073 Management of Federal Agency Disbursements
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39254-39259]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19073]
[[Page 39253]]
_______________________________________________________________________
Part VI
Department of the Treasury
_______________________________________________________________________
Fiscal Service
_______________________________________________________________________
31 CFR Part 208
Management of Federal Agency Disbursements; Interim Rule
Federal Register / Vol. 61, No. 145 / Friday, July 26, 1996 / Rules
and Regulations
[[Page 39254]]
DEPARTMENT OF THE TREASURY
Fiscal Service
31 CFR Part 208
RIN 1510-AA56
Management of Federal Agency Disbursements
AGENCY: Financial Management Service, Fiscal Service, Treasury.
ACTION: Interim rule with request for comments.
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SUMMARY: Chapter 10 of the Omnibus Consolidated Rescission and
Appropriations Act of 1996, Pub. L. 104-134, is the Debt Collection
Improvement Act of 1996 (the ``Act''). Section 31001(x) of the Act
amends 31 U.S.C. 3332 to require Federal agencies to convert from
checks to electronic funds transfer in two phases. Phase one affects
newly-eligible recipients of Federal payments. During phase one, which
begins on July 26, 1996, all recipients of Federal payments (other than
payments under the Internal Revenue Code of 1986) who become eligible
to receive those payments on or after July 26, 1996, must receive them
electronically unless the recipient certifies that the recipient does
not have an account at a financial institution or authorized payment
agent.
Phase two covers the conversion from checks to electronic funds
transfer for all Federal payments, except payments under the Internal
Revenue Code. The Act provides that, subject to the Secretary of the
Treasury's authority to grant waivers, all Federal payments made after
January 1, 1999, must be made by electronic funds transfer.
The Financial Management Service (the ``Service'') is adopting an
interim rule to implement Section 3332(e), as amended. The Service
invites public comments on the interim rule and on issues related to
implementation of the requirements that take effect on January 1, 1999.
This interim rule is designated as 31 CFR Part 208. The Service
anticipates that Part 208 will contain all provisions relating to the
management of Federal agency disbursements. Currently, 31 CFR Part 206
contains several provisions governing the timely collection and
disbursement of funds by Federal agencies. When regulations are issued,
sometime in 1997, to implement phase two, the Service will move those
portions of Part 206 that deal with Federal agency disbursements into
the new Part 208. In addition, all provisions relating to collections
by Federal agencies will be revised and consolidated into Part 206.
DATES: This rule is effective upon publication. Comments will be
received until November 25, 1996.
ADDRESSES: All comments should be addressed to Cynthia L. Johnson, Cash
Management Policy and Planning Division, Financial Management Service,
U.S. Department of the Treasury, Room 420, 401 14th Street S.W.,
Washington, D.C. 20227.
A copy of the interim rule is being made available for downloading
from the Financial Management Service home page at the following
address: http://www.ustreas.gov/treasury/bureaus/finman/.
FOR FURTHER INFORMATION CONTACT: Aurora Kassalow, Financial Program
Specialist, at (202) 874-5742; Cynthia L. Johnson, Director, Cash
Management Policy and Planning Division, at (202) 874-6657; Anne
Wallace, Attorney-Advisor, at (202) 874-6681.
SUPPLEMENTARY INFORMATION:
(1) Background
Section 31001 (x) of the Act amends 31 U.S.C. 3332 to require
Federal agencies to convert from paper-based payment methods to
electronic funds transfer in two phases under regulations prescribed by
the Secretary of the Treasury (the ``Secretary'').
Enactment of the electronic funds transfer legislation is an
important step in achieving Treasury's goal of an All-Electronic
Treasury. Treasury began using electronic funds transfer more than 20
years ago and, over the years, has expanded its use of electronic
payment methods for several reasons. First, the administrative cost of
making payments by electronic funds transfer is far less than making
payments by checks. Second, an electronic funds transfer is much safer
than a check; an electronic payment is rarely lost, stolen or damaged
and cannot be forged. However, on those few occasions when an
electronic funds transfer is mis-routed, it can be traced and quickly
rerouted to the recipient, usually within 24 hours. Third, the use of
electronic funds transfer will enable the Federal Government to provide
better service to recipients who claim their checks have been lost,
stolen, damaged, or delayed during delivery by improving response time
in tracing payments.
Current Federal law requires some recipients of Federal payments to
receive those payments electronically. Specifically, 31 U.S.C. 3332 (a)
through (d) require that Federal wage, salary, and retirement payments
to individuals who began to receive such payments after January 1,
1995, be paid by electronic funds transfer. In addition, 31 U.S.C. 3335
requires executive agencies to provide for the timely disbursement of
funds in accordance with regulations prescribed by the Secretary.
As amended by the Act, section 3332 is broader than existing law in
several respects. First, the definition of Federal payments in the new
Sec. 3332 (j)(3) covers all payments other than payments under the
Internal Revenue Code. Second, the definition of Federal agency in the
new section 3332 (j)(2) includes all departments, agencies, and
instrumentalities of the United States Government, and corporations
owned or controlled by the Government of the United States.
As amended, section 3332 contains several provisions to facilitate
the transition from cash and checks to electronic funds transfer. In
phase one, the head of each agency is directed to waive the electronic
funds transfer requirement if the recipient certifies in writing that
the recipient does not have an account with a financial institution or
authorized payment agent. In phase two, which begins on January 1,
1999, the Secretary is authorized to waive the electronic funds
transfer requirement for individuals or classes of individuals for whom
compliance imposes a hardship; for certain categories of checks; and in
other circumstances deemed necessary.
The Service intends to move quickly to implement the amendments to
31 U.S.C. 3332. In addition to adopting this interim rule, the Service
plans to launch an extensive educational campaign to inform agencies,
individuals, businesses, and the financial services industry about the
provisions of the Act. The Service also will promote electronic funds
transfer through increased marketing of Direct Deposit and other
electronic payment options. Direct Deposit involves the transfer of
funds from an agency to a recipient's account at a financial
institution by means of the Automated Clearing House system. Direct
Deposit is a safe, convenient, and economical method of making
payments. A major challenge is reaching the millions of individuals,
and some small businesses, that do not have an account at a financial
institution. The Service looks forward to working with consumers and
small businesses, as well as Federal agencies and the financial
services industry, to meet this challenge.
The Service recently began working with the financial services
industry on a marketing initiative called Direct Deposit Too. Direct
Deposit Too involves the establishment of a simple, low-cost account at
a financial
[[Page 39255]]
institution, such as an account that is accessible only through a
plastic card used at automated teller machines and point-of-sale
terminals.
In addition, the Service will work with agencies to implement other
provisions of the Act. Specifically, section 31001 (y) of the Act
amends 31 U.S.C. 3325 by adding a new subsection (d) which requires the
head of each executive agency to include the Tax Identification Number
(TIN) of each person receiving a payment in the certified voucher
submitted to the disbursing official. This provision of the Act became
effective April 26, 1996, the date the Act was signed into law.
Treasury Financial Management Bulletin 95-10, which was issued on
August 18, 1995, currently directs Federal agencies to provide the TIN
when requesting the Service to make disbursement to vendors and Federal
employees. The Service will amend Bulletin 95-10 in the near future in
accordance with the provisions of section 3325 (d).
The Service is planning to meet with agencies to explain the
requirements of the Act and the interim rule and to identify issues
that need to be resolved. The Service also will form a task force of
Federal agencies to obtain information that will be used in formulating
a final rule and provide guidance to agencies on how to reach those
individuals and small businesses who face barriers in converting to
electronic funds transfer.
(2) Discussion
A. Section by Section Analysis of Interim Rule Implementing the July
26, 1996, Requirements
Section 208.1 Scope and Applicability
This section provides that Part 208 applies to all payments made by
agencies and requires such payments to be made by electronic funds
transfer, unless a waiver is granted. This section also provides that
Part 208 does not apply to payments under the Internal Revenue Code of
1986.
Section 208.2 Definitions
31 U.S.C. 3332(j)(2), as added by section 31001(x) of the Act,
defines Federal agency as ``(A) an agency (as defined in section 101 of
this Title); and (B) a Government corporation (as defined in section
103 of Title 5).'' Section 101 of Title 31 provides that ``agency''
means a department, agency, or instrumentality of the United States
Government. Section 103 of Title 5 defines Government corporation as a
corporation owned or controlled by the Government of the United States.
The definition of agency in Sec. 208.2(a) restates the statutory
definition without change.
Section 3332(j)(2), as added by the Act, does not distinguish
between agencies whose disbursements are made by the Department of the
Treasury and those agencies with delegated or statutory disbursing
authority, known as Non-Treasury Disbursing Offices (NTDOs). The
Service believes that both types of agencies are subject to section
3332(e), as amended, and to Part 208. Further, in the opinion of the
Service, the source of an entity's funds is not relevant in determining
coverage under the Act: entities whose funds are derived from
assessments or fees are covered by Part 208 to the same extent as
entities using appropriated funds.
Section 3332(j)(3) provides that ``Federal payments'' includes
``benefit payments,'' but does not define the latter term. The Service
has added a definition of benefit payment in Sec. 208.2(b). This
definition is substantially similar to the definition of benefit
payment in 31 CFR 210.2.
The definition of ``electronic funds transfer'' in Sec. 208.2(c) is
based on the definition of this term in Sec. 3332(j)(1), as added by
the Act. The Act's definition of electronic funds transfer is similar
to the definition of ``electronic fund transfer'' in the Electronic
Fund Transfer Act (the ``EFTA;'' 15 U.S.C. 1693). However, the Service
has added the phrase ``includes, but is not limited to'' in the
definition of electronic funds transfer in the interim rule to signal
its intention to interpret ``electronic funds transfer'' broadly so as
to accommodate the use by the Federal Government of a wide range of
payment methods--existing and emerging--that offer convenience, safety,
and efficiency over paper-based methods. For example, under this
definition a credit card transaction is an electronic payment.
The term ``Federal payment'' is defined in Sec. 208.2(d) of the
interim rule. The Service believes that all payments made by an entity
covered by section 3332(e), as amended, are subject to the requirement
to use electronic funds transfer. This requirement applies whether the
payment is recurring or non-recurring.
The specific payments enumerated in the definition of Federal
payment in section 3332(j)(3) are merely illustrative of the payments
covered by section 3332(e), as amended. The definition of Federal
payment in Sec. 208.2(d) restates the statutory definition and, in
order to clarify the broad scope of this term, provides examples of
payments typically made by agencies. The category of Federal salary,
wage, and retirement payments includes, but is not limited to, thrift
savings distributions, military wage and salary payments, Central
Intelligence Agency annuities, military annuities, and Coast Guard
retirement payments. The category of vendor payments includes any
payment for goods or services. The category of expense reimbursement
includes, but is not limited to, travel and expense disbursements and
cash advances. Benefit payments, as defined in Sec. 208.2(b), includes,
but is not limited to, payments for Social Security, Supplemental
Security Income, Black Lung, Railroad Retirement Board Retirement and
Annuity, Department of Veterans Affairs Compensation and Pension, and
Worker's Compensation. The category of miscellaneous payments includes,
but is not limited to, interagency payments, grants, loans, fees,
principal, interest, and discounts related to U.S. transferable and
non-transferable securities, refunds, and payments related to Federal
insurance or guarantee programs for loans. The term ``Federal payment''
does not include payments under the Internal Revenue Code of 1986.
The term ``financial institution'' is not defined in section
31001(x) of the Act. The Service has added a definition of financial
institution in Sec. 208.2(e). The definition in the interim rule, which
is identical to the definition of financial institution found in 31 CFR
Part 210, is intended to cover all depository institutions regardless
of the form of their organization or the nature of their charter.
The Service also has added a definition of the term ``payment'' in
Sec. 208.2(f) which is based on the definition of the same term found
in 31 CFR Part 210.
Section 208.3 Agency Responsibilities
Section 208.3(a) implements section 3332(e), as amended, which
supersedes 31 U.S.C. 3332 (a) through (d) (Federal wage, salary, and
retirement payments) and 38 U.S.C. 5120 (a) and (d) (Veterans
benefits); and thus requires all Federal payments to a recipient who
becomes eligible for that type of payment starting on July 26, 1996, to
be made by electronic funds transfer.
The Service is sensitive to the administrative burden that
compliance with the Act may impose on agencies. Therefore, in several
instances which are discussed below, the Service has interpreted the
Act's requirements in a manner designed to facilitate compliance.
Section 3332(e), as amended, provides that all Federal payments to
a recipient who becomes eligible for ``that type of
[[Page 39256]]
payment'' on or after July 26 must be made by electronic funds
transfer. Section 208.3(a) of the interim rule provides that payments
made to a recipient who becomes eligible for ``the payment'' on or
after July 26 must be made electronically. The Service made this change
to make clear that the payments that must be made electronically are
only those for which the recipient becomes eligible on or after the
trigger date of July 26, and not payments of the same type made by the
paying agency for which the recipient became eligible prior to July 26.
For example, if a recipient currently receives an interest payment, by
check, on a Government security purchased before July 26 and, after
July 26, the recipient purchases another Government security from the
same agency, the interim rule requires the agency to pay interest on
the security purchased after July 26 by electronic funds transfer. The
agency would not be required to convert from check to electronic funds
transfer the interest payment on the security purchased prior to July
26.
Since the phrase ``becomes eligible for'' is not defined in section
3332(j), and this phrase may have different meanings in the context of
different types of payments, the Service has divided Federal payments
into six categories and defined eligibility in the context of each
class of payment. The interim rule is designed to minimize the burden
of compliance by defining the triggering date for determining
eligibility for receiving an electronic payment, as the time at which
the agency and the recipient have direct contact, either to obtain the
routing transit number, account number, and any other information the
agency needs to make payments electronically or, alternatively, to give
the recipient the opportunity to certify that the recipient does not
have an account and thus qualifies for a waiver.
Under Sec. 208.3(a)(1), all individuals who apply for benefit
payments starting on July 26, 1996, are subject to the mandatory
electronic funds transfer requirement. The Service chose the date of
application rather than, for example, the date on which an individual
attains a specified age, because the application process affords the
agency an opportunity to have contact with the recipient. The agency
can obtain account information during the application process and those
recipients who do not have accounts can certify to that fact.
Section 208.3(a)(2) addresses eligibility in the context of Federal
wage and salary payments. The interim rule provides that a recipient
who has a date of entry on duty with an agency on or after July 26,
1996, must receive wage and salary payments by electronic funds
transfer, unless the recipient certifies that he or she does not have
an account at a financial institution. Thus, an individual who begins
working for an agency, transfers from one agency to another, or resumes
Federal service after a break in employment on or after July 26, must
receive such payments by electronic funds transfer, unless the
recipient certifies that he or she does not have an account with a
financial institution or authorized payment agent.
Currently, 31 U.S.C. 3332 (a) through (d) provide that Federal
wage, salary, and retirement payments paid to individuals who began to
receive such payments after January 1, 1995, must be paid by electronic
funds transfer unless the recipient made a written request for another
form of payment. In addition, section 3332(c)(1) authorized the
Secretary to grant waivers for a group of recipients upon a request by
the head of an agency. These provisions remain effective until July 26,
1996, when they are superseded by section 3332(e), as amended, and the
interim rule. Consequently, Federal employees and retirees who become
eligible to receive payments on or after July 26, 1996, must certify
that they do not have an account at a financial institution or
authorized payment agent in order to qualify for a waiver.
Section 208.3(a)(3) of the interim rule provides that, in the case
of Federal retirement payments, ``becomes eligible for'' means a
recipient applies for retirement from an agency on or after July 26,
1996. There may be special circumstances in which a recipient applies
for retirement from an agency on or after July 26, while at the same
time the recipient is already receiving retirement payments from a
previous agency. In this circumstance, the recipient would be required
to receive retirement payments from the second agency electronically.
Section 208.3(a)(4) addresses vendor payments. Under the interim
rule, payments made under a contract or purchase order resulting from a
solicitation issued on or after July 26, 1996, must be made
electronically. This requirement applies to all contracts and purchase
orders for goods and service whether or not they are covered by the
Federal Acquisition Regulation. The interim rule does not require an
agency to convert payments for contracts or purchase orders executed
prior to July 26 to electronic funds transfer.
Section 208.3(a)(5) of the interim rule provides that, in the case
of grants, eligibility is determined by reference to the date on which
a grant application is filed or renewed.
Section 208.3(a)(6) is a catch-all provision that applies to all
other Federal payments, such as expense reimbursements and interest,
not addressed in subsections (1) through (5). The Service expects
agencies to fashion eligibility rules that are consistent with the
spirit of the Act.
Section 208.3(b) provides that, for a recipient who becomes
eligible to receive a Federal payment on or after July 26, the head of
each agency must waive the requirement to be paid by electronic funds
transfer if the recipient certifies in writing that the recipient does
not have an account with a financial institution or authorized payment
agent. The Appendix contains a model that may be used to make such a
certification. The use of this model is optional; an agency may
customize the model as needed.
The Service recognizes, however, that agencies may encounter
obstacles in converting to electronic funds transfer. Section 208.3(c)
provides that, if the head of an agency determines that the agency
cannot make a Federal payment or class of Federal payment in accordance
with Sec. 208.3(a) due to the inability of the agency's system to make
the payment(s) by electronic funds transfer, then the agency shall
notify the Service immediately in writing and shall submit an
implementation plan to the Service no later than January 1, 1997. The
plan shall:
(1) Identify the specific type of payment(s) that cannot be made by
electronic funds transfer;
(2) Describe the system problem that prevents the agency from
making the payment(s) by electronic funds transfer; and
(3) Outline a proposed solution and provide a time table for
solving the problem.
Nothing in Part 208 should be construed to prevent an agency from
continuing to make payments while the agency's plan is being developed,
reviewed, and implemented. The Service will work with agencies to
develop and implement the plan and provide any assistance the agency
may need.
Section 208.4 Recipient Responsibilities
Section 208.4 implements sections 3332(e) (2) and (g) as amended by
the Act and provides that (1) a recipient of a Federal payment must
designate a financial institution or authorized payment agent through
which a Federal payment may be made or certify in
[[Page 39257]]
writing that the recipient does not have an account with a financial
institution or authorized payment agent; and (2) provide the agency
with the information requested by the agency in order to effect the
payment.
B. Regulations to Implement the January 1, 1999, Requirements
During the next two years, Treasury will work with agencies, the
financial services industry, and representatives of individuals and the
vendor community, to meet the challenge of delivering all Federal
payments by electronic funds transfer. Efforts will include intensive
marketing of Treasury's existing Direct Deposit program for individuals
and businesses; new products such as Direct Deposit Too; and services
such as Electronic Benefit Transfer (EBT). The Service will continue to
develop, test, and implement innovative forms of electronic payment
mechanisms. The Service also plans to hold forums at which the public,
the financial service industry, Federal agencies, and other interested
parties will be invited to share their views regarding implementation
of the requirements that take effect on January 1, 1999.
In order to assess the current capabilities of agencies and to
assess their future needs, the Service requests agencies to submit an
implementation plan that addresses the points listed below. Agencies
subject to the Chief Financial Officers Act of 1990 (31 U.S.C. 901)
must submit the plan by January 1, 1997. All other agencies must submit
the plan by July 1, 1997. The plan must:
(1) List the types of Federal payments the agency currently makes
by check, especially those payments that the agency believes would be
difficult to convert to electronic funds transfer;
(2) Describe the obstacles the agency has encountered, or expects
to encounter, in converting payments made by check to electronic funds
transfer. The Service invites comment on the cost-effectiveness of
converting small dollar cash and check payments and non-recurring
payments to electronic funds transfer;
(3) Provide suggestions for removing the obstacles for each type of
payment and the electronic payment methods that could be used;
(4) Provide a timetable for the orderly and systematic conversion
of check payments to electronic funds transfer; and
(5) Identify the assistance each agency anticipates it will need in
order to convert payments currently made by check to electronic funds
transfer.
The Service will use this information to assess the requirements
for converting from cash and checks to electronic funds transfer
payments for each payment type and determine what assistance agencies
need in order to meet the January 1999 implementation date.
As noted above, where the head of the agency determines that the
agency cannot make a Federal payment or class of Federal payment in
accordance with Sec. 208.3(a) due to the inability of the agency's
system to make the payment(s) by electronic funds transfer, then the
agency must notify the Service immediately in writing and must submit a
plan in accordance with Sec. 208.3(c).
The Service would like to work with the financial services industry
to expand and enhance existing electronic payment methods and, where
necessary, develop new ones so as to facilitate the transition from
checks to electronic funds transfer. The industry is invited to:
(1) Discuss the capability to process electronic payments and to
provide the payment information customers need, especially for vendor
payments; and
(2) Provide suggestions regarding improvements to the electronic
payment methods currently available and ideas for new electronic
payment methods to meet the needs of recipients who receive checks.
Members of the public are specifically invited to comment on the
following:
(1) Obstacles to receiving payments electronically, such as
geographical barriers and physical, mental, educational, or language
barriers;
(2) The availability of banking services, especially for the
segment of the public that is currently unbanked;
(3) Suggestions for improving the electronic payment methods
currently available and ideas for new types of electronic payment
methods;
(4) Suggestions for implementing the provisions relating to the use
of an authorized payment agent for receipt of a Federal payment by
means of electronic funds transfer, including qualifications for
serving as an authorized payment agent and any limitations on the terms
of the contractual relationship between the recipient and the
authorized payment agent; and
(5) The needs of unbanked recipients when selecting an electronic
payment method or a financial institution.
Section 3332(i)(2), as added by section 31001 (x) of the Act,
provides that regulations issued by the Secretary shall ensure that
individuals who are required to have an account at a financial
institution because of the application of section 3332(f)(1) will have
access to such an account at a reasonable cost. Further, the Secretary
is directed to ensure that such individuals are given the same consumer
protections with respect to the account as other account holders at the
same financial institution. All interested parties are invited to
comment on these provisions.
Section 3332(f)(2) authorizes the Secretary to waive the electronic
funds transfer requirement for individuals or classes of individuals
for whom compliance poses a hardship, for classifications or types of
checks or in other circumstances as may be necessary. The Service
invites comment regarding these requirements.
In response to a Congressional request, the Service will study: (1)
the socioeconomic and demographic characteristics of those recipients
who currently receive checks to determine how best to increase
electronic payment usage; and (2) the adequacy of consumer protections
available to those individuals who will be required to obtain an
account with a financial institution.
Special Analyses
The Service is promulgating the interim rule without opportunity
for prior public comment pursuant to the Administrative Procedure Act
(the ``APA''), 5 U.S.C. 553, because the Service has determined, for
the following reasons, that a comment period would be impracticable and
contrary to the public interest. As noted above, until passage of the
Act, only recipients of Federal wage, salary, and retirement payments
were required to receive those payments by electronic funds transfer.
However, 31 U.S.C. 3332 (e), as amended, requires recipients who become
eligible for Federal payments on or after July 26, 1996, to receive
such payments electronically. Therefore, recipients such as vendors
doing business with agencies and benefit recipients may not be aware of
the impact of the law. In addition, the law requiring agencies to
disburse Federal funds expeditiously, 31 U.S.C. 3335, applies only to
agencies in the executive branch, whereas the amended section 3332 (e)
applies to departments, agencies, and instrumentalities of the United
States Government and to corporations owned or controlled by the
Government of the United States.
In addition, since the Act was passed, the Service has received
numerous requests for guidance from affected agencies. Many of the
questions relate to the meaning of the phrase ``becomes eligible for,''
which determines the applicability of section 3332. As noted above,
this phrase has different
[[Page 39258]]
meanings in the context of different types of payments. The Service
believes that, absent an implementing regulation, there will be
substantial confusion and noncompliance. Since the interim rule
provides critical guidance which will facilitate compliance, the
Service believes that it is in the public interest to issue the interim
rule without opportunity for prior public comment.
The public is invited to submit comments on the interim rule. As
noted above, within the next twelve months, the Service expects to
publish a Notice of Proposed Rulemaking to implement the provisions of
section 3332 that take effect in January 1999. Therefore, there will be
an opportunity to take into account any comments received on the
interim rule.
The Service has determined that good cause exists to make the
interim rule effective upon publication without providing the 30 day
period between publication and the effective date contemplated by the
APA, 5 U.S.C. 553 (d). The purpose of a delayed effective date is to
afford persons affected by a rule a reasonable time to prepare for
compliance. However, in this case, both agencies and recipients of
Federal payments must comply with the Act when it takes effect on July
26, 1996, and, as noted above, there may be considerable confusion
concerning its application. Inasmuch as the interim rule provides
important clarification that is expected to facilitate compliance with
the new law, the Service believes that good cause exists to make the
rule effective upon publication.
Since the interim rule is being issued without prior notice and
public procedure pursuant to the APA, the collection of information
contained in the interim rule has been reviewed under the requirements
of the Paperwork Reduction Act (44 U.S.C. 3507 (j)) and, pending
receipt and evaluation of public comments, approved by the Office of
Management and Budget (OMB) under control number 1510-0066. An agency
may not conduct or sponsor, and a person is not required to respond to,
a collection of information unless it displays a valid control number
assigned by the Office of Management and Budget.
Comments concerning the collection of information should be
directed to the Office of Management and Budget, Attention: Desk
Officer for the Department of the Treasury, Financial Management
Service, Office of Information and Regulatory Affairs, Washington, D.C.
20503, with copies to Jacqueline Perry, Public Reports Clearance
Officer, Financial Management Service, 3361 75th Avenue, Landover,
Maryland 20785. Any such comments should be submitted not later than
September 24, 1996. Comments are specifically requested concerning:
Whether the proposed collection of information is necessary for the
proper performance of the functions of the Service, including whether
the information will have practical utility;
The accuracy of the estimated burden associated with the proposed
collection of information (see below);
How the quality, utility, and clarity of the information to be
collected may be enhanced; and
How the burden of complying with the proposed collection of
information may be minimized, including through the application of
automated collection techniques and other forms of information
technology.
The collection of information in this regulation is in Sec. 208.4.
The information (name of financial institution, account number and
routing transit number or certification that the recipient does not
have an account with a financial institution) is required to enable an
agency to pay the recipient of a Federal payment by electronic funds
transfer. The collection of information is mandatory. 31 U.S.C. 3332
(g), as amended, requires recipients of Federal payments to ``provide
to the Federal agency that makes or authorizes the payments information
necessary for the recipient to receive electronic funds transfer
payments.'' The likely respondents are individuals who are employed by
the Service on or after July 26, 1996; existing employees of the
Service who become eligible to receive, for example, travel
reimbursement payments on or after July 26, 1996; individuals who apply
for retirement from the Service on or after July 26, 1996; and
individuals and businesses that become eligible to receive a vendor
payment from the Service on or after July 26, 1996.
The estimated total annual reporting burden is 325 hours. The
estimated burden hours per respondent is 0.25 hours. The estimated
number of respondents is 1,300. These figures represent the burden
imposed by the Service. The reporting burden imposed by other agencies
will be addressed by those agencies.
Although it has been determined that the interim rule is a
significant regulatory action as defined in E.O. 12866, the Office of
Management and Budget (OMB) has waived the preparation of a Regulatory
Assessment. One substantive change was made to the regulation
subsequent to its submission to OMB. At the suggestion of OMB, the
Service added Sec. 208.3 (c), which requires that an agency notify the
Service immediately in writing if it determines that it is unable to
make a payment or class of payments by electronic funds transfer due to
the inability of the agency's system to make the payment(s)
electronically.
List of Subjects in 31 CFR Part 208
Accounting, Banks, Banking, Electronic Funds Transfer.
Authority and Issuance
For the reasons set out in the preamble, Part 208 of Title 31 is
added to read as follows:
PART 208--FEDERAL AGENCY DISBURSEMENTS
Sec.
208.1 Scope and application.
208.2 Definitions.
208.3 Agency responsibilities.
208.4 Recipient responsibilities.
Appendix A to Part 31--Model certification
Authority: 5 U.S.C. 301; 31 U.S.C. 321, 3301, 3302, 3321, 3325,
3327, 3328, 3332, 3335, and 6503.
Sec. 208.1 Scope and application.
This part applies to all Federal payments made by an agency and
requires such payments to be made by electronic funds transfer, unless
a waiver is granted. This part does not apply to payments under the
Internal Revenue Code of 1986.
Sec. 208.2 Definitions.
(a) Agency means any department, agency, or instrumentality of the
United States Government, or a corporation owned or controlled by the
Government of the United States.
(b) Benefit payment means a payment for a Federal Government
entitlement program or for an annuity (other than a Federal retirement
payment), including, but not limited to, payments for Social Security,
Supplemental Security Income, Black Lung, Railroad Retirement Board
Retirement and Annuity, Department of Veterans Affairs Compensation and
Pension, and Worker's Compensation.
(c) Electronic funds transfer means any transfer of funds, other
than a transaction originated by cash, check, or similar paper
instrument, that is initiated through an electronic terminal,
telephone, computer, or magnetic tape, for the purpose of ordering,
instructing, or authorizing a financial institution to debit or credit
an account. The term includes, but is not limited to, Automated
Clearing House transfers, Fedwire transfers, and transfers made at
[[Page 39259]]
automated teller machines and point-of-sale terminals.
(d) Federal payment means any payment made by an agency.
(1) The term includes, but not is limited to:
(i) Federal wage, salary, and retirement payments;
(ii) Vendor and expense reimbursement payments;
(iii) Benefit payments; and
(iv) Miscellaneous payments, including but is not limited to,
interagency payments, grants, loans, fees, principal, interest, and
discounts related to U.S. transferable and non-transferable securities,
overpayment reimbursements, and payments under Federal insurance or
guarantee programs for loans.
(2) The term ``Federal payment'' does not apply to payments under
the Internal Revenue Code of 1986.
(e) Financial institution means any bank, savings bank, savings and
loan association, credit union, or similar institution.
(f) Payment means a sum of money transferred to a recipient in
satisfaction of an obligation.
Sec. 208.3 Agency responsibilities.
(a) Paying by electronic funds transfer. Subject to Sec. 208.3 (b),
and notwithstanding any other provision of law, all Federal payments
made by an agency to a recipient who becomes eligible for the payment
on or after July 26, 1996, shall be made by electronic funds transfer.
For purposes of this subsection, ``becomes eligible for'' means:
(1) In the case of benefit payments, the recipient applies for that
type of benefit on or after July 26, 1996;
(2) In the case of Federal wage or salary payments, the recipient
has a date of entry on duty with the agency on or after July 26, 1996;
(3) In the case of Federal retirement payments, a recipient applies
for retirement from an agency on or after July 26, 1996;
(4) In the case of vendor payments, the payment is made under a
contract or purchase order resulting from a solicitation issued on or
after July 26, 1996;
(5) In the case of grants, an application is filed or renewed on or
after July 26, 1996; and
(6) For all other Federal payments, as determined by the agency.
(b) Waiver. The head of an agency shall waive the application of
subsection 208.3 (a) only upon receipt of written certification that
the recipient does not have an account with a financial institution or
an authorized payment agent.
(c) Agency implementation plan. If the head of an agency determines
that the agency cannot make a Federal payment or class of Federal
payment in accordance with Sec. 208.3 (a) due to the inability of the
agency's system to make the payment(s) by electronic funds transfer,
then the agency shall notify the Service immediately in writing and
shall submit an implementation plan to the Service no later than
January 1, 1997. The plan shall:
(1) Identify the specific type of payment(s) that cannot be made by
electronic funds transfer;
(2) Describe the system problem that prevents the agency from
making the payment(s) by electronic funds transfer; and
(3) Outline a proposed solution and provide a time table for
solving the problem.
Sec. 208.4 Recipient responsibilities.
Each recipient of a Federal payment shall designate a financial
institution or authorized payment agent through which a Federal payment
may be made or certify in writing that such recipient does not have an
account with a financial institution or an authorized payment agent;
and provide the agency with the information requested by the agency in
order to effect the payment.
Appendix A to Part 208--Model Certification
This appendix contains model language which may be used to
qualify for a waiver under Sec. 208.3(b). Use of the model language
is optional. An agency may customize the model language by making
appropriate changes.
-----------------------------------------------------------------------
Any payment that we make to you will be made by electronic funds
transfer unless you certify in writing that you do not have an
account with a financial institution or an authorized payment agent.
I certify that I do not have an account with a financial
institution or an authorized payment agent.
----------------------------------------------------------------------
Signature
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Dated: July 23, 1996.
Russell D. Morris,
Commissioner.
[FR Doc. 96-19073 Filed 7-25-96; 8:45 am]
BILLING CODE 4810-35-P
Complete official Federal Register PDF
FR Doc. 96-19048 Atlantic Shark Fisheries; Quota Adjustment
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Page 39099]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19048]
=======================================================================
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 678
[I.D. 071596G]
Atlantic Shark Fisheries; Quota Adjustment
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Quota adjustment.
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SUMMARY: NMFS announces that the catch of large coastal sharks in the
Atlantic, Caribbean, and Gulf of Mexico was 1,402 metric tons (mt)
during the first semiannual 1996 season. Because of the overharvest of
this category quota, the second semiannual 1996 quota is adjusted
accordingly.
EFFECTIVE DATE: July 16, 1996.
FOR FURTHER INFORMATION CONTACT: C. Michael Bailey; 301-713-2347; Mark
Murray-Brown; 508-281-9260; or John M. Ward; 813-570-5335.
SUPPLEMENTARY INFORMATION: The Atlantic, Caribbean, and Gulf of Mexico
shark fisheries are managed by NMFS according to the Fishery Management
Plan (FMP) for Atlantic Sharks prepared by NMFS under authority of the
Magnuson Fishery Conservation and Management Act (16 U.S.C. 1801 et
seq.). Fishing by U.S. vessels is governed by regulations implementing
the FMP at 50 CFR part 678.
Section 678.24(b) of the regulations provides for two semi-annual
quotas of 1,285 mt of large coastal sharks to be harvested from
Atlantic, Caribbean, and Gulf of Mexico waters by commercial fishermen.
The first semiannual quota was available for harvest from January 1
through June 30, 1996.
The Assistant Administrator for Fisheries, NOAA, is authorized
under Sec. 678.23(c) to adjust the semiannual quota to reflect actual
catches during the preceding semiannual period.
With this action NMFS announces the size of the quota of Atlantic
large coastal sharks group during the second semiannual 1996 quota
period. Final data indicate that the catch from January through May 17,
1996, of large coastal shark species totaled 1,402 mt, which is 117 mt
more than the established quota. Therefore, the adjusted quota for
large coastal shark species for the second 1996 semiannual period is
decreased from 1,285 mt to 1,168 mt. The adjusted quota of 1,168 mt is
available for the period July 1 through December 31, 1996.
Classification
This rule is exempt from review under E.O. 12866.
Dated: July 16, 1996.
Richard H. Schaefer,
Director, Office of Fisheries Conservation and Management, National
Marine Fisheries Service.
[FR Doc. 96-19048 Filed 7-23-96; 3:59 pm]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-19043 International Banking Operations
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39052-39053]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19043]
=======================================================================
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FEDERAL RESERVE SYSTEM
12 CFR Part 211
[Regulation K; Docket No. R-0916]
International Banking Operations
AGENCY: Board of Governors of the Federal Reserve System.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule amends Regulation K to implement a provision
of the Riegle-Neal Interstate Banking and Branching Efficiency Act of
1994 (the Interstate Act) that amended the International Banking Act of
1978 (the IBA) by adding a new subsection regarding the management of
shell branches of foreign banks by such banks' U.S. offices. The
provision prohibits foreign banks from using their U.S. branches or
agencies to manage types of activities through offshore offices that
could not be managed by a U.S. bank at its foreign branches or
subsidiaries. This prohibition applies with respect to those offshore
offices that are ``managed or controlled'' by a foreign bank's U.S.
branches or agencies.
EFFECTIVE DATE: August 28, 1996.
FOR FURTHER INFORMATION CONTACT: Sandra L. Richardson, Managing Senior
Counsel (202/452-6406), Janet S. Crossen, Senior Attorney (202/452-
3281), Legal Division; Michael G. Martinson, Assistant Director,
Division of Banking Supervision and Regulation (202/452-3640), Board of
Governors of the Federal Reserve System. For users of Telecommunication
Device for the Deaf (TDD) only, please contact Dorthea Thompson, (202/
452-3544), Board of Governors of the Federal Reserve System, 20th and C
Streets, N.W., Washington, DC 20551.
SUPPLEMENTARY INFORMATION: In the Interstate Act, Congress amended
section 7 of the IBA (12 U.S.C. 3105) to prevent a foreign bank from
using a U.S. branch or agency to manage types of activities at offshore
offices that are managed or controlled by the foreign bank's U.S.
branch or agency if those types of activities could not be managed by a
U.S. bank at its foreign branches or subsidiaries. The final rule
adopted by the Board to implement that provision tracks the language of
section 7(k) of the IBA and defines the term ``managed or controlled''
for purposes of the restrictions on activities set out in that section.
The definition of ``managed or controlled'' for this final rule is
consistent with the definition of that term adopted by the Federal
Financial Institutions Examination Council with respect to the
Supplement (FFIEC 002S) to the quarterly Report of Assets and
Liabilities of U.S. Branches and Agencies of Foreign Banks (FFIEC 002),
which is required to be filed by foreign banks with respect to their
offshore shell operations that are ``managed or controlled'' from the
United States. 57 FR 61907, Dec. 29, 1992. For purposes of the FFIEC
002S and the final rule, a non-U.S. office is considered to be
``managed or controlled'' by a U.S. branch or agency of a foreign bank
if a majority of the responsibility for business decisions, including
but not limited to decisions with regard to lending or asset management
or funding or liability management, or the responsibility for
recordkeeping in respect of assets or liabilities for that non-U.S.
office, resides at the U.S. branch or agency.
The final rule also specifies that the types of activities that a
branch or agency may manage through an office located outside of the
United States include the types of activities authorized to a U.S. bank
by state or federal charters, regulations issued by chartering or
regulatory authorities and other U.S. banking laws. Finally, the
proposed rule states that U.S. procedural or quantitative requirements
will not apply to non-U.S. offices of foreign banks.
On February 16, 1996, the Board requested public comment on a
proposed rule to implement section 7(k) of the IBA. 61 FR 6956, Feb.
23, 1996. The comment period ended on March 25, 1996. The Board
received two public comments on the proposal, one by a banking
organization and the other by a trade association. Both commenters
generally supported the proposal. Comments received addressed issues
relating to the definition of ``managed or controlled'' and application
of the rule to non-U.S. full-service offices. The Board has considered
the comments and has determined not to make any modifications to the
final rule from that which was proposed.
One commenter proposed that the Board should modify its definition
of ``managed or controlled'' so that a U.S. branch or agency would not
be subject to the regulation on the sole grounds that recordkeeping
with respect to the assets or liabilities of a non-U.S. office resides
at the U.S. branch or agency.
Alternatively, the commenter requested that if the Board determined
to retain the recordkeeping prong of the definition, the Board should
clarify that maintaining records at a U.S. branch or agency would not
result in the application of the regulation to offshore branches that
are managed by personnel outside the United States. The commenter noted
that many international banks maintain data processing centers and keep
other records in their U.S. offices in order to provide support
services for non-U.S. branches within the Western Hemisphere.
The Board has found that the presence of records in a U.S. branch
or agency relating to an offshore office often is evidence of
involvement in the management of such offshore office by the U.S.
branch or agency where the records reside. Eliminating responsibility
for recordkeeping as a separate prong of the definition of ``managed or
controlled'' could result in the significant potential for evasion of
the provision. Accordingly, the Board has determined not to modify the
definition as suggested by the commenter.
The Board, however, believes that additional guidance may be
helpful to assist foreign banks in determining whether maintaining
records at U.S. branches or agencies for an offshore branch would
render them subject to the regulation. In this regard, the Board
[[Page 39053]]
considers that the phrase ``responsibility for recordkeeping'' entails
formal responsibility for the maintenance of records relating to the
offshore operations. Simple data processing activities such as
compiling and sorting data entries that were originated, approved and
confirmed by personnel outside the United States and routing and
distributing such processed data to destinations outside the United
States would ordinarily not constitute ``responsibility for
recordkeeping.'' If the U.S. branch or agency, however, originates the
underlying information or utilizes the information for making business
decisions or for the purpose of notifying or confirming transactions
with customers, such activities could no longer be considered merely
data processing. In addition, the Board considers that a U.S. branch or
agency would have responsibility for recordkeeping within the meaning
of the rule if it is the sole full-service office at which such records
are maintained. Foreign banks that maintain records in the United
States but do not believe they have ``responsibility for
recordkeeping'' may consult with Board staff for guidance in
determining whether they fall within the scope of the rule.
One commenter also recommended that the Board modify the regulation
to make clear that it applies to offshore shell offices rather than
offshore offices generally. The Board notes that the preamble to the
proposed rule stated that the restrictions in that rule generally would
not apply with respect to offshore branches that are full-service
facilities managed or controlled by staff located at the offshore
office or at locations other than in the United States. In addition,
the title of the proposed rule, which is identical to the title of the
statutory provision, refers to ``shell'' branches. In view of the
foregoing, the Board has determined that no modification to the rule is
necessary.
As the Board noted in the preamble to the proposed rule, section
7(k) of the IBA does not confer upon foreign banks any right to manage
activities at an offshore office from a U.S. office. The Board will
continue to monitor relationships between the U.S. and offshore offices
of foreign banks in the supervisory process in order to determine
whether such activities are consistent with considerations relating to
the safety and soundness of the U.S. operations of the foreign bank and
its affiliates and compliance with law.
Paperwork Reduction Act
In accordance with section 3506 of the Paperwork Reduction Act of
1995 (44 U.S.C. Ch. 35; 5 CFR 1320 Appendix A.1), the Board reviewed
the rule under the authority delegated to the Board by the Office of
Management and Budget. No collections of information pursuant to the
Paperwork Reduction Act are contained in the rule.
Regulatory Flexibility Act Analysis
Pursuant to section 605(b) of the Regulatory Flexibility Act (5
U.S.C. 601-612), the Board certifies that the this final rule will not
have a significant economic impact on a substantial number of small
entities.
List of Subjects in 12 CFR Part 211
Exports, Federal Reserve System, Foreign banking, Holding
companies, Investments, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, the Board of Governors
amends 12 CFR Part 211 as set forth below.
PART 211--INTERNATIONAL BANKING OPERATIONS (REGULATION K)
1. The authority citation for 12 CFR Part 211 continues to read as
follows:
Authority: 12 U.S.C. 221 et seq., 1818, 1841 et seq., 3101 et
seq., 3901 et seq.
2. Section 211.20 is amended by removing ``and'' at the end of
paragraph (b)(8), by removing the period at the end of paragraph (b)(9)
and adding ``; and'' in its place, and by adding a new paragraph
(b)(10) to read as follows:
Sec. 211.20 Authority, purpose, and scope.
* * * * *
(b) * * *
(10) The management of shell branches (12 U.S.C. 3105(k)).
* * * * *
3. Section 211.24 is amended by adding a new paragraph (g) to read
as follows:
Sec. 211.24 Approval of offices of foreign banks; procedures for
applications; standards for approval; representative office activities
and standards for approval; preservation of existing authority.
* * * * *
(g) Management of shell branches. (1) A state-licensed branch or
agency shall not manage, through an office of the foreign bank which is
located outside the United States and is managed or controlled by such
state-licensed branch or agency, any type of activity that a bank
organized under the laws of the United States or any State is not
permitted to manage at any branch or subsidiary of such bank which is
located outside the United States.
(2) For purposes of this paragraph (g), an office of a foreign bank
located outside the United States is ``managed or controlled'' by a
state-licensed branch or agency if a majority of the responsibility for
business decisions, including but not limited to decisions with regard
to lending or asset management or funding or liability management, or
the responsibility for recordkeeping in respect of assets or
liabilities for that non-U.S. office, resides at the state-licensed
branch or agency.
(3) The types of activities that a state-licensed branch or agency
may manage through an office located outside the United States that it
manages or controls include the types of activities authorized to a
U.S. bank by state or federal charters, regulations issued by
chartering or regulatory authorities, and other U.S. banking laws,
including the Federal Reserve Act, and the implementing regulations,
but U.S. procedural or quantitative requirements that may be applicable
to the conduct of such activities by U.S. banks shall not apply.
By order of the Board of Governors of the Federal Reserve
System, July 17, 1996.
William W. Wiles,
Secretary of the Board.
[FR Doc. 96-19043 Filed 7-25-96; 8:45 am]
BILLING CODE 6210-01-P
Complete official Federal Register PDF
FR Doc. 96-19014 General Accounting Office, Administrative Practice and Procedure, Bid Protest Regulations, Government Contracts
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39039-39047]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19014]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 61, No. 145 / Friday, July 26, 1996 / Rules
and Regulations
[[Page 39039]]
GENERAL ACCOUNTING OFFICE
4 CFR Part 21
General Accounting Office, Administrative Practice and Procedure,
Bid Protest Regulations, Government Contracts
AGENCY: General Accounting Office.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The General Accounting Office (GAO) is amending its Bid
Protest Regulations after receiving and considering the comments on the
advance notice of proposed rulemaking published on February 21, 1996,
and the proposed rule published on May 1, 1996. The final rule
implements the requirement in the National Defense Authorization Act
for Fiscal Year 1996 that GAO, for new protests filed on or after
August 8, 1996, issue bid protest decisions within 100 calendar days
from the time a protest is filed at GAO. The final rule will facilitate
GAO's meeting the new statutory deadline for issuing bid protest
decisions and will enhance the efficiency and effectiveness of the bid
protest process at GAO.
EFFECTIVE DATE: August 8, 1996.
FOR FURTHER INFORMATION CONTACT: Michael R. Golden (Assistant General
Counsel) or Linda S. Lebowitz (Senior Attorney), 202-512-9732.
SUPPLEMENTARY INFORMATION:
Effective Dates
Protests filed at GAO prior to the effective date of this final
rule will be considered under the previous rule published at 60 FR
40737 on August 10, 1995. That previous rule will also apply to (1)
protests filed on or after the effective date of this rule which
supplement or amend a protest filed at GAO prior to the effective date
of this rule and (2) claims and requests for reconsideration filed on
or after the effective date of this rule which concern a protest which
was considered under the previous rule.
Background
On February 21, 1996, GAO published an advance notice of proposed
rulemaking (61 FR 6579) soliciting comments on how its bid protest
procedures could be revised to facilitate GAO's meeting, effective
August 8, 1996, the new 100-calendar-day statutory deadline (which
shortens the former 125-calendar-day deadline) for issuing bid protest
decisions, as required by the National Defense Authorization Act for
Fiscal Year 1996, Pub. L. 104-106, 110 Stat. 186, enacted on February
10, 1996. (Further reference to ``days'' means calendar days.) GAO
invited comments addressing changing GAO's longstanding timeliness
rules to link the timely filing of a protest with a statutorily
required debriefing and on facilitating the expeditious resolution of
protests through the use of early document production. In addition, GAO
invited suggestions concerning the appropriate length of regulatorily
imposed deadlines and the use of accelerated or alternative procedures
to more expeditiously resolve bid protests.
In preparing the proposed rule, published on May 1, 1996 (61 FR
19205), GAO considered the written comments received in response to the
advance notice. These comments generally recognized our previous
efforts, as reflected in the final rule published on August 10, 1995
(60 FR 40737) and effective October 1, 1995, to streamline the bid
protest process at GAO and to provide meaningful relief to vendors
wrongfully harmed during the conduct of a procurement. The commenters
also suggested ways in which the internal management of GAO's bid
protest process could be enhanced.
Summary of Comments
Interested persons were invited to submit comments on GAO's
proposed rule by July 1, 1996. We received written comments from 13
Federal agencies, 2 bar associations, 2 industry associations, and 1
law firm. In adopting this final rule, we have carefully considered all
comments received. The commenters generally acknowledged GAO's efforts
to shorten regulatorily imposed deadlines in order to streamline and
expedite the bid protest process to meet the 100-day deadline for
issuing bid protest decisions and to help implement congressional
intent to shorten the length of the procurement cycle.
GAO has also enhanced ongoing internal initiatives to facilitate
the proactive management of cases and to accelerate the development and
resolution of bid protests. For example, we have adopted procedures to
simultaneously issue acknowledgment notices and protective orders in
appropriate cases; to identify shortly after a protest is filed those
cases in which a hearing appears likely to be appropriate; to encourage
the use of accelerated schedules, in lieu of invoking the express
option; to promote the expeditious resolution of summary dismissal
requests; and to encourage the use of status and other conferences. We
believe that regulatorily imposed improvements combined with proactive
management of cases will enable GAO to routinely issue a fully
developed decision resolving all issues raised in a protest within the
100-day deadline so that the protest does not unnecessarily delay the
procurement cycle.
A discussion of the more significant comments concerning GAO's
proposed rule, and our responses to these comments, are set forth
below.
Section 21.0--Definitions
Several commenters supported our proposal to prescribe procedures
for the uniform computation of ``days'' for all periods, including bid
protest filing periods and stay periods. In the proposed rule, we added
language to paragraph (e) of Sec. 21.0 which provides that in computing
any period of time described in Subchapter V, Chapter 35 of Title 31,
United States Code, the day from which the period begins to run will
not be counted, and that when the last day of the period falls on a
Saturday, Sunday, or Federal holiday, the period will extend to the
next day that is not a Saturday, Sunday, or Federal holiday. GAO adopts
the language as proposed. We believe that periods of time in the bid
protest system should be uniformly counted.
Section 21.1--Filing a Protest
To ensure that protesters focus their document and hearing
requests, in the proposed rule we added language to Sec. 21.1(d)(2)
which makes clear that when a protester makes a document request, the
protester must also explain
[[Page 39040]]
why the documents requested are relevant to the protest. The proposed
language was supported by the commenters, and is adopted as proposed.
We believe this requirement will assist GAO and the parties to identify
those documents which are material to the disposition of the protest.
Similarly, we added language in the proposed rule to
Sec. 21.1(d)(3) which makes clear that when a protester requests a
hearing, the protester must also provide an explanation of why it
believes a hearing is necessary to resolve the protest. The proposed
language was supported by the commenters, and is adopted as proposed.
We think this requirement will assist GAO and the parties to identify
early in the protest process those cases in which a hearing appears to
be appropriate.
In response to a commenter's suggestion, we have added language to
paragraph (g) of Sec. 21.1 which makes clear the requirement that a
protester file the redacted copy of its protest with GAO and the agency
within 1 day after it files its unredacted protest with GAO. The
requirement ensures that an agency can expeditiously provide the
redacted copy of the protest to any intervenors.
Section 21.2--Time for Filing
We received numerous comments concerning the language in paragraph
(a)(2) of Sec. 21.2 in the proposed rule linking the timely filing of a
protest with a statutorily required debriefing, that is, a debriefing
which is ``requested and, when requested, is required.'' In the
proposed rule, we expressly linked our timeliness rule to the statutory
debriefing and stay provision of the Federal Acquisition Streamlining
Act of 1994 (FASA), Pub. L. 103-355, 108 Stat. 3243, enacted on October
13, 1994. As explained, we believed such linkage would be consistent
with congressional intent that a vendor receive a statutorily required
debriefing before deciding whether or not to file a protest. The
proposed linkage would have provided a uniform rule and practice--by
filing a protest within 5 days of a statutorily required debriefing, a
protest would be timely for bid protest purposes and the protester
would be entitled to a stay.
The commenters were generally receptive to the linkage concept, but
suggested various ways to clarify the proposed language. After
considering all of these proposals, we have replaced the proposed
language with the following language: ``Protests other than those
covered by paragraph (a)(1) of this section shall be filed not later
than 10 days after the basis of protest is known or should have been
known (whichever is earlier), with the exception of protests
challenging a procurement conducted on the basis of competitive
proposals under which a debriefing is requested and, when requested, is
required. In such cases, with respect to any protest basis which is
known or should have been known either before or as a result of the
debriefing, the initial protest shall not be filed before the
debriefing date offered to the protester, but shall be filed not later
than 10 days after the date on which the debriefing is held.''
This provision leaves intact GAO's longstanding timeliness rule
that protests challenging an award made using sealed bidding
procedures, protests raising supplemental/amended issues, and protests
based on information which was independently obtained after a
statutorily required debriefing must be filed within 10 days (formerly
14 days) after the basis of protest is known or should have been known,
whichever is earlier. In the final rule, we have adopted 10 days (not 5
days as proposed) as the basis for calculating most protest (and other)
filing periods consistent with the goal of making our bid protest
process as simple and straightforward as possible.
In procurements conducted on the basis of competitive proposals in
which a statutorily required debriefing is held, that is, where a
debriefing is requested and, when requested, is required, a protester
will always have up to 10 days after the debriefing to file its initial
protest.
In adopting the 10-day timeliness rule, we recognize the concerns
of those commenters who point out that shortening in any circumstances
GAO's requirement for a timely filed protest from the former 14 days to
the proposed 5 days would seriously diminish access to potential
protesters who are accustomed to working with the 14-day requirement.
At the same time, we recognize other commenters' legitimate concerns
that the protest cycle be as short as feasible and, in the era of
facsimile transmissions and express delivery services, 14 days is a
disproportionately long period of time to allow vendors to file a
protest. We think the 10-day timeliness rule adopted in this final rule
strikes the appropriate balance between the comments that potential
protesters should have time to prepare and file a well-considered
protest, and other comments that the addition of a full 2-week period
to the overall 100-day bid protest period is not consistent with the
congressional goal of an expeditious bid protest system.
Moreover, to address concerns regarding strategic or defensive
protests, and to encourage early and meaningful debriefings, GAO
provides in paragraph (a)(2) of Sec. 21.2 that protesters shall not
file an initial protest prior to the debriefing date offered to the
protester, but must file the initial protest not later than 10 days
after the date on which the debriefing is held. In order to administer
this rule, our Office may close a file without prejudice on any protest
which has been filed before a statutorily required debriefing, upon
appropriate notice by an agency that the statutorily required
debriefing date has been offered. We anticipate that this debriefing
will normally occur on the first date offered by the agency. However,
in the event that the agency subsequently agrees to another date, the
debriefing held on that date will be used as the basis for determining
the timeliness of the protest. While we recognize that this places a
potential burden on an agency's procurement cycle time, the agency has
within its control the ability to minimize this period by offering
early and meaningful debriefings consistent with congressional intent.
The adoption of a uniform 10-day timeliness rule provides for easy
calculation of protest filing periods and substantially maintains the
basic timeliness rule which has been in effect at GAO since 1975. This
10-day rule reflects a compromise which balances the legitimate
competing interests and concerns of all parties. Under this rule and
consistent with the statutory language in FASA, a protester may file a
timely protest on any issue within 5 days of a statutorily required
debriefing, as well as obtain a stay, thus eliminating the existing
anomaly that a protester may be eligible for a stay based on a filing
which does not constitute a timely protest. However, potential
protesters should be aware that, even after this compromise (and as is
currently also the case), a protester's initial filing may qualify as a
timely protest, but may not entitle the protester to a stay.
Nevertheless, a protester's opportunity to obtain meaningful review at
GAO will be maintained.
In paragraph (a)(3) of Sec. 21.2 in the proposed rule, we required
that any subsequent protest to our Office following a protester's
actual or constructive knowledge of initial adverse agency action on
its agency-level protest be filed within 5 days. While this 5-day
period was supported by several commenters, other commenters expressed
concern that this proposed filing period was too short and would not
provide protesters with sufficient time to consider an agency's
decision regarding the agency-level
[[Page 39041]]
protest and to decide whether to file a subsequent protest, which may
raise new issues, with GAO. We are adopting 10 days as the time period
for filing a subsequent protest with GAO following a protester's
knowledge of initial adverse agency action on its agency level protest
to help ensure that the protester's decision regarding the filing of
such a protest is well considered.
We have removed paragraph (a)(4) of Sec. 21.2 in the proposed rule
which required that supplemental or amended protests be filed within 5
days after the basis of protest is known or should have been known,
whichever is earlier. By removing the proposed language, we will
continue to require that supplemental or amended protests be filed in
accordance with the basic ``knew/should have known'' timeliness rule
which, as adopted in this final rule, is 10 days.
In addition, several commenters suggested that the time period for
filing supplemental or amended protests be aligned with the 10-day time
period for filing comments (the proposed language in paragraph (i) of
Sec. 21.3 is adopted) since we might consider arguments made in
comments to be new protest issues which would need to independently
satisfy GAO's timeliness rules. In light of this concern and consistent
with the desire to calculate protest and other filing periods in a
simple, straightforward manner, the time periods for filing
supplemental or amended protests and comments will be concurrent,
thereby achieving the ``bright line'' rule desired by the commenters.
Finally, a few commenters have expressed a concern that our
timeliness rules conflict with the 10-working-day timeliness
requirement contained in the North American Free Trade Agreement
(NAFTA). Since the effective date of NAFTA implementation, we have not
received a protest under the NAFTA rules. When NAFTA was implemented,
we consulted the United States Trade Representative who advised that
the minor inconsistency between NAFTA's and GAO's timeliness
requirements would not pose any problems. We are cognizant of the
inconsistency and believe that, because of the flexibility of our
timeliness rules, we will be able to afford a NAFTA protester all
treaty rights for purposes of the timely filing of a protest.
Section 21.3--Notice of Protest, Submission of Agency Report, and Time
for Filing of Comments on Report
Consistent with the requirement in the National Defense
Authorization Act for Fiscal Year 1996, GAO adopts the language as
proposed in paragraph (c) of Sec. 21.3 concerning the new 30-day time
period for filing the agency report (shortening the former 35-day
requirement) after telephone notice of the protest from GAO.
In response to suggestions from commenters that GAO encourage the
filing of relevant documents prior to the filing of the agency report,
GAO adopts the language as proposed in paragraph (c) of Sec. 21.3 to
explicitly recognize that documents may be provided prior to the filing
of the agency report or may otherwise be made available to the parties,
such as by allowing parties to review documents on site at the agency
prior to the filing of the report. As previously discussed in the final
rule at 60 FR 40737, 40738, we believe that in appropriate cases, an
agency's voluntary production of documents prior to the filing of its
agency report will facilitate the prompt resolution of the protest and
result in other system efficiencies.
In light of the shortened timeframe for resolving all protest
issues, GAO believes it is critical to resolve document disputes prior
to the filing of the agency report in order to avoid extending a
protester's comment period or affording a protester an opportunity to
file supplemental comments in response to the piecemeal release of
additional documents. For this reason, GAO adopts the language proposed
in paragraph (c) of Sec. 21.3 requiring that at least 5 days prior to
the filing of the agency report, in protests where specific documents
material to the disposition of the protest have been requested, the
agency provide to all parties and GAO a list of those documents, or
portions of documents, which the agency has released to the protester
or intends to produce in its report, and of those documents which the
agency intends to withhold from the protester and the reasons for the
proposed withholding. GAO believes this list will facilitate the
expeditious resolution of document disputes and ultimately the protest
itself. We decline to adopt the suggestion of some commenters that a
list be produced in all cases (including those cases where specific
documents have not been requested) because we believe such a
requirement would unduly burden the agencies without providing
corresponding benefits to the bid protest process.
Several commenters suggested that the proposed 1-day period for
filing objections with GAO and the other parties regarding the scope of
the agency's proposed disclosure/nondisclosure of documents after
receipt of the list should be at least 2 days. GAO adopts the
suggestion of these commenters by changing the language in paragraph
(c) of Sec. 21.3 making clear that any objection to the scope of the
agency's proposed disclosure/nondisclosure of documents be filed within
2 days after receipt of the list.
GAO adopts the proposed language, ``documents, or portions of
documents,'' throughout Sec. 21.3 which clarifies and reflects current
longstanding practice that parties need not provide entire documents if
only certain parts of the documents are relevant to the issues raised
in the protest.
One commenter expressed concern that agency reports for overseas
procurements often cannot be filed within the 30-day statutory period.
This difficulty is already provided for in redesignated paragraph (f)
of Sec. 21.3. (The proposed rule divided former paragraph (c) of
Sec. 21.3 into 2 parts, creating a new paragraph (d) in this section
and redesignating the subsequent paragraphs in this section.) In such
cases, consistent with current practice, an agency may request an
extension of time for filing the agency report. In response to another
commenter's concern, GAO has added language to paragraph (f) of
Sec. 21.3 to permit an agency to also request an extension of time to
file the list of documents proposed for disclosure/nondisclosure.
In redesignated paragraph (g) of Sec. 21.3, GAO adopts the proposed
language which requires agencies to respond to supplemental document
requests within 2 days after the protester requests additional
documents. This 2-day period is equivalent to the period given to the
protester to request additional documents after their existence or
relevance first becomes evident following receipt of the agency report
and places the parties on a level playing field regarding the
respective filing periods for supplemental documents.
Several commenters have expressed the view that it is inappropriate
after the filing of comments on the agency report or hearing for
agencies and other parties to file unsolicited responses to such
comments. GAO adopts the language proposed in redesignated paragraph
(j) of Sec. 21.3 which provides that such additional responses shall
not be submitted unless GAO specifically requests them or specifically
grants permission for their submission. This requirement will ensure
that the period of time for closing the protest record is not
unnecessarily extended. The requirement is not, however, intended to
foreclose the submission of additional information from an agency or
other
[[Page 39042]]
parties when GAO believes that such input is appropriate.
Section 21.5--Protest Issues Not for Consideration
GAO adopts the language proposed in paragraph (d) of Sec. 21.5
concerning protests alleging a violation of subsection (a), (b), (c),
or (d) of sec. 27 of the Office of Federal Procurement Policy (OFPP)
Act, 41 U.S.C. 423, as amended by sec. 4304 of the National Defense
Authorization Act for Fiscal Year 1996. The statute requires that
potential protesters notify the agency concerned of a possible
procurement integrity violation within 14 days of discovering the
alleged violation before protesting the matter to GAO. The statutory
requirement reflected in paragraph (d) of Sec. 21.5 will become
effective on January 1, 1997, unless the requirement is implemented by
OFPP by an earlier date. Pending OFPP's implementation of this
requirement and consistent with current practice, GAO will continue to
consider protests of alleged procurement integrity violations whether
or not the protester has notified the agency prior to filing its
protest.
Section 21.7--Hearings
Consistent with current practice, GAO adopts the language as
proposed in paragraph (c) of Sec. 21.7 which explicitly recognizes that
hearings may be conducted by telephone. In paragraph (g) of Sec. 21.7,
GAO adopts the language as proposed which reduces the time for filing
consolidated comments on the agency report and hearing from 7 days to 5
days after the hearing. In those circumstances where more time to file
consolidated comments is necessary, GAO retains the flexibility to
extend the comment period.
Section 21.8--Remedies
Several commenters have expressed concern that the 90-day timeframe
for filing claims is too long. In paragraph (f)(1) of Sec. 21.8, GAO
has shortened the time for filing claims to 60 days. This change in the
final rule will expedite the process for resolving claims and
ultimately closing the contract file in a particular matter.
Section 21.9--Time for Decision by GAO
In accordance with the statutory requirement in the National
Defense Authorization Act for Fiscal Year 1996, GAO adopts the language
as proposed in paragraph (a) of Sec. 21.9 that a decision on a protest
be issued within 100 days after a protest is filed (shortening the
former 125-day requirement).
Section 21.10--Express Options, Flexible Alternative Procedures,
Accelerated Schedules, Summary Decisions, and Status and Other
Conferences
Several commenters have recognized GAO's use of flexible
alternative procedures to resolve bid protests, deeming such procedures
particularly useful in light of the shortened statutory deadline for
issuing decisions. GAO adopts the language as proposed in paragraph (e)
of Sec. 21.10 which specifically references as examples the use of
accelerated schedules and/or the issuance of summary decisions as
flexible alternative procedures which have been and will continue to be
used by GAO to promptly and fairly resolve protests.
Further, GAO adopts the language proposed in the new paragraph (f)
of Sec. 21.10 which, reflecting current practice, expressly provides
for conducting telephone or in person status and other conferences with
all protest parties to promote the expeditious development and
resolution of the protest. We added language to paragraph (f) of
Sec. 21.10 to recognize that other types of informal conferences may
also be held. For example, GAO has used status and other conferences to
resolve protective order admission objections, document disputes, and
summary dismissal requests; to discuss issues related to hearings; and
to obtain answers to questions which are relevant and material to the
disposition of the protest. GAO has found that the use of status and
other conferences benefits all parties to a protest. While some
commenters suggested that we include in this final rule a specific time
for conducting such conferences, we decline to add such language in
order to retain the flexibility to conduct these conferences at any
time during the process, thereby tailoring the conferences to the
circumstances of a particular case.
List of Subjects in 4 CFR Part 21
Administrative practice and procedure, Bid protest regulations,
Government contracts.
For the reasons set out in the preamble, Title 4, Chapter I,
Subchapter B of the Code of Federal Regulations is amended as follows:
1. Part 21 is revised to read as follows:
PART 21--BID PROTEST REGULATIONS
Sec.
21.0 Definitions.
21.1 Filing a protest.
21.2 Time for filing.
21.3 Notice of protest, submission of agency report, and time for
filing of comments on report.
21.4 Protective orders.
21.5 Protest issues not for consideration.
21.6 Withholding of award and suspension of contract performance.
21.7 Hearings.
21.8 Remedies.
21.9 Time for decision by GAO.
21.10 Express options, flexible alternative procedures, accelerated
schedules, summary decisions, and status and other conferences.
21.11 Effect of judicial proceedings.
21.12 Distribution of decisions.
21.13 Nonstatutory protests.
21.14 Request for reconsideration.
Authority: 31 U.S.C. 3551-3556.
Sec. 21.0 Definitions.
(a) Interested party means an actual or prospective bidder or
offeror whose direct economic interest would be affected by the award
of a contract or by the failure to award a contract.
(b) Intervenor means an awardee if the award has been made or, if
no award has been made, all bidders or offerors who appear to have a
substantial prospect of receiving an award if the protest is denied.
(c) Federal agency means any executive department or independent
establishment in the executive branch, including any wholly owned
government corporation, and any establishment in the legislative or
judicial branch, except the Senate, the House of Representatives, and
the Architect of the Capitol and any activities under his direction.
(d) Contracting agency means a Federal agency which has awarded or
proposes to award a contract under a protested procurement.
(e) Days are calendar days. In computing any period of time
described in Subchapter V, Chapter 35 of Title 31, United States Code,
including those described in this part, the day from which the period
begins to run is not counted, and when the last day of the period is a
Saturday, Sunday, or Federal holiday, the period extends to the next
day that is not a Saturday, Sunday, or Federal holiday. Similarly, when
the General Accounting Office (GAO), or another Federal agency where a
submission is due, is closed for all or part of the last day, the
period extends to the next day on which the agency is open.
(f) Adverse agency action is any action or inaction by a
contracting agency which is prejudicial to the position taken in a
protest filed with the agency, including a decision on the merits of a
protest; the opening of bids or receipt of proposals, the award of a
contract, or the rejection of a bid despite
[[Page 39043]]
a pending protest; or contracting agency acquiescence in continued and
substantial contract performance.
(g) A document is filed on a particular day when it is received by
GAO by 5:30 p.m., eastern time, on that day. A document may be filed by
hand delivery, mail, or commercial carrier; parties wishing to file a
document by facsimile transmission or other electronic means must
ensure that the necessary equipment is operational at GAO's Procurement
Law Control Group.
Sec. 21.1 Filing a protest.
(a) An interested party may protest a solicitation or other request
by a Federal agency for offers for a contract for the procurement of
property or services; the cancellation of such a solicitation or other
request; an award or proposed award of such a contract; and a
termination of such a contract, if the protest alleges that the
termination was based on improprieties in the award of the contract.
(b) Protests must be in writing and addressed as follows: General
Counsel, General Accounting Office, 441 G Street, NW., Washington, DC
20548, Attention: Procurement Law Control Group.
(c) A protest filed with GAO shall:
(1) Include the name, address, and telephone and facsimile numbers
of the protester,
(2) Be signed by the protester or its representative,
(3) Identify the contracting agency and the solicitation and/or
contract number,
(4) Set forth a detailed statement of the legal and factual grounds
of protest including copies of relevant documents,
(5) Set forth all information establishing that the protester is an
interested party for the purpose of filing a protest,
(6) Set forth all information establishing the timeliness of the
protest,
(7) Specifically request a ruling by the Comptroller General of the
United States, and
(8) State the form of relief requested.
(d) In addition, a protest filed with GAO may:
(1) Request a protective order,
(2) Request specific documents, explaining the relevancy of the
documents to the protest grounds, and
(3) Request a hearing, explaining the reasons that a hearing is
needed to resolve the protest.
(e) The protester shall furnish a complete copy of the protest,
including all attachments, to the individual or location designated by
the contracting agency in the solicitation for receipt of protests, or
if there is no designation, to the contracting officer. The designated
individual or location (or, if applicable, the contracting officer)
must receive a complete copy of the protest and all attachments not
later than 1 day after the protest is filed with GAO. The protest
document must indicate that a complete copy of the protest and all
attachments are being furnished within 1 day to the appropriate
individual or location.
(f) No formal briefs or other technical forms of pleading or motion
are required. Protest submissions should be concise and logically
arranged, and should clearly state legally sufficient grounds of
protest. Protests of different procurements should be separately filed.
(g) Unless precluded by law, GAO will not withhold material
submitted by a protester from any party outside the government. If the
protester believes that the protest contains information which should
be withheld, a statement advising of this fact must be on the front
page of the submission. This information must be identified wherever it
appears, and the protester must file a redacted copy of the protest
which omits the information with GAO and the agency within 1 day after
the filing of its protest with GAO.
(h) Parties who intend to file documents containing classified
information should notify GAO in advance to obtain advice regarding
procedures for filing and handling the information.
(i) A protest may be dismissed for failure to comply with any of
the requirements of this section, except for the items in paragraph (d)
of this section. In addition, a protest shall not be dismissed for
failure to comply with paragraph (e) of this section where the
contracting officer has actual knowledge of the basis of protest, or
the agency, in the preparation of its report, was not prejudiced by the
protester's noncompliance.
Sec. 21.2 Time for filing.
(a)(1) Protests based upon alleged improprieties in a solicitation
which are apparent prior to bid opening or the time set for receipt of
initial proposals shall be filed prior to bid opening or the time set
for receipt of initial proposals. In procurements where proposals are
requested, alleged improprieties which do not exist in the initial
solicitation but which are subsequently incorporated into the
solicitation must be protested not later than the next closing time for
receipt of proposals following the incorporation.
