[Federal Register: May 18, 2000 (Volume 65, Number 97)]
[Rules and Regulations]
[Page 31498-31500]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18my00-14]
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ENVIRONMENTAL PROTECTION AGENCY
48 CFR Parts 1516 and 1552
[FRL-6606-6]
RIN 2030-AA74
Acquisition Regulation: Award Fee
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action on amending the EPA
Acquisition Regulation (EPAAR) to comport with changes made to the
Federal Acquisition Regulation (FAR) in Federal Acquisition Circular
(FAC) 97-15 dated December 27, 1999 (FAR Case 98-017). The changes to
the FAR were made to implement the rulings of the United States Court
of Appeals and the United States Court of Federal Claims that the
Contracts Disputes Act applies to all disputes arising under Government
contracts, unless a more specific statute provides for other remedies.
DATES: This rule is effective on August 16, 2000, without further
notice, unless EPA receives adverse comments by June 19, 2000. 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: Written comments should be submitted to the contact listed
below at the following address: U.S. Environmental Protection Agency,
Office of Acquisition Management (3802R), Ariel Rios Building, 1200
Pennsylvania Avenue, NW, Washington, D.C. 20460. Comments and data may
also be submitted electronically by sending electronic mail (e-mail)
to: rellins.jean@epa.gov. Electronic comments must be submitted as an
ASCII file avoiding the use of special characters and any form of
encryption. Comments and data will also be accepted on disks in Corel
WordPerfect format or ASCII file format. No confidential business
information (CBI) should be submitted through e-mail. Electronic
comments on this rule may be filed on-line at many Federal Depository
Libraries.
FOR FURTHER INFORMATION CONTACT: Jean Rellins, U.S. EPA, Office of
Acquisition Management, (3802R), Ariel Rios Building, 1200 Pennsylvania
Avenue, NW, Washington, DC 20460, Telephone: (202) 564-4434.
SUPPLEMENTARY INFORMATION:
A. Background
Why is EPA utilizing a direct final rule to revise an EPAAR clause?
Federal Acquisition Circular 97-15 amended the FAR to implement the
rulings of the United States Court of Appeals and the United States
Court of Federal Claims (Burnside-Ott case) that the Contract Disputes
Act applies to all disputes arising under Government contracts, unless
a more specific statute provides for other remedies. This direct final
rule is being published without prior proposal because we view this as
a non-controversial change to the EPAAR intended to make the EPAAR
consistent with the FAR. We do not anticipate any adverse comments.
This rule will be effective on August 16, 2000, without further notice
unless we receive adverse comments by June 19, 2000. If EPA receives
adverse comments, we will,
[[Page 31499]]
before the rule's effective date, publish a timely withdrawal in the
Federal Register informing the public that the rule will not take
effect. We also will publish a notice of proposed rulemaking in a
future edition of the Federal Register. We will address the comments on
the direct final rule as part of that proposed rulemaking.
B. Executive Order 12866
This direct final rule 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 direct
final 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
The EPA certifies that this direct final rule does not exert a
significant economic impact on a substantial number of small entities.
The requirements to contractors under the rule impose no reporting,
record keeping, or any compliance costs.
E. Unfunded Mandates
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 direct final 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 E.O. 13045 because it is not an
economically significant rule as defined by E.O. 12866, and because it
does not involve decisions on environmental health or safety risks.
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'' 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.''
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 direct final 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. This direct final
rule merely changes the EPAAR to be consistent with the FAR. Thus, the
requirements of section 6 of the Executive Order do not apply to this
rule.
H. Executive Order 13084
Under E.O. 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, E.O. 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, E.O. 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.''
Today's rule does not significantly or uniquely affect the
communities of Indian Tribal governments. Accordingly, the requirements
of section 3(b) of E.O. 13084 do not apply to this rule.
I. National Technology Transfer and Advancement Act of 1995
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) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impracticable. 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 rule does not involve technical standards. Therefore, EPA did
not consider the use of any voluntary consensus standards.
J. 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
[[Page 31500]]
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).
Accordingly, under the authority of 5 U.S.C. 301; Sec. 205(c), 63
Stat. 390, as amended, 40 U.S.C. 486(c), 48 CFR Chapter 15 is amended
as follows:
List of Subjects in 48 CFR Part 1516 and 1552
Government procurement.
1. The authority citation for part 1516 continues to read as
follows:
Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C.
486(c).
2. Section 1516.405 is amended by revising paragraph (a) as
follows:
1516.405 Contract clauses.
(a) The Contracting Officer shall insert the clause at 1552.216-70,
Award fee (May 2000), in solicitations and contracts where a cost-plus-
award-fee contract is contemplated.
* * * * *
3. The authority citation for part 1552 continues to read as
follows:
Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C.
486(c).
4. Section 1552.216-70 is amended by revising the prescription date
from (SEPT 1995) to (May 2000), and revising paragraph (b) to read as
follows:
1552.216-70 Award fee.
* * * * *
(b) Award fee determinations made by the Government under this
contract are unilaterally determined by the Fee Determination Official
(FDO). The amount of the award fee to be paid is determined by the
Government's judgmental evaluation of the contractor's performance in
terms of the criteria stated in the contract. This determination and
the methodology for determining the award fee are unilateral decisions
made solely at the discretion of the Government.
* * * * *
Dated: April 28, 2000.
Betty L. Bailey,
Director, Office of Acquisition Management.
[FR Doc. 00-12022 Filed 5-17-00; 8:45 am]
BILLING CODE 6560-50-U