[Federal Register Volume 79, Number 155 (Tuesday, August 12, 2014)]
[Proposed Rules]
[Pages 47044-47047]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-19028]


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ENVIRONMENTAL PROTECTION AGENCY

48 CFR Parts 1536 and 1537

[EPA-HQ-OARM-2013-0370; FRL-9915-11-OARM]


Acquisition Regulation; Update to Construction and Architect-
Engineer and Key Personnel Requirements

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) proposes to amend 
the EPA Acquisition Regulation (EPAAR) to remove the evaluation of 
contracting performance and incorporate flexibility to identify the 
required number of days of key personnel commitment during the early 
stages of contractor performance under the Key Personnel clause. The 
proposed rule also provides for minor edits of an administrative 
nature.

DATES: Comments must be received on or before September 11, 2014.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OARM-2013-0370, by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     Email: [email protected]
     Mail: EPA-HQ-OARM-2013-0370, OEI Docket, Environmental 
Protection Agency, 2822T, 1200 Pennsylvania Ave. NW., Washington, DC 
20460. Please include a total of three (3) copies.
     Hand Delivery: EPA Docket Center-Attention OEI Docket, EPA 
West, Room B102, 1301 Constitution Ave. NW., Washington, DC 20004. Such 
deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OARM-
2013-0370. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ''anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through www.regulations.gov, your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket, and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment, and with any disk or CD-ROM you submit. If EPA cannot read 
your comment due to technical difficulties, and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket, visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov, or in hard copy at the Office of Environmental 
Information (OEI) Docket, EPA/DC, EPA West, Room 3334, 1301 
Constitution Ave. NW., Washington, DC. The Public Reading Room is open 
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number

[[Page 47045]]

for the Public Reading Room is (202) 566-1744, and the telephone number 
for the EPA Docket Center is (202) 566-1752. This Docket Facility is 
open from 8:30 a.m. to 4:30 p.m. Monday through Friday, excluding legal 
holidays.

FOR FURTHER INFORMATION CONTACT: Daniel Humphries, Policy, Training, 
and Oversight Division, Office of Acquisition Management (3802R), 
Environmental Protection Agency, 1200 Pennsylvania Ave. NW., 
Washington, DC 20460; telephone number: (202) 564-4377; email address: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

    1. Submitting CBI. Do not submit this information to EPA through 
www.regulations.gov or email. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as 
CBI, and then identify electronically within the disk or CD ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR Part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree, suggest alternatives, 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

II. Background

    EPA is updating the EPAAR to remove section 1536.201 on the 
evaluation of contractor performance under construction contracts and 
the incorporation of flexibilities provided by a class deviation to the 
Key Personnel requirements under part 1537. Upon review of the EPAAR, 
it was determined that the EPAAR requirement for the evaluation of 
construction contracts should be removed as it was superseded by FAR 
42.1502. Additionally, under EPAAR 1552.237-72, EPA proposes to provide 
contracting officers with the flexibility to identify the required 
number of days of key personnel commitment during the early stages of 
contractor performance. The length of time will be based on the 
requirements of individual acquisitions when continued assignment is 
essential to the successful implementation of the program's mission. 
Contracting officers may include a different number of days in excess 
of the ninety (90) days included in the clause, if approved at one 
level above the Contracting Officer. And finally, the proposed rule 
provides minor administrative edits in the EPAAR sections identified.

III. Proposed Rule

    This proposed rule includes the following content changes: (1) 
Removes 1536.201 Evaluation of contracting performance. (2) Provides 
administrative updates and adds Chief of the Contracting Office (CCO) 
to 1536.209(c). (3) Under 1536.521, updates the term ``small 
purchases'' with ``simplified acquisition threshold.'' (4) Under 
1537.110(b) the term ``contracting officer's technical 
representative(s)'' is replaced by ``Contracting Officer's 
Representative(s).'' (5) Amends 1537.110(c) to incorporate the 
flexibilities provided by a class deviation to the Key Personnel 
requirements. (6) Remove ``CFR 48'' from 1537.110.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and 
therefore, not subject to review under the EO.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
No information is collected under this action.

