[Federal Register Volume 67, Number 23 (Monday, February 4, 2002)]
[Rules and Regulations]
[Pages 5070-5073]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-2509]
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ENVIRONMENTAL PROTECTION AGENCY
48 CFR Parts 1501, 1502, 1515, 1517, 1536 and 1552
[FRL 7128-7]
Acquisition Regulation: Empower Procurement Officials and
Miscellaneous Technical Amendments
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is issuing this rule
to amend the EPA Acquisition Regulation (EPAAR) to eliminate higher
level reviews (in certain situations) which may delay timely service to
customers and which are unnecessary given the fact that the qualified
individuals most familiar with a contracting action should have the
authority and responsibility for making decisions relating to that
action. In addition, certain technical amendments are being made to add
procedures for class deviations, to revise definitions, and to clarify
regulations.
DATES: This rule is effective on May 6, 2002, without further notice,
unless EPA receives adverse comments by March 6, 2002. If we receive
adverse comments, we will, before the rule's effective date, publish a
timely withdrawal in the Federal Register informing the public that
this rule will not take effect.
ADDRESSES: Comments may be submitted to: Larry Wyborski, U.S.
Environmental Protection Agency, Office of Acquisition Management, Mail
Code 3802R, 1200 Pennsylvania Avenue, NW, Ariel Rios Building,
Washington, DC 20460.
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
EPA's Office of Acquisition Management conducted an internal
assessment of its organization and determined that in some situations
there were too many levels of review required prior to making contract
awards and other contract-related decisions. Consequently, steps were
taken to revise internal policies, including issuance of an EPAAR class
deviation dated May 30, 2001, to eliminate certain higher level reviews
and give authority and responsibility for making decisions relating to
contract actions to the qualified individuals most familiar with the
contracting action (i.e., empowerment.) This rule incorporates the
EPAAR class deviation dated May 30, 2001, which made the necessary
empowerment changes to the EPAAR on an interim basis. This rule is
being issued as a direct final rule because the changes being made are
not considered controversial and adverse comments are not expected.
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.).
[[Page 5071]]
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. This
rule streamlines agency internal operating procedures and will,
therefore, not have a significant economic 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 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 risk.
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'' are 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 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 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.''
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.
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 when applicable. 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,
[[Page 5072]]
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 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. Executive Order 13211
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355 (May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866.
K. 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 Parts 1501, 1502, 1515, 1517, 1536 and
1552
Government procurement.
Therefore, 48 CFR chapter 15 is amended as set forth below:
1. The authority citation for parts 1501, 1502, 1515, 1517, 1536
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); and 41 U.S.C. 418b.
2. Section 1501.404 is added to Subpart 1501.4 to read as follows:
1501.404 Class deviations.
Requests for class deviations to the FAR and the EPAAR shall be
submitted to the HCA for processing in accordance with FAR 1.404 and
this section. Requests shall include the same type of information
prescribed in 1501.403 for individual deviations.
3. Section 1501.602-3 is amended by revising paragraph (b) to read
as follows:
1501.602-3 Ratification of unauthorized commitments.
* * * * *
(b)(1) Ratification Approval. The Chief of the Contracting Office
(CCO) is delegated authority to be the ratifying official. In order to
act as the ratifying official, a CCO must have delegated contracting
officer authority. A CCO cannot approve a ratification if he/she acted
as a contracting officer in preparing the determination and findings
required under paragraph (c)(3) of this section.
(2) The CCOs defined in 1502.100 for purposes of ratification
authority only must meet the following criteria:
(i) Must possess a contracting officer's warrant and be in the 1102
job series;
(ii) Are prohibited from re-delegating their ratification
authority;
(iii) Must submit copies of ratification actions to the cognizant
Office of Acquisition Management Division Director at Headquarters; and
(iv) As with other ratifying officials, must abide by the other
limitations on ratification of unauthorized commitments set forth in
FAR 1.602-3(c) and the EPAAR.
