[Federal Register Volume 62, Number 229 (Friday, November 28, 1997)]
[Rules and Regulations]
[Pages 63424-63425]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-31256]
[[Page 63423]]
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Part II
Department of Energy
_______________________________________________________________________
48 CFR Part 970
Acquisition Regulation: Department of Energy Management and Operating
Contracts; Final Rule
Federal Register / Vol. 62, No. 229 / Friday, November 28, 1997 /
Rules and Regulations
[[Page 63424]]
DEPARTMENT OF ENERGY
48 CFR Part 970
RIN 1991-AB-37
Acquisition Regulation; Department of Energy Management and
Operating Contracts
AGENCY: Department of Energy.
ACTION: Final rule.
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SUMMARY: The Department of Energy (DOE) published a final rule amending
the Department of Energy Acquisition Regulation (DEAR) to incorporate
certain contract reform initiatives on June 27, 1997 (62 FR 34842).
Among the initiatives is the implementation of DOE's diversity policy,
which requires that contractors take appropriate action to develop and
meet diversity performance goals as part of their business operations.
DOE is adopting a diversity contract clause to ensure uniform
implementation of this policy in its management and operating
contracts.
EFFECTIVE DATE: December 29, 1997.
FOR FURTHER INFORMATION CONTACT: Gloria B. Smith, U.S. Department of
Energy, Office of Economic Impact and Diversity, 1000 Independence
Avenue, S.W., Washington, DC 20585-0901, (202) 586-8383, or Romulo L.
Diaz, Jr., Esq., U.S. Department of Energy, Office of General Counsel,
1000 Independence Avenue, S.W., Washington, DC 20585-0103, (202) 586-
2902.
SUPPLEMENTARY INFORMATION:
I. Introduction
In its Strategic Plan for Diversity, which was published in 1994,
the Department established goals for enhanced partnerships with small,
minority and women-owned businesses; minority educational institutions
(i.e., Historically Black Colleges and Universities; Hispanic serving
educational initiatives; and Native American Institutions); employees;
and communities. The Department's diversity goals were included in
amendments to the DEAR published on June 27, 1997 (62 FR 34842, 34864,
new Sec. 970.2601(b)). The Department has articulated on numerous
occasions its intent to evaluate contractor performance consistent with
DOE policies and authorities as they may be interpreted and implemented
in light of Adarand Constructors Inc. v. Pena, 115 S. Ct. 2097 (1995).
Notice of the Department's proposal to adopt a clause to be added
at 48 CFR Sec. 970.5204-81 for inclusion in all management and
operating contracts was published for public comment in the Federal
Register at 62 FR 44350 on August 20, 1997. Guidance for the
preparation of a diversity plan by a for-profit contractor--originally
developed for use with DOE's ``Sample Contract Provisions for
Department of Energy Performance Based Management Contracts (Model
Contract) with For-Profit Contractors''--was reproduced for
informational purposes as an appendix to the Department's proposal. (62
FR 44351) A public hearing on the proposed rulemaking was scheduled for
September 4, 1997, and the public comment period closed on September
19, 1997. No comments were received on the proposal, nor were there any
requests to speak at the public hearing. Accordingly, in order to
implement the Department's diversity policy found at 48 CFR
970.2601(b), the final rule adopts without modification the clause
previously proposed to be added at section 970.5204-81.
II. Procedural Requirements
A. Review Under Executive Order 12866
Today's regulatory action has been determined not to be a
``significant regulatory action'' under Executive Order 12866,
``Regulatory Planning and Review,'' (58 FR 51735, October 4, 1993).
Accordingly, today's action was not subject to review under the
Executive Order by the Office of Information and Regulatory Affairs.
B. Review Under Paperwork Reduction Act
DOE has determined that the clause requiring submission of a
diversity plan by DOE contractors is necessary to implement the
diversity policy enunciated at 48 CFR 970.2601(b). The information in
the diversity plan, to be submitted initially upon award of a new
contract and updated annually thereafter, will be used by DOE
contracting officers to evaluate contractor performance and determine
whether DOE's policy of developing innovative strategies to increase
opportunities for small, minority and women-owned businesses and
educational institutions is being advanced. Approximately 36 management
and operating contractors will be subject to the diversity plan. The
Department's best estimate is that the burden will average 40 hours per
contractor; the total annual burden is estimated to be approximately
1440 hours.
Comments were solicited on the Department's need for this
information in the proposed rule, whether the information would have
practical utility, the accuracy of the provided burden estimates, ways
to enhance the quality, utility, and clarity of the information to be
collected, and any other suggested methods for minimizing respondents'
burden. No comments were received.
The Office of Management and Budget approved the diversity plan
information collection on October 23, 1997, and assigned to it OMB
Number 1910-4100. OMB approval for the information collection expires
April 30, 1998.
An agency may not conduct or sponsor a collection of information
unless the collection of information contains a currently valid OMB
control number. 5 CFR 1320.5(b).
