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[Federal Register Volume 76, Number 88 (Friday, May 6, 2011)]
[Proposed Rules]
[Pages 26232-26235]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-10422]

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ENVIRONMENTAL PROTECTION AGENCY

48 CFR Part 1511

[EPA-HQ-OARM-2010-0273; FRL-9288-3]

EPAAR Prescription for Work Assignments

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) amends the EPA 
Acquisition Regulation (EPAAR) to update policy, procedures, and 
contract clauses. The proposed rule provides revised language to the 
prescription for the work assignment clause, incorporating prescriptive 
language that provides further instructions on use of the related 
clause.

DATES: Comments must be received on or before June 6, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OARM-2010-0273, by one of the following methods:
    http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: docket.oei@epa.gov.
     Fax: (202) 566-1753.
     Mail: EPA-HQ-OARM-2010-0273, OEI Docket, Environmental 
Protection Agency, 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 
20460. Please include a total of three (3) copies.
     Hand Delivery: EPA Docket Center--Attention OEI Docket, 
EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC 20004. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OARM-
2010-0273. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment.

[[Page 26233]]

If you send an e-mail comment directly to EPA without going through 
http://www.regulations.gov, your e-mail address will be automatically 
captured and included as part of the comment that is placed in the 
public docket, and made available on the Internet. If you submit an 
electronic comment, EPA recommends that you include your name and other 
contact information in the body of your comment, and with any disk or 
CD-ROM you submit. If EPA cannot read your comment due to technical 
difficulties, and cannot contact you for clarification, EPA may not be 
able to consider your comment. Electronic files should avoid the use of 
special characters, any form of encryption, and be free of any defects 
or viruses. For additional information about EPA's public docket, visit 
the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. 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, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov, or in hard copy at the Office of 
Environmental Information (OEI) 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 EPA Docket Center is 
(202) 566-1752. This Docket Facility is open from 8:30 a.m. to 4:30 
p.m. Monday through Friday, excluding legal holidays.

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; e-mail address: blanding.donna@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

    1. Submitting CBI. Do not submit this information to EPA through 
http://www.regulations.gov or e-mail. Clearly mark the part or all of 
the information that you claim to be CBI. For CBI information in a disk 
or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM 
as CBI, and then identify electronically within the disk or CD ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree, suggest alternatives, 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

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. Proposed Rule

    This rule amends the EPAAR to add policy to the prescription for 
using the work assignment clause. 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 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.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order (EO)12866 (58 FR 51735, October 4, 1993) and 
therefore, not subject to review under the EO.

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

[[Page 26234]]

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 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 solicits 
comment on this proposed action from State and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    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 solicits additional comment on this proposed action 
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 proposed 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 proposed 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 proposed rulemaking does not involve human health or 
environmental effects.
    This proposed 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: March 16, 2011.
John R. Bashista,
Director, Office of Acquisition Management.

    Therefore, 48 CFR chapter 15 is proposed to be amended as set forth 
below:

PART 1511--DESCRIBING AGENCY NEEDS

    1. The authority citation for part 1511 continues to read as 
follows:

[[Page 26235]]

    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. Revise section 1511.011-74 to read as follows:

1511.011-74  Work Assignments. (Deviation) (Nov 2009).

    3. Add sections 1511.011-74-1 and 1511.011-74-2 to read as follows:

1511.011-74-1  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.

1511.011-74-2  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. 2011-10422 Filed 5-5-11; 8:45 am]
BILLING CODE 6560-50-P
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