[Federal Register Volume 60, Number 177 (Wednesday, September 13, 1995)]
[Rules and Regulations]
[Pages 47491-47492]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-22754]
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DEPARTMENT OF ENERGY
48 CFR Parts 923 and 970
RIN 1991-AB05
Acquisition Regulation; Acquisition and Use of Environmentally
Preferable Products and Services
AGENCY: Department of Energy.
ACTION: Final rule.
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SUMMARY: The Department of Energy (DOE) amends the Department of Energy
Acquisition Regulation (DEAR) to provide for the acquisition and use of
environmentally preferable products and services.
EFFECTIVE DATE: October 13, 1995.
FOR FURTHER INFORMATION CONTACT: P. Devers Weaver, Office of Policy
(HR-51), U.S. Department of Energy, 1000 Independence Avenue, SW.,
Washington, D.C. 20585; telephone 202-586-8250.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background.
II. Disposition of Comments.
III. Procedural Requirements.
A. Review Under Executive Order 12866.
B. Review Under the National Environmental Policy Act.
C. Review Under the Paperwork Reduction Act.
D. Review Under the Regulatory Flexibility Act.
E. Review Under Executive Order 12612.
G. Review Under Executive Order 12778.
I. Background
A proposed rule was published in the January 11, 1995, Federal
Register at 60 FR 2727. It proposed to amend the DEAR to provide a
contract clause, Acquisition and Use of Environmentally Preferable
Products and Services. The clause is to be incorporated in DOE
management and operating contracts to promote the acquisition and use
of environmentally preferable products and services, in accordance with
specified Department of Energy and other Federal policies.
Subparagraph (a)(3) of the clause Acquisition and Use of
Environmentally Preferable Products and Services (DEAR 970.5204-39) has
been amended to reflect the May 1, 1995, Environmental Protection
Agency rule at 40 CFR Part 247 (60 FR 21370) which superseded prior
Part 247 and removed 40 CFR Parts 248, 249, 250, 252, and 253.
We note an amendment to the Federal Acquisition Regulation (FAR)
covering environmentally preferable products published in the May 31,
1995, Federal Register (60 FR 28492). The FAR coverage addresses
Federal policy and contract clauses involving environmentally
preferable products. Today's rule is consistent with the FAR and
supplements the FAR with requirements that meet needs that are unique
to DOE management and operating contracts.
II. Disposition of Comments
Comments, due by March 13, 1995, were received from two
organizations. One was a DOE field organization and one was an
industrial firm in the private sector.
One comment suggests that DOE should delay finalization of the
proposed rule until the Environmental Protection Agency (EPA) publishes
further guidelines for the procurement of products containing recovered
materials, pursuant to Executive Order 12873 of October 20, 1993,
entitled ``Federal Acquisition Recycling and Waste Prevention.'' These
new EPA guidelines, according to the commenter, would evaluate products
based upon multiple attributes, such as energy consumption in the
manufacture of recycled products, rather than on the single factor of
being made from recycled contents.
DOE has adopted EPA guidelines for the acquisition and use of
products containing recovered materials (10 CFR Parts 247-253) based on
the expertise of the EPA in environmental matters. The contract clause
which is the subject of this rule requires DOE management and operating
contractors to comply with the requirements of the DOE ``Affirmative
Procurement Program for Products Containing Recovered Materials''
(APP). The APP will be periodically updated to account for changes in
EPA guidelines. Therefore, DOE will incorporate future changes in
published EPA guidelines and does not need to further delay publication
of this rule to accommodate this comment.
Another comment asked that subparagraph (a)(4) of the proposed
clause at 970.5204-39, Acquisition and Use of Environmentally
Preferable Products and Services, be amended by adding the words ``and
provided to the contractor by the Contracting Officer for
implementation'' at the end of the subparagraph, to ensure that a
contractor is aware of the existence of guidance documents. The
proposed clause provides that a contractor shall comply with
requirements in the document ``U.S. Department of Energy Affirmative
Procurement Program for Products Containing Recovered Materials,'' and
related guidance documents as they are identified in writing by the
contracting officer. It is necessary for DOE to identify the documents
with which a management and operating contractor is to comply, but this
does not require that the document be provided by the contracting
officer. (As a practical matter, DOE program officials will often
provide the contractor with the relevant guidance documents.) The
clause is not being amended.
