[Federal Register Volume 65, Number 234 (Tuesday, December 5, 2000)]
[Rules and Regulations]
[Pages 75863-75866]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-30911]
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ENVIRONMENTAL PROTECTION AGENCY
48 CFR Parts 1504 and 1552
[FRL-6912-2]
Acquisition Regulation: Business Ownership Representation
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is amending the EPA
Acquisition Regulation (EPAAR) to add a new clause that will provide
the Agency with information regarding its contract awards. This new
clause requests the successful awardee of an EPA contract to
voluntarily identify the specific racial/ethnic category that best
represents the ownership of its business. The information provided by
the clause will not be used for the establishment of a set-aside or
quota. The information will be used for general statistical purposes or
for the purpose of focusing future outreach initiatives to those
businesses owned by racial/ethnic groups who are unaware of EPA
contracting opportunities.
DATES: This rule is effective January 4, 2001.
FOR FURTHER INFORMATION CONTACT: Leigh Pomponio, U.S. Environmental
Protection Agency, Office of Acquisition Management (3802R), 1200
Pennsylvania Avenue, NW, Washington, D.C. 20460, Telephone: (202) 564-
4364.
SUPPLEMENTARY INFORMATION:
[[Page 75864]]
A. Background Information
A new Environmental Protection Agency Acquisition Regulation clause
has been developed to provide statistical data concerning EPA awards
made to businesses owned by various racial/ethnic groups, regardless of
size or disadvantaged status. The new clause will be incorporated into
all EPA solicitations and contracts expected to exceed the simplified
acquisition threshold ($100,000). The clause asks EPA contract
recipients to voluntarily identify the specific racial/ethnic category
that best represents the ownership of its business. The statistics
generated by the clause will help EPA target future outreach
initiatives to both large and small business owners who are unaware of
EPA contracting opportunities. Possible outreach initiatives may
consist of workshops, seminars or conferences and may include
presentations on how to do business with EPA or how the Government
contracting process works. Such outreach efforts will not be limited to
target audiences, but will be open to the general public. Further, the
information provided by the clause will not be used to establish a set-
aside or a quota.
Currently, statistical data is available to identify the types of
small businesses receiving EPA awards. There is no mechanism for
obtaining similar information for large businesses. The Federal
Acquisition Regulation clause at 52.219-1 (Alt II) permits the
Department of Defense, the National Aeronautics and Space
Administration, and the U.S. Coast Guard to gather ethnic and minority
ownership information. However, the Federal Acquisition Regulation
clause at 52.219-1(ALT II) only pertains to offerors who represent
themselves as small disadvantaged business concerns, as defined in
Title 13 of the Code of Federal Regulations, section 124.1002.
The business ownership racial/ethnic groups in this new clause are
similar to the categories listed in the Office of Management and Budget
Statistical Policy Directive No. 15, Race and Ethnic Standards of
Federal Statistics and Administrative Reporting. The clause contains
minor variations to enable EPA to compare collected data to data
published by the US Census Bureau. As Census Bureau data becomes
compliant with the Office of Management and Budget Statistical Policy
Directive No. 15, EPA will adjust the clause accordingly.
The Civilian Agency Acquisition Council (CAAC) was consulted
regarding the development of this clause, and did not voice any
objections.
The comment period for the proposed rule extended from June 23,
2000, to August 22, 2000, and yielded one external comment. A Summary
and Analysis of Comments document containing the EPA response is
included in the docket for this rule and is available by contacting
Leigh Pomponio at (202) 564-4364 or E-mail: [email protected].
In response to the external comment, EPA has made three minor
changes to the proposed rule to better describe: (1) Why EPA needs the
new clause, (2) the information requirements of the new clause, and (3)
statistical evidence to support that there is not an impact on a
substantial number of small entities.
While we recognize that statistical data may be available for small
businesses, there is no mechanism for obtaining similar data for large
businesses. The intent of the new clause is to provide statistical data
on whether businesses owned by various racial and ethnic groups are
represented in Agency contract awards. Such data will help EPA target
audiences for its outreach initiatives.