(2) Protests other than those covered by paragraph (a)(1) of this
section shall be filed not later than 10 days after the basis of
protest is known or should have been known (whichever is earlier), with
the exception of protests challenging a procurement conducted on the
basis of competitive proposals under which a debriefing is requested
and, when requested, is required. In such cases, with respect to any
protest basis which is known or should have been known either before or
as a result of the debriefing, the initial protest shall not be filed
before the debriefing date offered to the protester, but shall be filed
not later than 10 days after the date on which the debriefing is held.
(3) If a timely agency-level protest was previously filed, any
subsequent protest to GAO filed within 10 days of actual or
constructive knowledge of initial adverse agency action will be
considered, provided the agency-level protest was filed in accordance
with paragraphs (a)(1) and (a)(2) of this section, unless the
contracting agency imposes a more stringent time for filing, in which
case the agency's time for filing will control. In cases where an
alleged impropriety in a solicitation is timely protested to a
contracting agency, any subsequent protest to GAO will be considered
timely if filed within the 10-day period provided by this paragraph,
even if filed after bid opening or the closing time for receipt of
proposals.
(b) Protests untimely on their face may be dismissed. A protester
shall include in its protest all information establishing the
timeliness of the protest; a protester will not be permitted to
introduce for the first time in a request for reconsideration
information necessary to establish that the protest was timely.
(c) GAO, for good cause shown, or where it determines that a
protest raises issues significant to the procurement system, may
consider an untimely protest.
Sec. 21.3 Notice of protest, submission of agency report, and time for
filing of comments on report.
(a) GAO shall notify the contracting agency by telephone within 1
day after the filing of a protest, and, unless the protest is dismissed
under this part, shall promptly send a written confirmation to the
contracting agency and an acknowledgment to the protester. The
contracting agency shall immediately give notice of the protest to the
contractor if award has been made or, if no award has been made, to all
bidders or offerors who appear to have a reasonable prospect of
receiving an award. The contracting agency shall furnish copies of the
protest submissions to those parties, except
[[Page 39044]]
where disclosure of the information is prohibited by law, with
instructions to communicate further directly with GAO. All parties
shall furnish copies of all protest communications to the contracting
agency and to other participating parties. All protest communications
shall be sent by means reasonably calculated to effect expeditious
delivery.
(b) A contracting agency or intervenor which believes that the
protest or specific protest allegations should be dismissed before
submission of an agency report should file a request for dismissal as
soon as practicable.
(c) The contracting agency shall file a report on the protest with
GAO within 30 days after the telephone notice of the protest from GAO.
The report provided to the parties need not contain documents which the
agency has previously furnished or otherwise made available to the
parties in response to the protest. At least 5 days prior to the filing
of the report, in cases in which the protester has filed a request for
specific documents, the agency shall provide to all parties and GAO a
list of those documents, or portions of documents, which the agency has
released to the protester or intends to produce in its report, and of
the documents which the agency intends to withhold from the protester
and the reasons for the proposed withholding. Any objection to the
scope of the agency's proposed disclosure or nondisclosure of documents
must be filed with GAO and the other parties within 2 days of receipt
of this list.
(d) The report shall include the contracting officer's statement of
the relevant facts, including a best estimate of the contract value, a
memorandum of law, and a list and a copy of all relevant documents, or
portions of documents, not previously produced, including, as
appropriate: the protest; the bid or proposal submitted by the
protester; the bid or proposal of the firm which is being considered
for award, or whose bid or proposal is being protested; all evaluation
documents; the solicitation, including the specifications; the abstract
of bids or offers; and any other relevant documents. In appropriate
cases, the contracting agency may request that the protester produce
relevant documents, or portions of documents, that are not in the
agency's possession.
(e) Subject to any protective order issued in the protest pursuant
to Sec. 21.4, the contracting agency shall simultaneously furnish a
copy of the report to the protester and any intervenors. The copy of
the report filed with GAO shall list the parties who have been
furnished copies of the report. Where a protester does not have counsel
admitted to a protective order and documents are withheld from the
protester in accordance with this part, the agency shall provide
documents adequate to inform the protester of the basis of the agency's
position.
(f) The contracting agency may request an extension of time for the
submission of the list of documents to be provided by the agency
pursuant to Sec. 21.3(c) or for the submission of the agency report.
Extensions will be granted on a case-by-case basis.
(g) The protester may request additional documents after receipt of
the agency report when their existence or relevance first becomes
evident. Except when authorized by GAO, any request for additional
documents must be filed with GAO and the contracting agency not later
than 2 days after their existence or relevance is known or should have
been known, whichever is earlier. The contracting agency shall provide
the requested documents, or portions of documents, and a list to GAO
and the other parties within 2 days or explain why it is not required
to produce the documents.
(h) Upon the request of a party, GAO will decide whether the
contracting agency must provide any withheld documents, or portions of
documents, and whether this should be done under a protective order.
When withheld documents are provided, the protester's comments on the
agency report shall be filed within the original comment filing period
unless GAO determines that an extension is appropriate.
(i) Comments on the agency report shall be filed with GAO within 10
days after receipt of the report, with a copy provided to the
contracting agency and other participating parties. The protest shall
be dismissed unless the protester files comments or a written statement
requesting that the case be decided on the existing record, or requests
an extension of time within the 10-day period. Unless otherwise advised
by the protester, GAO will assume the protester received the agency
report by the due date specified in the acknowledgment of protest
furnished by GAO. Upon a showing that the specific circumstances of a
protest require a period longer than 10 days for the submission of
comments, GAO will set a new date for the submission of comments.
Extensions will be granted on a case-by-case basis.
(j) GAO may request or permit the submission of additional
statements by the parties and by other parties not participating in the
protest as may be necessary for the fair resolution of the protest. The
agency and other parties shall not submit any additional statements
unless the statements are specifically requested by GAO or submitted
after permission has been granted by GAO.
Sec. 21.4 Protective orders.
(a) At the request of a party or on its own initiative, GAO may
issue a protective order controlling the treatment of protected
information. Such information may include proprietary, confidential, or
source-selection-sensitive material, as well as other information the
release of which could result in a competitive advantage to one or more
firms. The protective order shall establish procedures for application
for access to protected information, identification and safeguarding of
that information, and submission of redacted copies of documents
omitting protected information. Because a protective order serves to
facilitate the pursuit of a protest by a protester through counsel, it
is the responsibility of protester's counsel to request that a
protective order be issued and to submit timely applications for
admission under that order.
(b) If no protective order has been issued, the agency may withhold
from the parties those portions of its report which would ordinarily be
subject to a protective order. GAO will review in camera all
information not released to the parties.
(c) After a protective order has been issued, counsel or
consultants retained by counsel appearing on behalf of a party may
apply for admission under the order by submitting an application to
GAO, with copies furnished simultaneously to all parties. The
application shall establish that the applicant is not involved in
competitive decision-making for any firm that could gain a competitive
advantage from access to the protected information and that there will
be no significant risk of inadvertent disclosure of protected
information. Objections to an applicant's admission shall be raised
within 2 days after receipt of the application, although GAO may
consider objections raised after that time.
(d) Any violation of the terms of a protective order may result in
the imposition of such sanctions as GAO deems appropriate, including
referral to appropriate bar associations or other disciplinary bodies
and restricting the individual's practice before GAO.
[[Page 39045]]
Sec. 21.5 Protest issues not for consideration.
GAO shall summarily dismiss a protest or specific protest
allegations that do not state a valid basis for protest, are untimely
(unless considered pursuant to Sec. 21.2(c)), or are not properly
before GAO. A protest or specific protest allegations may be dismissed
any time sufficient information is obtained by GAO warranting
dismissal. Where an entire protest is dismissed, no agency report shall
be filed; where specific protest allegations are dismissed, an agency
report shall be filed on the remaining allegations. Among the protest
bases which shall be dismissed are the following:
(a) Contract administration. The administration of an existing
contract is within the discretion of the contracting agency. Disputes
between a contractor and the agency are resolved pursuant to the
disputes clause of the contract and the Contract Disputes Act of 1978.
41 U.S.C. 601-613.
(b) Small Business Administration issues. (1) Small business size
standards and standard industrial classification. Challenges of
established size standards or the size status of particular firms, and
challenges of the selected standard industrial classification may be
reviewed solely by the Small Business Administration. 15 U.S.C.
637(b)(6).
(2) Small Business Certificate of Competency Program. Any referral
made to the Small Business Administration pursuant to sec. 8(b)(7) of
the Small Business Act, or any issuance of, or refusal to issue, a
certificate of competency under that section will not be reviewed by
GAO absent a showing of possible bad faith on the part of government
officials or a failure to consider vital information bearing on the
firm's responsibility. 15 U.S.C. 637(b)(7).
(3) Procurements under sec. 8(a) of the Small Business Act. Under
that section, since contracts are entered into with the Small Business
Administration at the contracting officer's discretion and on such
terms as are agreed upon by the procuring agency and the Small Business
Administration, the decision to place or not to place a procurement
under the 8(a) program is not subject to review absent a showing of
possible bad faith on the part of government officials or that
regulations may have been violated. 15 U.S.C. 637(a).
(c) Affirmative determination of responsibility by the contracting
officer. Because the determination that a bidder or offeror is capable
of performing a contract is based in large measure on subjective
judgments which generally are not readily susceptible of reasoned
review, an affirmative determination of responsibility will not be
reviewed absent a showing of possible bad faith on the part of
government officials or that definitive responsibility criteria in the
solicitation were not met.
(d) Procurement integrity. For any Federal procurement, GAO will
not review an alleged violation of subsections (a), (b), (c), or (d) of
sec. 27 of the Office of Federal Procurement Policy Act, 41 U.S.C. 423,
as amended by sec. 4304 of the National Defense Authorization Act for
Fiscal Year 1996, Public Law 104-106, 110 Stat. 186, February 10, 1996,
where the protester failed to report the information it believed
constituted evidence of the offense to the Federal agency responsible
for the procurement within 14 days after the protester first discovered
the possible violation. The provision in paragraph (d) of Sec. 21.5
will apply not later than January 1, 1997.
(e) Protests not filed either in GAO or the contracting agency
within the time limits set forth in Sec. 21.2.
(f) Protests which lack a detailed statement of the legal and
factual grounds of protest as required by Sec. 21.1(c)(4), or which
fail to clearly state legally sufficient grounds of protest as required
by Sec. 21.1(f).
(g) Procurements by agencies other than Federal agencies as defined
by sec. 3 of the Federal Property and Administrative Services Act of
1949, 40 U.S.C. 472. Protests of procurements or proposed procurements
by agencies such as the U.S. Postal Service, the Federal Deposit
Insurance Corporation, and nonappropriated fund activities are beyond
GAO's bid protest jurisdiction as established in 31 U.S.C. 3551-3556.
(h) Subcontract protests. GAO will not consider a protest of the
award or proposed award of a subcontract except where the agency
awarding the prime contract has requested in writing that subcontract
protests be decided pursuant to Sec. 21.13.
Sec. 21.6 Withholding of award and suspension of contract performance.
Where a protest is filed with GAO, the contracting agency may be
required to withhold award and to suspend contract performance. The
requirements for the withholding of award and the suspension of
contract performance are set forth in 31 U.S.C. 3553 (c) and (d).
Sec. 21.7 Hearings.
(a) At the request of a party or on its own initiative, GAO may
conduct a hearing in connection with a protest. The request shall set
forth the reasons why a hearing is needed to resolve the protest.
(b) Prior to the hearing, GAO may hold a pre-hearing conference to
discuss and resolve matters such as the procedures to be followed, the
issues to be considered, and the witnesses who will testify.
(c) Hearings generally will be conducted as soon as practicable
after receipt by the parties of the agency report and relevant
documents. Although hearings ordinarily will be conducted at GAO in
Washington, DC, hearings may, at the discretion of GAO, be conducted at
other locations, or by telephone.
(d) All parties participating in the protest shall be invited to
attend the hearing. Others may be permitted to attend as observers and
may participate as allowed by GAO's hearing official. In order to
prevent the improper disclosure of protected information at the
hearing, GAO's hearing official may restrict attendance during all or
part of the proceeding.
(e) Hearings shall normally be recorded and/or transcribed. If a
recording and/or transcript is made, any party may obtain copies at its
own expense.
(f) If a witness whose attendance has been requested by GAO fails
to attend the hearing or fails to answer a relevant question, GAO may
draw an inference unfavorable to the party for whom the witness would
have testified.
(g) If a hearing is held, no separate comments on the agency report
should be submitted unless specifically requested by GAO. Each party
shall file with GAO, within 5 days after the hearing was held or as
specified by GAO, a single document expressing any comments on both the
hearing and agency report, with copies furnished to the other parties.
By the due date, if the protester has not filed comments or a written
statement requesting that the case be decided on the existing record,
GAO shall dismiss the protest.
(h) In post-hearing comments, the parties should reference all
testimony and admissions in the hearing record that they consider
relevant, providing specific citations to the testimony and admissions
referenced.
Sec. 21.8 Remedies.
(a) If GAO determines that a solicitation, cancellation of a
solicitation, termination of a contract, proposed award, or award does
not comply with statute or regulation, it shall recommend that the
contracting agency implement any combination of the following remedies:
[[Page 39046]]
(1) Refrain from exercising options under the contract;
(2) Terminate the contract;
(3) Recompete the contract;
(4) Issue a new solicitation;
(5) Award a contract consistent with statute and regulation; or
(6) Such other recommendation(s) as GAO determines necessary to
promote compliance.
(b) In determining the appropriate recommendation(s), GAO shall,
except as specified in paragraph (c) of this section, consider all
circumstances surrounding the procurement or proposed procurement
including the seriousness of the procurement deficiency, the degree of
prejudice to other parties or to the integrity of the competitive
procurement system, the good faith of the parties, the extent of
performance, the cost to the government, the urgency of the
procurement, and the impact of the recommendation(s) on the contracting
agency's mission.
(c) If the head of the procuring activity determines that
performance of the contract notwithstanding a pending protest is in the
government's best interest, GAO shall make its recommendation(s) under
paragraph (a) of this section without regard to any cost or disruption
from terminating, recompeting, or reawarding the contract.
(d) If GAO determines that a solicitation, proposed award, or award
does not comply with statute or regulation, it may recommend that the
contracting agency pay the protester the costs of:
(1) Filing and pursuing the protest, including attorneys' fees and
consultant and expert witness fees; and
(2) Bid and proposal preparation.
(e) If the contracting agency decides to take corrective action in
response to a protest, GAO may recommend that the agency pay the
protester the costs of filing and pursuing the protest, including
attorneys' fees and consultant and expert witness fees. The protester
shall file any request that GAO recommend that costs be paid within 15
days after being advised that the contracting agency has decided to
take corrective action. The protester shall furnish a copy of its
request to the contracting agency, which may file a response within 15
days after receipt of the request, with a copy furnished to the
protester.
(f)(1) If GAO recommends that the contracting agency pay the
protester the costs of filing and pursuing the protest and/or of bid or
proposal preparation, the protester and the agency shall attempt to
reach agreement on the amount of costs. The protester shall file its
claim for costs, detailing and certifying the time expended and costs
incurred, with the contracting agency within 60 days after receipt of
GAO's recommendation that the agency pay the protester its costs.
Failure to file the claim within that time may result in forfeiture of
the protester's right to recover its costs.
(2) The contracting agency shall issue a decision on the claim for
costs as soon as practicable after the claim is filed. If the protester
and the contracting agency cannot reach agreement within a reasonable
time, GAO may, upon request of the protester, recommend the amount of
costs the agency should pay in accordance with 31 U.S.C. 3554(c). In
such cases, GAO may also recommend that the contracting agency pay the
protester the costs of pursuing the claim for costs before GAO.
(3) The contracting agency shall notify GAO within 60 days after
GAO recommends the amount of costs the agency should pay the protester
of the action taken by the agency in response to the recommendation.
Sec. 21.9 Time for decision by GAO.
(a) GAO shall issue a decision on a protest within 100 days after
it is filed.
(b) In protests where GAO uses the express option procedures in
Sec. 21.10, GAO shall issue a decision on a protest within 65 days
after it is filed.
(c) GAO, to the maximum extent practicable, shall resolve a timely
supplemental protest adding one or more new grounds to an existing
protest, or a timely amended protest, within the time limit established
in paragraph (a) of this section for decision on the initial protest.
If a supplemental or an amended protest cannot be resolved within that
time limit, GAO may resolve the supplemental or amended protest using
the express option procedures in Sec. 21.10.
Sec. 21.10 Express options, flexible alternative procedures,
accelerated schedules, summary decisions, and status and other
conferences.
(a) At the request of a party or on its own initiative, GAO may
decide a protest using an express option.
(b) The express option will be adopted at the discretion of GAO and
only in those cases suitable for resolution within 65 days.
(c) Requests for the express option shall be in writing and
received in GAO not later than 5 days after the protest or
supplemental/amended protest is filed. GAO will promptly notify the
parties whether the case will be handled using the express option.
(d) When the express option is used, the following schedule applies
instead of those deadlines in Sec. 21.3 and Sec. 21.7:
(1) The contracting agency shall file a complete report with GAO
and the parties within 20 days after it receives notice from GAO that
the express option will be used.
(2) Comments on the agency report shall be filed with GAO and the
other parties within 5 days after receipt of the report.
(3) If a hearing is held, no separate comments on the agency report
under paragraph (d)(2) of this section should be submitted unless
specifically requested by GAO. Consolidated comments on the agency
report and hearing shall be filed within 5 days after the hearing was
held or as specified by GAO.
(4) Where circumstances demonstrate that a case is no longer
suitable for resolution using the express option, GAO shall establish a
new schedule for submissions by the parties.
(e) GAO may use flexible alternative procedures to promptly and
fairly resolve a protest, including establishing an accelerated
schedule and/or issuing a summary decision.
(f) GAO may conduct status and other conferences by telephone or in
person with all parties participating in a protest to promote the
expeditious development and resolution of the protest.
Sec. 21.11 Effect of judicial proceedings.
(a) A protester must immediately advise GAO of any court proceeding
which involves the subject matter of a pending protest and must file
with GAO copies of all relevant court documents.
(b) GAO will dismiss any protest where the matter involved is the
subject of litigation before a court of competent jurisdiction, or
where the matter involved has been decided on the merits by a court of
competent jurisdiction. GAO may, at the request of a court, issue an
advisory opinion on a bid protest issue that is before the court. In
these cases, unless a different schedule is established, the times
provided in this part for filing the agency report (Sec. 21.3(c)),
filing comments on the report (Sec. 21.3(i)), holding a hearing and
filing comments (Sec. 21.7), and issuing a decision (Sec. 21.9) shall
apply.
Sec. 21.12 Distribution of decisions.
(a) Unless it contains protected information, a copy of a decision
shall be provided to the protester, any intervenors, the head of the
contracting activity responsible for the protested procurement, and the
senior procurement executive of each Federal agency involved; a copy
shall also be
[[Page 39047]]
made available to the public. A copy of a decision containing protected
information shall be provided only to the contracting agency and to
individuals admitted to any protective order issued in the protest. A
public version omitting the protected information shall be prepared
wherever possible.
(b) Decisions are available from GAO by electronic means.
Sec. 21.13 Nonstatutory protests.
(a) GAO will consider protests concerning awards of subcontracts by
or for a Federal agency, sales by a Federal agency, or procurements by
agencies of the government other than Federal agencies as defined in
Sec. 21.0(c) if the agency involved has agreed in writing to have
protests decided by GAO.
(b) The provisions of this part shall apply to nonstatutory
protests except for the provision of Sec. 21.8(d) pertaining to
recommendations for the payment of costs. The provision for the
withholding of award and the suspension of contract performance, 31
U.S.C. 3553(c) and (d), also does not apply to nonstatutory protests.
Sec. 21.14 Request for reconsideration.
(a) The protester, any intervenor, and any Federal agency involved
in the protest may request reconsideration of a bid protest decision.
GAO will not consider a request for reconsideration that does not
contain a detailed statement of the factual and legal grounds upon
which reversal or modification is deemed warranted, specifying any
errors of law made or information not previously considered.
(b) A request for reconsideration of a bid protest decision shall
be filed, with copies to the parties who participated in the protest,
not later than 10 days after the basis for reconsideration is known or
should have been known, whichever is earlier.
(c) GAO will summarily dismiss any request for reconsideration that
fails to state a valid basis for reconsideration or is untimely. The
filing of a request for reconsideration does not require the
withholding of award and the suspension of contract performance under
31 U.S.C. 3553 (c) and (d).
Robert P. Murphy,
General Counsel.
[FR Doc. 96-19014 Filed 7-25-96; 8:45 am]
BILLING CODE 1610-01-P
Complete official Federal Register PDF
FR Doc. 96-19007 Administrative and Audit Requirements and Cost Principles for Assistance Programs
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39083-39084]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19007]
=======================================================================
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 12
RIN 1090-AA58
Administrative and Audit Requirements and Cost Principles for
Assistance Programs
AGENCY: Office of the Secretary, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule is in response to the ``Omnibus Consolidated
Rescissions and Appropriations Act of 1996,'' and the ``Energy and
Water Development Appropriations Act, 1996.'' Section 307(a) of Public
Law 104-134 required that no funds made available in the Act may be
expended by an entity unless the entity agrees that in expending the
funds they will comply with sections 2 through 4 of the Act of March 3,
1933 (41 U.S.C. 10a-10c; popularly known as the ``Buy American Act'').
As it did for awards governed by this provision made since FY 1993, the
Department continues to interpret this requirement to apply to
assistance programs. Section 307(b)(1) of Public Law 104-134 again
states that it is the sense of Congress that all equipment and products
purchased with funds made available in the Act should be American-made.
Likewise, the Department is again taking the position that
Congressional intent is different for awards made by the Bureau of
Reclamation. As such, only the provisions in the regulation addressing
the sense of Congress (Sec. 12.700 and the notice requirements
(Sec. 12.710) will apply to awards made by the Bureau of Reclamation
using appropriated funds for FY 1996.
EFFECTIVE DATE: July 26, 1996.
SUPPLEMENTARY INFORMATION: On April 26, 1996, the Omnibus Consolidated
Rescissions and Appropriations Act of 1996 (``the Act'') was signed
into law. Section 307(a) of the Act was entitled ``Compliance with Buy
American Act.'' The section applied to funds appropriated or
transferred pursuant to the Act for the purchase of any equipment or
product that may be authorized to be purchased with financial
assistance. Section 307(b)(1) expressed the ``sense of the Congress''
that entities receiving the assistance purchase only American-made
equipment and products.
Section 307(b)(2) required that in providing the financial
assistance under the Act, the Secretary shall provide to each recipient
of the assistance a notice describing the requirement. As in prior
years, no other specific guidance was given regarding the
implementation of this requirement.
The Department is revising subpart E of 43 CFR Part 12 to implement
these requirements for awards made using appropriated funds for FY
1996. No specific guidance was provided by Congress, so the Department
decided to continue its implementation of these requirements based upon
the final rule published in the Federal Register on July 19, 1994 (59
FR 36713).
Because of the applicability of different appropriation acts and
the fact that the requirements are different, the notice in paragraph
(b) of Sec. 12.710 has been changed to account for the reference to
language in Public Law 104-134. A separate notice included in paragraph
(c) of Sec. 12.710 has been amended to account for the reference to
language in Public Law 104-46 and its use only for awards made by the
Bureau of Reclamation.
Finding of Good Cause for Waiver of Proposed Rulemaking and for Making
Rule Effective Upon Publication
In accordance with the Administrative Procedure Act (5 U.S.C. 553),
it is usually the practice of the Department to offer interested
parties the opportunity to comment on proposed regulations. However,
the Department waives notice and comment on these regulations under
section 553(b)(B) of the Administrative Procedure Act (5 U.S.C.
553(b)(B)). This section provides that notice and comment for
rulemaking is not required when the agency for good cause finds that
notice and public procedures are impracticable, unnecessary, or
contrary to the public interest.
The Department believes public comment on the revision of this
regulation is unnecessary because the substance of these provisions is
based on statutory requirements governing the award of assistance with
appropriated funds for FY 1996, that the Department is unable to
change.
The Administrative Procedure Act provides that rules be published
at least 30 days prior to their effective date, except as otherwise
provided by an agency on a finding of good cause (5 U.S.C. 553(d)(3)).
In this case, because this requirement is a statutory condition of
expenditure of appropriated funds in this fiscal year, the Department
has determined that the rule must be effective upon publication.
[[Page 39084]]
Executive Order 12866, Paperwork Reduction Act, and Regulatory
Flexibility Act
This rule was not subject to Office of Management and Budget review
under Executive Order 12866.
The Department has determined that this rule will not have a
significant economic impact on small entities since it is anticipated
that no additional costs will be imposed on a substantial number of
small entities as a result of the rule. This rule does not contain a
collection of information subject to the Paperwork Reduction Act of
1980 (44 U.S.C. 3501 et seq.).
Environmental Effects
The Department has determined that this rule does not constitute a
major Federal action having a significant impact on the human
environment under the National Environmental Policy Act of 1969.
List of Subjects in 43 CFR Part 12
Administrative practice and procedure, Contract programs,
Cooperative agreements, Grant programs, Grants administration,
Reporting and recordkeeping requirements.
Dated: July 18, 1996.
Bonnie R. Cohen,
Assistant Secretary--Policy, Management, and Budget.
Title 43 of the Code of Federal Regulations, part 12 is amended as
follows:
PART 12--ADMINISTRATIVE AND AUDIT REQUIREMENTS AND COST PRINCIPLES
FOR ASSISTANCE PROGRAMS
1. The authority citation for part 12 is revised to read as
follows:
Authority: 5 U.S.C. 301; 31 U.S.C. 6101 note, 7501; 41 U.S.C.
252a, 701 et seq; sec. 505, Pub. L. 104-46, 109 Stat. 419; sec. 307,
Pub. L. 104-134, 110 Stat. 1321; E.O. 12549, 3 CFR, 1986 Comp., p.
189; E.O. 12674, 3 CFR, 1989 Comp., 215; E.O. 12689, 3 CFR, 1989
Comp., p. 235; E.O. 12731, 3 CFR, 1990 Comp., p. 306; OMB Circular
A-102; OMB Circular A-110; OMB Circular A-128; and OMB Circular A-
133.
2. Section 12.700 is revised to read as follows:
Sec. 12.700 Scope.
This subpart implements section 307 of the Omnibus Consolidated
Rescissions and Appropriations Act of 1996 (Public Law 104-134, 110
Stat. 1321) and section 505 of the Energy and Water Development
Appropriations Act, 1996 (Public Law 104-46, 109 Stat. 419). For awards
made under the authority of section 307(a) of Public Law 104-134, this
subpart requires that no funds made available in the Act may be
expended by an entity unless the entity agrees that in expending the
funds the entity will comply with sections 2 through 4 of the Act of
March 31, 1933 (41 U.S.C. 10a-10c; popularly known as the ``Buy
American Act''). It applies to procurement contracts under grants and
cooperative agreements which provide for the purchase of equipment and
products. Section 505 of Public Law 104-46, 109 Stat. 419, only applies
to awards made by the Bureau of Reclamation. In addition, for these
awards, there is only a requirement that in providing financial
assistance to, or entering into any contract with, any entity using
funds made available in this Act, the Secretary, to the greatest extent
practicable, will provide to the entity a notice describing a statement
within the Act made by Congress. This statement concerns the sense of
the Congress that to the greatest extent practicable, all equipment and
products purchased with funds made available in the Act, should be
American-made. Therefore, for Fiscal Year 1996 awards, only the
requirements in Secs. 12,700 and 12.710 will apply to awards made by
the Bureau of Reclamation.
3. Paragraphs (a), (b), and (c) of Sec. 12.710 are revised to read
as follows:
Sec. 12.710 Policy.
(a) In the case of any equipment or product that may be authorized
to be purchased with financial assistance provided using funds made
available under Public Law 104-134, it is the sense of Congress that
entities receiving the assistance should, in expending the assistance,
purchase only American-made equipment and products.
(b) In awarding financial assistance under Public Law 104-134, 110
Stat. 1321, bureaus and offices excluding the Bureau of Reclamation
will provide to each recipient of the assistance the following notice:
Notice
Pursuant to Sec. 307 of the Omnibus Consolidated Rescissions and
Appropriations Act of 1996, Public Law 104-134, 110 Stat. 1321,
please be advised on the following:
In the case of any equipment or product that may be authorized
to be purchased with financial assistance provided using funds made
available in this Act, it is the sense of the Congress that entities
receiving the assistance should, in expending the assistance,
purchase only American-made equipment and products.
(c) In awarding financial assistance using funds made available
under Public Law 104-46, to the greatest extent practicable, the Bureau
of Reclamation will provide to each recipient of the assistance the
following notice:
Notice
Pursuant to Sec. 505 of the Energy and Water Development
Appropriations Act, 1996, Public Law 104-46, 109 Stat. 419, please
be advised of the following:
It is the sense of the Congress, that to the greatest extent
practicable, all equipment and products purchased with funds made
available in this Act should be American-made.
* * * * *
[FR Doc. 96-19007 Filed 7-25-96; 8:45 am]
BILLING CODE 4310-RF-M
Complete official Federal Register PDF
FR Doc. 96-19005 Computation of Combined Taxable Income Under the Profit Split Method When the Possession Product Is a Component Product or an End- Product Form for Purposes of the Possessions Credit Under Section 936; Correction
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39071-39072]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19005]
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
[TD 8669]
RIN 1545-AR18
Computation of Combined Taxable Income Under the Profit Split
Method When the Possession Product Is a Component Product or an End-
Product Form for Purposes of the Possessions Credit Under Section 936;
Correction
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Correction to final regulations.
-----------------------------------------------------------------------
SUMMARY: This document contains corrections to final regulations [TD
8669] which were published in the Federal Register on Friday, May 10,
1996 (61 FR 21366). The final regulations relate to the computation of
combined taxable income under the profit split method.
EFFECTIVE DATE: May 10, 1996.
FOR FURTHER INFORMATION CONTACT: Jacob Feldman (202) 622-3870 (not a
toll-free number).
[[Page 39072]]
SUPPLEMENTARY INFORMATION:
Background
The final regulations that are subject to these corrections are
under section 936 of the Internal Revenue Code.
Need for Correction
As published, the final regulations [TD 8669] contain errors which
may prove to be misleading and are in need of clarification.
Correction of Publication
Accordingly, the publication of the final regulations (TD 8669)
which is the subject of FR Doc. 96-11639, is corrected as follows:
1. On page 21366, column 3, in the preamble, following the
paragraph heading ``Discussion'', the first full paragraph in the
column, line 4, the language ``forms under the profit-split method'' is
corrected to read ``forms under the profit split method''.
2. On page 21367, column 1, in the preamble, following the
paragraph heading ``Discussion'', the second full paragraph in the
column, lines 12 and 13, the language ``regulation is effective for
taxable years ending 30 days after May 10, 1996. If'' is corrected to
read ``regulations apply to taxable years ending after June 9, 1996.
If''.
Sec. 1.936-6 [Corrected]
3. On page 21368, Sec. 1.936-6, in paragraph (b)(1), in the table
in A.12(iv), under the heading ``Production costs (excluding costs of
materials):'', item 3, the language ``3. P's costs for the CPU's (the
possession product)'' is corrected to read ``3. P's costs for the CPUs
(the possession product)''.
4. On page 21369, column 3, Sec. 1.936-6, in paragraph (b)(1),
under A.12(vii), line 3, the language ``ending 30 days after May 10,
1996. If'' is corrected to read ``ending after June 9, 1996. If''.
Cynthia E. Grigsby,
Chief, Regulations Unit, Assistant Chief Counsel (Corporate).
[FR Doc. 96-19005 Filed 7-25-96; 8:45 am]
BILLING CODE 4830-01-U
Complete official Federal Register PDF
FR Doc. 96-19004 Diversification of Common Trust Funds; Correction
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Page 39072]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19004]
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
26 CFR Part 1
[TD 8662]
RIN 1545-AQ64
Diversification of Common Trust Funds; Correction
AGENCY: Internal Revenue Service, Treasury.
ACTION: Correction to final regulations.
-----------------------------------------------------------------------
SUMMARY: This document contains a correction to final regulations [TD
8662] which were published in the Federal Register on Thursday, May 2,
1996 (61 FR 19546). The final regulations relate to the diversification
of common trust funds at the time of a combination or division.
EFFECTIVE DATE: May 2, 1996.
FOR FURTHER INFORMATION CONTACT: Steven Schneider, (202) 622-3060 (not
a toll-free number).
SUPPLEMENTARY INFORMATION:
Background
The final regulations that are the subject of this correction are
under section 584 of the Internal Revenue Code.
Need for Correction
As published, TD 8662 contains an error that is in need of
correction.
Correction of Publication
Accordingly, the publication of final regulations which are the
subject of FR Doc. 96-10393 is corrected as follows.
Sec. 1.584-4 [Corrected]
On page 19547, column 1, Sec. 1.584-4(a), the fifteenth line from
the bottom of the paragraph, the language ``participant in
substantially the same as'' is corrected to read ``participant is
substantially the same as''.
Cynthia E. Grigsby,
Chief, Regulations Unit, Assistant Chief Counsel (Corporate).
[FR Doc. 96-19004 Filed 7-25-96; 8:45 am]
BILLING CODE 4830-01-U
Complete official Federal Register PDF
FR Doc. 96-19003 Transfers to Investment Companies; Correction
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Page 39072]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19003]
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
26 CFR Part 1
[TD 8663]
RIN 1545-AT43
Transfers to Investment Companies; Correction
AGENCY: Internal Revenue Service, Treasury.
ACTION: Correction to final regulations.
-----------------------------------------------------------------------
SUMMARY: This document contains a correction to final regulations [TD
8663] which were published in the Federal Register on Thursday, May 2,
1996 (61 FR 19544). The final regulations concern the treatment of
certain transfers to a controlled corporation.
EFFECTIVE DATE: May 2, 1996.
FOR FURTHER INFORMATION CONTACT: Andrew M. Eisenberg, (202) 622-7790
(not a toll-free number).
SUPPLEMENTARY INFORMATION:
Background
The final regulations that are the subject of this correction are
under section 351 of the Internal Revenue Code.
Need for Correction
As published, TD 8663 contains an error that is in need of
correction.
Correction of Publication
Accordingly, the publication of the final regulations which are the
subject of FR Doc. 96-10394 is corrected as follows:
PART 1--[CORRECTED]
On page 19545, column 3, in amendatory instruction ``Paragraph
1.'', lines 1 and 2, the language ``Paragraph 1. The authority citation
for part 1 continues to read as follows:'' is corrected to read
``Paragraph 1. The authority citation for part 1 is amended by adding
an entry in numerical order to read as follows:''.
Cynthia E. Grigsby,
Chief, Regulations Unit, Assistant Chief Counsel (Corporate).
[FR Doc. 96-19003 Filed 7-25-96; 8:45 am]
BILLING CODE 4830-01-U
Complete official Federal Register PDF
FR Doc. 96-18998 Availability of Information and Records to the Public
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39047-39048]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18998]
=======================================================================
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DEPARTMENT OF AGRICULTURE
Food and Consumer Service
7 CFR Part 295
RIN 0584-AC13
Availability of Information and Records to the Public
AGENCY: Food and Consumer Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule amends the Food and Consumer Service (FCS) Freedom
of Information Act (FOIA) regulations contained in 7 CFR part 295 as
required by the FOIA and 7 CFR part 1--Administrative Regulations,
subpart A--Official Records, Sec. 1.3 Agency Implementing Regulations.
The revised information mainly reflects changes in office addresses and
locations and expands the information for accessing records.
EFFECTIVE DATE: August 26, 1996.
FOR FURTHER INFORMATION CONTACT: Joseph M. Scordato, Freedom of
Information Act Officer, Information Technology Division, Food and
Consumer Service, USDA, Alexandria, VA 22302 (703-305-2244).
SUPPLEMENTARY INFORMATION: The FOIA (5 U.S.C. 552(a)(1)) requires
Federal agencies to publish in the Federal Register regulations
describing how the public may obtain information from the agency. Part
295 of Title 7, Code of Federal Regulations, is issued in accordance
with the regulations of the Secretary of Agriculture at 7 CFR part 1,
subpart A, implementing FOIA.
This rule relates to internal agency management. Therefore,
pursuant to 5 U.S.C. 553, notice of proposed rulemaking and opportunity
for comment are not required, and this rule may be made effective less
than 30 days after publication in the Federal Register. Further, since
this rule relates to internal agency management, it is exempt from the
provisions of Executive Order 12866. The Administrator of FCS has
certified that this rule will not cause a significant economic impact
or other substantial effect on small entities. Therefore, the
requirements of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.,
do not apply. This rule contains no reporting or recordkeeping
requirements subject to review under the Paperwork Reduction Act of
1995 (Pub. L. 104-13). This rule has been reviewed under Executive
Order 12988, Civil Justice Reform, and has been determined to meet the
applicable standards of the Executive Order. This rule is intended to
have preemptive effect with respect to any State or local laws,
regulations, or policies that conflict with its provisions, or that
would otherwise impede its full implementation. Prior to any judicial
challenge to the application of this rule, a requester must exhaust all
applicable administrative remedies provided in 7 CFR part 1, subpart A.
By this publication the Food and Consumer Service is notifying the
Public of its office locations, the hours of operation, the kinds of
information available, and the responsible officials where information
may be obtained. In addition to the headquarters offices, the Food and
Consumer Service has regional and field offices located throughout the
Country.
List of Subjects in 7 CFR Part 295
Freedom of Information.
Accordingly, 7 CFR part 295 is revised to read as follows:
PART 295--AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC
Sec.
295.1 General statement.
295.2 Organizational description.
295.3 Informational and educational publications.
295.4 Program evaluation status reports.
295.5 Program statistical reports.
295.6 Public inspection and copying.
295.7 Indexes.
295.8 Requests.
295.9 Appeals.
Authority: 5 U.S.C. 301, 552; 7 CFR 1.1-1.23.
Sec. 295.1 General statement.
This part is issued in accordance with the regulations of the
Secretary of Agriculture at 7 CFR 1.1-1.23, and appendix A,
implementing the Freedom of Information Act (5 U.S.C. 552). The
Secretary's regulations, as implemented by the regulations in this
part, govern the availability of records of FCS to the public.
Sec. 295.2 Organizational description.
The description of the central and field organization of FCS is
published as a notice in the Federal Register and may be revised from
time to time in like manner. Such description contains a listing of FCS
headquarters and field organizational units and their functions.
Sec. 295.3 Informational and educational publications.
FCS publishes a wide variety of informational and educational
periodicals, pamphlets, brochures, leaflets, guides, and educational
aids explaining the operation of FCS food
[[Page 39048]]
assistance programs. For more information concerning FCS publications
and how to obtain them, write the Director, Public Information Staff,
Food and Consumer Service, USDA, 3101 Park Center Drive, Alexandria, VA
22302-1500.
Sec. 295.4 Program evaluation status reports.
FCS also publishes summaries of objectives and findings of
completed studies and projects concerning evaluation of FCS food
assistance programs. A copy of the current status report on completed
studies may be obtained by writing the Director, Office of Analysis and
Evaluation, Food and Consumer Service, USDA, 3101 Park Center Drive,
Alexandria, VA 22302-1500.
Sec. 295.5 Program statistical reports.
Current and historical information on FCS food assistance program
size, monetary outlays, geographic distribution, racial and ethnic
participation rates, and other data is published throughout the year.
Limited supplies are available for public distribution upon request.
Write the Director, Program Information Division, Food and Consumer
Service, USDA, 3101 Park Center Drive, Alexandria, VA 22302-1500.
Sec. 295.6 Public inspection and copying.
5 U.S.C. 552(a)(2) requires that certain informational materials be
made available for public inspection and copying. Such materials
maintained by FCS may be inspected and copied during regular office
hours (currently 8:30 a.m. to 5 p.m.). Interested parties may submit
requests to the FCS Records Management Officer, Information Technology
Division, 3101 Park Center Drive, Alexandria, VA 22302-1500.
Sec. 295.7 Indexes.
5 U.S.C. 552(a)(2) also requires an index of the materials required
to be made available for public inspection and copying be published
quarterly. Copies of this Index for FCS materials will be maintained
for public inspection and copying during regular office hours in FCS
Library, Room 810, 3101 Park Center Drive, Alexandria, Va. 22302-1500.
Free copies of the current index may be obtained by writing or visiting
any of the FCS offices listed in the local telephone directory or those
listed below:
(a) Records Management Officer, Information Technology Division,
Food and Consumer Service, USDA, 3101 Park Center Drive, Alexandria,
Va. 22302-1500.
(b) Director, Financial Management, Food and Consumer Service,
USDA, 300 Corporate Blvd., Mercer Corporate Park, Robbinsville, NJ
08691-1518.
(c) Director, Financial Management, Food and Consumer Service,
USDA, 77 Forsyth Street, SW, Atlanta, GA 30303-3427.
(d) Director, Financial and Administrative Management, Food and
Consumer Service, USDA, 77 W. Jackson Blvd., Chicago, Illinois 60604-
3507.
(e) Director, Financial Management, Food and Consumer Service,
USDA, 1100 Commerce St., Dallas, Texas 75242-9980.
(f) Director, Financial Management, Food and Consumer Service,
USDA, 550 Kearney St., San Francisco, CA 94108-2518.
(g) Director, Financial Management, Food and Consumer Service,
USDA, 10 Causeway Street, Boston, MA 02222-1069.
(h) Director, Financial and Administrative Management, Food and
Consumer Service, USDA, 1244 Speer Blvd., Denver, CO 80204-3581.
Sec. 295.8 Requests.
(a) Requests for FCS program records under 5 U.S.C. 552(a)(3) shall
be made in accordance with USDA Administrative Regulations 7 CFR 1.6
and addressed to the appropriate FCS official listed below:
(1) Food Stamp program records--Requests for Food Stamp information
should be addressed to the Director of the appropriate Division
(Program Development Division, Benefit Redemption Division, or Program
Accountability Division) at the following address: Food and Consumer
Service, USDA, 3101 Park Center Drive, Alexandria, VA, 22302-1500.
(2) Child Nutrition Program records--Director, Child Nutrition
Division, Food and Consumer Service, USDA, 3101 Park Center Drive,
Alexandria, VA 22302-1500.
(3) Food Distribution Program records--Director, Food Distribution
Division, Food and Consumer Service, USDA, 3101 Park Center Drive,
Alexandria, VA 22302-1500.
(4) Supplemental Food Program records--Director, Supplemental Food
Programs Division, Food and Consumer Service, USDA, 3101 Park Center
Drive, Alexandria, VA 22302-1500.
(b) If the requester is unable to determine the official to whom
his request should be addressed, he should address it to: Freedom of
Information Act Officer, Information Technology Division, 3101 Park
Center Drive, Alexandria, VA 22302. The Freedom of Information Act
Officer will refer such requests to the appropriate official.
(c) The officials outlined in paragraph (a) are authorized to make
determinations in accordance with USDA Administrative Regulations at 7
CFR 1.8.
Sec. 295.9 Appeals.
(a) Any person whose request for records is denied shall have the
right to appeal that denial in accordance with USDA Administrative
Regulations 7 CFR 1.13. All appeals shall be addressed to:
Administrator, Food and Consumer Service, USDA, 3101 Park Center Drive,
Alexandria, VA 22302-1500.
(b) The following officials are delegated authority to make
decisions on Freedom of Information Act appeals at the address above:
(1) Food Stamp program (general)--Deputy Administrator, Food Stamp
Program;
(2) Food Stamp program (appeals on names of Food Stamp
Investigators and Investigative aids)--Director, Benefit Redemption
Division;
(3) Child Nutrition program--Deputy Administrator, Special
Nutrition Programs;
(4) Food Distribution program--Deputy Administrator, Special
Nutrition Programs;
(5) Supplemental Food program--Deputy Administrator, Special
Nutrition Programs;
(6) Management offices--Deputy Administrator, Management;
(7) Financial Management offices--Deputy Administrator, Financial
Management;
(8) Appeals not covered above--Associate Administrator, FCS.
Dated: July 15, 1996.
William E. Ludwig,
Administrator, Food and Consumer Service.
[FR Doc. 96-18998 Filed 7-25-96; 8:45 am]
BILLING CODE 3410-30-U
Complete official Federal Register PDF
FR Doc. 96-18997 Sweet Onions Grown in the Walla Walla Valley of Southeast Washington and Northeast Oregon; Assessment Rate
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39050-39052]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18997]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 956
[Docket No. FV96-956-2 FIR]
Sweet Onions Grown in the Walla Walla Valley of Southeast
Washington and Northeast Oregon; Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Agriculture (Department) is adopting as a
final rule, with change, the provisions of an interim final rule that
established an assessment rate for the Walla Walla Sweet Onion
Committee (Committee) under Marketing Order No. 956 for the 1996-97 and
subsequent fiscal periods. The Committee is responsible for local
administration of the marketing order which regulates the handling of
Sweet Onions grown in the Walla Walla Valley of Southeast Washington
and Northeast Oregon. Authorization to assess onion handlers enables
the Committee to incur expenses that are reasonable and necessary to
administer the program.
EFFECTIVE DATE: Effective on June 1, 1996.
FOR FURTHER INFORMATION CONTACT: Martha Sue Clark, Program Assistant,
Marketing Order Administration Branch, Fruit and Vegetable Division,
AMS, USDA, P.O. Box 96456, room 2523-S, Washington, DC 20090-6456,
telephone 202-720-9918, FAX 202-720-5698, or Robert J. Curry, Marketing
Specialist, Northwest Marketing Field Office, Fruit and Vegetable
Division, AMS, USDA, Green-Wyatt Federal Building, room 369, 1220
Southwest Third Avenue, Portland, OR 97204, telephone 503-326-2724, FAX
503-326-7440. Small businesses may request information on compliance
with this regulation by contacting: Jay Guerber, Marketing Order
Administration Branch, Fruit and Vegetable Division, AMS, USDA, P.O.
Box 96456, room 2523-S, Washington, DC 20090-6456, telephone 202-720-
2491, FAX 202-720-5698.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement and Order No. 956 (7 CFR part 956)
[[Page 39051]]
regulating the handling of Sweet Onions grown in the Walla Walla Valley
of Southeast Washington and Northeast Oregon, hereinafter referred to
as the ``order.'' The order is effective under the Agricultural
Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674),
hereinafter referred to as the ``Act.''
The Department is issuing this rule in conformance with Executive
Order 12866.
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. Under the marketing order now in effect, Walla Walla
Sweet Onion handlers are subject to assessments. Funds to administer
the order are derived from such assessments. It is intended that the
assessment rate as issued herein will be applicable to all assessable
onions beginning June 1, 1996, and continuing until amended, suspended,
or terminated. This rule will not preempt any State or local laws,
regulations, or policies, unless they present an irreconcilable
conflict with this rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with the Secretary a
petition stating that the order, any provision of the order, or any
obligation imposed in connection with the order is not in accordance
with law and request a modification of the order or to be exempted
therefrom. Such handler is afforded the opportunity for a hearing on
the petition. After the hearing the Secretary would rule on the
petition. The Act provides that the district court of the United States
in any district in which the handler is an inhabitant, or has his or
her principal place of business, has jurisdiction to review the
Secretary's ruling on the petition, provided an action is filed not
later than 20 days after the date of the entry of the ruling.
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Agricultural Marketing Service (AMS) has considered the
economic impact of this rule on small entities.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and the rules issued thereunder, are unique in
that they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 50 producers of Walla Walla Sweet Onions in
the production area and approximately 30 handlers subject to regulation
under the marketing order. Small agricultural producers have been
defined by the Small Business Administration (13 CFR 121.601) as those
having annual receipts of less than $500,000, and small agricultural
service firms are defined as those whose annual receipts are less than
$5,000,000. The majority of Walla Walla Sweet Onion producers and
handlers may be classified as small entities.
The Walla Walla Sweet Onion marketing order provides authority for
the Committee, with the approval of the Department, to formulate an
annual budget of expenses and collect assessments from handlers to
administer the program. The members of the Committee are producers and
handlers of Walla Walla Sweet Onions. They are familiar with the
Committee's needs and with the costs for goods and services in their
local area and are thus in a position to formulate an appropriate
budget and assessment rate. The assessment rate is formulated and
discussed in a public meeting. Thus, all directly affected persons have
an opportunity to participate and provide input.
The Committee met on March 12, 1996, and unanimously recommended
1996-97 expenditures of $114,000 and an assessment rate of $0.19 per
50-pound bag or equivalent of onions. In comparison, last year's
budgeted expenditures were $72,000. The assessment rate of $0.19 is
$0.07 higher than last year's established rate. Major expenditures
recommended by the Committee for the 1996-97 year include $34,000 for
administrative expenses, $62,000 for research and promotion, and $9,000
for compliance. Budgeted expenses for these items in 1995-96 were
$28,000, $22,000, and $9,000, respectively.
The assessment rate recommended by the Committee was derived by
dividing anticipated expenses by expected shipments of Walla Walla
Sweet Onions. Onion shipments for the year are estimated at 600,000 50-
pound bags which should provide $114,000 in assessment income, which
will be adequate to cover budgeted expenses.
An interim final rule regarding this action was published in the
May 6, 1996, issue of the Federal Register (61 FR 20121). That interim
final rule added Sec. 956.202 to establish an assessment rate for the
Committee. That rule provided that interested persons could file
comments through June 5, 1996. No comments were received.
While this rule will impose some additional costs on handlers, the
costs are in the form of uniform assessments on all handlers. Some of
the additional costs may be passed on to producers. However, these
costs will be offset by the benefits derived by the operation of the
marketing order. Therefore, the AMS has determined that this rule will
not have a significant economic impact on a substantial number of small
entities.
The assessment rate established in this rule will continue in
effect indefinitely unless modified, suspended, or terminated by the
Secretary upon recommendation and information submitted by the
Committee or other available information.
Although this assessment rate is effective for an indefinite
period, the Committee will continue to meet prior to or during each
fiscal period to recommend a budget of expenses and consider
recommendations for modification of the assessment rate. The dates and
times of Committee meetings are available from the Committee or the
Department. Committee meetings are open to the public and interested
persons may express their views at these meetings. The Department will
evaluate Committee recommendations and other available information to
determine whether modification of the assessment rate is needed.
Further rulemaking will be undertaken as necessary. The Committee's
1996-97 budget and those for subsequent fiscal periods will be reviewed
and, as appropriate, approved by the Department.
After consideration of all relevant material presented, including
the information and recommendation submitted by the Committee and other
available information, it is hereby found that this rule, as
hereinafter set forth, will tend to effectuate the declared policy of
the Act.
This final rule also corrects an error in the interim final rule
published May 6, 1996 (61 FR 20121). On page 20122, the note
immediately following amendatory instruction 2 incorrectly states that
Sec. 956.202 will not appear in the annual Code of Federal Regulations.
Pursuant to 5 U.S.C. 553, it is also found and determined that good
cause exists for not postponing the effective date of this rule until
30 days after publication in the Federal Register because: (1) The
Committee needs to have sufficient funds to pay its expenses which are
incurred on a continuous basis; (2) the 1996-97 fiscal period began on
June 1, 1996, and the marketing order requires that the rate of
assessment for each fiscal period apply to all assessable onions
handled during such fiscal period; (3) handlers are aware of this
action which was
[[Page 39052]]
unanimously recommended by the Committee at a public meeting and is
similar to the assessment rate action issued last year; and (4) an
interim final rule was published on this action and provided for a 30-
day comment period, and no comments were received.
List of Subjects in 7 CFR Part 956
Marketing agreements, Onions, Reporting and recordkeeping
requirements.
PART 956--SWEET ONIONS GROWN IN THE WALLA WALLA VALLEY OF SOUTHEAST
WASHINGTON AND NORTHEAST OREGON
The authority citation for 7 CFR part 956 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
Accordingly, the interim final rule amending 7 CFR part 956 which
was published at 61 FR 20122 on May 6, 1996, is adopted with the
following correction to the note immediately following amendatory
instruction 2. The note should read:
This section will appear in the annual Code of Federal Regulations.
Dated: July 22, 1996.
Sharon Bomer Lauritsen,
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 96-18997 Filed 7-25-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-18987 General Services Administration Acquisition Regulation; Implementation of FAC 90-39 and Miscellaneous Changes
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39088-39089]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18987]
=======================================================================
-----------------------------------------------------------------------
GENERAL SERVICES ADMINISTRATION
48 CFR Parts 506, 547 and 552
[ADP 2800.12A, CHGE 72]
RIN 3090-AF97
General Services Administration Acquisition Regulation;
Implementation of FAC 90-39 and Miscellaneous Changes
AGENCY: Office of Acquisition Policy, GSA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The General Services Administration Acquisition Regulation
(GSAR) is amended to implement a portion of FAC 90-39 which amended the
Federal Acquisition Regulation (FAR) to revise the approval levels for
the justification of other than full and open competition and to make
editorial changes.
EFFECTIVE DATE: July 31, 1996.
FOR FURTHER INFORMATION CONTACT:
Ed McAndrew, Office of GSA Acquisition Policy, (202) 501-1224.
SUPPLEMENTARY INFORMATION:
A. Public Comments
This rule was not published in the Federal Register for public
comment because it merely revises the GSAR to conform to the FAR as
amended by FAC 90-39 and to make editorial changes.
B. Executive Order 12866
This rule was not submitted to the Office of Management and Budget
for review because it is not a significant rule as defined in Executive
Order 12866, Regulatory Planning and Review.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act does not apply because this rule is
not a significant revision as defined in FAR 1.501-1.
D. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the GSAR do not impose recordkeeping or information collection
requirements, or otherwise collect information from offerors,
contractors or members of the public that require approval of the
Office of Management and Budget under 44 U.S.C. 3501 et seq.
E. Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule under 5 U.S.C. 804. The rule relates
to procedures of the agency.
List of Subjects in 48 CFR Parts 506, 547 and 552
Government procurement.
Accordingly, 48 CFR Parts 506, 547 and 552 are amended as follows:
1. The authority citation for 48 CFR Parts 506, 547 and 552 are
amended as follows:
Authority: 40 U.S.C. 486(c).
PART 506--COMPETITION REQUIREMENTS
506.001 [Removed]
2. Section 506.001 is removed
506.302-1 [Amended]
3. Section 506.302-1 is amended by removing ``Office of GSA
Acquisition Policy (VP)'' and inserting ``GSA Acquisition Policy
Division (MVP)'' in the second sentence.
506.303-1 [Amended]
4. Section 506.303-1 is amended by removing paragraph (a), by
removing the paragraph ``(b)'' designation, and by inserting ``Deputy''
before ``Associate Administrator''.
506.303-2 [Removed]
5. Section 506.303-2 is removed.
506.304 [Removed]
6. Section 506.304 is removed.
[[Page 39089]]
PART 547--TRANSPORTATION
547.303-1 [Amended]
7. Section 547.303-1 is amended in paragraph (b)(3) by removing
``FAR 42.1403-2'' and inserting ``FAR 42.1403.''
PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
8. Alternate I of the provision at Section 552.219-74 is revised to
read as follows:
552.219-74 Goals for Subcontracting Plan.
* * * * *
Alternate I (DEC 1995)
The Contracting Officer, as prescribed in 519.703(c), shall
delete paragraph (b) of the basic provision and redesignate
paragraphs (c) and (d) as paragraphs (b) and (c).
Dated: July 19, 1996.
Ida M. Ustad,
Deputy Associate Administrator for Acquisition Policy.
[FR Doc. 96-18987 Filed 7-25-96; 8:45 am]
BILLING CODE 6820-61-M
Complete official Federal Register PDF
FR Doc. 96-18983 Groundfish of the Gulf of Alaska; Pacific Ocean Perch in the Central Regulatory Area
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39099-39100]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18983]
-----------------------------------------------------------------------
[[Page 39100]]
DEPARTMENT OF COMMERCE
50 CFR Part 679
[Docket No. 960129018-6018-01; I.D. 072296A]
Groundfish of the Gulf of Alaska; Pacific Ocean Perch in the
Central Regulatory Area
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Inseason adjustment; request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS issues an inseason adjustment prohibiting retention of
rockfish species of the genera Sebastes and Sebastolobus by vessels
using trawl gear in the Central Regulatory Area of the Gulf of Alaska
(GOA). This action is necessary to prevent overfishing of Pacific ocean
perch (POP).
EFFECTIVE DATE: 1200 hours, Alaska local time (A.l.t.), July 22, 1996,
until 2400 hours, A.l.t., December 31, 1996. Comments must be received
at the following address no later than 4:30 p.m., A.l.t., August 6,
1996.
ADDRESSES: Comments may be sent to Ronald J. Berg, Chief, Fisheries
Management Division, Alaska Region, NMFS, P.O. Box 21668, Juneau, AK
99802, Attn. Lori Gravel, or be delivered to the fourth floor of the
Federal Building, 709 West 9th Street, Juneau, AK.
FOR FURTHER INFORMATION CONTACT: Mary Furuness, 907-586-7228.
SUPPLEMENTARY INFORMATION: The groundfish fishery in the GOA exclusive
economic zone is managed by NMFS according to the Fishery Management
Plan for Groundfish of the GOA (FMP) prepared by the North Pacific
Fishery Management Council under authority of the Magnuson Fishery
Conservation and Management Act (Magnuson Act). Fishing by U.S. vessels
is governed by regulations implementing the FMP at subpart H of 50 CFR
part 600 and 50 CFR part 679.
The Magnuson Act requires that conservation and management measures
prevent overfishing. The 1996 overfishing level for POP in the Central
Regulatory Area of the GOA was established by the Final 1996 Harvest
Specifications of Groundfish (61 FR 4304, February 5, 1996) as 4,870
metric tons (mt), the acceptable biological catch as 3,860 mt., and the
total allowable catch level as 3,333 mt. As of July 13, 1996, 4,530 mt
of POP have been caught.
NMFS closed directed fishing for POP on July 11, 1996 (61 FR 37225,
July 17, 1996) and prohibited retention of POP on July 15, 1996, (61 FR
37700, July 19, 1996). Substantial trawl fishing effort will be
directed at remaining amounts of groundfish in the GOA during 1996.
These fisheries can have significant bycatch of POP.
The Director, Alaska Region, NMFS, has determined, in accordance
with Sec. 679.25(a)(1)(i) and (a)(2)(iii), that closing the season by
prohibiting retention of rockfish species of the genera Sebastes and
Sebastolobus by vessels using trawl gear is necessary to prevent
overfishing of POP, and is the least restrictive measure to achieve
that purpose. Without this prohibition of retention, significant
incidental catch of POP would occur by trawl vessels targeting rockfish
and seeking to maximize retainable amounts of rockfish under the
maximum retainable bycatch amounts Sec. 679.20(e).
Therefore, NMFS is requiring that further catches of rockfish
species of the genera Sebastes and Sebastolobus by vessels using trawl
gear in the Central Regulatory Area of the GOA be treated as prohibited
species in accordance with Sec. 679.21(b)(2).
The Assistant Administrator for Fisheries, NOAA, finds for good
cause that providing prior notice and public comment or delaying the
effective date of this action is impracticable and contrary to the
public interest. Immediate effectiveness is necessary to prevent
overfishing of POP in the Central Regulatory Area of the GOA. Under
Sec. 679.25(c)(1)(ii), interested persons are invited to submit written
comments on this action to the above address by August 6, 1996.
Classification
This action is taken under Sec. 679.20 and is exempt from OMB
review under E.O. 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: July 22, 1996.
Richard W. Surdi,
Acting Director, Office of Fisheries Conservation and Management,
National Marine Fisheries Service.
[FR Doc. 96-18983 Filed 7-22-96; 4:27 pm]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-18894 Centralized Examination Stations; Immediate Suspension or Permanent Revocation as Operator Upon Indictment for any Felony
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39070-39071]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18894]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
Customs Service
19 CFR Part 118
[T.D. 96-57]
RIN 1515-AB83
Centralized Examination Stations; Immediate Suspension or
Permanent Revocation as Operator Upon Indictment for any Felony
AGENCY: Customs Service, Treasury.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document amends the Customs Regulations to enable Customs
port directors to suspend immediately operations at a Centralized
Examination Station (CES) whenever the operator, entity, or other
person exercising substantial ownership or control over the operator is
indicted for, convicted of, or has committed acts which would
constitute any felony. This document also makes it more specific that a
CES operator's failure to follow the terms of the CES written agreement
constitutes a ground for proposed permanent revocation of the CES and
cancellation of the written agreement to operate the facility. This
action is taken in order to protect the public interest and to promote
public confidence concerning the integrity of the CES program.
EFFECTIVE DATE: August 26, 1996.
FOR FURTHER INFORMATION CONTACT: Linda Walfish, Office of Field
Operations, Trade Compliance (202) 927-1167.
SUPPLEMENTARY INFORMATION:
Background
In T.D. 93-6 (58 FR 5596) Customs amended the Customs Regulations
(19 CFR Chapter 1) to create a new Part 118 that set forth the
regulatory framework for the establishment, operation, and termination
of Centralized Examination Stations (CESs). A CES is a privately-
operated facility, not in the charge of a Customs officer, at which
imported merchandise is made available to Customs officers for physical
examination. Regarding the termination of CESs, Customs stated in T.D.
93-6 that while immediate revocation and cancellation for a criminal
act should not be limited to cases involving an actual conviction or
admission, the only criminal offenses which should result in an
immediate revocation and cancellation would be those which involved
theft, smuggling, or a theft-connected crime.
On further consideration of this issue, Customs published a
document in the Federal Register (61 FR 1877) on January 24, 1996,
proposing to amend the Customs Regulations to enable Customs port
directors to immediately suspend operations at a CES whenever the
operator, entity, or other person exercising substantial ownership or
control over the operator is indicted for, convicted of, or has
committed acts which would constitute any felony. The notice of
proposed rulemaking also sought to make it more specific that a CES
operator's failure to follow the terms of the CES written agreement
constitutes a ground for proposed permanent revocation of the CES and
cancellation of the written agreement to operate the facility. The
regulatory amendments proposed were promulgated in order to protect the
public interest and to promote public confidence concerning the
integrity of the CES program. The notice proposed to amend Sec. 118.21,
which provides for the revocation of selection and cancellation of the
written agreement to operate a CES. Additional, conforming changes were
also proposed to Secs. 118.0, 118.22, and 118.23. The document
solicited comments concerning these changes.
The comment period closed on March 25, 1996. Only one comment was
received and it was from a Customs field office. Because the comment is
beyond the scope of the proposal, it will not be discussed in this
document and will be addressed through another forum. After further
consideration of the proposal, Customs has decided to adopt the
proposed regulatory amendments as a final rule without substantive
change.
Regulatory Flexibility Act
Pursuant to provisions of the Regulatory Flexibility Act (5 U.S.C.
601 et seq.), it is certified that the amendments will not have a
significant economic impact on a substantial number of small entities,
as the current number of centralized examination station operators is
small, i.e., less than 200, and the regulation only will affect those
who commit felonies or fail to follow the terms of their agreement.
Accordingly, the amendments are not subject to the regulatory analysis
or other requirements of 5 U.S.C. 603 and 604.
Executive Order 12866
This document does not meet the criteria for a ``significant
regulatory action'' as defined in E.O. 12866.
Drafting Information
The principal author of this document was Gregory R. Vilders,
Attorney, Regulations Branch, U.S. Customs Service. However, personnel
from other offices participated in its development.
List of Subjects in 19 CFR Part 118
Administrative practice and procedure, Customs duties and
inspection, Examination stations, Imports, Licensing, Reporting and
recordkeeping requirements.
Amendment to the Regulations
For the reasons stated above, part 118, Customs Regulations (19 CFR
part 118), is amended as set forth below:
PART 118--CENTRALIZED EXAMINATION STATIONS
1. The authority citation for part 118 continues to read as
follows:
Authority: 19 U.S.C. 66, 1499, 1623, 1624.
2. In Sec. 118.0, the second sentence is revised to read as
follows:
Sec. 118.0 Scope.
* * * It covers the application process, the responsibilities of
the
[[Page 39071]]
person or entity selected to be a CES operator, the written agreement
to operate a CES facility, the port director's discretion to
immediately suspend a CES operator's or entity's selection and the
written agreement to operate the CES or to propose the permanent
revocation of a CES operator's or entity's selection and cancellation
of the written agreement for specified conduct, and the appeal
procedures to challenge an immediate suspension or proposed revocation
and cancellation action. * * *.
3. In Sec. 118.21:
(a) The heading is revised and introductory text is added;
(b) Paragraph (a) is revised;
(c) Paragraph (b)(1) is amended by adding the words ``to comply
with any of'' before the words ``the provisions of'';
(d) A new paragraph (b)(6) is added; and
(e) A new paragraph (c) is added.
The revisions and additions read as follows:
Sec. 118.21 Temporary suspension; permanent revocation of selection
and cancellation of agreement to operate a CES.
The port director may immediately suspend or propose permanent
revocation and cancellation of CES operations for cause as provided in
this section.
(a) Immediate suspension. The port director may immediately
suspend, for a temporary period of time or until revocation and
cancellation proceedings are concluded pursuant to Sec. 118.23, a CES
operator's or entity's selection and the written agreement to operate
the CES if:
(1) The selection and written agreement were obtained through fraud
or the misstatement of a material fact; or
(2) The CES operator or an officer of a corporation which is a CES
operator or a person the port director determines is exercising
substantial ownership or control over such operator or officer is
indicted for, convicted of, or has committed acts, which would
constitute a felony, or a misdemeanor involving theft or a theft-
connected crime. In the absence of an indictment or conviction, the
port director must have probable cause to believe the proscribed acts
occurred.
(b) * * *
(6) The CES operator or an officer of a corporation which is a CES
operator or a person the port director determines is exercising
substantial ownership or control over such operator or officer is
indicted for, convicted of, or has committed acts, which would
constitute any of the offenses listed under paragraph (a) of this
section. Where adverse action is initiated by the port director
pursuant to paragraph (a) of this section and continued under this
paragraph, the suspension of CES activities remains in effect through
the appeal procedures provided under Sec. 118.23.
(c) Circumstance of change in employment not a bar to adverse
action. Any change in the employment status of a corporate officer
(for example, discharge, resignation, demotion, or promotion) prior to
indictment or conviction or after committing any acts which would
constitute the culpable behavior described under paragraph (a) of this
section, will not preclude application of this section, but may be
taken into account by the port director in exercising discretion to
take adverse action. If the person whose employment status changed
remains in a substantial ownership, control, or beneficial relationship
with the CES operator, this factor will also be considered in
exercising discretion under this section.
4. Section 118.22 is revised to read as follows:
Sec. 118.22 Notice of immediate suspension or proposed revocation and
cancellation action.
Adverse action pursuant to the provisions of Sec. 118.21(a) or (b)
is initiated when the port director serves written notice on the
operator or entity selected to operate the CES. The notice shall be in
the form of a statement specifically setting forth the grounds for the
adverse action and shall inform the operator of the appeal procedures
under Sec. 118.23 of this part.
5. Section 118.23 is revised to read as follows:
Sec. 118.23 Appeal to the Assistant Commissioner; procedure; status of
CES operations.
(a) Appeal to the Assistant Commissioner. Appeal of a port
director's decision under Sec. 118.21(a) or (b) must be filed with the
Assistant Commissioner, Office of Field Operations, within 10 calendar
days of receipt of the written notice of the adverse action. The appeal
shall be filed in duplicate and shall set forth the CES operator's or
entity's responses to the grounds specified by the port director in his
written notice letter for the adverse action initiated. The Assistant
Commissioner, Office of Field Operations, or his designee, shall render
a written decision to the CES operator or entity, stating the reasons
for the decision, by letter mailed within 30 working days following
receipt of the appeal, unless the period for decision is extended with
due notification to the CES operator or entity.
(b) Status of CES operations during appeal. During this appeal
period, an immediate suspension of a CES operator's or entity's
selection and written agreement pursuant to Sec. 118.21(a) of this part
shall remain in effect. A proposed revocation of a CES operator's or
entity's selection and cancellation of the written agreement pursuant
to Sec. 118.21(b)(1) through (5) of this part shall not take effect
unless the appeal process under this paragraph has been concluded with
a decision adverse to the operator.
(c) Effect of suspension or revocation. Once a suspension or
revocation action takes effect, the CES operator must cease CES
operations. However, when CES operations are suspended or revoked and
cancelled by Customs, it is the CES operator's responsibility to ensure
that merchandise already at the CES is properly consigned to another
location for inspection, as directed by the importer and approved by
the port director.
George J. Weise,
Commissioner of Customs.
Approved: June 8, 1996.
John P. Simpson,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 96-18894 Filed 7-25-96; 8:45 am]
BILLING CODE 4820-02-P
Complete official Federal Register PDF
FR Doc. 96-18887 Amendment of FIRMR Provisions Relating to GSA's Role in Screening Excess and Exchange/Sale Federal Information Processing (FIP) Equipment
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39081-39083]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18887]
=======================================================================
-----------------------------------------------------------------------
GENERAL SERVICES ADMINISTRATION
41 CFR Parts 201-23 and 201-24
[FIRMR Amendment 8]
RIN 3090-AF32
Amendment of FIRMR Provisions Relating to GSA's Role in Screening
Excess and Exchange/Sale Federal Information Processing (FIP) Equipment
AGENCY: Information Technology Service, GSA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document amends the Federal Information Resources
Management Regulation (FIRMR) to allow Federal agencies to screen and
transfer all excess and exchange/sale FIP equipment.
Currently, the FIRMR requires Federal agencies to request GSA to
interagency screen and transfer excess equipment that is not outdated
and has an original acquisition cost (OAC) per component of $1 million
or more.
EFFECTIVE DATE: August 26, 1996.
FOR FURTHER INFORMATION CONTACT:
R. Stewart Randall, GSA, Office of Policy, Planning and Evaluation,
Policy and Regulations Division (MKR), 18th and F Streets, NW., Room
3224, Washington, DC 20405, telephone FTS/Commercial (202) 501-4469 (v)
or (202) 501-4469 (tdd), or Internet ([email protected]).
SUPPLEMENTARY INFORMATION: (1) All comments received in response to the
proposed rule were reviewed and, where appropriate, incorporated in
this rule.
(2) Explanation of the changes being made in this issuance are
shown below:
(a) Section 201-23.000 ``Scope of part'' is revised by removing
paragraphs (b), (c), and (d) to more succinctly describe the entire
contents of this revised part.
(b) Section 201-23.001 paragraph (a)(2) is revised and paragraph
(a)(4) is deleted to remove the reference to the GSA Excess FIP
Equipment Program. Agencies will no longer be required to submit to GSA
information about their excess FIP equipment with an OAC above $1
million for GSA to do interagency screening. It is not necessary for
GSA to continue to operate this program on a centralized basis.
Accordingly, the requirement for GSA to be directly involved in
interagency screening and transfer of excess FIP equipment is removed
from the FIRMR.
