Acquisition Regulation: Guidance on Technical Direction, 11602-11606 [E8-4153]

Download as PDF 11602 Federal Register / Vol. 73, No. 43 / Tuesday, March 4, 2008 / Proposed Rules (1) Progress reports on the ETC’s five-year service quality improvement plan, including maps detailing progress towards meeting its plan targets; an explanation of how much universal service support was received and how the support was used to improve signal quality, coverage, or capacity; and an explanation regarding any network improvement targets that have not been fulfilled. The information should be submitted at the wire center level; (2) Detailed information on any outage lasting at least 30 minutes, for any service area in which an ETC is designated for any facilities it owns, operates, leases, or otherwise utilizes that potentially affect at least ten percent of the end users served in a designated service area, or that potentially affect a 911 special facility (as defined in subsection (e) of section 4.5 of the Outage Reporting Order). An outage is defined as a significant degradation in the ability of an end user to establish and maintain a channel of communications as a result of failure or degradation in the performance of a communications provider’s network. Specifically, the ETC’s annual report must include: (1) The date and time of onset of the outage; (2) a brief description of the outage and its resolution; (3) the particular services affected; (4) the geographic areas affected by the outage; (5) steps taken to prevent a similar situation in the future; and (6) the number of customers affected; (3) The number of requests for service from potential customers within its service areas that were unfulfilled for the past year. The ETC must also detail how it attempted to provide service to those potential customers; (4) The number of complaints per 1,000 handsets or lines; (5) Certification that the ETC is complying with applicable service quality standards and consumer protection rules, e.g., the CTIA Consumer Code for Wireless Service; (6) Certification that the ETC is able to function in emergency situations; (7) Certification that the ETC is offering a local usage plan comparable to that offered by the incumbent LEC in the relevant service areas; and (8) Certification that the carrier acknowledges that the Commission may require it to provide equal access to long distance carriers in the event that no other eligible telecommunications carrier is providing equal access within the service area. pwalker on PROD1PC71 with PROPOSALS In the NPRM, the Commission sought comment on whether the Commission’s ETC designation requirements should apply to all ETCs participating in and/ or winning universal service auctions. Steps Taken To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered 70. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance and reporting VerDate Aug<31>2005 16:22 Mar 03, 2008 Jkt 214001 requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or part thereof, for small entities. 5 U.S.C. 603(c). 71. This IRFA seeks comment on how reverse auctions could be implemented in a manner that reduces the potential burden and cost of participation by small entities in the auctions. We also seek comment on the potential impact the use of reverse auctions to distribute high-cost universal service support would have on small entities. In the NPRM, the Commission offers several alternatives that might minimize significant economic impact on ETCs, some of which might be small entities. For example, the Commission discusses proposals to use relatively small geographic areas as the areas to be auctioned, and specifically seeks comment on how the size of the geographic area affects the ability of small entities to participate in auctions. The Commission also seeks comment on various methods of setting reserve prices based on current levels of highcost support, and tentatively concludes that the reserve price should be set at disaggregated support amounts if the area to be auctioned is smaller than the incumbent LEC’s study area. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules 72. None. Ordering Clauses 73. Accordingly, It is ordered that, pursuant to the authority contained in sections 1, 2, 4(i), 4(j), 201–205, 214, 254, and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i)–(j), 201–205, 214, 254, 403 and §§ 1.1, 1.411–1.419, and 1.1200– 1.1216, of the Commission’s rules, 47 CFR 1.1, 1.411–1.419, 1.1200–1.1216, this Notice of Proposed Rulemaking is adopted. 74. It is further ordered that the Commission’s Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. PO 00000 Frm 00039 Fmt 4702 Sfmt 4702 Federal Communications Commission. Marlene H. Dortch, Secretary. [FR Doc. E8–4146 Filed 3–3–08; 8:45 am] BILLING CODE 6712–01–P ENVIRONMENTAL PROTECTION AGENCY 48 CFR Parts 1537 and 1552 [Docket ID No. EPA–HQ–OARM–2007–1115; FRL–8536–8] RIN 2030–AA96 Acquisition Regulation: Guidance on Technical Direction Environmental Protection Agency. ACTION: Proposed rule. AGENCY: SUMMARY: The Environmental Protection Agency (EPA) is proposing to amend the EPA Acquisition Regulation (EPAAR) to revise the prescription for and the content of a clause that addresses issuing technical direction in contracts. This revision incorporates and supersedes several class deviations to the EPAAR and updates terminology and procedures related to issuing technical direction. DATES: Comments must be received on or before April 3, 2008. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–HQ– OARM–2007–1115, by one of the following methods: • https://www.regulations.gov: Follow the on-line instructions for submitting comments. • E-mail: docket.oei@epa.gov. • Fax: (202) 566–0224. • Mail: OEI Docket, Environmental Protection Agency, Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. Please include a total of three (3) copies • Hand Delivery: EPA Docket CenterAttention 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–2007– 1115. EPA’s policy is that all timely comments received will be included in the public docket without change and may be made available online at https://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other E:\FR\FM\04MRP1.SGM 04MRP1 pwalker on PROD1PC71 with PROPOSALS Federal Register / Vol. 73, No. 43 / Tuesday, March 4, 2008 / Proposed Rules information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through https:// www.regulations.gov or e-mail. The https://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. If you send an e-mail comment directly to EPA without going through https:// 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 Docket: All documents in the docket are listed in the https:// 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 https:// www.regulations.gov or in hard copy at the 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 OEI Docket is (202) 566– 1752. FOR FURTHER INFORMATION CONTACT: Valen D. Wade, Policy, Training, and Oversight Division, Office of Acquisition Management (3802R), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: 202–564– 2284; fax number: 202–565–2474; e-mail address: wade.valen@epa.gov. SUPPLEMENTARY INFORMATION: I. General Information A. Does This Action Apply to Me? Entities potentially affected by this proposed action include firms that are VerDate Aug<31>2005 16:22 Mar 03, 2008 Jkt 214001 performing or will perform under contract to the EPA. This includes firms in all industry groups. B. What Should I Consider as I Prepare My Comments for EPA? 1. Submitting CBI. Do not submit this information to EPA through 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 Under certain contracts the contracting officer authorizes a designated individual, e.g., the contracting officer technical representative or COTR, to issue technical direction to the contractor. The technical direction clause in the contract defines what constitutes technical direction, which officials are authorized to issue technical direction, PO 00000 Frm 00040 Fmt 4702 Sfmt 4702 11603 and procedures for issuing technical direction. Since the EPAAR technical direction guidance was originally issued, several class deviations to the clause have been approved. (A class deviation is a change to the EPAAR necessary to meet specific contract requirements.) This proposed revision would incorporate and supersede the class deviations and make additional revisions to the technical direction guidance as specified below. III. Proposed Rule This proposed rule would amend the EPAAR to revise the prescription for using the Technical Direction clause and the wording of the clause itself. The current prescription states the clause is used in cost reimbursement type solicitations and contracts. The revised prescription would allow contracting officers to use the clause, or a clause substantially the same, in solicitations and contracts where the contracting officer will delegate authority to issue technical direction to the contracting officer technical representative. The EPAAR clause entitled ‘‘Technical Direction’’ is revised in several ways. First, two new terms are added and defined: ‘‘contracting officer technical representative’’ and ‘‘task order.’’ The reason for adding these terms is to standardize titles and terminology used at EPA with terms used in the Federal Acquisition Regulation (FAR) and other Federal procurement policy. For example, the current clause refers to the ‘‘project officer’’ as the individual who may be authorized to issue technical direction. Other terms, such as task order project officer, work assignment manger, and delivery order project officer are also used at EPA. The revised clause will standardize these terms under the title ‘‘contracting officer technical representative.’’ Instead of merely stating technical direction is direction which assists the contractor in accomplishing the statement of work, the revised clause provides more detail in describing technical direction as authorized instruction to the contractor which approves approaches, solutions, designs, or refinements; fills in details; completes the general description of work; or shifts emphasis among work areas or tasks. The technical direction clause specifically states the contracting officer technical representative cannot request a change outside the scope of the contract, i.e., a cardinal change. The clause also protects against constructive changes by requiring the contractor to contact the contracting officer if E:\FR\FM\04MRP1.SGM 04MRP1 11604 Federal Register / Vol. 73, No. 43 / Tuesday, March 4, 2008 / Proposed Rules direction given by the contracting officer technical representative: (1) Institutes additional work outside the scope of the contract or work request; (2) Constitutes a change as defined in the ‘‘Changes’’ clause; (3) Causes an increase or decrease in the estimated cost of the contract or task order; (4) Alters the period of performance of the contract or task order; or (5) Changes any of the other terms or conditions of the contract or task order. The contractor is reminded that following any direction given by any person other than the contracting officer or the contracting officer technical representative shall be at the contractor’s risk. 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 is therefore not subject to review under the EO. pwalker on PROD1PC71 with PROPOSALS 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. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes: the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA’s regulations in 40 CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any VerDate Aug<31>2005 16:22 Mar 03, 2008 Jkt 214001 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 proposed 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 proposed 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 significant adverse economic impact on small entities, because 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. 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 action revises a current EPAAR clause 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. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with ‘‘Federal mandates’’ that may result in expenditures to State, local, PO 00000 Frm 00041 Fmt 4702 Sfmt 4702 and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most costeffective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for: notifying potentially affected small governments; enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates; and, informing, educating, and advising small governments on compliance with the regulatory requirements. Today’s proposed rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, or tribal governments or the private sector. The rule imposes no enforceable duty on any State, local or tribal governments or the private sector. Thus, today’s 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 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 E:\FR\FM\04MRP1.SGM 04MRP1 Federal Register / Vol. 73, No. 43 / Tuesday, March 4, 2008 / Proposed Rules distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Today’s proposed rule on technical direction provides guidance on the interaction between contracting officials and contractors only. 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 rule 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 proposed rule does not have tribal implications, as specified in Executive Order 13175. Today’s proposed rule on technical direction provides guidance on the interaction between contracting officials and contractors only. Thus, Executive Order 13175 does not apply to this rule. EPA specifically solicits additional comment on this proposed rule from tribal officials. pwalker on PROD1PC71 with PROPOSALS G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks Executive Order 13045, entitled ‘‘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 proposed 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. VerDate Aug<31>2005 16:22 Mar 03, 2008 Jkt 214001 H. Executive Order 13211 (Energy Effects) This proposed rule is not subject to Executive Order 13211, ‘‘Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use’’ (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866. I. 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, 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 proposed rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any 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 affects. List of Subjects in 48 CFR Parts 1537 and 1552 Government procurement. PO 00000 Frm 00042 Fmt 4702 Sfmt 4702 11605 Dated: February 21, 2008. Denise Benjamin Sirmons, Director, Office of Acquisition Management. Therefore, 48 CFR Chapter 15 is proposed to be amended as set forth below: PART 1537—SERVICE CONTRACTING 1. The authority citation for part 1537 continues to read as follows: Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c). 2. Amend § 1537.110 by revising paragraph (b) to read as follows: 1537.110 Solicitation provisions and contract clauses. * * * * * (b) The contracting officer shall insert a clause substantially the same as the clause in 1552.237–71, Technical Direction, in solicitations and contracts where the contracting officer intends to delegate authority to issue technical direction to the contracting officer technical representative(s). * * * * * PART 1552—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 3. The authority citation for part 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); and 41 U.S.C. 418b. 4. Revise § 1552.237–71 to read as follows: 1552.237–71 Technical Direction. As prescribed in 1537.110, insert a clause substantially the same as the following: Technical Direction (XXX 2008) (a) Definitions. Contracting officer technical representative (COTR), means an individual appointed by the contracting officer in accordance with Agency procedures to perform specific technical and administrative functions. Task order, as used in this clause, means work assignment, delivery order, or any other document issued by the contracting officer to order work under a service contract. (b) The contracting officer technical representative(s) may provide technical direction on contract or work request performance. Technical direction includes: (1) Instruction to the contractor that approves approaches, solutions, designs, or refinements; fills in details; completes the general description of E:\FR\FM\04MRP1.SGM 04MRP1 pwalker on PROD1PC71 with PROPOSALS 11606 Federal Register / Vol. 73, No. 43 / Tuesday, March 4, 2008 / Proposed Rules work; shifts emphasis among work areas or tasks; and (2) Evaluation and acceptance of reports or other deliverables. (c) Technical direction must be within the scope of work of the contract and any task order thereunder. The contracting officer technical representative(s) does not have the authority to issue technical direction which: (1) Requires additional work outside the scope of the contract or task order; (2) Constitutes a change as defined in the ‘‘Changes’’ clause; (3) Causes an increase or decrease in the estimated cost of the contract or