* * * * *
4. Section 1502.100 is revised to read as follows:
1502.100 Definitions.
Chief of the Contracting Office (CCO) means the Office of
Acquisition Management Division Directors at Headquarters, Research
Triangle Park and Cincinnati. For purposes of ratification authority
only, CCO is also defined as Regional Contracting Officer Supervisors
and Office of Acquisition Management Service Center Managers. (See
1501.602-3(b)(2) for the criteria for this ratification authority).
Head of the Contracting Activity (HCA) means the Director, Office
of Acquisition Management.
Senior Procurement Executive (SPE) means the Director, Office of
Acquisition Management.
5. Section 1515.303 is revised to read as follows:
1515.303 Responsibilities.
The Source Selection Authority (SSA) is established as follows:
(a) Acquisitions having a potential value of $25,000,000 or more:
Service Center Manager (SCM). This authority is not redelegable.
(b) Acquisitions having a potential value of less than $25,000,000,
but more than $10,000,000: SCM, who has the authority to redelegate SSA
authority to a warranted 1102. If redelegated, review by another
warranted 1102 designated by the SCM is also required. A Regional
Contracting Officer Supervisor may act as the SSA, as determined on a
case-by-case basis, by the Director, Superfund/RCRA Regional
Procurement Operations Division (SRRPOD).
(c) Acquisitions having a potential value of $10,000,000 or less:
The contracting officer.
Sec. 1515.404 [Amended]
6. Section 1515.404-474 is amended by removing the term ``CCO'' and
adding in its place ``SCM''.
Sec. 1517.204 [Amended]
7. Section 1517.204 is amended by removing the term ``CCO'' and
adding in its place ``SCM''.
Sec. 1536.602 [Amended]
8. Section 1536.602-2 is amended in paragraph (b) by removing the
term ``Chief of the Contracting Office (CCO)'' and adding in its place
``Service Center Manager (SCM)''.
9. Section 1552.211-79 is amended by revising paragraph (b)(3) to
read as follows:
1552.211-79 Compliance with EPA Policies for Information Resources
Management.
* * * * *
(b) * * *
(3) EPA Computing and Telecommunications Services. The
Enterprise Technology Services Division (ETSD) Operational
Directives Manual contains procedural information about the
operation of the Agency's computing and telecommunications services.
Contractors performing work for the Agency's National Computer
Center or those who are developing systems which will be operating
on the Agency's national platforms must comply with procedures
established in the Manual. (This document may be found at: http://basin.rtpnc.epa.gov/etsd/directives.nsf>).
* * * * *
10. Section 1552.219-73 is amended by revising the chart in
paragraph (a) to read as follows:
1552.219-73 Small Disadvantaged Business Targets.
* * * * *
(a) * * *
[[Page 5073]]
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Percentage of
Contractor targets NAICS industry subsector(s) Dollars total contract
value
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Total Prime Contractor Targets (including
joint venture partners and team members)
Total Subcontractor Targets
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* * * * *
11. Section 1552.232-73 is amended by revising paragraph (b)(2) as
follows:
1552.232-73 Payments--fixed rate services contract.
* * * * *
(b) * * *
(2) Subcontracted effort may be included in the fixed hourly
rates discussed in paragraph (a)(l) of this clause and will be
reimbursed as discussed in that paragraph. Otherwise, the cost of
subcontracts that are authorized under the subcontracts clause of
this contract shall be reimbursable costs under this clause provided
that the costs are consistent with paragraph (b)(3) of this clause.
Reimbursable costs in connection with subcontracts shall be payable
to subcontractors consistent with FAR 32.504 in the same manner as
for services purchased directly for the contract under paragraph
(a)(1) of this clause. Reimbursable costs shall not include any
costs arising from the letting, administration, or supervision of
performance of the subcontract, if the costs are included in the
hourly rates payable under paragraph (a)(l) of this clause.
* * * * *
Dated: January 25, 2002.
Judy S. Davis,
Director, Office of Acquisition Management.
[FR Doc. 02-2509 Filed 2-1-02; 8:45 am]
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