Federal Register / Vol. 65, No. 115 / Wednesday, June 14, 2000 / Rules and Regulations 37289

Regulatory Impact Statement

Executive Order 12866 of September

30, 1993, Regulatory Planning and

Review, requires the Department to

prepare an analysis for any rule that

meets one of the E.O. 12866 criteria for

a significant regulatory action; that is,

that may—

Have an annual effect on the economy

of $100 million or more or adversely

affect in a material way the economy, a

sector of the economy, productivity,

competition, jobs, the environment,

public health or safety, or State, local,

or tribal governments or communities;

Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

Materially alter the budgetary impact

of entitlements, grants, user fees, or loan

programs or the rights and obligations of

recipients thereof; or

Raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in E.O. 12866.

In addition, the Department prepares

a regulatory flexibility analysis, in

accordance with the Regulatory

Flexibility Act (5 U.S.C. chapter 6), if

the rule is expected to have a significant

impact on a substantial number of small

entities.

Because the amendment affects only

NIH OMA investigatory records, a small

subset of Agency records, we do not

believe this rule is economically

significant nor do we believe that it will

have a significant impact on a

substantial number of small entities.

The rule is not expected to have any

significant impact on OMA operations

and does not impose any new

information collection requirements

under the Paperwork Reduction Act. In

addition, this rule is not inconsistent

with the actions of any other agency.

For these same reasons, the Secretary

certifies this rule will not have a

significant economic impact on a

substantial number of small entities,

and that a Regulatory Flexibility

Analysis, as defined under the

Regulatory Flexibility Act, is not

required.

List of Subjects in 45 CFR Part 5b

Privacy.

Dated: December 27, 1999.

Harold Varmus,

Director, National Institutes of Health.

Approved: March 30, 2000.

Donna E. Shalala,

Secretary.

For the reasons set out in the

preamble, 45 CFR Part 5b is proposed to

be amended as set forth below:

PART 5b—PRIVACY ACT

REGULATIONS

1. The authority citation for part 5b

continues to read:

Authority: 5 U.S.C. 301, 5 U.S.C. 552a.

2. Section 5b.11 is amended in

paragraph (b)(2)(vii) by designating the

undesignated paragraph after the colon

as paragraph (b)(2)(vii)(A) and

republishing it and by adding paragraph

(b)(2)(vii)(B) to read as follows:

§ 5b.11 Exempt systems.

* * * * *

(b) * * *

(2) * * *

(vii) Pursuant to subsections (k)(2)

and (k)(5) of the Act:

(A) Public Health Service Records

Related to Investigations of Scientific

Misconduct, HHS/OASH/ORI.

(B) Administration: Investigative

Records, HHS/NIH/OM/OA/OMA.

* * * * *

[FR Doc. 00–14800 Filed 6–13–00; 8:45 am]

BILLING CODE 4140–01–M

ENVIRONMENTAL PROTECTION

AGENCY

48 CFR Parts 1501, 1509, 1532 and

1552

[FRL–6712–2]

Acquisition Regulation

AGENCY: Environmental Protection

Agency.

ACTION: Direct final rule.

SUMMARY: The Environmental Protection

Agency (EPA) is issuing this rule to

amend Agency administrative

procedures related to the: processing of

individual FAR deviations, redelegation

of Agency contract ratification

authority, debarment, suspension and

ineligibility of contractors, and

reduction or suspension of contract

payments upon finding of fraud.

DATES: This rule is effective on

September 12, 2000 without further

notice, unless EPA receives adverse

comments by July 14, 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: Adverse comments may be

submitted to Larry Wyborski, US

Environmental Protection Agency,

Office of Acquisition Management

(3802R), 1200 Pennsylvania Avenue,

NW., Washington, DC 20460 or

electronically at:

wyborski.larry@epamail.epa.gov

FOR FURTHER INFORMATION CONTACT:

Larry Wyborski, U.S. Environmental

Protection Agency, Office of Acquisition

Management (3802R), 1200

Pennsylvania Avenue, NW.,

Washington, DC 20460, (202) 564–4369,

wyborski.larry@epamail.epa.gov

SUPPLEMENTARY INFORMATION:

A. Background Information

This rule revises Subpart 1501.4 to

delete a requirement that the Head of

the Contracting Activity (HCA) furnish

copies of individual Federal Acquisition

Regulation (FAR) deviations to the FAR

Secretariat, consistent with a prior

change to the FAR.

Subpart 1501.6 is revised to clarify

how contract ratification authority is

authorized in the absence of the duly

authorized ratifying official.