task order; (4) Alters the period of performance of the contract or task order; or (5) Changes any of the other terms or conditions of the contract or task order. (d) Technical direction will be issued in writing or confirmed in writing within five (5) days after oral issuance. The contracting officer will be copied on any technical direction issued by the contracting officer technical representative. (e) If, in the contractor’s opinion, any instruction or direction by the contracting officer technical representative(s) falls within any of the categories defined in paragraph (c) of this clause, the contractor shall not proceed but shall notify the contracting officer in writing within 3 days after receiving it and shall request that the contracting officer take appropriate action as described in this paragraph. Upon receiving this notification, the contracting officer shall: (1) Advise the contractor in writing as soon as practicable, but no later than 30 days after receipt of the contractor’s notification, that the technical direction is within the scope of the contract effort and does not constitute a change under the ‘‘Changes’’ clause of the contract; (2) Advise the contractor within a reasonable time that the government will issue a written modification to the contract; or (3) Advise the contractor that the technical direction is outside the scope of the contract and is thereby rescinded. (f) A failure of the contractor and contracting officer to agree as to whether the technical direction is within the scope of the contract, or a failure to agree upon the contract action to be taken with respect thereto, shall be subject to the provisions of the clause entitled ‘‘Disputes’’ in this contract. (g) Any action(s) taken by the contractor, in response to any direction given by any person acting on behalf of the government or any government official other than the contracting officer VerDate Aug<31>2005 16:22 Mar 03, 2008 Jkt 214001 or the contracting officer technical representative, shall be at the contractor’s risk.(End of clause) [FR Doc. E8–4153 Filed 3–3–08; 8:45 am] BILLING CODE 6560–50–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No.071128763–7773–01] RIN 0648–AW33 Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Monkfish Fishery National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. AGENCY: SUMMARY: NMFS is proposing to implement new management measures for the monkfish fishery recommended in Framework Adjustment 5 (Framework 5) to the Monkfish Fishery Management Plan (FMP), which has been submitted jointly by the New England (NEFMC) and Mid-Atlantic Fishery Management Councils (Councils). This action would implement revised biological reference points in the FMP to be consistent with the recommendations resulting from the most recent stock assessment for this fishery (Northeast Data Poor Stocks Working Group (DPWG, July 2007)), and implement revised management measures to ensure that the monkfish management program succeeds in keeping landings within the target total allowable catch (TAC) levels. DATES: Written comments must be received no later than 5 p.m. eastern standard time, on March 25, 2008. ADDRESSES: You may submit comments, identified by RIN number 0648–AW33, by any of the following methods: • Electronic Submissions: Submit all electronic public comments via the Federal e-Rulemaking portal https:// www.regulations.gov. • Fax: (978) 281–9135, Attn: Allison McHale. • Mail: Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930. Mark the outside of the envelope: ‘‘Comments on Monkfish Framework 5.’’ PO 00000 Frm 00043 Fmt 4702 Sfmt 4702 Instructions: All comments received are part of the public record and will generally be posted to https:// www.regulations.gov without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information. NMFS will accept anonymous comments. Attachments to electronic comments will be accepted via Microsoft Word, Microsoft Excel, WordPerfect, or Adobe PDF file formats only. Copies of the Environmental Assessment (EA), including the Regulatory Impact Review (RIR) and Initial Regulatory Flexibility Analysis (IRFA), prepared for Framework 5 are available upon request from Paul Howard, Executive Director, NEFMC, 50 Water Street, Newburyport, MA, 01950. The document is also available online at www.nefmc.org. FOR FURTHER INFORMATION CONTACT: Allison McHale, Fishery Policy Analyst, e-mail Allison.McHale@noaa.gov, phone (978) 281–9103, fax (978) 281–9135. SUPPLEMENTARY INFORMATION: Background The monkfish fishery is jointly managed by the Councils, with the NEFMC having the administrative lead. The fishery extends from Maine to North Carolina, and is divided into two management units: The Northern Fishery Management Area (NFMA) and the Southern Fishery Management Area (SFMA). In July 2007, the DPWG completed and accepted a new monkfish assessment. The results of this assessment indicate that neither stock is overfished, overfishing is no longer occurring, and both stocks are rebuilt based on a new modeling approach and newly recommended biological reference points. In addition to the fact that this assessment was the first to use a new analytical model, the July 2007 assessment report emphasizes the high degree of uncertainty in the analyses due to the dependence on assumptions about natural mortality, growth rates, and other model inputs. The report concluded that the data-poor nature of this species and the significant uncertainty in assessing the stocks should be considered when developing management measures. Framework 5 is needed to implement the revised biological reference points recommended by the DPWG and would make other modifications to the E:\FR\FM\04MRP1.SGM 04MRP1

