[Federal Register Volume 73, Number 102 (Tuesday, May 27, 2008)]
[Rules and Regulations]
[Pages 30317-30318]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-11560]



[[Page 30317]]

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DEPARTMENT OF HOMELAND SECURITY

48 CFR Parts 3001, 3002, 3009, and 3013

[Docket No. DHS-2008-0051]
RIN 1601-AA51


Office of the Chief Procurement Officer; Revision of Department 
of Homeland Security Acquisition Regulation; Technical Amendments (HSAR 
Case 2008-001)

AGENCY: Department of Homeland Security.

ACTION: Final rule.

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SUMMARY: The Department of Homeland Security (DHS) is amending its 
Homeland Security Acquisition Regulation to make the Transportation 
Security Administration subject to that regulation and to the Federal 
Acquisition Regulation system for acquisitions initiated after June 22, 
2008. This rule also removes provisions related to DHS special 
streamlined acquisition authority, changes the name of the Bureau of 
Immigration and Customs Enforcement to U.S. Immigration and Customs 
Enforcement, and the name of the Bureau of Customs and Border 
Protection to U.S. Customs and Border Protection in the Homeland 
Security Acquisition Regulation, and makes other technical amendments.

DATES: Effective date: This rule is effective May 27, 2008. Although 
this rule goes into effect on May 27, 2008, the Transportation Security 
Administration exemption from the Homeland Security Acquisition 
Regulation and the Federal Acquisition Regulation system remains in 
effect up to and including June 22, 2008.

FOR FURTHER INFORMATION CONTACT: Kathy Strouss, Office of the Chief 
Procurement Officer, Department of Homeland Security (DHS), (202) 447-
5300.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

    The Homeland Security Acquisition Regulation (HSAR) supplements the 
Federal Acquisition Regulation (FAR) system to provide a uniform 
department-wide acquisition regulation for the Department of Homeland 
Security (DHS). The Transportation Security Administration (TSA) has 
historically been exempt from the HSAR by authority of section 101(a) 
of the Aviation and Transportation Security Act (ATSA), Pub. L. 107-71, 
codified at section 114(o) of title 49, which applies the acquisition 
management system (AMS) established by the Administrator of the Federal 
Aviation Administration (FAA) to TSA acquisitions. The Homeland 
Security Act of 2002, Pub. L. 107-296 (HSA), as amended, transferred 
TSA into DHS, but did not remove the application of the FAA AMS to TSA 
acquisitions. TSA thus continues to use the FAA AMS, and not the HSAR 
and the FAR, for TSA acquisitions.
    On December 26, 2007, the President signed and thereby enacted the 
Consolidated Appropriations Act of 2008, Pub. L. 110-161. This 
legislation at division E, Title V, section 568, strikes section 114(o) 
of Title 49 effective June 23, 2008. Accordingly, TSA will be required 
to follow the FAR system and HSAR authorities for TSA acquisitions 
initiated after June 22, 2008. This final rule implements those changes 
by removing the TSA exemption from the HSAR and applying the HSAR and 
the FAR system to TSA acquisitions initiated on or after June 23, 2008.

Removal of DHS Streamlined Acquisition Authority, Name Changes for Two 
Components, and Additional Technical Amendments

    Additional amendments contained in this regulatory action include 
technical amendments to 48 CFR Chapter 30 content as follows:
     Name changes for the Bureau of Immigration and Customs 
Enforcement and the Bureau of Customs and Border Protection in Parts 
3001 and 3002;
     Removal of expired authority at 3013.70 regarding special 
streamlined acquisition authority; and
     Removal of the HSAR 3052.209-72 provision prescription 
content at the 3009.507 heading.
    These amendments incorporate into the HSAR name changes made by DHS 
to two DHS Components. Congress and the President established DHS on 
January 24, 2003, as the result of the reorganization of 22 federal 
agencies, including the former Immigration and Naturalization Service 
(INS) and the U.S. Customs Service (Customs Service). Pursuant to 
sections 403, 442, 451 and 1502 of the HSA, the INS and the Customs 
Service were transferred to DHS effective March 1, 2003, and 
reorganized to become the Bureau of Citizenship and Immigration 
Services, the Bureau of Immigration and Customs Enforcement, and the 
Bureau of Customs and Border Protection. On January 18, 2007, DHS 
notified Congress that, pursuant to HSA section 872(a)(2), DHS was 
renaming the Bureau of Immigration and Customs Enforcement as U.S. 
Immigration and Customs Enforcement (ICE), and the Bureau of Customs 
and Border Protection as U.S. Customs and Border Protection (CBP). 
These name changes are reflected in a DHS notice published in the 
Federal Register on April 23, 2007, at 72 FR 20131. That notice 
requires that all references to the Bureau of Immigration and Customs 
Enforcement and the Bureau of Customs and Border Protection in existing 
documents and actions be construed as references to U.S. Immigration 
and Customs Enforcement (ICE) and U.S. Customs and Border Protection 
(CBP), respectively. The amendments below make corresponding name 
changes to HSAR regulatory text.
    The amendments also remove the provision prescription at 3009.507, 
which is now obsolete.
    Finally, technical amendments to 3013.70 reflect the expiration of 
special streamlined DHS acquisition authorities. The HSA at division E, 
title VIII, section 833, authorized special streamlined acquisition 
authority for certain DHS procurement actions. That special authority 
expired on September 30, 2007. These amendments remove the HSAR 
guidance and instructions related to those expired authorities.

