[Federal Register: June 23, 2000 (Volume 65, Number 122)]
[Proposed Rules]               
[Page 39115-39117]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23jn00-28]                         


[[Page 39115]]

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

48 CFR Parts 1504 and 1552

[FRL-6721-2]

 
Acquisition Regulation: Business Ownership Representation

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
amend the EPA Acquisition Regulation (EPAAR) to add a new clause 
designed to provide the Agency with information regarding its contract 
awards. This new clause will request the successful awardee of an EPA 
contract to voluntarily identify the specific racial/ethnic category 
that best represents the ownership of its business. The information 
provided by the clause will not be used for the establishment of a set-
aside or quota. The information will only be used for general 
statistical purposes or for the purpose of focusing future outreach 
initiatives to those businesses owned by racial/ethnic groups who are 
unaware of EPA contracting opportunities.

DATES: Comments should be submitted not later than August 22, 2000.

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), 1200 Pennsylvania Avenue, NW, 
Washington, DC 20460. Comments will also be accepted on disks in 
WordPerfect format or by electronic mail (E-mail) to: 
smith.frances@epamail.epa.gov. E-mail comments must avoid the use of 
special characters and any form of encryption. No Confidential Business 
Information (CBI) should be submitted through E-mail.

FOR FURTHER INFORMATION CONTACT: Frances Smith, U.S. Environmental 
Protection Agency, Office of Acquisition Management, (3802R), 1200 
Pennsylvania Avenue, NW, Washington, DC 20460, Telephone: (202) 564-
4368.

SUPPLEMENTARY INFORMATION:

A. Background Information

    A new Environmental Protection Agency Acquisition Regulation clause 
has been developed to provide statistical data concerning awards made 
by EPA to businesses owned by various racial/ethnic groups. The 
identification of these groups will help EPA target future outreach 
initiatives to those businesses owned by racial/ethnic groups who are 
unaware of EPA contracting opportunities. In addition, these outreach 
initiatives would not be limited to small businesses. Large businesses 
would participate as well. Any outreach initiatives provided by EPA 
would be open to the general public and may include how to do business 
with EPA or understanding the Government contracting process.
    The business ownership categories in this newly created clause are 
nearly identical to the categories listed in the Federal Acquisition 
Regulation clause at 52.219-1 (ALT II). In addition, the categories are 
consistent with the Office of Management and Budget Statistical Policy 
Directive No. 15, Race and Ethnic Standards of Federal Statistics and 
Administrative Reporting. It is necessary to establish this EPA 
acquisition clause because the Federal Acquisition Regulation clause at 
52.219-1 (ALT) only pertains to offerors who represent themselves as 
small disadvantaged business concerns, as defined in Title 13 of the 
Code of Federal Regulations, part 124.1002. EPA's proposed clause 
would, however, apply to all Agency contractors regardless of size or 
disadvantaged status. This new clause will be incorporated into all EPA 
solicitations and contracts expected to exceed the simplified 
acquisition threshold ($100,000).
    The Civilian Agency Acquisition Council (CAAC) has been consulted 
concerning a class deviation to Federal Acquisition Regulation 
19.307(a)(3) for this newly developed clause. The CAAC has not voiced 
any objections to the class deviation.

B. Executive Order 12866

    This proposed rule is not a significant regulatory action for the 
purposes of Executive Order 12866. Therefore, no review was 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 of 1980 (44 U.S.C. 3501 et seq.) 
applies to this proposed rule. The information collection request (ICR) 
in this proposed rule is currently being evaluated by the Office of 
Management and Budget (OMB). Comments regarding Paperwork Reduction Act 
concerns should be sent to OMB (Attn: EPA Desk Officer). OMB is 
required to make a decision concerning the collection of information 
contained in the proposed rule between 30 and 60 days after publication 
of this document in the Federal Register. Therefore, a comment to OMB 
is best assured of having its full effect if OMB receives it within 30 
days of publication. This does not affect the deadline for the public 
to comment to EPA on this proposed rule.

