[Federal Register Volume 65, Number 231 (Thursday, November 30, 2000)]
[Proposed Rules]
[Pages 71292-71295]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-30313]
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DEPARTMENT OF ENERGY
48 CFR Parts 923, 936 and 970
RIN 1991-AB47
Acquisition Regulations: Acquisition of Products Containing
Recovered Materials
AGENCY: Department of Energy.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Energy (DOE) is proposing to amend its
acquisition regulations to implement Executive Order 13101, dated
September 14, 1998, entitled Greening the Government Through Waste
Prevention, Recycling, and Federal Acquisition.
DATES: Written comments on the proposed rulemaking must be received on
or before close of business January 2, 2001.
ADDRESSES: Comments should be addressed to: Richard Langston, MA-51,
U.S. Department of Energy, Office of Procurement and Assistance
Management 1000 Independence Avenue, SW., Washington, D.C. 20585
[[Page 71293]]
FOR FURTHER INFORMATION CONTACT: Richard Langston at (202) 586-8247 or
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background.
II. Section by Section Analysis.
III. Procedural Requirements.
A. Review Under Executive Order 12866.
B. Review Under Executive Order 12988.
C. Review Under the Regulatory Flexibility Act.
D. Review Under the Paperwork Reduction Act.
E. Review Under the National Environmental Policy Act.
F. Review Under Executive Order 13132.
G. Review Under the Unfunded Mandates Reform Act of 1995.
H. Review Under the Treasury and General Government
Appropriations Act, 1999.
I. Background
The purpose of this proposed rulemaking is to provide additional
guidance regarding Executive Order 13101, dated September 14, 1998 (63
FR 49641), entitled Greening the Government Through Waste Prevention,
Recycling, and Federal Acquisition which superceded Executive Order
12873, dated October 20, 1993, Federal Acquisition, Recycling, and
Waste Prevention.
A rule has been proposed to amend the Department of Energy
Acquisition Regulation to streamline policies, procedures, provisions,
and clauses contained in Part 970 relative to the Department's
management and operating contracts (65 FR 13418, March 13, 2000). It
may be necessary to revise certain of the citations in this proposed
rule if the other action is finalized prior to this action being
finalized.
II. Section-by-Section Analysis
The Department of Energy proposes to amend the regulation as
follows:
1. The authority citation is revised.
2. A new section 923.405, Procedures, is being added to note that
the percentage of recycled content included in the EPA Recovered
Materials Advisory Notice (RMAN) is to be specified in the solicitation
as the minimum recycled content.
3. Section 923.471, Policy, is being deleted as unnecessarily
duplicative of FAR coverage at 23.403.
4. A new section 923.705, Contract clause, will be added to
supplement the FAR instruction concerning the clause at 52.223-10. It
specifies that the clause is to be used in prime contracts for support
services performed at Government-owned or Government-leased facilities
and in contracts for operation of a Government-owned or Government-
leased facility.
5. A new 936.601-3 is added to supplement FAR coverage regarding
Architect-Engineer (A-E) work statement preparation.
6. Section 936.602-70 is modified by the addition of a new
paragraph (a)(8) regarding consideration of energy efficiency,
pollution prevention, waste reduction, and the use of recovered
materials when performing A-E evaluations.
7. Section 970.2304 is being updated to include reference to 48 CFR
(FAR) 23.4 and 23.7 and revised to provide guidance concerning
circumstances under which the clause at 970.5204-39 should be included
in subcontracts.
8. The clause at 970.5204-39 is being updated and revised to
include guidance concerning circumstances under which the clause should
be included in subcontracts.
III. 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, this proposed rule is not subject to review under that
Executive Order by the Office of Information and Regulatory Affairs of
the Office of Management and Budget (OMB).
B. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on
Executive agencies the general duty to adhere to the following
requirements: (1) Eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction. With regard to the review
required by section 3(a), section 3(b) of Executive Order 12988
specifically requires that Executive agencies make every reasonable
effort to ensure that the regulation: (1) Clearly specifies the
preemptive effect, if any; (2) clearly specifies any effect on existing
Federal law or regulation; (3) provides a clear legal standard for
affected conduct while promoting simplification and burden reduction;
(4) specifies the retroactive effect, if any; (5) adequately defines
key terms; and (6) addresses other important issues affecting clarity
and general draftsmanship under any guidelines issued by the Attorney
General. Section 3(c) of Executive Order 12988 requires Executive
agencies to review regulations in light of applicable standards in
section 3(a) and section 3(b) to determine whether they are met or it
is unreasonable to meet one or more of them. DOE has completed the
required review and determined that, to the extent permitted by law,
these proposed regulations meet the relevant standards of Executive
Order 12988.
