[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]]



----------------------------------------------------------------------------------------------------------------
                                                                                                   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
----------------------------------------------------------------------------------------------------------------

* * * * *

    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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