[Federal Register Volume 65, Number 245 (Wednesday, December 20, 2000)]
[Rules and Regulations]
[Pages 79781-79784]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-32030]


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ENVIRONMENTAL PROTECTION AGENCY

48 CFR Parts 1546 and 1552

[FRL-6917-2]


Acquisition Regulation: Remove Contract Quality Requirements; 
Miscellaneous Technical Amendment

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 remove contract quality requirements 
which have been superseded by requirements in the Federal Acquisition 
Regulation (FAR) and to incorporate a minor miscellaneous technical 
amendment.

EFFECTIVE DATE: This rule is effective on March 20, 2001 without 
further notice, unless EPA receives adverse comments by January 19, 
2001. 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), 1200 Pennsylvania Avenue, NW, 
Washington, DC 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: Linda Avellar, U.S. EPA, Office of 
Acquisition Management, (3802R), 1200 Pennsylvania Avenue, NW, 
Washington, D.C. 20460, Telephone: (202) 564-4356.

SUPPLEMENTARY INFORMATION:

A. Background

    Why is EPA utilizing a direct final rule to remove its contract 
quality requirements from the EPAAR? This direct final rule is being 
published without prior proposal because we view this as a non-
controversial removal of EPA contract quality requirements in the 
EPAAR. These EPAAR requirements have been superseded by regulations in 
the FAR. We do not anticipate any adverse comments. This rule will be 
effective on March 20, 2001 without further notice unless we receive 
adverse comments by January 19, 2001. If EPA receives adverse comments, 
we will, 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.
    Why is EPA removing its contract quality requirements from the 
EPAAR? Effective February 16, 1999, the FAR was amended to reflect a 
preference for voluntary consensus standards, rather than Federal or 
military specifications, in the specification of higher-level contract 
quality requirements. The new FAR clause at 52.246-11, Higher-Level 
Quality Requirement, allows Federal agencies to select a voluntary 
consensus standard as the basis for its higher-level quality 
requirements for contracts and allows tailoring of the standard to more 
effectively address specific needs or purposes. The final rule 
(published in the Federal Register at 63 FR 70289, December 18, 1998) 
revised FAR 46.202-4, 46.311, and 52.246-11. As a result of this rule, 
the EPAAR contract quality requirements described at 48 CFR 1546.2 are 
no longer needed, nor are the clauses at 1552.246-70, 1552.246-71, and 
1552.246-72.
    How is EPA changing its contract quality requirements? This direct 
final rule is being issued to remove the current contents of 48 CFR 
1546.2 and the corresponding clauses in 1552.246-70, 1552.246-71, and 
1552.246-72.
    When a contract requires compliance with higher-level quality 
standards, EPA will use the FAR clause at 52.246-11 and normally select 
ANSI/ASQC E4, Specifications and Guidelines for Environmental Data 
Collection and Environmental Technology Programs, as its contract 
quality standard. EPA may tailor the standard, as authorized by FAR 
52.246-11, to ensure that contracts conform to appropriate contract 
quality standards. In addition, the EPA contracting officer, in 
consultation with quality assurance personnel, may determine that other 
voluntary consensus standards (e.g., ISO 9001:2000, Quality Management 
Systems--Requirements) apply to a specific contract.
    Will EPA hold itself and others to the same standard as it holds 
contractors? Yes. The use of ANSI/ASQC E4 is consistent with internal 
EPA policy as defined in EPA Order 5360.1 CHG 1 (July 1998), Policy and 
Program Requirements for the Mandatory Agency-wide Quality System, 
which requires EPA organizations to develop, implement, and maintain a 
quality system that conforms to the minimum specifications of ANSI/ASQC 
E4. It is also consistent with EPA quality requirements for grantees 
and other recipients of financial assistance, which require these 
organizations to develop, implement and maintain a quality system that 
conforms to the minimum specifications of ANSI/ASQC E4.
    What is ANSI/ASQC E4 and what are its requirements? ANSI/ASQC E4 is 
an American National Standard that describes the necessary management 
and technical elements for developing and implementing a quality system 
for environmental data operations and environmental technology. This 
standard is authorized by the American National Standards Institute 
(ANSI) and was developed under ANSI rules and procedures by the 
American Society for Quality. The standard is identified in the FAR at 
46.202-4(b) as an acceptable higher-level contract quality standard, 
and FAR 52.246-11 authorizes the ``tailoring'' of the standard to adapt 
to particular situations and purposes. Copies of ANSI/ASQC E4 may be 
purchased from: ASQ Quality Press, P.O. Box 3005, Milwaukee, WI 53201-
3005, Phone: (800) 248-1946, www.asq.org
    This standard recommends using a tiered approach to a quality 
system. It recommends first documenting each organization-wide quality 
system in a

[[Page 79782]]