Agencies

[Federal Register Volume 73, Number 43 (Tuesday, March 4, 2008)]
[Proposed Rules]
[Pages 11602-11606]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-4153]


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ENVIRONMENTAL PROTECTION AGENCY

48 CFR Parts 1537 and 1552

[Docket ID No. EPA-HQ-OARM-2007-1115; FRL-8536-8]
RIN 2030-AA96


Acquisition Regulation: Guidance on Technical Direction

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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

SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
amend the EPA Acquisition Regulation (EPAAR) to revise the prescription 
for and the content of a clause that addresses issuing technical 
direction in contracts. This revision incorporates and supersedes 
several class deviations to the EPAAR and updates terminology and 
procedures related to issuing technical direction.

DATES: Comments must be received on or before April 3, 2008.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OARM-2007-1115, by one of the following methods:
     https://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: docket.oei@epa.gov.
     Fax: (202) 566-0224.
     Mail: OEI Docket, Environmental Protection Agency, 
Mailcode: 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-
2007-1115. EPA's policy is that all timely comments received will be 
included in the public docket without change and may be made available 
online at https://www.regulations.gov, including any personal 
information provided, unless the comment includes information claimed 
to be Confidential Business Information (CBI) or other

[[Page 11603]]

information whose disclosure is restricted by statute. Do not submit 
information that you consider to be CBI or otherwise protected through 
https://www.regulations.gov or e-mail. The https://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. If you send an e-mail comment directly to EPA 
without going through https://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
    Docket: All documents in the docket are listed in the https://
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 https://www.regulations.gov or in hard copy at the 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 
OEI Docket is (202) 566-1752.

FOR FURTHER INFORMATION CONTACT: Valen D. Wade, Policy, Training, and 
Oversight Division, Office of Acquisition Management (3802R), 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460; telephone number: 202-564-2284; fax number: 202-
565-2474; e-mail address: wade.valen@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Does This Action Apply to Me?