C. 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 Regulatory Flexibility Act 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 this 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 this rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This action 
revises a current EPAAR provision and does not impose requirements 
involving capital investment, implementing procedures, or record 
keeping. This rule will not have a significant economic impact on small 
entities.

D. 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 the 
effects of their regulatory actions on State, Local, and Tribal 
governments and the private sector.
    This rule contains no Federal mandates (under the regulatory 
provisions of the Title II of the UMRA) for State, Local, and Tribal 
governments or the private sector. The rule imposes no enforceable duty 
on any State, Local or Tribal governments or the private sector. Thus, 
the rule is not subject to the requirements of sections 202 and 205 of 
the UMRA.

[[Page 47046]]

E. Executive Order 13132: Federalism

    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.''
    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.

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

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This rule does not have 
tribal implications as specified in Executive Order 13175.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    Executive Order 13045, entitled ``Protection of Children from 
Environmental Health 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 12886, and (2) concerns an 
environmental health or safety risk that may have a proportionate 
effect on children. 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.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This proposed rule is not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution or Use'' (66 FR 28335, May 22, 2001), because it 
is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act of 1995 (NTTAA)

    Section 12(d) (15 U.S.C. 272 note) of NTTA, Public Law 104-113, 
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 NTTA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This proposed rulemaking does not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. This proposed rulemaking does not involve human health or 
environmental effects.

List of Subjects in 48 CFR Parts 1536 and 1537

    Environmental protection, Government procurement.

    Dated: August 5, 2014.
John R. Bashista,
Director, Office of Acquisition Management.

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

PART 1536--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

0
1. The authority citation for part 1536 continues 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.


1536.201   [Removed]

0
2. Remove 536.201.


1536.209   [Amended]

0
3. Amend 1536.209, paragraph (c), by removing the acronyms ``CCO'' and 
``RAD'' and adding, in their place, the words ``Chief of the 
Contracting Office''.
0
4. Revise 1536.521 to read as follows:


1536.521   Specifications and drawings for construction.

    The Contracting Officer shall insert the clause at 1552.236-70, 
Samples and Certificates, in solicitations and contracts when a fixed 
price construction contract is expected to exceed the simplified 
acquisition threshold. The clause may be inserted in solicitations and 
contracts when the contract is expected to be within the simplified 
acquisition threshold.

PART 1537--SERVICE CONTRACTING

0
5. The authority citation for part 1537 continues to read as follows:

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

0
6. Amend 1537.110 by revising paragraphs (b) and (c) and, in paragraph 
(f), by removing the phrase ``48 CFR'' to read as follows:


1537.110   Solicitation provisions and contract clauses.

* * * * *
    (b) The Contracting Officer shall insert a clause substantially the 
same as the clause in 1552.237-71, Technical Direction, in 
solicitations and contracts where the Contracting Officer intends to 
delegate authority to issue technical direction to the Contracting 
Officer's Representative(s).
    (c) The Contracting Officer shall insert the clause at 1552.237-72, 
Key Personnel, in solicitations and contracts when it is necessary for 
contract performance to identify Contractor key personnel. Contracting 
Officers have the flexibility to identify the required number of days 
of key personnel commitment during the early stages of

[[Page 47047]]

contractor performance. The length of time will be based on the 
requirements of individual acquisitions when continued assignment is 
essential to the successful implementation of the program's mission. 
Therefore, Contracting Officers may use a clause substantially the same 
as in EPAAR 1552.237-72, regarding substitution of key personnel. 
Contracting Officers may include a different number of days in excess 
of the ninety (90) days included in this clause, if approved at one 
level above the Contracting Officer.
* * * * *
[FR Doc. 2014-19028 Filed 8-11-14; 8:45 am]
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