B. Executive Order 12866
This final rule is not a significant regulatory action for the
purposes of Executive Order 12866. Therefore, no review was required by
the Office of Information and Regulatory Affairs within the Office of
Management and Budget (OMB).
C. Paperwork Reduction Act
The Office of Management and Budget (OMB) has approved the
information collection requirements contained in this rule under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and
has assigned OMB control number 2030-0041. EPA utilizes outside
contractors for the performance of many critical activities. EPA
encourages full participation in its contractor selection process and
would like to make information about contracting opportunities readily
available to the contracting community. By collecting business
ownership data, EPA will be able to analyze the data and make business
decisions relative to outreach activities. The information collected
will not be used to make award decisions. Responses to the collection
will be voluntary, and a response is not required to obtain or retain a
benefit. Responses will be treated as Confidential Business Information
(CBI). CBI is protected from public release in accordance with the
Agency's confidentiality regulation, 40 CFR 2.201 et seq.
The burden of responding under this rule is estimated to average 3
minutes per response. The estimated number of respondents, based upon
average annual awards, is 240. The frequency of responses is 1 per
respondent. Therefore, the estimated total annual hour burden for all
respondents is 12 hours (3 x 240 x 1 divided by 60). There are no
estimated total annualized capital and operating and maintenance cost
burden associated with this rule. Burden means the total time, effort,
or financial resources expended by persons to generate, maintain,
retain, or disclose or provide information to or for a Federal agency.
This includes the time needed to review instructions, to develop,
acquire, install and utilize technology and systems for the purpose of
collecting, validating, and verifying information, processing and
maintaining information, and disclosing and providing information;
adjust the existing ways to comply with any previously applicable
instructions and requirements; train personnel to be able to respond to
a collection of information; search the data sources; to complete and
review the collection of information; and transmit or otherwise
disclose the information. An agency may not conduct or sponsor, and a
person is not required to respond to a collection of information unless
it displays a currently valid OMB control number. The OMB control
numbers for EPA's regulations are listed in 40 CFR part 9, and 48 CFR
Chapter 15. EPA is amending the table in 48 CFR Chapter 15, of
currently approved ICR control numbers issued by OMB for various
regulations, to list the information requirements contained in this
final rule.
D. Regulatory Flexibility Act (RFA), as Amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5
U.S.C. 601 et seq.
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small organizations, and small
governmental jurisdictions.
For purposes of assessing the impact of this rule on small
entities, small entity is defined as: (1) A small business that meets
the definition of a small business found in the Small Business
[[Page 75865]]
Act and codified at 13 CFR 121.201; (2) a small governmental
jurisdiction that is a government of a city, county, town, school
district or special district with a population of less than 50,000; and
(3) a small organization that is any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's final rule on
small entities, the Agency certifies that this final rule will not have
a significant economic impact on a substantial number of small
entities. The impact on small entities will not be significant. This
final rule is voluntary and will have no effect on the evaluation
criteria for award. As noted in the Information Collection Request
Federal Register (65 FR 47985, August 4, 2000) document and the
Paperwork Reduction Act discussion above, contractors will require only
a minimal amount of time (three minutes per respondent) to complete the
clause. Therefore, to the extent that this does result in some
contractor-incurred costs, EPA anticipates that these will be de
minimus. Further, because the clause will only be applicable over the
simplified acquisition threshold ($100,000), this final rule will not
have an impact on a substantial number of small entities. It is noted
that, historically, small businesses do not receive a large percentage
of EPA contracts which exceed the simplified acquisition threshold
($100,000). In fiscal year 1999, 137 small businesses received EPA
awards over $100,000. This represents only 17.5% of the agency's total
contract awards which exceeded $10,000 in fiscal year 1999. It is
anticipated that this percentage will remain the same or be minimally
higher for fiscal year 2000.
E. Unfunded Mandates
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess
their regulatory actions on State, local, and Tribal governments, and
the private sector. This final rule does not contain a Federal mandate
that may result in expenditures of $100 million or more for State,
local, and Tribal governments, in aggregate, or the private sector in
any one year. Any private sector costs for this action relate to
paperwork requirements and associated expenditures that are far below
the level established for UMRA applicability. Thus, the rule is not
subject to the requirements of sections 202 and 205 of the UMRA.