    Entities potentially affected by this proposed action include firms 
that are performing or will perform under contract to the EPA. This 
includes firms in all industry groups.

B. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
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

    Under certain contracts the contracting officer authorizes a 
designated individual, e.g., the contracting officer technical 
representative or COTR, to issue technical direction to the contractor. 
The technical direction clause in the contract defines what constitutes 
technical direction, which officials are authorized to issue technical 
direction, and procedures for issuing technical direction.
    Since the EPAAR technical direction guidance was originally issued, 
several class deviations to the clause have been approved. (A class 
deviation is a change to the EPAAR necessary to meet specific contract 
requirements.) This proposed revision would incorporate and supersede 
the class deviations and make additional revisions to the technical 
direction guidance as specified below.

III. Proposed Rule

    This proposed rule would amend the EPAAR to revise the prescription 
for using the Technical Direction clause and the wording of the clause 
itself. The current prescription states the clause is used in cost 
reimbursement type solicitations and contracts. The revised 
prescription would allow contracting officers to use the clause, or a 
clause substantially the same, in solicitations and contracts where the 
contracting officer will delegate authority to issue technical 
direction to the contracting officer technical representative.
    The EPAAR clause entitled ``Technical Direction'' is revised in 
several ways. First, two new terms are added and defined: ``contracting 
officer technical representative'' and ``task order.'' The reason for 
adding these terms is to standardize titles and terminology used at EPA 
with terms used in the Federal Acquisition Regulation (FAR) and other 
Federal procurement policy. For example, the current clause refers to 
the ``project officer'' as the individual who may be authorized to 
issue technical direction. Other terms, such as task order project 
officer, work assignment manger, and delivery order project officer are 
also used at EPA. The revised clause will standardize these terms under 
the title ``contracting officer technical representative.''
    Instead of merely stating technical direction is direction which 
assists the contractor in accomplishing the statement of work, the 
revised clause provides more detail in describing technical direction 
as authorized instruction to the contractor which approves approaches, 
solutions, designs, or refinements; fills in details; completes the 
general description of work; or shifts emphasis among work areas or 
tasks.
    The technical direction clause specifically states the contracting 
officer technical representative cannot request a change outside the 
scope of the contract, i.e., a cardinal change. The clause also 
protects against constructive changes by requiring the contractor to 
contact the contracting officer if

[[Page 11604]]

direction given by the contracting officer technical representative: 
(1) Institutes additional work outside the scope of the contract or 
work request; (2) Constitutes a change as defined in the ``Changes'' 
clause; (3) Causes an increase or decrease in the estimated cost of the 
contract or task order; (4) Alters the period of performance of the 
contract or task order; or (5) Changes any of the other terms or 
conditions of the contract or task order. The contractor is reminded 
that following any direction given by any person other than the 
contracting officer or the contracting officer technical representative 
shall be at the contractor's risk.

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 
is 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.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes: the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (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 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 proposed 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, 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 
significant adverse economic impact on small entities, because 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. 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 
action revises a current EPAAR clause 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. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for: notifying potentially affected small governments; enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates; and, informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    Today's proposed rule contains no Federal mandates (under the 
regulatory provisions of Title II of the UMRA) for State, local, or 
tribal governments or the private sector. The rule imposes no 
enforceable duty on any State, local or tribal governments or the 
private sector. Thus, today's 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 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

[[Page 11605]]

distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132. Today's proposed 
rule on technical direction provides guidance on the interaction 
between contracting officials and contractors only. 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 rule 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 proposed rule does not 
have tribal implications, as specified in Executive Order 13175. 
Today's proposed rule on technical direction provides guidance on the 
interaction between contracting officials and contractors only. Thus, 
Executive Order 13175 does not apply to this rule. EPA specifically 
solicits additional comment on this proposed rule 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 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 
proposed 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 (Energy Effects)

    This proposed rule is not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it 
is not a significant regulatory action under Executive Order 12866.