[[Page 39082]]
(c) Section 201-23.001 paragraph (b) is deleted to remove the
reference to FIRMR Bulletin C-2, which is referenced elsewhere in this
rule. Section 201-23.001 paragraph (c) is redesignated as paragraph
(b).
(d) In Section 201-23.002, the sentence ``Agencies may interagency
screen and transfer excess FIP equipment without GSA approval'' is
added at the end of paragraph c.
(e) Paragraph (b) of section 201-23.003 is redesignated as (c) and
a new paragraph (b) is added. In the newly designated section 201-
23.003 paragraph (c)(1), the word ``internal'' is removed because it is
redundant in this context. The words ``within the agency'' are added at
the end of the paragraph to distinguish these procedures for
interagency screening from those GSA will require.
(f) Section 201-23.003(c) is redesignated as paragraph (d) and is
completely revised to remove the mandatory reporting requirement for
agencies to submit equipment with an OAC of $1 million or more to GSA
or interagency screening purposes. The section now shows that agencies
must offer to other Federal agencies excess FIP equipment with an OAC
of $1 million or more in accordance with guidelines that will be
published in FIRMR Bulletin C-2.
(g) Section 201-23.003(d) is redesignated as paragraph (e) and is
revised to remove words indicating GSA's former role in interagency
screening of agencies' excess FIP equipment.
(h) Paragraph (h) is added to section 201-23.003 to show that an
agency may request GSA to review another agency's decision to transfer
excess FIP equipment.
(i) Section 201-24.202 referencing the GSA Excess FIP Program as a
mandatory for consideration program will be removed because changes to
part 201-23 and FIRMR Bulletin C-2 will make the references no longer
valid.
(3) GSA has determined that this rule is not a significant rule for
the purposes of Executive Order 12866 of September 30, 1993, because it
is not likely to result in any of the impacts noted in Executive Order
12866, affect the rights of specified individuals, or raise issues
arising from the policies of the Administration. GSA has based all
administrative decisions underlying this rule on adequate information
concerning the need for and consequences of this rule; has determined
that the potential benefits to society from this rule outweigh the
potential costs; has maximized the net benefits; and has chosen the
alternative approach involving the least net cost to society.
List of Subjects in 41 CFR Parts 201-23 and 201-24
Archives and records, Computer technology, Federal information
processing resources activities, Government procurement, Property
management, Records management, and Telecommunications.
Accordingly 41 CFR chapter 201 is amended as follows:
1. Part 201-23 is revised to read as follows:
PART 201-23--DISPOSITION
Sec.
201-23.000 Scope of part.
201-23.001 General.
201-23.002 Policies.
201-23.003 Procedures.
Authority: 40 U.S.C. 486(c) and 751(f).
Sec. 201-23.000 Scope of part.
This part prescribes policies and procedures to be followed by
agencies for disposing of Government-owned Federal information
processing (FIP) equipment and software that is no longer needed for
the purpose for which it was acquired.
Sec. 201-23.001 General.
(a) Government-owned FIP equipment that is no longer needed for the
purpose for which it was acquired is either--
(1) Reassigned within the agency;
(2) Declared excess to the agency's needs and made available for
transfer to another agency;
(3) Exchanged or sold as part of a transaction to acquire
replacement FIP equipment; or
(4) Declared surplus and made available for donation.
(b) FIP software that is no longer needed for the purpose for which
it was acquired is either--
(1) Reassigned within the agency consistent with the limitations of
any applicable license; or
(2) Otherwise disposed of consistent with the limitations of any
applicable license.
Sec. 201-23.002 Policies.
Agencies shall--
(a) Use FIP equipment or FIP software that is available for
reassignment within the agency or by transfer from another agency when
such use is the most advantageous alternative to satisfy the agency's
requirements.
(b) Make available for reassignment within the agency FIP equipment
that is not outdated and that is no longer needed for the purpose for
which it was acquired.
(c) Make available for interagency screening and transfer to
another agency, excess FIP equipment that is not outdated and has an
original acquisition cost (OAC) per component of $1 million or more.
Interagency transfer of FIP equipment that is not outdated with an OAC
per component of less than $1 million, is permitted if the holding
agency learns of a potential user outside of the screening process.
Agencies may interagency screen and transfer excess FIP equipment
without GSA approval.
(d) Make available for surplus donation or subsequent sale, excess
FIP equipment not exchanged, sold, reassigned or transferred.
(e) Consistent with the limitations of any applicable license--
(1) Make available for reassignment within the agency FIP software
that is no longer needed for the purpose for which it was acquired;
(2) Make available for interagency transfer, excess FIP software
not exchanged or sold, if the holding agency learns of a potential user
outside of the screening process (GSA does not require interagency
screening of FIP software);
(3) For excess FIP software not reassigned, transferred, exchanged,
or sold, either:
(i) Return it to the licensor; or
(ii) Destroy it after a duly authorized agency official determines
in writing that destruction is the most cost-effective disposal
approach.
Sec. 201-23.003 Procedures.
(a) Each agency head shall designate an agency point of contact for
managing the disposition of FIP equipment and software. Each agency
shall submit the name, address, and phone number of this individual to
the General Services Administration/MKA, 18th and F Streets NW.,
Washington, DC 20405.
(b) GSA will convene meetings with agency points of contacts
periodically to discuss emerging issues relating to the disposition of
excess FIP resources.
(c) Agencies shall--
(1) Establish procedures for the reassignment of FIP equipment and
software within the agency; and
(2) Obtain approval from the agency DSO before reassigning outdated
FIP equipment.
(d) Agencies shall offer excess FIP equipment that is not outdated
and has an OAC per component of $1 million or more to other Federal
agencies in accordance with FIRMR Bulletin C-2.
(e) Agencies may conduct exchange/sale transactions of FIP
equipment and software not transferred to another agency without GSA
approval. (Exchange/sale transactions for FIP equipment may be
initiated in parallel
[[Page 39083]]
with interagency screening, but screening of exchange/sale transactions
with an OAC per component of $1 million or more shall be completed
prior to concluding an exchange/sale transaction.) When an agency
determines that FIP equipment will be replaced by exchanging or selling
it, the agency shall follow the contracting policies and procedures in
part 201-39 and the Federal Acquisition Regulation (FAR) (48 CFR
chapter 1) and the policies and procedures on exchange/sale contained
in 41 CFR part 101-46. FIP software transactions must be consistent
with the limitations of any applicable license.
(f) Agencies shall make available for surplus donation or
subsequent sale, in accordance with 41 CFR parts 101-44 and 101-45,
excess FIP equipment not exchanged, sold, reassigned, or transferred.
(g) Agencies shall apply the policies and procedures of this part
201-23 to FIP equipment used by grantees and contractors when FIP
equipment is--
(1) Acquired by the contractor or grantee under a contract or grant
and the terms vest title in the Government or the Government is
obligated or has the option to take over title;
(2) Furnished to the grantee or contractor by the Government
(Transfer of excess FIP equipment to agency project grantees shall be
conducted in accordance with 41 CFR 101-43.314.); or
(3) Operated by the grantee or contractor as part of a Government-
owned or Government-controlled facility.
(h) Agencies may request GSA to review another agency's decision to
transfer excess FIP equipment. Requests shall be sent to the General
Services Administration/MKA, 18th and F Streets NW., Washington, DC
20405.
PART 201-24--GSA SERVICES AND ASSISTANCE
2. The authority citation for part 201-24 continues to read as
follows:
Authority: 40 U.S.C. 486(c) and 751(f).
Sec. 201-24.202 [Removed and reserved]
3. Section 201-24.202 is removed and reserved.
Dated: July 10, 1996.
William R. Ratchford,
Acting Administrator of General Services.
[FR Doc. 96-18887 Filed 7-25-96; 8:45 am]
BILLING CODE 6820-25-M
Complete official Federal Register PDF
FR Doc. 96-18839 National Oil and Hazardous Substances Contingency Plan; National Priorities List Update
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39080-39081]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18839]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 300
[FRL-5541-2]
National Oil and Hazardous Substances Contingency Plan; National
Priorities List Update
AGENCY: Environmental Protection Agency.
ACTION: Notice of Deletion of the Alaskan Battery Enterprises Site from
the National Priorities List.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) announces the
deletion of the Alaskan Battery Enterprises Site, located in Fairbanks,
Alaska from the National Priorities List (NPL). The NPL is Appendix B
of 40 CFR part 300 which is the National Oil and Hazardous Substances
Contingency Plan (NCP), which EPA promulgated pursuant to Section 105
of the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (CERCLA). EPA and the State of Alaska
Department of Environmental Conservation (ADEC) have determined that no
further cleanup under CERCLA is appropriate and that the selected
remedy has been protective of public health, welfare, and the
environment.
EFFECTIVE DATE: July 26, 1996.
FOR FURTHER INFORMATION CONTACT: Keith Rose, Site Manager, U.S.
Environmental Protection Agency, Region 10, 1200 6th Avenue, ECL-111,
Seattle, WA 98101, (206) 553-7721.
SUPPLEMENTARY INFORMATION: The site to be deleted from the NPL is:
Alaskan Battery Enterprises, Fairbanks, Alaska
A Notice of Intent to Delete for this site was published May 13,
1996, (61 FR 22004). The closing date for comments on the Notice of
Intent to Delete was June 12, 1996. EPA received one letter which
supported the proposed delisting of the site.
EPA identifies sites which appear to present a significant risk to
public health, welfare, or the environment and it maintains the NPL as
the list of those sites. Sites on the NPL may be the subject of
Hazardous Substance Response Trust Fund-financed remedial actions. Any
site deleted from the NPL remains eligible for Fund-financed remedial
actions in the unlikely event that conditions at the site warrant such
action. Section 300.425 of the NCP states that Fund-financed actions
may be taken at sites deleted from the NPL. Deletion of a site from the
NPL does not affect responsible party liability or impede Agency
efforts to recover costs associated with response efforts.
List of Subjects in 40 CFR Part 300
Environmental protection, Air pollution control, Chemicals,
Hazardous substances, Hazardous waste, Intergovernmental relations,
Penalties, Reporting and record keeping requirements, Superfund, Water
pollution control, Water supply.
Dated: July 10, 1996.
Chuck Clarke,
Regional Administrator, Region 10.
For the reasons set out in the preamble, 40 CFR part 300 is amended
as follows:
[[Page 39081]]
PART 300--[AMENDED]
1. The authority citation for part 300 continues to read as
follows:
Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O.
12777, 56 FR 54757, 3 CFR 1991 Comp., p. 351; E.O. 12580, 52 FR
2923, 3 CFR, 1987 Comp., p. 193.
Appendix B--[Amended]
2. Table 1 of appendix B to part 300 is amended by removing the
site for ``Alaskan Battery Enterprises, Fairbanks N Star Borough,
Alaska''.
[FR Doc. 96-18839 Filed 7-25-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-18837 National Oil and Hazardous Substances Contingency Plan National Priorities List
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Page 39081]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18837]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 300
[FRL-5541-7]
National Oil and Hazardous Substances Contingency Plan National
Priorities List
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of deletion of Howe Valley Landfill Superfund Site,
Hardin County, Kentucky, from the National Priorities List.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) announces the
deletion of the Howe Valley Landfill Superfund Site in Hardin County,
Kentucky, from the National Priorities List (NPL), which is appendix B
of 40 CFR part 300 of the National Oil and Hazardous Substances
Contingency Plan (NCP). EPA and the Commonwealth of Kentucky have
determined that all appropriate Fund-financed responses under the
Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA), as amended, have been implemented and that no further cleanup
is appropriate. Moreover, EPA and the Commonwealth of Kentucky
determined that response actions conducted at the site to date have
been protective of public health, welfare, and the environment.
EFFECTIVE DATE: August 1, 1996.
FOR FURTHER INFORMATION CONTACT: Nestor Young, Remedial Project
Manager, U.S. EPA, Region 4, North Superfund Remedial Branch, 345
Courtland Street, N.E., Atlanta, GA 30365, (404) 347-7791, ext. 2023.
SUPPLEMENTARY INFORMATION: The site to be deleted from the NPL is: Howe
Valley Landfill Superfund Site, Hardin County, Kentucky.
A Notice of Intent to Delete for this site was published on March
28, 1996 at (61 FR 13794). The closing date for comments on the Notice
of Intent to Delete was April 30, 1996. EPA received one comment letter
from the Hardin County Water District No. 2 expressing concern about
possible contamination of Boutwell Spring. EPA responded by providing
groundwater sampling data that showed that no contaminants are present.
This letter and response are available through the EPA Region 4 public
docket located at EPA's Region 4 Office, 345 Courtland Street, N.E.,
Atlanta, Ga., 30365.
EPA identifies sites that appear to present a significant risk to
public health, welfare, or the environment and it maintains the NPL as
the list of those sites. Any site deleted from the NPL remains eligible
for Fund-financed remedial actions in the unlikely event that
conditions at the site warrant such action in the future. Section
300.425(e)(3) of the NCP states that Fund-financed actions may be taken
at sites deleted from the NPL. Deletion of a site from the NPL does not
affect responsible party liability or impede agency efforts to recover
costs associated with response efforts.
List of Subjects in 40 CFR Part 300
Environmental protection, Air pollution control, Chemicals,
Hazardous waste, Hazardous substances, Intergovernmental relations,
Penalties, Reporting and recordkeeping requirements, Superfund, Water
pollution control, Water supply.
Dated: July 11, 1996.
A. Stanley Meiburg,
Deputy Regional Administrator, U.S. EPA Region 4.
For the reasons set out in the preamble, 40 CFR part 300 is amended
as follows:
PART 300--[AMENDED]
The authority citation for part 300 continues to read as follows:
Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O.
12777, 56 FR 54757; 3 CFR 1991 Comp., p. 351; E.O. 12580, 52 FR
2923; 3 CFR, 1987 Comp., p. 193.
Appendix B--[Amended]
2. Table 1 of appendix B to part 300 is amended by removing the
site for Howe Valley Landfill, Howe County, Kentucky.
[FR Doc. 96-18837 Filed 7-25-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-18655 Board of Contract Appeals; Rules of Procedure for Travel and Relocation Expenses Cases
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39098-39099]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18655]
-----------------------------------------------------------------------
GENERAL SERVICES ADMINISTRATION
48 CFR Part 6104
RIN 3090-AG06
Board of Contract Appeals; Rules of Procedure for Travel and
Relocation Expenses Cases
AGENCY: Board of Contract Appeals, General Services Administration.
ACTION: Interim rule.
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SUMMARY: This document specifies the rules of procedure of the GSA
Board of Contract Appeals applicable to the Board's review of claims
made by federal civilian employees against the United States for
reimbursement of expenses incurred while on temporary duty travel or in
connection with relocation to a new duty station. The rules are
intended to implement section 211 of the Legislative Branch
Appropriations Act, 1996 (Pub. L. 104-53), which transfers certain
functions of the Comptroller General to the Office of Management and
Budget (OMB), and which OMB has delegated to the General Services
Administration. The Board requests written comments on the rules, which
will expire one year from the date of publication in the Federal
Register.
DATES: This rule is effective July 26, 1996. Comments must be submitted
on or before January 22, 1997.
ADDRESSES: Written comments concerning this interim rule may be mailed
to Margaret S. Pfunder, GSA Board of Contract Appeals, 18th and F
Streets, NW., Washington, DC 20405, or sent electronically by using the
following Internet address: Margaret.P[email protected].
FOR FURTHER INFORMATION CONTACT:
Margaret S. Pfunder, Deputy Chief Counsel, GSA Board of Contract
Appeals, (202) 501-0272.
SUPPLEMENTARY INFORMATION:
A. Regulatory Flexibility Act
The General Services Administration certifies that these revisions
will not have a significant economic impact on a substantial number of
small entities within the meaning of the Regulatory Flexibility Act (5
U.S.C. 601 et seq.).
B. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the proposed
revisions do not impose recordkeeping or information collection
requirements, or the collection of information from offerors,
contractors, or members of the public which require the approval of OMB
under 44 U.S.C. 501 et seq.
C. Background
Effective June 30, 1996, section 211 of the Legislative Branch
Appropriations Act, 1996 (Pub. L. 104-53), transfers certain functions
of the Comptroller General to the Director of the Office of Management
and Budget, and authorizes the Director to delegate any of those
functions to another agency or agencies. Effective the same date, the
Director delegated some of the functions contained in 31 U.S.C. 3702--
the authority to review claims made against the United States for
reimbursement of expenses incurred by federal civilian employees while
on official temporary duty travel or in connection with relocation to a
new duty station--to the Administrator of General Services, who
redelegated that function to the Chairman of the GSA Board of Contract
Appeals. In addition, the Administrator of General Services has
delegated to the Board the authority to adopt and issue rules necessary
for the resolution of these claims. This interim rule has been approved
by majority vote of the Board's members.
List of Subjects in 48 CFR Part 6104
Administrative practice and procedure, Government procurement,
Travel and transportation expenses.
For the reasons set out in the preamble, 48 CFR Part 6104 is added
to read as follows:
PART 6104--RULES OF PROCEDURE FOR TRAVEL AND RELOCATION EXPENSES
CASES
Sec.
6104.1 Scope [Rule 401].
6104.2 Filing claims [Rule 402].
6104.3 Response to claim [Rule 403].
6104.4 Reply to agency response [Rule 404].
6104.5 Proceedings [Rule 405].
6104.6 Decisions [Rule 406].
6104.7 Reconsideration of Board decision [Rule 407].
6104.8 Payment of successful claims [Rule 408].
Authority: Sec. 211, Pub. L. 104-53, 109 Stat. 535; 31 U.S.C.
3702; 41 U.S.C. 601-613.
Sec. 6104.1 Scope [Rule 401].
(a) Authority. Section 211 of the Legislative Branch Appropriations
Act, 1996, Pub. L. 104-53, transfers certain functions of the
Comptroller General to the Director of the Office of Management and
Budget, and authorizes the Director to delegate any of those functions
to another agency or agencies. The Director has delegate some of the
functions contained in 31 U.S.C. 3702 to the Administrator of General
Services, who has redelegated those functions to the General Services
Administration Board of Contract Appeals.
(b) Types of claims. These procedures are applicable to the review
of two types of claims made against the United States:
(1) Claims for reimbursement of expenses incurred while on official
temporary duty; and
(2) Claims for reimbursement of expenses incurred in connection
with relocation to a new duty station.
(c) Review of claims. Any claim for entitlement to travel or
relocation expenses must first be filed with the claimant's own
department or agency (the agency). The agency shall initially
adjudicate the claim. A claimant disagreeing with the agency's
determination may request review of the claim by the Board. The burden
is on the claimant to establish the timeliness of the claim, the
liability of the agency, and the claimant's right to payment. The Board
will issue the final decision on a claim based on the information
submitted by the claimant and the agency.
Sec. 6104.2 Filing claims [Rule 402].
(a) Filing claims. A claim may be sent to the Board in either of
the following ways:
(1) Claim filed by claimant. A claim shall be in writing and must
be signed by the claimant or by the claimant's attorney or authorized
representative. No particular form is required. The
[[Page 39099]]
request should describe the basis for the claim and state the amount
sought. The request should also include:
(i) The name, address, telephone number, and facsimile machine
number, if available, of the claimant;
(ii) The name, address, telephone number, and facsimile machine
number, if available, of the agency employee who denied the claim;
(iii) A copy of the denial of the claim; and
(iv) Any other information which the claimant believes the Board
should consider.
(2) Claim forwarded by agency on behalf of claimant. If an agency
has denied a claim for travel or relocation expenses, it may, at the
claimant's request, forward the claim to the Board. The agency shall
include the information required by Sec. 6104.3.
(b) Notice of docketing. A request for review will be docketed by
the Office of the Clerk of the Board, and a written notice of docketing
will be sent promptly to the claimant and the agency contact. The
notice of docketing will identify the judge to whom the claim has been
assigned.
(c) Service of copy. The claimant shall send to the agency employee
identified in paragraph (a)(1)(ii) of this section copies of all
material provided to the Board. If an agency forwarded a claim to the
Board, it shall, at the same time, send to the claimant a copy of all
material sent to the Board.
Sec. 6104.3 Response to claim [Rule 403].
(a) When a claim has been filed with the Board by a claimant,
within 30 calendar days after docketing by the Board, the agency shall
submit to the Board:
(1) A simple, concise, and direct statement of its response to the
claim;
(2) Citations to applicable statutes, regulations, and cases; and
(3) Any additional information deemed necessary to the Board's
review of the claim.
(b) A copy of these submissions shall also be sent to the claimant.
Sec. 6104.4 Reply to agency response [Rule 404].
If the claimant wishes to reply to the agency response, it must
inform the Board within 10 calendar days after receiving the response.
If the claim has been forwarded by the agency, the claimant shall have
10 calendar days from the time the claim is docketed by the Board to
request the opportunity to reply. The judge will establish the time
frame for submission of the reply.
Sec. 6104.5 Proceedings [Rule 405].
(a) Conferences. The judge will not engage in ex parte
communications involving the underlying facts or merits of the claim.
The judge may hold a conference with the claimant and the agency
contact, at any time, for any purpose. The judge may provide the
participants a memorandum reflecting the results of a conference.
(b) Additional submissions. The judge may require the submission of
additional information at any time.
Sec. 6104.6 Decisions [Rule 406].
The judge will issue a written decision based upon the record,
which includes submissions by the claimant and the agency, and
information provided during conferences.
Sec. 6104.7 Reconsideration of Board decision [Rule 407].
(a) A request for reconsideration may be made by the claimant or
the agency. Such requests must be received by the Board within 15
calendar days after the date the decision was issued. The request for
reconsideration should state the reasons why the Board should consider
the request.
(b) Requests for reconsideration are not favored. Mere disagreement
with a decision or re-argument of points already made are not
sufficient grounds for reconsidering the decision.
Sec. 6104.8 Payment of successful claims [Rule 408].
The agency shall pay amounts the Board determines are due the
claimant.
Dated: July 18, 1996.
Stephen M. Daniels,
Chairman, GSA Board of Contract Appeals.
[FR Doc. 96-18655 Filed 7-25-96; 8:45 am]
BILLING CODE 6820-AL-M
Complete official Federal Register PDF
FR Doc. 96-18654 Rules of Procedure for Transportation Rate Cases
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39096-39098]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18654]
=======================================================================
-----------------------------------------------------------------------
GENERAL SERVICES ADMINISTRATION
Board of Contract Appeals
48 CFR Part 6103
RIN 3090-AG05
Rules of Procedure for Transportation Rate Cases
AGENCY: Board of Contract Appeals, General Services Administration.
ACTION: Interim rule.
-----------------------------------------------------------------------
SUMMARY: This document specifies the rules of procedure of the GSA
Board of Contract Appeals applicable to the Board's review of claims
made by a carrier or freight forwarder pursuant to 31 U.S.C.
3726(g)(1). The rules are intended to implement section 211 of
[[Page 39097]]
the Legislative Branch Appropriations Act, 1996 (Pub. L. 104-53), which
transfers certain functions of the Comptroller General to the Office of
Management and Budget (OMB), and which OMB has delegated to the General
Services Administration. The Board requests written comments on the
rules, which will expire one year from the date of publication in the
Federal Register.
DATES: This rule is effective July 26, 1996. Comments must be submitted
on or before January 22, 1997.
ADDRESSES: Written comments concerning this interim rule may be mailed
to Margaret S. Pfunder, GSA Board of Contract Appeals, 18th & F
Streets, N.W., Washington, DC 20405, or sent electronically by using
the following Internet address: Margaret.P[email protected].
FOR FURTHER INFORMATION CONTACT:
Margaret S. Pfunder, Deputy Chief Counsel, GSA Board of Contract
Appeals, (202) 501-0272.
SUPPLEMENTARY INFORMATION:
A. Regulatory Flexibility Act
The General Services Administration certifies that these revisions
will not have a significant economic impact on a substantial number of
small entities within the meaning of the Regulatory Flexibility Act (5
U.S.C. 601 et seq.).
B. Paperwork Reduction Act
The Paperwork Act does not apply because the proposed revisions do
not impose recordkeeping or information collection requirements, or the
collection of information from offerors, contractors, or members of the
public which require the approval of OMB under 44 U.S.C. 3501 et seq.
C. Background
Effective June 30, 1996, section 211 of the Legislative Branch
Appropriations Act, 1996 (Pub. L. 104-53), transfers certain functions
of the Comptroller General to the Director of the Office of Management
and Budget, and authorizes the Director to delegate any of those
functions to another agency or agencies. Effective the same date, the
Director delegated the function contained in 31 U.S.C. 3726(g)(1)--the
authority to review claims made by a carrier or freight forwarder--to
the Administrator of General Services, who redelegated that function to
the Chairman of the GSA Board of Contract Appeals. In addition, the
Administrator of General Services has delegated to the Board the
authority to adopt and issue rules necessary for the resolution of
these claims. This interim rule has been approved by majority vote of
the Board's members.
List of Subjects in 48 CFR Part 6103
Administrative practice and procedure, Freight forwarders,
Government procurement.
For the reasons set out in the preamble, 48 CFR Part 6103 is added
to read as follows:
PART 6103--RULES OF PROCEDURE FOR TRANSPORTATION RATE CASES
Sec.
6103.1 Scope [Rule 301].
6103.2 Filing claims [Rule 302].
6103.3 Responses to claims [Rule 303].
6103.4 Reply to OTA and agency responses [Rule 304].
6103.5 Proceedings [Rule 305].
6103.6 Decisions [Rule 306].
6103.7 Reconsideration of Board decision [Rule 307].
6103.8 Payment of successful claims [Rule 308].
Authority: Sec. 211, Pub. L. 104-53, 109 Stat. 535; 31 U.S.C.
3726(g)(1); 41 U.S.C. 601-613.
Sec. 6103.1 [Rule 301].
(a) Authority. Section 211 of the Legislative Branch Appropriations
Act, 1996, Public Law 104-53, transfers certain functions of the
Comptroller General to the Director of the Office of Management and
Budget, and authorizes the Director to delegate any of those functions
to another agency or agencies. The Director has delegated the function
contained in 31 U.S.C. 3726(g)(1) to the Administrator of General
Services, who has redelegated that function to the General Services
Administration Board of Contract Appeals.
(b) Type of claim; review of claim. These procedures are applicable
to the review of claims made by a carrier or freight forwarder pursuant
to 31 U.S.C. 3726(g)(1). The Board will issue the final agency decision
on a claim based on the information submitted by the claimant, the
General Services Administration Office of Transportation Audits (OTA),
and the department or agency (the agency) for which the services were
provided. The burden is on the claimant to establish the timeliness of
its claim, the liability of the agency, and the claimant's right to
payment.
Sec. 6103.2 Filing claims [Rule 302]
(a) Form. A claim shall be in writing and must be signed by the
claimant or by the claimant's attorney or authorized representative. No
particular form is required. The request should describe the basis for
the claim and state the amount sought. The request should also include:
(1) The name, address, telephone number, and facsimile machine
number, if available, of the claimant;
(2) The Government bill of lading or Government transportation
request number;
(3) The claimant's bill number;
(4) The Government voucher number and date of payment;
(5) The OTA claim number;
(6) The agency for which the services were provided; and
(7) Any other identifying information.
(b) Notice of docketing. A request for review will be docketed by
the Office of the Clerk of the Board, and a written notice of docketing
will be sent promptly to the claimant, the Director of OTA, and the
agency for which the services were provided. The notice of docketing
will identify the judge to who the claim has been assigned.
Sec. 6103.3 Responses to claims [Rule 303].
(a) Within 30 calendar days after docketing by the Board, OTA and
the agency for which the services were provided shall each submit to
the Board:
(1) A simple, concise, and direct statement of its response to the
claim;
(2) Citations to applicable statutes, regulations, and cases; and
(3) Any additional information deemed necessary to the Board's
review of the claim.
(b) A copy of these submissions shall also be sent to the claimant.
Sec. 6103.4 Reply to OTA and agency responses [Rule 304].
If the claimant wishes to reply to the OTA or agency responses it
must inform the Board within 10 calendar days after receiving the
responses. The judge will establish the time frame for submission of
the reply.
Sec. 6103.5 Proceeding [Rule 305].
(a) Conferences. The judge will not engage in ex parte
communications involving the underlying facts or merits of the claim.
The judge may hold a conference with the claimant, OTA, and the agency
at any time, for any purpose. The judge may provide the participants a
memorandum reflecting the results of a conference.
(b) Additional submissions. The judge may require the submission of
additional information at any time.
Sec. 6103.6 Decisions [Rule 306].
The judge will issue a written decision based upon the record,
which includes submissions by the claimant, OTA, and the agency, and
information provided during conferences.
[[Page 39098]]
Sec. 6103.7 Reconsideration of Board decision [Rule 307].
(a) A request for reconsideration may be made by the claimant, OTA,
or the agency. Such requests must be received by the Board within 15
calendar days after the date the decision was issued. The request for
reconsideration should state the reasons why the Board should consider
the request.
(b) Requests for reconsideration are not favored. Mere disagreement
with a decision or re-argument of points already made are not
sufficient grounds for reconsidering the decision.
Sec. 6103.8 Payment of successful claims [Rule 308].
The agency for which the services were provided shall pay amounts
the Board determines are due the claimant.
Dated: July 18, 1996.
Stephen M. Daniels,
Chairman, GSA Board of Contract Appeals.
[FR Doc. 96-18654 Filed 7-25-96; 8:45 am]
BILLING CODE 6820-AL-M
Complete official Federal Register PDF
FR Doc. 96-18623 Standards for Business Practices of Interstate Natural Gas Pipelines; Order No. 587; Final Rule
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39053-39070]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18623]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Parts 161, 250, and 284
[Docket No. RM96-1-000]
Standards for Business Practices of Interstate Natural Gas
Pipelines; Order No. 587; Final Rule
Issued July 17, 1996.
AGENCY: Federal Energy Regulatory Commission, Energy.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Federal Energy Regulatory Commission is issuing a final
rule revising the Commission's regulations to require interstate
natural gas pipelines to follow standardized procedures for critical
business practices--nominations; allocations, balancing, and
measurement; invoicing; and capacity release--and standardized
mechanisms for electronic communication between the pipelines
[[Page 39054]]
and those with whom they do business. The regulations incorporate by
reference the standards issued by the Gas Industry Standards Board
(GISB).
DATES: The regulations are effective August 26, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of August 26, 1996.
Compliance with the rule is based on a staggered scheduling with
pro forma tariff filings due in October through December, 1996 and
corresponding implementation in April through June, 1997.
ADDRESSES: Federal Energy Regulatory Commission, 888 First Street,
N.E., Washington, DC 20426.
FOR FURTHER INFORMATION CONTACT:
Michael Goldenberg, Office of the General Counsel, Federal Energy
Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
(202) 208-2294.
Marvin Rosenberg, Office of Economic Policy, Federal Energy Regulatory
Commission, 888 First Street, N.E., Washington, DC 20426, (202) 208-
1283.
SUPPLEMENTARY INFORMATION: In addition to publishing the full text of
this document in the Federal Register, the Commission provides all
interested persons an opportunity to inspect or copy the contents of
this document during normal business hours in Room 2A, 888 First
Street, N.E., Washington D.C. 20426.
The Commission Issuance Posting System (CIPS), an electronic
bulletin board service, provides access to the texts of formal
documents issued by the Commission. CIPS is available at no charge to
the user and may be accessed using a personal computer with a modem by
dialing 202-208-1397 if dialing locally or 1-800-856-3920 if dialing
long distance. To access CIPS, set your communications software to use
19200, 14400, 12000, 9600, 7200, 4800, 2400 or 1200bps, full duplex, no
parity, 8 data bits, and 1 stop bit. The full text of this document
will be available on CIPS indefinitely in ASCII and WordPerfect 5.1
format for one year. The complete text on diskette in WordPerfect
format may also be purchased from the Commission's copy contractor, La
Dorn Systems Corporation, also located in Room 2A, 888 First Street,
N.E., Washington D.C. 20426.
The Commission's bulletin board system also can be accessed through
the FedWorld system directly by modem or through the Internet. To
access the FedWorld system by modem:
Dial (703) 321-3339 and logon to the FedWorld system.
After logging on, type: /go FERC
To access the FedWorld system, through the Internet:
Telnet to: fedworld.gov
Select the option: [1] FedWorld
Logon to the FedWorld system
Type: /go FERC
Or:
Point your Web Browser to: http://www.fedworld.gov
Scroll down the page to select FedWorld Telnet Site
Select the option: [1] FedWorld
Logon to the FedWorld system
Type: /go FERC
I. Introduction
The Federal Energy Regulatory Commission (Commission) is amending
its open access regulations to standardize business practices and
procedures governing transactions between interstate natural gas
pipelines, their customers, and others doing business with the
pipelines. The standards govern several important business practices--
nominations, allocations, balancing, measurement, invoicing, and
capacity release. They also establish protocols and file formats for
electronic communication with pipelines relating to these business
practices. The regulations incorporate by reference the standards
published by the Gas Industry Standards Board (GISB). The Commission
also is establishing a compliance schedule requiring pipelines to make
pro forma tariff filings in October through December 1996 and to
implement the standards in April through June 1997.
II. Public Reporting Burden
The final rule will affect one existing Commission data collection,
FERC-545, Gas Pipeline Rates: Rate Change (Non-formal), (OMB Control
No. 1902-0154) (FERC-545), and establish a new data collection/
requirement, FERC-549C, Standards for Business Practices of Interstate
Natural Gas Pipelines, (OMB Control No. to be assigned) (FERC-549C).
Under the existing data collection/requirements of FERC-545, there
will be a one-time estimated annual reporting burden of 6,720 hours (80
hours per company) with the adoption of the standards/business
practices as required herein. The initial implementation of the
standards/business practices will require approximately 84 interstate
natural gas pipelines to make tariff filings to conform their tariffs
with the standards/business practices.1 (See FERC-545 burden
detail in estimated burden table below.)
---------------------------------------------------------------------------
\1\ Burden estimates in the previously issued Notice of Proposed
Rulemaking (NOPR) in the subject docket were based on 80
respondents. Upon further evaluation by Commission staff prior to
the issuance of the subject final rule, the estimated number of
respondents was increased to 84.
---------------------------------------------------------------------------
Under the new data collection/requirements of FERC-549C there will
be a one-time startup annual burden of 1,289,232 hours (15,348 hours
per company). It is expected that any recurring annual burden will be
minimal because of the operating efficiencies which will result with
the adoption of the standards/business practices.
The standards/data requirements contained in this final rule have
been submitted previously to the Office of Management and Budget (with
the NOPR issued in the subject docket) for review under section 3507(d)
of the Paperwork Reduction Act of 1995, (44 U.S.C. 3507(d)). For copies
of the OMB submission, contact Michael Miller at (202) 208-1415.
Interested persons may send comments regarding these burden estimates
or any other aspect of these collections of information, including
suggestions for reductions of burden, to the Desk Officer FERC, Office
of Management and Budget, Room 3019 NEOB, Washington, D.C. 20503, phone
202-395-3087 or via the Internet at [email protected]. Comments
should be filed with the Office of Management and Budget as soon as
possible. A copy of any comments filed with the Office of Management
and Budget also should be sent to the following address at the
Commission: Federal Energy Regulatory Commission, Information Services
Division, Room 41-17, Washington, DC 20426, Attention: Michael Miller.
[[Page 39055]]
ESTIMATED ANNUAL BURDEN
----------------------------------------------------------------------------------------------------------------
No. of Total No. of Hours Per Total annual
Affected data collection/ requirement respondents responses response hours
----------------------------------------------------------------------------------------------------------------
FERC-549C (New Data Requirement)--Reporting/Data
Requirement Burden............................. 84 84 15,348 1,289,232
FERC-545 (1902-0154)--Reporting/Data Requirement
Burden......................................... 84 84 80 6,720
---------------------------------------------------------------
Total Annual Hours (All Data Collections/
Requirements)............................ 84 84 15,428 1,295,952
----------------------------------------------------------------------------------------------------------------
The above estimates include time for reviewing the requirements of
the Commission's regulations, searching existing data sources,
gathering and maintaining the necessary data, and reviewing and
completing the collection of information. Because the final rule adopts
essentially the same information requirements that were contained in
the proposed rule, we believe that the average filing burden is the
same for the final rule.
Data Collection/Requirement Costs: The Commission expects that the
costs to comply with the required standards for business practices,
data sets, and internet protocol setups will consist principally of
startup costs. Although GISB has reached consensus on using Internet
protocols, it has not finally determined the communication modality
(i.e., public Internet or private network. Adoption of the
communication standards will await GISB's final recommendation.
However, since the costs to implement Internet protocols will not
change significantly regardless of the communication vehicle used, the
burden estimates in the NOPR and in this final rule include these
costs, so that the burden estimates reflect the total cost of complying
with the rule. The Commission estimates that the average annualized
cost per respondent for the first year will be as follows:
Annualized Capital/Startup Costs
------------------------------------------------------------------------
------------------------------------------------------------------------
FERC-549C.................................................... $750,118
FERC-545..................................................... 3,910
----------
Total.................................................. 754,028
------------------------------------------------------------------------
Internal Review: The Commission has reviewed the standards/business
practices and determined that they are necessary to establish a more
efficient and integrated pipeline grid. Requiring such standards on an
industry-wide basis will reduce the variations in pipeline business
practices and will allow buyers to easily and efficiently obtain and
transport gas from all potential sources of supply. The required
standards/business practices conform to the Commission's plan for
efficient information collection, communication, and management within
the natural gas industry. The Commission has assured itself, by means
of its internal review, that there is specific, objective support for
the burden estimates associated with the information requirements.
In response to the NOPR issued April 24, 1995, in the subject
docket, Viking Gas Transmission Company filed comments on the burden
estimates and the associated annualized costs for compliance in the
Notice of Proposed Rulemaking. Viking states that, even if the
Commission's cost estimates are correct, implementing the standards
would impose significant costs on a small pipeline, like Viking. Viking
also maintains that the Commission has underestimated the costs to
comply with the requirements adopted by the final rule and particularly
to implement an information system. Viking contends that the Commission
has used an hourly rate of $50 for computer service consultants by
dividing the total estimated cost ($754,000) by the estimated hours
(15,428). Viking maintains that, based on its experience, a cost of
$100 to $150 per hour is more representative of costs for information
system programmers.
The Commission's hour and cost estimates are not appropriately used
to derive an hourly rate for computer consulting services for
comparison purposes, as Viking has done. The Commission's estimate of
the number of hours for implementing the requirements is not limited to
hours for computer specialists, but covers all employees involved in
implementation. Similarly, the total cost is not solely related to
consulting services, but includes other costs, such as hardware and
hardware installation costs. Moreover, the vast proportion of the costs
involved in complying with the regulations are one-time, start-up
costs, so these are not costs pipelines will have to incur on an
ongoing basis. Most important, the Commission finds that incurrence of
these costs on a one-time basis is necessary to improve the efficiency
with which crucial business transactions are conducted across the
natural gas industry. The increased efficiency produced by these
standards should, in the long run, reduce the costs of all participants
in the market.
III. Background
The process of standardizing business practices in the natural gas
industry began with a Commission initiative to standardize electronic
communication of capacity release transactions.\2\ As a result of this
effort, participants from all segments of the natural gas industry
began the process of developing standards for other business
transactions, such as nominations and flowing gas.
---------------------------------------------------------------------------
\2\ Standards For Electronic Bulletin Boards Required Under Part
284 of the Commission's Regulations, Order No. 563, 59 FR 516 (Jan.
5, 1994), III FERC Stats. & Regs. Preambles para. 30,988 (Dec. 23,
1993), order on reh'g, Order No. 563-A, 59 FR 23624 (May 6, 1994),
III FERC Stats. & Regs. Preambles para. 30,994 (May 2, 1994), reh'g
denied, Order No. 563-B, 68 FERC para. 61,002 (1994).
---------------------------------------------------------------------------
To formalize the process of developing industry standards, the
industry formed GISB as a consensus standards organization open to all
members of the gas industry.\3\ GISB's procedures require balanced
voting representation from all five segments of the industry--
pipelines, local distribution companies (LDCs), producers, end-users,
and services (including marketers and third-party computer service
providers).\4\ At the Executive Committee level, a consensus
[[Page 39056]]
of the five segments must approve each standard.\5\
---------------------------------------------------------------------------
\3\ The scope of GISB's efforts initially was limited to
standards for electronic communication. The industry, under the
auspices of the Interstate Natural Gas Association of America
(INGAA) and the Associated Gas Distributors (AGD), had begun a Grid
Integration Project to consider standards for coordinating pipeline
business practices to simplify the process of shipping gas across
multiple pipelines. After GISB expanded its scope from electronic
standards to encompass business practice standards, the Grid
Integration Project was folded into GISB.
\4\ According to a March 27, 1996 letter from counsel for GISB,
to the Secretary of the Commission (filed in this docket), GISB is
pursuing accreditation by the American National Standards Institute
(ANSI). Accreditation involves ANSI's review of the process and
procedures of the standards-developer to ensure that the standards-
development process is open to all materially affected parties and
that standards are developed by a balanced consensus of the
industry, without domination by any single interest or interest
category.
\5\ To pass the Executive Committee, a standard must be approved
by 17 out of the 25 members, with at least two affirmative votes
from each segment. These standards must then be approved by a vote
of 67% of GISB's general membership to become approved standards.
---------------------------------------------------------------------------
Recognizing how important standards are to the development of an
integrated natural gas network, the Commission encouraged the
industry's efforts to develop the needed business standards.\6\ To
evaluate the industry's progress, the Commission held a public
conference on standardization on September 21, 1995, in Docket No.
RM93-4-000.
---------------------------------------------------------------------------
\6\ Order No. 563-A, III FERC Stats. & Regs. Preambles, at
31,050.
---------------------------------------------------------------------------
Almost all the speakers at the conference acknowledged that the
industry had not achieved the anticipated progress. Even though GISB
had promulgated standards for electronic communication of nomination
and confirmation information, many participants maintained that
standardizing electronic communication did not go far enough to provide
for efficient integration of the pipeline grid. They contended that
electronic communication standards would not increase efficiency
because they failed to standardize the pipelines' disparate underlying
business practices, so that shippers were still faced with having to
learn the idiosyncratic requirements for conducting business on each
pipeline.
On October 25, 1995, the Commission issued an advance notice of
proposed rulemaking (ANOPR) requesting the submission of detailed
proposals from the industry, by March 15, 1996, for standards governing
business processes and electronic communication for ten business
practices identified by the industry as being of the highest priority--
nominations, confirmations, allocated gas flows, customer and contract
imbalances, gas flow at metered points, transportation invoices, pre-
determined allocation methodologies, gas payment remittance statements,
gas sales invoices, and uploads of capacity release prearranged deals.
The Commission also requested proposals for standards needed to
facilitate gas flow across interconnecting pipelines. In the ANOPR, the
Commission concluded that without common business practices and a
common language for communication, the speed and efficiency with which
shippers can transact business across multiple pipelines would continue
to be severely compromised.
On March 15, 1996, GISB filed 140 standards that its Standards
Committee had approved by a consensus vote. These standards cover five
major business areas--nominations and confirmations, flowing gas,
invoicing, capacity release, and the electronic mechanism for
communication between industry participants (the electronic delivery
mechanism (EDM)). On April 12, 1996, GISB then filed data elements
approved by the Standards Committee describing the specific information
that would be used by industry participants to conduct these business
transactions. By letter dated May 22, 1996, in this docket, GISB
informed the Commission that its membership had approved the standards
and datasets by the required 67% vote.
Forty other parties also filed comments addressing the standards
GISB was proposing. On the whole, the commenters found that GISB's
standards would significantly improve the efficiency of the gas market,
but they raised questions with respect to specific standards.
On April 24, 1996, the Commission issued the NOPR proposing to
revise its regulations to incorporate the GISB standards by
reference.\7\ The Commission proposed to require pipelines to comply
with these standards by January 1, 1997. Fifty comments were filed on
the NOPR.\8\
---------------------------------------------------------------------------
\7\ Standards For Business Practices Of Interstate Natural Gas
Pipelines, Notice of Proposed Rulemaking, 61 FR 19211 (May 1, 1996),
IV FERC Stats. & Regs. Proposed Regulations para. 32,517 (Apr. 24,
1996).
\8\ The appendix lists those filing comments.
---------------------------------------------------------------------------
IV. Discussion
The Commission is requiring interstate pipelines to comply with the
requirements of the GISB consensus standards by incorporating the GISB
standards by reference in section 284.10 of the Commission's
regulations.\9\ Standards for business practices and communication are
important elements in creating an integrated gas pipeline grid to
complement the deregulated market for gas. For a competitive gas market
to truly develop, shippers must have access to all available supply
sources. A prerequisite for access, however, is the ability to move gas
efficiently across multiple pipelines to its ultimate destination.
Thus, shippers and marketers in today's market must conduct business
transactions with multiple pipelines. As the industry has recognized,
shippers cannot conduct multiple pipeline transactions efficiently if
the business practices and communication protocols differ for each
pipeline. For example, as the industry is presently structured,
shippers on multiple pipelines incur added costs and delay from having
to keep personnel up to date with the quirks of, and inconsistencies in
operation between, individual pipeline electronic bulletin boards
(EBBs). Industry-wide standards eliminate this inefficiency by enabling
shippers to use the same procedures and processes to conduct business
on all interstate pipelines.
---------------------------------------------------------------------------
\9\ GISB's previously approved standards for capacity release
transactions also will replace the current requirement, in section
284.8(b)(5), that pipelines comply with standardized datasets and
communication protocols. In addition, the EBB requirements of
sections 284.8(b)(4) and 284.9(b)(4) will be moved to section
284.10(a).
---------------------------------------------------------------------------
When the Commission sought to restructure business practices in the
industry through Order Nos. 436 and 636, the Commission set out the
broad policy parameters to be accomplished by the rules, but primarily
left the implementation details to individual pipeline filings.
However, subsequent experience clearly has shown that relying on
individual pipeline procedures and operations will not create an
integrated gas pipeline grid. To achieve that goal, the pipelines'
business procedures must be standardized.
The consensus standards significantly reduce the disparities and
inconsistencies among pipeline business practices and communication
modalities and make a meaningful contribution towards the effort to
create a more unified, integrated natural gas transportation network.
For example, the standards will simplify the process of nominating gas
in several respects. They permit all shippers to nominate gas supplies
to a pool so that gas packages can be aggregated. They provide
increased flexibility by permitting shippers at least one intra-day
nomination, so that they can change the amount of gas they receive
during a day to better fit changing needs. Even standards as simple as
establishing a convention for conversions from dekatherms to Gigajoules
and rounding calculations to the nearest dekatherm or Gigajoule can
provide significant integration benefits by enabling shippers and
third-party service providers to deal with all pipelines, as well as to
program their computers, in the same manner, without the inefficiency
of having to deal with incompatible conventions used by individual
pipelines.
At least as important, the standards will permit shippers to
communicate with every pipeline using the same standard set of
information data elements and the same information protocols. Using
these standards and protocols, shippers and third-party service
providers will be able to create
[[Page 39057]]
standard display formats for conducting business with all pipelines,
thus reducing or eliminating the need to use the individual pipeline
EBBs.
While these standards represent a broad consensus of the industry,
the Commission recognizes that not every standard commands universal
support. In a democratic society, unanimity on matters of common
concern is neither expected nor necessary. Standardization, by
definition, requires accommodation of varying interests and needs, and
rarely can there be a perfect standard satisfactory to all. The
Commission is satisfied that GISB's process is open and fair and that
the resulting standards represent broad agreement across all segments
of the industry.
Since it is the industry that must operate under these standards,
deferring to the considered judgment of the consensus of the industry
is both reasonable and appropriate. While the Commission legitimately
has given the GISB standards great weight, it also has reviewed the
standards, and the comments, and finds that the standards are
reasonable and represent a considerable step towards the goal of
creating a unified pipeline grid.
Both GISB and virtually all the comments recommend the Commission
not require implementation on January 1, 1997, as proposed in the NOPR
to reduce the possibility of disruption during the peak winter heating
season. The Commission is accepting the consensus proposal by GISB for
staggered filings and implementation: pro forma compliance filings will
be due in the fall of 1996 with implementation taking place from April
through June, 1997.
Although GISB has approved the data elements for the business
practices and the use of Internet protocols for electronic
communication, it has not yet finalized its communication standards.
For instance, it has not finally determined whether to use the Public
internet or private networks as the standard communication vehicle.
While GISB's Future Technology Task Force filed an interim report on
June 7, 1996, recommending the use of the public Internet, with an HTTP
protocol, that recommendation is still subject to a pilot test program
to be completed by September 30, 1996. At that time, the Future
Technology Task Force plans to issue the final communication standards
and the technical implementation guide.
Until GISB finalizes its communication protocols, issuing a final
order on such standards would be premature. Accordingly, the Commission
will issue a final order on communication protocols after the
submission of GISB's final communication standards. By issuing the
final rule on the remainder of the business practices at this time, the
Commission is providing the industry with sufficient time to make the
tariff changes necessary to meet the October through December
compliance filings. At the same time, delaying the issuance of the
final rule on communication protocols should not effect the ability of
the industry to meet the April 1, 1997 start of implementation. Despite
being fully aware that the communication protocols are not complete,
neither GISB, the Future Technology Task Force, nor the commenters have
suggested that any delay in the April implementation date is necessary.
The Commission recognizes that these standards are not a finished
work. Standards development is not like a sculptor forever casting his
creation in bronze, but like a jazz musician who takes a theme and
constantly revises, enhances, and reworks it. A number of those
commenting on GISB's March 15, 1996 filing and on the NOPR offer
suggestions on additional standards that they believe are needed.
Because many of the issues raised in the comments have merit, the
Commission established a procedure and a schedule under which GISB and
the industry are to submit detailed proposals for handling these issues
by September 30, 1996.
The Commission will address below the comments received on the
NOPR.
A. Implementation Date
On one point, virtually all the commenters are agreed: the
standards should not be implemented on January 1, 1997, as originally
proposed by the Commission.10 All segments of the industry are
concerned that rapid implementation of new operating procedures and
computer technologies may be prone to problems and are particularly
concerned about such problems occurring during the winter heating
season when the pipeline system is under the most stress. GISB states
that due to the interrelation of all the standards, a phased
implementation of groups of standards would be difficult to devise.
Instead, it proposes, with the backing of virtually all commenters, a
staggered implementation plan in which the pipelines are divided into
three groups with tariff filings to comply with this rule being made in
October, November, and December of 1996, and corresponding
implementation of the standards in April, May, and June of 1997.
---------------------------------------------------------------------------
\10\ Only one commenter has requested an earlier implementation
schedule.
---------------------------------------------------------------------------
The Commission will accept the GISB proposal for staggered filings
and implementation to reduce the risk of implementation complications
and resulting disruption to the industry. Because the development of an
integrated pipeline grid requires uniform pipeline adoption of the
standards adopted in this rule, the Commission finds that pipelines'
existing tariff provisions that are inconsistent with these standards
are unjust and unreasonable under section 5 of the Natural Gas Act. To
determine the just and reasonable practices under section 5, the
Commission is requiring pipelines to make filings to comply with the
standards adopted in the regulations. Accordingly, pipelines must file
pro forma tariff sheets according to the schedule set forth later in
this order to establish their compliance with the regulations.
B. Incorporation of the GISB Standards by Reference
NGC/Conoco/Vastar take issue with the Commission's incorporation of
the GISB standards by reference. They have submitted an alternative set
of standards and contend the Commission has failed to render a reasoned
decision on each of their proposed standards as compared with the
comparable GISB standard. In particular, NGC/Conoco/Vastar contend that
the Commission erred in stating, in the NOPR, that its reliance on the
GISB standards was consistent with Sec. 12(d) of the National
Technology Transfer and Advancement Act (NTT&AA) of 1995 11 and
OMB Circular A-119,12 which require federal agencies to use
private sector consensus standards.
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\11\ Pub L. No. 104-113, Sec. 12(d), 110 Stat. 775 (1996).
\12\ ''Federal Participation in the Development and Use of
Voluntary Standards'' (Oct. 20, 1993) (an earlier version is
available at 47 FR 49496 (Nov. 1, 1992))
---------------------------------------------------------------------------
In contrast, other commenters are supportive of the Commission's
reliance on the GISB standards. Brooklyn Union best expresses these
views when it states the Commission should adopt the GISB standards,
without modification, because these standards ``are the product of
countless hours of deliberations by representatives of all segments of
the natural gas industry and reflect a hard fought consensus concerning
the critical business practices addressed.''
[[Page 39058]]
1. Consistency With the National Technology Transfer and Advancement
Act and OMB Circular A-119
NGC/Conoco/Vastar argue that Sec. 12(d) of the NTT&AA does not
require the Commission to adopt the GISB standards. They maintain that
adoption of regulatory standards, such as the GISB business practice
standards, is inconsistent with the Act's focus on adoption of
technical standards.
The Commission agrees that, by its terms, Sec. 12(d) of the NTT&AA
does not require Federal agencies to adopt private sector consensus
standards if the use of such standards is inconsistent with applicable
law or otherwise impractical.13 However, the Commission finds that
adoption of the GISB standards is consistent with the intent of the Act
and OMB Circular A-119.
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\13\ NGC/Conoco/Vastar argue that the Act does not apply to
independent regulatory agencies, like the Commission, citing to a
statement by Senator Rockefeller that Sec. 12 should not apply to
independent regulatory agencies. 142 Cong. Rec. S1081 (daily ed.
Feb. 7, 1996). On its face, the statute specifically applies to
``all Federal agencies and departments,'' and OMB Circular A-119, on
which Sec. 12(d) of the NTT&AA was based, defines executive agency
as including any ``independent commission, board, bureau, office,
agency * * * including regulatory commission or board.'' ``Federal
Participation in the Development and Use of Voluntary Standards''
(Oct. 20, 1993)(an earlier version is available at 47 FR 49496 (Nov.
1, 1992)). See Remarks by Congresswoman Morella and Congressman
Brown (cosponsors), 142 Cong. Rec. H1264, H1226, daily ed. Feb. 27,
1996)(intent of Sec. 12(d) of the NTT&AA to codify OMB Circular A-
119). In addition, Senator Rockefeller's particular concern was
possible conflicts that may result because some independent
regulatory agencies, like the Consumer Product Safety Commission
(CPSC), have statutory requirements regarding the use of private
sector standards. In the absence of such statutory requirements,
however, there seems little reason to distinguish between Federal
departments, like the Food and Drug Administration, with
responsibility for protecting health and safety, and independent
regulatory agencies with like responsibilities. In any event, the
Act does not inhibit the full exercise of agencies' regulatory
authority since agencies are not required to utilize private
consensus standards when the agency determines that the standards
are not adequate for its purpose.
---------------------------------------------------------------------------
As NGC/Conoco/Vastar seem to concede, the standardized data
elements and the communication protocols for delivering this
information electronically fall within the Act's definition of
performance-based or design-specific technical specifications.14
And, the business practice standards are directly related to the
communication standards, because, as the industry concluded,
standardizing the technical aspects of communication cannot achieve the
required efficiency without standardization of the underlying business
practices. Even standing on their own, the business practice standards
are akin to management system practices which are included as technical
standards in the Act.15
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\14\ See 142 Cong. Rec. S1081 (daily ed. Feb. 7, 1996) (internet
standards are technical standards covered by the Act) (statement of
Senator Rockefeller).
\15\ See, e.g., 42 CFR 405.2150, 60 FR 48039 (Sept. 18, 1995)
(Health Care Financing Administration incorporation of Association
for the Advancement of Medical Instrumentation business process
standards for reuse of hemodialyzers); 49 CFR Part 659, 60 FR 67034
(Dec. 27, 1995)(Federal Transit Administration incorporation by
reference of APTA rail transit system safety plans); 49 CFR 192.11,
193.2005 (Department of Transportation incorporation by reference of
practice standards relating to transportation of petroleum gas and
LNG); Implementation Guide for use with 10 CFR Part 830.120,
Department of Energy, #G-830.120-Rev. 0 (April 15, 1994)
(incorporating management standards for quality assurance).
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Moreover, regardless whether Sec. 12(d) of the NTT&AA specifically
applies here, the Commission can rely on private sector standards when
it finds that these standards further the Commission's achievement of
its regulatory goals. 16 In this case, GISB's consensus standards
are entitled to great weight since the industry possesses specialized
expertise and knowledge of the relevant business practices and
electronic communication technologies and, in the final analysis, the
members of the industry are the ones that have to conduct business
under these standards.17
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\16\ Passage of Sec. 12(d) of the NTT&AA certainly is not
necessary for the Commission to rely upon private sector standards
when it deems such reliance appropriate to fulfill its regulatory
mission. Even prior to the passage of the Act, the Commission relied
on private standards, as did other agencies which found such
reliance an important means for helping to carry out their mandates.
See Northern Natural Gas Company, 53 F.P.C. 699, 702 (1975) (NFPA
Standard No. 59-A); 16 CFR Material Approved for Incorporation by
Reference, at 483 (1996) (listing standards incorporated by Consumer
Product Safety Commission).
\17\ As Congressman Brown stated:
It is much cheaper and more efficient for the government to rely
on the hard work and experience of these committees rather than
reinventing the world. These groups are better equipped than the
Government to understand all points of view and to keep up with the
state of the art in technical standards.
142 Cong. Rec. H1226 (daily ed. Feb. 27, 1996).
---------------------------------------------------------------------------
Questar suggests that to ensure clarity the Commission should not
incorporate the standards by reference, but should restate in the final
rule the standards it specifically adopts. The Commission sees no need
for such a voluminous republication. Incorporation by reference is an
accepted method of adopting private sector standards.18 The
Commission can specifically state in the regulations any changes in the
pipelines' obligations through deletion of, or revisions or additions
to the standards.
---------------------------------------------------------------------------
\18\ 1 CFR 51.7.
---------------------------------------------------------------------------
2. GISB's Consensus Process
NGC/Conoco/Vastar further contend that Sec. 12(d) of the NTT&AA
should not apply because GISB's procedural process was flawed and thus
did not ensure consensus. They contend that the Task Force meetings
(which produced the initial draft standards) were dominated by pipeline
interests, that NGC/Conoco/Vastar's comments on the Task Force
recommendations were shortened in the summary produced for the
Executive Committee, that the Executive Committee did not have
sufficient time to consider all comments, and that the Executive
Committee is structured to disenfranchise independent marketers.19
AF&PA, EMA, and NWIGU, while generally supportive of the GISB
standards, are concerned that the standards may not reflect true
consensus because their members do not have the time and resources to
participate in the GISB process. BGE also expresses concern about the
lack of balance at the Task Force meetings. While BGE believes the
standards filed by GISB on March 15, 1996 are not weighted towards any
one segment, it suggests in the next round, GISB should use balanced
subcommittees to develop its standards.
---------------------------------------------------------------------------
\19\ NGC/Conoco/Vastar maintain that the marketers on the
Executive Committee are affiliated with pipelines and, thus, cannot
represent the marketing interest if it conflicts with the goal of
the dominant pipeline parent.
---------------------------------------------------------------------------
The Commission finds that GISB's process was fair and that its
voting procedures ensure that a broad based consensus of all industry
segments support these standards. All segments are afforded the
opportunity to participate in the process of developing the standards.
Each segment chooses its own representatives on the Board of Directors
and Executive Committee. The requirement for consensus voting at the
Executive Committee level assures that no industry segment can dominate
the process and that the resulting standards do represent an agreement
acceptable to all industry segments. Finally, a super-majority (67%) of
the entire GISB membership approved the standards.20
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\20\ GISB has established a Process Subcommittee to deal with
recommendations regarding GISB's operating practices. NGC/Conoco/
Vastar cite no complaint to the Process Subcommittee about the Task
Force procedures.
---------------------------------------------------------------------------
What is most crucial, is that the Executive Committee reviewed the
recommendations of the Task Forces, thus ensuring consensus support for
the
[[Page 39059]]
standards.21 The record shows that, for the most part, the
accepted standards received virtually unanimous support from the
Executive Committee members.22 In any large proceeding, such as
the GISB undertaking, comments must be summarized for the
decisionmaker. While the Executive Committee acted quickly to meet the
Commission's deadline, the record of the proceedings shows no evidence
that its members ignored or failed to seek clarification of comments,
or otherwise did not take their responsibilities seriously. The
Executive Committee conducted its public meeting for two full days
working late into the night and had previously conducted several
preliminary sessions to discuss changes to the standards. The Executive
Committee did not act as a mere rubber stamp for the recommendations
made by the Task Forces. Indeed, the evidence is to the contrary. The
Executive Committee reached independent decisions, making significant
changes to the Task Force recommendations. For example, the Executive
Committee changed a number of the Task Force recommendations, such as
changing the 11:00 a.m. nomination deadline proposed by the Task Group
to 11:30 a.m.23
---------------------------------------------------------------------------
\21\ ANSI, for example, does not impose a balance requirement on
subgroups when their role is to assist the standards committee by,
for instance, drafting all or a portion of a standard. American
National Standards Institute, Procedures for the Development and
Coordination of American National Standards, 18 (Sec. A.6(b)) (March
22, 1995).
\22\ See Volume III of GISB's March 15, 1996 filing, Voting
Workpapers.
\23\ Compare Volume II of GISB's March 15, 1996 filing, Tab 2,
proposed Standard 1.3 with the final approved standard 1.3.2. See
also Volume III of GISB's March 15, 1996 filing, Voting Workpapers
(showing that the Executive Committee frequently voted to omit Task
Force proposed standards, change the standards to principles, defer
consideration of standards, and move standards to other sections).
---------------------------------------------------------------------------
The Commission finds NGC/Conoco/Vastar's protestation of GISB
disenfranchisement of independent marketers somewhat enigmatic, since
NGC itself is a member of the GISB Board of Directors. NGC/Conoco/
Vastar have shown no record of any complaint to the Process
Subcommittee or the GISB Board of Directors concerning the
representation of independent marketers, nor have they produced
evidence showing that GISB explicitly excluded independent marketers
from the Executive Committee, such as by showing that an independent
marketer was passed over for a vacancy on the Executive Committee. They
also have not explained why independent marketers' interests are not
adequately represented on the Executive Committee by other independent
interests such as producers (who sell to marketers) or LDCs and end-
users (who buy from marketers).
In a supplemental filing made on June 11, 1996, NGC/Conoco/Vastar
24 contend that the lack of consensus is evident from the number
of parties seeking changes, revisions, or waivers to the GISB
standards. In the first place, given the varied nature of the industry
and the differing interests of individual parties, to expect unanimity
is not realistic. The Commission's pre-GISB Working Group process for
developing capacity release standards often suffered from the need to
achieve virtual unanimity before making a recommendation. The GISB
consensus approach is designed to permit progress, while at the same
time assuring that there is reasonable, although not unanimous,
agreement across the industry on the standards adopted.
---------------------------------------------------------------------------
\24\ This time joined by Tejas Power Corporation.
---------------------------------------------------------------------------
Moreover, considering the diversity of interests in this industry,
the level of agreement with these standards actually appears quite
high. The number of parties objecting is relatively small compared to
the number in the industry (most of whom did not file comments in this
proceeding). Even on the issue--gas day and nomination timeline--that
elicited the largest number of comments, there are only about 10 Mid-
West and West Coast LDCs that object. The vast majority of LDCs
apparently are satisfied with the GISB standards.25
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\25\ Indeed, all five LDC representatives on the Executive
Committee voted to approve these standards. See Volume III of GISB's
March 15, 1996 filing, Voting Workpapers, Standards 1.3 and 1.10.
---------------------------------------------------------------------------
All parties must make a determination whether active participation
in every aspect of the GISB process serves their corporate interests.
But the benefit of the consensus process, compared with the previous
Working Group process, is that parties need not be present to have
their views represented. Any party can submit comments to the Task
Force and the Executive Committee that these groups must consider. Each
segment chooses its own representatives on the Executive Committee, and
any party can communicate its concerns to its representatives. And,
each segment of the industry has equal voting weight on the Executive
Committee.
The Commission finds that overall the GISB process was fair and
assured a broad consensus supporting the proposed standards. BGE
suggests that, for the future, the Commission should endorse the use of
small balanced subcommittees to better prevent domination by certain
interests. Changes to organizational structure are for GISB and its
membership to determine, and the Commission, therefore, will not
dictate the use of any particular process for conducting Task Force
meetings in the future.
3. Commission Oversight of the GISB Process
NGC/Conoco/Vastar contend that the Commission, by relying on the
GISB standards, has abdicated its responsibility to make a reasoned
decision on each of the proposed standards. They suggest that, upon
review, implementation of some of these standards will put at risk some
of the progress already achieved over the last decade in creating
competitive markets. They cite to the following statement from the
Commission's OASIS rule dealing with communication protocols for the
electric industry:
However, we reject entirely the notion that the Commission need
not approve the Standards and Protocols and that these matters can
be left to the industry for implementation and self-policing.
Although we continue to seek industry consensus, the Commission must
reserve final decisions to itself. We cannot turn over the process
of approving and enforcing OASIS requirements to the industry. The
Commission does not believe that resolution of the outstanding
issues or future changes will occur more quickly without Commission
oversight. Nor do we believe that merely by announcing broad policy
guidelines we would be creating a mechanism that would be sufficient
to allow the Commission to revise regulations quickly. Accordingly,
we will not abdicate our responsibility to decide these issues
ourselves; nor shall we delegate responsibility for making these
decisions to anyone else. 26
\26\ Open Access Same-Time Information System (formerly Real-
Time Information Networks) and Standards of Conduct, Order No. 889,
61 FR 21737 (May 10, 1996), III FERC Stats. and Regs. Preambles
para.31,035, at 31,591 (Apr. 24, 1996).
---------------------------------------------------------------------------
NGC/Conoco/Vastar further cite to Justice Department statements that
improperly conducted standards activities may inhibit, rather than
facilitate competition, in arguing that the Commission should not
abdicate its responsibility to review each of the proposed standards.
The Commission's action here is entirely consistent with its
approach in the OASIS rule as well as the Commission's former rule
establishing capacity release standards. In the portion of the OASIS
rule cited by NGC/Conoco/Vastar, the Commission was responding to a
request that the Commission abandon its intention to approve standards
and, instead, authorize an industry group to set and enforce detailed
standards under broad
[[Page 39060]]
policy guidelines. The Commission rejected this request in the OASIS
rule and is not delegating comparable authority to GISB in this
proceeding. The Commission has noticed the GISB standards and is
explicitly adopting those standards into its regulations. While GISB
can modify or add to its standards if it chooses, those changes are not
automatically incorporated into the Commission's regulations. The
Commission is adopting a specific version of the GISB standards;
pipelines will not be required to abide by subsequent versions of the
standards issued by GISB unless and until the Commission incorporates
the new version into the regulations.
Just as in OASIS and the capacity release proceedings, the
Commission here determined that standardization of certain practices is
required and detailed the areas in which such standards are needed. In
each of the proceedings, the Commission then sought a consensus from
the industry as to the technical standards needed, which, after review,
the Commission adopted.
Indeed, NGC/Conoco/Vastar, for the most part, do not take issue
with the GISB standards themselves; rather, they contend the Commission
has not addressed their concerns that some of GISB's standards do not
go far enough or that additional standards are necessary. They suggest,
for instance, that GISB's requirement that pipelines establish at least
one pooling point needs to be enhanced by additional standards, such as
requirements for pipelines to offer firm pools and to provide the same
priority to pool volumes as the take-away transportation agreement to
which they are nominated.
The Commission has not ignored NGC/Conoco/Vastar's suggestions for
additional standards. NGC/Conoco/Vastar do not contend that the GISB
standards cannot be implemented in their present form, only that these
standards can be improved. Many of NGC/Conoco/Vastar's points may have
merit.27 However, the Commission finds no reason to delay the
significant benefits that can be achieved from implementation of the
current standards while these issues are resolved. The Commission has
established a schedule which will permit GISB and the industry to
devise the appropriate means of handling these issues. Establishing
procedures that give the industry the first opportunity to solve these
problems is far preferable to the Commission's attempting to decide at
this stage what changes are needed.
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\27\ The Commission has, for example, found that customers
should not lose priority as a result of pooling and that priority
from receipt point to pooling point generally should be based on the
take-away customers transportation agreement. Koch Gateway Pipeline
Company, 75 FERC para. 61,283 (1996). Implementing these general
principles may well require the establishment of firm pools as
suggested by NGC/Conoco/Vastar, and the Commission expects GISB to
consider these issues for its September 30, 1996 filing.
---------------------------------------------------------------------------
The Commission is fully aware of the potential for private sector
standards committees to inhibit competition, particularly if one
interest can block the adoption of a necessary standard.28 GISB's
rules provide that at least two votes from each industry segment are
needed to approve a standard. While such a rule is important to
ensuring that any approved standard commands a consensus of the
industry, the rule also can permit one industry segment voting as a
block to defeat a needed standard.
---------------------------------------------------------------------------
\28\ Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S.
492 (1988).
---------------------------------------------------------------------------
That is precisely why the Commission has not previously, and is not
now, delegating to the industry the responsibility to develop the
needed standards. The Commission took, and is still taking, an active
role in identifying the business areas needing standardization. The
Commission provided the industry the opportunity to apply its expertise
to craft solutions that command broad agreement throughout the
industry, and has appropriately given these consensus solutions great
weight. In those areas where additional consideration of modifications
or enhancement of the standards may be warranted, the Commission has
established a schedule for the industry to consider refinements. And,
the Commission stands ready to resolve issues if necessary.29
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\29\ For example, in the EBB Rulemaking Proceeding in Docket No.
RM93-4, the industry was unable to reach consensus on a proposal to
establish an Index of Customers. The Commission ultimately
determined the data elements to be included in the Index. Revisions
to Uniform System of Accounts, Forms, Statements, and Reporting
Requirements for Natural Gas Companies, Order No. 581, 60 FR 53019,
53053 (Oct. 11, 1995), III FERC Stats. & Regs. Preambles para.
31,026, at 31,505 (Sept. 28, 1995).
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The Commission would not implement these standards if to do so
would undermine or inhibit accomplishment of the goals of Order No.
636. In fact, as noted earlier, it is the very lack of standardization
in pipeline implementation of Order No. 636 that may impede the full
realization of the competitive market that the Commission sought to
create in Order No. 636. These standards make a decided improvement in
the current system, and, accordingly, the Commission will accept them.
4. Incorporation of GISB's Principles
In the NOPR, the Commission did not propose to incorporate by
reference GISB's principles, because the principles do not purport to
establish obligations for pipelines. GISB comments that it views the
principles as being of equal importance to the definitions, standards,
and datasets, and NGSA recommends that the Commission also incorporate
the principles, given their interrelationship with the definitions,
standards, and datasets. Some commenters also suggest that the
Commission redesignate certain principles as standards.
