[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]]
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ENVIRONMENTAL PROTECTION AGENCY
48 CFR Parts 1504 and 1552
[FRL-6721-2]
Acquisition Regulation: Business Ownership Representation
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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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]
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