Subpart 1509.4 is updated for

consistency with: (1) The Federal

Acquisition Regulation and (2) an

Agency Memorandum of Understanding

on the respective roles of the EPA

offices involved in processing actions

for debarment or suspension of

contractors.

In addition, Federal Acquisition

Regulation 32.006 references Agency

procedures for reducing or suspending

contractor payments based on a finding

of fraud and EPAAR 1532.006 is being

added to set forth Agency procedures

for reducing or suspending contractor

payments based on a finding of fraud.

B. Executive Order 12866

This is not a significant regulatory

action for purposes of Executive Order

12866; therefore, no review is required

at 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 for 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 impact on a substantial

37290 Federal Register / Vol. 65, No. 115 / Wednesday, June 14, 2000 / Rules and Regulations

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-forprofit enterprise which is independently

owned and operated and is not

dominant in its field.

After considering the economic

impacts of today’s direct final 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 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. Sections 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 direct final rule does not have

a significant impact on a substantial

number of small entities. The

requirements under the rule impose no

reporting, record-keeping, or

compliance costs on small entities.

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 any 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 (6 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

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 a

significant rule as defined by E.O.

12866, and because it does not involve

decisions on environmental health or

safety risks.

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, E.O. 13084 requires EPA to

provide to 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.’’

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.

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’’ 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 direct final rule does not have

federalism implications. It will not have

substantial direct effect 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: (1) Processing of individual

FAR deviations, (2) redelegation of

Federal Register / Vol. 65, No. 115 / Wednesday, June 14, 2000 / Rules and Regulations 37291

agency contract ratification authority,

(3) debarment, suspension and

ineligibility of contractors, and (4)

reduction or suspension of contract

payments upon finding of fraud. Thus,

the requirements of section 6 of the

Executive Order do not apply to this

rule.

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 rule report, which includes a

copy of the rule, to each House of

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).

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 1501,

1509, 1532 and 1552

Government procurement.

Therefore, 48 CFR Chapter 15 is

amended as set forth below:

1. The authority citation for parts

1501, 1509, 1532 and 1552 continues to

read as follows:

Authority: Sec. 205(c), 63 Stat. 390 as

amended, 40 U.S.C. 486(c).

2. Section 1501.403 is revised to read

as follows:

1501.403 Individual deviations.

Requests for individual deviations

from the FAR and the EPAAR shall be

submitted to the Head of the Contracting

Activity (HCA) for approval. Requests

submitted shall cite the specific part of

the FAR or EPAAR from which it is

desired to deviate, shall set forth the

nature of the deviation(s), and shall give

the reasons for the action requested. 3. Section 1501.602–3(b) is revised to

read as follows:

1501.602–3 Ratifications of unauthorized

commitments.

* * * * *

(b) 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 or an acting CCO must

have delegated contracting officer

authority. A CCO or acting CCO cannot

approve a ratification if he/she acted as

the contracting officer in preparing the

determination and findings required

under paragraph (c)(3) of this section.

* * * * *

4. Subpart 1509.4 is revised to read as

follows:

Subpart 1509.4—Debarment,

Suspension and Ineligibility

1509.403 Definitions.

1509.406 Debarment.

1509.406–3 Procedures.

1509.407 Suspension.

1509.407–3 Procedures.

1509.403 Definitions.

The ‘‘Debarring Official’’ and the

‘‘Suspending Official’’ as defined in

FAR 9.403 is a designated individual

located in the Office of Grants and

Debarment. This Agency official is

authorized to make the determinations

and provide the notifications required

under FAR subpart 9.4 or this subpart,

except for the determinations required

by FAR 9.405–1(a) which are to be made

by the Head of the Contracting Activity.

All compelling reason determinations to

be made by the Debarring or Suspending

Official under FAR subpart 9.4 or this

subpart will be made only after

coordination and consultation with the

Head of the Contracting Activity. See

also 40 CFR part 32.

1509.406 Debarment.

1509.406–3 Procedures.

(a) Investigation and referral.—(1)

Contracting officer responsibility. (i)

When contracting personnel discover

information which indicates that a

cause for debarment may exist, they

shall promptly report such information

to the cognizant Chief of the Contracting

Office (CCO). Purchasing agents in

simplified acquisition activities which

do not come under the direct

cognizance of a CCO shall report such

information by memorandum, through

their immediate supervisor, and

addressed to the cognizant CCO

responsible for their office’s contract

acquisitions. (ii) Contracting officers shall review

‘‘The List of Parties Excluded from

Federal Procurement and

Nonprocurement Programs’’ to ensure

that the Agency does not solicit offers

from, award contracts to, or consent to

subcontracts with listed contractors.