The Commission will incorporate the principles, since they are a
part of the GISB documentation and provide guidance as to the intended
meaning of the standards. Pipelines, however, will not be expected to
comply with the principles unless they are officially adopted as
standards.
C. Additions to or Revisions of the Standards
1. Need for a Standard for Nominations Outside of the Nomination
Schedule
In the NOPR, the Commission proposed to adopt GISB's uniform
nomination timetable for the entire country: a 9 a.m. central clock
time (CCT) 30 gas day and the 11:30 a.m. start to the nomination
process. A number of comments on GISB's March 15, 1996 filing claimed
this nomination schedule lacked sufficient flexibility. The Commission
solicited comments on whether the GISB standards provide some of the
increased nomination flexibility requested by shippers because, as long
as a pipeline has unscheduled capacity available, shippers can nominate
gas even if the 11:30 a.m. nomination deadline has passed or they have
not previously submitted a nomination for that day. If the GISB
standards did not provide this flexibility, the Commission asked
whether an additional standard is needed to require pipelines to
process nominations outside of the nomination schedule if they have
available capacity.
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\30\ Central clock time adjusts for daylight savings time.
---------------------------------------------------------------------------
GISB states that its standards provide for flexibility and that the
Commission's suggested standard is unnecessary because, under its
standards, a pipeline is not prevented from accepting nominations at
any time and has an incentive to do so in order to increase throughput.
Other commenters assert that the GISB standards do not require
pipelines to schedule capacity outside the standard nomination
deadlines even
[[Page 39061]]
if they have unscheduled capacity. Some contend that pipelines should
not be required to accept such out-of-time nominations, because the
pipelines are not yet ready for a continuous 24-hour-a-day nomination
process. Imposing such a requirement, they assert, would impose
additional administrative burdens and cost on the pipelines. Other
commenters assert that imposition of such a requirement would be
beneficial.
The commenters misconstrued the Commission's inquiry. The
Commission was not suggesting that pipelines necessarily should be
required to move immediately to 24-hour-a-day nominations. Rather,
within normal and regular business hours, the Commission saw little
reason that pipelines with available capacity could not accept late
nominations.31 Accepting such late nominations would not affect
other shippers (since capacity was available) and should not impose
significant cost or administrative burdens on pipelines, while it could
provide the additional flexibility requested by shippers. Given the
responses, the Commission will not draft an additional standard, but it
fully expects pipelines with available capacity to provide nominating
flexibility outside of the standard schedule. The Commission and the
industry can evaluate the pipelines' response in the future to
determine whether an additional standard needs to be imposed.
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\31\ See the comment by Columbia Gas/Columbia Gulf, stating that
pipelines should be able to insist that nomination changes be made
during normal business hours.
---------------------------------------------------------------------------
2. Changes or Revisions Suggested by Commenters
The issues that drew the largest number of comments (but still only
14) concerned various aspects of GISB's uniform nomination timetable:
the 9 a.m. CCT gas day and the 11:30 a.m. start to the nomination
process. Some contend that requiring all nominations to be submitted at
the same time impedes efficiency because, they argue, varied schedules
would permit parties bumped on one pipeline to renominate on other
pipelines.32 Mid-West LDCs complain that GISB's 9 a.m. gas day
reduces their nomination flexibility compared with the 12 noon gas day
currently used by some of their pipelines.33 AF&PA, however,
suggests that the gas day should coincide with the standard day in the
electric industry, which begins at midnight, because of the close
interrelation between the gas and electric markets. PG&E, a combination
LDC and electric utility, and Edison, an electrical utility, on the
West Coast, contend that the 11:30 a.m. start for the nomination
process is too early.34 SoCalGas, a large West Coast LDC, however,
does not recommend a change to the starting nomination time in the GISB
standard. On the other hand, National Fuel Distribution contends the
timeline is too late for East Coast shippers, requiring them to work
beyond their normal business hours. NGC/Conoco/Vastar and AF&PA suggest
that a staggered nomination timeline with upstream pipelines going
first would be more efficient, while PG&E and Edison suggest a regional
nomination timeline.
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\32\ See the comments of NGC/Conoco/Vastar, AF&PA, CGM, and
Natural.
\33\ The Mid-West LDCs are CILCO, Illinois Power, National Fuel
Distribution, NDG/Minnegasco, Peoples/North Shore/Northern Illinois.
\34\ PG&E, for instance, claims that national weather service
data are not received until 8:30 a.m. to 9:00 a.m. Pacific time
(9:30 to 10:00 a.m. daylight savings time) and that shippers cannot
process these data in time to meet the GISB 11:30 CCT timeline and,
thus, would have to rely on stale weather data.
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Some pipelines (but not all that filed comments) 35 and other
shippers 36 complain about the use of CCT because of the expense
involved in having to change their metering twice a year and the
inconvenience of having to deal with a 23 and 25 hour day. WINGS points
out that many gathering companies use standard time, not clock time,
and contends that standard time will provide for better integration.
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\35\ See the comments of CIG/ANR, Natural, PGT, Viking, WINGS,
and Williston Basin.
\36\ See the comments of SoCalGas and Peoples/North Shore/
Northern Illinois.
---------------------------------------------------------------------------
GISB responds that the standard nomination timeline allows a
shipper whose transaction spans more than one pipeline the certainty
that the transaction will really ``work'' as contemplated. GISB states
that as the industry currently operates, staggered nomination deadlines
can leave a shipper with one scheduled pipeline and one unscheduled
pipeline. In contrast, the standard nomination deadline gives a shipper
assurance that each link in its transaction chain can be scheduled at
one time. GISB also points out that its standards provide for
flexibility, for instance, by permitting shippers one intra-day
nomination. Brooklyn Union contends the Commission should not ``water
down'' industry-wide standards by adopting regional solutions, because
such regional solutions would perpetuate the existing system of
conflicting definitions and mutually inconsistent standards that has
thwarted the effort to establish an integrated pipeline grid.
The adoption of standards obviously requires changes and sacrifices
by all parties and, the Commission recognizes that the effects may not
always be spread equally among everyone in the industry. But the
question is not whether an alternative solution may work better for
some parties, but, what is best for the entirety of the interstate
pipeline grid. There can be no perfect or correct solution. None of the
commenters opposing the standard nomination schedule have submitted
data or other evidence to show that their approaches would necessarily
create a better result for the entire industry than the approach
supported by the consensus of the industry.
The Commission accepts the consensus agreement that a standard
nomination timeline is necessary to provide certainty and security for
nomination and scheduling. For example, an integrated pipeline grid
means that an East Coast LDC can nominate gas from a producer located
in any time-zone on the North American continent. If an upstream-
downstream system or a regional system were used, the LDC would not get
confirmation of the first leg of the journey until well after it gets
confirmation of the final downstream leg (which is probably well after
the close of its business day). In addition, as NGSA and others point
out, all these standards must work together as an integrated whole.
Thus, while using central standard, as opposed to clock time, may
reduce some pipeline costs, it also could exacerbate some of the timing
problems addressed by the West Coast shippers by making the nomination
deadlines more out of synch with individuals' business day. Adoption of
clock time for the pipeline industry also is likely to lead other
industry participants, like gatherers, to adopt a similar schedule to
maintain the efficiency of the market. While ultimately, coordination
of the gas and electric markets should be considered both industries
should be involved in determining the best method of achieving such
integration. GISB and the electric OASIS Working Groups should
establish liaisons to explore how best to coordinate business and
electronic standards to promote efficiency in the overall energy
market.
For the West Coast and Mid-West shippers, the standards provide
sufficient flexibility to make adjustments to nominations. The ability
to use intra-day nominations provides shippers with the flexibility to
adjust their nominations to respond to changes in circumstances. In
addition, as discussed previously, pipelines with uncommitted capacity
should provide
[[Page 39062]]
shippers with flexibility to submit late nominations within reasonable
time frames, so that shippers bumped on one pipeline can reroute their
capacity on other pipelines.
CILCO contends that, if the Commission retains the nation-wide
nomination timetable, it should at least establish a standard for
intra-day nominations permitting a shipper submitting an intra-day
nomination for firm receipt and delivery points to bump shippers using
these as secondary or interruptible points. 37 While providing
bumping rights for primary points would enhance primary firm shippers'
flexibility, such bumping rights could upset the expectations of firm
shippers using secondary points and interruptible shippers that had
received confirmed nominations for their nominated points. The
Commission will not resolve the balance between these interests at this
time, since it understands that GISB is considering intra-day
procedures for its September 30, 1996 filing.
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\37\ AF&PA, EMA, and NGC/Conoco/Vastar also request a similar
clarification of bumping rights.
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Natural asks for clarification that as long as no one is adversely
affected by a deviation, parties can agree on a different gas day to
meet operating needs. For the most part, the Commission discourages
changes to the standards because the very purpose of standardization is
for all parties to use the same processes and procedures. However, as
discussed in the next section, GISB envisions that pipelines may be
able to exceed the standards so long as these deviations do not
adversely effect other parties. Thus, in some circumstances, pipelines
and individual shippers may be able to agree to additional flexibility
in nomination procedures, subject to the important caveat that the
change does not degrade the rights of other shippers.
Commenters also suggest changes to a variety of other specific
standards, generally with only one or a very few commenters challenging
each standard. As merely one example, NGC/Conoco/Vastar, AF&PA, and EMA
contend that the period for resolving invoicing disputes should be two
years, while the consensus of the industry was that expedition in
handling disputes was important and agreed on a six-month period. In
this case, as in the other challenges to the consensus standards, the
issue is not susceptible to factual resolution; it is a matter of
judgment as to what approach is most efficient and will best serve the
needs of the entire industry. The Commission's goal in this proceeding
was to achieve a set of standards that the majority of the industry
could support. After having reviewed the comments and the GISB
standards, the Commission concludes that the industry consensus
standards effect a sound balance between the needs of all segments and
areas of the country and accepts these standards.
These standards also are not the final word. As experience is
gained operating under these standards, changes or revisions may be
needed. The industry and GISB need to be alert to such possibilities
for improving standards, and GISB has a procedure by which parties can
submit requests for changes to standards. 38
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\38\ GISB Procedures For Adopting Standards, Sec. 2.1. Indeed,
GISB has received a request for changes to Nomination Standard 1.3.1
dealing with the standard gas day. GISB Standards Action Bulletin,
June 15, 1996, Vol. 2, Number 10, at 2.
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D. Requests for Clarification
1. Pipelines Exceeding the Standards
In the NOPR, the Commission requested clarification of GISB's
statement that all of its standards should be considered minimums and
that parties are encouraged to exceed these standards. The Commission
was unsure whether some standards should be considered inviolate,
because any change would have adverse repercussions for non-agreeing
parties.
GISB responds that its intent is to permit pipelines to exceed
standards, so long as the changes do not have a negative impact on
contracting and non-contracting parties. For example, it states that a
pipeline may accept a nomination outside the nomination deadline if
doing so will not affect service to those who submit nominations on
time. Brooklyn Union, Tenneco Energy, and ECT support the principle
that GISB's standards should be considered minimums. ECT suggests that
pipelines should be able to exceed the standards, so long as shippers
can operate on the pipeline under the minimum standard. Southern
supports the concept that pipelines can exceed the GISB standards and
suggests that the Commission make this point clear, by revising
Sec. 284.10 to remove the requirement that pipelines ``comply with''
the GISB standards and substitute the phrase that pipelines must ``meet
or exceed'' the standards. NGC/Conoco/Vastar argue that whether
pipelines can exceed standards varies, depending on the standard in
question and whether shippers need to rely on that standard or whether
the so-called improvement is detrimental to some parties.
The Commission endorses the principle that pipelines can exceed the
GISB standards. In some cases, this principle is easy to apply. For
example, pipelines can permit more than one intra-day nomination
because the pipeline will still be complying with the requirement to
provide at least one intra-day nomination.
However, in some cases application of the principle will be more
difficult. For example, Peoples/North Shore/Northern Illinois point to
Nomination Standard 1.3.19, which states that ``overrun quantities
should be requested in a separate nomination.'' They comment that the
pipelines they use employ a superior procedure by permitting overrun
nominations to be included as part of the regular nomination.
In this case, permitting the change would appear to violate the
underlying premise of standardization--that shippers can use the same
procedures on all pipelines without having to know the individual
proclivities and rules of each pipeline. Shippers may need to count on
the standardized practice of submitting overrun nominations as a
separate nomination, without having to determine whether different
overrun procedures apply on different pipelines. In some instances,
rather than simply changing a standard, pipelines may be able to offer
an additional option to shippers, provided that those shippers that
want to conduct business according to the standards can still do so.
The general principle is that a pipeline's enhancement to the
standards is acceptable when the revision provides increased
flexibility, but does not affect shippers' ability to utilize the
standard procedure or adversely affect the rights of those not a party
to the revision. Some of these issues may have to be resolved when
pipelines make their compliance filings and shippers file comments on
the filings. In making their compliance filings, pipelines, therefore,
must specifically note in their statement of the nature, reasons, and
basis all proposed changes that purport to exceed the standards so that
shippers can comment on these changes. The Commission also notes that,
under GISB's procedures, any person may seek an interpretation of a
standard, and receive a response within 90 days of the
submittal.39 The use of this procedure to obtain clarification of
issues (that can be anticipated based on the filings here or at GISB)
could prove useful when the Commission considers the compliance filings
to implement the standards.
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\39\ GISB Procedures for Adopting Standards, Sec. 5.0.
---------------------------------------------------------------------------
Th
FR Doc. 96-18623 Standards for Business Practices of Interstate Natural Gas Pipelines; Order No. 587; Final Rule
e Commission will not revise the regulation, as suggested by
Southern, to read ``meet or exceed,'' rather than ``comply,'' because,
even if pipelines
[[Page 39063]]
may exceed the standards in certain circumstances, they must still
comply with the standards. As pointed out earlier, a pipeline
permitting more than one intra-day nomination will be complying with
the standard for providing at least one such nomination. Moreover, as
discussed above, pipelines cannot exceed the standards by adopting what
they consider a superior methodology if adherence to the GISB standard
---------------------------------------------------------------------------
is necessary to ensure uniform procedures across the pipeline grid.
2. Clarification of Other Issues
In the NOPR, the Commission stated that it expected pipelines to
implement these standards as broadly as possible to provide customers
with the services needed in an integrated market. The Commission
reasoned that many of the clarification requests could be resolved
through consultations between the pipelines and their shippers, and, if
they were not, the Commission could address them when pipelines file
revised tariffs to incorporate the standards or through the complaint
process.
National Fuel supports the Commission's position in the NOPR that
implementation details should be worked out in individual proceedings.
Other commenters, however, request clarification of a number of
standards. While not exhaustive, the following provides an example of
the clarification requests. Several commenters seek clarification of
the standard requiring pipelines to provide intra-day nominations, such
as clarifying intra-day bumping rights (as mentioned previously), the
pipelines' ability to establish set times for intra-day nominations,
\40\ and whether intra-day nominations should apply to all
services.\41\ NWIGU, however, maintains that the manner in which intra-
day nominations are implemented should be determined on a pipeline
specific basis. Other commenters request clarification of issues
relating to specific pipelines or services, such as scheduling priority
for late nominations if the particular service provides for priority
nomination rights or how to deal with Florida Gas Transmission
Company's receipt and delivery gas days.\42\ Still others request
clarification of terms, such as National Fuel Distribution's concern
that ``mutual mistake of fact'' in Flowing Gas Standard 2.3.26 could be
so broad as to cover all billing mistakes \43\ or Viking's request for
clarification of the term ``quick response'' in Nomination Standard
1.3.2.
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\40\ See the comment of Tenneco Energy.
\41\ See the comments of ECT and Peoples/North Shore/Northern
Illinois.
\42\ See the comments of Peoples/North Shore/Northern Illinois
and Peoples Gas.
\43\ Flowing Gas Standard 2.3.26 provides for a 6 month period
to resolve allocation disputes unless a mutual mistake of fact is
involved.
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As the Commission stated in the NOPR, clarification issues involve
issues specific to certain pipelines, and thus are not susceptible to
generic resolution. Similarly, terms used in standards need to be
defined with reference to specific situations, using standard rules of
interpretation, such as common usage, and the principles and intent of
the standards.44 These issues are best addressed when pipelines
make their compliance filings in light of the comments made on those
filings. By the time pipelines make their compliance filings,
additional clarification on some of these issues, such as intra-day
nominations, also may be provided through the September 30, 1996
filings. Moreover, as pointed out earlier, none of these standards are
immutable. Trial and error may reveal the need for further
standardization in some areas and perhaps less in others.
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\44\ Mutual mistake of fact is a common expression used in
contract law where both parties have a mutual misunderstanding of a
basic assumption of the contract. Thus, all that Flowing Gas
Standard 2.3.26 provides is that the time periods for dispute
resolution will not apply where the parties are seeking to resolve a
problem that both misunderstood at the time. The term ``quick
response'' refers to the immediate response of errors in
nominations. See Nomination Standard 1.4.2.
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CIG/ANR request clarification of what the Commission intends by the
consultive process. They argue that implementation of these standards
is essentially ministerial and that extensive consultation could lead
to further redefinition of the standards.
Implementation of many of the standards is likely to be the purely
ministerial task CIG/ANR envisages. There may be some issues, however,
where shippers are concerned about the method of implementation.
Accordingly, pipelines should circulate advance copies of their
proposed compliance filings among shippers for comments to help iron
out the implementation details before filing with the Commission.
When individual trading parties have agreed to changes in the
electronic data requirements, GISB's definition 1.2.22 requires parties
to present mutually agreeable data elements to GISB for technical
implementation.\45\ Peoples/North Shore/Northern Illinois object to
this definition, because they are concerned about the possible delay
this requirement may introduce. ECT, on the other hand, supports the
standard, arguing that unless data elements required to implement
service revisions are mapped to GISB's ASC X12 formats, individual
pipeline-by-pipeline interpretation of where the data should be placed
would defeat the goal of standardization.
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\45\ To ensure that changes to data elements do not undermine
the goal of providing standardized communication across pipelines,
Standard 1.2.2 provides that other shippers cannot be required to
adopt any additional data elements in order to achieve a desired
level of service.
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The GISB requirement that the pipelines inform GISB of any data
element changes is reasonable since it ensures that a standard
industry-wide dataset is readily available. The Commission fully
expects GISB to process such filings as quickly as possible.\46\
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\46\ Commission approval of the data elements appears
unnecessary because they involve only agreements between individual
trading partners and will not affect other shippers' use of the
standards. If the change involves the substance of the standards or
pipelines' obligations to other shippers, then Commission acceptance
would be necessary prior to implementation.
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E. Requests for Waivers
Some commenters support the granting of waivers based on individual
circumstances if the waivers would not unreasonably interfere with gas
flow across the pipeline grid.\47\ NGSA and COPAS argue that waivers
should be granted sparingly because all the standards are interrelated
and waivers take away the certainty that standards are designed to
promote. Williston Basin requests waivers of some of the GISB
requirements. It claims that it should not have to comply with the EDM
requirements because only two third-parties on its system now use
Electronic Data Interchange (EDI) to download capacity release
information.\48\ It also is concerned that meeting GISB's invoicing
timetable would be too onerous because of its remote meter locations.
El Paso contends that it (and GISB) should not have to implement a new
dataset to permit uploads of pre-arranged deals for full requirements
customers.
---------------------------------------------------------------------------
\47\ See the comments of NGT/MRT, Montana-Dakota, CNG, and
National Fuel.
\48\ EDI generally refers to the exchange of information between
computers using telephone lines and standardized file formats.
---------------------------------------------------------------------------
The Commission, as a general matter, finds that waivers are at odds
with the goal of adopting uniform procedures in order to achieve the
greatest efficiency in transporting gas across the integrated pipeline
grid. Thus, waivers will not be favored. However, the Commission will
consider waiver requests on a case-by-case basis.
Although the Commission previously granted waivers of the EDI
requirement to some small pipelines, the prior requirements cover only
capacity release, which may have been
[[Page 39064]]
insignificant on these pipelines. In contrast, these standards cover
the entire gamut of ongoing business transactions with the pipeline.
Thus, a previous lack of interest in EDI for capacity release does not
necessarily suggest a similar lack of interest in these standards.
Even for small pipelines, making what is essentially a one-time
investment to adopt a standardized industry-wide technology seems
preferable to continued investment in EBB or other non-standard
communication technologies. The Commission also would expect that
third-party vendors that will be creating formats for customers to
transact business with pipelines can, at reasonable cost, use or modify
the formats to enable pipelines to transact business with customers.
Thus, before granting waivers of the electronic communication
standards, the Commission will expect pipelines to provide full, and
accurate documentation of the costs of implementing such standards on
their systems. At this point, El Paso has not demonstrated why
implementation of uploads for pre-arranged deals for its full
requirements customers would be so onerous, since it already provides
for downloads of such information and will be providing for uploads of
other information.
F. Capacity Release
The GISB standards address procedures for implementing releases of
capacity and the electronic methods of communicating capacity release
information. The standards will require some modification of the
mechanics of the pipelines' capacity release procedures. The principal
change, at least for some pipelines, will be the standardized timeframe
for processing release transactions. Under this schedule, for instance,
pipelines must establish procedures to process pre-arranged deals, not
subject to bidding, within one hour of receipt so that the replacement
shipper can nominate the same day. For deals subject to bidding, the
pipelines must process the transactions within one day. The
communication standards require pipelines to process file uploads of
pre-arranged deals, which will permit shippers and third-party capacity
trading service providers to conclude pre-arranged deals and
efficiently transmit the results of the deals to the pipeline, without
having to use the pipelines' EBBs as is the current practice.
While most commenters find the GISB changes to be beneficial, a
number comment that they do not obviate the need for changes in
fundamental capacity release policies, such as the requirement for
bidding on deals longer than 31 days and the prohibition on releases
above the pipeline's maximum rate. Proliance and BGE also find the GISB
standards an improvement over past practice, but they believe pipeline
interruptible service has a competitive advantage over capacity release
because the standards fail to provide comparability between the
procedures for obtaining released capacity and those for obtaining
pipeline interruptible capacity.\49\
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\49\ Proliance points to differences between capacity release
and interruptible procedures in posting, bidding, creditworthiness,
EBB and contract procedures, scheduling, and nominations. BGE points
out that interruptible nominations are made on the same day as
acquisition of capacity as compared with up to a two-day delay under
GISB standards when bidding is required.
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Two pipelines, CIG/ANR and CNG, suggest that the Commission not
require pipelines to redesign their capacity release programs until
after the Commission issues its promised NOPR on capacity release.\50\
CNG is particularly concerned about having to make investment in
redesign of its electronic systems if the Commission is going to make
further changes to the program.
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\50\ Trunkline Gas Company, 75 FERC para. 61,064, at 61,213
(1996).
---------------------------------------------------------------------------
The Commission does not want to change the industry's consensus
standards until the industry has a further opportunity for
consideration and comment through GISB's continuing process or any NOPR
on capacity release. On the other hand, the Commission finds no reason
for not implementing the standards at this point.
The procedural changes involve mostly revisions to tariff
procedures, which should not involve significant burdens. The
requirement for pipelines to speed-up the processing of capacity
release transactions is consistent with the Commission's goal of
ensuring comparability between capacity release and pipeline short-term
services.
The only change in electronic communication is the requirement to
process uploads of pre-arranged deals; all of the other standards for
electronic communication of capacity release information have been in
place for some time. Adding uploads of pre-arranged deals should not
impose significant additional burden or expense, since pipelines
already will be implementing upload capability for the other GISB
standards. The ability to upload pre-arranged deals already has been
delayed, and the Commission does not want to introduce any further
delay, because such a capability is crucial for shippers and third-
party capacity trading service providers to communicate efficiently
with the pipelines. Moreover, the Commission is convinced that whatever
changes the Commission may make in the fundamental policies of the
capacity release program, the pipelines will have to provide the
capability for shippers and third-party capacity trading services to
efficiently transmit pre-arranged transactions to the pipelines.
In the NOPR, the Commission asked whether Capacity Release Standard
5.3.11 required pipelines to accept electronic file uploads of
replacement shippers' or their agents' confirmation of the terms of
pre-arranged deals (on those pipelines that require confirmation). The
Commission was concerned that the efficiency created by requiring
standardized uploads of pre-arranged deals would be lost if shippers or
third-party capacity trading services cannot use electronic uploads of
confirmations to confirm their deals.
GISB, El Paso, and Tenneco Energy confirm that the intent of
Capacity Release Standard 5.3.11 is for transportation service
providers to accept and process pre-arranged deal confirmations using
EBBs, file uploads, as well as other electronic means to which the
parties mutually agree. They point out that the Capacity Release
Standards include datasets requiring pipelines to provide for uploads
of confirmations as a mandatory business conditional field,\51\ which
means that pipelines requiring confirmation must support such
uploads.\52\ Tenneco Energy, however, raises questions about the
conditions under which agents can confirm. It suggests that any such
requirement be deferred until completion of the work of GISB's
Contracts Task Force. Peoples/North Shore/Northern Illinois opposes a
requirement for pipelines to support uploads of confirmations unless
the costs exceed the benefit.
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\51\ See Capacity Release Datasets 5.4.12, and 5.4.19.
\52\ See Nomination Standard 1.2.2 for the definition of
mandatory and business conditional.
---------------------------------------------------------------------------
The Commission supports the requirement for pipelines to accept
uploads of confirmations, because such uploads improve the efficiency
of the process by allowing shippers and third-party capacity trading
service providers to conclude pre-arranged deals without having to use
the pipeline EBBs to transmit such deals to the pipeline. With respect
to Tenneco Energy's comment, GISB has adopted a principle
[[Page 39065]]
that agents must be recognized in conducting electronic
communication.\53\ This principle is particularly important in the
capacity release arena because the only way that third-party capacity
trading service providers can effectively provide trading services is
if they can communicate the results of such transactions to the
pipelines on behalf of their clients. Thus, the Commission expects
pipelines to recognize agents for the purpose of submitting pre-
arranged deals and confirmations of such deals as well as for other
purposes.
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\53\ Electronic Delivery Mechanism Principle 4.1.7. The capacity
release datasets also contain a field entitled authorization code,
which informs the receiver of a transaction that the sender is
authorized to submit the transaction for the contractual party.
---------------------------------------------------------------------------
G. Electronic Delivery Mechanism
GISB's standards specify that Internet protocols (TCP/IP with a PPP
connection) should be used for electronic communication. In the NOPR,
the Commission requested comment on whether additional standards for
Internet connection are needed, such as the use of file transfer
protocols (FTP).
In its comments, GISB explains that, although it has determined to
use Internet protocols for communication, it has not yet reached a
final determination on whether the public Internet provides sufficient
security for business transactions or whether private networks should
be the communication vehicle. On June 7, 1996, GISB's Future Technology
Task Force issued an interim report recommending the use of the public
Internet as the communication vehicle. The report finds that security
issues with the use of the public Internet can be satisfactorily
resolved through commercially available software. However, the Future
Technology Task Force has established a pilot test (to be completed by
September 30, 1996) to permit a full examination of the technology. If
the public Internet ultimately is not chosen, GISB states whatever
communication vehicle (intranets/networks) is chosen would support its
standard protocol of TCP/IP with a PPP connection.
AGA and CIG/ANR suggest that the Commission not prejudge the
adoption of the public Internet as the communication vehicle, but wait
for the recommendation by the Future Technology Task Force. BGE and EMA
support the use of the public Internet, while ECT, National Fuel
Distribution, and Peoples/North Shore/Northern Illinois are concerned
about the security of using the public Internet and support the use of
private intranets. NYMEX/Enersoft and WINGS request clarification that
the Commission is not adopting the public Internet as the exclusive
means of communication and that third-parties can offer products which
are not on the public Internet.
The Commission will reserve final judgment on the use of the public
Internet until the final report by the Future Technology Task Force.
The Commission is not entirely clear as to the concerns expressed by
NYMEX/Enersoft and WINGS. All pipelines will have to provide data
according to the protocol (whether public Internet, intranet, or other
protocol) that is specified. Whatever protocol is adopted for pipelines
should not affect the manner in which third-parties use or transmit
that data to their customers. A third-party would be entirely free to
establish its own private intranet to communicate data with its
customers.
NYMEX/Enersoft and WINGS may be asking whether pipelines can agree
to provide information to shippers or third-party computer service
providers according to protocols that differ from the chosen one (e.g.,
providing a direct connection to the third-party). In the OASIS
rulemaking, the Commission required the utilities to provide direct
connection on an equal basis to all those requesting such a connection
as long as the utility is compensated for making, and given sufficient
time to make, the connection.54 The Commission found that
providing direct connections would assist private networks and third-
party services in offering additional valuable services to the
industry. The Commission anticipates following the same course here
when it adopts the final communication standards.55
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\54\ III FERC Stats. and Regs. Preambles para. 31,035, at
31,618-19.
\55\ The Commission also anticipates that pipelines should
design tariff procedures to ensure that the first party seeking a
direct connection is not disadvantaged (relative to latercomers) by
having to bear the costs of establishing the connection. Thus,
pipelines should consider procedures to reimburse the first
applicant, and charge subsequent applicants, for the fixed common
costs of establishing the direct connection.
---------------------------------------------------------------------------
NGC/Conoco/Vastar recommend that all electronic information
disseminated by pipelines should be done on the public Internet. They
further contend that pipelines should no longer be required to provide
information on EBBs, nor should they be able to provide preferred
connections to their EBBs. If pipelines want to continue to provide
services on an EBB, NGC/Conoco/Vastar suggest that EBB service should
not be subsidized by having its costs recovered as part of rate base,
but should compete on an equal footing with other ventures using the
pipeline information.
The Commission agrees the goal of the industry should be to replace
the individual pipeline EBBs, characterized by their unique log-on and
access procedures and distinctive look and feel, with a uniform method
of communicating all electronic information now provided on the EBBs.
Standardization of electronic communication would permit shippers and
third-party service providers to easily capture all relevant
information and provide a single display format covering all pipelines.
In the course of their deliberations on the future of electronic
communication in the gas industry, GISB and the industry participants
should give consideration to the following issues. First, they should
consider whether the Commission should mandate that pipelines provide
additional information in electronic format (other than that required
by this rule or other Commission regulations).
Second, they need to consider whether pipelines should be required
to replace their EBBs with a standardized, interactive format (such as
interactive, Internet world-wide-web displays). The display format
would be in addition to providing for uploads and downloads in
standardized file format.56 Alternatively, the pipelines could be
pure data providers and recipients, with no requirement to provide
individual display formats. This approach would leave the creation of
display formats to the shippers and to competition among software
vendors and third-party providers (that could include pipeline EBBs
that would not be covered within the pipelines' cost-of-service).
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\56\ In the OASIS rulemaking, the utilities were required to
provide both for file downloads and uploads of data as well as
providing the required information through internet HTML display
formats. III FERC Stats. and Regs. Preambles para. 31,035, at
31,616-17.
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Third, the industry needs to consider the concern raised by NGC/
Conoco/Vastar over connection standards, such as whether pipelines can
provide for preferential connections either to their own EBBs or third-
parties (including pipeline affiliates). For example, if the standard
requires pipelines to provide data over the public Internet and the
pipeline uses a third-party to operate its Internet server, should
pipelines be able to provide direct connections to their own in-house
computer system as now occurs with the pipelines' EBBs? Or, should all
direct connections be to the Internet server in order to provide
[[Page 39066]]
everyone with comparable access to the data.57
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\57\ The OASIS rule did not permit the utilities to provide
preferential direct connections. See III FERC Stats. and Regs.
Preambles para. 31,035, at 31,619 (direct connections to the
utility's computer are not permitted when another party is
responsible for the Internet connection).
---------------------------------------------------------------------------
Finally, GISB and the industry participants should explore making
information available, on a real time basis, on the availability of
capacity on the mainline and at individual receipt and delivery points.
GISB has recognized that its nomination scheduling is an interim step
to continuous and contiguous scheduling.58 Moreover, as discussed
earlier, pipelines must now permit intra-day nominations, and the
Commission expects pipelines to schedule capacity within reasonable
business hours when they have available capacity. As the industry
continues its move to more flexible intra-day nominations, such efforts
must be accompanied by real-time information. Some of the needed
information can be obtained through compliance with the existing
Operationally Available and Unsubscribed Capacity datasets.59 As
such, the Commission will continue taking steps to ensure compliance
with the requirements of those data sets. However, improvements are
needed. Current data is not available on a real time basis. It does not
reflect capacity scheduled during the day. Moreover, information is not
available on whether gas can be scheduled into or out of a particular
zone. Finally, the information is often not delivered in a user
friendly format. For instance, a person should be able to request
information which changed after a specified date and time, i.e. the
quantity of available capacity at individual locations which changed
due to a newly scheduled quantity.
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\58\ Nomination Principle 1.1.2.
\59\ Standards for Electronic Bulletin Boards Required Under
Part 284 of the Commission's Regulations, Order No. 563, III FERC
Stats. & Regs. Preambles, at 31,007; Order No. 563-A, III FERC
Stats. & Regs. Preambles, at 31,040 (posting of operationally
available capacity).
---------------------------------------------------------------------------
H. Consideration of Additional Standards
A number of commenters on GISB's March 15, 1996, filing argued that
the GISB standards did not go far enough and that additional standards
needed to be developed. While not meaning to provide a definitive list,
the Commission distilled from the comments the following areas for
consideration of modifications or additions to the standards: expansion
of Internet protocols to include all electronic information provided by
the pipelines (discussed above), title transfer tracking, allocations
and rankings of gas packages, treatment of compressor fuel, operational
balancing agreements, routing models, imbalance resolution, operational
flow orders, multi-tiered allocations and confirmations, and additional
pooling standards. Because of the importance of the issues raised, the
Commission requested detailed proposals for standards in these and
other related areas by September 30, 1996.
Several commenters argue that the areas listed are among the most
contentious and most difficult to resolve and maintain that the
September 30, 1996 date does not provide the industry or GISB with
adequate time to develop consensus. NGC/Conoco/Vastar, however,
maintain that precisely because these issues are complex and
contentious, GISB will be unable to reach a reasonable consensus, so
that the Commission should resolve the issues. The Commission also
takes notice that, after the NOPR, GISB has established a schedule
leading to the development of standards (but not necessarily detailed
datasets) by the September 30, 1996 date.
The Commission does not share NGC/Conoco/Vastar's dire view of
GISB's prospects for resolving these issues. But the Commission still
needs to monitor the progress of these considerations, so that, if they
do stalemate, the Commission can begin technical conferences or other
proceedings to resolve them. Accordingly, the Commission will not
revise the September 30, 1996 date for submission of standards
proposals. By September 30, 1996, the Commission expects that standards
for many of these issues will be developed and that, for other issues,
the filings will permit the Commission to assess whether GISB is on
track to resolve them or whether the Commission needs to establish
additional procedures. For issues that are not resolved, the reports
should be sufficiently comprehensive that they fully describe the
problems faced by the industry, the proposals being considered, whether
any proposal is preferred over others, and an analysis of the benefits
and disadvantages of the proposed solutions.
I. Cost Recovery
Viking and Iroquois request the Commission to establish a method of
recovering the costs of implementing the standards. Viking maintains
that a full section 4 case is not an appropriate mechanism because of
the difficulty in predicting up-front and ongoing compliance costs
needed to prepare a test-year cost-of-service study. Both Iroquois and
Viking suggest using limited section 4 cases, and Viking also suggests
other options, such as deferred accounting, similar to procedures used
for the recovery of costs related to implementation of FASB 106 (post-
employment benefits other than pensions).
The Commission finds no need to establish special procedures for
handling cost recovery. There is no evidence that the costs of
compliance are so significant or so out-of-the ordinary that special
procedures are necessary. Moreover, implementation of many of the
standards may result in changes to operations and maintenance expenses
or other cost-of-service categories, which can be effectively
considered only in the context of a full section 4 proceeding. With
respect to Viking's concern about predicting future costs, Commission
regulations permit pipelines to include in rate filings costs that are
known and measurable at the time of the filing.60
---------------------------------------------------------------------------
\60\ 18 CFR 154.303.
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V. Implementation Schedule
GISB proposes a staggered schedule for pipeline compliance filings
and implementation in which pipelines are divided into three groups.
The first group would make tariff filings October 1, 1996 and implement
the standards April 1, 1997 with the other two groups filing in
November and December 1996 and implementing in May and June 1997. The
pipeline groupings are based on three factors: pipeline willingness to
implement in the first groups; implementation by downstream pipelines
no earlier than their major feeder pipelines; and geographic balance
with each group including pipelines from various regions of the
country. GISB did not include deadlines for small pipelines, stating
that they could choose their implementation date.
GISB also explains that the standards will govern business
beginning with the implementation date. For example, in order to have
gas scheduled to flow at the beginning of the gas day on April 1, 1997,
the pipeline actually would begin implementing the related standards,
such as Nomination Standard 1.3.2 (Nomination Timeline) in March 1997.
Likewise, for pipelines with an April 1, 1997 implementation date, the
invoices for April deliveries would be prepared and sent to the
customer in May 1997 in compliance with the standards.
The Commission is accepting the GISB schedule for the pro forma
compliance filings and the
[[Page 39067]]
implementation of the standards as set forth below. Smaller pipelines
are included in the third group, but any pipeline may file or implement
earlier than its effective date. The Commission is providing that
interventions, protests, or comments are due 21 days after the date of
the pipeline's pro forma tariff filing.
Pro Forma Tariff Filing Date: October 1, 1996--Standards Implementation
Date: April 1, 1997
Algonquin Gas Transmission Company
El Paso Natural Gas Company
Florida Gas Transmission Company
Mojave Pipeline Company
National Fuel Gas Supply Corporation
Northern Border Pipeline Company
Northern Natural Gas Company
Panhandle Eastern Pipe Line Company
Texas Eastern Transmission Corporation
Transwestern Pipeline Company
Trunkline Gas Company
Pro Forma Tariff Filing Date: November 1, 1996--Standards
Implementation Date: May 1, 1997
Canyon Creek Compression Company
Colorado Interstate Gas Company
East Tennessee Natural Gas Company
Midwestern Gas Transmission Company
Mississippi River Transmission Corporation
Natural Gas Pipeline Company of America
NorAm Gas Transmission Company
Stingray Pipeline Company
Tennessee Gas Pipeline Company
Trailblazer Pipeline Company
Williams Natural Gas Company
Wyoming Interstate Company, Ltd.
Pro Forma Tariff Filing Date: December 2, 1996--Standards
Implementation Date: June 1, 1997
Alabama-Tennessee Natural Gas Company
Algonquin LNG, Inc.
ANR Pipeline Company
ANR Storage Company
Black Marlin Pipeline Company
Blue Lake Gas Storage Company
Caprock Pipeline Company
Carnegie Interstate Pipeline Company
Chandeleur Pipe Line Company
CNG Transmission Corporation
Columbia Gas Transmission Corporation
Columbia Gulf Transmission Company
Cove Point LNG Limited Partnership
Crossroads Pipeline Company
Equitrans, Inc.
Gas Transport Inc.
Gasdel Pipeline System, Inc.
Granite State Gas Transmission, Inc.
Great Lakes Gas Transmission Limited Partnership
Gulf States Transmission Corporation
High Island Offshore System
Iroquois Gas Transmission System, L.P.
K N Interstate Gas Transmission Co.
K N Wattenberg Transmission Limited Liability Company
Kentucky-West Virginia Gas Company
Kern River Gas Transmission Company
Koch Gateway Pipeline Company
Louisiana-Nevada Transit Company
Michigan Gas Storage Company
Mid Louisiana Gas Company
MIGC, Inc.
Mobile Bay Pipeline Company
Nora Transmission Company
Northwest Pipeline Corporation
Oktex Pipeline Company
Overthrust Pipeline Company
Ozark Gas Transmission System
Pacific Gas Transmission System
Pacific Interstate Offshore Company
Paiute Pipeline Company
Petal Gas Storage Company
Questar Pipeline Company
Richfield Gas Storage System
Riverside Pipeline Company, L.P.
Sabine Pipe Line Company
Sea Robin Pipeline Company
South Georgia Natural Gas Company
Southern Natural Gas Company
T C P Gathering Co.
Tarpon Transmission Company
Texas Gas Transmission Corporation
Texas-Ohio Pipeline, Inc.
Transcontinental Gas Pipe Line Corporation
Tuscarora Gas Transmission Company
U-T Offshore System
Viking Gas Transmission Company
Western Gas Interstate Company
Western Transmission Corporation
Westgas Interstate, Inc.
Williston Basin Interstate Pipeline Company
Young Gas Storage Company, Ltd.
VI. Regulatory Flexibility Act Certification
The Regulatory Flexibility Act of 1980 (RFA) 61 generally
requires a description and analysis of final rules that will have
significant economic impact on a substantial number of small entities.
The proposed regulations would impose requirements only on interstate
pipelines, which are not small businesses, and, these requirements are,
in fact, designed to reduce the difficulty of dealing with pipelines by
all customers, including small businesses. Accordingly, pursuant to
section 605(b) of the RFA, the Commission hereby certifies that the
regulations proposed herein will not have a significant adverse impact
on a substantial number of small entities.
---------------------------------------------------------------------------
\61\ 5 U.S.C. 601-612.
---------------------------------------------------------------------------
VII. Environmental Analysis
The Commission is required to prepare an Environmental Assessment
or an Environmental Impact Statement for any action that may have a
significant adverse effect on the human environment.62 The
Commission has categorically excluded certain actions from these
requirements as not having a significant effect on the human
environment.63 The action taken here falls within categorical
exclusions in the Commission's regulations for rules that are
clarifying, corrective, or procedural, for information gathering,
analysis, and dissemination, and for sales, exchange, and
transportation of natural gas that requires no construction of
facilities.64 Therefore, an environmental assessment is
unnecessary and has not been prepared in this rulemaking.
---------------------------------------------------------------------------
\62\ Order No. 486, Regulations Implementing the National
Environmental Policy Act, 52 FR 47897 (Dec. 17, 1987), FERC Stats. &
Regs. Preambles 1986-1990 para. 30,783 (1987).
\63\ 18 CFR 380.4.
\64\ See 18 CFR 380.4(a)(2)(ii), 380.4(a)(5), 380.4(a)(27).
---------------------------------------------------------------------------
VIII. Information Collection Statement
In the NOPR, the Commission requested emergency Office of
Management and Budget (OMB) clearance procedures under 5 CFR 1320.13 of
OMB's regulations to avoid delays beyond the proposed January 1, 1997,
target implementation date. Virtually all of the comments filed
(including those filed with OMB by Viking) express concern about the
Commission's target implementation date of January 1, 1997, due to
concerns about complications arising during the peak winter heating
season. GISB, with support from almost all commenters, has proposed,
and the Commission is adopting, a staggered implementation of the
standards during the spring of 1997.
OMB's regulations in 5 CFR 1320.11 require that it approve certain
reporting and recordkeeping requirements (collections of information)
imposed by an agency. Upon approval of a collection of information, OMB
shall assign an OMB control number and an expiration date. Respondents
subject to the filing requirements of this Rule shall not be penalized
for failing to respond to these collections of information unless the
collections of information display valid OMB control numbers.
Title: FERC-545, Gas Pipeline Rates: Rate Change (Non-formal)
Action: Data Collection/Requirements
OMB Control No.: 1902-0154
Respondents: Interstate Natural Gas Pipelines (Not applicable to small
businesses.)
Frequency of Responses: One-time tariff filings (First year)
Title: FERC-549C, Standards for Business Practices of Interstate
Natural Gas Pipelines
Action: Data Collection/Requirements
OMB Control No.: To be assigned by OMB
Respondents: Interstate Natural Gas Pipelines (Not applicable to small
businesses.)
Frequency of Responses: One-time capital/startup new business
procedures (First year)
Necessity of Information: The final rule adopts standards incorporated
by reference and submitted by the Gas Industry Standards Board (GISB).
[[Page 39068]]
These standards govern four major business practices--nominations;
allocations, balancing, and measurement; invoicing; and capacity
release--as well as the mechanism for electronic communication between
the pipelines and those doing business with the pipelines. Without the
Commission's adoption of these standards that institute common business
practices and a common language for communication, the speed and
efficiency with which shippers can transact business across multiple
pipelines would be severely compromised. Under the final rule, all
pipelines will adopt a standard set of information covering the ten
high priority data elements, so that shippers will be able to
communicate using the same information for the same transactions
regardless of the pipelines with which they deal. In addition, all
pipelines will ultimately support a standard Internet connection for
communications with their customers, which will eliminate the disparity
in log-on procedures and user interfaces faced by customers using the
individual pipeline electronic bulletin boards.
The information collection requirements in this final rule will be
reported directly to the industry users and later be subject to audit
by the Commission. The implementation of these data requirements will
help the Commission carry out its responsibilities under the Natural
Gas Act and coincide with the current regulatory environment which the
Commission instituted under Order No. 636 and the restructuring of the
natural gas industry. The Commission's Office of Pipeline Regulation
will use the data in rate proceedings to review rate and tariff changes
by natural gas companies for the transportation of gas and for general
industry oversight.
Because the subject final rule is not significantly different from
the NOPR, and OMB has not provided any comments on the proposed rule,
the Commission is submitting a copy of this final rule to OMB for
informational purposes only. Interested persons may obtain information
on the reporting requirements by contacting the Federal Energy
Regulatory Commission, 888 First Street N.E., Washington, DC 20426
[Attention: Michael Miller, Information Services Division, (202)208-
1415] or the Office of Management and Budget [Attention: Desk Officer
for the Federal Energy Regulatory Commission (202)395-3087].
IX. Effective Date
These regulations are effective August 26, 1996. The Commission has
determined, with the concurrence of the Administrator of the Office of
Information and Regulatory Affairs of OMB, that this rule is not a
``major rule'' as defined in section 351 of the Small Business
Regulatory Enforcement Fairness Act of 1996. The incorporation by
reference of certain publications listed in the regulations is approved
by the Director of the Federal Register as of August 26, 1996.
List of Subjects
18 CFR Part 161
Natural gas, Reporting and recordkeeping requirements.
18 CFR Part 250
Natural gas, Reporting and recordkeeping requirements.
18 CFR Part 284
Continental shelf, Natural gas, Reporting and recordkeeping
requirements; Incorporation by reference.
By the Commission.
Lois D. Cashell,
Secretary.
In consideration of the foregoing, the Commission amends Parts 161,
250, and 284, Chapter I, Title 18, Code of Federal Regulations, as set
forth below.
PART 161--STANDARDS OF CONDUCT FOR INTERSTATE PIPELINES WITH
MARKETING AFFILIATES
1. The authority citation for part 161 continues to read as
follows:
Authority: 15 U.S.C. 717-717w, 3301-3432; 42 U.S.C. 7101-7352.
Sec. 161.3 [Amended]
2. In Sec. 161.3, paragraph (h)(2) is amended by removing the
phrase ``Sec. 284.8(b)(4)'' and adding, in its place, the phrase
``Sec. 284.10(a)''.
PART 250--FORMS
1. The authority citation for part 250 continues to read as
follows:
Authority: 15 U.S.C. 717-717w, 3301-3432; 42 U.S.C. 7101-7352.
Sec. 250.16 [Amended]
2. In Sec. 250.16, paragraph (c)(2) is amended by removing the
phrase ``Sec. 284.8(b)(4)'' and adding, in its place, the phrase
``Sec. 284.10(a)''.,
PART 284--CERTAIN SALES AND TRANSPORTATION OF NATURAL GAS UNDER THE
NATURAL GAS POLICY ACT OF 1978 AND RELATED AUTHORITIES
1. The authority citation for part 284 continues to read as
follows:
Authority: 15 U.S.C. 717-717w, 3301-3432; 42 U.S.C 7101-7532; 43
U.S.C 1331-1356.
2. In Sec. 284.8, paragraphs (b)(4) and (b)(5) are removed,
paragraph (b)(6) is redesignated (b)(4), and paragraph (b)(3) is
revised to read as follows:
Sec. 284.8 Firm transportation service.
* * * * *
(b) * * *
(3) An interstate pipeline that offers transportation service on a
firm basis under subpart B or G of this part must provide all shippers
with equal and timely access to information relevant to the
availability of such service, including, but not limited to, the
availability of capacity at receipt points, on the mainline, at
delivery points, and in storage fields, and whether the capacity is
available directly from the pipeline or through capacity release. The
information must be provided on an Electronic Bulletin Board with the
features prescribed in Sec. 284.10(a) and as required by
Sec. 284.10(b).
* * * * *
3. In Sec. 284.9, paragraph (b)(4) is removed, paragraph (b)(5) is
redesignated (b)(4), and paragraph (b)(3) is revised to read as
follows:
Sec. 284.9 Interruptible transportation service.
* * * * *
(b) * * *
(3) An interstate pipeline that offers transportation service on an
interruptible basis under subpart B or G of this part must provide all
shippers with equal and timely access to information relevant to the
availability of such service. The information must be provided on an
Electronic Bulletin Board with the features prescribed in
Sec. 284.10(a) and as required by Sec. 284.10(b).
* * * * *
4. Section 284.10 is added to read as follows:
Sec. 284.10 Standards for Pipeline Business Operations and
Communications.
(a) Electronic Bulletin Boards. An interstate pipeline that is
required by this chapter or by its tariff to display information on an
Electronic Bulletin Board must provide for the following features on
its board:
(1) Downloading by users;
[[Page 39069]]
(2) Daily back-up of information displayed on the board, which must
be available for user review for at least three years;
(3) Purging of information on completed transactions from current
files;
(4) Display of most recent entries ahead of information posted
earlier; and
(5) On-line help, a search function that permits users to locate
all information concerning a specific transaction, and a menu that
permits users to separately access the notices of available capacity,
the marketing affiliate discount information, the marketing affiliate
capacity allocation log, and the standards of conduct information.
(b) Incorporation by Reference of Business Practice and Electronic
Communication Standards. (1) An interstate pipeline that transports gas
under subpart B or G of this part must comply with the following
business practice and electronic communication standards promulgated by
the Gas Industry Standards Board, which are incorporated herein by
reference:
(i) Nominations Related Standards (Version 1.0, June 14, 1996);
(ii) Flowing Gas Related Standards (Version 1.0, June 14, 1996);
(iii) Invoice Related Standards (Version 1.0, June 14, 1996); and
(iv) Capacity Release Related Standards (Version 1.0, June 14,
1996).
(2) This incorporation by reference was approved by the Director of
the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part
51. Copies of these standards may be obtained from the Gas Industry
Standards Board, 1100 Louisiana, Suite 4925, Houston, TX 77002. Copies
may be inspected at the Federal Energy Regulatory Commission, Public
Reference and Files Maintenance Branch, 888 First Street, NE.,
Washington, DC 20426 and at the Office of the Federal Register, 800
North Capitol St., NW., Suite 700, Washington, DC.
Note.--The following appendix will not appear in the Code of
Federal Regulations.
Appendix--RM96-1-000
Comments Filed
------------------------------------------------------------------------
Commenter Abbreviation
------------------------------------------------------------------------
Alabama-Tennessee Natural Gas Company.. Alabama-Tennessee.
American Forest & Paper Association.... AF&PA.
American Gas Association............... AGA.
American Public Gas Association........ APGA.
Associated Gas Distributors............ AGD.
Baltimore Gas and Electric Company..... BGE.
Brooklyn Union Gas Company............. Brooklyn Union.
Central Illinois Light Company......... CILCO.
CNG Transmission Corporation........... CNG.
Coastal Gas Marketing Company.......... CGM.
Colorado Interstate Gas Company and ANR CIG/ANR.
Pipeline Company.
Columbia Gas Transmission Corporation Columbia Gas/Columbia Gulf.
and Columbia Gulf Transmission Company.
Council of Petroleum Accountants COPAS.
Society.
El Paso Natural Gas Company............ El Paso.
Energy Managers Association............ EMA.
Enron Capital & Trade Resources ECT.
Corporation..
Equitrans, L.P......................... Equitrans.
Foothills Pipe Lines Ltd............... Foothills.
Gas Industry Standards Board........... GISB.
Illinois Power Company................. Illinois Power.
Interstate Natural Gas Association of INGAA.
America..
Iroquois Gas Transmission System, L.P.. Iroquois.
Montana-Dakota Utilities Company....... Montana-Dakota.
National Fuel Gas Distribution National Fuel Distribution.
Corporation.
National Fuel Gas Supply Corporation... National Fuel.
Natural Gas Clearinghouse, Conoco, Inc. NGC/Conoco/Vastar.
and Vastar Gas Marketing, Inc.
Natural Gas Pipeline Company of America Natural.
Natural Gas Supply Association......... NGSA.
NorAm Energy Services, Inc............. NES.
NorAm Gas Transmission Company and NGT/MRT.
Mississippi River Transmission
Corporation.
Northern Distributor Group and NDG/Minnegasco.
Minnegasco.
Northwest Industrial Gas Users......... NWIGU.
NYMEX Technology Corporation and NYMEX/Enersoft.
Enersoft Corporation.
Pacific Gas and Electric Company....... PG&E.
Pacific Gas Transmission Company....... PGT.
PanEnergy Corporation (Texas Eastern PanEnergy Companies.
Transmission Corporation, Panhandle
Eastern Pipe Line Company, Trunkline
Gas Company, Algonquin Gas
Transmission Company).
Peoples Gas System, Inc................ Peoples Gas.
Piedmont Natural Gas Company, Inc...... Piedmont.
ProLiance Energy LLC................... ProLiance.
Questar Pipeline Company............... Questar.
Southern California Edison Company..... Edison.
Southern California Gas Company........ SoCalGas.
Southern Natural Gas Company........... Southern.
Tenneco Energy......................... Tenneco Energy.
[[Page 39070]]
The Peoples Gas Light and Coke Company, Peoples/North Shore/Northern
North Shore Gas Company, and Northern Illinois.
Illinois Gas Company.
TransCapacity Limited Partnership...... TransCapacity.
United Distribution Companies.......... UDC.
Viking Gas Transmission Company........ Viking.
Williams Interstate Natural Gas System. WINGS.
Williston Basin Interstate Pipeline Williston Basin.
Company.
------------------------------------------------------------------------
[FR Doc. 96-18623 Filed 7-25-96; 8:45 am]
BILLING CODE 6717-01-P
Complete official Federal Register PDF
FR Doc. 96-18616 General Crop Insurance Regulations, General Crop Insurance Policy
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39048-39050]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18616]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Federal Crop Insurance Corporation.
7 CFR Part 401
RIN 0563-AB60
General Crop Insurance Regulations, General Crop Insurance Policy
AGENCY: Federal Crop Insurance Corporation, USDA.
ACTION: Interim rule and request for comments.
-----------------------------------------------------------------------
SUMMARY: The Federal Crop Insurance Corporation (FCIC) amends the
General Crop Insurance Regulations, General Crop Insurance Policy
located at 7 CFR part 401. The intended effect of this interim rule is
to remove restrictions mandated by the Food Security Act of
[[Page 39049]]
1985 that preclude eligibility for crop insurance for any person who in
any crop year produces an agricultural commodity on a field which is
classified as predominantly highly erodible land (sodbuster provision)
or converted wetland (swampbuster provision). The Federal Agriculture
Improvement and Reform Act of 1996 (the 1996 Act) amends the crop
insurance restrictions, so producers who are in violation of the
sodbuster/swampbuster provisions will be eligible for crop insurance
coverage on or after July 3, 1996.
DATES: Effective date: July 3, 1996.
Comment date. Written comments, data, and opinions on this rule
will be accepted until close of business September 23, 1996.
ADDRESSES: Interested persons are invited to submit written comments to
the Chief, Product Development Branch, Federal Crop Insurance
Corporation, United States Department of Agriculture (USDA), 9435
Holmes Road, Kansas City, MO 64131. Written comments will be available
for public inspection and copying in room 0324, South Building, USDA,
14th and Independence Avenue, SW., Washington, DC, 8:15 a.m.-4:45 p.m.,
Monday through Friday, except holidays.
FOR FURTHER INFORMATION CONTACT: Stephen Hoy, Program Analyst, Research
and Development Division, Product Development Branch, FCIC, at the
Kansas City, MO, address listed above, telephone (816) 926-7730.
SUPPLEMENTARY INFORMATION:
Executive Order No. 12866 and Departmental Regulation 1512-1
This action has been reviewed under USDA procedures established by
Executive Order No. 12866 and Departmental Regulation 1512-1. This
action constitutes a review as to the need, currency, clarity, and
effectiveness of these regulations under those procedures. The sunset
review date established for these regulations is June 30, 2001.
This rule has been determined to be significant for the purposes of
Executive Order No. 12866 and therefore has been reviewed by the Office
of Management and Budget (OMB).
Cost-Benefit Analysis
A Cost-Benefit Analysis has been completed and is available to
interested persons at the address listed above. In summary, the
analysis finds that the removal of sanctions affecting a producer's
eligibility for Federal crop insurance as specified in the sodbuster
and swampbuster provisions will result in two types of costs. First,
environmental costs, in some cases, will be incurred as the elimination
of crop insurance from the list of denied benefits reduces the
sanctions associated with violating sodbuster/swampbuster provisions.
Second, if acres affected by the sodbuster/swampbuster provisions are
increasingly planted and insured, the costs to the Federal Crop
Insurance Corporation will rise. The environmental and Federal costs
associated with elimination of crop insurance as a sodbuster/
swampbuster sanction are, however, largely unknown.
Environmental costs will depend on the extent farmers produce
insurable crops (or alter practices or structures) on sodbuster/
swampbuster acreage when such activity would not otherwise occur. Many
variables will affect a producer's decision, including the amount of
land affected by sodbuster/swampbuster relative to the producer's total
acreage receiving benefits, expected prices and yields, the loss of
USDA benefits (other than crop insurance), expected crop insurance
benefits, and the expected environmental impact.
Federal costs associated with the elimination of crop insurance as
a sodbuster/swampbuster sanction are unknown because the number of
producers who will violate sodbuster/swampbuster provisions, and insure
crops produced on their farms, is impossible to judge. The actual
realized cost will depend to a large extent on FCIC's appropriately
rating sodbuster and swampbuster acreage that is planted and insured.
Between $500,000 and $1 million in crop insurance benefits were denied
annually due to sodbuster/swampbuster violations in recent years.
Benefits of a similar magnitude to the recent denials will probably be
paid in future years.
Paperwork Reduction Act of 1995
In accordance with the Paperwork Reduction Act of 1995, the
information collection requirements contained in these regulations have
been previously approved by OMB control numbers 0563-0003, 0563-0016
and 0560-0004. Copies of the information collections may be obtained
from Bonnie Hart, USDA, FSA, Advisory and Corporate Operations Staff,
Regulatory Review Group, P.O. Box 2415, Ag Box 0572, Washington, D.C.
20013-2415, 8:15 a.m.-4:45 p.m., Monday through Friday, except
holidays, telephone (202) 690-2857.
Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandate Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, FCIC
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with Federal mandates that may
result in expenditures of State, local, or tribal governments, in the
aggregate, or to the private sector, of $100 million or more in any
year. When such a statement is needed for a rule, section 205 of the
UMRA generally requires FCIC to identify and consider a reasonable
number of regulatory alternatives and adopt the least costly, more
cost-effective or least burdensome alternative that achieves the
objectives of the rule.
This rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, and tribal
governments or the private sector. Thus, this rule is not subject to
the requirements of sections 202 and 205 of the UMRA.
Executive Order No. 12612
It has been determined under section 6(a) of Executive Order No.
12612, Federalism, that this rule does not have sufficient Federalism
implication to warrant the preparation of a Federalism Assessment. The
provisions contained in this rule will not have a substantial direct
effect on States or their political subdivisions, or on the
distribution of power and responsibilities among the various levels of
Government.
Regulatory Flexibility Act
This regulation will not have a significant impact on a substantial
number of small entities. Under the current regulations, a producer is
required to complete a crop insurance acreage report, an insurance
application and a continuous contract. If the crop is damaged or
destroyed, the insured is required to give notice of loss and provide
the necessary information to complete a claim for indemnity. The
insured may use actual records of production or receive a transitional
yield which does not require the maintenance of production records. If
the insured elects to use actual records of acreage and production as
the basis for the production guarantee, the insured must report this
information on a yearly basis. This regulation does not alter those
requirements. Therefore, the amount of work required of the
[[Page 39050]]
insurance companies and Farm Service Agency (FSA) offices delivering
and servicing these policies will not increase from the amount of work
currently required. This rule does not have any greater or lesser
impact on the producer. Therefore, this action is determined to be
exempt from the provisions of the Regulatory Flexibility Act (5 U.S.C.
605), and no Regulatory Flexibility Analysis was prepared.
Federal Assistance Program
This program is listed in the Catalog of Federal Domestic
Assistance under No. 10.450.
Executive Order No. 12372
This program is not subject to the provisions of Executive Order
No. 12372, which require intergovernmental consultation with State and
local officials. See the Notice related to 7 CFR part 3015, subpart V,
published at 48 FR 29115, June 24, 1983.
Executive Order No. 12778
The Office of the General Counsel has determined that these
regulations meet the applicable standards provided in sections 2(a) and
2(b)(2) of Executive Order No. 12778. The provisions of this rule will
not have a retroactive effect prior to the effective date. The
provisions of this rule will preempt State and local laws to the extent
such State and local laws are inconsistent herewith. The administrative
appeal provisions in 7 CFR parts 11 and 780 must be exhausted before
any action for judicial review may be brought.
Environmental Evaluation
This action is not expected to have a significant impact on the
quality of the human environment, health, and safety. Therefore,
neither an Environmental Assessment nor an Environmental Impact
Statement is needed.
Background
This final rule amends section 2(j) in the General Crop Insurance
Policy (7 CFR 401.8) as mandated by the Federal Agriculture Improvement
and Reform Act of 1996. The 1996 Act removes the sodbuster/swampbuster
restrictions of Title XII of the Food Security Act of 1985 (Public Law
99-198) which preclude eligibility for crop insurance under the Federal
Crop Insurance Act (7 U.S.C. 1501 et seq.), to any person who in any
crop year produces an agricultural commodity on highly erodible land or
converted wetland. On or after of July 3, 1996, a person who produces
an agricultural commodity on a field which is classified as
predominantly highly erodible land or a converted wetland may apply for
crop insurance if the sales closing date for the crop has not passed.
Until the effective date, crop insurance policyholders must remain in
compliance with the sodbuster/swampbuster provisions. Since these
provisions are mandated by statute and planting decisions for the 1996
crop year have been or will shortly be made, it is impracticle and
contrary to the public interest to publish this rule for notice and
comment prior to making the rule effective. However, comments are
solicited for 60 days after the date of filing with the Federal
Register and will be considered by FCIC before this rule is made final.
List of Subjects in 7 CFR Part 401
Crop insurance, General crop insurance policy.
Final Rule
Pursuant to the authority contained in the Federal Crop Insurance
Act, as amended (7 U.S.C. 1501 et seq.), the Federal Crop Insurance
Corporation hereby amends the General Crop Insurance Policy in 7 CFR
part 401, effective July 3, 1996, to read as follows:
PART 401--[AMENDED]
1. The authority citation for 7 CFR part 401 continues to read as
follows:
Authority: 7 U.S.C. 1506(l), 1506(p).
2. 7 CFR part 401.8 is amended by revising section 2j. of the
General Crop Insurance Policy to read as follows:
Sec. 401.8 The application and policy.
* * * * *
General Crop Insurance Policy
* * * * *
2. Crop, Acreage, and Share Insured
* * * * *
j. Although your violation of a number of federal statutes
including the Federal Crop Insurance Act may cause cancellation,
termination, or voidance of your insurance contract, you are
specifically directed to the provisions of Title XII of the Food
Security Act of 1985 (Public Law 99-198) and the regulations
promulgated thereunder, generally referred to as the controlled
substance provisions. Your insurance policy will be cancelled if you
are determined to be in violation of these provisions. We will
recover any and all monies paid to you or received by you and your
premium will be refunded.
* * * * * * *
Signed in Washington, DC, on July 16, 1996.
Suzette M. Dittrich,
Deputy Manager, Federal Crop Insurance Corporation.
[FR Doc. 96-18616 Filed 7-25-96; 8:45 am]
BILLING CODE 3410-FA-P
Complete official Federal Register PDF
FR Doc. 96-18513 Federal Acquisition Regulation; Small Entity Compliance Guide
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39224-39226]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18513]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Chapter 1
Federal Acquisition Regulation; Small Entity Compliance Guide
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Small Entity Compliance Guide.
-----------------------------------------------------------------------
summary: This document is issued under the joint authority of the
Secretary of Defense, the Administrator of General Services and the
Administrator for the National Aeronautics and Space Administration as
the Federal Acquisition Regulation (FAR) Council. This Small Entity
Compliance Guide has been prepared in accordance with Section 212 of
the Small Business Regulatory Enforcement Fairness Act of 1996 (Public
Law 104-121). It consists of a summary of rules appearing in Federal
Acquisition Circular (FAC) 90-40 which amend the FAR. The rules marked
with an asterisk (*) are those for which a final regulatory flexibility
analysis has been prepared in accordance with 5 U.S.C. 604. Further
information regarding these rules may be obtained by referring to FAC
90-40 which precedes this notice. This document may be obtained from
the Internet at http://www.gsa.gov/far/compliance.
for further information contact: Beverly Fayson, FAR Secretariat, (202)
501-4755.
List of Rules in FAC 90-40
------------------------------------------------------------------------
Item Subject FAR case
------------------------------------------------------------------------
I................ Contingent Fee Representation........... 93-009
II............... Simplified Acquisition Threshold/Federal *94-770 *94-
Acquisition Computer Network; and Micro- 771
Purchase Procedures.
III.............. Gratuities.............................. 96-300
IV............... Disaster Relief Act..................... 93-303
V................ Responsibility Determinations........... 95-007
VI............... Task and Delivery Orders................ *94-711
VII.............. Multiyear Contracting................... *94-712
VIII............. Small Business/Simplified Acquisition *94-782
Threshold.
IX............... Indian-Owned Economic Enterprises....... *91-028
X................ General Agreement on Tariffs and Trade 95-308
Patent Authorization.
XI............... Performance and Payment Bonds........... 91-027
XII.............. Employee Compensation Costs............. 93-005
XIII............. Agency Procurement Protests............. 95-309
XIV.............. Value Engineering....................... 96-315
XV............... Termination Inventory Schedules......... *94-003
------------------------------------------------------------------------
[[Page 39225]]
Item I--Contingent Fee Representation (FAR Case 93-009)
This final rule amends FAR Subpart 3.4 to remove the requirement
for prospective contractors to provide certain information regarding
contingent fee arrangements. Accordingly, the provision at 52.203-4,
Contingent Fee Representation and Agreement, and Standard Form 119,
Statement of Contingent or Other Fees, are also removed. The underlying
policy pertaining to contingent fee arrangements, as set forth in
Subpart 3.4, remains the same.
Item II--Simplified Acquisition Threshold/Federal Acquisition Computer
Network; and Micro-Purchase Procedures (FAR Cases 94-770 and 94-771)
The interim rules published as Item II of FAC 90-24 and Item III of
FAC 90-29 are amended and adopted as final. The rules implement the
micro-purchase, simplified acquisition, and Federal Acquisition
Computer Network (FACNET) provisions of the Federal Acquisition
Streamlining Act of 1994 (Public Law 103-355), and Section 4302(b) of
the Federal Acquisition Reform Act of 1996 (Public Law 104-106). The
final rules differ from the interim rules in that they (1) move
definitions pertaining to micro-purchases, simplified acquisition
procedures, and FACNET from Parts 4 and 13 to Part 2; (2) remove the
requirement for interim FACNET certification before a contracting
office may use simplified acquisition procedures for contract actions
exceeding $50,000; (3) remove the clause at 52.222-40, Service Contract
Act of 1965, as Amended--Contracts of $2,500 or Less, based upon a
change in Department of Labor regulations; and (4) provide a telephone
number for information regarding FACNET at 4.503.
Item III--Gratuities (FAR Case 96-300)
This interim rule amends FAR 3.202 and 52.203-3 to implement
Section 801 of the National Defense Authorization Act for Fiscal Year
1996 (Public Law 104-106). Section 801 amends 10 U.S.C. 2207, generally
referred to as the Gratuities Act, to exempt contracts which do not
exceed the simplified acquisition threshold from application of the
Act. Therefore, the clause at 52.203-3, Gratuities, is now prescribed
for inclusion in only those contracts which exceed the simplified
acquisition threshold.
Item IV--Disaster Relief Act (FAR Case 93-303)
This final rule amends FAR 6.302-5, and adds FAR Subpart 26.2, to
implement the Robert T. Stafford Disaster Relief and Emergency
Assistance Act (42 U.S.C. 5150). Section 5150 establishes a preference
for local sources in the award of contracts for major disaster or
emergency assistance activities.
Item V--Responsibility Determinations (FAR Case 95-007)
This final rule amends FAR Subpart 9.1 to emphasize the use of
commercial sources of information for determining the responsibility of
prospective contractors, and to clarify that preaward surveys normally
should be requested only when information on hand or readily available
is not sufficient.
Item VI--Task and Delivery Orders (FAR Case 94-711)
The interim rule published as Item III of FAC 90-33 is amended and
adopted as final. The interim rule added FAR Section 16.500 to define
the scope of the multiple award preference established by Subpart 16.5
for indefinite-quantity contracts. The final rule differs from the
interim rule in that it amends Section 16.500 to clarify that the
multiple award preference does not apply to architect-engineer
contracts subject to the procedures in Subpart 36.6. However, agencies
are not precluded from making multiple awards for architect-engineer
services, provided the selection of contractors and placement of orders
is consistent with Subpart 36.6. The rule also amends Section 16.504 to
clarify procedures for determining if multiple awards are appropriate.
Item VII--Multiyear Contracting (FAR Case 94-712)
This final rule revises FAR Subpart 17.1, removes the clause at
52.217-1, and revises the clause at 52.217-2 to implement Sections 1022
and 1072 of the Federal Acquisition Streamlining Act of 1994 (Public
Law 103-355). Sections 1022 and 1072 provide for use of multiyear
contracting in a manner that will encourage competition or promote
economy in administration, performance, and operation of an agency's
programs.