Good Cause for Immediate Adoption

    DHS is issuing this final rule without prior notice and opportunity 
to comment pursuant to its authority under section 4(a) of the 
Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision 
authorizes the agency to issue a rule without prior notice and 
opportunity to comment when the agency for good cause finds that those 
procedures are ``impracticable, unnecessary, or contrary to the public 
interest.'' DHS finds that prior notice and public comment to this 
interim final rule is unnecessary and contrary to the public interest 
because the regulatory action implements a non-discretionary, 
legislative mandate and makes other minor, technical changes that do 
not otherwise modify the Department's current policies. As such, this 
is a technical and administrative change for which prior public notice 
and comment is unnecessary and contrary to the public interest.

II. Rulemaking Analysis and Notices

A. Executive Order 12866

    The Office of Management and Budget has determined this rule to not 
be a ``significant regulatory action'' under Executive Order 12866, 
``Regulatory Planning and Review,'' 58 FR 51735 (October 4, 1993), as 
amended. Accordingly, this action was not subject to review under the 
Executive Order by

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the Office of Information and Regulatory Affairs within OMB.

B. Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b))

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. DHS has 
certified that there is good cause for this interim final rule to be 
issued without prior notice and comment. In these circumstances an 
initial regulatory flexibility analysis is not required. In addition, 
this rule interprets legislation and is not subject to agency 
discretion. DHS thus certifies that this rule will not have a 
significant impact on a substantial number of small entities. DHS will, 
however, consider comments from small entities concerning the affected 
HSAR Part(s) in accordance with 5 U.S.C. 610. Interested parties must 
submit such comments separately in writing to Kathy Strouss, the Office 
of the Chief Procurement Officer at Kathy.Strouss@dhs.gov and should 
cite to 5 U.S.C. 601, et seq. (HSAR case 2008-001), in the subject 
matter line of the correspondence.

C. Paperwork Reduction Act of 1995 (44 U.S.C., Chapter 35)

    This regulatory action will not impose any additional reporting or 
recordkeeping requirements under the Paperwork Reduction Act.

D. Federalism (Executive Order 13132)

    This regulatory action does not have Federalism implications, as 
set forth in Executive Order 13132. It will not have substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.

List of Subjects in 48 CFR Parts 3001, 3002, 3009, and 3013

    Government procurement.

    Dated: May 19, 2008.
Thomas W. Essig,
Chief Procurement Officer, Department of Homeland Security.

0
For the reasons stated in the preamble, the Department of Homeland 
Security amends 48 CFR parts 3001, 3002, 3009, and 3013 as follows:
0
1. The authority citation for 48 CFR parts 3001, 3002, 3009, and 3013 
continues to read as follows:

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

PART 3001--FEDERAL ACQUISITION REGULATION SYSTEM

0
2. Revise section 3001.104(b) to read as follows:


3001.104  Applicability.

* * * * *
    (b) The Transportation Security Administration (TSA) exception to 
this regulation is authorized by the Aviation and Transportation 
Security Act of 2001 (ATSA) (section 101(a) of Public Law 107-71, as 
implemented at section 114(o) of title 49) for contracts awarded by TSA 
pursuant to this ATSA authority. The Consolidated Appropriations Act of 
2008, Public Law 110-161, Division E, Title V, section 568 eliminates 
ATSA section 114(o) effective June 23, 2008. Accordingly, TSA 
acquisitions initiated after June 22, 2008 are subject to 48 CFR 
Chapters 1 and 30.
* * * * *

0
3. Revise section 3001.105-2(a) to read as follows:


3001.105-2  Arrangement of regulations.

    (a) General. The HSAR, which encompasses both Department-wide and 
Component-unique guidance, conforms to the arrangement and numbering 
system prescribed by (FAR) 48 CFR 1.105-2. Guidance that is unique to a 
Component contains the organization's acronym or abbreviation directly 
following the title. The following acronyms apply:

DHS Office of Procurement Operations (OPO);
Federal Emergency Management Agency (FEMA);
Federal Law Enforcement Training Center (FLETC);
Transportation Security Administration (TSA);
U.S. Coast Guard (USCG);
U.S. Customs and Border Protection (CBP);
U.S. Immigration and Customs Enforcement (ICE); and
U.S. Secret Service (USSS).

PART 3002--DEFINITIONS OF WORDS AND TERMS

0
4. Amend section 3002.101 by revising the definition for ``Component'' 
to read as follows:


3002.101  Definitions.

* * * * *
    Component means the following entities for purposes of this 
chapter:
    (1) DHS Office of Procurement Operations (OPO);
    (2) Federal Emergency Management Agency (FEMA);
    (3) Federal Law Enforcement Training Center (FLETC);
    (4) Transportation Security Administration (TSA), for acquisitions 
initiated after June 22, 2008;
    (5) U.S. Coast Guard (USCG);
    (6) U.S. Customs and Border Protection (CBP);
    (7) U.S. Immigration and Customs Enforcement (ICE); and
    (8) U.S. Secret Service (USSS).
* * * * *

PART 3009--CONTRACTOR QUALIFICATIONS

0
5. Remove and reserve section 3009.507 to read as follows:


3009.507  Solicitation provision and contract clause. [Reserved]

PART 3013--SIMPLIFIED ACQUISITION PROCEDURES


3013.70  [Removed and reserved]

0
6. Remove section 3013.70.

[FR Doc. E8-11560 Filed 5-23-08; 8:45 am]
BILLING CODE 4410-10-P