(2) Chief of the Contracting Office

responsibility. When the Chief of the

Contracting Office determines that

sufficient information is available to

indicate that a cause for debarment may

exist, such information shall be

promptly reported by memorandum to

the HCA. The memorandum provides

the Chief of the Contracting Office’s

assessment of the information, any

investigative report or audit, and any

additional information he/she has

discovered.

(3) HCA responsibility. Upon receipt

of a report of a suspected debarment

situation, the HCA shall take the

following actions:

(i) Notify the Director, Suspension

and Debarment Division, that

investigation of a potential debarment

has been initiated.

(ii) Review the reported information.

(iii) Investigate as necessary to verify

or develop additional information.

(iv) Refer the matter through the

Suspension and Debarment Division to

the Debarring Official for consideration

of debarment; request that the

Suspension and Debarment Division

evaluate the information and, if

appropriate, refer the matter to the

Debarring Official for consideration of

debarment; or recommend to the

Suspension and Debarment Division

that the matter be closed without further

action because the facts do not warrant

debarment.

(v) Obtain legal counsel’s opinion on

referrals or recommendations made to

the Debarring Official.

(vi) Notify EPA Contracting Officers of

those Contractors who are ineligible for

solicitation, award, or subcontracting

but who do not appear on the GSA

Consolidated List; e.g., those who are

ineligible based on a settlement reached

by the Debarring Official under which

the Contractor has agreed to voluntarily

exclude itself from participation in

Government contracting/subcontracting

for a specified period or because of a

Notice of Proposal to Debar.

(4) Any official. When information is

discovered which may indicate

potential criminal or civil fraud activity,

such information must be referred

promptly to the EPA Office of Inspector

General.

(5) Debarring Official’s responsibility.

The Debarring Official shall:

(i) Review referrals from the HCA

together with the HCA’s

recommendations, if any, and determine

whether further consideration by the

Debarring Official is warranted and take

such actions as are required by FAR

subpart 9.4;

(ii) Obtain the HCA’s

recommendation prior to reaching a

voluntary exclusion settlement with a

Contractor in lieu of debarment;

(iii) Promptly notify the HCA of

Contractors with whom a settlement in

lieu of debarment has been reached

37292 Federal Register / Vol. 65, No. 115 / Wednesday, June 14, 2000 / Rules and Regulations

under which the Contractor voluntarily

excludes itself from or restricts its

participation in Government

contracting/subcontracting for a

specified period; and of Contractors

who have received a Notice of Proposal

to Debar.

(b) [Reserved]

1509.407 Suspension.

1509.407–3 Procedures.

The procedures prescribed in

1509.406–3(a) shall be followed under

conditions which appear to warrant

suspension of a Contractor.

5. Section 1532.006 is added

preceding subpart 1532.1 is added to

read as follows:

1532.006 Reduction or suspension of

contract payments upon finding of fraud.

1532.006–1 General.

(a)–(b) [Reserved]

(c) Agency responsibilities and

determinations under FAR 32.006 are,

consistent with FAR 32.006–1(c),

delegated to the Head of the Contracting

Activity, if that individual is not below

Level IV of the Executive Schedule. If

the Head of the Contracting Activity is

below Level IV of the Executive

Schedule, then Agency responsibilities

and determinations under FAR 32.006

are delegated to the Assistant

Administrator for Administration and

Resources Management.

1532.006–2 Definitions.

The Remedy Coordination Official for

EPA is the Assistant Inspector General

for Investigations.

1532.006–3 Responsibilities.

(a) EPA shall use the procedures in

FAR 32.006–4 when determining

whether to reduce or suspend further

payments to a contractor when there is

a report from the Remedy Coordination

Official finding substantial evidence

that the contractor’s request for advance,

partial or progress payments is based on

fraud and recommending that the

Agency reduce or suspend such

payments to the contractor.

(b) [Reserved]

6. Section 1552.209–74 is amended as

follows:

a. In paragraph (h) of the clause,

remove ‘‘(g)’’ and add in its place ‘‘(h)’’;

b. In Alternate I paragraph (h), remove

‘‘(g)’’ and add in its place ‘‘(h)’’;

c. In Alternate II paragraph (h),

remove ‘‘(g)’’ and add in its place ‘‘(h)’’;

d. In Alternate III paragraph (e),

remove ‘‘(d)’’ and add in its place ‘‘(e)’’.

e. In Alternate IV paragraph (h),

remove ‘‘(g)’’ and add in its place ‘‘(h)’’.

f. In Alternate VI paragraph (i) remove

‘‘(h)’’ and add in its place ‘‘(i)’’.

