[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: <a href="/cdn-cgi/l/email-protection#85e7e9e4ebe1ecebe2abe1eaebebe4c5e0f5e4abe2eaf3"><span class="__cf_email__" data-cfemail="b5d7d9d4dbd1dcdbd29bd1dadbdbd4f5d0c5d49bd2dac3">[email protected]</span></a>.

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

0
1. The authority citation for part 1511 continues to read as follows:


[[Page 8176]]


    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.


0
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]
BILLING CODE 6560-50-P


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