Item VIII--Small Business/Simplified Acquisition Threshold (FAR Case
94-782)
This final rule amends FAR Part 19 and the clauses at 52.219-6,
52.219-7, and 52.219-18 to implement Section 4004 of the Federal
Acquisition Streamlining Act of 1994 (Public Law 103-355). Section 4004
amends Section 15(j) of the Small Business Act (15 U.S.C. 644(j)) to
reserve each contract for supplies or services that has an anticipated
value greater than $2,500, but not greater than $100,000, for exclusive
participation by small business concerns, unless the contracting
officer is unable to obtain offers from two or more small business
concerns that are competitive with regard to price, quality, and
delivery. This rule also reflects a final rule published by the Small
Business Administration at 13 CFR 121.406, which provides that, where
the procurement of a manufactured item is processed under FAR Part 13
procedures, set aside for small business concerns, and not expected to
exceed $25,000, an offeror need not supply the end product of a small
business concern as long as the product is manufactured or produced in
the United States.
Item IX--Indian-Owned Economic Enterprises (FAR Case 91-028)
The interim rule published as Item VIII of FAC 90-7 is amended and
adopted as final. The rule implements 25 U.S.C. 1544, which provides
for payment of incentives to prime contractors who use Indian
organizations or Indian-owned economic enterprises as subcontractors.
The principal difference between the interim rule and the final rule is
the method of incentive payment contained in each. The interim rule
permitted prime contractors to recover certain costs of subcontracting
with Indian organizations and Indian-owned economic enterprises based
on the difference in price between the acceptable low non-Indian
subcontractor and the acceptable low Indian subcontractor, when the
Indian subcontractor's price exceeded the price of the non-Indian
subcontractor. The final rule instead permits an incentive payment to
the prime contractor in an amount which equals 5 percent of the amount
of the subcontract awarded to the Indian organization or Indian-owned
economic enterprise. The applicable amendments are in Subpart 26.1 and
the clause at 52.226-1.
Item X--General Agreement on Tariffs and Trade Patent Authorization
(FAR Case 95-308)
This final rule adds FAR Section 27.209 to provide guidance
pertaining to the use of patented technology under the General
Agreement on Tariffs and Trade.
[[Page 39226]]
Item XI--Performance and Payment Bonds (FAR Case 91-027)
This final rule amends FAR Subpart 28.1 and the clause at 52.228-1,
and adds two clauses at 52.228-15 and 52.228-16, and new SF 1418 to
update, clarify, and standardize policy pertaining to bid guarantees
and performance and payment bonds.
Item XII--Employee Compensation Costs (FAR Case 93-005)
This final rule amends FAR Part 31 to clarify the allowability of
personal services compensation costs. The rule adds definitions at
31.001; clarifies the standard for reasonableness of labor-management
compensation agreements at 31.205-6(b); revises 31.205-6(b)(1)(i) to
clearly allow offsets of allowable elements of employee compensation
packages among jobs of the same grade or level; and revises 31.205-6(i)
to provide a general allowability rule pertaining to corporate
securities.
Item XIII--Agency Procurement Protests (FAR Case 95-309)
This interim rule revises FAR 33.103 to implement Executive Order
12979, Agency Procurement Protests. Executive Order 12979 provides for
inexpensive, informal, procedurally simple, and expeditious resolution
of agency protests, including, where appropriate and permitted by law,
the use of alternative dispute resolution techniques, third party
neutrals, and another agency's personnel.
Item XIV--Value Engineering (FAR Case 96-315)
This final rule amends FAR Part 48 to revise the definition of
value engineering and to require agencies to establish and maintain
cost-effective value engineering procedures and processes. The rule
implements Section 4306 of the Federal Acquisition Reform Act of 1996
(Public Law 104-106).
Item XV--Termination Inventory Schedules (FAR Case 94-003)-
This final rule amends FAR Part 49 and the clauses at 52.249-2,
52.249-3, 52.249-5, 52.249-6, and 52.249-11 to require contractors
under terminated contracts to submit termination inventory schedules
within 120 days from the date of termination, unless this period is
extended by the contracting officer.
Dated: July 16, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
[FR Doc. 96-18513 Filed 7-25-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-18512 Federal Acquisition Regulation; Termination Inventory Schedules
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39221-39224]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18512]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 49 and 52
[FAC 90-40; FAR Case 94-003; Item XV]
RIN 9000-AG13
Federal Acquisition Regulation; Termination Inventory Schedules
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule amending
the Federal Acquisition Regulation (FAR) concerning termination of
contracts to preclude excessive delays in processing terminations for
the convenience of the Government. The amendments will require
contractors to prepare and submit termination inventory schedules
within 120 days from the effective date of termination, unless
otherwise extended by the Termination Contracting Officer (TCO). This
will enable the TCO to initiate early inventory screening and final
disposition, thereby substantially reducing the time required to
achieve termination settlement. This regulatory action was not subject
to Office of Management and Budget review under Executive Order 12866,
dated September 30, 1993, and is not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: September 24, 1996.
FOR FURTHER INFORMATION CONTACT: Ms. Linda Klein at (202) 501-3775 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-40, FAR case 94-003.
SUPPLEMENTARY INFORMATION:
A. Background-
When inventory schedules required for contracts terminated for the
convenience of the Government are not submitted in a timely manner by
the terminated contractor(s), unnecessary delays are experienced both
in effecting redistribution and disposal of the termination inventory
and in reaching final settlement of those contracts.-
In an attempt to preclude excessive delays in processing
terminations for the convenience of the Government, a proposed rule was
published in the Federal Register at 59 FR 61734, December 1, 1994,
with a request for comment. As a result of the comments received under
the proposed rule, the following changes to the final rule have been
made:
--The reference to ``provisions'' in the first sentence of both FAR
49.206-3 and 49.303-2 has been revised to read ``terms'';-
--The word ``must'' in the last sentence of FAR 49.206-3 and 49.303-2
is changed to read ``shall''; -
--The events described in the clauses at 52.249-2 (c) and (d), 52.249-3
(c) and (d), 52.249-6 (d) and (e), and 52.249-11 (c) and (d) have been
reversed to reflect the order in which the events occur; and-
--Several references have been updated.
B. Regulatory Flexibility Act-
A Final Regulatory Flexibility Analysis (FRFA) has been prepared
and will be provided to the Chief Counsel for Advocacy of the Small
Business Administration. A copy of the FRFA may be obtained from the
FAR Secretariat. Comments are invited. Comments from small entities
concerning the affected FAR subparts will be considered in accordance
with 5 U.S.C. 610. Such comments must be submitted separately and cite
5 U.S.C 601 et seq. (FAC 90-40, FAR Case 94-003), in correspondence.
C. Paperwork Reduction Act-
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501 et seq. Submission of
termination inventory schedules is an existing requirement; this rule
merely changes the timing for submission of those schedules.
List of Subjects in 48 CFR Parts 49 and 52
Government procurement.
Dated: July 16, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Parts 49 and 52 are amended as set forth below:-
1. The authority citation for 48 CFR Parts 49 and 52 continues to
read as follows:
-Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 49--TERMINATION OF CONTRACTS
49.105 [Amended]-
2. Section 49.105(c)(13) is amended by adding ``(see 49.206-3 and
49.303-2)'' to the end of the sentence.-
3. Section 49.206-3 is added to read as follows:
49.206-3 Submission of inventory schedules.-
Subject to the terms of the termination clause and whenever
termination inventory is involved, the contractor shall submit complete
inventory schedules, to the TCO, reflecting inventory that is allocable
to the terminated portion of the contract. The inventory schedules
shall be submitted within 120 days from the effective date of
termination unless otherwise extended by the TCO based on a written
justification to support the extension. The inventory schedules shall
be prepared on the forms prescribed in 49.602-2 and in accordance with
45.606-5.
49.303-2, 49.303-3, 49.303-4 [Redesignated as 49.303-3 through 49.303-
5].-
4. Sections 49.303-2, 49.303-3, and 49.303-4 are redesignated as
49.303-3, 49.303-4, and 49.303-5, respectively, and a new 49.303-2 is
added to read as follows:
49.303-2 Submission of inventory schedules.-
Subject to the terms of the termination clause and whenever
termination inventory is involved, the contractor shall submit complete
inventory schedules, to the TCO, reflecting inventory that is allocable
to the terminated portion of the contract. The inventory schedules
shall be submitted within 120 days from the effective date of
termination unless otherwise extended by the TCO based on a written
justification to support the extension. The inventory schedules shall
be prepared on the forms prescribed in
[[Page 39222]]
49.602-2 and in accordance with 45.606-5.
49.403 [Amended]-
5. Section 49.403 is amended in paragraph (b)(1) by removing
``(g)(3)'' and inserting ``(h)(3)''; and in paragraph (b)(2) by
removing ``(g)(4)'' and inserting ``(h)(4)''.
49.502 [Amended]-
6. Section 49.502 is amended in paragraph (e)(1) by removing
``paragraph (c)'' and inserting ``paragraph (d)''; and in paragraph
(e)(2) by removing ``paragraph (g)'' and inserting ``paragraph (h)''.
49.503 [Amended]-
7. Section 49.503 is amended in paragraph (c) by removing
``paragraphs (d), (i), and (m)'' and inserting ``paragraphs (e), (j),
and (n)''.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES-
5. Section 52.249-2 is amended by revising the introductory text
and clause date; by redesignating paragraphs (c) through (m) as (d)
through (n), respectively, and adding a new (c); and by redesignating
paragraph (f) of Alternates I and III as (g), to read as follows:
52.249-2 Termination for Convenience of the Government (Fixed-Price).-
As prescribed in 49.502(b)(1)(i), insert the following clause:
TERMINATION FOR CONVENIENCE OF THE GOVERNMENT (FIXED-PRICE) (SEP 1996)
* * * * *-
(c) The Contractor shall submit complete termination inventory
schedules no later than 120 days from the effective date of
termination, unless extended in writing by the Contracting Officer
upon written request of the Contractor within this 120-day period.
* * * * *
52.249-2 [Amended]-
5b. In addition to the amendments set forth above, 52.249-2 is
amended in the newly designated paragraphs by revising internal
references to read as follows:
------------------------------------------------------------------------
Paragraph Remove Insert
------------------------------------------------------------------------
(b)(9), 1st sentence............ ``subparagraph (6) ``subparagraph
above''. (b)(6) of this
clause''
(f), 1st sentence............... ``paragraph (d)''. ``paragraph (e)''
(f), 3rd sentence............... ``paragraph (e) or ``paragraph (f) or
paragraph (f)''. paragraph (g)''
``subparagraph ``subparagraph
(f)(3)''. (g)(3)''
(f), last sentence.............. ``Paragraph (f)''. ``Paragraph (g)''
(g), introductory text.......... ``paragraph (e) ``paragraph (f) of
above''. this clause''
(g)(1).......................... ``subparagraph ``subparagraph
(b)(9) above''. (b)(9) of this
clause''
(g)(2)(i)....................... ``subparagraph ``subparagraph
(f)(1) above''. (g)(1) of this
clause''
(g)(2) (ii) and (iii)........... ``subdivision (i) ``subdivision
above''. (g)(2)(i) of this
clause''
(h)............................. ``paragraph (f) ``paragraph (g) of
above''. this clause''
(j)............................. ``paragraph (d), ``paragraph (e),
(f), or (k)''. (g), or (l)''
``paragraph (d) or ``paragraph (e) or
(k)''. (l)''
Alternate I heading and ``(APR 1984)'' ``(SEP 1996)''
introductory text. ``paragraph (f) ``paragraph (g)
for paragraph for paragraph
(f)''. (g)''
Alternate I..................... Paragraph ``(f)'' Paragraph ``(g)''
designation. designation
Alternate I, (g) introductory ``paragraph (e) ``paragraph (f) of
paragraph. above''. this clause''
Alternate I, (g)(1)(ii)......... ``subdivision (i) ``subdivision
above''. (g)(1)(i) of this
clause''
Alternate I, (g)(1)(iii)........ ``(i) above''..... ``subdivision
(g)(1)(i) of this
clause''
Alternate II.................... ``(APR 1984)''.... ``(SEP 1996)''
Alternate II.................... ``subparagraph ``subparagraph
(l)(2)''. (m)(2)''
Alternate III heading........... ``(APR 1984)''.... ``(SEP 1996)''
Alternate III introductory text. ``(f) for ``(g) for
paragraph (f)''. paragraph (g)''
``Subparagraph ``Subparagraph
(l)(2)''. (m)(2)''
Alternate III................... Paragraph ``(f)'' Paragraph ``(g)''
designation. designation
Paragraph (g) of Alternate III.. ``Paragraph (e) ``Paragraph (f) of
above''. this clause''
Alternate III, (g)(1)(ii)....... ``subdivision (i) ``subdivision
above''. (g)(1)(i) of this
clause''
Alternate III, (g)(1)(iii)...... ``(i) above''..... ``subdivision
(g)(1)(i) of this
clause
------------------------------------------------------------------------
6. Section 52.249-3 is amended by revising the introductory text
and clause date; redesignating paragraphs (c) through (m) as (d)
through (n), respectively, and adding a new paragraph (c) to read as
follows:
52.249-3 Termination for Convenience of the Government (Dismantling,
Demolition, or Removal of Improvements).
As prescribed in 49.502(b)(2), insert the following clause:
TERMINATION FOR CONVENIENCE OF THE GOVERNMENT (DISMANTLING, DEMOLITION,
OR REMOVAL OF IMPROVEMENTS) (SEP 1996)
* * * * *
(c) The Contractor shall submit complete termination inventory
schedules no later than 120 days from the effective date of
termination, unless extended in writing by the Contracting Officer
upon written request of the Contractor within this 120-day period.
* * * * *
52.249-3 [Amended]
6b. In addition to the amendments set forth above, 52.249-3 is
further amended in the newly designated paragraphs by revising internal
references to read as follows:
------------------------------------------------------------------------
Paragraph Remove Insert
------------------------------------------------------------------------
(b)(9), 1st sentence............ ``subparagraph (6) ``subparagraph
above''. (b)(6) of this
clause''
(f), 1st sentence............... ``paragraph (d) ``paragraph (e) of
above''. this clause''
(f), 3rd sentence............... ``paragraph (e) or ``paragraph (f) or
paragraph (f) paragraph (g) of
below''. this clause''
(f), last sentence.............. ``Paragraph (f) ``Paragraph (g) of
below''. this clause''
(g), introductory text.......... ``paragraph (e) ``paragraph (f) of
above''. this clause''
[[Page 39223]]
(g)(1)(ii)...................... ``subdivision (i) ``subdivision
above''. (g)(1)(i) of this
clause''
(g)(1)(iii)..................... ``subdivision (i) ``subdivision
above''. (g)(1)(i) of this
clause''
(g)(2)(iii)..................... ``subparagraph ``subparagraph
(b)(8) above''. (b)(8) of this
clause''
(h)............................. ``paragraph (f) ``paragraph (g) of
above''. this clause''
(j)............................. ``paragraph (d), ``paragraph (e),
(f), or (k)'' (g), or (l) of
both times it this clause''
appears.
``paragraph (d) or ``paragraph (e) or
(k)''. (l)''
Alternate I..................... ``(APR 1984)''.... ``(SEP 1996)''
``subparagraph ``subparagraph
(1)(2)''. (m)(2)''
------------------------------------------------------------------------
7. Section 52.249-5 is amended by revising the introductory text
and clause date; redesignating paragraphs (c) through (g) as (d)
through (h), respectively, and adding a new paragraph (c) to read as
follows:
52.249-5 Termination for Convenience of the Government (Educational
and Other Nonprofit Institutions).
As prescribed in 49.502(d), insert the following clause:
TERMINATION FOR CONVENIENCE OF THE GOVERNMENT (EDUCATIONAL AND OTHER
NONPROFIT INSTITUTIONS) (SEP 1996)
* * * * *
(c) The Contractor shall submit complete termination inventory
schedules no later than 120 days from the effective date of
termination, unless extended in writing by the Contracting Officer
upon written request of the Contractor within this 120-day period.
* * * * *
52.249-5 [Amended]
7b. In addition to the amendments set forth above, 52.249-5 is
further amended in the newly designated paragraphs by revising internal
references to read as follows:
------------------------------------------------------------------------
Paragraph Remove Insert
------------------------------------------------------------------------
(b)(9).......................... ``subparagraph (6) ``subparagraph
above''. (b)(6) of this
clause''
(e)............................. ``paragraph (c) ``paragraph (d) of
above''. this clause''
(h)............................. ``paragraph (c)''. ``paragraph (d) of
this clause''
------------------------------------------------------------------------
8. Section 52.249-6 is amended in the clause by revising the clause
date; redesignating paragraphs (d) through (m) as (e) through (n),
respectively; by adding a new paragraph (d); by redesignating paragraph
(g) of Alternates (IV) and (V) as paragraph (h) to read as follows:
52.249-6 Termination (Cost-Reimbursement).
* * * * *
TERMINATION (COST-REIMBURSEMENT) (SEP 1996)
* * * * *
(d) The Contractor shall submit complete termination inventory
schedules no later than 120 days from the effective date of
termination, unless extended in writing by the Contracting Officer
upon written request of the Contractor within this 120-day period.
* * * * *
52.249-6 [Amended]
8b. In addition to the amendments set forth above, 52.249-6 is
further amended in the newly designated paragraphs by revising internal
references to read as follows:
------------------------------------------------------------------------
Paragraph Remove Insert
------------------------------------------------------------------------
(c)(9).......................... ``subparagraph (6) ``subparagraph
above''. (c)(6) of this
clause''
(g)............................. ``paragraph (e) ``paragraph (f) of
above''. this clause''
(h)(2).......................... ``subparagraph (1) ``subparagraph
above''. (h)(1) of this
clause''
(h)(5).......................... ``subparagraph ``subparagraph
(g)(4) above''. (h)(4) of this
clause''
(j), 1st sentence............... ``paragraph (e) or ``paragraph (f),
(g) above or (h), or (l) of
paragraph (k) this clause''
below''.
``paragraph (e)''. ``paragraph (f)''
(j), 2nd sentence............... ``paragraph (e), ``paragraph (f),
(g), or (k)''. (h), or (l) of
this clause''
Alternate I..................... ``(APR 1984)'' ``(SEP 1996)''
``(g)(4) for ``(h)(4) for
subparagraph subparagraph
(g)(4)''. (h)(4)''
Alternate II.................... ``(APR 1984)'' ``(SEP
``subparagraph 1996)''``subparag
(1)(2)''. raph (m)(2)''
Alternate III, introductory ``(APR 1984)''.... ``(SEP 1996)''
heading and text.
``(g)(4) shall be ``(h)(4) shall be
substituted for substituted for
subparagraph subparagraph
(g)(4)''. (h)(4)''
``Subparagraph ``Subparagraph
(1)(2)''. (m)(2)''
Alternate IV introductory ``(APR 1984)''.... ``(SEP 1996)''
heading and text.
``(g) and (k) for ``(h) and (l) for
paragraphs (g) paragraphs (h)
and (k)''. and (l)''
Alternate IV.................... Paragraph ``(g)'' Paragraph ``(h)''
designation. designation
Alternate IV, (h)(1)(iv)........ ``(g)(1)(i)''..... ``subdivision
(h)(1)(i)''
Alternate (IV), (h)(2) ``(g)(1)''........ ``subparagraph
introductory text. (h)(1)''
Alternate IV.................... Paragraph ``(k)'' Paragraph ``(l)''
designation. designation
Alternate V introductory heading ``(APR 1984)''.... ``(SEP 1996)''
and text.
``the following ``the following
paragraphs (g) paragraphs (h)
and (k) for and (l) for
paragraphs (g) paragraphs (h)
and (k)''. and (l)''
``Subparagraph ``Subparagraph
(l)(2)''. (m)(2)''
Alternate V..................... Paragraph ``(g)'' Paragraph ``(h)''
designation. designation
(h)(1)(iv) of Alternate V....... ``(g)(1)(i)''..... ``subdivision
(h)(1)(i)''
Alternate V, (h)(2) introductory ``(1) above''..... ``subparagraph
text. (h)(1) of this
clause''
[[Page 39224]]
Alternate V..................... Paragraph ``(k)'' Paragraph ``(l)''
designation. designation
------------------------------------------------------------------------
9. Section 52.249-11 is amended by revising the introductory text
and clause date; redesignating paragraphs (c) through (k) as (d)
through (l), respectively; and adding a new paragraph (c) to read as
follows:
52.249-11 Termination of Work (Consolidated Facilities or Facilities
Acquisition).
As prescribed in 49.505(a), insert the following clause:
TERMINATION OF WORK (CONSOLIDATED FACILITIES OR FACILITIES ACQUISITION)
(SEP 1996)
* * * * *
(c) The Contractor shall submit complete termination inventory
schedules no later than 120 days from the effective date of
termination, unless extended in writing by the Contracting Officer
upon written request of the Contractor within this 120-day period.
* * * * *
9b. In addition to the amendments set forth above, 52.249-11 is
further amended in the newly designated paragraphs by revising internal
references to read as follows:
------------------------------------------------------------------------
Paragraph Remove Insert
------------------------------------------------------------------------
(b)(9).......................... ``subparagraph (6) ``subparagraph
above''. (b)(6) of this
clause''.
(f)............................. ``paragraph (d) ``paragraph (e) of
above''. this clause''.
(g)(2).......................... ``subparagraph (1) ``subparagraph
above''. (g)(1) of this
clause''.
(i)............................. ``paragraph (d) or ``paragraph (e) or
(f) above'' both (g) of this
times it appears. clause''.
``paragraph (d) ``paragraph (e) of
above''. this clause''.
Alternate I..................... ``(APR 1984)''.... ``(SEP 1996)''.
``subparagraph ``subparagraph
(j)(2)''. (k)(2)''.
------------------------------------------------------------------------
[FR Doc. 96-18512 Filed 7-25-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-18511 Federal Acquisition Regulation; Value Engineering
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39220-39221]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18511]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 48
[FAC 90-40; FAR Case 96-315; Item XIV]
RIN 9000-AH12
Federal Acquisition Regulation; Value Engineering
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule to amend
the Federal Acquisition Regulation (FAR) to revise the definition of
value engineering and to require agencies to establish and maintain
cost-effective value engineering procedures and processes. This
regulatory action was not subject to Office of Management and Budget
review under Executive Order 12866, dated September 30, 1993, and is
not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: August 26, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Peter O'Such (202) 501-1759 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-40, FAR case 96-315.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule implements Section 4306 of the Federal Acquisition
Reform Act of 1996 (Pub. L. 104-106). Section 4306 adds Section 36 to
the Office of Federal Procurement Policy Act (41 U.S.C. 401, et seq.)
to define value engineering and to establish Federal procurement policy
that each agency shall establish and maintain cost-effective value
engineering procedures and processes.
B. Regulatory Flexibility Act
The final rule does not constitute a significant FAR revision
within the meaning of FAR 1.501 and Public Law 98-577, and publication
for public comments is not required. Therefore, the Regulatory
Flexibility Act does not apply. However, comments from small entities
concerning the affected FAR subpart will be considered in accordance
with 5 U.S.C. 610. Such comments must be submitted separately and cite
5 U.S.C. 601, et seq. (FAC 90-40, FAR case 96-315), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 48
Government procurement.
Dated: July 16, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Part 48 is amended as set forth below:
PART 48--VALUE ENGINEERING
1. The authority citation for 48 CFR Part 48 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
2. Section 48.001 is amended by revising the definition ``Value
engineering'' to read as follows:
48.001 Definitions.
* * * * *
Value engineering, as used in this part, means an analysis of the
functions of a program, project, system, product, item of equipment,
building, facility, service, or supply of an executive agency,
performed by qualified agency or contractor personnel, directed at
improving performance, reliability, quality, safety, and life-cycle
costs (Section 36 of the Office of Federal Procurement Policy Act, 41
U.S.C. 401, et seq.).
* * * * *
3. Section 48.102 is amended in paragraph (a) by adding a new first
sentence to read as follows:
[[Page 39221]]
48.102 Policies.
(a) As required by Section 36 of the Office of Federal Procurement
Policy Act (41 U.S.C. 401, et seq.), agencies shall establish and
maintain cost-effective value engineering procedures and processes. * *
*
* * * * *
[FR Doc. 96-18511 Filed 7-25-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-18510 Federal Acquisition Regulation; Agency Procurement Protests
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39219-39220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18510]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 33
[FAC 90-40, FAR Case 95-309, Item XIII]
RIN 9000-AH10
Federal Acquisition Regulation; Agency Procurement Protests
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule with request for comment.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed to an interim rule amending
the Federal Acquisition Regulation (FAR) to provide for informal,
procedurally simple, and inexpensive resolution of protests. This
interim rule implements Executive Order 12979 which was signed by the
President on October 25, 1995. This regulatory action was not subject
to Office of Management and Budget review under Executive Order 12866,
dated September 30, 1993, and is not a major rule under 5 U.S.C. 804.
DATES: Effective Date: July 26, 1996.
Comment Date: Comments should be submitted to the FAR Secretariat
at the address shown below on or before September 24, 1996 to be
considered in the formulation of a final rule.
ADDRESSES: Interested parties should submit written comments to:
General Services Administration, FAR Secretariat (MVR), 18th & F
Streets, NW., Room 4035, Attn: Ms. Beverly Fayson, Washington, DC
20405.
Please cite FAC 90-40, FAR case 95-309, in all correspondence
related to this case.
FOR FURTHER INFORMATION CONTACT: Mr. Jack O'Neill at (202) 501-3856 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-40, FAR case 95-309.
SUPPLEMENTARY INFORMATION:
A. Background
This interim rule revises the agency procurement protest procedures
at FAR 33.103 to implement Executive Order 12979 of October 25, 1995,
Agency Procurement Protests (60 FR 55171, October 27, 1995).
B. Regulatory Flexibility Act
The interim rule may have a significant economic impact on a
substantial number of small entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601 et seq., because it provides
for a simpler, less expensive means of resolving agency protests. An
Initial Regulatory Flexibility Analysis (IRFA) has been prepared and
will be provided to the Chief Counsel for Advocacy of the Small
Business Administration. A copy of the IRFA may be obtained from the
FAR Secretariat. Comments are invited. Comments from small entities
concerning the affected FAR subpart will be considered in accordance
with 5 U.S.C. 610. Such comments must be submitted separately and cite
5 U.S.C. 601, et seq. (FAC 90-40, FAR Case 95-309), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
D. Determination to Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense (DOD), the Administrator of General Services (GSA), and the
Administrator of the National Aeronautics and Space Administration
(NASA) that compelling reasons exist to promulgate this interim rule
without prior opportunity for public comment. This action is necessary
in order to implement Executive Order 12979, Agency Procurement
Protests, which required incorporation of its policies into the Federal
Acquisition Regulation by April 22, 1996. However, pursuant to Public
Law 98-577 and FAR 1.501, public comments received in response to this
interim rule will be considered in the formation of the final rule.
List of Subjects in 48 CFR Part 33
Government procurement.
Dated: July 16, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR part 33 is amended as set forth below:
PART 33--PROTESTS, DISPUTES AND APPEALS
1. The authority citation for 48 CFR part 33 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
2. Section 33.103 is revised to read as follows:
33.103 Protests to the agency.
(a) Reference. Executive Order 12979, Agency Procurement Protests,
establishes policy on agency procurement protests.
(b) Prior to submission of an agency protest, all parties shall use
their best efforts to resolve concerns raised by an interested party at
the contracting officer level through open and frank discussions.
(c) The agency should provide for inexpensive, informal,
procedurally simple, and expeditious resolution of protests. Where
appropriate and permitted by law, the use of alternative dispute
resolution techniques, third party neutrals, and another agency's
personnel are acceptable protest resolution methods.
(d) The following procedures are established to resolve agency
protests effectively, to build confidence in the Government's
acquisition system, and to reduce protests outside of the agency:
(1) Protests shall be concise and logically presented to facilitate
review by the agency. Failure to substantially comply with any of the
requirements of paragraph (d)(2) of this section may be grounds for
dismissal of the protest.
(2) Protests shall include the following information:
(i) Name, address, fax number, and telephone number of the
protester.
(ii) Solicitation or contract number.
(iii) Detailed statement of the legal and factual grounds for the
protest, to include a description of resulting prejudice to the
protester.
(iv) Copies of relevant documents.
(v) Request for a ruling by the agency.
(vi) Statement as to the form of relief requested.
(vii) All information establishing that the protester is an
interested party for the purpose of filing a protest.
(viii) All information establishing the timeliness of the protest.
(3) All protests filed directly with the agency will be addressed
to the
[[Page 39220]]
contracting officer or other official designated to receive protests.
(4) Interested parties may request an independent review at a level
above the contracting officer, of any decision by the contracting
officer that is alleged to have violated a statute or regulation and
thereby caused prejudice to the offeror. This independent review need
not be established within the contracting officer's supervisory chain.
(e) Protests based on alleged apparent improprieties in a
solicitation shall be filed before bid opening or the closing date for
receipt of proposals. In all other cases, protests shall be filed no
later than 14 days after the basis of protest is known or should have
been known, whichever is earlier. The agency, for good cause shown, or
where it determines that a protest raises issues significant to the
agency's acquisition system, may consider the merits of any protest
which is not timely filed.
(f) Action upon receipt of protest. (1) Upon receipt of a protest
before award, a contract may not be awarded, pending resolution of the
protest, unless contract award is justified, in writing, for urgent and
compelling reasons or is determined, in writing, to be in the best
interest of the Government. Such justification or determination shall
be approved at a level above the contracting officer, or by another
official pursuant to agency procedures.
(2) If award is withheld pending resolution of the protest, the
contracting officer will inform the offerors whose offers might become
eligible for award of the contract. If appropriate, the offerors should
be requested, before expiration of the time for acceptance of their
offers, to extend the time for acceptance to avoid the need for
resolicitation. In the event of failure to obtain such extension of
offers, consideration should be given to proceeding with award pursuant
to paragraph (f)(1) of this section.
(3) Upon receipt of a protest within 10 days after contract award
or within 5 days after a debriefing date offered to the protester under
a timely debriefing request in accordance with 15.1004, whichever is
later, the contracting officer shall immediately suspend performance,
pending resolution of the protest within the agency, including any
review by an independent higher level official, unless continued
performance is justified, in writing, for urgent and compelling reasons
or is determined, in writing, to be in the best interest of the
Government. Such justification or determination shall be approved at a
level above the contracting officer, or by another official pursuant to
agency procedures.
(g) Agencies shall make their best efforts to resolve agency
protests within 35 days after the protest is filed.
(h) Agency protest decisions shall be well-reasoned, and shall
provide sufficient factual detail explaining the agency position. A
copy of the written protest decision shall be furnished to the
protester. A method that provides evidence of receipt should be used.
[FR Doc. 96-18510 Filed 7-25-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-18509 Federal Acquisition Regulation; Employee Compensation Costs
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39217-39219]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18509]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 31
[FAC 90-40; FAR Case 93-005; Item XII]
RIN 9000-AF97
Federal Acquisition Regulation; Employee Compensation Costs
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule amending
the Federal Acquisition Regulation (FAR) to clarify the regulations
concerning the allowability of personal services compensation costs.
This regulatory action was not subject to Office of Management and
Budget review under Executive Order 12866, dated September 30, 1993,
and is not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: September 24, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Jerry Olson at (202) 501-3221 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-40, FAR case 93-005.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule amends FAR 31.001, Definitions, and 31.205-6,
Compensation for personal services. The Defense Contract Audit Agency
has raised concerns that the language in FAR 31.205-6(b) may be
susceptible to differing interpretations and that the FAR does not
provide adequate guidance with regard to contractor compensation
systems. This final rule adds definitions at FAR 31.001; clarifies the
standard for reasonableness of labor-management compensation agreements
at FAR 31.205-6 (b) and (c); removes the examples from FAR 31.205-6(b);
revises FAR 31.205-6(b)(1)(i) to clearly allow offsets of allowable
elements of employees' compensation packages among jobs of the same pay
grade or level; and revises FAR 31.205-6(i) to provide a general
allowability rule. This final rule also makes editorial changes and
adds clarifying language. Most notable of these changes is the
redesignation of FAR 31.205-6(f)(2) to a restructured and renamed
31.205-6(d) to improve the flow of the cost principle and provide a
more logical placement of the language.
A proposed rule was published in the Federal Register at 59 FR
51399, October 11, 1994, with corrections published at 59 FR 60686,
November 25, 1994. Eighteen comments were received in response to the
proposed rule. All comments were considered in the development of the
final rule.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., because most contracts awarded
to small businesses are awarded on a competitive, fixed-price basis and
do not require application of the FAR cost principles.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 31
Government procurement.
Dated: July 16, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Part 31 is amended as set forth below:
PART 31--CONTRACT COST PRINCIPLES AND PROCEDURES
1. The authority citation for 48 CFR Part 31 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
2. Section 31.001 is amended by adding, in alphabetical order, the
definitions of ``Job'', ``Job class of employees'', and ``Labor
market'' to read as follows:
31.001 Definitions.
* * * * *
Job, as used in this part, means a homogeneous cluster of work
tasks, the completion of which serves an enduring purpose for the
organization. Taken as a whole, the collection of tasks, duties, and
responsibilities constitutes the assignment for one or more individuals
whose work is of the same nature and is performed at the same skill/
responsibility level--as opposed to a position, which is a collection
of tasks assigned to a specific individual. Within a job, there may be
pay categories which are dependent on the degree of supervision
required by the employee while performing assigned tasks which are
performed by all persons with the same job.
Job class of employees, as used in this part, means employees
performing in positions within the same job.
* * * * *
Labor market, as used in this part, means a place where individuals
exchange their labor for compensation. Labor markets are identified and
defined by a combination of the following factors:
(1) Geography,
(2) Education and/or technical background required,
(3) Experience required by the job,
(4) Licensing or certification requirements,
(5) Occupational membership, and
(6) Industry.
* * * * *
3. Section 31.205-6 is amended-
a. By revising the introductory text of paragraph (a) and (a)(1);
b. In paragraph (a)(5) by removing the parenthetical at the end of
the paragraph;
c. By adding introductory text to paragraph (b) and revising
paragraph (b)(1);
d. By revising the introductory text of paragraph (c);
e. By revising paragraph (d);
f. By removing paragraph (f)(2) and redesignating (f)(3) as (f)(2);
and
g. By revising paragraph (i).
The revised text reads as follows:
31.205-6 Compensation for personal services.
(a) General. Compensation for personal services includes all
remuneration paid currently or accrued, in whatever form and whether
paid immediately or deferred, for services rendered by employees to the
contractor during the period of contract performance (except as
otherwise provided for in other paragraphs of this subsection). It
includes, but is not
[[Page 39218]]
limited to, salaries; wages; directors' and executive committee
members' fees; bonuses (including stock bonuses); incentive awards;
employee stock options, and stock appreciation rights; employee stock
ownership plans; employee insurance; fringe benefits; contributions to
pension, other postretirement benefits, annuity, and employee incentive
compensation plans; and allowances for off-site pay, incentive pay,
location allowances, hardship pay, severance pay, and cost of living
differential. Compensation for personal services is allowable subject
to the following general criteria and additional requirements contained
in other parts of this cost principle:
(1) Compensation for personal services must be for work performed
by the employee in the current year and must not represent a
retroactive adjustment of prior years' salaries or wages (but see
31.205-6 (g), (h), (j), (k), (m), and (o) of this subsection).
* * * * *
(b) Reasonableness. The compensation for personal services paid or
accrued to each employee must be reasonable for the work performed.
Compensation will be considered reasonable if each of the allowable
elements making up the employee's compensation package is reasonable.
This paragraph addresses the reasonableness of compensation, except
when the compensation is set by provisions of a labor-management
agreement under terms of the Federal Labor Relations Act or similar
state statutes. The tests for reasonableness of labor-management
agreements are set forth in paragraph (c) of this subsection. In
addition to the provisions of 31.201-3, in testing the reasonableness
of individual elements for particular employees or job classes of
employees, consideration should be given to factors determined to be
relevant by the contracting officer.
(1) Among others, factors which may be relevant include general
conformity with the compensation practices of other firms of the same
size, the compensation practices of other firms in the same industry,
the compensation practices of firms in the same geographic area, the
compensation practices of firms engaged in predominantly non-Government
work, and the cost of comparable services obtainable from outside
sources. The appropriate factors for evaluating the reasonableness of
compensation depend on the degree to which those factors are
representative of the labor market for the job being evaluated. The
relative significance of factors will vary according to circumstances.
In administering this principle, it is recognized that not every
compensation case need be subjected in detail to the tests described in
this cost principle. The tests need be applied only when a general
review reveals amounts or types of compensation that appear
unreasonable or unjustified. Based on an initial review of the facts,
contracting officers or their representatives may challenge the
reasonableness of any individual element or the sum of the individual
elements of compensation paid or accrued to particular employees or job
classes of employees. In such cases, there is no presumption of
reasonableness and, upon challenge, the contractor must demonstrate the
reasonableness of the compensation item in question. In doing so, the
contractor may introduce, and the contracting officer will consider,
not only any circumstances surrounding the compensation item
challenged, but also the magnitude of other compensation elements which
may be lower than would be considered reasonable in themselves.
However, the contractor's right to introduce offsetting compensation
elements into consideration is subject to the following limitations:
(i) Offsets will be considered only between the allowable elements
of an employee's (or a job class of employees') compensation package or
between the compensation packages of employees in jobs within the same
job grade or level.
(ii) Offsets will be considered only between the allowable portion
of the following compensation elements of employees or job classes of
employees:
(A) Wages and salaries.
(B) Incentive bonuses.
(C) Deferred compensation.
(D) Pension and savings plan benefits.
(E) Health insurance benefits.
(F) Life insurance benefits.
(G) Compensated personal absence benefits. However, any of the
above elements or portions thereof, whose amount is not measurable,
shall not be introduced or considered as an offset item.
(iii) In considering offsets, the magnitude of the compensation
elements in question must be taken into account. In determining the
magnitude of compensation elements, the timing of receipt by the
employee must be considered.
* * * * *
(c) Labor-management agreements. If costs of compensation
established under ``arm's length'' negotiated labor-management
agreements are otherwise allowable, the costs are reasonable if, as
applied to work in performing Government contracts, they are not
determined to be unwarranted by the character and circumstances of the
work or discriminatory against the Government. The application of the
provisions of a labor-management agreement designed to apply to a given
set of circumstances and conditions of employment (e.g, work involving
extremely hazardous activities or work not requiring recurrent use of
overtime) is unwarranted when applied to a Government contract
involving significantly different circumstances and conditions of
employment (e.g., work involving less hazardous activities or work
continually requiring use of overtime). It is discriminatory against
the Government if it results in employee compensation (in whatever form
or name) in excess of that being paid for similar non-Government work
under comparable circumstances. Disallowance of costs will not be made
under this paragraph (c) unless--
* * * * *
(d) Form of payment. (1) Compensation for personal services
includes compensation paid or to be paid in the future to employees in
the form of cash, corporate securities, such as stocks, bonds, and
other financial instruments (see paragraph (d)(2) of this subsection
regarding valuation), or other assets, products, or services.
(2) When compensation is paid with securities of the contractor or
of an affiliate, the following additional restrictions apply:-
(i) Valuation placed on the securities shall be the fair market
value on the measurement date (i.e., the first date the number of
shares awarded is known) determined upon the most objective basis
available.-
(ii) Accruals for the cost of securities before issuing the
securities to the employees shall be subject to adjustment according to
the possibilities that the employees will not receive the securities
and that their interest in the accruals will be forfeited.
* * * * *-
(i) Compensation based on changes in the prices of corporate
securities or corporate security ownership, such as stock options,
stock appreciation rights, phantom stock plans, and junior stock
conversions.
(1) Any compensation which is calculated, or valued, based on
changes in the price of corporate securities is unallowable.
(2) Any compensation represented by dividend payments or which is
calculated based on dividend payments is unallowable.
[[Page 39219]]
(3) If a contractor pays an employee in lieu of the employee
receiving or exercising a right, option, or benefit which would have
been unallowable under this paragraph (i), such payments are also
unallowable.
* * * * *
[FR Doc. 96-18509 Filed 7-25-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-18508 Federal Acquisition Regulation; Performance and Payment Bonds
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39212-39217]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18508]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 28, 52, and 53
[FAC 90-40; FAR Case 91-027; Item XI]
RIN 9000-AE47
Federal Acquisition Regulation; Performance and Payment Bonds
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council (CAAC) and the Defense
Acquisition Regulations Council (DARC) have agreed to a final rule
amending the Federal Acquisition Regulation (FAR) to further
standardize policies governing bonding. Two new standard clauses are
added for use when performance or payment bonds are required, and a new
Standard Form 1418, Performance and Payment Bonds--Other Than
Construction, is added. This regulatory action was not subject to
Office of Management and Budget review under Executive Order 12866,
dated September 30, 1993, and is not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: September 24, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Peter O'Such at (202) 501-1759 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-40, FAR Case 91-027.
SUPPLEMENTARY INFORMATION:
A. Background
FAR 28.101-1, 28.101-2, 28.101-3, 28.102-3, 28.103-2, 28.103-3,
28.103-4, 28.106-1, 28.106-2, 28.106-3, 52.228-1, and 53.228 are
revised, and two new clauses are added, 52.228-15, Performance and
Payment Bonds--Construction, and 52.228-16, Performance and Payment
Bonds Other Than Construction, to further standardize policies
governing bonding. A proposed rule was published in the Federal
Register at 56 FR 31278, July 9, 1991.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., because the rule merely
updates, clarifies, and standardizes policy pertaining to performance
and payment bonds.
C. Paperwork Reduction Act
The Paperwork Reduction Act (Public Law 96-511) is deemed to apply
because the final rule contains information collection requirements.
Accordingly, a request for approval of an extension of an information
collection requirement concerning Office of Management and Budget (OMB)
Control Number 9000-0119, Performance and Payment Bonds, was submitted
to OMB under 44 U.S.C. 3501, et seq., and approved through May 31,
1999. Public comments were invited through a subsequent Federal
Register notice published at 61 FR 19664, April 12, 1996.
List of Subjects in 48 CFR Parts 28, 52, and 53
Government procurement.
[[Page 39213]]
Dated: July 16, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR parts 28, 52, 53 are amended as set forth below:
1. The authority citation for 48 CFR parts 28 and 52, and 53
continues to read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 28--BONDS AND INSURANCE
2. Section 28.101-1 is amended by revising paragraph (c) to read as
follows:
28.101-1 Policy on use.
* * * * *
(c) The chief of the contracting office may waive the requirement
to obtain a bid guarantee when a performance bond or a performance and
payment bond is required if it is determined that a bid guarantee is
not in the best interest of the Government for a specific acquisition
(e.g., overseas construction, emergency acquisitions, sole-source
contracts). Class waivers may be authorized by the agency head or
designee.
3. Section 28.101-2 is revised to read as follows:
28.101-2 Solicitation provision or contract clause.
(a) The contracting officer shall insert a provision or clause
substantially the same as the provision at 52.228-1, Bid Guarantee, in
solicitations or contracts that require a bid guarantee or similar
guarantee. For example, the contracting officer may modify this
provision--
(1) To set a period of time that is other than 10 days for the
return of executed bonds;
(2) For use in connection with construction solicitations when the
agency has specified that only separate bid bonds are acceptable in
accordance with 28.101-1(b);
(3) For use in solicitations for negotiated contracts; or
(4) For use in service contracts containing options for extended
performance.
(b) The contracting officer shall determine the amount of the bid
guarantee for insertion in the provision at 52.228-1 (see 28.102-2(c)).
The amount shall be adequate to protect the Government from loss should
the successful bidder fail to execute further contractual documents and
bonds as required. The bid guarantee amount shall be at least 20
percent of the bid price but shall not exceed $3 million. When the
penal sum is expressed as a percentage, a maximum dollar limitation may
be stated.
28.101-3 [Removed and reserved]
4. Section 28.101-3 is removed and reserved.
5. Section 28.102-3 is amended by revising paragraph (a) to read as
follows:
28.102-3 Solicitation requirements and contract clause.
(a) The contracting officer shall insert a clause substantially the
same as the clause at 52.228-15, Performance and Payment Bonds--
Construction, in solicitations and contracts for construction that
contain a requirement for performance and payment bonds if the
resultant contract is expected to exceed $100,000. The penal amount of
the performance bonds may be decreased in accordance with 28.102-2(a).
Where the provision at 52.228-1 is not included in the solicitation,
the contracting officer shall set a period of time for return of
executed bonds.
* * * * *
28.103-2 [Amended]
6. Section 28.103-2 is amended by removing paragraph (b) and
redesignating paragraphs (c) and (d) as (b) and (c), respectively.
28.103-3 [Amended]
7. Section 28.103-3 is amended by removing paragraphs (b) and (c)
and redesignating paragraph (d) as (b).
8. Section 28.103-4 is added to read as follows:
28.103-4 Contract clause.
The contracting officer shall insert a clause substantially the
same as the clause at 52.228-16, Performance and Payment Bonds--Other
than Construction, in solicitations and contracts that contain a
requirement for both payment and performance bonds. The contracting
officer shall determine the amount of each bond for insertion in the
clause. The amount shall be adequate to protect the interest of the
Government. The contracting officer shall also set a period of time
(normally 10 days) for return of executed bonds. Alternate I shall be
used when only performance bonds are required.
9. Section 28.106-1 is amended by revising paragraphs (c) and (m);
redesignating paragraphs (n) and (o) as (o) and (p) and adding a new
paragraph (n) to read as follows:
28.106-1 Bonds and bond related forms.
* * * * *
(c) SF 25-A, Payment Bond (see 28.102-1 and 28.106-3(b)).
* * * * *
(m) SF 1416, Payment Bond for Other Than Construction Contracts
(see 28.103-3 and 28.106-3(b)).
(n) SF 1418, Performance Bond for Other Than Construction Contracts
(see 28.103-2 and 28.106-3(b)).
* * * * *
10. Section 28.106-2 is amended by revising paragraph (a) to read
as follows:
28.106-2 Substitution of surety bonds.
(a) A new surety bond covering all or part of the obligations on a
bond previously approved may be substituted for the original bond if
approved by the head of the contracting activity, or as otherwise
specified in agency regulation.
* * * * *
11. Section 28.106-3 is amended by revising paragraph (b) to read
as follows:
28.106-3 Additional bond or security.
* * * * *
(b) When additional coverage is furnished in whole or in part by a
new surety, agencies shall use Standard Form 25, Performance Bond;
Standard Form 1418, Performance Bond for Other Than Construction
Contracts; Standard Form 25-A, Payment Bond; or Standard Form 1416,
Payment Bond for Other Than Construction Contracts.
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
12. Section 52.228-1 is revised to read as follows:
52.228-1 Bid Guarantee.
As prescribed in 28.101-2, insert a provision or clause
substantially as follows:
Bid Guarantee (SEP 1996)-
(a) Failure to furnish a bid guarantee in the proper form and
amount, by the time set for opening of bids, may be cause for
rejection of the bid.
(b) The bidder shall furnish a bid guarantee in the form of a
firm commitment, e.g., bid bond supported by good and sufficient
surety or sureties acceptable to the Government, postal money order,
certified check, cashier's check, irrevocable letter of credit, or,
under Treasury Department regulations, certain bonds or notes of the
United States. The Contracting Officer will return bid guarantees,
other than bid bonds, (1) to unsuccessful bidders as soon as
practicable after the opening of bids, and (2) to the successful
bidder upon execution of contractual documents and bonds (including
any necessary coinsurance or reinsurance agreements), as required by
the bid as accepted.-
(c) The amount of the bid guarantee shall be ________ percent of
the bid price or $________, whichever is less.-
(d) If the successful bidder, upon acceptance of its bid by the
Government within the period specified for acceptance, fails to
execute all contractual documents or furnish executed bond(s) within
10 days after
[[Page 39214]]
receipt of the forms by the bidder, the Contracting Officer may
terminate the contract for default.-
(e) In the event the contract is terminated for default, the
bidder is liable for any cost of acquiring the work that exceeds the
amount of its bid, and the bid guarantee is available to offset the
difference.
(End of provision)-
13.-15. Sections 52.228-15 and 52.228-16 are added to read as
follows:
52.228-15 Performance and Payment Bonds--Construction.-
As prescribed in 28.102-3(a), insert a clause substantially as
follows:
Performance and Payment Bonds--Construction (SEP 1996)-
(a) Definitions. As used in this clause--
Contract price means the award price of the contract or, for
requirements contracts, the price payable for the estimated
quantity; or for indefinite-delivery type contracts, the price
payable for the specified minimum quantity.
(b) Unless the resulting contract price is $100,000 or less, the
successful offeror shall be required to furnish performance and
payment bonds to the Contracting Officer as follows:
(1) Performance Bonds (Standard Form 25): (i) The penal amount
of performance bonds shall be 100 percent of the original contract
price.
(ii) The Government may require additional performance bond
protection when the contract price is increased. The increase in
protection shall generally equal 100 percent of the increase in
contract price.
(iii) The Government may secure additional protection by
directing the Contractor to increase the penal amount of the
existing bond or to obtain an additional bond.
(2) Payment Bonds (Standard Form 25-A):
(i) The penal amount of payment bonds shall equal--
(A) 50 percent of the contract price if the contract price is
not more than $1 million;
(B) 40 percent of the contract price if the contract price is
more than $1 million but not more than $5 million; or
(C) $2.5 million if the contract price is more than $5 million.
(ii) If the original contract price is $5 million or less, the
Government may require additional protection if the contract price
is increased. The penal amount of the total protection shall meet
the requirement of subparagraph (b)(2)(i) of this clause.
(iii) The Government may secure additional protection by
directing the Contractor to increase the penal sum of the existing
bond or to obtain an additional bond.
(c) The Contractor shall furnish all executed bonds, including
any necessary reinsurance agreements, to the Contracting Officer,
within the time period specified in the Bid Guarantee provision of
the solicitation, or otherwise specified by the Contracting Officer,
but in any event, before starting work.
(d) The bonds shall be in the form of firm commitment, supported
by corporate sureties whose names appear on the list contained in
Treasury Department Circular 570, individual sureties, or by other
acceptable security such as postal money order, certified check,
cashier's check, irrevocable letter of credit, or, in accordance
with Treasury Department regulations, certain bonds or notes of the
United States. Treasury Circular 570 is published in the Federal
Register, or may be obtained from the U.S. Department of Treasury,
Financial Management Service, Surety Bond Branch, 401 14th Street,
NW., 2nd Floor, West Wing, Washington, DC 20227.
(End of clause)
52.228-16 Performance and Payment Bonds--Other Than Construction.
As prescribed in 28.103-4, insert a clause substantially as
follows:
Performance and Payment Bonds--Other than construction (SEP 1996)
(a) Definitions. As used in this clause--
Contract price means the total amount of the contract for the
term of the contract (excluding options, if any) or, for
requirements contracts, the price payable for the estimated
quantity; or for indefinite-delivery type contracts, the price
payable for the specified minimum quantity.
(b) The Contractor shall furnish a performance bond (Standard
Form 1418) for the protection of the Government in an amount equal
to ________ percent of the contract price and a payment bond
(Standard Form 1416) in an amount equal to ________ percent of the
contract price.
(c) The Contractor shall furnish all executed bonds, including
any necessary reinsurance agreements, to the Contracting Officer,
within ________ days, but in any event, before starting work.
(d) The Government may require additional performance bond
protection when the contract price is increased. The Government may
secure additional protection by directing the Contractor to increase
the penal amount of the existing bond or to obtain an additional
bond.
(e) The bonds shall be in the form of firm commitment, supported
by corporate sureties whose names appear on the list contained in
Treasury Department Circular 570, individual sureties, or by other
acceptable security such as postal money order, certified check,
cashier's check, irrevocable letter of credit, or, in accordance
with Treasury Department regulations, certain bonds or notes of the
United States. Treasury Circular 570 is published in the Federal
Register, or may be obtained from the U.S. Department of Treasury,
Financial Management Service, Surety Bond Branch, 401 14th Street,
NW., 2nd Floor, West Wing, Washington, DC 20227.
(End of clause)
Alternate I (SEP 1996). As prescribed in 28.103-4, substitute
the following paragraph (b) for paragraph (b) of the basic clause:
(b) The Contractor shall furnish a performance bond (Standard
Form 1418) for the protection of the Government in an amount equal
to ________ percent of the contract price.
PART 53--FORMS
16. Section 53.228 is amended by revising paragraph (c); by
redesignating paragraphs (n) and (o) as (o) and (p) and adding a new
paragraph (n); in the newly designated paragraph (o) by removing the
reference ``28.106-1(n)'' and inserting ``28.106-1(o)''; and in the
newly designated paragraph (p) by removing the reference ``28.106-
1(o)'' and inserting ``28.106-1(p)'' in its place. The revised text
reads as follows:
53.228 Bonds and insurance.
* * * * *
(c) SF 25-A (REV. 1/90), Payment Bond. (See 28.106-1(c).)
* * * * *
(n) SF 1418 (10/93 Ed.), Performance Bond for Other Than
Construction Contracts. (See 28.106-1(n).)
* * * * *
53.301-1418 [Added]
17. Standard Form 1418 is added to read as follows:
53.301-1418 Performance Bond for Other Than Construction
Contracts.
BILLING CODE 6820-EP-P
[[Page 39215]]
[GRAPHIC] [TIFF OMITTED] TR26JY96.000
[[Page 39216]]
[GRAPHIC] [TIFF OMITTED] TR26JY96.001
[[Page 39217]]
[FR Doc. 96-18508 Filed 7-25-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-18507 Federal Acquisition Regulation; General Agreement on Tariffs and Trade Patent Authorization
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39211-39212]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18507]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 27
[FAC 90-40; FAR Case 95-308; Item X]
RIN 9000-AH09
Federal Acquisition Regulation; General Agreement on Tariffs and
Trade Patent Authorization
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule amending
the Federal Acquisition Regulation (FAR) to provide internal Government
guidance
[[Page 39212]]
for situations involving use of a patent without authorization from the
patent holder. This regulatory action was not subject to Office of
Management and Budget review under Executive Order 12866, dated
September 30, 1993, and is not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: September 24, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Jack O'Neill at (202) 501-3856 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-40, FAR case 95-308.
SUPPLEMENTARY INFORMATION:
A. Background
The Uruguay Round of the Multilateral Trade Negotiations of the
General Agreement on Tariffs and Trade (GATT) resulted in the ``Final
Act Embodying the Results of the Uruguay Round of Multilateral Trade
Negotiations; Agreement Establishing the World Trade Organization;
Annex 1C, Agreement on Trade-Related Aspects of Intellectual Property
Rights, Including Trade in Counterfeit Goods.'' Articles 30 and 31
thereof contain requirements related to use of a patent without
authorization from the patent holder, including use by the Government.
The rule advises contracting officers to consult with legal counsel in
such situations.
B. Regulatory Flexibility Act
The final rule does not constitute a significant FAR revision
within the meaning of FAR 1.501 and Public Law 98-577, and publication
for public comments is not required. Therefore, the Regulatory
Flexibility Act does not apply. However, comments from small entities
concerning the affected FAR subpart will be considered in accordance
with 5 U.S.C. 610. Such comments must be submitted separately and cite
5 U.S.C. 601, et seq. (FAC 90-40, FAR case 95-308), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 27
Government procurement.
Dated: July 16, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Part 27 is amended as set forth below:
PART 27--PATENTS, DATA, AND COPYRIGHTS
1. The authority citation for 48 CFR Part 27 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
2. Section 27.209 is added to read as follows:
27.209 Use of patented technology under the General Agreement on
Tariffs and Trade (GATT).
(a) Article 31 of Annex 1C, Agreement on Trade-Related Aspects of
Intellectual Property Rights, to GATT (Uruguay Round) addresses
situations where the law of a member country allows for use of a patent
without authorization from the patent holder, including use by the
Government.
(b) The contracting officer should consult with legal counsel
regarding questions under this section.
[FR Doc. 96-18507 Filed 7-25-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-18506 Federal Acquisition Regulation; Indian-Owned Economic Enterprises
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39210-39211]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18506]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE-
GENERAL SERVICES ADMINISTRATION-
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION-
48 CFR Parts 26 and 52-
[FAC 90-40; FAR Case 91-028; Item IX] -
RIN 9000-AE52-
Federal Acquisition Regulation; Indian-Owned Economic Enterprises
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule adopted as final with changes.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed to convert the interim rule
published in the Federal Register at 56 FR 41736, August 22, 1991, to a
final rule with additional changes. The interim rule added FAR Subpart
26.1, Indian Incentive Program, which allows contractors to recover
certain costs of subcontracting with Indian organizations and Indian-
owned economic enterprises. This regulatory action was not subject to
Office of Management and Budget review under Executive Order 12866,
dated September 30, 1993, and is not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: September 24, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Ralph DeStefano at (202) 501-1758
in reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-40, FAR case 91-028.
SUPPLEMENTARY INFORMATION:
A. Background-
Section 7 of Public Law 100-442 amended the Indian Financing Act of
1974 by adding a new Section 504 (25 U.S.C. 1544) to encourage the use
of Indian organizations and Indian-owned economic enterprises in
subcontracting by allowing the prime contractor ``an additional amount
of compensation equal to 5 percent of the amount paid.'' The statute
allows this ``[n]otwithstanding any other provision of law.'' -
The interim rule published on August 22, 1991, added language at
FAR Subpart 26.1, Indian Incentive Program. Minor amendments to the
interim rule were made at 57 FR 20376, May 12, 1992, and 60 FR 48258,
September 18, 1995. All comments received on the interim rule were
considered in formulation of the final rule.-
The final rule makes, among other changes, one major revision to
the interim rule as a result of the analysis of public comments. The
principal distinction between the interim rule and the final rule is
how each treats the payment language under 25 U.S.C. 1544. The interim
rule allowed prime contractors to recover certain costs of
subcontracting with Indian organizations and Indian-owned economic
enterprises based on the difference in price between the acceptable low
non-Indian subcontractor and the price, if provided, of the acceptable
low Indian-owned subcontractor when the Indian-owned subcontractor's
price exceeds the price of acquiring the supplies or services from a
non-Indian subcontractor. The final rule permits payment of a flat 5
percent bonus to the prime contractor of the amount paid to the Indian
subcontractor by the prime contractor. Also, the final rule adds the
definitions of ``Indian'' and ``Indian tribe'' to FAR 26.101 and the
clause at 52.226-1 and adds the definition of ``Interested party'' to
52.226-1. The final rule allows civilian agencies to include the clause
in all contracts (FAR 26.104(b)) where certain criteria apply,
regardless of whether the contract includes a subcontracting plan
pursuant to FAR 52.219-9.
B. Regulatory Flexibility Act-
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., applies to
this final rule and a Final Regulatory Flexibility Analysis (FRFA) has
been performed. A copy of the FRFA may be obtained from the FAR
Secretariat
C. Paperwork Reduction Act-
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501 et seq.
List of Subjects in 48 CFR Parts 26 and 52-
Government procurement.
Dated: July 16, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Interim Rule Adopted as Final With Change-
Accordingly, the interim rule amending 48 CFR Parts 26 and 52 and
published at 56 FR 41736, August 22, 1991, is adopted as a final rule
with the following changes.-
1. The authority citation for 48 CFR Parts 26 and 52 continues to
read as follows:
-Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 26--OTHER SOCIOECONOMIC PROGRAMS-
2. Section 26.101 is amended by revising the definitions of
``Indian organization'' and ``Interested party''; and adding, in
alphabetical order, the definitions for ``Indian'' and ``Indian tribe''
to read as follows:
26.101 Definitions.
* * * * *-
Indian means any person who is a member of any Indian tribe, band,
group, pueblo, or community which is recognized by the Federal
Government as eligible for services from the Bureau of Indian Affairs
(BIA) in accordance with 25 U.S.C. 1452(c) and any ``Native'' as
defined in the Alaska Native Claims Settlement Act (43 U.S.C. 1601).-
Indian organization means the governing body of any Indian tribe or
entity established or recognized by the governing body of an Indian
tribe for the purposes of 25 U.S.C., chapter 17.
* * * * *-
Indian tribe means any Indian tribe, band, group, pueblo, or
community,
[[Page 39211]]
including native villages and native groups (including corporations
organized by Kenai, Juneau, Sitka, and Kodiak) as defined in the Alaska
Native Claims Settlement Act, which is recognized by the Federal
Government as eligible for services from BIA in accordance with 25
U.S.C. 1452(c).-
Interested party means a prime contractor or an actual or
prospective offeror whose direct economic interest would be affected by
the award of a subcontract or by the failure to award a subcontract.-
3. Section 26.102 is revised to read as follows:
26.102 Policy.-
Indian organizations and Indian-owned economic enterprises shall
have the maximum practicable opportunity to participate in performing
contracts awarded by Federal agencies. In fulfilling this requirement,
the Indian Incentive Program allows an incentive payment equal to 5
percent of the amount paid to a subcontractor in performing the
contract, if the contract so authorizes and the subcontractor is an
Indian organization or Indian-owned economic enterprise.-
4. Section 26.103 is amended in the first sentence of paragraph (b)
by revising ``1849 ``C'' Street'' to read ``1849 C Street''; and
revising the ZIP Code to read ``20245''; in the second sentence of
paragraph (c) by removing ``15'' and inserting ``45''; and adding
paragraph (f) to read as follows:
26.103 Procedures.
* * * * *-
(f) Subject to the terms and conditions of the contract and the
availability of funds, contracting officers shall authorize an
incentive payment of 5 percent of the amount paid to the subcontractor.
Contracting officers shall seek funding in accordance with agency
procedures.-
4. Section 26.104 is amended by revising the introductory text of
paragraph (b) to read as follows:
26.104 Contract clause.
* * * * *-
(b) Contracting officers in civilian agencies may insert the clause
at 52.226-1, Utilization of Indian Organizations and Indian-Owned
Economic Enterprises, in solicitations and contracts if--
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES-
5. Section 52.226-1 is amended by revising the clause date and
revising paragraph (a); in paragraph (b) by revising the definition of
``Indian organization'' and adding, in alphabetical order, the
definitions of ``Indian'', ``Indian tribe'' and ``Interested party'';
and by revising paragraphs (c) and (d) to read as follows:
52.226-1 Utilization of Indian Organizations and Indian-Owned
Economic Enterprises.
* * * * *
UTILIZATION OF INDIAN ORGANIZATIONS AND INDIAN-OWNED ECONOMIC
ENTERPRISES (SEP 1996)
(a) For Department of Defense contracts, this clause applies
only if the contract includes a subcontracting plan incorporated
under the terms of the clause at 52.219-9, Small, Small
Disadvantaged and Women-Owned Small Business Subcontracting Plan. It
does not apply to contracts awarded based on a subcontracting plan
submitted and approved under paragraph (g) of the clause at 52.219-
9.
(b) * * *
Indian means any person who is a member of any Indian tribe,
band, group, pueblo or community which is recognized by the Federal
Government as eligible for services from the Bureau of Indian
Affairs (BIA) in accordance with 25 U.S.C. 1452(c) and any
``Native'' as defined in the Alaska Native Claims Settlement Act (43
U.S.C. 1601).
Indian organization means the governing body of any Indian tribe
or entity established or recognized by the governing body of an
Indian tribe for the purposes of 25 U.S.C., chapter 17.
* * * * *
Indian tribe means any Indian tribe, band, group, pueblo or
community, including native villages and native groups (including
corporations organized by Kenai, Juneau, Sitka, and Kodiak) as
defined in the Alaska Native Claims Settlement Act, which is
recognized by the Federal Government as eligible for services from
BIA in accordance with 25 U.S.C. 1542(c).
Interested party means a prime contractor or an actual or
prospective offeror whose direct economic interest would be affected
by the award of a subcontract or by the failure to award a
subcontract.
(c) The Contractor agrees to use its best efforts to give Indian
organizations and Indian-owned economic enterprises (25 U.S.C. 1544)
the maximum practicable opportunity to participate in the
subcontracts it awards to the fullest extent consistent with
efficient performance of its contract.
(1) The Contracting Officer and the Contractor, acting in good
faith, may rely on the self-certification of an Indian organization
or Indian-owned economic enterprise as to its eligibility, unless an
interested party challenges its status or the Contracting Officer
has independent reason to question that status. In the event of a
challenge to the self-certification of a subcontractor, the
Contracting Officer shall refer the matter to the U.S. Department of
the Interior, Bureau of Indian Affairs (BIA), Attn: Chief, Division
of Contracting and Grants Administration, 1849 C Street, NW, MS-
334A-SIB, Washington, DC 20245. The BIA will determine the
eligibility and notify the Contracting Officer. The 5 percent
incentive payment will not be made within 50 working days of
subcontract award or while a challenge is pending. If a
subcontractor is determined to be an ineligible participant, no
incentive payment will be made under the Indian Incentive Program.
(2) The Contractor may request an adjustment under the Indian
Incentive Program to the following:
(i) The estimated cost of a cost-type contract.
(ii) The target cost of a cost-plus-incentive-fee prime
contract.
(iii) The target cost and ceiling price of a fixed-price
incentive prime contract.
(iv) The price of a firm-fixed-price prime contract.
(3) The amount of the equitable adjustment to the prime contract
shall be 5 percent of the estimated cost, target cost or firm-fixed-
price included in the subcontract initially awarded to the Indian
organization or Indian-owned economic enterprise.
(4) The Contractor has the burden of proving the amount claimed
and must assert its request for an adjustment prior to completion of
contract performance.
(d) The Contracting Officer, subject to the terms and conditions
of the contract and the availability of funds, shall authorize an
incentive payment of 5 percent of the amount paid to the
subcontractor. Contracting Officers shall seek funding in accordance
with agency procedures. The Contracting Officer's decision is final
and not subject to the Disputes clause of this contract.
(End of clause)
[FR Doc. 96-18506 Filed 7-25-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-18505 Federal Acquisition Regulation; Small Business/Simplified Acquisition Threshold
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39207-39210]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18505]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 19 and 52
[FAC 90-40; FAR Case 94-782; Item VIII]
RIN 9000-AH08
Federal Acquisition Regulation; Small Business/Simplified
Acquisition Threshold
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule is issued pursuant to the Federal Acquisition
Streamlining Act of 1994, Public Law 103-355 (the Act). The Federal
Acquisition Regulatory Council has agreed to amend the Federal
Acquisition Regulation (FAR) to implement section 4004 of the Act. This
regulatory action was subject to Office of Management and Budget review
under Executive Order 12866, dated September 30, 1993,
[[Page 39208]]
but is not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: July 26, 1996.
FOR FURTHER INFORMATION CONTACT: Ms. Victoria Moss at (202) 501-4764 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-40, FAR case 94-782.
SUPPLEMENTARY INFORMATION:
A. Background
The Small Business Team drafted FAR coverage to implement sections
4004, 7101(a), 7102 and 7106 of the Act. The proposed rule was
published in the Federal Register at 60 FR 2302, January 6, 1995, and
was published in the Federal Register at 60 FR 48258, September 18,
1995, as a final rule in FAR case 94-780, FAC 90-32.
In order to facilitate the issuance of the Simplified Acquisition
Threshold/Federal Acquisition Computer Network (SAT/FACNET) rule (FAR
Case 94-770), those portions of the Small Business Rule dealing with
simplified acquisitions were included in the SAT/FACNET rule and issued
as an interim rule in the Federal Register at 60 FR 34741, July 3,
1995, and finalized under that case. Those portions primarily
implemented section 4004 of the Act which reserves each contract for
the purchase of goods or services that has an anticipated value greater
than $2,500, but not greater than $100,000, for exclusive small
business participation, unless the contracting officer determines there
is no reasonable expectation of obtaining offers from two or more small
businesses that are competitive with market price, quality, and
delivery.
One of the most significant issues in this case was the
relationship between simplified acquisitions and the Small Business
Administration's (SBA's) ``nonmanufacturer rule.'' On January 31, 1996,
SBA issued a final rule in the Federal Register at 61 FR 3280 revising
its nonmanufacturer rule to provide that, where the procurement of a
manufactured item processed under the procedures set forth in FAR Part
13 is set aside for small business, and where the anticipated cost of
the procurement will not exceed $25,000, the offeror need not supply
the end product of a small business concern as long as the product
acquired is manufactured or produced in the United States (13 CFR
121.406(d)). This final rule reflects that change.
B. Regulatory Flexibility Act
The final rule is expected to 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., because it
implements changes to the SBA's regulations pertaining to the
nonmanufacturer rule. The Act created a conflict between the FAR and 13
CFR 121.906(d) which authorized a small business dealer to furnish any
domestically manufactured end product under a small business/small
purchase set-aside. Public Law 103-355 eliminated the procedures
entitled ``small business/small purchase'' and created new procedures
called ``simplified acquisitions.'' However, SBA had not revised its
regulations to recognize ``simplified acquisitions''. In preparing the
interim rule, SBA advised the drafting team that the automatic waiver
to the nonmanufacturer rule for small purchases did NOT extend to
simplified acquisitions. Consequently, the interim rule required a
small business submitting an offer on all small business set-asides to
furnish the products of small businesses unless the SBA had issued a
waiver. Since issuance of the interim rule, SBA has revisited this
issue and has issued changes to their nonmanufacturer rule. This final
rule reflects the changes issued by SBA. A Final Regulatory Flexibility
Analysis (FRFA) was prepared by the Small Business Administration under
its rule dated January 31, 1996 (61 FR 3280), and provided to the Chief
Counsel for Advocacy for the Small Business Administration.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
D. Public Comments
An interim rule was published in the Federal Register at 60 FR
34741, July 3, 1995, as FAR case 94-770. In response to the notice of
proposed rulemaking, 12 responses containing 28 comments relating to
the small business coverage were received. The comments of all
respondents were considered in developing this final rule. As a result
of public comments and changes in SBA regulations, the following
significant changes have been made:
The regulation has been revised to provide that, where the
procurement of a manufactured item processed under the procedures set
forth in FAR Part 13 is set aside for small business, and where the
anticipated cost of the procurement will not exceed $25,000, the
offeror need not supply the end product of a small business concern as
long as the product acquired is manufactured or produced in the United
States.
Language in FAR Part 19 concerning acquisitions reserved for small
businesses was expanded.
List of Subjects in 48 CFR Parts 19 and 52
Government procurement.
Dated: July 16, 1996.
Edward C. Loeb,
Deputy Project Manager for the Implementation of the Federal
Acquisition Streamlining Act of 1994.
