[Federal Register Volume 66, Number 190 (Monday, October 1, 2001)]
[Rules and Regulations]
[Pages 49866-49867]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24352]


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DEPARTMENT OF AGRICULTURE

Office of Procurement and Property Management

48 CFR Part 442

[AGAR Case 99-02]
RIN 0599-AA08


Agriculture Acquisition Regulation; Designation and Mandatory Use 
of Contractor Performance System

AGENCY: Office of Procurement and Property Management, USDA.

ACTION: Final rule.

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SUMMARY: This document amends the Department of Agriculture's (USDA) 
Agriculture Acquisition Regulation (AGAR) to establish the National 
Institutes of Health (NIH) Contractor Performance System as the single 
USDA-wide automated performance evaluation system. AGAR regulations are 
amended to identify that system and specify its mandatory use.

DATES: This rule is effective November 30, 2001.

FOR FURTHER INFORMATION CONTACT: Patrice K. Honda, (202) 720-8924.

SUPPLEMENTARY INFORMATION:

I. Background
II. Procedural Requirements
    A. Executive Orders Nos. 12866 and 12988
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act
    D. Small Business Regulatory Enforcement Fairness Act
    E. Unfunded Mandates Reform Act
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments

I. Background

    The AGAR implements the Federal Acquisition Regulation (FAR) (48 
CFR chapter 1) where further implementation is needed, and supplements 
the FAR where coverage is needed for subject matter not covered by the 
FAR. AGAR section 442.1502 currently provides that the heads of the 
contracting activities are responsible for establishing past 
performance evaluation procedures and systems as required by FAR 
sections 42.1502 and 42.1503. USDA has identified a single automated 
performance evaluation system (the National Institutes of Health 
Contractor Performance System (hereinafter ``NIH CPS'')) to be used 
USDA-wide and this rule modifies AGAR section 442.1502 to identify that 
system and specify its mandatory use by all USDA contracting 
activities.
    In a Notice of Proposed Rulemaking (65 FR 54986, September 12, 
2000), USDA announced that this proposed amendment to the AGAR was 
available for public review and comment during a 60 day comment period. 
One commenter, an employee of Department of Agriculture, submitted 
comments to USDA on the proposed rule. The commenter objected to USDA 
making the NIH CPS system mandatory. The commenter objected that the 
system was lengthy, complicated, cumbersome, costly, not user-friendly, 
and that local training was not provided. The commenter suggested that 
USDA develop its own system. While the employee's agency declined to 
support the position of the commenter, we have considered the comment 
as from an individual. After careful consideration, USDA has determined 
not to change the proposed rule. The NIH CPS provides a single uniform 
system for evaluating contractor performance, and because of the number 
of Federal agencies using the system, it has a very broad database 
available for such evaluations. Design and development of a USDA system 
would be costly and would not provide the broad database of information 
afforded by the NIH. In this rulemaking document, USDA is finalizing 
the proposed amendment to the AGAR.

II. Procedural Requirements

A. Executive Orders Nos. 12866 and 12988

    USDA prepared a work plan for this regulation and submitted it to 
the Office of Management and Budget (OMB) pursuant to Executive Order 
No. 12866. OMB determined that the rule was not significant for the 
purposes of Executive Order No. 12866. Therefore, the rule has not been 
reviewed by OMB. USDA has reviewed this rule in accordance with 
Executive Order No. 12988, Civil Justice Reform. The rule meets the 
applicable standards in section 3 of Executive Order No. 12988.

B. Regulatory Flexibility Act

    USDA reviewed this rule under the Regulatory Flexibility Act, 5 
U.S.C. 601-611, which requires preparation of a regulatory flexibility 
analysis for any rule which is likely to have significant economic 
impact on a substantial number of small entities. USDA certifies that 
this rule will not have a significant economic effect on a substantial 
number of small entities, and, therefore, no regulatory flexibility 
analysis has been prepared. USDA solicited comments from small entities 
concerning parts affected by the rule in the Notice of Proposed 
Rulemaking publicizing the proposed rule for comment (65 FR 54986, 
September 12, 2000). No comments from small entities were received.

C. Paperwork Reduction Act

    No information collection or recordkeeping requirements are imposed 
on the public by this rule. Accordingly no OMB clearance is required by 
the Paperwork Reduction Act, 44 U.S.C. Chapter 35 or OMB's implementing 
regulations at 5 CFR part 1320.

D. Small Business Regulatory Enforcement Fairness Act

    A report on this rule has been submitted to each House of Congress 
and the Comptroller General in accordance with the Small Business 
Regulatory Enforcement Fairness Act of 1996. 5 U.S.C. 801-808. This 
rule is not a major rule for purposes of the Act.

E. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 
U.S.C. 1531-1538, establishes requirements for Federal agencies to 
assess the effects of their regulatory actions on State, local, and 
tribal governments and the private sector. USDA has determined that 
this rule does not contain a Federal mandate. USDA has also determined 
that this rule would not significantly or uniquely affect small 
governments. Accordingly, the rule is not subject to the requirements 
of Title II of UMRA.

F. Executive Order 13132: Federalism

    Executive Order 13132, Federalism (64 FR 43255, August 10, 1999), 
imposes requirements 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.''
    USDA has determined that 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. 
The

[[Page 49867]]

rule will not impose substantial costs on States and localities. 
Accordingly, this rule is not subject to the procedural requirements of 
Executive Order 13132 for regulatory policies having federalism 
implications.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, Consultation and Coordination with Indian 
Tribal Governments (65 FR 67249, November 9, 2000), imposes 
requirements in the development of regulatory policies that have tribal 
implications. Executive Order 13175 defines ``policies that have tribal 
implications'' as those having ``substantial direct effects on one or 
more Indian tribes, on the relationship between the Federal Government 
and Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes.'' USDA has determined 
that this rule does have tribal implications and, therefore, the 
consultation and coordination requirements of Executive Order 13175 do 
not apply to this rule.

List of Subjects in 48 CFR Part 442

    Acquisition regulations, Government contracts, Government 
procurement, Procurement.


    For the reasons set out in the preamble, the Office of Procurement 
and Property Management amends 48 CFR part 442 as set forth below:

PART 442--CONTRACT ADMINISTRATION

    1. The authority citation for part 442 continues to read as 
follows:

    Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).


    2. Revise section 442.1502 to read as follows:


442.1502  Policy.

    The Contractor Performance System (CPS), developed by the National 
Institutes of Health, is designated as the single USDA-wide system for 
maintaining contractor performance/evaluation information. Use of the 
CPS is mandatory. As a minimum, the CPS shall be accessed for 
contractor past performance information as part of proposal evaluation 
in accordance with FAR subpart 15.3, and information resulting from the 
evaluation of contractor performance in accordance with FAR subpart 
42.15 shall be entered into and maintained in this system. The CPS is a 
part of the USDA Acquisition Toolkit which can be accessed from the 
USDA Procurement Homepage at 
http://www.usda.gov/procurement/.

    Done at Washington, DC, this 24th day of September, 2001.
W.R. Ashworth,
Director, Office of Procurement and Property Management.
[FR Doc. 01-24352 Filed 9-28-01; 8:45 am]
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