07-2702. Termination of Agriculture Board of Contract Appeals

AGENCIES:

Office of the Secretary; Federal Crop Insurance Corporation; Forest Service; Office of Procurement and Property Management.

ACTION:

Final rule.

SUMMARY:

The Department of Agriculture (USDA) is publishing amendments to the Code of Federal Regulations (CFR) as a final rule. USDA amends its regulations to reflect the legal termination of the Agriculture Board of Contract Appeals (AGBCA) and the creation of a new consolidated Civilian Board of Contract Appeals (CBCA). Additionally, with respect to appeals heard by the AGBCA other than Contract Disputes Act appeals, the AGBCA transfers or eliminates certain appeal procedures as a result of the termination of the AGBCA. USDA eliminates the appeals of procurement suspension and debarment, as well as the appeals of export violation debarment determinations under the Forest Resources Conservation and Shortage Relief Act (16 U.S.C. 620 et seq.), and transfers jurisdiction to hear Federal Crop Insurance Corporation (FCIC) and Contract Work Hours and Safety Standards appeals to the new consolidated CBCA.

DATES:

This final rule is effective as of June 7, 2007.

FOR FURTHER INFORMATION CONTACT:

Azine Farzami, Esq., Department of Agriculture, Office of the General Counsel, General Law Division, Room 3311-S, 1400 Independence Avenue, SW., Washington, DC 20250, telephone [phone].

SUPPLEMENTARY INFORMATION:

A. Background

Section 847 of the National Defense Authorization Act for Fiscal Year 2006, Public Law 109-163, 119 Stat. 3136, added a new section 42 to the Office of Federal Procurement Policy Act (the Act), 41 U.S.C. 401 et seq., which provided for the consolidation of the eight civilian Boards of Contract Appeals into a single entity, the Civilian Board of Contract Appeals (CBCA), to be established at the General Services Administration (GSA). Accordingly, all contract appeals under the Contract Disputes Act (CDA) of 1978, 41 U.S.C. 601 et seq., currently heard by the eight civilian boards, including contract appeals to the AGBCA, will be transferred by operation of law to the consolidated board no later than January 8, 2007.

In addition, under subsection 42(c)(2)(A) of the Act, agencies may request the CBCA to take jurisdiction over non-CDA appeals. Under 7 CFR 24.4(b) and 400.169(d), the AGBCA hears appeals from final administrative determinations issued by the Risk Management Agency (RMA) on behalf of the FCIC arising under Standard Reinsurance Agreements (SRAs) issued pursuant to the Federal Crop Insurance Act, 7 U.S.C. 1501 et seq. The AGBCA also has jurisdiction to hear appeals of administrative determinations of liquidated damages under the Contract Work Hours and Safety Standards Act, 40 U.S.C. 3703. Since the AGBCA is being terminated by law, USDA has requested the new CBCA to take over the FCIC and Contract Work Hours appeals.

Finally, under 7 CFR 24.4(c), the AGBCA has jurisdiction over contractor suspensions and debarments, including the debarment of persons who violate the Forest Resources Conservation and Shortage Relief Act of 1990 (16 U.S.C. 620 et seq.) (Export Act) under 36 CFR 223.130, et seq. Consistent with its proposal to eliminate nonprocurement suspension and debarment appeals (68 FR 66533 (Nov. 26, 2003)), USDA also eliminates procurement suspension and debarment appeals, as well as appeals from debarment determinations under the Export Act.

B. Executive Order 12866

This final rule has been determined to be not significant and does not require review by the Office of Management and Budget under Executive Order 12866.

C. Regulatory Flexibility Act

USDA certifies 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 does not impose any additional costs on either small or large businesses.

D. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the changes 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.

List of Subjects

7 CFR Part 24

• Administrative practice and procedure
• Agriculture
• Government procurement

7 CFR Part 400

• Administrative practice and procedure
• Agriculture
• Crop insurance

36 CFR Part 223

• Exports
• Government contracts
• National forests
• Reporting and recordkeeping requirements
• Timber

48 CFR Chapter 400

• Administrative practice and procedure
• Agriculture
• Government procurement

For the reasons stated in the preamble, under the authority of USDA at 5 U.S.C. 30157 CFR parts 24 and 400; 36 CFR part 223; and 48 CFR parts 409, 432, and 433 are amended as follows:

Title—7 Agriculture

PART 24—[Removed and reserved]

1. Remove and reserve part 24, consisting of §§ 24.1 through 24.21.

PART 400—GENERAL ADMINISTRATIVE REGULATIONS

2. Revise the authority citation for part 400 to read as follows:

Authority: 40 U.S.C. 121, 41 U.S.C. 421.

3. Amend § 400.169 by revising the last sentence of paragraph (c) and paragraph (d) to read as follows:

§ 400.169

Disputes.

* * * * *

(c) * * * Such determinations will not be appealable to the Civilian Board of Contract Appeals.

(d) Appealable final administrative determinations of the Corporation under paragraph (a) or (b) of this section may be appealed to the Civilian Board of Contract Appeals in accordance with 48 CFR part 6102.

Title 36—Parks, Forests, and Public Property

PART 223—SALE AND DISPOSAL OF NATIONAL FOREST SYSTEM TIMBER

4. The authority citation for part 223 continues to read as follows:

Authority: 90 Stat. 2958, 16 U.S.C. 472a; 98 Stat. 2213, 16 U.S.C. 618, 104 Stat. 714-726, 16 U.S.C. 620-620j; unless otherwise noted.

5. Amend § 223.138 by removing paragraph (b)(8) and revising paragraphs (b)(7)(i)(C) and (D) and by removing paragraph (b)(7)(i)(E) to read as follows:

§ 223.138

Procedures for Debarment.

* * * * *

(b) * * *

(7) * * *

(i) * * *

(C) State the period of debarment, including effective dates (see § 223.139); and

(D) Specify any limitations on the terms of the debarment.

* * * * *

Title 48—Federal Acquisition Regulations System, chapter 4, Department of Agriculture.

PART 409—CONTRACTOR QUALIFICATIONS

6. Revise the authority citation for part 409 to read as follows:

Authority: 40 U.S.C. 121, 41 U.S.C. 421.

7. Remove § 409.470.

PART 432—CONTRACT FINANCING

8. Revise the authority citation for part 432 to read as follows:

Authority: 40 U.S.C. 121, 41 U.S.C. 421.

9. Revise § 432.616 to read as follows:

§ 432.616

Compromise Actions.

Compromise of a debt within the proceedings under appeal to the Civilian Board of Contract Appeals is the responsibility of the contracting officer.

PART 433—PROTESTS, DISPUTES AND APPEALS

10. Revise the authority citation for part 433 to read as follows:

Authority: 40 U.S.C. 121, 41 U.S.C. 421.

11. Revise § 433.203-70 to read as follows:

§ 433.203-70

Civilian Board of Contract Appeals.

The organization, jurisdiction, and functions of the Civilian Board of Contract Appeals, together with its Rules of Procedure, are set out in 48 CFR part 6101.

Done in Washington, DC, this 25th day of May 2007.

Mike Johanns,

Secretary of Agriculture.