Therefore, 48 CFR Parts 19 and 52 are amended as set forth below:
1. The authority citation for 48 CFR Parts 19 and 52 continues to
read as follows:
-Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 19--SMALL BUSINESS PROGRAMS-
2. Section 19.102 is amended in the first sentence of paragraph
(f)(1) by removing ``(f)(2) through (f)(5)'' and inserting ``(f)(4)
through (f)(7)'' in its place; revising (f)(4); and adding (f)(7) to
read as follows:
19.102 Size standards.
* * * * *-
(f) * * *-
(4) In the case of acquisitions set aside for small business or
awarded under section 8(a) of the Small Business Act, when the
acquisition is for a specific product (or a product in a class of
products) for which the SBA has determined that there are no small
business manufacturers or processors in the Federal market, then the
SBA may grant a class waiver so that a nonmanufacturer does not have to
furnish the product of a small business. For the most current listing
of classes for which SBA has granted a waiver, contact an SBA Office of
Government Contracting. A listing is also available in the SBA's
Procurement Automated Source System (PASS) and on SBA's Internet
Homepage at http://www.sbaonline.sba.gov/GC/nonmanuf.html. Contracting
officers may request that the SBA waive the
[[Page 39209]]
nonmanufacturer rule for a particular class of products.
* * * * *-
(7) The SBA provides for an exception to the nonmanufacturer rule
where the procurement of a manufactured item processed under the
procedures set forth in part 13 is set aside for small business and
where the anticipated cost of the procurement will not exceed $25,000.
In those procurements, the offeror need not supply the end product of a
small business concern as long as the product acquired is manufactured
or produced in the United States.
* * * * *
3. Section 19.502-2 is amended by revising paragraphs (a) and (c);
and in the first sentence of (b)(2) by removing the ``s'' in the word
``awards'', and in the third sentence of paragraph (b)(2) by removing
``the item'' and inserting ``an item'' in its place. The revised text
reads as follows:
19.502-2 Total set-asides.-
(a) Each acquisition of supplies or services that has an
anticipated dollar value exceeding $2,500, but not over $100,000, is
automatically reserved exclusively for small business concerns and
shall be set aside unless the contracting officer determines there is
not a reasonable expectation of obtaining offers from two or more
responsible small business concerns that are competitive in terms of
market prices, quality, and delivery. If the contracting officer does
not proceed with the small business set-aside and purchases on an
unrestricted basis, the contracting officer shall include in the
contract file the reason for this unrestricted purchase. If the
contracting officer receives only one acceptable offer from a
responsible small business concern in response to a set-aside, the
contracting officer should make an award to that firm. If the
contracting officer receives no acceptable offers from responsible
small business concerns, the set-aside shall be withdrawn and the
requirement, if still valid, shall be resolicited on an unrestricted
basis. The small business reservation does not preclude the award of a
contract with a value not greater than $100,000 under subpart 19.8,
Contracting with the Small Business Administration, or under
19.1006(c), Emerging small business set-aside.
* * * * * -
(c) For set-asides other than for construction or services, any
concern proposing to furnish a product which it did not itself
manufacture must furnish the product of a small business manufacturer
unless the SBA has granted either a waiver or exception to the
nonmanufacturer rule (see 19.102(f)). In industries where the SBA finds
that there are no small business manufacturers, it may issue a waiver
to the nonmanufacturer rule (see 19.102(f) (4) and (5)). In addition,
SBA has excepted procurements processed under simplified acquisition
procedures (see part 13), where the anticipated cost of the procurement
will not exceed $25,000, from the nonmanufacturer rule. Waivers permit
small businesses to provide any firm's product. The exception permits
small businesses to provide any domestic firm's product. In both of
these cases, the contracting officer's determination in paragraph
(b)(1) of this subsection or the decision not to set aside a
procurement reserved for small business under paragraph (a) of this
subsection will be based on the expectation of receiving offers from at
least two responsible small businesses, including nonmanufacturers,
offering the products of different concerns.
* * * * *
4. Section 19.508 is amended in paragraphs (c) and (d) by revising
the second sentences to read as follows:
19.508 Solicitation provisions and contract clauses.
* * * * *-
(c) * * * The clause at 52.219-6 with its Alternate I will be used
when the acquisition is for a product in a class for which the Small
Business Administration has waived the nonmanufacturer rule (see
19.102(f) (4) and (5)).-
(d) * * * The clause at 52.219-7 with its Alternate I will be used
when the acquisition is for a product in a class for which the Small
Business Administration has waived the nonmanufacturer rule (see
19.102(f) (4) and (5)).
* * * * *-
5. Section 19.811-3 is amended by revising paragraph (d)(3) to read
as follows:
19.811-3 Contract clauses.
* * * * *-
(d) * * *-
(3) The clause at 52.219-18 with its Alternate III will be used
when the acquisition is for a product in a class for which the Small
Business Administration has waived the nonmanufacturer rule (see
19.102(f) (4) and (5)).
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES-
4. Section 52.219-6 is amended by revising the introductory text,
the clause date, and paragraph (c) to read as follows:
52.219-6 Notice of Total Small Business Set-Aside.-
As prescribed in 19.508(c), insert the following clause:
NOTICE OF TOTAL SMALL BUSINESS SET-ASIDE (JUL 1996)
* * * * *-
(c) Agreement. A small business concern submitting an offer in
its own name agrees to furnish, in performing the contract, only end
items manufactured or produced by small business concerns in the
United States. The term ``United States'' includes its territories
and possessions, the Commonwealth of Puerto Rico, the Trust
Territory of the Pacific Islands, and the District of Columbia. If
this procurement is processed under simplified acquisition
procedures and the total amount of this contract does not exceed
$25,000, a small business concern may furnish the product of any
domestic firm. This paragraph does not apply in connection with
construction or service contracts.
* * * * *
(End of clause)-
5. Section 52.219-7 is amended by revising the clause date and
paragraph (c) to read as follows:
52.219-7 Notice of Partial Small Business Set-Aside.
* * * * *
NOTICE OF PARTIAL SMALL BUSINESS SET-ASIDE (JUL 1996)
* * * * *-
(c) Agreement. For the set-aside portion of the acquisition, a
small business concern submitting an offer in its own name agrees to
furnish, in performing the contract, only end items manufactured or
produced by small business concerns in the United States. The term
``United States'' includes its territories and possessions, the
Commonwealth of Puerto Rico, the Trust Territory of the Pacific
Islands, and the District of Columbia. If this procurement is
processed under simplified acquisition procedures and the total
amount of this contract does not exceed $25,000, a small business
concern may furnish the product of any domestic firm. This paragraph
does not apply in connection with construction or service contracts.
* * * * *
(End of clause)-
6. Section 52.219-18 is amended in the clause by revising the date
and paragraph (d)(1); and in Alternate III by revising the date to read
``(JUL 1996)'' and removing the phrase ``paragraph (d)'' and inserting
``subparagraph (d)(1)'' in its place. The revised text reads as
follows:
[[Page 39210]]
52.219-18 Notification of Competition Limited to Eligible 8(a)
Concerns.
* * * * *
NOTIFICATION OF COMPETITION LIMITED TO ELIGIBLE 8(a) CONCERNS (JUL
1996)
* * * * *-
(d)(1) Agreement. A small business concern submitting an offer
in its own name agrees to furnish, in performing the contract, only
end items manufactured or produced by small business concerns in the
United States. The term ``United States'' includes its territories
and possessions, the Commonwealth of Puerto Rico, the Trust
Territory of the Pacific Islands, and the District of Columbia. If
this procurement is processed under simplified acquisition
procedures and the total amount of this contract does not exceed
$25,000, a small business concern may furnish the product of any
domestic firm. This subparagraph does not apply in connection with
construction or service contracts.
* * * * *
[FR Doc. 96-18505 Filed 7-25-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-18504 Federal Acquisition Regulation; Multiyear Contracting
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39203-39207]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18504]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE-
GENERAL SERVICES ADMINISTRATION-
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION-
48 CFR Parts 17, 22, and 52-
[FAC 90-40; FAR Case 94-712; Item VII]-
RIN 9000-AG72-
Federal Acquisition Regulation; Multiyear Contracting
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule is issued pursuant to the Federal Acquisition
Streamlining Act of 1994, Public Law 103-355 (the Act). The Federal
Acquisition Regulatory Council has agreed on a final rule to amend the
Federal Acquisition Regulation (FAR) to implement sections 1022 and
1072 of the Act regarding Multiyear Contracting. This regulatory action
was subject to Office of
[[Page 39204]]
Management and Budget (OMB) review under Executive Order 12866, dated
September 30, 1993, but is not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: July 26, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Edward McAndrew at (202) 501-1474
in reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, 18th & F Streets, N.W.,
Washington, DC 20405 (202) 501-4755. Please cite FAC 90-40, FAR case
94-712.
SUPPLEMENTARY INFORMATION:
A. Background-
The proposed rule covering implementation of sections 1022 and 1072
of Public Law 103-355 regarding Multiyear Contracting was published as
part of FAR case 94-710, Special Contracting Methods, in the Federal
Register at 60 FR 14340, March 16, 1995. The rule permitted agencies to
enter into multiyear contracts under certain circumstances. After
disposition of public comments, coverage on multiyear contracting was
extracted from the 94-710 final rule because several issues remained
unresolved at the time of publication (60 FR 49720, September 26,
1995). All remaining issues have now been resolved and this separate
final rule represents completion of the Special Contracting Methods
implementation.
B. Regulatory Flexibility Act-
The Regulatory Flexibility Act, 5 U.S.C. 601, et seq., applies to
this final rule and a Final Regulatory Flexibility Analysis (FRFA) has
been performed. A copy of the FRFA may be obtained from the FAR
Secretariat.
C. Paperwork Reduction Act-
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
D. Public Comments-
The proposed rule was published in the Federal Register on March
16, 1995. Eight comments were received, the most significant of which
raised the issue of ``bundling'' of requirements and its effect on
small businesses. All comments were considered in the formulation of
this final rule.
List of Subjects in 48 CFR Parts 17, 22 and 52-
Government procurement.
Dated: July 16, 1996.
Edward C. Loeb,
Deputy Project Manager for the Implementation of the Federal
Acquisition Streamlining Act of 1994.
-Therefore, 48 CFR Parts 17, 22, and 52 are amended as set forth
below:-
1. The authority citation for 48 CFR Parts 17, 22, and 52 continues
to read as follows:
-Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 17--SPECIAL CONTRACTING METHODS-
2. Subpart 17.1 is revised to read as follows:
Subpart 17.1--Multiyear Contracting
Sec.
17.101 Authority.
17.102 Applicability.
17.103 Definitions.
17.104 General.
17.105 Policy.
17.105-1 Uses.
17.105-2 Objectives.
17.106 Procedures.
17.106-1 General.
17.106-2 Solicitations.
17.106-3 Special procedures applicable to DoD, NASA, and the Coast
Guard.
17.107 Options.
17.108 Congressional notification.
17.109 Contract clauses.
17.101 Authority.-
This subpart implements Section 304B of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 254c) and 10 U.S.C.
2306b and provides policy and procedures for the use of multiyear
contracting.
17.102 Applicability.-
For DoD, NASA, and the Coast Guard, the authorities cited in 17.101
do not apply to contracts for the purchase of supplies to which 40
U.S.C. 759 applies (information resource management supply contracts).
17.103 Definitions.-
As used in this subpart---
Cancellation means the cancellation (within a contractually
specified time) of the total requirements of all remaining program
years. Cancellation results when the contracting officer
(a) Notifies the contractor of nonavailability of funds for
contract performance for any subsequent program year, or
(b) Fails to notify the contractor that funds are available for
performance of the succeeding program year requirement.-
Cancellation ceiling means the maximum cancellation charge that the
contractor can receive in the event of cancellation.-
Cancellation charge means the amount of unrecovered costs which
would have been recouped through amortization over the full term of the
contract, including the term canceled.-
Multiyear contract means a contract for the purchase of supplies or
services for more than 1, but not more than 5, program years. A
multiyear contract may provide that performance under the contract
during the second and subsequent years of the contract is contingent
upon the appropriation of funds, and (if it does so provide) may
provide for a cancellation payment to be made to the contractor if
appropriations are not made. The key distinguishing difference between
multiyear contracts and multiple year contracts is that multiyear
contracts, defined in the statutes cited at 17.101, buy more than 1
year's requirement (of a product or service) without establishing and
having to exercise an option for each program year after the first.-
Nonrecurring costs means those costs which are generally incurred
on a one-time basis and include such costs as plant or equipment
relocation, plant rearrangement, special tooling and special test
equipment, preproduction engineering, initial spoilage and rework, and
specialized work force training.-
Recurring costs means costs that vary with the quantity being
produced, such as labor and materials.-
Termination for convenience means the procedure which may apply to
any Government contract, including multiyear contracts. As contrasted
with cancellation, termination can be effected at any time during the
life of the contract (cancellation is effected between fiscal years)
and can be for the total quantity or a partial quantity (whereas
cancellation must be for all subsequent fiscal years' quantities).
17.104 General.-
(a) Multiyear contracting is a special contracting method to
acquire known requirements in quantities and total cost not over
planned requirements for up to 5 years unless otherwise authorized by
statute, even though the total funds ultimately to be obligated may not
be available at the time of contract award. This method may be used in
sealed bidding or contracting by negotiation.-
(b) Multiyear contracting is a flexible contracting method
applicable to a wide range of acquisitions. The extent to which
cancellation terms are used in multiyear contracts will depend on the
unique circumstances of each contracting action. Accordingly, for
multiyear contracts, the agency head may authorize modification of the
requirements of this subpart and the
[[Page 39205]]
clause at 52.217-2, Cancellation Under Multiyear Contracts.-
(c) Agency funding of multiyear contracts shall conform to the
policies in OMB Circulars A-11 (Preparation and Submission of Budget
Estimates) and A-34 (Instructions on Budget Execution) and other
applicable guidance regarding the funding of multiyear contracts. As
provided by that guidance, the funds obligated for multiyear contracts
must be sufficient to cover any potential cancellation and/or
termination costs; and multiyear contracts for the acquisition of fixed
assets should be fully funded or funded in stages that are economically
or programmatically viable.
17.105 Policy.
17.105-1 Uses.-
(a) Except for DoD, NASA, and the Coast Guard, the contracting
officer may enter into a multiyear contract if the head of the
contracting activity determines that--
(1) The need for the supplies or services is reasonably firm and
continuing over the period of the contract; and-
(2) A multiyear contract will serve the best interests of the
United States by encouraging full and open competition or promoting
economy in administration, performance, and operation of the agency's
programs.-
(b) For DoD, NASA, and the Coast Guard, the head of the agency may
enter into a multiyear contract for supplies if---
(1) The use of such a contract will result in substantial savings
of the total estimated costs of carrying out the program through annual
contracts;-
(2) The minimum need to be purchased is expected to remain
substantially unchanged during the contemplated contract period in
terms of production rate, procurement rate, and total quantities;-
(3) There is a stable design for the supplies to be acquired, and
the technical risks associated with such supplies are not excessive;-
(4) There is a reasonable expectation that, throughout the
contemplated contract period, the head of the agency will request
funding for the contract at a level to avoid contract cancellation;
and-
(5) The estimates of both the cost of the contract and the cost
avoidance through the use of a multiyear contract are realistic.-
(c) The multiyear contracting method may be used for the
acquisition of supplies or services.-
(d) If funds are not appropriated to support the succeeding years'
requirements, the agency must cancel the contract.
17.105-2 Objectives.-
Use of multiyear contracting is encouraged to take advantage of one
or more of the following:-
(a) Lower costs.-
(b) Enhancement of standardization.-
(c) Reduction of administrative burden in the placement and
administration of contracts.-
(d) Substantial continuity of production or performance, thus
avoiding annual startup costs, preproduction testing costs, make-ready
expenses, and phaseout costs.-
(e) Stabilization of contractor work forces.-
(f) Avoidance of the need for establishing quality control
techniques and procedures for a new contractor each year.-
(g) Broadening the competitive base with opportunity for
participation by firms not otherwise willing or able to compete for
lesser quantities, particularly in cases involving high startup costs.-
(h) Providing incentives to contractors to improve productivity
through investment in capital facilities, equipment, and advanced
technology.
17.106 Procedures.
17.106-1 General.-
(a) Method of contracting. The nature of the requirement should
govern the selection of the method of contracting, since the multiyear
procedure is compatible with sealed bidding, including two-step sealed
bidding, and negotiation.-
(b) Type of contract. Given the longer performance period
associated with multiyear acquisition, consideration in pricing fixed-
priced contracts should be given to the use of economic price
adjustment terms and profit objectives commensurate with contractor
risk and financing arrangements.-
(c) Cancellation procedures. (1) All program years except the first
are subject to cancellation. For each program year subject to
cancellation, the contracting officer shall establish a cancellation
ceiling. Ceilings must exclude amounts for requirements included in
prior program years. The contracting officer shall reduce the
cancellation ceiling for each program year in direct proportion to the
remaining requirements subject to cancellation. For example, consider
that the total nonrecurring costs (see
15.804-6) are estimated at 10 percent of the total multiyear price, and
the percentages for each of the program year requirements for 5 years
are (i) 30 in the first year, (ii) 30 in the second, (iii) 20 in the
third, (iv) 10 in the fourth, and (v) 10 in the fifth. The cancellation
percentages, after deducting 3 percent for the first program year,
would be 7, 4, 2, and 1 percent of the total price applicable to the
second, third, fourth, and fifth program years, respectively.-
(2) In determining cancellation ceilings, the contracting officer
must estimate reasonable preproduction or startup, labor learning, and
other nonrecurring costs to be incurred by an ``average'' prime
contractor or subcontractor, which would be applicable to, and which
normally would be amortized over, the items or services to be furnished
under the multiyear requirements. Nonrecurring costs include such
costs, where applicable, as plant or equipment relocation or
rearrangement, special tooling and special test equipment,
preproduction engineering, initial rework, initial spoilage, pilot
runs, allocable portions of the costs of facilities to be acquired or
established for the conduct of the work, costs incurred for the
assembly, training, and transportation to and from the job site of a
specialized work force, and unrealized labor learning. They shall not
include any costs of labor or materials, or other expenses (except as
indicated above), which might be incurred for performance of subsequent
program year requirements. The total estimate of the above costs must
then be compared with the best estimate of the contract cost to arrive
at a reasonable percentage or dollar figure. To perform this
calculation, the contracting officer should obtain in-house engineering
cost estimates identifying the detailed recurring and nonrecurring
costs, and the effect of labor learning.-
(3) The contracting officer shall establish cancellation dates for
each program year's requirements regarding production lead time and the
date by which funding for these requirements can reasonably be
established. The contracting officer shall include these dates in the
schedule, as appropriate.-
(d) Cancellation ceilings. Cancellation ceilings and dates may be
revised after issuing the solicitation if necessary. In sealed bidding,
the contracting officer shall change the ceiling by amending the
solicitation before bid opening. In two-step sealed bidding,
discussions conducted during the first step may indicate the need for
revised ceilings and dates which may be incorporated in step two. In a
negotiated acquisition, negotiations with offerors may provide
information requiring a change in
[[Page 39206]]
cancellation ceilings and dates before final negotiation and contract
award.-
(e) Payment of cancellation charges. If cancellation occurs, the
Government's liability will be determined by the terms of the
applicable contract. -
(f) Presolicitation or pre-bid conferences. To ensure that all
interested sources of supply are thoroughly aware of how multiyear
contracting is accomplished, use of presolicitation or pre-bid
conferences may be advisable.
(g) Payment limit. The contracting officer shall limit the
Government's payment obligation to an amount available for contract
performance. The contracting officer shall insert the amount for the
first program year in the contract upon award and modify it for
successive program years upon availability of funds.
(h) Termination payment. If the contract is terminated for the
convenience of the Government in whole, including requirements subject
to cancellation, the Government's obligation shall not exceed the
amount specified in the Schedule as available for contract performance,
plus the cancellation ceiling.
17.106-2 Solicitations.
Solicitations for multiyear contracts shall reflect all the factors
to be considered for evaluation, specifically including the following:-
(a) The requirements, by item of supply or service, for the--
(1) First program year; and-
(2) Multiyear contract including the requirements for each program
year.-
(b) Criteria for comparing the lowest evaluated submission on the
first program year requirements to the lowest evaluated submission on
the multiyear requirements.
(c) A provision that, if the Government determines before award
that only the first program year requirements are needed, the
Government's evaluation of the price or estimated cost and fee shall
consider only the first year.-
(d) A provision specifying a separate cancellation ceiling (on a
percentage or dollar basis) and dates applicable to each program year
subject to a cancellation (see 17.106-1 (c) and (d)).
(e) A statement that award will not be made on less than the first
program year requirements.
(f) The Government's administrative costs of annual contracting may
be used as a factor in the evaluation only if they can be reasonably
established and are stated in the solicitation.
(g) The cancellation ceiling shall not be an evaluation factor.
17.106-3 Special procedures applicable to DoD, NASA, and the Coast
Guard.-
(a) Participation by subcontractors, suppliers, and vendors. In
order to broaden the defense industrial base, to the maximum extent
practicable--
(1) Multiyear contracting shall be used in such a manner as to
seek, retain, and promote the use under such contracts of companies
that are subcontractors, suppliers, and vendors; and-
(2) Upon accrual of any payment or other benefit under such a
multiyear contract to any subcontractor, supplier, or vendor company
participating in such contract, such payment or benefit shall be
delivered to such company in the most expeditious manner practicable.-
(b) Protection of existing authority. To the extent practicable,
multiyear contracting shall not be carried out in a manner to preclude
or curtail the existing ability of the Department or agency to provide
for termination of a prime contract, the performance of which is
deficient with respect to cost, quality, or schedule.-
(c) Cancellation or termination for insufficient funding. In the
event funds are not made available for the continuation of a multiyear
contract awarded using the procedures in this section, the contract
shall be canceled or terminated.-
(d) Contracts awarded under the multiyear procedure shall be firm-
fixed-price, fixed-price with economic price adjustment, or fixed-price
incentive.-
(e) Recurring costs in cancellation ceiling. The inclusion of
recurring costs in cancellation ceilings is an exception to normal
contract financing arrangements and requires approval by the agency
head.-
(f) Annual and multiyear proposals. Obtaining both annual and
multiyear offers provides reduced lead time for making an annual award
in the event that the multiyear award is not in the Government's
interest. Obtaining both also provides a basis for the computation of
savings and other benefits. However, the preparation and evaluation of
dual offers may increase administrative costs and workload for both
offerors and the Government, especially for large or complex
acquisitions. The head of a contracting activity may authorize the use
of a solicitation requesting only multiyear prices, provided it is
found that such a solicitation is in the Government's interest, and
that dual proposals are not necessary to meet the objectives in 17.105-
2.-
(g) Level unit prices. Multiyear contract procedures provide for
the amortization of certain costs over the entire contract quantity
resulting in identical (level) unit prices (except when the economic
price adjustment terms apply) for all items or services under the
multiyear contract. If level unit pricing is not in the Government's
interest, the head of a contracting activity may approve the use of
variable unit prices, provided that for competitive proposals there is
a valid method of evaluation.
17.107 Options.-
Benefits may accrue by including options in a multiyear contract.
In that event, contracting officers must follow the requirements of
subpart 17.2. Options should not include charges for plant and
equipment already amortized, or other nonrecurring charges which were
included in the basic contract.
17.108 Congressional notification.-
(a) Except for DoD, NASA, and the Coast Guard, a multiyear contract
which includes a cancellation ceiling in excess of $10 million may not
be awarded until the head of the agency gives written notification of
the proposed contract and of the proposed cancellation ceiling for that
contract to the committees on appropriations of the House of
Representatives and Senate and the appropriate oversight committees of
the House and Senate for the agency in question. Information on such
committees may not be readily available to contracting officers.
Accordingly, agencies should provide such information through its
internal regulations. The contract may not be awarded until the thirty-
first day after the date of notification.-
(b) For DoD, NASA, and the Coast guard, a multiyear contract which
includes a cancellation ceiling in excess of $100 million may not be
awarded until the head of the agency gives written notification of the
proposed contract and of the proposed cancellation ceiling for that
contract to the committees on armed services and on appropriations of
the House of Representative and Senate. The contract may not be awarded
until the thirty-first day after the date of notification.
17.109 Contract clauses.-
(a) The contracting officer shall insert the clause at 52.217-2,
Cancellation Under Multiyear Contracts, in solicitations and contracts
when a multiyear contract is contemplated.-
(b) Economic price adjustment clauses. Economic price adjustment
clauses are adaptable to multiyear contracting needs. When the period
of production is likely to warrant a labor
[[Page 39207]]
and material costs contingency in the contract price, the contracting
officer should normally use an economic price adjustment clause (see
16.203). When contracting for services, the contracting officer--
(1) Shall add the clause at 52.222-43, Fair Labor Standards Act and
Service Contract Act-Price Adjustment (Multiple Year and Option
Contracts), when the contract includes the clause at 52.222-41, Service
Contract Act of 1965, as amended;-
(2) May modify the clause at 52.222-43 in overseas contracts when
laws, regulations, or international agreements require contractors to
pay higher wage rates; or-
(3) May use an economic price adjustment clause authorized by
16.203, when potential fluctuations require coverage and are not
included in cost contingencies provided for by the clause at 52.222-43.
PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
22.1001 [Amended]-
3. Section 22.1001 is amended in the second sentence of the
definition of ``Multiple year contracts,'' by removing the phrase
``with a term of more than 1 year (see 17.101)'' and inserting ``(see
17.103)'' in its place.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
52.217-1 [Reserved]
4. Section 52.217-1 is removed and reserved.
5. Section 52.217-2 is revised to read as follows:
52.217-2 Cancellation Under Multiyear Contracts.
As prescribed in 17.109(a), insert the following clause:
CANCELLATION UNDER MULTIYEAR CONTRACTS (JUL 1996)-
(a) Cancellation, as used in this clause, means that the Government
is canceling its requirements for all supplies or services in program
years subsequent to that in which notice of cancellation is provided.
Cancellation shall occur by the date or within the time period
specified in the Schedule, unless a later date is agreed to, if the
Contracting Officer (1) notifies the Contractor that funds are not
available for contract performance for any subsequent program year, or
(2) fails to notify the Contractor that funds are available for
performance of the succeeding program year requirement. -
(b) Except for cancellation under this clause or termination under
the Default clause, any reduction by the Contracting Officer in the
requirements of this contract shall be considered a termination under
the Termination for Convenience of the Government clause.-
(c) If cancellation under this clause occurs, the Contractor will
be paid a cancellation charge not over the cancellation ceiling
specified in the Schedule as applicable at the time of cancellation.
(d) The cancellation charge will cover only (1) costs (i) incurred
by the Contractor and/or subcontractor, (ii) reasonably necessary for
performance of the contract, and (iii) that would have been equitably
amortized over the entire multiyear contract period but, because of the
cancellation, are not so amortized, and (2) a reasonable profit or fee
on the costs.
(e) The cancellation charge shall be computed and the claim made
for it as if the claim were being made under the Termination for
Convenience of the Government clause of this contract. The Contractor
shall submit the claim promptly but no later than 1 year from the date
(1) of notification of the nonavailability of funds, or (2) specified
in the Schedule by which notification of the availability of additional
funds for the next succeeding program year is required to be issued,
whichever is earlier, unless extensions in writing are granted by the
Contracting Officer.-
(f) The Contractor's claim may include--
(1) Reasonable nonrecurring costs (see Subpart 15.8 of the Federal
Acquisition Regulation) which are applicable to and normally would have
been amortized in all supplies or services which are multiyear
requirements;-
(2) Allocable portions of the costs of facilities acquired or
established for the conduct of the work, to the extent that it is
impracticable for the Contractor to use the facilities in its
commercial work, and if the costs are not charged to the contract
through overhead or otherwise depreciated;-
(3) Costs incurred for the assembly, training, and transportation
to and from the job site of a specialized work force; and-
(4) Costs not amortized solely because the cancellation had
precluded anticipated benefits of Contractor or subcontractor
learning.-
(g) The claim shall not include--
(1) Labor, material, or other expenses incurred by the Contractor
or subcontractors for performance of the canceled work;-
(2) Any cost already paid to the Contractor;-
(3) Anticipated profit or unearned fee on the canceled work; or-
(4) For service contracts, the remaining useful commercial life of
facilities. ``Useful commercial life'' means the commercial utility of
the facilities rather than their physical life with due consideration
given to such factors as location of facilities, their specialized
nature, and obsolescence. -
(h) This contract may include an Option clause with the period for
exercising the option limited to the date in the contract for
notification that funds are available for the next succeeding program
year. If so, the Contractor agrees not to include in option quantities
any costs of a startup or nonrecurring nature that have been fully set
forth in the contract. The Contractor further agrees that the option
quantities will reflect only those recurring costs and a reasonable
profit or fee necessary to furnish the additional option quantities.-
(i) Quantities added to the original contract through the Option
clause of this contract shall be included in the quantity canceled for
the purpose of computing allowable cancellation charges.
(End of clause)
[FR Doc. 96-18504 Filed 7-25-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-18503 Federal Acquisition Regulation; Task and Delivery Orders
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39201-39203]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18503]
=======================================================================
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 16
[FAC 90-40; FAR Case 94-711; Item VI]
RIN 9000-AG50
Federal Acquisition Regulation; Task and Delivery Orders
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule adopted as final with changes.
-----------------------------------------------------------------------
SUMMARY: This final rule is issued pursuant to the Federal Acquisition
Streamlining Act of 1994, Public Law 103-355 (the Act). The Federal
Acquisition Regulatory Council is amending the Federal Acquisition
Regulation (FAR) regarding the scope of a multiple award preference for
[[Page 39202]]
indefinite-quantity contracts. This final rule provides that the
multiple award preference established by the FAR does not apply to
architect-engineer contracts subject to the procedures of the FAR. This
regulatory action was subject to Office of Management and Budget review
under Executive Order 12866, dated September 30, 1993, but is not a
major rule under 5 U.S.C. 804.
EFFECTIVE DATE: July 26, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Edward McAndrew at (202) 501-1474
in reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-40, FAR case 94-711.
SUPPLEMENTARY INFORMATION:
A. Background
A proposed rule amending FAR Subpart 16.5 was published in the
Federal Register at 60 FR 14346, March 16, 1995. The proposed rule
reflected changes brought about by sections 1004 and 1054 of the Act.
Sections 1004 and 1054 of the Act created a multiple award preference
for indefinite-quantity contracts. The proposed rule published in the
Federal Register excluded contracts subject to FAR Parts 36, 38, 39,
and 41 from the multiple award preference. With respect to Parts 36 and
39, the exclusions were based upon the ``Provisions Not Affected''
subsection in sections 1004 and 1054 of the Act. The Special
Contracting Team intended to give these provisions meaning by exempting
acquisitions under the Brooks Architect-Engineers Act and the Brooks
Automatic Data Processing Equipment Act from the multiple award
preference. Contracts subject to Part 38 were exempted from the
coverage because the Act specifically exempted GSA's Federal Supply
Schedule program. Contracts subject to Part 41 were exempted because
the Team believed that multiple awards were inconsistent with the
monopolistic nature of some utility services.
A final rule implementing sections 1004 and 1054 of the Act was
published in the Federal Register at 60 FR 49723, September 26, 1995.
However, an interim rule was published along with the final rule which
modified the scope of the multiple award preference. The interim rule
added a new FAR section 16.500 to provide that the multiple award
preference established by Subpart 16.5 could be used to acquire: (1)
Architect-engineer services, provided the selection of contractors and
placement of orders is consistent with Subpart 36.6; and (2) Federal
Information Processing resource requirements that are not satisfied
under the Federal Supply Schedule program, provided the selection of
contractors and placement of orders is consistent with Part 39. The
interim rule also extended the multiple award preference to Part 36
construction contracts and Part 41 utility services. Although the
change was not considered a significant revision within the meaning of
FAR 1.501 and Public Law 98-577, the FAR Council made a determination
to solicit public comments before finalizing this amendment to FAR
Subpart 16.5.
As a result of public comments on the interim rule, the FAR Council
has revised the scope of the rule to clarify that the multiple award
preference established by FAR Subpart 16.5 does not apply to architect-
engineer contracts subject to the procedures of FAR Subpart 36.6.
However, this revision to the rule does not prohibit agencies from
making multiple awards for architect-engineer services, provided the
selection of contractors and placement of orders is consistent with
Subpart 36.6. This final rule also provides that the procedures
contained in Subpart 16.5 may be used to acquire Federal Information
Processing resource requirements that are not satisfied under the
Federal Supply Schedule program, provided the selection of contractors
and placement of orders is consistent with Part 39. The final rule
retains the multiple award preference with respect to construction
contracts subject to Part 36 and utility services subject to Part 41.
However, the final rule recognizes that there may be circumstances when
multiple awards would not be appropriate and, thus, provides
contracting officers the discretion to determine whether multiple
awards should be made.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., applies to
this final rule and a Final Regulatory Flexibility Analysis (FRFA) has
been performed. A copy of the FRFA may be obtained from the FAR
Secretariat.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501 et seq.
D. Public Comments-
On September 26, 1995, an interim rule was published in the Federal
Register at 60 FR 49723. In response to the interim rule, 22 comments
were received. The comments of all respondents were considered in
developing the final rule.
A significant number of comments recommended that certain types of
fixed-price construction contracts, commonly known as ``Job Order
Contracts'' and ``Simplified Acquisition of Base Engineer
Requirements'' (SABER) contracts should be excluded from the scope of
the multiple award preference. These types of contracts typically
include Government-established unit prices for specific line items
needed to complete the requirements of the delivery order. Award
determinations are made by selecting the mix of line items to be used
for a project and multiplying the mix of line items by the coefficient
bid by the offeror. Several comments argued that the application of the
multiple award preference to Job Order and SABER contracts could result
in higher overall prices to the Government. These comments argued that
if multiple Job Order or SABER contracts are made, offerors may be
inclined to raise their bidding coefficient to take into consideration
the fact that potential delivery order awards may be spread out among
several firms rather than one firm receiving all the delivery orders.
The comments further argue that multiple awards may cause a duplication
of contract overhead costs (site managers, offices, equipment, etc.)
and that any economies resulting from a single award would be lost,
thus resulting in higher costs to the Government.
It is recognized that there may be circumstances when multiple
awards under a Job Order or SABER contract may not be appropriate. In
such cases, the rule recognizes that multiple awards should not be
made. For example, the rule provides that multiple awards should not be
made when the contracting officer determines, based on the contracting
officer's knowledge of the market, that more favorable terms and
conditions, including pricing, may be provided if a single award is
made.
The rule has also been revised to clarify that agencies may make
class determinations in accordance with FAR Subpart 1.7 to make single
awards for any class of contracts (including Job Order or SABER
contracts). However, such a class determination would not preclude the
contracting officer from making a determination to solicit for
[[Page 39203]]
multiple awards if the contracting officer determines that multiple
awards may be advantageous to the Government for a particular
solicitation.-
A significant number of comments were also received regarding the
application of the multiple award preference to architect-engineer
services subject to FAR Subpart 36.6. The Team believes that it is good
public policy to use the multiple award preference to promote price
competition in Government contracting. However, the Brooks Architect-
Engineers Act precludes price competition by establishing
qualification-based source selection procedures. Because price
competition is not applicable to architect-engineer services, the rule
has been revised to clarify that the multiple award preference does not
apply to architect-engineer services subject to FAR Subpart 36.6.
Although the rule does not extend the multiple award preference to
architect-engineer services subject to FAR Subpart 36.6, it is
important to note that the rule does not prohibit an agency from making
multiple awards (if an agency chooses to do so) provided the selection
of contractors and placement of orders is consistent with FAR Subpart
36.6. Some Federal agencies have awarded multiple award contracts for
architect-engineer services that are consistent with the Brooks
Architect-Engineers Act qualification-based source selection
procedures. For example, one agency utilized Brooks Architect-Engineers
Act procedures to award multiple contracts for architect-engineer
services to six firms from a single solicitation. As described in the
solicitation, each task order is technically competed among the
multiple awardees. Each firm's response to the task order is
technically ranked based on the evaluation factors for that task. The
most technically qualified firm is determined as a result of the
responses received and a cost proposal is required from that firm.
Negotiations take place and, in most cases, the task order is awarded.
List of Subjects in 48 CFR Part 16-
Government procurement.
Dated: July 16, 1996.
Edward C. Loeb,
Deputy Project Manager for the Implementation of the Federal
Acquisition Streamlining Act of 1994.
Interim Rule Adopted as Final With Changes-
Accordingly, the interim rule amending 48 CFR Part 16 and published
at 60 FR 49723, September 26, 1995, is adopted as a final rule with the
following changes:
1. The authority citation for 48 CFR Part 16 continues to read as
follows:
PART 16--TYPES OF CONTRACTS-
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
2. Section 16.500 is revised to read as follows:
16.500 Scope of subpart.
This subpart prescribes policies and procedures for making awards
of indefinite-delivery contracts and establishes a preference scheme
for making multiple awards of indefinite-quantity contracts. This
subpart does not limit the use of other than competitive procedures
authorized by part 6. Nothing in this subpart shall be construed to
limit, impair, or restrict the authority of the General Services
Administration (GSA) to enter into schedule, multiple award, or task or
delivery order contracts under any other provision of law. Therefore,
GSA regulations and subpart 8.4, part 38, or part 39 for the Federal
Supply Schedule program (including contracts for Federal Information
Processing resources) take precedence over this subpart. This subpart
may be used to acquire Federal Information Processing resource
requirements that are not satisfied under the Federal Supply Schedule
program, provided the selection of contractors and placement of orders
is consistent with part 39. The multiple award preference scheme
established by this subpart does not apply to architect-engineer
contracts subject to the procedures in subpart 36.6. However, agencies
are not precluded from making multiple awards for architect-engineer
services using the procedures in this subpart, provided the selection
of contractors and placement of orders is consistent with subpart 36.6.
-
3. Section 16.504 is amended in paragraph (c)(1) by revising the
third and fourth sentences; and by revising paragraphs (c)(1)(iv) and
(vi) to read as follows:
16.504 Indefinite-quantity contracts.
(c) * * *
(1) * * * No separate written determination to make a single award
is necessary when the determination is contained in a written
acquisition plan or when a class determination has been made in
accordance with subpart 1.7. Multiple awards should not be made if the
contracting officer determines that--
* * * * *
(iv) The tasks likely to be ordered are so integrally related that
only a single contractor can reasonably perform the work;
* * * * *
(vi) Multiple awards would not be in the best interests of the
Government.
* * * * *-
4. Section 16.505 is amended by removing the second sentence of
paragraph (b) and inserting the following three sentences in its place
to read as follows:
16.505 Ordering.
* * * * *-
(b) * * * In determining the procedures for providing awardees a
fair opportunity to be considered for each order, contracting officers
shall exercise broad discretion. The contracting officer, in making
decisions in the award of any individual task order, should consider
factors such as past performance on earlier tasks under the multiple
award contract, quality of deliverables, cost control, price, cost, or
other factors that the contracting officer believes are relevant to the
award of a task order to an awardee under the contract. In evaluating
past performance on individual orders, the procedural requirements in
subpart 42.15 are not mandatory. * * *
* * * * *
[FR Doc. 96-18503 Filed 7-25-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-18502 Federal Acquisition Regulation; Responsibility Determinations
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Page 39201]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18502]
=======================================================================
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 9
[FAC 90-40; FAR Case 95-007; Item V]
RIN 9000-AG66
Federal Acquisition Regulation; Responsibility Determinations
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule amending
the Federal Acquisition Regulation (FAR) to emphasize the use of
commercial sources of information in determining the responsibility of
prospective contractors. This regulatory action was not subject to
Office of Management and Budget review under Executive Order 12866,
dated September 30, 1993, and is not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: September 24, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Ralph DeStefano at (202) 501-1758
in reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-40, FAR case 95-007.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule implements a recommendation of the Department of
Defense Procurement Process Reform Process Action Team. The rule amends
FAR Subpart 9.1, Responsible Prospective Contractors, to state that
contracting officers should use commercial sources of supplier
information in making determinations of responsibility, and to clarify
that preaward surveys should be requested only if sufficient relevant
information is unavailable from other sources.
A proposed rule was published in the Federal Register at 60 FR
55960, November 3, 1995, and amended at 60 FR 62806, December 7, 1995.
Three comments were received and were considered in the development of
the final rule.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., because the rule merely
emphasizes the use of commercial sources of information in determining
the responsibility of prospective contractors.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 9
Government procurement.
Dated: July 16, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Part 9 is amended as set forth below:
PART 9--CONTRACTOR QUALIFICATIONS
1. The authority citation for 48 CFR Part 9 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
2. Section 9.105-1 is amended in the introductory text of paragraph
(c) by removing from the parenthetical ``48 CFR Part 42''; by
redesignating paragraphs (c)(4) through (c)(6) as (c)(5) through
(c)(7), and adding a new paragraph (c)(4) to read as follows:
9.105-1 Obtaining information.
* * * * *
(c) * * *
(4) Commercial sources of supplier information of a type offered to
buyers in the private sector.
* * * * *
3. Section 9.106-1 is amended by revising paragraph (a) to read as
follows:
9.106-1 Conditions for preaward surveys.
(a) A preaward survey is normally required only when the
information on hand or readily available to the contracting officer,
including information from commercial sources, is not sufficient to
make a determination regarding responsibility. In addition, if the
contemplated contract will have a fixed price at or below the
simplified acquisition threshold or will involve the acquisition of
commercial items (see part 12), the contracting officer should not
request a preaward survey unless circumstances justify its cost.
* * * * *
[FR Doc. 96-18502 Filed 7-25-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-18501 Federal Acquisition Regulation; Disaster Relief Act
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39200-39201]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18501]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 6 and 26
[FAC 90-40; FAR Case 93-303; Item IV]
RIN 9000-AG77
Federal Acquisition Regulation; Disaster Relief Act
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule amending
the Federal Acquisition Regulation (FAR) to provide a preference for
local sources in the award of contracts for major disaster or emergency
assistance activities. This regulatory action was not subject to Office
of Management and Budget review under Executive Order 12866, dated
September 30, 1993, and is not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: Septmber 24, 1996.
FOR FURTHER INFORMATION CONTACT: Ms. Linda Klein at (202) 501-3775 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-40, FAR case 93-303.
SUPPLEMENTARY INFORMATION:
A. Background
The Robert T. Stafford Disaster Relief and Emergency Assistance Act
(42 U.S.C. 5121, et seq.) establishes a preference for local sources in
the award of Federal contracts for major disaster or emergency
assistance activities. This final rule amends FAR 6.302-5, and adds FAR
Subpart 26.2 to implement the requirements of Section 5150.
A proposed rule was published in the Federal Register at 60 FR
63876, December 12, 1995. No comments were received in response to the
proposed rule.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601 et seq., because the rule only applies to
acquisitions conducted during the term of a Presidential declaration of
major disaster or emergency.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501 et seq.
List of Subjects in 48 CFR Parts 6 and 26
Government procurement.
Dated: July 16, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Parts 6 and 26 are amended as set forth below:-
1. The authority citation for 48 CFR Parts 6 and 26 continues to
read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 6--COMPETITION REQUIREMENTS
2. Section 6.302-5 is amended by removing ``or'' from the end of
paragraph (b)(3); removing the period from the end of paragraph (b)(4)
and inserting ``; or''; and adding paragraph (b)(5) to read as follows:
6.302-5 Authorized or required by statute.
* * * * *
(b) * * *
(5) The Robert T. Stafford Disaster Relief and Emergency Assistance
Act--42 U.S.C. 5150 (see subpart 26.2).
* * * * *
PART 26--OTHER SOCIOECONOMIC PROGRAMS
3. Subpart 26.2 is added to read as follows:
Subpart 26.2--Disaster or Emergency Assistance Activities
Sec.
26.200 Scope of subpart.
26.201 Policy.
26.200 Scope of subpart.
This subpart implements 42 U.S.C. 5150, which provides a preference
for local organizations, firms, and individuals when contracting for
major disaster or emergency assistance activities (see 6.302-5).
[[Page 39201]]
26.201 Policy.-
(a) When contracting under this subpart for major disaster or
emergency assistance activities, such as debris clearance, distribution
of supplies, or reconstruction, preference shall be given, to the
extent feasible and practicable, to those organizations, firms, or
individuals residing or doing business primarily in the area affected
by such major disaster or emergency.-
(b) The authority to provide preference under this subpart applies
only to those acquisitions, including those which do not exceed the
simplified acquisition threshold, conducted during the term of a major
disaster or emergency declaration made by the President of the United
States under the authority of the Robert T. Stafford Disaster Relief
and Emergency Assistance Act (42 U.S.C. 5121 et seq.).
[FR Doc. 96-18501 Filed 7-25-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-18500 Federal Acquisition Regulation; Gratuities
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39199-39200]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18500]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 3 and 52
[FAC 90-40; FAR Case 96-300; Item III]
RIN 9000-AH11
Federal Acquisition Regulation; Gratuities
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on an interim rule amending
the Federal Acquisition Regulation (FAR) to implement Section 801 of
the National Defense Authorization Act for Fiscal Year 1996 (Public Law
104-106), which amended 10 U.S.C. 2207, generally referred to as the
Gratuities Act, to make it applicable only to contracts exceeding the
simplified acquisition threshold. This regulatory action was not
subject to Office of Management and Budget review under Executive Order
12866, dated September 30, 1993, and is not a major rule under 5 U.S.C.
804.
DATES: Effective Date: July 26, 1996.-
Comment Date: Comments should be submitted to the FAR Secretariat
at the address shown below on or before September 24, 1996 to be
considered in the formulation of a final rule.
ADDRESSES: Interested parties should submit written comments to:
General Services Administration, FAR Secretariat (MVR), 18th & F
Streets, NW., Room 4037, Washington, DC 20405.
Please cite FAC 90-40, FAR case 96-300, in all correspondence
related to this case.
FOR FURTHER INFORMATION CONTACT: Mr. Ralph DeStefano at (202) 501-1758
in reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-40, FAR case 96-300.
SUPPLEMENTARY INFORMATION:
A. Background
Section 801 of the National Defense Authorization Act for Fiscal
Year 1996 (Public Law 104-106), added a subsection (b) to 10 U.S.C.
2207, Expenditure of appropriations: limitation. Prior to its
amendment, 10 U.S.C. 2207 prohibited the spending of DoD appropriated
money (other than under a contract for personal services) unless the
Government had an express right to terminate the contract if the
contractor offered or gave a gratuity to a Government employee to
obtain the contract or to receive favorable treatment under the
contract. Subsection (b) of 10 U.S.C. 2207 exempts contracts which do
not exceed the simplified acquisition threshold from this prohibition.-
FAR Subpart 3.2, Contractor Gratuities to Government Personnel,
implements 10 U.S.C. 2207 and applies to all executive agencies except
for that portion concerning exemplary damages, which applies only to
DOD. FAR Subpart 3.2 prescribed the use of FAR clause 52.203-3,
Gratuities, in solicitations and contracts, except those for personal
services and those between military departments or defense agencies and
foreign governments that do not obligate DOD appropriated funds. This
interim rule amends FAR Subpart 3.2 to exempt solicitations and
contracts which do not exceed the simplified acquisition threshold from
the prescribed use of the clause.
B. Regulatory Flexibility Act
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, 5 U.S.C. 601 et seq., because only a
small number of Federal contractors have been subject to action under
the Gratuities clause. An Initial Regulatory Flexibility Analysis has,
therefore, not been performed. Comments from small entities concerning
the affected FAR subpart will be considered in accordance with section
610 of the Act. Such comments must be submitted separately and should
cite 5 U.S.C. 601 et seq. (FAC 90-40, FAR case 96-300), in
correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501 et seq.
[[Page 39200]]
D. Determination to Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense (DOD), the Administrator of General Services (GSA), and the
Administrator of the National Aeronautics and Space Administration
(NASA) that compelling reasons exist to promulgate this interim rule
without prior opportunity for public comment. This action is necessary
to implement Section 801 of the National Defense Authorization Act for
Fiscal Year 1996 (Public Law 104-106), which was effective upon
enactment (February 10, 1996). However, pursuant to Public Law 98-577
and FAR 1.501, public comments received in response to this interim
rule will be considered in the formation of the final rule.
List of Subjects in 48 CFR Parts 3 and 52
Government procurement.
Dated: July 16, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Parts 3 and 52 are amended as set forth below:-
1. The authority citation for 48 CFR Parts 3 and 52 continues to
read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 3--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST-
2. Section 3.202 is revised to read as follows:
3.202 Contract clause.-
The contracting officer shall insert the clause at 52.203-3,
Gratuities, in solicitations and contracts with a value exceeding the
simplified acquisition threshold, except those for personal services
and those between military departments or defense agencies and foreign
governments that do not obligate any funds appropriated to the
Department of Defense.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
3. Section 52.203-3 is amended by revising the introductory text to
read as follows:
52.203-3 Gratuities.
As prescribed in 3.202, insert the following clause:
* * * * *
[FR Doc. 96-18500 Filed 7-25-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-18499 Federal Acquisition Regulation; Simplified Acquisition Threshold/ Federal Acquisition Computer Network; and Micro-Purchase Procedures
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39189-39199]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18499]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION-
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION-
48 CFR Parts 1, 2, 3, 4, 5, 8, 11, 12, 13, 15, 16, 19, 22, 23, 25,
28, 29, 32, 36, 41, 42, 43, 44, 45, 46, 47, 52, and 53-
[FAC 90-40; FAR Cases 94-770 and 94-771; Item II] -
RIN 9000-AG18/9000-AG26
Federal Acquisition Regulation; Simplified Acquisition Threshold/
Federal Acquisition Computer Network; and Micro-Purchase Procedures
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rules adopted as final with changes.
-----------------------------------------------------------------------
SUMMARY: The Federal Acquisition Regulatory Council is amending the
Federal Acquisition Regulation (FAR) to finalize the interim rules
concerning simplified acquisition procedures and Federal Acquisition
Computer Network (FACNET) requirements of the Federal Acquisition
Streamlining Act of 1994. This rule also implements section 4302 of the
Federal Acquisition Reform Act which deleted the requirement for
attaining interim FACNET certification before simplified acquisition
procedures could be used between $50,000 and $100,000. This is a
significant rule within the meaning of Executive Order 12866; however,
it is not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: August 26, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Paul Linfield at (202) 501-1757 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405, (202) 501-
4755. Please cite FAC 90-40, FAR cases 94-770 and 94-771.
SUPPLEMENTARY INFORMATION:
A. Background-
The Federal Acquisition Streamlining Act of 1994, Public Law 103-
355 (FASA), provided a number of authorities that streamlined the
acquisition process and made a number of substantial changes in the
manner in which relatively low dollar procurements are conducted. FASA
created a micro-purchase threshold of $2,500, a simplified acquisition
threshold of $100,000, provided for the use of simplified acquisition
procedures up to the $100,000 threshold, and created the Federal
Acquisition Computer Network (FACNET). FASA limited use of simplified
acquisition procedures by procurement activities not having certified
interim FACNET to procurements not exceeding $50,000. The Federal
Acquisition Reform Act of 1996 (Division D of the National Defense
Authorization Act for Fiscal Year 1996), Public Law 104-106 (FARA),
deleted the requirement for attaining interim FACNET certification
before simplified acquisition procedures could be used between $50,000
and $100,000. This final rule implements that provision of FARA, as
well as the aforementioned provisions of FASA.
The simplified acquisition procedures of FASA were implemented in
the FAR at 60 FR 34741 on July 3, 1995, in FAC 90-29, FAR case 94-770.
The micro-purchase provisions of FASA were implemented in the FAR at 59
FR 64786 on December 15, 1994, in FAC 90-24, FAR case 94-771. Also
published in FAC 90-29 was an interim rule on FAR case 91-104,
Electronic Contracting, which remains interim and is not being
finalized at this time.
An interagency team is considering technical issues pertaining to
Central Contractor Registration at FAR 4.503. There may be additional
changes to that section as part of FAR case 94-772.
Among the changes in this final rule are:
--Definitions contained in the rule have been moved to FAR 2.101.
--The requirement for interim FACNET to be accomplished before
simplified acquisition procedures can be used for acquisitions between
$50,000 and $100,000 has been deleted.
--The clause at 52.222-40, Service Contract Act of 1965, as amended,
Contracts of $2,500 or Less, has been deleted based upon a regulatory
change by the Department of Labor.
--An information phone number for FACNET is provided in 4.503.
--The coverage in Part 13 on small business programs has been moved to
Part 19 under FAR case 94-782 of this Federal Acquisition Circular.
Note that for non-FACNET acquisitions over $25,000, a synopsis for 15
days is still required.
B. Regulatory Flexibility Act-
The Regulatory Flexibility Act, 5 U.S.C. 601, et seq., applies to
this final rule, and a Final Regulatory Flexibility Analysis (FRFA) has
been prepared and submitted to the Chief Counsel for Advocacy for the
Small Business Administration. This rule implements the simplified
acquisition procedures and Federal Acquisition Computer Network
(FACNET) requirements of the Federal Acquisition Streamlining Act of
1994 (the Act) (Public Law 103-355). The rule applies to all
businesses, large and small organizations, educational and nonprofit,
who are interested in participating in Government acquisitions at or
below the simplified acquisition threshold of $100,000. The
implementation of FACNET provides for the electronic exchange of
acquisition information between the private sector and the Federal
Government. It is estimated that the electronic exchange of acquisition
information will improve business opportunities for more than 300,000
vendors currently doing business with the Government. A copy of the
FRFA may be obtained from the FAR Secretariat at the General Services
Administration, 18th and F Streets NW., Washington, DC 20405.
C. Paperwork Reduction Act-
This final rule does impose an additional reporting or
recordkeeping requirement on the public which requires the approval of
the Office of Management and Budget (OMB) under 44 U.S.C. 3501, et seq.
Contractors are required to electronically register with
[[Page 39190]]
the Central Contractor Registration operated by the Defense Information
Megacenter. The information to be provided is information currently
reported under several existing forms including the SF 129,
Solicitation Mailing List Application, the SF 3881, ACH Vendor/
Miscellaneous Payment Enrollment Form, and the DD-1052, Request for
Assignment of a Commercial and Government Entity (CAGE) Code.
Contractors are required to provide information pertaining to their
electronic data interchange (EDI) capabilities. Establishment of a
central registration system should eliminate the need to submit
multiple registrations with each contracting office the contractor
wishes to do business with.
A request for approval of the information collection requirement
concerning simplified acquisition procedures was submitted to OMB and
approved through April 30, 1998, under OMB Control Number 9000-0137.
Public comments concerning this request were invited through a Federal
Register notice at 60 FR 11659, March 2, 1995. No comments were
received in response to this notice.
D. Public Comments-
Public comments were solicited at 59 FR 64786, December 15, 1994,
and 60 FR 34741, July 3, 1995. In response to the Federal Register
notice, 30 commenters responded with hundreds of specific comments.
These comments were considered in the formulation of the final rule. A
matrix of comments is available from the FAR Secretariat.
List of Subjects in 48 CFR Parts 1, 2, 3, 4, 5, 8, 11, 12, 13, 15, 16,
19, 22, 23, 25, 28, 29, 32, 36, 41, 42, 43, 44, 45, 46, 47, 52, and 53-
Government procurement.
Dated: July 16, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
-Therefore, the interim rules for FAR case 94-770 (60 FR 34741,
July 3, 1995) and FAR case 94-771 (59 FR 64786, December 15, 1994) are
adopted as final with the following changes:-
1. The authority citation for 48 CFR 1, 2, 3, 4, 5, 8, 11, 12, 13,
15, 16, 19, 22, 23, 25, 28, 29, 32, 36, 41, 42, 43, 44, 45, 46, 47, 52,
and 53 continues to read as follows:
-Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
Chapter 1 [Amended]-
2. The following sections are amended by removing the words ``in
Part 13'':
2.201
3.502-3
3.503-2
4.603
4.805(b)(13) introductory text
5.303(b), introductory text
8.203-1(a)(1)
15.106-1(b)(1)
16.504(c)(1)(v)
19.702, introductory text
19.708(a)
28.310(a)
29.401-3
29.401-4
32.202-1(b)(2)
32.908(c)
41.201(b)
42.903
43.205 (d)(2) and (e)
44.201-2(b)(2)
44.204(e)
45.106(e)
46.805 (a) and (b) heading and introductory text;
47.104-4 (a)(2) and (b)
47.200(b)(4)
47.305-16(b)
PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM
3. Section 1.304 is amended by revising paragraph (a) to read as
follows:
1.304 Agency control and compliance procedures.-
(a) Under the authorities of 1.301(c), agencies shall control and
limit issuance of agency acquisition regulations and, in particular,
local agency directives that restrain the flexibilities found in the
FAR, and shall establish formal procedures for the review of these
documents to assure compliance with this part 1.
* * * * *-
4. Section 1.603-3 is revised to read as follows:
1.603-3 Appointment.-
(a) Contracting officers shall be appointed in writing on an SF
1402, Certificate of Appointment, which shall state any limitations on
the scope of authority to be exercised, other than limitations
contained in applicable law or regulation. Appointing officials shall
maintain files containing copies of all appointments that have not been
terminated.-
(b) Agency heads are encouraged to delegate micro-purchase
authority to individuals who are employees of an executive agency or
members of the Armed Forces of the United States who will be using the
supplies or services being purchased. Individuals delegated this
authority are not required to be appointed on an SF 1402, but shall be
appointed in writing in accordance with agency procedures.
PART 2-DEFINITIONS OF WORDS AND TERMS-
5. Section 2.101 is amended to add, in alphabetical order, the
definitions of ``delivery order,'' ``Federal Acquisition Computer
Network (FACNET) Architecture,'' ``full FACNET,'' ``Governmentwide
FACNET,'' ``interim FACNET,'' ``micro-purchase,'' ``micro-purchase
threshold,'' ``simplified acquisition procedures,'' ``simplified
acquisition threshold,'' and ``task order'' to read as follows:
2.101 Definitions.
* * * * *-
Delivery order means an order for supplies placed against an
established contract or with Government sources.
* * * * *-
Federal Acquisition Computer Network (FACNET) Architecture means
the Governmentwide Electronic Commerce/Electronic Data Interchange (EC/
EDI) operational capability for the acquisition of supplies and
services that provides for electronic data interchange of acquisition
information between the Government and the private sector, employs
nationally and internationally recognized data formats, and provides
universal user access.
* * * * *-
Full FACNET means an agency has certified that it has implemented
all of the FACNET functions outlined in 4.504, and more than 75 percent
of eligible contracts (not otherwise exempted from FACNET) in amounts
exceeding the micro-purchase threshold, but not exceeding the
simplified acquisition threshold, were entered into by the agency
during the preceding fiscal year using an interim FACNET certified
electronic automated information system.-
Governmentwide FACNET means that the Federal Government has
certified its FACNET capability, and more than 75 percent of eligible
contracts (not otherwise exempted from FACNET) in amounts exceeding the
micro-purchase threshold, but not exceeding the simplified acquisition
threshold, entered into by the executive agencies during the preceding
fiscal year were made through electronic automated information systems
with full FACNET certification.
* * * * *-
Interim FACNET means a contracting office has been certified as
having implemented the electronic automated information systems
capability to provide widespread public notice of contracting
opportunities, issue solicitations, and receive responses to
solicitations and associated requests for
[[Page 39191]]
information. Such capability must allow the private sector to access
notices of solicitations, access and review solicitations, and respond
to solicitations.
* * * * *-
Micro-purchase means an acquisition of supplies or services (except
construction), the aggregate amount of which does not exceed $2,500,
except that in the case of construction, the limit is $2,000. -
Micro-purchase threshold means $2,500.
* * * * *-
Simplified acquisition procedures means the methods prescribed in
part 13 for making purchases of supplies or services.-
Simplified acquisition threshold means $100,000, except that in the
case of any contract to be awarded and performed, or purchase to be
made, outside the United States in support of a contingency operation
as defined in 10 U.S.C. 101(a)(13), the term means $200,000.
* * * * *-
Task order means an order for services placed against an
established contract or with Government sources.
* * * * *
PART 3--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
6. Section 3.104-4 is amended by revising paragraph (h)(5) to read
as follows:
3.104-4 Definitions.
* * * * *-
(h) * * *-
(5) For purposes of 3.104-4(h), the term procurement official does
not include contracting officers or other individuals whose authority
is limited to the micro-purchase threshold if the head of the
contracting activity determines that it is unlikely that the individual
will make purchases in a total amount greater than $20,000 in any 12-
month period.
3.104-10 [Amended]-
7. Section 3.104-10 is amended in paragraph (c) by removing the
parenthetical ``(see Part 13).''
8. Section 3.502-2 is amended to revise the heading and the
introductory text of paragraph (i) and to add paragraph (j) to read as
follows:
3.502-2 Subcontractor kickbacks.
* * * * *-
(i) Requires each contracting agency to include in each prime
contract exceeding $100,000 for other than commercial items (see part
12), a requirement that the prime contractor shall--
* * * * *-
(j) Notwithstanding paragraph (i) of this subsection, a prime
contractor shall cooperate fully with any Federal government agency
investigating a violation of Section 3 of the Anti-Kickback Act of 1986
(41 U.S.C. 51-58).
PART 4--ADMINISTRATIVE MATTERS-
9. Section 4.501 is amended---
a. By removing the definitions of ``Federal Acquisition Computer
Network (FACNET),'' ``Full FACNET,'' ``Governmentwide FACNET,''
``Interim FACNET,'' ``Value-Added Network (VAN),'' and ``Value-Added
Service (VAS)''; -
b. By revising the heading of the definition of ``ANSI X.12'' to
read ``ANSI X12, as used in this subpart,'';-
c. By inserting, following the end of the definition headings for
``electronic commerce (EC),'' ``electronic data interchange (EDI),''
and ``transaction set'', the phrase ``, as used in this subpart,'';
and-
d. By adding, in alphabetical order, the definitions of
``Implementation convention'' and ``Trading partner''. The revised text
reads as follows:
4.501 Definitions.
* * * * *-
Implementation convention (IC), as used in this subpart, means the
common practices and/or interpretations of the use of ANSI X12
standards. Conventions define how trading partners will use the
standards for their mutual needs. The Federal IC will be used by
organizational elements of the Federal community and by government
organizations and by Trading Partners to exchange data with the Federal
community.-
Trading Partner, as used in this subpart, means a business that has
agreed to exchange business information electronically.
* * * * *-
10. Section 4.502 is amended by revising paragraph (a); by removing
paragraphs (b) and (c), and redesignating paragraph (d) as (b) to read
as follows:
4.502 Policy.-
(a) The Federal Government shall use FACNET whenever practicable or
cost-effective. Contracting officers may supplement FACNET transactions
by using other media to meet the requirements of any contract action
governed by the FAR (e.g., transmit hard copy of drawings).-
* * * * *
11. Section 4.503 is revised to read as follows:
4.503 Contractor registration.-
(a) In order for a contractor to conduct electronic commerce with
the Federal Government, the contractor must provide registration
information to the Central Contractor Registration (CCR). Phone (800)
EDI-3414 for information regarding FACNET.-
(b) The contractor will be required to submit trading partner
profile information, including a Data Universal Numbering System (DUNS)
number, in accordance with the Federal implementation conventions of
the appropriate ANSI X12 transaction set for contractor registration.-
12. Section 4.504 is amended by revising the introductory text for
paragraphs (a) and (b) to read as follows:
4.504 FACNET functions.-
(a) For agencies--
* * * * *-
(b) For the private sector--
* * * * *
4.507 [Removed]-
13. Section 4.507 is removed.
4.800 [Amended]-
14. Section 4.800 is amended in the parenthetical by removing the
reference ``12.106-2'' and inserting ``13.106-2(d)'' in its place.
PART 5--PUBLICIZING CONTRACT ACTIONS-
15. Section 5.101 is amended by revising the first sentence of
paragraph (a)(2) and by revising paragraph (a)(2)(ii) to read as
follows:
5.101 Methods of disseminating information.
* * * * *-
(a) * * *
* * * * *-
(2) For proposed contract actions expected to exceed $10,000, but
not expected to exceed $25,000, by displaying in a public place,
including on an electronic bulletin board, or any other appropriate
electronic means located at the contracting office issuing the
solicitation, an unclassified notice of the solicitation or a copy of
the solicitation satisfying the requirements of 5.207 (c) and (f). * *
*
* * * * *-
(ii) The contracting officer need not comply with the display
requirements of this section when the exemptions at 5.202 (a)(1),
(a)(4) through (a)(9), or (a)(11) apply, or when oral or FACNET
solicitations are used.
* * * * *-
[[Page 39192]]
16. Section 5.202 is amended to revise paragraphs (a)(2) and
(a)(14) to read as follows:
5.202 Exceptions.
* * * * *-
(a) * * *-
(2) The contract action is made under the conditions described in
6.302-2 (or, for purchases conducted using simplified acquisition
procedures, if unusual and compelling urgency precludes competition to
the maximum extent practicable) and the Government would be seriously
injured if the agency complies with the time periods specified in
5.203;
* * * * *-
(14) The contract action is for an amount at or below $250,000 and
is made through FACNET after Governmentwide FACNET has been certified
pursuant to 4.505-3; or
* * * * *
5.203 [Amended]-
17. Section 5.203 is amended in the first sentence of paragraph (b)
by removing ``respond for'' and inserting ``respond to''.-
18. Section 5.205 is amended in paragraph (d)(2) by revising the
first sentence to read as follows:
5.205 Special situations.
* * * * *-
(d) * * *-
(2) When the total fee is expected to exceed $10,000 but not exceed
$25,000, the contracting officer shall comply with 5.101(a)(2). * * *
* * * * *-
19. Section 5.207 is amended by revising paragraph (c)(2)(xiv) and
the first sentence of (e)(3) to read as follows:
5.207 Preparation and transmittal of synopses.
* * * * *-
(c) * * *
(2) * * *
(xiv) In the case of noncompetitive contract actions (including
those that do not exceed the simplified acquisition threshold),
identify the intended source (see 5.207(e)(3)) and insert a statement
of the reason justifying the lack of competition.
* * * * * -
(e) * * *
(3) In the case of a noncompetitive contract action expected to
exceed the simplified acquisition threshold, the synopsis shall refer
to Numbered Note 22. * * *
20. Section 5.503 is amended in paragraph (a) by designating the
existing text as (a)(1) and adding paragraph (a)(2); by removing
paragraph (c) and redesignating paragraphs (d) and (e), as (c) and (d),
respectively. The revised text reads as follows:
5.503 Procedures. -
(a) General. (1) * * *-
(2) The contracting officer shall use the SF 1449 for paper
solicitations. The SF 1449 shall be used to make awards or place orders
unless the award/order is made via FACNET or by using the
Governmentwide commercial purchase card for micro-purchases.
* * * * *
PART 11--DESCRIBING AGENCY NEEDS-
21. Section 11.002 is amended to revise paragraph (a)(1)(i) to read
as follows:
11.002 Policy.
(a) * * *
(1) * * *
(i) Promote full and open competition (see part 6), or maximum
practicable competition when using simplified acquisition procedures,
with due regard to the nature of the supplies or services to be
acquired; and
* * * * *-
22. Section 11.104 is amended to add paragraph (c) to read as
follows:
11.104 Items peculiar to one manufacturer.
* * * * *-
(c) The basis for not providing for maximum practicable competition
is documented in the file when the acquisition is awarded using
simplified acquisition procedures.
PART 12--ACQUISITION OF COMMERCIAL ITEMS
12.102 [Amended]-
23. Section 12.102 is amended in paragraphs (d)(1) and (d)(4) by
removing the parenthetical ``(see Subpart 13.6)'' and by revising the
parenthetical in paragraph (d)(2) to read ``(see 13.505)''.
12.206 [Amended]
24. Section 12.206 is amended in the last sentence by revising
``13.106-1'' to read ``13.106-2''.
12.301 [Amended]-
25. Section 12.301 is amended in paragraph (c)(2) by revising
``13.106-1'' to read ``13.106-2''.
12.602 [Amended]-
26. Section 12.602 is amended in the first sentence of paragraph
(a) and the sixth sentence of paragraph (b) by revising ``13.106-1'' to
read ``13.106-2''.
PART 13--SIMPLIFIED ACQUISITION PROCEDURES-
27. Section 13.000 is revised to read as follows:
13.000 Scope of part.-
This part prescribes policies and procedures for the acquisition of
supplies and services, including construction, research and
development, and commercial items, the aggregate amount of which does
not exceed the simplified acquisition threshold (see 2.101). See part
12, Acquisition of Commercial Items, for policies applicable to the
acquisition of commercial items exceeding the micro-purchase threshold.
See 36.602-5 for simplified procedures to be used when acquiring
architect-engineer services.-
28. Section 13.101 is amended by removing the definitions of
``delivery order,'' ``micro-purchase,'' ``micro-purchase threshold,''
``simplified acquisition procedures,'' and ``simplified acquisition
threshold''; by inserting, following the end of the definition heading
``bulk funding'', ``, as used in this part,''; by revising the
definition of ``Governmentwide commercial purchase card''; by inserting
following the end of the definition headings ``imprest fund,'' and
``purchase order'', ``, as used in this part,''; and by adding, in
alphabetical order, the definition for ``third party draft'' to read as
follows:
13.101 Definitions.
* * * * *-
Governmentwide commercial purchase card, as used in this part,
means a purchase card, similar in nature to a commercial credit card,
issued to authorized agency personnel to use to acquire and to pay for
supplies and services.
* * * * *
Third party draft, as used in this part, means an agency bank
draft, similar to a check, which is used to acquire and to pay for
supplies and services. (See Treasury Financial Manual Section
3040.70.)-
29. Section 13.102 is amended by revising paragraph (b) and by
removing the comma at the end of paragraph (c) to read as follows:
13.102 Purpose.
* * * * *
(b) Improve opportunities for small business, small disadvantaged
business, and women-owned small business concerns to obtain a fair
proportion of Government contracts;
* * * * *
[[Page 39193]]
30. Section 13.103 is revised to read as follows:
13.103 Policy.-
(a) Simplified acquisition procedures shall be used to the maximum
extent practicable for all purchases of supplies or services not
exceeding the simplified acquisition threshold (including purchases
below the micro-purchase threshold), unless requirements can be met by
using required sources of supply under part 8 (e.g., Federal Prison
Industries, Committee for Purchase from People Who Are Blind or
Severely Disabled, and Federal Supply Schedule contracts), GSA
Nonmandatory Schedule Contracts for FIP Resources, existing indefinite
delivery/indefinite quantity contracts, or other established
contracts.-
(b) The contracting office shall not use simplified acquisition
procedures for contract actions exceeding $50,000 after December 31,
1999, unless the office's cognizant agency has certified full FACNET
capability in accordance with 4.505-2.-
(c) Simplified acquisition procedures shall not be used in the
acquisition of supplies and services initially estimated to exceed the
simplified acquisition threshold even though resulting awards do not
exceed that threshold. Requirements aggregating more than the
simplified acquisition threshold or the micro-purchase threshold shall
not be broken down into several purchases that are less than the
applicable threshold merely to permit use of simplified acquisition
procedures, or to avoid any requirements that apply to purchases
exceeding the micro-purchase threshold.-
(d) Simplified acquisition procedures may be used to acquire
personal services if the agency has specific statutory authority to
acquire personal services (see 37.104).-
(e) The Governmentwide commercial purchase card is the preferred
means to purchase and pay for micro-purchases. This is not intended to
limit use of the purchase card to micro-purchases, if otherwise
authorized under agency procedures, nor is it intended to preclude use
of electronic purchasing techniques.-
(f) Agencies are encouraged to use the Governmentwide commercial
purchase card and electronic purchasing techniques to the maximum
extent practicable. The Governmentwide commercial purchase card may be
used to purchase and pay for purchases under part 8 procedures when
authorized, under existing indefinite delivery/indefinite quantity
contracts, or from other established contracts in accordance with
agency procedures.
