[Federal Register Volume 77, Number 30 (Tuesday, February 14, 2012)]
[Rules and Regulations]
[Pages 8174-8176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-3292]
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ENVIRONMENTAL PROTECTION AGENCY
48 CFR Part 1511
[EPA-HQ-OARM-2010-0273; FRL-9630-4]
EPAAR Prescription for Work Assignments
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA will amend the EPA Acquisition Regulation (EPAAR)
prescription for the work assignment clause. This final rule provides
revised language to the prescription for the work assignment clause,
incorporating prescriptive language that provides further instructions
on the use of the related clause.
DATES: This final rule is effective February 29, 2012.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OARM-2010-0273. All documents in the docket are listed on
the 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 either electronically through
www.regulations.gov or in hard copy at the Office of Environmental
(OEI) Information 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 for the Public Reading Room is (202)
566-1744, and the telephone number for the OEI Docket is (202) 566-
1752.
FOR FURTHER INFORMATION CONTACT: Donna S. Blanding, Policy, Training,
and Oversight Division, Office of Acquisition Management (3802R),
Environmental Protection Agency, 1200 Pennsylvania Ave. NW.,
Washington, DC 20460; telephone number: 202-564-1130; fax number: 202-
565-2475; email address: [email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
Entities potentially affected by this action include firms that are
performing or will perform under contract for the EPA. This includes
firms in all industry groups.
II. Background
Recent contract file review activities revealed better guidance is
needed for EPA Contracting Officers (COs) on the work plan and work
assignment processes with regard to when a CO should provide the
expected level of service needed to the contractor.
As a result, clarifying policy is being added to the prescription
for 1511.011-74. Accordingly, the revised language incorporated into
EPAAR prescription 1511.011-74 provides the EPA contracting officer
with further instructions on the use of EPAAR clause 1552.211-74, when
administering work assignments under Cost Reimbursable type term form
contracts.
III. General Comments
One comment was received on June 6, 2011. The comment appears to be
misplaced; it appears the commenter may have been attempting to address
a different notice. The comment in reference to physician owned
physical therapy practices is not relevant to this requirement. This
rule focuses on the administration of work assignments under Cost
Reimbursable contracts and not physical therapy practices. As a result,
after in-depth review of this public comment, no changes will be made
to this final rule.
IV. Final Rule
This rule amends the EPAAR to add policy to prescription 1511.011-
74 for work assignments under clause 1552.211-74. The original
prescription language generally states that the work assignment clause,
1552.211-74, shall be used when a Cost Reimbursable type term form
contract with work assignments will be issued. This policy revision
only adds additional instructive language. The new policy language
contained under 1511.011-74, Work Assignments (Deviation), will serve
to provide contracting officers with better guidance on issuing a work
assignment. Therefore a revision will not be required to the related
EPAAR clause, 1552.211-74 Work Assignments; as this change does not
affect the meaning of the clause. The revised language communicates to
contract personnel and program staff that government cost-related
estimates should not be provided to contractors prior to receiving the
contractor's work plan (proposal); and how to address exceptions. The
exceptions addressed in the policy involve circumstances where a
contracting officer may need to be able to provide some of the expected
level of service needed to the contractor prior to receipt of the work
plan (proposal) due to the nature of the work.
V. Statutory and Executive Order 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
EO 13563 (76 FR 3821, January 21, 2011). Therefore, no review is
required by the Office of Information and Regulatory Affairs within the
Office of Management and Budget (OMB).
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 today's final 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
[[Page 8175]]
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 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. Rather, this rule on work
assignments only provides clarification to Contracting Officers when
issuing level of effort estimates in a work assignment. Thus, Executive
Order 13132 does not apply to this rule. In the spirit of Executive
Order 13132, and consistent with EPA policy to promote communications
between EPA and State and local governments, EPA specifically solicited
comments from State and local officials on this rule and no comments
were received from State and local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Goverments
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. Rather,
this rule on work assignments only provides clarification to
Contracting Officers when issuing level of effort estimates in a work
assignment. Thus, Executive Order 13175 does not apply to this action.
EPA specifically solicited additional comment from tribal officials on
this rule and no comments were received from tribal officials.
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 rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution of 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 it 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.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order (EO) 12898 (59 FR 7629 (Feb. 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 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 rulemaking
does not involve human health or environmental affects.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, does not
apply because this action is not a rule, for purposes of 5 U.S.C.
804(3).
This rulemaking does not involve technical standards. Therefore,
EPA is not considering the use of any voluntary consensus standards.
List of Subjects in 48 CFR Part 1511
Environmental protection, Government procurement.
Dated: January 31, 2012.
John R. Bashista,
Director, Office of Acquisition Management.
Therefore, 48 CFR chapter 15 is amended as set forth below:
PART 1511--DESCRIBING AGENCY NEEDS
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1. The authority citation for part 1511 continues to read as follows:
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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.
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2. Revise section 1511.011-74 to read as follows:
1511.011-74 Work Assignments.
(a) Policy. When issuing work assignments, the independent
government cost estimate shall not be released to the contractor. In
most cases the Contracting Officer (CO) should authorize the contractor
to expend only the estimated labor hours necessary to develop the work
plan and to initiate preliminary tasks which must be performed before
work plan approval can be made. However, in cases where the
uncertainties involved in the effort are of such a magnitude that there
is no reasonable expectation that the contractor can estimate the level
of effort required by the tasks, objectives, or outcomes of the
requirement, the CO may provide a ceiling level of effort for the
entire work assignment at the time of its issuance. In such cases, the
specific uncertainties precluding reasonable estimation of the required
level of effort on the contractor's part must be documented in the
contract file.
(b) Solicitation Provision. The CO shall insert the contract clause
at 1552.211.74, Work Assignments, in cost-reimbursement type term form
contracts when work assignments are used. For Superfund contracts,
except for contracts which require annual conflict of interest
certificates (e.g. Site Specific contracts, the Contract Laboratory
Program (CLP), and Sample Management Office (SMO) contracts), the CO
shall use the clause with either Alternate I or Alternate II. Alternate
I shall be used for contractors who have at least three (3) years of
records that may be searched for certification purposes. Alternate II
shall be used for contractors who do not have at least three (3) years
of records that may be searched.
[FR Doc. 2012-3292 Filed 2-13-12; 8:45 am]
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