[Federal Register Volume 65, Number 97 (Thursday, May 18, 2000)]
[Rules and Regulations]
[Pages 31498-31500]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-12022]


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ENVIRONMENTAL PROTECTION AGENCY

48 CFR Parts 1516 and 1552

[FRL-6606-6]
RIN 2030-AA74


Acquisition Regulation: Award Fee

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action on amending the EPA 
Acquisition Regulation (EPAAR) to comport with changes made to the 
Federal Acquisition Regulation (FAR) in Federal Acquisition Circular 
(FAC) 97-15 dated December 27, 1999 (FAR Case 98-017). The changes to 
the FAR were made to implement the rulings of the United States Court 
of Appeals and the United States Court of Federal Claims that the 
Contracts Disputes Act applies to all disputes arising under Government 
contracts, unless a more specific statute provides for other remedies.

DATES: This rule is effective on August 16, 2000, without further 
notice, unless EPA receives adverse comments by June 19, 2000. 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: Written comments should be submitted to the contact listed 
below at the following address: U.S. Environmental Protection Agency, 
Office of Acquisition Management (3802R), Ariel Rios Building, 1200 
Pennsylvania Avenue, NW, Washington, D.C. 20460. Comments and data may 
also be submitted electronically by sending electronic mail (e-mail) 
to: [email protected]. Electronic comments must be submitted as an 
ASCII file avoiding the use of special characters and any form of 
encryption. Comments and data will also be accepted on disks in Corel 
WordPerfect format or ASCII file format. No confidential business 
information (CBI) should be submitted through e-mail. Electronic 
comments on this rule may be filed on-line at many Federal Depository 
Libraries.

FOR FURTHER INFORMATION CONTACT: Jean Rellins, U.S. EPA, Office of 
Acquisition Management, (3802R), Ariel Rios Building, 1200 Pennsylvania 
Avenue, NW, Washington, DC 20460, Telephone: (202) 564-4434.

SUPPLEMENTARY INFORMATION:

A. Background

    Why is EPA utilizing a direct final rule to revise an EPAAR clause? 
Federal Acquisition Circular 97-15 amended the FAR to implement the 
rulings of the United States Court of Appeals and the United States 
Court of Federal Claims (Burnside-Ott case) that the Contract Disputes 
Act applies to all disputes arising under Government contracts, unless 
a more specific statute provides for other remedies. This direct final 
rule is being published without prior proposal because we view this as 
a non-controversial change to the EPAAR intended to make the EPAAR 
consistent with the FAR. We do not anticipate any adverse comments. 
This rule will be effective on August 16, 2000, without further notice 
unless we receive adverse comments by June 19, 2000. If EPA receives 
adverse comments, we will,

[[Page 31499]]

before the rule's effective date, publish a timely withdrawal in the 
Federal Register informing the public that the rule will not take 
effect. We also will publish a notice of proposed rulemaking in a 
future edition of the Federal Register. We will address the comments on 
the direct final rule as part of that proposed rulemaking.

B. Executive Order 12866

    This direct final rule 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 direct 
final 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

    The EPA certifies that this direct final rule does not exert a 
significant economic impact on a substantial number of small entities. 
The requirements to contractors under the rule impose no reporting, 
record keeping, or any compliance costs.

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 direct 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 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 E.O. 13045 because it is not an 
economically significant rule as defined by E.O. 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 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 direct 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 levels of 
government, as specified in Executive Order 13132. This direct final 
rule merely changes the EPAAR to be consistent with the FAR. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
rule.

H. Executive Order 13084

    Under E.O. 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, E.O. 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, E.O. 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 E.O. 13084 do not apply to this rule.

I. 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 impracticable. 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.

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

[[Page 31500]]

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).

    Accordingly, under the authority of 5 U.S.C. 301; Sec. 205(c), 63 
Stat. 390, as amended, 40 U.S.C. 486(c), 48 CFR Chapter 15 is amended 
as follows:

List of Subjects in 48 CFR Part 1516 and 1552

    Government procurement.

    1. The authority citation for part 1516 continues to read as 
follows:

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 
486(c).


    2. Section 1516.405 is amended by revising paragraph (a) as 
follows:


1516.405  Contract clauses.

    (a) The Contracting Officer shall insert the clause at 1552.216-70, 
Award fee (May 2000), in solicitations and contracts where a cost-plus-
award-fee contract is contemplated.
* * * * *

    3. The authority citation for part 1552 continues to read as 
follows:

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 
486(c).

    4. Section 1552.216-70 is amended by revising the prescription date 
from (SEPT 1995) to (May 2000), and revising paragraph (b) to read as 
follows:


1552.216-70  Award fee.

* * * * *
    (b) Award fee determinations made by the Government under this 
contract are unilaterally determined by the Fee Determination Official 
(FDO). The amount of the award fee to be paid is determined by the 
Government's judgmental evaluation of the contractor's performance in 
terms of the criteria stated in the contract. This determination and 
the methodology for determining the award fee are unilateral decisions 
made solely at the discretion of the Government.
* * * * *

    Dated: April 28, 2000.
Betty L. Bailey,
Director, Office of Acquisition Management.
[FR Doc. 00-12022 Filed 5-17-00; 8:45 am]
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