02-2509. Acquisition Regulation: Empower Procurement Officials and Miscellaneous Technical Amendments

AGENCY:

Environmental Protection Agency.

ACTION:

Direct final rule.

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: [phone].

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.).

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, 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.

§ 1515.404

[Amended]

6. Section 1515.404-474 is amended by removing the term “CCO” and adding in its place “SCM”.

§ 1517.204

[Amended]

7. Section 1517.204 is amended by removing the term “CCO” and adding in its place “SCM”.

§ 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) * * *

Contractor targets	NAICS industry subsector(s)	Dollars	Percentage of total contract value
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.