(g) FACNET shall be used to acquire supplies and services
(including construction, research and development, and architect-
engineer) for contract actions exceeding the micro-purchase threshold,
but not exceeding the simplified acquisition threshold when practicable
and cost-effective (see 4.506). Drawings and lengthy specifications can
be provided off-line in hard copy or through other appropriate means.
(h) Contracting officers shall establish deadlines for the
submission of responses to solicitations which afford suppliers a
reasonable opportunity to respond in accordance with 5.203, Publicizing
and response time.
(i) Contracting officers shall consider all quotes/offers that are
timely received.
(j) Contracting officers are encouraged to use innovative
approaches in awarding contracts using the simplified acquisition
procedures under the authority of this part. For commercial items,
contracting officers may use either the streamlined solicitation
procedure in subpart 12.6 or the existing procedures in parts 13, 14,
15, 35, or 36 as applicable, if they are more streamlined and
beneficial, thereby allowing maximum flexibility. For other than
commercial items, the procedures in other FAR parts may be appropriate.
Other FAR parts that may be used include, but are not limited to parts
14, 15, 35, or 36.
(k) Micro-purchases may be awarded using any of the purchasing
methods covered in this part, provided the purchaser is authorized and
trained, pursuant to agency regulations, to use those methods.
31. Section 13.104 is amended by revising paragraphs (b), (e), and
(f) to read as follows:
13.104 Procedures.
* * * * *
(b) Related items (such as small hardware items or spare parts for
vehicles) may be included in one solicitation and the award made on an
``all-or-none'' or ``multiple award'' basis if suppliers are so advised
when quotations are requested.
* * * * *
(e) Agencies shall use United States-owned excess or near-excess
foreign currency, if appropriate, in making payments under simplified
acquisition procedures (see subpart 25.3).
(f) For proposed purchases covered by this part, see 5.101 and
5.203 to determine if public display and synopsis requirements apply.
* * * * *
32. Section 13.105 is revised to read as follows:
13.105 Small business set-asides.
(a) Each acquisition (non-FACNET and FACNET) of supplies or
services that has an anticipated dollar value exceeding $2,500 and not
exceeding $100,000, is reserved exclusively for small business concerns
and shall be set aside in accordance with subpart 19.5.
(b) Each written solicitation under a set-aside shall contain the
appropriate provisions prescribed by part 19. If the solicitation is
oral, however, information substantially identical to that which is in
the provision shall be given to potential quoters.
33. Sections 13.106, 13.106-1 and 13.106-2 are revised to read as
follows:
13.106 Soliciting competition, evaluation of quotes, and award.
13.106-1 Purchases at or below the micro-purchase threshold.
(a) Soliciting competition, evaluation of quotes, and award. (1) To
the extent practicable, micro-purchases shall be distributed equitably
among qualified suppliers.
(2) Micro-purchases (as defined in 2.101) may be awarded without
soliciting competitive quotations if the contracting officer or
individual appointed in accordance with 1.603-3(b) considers the price
reasonable.
(3) The administrative cost of verifying the reasonableness of the
price for purchases at or below the micro-purchase threshold may more
than offset potential savings from detecting instances of overpricing.
Therefore, action to verify price reasonableness need only be taken
if--
(i) The contracting officer or individual appointed in accordance
with 1.603-3(b) suspects or has information to indicate that the price
may not be reasonable (e.g., comparison to the previous price paid or
personal knowledge of the supply or service); or
(ii) Purchasing a supply or service for which no comparable pricing
information is readily available (e.g., a supply or service that is not
the same as, or is not similar to, other supplies or services that have
recently been purchased on a competitive basis).
(4) Prompt payment discounts should be solicited.
(5) Clauses are not required for micro-purchases using any method
in part 12 or 13. However, this does not prohibit the use of any clause
prescribed elsewhere in this chapter when
[[Page 39194]]
determined necessary by the contracting officer.
(b) Documentation. Minimize the documentation to support micro-
purchases.
13.106-2 Purchases exceeding the micro-purchase threshold.
(a) Soliciting competition. (1) Contracting officers shall promote
competition to the maximum extent practicable to ensure that the
purchase is advantageous to the Government, based, as appropriate, on
either price alone or price and other factors (e.g., past performance
and quality) including the administrative cost of the purchase.
Solicitations shall notify suppliers of the basis upon which award is
to be made.
(2) If FACNET is not available, or an exemption set forth in 4.506
applies, quotations may be solicited through other appropriate means.
The contracting officer shall comply with the requirements of 5.101
when not soliciting via FACNET.-
(3) Requests for quotations should be solicited orally to the
maximum extent practicable when FACNET is not available or a written
determination has been made that it is not practicable or cost-
effective to purchase via FACNET. However, oral solicitations may not
be practicable for contract actions exceeding $25,000 because of the
synopsis requirement in 5.101. Sufficient information to permit
suppliers to develop quotations may be incorporated into a combined
synopsis/solicitation. In such cases, the contracting officer is not
required to issue a separate solicitation. Paper solicitations for
contract actions not expected to exceed $25,000 should only be issued
when obtaining electronic or oral quotations is not considered
economical or practical. Written solicitations shall be issued for
construction contracts over $2,000.-
(4) If using simplified acquisition procedures and not using
FACNET, maximum practicable competition ordinarily can be obtained
without soliciting quotations or offers from sources outside the local
trade area. Generally, solicitation of at least three sources may be
considered to promote competition to the maximum extent practicable if
the contract action does not require synopsis pursuant to 5.101 and
5.202. If practicable, two sources not included in the previous
solicitation should be requested to furnish quotations. The following
factors influence the number of quotations required in connection with
any particular purchase:-
(i) The nature of the article or service to be purchased and
whether it is highly competitive and readily available in several makes
or brands, or is relatively noncompetitive.-
(ii) Information obtained in making recent purchases of the same or
similar item.-
(iii) The urgency of the proposed purchase.-
(iv) The dollar value of the proposed purchase.-
(v) Past experience concerning specific dealers' prices.-
(5) Contracting officers may solicit from one source if the
contracting officer determines that the circumstances of the contract
action deem only one source reasonably available.-
(6) Contracting officers shall not limit solicitations to suppliers
of well-known and widely distributed makes or brands (see 11.104), or
solicit quotations on a personal preference basis.-
(7) In accordance with 14.408-3, contracting officers shall make
every effort to obtain trade and prompt payment discounts. However,
prompt payment discounts shall not be considered in the evaluation of
quotations.-
(8)(i) Each contracting office should maintain a source list (or
lists, if more convenient). New supply sources for the list may be
obtained from a variety of sources, including the Central Contractor
Registration (CCR) data base (see 4.503). The list should identify the
status of each source (when the status is made known to the contracting
office) in the following categories:-
(A) Small business.-
(B) Small disadvantaged business.-
(C) Women-owned small business.-
(ii) The status information may be used as the basis to ensure that
small business concerns are given opportunities to respond to
solicitations issued using simplified acquisition procedures.-
(b) Evaluation of quotes or offers.
(1) Contracting officers may evaluate quotes or offers based on
price alone or price and other factors (see 13.106-2(a)(1)).
Contracting officers are encouraged to use best value. Formal
evaluation plans, conduct of discussions, and scoring of quotes or
offers are not required. Evaluation of other factors, such as past
performance, does not require the creation or existence of a formal
data base, but may be based on such information as the contracting
officer's knowledge of and previous experience with the item or service
being purchased, customer surveys, or other reasonable basis. When
evaluating quotes or offers on price and other factors, the evaluation
must be performed based on the criteria established in the
solicitation. -
(2) Standing price quotations may be used in lieu of obtaining
individual quotations each time a purchase is contemplated. In such
cases, contracting officers shall ensure that the pricing information
is current and that the Government obtains the benefit of maximum
discounts before award is made.-
(3) Contracting officers shall evaluate quotations inclusive of
transportation charges from the shipping point of the supplier to the
delivery destination.-
(4) Contracting officers shall comply with the policy in 7.202
relating to economic purchase quantities, when practicable.-
(c) Award. (1) Occasionally an item can be obtained only from a
supplier who quotes a minimum order price or quantity that either
unreasonably exceeds stated quantity requirements or results in an
unreasonable price for the quantities required. In these instances, the
contracting officer should inform the requiring activity of all facts
regarding the quotation and ask it to confirm or alter its requirement.
The file shall be documented to support the final action taken.-
(2) Except for awards conducted through FACNET, notification to
unsuccessful suppliers shall be given only if requested.-
(3) If a supplier requests information on an award which was based
on factors other than price, a brief explanation of the basis for the
contract award decision shall be provided (see 15.1002(c)(2)).-
(d) Data to support purchases. (1) The determination that a
proposed price is reasonable should be based on competitive quotations/
offers. If only one response is received, a statement shall be included
in the contract file giving the basis of the determination of fair and
reasonable price. The determination may be based on market research, a
comparison of the proposed price with prices found reasonable on
previous purchases, current price lists, catalogs, advertisements,
similar items in a related industry, value analysis, the contracting
officer's personal knowledge of the item being purchased, comparison to
an independent government estimate, or any other reasonable basis.-
(2) When other than price-related factors are considered in
selecting the supplier (see 13.106-2(b)(1)), the contracting officer
shall document the file to support the final award decision.-
(3) If only one source is solicited, an additional notation shall
be made to explain the absence of competition,
[[Page 39195]]
except for acquisition of utility services available from only one
source.-
(4) Documentation should be kept to a minimum. The following
illustrate the extent to which quotation/offer information should be
recorded:-
(i) Oral solicitations. The contracting office should establish and
maintain informal records of oral price quotations in order to reflect
clearly the propriety of placing the order at the price paid with the
supplier concerned. In most cases, this will consist merely of showing
the names of the suppliers contacted and the prices and other terms and
conditions quoted by each.-
(ii) Written solicitations (see 2.101). Written records of
solicitations/offers may be limited to notes or abstracts to show
prices, delivery, references to printed price lists used, the supplier
or suppliers contacted, and other pertinent data.
(5) Purchasing offices shall retain data supporting purchases
(paper or electronic) to the minimum extent and duration necessary for
management review purposes (see subpart 4.8) when using simplified
acquisition procedures.-
34. Section 13.107 is revised to read as follows:
13.107 Solicitation forms.-
(a) The SF 1449, Solicitation/Contract/Order for Commercial Items,
shall be used by the contracting officer when issuing a paper
solicitation for commercial items, except when using a combined
synopsis/solicitation (see subpart 12.6). This form may be used for
other than commercial items.-
(b) Except when quotations are solicited via FACNET, other
electronic means, or orally, the SF 1449; SF 18, Request for
Quotations; or other agency authorized form/automated format may be
used for other than commercial items. -
(c) OF 336, Continuation Sheet, may be used when additional space
is needed.-
35. Section 13.108 is amended by revising the first sentence of
paragraph (b) to read as follows:
13.108 Legal effect of quotations.
* * * * *-
(b) When appropriate, the contracting officer may ask the supplier
to indicate acceptance of an order by notification to the Government,
preferably in writing, as defined at 2.101. * * *
* * * * *
13.109 [Amended]-
36. Section 13.109 is amended in the first sentence by inserting
``task or'' before ``delivery orders'', and in the beginning of the
second sentence by removing ``Therefore,''.-
37. Section 13.110 is amended by revising paragraphs (a)(2) and
(a)(3); by removing paragraphs (a)(8), (a)(9), (a)(11), (a)(12), and
(a)(13), and redesignating (a)(10) as (a)(8) to read as follows:
13.110 Federal Acquisition Streamlining Act of 1994 (FASA) list of
inapplicable laws.-
(a) * * *-
(2) 40 U.S.C. 270a (Miller Act). (Although the Miller Act no longer
applies to contracts at or below the simplified acquisition threshold,
alternative forms of payment protection for suppliers of labor and
material are still required if the contract exceeds $25,000.)-
(3) 40 U.S.C. 327 to 333 (Contract Work Hours and Safety Standards
Act).
* * * * *-
38. Section 13.111 is amended by revising the introductory text and
paragraph (a); removing paragraph (b) and redesignating the existing
paragraphs (c) through (i) as paragraphs (b) through (h); revising the
newly designated paragraph (e); in the newly designated paragraph (g)
by removing ``and''; in the newly designated paragraph (h) by removing
the ``period'' and inserting ``; and''; and by adding a new paragraph
(i) to read as follows:
13.111 Inapplicable provisions and clauses.-
While certain statutes still apply, pursuant to Public Law 103-355,
the following provisions and clauses are inapplicable to contracts and
subcontracts at or below the simplified acquisition threshold---
(a) Clauses implementing Miller Act requirements in 28.102-3;
* * * * *-
(e) 52.215-2, Audit and Records--Negotiation;
* * * * *-
(i) 52.223-8, Estimate of Percentage of Recovered Material for
Designated Items to be Used in the Performance of the Contract.-
39. Section 13.202 is revised to read as follows:
13.202 Establishment of blanket purchase agreements (BPAs).-
(a) The following are circumstances under which contracting
officers may establish BPAs:-
(1) There is a wide variety of items in a broad class of supplies
or services that are generally purchased, but the exact items,
quantities, and delivery requirements are not known in advance and may
vary considerably.-
(2) There is a need to provide commercial sources of supply for one
or more offices or projects in a given area that do not have or need
authority to purchase otherwise.-
(3) Use of this procedure would avoid the writing of numerous
purchase orders.-
(b) After determining a BPA would be advantageous, contracting
officers shall---
(1) Establish the parameters to limit purchases to individual items
or commodity groups or classes, or permit the supplier to furnish
unlimited supplies or services; and-
(2) Consider suppliers whose past performance has shown them to be
dependable, who offer good quality at consistently lower prices, and
who have provided numerous purchases at or below the simplified
acquisition threshold.-
(c) BPAs may be established with---
(1) More than one supplier for supplies or services of the same
type to provide maximum practicable competition;-
(2) A single firm from which numerous individual purchases at or
below the simplified acquisition threshold will likely be made in a
given period; or
(3) Federal Supply Schedule contractors and Federal Information
Processing Multiple Award Schedule contractors (see part 39), if not
inconsistent with the terms of the applicable schedule contract.-
(d) BPAs should be prepared without a purchase requisition and only
after contacting suppliers to make the necessary arrangements for---
(1) Securing maximum discounts;-
(2) Documenting individual purchase transactions;
(3) Periodic billings; and-
(4) Incorporating other necessary details.-
(e) BPAs shall be prepared on the forms specified in 13.505(a) and
shall not cite accounting and appropriation data (see 13.204(e)(4)).-
(1) The following terms and conditions are mandatory:-
(i) Description of agreement. A statement that the supplier shall
furnish supplies or services, described in general terms, if and when
requested by the contracting officer (or the authorized representative
of the contracting officer) during a specified period and within a
stipulated aggregate amount, if any.
(ii) Extent of obligation. A statement that the Government is
obligated only to the extent of authorized purchases actually made
under the BPA.
(iii) Pricing. A statement that the prices to the Government shall
be as low or lower than those charged the supplier's most favored
customer for comparable quantities under similar
[[Page 39196]]
terms and conditions, in addition to any discounts for prompt payment.
(iv) Purchase limitation. A statement that specifies the dollar
limitation for each individual purchase under the BPA (see 13.204(b)).-
(v) Individuals authorized to purchase under the BPA. A statement
that a list of individuals authorized to purchase under the BPA,
identified either by title of position or by name of individual,
organizational component, and the dollar limitation per purchase for
each position title or individual shall be furnished to the supplier by
the contracting officer.
(vi) Delivery tickets. A requirement that all shipments under the
agreement, except subscriptions and other charges for newspapers,
magazines, or other periodicals, shall be accompanied by delivery
tickets or sales slips which shall contain the following minimum
information:-
(A) Name of supplier.
(B) BPA number.
(C) Date of purchase.-
(D) Purchase number.
(E) Itemized list of supplies or services furnished.-
(F) Quantity, unit price, and extension of each item, less
applicable discounts (unit prices and extensions need not be shown when
incompatible with the use of automated systems; provided, that the
invoice is itemized to show this information).-
(G) Date of delivery or shipment.-
(vii) Invoices. One of the following statements shall be included
(except that the statement in paragraph (e)(1)(vii)(C) of this section
should not be used if the accumulation of the individual invoices by
the Government materially increases the administrative costs of this
purchase method):-
(A) A summary invoice shall be submitted at least monthly or upon
expiration of this BPA, whichever occurs first, for all deliveries made
during a billing period, identifying the delivery tickets covered
therein, stating their total dollar value, and supported by receipt
copies of the delivery tickets.-
(B) An itemized invoice shall be submitted at least monthly or upon
expiration of this BPA, whichever occurs first, for all deliveries made
during a billing period and for which payment has not been received.
These invoices need not be supported by copies of delivery tickets.-
(C) When billing procedures provide for an individual invoice for
each delivery, these invoices shall be accumulated; provided, that--
(1) A consolidated payment will be made for each specified period;
and -
(2) The period of any discounts will commence on the final date of
the billing period or on the date of receipt of invoices for all
deliveries accepted during the billing period, whichever is later.-
(D) An invoice for subscriptions or other charges for newspapers,
magazines, or other periodicals shall show the starting and ending
dates and shall state either that ordered subscriptions have been
placed in effect or will be placed in effect upon receipt of payment.-
(2) If the fast payment procedure is used, the requirements stated
in 13.303 shall be included.
13.203 and 13.203-1 [Removed]
13.203-2 [Redesignated as 13.203]
40. Sections 13.203 and 13.203-1 are removed, and section 13.203-2
is redesignated as 13.203 and amended in paragraph (b) by revising the
citation ``22.305(a)(1)'' to read ``22.305(a)''.-
41. Section 13.204 is amended by revising paragraph (b) and the
second sentence of paragraph (c); and in paragraphs (e) introductory
text, (e)(1), and (e)(4) by removing the words ``under BPAs''. The
revised text reads as follows:
13.204 Purchases under Blanket Purchase Agreements.
* * * * *-
(b)-Unless otherwise specified in agency regulations, individual
purchases under BPAs, except those BPAs established in accordance with
13.202(c)(3), shall not exceed $100,000.-
(c) * * * The requirements of 13.105, 13.106-2, and subpart 19.5
also apply to each order.
* * * * *-
42. Section 13.302 is amended by revising paragraph (a); and in
paragraph (b) by removing the second sentence to read as follows:
13.302 Conditions for use.
* * * * *-
(a) Individual purchasing instruments do not exceed $25,000, except
that executive agencies may permit higher dollar limitations for
specified activities or items on a case-by-case basis.
* * * * *
13.303 [Amended]-
43. Section 13.303 is amended by removing paragraphs (a) and
(b)(4); by removing the designation of paragraph (b), and redesignating
paragraphs (b)(1), (b)(2), and (b)(3) as paragraphs (a), (b), and (c).
44. Subpart 13.4, consisting of sections 13.401, 13.402, 13.403,
and 13.404, is revised to read as follows:
Subpart 13.4--Imprest Fund
13.401 General.
This subpart prescribes policies and procedures for using imprest
funds and third party drafts to acquire and pay for supplies or
services. Related policies and regulations concerning the establishment
of and accounting for imprest funds and third party drafts, including
the responsibilities of designated cashiers and alternates, are
contained in Part IV of the Treasury Financial Manual for Guidance of
Departments and Agencies, Title 7 of the General Accounting Office
Policy and Procedures Manual for Guidance of Federal Agencies, and the
agency implementing regulations. Agencies shall also be guided by the
Manual of Procedures and Instructions for Cashiers, issued by the
Financial Management Service, Department of the Treasury.
13.402 Agency responsibilities.
Each agency using imprest funds and third party drafts shall--
(a) Periodically review and determine whether there is a continuing
need for each fund or third party draft account established, and that
amounts of those funds or accounts are not in excess of actual needs;-
(b) Take prompt action to have imprest funds or third party draft
accounts adjusted to a level commensurate with demonstrated needs
whenever circumstances warrant such action; and-
(c) Develop and issue appropriate implementing regulations. These
regulations shall include (but are not limited to) procedures
covering---
(1) Designation of personnel authorized to make purchases using
imprest funds or third party drafts; and-
(2) Documentation of purchases using imprest funds or third party
drafts, including documentation of--
(i) Receipt and acceptance of supplies and services by the
Government;-
(ii) Receipt of cash or third party draft payments by the
suppliers; and-
(iii) Cash advances and reimbursements.
13.403 Conditions for use. -
Imprest funds or third party drafts may be used for purchases
when---
(a) The imprest fund transaction does not exceed $500 or such other
limits as have been approved by the agency head;-
(b) The third party draft transaction does not exceed $2,500,
unless authorized at a higher level in accordance with Treasury
restrictions;-
(c) The use of imprest funds or third party drafts is considered to
be advantageous to the Government; and-
[[Page 39197]]
(d) The use of imprest funds or third party drafts for the
transaction otherwise complies with any additional conditions
established by agencies and with the policies and regulations
referenced in 13.401.
13.404 Procedures.-
(a) Each purchase using imprest funds or third party drafts shall
be based upon an authorized purchase requisition, contracting officer
verification statement, or other agency approved method of ensuring
adequate funds are available for the purchase.-
(b) Normally, purchases should be placed orally and without
soliciting competition if prices are considered reasonable.-
(c) Purchases shall be distributed equitably among qualified
suppliers.-
(d) Prompt payment discounts shall be solicited.-
(e) Any agency-authorized purchase order form or Standard Form
1165, Receipt for Cash-Subvoucher, may be used if a written order is
considered necessary (e.g., if required by the supplier for discount,
tax exemption, or other reasons). If a purchase order is used for this
purpose, it shall be endorsed ``Payment to be made from Imprest Fund''
(or ``payment to be made from third-party draft,'' as appropriate).-
(f) The individual authorized to make purchases using imprest funds
or third party drafts shall---
(1) Furnish to the imprest fund or third party draft cashier a copy
of the document required under 13.404(a) annotated to reflect---
(i) That an imprest fund or third party draft purchase has been
made;-
(ii) The unit prices and extensions;-
(iii) The supplier's name and address; and-
(iv) The date of anticipated delivery.-
(2) Require the supplier to include with delivery of the supplies
an invoice, packing slip, or other sales instrument giving--
(i) The supplier's name and address;-
(ii) List and quantity of items;-
(iii) Unit prices and extensions; and-
(iv) Cash discount, if any.-
45. Section 13.501 is amended by revising paragraphs (a), (c), (d),
and (g) to read as follows:
13.501 General.
(a) Except as provided under the unpriced purchase order method
(see 13.502), purchase orders generally are issued on a fixed-price
basis. See part 12 for acquisition of commercial items.
* * * * *-
(c) Purchase orders shall specify the quantity of supplies or scope
of services ordered.
(d) Inspections under simplified acquisition procedures shall be as
prescribed in part 46. Orders generally will provide that inspection
and acceptance will be at destination, and source inspection should be
specified only if required by part 46. If inspection and acceptance are
to be performed at destination, advance copies of the purchase order,
or equivalent notice, shall be furnished to consignee(s) for material
receipt purposes. Receiving reports shall be accomplished immediately
upon receipt and acceptance of material.
* * * * *-
(g) The contracting officer's signature (see 2.101) on purchase
orders shall be in accordance with 4.101. Facsimile and electronic
signature may be used in the production of purchase orders by automated
methods.
* * * * *
13.502 [Amended]-
46. Section 13.502 is amended by removing paragraph (b)(1) and
redesignating paragraphs (b)(2) and (b)(3) as (b)(1) and (b)(2),
respectively; in paragraph (c) by removing the parenthetical at the end
of the first sentence; and at the end of the last sentence of paragraph
(c) by removing the parenthetical ``(see 13.106-2(a))'' and inserting
''(see 13.106-2(d)).''-
47. Section 13.503 is amended by revising paragraph (a) to read as
follows:
13.503 Obtaining contractor acceptance and modifying purchase orders.-
(a) When it is desired to consummate a binding contract between the
parties before the contractor undertakes performance, the contracting
officer shall require written (see 2.101) acceptance of the purchase
order by the contractor.
* * * * *-
48. Section 13.505 is revised to read as follows:
13.505 Purchase order and related forms. -
(a) The following are multipurpose forms used for negotiated
purchases of supplies or services, delivery or task orders, inspection
and receiving reports, and invoices:-
(1) SF 1449 shall be used for commercial items.-
(2) For other than commercial items, SF 1449, OF 347, or an agency
form/automated format may be used. Agencies may print on the latter
forms the clauses considered to be generally suitable for purchases.-
(3) OF 348 or an agency form/automated format may be used when
additional space is needed.-
(b) SF 44 is a pocket-size purchase order form designed primarily
for on-the-spot, over-the-counter purchases of supplies and nonpersonal
services while away from the purchasing office or at isolated
activities. It is a multipurpose form that can be used as a purchase
order, receiving report, invoice, and public voucher.-
(1) SF 44 may be used if all of the following conditions are
satisfied:-
(i) The amount of the purchase is at or below the micro-purchase
threshold, except for purchases made under unusual and compelling
urgency or in support of contingency operations. Agencies may establish
higher dollar limitations for specific activities or items.-
(ii) The supplies or services are immediately available.-
(iii) One delivery and one payment will be made.-
(iv) Its use is determined to be more economical and efficient than
use of other simplified acquisition methods.-
(2) General procedural instructions governing the use of SF 44 are
printed on the form and on the inside front cover of each book of
forms.-
(3) Since there is, for all practical purposes, simultaneous
placing of purchase orders on SF 44 and delivery of the items ordered,
clauses are not required for purchases using this form.-
(4) Agencies shall provide adequate safeguards regarding the
control of forms and accounting for purchases.
13.505-1 through 13.505-3, and 13.506 [Removed]-
49. Sections 13.505-1, 13.505-2, 13.505-3, and 13.506 are removed.
13.507 [Redesignated as 13.506]-
50. Section 13.507 is redesignated as 13.506.
Subpart 13.6--[Removed]-
51. Subpart 13.6, Micro-Purchase, consisting of 13.601, 13.602, and
13.603, is removed.
PART 15--CONTRACTING BY NEGOTIATION
15.401 [Amended]-
52. Section 15.401 is amended in paragraph (a) by deleting the
parenthetical ``(see Part 13)''.
15.602 [Amended]-
53. Section 15.602 is amended in paragraph (b) by removing the
parenthetical ``(see Part 13)''.
PART 16--TYPES OF CONTRACTS-
54. Section 16.000 is amended by revising the first sentence to
read as follows:
[[Page 39198]]
16.000 Scope of part.-
This part describes types of contracts that may be used in
acquisitions. * * *
55. Section 16.103 is amended by revising paragraph (d)(1) to read
as follows:
16.103 Negotiating contract type.
* * * * *
(d) * * * (1) fixed-price acquisitions made under simplified
acquisition procedures, * * *
16.105 [Amended]-
56. Section 16.105 is amended in paragraph (a) by removing the
parenthetical ``(see Part 13)''.
16.703 [Amended]-
57. Section 16.703 is amended at the end of paragraph (c)(1)(vi) by
removing ``(b)'' from the reference ``13.303(b)''.
PART 19--SMALL BUSINESS PROGRAMS
19.303 [Amended]-
58. Section 19.303 is amended in paragraph (a) by removing ``in
13.101''.
19.501 [Amended]-
59. Section 19.501 is amended in paragraph (d) by removing ``in
13.101''.
PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT AGENCIES
22.1003-4 [Amended]-
60. Section 22.1003-4 is amended in paragraph (b)(4)(iii)(B) by
removing ``22.1005 and'' in the first parenthetical.
22.1005 [Removed]-
61. Section 22.1005 is removed and reserved.
22.1022 [Amended]-
62. Section 22.1022 is amended in the first sentence by removing
the words ``52.222-40, Service Contract Act of 1965, as amended--
Contracts of $2,500 or Less, or the clause at''.
PART 23--ENVIRONMENT CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-
FREE WORKPLACE-
63. Section 23.405 is amended to revise paragraph (b)(1), and to
amend paragraphs (b)(2) and (b)(3) by adding ``exceeding the simplified
acquisition threshold'' following the word ``solicitations''. The
revised text reads as follows:
23.405 Solicitation provisions and contract clause.
* * * * *
(b)(1) The contracting officer shall insert the provision at
52.223-8, Estimate of Percentage of Recovered Material for Designated
Items to be Used in the Performance of the Contract, in solicitations
exceeding the simplified acquisition threshold that contain a
requirement for an EPA designated item.
* * * * *
PART 25--FOREIGN ACQUISITION-
64. Section 25.302 is amended by revising paragraph (b)(1) to read
as follows:
Sec. 25.302 Policy.
* * * * *
(b) * * * -
(1) The estimated cost of the product or service is at or below the
simplified acquisition threshold.
* * * * *
PART 29-TAXES
Sec. 29.402-1 [Amended]-
65. Section 29.402-1 is amended in paragraphs (a) and (b) by
removing the phrase ``dollar amount in 13.000'' and inserting in their
place ``simplified acquisition threshold''.
PART 32--CONTRACT FINANCING
Sec. 32.901 [Amended]-
66. Section 32.901 is amended by removing from the first
parenthetical ``as defined in Subpart 13.1''.
PART 36--CONSTRUCTION AND ARCHITECT-ENGINEERING CONTRACTS
Sec. 36.701 [Amended]-
67. Section 36.701 is amended in paragraph (c) by removing the
phrase ``small purchases documents (see Part 13, Small Purchases and
Other Simplified Purchase Procedures)'' and inserting in its place
``simplified acquisitions (see part 13)''.
PART 47--TRANSPORTATION
Sec. 47.205 [Amended]-
68. Section 47.205 is amended in paragraph (b) by removing the
words ``at 13.101''.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
Sec. 52.203-6 [Amended]
69. Section 52.203-6 is amended by revising the clause date to read
``[JUL 1995]''.
Sec. 52.213-2 [Amended]-
70. Section 52.213-2 is amended in the introductory text by
revising the citation ``13.507(b)'' to read ``13.506(b)''.
Sec. 52.213-3 [Amended]-
71. Section 52.213-3 is amended in the introductory text by
revising the citation ``13.507(c)'' to read ``13.506(c)''.
Sec. 52.215-2 [Amended]-
72. Section 52.215-2 is amended in the clause heading by removing
``(OCT 1995)'' and inserting (AUG 1996); and in the introductory text
of paragraph (g) by removing the words ``in FAR Part 13.''
Sec. 52.222-40 [Removed]-
73. Section 52.222-40 is removed and reserved.
Sec. 52.227-2 [Amended]-
74. Section 52.227-2 is amended by revising the date of the clause
to read ``(AUG 1996)''; and in paragraph (c) by removing the phrase
``dollar amount set forth in 13.000 of the Federal Acquisition
Regulation (FAR).'' and inserting in its place ``simplified acquisition
threshold at FAR 2.101.''
Sec. 52.244-2 [Amended]-
75. Section 52.244-2 is amended in Alternate I of the clause by
removing (JUL 1995)'' and inserting ``(AUG 1996)''; and in paragraph
(a)(2) of Alternate I by removing the words ``in Part 13 of the Federal
Acquisition Regulation.''
Sec. 52.247-64 [Amended]-
76. Section 52.247-64 is amended in the clause heading by removing
``(JUL 1995)'' and inserting ``(AUG 1996)''; in paragraph (d) by
removing the words ``as described in FAR Part 13''; and in paragraph
(e)(1) by removing the words ``as defined in FAR Part 13.''
PART 53--FORMS-
77. Section 53.205--1 is revised to read as follows:
Sec. 53.205-1 Paid advertisements. -
SF 1449, prescribed in 53.212, shall be used to place orders for
paid advertisements as specified in 5.503.-
78. Section 53.213 is revised to read as follows:
Sec. 53.213 Simplified acquisition procedures (SF's 18, 30, 44, 1165,
1449, OF's 336, 347, 348).-
The following forms are prescribed as stated in this section for
use in simplified acquisition procedures, orders under existing
contracts or agreements, and orders from required sources of supplies
and services:-
(a) SF 18 (REV. 6/95), Request for Quotations, or SF 1449, (10/95
Ed.) Solicitation/Contract/Order for Commercial Items. SF 18 prescribed
in 53.215-1(a) or SF 1449 prescribed in 53.212 (or approved agency
forms/
[[Page 39199]]
automated formats) shall be used in obtaining price, cost, delivery,
and related information from suppliers as specified in 13.107. -
(b) SF 30 (REV. 10/83), Amendment of Solicitation/Modification of
Contract. SF 30, prescribed in 53.243, may be used for modifying
purchase orders, as specified in 13.503(b). -
(c) SF 44 (REV. 10/83), Purchase Order Invoice Voucher. SF 44 is
prescribed for use in simplified acquisition procedures, as specified
in 13.505(b). -
(d) SF 1165 (6/83 Ed.), Receipt for Cash-Subvoucher. SF 1165 (GAO)
may be used for imprest fund purchases, as specified in 13.404(e). -
(e) OF 336 (4/86 Ed.), Continuation Sheet. OF 336, prescribed in
53.214(h), may be used as a continuation sheet in solicitations, as
specified in 13.107(c).-
(f) SF 1449, (10/95 Ed.) Solicitation/Contract/Order for Commercial
Items prescribed in 53.212, OF 347 (REV. 6/95), Order for Supplies or
Services, and OF 348 (10/83 Ed.), Order for Supplies or Services-
Schedule Continuation. SF 1449, OF's 347 and 348 (or approved agency
forms/automated formats) may be used as follows: -
(1) To accomplish acquisitions under simplified acquisition
procedures, as specified in 13.505. -
(2) To establish blanket purchase agreements (BPA's), as specified
in 13.202, and to make purchases under BPA's, as specified in
13.204(e). -
(3) To issue orders under basic ordering agreements, as specified
in 16.703(d)(2)(i). -
(4) As otherwise specified in this chapter (e.g., see 5.503(a)(2),
8.405-2, 36.701(c), and 51.102(e)(3)(ii)).
Sec. 53.216-1, 53.236-1, and 53.251 [Amended]-
79. The following sections are amended by removing the reference
``53.213(e)'' and inserting ``53.213(f)'':-
a. 53.216-1; -
b. 53.236-1(f); and -
c. 53.251.
[FR Doc. 96-18499 Filed 7-25-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-18498 Federal Acquisition Regulation; Contingent Fee Representation
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39188-39189]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18498]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1, 3, 4, 13, 31, 52, and 53
[FAC 90-40; FAR Case 93-009; Item I]
RIN 9000-AG83
Federal Acquisition Regulation; Contingent Fee Representation
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule amending
the Federal Acquisition Regulation (FAR) to delete the provision
requiring an offeror to provide a contingent fee representation and
agreement and to submit a statement of contingent or other fees. This
regulatory action was not subject to Office of Management and Budget
review under Executive Order 12866, dated September 30, 1993, and is
not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: September 24, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Ralph DeStefano at (202) 501-1758
in reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-40, FAR case 93-009.
SUPPLEMENTARY INFORMATION:
A. Background
FAR 3.404(b) requires the contracting officer to insert the
provision at 52.203-4, Contingent Fee Representation and Agreement, in
all solicitations, with six exceptions. The provision requires offerors
to provide a contingent fee representation as requested by the
contracting officer. When the representation is answered affirmatively,
the offeror must also provide a completed Standard Form (SF) 119,
Statement of Contingent or Other Fees, or a signed statement indicating
the SF 119 was previously submitted to the same contracting office. A
proposed rule was published in the Federal Register at 60 FR 57140,
November 13, 1995. This final rule revises FAR 3.404 to remove the
requirement for the solicitation provision and removes the accompanying
sections 3.405 through 3.408 which deal with the SF 119. FAR 3.409 and
3.410 have been renumbered.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., because there is a slight
beneficial impact on small entities since offerors will no longer be
required to provide contingent fee representations and agreements or to
submit statements of contingent or other fees. However, the underlying
policy pertaining to contingent fee arrangements has not changed.
C. Paperwork Reduction Act
The Paperwork Reduction Act (Pub. L. 96-511) is deemed to apply
because the final rule eliminates a previously approved information
collection requirement under Office of Management and Budget (OMB)
number 9000-0003, Statement of Contingent or Other Fees (SF 119).
Accordingly, a request for elimination of the information collection
requirement is being submitted to OMB.
List of Subjects in 48 CFR Parts 1, 3, 4, 13, 31, 52, and 53
Government procurement.
Dated: July 16, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Parts 1, 3, 4, 13, 31, 52, and 53 are amended as
set forth below:-
1. The authority citation for 48 CFR Parts 1, 3, 4, 13, 31, 52, and
53 continues to read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM
1.106 [Amended]-
2. Section 1.106 is amended in the list of ``FAR Segments'' and
``OMB Control Numbers'' following the introductory text by removing
``52.203-4'' and ``9000-0003'', and ``SF 119'' and ``9000-0003''.
PART 3--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST-
3. Section 3.404 is revised to read as follows:
3.404 Contract clause.-
The contracting officer shall insert the clause at 52.203-5,
Covenant Against Contingent Fees, in all solicitations and contracts
exceeding the simplified acquisition threshold, other than those for
commercial items (see parts 2 and 12).
3.405 through 3.408-2 [Removed]-
4. Sections 3.405 through 3.408-2 are removed.
3.409 and 3.410 [Redesignated as 3.405 and 3.406]-
5. Sections 3.409 and 3.410 are redesignated as 3.405 and 3.406.-
6. The newly designated 3.406 is amended by revising the first
sentence to read as follows:
3.406 Records.-
For enforcement purposes, agencies shall preserve any specific
evidence of one or more of the violations in 3.405(a), together with
all other pertinent data, including a record of actions taken. * * *
PART 4--ADMINISTRATIVE MATTERS-
7. Section 4.803 is amended by revising paragraph (a)(11) to read
as follows:
4.803 Contents of contract files.
* * * * *-
(a) * * *-
(11) Contractor's certifications and representatives.
* * * * *
PART 13--SIMPLIFIED ACQUISITION PROCEDURES
13.111 [Amended]-
8. Section 13.111 is amended by removing paragraph (c) and
redesignating paragraphs (d) through (j) as (c) through (i).
[[Page 39189]]
PART 31--CONTRACT COST PRINCIPLES AND PROCEDURES
31.205-38 [Amended]-
9. Section 31.205-38 is amended at the end of paragraph (f) by
removing the parenthetical ``(see 3.408-2)''.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
52.203-4 [Reserved]-
10. Section 52.203-4 is removed and reserved.
52.203-5 [Amended]-
11. Section 52.203-5 is amended in the introductory paragraph by
removing ``3.404(c)'' and inserting ``3.404''.
PART 53--FORMS
53.203 [Amended]-
12. Section 53.203 is amended by removing paragraph (a) and the
designation of paragraph (b).
53.301-119 [Removed]-
13. Section 53.301-119 is removed.
[FR Doc. 96-18498 Filed 7-25-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-18497 Federal Acquisition Circular 90-40; Introduction
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39186-39188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18497]
[[Page 39185]]
_______________________________________________________________________
Part II
Department of Defense
General Services Administration
National Aeronautics and Space Administration
_______________________________________________________________________
48 CFR Ch. I, et al.
Federal Acquisition Regulations (FAR); Final and Interim Rules
Federal Register / Vol. 61, No. 145 / Friday, July 26, 1996 / Rules
and Regulations
[[Page 39186]]
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Chapter 1
Federal Acquisition Circular 90-40; Introduction
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Summary presentation of final and interim rules with request
for comment.
-----------------------------------------------------------------------
SUMMARY: This document summarizes the Federal Acquisition Regulation
(FAR) rules which follow it in the order listed below. The FAR Council
is issuing Federal Acquisition Circular (FAC) 90-40 to amend the
Federal Acquisition Regulation (FAR). A companion document, the Small
Entities Compliance Guide, follows this FAC and may be located on the
Internet at http://www.gsa.gov/far/compliance.
DATES: For effective dates and comment dates, see separate documents
which follow. Please cite FAC 90-40 and the appropriate FAR case
number(s) in all correspondence related to the following documents.
FOR FURTHER INFORMATION CONTACT: The analyst whose name appears (in the
table below) in relation to each FAR case or subject area. For general
information, contact the FAR Secretariat, Room 4037, GS Building,
Washington, DC 20405, (202) 501-4755. Please cite FAC 90-40 and
specific FAR case number(s).
SUPPLEMENTARY INFORMATION: Federal Acquisition Circular 90-40 amends
the Federal Acquisition Regulation (FAR) as specified below:
------------------------------------------------------------------------
Item- Subject FAR case Analyst
------------------------------------------------------------------------
I.............. Contingent Fee 93-009 DeStefano.
Representation.
II............. Simplified Acquisition 94-770 Linfield.
Threshold/Federal 94-771
Acquisition Computer
Network; and Micro-
Purchase Procedures.
III............ Gratuities (Interim).. 96-300 DeStefano.
IV............. Disaster Relief Act... 93-303 Klein.
V.............. Responsibility 95-007 DeStefano.
Determinations.
VI............. Task and Delivery 94-711 McAndrew.
Orders.
VII............ Multiyear Contracting. 94-712 McAndrew.
VIII........... Small Business/ 94-782 Moss.
Simplified
Acquisition Threshold.
IX............. Indian-Owned Economic 91-028 DeStefano.
Enterprises.
X.............. General Agreement on 95-308 O'Neill.
Tariffs and Trade
Patent Authorization.
XI............. Performance and 91-027 O'Such.
Payment Bonds.
XII............ Employee Compensation 93-005 Olson.
Costs.
XIII........... Agency Procurement 95-309 O'Neill.
Protests (Interim).
XIV............ Value Engineering..... 96-315 O'Such.
XV............. Termination Inventory 94-003 Klein.
Schedules.
------------------------------------------------------------------------
Item I--Contingent Fee Representation (FAR Case 93-009)
This final rule amends FAR Subpart 3.4 to remove the requirement
for prospective contractors to provide certain information regarding
contingent fee arrangements. Accordingly, the provision at 52.203-4,
Contingent Fee Representation and Agreement, and Standard Form 119,
Statement of Contingent or Other Fees, are also removed. The underlying
policy pertaining to contingent fee arrangements, as set forth in
Subpart 3.4, remains the same.
Item II--Simplified Acquisition Threshold/Federal Acquisition Computer
Network; and Micro-Purchase Procedures (FAR Cases 94-770 and 94-771)
The interim rules published as Item II of FAC 90-24 and Item III of
FAC 90-29 are amended and adopted as final. The rules implement the
micro-purchase, simplified acquisition, and Federal Acquisition
Computer Network (FACNET) provisions of the Federal Acquisition
Streamlining Act of 1994 (Public Law 103-355), and Section 4302(b) of
the Federal Acquisition Reform Act of 1996 (Public Law 104-106). The
final rules differ from the interim rules in that they (1) move
definitions pertaining to micro-purchases, simplified acquisition
procedures, and FACNET from Parts 4 and 13 to Part 2; (2) remove the
requirement for interim FACNET certification before a contracting
office may use simplified acquisition procedures for contract actions
exceeding $50,000; (3) remove the clause at 52.222-40, Service Contract
Act of 1965, as Amended--Contracts of $2,500 or Less, based upon a
change in Department of Labor regulations; and (4) provide a telephone
number for information regarding FACNET at 4.503.
Item III--Gratuities (FAR Case 96-300)
This interim rule amends FAR 3.202 and 52.203-3 to implement
Section 801 of the National Defense Authorization Act for Fiscal Year
1996 (Public Law 104-106). Section 801 amends 10 U.S.C. 2207, generally
referred to as the Gratuities Act, to exempt contracts which do not
exceed the simplified acquisition threshold from application of the
Act. Therefore, the clause at 52.203-3, Gratuities, is now prescribed
for inclusion in only those contracts which exceed the simplified
acquisition threshold.
Item IV--Disaster Relief Act (FAR Case 93-303)
This final rule amends FAR 6.302-5, and adds FAR Subpart 26.2, to
implement the Robert T. Stafford Disaster Relief and Emergency
Assistance Act (42 U.S.C. 5150). Section 5150 establishes a preference
for local sources in the award of contracts for major disaster or
emergency assistance activities.
Item V--Responsibility Determinations (FAR Case 95-007)
This final rule amends FAR Subpart 9.1 to emphasize the use of
commercial sources of information for determining the responsibility of
prospective contractors, and to clarify that preaward surveys normally
should be requested only when information on hand or readily available
is not sufficient.
Item VI--Task and Delivery Orders (FAR Case 94-711)
The interim rule published as Item III of FAC 90-33 is amended and
adopted as final. The interim rule added FAR
[[Page 39187]]
Section 16.500 to define the scope of the multiple award preference
established by Subpart 16.5 for indefinite-quantity contracts. The
final rule differs from the interim rule in that it amends Section
16.500 to clarify that the multiple award preference does not apply to
architect-engineer contracts subject to the procedures in Subpart 36.6.
However, agencies are not precluded from making multiple awards for
architect-engineer services, provided the selection of contractors and
placement of orders is consistent with Subpart 36.6. The rule also
amends Section 16.504 to clarify procedures for determining if multiple
awards are appropriate.
Item VII--Multiyear Contracting (FAR Case 94-712)
This final rule revises FAR Subpart 17.1, removes the clause at
52.217-1, and revises the clause at 52.217-2 to implement Sections 1022
and 1072 of the Federal Acquisition Streamlining Act of 1994 (Public
Law 103-355). Sections 1022 and 1072 provide for use of multiyear
contracting in a manner that will encourage competition or promote
economy in administration, performance, and operation of an agency's
programs.
Item VIII--Small Business/Simplified Acquisition Threshold (FAR Case
94-782)
This final rule amends FAR Part 19 and the clauses at 52.219-6,
52.219-7, and 52.219-18 to implement Section 4004 of the Federal
Acquisition Streamlining Act of 1994 (Public Law 103-355). Section 4004
amends Section 15(j) of the Small Business Act (15 U.S.C. 644(j)) to
reserve each contract for supplies or services that has an anticipated
value greater than $2,500, but not greater than $100,000, for exclusive
participation by small business concerns, unless the contracting
officer is unable to obtain offers from two or more small business
concerns that are competitive with regard to price, quality, and
delivery. This rule also reflects a final rule published by the Small
Business Administration at 13 CFR 121.406, which provides that, where
the procurement of a manufactured item is processed under FAR Part 13
procedures, set aside for small business concerns, and not expected to
exceed $25,000, an offeror need not supply the end product of a small
business concern as long as the product is manufactured or produced in
the United States.
Item IX--Indian-Owned Economic Enterprises (FAR Case 91-028)
The interim rule published as Item VIII of FAC 90-7 is amended and
adopted as final. The rule implements 25 U.S.C. 1544, which provides
for payment of incentives to prime contractors who use Indian
organizations or Indian-owned economic enterprises as subcontractors.
The principal difference between the interim rule and the final rule is
the method of incentive payment contained in each. The interim rule
permitted prime contractors to recover certain costs of subcontracting
with Indian organizations and Indian-owned economic enterprises based
on the difference in price between the acceptable low non-Indian
subcontractor and the acceptable low Indian subcontractor, when the
Indian subcontractor's price exceeded the price of the non-Indian
subcontractor. The final rule instead permits an incentive payment to
the prime contractor in an amount which equals 5 percent of the amount
of the subcontract awarded to the Indian organization or Indian-owned
economic enterprise. The applicable amendments are in Subpart 26.1 and
the clause at 52.226-1.
Item X--General Agreement on Tariffs and Trade Patent Authorization
(FAR Case 95-308)
This final rule adds FAR Section 27.209 to provide guidance
pertaining to the use of patented technology under the General
Agreement on Tariffs and Trade.
Item XI--Performance and Payment Bonds (FAR Case 91-027)
This final rule amends FAR Subpart 28.1 and the clause at 52.228-1,
and adds two clauses at 52.228-15 and 52.228-16, and new SF 1418 to
update, clarify, and standardize policy pertaining to bid guarantees
and performance and payment bonds.
Item XII--Employee Compensation Costs (FAR Case 93-005)
This final rule amends FAR Part 31 to clarify the allowability of
personal services compensation costs. The rule adds definitions at
31.001; clarifies the standard for reasonableness of labor-management
compensation agreements at 31.205-6(b); revises 31.205-6(b)(1)(i) to
clearly allow offsets of allowable elements of employee compensation
packages among jobs of the same grade or level; and revises 31.205-6(i)
to provide a general allowability rule pertaining to corporate
securities.
Item XIII--Agency Procurement Protests (FAR Case 95-309)
This interim rule revises FAR 33.103 to implement Executive Order
12979, Agency Procurement Protests. Executive Order 12979 provides for
inexpensive, informal, procedurally simple, and expeditious resolution
of agency protests, including, where appropriate and permitted by law,
the use of alternative dispute resolution techniques, third party
neutrals, and another agency's personnel.
Item XIV--Value Engineering (FAR Case 96-315)
This final rule amends FAR Part 48 to revise the definition of
value engineering and to require agencies to establish and maintain
cost-effective value engineering procedures and processes. The rule
implements Section 4306 of the Federal Acquisition Reform Act of 1996
(Public Law 104-106).
Item XV--Termination Inventory Schedules (FAR Case 94-003)
This final rule amends FAR Part 49 and the clauses at 52.249-2,
52.249-3, 52.249-5, 52.249-6, and 52.249-11 to require contractors
under terminated contracts to submit termination inventory schedules
within 120 days from the date of termination, unless this period is
extended by the contracting officer.
Dated: July 16, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
FEDERAL ACQUISITION CIRCULAR
Number 90-40
Federal Acquisition Circular (FAC) 90-40 is issued under the
authority of the Secretary of Defense, the Administrator of General
Services, and the Administrator for the National Aeronautics and Space
Administration.
Unless otherwise specified, all Federal Acquisition Regulation
(FAR) and other directive material contained in FAC 90-40 are effective
September 24, 1996, except for Items III, VI thru VIII, and XIII, which
are effective July 26, 1996, and Items II and XIV, which are effective
August 26, 1996.
[[Page 39188]]
Dated: July 12, 1996.
Eleanor R. Spector,
Director, Defense Procurement.
Dated: July 8, 1996.
Ida M. Ustad,
Deputy Associate Administrator for Acquisition Policy, General Services
Administration.
Dated: July 15, 1996.
Tom Luedtke,
Deputy Associate Administrator for Procurement, National Aeronautics
and Space Administration.
[FR Doc. 96-18497 Filed 7-25-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-18495 Miscellaneous Amendments to Acquisition Regulations
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39089-39096]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18495]
=======================================================================
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INTERNATIONAL DEVELOPMENT COOPERATION AGENCY
Agency for International Development
48 CFR Parts 701, 702, 706, 709, 710, 711, 713, 715, 716, 717, 719,
722, 724, 725, 726, 732, 733, 736, 737, 752 and Appendix A
[AIDAR Notice 96-1]
RIN 0412-AA29
Miscellaneous Amendments to Acquisition Regulations
AGENCY: Agency for International Development (USAID).
ACTION: Final rule.
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SUMMARY: The AID Acquisition Regulation (AIDAR) is being amended to
incorporate administrative changes reflecting USAID's new
organizational structure; to implement the Federal Acquisition
Streamlining Act (FASA); to clarify or simplify certain authorities and
procedures currently in the AIDAR; to implement new or revised Agency
policies resulting from reengineering and its effect on procurement
procedures; and to revise relevant sections to implement USAID's
procurement reform initiatives. This regulatory action was subject to
Office of Management and Budget review under Executive Order 12866,
dated September 30, 1993.
EFFECTIVE DATE: August 26, 1996.
FOR FURTHER INFORMATION CONTACT: M/OP/P, Ms. Diane M. Howard, (703)
875-1310.
SUPPLEMENTARY INFORMATION: The specific changes being made to the AID
Acquisition Regulation (AIDAR) in this amendment are broad in scope,
ranging from changes in basic Agency procurement policy and procedures
to minor administrative corrections.
A. USAID Policy Changes
Two changes are needed to the AIDAR to reflect Agency policy
changes.
(1) A new subpart 726.71 ``Relocation of U.S. Businesses,
Assistance to Export Processing Zones, Internationally Recognized
Workers' Rights'' is added to implement a statutorily required policy
promulgated by USAID on January 3, 1994.
(2) The clause at 752.7012 ``Protection of the Individual as a
Research Subject'' is revised to implement USAID's adoption of the
Common Federal Policy for the Protection of Human Subjects, as found in
22 CFR Part 225.
B. USAID Reengineering
USAID has been serving as a reengineering laboratory under the
National Performance Review (NPR), and as a result has made many
changes in its organizational structure as well as its operational
procedures in recent years. Consequently, the AIDAR is being amended
throughout to reflect changes in office designations and acronyms and
to update or delete references to obsolete regulations, functional
position terms, and documentation requirements. The USAID Handbook
system has been replaced by the Automated Directives System (ADS), and
handbook references in the AIDAR are changed to the corresponding ADS
Chapter. A functional position term that is no longer appropriate is
``project officer''; USAID, as a result of reengineering, will no
longer implement its programs through the former project approval and
implementation system and therefore the terms ``project'' and ``project
officer'' will in the future be, respectively, ``activity'' and
``technical officer'' or ``cognizant technical officer''. Obsolete
documentation requirements are Project Implementation Orders (for
technical services [PIO/Ts], commodities [PIO/Cs], or participant
training [PIO/Ps]), and references to these documents are being
deleted.
Concurrent with the overall Agency reengineering and in conjunction
with Government-wide procurement reform efforts, USAID has also been
reengineering its procurement procedures. AIDAR 706.302-70 is being
revised to provide an additional agency exception to full and open
competition to allow for follow-on award for the continued provision of
highly specialized services when award to another source would result
in substantial additional costs to the government or would result in
unacceptable delays. This exception is very similar to the exception
described in FAR 6.302-1(a)(2)(iii); however, the FAR authority is
available only to DOD, NASA, and the Coast Guard and not to civilian
agencies such as USAID. Therefore, the Administrator of USAID made a
formal written determination in accordance with paragraph (b)(3)(ii) of
AIDAR 706.302-70, Impairment of foreign aid programs. Use of the
authority is limited as stated in the added wording in this section.
Another revision related to Agency procurement reform initiatives
is in the AIDAR's Appendix A, ``Respective Roles of Contracting and
Other Personnel in the AID Procurement Process,'' which is revised to
allow the contracting officer to reveal the amount of funds the Agency
has available for a specific procurement when a performance-based
contract is contemplated.
C. The Federal Acquisition Streamlining Act of 1994 (FASA)
FASA and the resulting changes to the FAR require corresponding
revisions to the AIDAR. The specific changes are as follows:
(1) All references to ``small purchases'' and the $25,000 ceiling
for small purchases are being revised to ``simplified acquisition
procedures'' and the threshold amounts in FAR 13.101 and 13.103(b).
(2) USAID's implementation of FASA requirements for obtaining past
performance information is incorporated into the revised solicitation
provision in 752.209-70, which establishes the procedures for obtaining
past performance information from the offeror (this information
collection has been approved Government-wide by OMB under approval
number 9000-0142). The past performance references submitted in
response to this provision will be used both in making the
responsibility determination required in FAR Subpart 9.1 and to
evaluate the offeror's ability to perform the contract based on its
past performance, as now required in FAR 15.605. Subpart 709.1 was
removed since it is redundant to the FAR.
After reviewing section 715.608, ``Proposal evaluation'', to
determine what, if any, changes would be necessary to implement this
component
[[Page 39090]]
of FASA, we redesignated this section as 715.604-70 and revised the
text. The contracting office's representative is now designated in
paragraph (a) as a non-voting member of the evaluation committee, and
paragraph (b) ``Functions and procedures of AID evaluation committees''
is renamed ``Responsibilities of AID evaluation committees'' and is
revised for clarity. No substantive procedural changes are being made
at this time.
(3) Section 716.301-3 is deleted since FASA deleted the
corresponding requirement in FAR 16.301-3(c) for a determination and
findings prior to issuing a cost-reimbursement type contract.
(4) USAID protest procedures in Subpart 733.7 are revised to
reflect FASA changes and to redesignate the AIDAR subpart as 733.1,
with sections thereunder redesignated to further correspond to FAR
Subpart 33.1. AIDAR subpart 733.71 ``AID Procedures for Disputes and
Appeals'' is also redesignated 733.27 and the sections thereunder are
redesignated accordingly.
In addition, Agency protest procedures formerly described in
section 733.70 and now found in section 733.103-70 are revised in their
entirety to condense and clarify them and to designate the Agency
Procurement Executive as the decision authority for Agency protests,
rather than the Head of the Contracting Activity. This latter change is
being made to better ensure consistency and objectivity in the decision
process.
(5) AIDAR subpart 737.2 ``Advisory and Assistance Services'' is
deleted, since the implementation of FASA in FAC 90-33 removed approval
requirements addressed in this subpart, and any other evaluation and
reporting requirements are either no longer necessary or are adequately
addressed in the FAR.
(6) AIDAR 752.203-1 ``Officials Not to Benefit'' is deleted, since
the requirement in FAR 3.102-2 it modified was deleted.
D. Administrative Changes and Clarifications
Such changes include the following:
(1) The authority of individual heads of contracting activities to
approve class deviations in 701.470(b)(1) is clarified.
(2) A new definition for ``accessorial costs'' is added to section
713.101 to clarify types of costs to be included as part of the base
costs under the simplified acquisition threshold.
(3) The sections under Subpart 722.8, ``Equal Employment
Opportunity,'' are redesignated to correspond to the FAR; the subpart
is also revised in its entirety in order to remove coverage that is
redundant to the FAR and to simplify and clarify the remaining
procedures.
(4) Subpart 724.1, ``Protection of Individual Privacy,'' is deleted
in its entirety because it is redundant to FAR coverage.
(5) Subpart 725.4, ``Trade Agreements,'' is revised to include the
North American Free Trade Agreement and to clarify the applicability of
trade agreements to USAID's contracts.
(6) Subpart 732.4 is revised to clarify that local-currency
advances to for-profit organizations must be approved by the Head of
the Contracting Activity (such advances were previously not addressed).
(7) The clause at 752.7007, ``Personnel Compensation,'' is revised
to reflect Agency policy on salary limitations implemented elsewhere in
the AIDAR in Notice 95-1, published on March 3, 1995 (60 FR 11911).
This clause was inadvertently omitted from that Notice.
(8) The clause at 752.7019, ``Participant Training,'' is revised in
paragraph (d)(2) to clarify allowable costs for participants.
(9) The clause at 752.7028, ``Differentials and Allowances,'' is
revised to change the term ``temporary lodging allowance'' to
``temporary quarters subsistence allowance'' (TQSA) in accordance with
the corresponding change in the Standardized Regulations (Government
Civilians, Foreign Areas), to provide for Mission Director approved
extensions to the period of time when TQSA can be paid, and to clarify
that post differential is paid from the date of arrival at post only
for regular employees of the contractor (short term employees are still
only entitled to post differential beginning with the forty-third day
at the post).
The changes being made by this Notice are not considered
``significant'' under FAR 1.301 or FAR 1.501, and public comments have
not been solicited. This Notice will not have an impact on a
substantial number of small entities nor does it establish a new
collection of information as contemplated by the Regulatory Flexibility
Act and the Paperwork Reduction Act. Because of the nature and subject
matter of this Notice, use of the proposed rule/public comment approach
was not considered necessary. We decided to issue as a final rule;
however, we welcome public comment on the material covered by this
Notice or any other part of the AIDAR at anytime. Comments or questions
may be addressed as specified in the FOR FURTHER INFORMATION CONTACT
section of the Preamble.
List of Subjects in 48 CFR Parts 701, 702, 706, 709, 710, 711, 713,
715, 716, 717, 719, 722, 724, 725, 726, 732, 733, 736, 737 and 752
Government procurement.
For the reasons set out in the Preamble, 48 CFR Chapter 7 is
amended as set forth below.
1. The authority citations in Parts 701, 702, 706, 709, 710, 711,
713, 715, 716, 717, 719, 722, 724, 725, 726, 732, 733, 736, 737, 752,
and Appendix A continue to read as follows:
Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C.
2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR
1979 Comp., p. 435.
PART 701--FEDERAL ACQUISITION REGULATION SYSTEM
701.105 [Amended]
2. Paragraph (a) of section 701.105 is amended by removing the
expiration date ``05/31/95'' shown for OMB Control Number 0412-0536 and
replacing it with ``09/30/96''.
701.370 [Amended]
3. Section 701.370 is amended by removing the comma after
``Executive Order 11223'' and by removing ``and established AID
policies on contracting as set forth in supplement B to AID Handbook
1'' from the first sentence.
701.470 [Amended]
4. Section 701.470 is amended by adding the following sentence to
the end of paragraph (b)(1):
701.470 Procedure.
* * * * *
(b) * * *
(1) * * * Individual heads of contracting activities have authority
to approve class deviations affecting only contracts within their own
contracting activities, except that the Director, M/OP, has authority
to approve class deviations that affect more than one contracting
activity.
* * * * *
701.601 [Amended]
5. Section 701.601, paragraph (b) is revised to read as follows:
701.601 General.
* * * * *
(b) The authority of heads of contracting activities to execute
contracts is limited as follows:
(1) Director, Office of Procurement. Unlimited authority to execute
contracts. May issue warrants for simplified acquisitions up to the
amount permitted by FAR 13.101 and 13.103(b) to individuals on his or
her
[[Page 39091]]
staff (subject to termination in accordance with FAR 1.603-4).
(2) Director, Office of U.S. Foreign Disaster Assistance. Authority
to execute contracts for disaster relief purposes during the first 72
hours of a disaster in a cumulative total amount not to exceed
$500,000. Authority to execute simplified acquisitions up to the amount
permitted by FAR 13.101 and 13.103(b) at any time. May issue warrants
for simplified acquisitions up to the amount permitted by FAR 13.101
and 13.103(b) to qualified individuals on his or her staff.
(3) Director, Office of Administrative Services. Authority to
execute simplified acquisitions up to the amount permitted by FAR
13.101 and 13.103(b) for supplies and services, except professional
non-personal services and personal services. Unlimited authority when
ordering against GSA or other established U.S. Government ordering
agreements. May issue warrants for simplified acquisitions up to the
amount permitted by FAR 13.101 and 13.103(b) to qualified individuals
on his or her staff.
(4) Director, Center for Human Capacity Development (G/HCD).
Authority to execute simplified acquisitions up to $10,000. Unlimited
authority for procuring participant training based on published catalog
prices, using M/OP/E approved forms. May issue warrants for simplified
acquisitions up to $10,000 to qualified individuals on his or her
staff.
(5) Overseas heads of contracting activities. Authority to sign
contracts where the cumulative amount of the contract, as amended, does
not exceed $250,000 (or local currency equivalent) for personal
services contracts or $100,000 (or local currency equivalent) for all
other contracts. May issue warrants for simplified acquisitions up to
the amount permitted by FAR 13.101 and 13.103(b) to qualified
individuals on his or her staff.
701.603-70 [Amended]
6. Section 701.603-70 is amended by adding ``direct-hire'' before
``employees'' in the last sentence.
PART 702--DEFINITIONS OF WORDS AND TERMS
702.170 [Amended]
7. Paragraph (a) of section 702.170-3 is amended by removing
``Office of International Training'' from the first full sentence and
inserting ``Center for Human Capacity Development (G/HCD)'' in its
place.
8. Paragraph (a)(1)(iv) of section 702.170-10 is amended by
removing ``Office of International Training'' and replacing it with
``Center for Human Capacity Development (G/HCD)''.
PART 706--COMPETITION REQUIREMENTS
706.302-70 [Amended]
9. In section 706.302-70, a new paragraph (b)(5) is added, a
sentence is added to the end of paragraph (c)(1) and a new paragraph
(c)(4) is added to read as follows:
706.302-70 Impairment of foreign aid programs.
* * * * *
(b) * * *
(5) An award for the continued provision of highly specialized
services when award to another resource would result in substantial
additional costs to the government or would result in unacceptable
delays.
(c) * * *
(1) * * * While the authority at 706.302-70(b)(5) is for use when
the contracting officer determines that the incumbent contractor is the
only practicable, potential offeror, the requirement to publicize the
intended award, as required in FAR 5.201, still applies.
* * * * *
(4) Use of the authority in 706.302-70(b)(5) is subject to the
approvals required in FAR 6.304. In addition, for proposed awards in
excess of one year or over $250,000, approval of the Agency Competition
Advocate is required.
PART 709--CONTRACTOR QUALIFICATIONS
Subpart 709.1--[Removed]
10. Subpart 709.1 is removed.
11. Part 710 is redesignated as Part 711, and the heading is
revised to read as follows:
PART 711--DESCRIBING AGENCY NEEDS
711.011 [Redesignated and amended]
12. Newly designated section 711.011 is further redesignated as
section 711.002-71 and amended to remove ``752.210-70'' and replace it
with ``752.211-70''.
711.070 [Redesignated and amended]
13. Newly designated section 711.070 is further redesignated as
section 711.022-70; paragraph (a) is amended by removing ``10.002(c)''
and replacing it with ``11.002(b)''; and paragraph (b)(1) is amended by
removing ``(by signing a PIO/T or equivalent document)''.
14. Part 713 is revised to read as follows:
PART 713--SIMPLIFIED ACQUISITION PROCEDURES
713.000 Scope of part.
Subpart 713.1--General
713.101 Definitions.
Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C.
2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR
1979 Comp., p. 435.
713.000 Scope of part.
The simplified acquisition threshold applies to the cost of
supplies and services, exclusive of the cost of transportation and
other accessorial costs if their destination is outside the United
States.
Subpart 713.1--General
713.101 Definitions.
Accessorial costs means the cost of getting supplies or services to
their destination in the cooperating country (and the travel costs of
returning personnel to the U.S. or other point of hire). It does not
include costs such as allowances or differentials related to
maintaining personnel at post which are to be considered as part of the
base costs within the simplified acquisition threshold.
PART 715--CONTRACTING BY NEGOTIATION
715.605-70 [Removed]
15. Section 715.605-70 is removed.
715.608 [Redesignated and revised]
16. Section 715.608-70 is redesignated as section 715.604-70 and
revised; and section 715.604 is added to read as follows:
715.604 Responsibilities.
715.604-70 Responsibilities of AID evaluation committees.
(a) Establishment and composition of AID evaluation committees. A
technical evaluation committee shall be established for each proposed
procurement. In each case, the committee shall be composed of a chair
representing the cognizant technical office, a representative of the
contracting office (who shall be a non-voting member of the committee),
and representatives from other concerned offices as appropriate.
(b) Technical evaluation procedures. (1) The contracting officer
will receive all proposals and provide to the chair a listing and
copies of the technical proposals and instructions for conducting the
evaluation.
[[Page 39092]]
(2) The chair will promptly call a meeting of the committee to
evaluate the proposals received. The evaluation shall be based on the
evaluation factors set forth in the solicitation document.
(3) The chair shall prepare and provide to the contracting officer
written documentation summarizing the results of the evaluation of each
proposal, including an assessment of past performance information in
accordance with FAR 15.608(a)(2) and section 752.209-70. The
documentation shall include narrative justification of the evaluation
results and shall reflect the requirements of FAR 15.608(a)(3).
(4) The contracting officer is responsible for reviewing the
documentation justifying the evaluation results to determine that it is
adequate and complete. The contracting officer shall return a
justification determined to be inadequate to the chair for revision.
(5) No member of the AID evaluation committee shall hold
discussions with any offeror before or during the AID evaluation
committee's proceedings, nor shall any information about the proposals
be provided to anyone not on the committee without first obtaining the
contracting officer's consent.
PART 716--TYPES OF CONTRACTS
716.301-3 [Removed]
17. Section 716.301-3 is removed.
716.501 [Removed]
18. Section 716.501 is removed.
PART 717--SPECIAL CONTRACTING METHODS
717.700 [Amended]
19. Section 717.700 is amended by revising the last sentence to
read as follows:
717.700 General.
* * * Applicable policies and procedures are set forth in AID
Automated Directive System Chapter 312.
PART 719--SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS CONCERNS
719.270 [Amended]
20. Section 719.270 is amended in paragraph (c)(1) by removing
``Program/project'' and replacing it with ``Cognizant technical'' and
by removing ``programs/projects'' and replacing it with ``activities''
and in paragraph (d) by removing ``$25,000'' in the second sentence and
replacing it with ``the simplified acquisition threshold [FAR 13.101
and 13.103(b)]''.
719.271-2 [Amended]
21. Section 719.271-2 is amended in paragraph (b)(8) by removing
``(PIO/T, PIO/C or other requisitioning document)'' and by removing
``$25,000'' and replacing it with ``the simplified acquisition
threshold [FAR 13.101 and 13.103(b)]''.
718.271-3 [Amended]
22. Section 719.271-3 is amended in paragraph (g) by removing
``PIO/Ts, PIO/Cs, or other requisitioning documents)''.
719.271-4 [Amended]
23. Section 719.271-4 is amended in paragraph (c) by replacing
``program/project'' with ``cognizant technical''.
24. Section 719.271-5 is amended by revising the heading
introductory text, and paragraph (b) to read as follows:
719.271-5 Cognizant technical officers.
Since the procurement process starts with the establishment of a
requirement, the actions of the cognizant technical officers can affect
the opportunity of small business to participate equitably; therefore,
each cognizant technical officer shall, during the formulation of
activities which will require contractual implementation:
* * * * *
(b) Provide sufficient procurement lead time in the activity
implementation schedule to allow potential small business
participation.
719.271-6 [Amended]
25. Section 719.271-6 is amended by removing ``(PIO/Ts, PIO/Cs, or
other requisitioning documents)'', and removing ``$25,000'' and
replacing it with ``the simplified acquisition threshold (FAR 13.101
and 13.103(b))'' in the introductory text of paragraph (a); and by
removing ``(PIO/T, PIO/C, or other requisitioning document, such as an
approved Noncapital Project Paper (PROP), which may be substituted for
the PIO/T or PIO/C if required by the urgency of the procurement)'' in
paragraph (b)(1).