F. Executive Order 13045
Executive Order 13045, Protection of Children from Environmental
Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to
any rule that: (1) Is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it is not
an economically significant rule as defined by Executive Order 12866,
and because it does not involve decisions on environmental health or
safety risks that have a disproportionate effect on children.
G. Executive Order 13084
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian Tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay for the direct
compliance costs incurred by the Tribal governments, or EPA consults
with those governments. If EPA complies by consulting, Executive Order
13084 requires EPA to provide to the OMB, in a separately identified
section of the preamble to the rule, a description of the extent of
EPA's prior consultation with representatives of affected Tribal
governments, a summary of the nature of their concerns, and a statement
supporting the need to issue the regulation. In addition, Executive
Order 13084 requires EPA to develop an effective process permitting
elected and other representatives of Indian tribal governments ``to
provide meaningful and timely input in the development of regulatory
policies on matters that significantly or uniquely affect their
communities.''
This rule does not significantly or uniquely affect the communities
of Indian Tribal governments. Accordingly, the requirements of section
3(b) of Executive Order 13084 do not apply to this rule.
H. National Technology Transfer and Advancement Act of 1995
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note), directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
This rule does not involve technical standards. Therefore, EPA did
not consider the use of any voluntary consensus standards.
I. Executive Order 13132
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that 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.''
Under section 6 of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law, unless
the Agency consults with State and local officials early in the process
of developing the proposed regulation.
This final rule does not have federalism implications. 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
[[Page 75866]]
levels of government, as specified in Executive Order 13132. This rule
amends the EPA Acquisition Regulation relating to internal agency
procedures addressing business ownership categories of contractors who
receive EPA awards. Thus, the requirements of section 6 of the
Executive Order do not apply to this rule.
J. Submission to Congress and the General Accounting Office
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of Congress and to the Comptroller General of the United
States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Authority: The provisions of this regulation are issued under 5
U.S.C. 301; section 205(c), 63 Stat. 390, as amended 40 U.S.C.
486(c).
List of Subjects in 48 CFR Parts 1504 and 1552
Government procurement.
Therefore, 48 CFR Chapter 15 is amended as set forth below:
1. The authority citation for Parts 1504 and 1552 is revised to
read as follows:
Authority: 5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended,
40 U.S.C. 486(c); 41 U.S.C. 418b.
2. Part 1504 is amended by adding subpart 1504.6 as follows:
PART 1504--ADMINISTRATIVE MATTERS
Subpart 1504.6--Contract Reporting
1504.670 Business Ownership Representation.
Contracting officers shall insert the clause at 1552.204-70,
Business Ownership Representation, in solicitations and contracts with
an estimated dollar value greater than the simplified acquisition
threshold. Completion of the clause by the successful awardee is
voluntary.
3. Subpart 1552.2 is amended by adding 1552.204-70 as follows:
1552.204-70 Business Ownership Representation.
As prescribed in 1504.670, insert the following clause in
solicitations and contracts:
Business Ownership Representation (JAN 2001)
The successful awardee should check one or more of the categories
below that represents its business ownership and return this
information to the contracting officer within ten (10) calendar days
after award. Completion of this clause by the successful awardee is
voluntary.
``Ownership,'' as used in this clause, means: (a) At least 51
percent of the concern is owned by one or more individuals from a
category listed below; or, in the case of any publicly owned business,
at least 51 percent of the stock of the concern is owned by one or more
such individuals; and (b) The management and daily business operations
of the concern are controlled by one or more such individuals.
Ethnicity
[ ] Hispanic or Latino.
[ ] Not Hispanic or Latino.
Race
[ ] American Indian, Eskimo, or Aleut.
[ ] Asian or Pacific Islander.
[ ] Black or African American.
[ ] White.
(End of clause)
Dated: November 29, 2000.
Judy S. Davis,
Acting Director, Office of Acquisition Management.
[FR Doc. 00-30911 Filed 12-4-00; 8:45 am]
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