C. Review Under the National Environmental Policy Act
Pursuant to the Council on Environmental Quality Regulations (40
CFR Parts 1500-1508), the Department of Energy has established
regulations for its compliance with the National Environmental Policy
Act of 1969 (42 U.S.C. 4321 et seq.). Pursuant to Appendix A of Subpart
D of 10 CFR Part 1021, the Department has determined that today's
regulatory action is categorically excluded from the need to prepare an
environmental impact statement or an environmental assessment. Today's
rule amends an existing rule without changing its environmental effect
(Categorical Exemption A5).
D. Review Under Executive Order 12612
Executive Order 12612, 52 FR 41685 (October 30, 1987), requires
that rules be reviewed for any substantial direct effect on States, on
the relationship between the National Government and the States, or in
the distribution of power and responsibilities among various levels of
government. If there are sufficient substantial direct effects, then
the Executive Order requires preparation of a federalism assessment to
be used in all decisions involved in promulgating and implementing a
policy action. The Department has determined that this rulemaking will
not have a substantial direct effect on the institutional interests or
traditional functions of States.
E. Review Under Executive Order 12988
With regard to the review required by section 3(a) of Executive
Order 12988, DOE has completed the required review and determined that,
to the extent permitted by law, the regulations meet the relevant
standards of Executive Order 12988.
[[Page 63425]]
F. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. Secs. 601-612) requires
that an agency prepare an initial regulatory flexibility analysis, and
publish the analysis or a summary at the time of publication of general
notice of proposed rulemaking for the rule. 5 U.S.C. Sec. 603. This
requirement does not apply if the agency certifies that the rule will
not, if promulgated, have a significant economic impact on a
substantial number of small entities. 5 U.S.C. Sec. 605(b).
DOE certifies that requiring the inclusion of a clause in DOE
contracts which requires the contractor to submit a plan that explains
its approach and actions to promoting diversity, consistent with
Departmental policy, would not have a significant economic impact on a
substantial number of small entities. The diversity plan clause would
be included in all DOE management and operating contracts, which
historically have been cost reimbursement contracts. Thus, DOE believes
that this rule will not have an adverse economic impact on any small
entity.
G. Review Under the Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each federal agency to prepare a written assessment of the
effects of any federal mandate in a proposed or final agency rule that
may result in the expenditure by state, local, and tribal governments,
in the aggregate, or by the private sector, of $100 million in any one
year. The Act also requires a Federal agency to develop an effective
process to permit timely input by elected officers of state, local, and
tribal governments on a proposed ``significant intergovernmental
mandate,'' and it requires an agency to develop a plan for giving
notice and opportunity to timely input to potentially affected small
governments before establishing any requirements that might
significantly or uniquely affect small governments. The rule published
today does not contain any federal mandate, so these requirements do
not apply.
H. Congressional Notification
As required by 5 U.S.C. Sec. 801, DOE will report to Congress on
the promulgation of the rule prior to its effective date. The report
will state that it has been determined that the rule is not a ``major
rule'' as defined by 5 U.S.C. Sec. 804(2).
List of Subjects in 48 CFR Part 970
Government procurement.
Issued in Washington, DC, on November 21, 1997.
Federico Pena,
Secretary of Energy.
For the reasons set forth in the preamble, Chapter 9 of Title 48 of
the Code of Federal Regulations is amended as set forth below:
PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS
1. The authority citation for Part 970 continues to read as
follows:
Authority: Sec. 162 of the Atomic Energy Act of 1954 (42 U.S.C.
2201) and Sec. 644 of the Department of Energy Organization Act,
Public Law 95-91 (42 U.S.C. 7254).
2. Subsection 970.2602-2 is amended by redesignating the current
paragraph as paragraph (a), and by revising the title and adding a new
paragraph (b) to read as follows:
970.2602-2 Contract clauses.
* * * * *
(b) The Contracting Officer shall insert the clause at 48 CFR
(DEAR) 970.5204-81 Diversity Plan in management and operating
contracts.
3. Subpart 970.52 is amended to add section 970.5204-81 to read as
follows:
970.5204-81 Diversity Plan.
As prescribed in 48 CFR (DEAR) 970.2602-2(b), insert the following
clause.
Diversity Plan
(December 1997)
The Contractor shall submit a Diversity Plan to the Contracting
Officer for approval within 90 days after the effective date of this
contract. The contractor shall submit an update to its Plan with its
annual fee proposal. Guidance for preparation of a Diversity Plan is
provided in Appendix __. The Plan shall include innovative
strategies for increasing opportunities to fully use the talents and
capabilities of a diverse work force. The Plan shall address, at a
minimum, the Contractor's approach for promoting diversity through
(1) the Contractor's work force, (2) educational outreach, (3)
community involvement and outreach, (4) subcontracting, and (5)
economic development (including technology transfer).
[FR Doc. 97-31256 Filed 11-26-97; 8:45 am]
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