I. 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, 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 
proposed rulemaking does not involve technical standards. Therefore, 
EPA is not considering the use of any 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 affects.

List of Subjects in 48 CFR Parts 1537 and 1552

    Government procurement.

    Dated: February 21, 2008.
Denise Benjamin Sirmons,
Director, Office of Acquisition Management.

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

PART 1537--SERVICE CONTRACTING

    1. The authority citation for part 1537 continues to read as 
follows:

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

    2. Amend Sec.  1537.110 by revising paragraph (b) to read as 
follows:


1537.110  Solicitation provisions and contract clauses.

* * * * *
    (b) The contracting officer shall insert a clause substantially the 
same as the clause in 1552.237-71, Technical Direction, in 
solicitations and contracts where the contracting officer intends to 
delegate authority to issue technical direction to the contracting 
officer technical representative(s).
* * * * *

PART 1552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    3. The authority citation for part 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); and 41 U.S.C. 418b.

    4. Revise Sec.  1552.237-71 to read as follows:


1552.237-71  Technical Direction.

    As prescribed in 1537.110, insert a clause substantially the same 
as the following:
Technical Direction (XXX 2008)
    (a) Definitions.
    Contracting officer technical representative (COTR), means an 
individual appointed by the contracting officer in accordance with 
Agency procedures to perform specific technical and administrative 
functions.
    Task order, as used in this clause, means work assignment, delivery 
order, or any other document issued by the contracting officer to order 
work under a service contract.
    (b) The contracting officer technical representative(s) may provide 
technical direction on contract or work request performance. Technical 
direction includes:
    (1) Instruction to the contractor that approves approaches, 
solutions, designs, or refinements; fills in details; completes the 
general description of

[[Page 11606]]

work; shifts emphasis among work areas or tasks; and
    (2) Evaluation and acceptance of reports or other deliverables.
    (c) Technical direction must be within the scope of work of the 
contract and any task order thereunder. The contracting officer 
technical representative(s) does not have the authority to issue 
technical direction which:
    (1) Requires additional work outside the scope of the contract or 
task order;
    (2) Constitutes a change as defined in the ``Changes'' clause;
    (3) Causes an increase or decrease in the estimated cost of the 
contract or task order;
    (4) Alters the period of performance of the contract or task order; 
or
    (5) Changes any of the other terms or conditions of the contract or 
task order.
    (d) Technical direction will be issued in writing or confirmed in 
writing within five (5) days after oral issuance. The contracting 
officer will be copied on any technical direction issued by the 
contracting officer technical representative.
    (e) If, in the contractor's opinion, any instruction or direction 
by the contracting officer technical representative(s) falls within any 
of the categories defined in paragraph (c) of this clause, the 
contractor shall not proceed but shall notify the contracting officer 
in writing within 3 days after receiving it and shall request that the 
contracting officer take appropriate action as described in this 
paragraph. Upon receiving this notification, the contracting officer 
shall:
    (1) Advise the contractor in writing as soon as practicable, but no 
later than 30 days after receipt of the contractor's notification, that 
the technical direction is within the scope of the contract effort and 
does not constitute a change under the ``Changes'' clause of the 
contract;
    (2) Advise the contractor within a reasonable time that the 
government will issue a written modification to the contract; or
    (3) Advise the contractor that the technical direction is outside 
the scope of the contract and is thereby rescinded.
    (f) A failure of the contractor and contracting officer to agree as 
to whether the technical direction is within the scope of the contract, 
or a failure to agree upon the contract action to be taken with respect 
thereto, shall be subject to the provisions of the clause entitled 
``Disputes'' in this contract.
    (g) Any action(s) taken by the contractor, in response to any 
direction given by any person acting on behalf of the government or any 
government official other than the contracting officer or the 
contracting officer technical representative, shall be at the 
contractor's risk.(End of clause)

 [FR Doc. E8-4153 Filed 3-3-08; 8:45 am]
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