[Federal Register Volume 81, Number 122 (Friday, June 24, 2016)]
[Rules and Regulations]
[Pages 41235-41238]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-15002]


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ENVIRONMENTAL PROTECTION AGENCY

48 CFR Parts 1536 and 1537

[EPA-HQ-OARM-2013-0370; FRL-9946-78-OARM]


Acquistion Regulation: Update to Construction and Architect-
Engineer and Key Personnel Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is issuing a final 
rule amending the EPA Acquisition Regulation (EPAAR) to remove the 
evaluation of contracting performance and to incorporate flexibility to 
identify the required number of days of key

[[Page 41236]]

personnel commitment during the early stages of contractor performance 
under the Key Personnel clause. This final rule also provides for minor 
edits of an administrative nature.

DATES: This final rule is effective on July 25, 2016.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OARM-2013-0370. All documents in the docket are 
listed on the http://www.regulations.gov Web site. 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, is not placed on the 
Internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available electronically 
through http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Holly Hubbell, Policy, Training, and 
Oversight Division, Acquisition Policy and Training Service Center 
(3802R), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., 
Washington, DC 20460; telephone number: 202-564-1091; email address: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Executive Summary

    This rule incorporates an existing class deviation and makes minor 
administrative changes to EPAAR parts 1536 and 1537. This 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; and (6) removes ``CFR 48'' from 1537.110. These changes 
do not incur any costs, but provide flexibility regarding key personnel 
commitments.

II. General Information

A. Does this action apply to me?

    The EPAAR applies to contractors who have a construction, 
architect-engineer, or service contract with EPA.

B. What action is the agency taking?

    The rule removes 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 rule also provides for minor edits 
of an administrative nature.

III. Background

    EPA published a proposed rule in the Federal Register at 79 FR 
47044, August 12, 2014, 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 EPAAR Part 1537. A previous review of the 
EPAAR, 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 provides 
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. The rule also provides minor 
administrative edits in the EPAAR sections identified. No comments were 
received on the previously published proposed rule.

IV. Statutory and Executive Orders Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory 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.

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

[[Page 41237]]

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 final 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 final 
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 final 
rulemaking 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 rulemaking does not involve human 
health or environmental effects.

K. Congressional Review

    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 rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. Section 804 exempts from section 801 the following types 
of rules (1) rules of particular applicability; (2) rules relating to 
agency management or personnel; and (3) rules of agency organization, 
procedure, or practice that do not substantially affect the rights or 
obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required 
to submit a rule report regarding this action under section 801 because 
this is a rule of agency organization, procedure, or practice that does 
not substantially affect the rights or obligations of non-agency 
parties.

List of Subjects in 48 CFR Parts 1536 and 1537

    Environmental protection, Government procurement.

    Dated: June 2, 2016.
Denise Polk,
Acting Director, Office of Acquisition Management.

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

PART 1536--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

0
1. The authority citation for part 1536 is revised to read as follows:

    Authority:  5 U.S.C. 301 and 41 U.S.C. 1707.


1536.201  [Removed]

0
2. Remove section 1536.201.


1536.209  [Amended]

0
3. Amend section 1536.209, paragraph (c), by removing the text ``CCO'' 
and ``RAD'' and adding the words ``Chief of the Contracting Office'', 
in their places.


1536.521  [Amended]

0
4. Amend section 1536.521 by removing the words ``small purchase'' and 
adding the words ``simplified acquisition threshold'', two times.

PART 1537--SERVICE CONTRACTING

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

    Authority:  5 U.S.C. 301 and 41 U.S.C. 1707.

0
6. Amend section 1537.110 by revising paragraphs (b), (c), and (f) 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 at 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

[[Page 41238]]

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 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 48 
CFR 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.
* * * * *
    (f) To ensure that Agency contracts are administered so as to avoid 
creating an improper employer-employee relationship, contracting 
officers shall insert the contract clause at 1552.237-76, ``Government-
Contractor Relations'', in all solicitations and contracts for non-
personal services that exceed the simplified acquisition threshold.

[FR Doc. 2016-15002 Filed 6-23-16; 8:45 am]
 BILLING CODE 6560-50-P