PART 722--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
722.103-70, 722.103-71, 722.103-72 [Redesignated as 722.103-1,
722.103-2, 722.103.4]
26. Sections 722.103-70, 722.103-71, and 722.103-72 are
redesignated as 722.103.-1, 722.103-2, and 722.103-4 respectively and
section 722.103-3 is added and reserved.
27. Subpart 722.8 is revised to read as follows:
Subpart 722.8--Equal Employment Opportunity
722.805-70 Procedures.
The following procedures apply, as appropriate, for all contracts:
(a) General. (1) When all necessary representations and
certifications (Reps and Certs) as required by FAR 22.810 are received,
the contracting officer must review them to determine that they have
been completed and signed as required, and are acceptable. Acceptable
Reps and Certs are the first step in the EEO clearance process.
(2) If the Reps and Certs are not deemed acceptable on technical
grounds (e.g. incomplete, not signed, etc.) the contracting officer
must decide if they can be made acceptable within a reasonable period
by corrective action on the part of the offeror, or if the fault is
such that it renders the offer nonresponsive. In the first case,
necessary corrective action should be taken; in the second case,
negotiations with the non-responsive offeror will be terminated. If the
Reps and Certs raise questions concerning EEO compliance, and this
would be the basis for finding the offeror non-responsive, the matter
must be referred to the cognizant regional Department of Labor Office
of Federal Contract Compliance Programs (OFCCP) regardless of the
estimated value of the contract; only OFCCP may make a determination of
non-compliance with EEO requirements.
(b) Contracts for $1,000,000 or more. (1) In addition to the
requirement for obtaining acceptable Reps and Certs in paragraph (a) of
this section, contracts and modifications with an estimated value of
$1,000,000 or more (including any modification which increases the
total estimated value of a contract to $1,000,000 or more, or any
modification which is itself $1,000,000 or more), must, in accordance
with FAR 22.8, have OFCCP verification of EEO compliance before award.
The contracting officer shall follow the procedures for obtaining EEO
compliance in FAR 22.805(a). In requesting a preaward review from
OFCCP, the contracting officer may need to provide the following
information in addition to the items listed in FAR 22.805(a)(4):
(i) Name, title, address, and telephone number of a contract person
for the prospective contractor;
(ii) A description of the type of organization (university,
nonprofit, etc.) and its ownership (private, foreign, state, etc.).
(iii) Names and addresses of organizations joint venture (if any).
[[Page 39093]]
(iv) Type of procurement (new contract--RFP or IFB, amendment,
etc.) and estimated dollar amount, and term.
(v) Copy of approved Reps and Certs.
(2) If the initial contact with OFCCP is by telephone, the
contracting officer and OFCCP should mutually determine what
information is to be included in the written verification request. In
the event that OFCCP reports that the offeror is not in compliance,
negotiations with the offeror shall be terminated.
(c) Contracts over $10,000, but less than $1,000,000. Contracts and
amendments within this range do not require formal verification by
OFCCP. The method used to verify compliance is at the discretion of the
contracting officer. The contracting officer may rely on the
documentation submitted by the offeror (the Reps and Certs--see
Sec. 722.805-70(a)), unless he or she is aware of some reason to doubt
the documentation submitted. In case of doubt, then an informal check
with OFCCP should be made. In the event that evidence of non-compliance
is developed, the contracting officer must contact OFCCP for
confirmation of EEO status; only OFCCP may determine non-compliance
with EEO requirements. If OFCCP confirms non-compliance, negotiations
with the offeror or contractor shall be terminated.
(d) Documentation for the contract file. (1) Every contract file
must contain completed signed Reps and Certs. The file must clearly
show that these documents have been reviewed and accepted by the
contracting officer. If the Reps and Certs were revised to make them
acceptable (see Sec. 722.805-70(a)), the file must show what changes
were required and certify that the changes were made.
(2) For contracts or amendments of $1,000,000 or more, the file
must contain:
(i) A record of the initial contact with OFCCP, specifying the
name, address, and telephone number of the person contacted, a summary
of the information presented, and the advice given by OFCCP;
(ii) A copy of the written follow-up request for EEO compliance
verification to OFCCP; and
(iii) A copy of the compliance verification from OFCCP.
(3) For contracts or amendments over $10,000 but less than
$1,000,000, the file must contain a statement from the contracting
officer that the contractor is considered in compliance with EEO
requirements, and giving the basis for this statement (see
Sec. 722.805-70(c)). This statement may be in a separate memorandum to
the file or in the memorandum of negotiation (see 704.803(a)).
(4) Documentation in the event of non-compliance. In the event that
OFCCP determines that a prospective contractor is not in compliance, a
copy of OFCCP's written determination, and a summary of resultant
action taken (termination of negotiations, notification of offeror and
cognizant technical officer, negotiation with next offeror in
competitive range, resolicitation, etc.) will be placed in the contract
file for any contract which may result, together with other records
related to unsuccessful offers, and retained for at least six months
following award.
PART 724--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION
724.1--[Removed]
28. Subpart 724.1 is removed.
PART 725--FOREIGN ACQUISITION
29. Subpart 725.4 is revised to read as follows:
Subpart 725.4--Trade Agreements
Sec. 725.403 Exceptions.
FAR 25.4 establishes procedures for purchases under the Trade
Agreements Act of 1979 (including GATT's Agreement on Government
Procurement) and the North American Free Trade Agreement (NAFTA). Under
both such agreements, USAID's contracts for the purpose of providing
foreign assistance are not subject to the procedures set forth in FAR
25.4. In contrast, USAID's operating expense-type administrative
purchases (i.e., purchases for the direct benefit and use of USAID) are
subject to the procedures in FAR 25.4, unless otherwise exempted by one
of the exemptions specified in FAR 25.4.
725.701 [Amended]
30. Section 725.701 is amended by removing ``AID Handbook 1,
Supplement B, primarily in Chapter 5'', replacing it with ``Chapter 310
of the AID Automated Directive System (ADS)'', and by removing the
second sentence.
725.702 [Amended]
31. Section 725.702 is amended by removing ``Attachment A-11,
Section III, of Appendix D to AID Handbook 18'' in paragraph (b) and
replacing it with ``the Agency Geographic Code Book''.
725.705 [Amended]
32. Section 725.705 is amended by removing ``Chapter 18 of AID
Handbook 1, Supplement B'' and replacing it with ``Chapter 311 of the
AID ADS'' in paragraph (a).
725.706 [Amended]
33. Section 725.706 is amended by revising paragraph (a) to read as
follows:
725.706 Geographic source waivers.
(a) Authority to waive source, origin, nationality, and
transportation service requirements is set forth in Sec. 310.5.9 of the
ADS. Additional guidance is available in ADS Sec. 310.5.8.
* * * * *
PART 726--OTHER SOCIOECONOMIC PROGRAMS
34. Subpart heading 726.70 is added to read as follows:
Subpart 726.70--Disadvantaged Enterprises Program
726.000 [Redesignated as 726.7001 and amended]
35. Sec. 726.000 is redesignated as section 726.7001, and the
heading and first sentence are amended by replacing ``part'' with
``subpart''.
726.1 [Removed]
36. The heading ``Subpart 726.1--GENERAL'' is removed.
726.101-726.310 [Redesignated]
37. Sections 726.101 through 726.301 are redesignated as follows:
------------------------------------------------------------------------
Old section New section
------------------------------------------------------------------------
726.101.................................................... 726.7002
726.102.................................................... 726.7003
726.103.................................................... 726.7004
726.104.................................................... 726.7005
726.201.................................................... 726.7006
726.301.................................................... 726.7007
------------------------------------------------------------------------
37a. Subpart 726.2 is removed.
38. Subpart 726.71 is added to read as follows:
Subpart 726.71--Relocation of U.S. Businesses, Assistance to Export
Processing Zones, Internationally Recognized Workers' Rights
Sec.
726.7101 Policy.
726.7102 PD 20 provision.
Subpart 726.71--Relocation of U.S. Businesses, Assistance to Export
Processing Zones, Internationally Recognized Workers' Rights
726.7101 Policy.
USAID Policy Determination (PD) 20, ``Guidelines to Assure USAID
Programs do not Result in the Loss of Jobs in the U.S.'' implemented
statutory prohibitions on expenditure of appropriated funds. The PD
contains a
[[Page 39094]]
standard provision for inclusion in USAID-funded grants and inter-
agency agreements and indicates that when the PD applies to a contract,
appropriate provisions covering the subject matter are to be included.
When the provisions of PD 20 do apply to a contract, the cognizant
technical office shall provide to the contracting officer appropriate
language tailored to the specific circumstances for the contract
statement of work, or if applicable to the circumstances, the provision
included in the PD (see Sec. 726.7102) may be used as a clause in the
contract. The provision is not required in subcontracts.
726.7102 PD 20 provision.
Relocation of U.S. Businesses, Assistance to Export Processing
Zones, Internationally Recognized Workers' Rights (Jan 1994)
No funds or other support provided hereunder may be used in an
activity reasonably likely to involve the relocation or expansion
outside of the United States of an enterprise located in the United
States if non-U.S. production in such relocation or expansion
replaces some or all of the production of, and reduces the number of
employees at, said enterprise in the United States.
No funds or other support provided hereunder may be used in an
activity the purpose of which is the establishment or development in
a foreign country of any export processing zone or designated area
where the labor, environmental, tax, tariff, and safety laws of the
country would not apply, without the prior approval of USAID.
No funds or other support provided hereunder may be used in an
activity which contributes to the violation of internationally
recognized rights of workers in the recipient country, including
those in any designated zone or area in that country.
PART 732--CONTRACT FINANCING
39. Subpart 732.1 is added to read as follows:
Subpart 732.1--General
732.111 Contract clauses.
(a) [Reserved]
(b) AID may obtain short term and (less frequently) long-term
indefinite quantity professional services through Agency-specific
indefinite quantity contracts that are a combination of contract types.
Rather than using the fixed-price payment clauses for indefinite
quantity contracts, when these IQCs provide for fixed daily rates
(which may include wages, overhead, general and administrative
expenses, fringe benefits, and profit) for services and reimbursement
of other direct costs (such as travel and transportation) at cost, then
the payment clause at 752.232-7 shall be used in the contract.
732.402 [Revised]
40. Paragraph (e) of section 732.402 is revised to read as follows:
732.402 General.
* * * * *
(e)(1) All U.S. Dollar advances to for-profit organizations require
the approval of the Procurement Executive; all such approvals are
subject to prior consultation with the AID/W Controller.
(2) All local currency advances to for-profit organizations require
the approval of the Head of the Contracting Activity, after
consultation with the Mission Controller.
732.406-71 [Amended]
41. Section 732.406-71 is amended by revising paragraphs (a) and
(b) to read as follows:
732.406-71 Circumstances for use of an LOC.
* * * * *
(a) The contracting officer has determined that an advance payment
is necessary and appropriate in accordance with this subpart and the
guidance provided in FAR 32.4;
(b) AID has, or expects to have, a continuing relationship of at
least one year with the organization, and the annual amount required
for advance financing will be at least $50,000; and
* * * * *
732.406-72 [Amended].
42. Section 732.406-72 is amended by replacing ``FM/CMP/LC'' with
``FM/CMP/GIB'' in the last sentence of paragraph (a) and adding a new
paragraph (b)(6) to read as follows:
732.406-72 Establishing an LOC.
(a) * * *
(b) * * *
(6) The contractor Federal Tax Identification Number.
* * * * *
PART 733--PROTESTS, DISPUTES, AND APPEALS
43. Subpart 733.70 is redesignated Subpart 733.1 and revised to
read as follows:
733.1--Protests
733.101 Definitions.
(a) ``Procurement Executive'' is defined in AIDAR 702.170-13.
(b) All ``days'' referred to in this subpart are deemed to be
``calendar days'', in accordance with FAR 33.101. In the case of USAID
overseas offices with non-Saturday/Sunday weekend schedules, the
official post weekend applies in lieu of Saturday and Sunday.
(c) All other terms defined in FAR 33.101 are used herein with the
same meaning.
733.103-70 Protests to the agency.
AID follows the agency protest procedures in FAR 33.103, as
supplemented by this section.
733.103-71 Filing of protest.
(a) Protests must be in writing and addressed to the Contracting
Officer for consideration by the Procurement Executive.
(b) A protest shall include, in addition to the information
required in FAR 33.103(b)(3), the name of the issuing Mission or
office.
(c) Material submitted by a protestor will not be withheld from any
interested party outside the government or from any government agency
if the Procurement Executive decides to release such material, except
to the extent that the withholding of such information is permitted or
required by law or regulation.
733.103-72 Responsibilities.
(a) Procurement Executive. The decision regarding an agency protest
shall be made by the Procurement Executive within 30 days from the date
a proper protest is filed unless the Procurement Executive determines
that a longer period is necessary to resolve the protest, and so
notifies the protester in writing. The Procurement Executive shall make
his or her decision after personally reviewing and considering all
aspects of the case as presented in the protest itself and in any
documentation provided by the contracting officer, and after obtaining
input and clearance from the Assistant General Counsel for Litigation
and Enforcement (GC/LE). The decision shall be in writing and
constitutes the final decision of the Agency.
(b) Contracting Officer. The contracting officer may make the
determination in FAR 33.103(a)(2) and is responsible for requesting an
extension of the time for acceptance of officers as described in FAR
33.103(a)(3).
733.103-73 Protests excluded from consideration.
(a) Contract administration. Disputes between a contractor and AID
are resolved pursuant to the disputes clause of the contract and the
Contract Disputes Act of 1978.
(b) Small business size standards and standard industrial
classification. Challenges of established size standards or the size
status of particular firms, and challenges of the selected standard
industrial classification are for review
[[Page 39095]]
solely by the Small Business Administration.
(c) Procurement under Section 8(a) of the Small Business Act.
Contracts are let under Section 8(a) of the Small Business Act to the
Small Business Administration solely at the discretion of the
Contracting Officer, and are not subject to review.
(d) Protests filed in the General Accounting Office (GAO). Protests
filed with the GAO will not be reviewed.
(e) Procurements funded by AID to which AID is not a party. No
protest of a procurement funded by AID shall be reviewed unless AID is
a party to the acquisition agreement.
(f) Subcontractor protests. Subcontractor protests will not be
considered.
(g) Judicial proceedings. Protests will not be considered when the
matter involved is the subject of litigation before a court of
competent jurisdiction or when the matter involved has been decided on
the merits by a court of competent jurisdiction.
(h) Determinations of responsibility by the contracting officer. A
determination by the contracting officer that a bidder or offeror is or
is not capable of performing a contract will not be reviewed by the
Procurement Executive.
(i) Small Business Certificate of Competency Program. Any referral
made to the Small Business Administration pursuant to section 8(b)(7)
of the Small Business Act, or any issuance of, or refusal to issue, a
certificate of competency under that section will not be reviewed by
the Procurement Executive.
733.71--[Redesignated]
44. Subpart 733.71 is redesignated as subpart 733.27 and sections
733.7101 and 733.7102 are redesignated as 733.2701 and 733.2702
respectively.
PART 736--CONSTRUCTION AND ARCHITECT--ENGINEER CONTRACTS
736.602-5 [Amended]
45. The heading for 736.602-5 is revised to read as follows:
736.602-5 Short selection process for procurements not to exceed the
simplified acquisition threshold.
* * * * *
PART 737--SERVICE CONTRACTING
737.2--[Removed]
46. Subpart 737.2 is removed.
PART 752--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
752.203-1 [Removed]
47. Section 752.203-1 is removed.
48. Section 752.209-70 is amended by revising the provision date
and the text of the provision itself to read as follows:
752.209-70 Requirement for past performance references.
* * * * *
Requirement for Past Performance References (July 1996)
The offeror shall submit, as part of its proposal, information
on recently completed contracts or on-going contracts that are
similar to the statement of work in the solicitation performed for
federal, state and local governments and for commercial firms. The
number of such contracts, as well as the specific details to be
provided for each, shall be in accordance with the instructions
provided elsewhere in Section L of this solicitation, consistent
with the Government-wide past performance information collection
requirements in the FAR. The offeror is expected to comply with the
instructions in Section L regarding the type and amount of detail to
be provided on past performance and the format to be used to submit
it. If the offeror does not follow the prescribed format, then care
must be taken to ensure that the substance of the requested
information is provided. Failure to do so may seriously impede both
the technical evaluation of the offeror's proposal and the
contracting officer's ability to make a positive responsibility
determination.
USAID may contact representatives from the references provided
by the offeror to obtain information on the offeror's past
performance. The offeror is advised that USAID may obtain past
performance information from other than sources identified by the
offeror. USAID will use past performance information both for the
responsibility determination required in FAR 9.1 and the best value
decision in accordance with the instructions in Section L and the
evaluation criteria in Section M of this solicitation.
752.210-70 [Redesignated]
49. Section 752.210-70 is redesignated as section 752.211-70.
752.219-8 [Amended]
50. Section 752.219-8 is amended by removing ``$25,000'' and
replacing it with ``the simplified acquisition threshold in FAR
13.000'' in the second paragraph.
752.7004 [Amended]
51. Section 752.7004 is amended by removing ``Chapters 4 and 5 of
AID Handbook 1, Supplement B (Procurement Policies)'' and replacing it
with ``Chapter 310 of AID's Automated Directives System (ADS)'' in the
last sentence of paragraph (a) of the clause.
752.7006 [Amended]
52. Section 752.7006 is amended by adding ``U.S.'' before ``Agency
for International Development'' in the paragraph beginning ``To AID:''.
752.7007 [Amended]
53. Section 752.7007 is amended by revising the clause heading and
paragraph (b) of the clause to read as follows:
752.7007 Personnel Compensation.
* * * * *
Personnel Compensation (July 1996)
(a) * * *
(b) Compensation (i.e., the employee's base annual salary plus
overseas recruitment incentive, if any) which exceeds the maximum
payable annual or daily rate for an Executive Service level ES-6, as
published in the Federal Register, will be reimbursed only with the
approval of the Contracting Officer.
752.7012 [Revised]
54. Section 752.7012 is revised to read as follows:
752.7012 Protection of the Individual as a Research Subject.
This clause is for use in any AID contract which involves research
using human subjects.
Protection of the Individual as a Research Subject (August 1995)
(a) Safeguarding the rights and welfare of human subjects in
research conducted under a USAID contract is the responsibility of
the contractor. USAID has adopted the Common Federal Policy for the
Protection of Human Subjects. USAID's Policy is found in Part 225 of
Title 22 of the Code of Federal Regulations (the ``Policy'').
Additional interpretation, procedures, and implementation guidance
of the Policy are found in USAID General Notice entitled
``Procedures for the Protection of Human Subjects in Research
Supported by USAID'', issued April 19, 1995, as from time to time
amended (a copy of which is attached to this contract). USAID's
Cognizant Human Subjects Officer (CHSO) and AID/W has oversight,
guidance, and interpretation responsibility for the Policy.
(b) Contractors must comply with the Policy when humans are the
subject of research, as defined in 22 CFR 225.102(d), performed as
part of the contract, and contractors must provide ``assurance'', as
required by 22 CFR 225.103, that they follow and abide by the
procedures in the Policy. See also Section 5 of the April 19, 1995,
USAID General Notice which sets forth activities to which the Policy
is applicable. The existence of a bona fide, applicable assurance
approved by the Department of Health and Human Services (HHS) such
as the ``multiple project assurance'' (MPA) will satisfy this
requirement. Alternatively, contractors can provide an acceptable
written assurance to USAID as described in 22 CFR 225.103. Such
assurances must be determined by the CHSO to be acceptable prior to
any applicable research being
[[Page 39096]]
initiated or conducted under the contract. In some limited instances
outside the U.S., alternative systems for the protection of human
subjects may be used provided they are deemed ``at least
equivalent'' to those outlined in Part 225 (see 22 CFR 225.101(h)).
Criteria and procedures for making this determination are described
in the General Notice cited in the preceding paragraph.
(c) Since the welfare of the research subject is a matter of
concern to USAID as well as to the contractor, USAID staff,
consultants and advisory groups may independently review and inspect
research, and research processes and procedures involving human
subjects, and based on such findings, the CHSO may prohibit research
which presents unacceptable hazards or otherwise fails to comply
with USAID procedures. Informed consent documents must include the
stipulation that the subject's records may be subject to such
review.
752.7017 [Amended]
55. Section 752.7017 is amended by removing ``Chapter 5 of AID
Handbook 1, Supplement B'' in paragraph (b) and replacing it with
``Chapter 310 of the AID Automated Directives System (ADS)''.
752.7018 [Amended]
56. Section 752.7018 is amended by removing ``Office of
International training, AID'' in paragraph (b) and replacing it with
``Human Capacity Development Center in the Bureau for Global Programs
Field Support and Research (G/HCD0), AID/W'' and by removing ``Office
of International Training'' in both paragraphs (d) and (d)(1) and
replacing it with ``Human Capacity Development Center''.
57. Section 752.7019 is amended by removing paragraph (g), by
revising the reference to ``(g)'' in the introductory paragraph of the
section and in the undesignated paragraph following paragraph (c) of
the clause to read ``(f)'', and by revising the clause date and
paragraphs (b), (c), and (d)(2), to read as follows:
752.7019 Participant Training.
* * * * *
Participant Training (July 1996)
* * * * *
(b) Applicable regulations. Proposals for contracts involving
training of AID participants, and participant training conducted
under an AID contract shall follow the policies established in
Chapter 253 of the AID Automated Directive System (ADS)--``Training
for Development Impact'' except to the extent that specific
exceptions to ADS Chapter 253 have been provided in this contract.
(Chapter 253 may be obtained by submitting a request to the Human
Capacity Development Center (G/HCD), at the address specified in
paragraph (c) of this section.)
(c) Reporting requirement. Once each month the Contractor shall
submit three copies of form AID 1381-4, ``Participant Data Form'' to
the Human Capacity Development Center (G/HCD) Bureau for Global
Programs Field Support and Research, USAID, Washington, DC 20523-
1601.
* * * * *
(d) * * *
(2) Cost of technical preparation and photocopying of papers and
dissertations, allowances for required textbooks, the titles of
which will be approved by the Contractor.
* * * * *
58. Section 752.7028 is amended by revising the date of the clause;
removing ``Contractor employees'' in the third sentence of paragraph
(a) and replacing it with ``regular employees of the Contractor''; by
removing ``living quarters allowance'' in the second and third sentence
of paragraph (b) and replacing it with ``temporary quarters subsistence
allowance''; and revising paragraph (c) to read as follows:
752.7028 Differential and allowances.
* * * * *
Differentials and Allowances (July 1996)
* * * * *
(c) Temporary quarters subsistence allowance. Temporary quarters
subsistence allowance is a quarters allowance granted to an employee
for the reasonable cost of temporary quarters incurred by the
employee and his family for a period not in excess of (i) 90 days
after first arrival at a new post in a foreign area or a period
ending with the occupation of residence (permanent) quarters, if
earlier, and (ii) 30 days immediately preceding final departure from
the post subsequent to the necessary vacating of residence quarters,
unless an extension is authorized in writing by the Mission
Director. The Contractor will be reimbursed for payments made to
employees and authorized dependents for temporary quarters
subsistence allowance, in lieu of living quarters allowance, not to
exceed the amount set forth in the Standardized Regulations
(Government Civilians, Foreign Areas), Chapter 120, as from time to
time amended.
* * * * *
59. Appendix A to Chapter 7 is amended as follows:
(A) In paragraph 2(a), by removing the fourth sentence and
``whether it is to be'' in the sixth sentence, and by removing
``project'' and replacing it with ``activity'' in the last sentence.
(B) By revising paragraph 2(b) to read as follows:
Appendix A--Respective Roles of Contracting and Other Personnel in the
Aid Procurement Process
* * * * *
2. Planning, Competition, Negotiation, and Award
* * * * *
(b) Contracting personnel act upon requirements which are
formulated by the planning, technical, and research offices of the
Agency. Contracting officers obtain the information they need on
technical requirements by questions and discussions with the
planning, technical, and research offices of the Agency. If a
contract is to be tenable, the end result which is desired must be
described with completeness and exactitude. The statement of work
must be explicit; otherwise the contracting officer cannot assure
terms in a contract by which the desired action can be enforced. If
the requiring office cannot provide a point of departure in these
terms and deliver to the contracting officer a clear-cut description
of the purpose and outline the limits of the statement of work,
results may be disappointing and the possibility of deferring the
activity until these elements can be given more concrete dimensions
should be considered. Finally, the requiring office should insure
that the statement of work and funding information are delivered to
the contracting officer with sufficient lead time to allow for
proper preparation and planning of the procurement. Under most
circumstances, the specific amount of funds which the Agency has
available to support a contract shall not be made known to a
prospective contractor; however, when a performance-based contract
is planned, the contracting officer may decide that it is necessary
to reveal in the announcement (CBD notice) and in the solicitation
the Government estimate, or a narrow range of expected costs, in
order to obtain goods and services of the highest affordable
technical quality, and to ensure that offerors do not propose
elaborate programs that cannot be financed by USAID.
* * * * *
(C) In paragraph 2(c), replace ``scopes'' with ``statements'' in
the last sentence.
Dated: May 21, 1996.
Marcus L. Stevenson,
Procurement Executive.
[FR Doc. 96-18495 Filed 7-25-96; 8:45 am]
BILLING CODE 6116-01-M
Complete official Federal Register PDF
FR Doc. 96-18476 Absentee Deserter Apprehension Program and Surrender of Military Personnel to Civilian Law Enforcement Agencies
[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Rules and Regulations]
[Pages 39072-39080]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18476]
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DEPARTMENT OF DEFENSE
Department of the Army
32 CFR Part 630
Absentee Deserter Apprehension Program and Surrender of Military
Personnel to Civilian Law Enforcement Agencies
AGENCY: Office of the Army Staff Judge Advocate, DOD.
ACTION: Final rule.
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SUMMARY: The Department of the Army announces a complete revision of
its Military Absentee and Deserter Apprehension regulations to bring
them in line with changes to Army Regulation 190-9, with the same
title. This revision revises provost marshal procedures and
responsibilities for military personnel who are in an absentee or
deserter status and procedures and responsibilities for surrender of
military personnel to civilian law enforcement authorities. These
regulations support the approved parts of the Joint Service Plan for
Deserter Apprehension Program July 1978 and Department of Defense
Directive 1325.2.
DATE: Effective July 26, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Jeffrey Porter at 681-5078.
SUPPLEMENTARY INFORMATION:
a. This part applies to the Active Army and the U.S. Army Reserve
and
[[Page 39073]]
the Army National Guard when in title 10, United States Code status.
This part is not applicable to members of the Army National Guard
serving on annual training or full-time training duty status under the
provisions of title 32, United States Code.
b. Commanders in overseas areas may deviate from the Federal Bureau
of Investigation National Crime Information Center requirements when
prohibited by--
1. Local conditions.
2. International law including applicable treaties or agreements
with foreign governments.
c. The provisions of subpart G of this part apply only to soldiers
listed in paragraph a. above who are sought by Federal, State, or local
law enforcement officials. The authority of U.S. military officials to
apprehend, detain, and deliver U.S. personnel to the authorities of a
host nation or other foreign country are governed by the provisions of
applicable international agreements, United States, and host nation
law, Army Regulation 27-50, Status of Forces Policies, Procedures and
Information, and the directives of the overseas command.
Executive Order 12291
This rule is not a major rule pursuant to EO 12291, Federal
Regulation, dated February 17, 1981.
Regulatory Flexibility Act
The Regulatory Flexibility Act has no bearing on this rule.
Paperwork Reduction Act
This rule does not contain reporting or recordkeeping requirements
subject to the Paperwork Reduction Act.
List of Subjects in 32 CFR Part 630
Law enforcement officers, Military law, Military personnel,
Prisons.
Accordingly, 32 CFR part 630 is revised to read as follows:
PART 630-ABSENTEE DESERTER APPREHENSION PROGRAM AND SURRENDER OF
MILITARY PERSONNEL TO CIVILIAN LAW ENFORCEMENT AGENCIES
Sec.
Subpart A--Purpose
630.1 Purpose.
630.2 References.
630.3 Explanation of abbreviations and terms.
630.4 Responsibilities.
Subpart B--Absent Without Leave
630.5 Notification.
630.6 Surrender to unit commanders.
630.7 Surrender or apprehension other installations.
Subpart C--Desertion
630.8 Administrative report.
630.9 Processing deserter reports.
630.10 Special category absentees.
630.11 Escaped prisoner.
630.12 USADIP procedures.
Subpart D--Return to Military Control
630.13 AWOL/deserter apprehension efforts.
630.14 Use of escorts.
630.15 Verification of deserter status.
630.16 Surrender or apprehension on parent installation.
630.17 Surrender or apprehension at another installation.
630.18 Surrender or apprehension off an Army installation.
630.19 Deserters and defectors in foreign countries.
630.20 Escaped military prisoner.
633.21 Other armed services deserters.
633.22 Transportation.
Subpart E--Civilian Correctional or Medical Facilities
630.23 Military detainer.
630.24 Action on return to military control.
630.25 Civilian detention facilities.
630.26 Costs of civilian detention facilities.
Subpart F--Payment of Rewards and Reimbursements
630.27 Rewards.
630.28 Reimbursement payments.
630.29 Documentation.
Subpart G--Surrender of Military Members to Civilian Law Enforcement
Officials
630.30 Overview.
630.31 CONUS.
630.32 Responsibilities.
Figure 630.1 of Part 630--Sample Military Detainer
Appendix A to Part 630--References.
Appendix B to Part 630--Glossary.
Authority: 10 U.S.C. 801 through 940; Manual for courts-martial,
U.S. 1995 revised addition as amended; sec 709, Pub L. 96-154,
Defense Appropriation Act. 93 Stat. 1153.
Subpart A--Purpose
Sec. 630.1 Purpose.
This part provides policies and procedures for--
(a) Reporting absentees and deserters.
(b) Reporting special category absentees.
(c) Reporting political defectors.
(d) Use of automated law enforcement telecommunications.
(e) Apprehension and processing of absentees and deserters.
(f) Surrender of military personnel to civilian law enforcement
authorities.
Sec. 630.2 References.
Required and related publications and referenced forms are listed
in appendix A to this part.
Sec. 630.3 Explanation of abbreviations and terms.
Abbreviations and special terms used in this regulation are
explained in the glossary.
Sec. 630.4 Responsibilities.
(a) The Deputy Chief of Staff for Operations and Plans (DCSOPS) is
responsible for establishing law enforcement policy and procedures for
the military absentee and deserter apprehension programs. The DCSOPS
will--
(1) Exercise staff supervision over Army law enforcement
activities.
(2) Integrate operational control of the National Crime Information
Center (NCIC) elements at the U.S. Army Deserter Information Point
(USADIP).
(3) Provide operational control of the NCIC elements at the USADIP.
(4) Be the Department of the Army point of contact for the Federal
Bureau of Investigation (FBI) on absentee and deserter apprehension
policy matters.
(b) The Deputy Chief of Staff for Personnel (DCSPER) is responsible
for establishing personnel policy on absentees and deserters and will--
(1) Exercise staff supervision over the USADIP.
(2) Develop programs to assist commanders in deterring absenteeism.
(3) Evaluate statistical profile data furnished by the Commanding
General (CG), U.S. Total Army Personnel Command (PERSCOM) and CG, U.S.
Army Personnel Information Systems Command (PERSINSCOM).
(c) Commanders of major Army commands (MACOMs) will--
(1) Supervise reporting and coordinate Army programs for the return
to military control (RMC) of absentees, deserters, defectors, and
special category absentees.
(2) Ensure deserters returned to military control are reported IAW
this part to end apprehension actions.
(3) Provide military police support for the return of special
category absentees and deserters from foreign countries to the
Continental United States (CONUS) when required.
(4) Assist in the return of soldiers to overseas commands under
status of forces agreement.
(5) Assure that recommended changes to Army Regulation 5-9 are
proposed and coordinated with other MACOMs.
(d) Commanding General, U.S. Army Criminal Investigation Command
(USACIDC) is responsible for--
(1) Entering and clearing subjects of USACIDC investigations and
special category absentees reported by overseas commanders in the NCIC
wanted person file.
[[Page 39074]]
(2) Coordinating retrieval of records through the Director, U.S.
Army Crime Records Center (USACRC) from the Defense Investigative
Service (DIS) for special category absentees.
(e) Commander, U.S. Army Enlisted Records and Evaluation Center
(USAEREC) will--
(1) Receive documentation and provide verification of reports of
desertion and return to military control.
(2) Maintain a centralized deserter data base for deserter
statistical reporting requirements from the Automated Personnel
Accounting System.
(3) Maintain management data received on DD Form 616 (Report of
Return of Absentee) to identify--
(i) The number of deserters returned to military control monthly.
(ii) The mode of return (surrender to or apprehended by military
authorities, Department of Defense civilian police, civilian
authorities, or FBI).
(iii) Cases administratively closed (death, discharge, erroneous
entry, and so forth). Date should be recorded in the processing month
to hasten report compilation.
(f) Chief, U.S. Army Deserter Information Point will--
(1) Verify and document reports of desertion and return to military
control.
(2) Maintain a central deserter data base.
(3) Provide data to DCSOPS, DCSPER, CG, PERSCOM and CG, PERSINSCOM,
as required.
(4) Complete cross checks against the Army Enlisted Master File
(EMF), Joint Service Software, and other data systems to prevent false
apprehension.
(5) Query other Army automated personnel files to prevent mistaken
reports of desertion.
(6) Provide DD Form 553 (Deserter/Absentee Wanted by the Armed
Forces) and DD Form 616 (Report of Return of Absentee) to military and
civilian law enforcement authorities, to include the FBI when
appropriate.
(7) Advise U.S. Department of State, Deputy Assistant Secretary for
Passport Services, of U.S. Army alien deserters who are known or
suspected to have entered a foreign country, return to military
control, or are discharged in absentia.
(8) Enter wanted information into the NCIC.
(g) All Army installation commanders with active Army manpower
assets have responsibilities for reporting and returning deserters to
military control.
(1) Coordinating installation commanders return of deserters to
military control within their designated areas of responsibility.
(2) Supporting installation commanders have responsibility for all
locations within 50 miles of their respective installations. When
efficiency and economy demand, these distances can be increased or
diminished as determined between the coordinating installation and the
supporting installation.
(h) Installation provost marshals will endeavor or resolve
procedural arrangements at the lowest command level IAW AR 5-9.
Subpart B--Absent Without Leave
Sec. 630.5 Notification.
The unit commander notifies the local provost marshal within 24
hours after a soldier has been reported absent without leave (AWOL).
Special category absentees are reported as deserters IAW Sec. 630.10 of
this part.
(b) On receipt of an AWOL report, the provost marshal initiates a
DA Form 3975 (Military Police Report) and a corresponding blotter entry
on DA Form 3997 (Military Police Desk Blotter).
Sec. 630.6 Surrender to unit commander.
If an AWOL soldier surrenders to the parent unit the following
procedures apply:
(a) The unit commander immediately notifies the Provost Marshal
that the soldier has returned.
(b) The provost marshal finalizes the DA Form 3975 and makes a
reference blotter entry. The provost marshal forwards DA Form 3975 and
4833 (Commander's Report of Disciplinary or Administration Action) with
an appropriate suspense date through the appropriate field grade
commander to the unit commander for action.
(c) The unit commander reports action taken to the provost marshal
on DA Form 4833 not later than the assigned suspense date.
Sec. 630.7 Surrender or apprehension at other installations.
(a) If an AWOL soldier surrenders to or is apprehended by a provost
marshal other than the parent installation, the apprehending provost
marshall
(1) Issues DD Form 460 (Provisional Pass) IAW AR 190-45, paragraph
5-2, and verbal orders to the solider to return to their proper
station. The DD Form 460 and transportation requests are used instead
of an escort if there is a reasonable expectation that the soldier will
comply. Express mail may be used to forward the DD Form 460 to the
absentee. DD Form 460 will not be required if the provost marshal
elects to return the soldier through different means.
(2) Prepares and forwards DA Forms 3975 and 4833, along with a copy
of DD Form 460 to the parent installation provost marshal.
(b) The parent installation provost marshal--
(1) Completes a reference blotter entry reflecting the AWOL
soldier's RMC.
(2) Forwards DA Form 3975 and DA Form 4833, with an appropriate
suspense, through the field grade commander to the unit commander.
(3) On return of the completed DA Form 4833 from the unit
commander, forwards the original and one copy of the form to the
apprehending provost marshal. The parent installation Provost Marshal
may retain a copy of DA Form 3975 and DA Form 4833 pertaining to the
case.
Subpart C--Desertion
Sec. 630.8 Administrative Report.
(a) The unit commander administratively classifies an absentee as a
deserter and completes DD Form 553 when one or more of the following
applies:
(1) The facts and circumstances of the absence, without regard to
the length of absence, indicates that the soldier may have committed
the offense of desertion, as defined in articles 85 and 86 of the
Uniform Code of Military Justice (UCMJ).
(2) The soldier has been AWOL for 30 consecutive days.
(3) The soldier, without authority, has gone to or remains in a
foreign country and while in the foreign country has requested, applied
for, or accepted any type of asylum or resident permit from the
country, or any governmental agency.
(4) The soldier has returned to military control and departs absent
prior to completion of any administrative or judicial action for a
previous absence.
(5) The soldier escapes from confinement.
(6) The soldier is a special category absentee.
(b) The unit commander promptly reports deserters to the provost
marshal via DD Form 553 per AR 630-10, chapter 3.
Sec. 630.9 Processing deserter reports.
(a) On receipt of reports of desertion or defectors, the Provost
Marshall completes a blotter entry per AR 190-45, paragraph 4-6b. This
is an initial blotter entry if a previous absentee entry had not been
made.
(b) The Provost Marshal then--
(1) Ensures that the unit commander has accurately completed DD
Form 553.
(2) Screens installation and state vehicle registration and
completes
[[Page 39075]]
identification portions of the DD Form 553.
(3) In the remarks section of DD Form 553 adds other known
information about the soldier such as:
(i) Confirmed or suspected drug abuse.
(ii) History of violence.
(iii) History of escapes or attempted escapes from custody.
(iv) Suicidal tendencies.
(v) Suspicion of involvement in violent crimes for which there is a
record of an active military police investigation being prepared and
forwarded.
(vi) History of other unauthorized absence.
(vii) Any other information in the apprehension process or to
protect the deserter or apprehending authorities.
(4) Initiates a DA Form 3975, if not previously completed as an
AWOL report, and assigns a USACRC Crime Control Number to the case.
(5) Returns the completed DD Form 553 to the unit commander within
24 hours. The provost marshal retains a copy of the DD Form 553.
(6) Follows the procedures in section 630.8 of this part for
special category absentees.
(c) Within 48 hours of the soldier being dropped from the rolls
(DFR) of the unit, the unit commander forwards the DD Form 553, with
associated documents, through the Personnel Service Battalion to
Commander, U.S. Army Enlisted Records Center, ATTN: PCRE-RD,
Indianapolis, Indiana 46249-5300.
Sec. 630.10 Special category absentees.
Commanders of absent soldiers assigned to special mission units and
soldiers who have had access to top secret information during the 12
months preceding the absence immediately report the soldier as a
deserter regardless of the length of absence. On receipt of a special
category absentee the provost marshal--
(a) Immediately completes the procedures in Sec. 630.6 of this
part.
(b) Queries the NCIC missing person, interstate identification, and
unidentified person files for a possible match using the absentee's
identifying information (Social Security Number, date and place of
birth, and physical description) to determine if he or she has been
previously entered into the NCIC.
(c) Enters the soldier into the NCIC wanted file after determining
the soldier has not been entered previously. Outside continental United
States (OCONUS) Provost Marshal NCIC entries are completed by sending a
copy of the DD Form 553 to the USACRC facsimile machine Defense System
Network (DSN) 656-0395 or commercial (301) 806-0395. OCONUS Provost
Marshals who do not have facsimile equipment express mail the DD Form
553 to Director, USCRC, ATTN: CICR-ZA, 6010 6th Street, Fort Belvoir,
VA 22060-5585.
(d) Requests the assistance of the Director, USACRC, in obtaining
pertinent information from security records maintained by the DIS.
(e) Requests assistance of the U.S. State Department, in
identifying and suspending existing passports and pending applications
pertaining to the deserter. This includes transmitting a copy of the DD
Form 553 by facsimile or express mail to the U.S. State Department,
Deputy Assistant Secretary for Passport Services, ATTN: CA-PPT-C,
McPherson Building, 1425 K Street NW., Washington DC 20524. A point of
contact in the provost marshal office must be provided for the U.S.
State Department. The facsimile commercial telephone number is (202)
326-6271.
(f) Notifies USACIDC, local FBI office, and local and State law
enforcement agencies of the soldier's absence to establish an
investigative task force. The task force acts as the focal point in
collecting and disseminating information obtained through investigative
activity.
(g) Requests assistance from the nearest Air Force Office of
Special Investigation (OSI) to determine if the absentee has been
granted passage on a Military Airlift Command (MAC) Flight.
Notification is also made to Headquarters, MAC, to deny passage on a
MAC, flight by calling Office of Special Investigations, Scott Air
Force Base, Illinois, DSN 576-5413 or commercial 618-256-5413.
(h) Transmits an electronic alert through the National Law
Enforcement Telecommunications Systems (NLETS) to broadcast within the
State, a specific State, and or regional broadcast (contiguous five
States). NLETS messages must include the deserter's complete name,
social security number, date and place of birth, physical description,
and a statement that an entry has been made into the NCIC.
(i) Coordinates with the Office of the Staff Judge Advocate to
obtain search warrants, court orders, or subpoenas for searches of the
deserter's residence, financial, credit card, postal, telephone,
insurance, housing utilities, civilian medical records, and access to
commercial land, air and sea transportation records.
(j) Cancels the NCIC entry when notified by Chief, USADIP that the
deserter packet has been received and the Chief, USADIP, is prepared to
assume responsibility as the point of contact for verification of
deserters.
Sec. 630.11 Escaped prisoner.
(a) An escaped prisoner whose discharge has not been executed is
administratively classified as a deserter. The installation Provost
Marshal--
(1) Requests assistance from civilian law enforcement agencies
including the FBI.
(2) Forwards copies of DD Form 553 to Chief, USADIP, showing
distribution with Item 10 marked ``N/A.''
(3) Enters a temporary warrant into the NCIC.
(b) An escaped military prisoner whose discharge has been executed
and who is not under the custody of the U.S. Attorney General is
reported as an escaped military prisoner, not a deserter. The custodian
of an escaped military prisoner's personnel records prepares DD Form
553 clearly stating in items 12 and 19 that the individual is an
escaped military prisoner. The DD Form 553 is sent to the installation
provost marshal. A temporary warrant is entered into the NCIC by the
installation provost marshal.
Sec. 630.12 USADIP procedures.
(a) The Chief, USADIP--
(1) Verifies information on the DD Form 553 with permanent personal
records at the USAEREC.
(2) Enters the soldier's name into the NCIC.
(3) Forwards a copy of the DD Form 553 to all Federal, State and
local law enforcement agencies who may be involved in the apprehension
process.
(4) Forwards a copy of DD Form 553 to the provost marshall nearest
the deserter's home of record.
(5) Forwards a copy of the DD Form 553 to the USACRC, ensuring the
USACRC control number is legible.
(b) The Army entry into the NCIC wanted person file normally is
generally sufficient to support civilian police apprehension
assistance.
Subpart D--Return to Military Control
Sec. 630.13 AWOL/deserter apprehension efforts.
The return of absentees to military control is a command
responsibility. Military police will generally not be committed to
proactive efforts to apprehend AWOL soldiers or deserters except when
the provost marshal determines that such efforts are warranted by
specific circumstances. Examples of instances when such effort is
warranted include when the AWOL soldier or deserter is wanted as the
[[Page 39076]]
subject of additional more serious charges or is a special category
absentee as defined in Sec. 630.8 of this part.
Sec. 630.14 Use of escorts.
(a) Commanders and provost marshals must ensure that the most
economical and efficient means are used to return surrendered or
captured absentees to their parent unit or personnel control facility
as appropriate. For example, alternatives such as express mailing of DD
Form 460 and a transportation request may be used instead of an escort
if there is a reasonable expectation that the absentee will comply.
(b) The use of escorts should be considered if--
(1) There is not a reasonable expectation that the absentee will
not comply.
(2) The absentee is a special category absentee IAW Sec. 630.8 of
this part.
(3) The absentee is pending serious criminal charges.
(4) The absentee is in the custody of a civilian law enforcement
agency that is not willing to assist in processing the absentee by mail
or similar means.
(c) When escorts are deemed necessary, consideration should be
given to using noncommissioned officers from the parent unit before
committing military police manpower.
Sec. 630.15 Verification of deserter status.
(a) When a person claims to be a deserter from the U.S. Army, the
first receiving military authority must advise the person of his or her
right per article 31 UCMJ and provide as much of the following data as
possible to the provost marshal:
(1) Name.
(2) Social security number.
(3) Date and place of birth.
(4) Home of record.
(5) Date and place of enlistment, date of alleged absence, and unit
of assignment.
(b) The provost marshal immediately completes a check of the NCIC
and USADIP to confirm the deserter status. Deserter felon checks
require:
(1) The full name of the person.
(2) Social security number.
(3) Date of birth.
(4) Place of birth.
(5) Military service number if different from the social security
number.
(c) When necessary to establish identity at the request of the
Chief, USADIP, the installation provost marshal forwards DD Form 369
(Police Record Check) with a complete set of fingerprints to the
Commander, U.S. Army Enlisted Records Center, ATTN: PCRE-RD,
Indianapolis, IN 46249-5301. The fingerprints must also be accompanied
by DD Form 616 in quadruplicate. In Item 9 of the DD Form 616 note:
``For Information Only--Fingerprints attached.'' The Chief, USADIP
forwards the fingerprint record to the FBI Identification Division,
Washington, DC 20537-8700 for fingerprint comparison and
identification.
(d) In the event the status of the individual can not be
immediately determined, the individual will not be detained. The
Provost Marshal obtains information on how to contact the person once
their status has been determined. On verification of status as absent
or desertion, Chief, USADIP, provides instructions to the provost
marshal returning the individual to military control.
Sec. 630.16 Surrender or apprehension on parent installation.
(a) The parent installation provost marshal--
(1) Verifies the deserter's military status IAW Sec. 630.13 of this
part.
(2) Coordinate between appropriate levels of command on RMC (time,
date, and location).
(3) Initiates a reference blotter entry changing the absentee's
status from deserter to return to military control.
(4) Prepares and submits DD Form 616 to Chief, USADIP. The USACRC
control number assigned to the DD Form 553 is included in the remarks
section of DD Form 616.
(5) Prepares DA Form 3975, 2804 (Crime Records Data Reference) and
4833. The USACRC control number assigned to the DD Form 553 is also
used on these forms.
(6) Forwards the original DA Form 3975 and 2804 to the Director,
USACRC.
(7) Forwards three copies of DA Form 4833, with an appropriate
suspense date, and one copy of DA Form 3975 to the PCF commander or
installation commander processing the deserter.
(8) On receipt of the completed DA Form 4833 forwards the original
to Director, USACRC.
(b) Should the deserter surrender to the original unit of
assignment, the unit commander immediately notifies the provost marshal
of the deserter's return. The provost marshal completes the processing
in paragraph (a) of this section.
Sec. 630.17 Surrender or apprehension at another installation.
(a) The provost marshal follows the procedures in Sec. 630.17 and
obtains the USACRC control number from Chief, USADIP for use in
completing the DD Form 616 and DA Form 2804, 3975, and 4833.
(b) The unit commander requesting return of the absentee completes
arrangements for escorting the absentee, if required. Other absentees
are sent to a PCF.
Sec. 630.18 Surrender or apprehension off an Army installation.
Commanders located off an Army installation--
(a) Notify the major Army command or coordinating installation
provost marshal, within whose area of responsibility the activity is
located.
(b) Furnish the coordinating installation provost marshal all
available information on the absentee or deserter.
(c) Issue a DD Form 460 and direct the person to proceed to the
nearest Army installation with facilities for processing deserters. If
appropriate, express mailing of DD Form 460 and a transportation
request may be used.
(d) Forward a copy of the DD Form 460 to Commander, U.S. Army
Enlisted Records and Evaluation Center, ATTN: PCRE-RD, 8899 East 56th
Street, Indianapolis, IN 46249.
(e) Follow up to ensure that all absentees and deserters are
returned to military control.
Sec. 630.19 Deserters and defectors in foreign countries.
(a) Army deserters and defectors in foreign countries are
apprehended only in accordance with applicable Status of Forces or
other station agreements, AR 27-50, U.S. and host country law, and the
directives of the overseas command.
(b) Direct coordination between all major overseas commanders, U.S.
Air Force, U.S. Navy, U.S. Marine Corps and CONUS installations is
conducted to coordinate information for return of deserters or
defectors to military control. Defectors and special category absentees
must be escorted from the time of their return to military control to
the installation or PCF with area of responsibility for processing
deserters. Deserters returned to military control are processed under
procedures set by the major overseas commander.
(c) When a deserter or defector is reported to have been returned
to military control at another service installation, the Army area
provost marshal arranges for return of the deserter to U.S. Army
custody. Maximum use of the DD Form 460 should be made.
(d) When absentees and deserters in foreign countries are scheduled
to depart or are to be deported from foreign countries, the Military
Assistance Advisory Group (MAAG) mission or attache notifies Chief,
USADIP, and if
[[Page 39077]]
known the appropriate major commander, ATTN: Provost Marshal.
Notification should be completed in advance for coordination of
operational military police actions. The notice includes the--
(1) Name, grade, and social security number of the absentee.
(2) Date, time (local), and place of departure from the foreign
country.
(3) Mode of transportation and designation of the carrier.
(4) Date, time and place of arrival in CONUS or where U.S.
Authorities have jurisdiction to apprehend the absentee or deserter.
(5) Unit in which the individual is or was last assigned.
(6) Length of time in foreign country.
(7) Physical and mental condition and attitude of the absentee or
deserter.
(8) Charges by military or civil authorities.
(9) Intelligence interest.
Sec. 630.20 Escaped military prisoner.
(a) When an escaped military prisoner is returned to military
control, the provost marshal--
(1) Notifies the commander of the confinement or correctional
facility from which the prisoner escaped.
(2) Completes and forwards DD Form 616 to Chief, USADIP.
(b) Unless otherwise directed by HQDA (DAMO-ODL), or the Commander,
U.S. Army Disciplinary Barracks (USDB), prisoners who escape from the
USDB are returned to the USDB. The commander of the installation to
which the prisoner is returned provides guards and transportation to
the nearest supporting confinement facility to return the prisoner to
the USDB.
(c) Escapees from other U.S. Army correctional activities are
returned to the confinement or correctional facility from which the
prisoner escaped unless otherwise directed by HQDA (DAMO-ODL).
(d) The chief, USADIP forwards DD Form 616 to recipients of DD Form
553.
Sec. 630.21 Other armed services deserters.
(a) Requests for status of alleged deserters from other Armed
Services may be made through an inquiry in the NCIC. When the response
from the NCIC is negative, the following appropriate Service may be
contacted:
(1) U.S. Air Force. Commander, U.S. Air Force Military Personnel
Center, Randolph Air Force Base, TX 78150-6001, DSN 487-5118.
(2) U.S. Navy. Commander, Naval Military Personnel Command, Code
NMPC-843, Washington, DC. 20370-5643, DSN 224-2551 or commercial, toll
free 1-800-336-4974.
(3) U.S. Marine Corps. Commandant of the Marine Corps, Corrections
Branch (MHC), Headquarters, U.S. Marine Corps, Building 2008, MCCDC,
Quantico, VA 22130-5000, DSN 278-3976.
(b) When Army absentees or deserters are received from civil
authorities in CONUS, all military absentees, and deserters, regardless
of the military service to which they belong, are transported at the
same time.
(c) Unless there are specific arrangements among the military
services, the following applies when Army personnel take custody of
absentees or deserters from civil authorities in CONUS:
(1) Notify the other military authorities in advance that the
individual will be taken into custody and delivered to the nearest
military installation having facilities to process absentees or
deserters.
(2) When custody cannot be affected, notify the nearest
installation of the service concerned that the person will remain in
civilian custody.
(d) Absentees and deserters from the other services and the Coast
Guard may be received at any U.S. Army installation which has
facilities for reception and custody. They are transferred immediately
to the nearest appropriate installation of the Service. Commanders of
troops on maneuvers or on the march are exempt from the responsibility
for taking custody of absentees and deserters. They may, however,
accept absentees or deserters if necessary and return them to the
custody of their Service.
Sec. 630.22 Transportation.
(a) If commercial transportation is necessary:
(1) The responsible transportation office arranges for movement per
AR 55-355.
(2) Cost and speed of transportation are considered.
(3) International and CONUS travel is arranged only on U.S.
commercial air carriers flying regularly scheduled routes, certified
route carriers, supplemental air carriers, or charter air taxi
operations.
(4) Military personnel escorting absentees or deserters must comply
with commercial air carrier rules and with AR 190-47.
(5) Expenses (transportation, reward payment, reimbursement to
civilian law enforcement authorities) associated with the return of
absentees or deserters to their proper station are chargeable to the
Military Personnel, Army Appropriation. Commanders are authorized to
make charges against these accounts for the transportation of escorts
and the deserter and for payment of required or reimbursement when the
returnee is delivered to an installation or detained for military
authorities.
(6) The approving authority reviews paid travel and per diem
vouchers for efficiency, economy, and accuracy in statements of travel
performed. When feasible, one-day return travel should be used to
reduce costs.
(b) Transportation expenses for use of guards to return absentees
or deserters to their proper station or to military authorities are
charged to the budget activity account ``Other Military Personnel
Costs.''
Subpart E--Civilian Correctional or Medical Facilities
Sec. 630.23 Military detainer.
(a) Military detainer (see sample detainer at Figure 630.1 of this
part) must be placed when a soldier is being held by civilian
authorities and release of the soldier is not imminent. The
installation commander or provost marshal may initiate a detainer. The
purposes for filing a detainer are to--
(1) Officially inform civilian authorities that any Army soldier is
in their custody and military authorities want to assume custody at
release.
(2) Request military authorities be kept advised on the status of
actions taken by civilian authorities.
(3) Permit military authorities to monitor the person's military
status while in civilian custody.
(b) A detainer is canceled when the person is released to military
custody.
(c) If an AWOL or DFR individual is being detained by civilian
authorities the military police
(1) Notify the proper installation commander or coordination
authority at once that the individual--
(i) Is being detained by civilian authorities on civil or criminal
charges.
(ii) Is committed to a civilian medical facility.
(2) Place a military detainer with the civilian law enforcement
agency and inform the installation commander or coordinating authority
of--
(i) Changes or medical problems concerning the absentee.
(ii) Probable length of detention by civilian authorities.
Sec. 630.24 Action on return to military control
(a) The military authority first receiving or apprehending the
absentee or deserter, or receiving word of their detention by civilian
authorities, immediately contacts the installation or area provost
marshal and provides the following data.
[[Page 39078]]
(1) Name, grade, and social security number of the absentee.
(2) Date absence began and unit from which absent.
(3) Absentee, deserter, or escaped prisoner status.
(4) Date, place, and military unit or civilian agency where the
person was apprehended, surrendered, or detained.
(5) Unit to which the absentee or deserter will be assigned or
attached on return.
(b) When military law enforcement personnel are the first military
authority receiving a report of an AWOL or DFR person's apprehension or
surrender the following actions are also taken:
(1) Initiate an inquiry with the NCIC. When the NCIC inquiry shows
the individual is wanted by civilian law authorities for a criminal
offense, immediately contact the civilian agency. Advise the civilian
agency of the individual's location and where the return to military
control will be made. Place the results in item 9 of DD Form 616 and
send it to the commander receiving the returnee. All Army returnees
wanted for a criminal offense other than AWOL or desertion are reported
to Commander, U.S. Army Criminal Investigation Command, ATTN: CICR-ZA,
6010 6th Street, Fort Belvoir, VA 22060-5585 to ensure that military
law enforcement investigations or criminal charges are not pending.
(2) When the individual is not wanted for a criminal offense,
coordinate RMC with the appropriate military personnel office and take
action in paragraph (c) of this section.
(c) Absentees and deserters being held temporarily by civilian
authorities are returned to military control as soon as possible.
Military authorities should strive to return absentees or deserters to
military control within 48 hours after being notified of their
whereabouts and impending release.
Sec. 630.25 Civilian detention facilities.
(a) When necessary, civilian detention facilities may be used to
temporarily detain absentees, deserters or escaped military prisoners.
Contracts providing for payment of actual costs for detention may be
made with state or county jails that have been approved by the Bureau
of Prisons. U.S. Department of Justice information about approved
facilities is available from the nearest U.S. Marshal's office.
(b) Contracts must contain standards of treatment of military
prisoners per AR 190-47. The Federal Acquisition Regulation (FAR), The
Federal Acquisition Supplement (FAS), and the Army Procurement
Procedure Supplement (APPS) govern these contracts.
Sec. 630.26 Costs of civilian detention facilities.
(a) Civilian authorities may be reimbursed according to contracts
for temporary detention after military authorities have assumed
custody. It does authorize payment from the date further detention was
requested. This does not authorize payment for subsistence and
detention for the same period for which a reward was authorized. This
does not preclude payment of reward or reimbursement for reasonable
expenses for periods before delivery to military custody. Detained
officers receiving basic allowance for substance (BAS) are charged the
cost of substance.
(b) Costs incurred by the Army for detention under an Army contract
are paid to the civilian facility. Any payment to the Army by another
Armed Service must be by prior agreement between the commanders
concerned.
Subpart F--Payment of Rewards and Reimbursements
Sec. 630.27 Rewards
(a) Receipt of an authorized communication, oral or written (for
example DD Form 553 and entry into the NCIC) from a military or Federal
law enforcement official or agency, requesting cooperation in the
apprehension or delivery to military control of an absentee or deserter
wanted by the Armed Forces constitutes the basis for a reward.
(b) A reward can be paid to an eligible person or agency who
apprehends and detains an absentee or deserter until military
authorities assume control. The finance and accounting officer
designated by the MACOM commander pays the claimant. If two or more
eligible persons or agencies are entitled to a reward, the payee may
divide the payment among the participants. Payment for an apprehension
effected jointly by an eligible and ineligible person or agency may be
claimed by the eligible person or agency. Ineligible persons may not
share in payments.
(c) Payment of a reward to persons or agencies is authorized as
indicated below:
(1) A reward for apprehension and detention of an absentee or
deserter until military authorities assume custody.
(2) A reward for apprehension of an absentee or deserter and
subsequent delivery to a military installation with facilities to
receive and process absentees and deserters.
(d) The reward may not exceed the amount specified in the current
defense appropriation account for--
(1) The apprehension and detention of absentees or deserters until
military authorities take custody.
(2) The apprehension and delivery to military authorities of
absentees or deserters.
(e) A reward or reimbursement for expenses is not authorized for an
Armed Service member. Federal government employees, a lawyer on whose
advice an absentee or deserter surrenders, or when payment would
violate public policy.
Sec. 630.28 Reimbursement payments.
(a) Reimbursement payments to official agencies is authorized
when--
(1) A reward has been offered.
(2) Reimbursement is requested in place of a reward.
(b) Reimbursement for reasonable and actual expenses may be made to
more than one eligible person or agency. However, total reimbursement
for the return of an absentee or deserter may not exceed the amount
authorized for reward.
(c) Dual payment (reward and reimbursement) relating to one
absentee or deserter is prohibited.
(d) Official transportation and personal services payment are not
made for--
(1) Transportation by official vehicle.
(2) Personal services of the claimant.
(3) Apprehension and detention not followed by return to military
custody.
Sec. 630.29 Documentation.
(a) Payment of reward or reimbursement for expenses is documented
by processing Standard Form 1034 (Public Voucher for Purchase and
Services Other Than Personal). The following information must be
provided on SF 1034 or supporting documents:
(1) Name, social security number, and last duty station (DD Form
553 or DD Form 616) of the absentee.
(2) Date, place of arrest, and place of return to military custody
(DD Form 616).
(3) Signed statement by claimant that the agency qualifies for a
reward under paragraph (a), (b), or (c) of this section.
(4) Statement signed by military representative documenting either
of the following:
(i) Delivery to a military installation with facilities to receive
and process absentees and deserters.
(ii) Military custody assumed at a site other than a military
installation or facility.
(5) Army forms provided to claimants to support payment request.
(b) When required, military pay vouchers are prepared for absentees
and
[[Page 39079]]
deserters per AR 37-104-3, paragraphs 80310, 80311, and 80313.
Subpart G--Surrender of Military Members to Civilian Law
Enforcement Officials
Sec. 630.30 Overview.
(a) This chapter establishes provost marshal procedures and
responsibilities for the surrender of soldiers to civilian law
enforcement authorities. It is the policy of the Department of the Army
to cooperate with civilian authorities unless the best interest of the
Army will be prejudiced.
(b) Provost marshals assist in the delivery of a soldier to
civilian authorities per this regulation and applicable personnel
management regulations. AR 630-10, Chapter 7, provides personnel
management policies and procedures on the surrender of soldiers to
civilian authorities.
Sec. 630.31 CONUS.
(a) Generally, provost marshal activity is limited to ensuring that
a military detainer is prepared and signed when surrendering a soldier
to civilian law enforcement officials (see figure 630.1 of this part).
(b) There is no statutory authority for a commander to deliver a
soldier to a bail bondsman or surety. The surety must coordinate with
the installation Staff Judge Advocate and the Commander of the soldier
prior to attempting to apprehend the soldier. To preserve peace and
order on the installation, military police will accompany the surety to
observe the surety taking custody of the soldier.
Sec. 630.32 Responsibilities.
(a) In foreign countries, the authority of U.S. military personnel
to apprehend, detain and deliver U.S. personal to civil authorities of
foreign countries is governed by the provisions of international
agreements. AR 27-50, and the laws of the host nation. The extent of
the authority in a particular country is determined from directives
published by the OCONUS MACOM Commander.
(b) Chief, DAMO-ODL--
(1) Coordinates approved requests for surrender of the soldier with
the civilian law enforcement agency or prosecuting attorney's office
requesting surrender of the soldier. Transportation costs of the
soldier from the point of debarkation are the responsibility of the
requesting agency.
(2) Coordinates surrender of the soldier with the felony warrant or
extradition division of the civilian law enforcement agency or Federal
law enforcement agency at the point of debarkation.
(3) Contacts the CONUS installation provost marshal with area of
responsibility for assistance in the surrender of the soldier.
(c) MACOM Provost Marshal--
(1) If requested by the General Court-Martial convening authority
or designee, arranges escort of the soldier to the point of embarkation
or debarkation in CONUS.
(2) Notifies Chief, DAMO-ODL, of the departure date, time, flight
number, and the name of the individual(s) who will escort the soldier,
if applicable.
(d) CONUS Provost Marshal with area of responsibility--
(1) Prepares a military detainer for the soldier to be surrendered.
(2) Meets the aircraft, assists in the surrender of the soldier,
and presents the military detainer.
(3) Provides a copy of the detainer and attachment order to the
commander of the PCF or the unit to which the solider will be attached.
Figure 630.1 of Part 630--Sample Military Detainer
I, (name of civilian representative) an official agent
representing (name and address of civilian jurisdiction), accept
custody and control of (grade, name, social security number), a U.S.
Soldier, for trail on a charge (state offense(s)), I agree, on
behalf of the jurisdiction named above, to inform the Commander,
(installation address), of results of the judicial process and to
return the solider at no expense to the Army or the soldier to said
Army installation unless a place nearer the civilian jurisdiction is
designed by Department of the Army. The soldier will be returned
immediately on dismissal or other disposition of charges
facilitating return of the soldier. When disposition precludes
immediate return of the soldier following litigation, I will furnish
results of the judicial process and information concerning the
earliest possible date the soldier might be returned to Army
control. I will also advise the designated commander whenever the
location of incarceration of the soldier changes or whether soldier
is released on bail or bond. I understand the above commander will
advise the civilian jurisdiction which I represent if the soldier's
return to military custody is no longer desired. I was furnished a
copy of this agreement on (date).
(signature)
(position)
(name of jurisdiction)
(Address of jurisdiction)
Appendix A to Part 630--References
Publications and forms referenced in this part may be viewed at
the Office of Provost Marshal at any Army installation. Department
of Defense publications are also available from the National
Technical Information Service, U.S. Department of Commerce, 5285
Port Royal Road, Springfield, VA 21161; telephone (703) 487-4684.
Required Publications
AR 5-9--Intraservice Support Installation Area Support Coordination
(cited in Sec. 630.4)
AR 27-50--Status of Forces Policies Procedures and Information
(Cited in Sec. 630.19 and Sec. 630.30)
AR 190-45--Military Police Law Enforcement Reporting (Cited in
Sec. 630.7 and Sec. 630.9)
AR 190-47--The United States Army Correctional System (Cited in
Sec. 630.22 and Sec. 630.25)
AR 630-10--Absence Without Leave, Desertion, and Administration of
Personnel involved in Civilian Court Proceedings (Cited in
Sec. 630.8 and Sec. 630.30)
Manual for Court-martial, United States (Cited in Sec. 630.8)
Related Publications
A related publication is merely a source of additional
information. The user does not have to read it to understand this
publication.
AR 37-104-3--Military Pay and Allowance Procedures: Joint Uniform
Military Pay System Army (JUMPS-A1RR)
AR 55-355--Defense Traffic Management Regulation
Prescribed Forms
DD Form 616--Report of Return of Absentee (Prescribed in Sec. 630.4,
Sec. 630.14, Sec. 630.15, Sec. 630.16, Sec. 630.20, Sec. 630.24 and
Sec. 630.29)
Referenced Forms
DA Form 2804--Crime Records Data Reference
DA Form 3975--Military Police Report
DA Form 3997--Military Police Desk Reference
DA Form 4833--Commander's Report of Disciplinary or Administrative
Action
DA Form 369--Police Record Check
DA Form 460--Provisional Pass
DD Form 553--Deserter/Absentee Wanted by the Armed Forces
SF 1034--Public Voucher for Purchases and Services Other than
Personal
Appendix B to Part 630--Glossary
Abbreviations
AAPS--Army Procurement Procedure Supplement
ARNG--Army National Guard
AWOL--absent without leave
BAS--basic allowance for substance
CG--commanding general
CONUS--Continental United States
DCSPER--Deputy Chief of Staff for Personnel
DCSOPS--Deputy Chief of Staff for Operations and Plans
DFR--dropped from the rolls
DIS--Defense Investigative Service
DSN--Defense Systems Network
EMF--enlisted master file
FAR--Federal Acquisition Regulation
FAS--Federal Acquisition Supplement
FBI--Federal Bureau of Investigation
MAC--Military Airlift Command
MACOM--major Army command
[[Page 39080]]
NCIC--National Crime Information Center
NLETS--National Law Enforcement Telecommunication System
OCONUS--outside Continental United States
PCF--Personnel Control Facility
PERSCOM--U.S. Army Total Personnel Command
PERSINSCOM--U.S. Army Personnel Information Systems Command
RMC--return to military control
ROTC--Reserve Officer Training Course
TR--Transportation request
UCMJ--Uniform Code of Military Justice
USACIDC--U.S. Army Criminal Investigation Command
USACRC--U.S. Army Crime Records Center
USADIP--U.S. Army Deserter Information Point
USAEREC--U.S. Army Enlisted Records and Evaluation Center
USAR--U.S. Army Reserve
Terms
Coordinating agent.--A person within a staff agency of CONUS
command or CONUS installation who is responsible for coordinating
and monitoring the absentee and deserter program.
Desertion.--A violation of Article 85, UCMJ. It applies to any
member of the Armed Forces who commits any of the following:
(a) Not used.
(1) Without authority goes or remains absent from his or her
unit, organization, or place of duty with intent to remain away
therefrom permanently.
(2) Quits his or her unit, organization, or place of duty with
intent to remain away therefrom permanently.
(3) Without being regularly separated from one of the Armed
Forces enlists or accepts an appointment in the same or another one
of the Armed Forces without fully disclosing the fact that he or she
has not been regularly separated, or enters any foreign Armed
Service except when authorized by the United States. (This provision
has been held not to state a separate offense by the United States
Court of Military Appeals in United States v. Huff, 7 U.S.C.M.A.
247.22 C.M.R. 37 (1956).
(4) Any commissioned officer of the Armed Forces who, after
tender of his or her resignation and before notice of its
acceptance, quits his or her post or proper duties without leave and
with intent to remain away therefrom permanently is guilty of
desertion.
(b) Deserters are classified as defectors when they commit any
of the following:
(1) Have escaped to another country and are outside the
jurisdiction and control of the United States.
(2) Are unwilling to return to the United States.
(3) Are of special value to another country.
(4) Have repudiated the United States when beyond its
jurisdiction or control.
Deserter control officer.--A commissioned officer (normally a
battalion or unit adjutant) appointed in desertion cases to ensure
that documentation on deserters dropped from the rolls is provided
in a timely manner.
Detainer.--A written notice to civil authorities that a person
in their custody is an absentee of the Army or serving on active
duty with the Army and that military authorities desire to take
custody on release.
Dropped from the rolls of a unit.--An administrative action that
drops an absentee from the strength accountability of a unit.
Dropped from strength.--A strength accounting procedure used to
exclude personnel from the operating strength of the Army.
National Crime Information Center.--A computerized police
information system established by the Federal Bureau of
Investigation to serve participating law enforcement agencies.
Personal Assistance Point.--Agencies of the U.S. Army Total
Personnel Command located at aerial ports of embarkation or
debarkation to assist Army transient personnel enroute to or
returning from overseas.
Personnel Control Facility.--An organization that processes
absentees returned to military control from an unauthorized absence.
These facilities ensure proper disposition of returnees.
Special category absentee.--A soldier reported AWOL who had
access to top secret information during the last 12 months or is
currently assigned to a special mission unit.
Special mission unit.--A unit assigned a mission of such
extraordinary sensitivity as to require specific management,
oversight, and employment consideration.
Unavoidable absence.--An unauthorized absence that happened
through no fault of the absentee and no fault of the Government.
Unit.--An organization, agency, or activity.
Unit commander.--The commander of an absentee's or deserter's
unit of assignment or attachment.
U.S. Army Deserter Information Point.--The focal point with the
Army for controlling, verifying, accounting, and disseminating data
on individuals administratively classified as deserters.
Gregory D. Showalter,
Army Federal Register Liaison Officer.
[FR Doc. 96-18476 Filed 7-25-96; 8:45 am]
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