[Federal Register Volume 66, Number 147 (Tuesday, July 31, 2001)]
[Rules and Regulations]
[Pages 39456-39458]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-18885]
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ENVIRONMENTAL PROTECTION AGENCY
48 CFR Part 1516
[FRL-7020-5]
Acquisition Regulation: Type of Contracts
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is issuing this rule
to amend the EPA Acquisition Regulation (EPAAR) to provide for the use,
in certain circumstances and under certain conditions, of a letter
contract known as a Notice to Proceed (NTP), to carry out emergency
response actions as authorized under sections 104(a)(1) and (h) of the
Comprehensive Environmental Response, Compensation and Liability Act of
1980 (CERCLA), as amended by the Superfund Amendments and
Reauthorization Act of 1986; sections 311(c)(2) and (e)(1)(B) of the
Clean Water Act, as amended by the Oil Pollution Act of 1990; and the
National Oil and Hazardous Substances Pollution Contingency Plan (NCP).
DATES: An interim rule was issued and became effective on March 1,
2001. This
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final rule will become effective July 31, 2001.
FOR FURTHER INFORMATION CONTACT: Larry Wyborski, U.S. Environmental
Protection Agency, Office of Acquisition Management, Mail Code 3802R,
1200 Pennsylvania Avenue, NW., Ariel Rios Building, Washington, DC
20460. Telephone: (202) 564-4369.
SUPPLEMENTARY INFORMATION:
A. Background
An interim rule was published in the Federal Register (66 FR 12897-
12902) on March 1, 2001, providing for a 60 day comment period. The
following is the single comment received and the Agency disposition of
the comment:
Comment: Are contractors holding contracts that bar them from
providing ERRS work also prohibited from performing work in these
circumstances as well?
Response: Section 1516.603-2(d) of this rule requires that ``* * *
all actual or potential conflict of interest or other contracting
issues are resolved prior to NTP issuance.'' Therefore, the same
conflict of interest rules would apply to the circumstances outlined in
your comment.
B. Executive Order 12866
This is not a significant regulatory action for the purposes of
Executive Order 12866; therefore, no review is required by the Office
of Information and Regulatory Affairs, within the Office of Management
and Budget (OMB).
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because this rule does
not contain information collection requirements that require the
approval of OMB under the Paperwork Reduction Act of 1980 (44 U.S.C.
3501 et seq.).
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 economic 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 today's 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 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 rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. In
determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the proposed rule on small entities.'' 5 U.S.C. 603
and 604. Thus, an agency may certify that a rule will not have a
significant economic impact on a substantial number of small entities
if the rule relieves regulatory burden, or otherwise has a positive
economic effect on all of the small entities subject to the rule. Based
on a review of EPA's historical experience, over the last three fiscal
years EPA entered into only two letter contracts for the type of work
contemplated by this interim rule, each of less than $10,000.00.
Consequently, because of the emergency nature of an NTP, and the strict
conditions on its use, and based on its limited historical utilization,
it is believed that the authority provided by this interim rule will be
used on a very limited basis so that it will have little, if any,
impact on small businesses. This rule, therefore, will have no adverse
and no significant impact on small entities.
E. Unfunded Mandates Reform Act
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 interim rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and Tribal governments, in the aggregate, or the private
sector in 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.
G. 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 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 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
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distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132. Thus, the
requirements of section 6 of the Executive Order do not apply to this
rule.
H. 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 the direct compliance
costs incurred by 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 government ``to provide
meaningful and timely input in the development of regulatory policies
on matters that significantly or uniquely affect their communities.''
Today's 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.
I. National Technology Transfer and Advancement Act of 1995
EPA will use voluntary consensus standards, as directed by 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), in its
procurement activities. The NTTAA 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 rulemaking does not involve technical standards. Therefore,
EPA is not considering use of any voluntary consensus standards. EPA
welcomes comments on this aspect of the interim rulemaking, and,
specifically, invites the public to identify potentially applicable
voluntary consensus standards and to explain why such standards should
be used in this regulation.
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 rules report, which includes a copy of the rule,
to each House of the 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).
List of Subjects in 48 CFR Part 1516
Government procurement.
Therefore, under the authority of 5 U.S.C. 301; Sec. 205(c), 63
Stat. 390, as amended, 40 U.S.C. 486(c); and 41 U.S.C. 418b, the
interim rule published on March 1, 2001 (66 FR 12897) is adopted as
final without change.
Judy S. Davis,
Acting Director, Office of Acquisition Management.
[FR Doc. 01-18885 Filed 7-30-01; 8:45 am]
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