Quality Management Plan or Quality Manual (to address requirements of 
Part A: Management Systems of the standard) and then documenting the 
applicability of the quality system to technical activity-specific 
efforts in a Quality Assurance Project Plan or similar document (to 
address the requirements of Part B: Collection and Evaluation of 
Environmental Data of the standard). EPA has adopted this tiered 
approach for its mandatory Agency-wide Quality System.
    How will EPA ensure that contractors conform to the Standard? To 
demonstrate conformance with the standard, contractors, as required by 
the terms of a solicitation and contract, will generally provide two 
forms of documentation:
    1. Documentation of the organization quality system (usually called 
a Quality Management Plan) which should be approved prior to the 
contractor initiating environmental work, and
    2. Documentation of the application of quality assurance and 
quality control activities to technical activity-specific efforts 
(usually called a Quality Assurance Project Plan) which should be 
approved prior to the contractor initiating environmental data 
collection. Quality Assurance Project Plans may be generic (for 
contracts covering multiple projects with similar activities) or 
project/contract-specific.
    What work will be covered by the ANSI/ASQC E4 standard? This 
standard may be tailored to apply to all work involving the generation 
and use of environmental data in environmental programs. Environmental 
data are any measurements or information that describe environmental 
processes, location, or conditions; ecological or health effects and 
consequences; or the performance of environmental technology. 
Environmental data also include information collected directly from 
measurements, produced from models, or compiled from other sources such 
as data bases or the literature, and used for decision making purposes.
    This standard as tailored will also apply to the design, 
construction, and operation of environmental technology used for 
pollution or effluent control and abatement, waste treatment and 
remediation, the collection of environmental research data, and other 
related applications.
    How does the use of this contract quality standard differ from the 
current EPA contract quality requirements in the EPAAR? This standard 
is not a significant change to the contract quality requirements 
currently contained in the EPAAR at 48 CFR 1546.2. The changes can be 
summarized as follows:
     The EPAAR requirement for a Quality Assurance Program Plan 
will be replaced by the requirement for a Quality Management Plan (or 
equivalent) as described in a solicitation and contract. Both document 
an organization's quality system.
     The EPAAR requirement for a Quality Assurance Project Plan 
will remain the same but its application (whether generic, project-
specific, or contract-wide) will be defined in a solicitation and 
contract.

The content requirements for these plans, which were previously defined 
in 48 CFR 1552.246-70 and 48 CFR 1552.246-71, have been revised to be 
consistent with ANSI/ASQC E4.
    Where are the content requirements for Quality Management Plans and 
Quality Assurance Project Plans defined? EPA identifies the elements of 
a Quality Management Plan to demonstrate conformance to ANSI/ASQC E4 in 
the document, EPA Requirements for Quality Management Plans (EPA QA/R-
2). EPA defines the elements of a Quality Assurance Project Plan to 
demonstrate conformance to ANSI/ASQC E4 in the document, EPA 
Requirements for Quality Assurance Project Plans (EPA QA/R-5). Both of 
these documents tailor, as permitted by the FAR clause at 52.246-11, 
the ANSI/ASQC E4 standard to conform to EPA-specific needs and 
purposes. The use of these documents is consistent with the tiered 
approach recommended by the ANSI/ASQC E4 standard.
    Both of the above documents were released for peer review in 
October 1998 and are now available in a ``Interim Final'' version from 
the Quality Staff of the EPA Office of Environmental Information. These 
documents will be finalized on the effective date of this rule.
    Copies of these documents can be obtained by calling (202) 564-
6830, by requesting via E-mail to [email protected], or by downloading 
them from the Quality Staff website es.epa.gov/ncerqa/qa/qa_docs.html.
    What clause will be contained in EPA solicitations and contracts? 
The FAR clause at 52.246-11, and any specific tailoring, will be 
included in all applicable solicitations and contracts. This clause 
will be incorporated into applicable solicitations and contracts by the 
EPA contracting officer, after consultation with quality assurance 
personnel, based on the prescriptions at FAR 42.202-4 and FAR 46.311.

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 (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 direct final 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

[[Page 79783]]

otherwise has a positive economic effect on all of the small entities 
subject to the rule. This direct final rule removes EPA quality 
assurance regulations and therefore will have no adverse impact on 
small entities.
    Although this direct final rule will not have a significant 
economic impact on small entities, EPA has still tried to reduce the 
impact of its quality requirements on small entities by applying a 
graded approach to the implementation of these quality requirements. 
This means that managerial quality controls are applied according to 
the scope of the contract and/or the intended use of the outputs from 
the contract. While large contracts may require a contractor to develop 
comprehensive quality system documentation, smaller contracts with 
relatively less significant impacts generally only require limited 
documentation. Thus, small entities will normally only provide limited 
quality-related documentation to EPA. We have therefore concluded that 
this direct final rule and EPA's quality contract requirements will not 
have a significant economic impact on small entities.

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 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 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 removes contract quality requirements and clauses from the EPAAR. 
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 when it specifies higher-level contract quality 
requirements. The specification of contract quality requirements 
involves technical standards. As permitted by FAR 46.202-4, 46.311, and 
52.246-11, EPA generally plans to use the most current version of ANSI/
ASQC E4, a voluntary consensus standard, for this purpose. (See 
instructions above about how to obtain copies of ANSI/ASQC E4). 
However, as also authorized by the relevant FAR sections, EPA may 
decide that other voluntary consensus standards apply to specific 
contracts. Either way, EPA will be complying with the NTTAA. 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.

[[Page 79784]]

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).

    Authority: The provisions of this regulation are issued under 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.

List of Subjects in 48 CFR Parts 1546 and 1552

    Government procurement.

    Therefore, 48 CFR Chapter 15 is amended as set forth below:

PARTS 1546 AND 1552--[AMENDED]

    1. The authority citations for part 1546 and for part 1552 will 
read as follows:

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 
486(c); and 41 U.S.C. 418b.


1546.2  [Removed].

    2. Subpart 1546.2 is removed.


1552.203-70  [Amended].

    3. Section 1552.203-70 is amended by removing the text ``As 
prescribed in 1503.603'' and adding in its place the text ``As 
prescribed in 1503.670.''


1552.246-70  [Removed].

    4. Section 1552.246-70 is removed.


1552.246-71  [Removed].

    5. Section 1552.246-71 is removed.


1552.246.72  [Removed].

    6. Section 1552.246-72 is removed.

    Dated: November 30, 2000.
Judy S. Davis,
Acting Director, Office of Acquisition Management.
[FR Doc. 00-32030 Filed 12-19-00; 8:45 am]
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