C. Review Under the Regulatory Flexibility Act
This proposed rule has been reviewed under the Regulatory
Flexibility Act, 5 U.S.C. 601 et seq., which requires preparation of an
initial regulatory flexibility analysis for any rule that must be
proposed for public comment and that is likely to have significant
economic impact on a substantial number of small entities. The proposed
rule, which would implement provisions of Executive Order 13101
concerning use of recycled materials, would not have a significant
economic impact on small entities. While rule requirements may flow
down to subcontractors in certain circumstances, the costs of
compliance are not estimated to be large and, in any event, would be
reimbursable expenses under the contract or subcontract.
Accordingly, DOE certifies that this proposed rule would not have a
significant economic impact on a substantial number of small entities,
and, therefore, no regulatory flexibility analysis has been prepared.
D. Review Under the Paperwork Reduction Act
Information collection or record keeping requirements contained in
this rulemaking have been previously cleared under Office of Management
and Budget paperwork clearance package Number 1910-0300. There are no
new burdens imposed by this rule.
E. Review Under the National Environmental Policy Act
DOE has concluded that promulgation of this proposed rule falls
into a class of actions which would not individually or cumulatively
have significant impact on the human environment, as determined by
DOE's regulations (10 CFR part 1021, subpart D) implementing the
National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et
seq.). Specifically, this proposed rule is categorically excluded from
NEPA review because the amendments to the DEAR would be strictly
procedural (categorical exclusion A6). Therefore, this proposed rule
does not require an
[[Page 71294]]
environmental impact statement or environmental assessment pursuant to
NEPA.
F. Review Under Executive Order 13132
Executive Order 13132 (64 FR 43255, August 4, 1999) imposes certain
requirements on agencies formulating and implementing policies or
regulations that preempt State law or that have federalism
implications. Agencies are required to examine the constitutional and
statutory authority supporting any action that would limit the
policymaking discretion of the States and carefully assess the
necessity for such actions. DOE has examined today's proposed rule and
has determined that it does not preempt State law and does not have a
substantial direct effect 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. No further
action is required by Executive Order 13132.
G. Review Under the Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally
requires a Federal agency to perform a detailed assessment of costs and
benefits of any rule imposing a Federal Mandate with costs to State,
local or tribal governments, or to the private sector, of $100 million
or more. This proposed rulemaking would only affect private sector
entities, and the impact is less than $100 million.
H. Review Under the Treasury and General Government Appropriations Act,
1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a
Family Policymaking Assessment for any proposed rule or policy that may
affect family well-being. This rulemaking will have no impact on family
well being.
List of Subjects in 48 CFR Parts 923, 936 and 970
Government procurement.
Issued in Washington, D.C. on November 16, 2000.
T. J. Glauthier,
Deputy Secretary of Energy.
For the reasons set out in the preamble, Chapter 9 of Title 48 of
the Code of Federal Regulations is proposed to be amended as set forth
below.
1. The authority citations for parts 923 and 936 are revised to
read as follows:
Authority: Atomic Energy Act of 1954 (42 U.S.C. 2201);
Department of Energy Organization Act (42 U.S.C. 7101, et seq.);
National Nuclear Security Administration Act (50 U.S.C. 2401 et
seq.).
PART 923--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-
FREE WORKPLACE
2. Section 923.405(e) is added to read as follows:
Sec. 923.405 Procedures [DOE supplemental coverage--paragraph (e)].
(e) When acquiring items designated in the EPA Comprehensive
Procurement Guidelines, the EPA recommended percentage of recovered/
recycled content contained in the Recovered Materials Advisory Notice
(RMAN) shall be specified in the solicitation as the minimum percentage
of recycled content. Acquisition of products with recycled contents
exceeding the RMAN recommended content is encouraged if their
performance is acceptable.
Sec. 923.471 [Removed and Reserved].
3. Section 923.471 is removed and reserved.
4. Subpart 923.7 is added to read as follows:
Subpart 923.7--Contracting for Environmentally Preferable and
Energy-Efficient Products and Services
Sec. 923.705 Contract clause.
Pursuant to 48 CFR (FAR) 23.704, the clause at 48 CFR (FAR) 52.223-
10 should be included in solicitations and contracts for prime support
service awards being performed at Government-owned or Government-leased
facilities and in contracts for operation of a Government-owned or
Government-leased facility.
PART 936--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
5. Section 936.601-3 is added to read as follows:
Sec. 936.601-3 Applicable contract procedures.