Dated: May 12, 2000.

Betty L. Bailey,

Director, Office of Acquisition Management.

[FR Doc. 00–14635 Filed 6–13–00; 8:45 am]

BILLING CODE 6560–50–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 622 and 640

[Docket No. 990621165–0151–02; I.D.

022599A]

RIN 0648–AL43

Fisheries of the Caribbean, Gulf of

Mexico, and South Atlantic; Essential

Fish Habitat for Species in the South

Atlantic; Amendment 4 to the Fishery

Management Plan for Coral, Coral

Reefs, and Live/Hard Bottom Habitats

of the South Atlantic Region (Coral

FMP)

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final rule.

SUMMARY: NMFS issues this final rule to

implement Amendment 4 to the Coral

FMP. This final rule increases the size

of the Oculina Bank Habitat Area of

Particular Concern (HAPC) and

incorporates two adjacent areas within

the Oculina Bank HAPC. Within these

areas, fishing with bottom longline,

bottom trawl, dredge, pot, or trap is

prohibited. Furthermore, fishing vessels

may not anchor, use an anchor and

chain, or use a grapple and chain in

these areas. This final rule also

implements regulatory changes to reflect

the South Atlantic Fishery Management

Council’s (Council’s) proposed

framework procedure for all its fishery

management plans (FMPs) that allows

for timely modification of definitions of

essential fish habitat (EFH) and

establishment or modification of EFH–

HAPCs and Coral HAPCs. The intended

effect is to protect, conserve, and

enhance EFH.

DATES: This final rule is effective July

14, 2000.

ADDRESSES: Copies of the final

regulatory flexibility analysis (FRFA)

prepared by NMFS may be obtained

from the Southeast Regional Office,

NMFS, 9721 Executive Center Drive N.,

St. Petersburg, FL 33702.

FOR FURTHER INFORMATION CONTACT:

Michael Barnette, 727–570–5305, fax

727–570–5583, e-mail

Michael.Barnette@noaa.gov.

SUPPLEMENTARY INFORMATION: The

fisheries for shrimp, red drum, snappergrouper, coastal migratory pelagics,

golden crab, spiny lobster, and coral,

coral reefs, and live/hard bottom habitat

of the South Atlantic are managed under

the Council’s FMPs, as approved and

implemented by NMFS. These FMPs

were prepared solely by the Council,

except for the FMPs for coastal

migratory pelagics and spiny lobster

that were prepared jointly by the

Council and the Gulf of Mexico Fishery

Management Council. These FMPs are

implemented under the authority of the

Magnuson-Stevens Fishery

Conservation and Management Act

(Magnuson-Stevens Act) by regulations

at 50 CFR part 622, except for the FMP

for spiny lobster that is implemented by

regulations at 50 CFR part 640.

On March 5, 1999, NMFS announced

the availability of the Comprehensive

Amendment Addressing Essential Fish

Habitat in Fishery Management Plans of

the South Atlantic Region (EFH

Amendment) and requested comments

on the EFH Amendment (64 FR 10612).

Amendment 4 to the Coral FMP was

included within the EFH Amendment.

On June 3, 1999, NMFS approved the

EFH Amendment. On July 9, 1999,

NMFS published a proposed rule to

implement the measures in Amendment

4 and requested comments on the rule

(64 FR 37082). On November 2, 1999,

NMFS published a supplement to the

proposed rule due to the inadvertent

omission of information from the initial

regulatory flexibility analysis (IRFA)

summary in the proposed rule

classification section, and requested

comments on this supplemental

information (64 FR 59152). The

background and rationale for the

measures in the EFH Amendment and

proposed rule are contained in the

preamble to the proposed rule and are

not repeated here.

Comments and Responses

Thirteen comments and one group

comment were received on the EFH

Amendment, the proposed rule, and the

supplement to the proposed rule. A

summary of public comments and

NMFS’ responses follows.

Comment 1: One commenter and a

group comment asserted that the

Council’s economic assessment in the

EFH Amendment failed to evaluate the

impacts on the bottom longline fishery

for shark, golden tilefish, and grouper,

a necessary exercise when

implementing the EFH Amendment’s

management measures (Actions 3A

(expanded Oculina HAPC) and 3B (two

satellite Oculina HAPCs)). Therefore,

they believe these actions are in