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 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 proposed rule on 
small entities, the Agency certifies that this proposed rule will not 
have a significant economic impact on a substantial number of small 
entities. The impact on small entities will not be significant. This 
proposed rule is voluntary and will have no effect on the evaluation 
criterion for award. EPA estimates that contractors will require only a 
minimal amount of time to complete the clause in the proposed rule. 
Therefore, to the extent that this does result in some contractor-
incurred costs, EPA anticipates that these will be de minimus. Further, 
because the clause will only be applicable over the simplified 
acquisition threshold, this proposed rule will not have an impact on a 
substantial number of small entities. Small businesses do not receive a 
substantial percentage of those EPA contract awards which exceed the 
simplified acquisition threshold.

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

[[Page 39116]]

sector. This proposed rule does not contain a Federal mandate that may 
result in expenditures of $100 million or more for State, local, and 
tribal governments, in 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 risks that have a disproportionate effect on children.

G. 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 for the direct 
compliance costs incurred by the 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 governments ``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 Executive Order 13084 do not apply to this rule.

H. 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 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 rule does not involve technical standards. Therefore, EPA did 
not consider the use of any voluntary consensus standards.

I. 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 proposed 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. The rule amends the EPA 
Acquisition Regulation relating to internal agency procedures 
addressing business ownership categories of contractors who receive EPA 
awards. Thus, the requirements of section 6 of the Executive Order do 
not apply to this rule.

    Authority: The provisions of this regulation are issued under 5 
U.S.C. 301; section 205(c), 63 Stat. 390, as amended 40 U.S.C. 
486(c).

List of Subjects in 48 CFR Parts 1504 and 1552

    Government procurement.

    Therefore, 48 CFR Chapter 15 is proposed to be amended as set forth 
below:
    1. The authority citation for Parts 1504 and 1552 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); 41 U.S.C. 418b.

    2. Revise Part 1504 to read as follows:

PART 1504--ADMINISTRATIVE MATTERS

Subpart 1504.6--Contract Reporting


1504.670  Business Ownership Representation

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 
486(c); 41 U.S.C. 418b.

Subpart 1504.6--Contract Reporting


1504.670  Business Ownership Representation.

    Contracting officers shall insert the clause at 1552.204-70, 
Business Ownership Representation, in solicitations and contracts with 
an estimated dollar value greater than the simplified acquisition 
threshold. Completion of the clause by the successful awardee is 
voluntary.
    3. Amend subpart 1552.2 by adding 1552.204-70 to read as follows:


1552.204-70  Business Ownership Representation.

    As prescribed in 1504.670, insert the following clause in 
solicitations and contracts:

[[Page 39117]]

Business Ownership Representation (NOV 20XX)

    The successful awardee should check one or more of the 
categories below that represents its business ownership and return 
this information to the contracting officer within ten (10) calendar 
days after award. Completion of this clause by the successful 
awardee is voluntary.
    ``Ownership,'' as used in this clause, means: (a) At least 51 
percent of the concern is owned by one or more individuals from a 
category listed below; or, in the case of any publicly owned 
business, at least 51 percent of the stock of the concern is owned 
by one or more such individuals; and (b) The management and daily 
business operations of the concern are controlled by one or more 
such individuals.

[  ] American Indian or Alaska Native. A person having origins in 
any of the original peoples of North and South America (including 
Central America), and who maintains tribal affiliation or community 
attachment.
[  ] Asian. A person having origins in any of the original peoples 
of the Far East, Southeast Asia, or the Indian subcontinent 
including, for example, Cambodia, China, India, Japan, Korea, 
Malaysia, Pakistan, the Philippine Islands, Thailand, and Vietnam.
[  ] Black or African American. A person having origins in any of 
the black racial groups of Africa. Terms such as ``Haitian'' or 
``Negro'' can be used in addition to ``Black or African American.''
[  ] Hispanic or Latino. A person of Cuban, Mexican, Puerto Rican, 
Cuban, South or Central American, or other Spanish culture or 
origin, regardless of race. The term, ``Spanish origin,'' can be 
used in addition to ``Hispanic or Latino.''
[  ] Native Hawaiian or Other Pacific Islander. A person having 
origins in any of the original peoples of Hawaii, Guam, Samoa, or 
other Pacific Islands.
[  ] White. A person having origins in any of the original peoples 
of Europe, the Middle East, or North Africa.

(End of clause)

    Dated: June 1, 2000.
Judy Davis,
Acting Director, Office of Acquisition Management.
[FR Doc. 00-15840 Filed 6-22-00; 8:45 am]
BILLING CODE 6560-50-P