Executive Order 13123, Section 403(d), requires agencies to apply
sustainable design principles to the siting, design, and construction
of new facilities. Contracting activities shall optimize life-cycle
costs, recycled materials, pollution prevention, and other
environmental and energy efficiency considerations associated with the
construction, life-cycle operation, and decommissioning of their
facilities. Contracting activities shall consider using Energy Savings
Performance Contracts or utility energy-efficiency service contracts to
aid them in constructing sustainable design buildings.
6. Section 936.602-70 is amended by adding paragraph (a)(8) to read
as follows:
Sec. 936.602-70 DOE selection criteria.
* * * * *
(a) * * *
(8) In addition to these requirements, consider the Architect
Engineer firms' experience in energy efficiency, pollution prevention,
waste reduction, and the use of recovered materials and other criteria
at FAR 36.602-1.
* * * * *
PART 970--MANAGEMENT AND OPERATING CONTRACTS
7. The authority citation for part 970 continues to read as
follows:
Authority: Atomic Energy Act of 1954 (42 U.S.C. 2201);
Department of Energy Organization Act (42 U.S.C. 7101, et seq.);
National Nuclear Security Administration Act (50 U.S.C. 2401 et
seq.).
Subpart 970.23--Environment, Conservation, Occupational Safety, and
Drug-Free Workplace
8. Sections 970.2304, 970.2304-1, and 970.2304-2 are revised to
read as follows:
Sec. 970.2304 Use of recovered/recycled materials.
Sec. 970.2304-1 General.
The policy for the acquisition and use of EPA designated items,
i.e. items with recovered/recycled content, is set forth at 48 CFR
(FAR) 23.4--Use of Recovered Materials as supplemented by 48 CFR (DEAR)
923.405(e) and by 48 CFR (FAR) 23.705, Application to Government-owned
or Government-leased facilities, and 48 CFR (FAR) 23.706, Contract
clause, as supplemented by 48 CFR (DEAR) 923.706.
Sec. 970.2304-2 Contract clause.
The contracting officer shall insert the clause at 48 CFR (FAR)
52.223-10, Waste Reduction Program, and the clause at 48 CFR (DEAR)
970.5204-39, Affirmative Procurement Program, in contracts for the
management of DOE facilities including national laboratories. If the
contractor subcontracts a significant portion of the logistical
operation of the Government facility, or subcontracts for construction
or remodeling at the facility, which includes the acquisition of items
designated in EPA's Comprehensive Procurement Guidelines that Federal
agencies and their contractors are to acquire with recovered/recycled
[[Page 71295]]
content, the subcontract shall contain the clause at 48 CFR (DEAR)
970.5204-39. Examples of such subcontracts would be operation of the
facility supply function, construction or remodeling at the facility,
or operation of the facility motor vehicle fleet.
Subpart 970.52--Contract Clauses for Management and Operating
Contracts
9. Section 970.5204-39 is revised to read as follows:
Sec. 970.5204-39 Affirmative procurement program.
As prescribed in 48 CFR (DEAR) 970.2304-2, insert the following
clause in contracts for the management of DOE facilities, including
national laboratories.
Affirmative Procurement Program (xxx 2000)
(a) In the performance of this contract, the Contractor shall
comply with the requirements of the U.S. Department of Energy
Affirmative Procurement Program Guidance which is available on the
Internet.
(b) In complying with the requirements of paragraph (a) of this
clause, the Contractor shall coordinate its activities with the DOE
Recycling Coordinator. Reports required by paragraph (c) of this
clause shall be submitted through the DOE Recycling Coordinator.
(c) The contractor shall prepare and submit reports on matters
related to the acquisition of items designated in EPA's
Comprehensive Procurement Guidelines that Federal agencies and their
contractors are to procure with recovered/recycled content at the
conclusion of each fiscal year.
(d) If the contractor subcontracts a significant portion of the
logistical operation of the Government facility or subcontracts for
construction or remodeling at the facility which includes the
acquisition of items designated in EPA's Comprehensive Procurement
Guidelines that Federal agencies and their contractors are to
acquire with recovered/recycled content, the subcontract shall
contain the clause at 48 CFR (DEAR) 970.5204-39. Examples of such a
subcontract would be operation of the facility supply function,
construction or remodeling at the facility, or operation of the
facility motor vehicle fleet.
(e) When this clause is used in a subcontract, the word
``contractor'' will be understood to mean ``subcontractor'' and the
term ``DOE Recycling Coordinator'' will be understood to mean
``Contractor Recycling Coordinator.''
[FR Doc. 00-30313 Filed 11-29-00; 8:45 am]
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