III. Procedural Requirements
A. Review Under Executive Order 12866
This 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 action was not subject to review under the Executive
Order by the Office of Information and Regulatory Affairs.
B. Review Under the National Environmental Policy Act
Pursuant to the Council on Environmental Quality Regulations (40
CFR Parts 1500-1508), the Department has established guidelines for its
compliance with the provisions of the National Environmental Policy Act
(NEPA) of 1969 (42 U.S.C. 4321 et seq.). Pursuant to Subpart D of 10
CFR Part 1021, National Environmental Policy Act Implementing
Procedures, the Department of Energy has determined that this rule is
categorically excluded from the need to prepare an environmental impact
statement or environmental assessment. This rule establishes a clause
and practices for the purchase of goods and services and does not
require preparation of an environmental impact statement or an
environmental assessment under categorical exclusion A6 of Subpart D.
C. Review Under the Paperwork Reduction Act
To the extent that new information collection or recordkeeping
requirements are imposed by this rulemaking, they are provided for
under Office of Management and Budget paperwork clearance package No.
1910-0300.
[[Page 47492]]
D. Review Under the Regulatory Flexibility Act
This rule was reviewed under the Regulatory Flexibility Act of
1980, Pub. L. 96-354, which requires preparation of a regulatory
flexibility analysis for any rule which is likely to have significant
economic impact on a substantial number of small entities. This rule
will have no impact on interest rates, tax policies or liabilities, the
cost of goods or services, or other direct economic factors. It will
also not have any indirect economic consequences, such as changed
construction rates. DOE certifies that this rule will not have a
significant economic impact on a substantial number of small entities
and, therefore, no regulatory flexibility analysis has been prepared.
E. Review Under Executive Order 12612
Executive Order 12612 entitled ``Federalism,'' 52 FR 41685 (October
30, 1987), requires that regulations, rules, legislation, and any other
policy actions be reviewed for any substantial direct effects on
States, on the relationship between the Federal 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 of Energy
has determined that this rule will not have a substantial direct effect
on the institutional interests or traditional functions of States.
F. Review Under Executive Order 12778
Section 2 of Executive Order 12778 instructs each agency to adhere
to certain requirements in promulgating new regulations and reviewing
existing regulations. These requirements, set forth in sections 2(a)
and (b)(2), include eliminating drafting errors and needless ambiguity,
drafting the regulations to minimize litigation, providing clear and
certain legal standards for affected legal conduct, and promoting
simplification and burden reduction. Agencies are also instructed to
make every reasonable effort to ensure that the regulation: Specifies
clearly any preemptive effect, effect on existing Federal law or
regulation, and retroactive effect; describes any administrative
proceedings to be available prior to judicial review and any provisions
for the exhaustion of such administrative proceedings; and defines key
terms. DOE certifies that this rule meets the requirements of sections
2(a) and 2(b) of Executive Order 12778.
List of Subjects in 48 CFR Parts 923 and 970
Government procurement.
Issued in Washington, D.C. on Sept. 7, 1995.
Richard H. Hopf,
Deputy Assistant Secretary for Procurement and Assistance Management.
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 923--ENVIRONMENT, CONSERVATION, AND OCCUPATIONAL SAFETY
1. The authority citation for Part 923 continues to read as
follows:
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
2. New subpart 923.4 is added as follows:
Subpart 923.4--Use of Recovered Materials
923.471 Policy.
The DOE policy is to acquire items composed of the highest
percentage of recovered/recycled materials practicable (consistent with
published minimum content standards), without adversely affecting
performance requirements; consistent with maintaining a satisfactory
level of competition; and consistent with maintaining cost
effectiveness and not having a price premium paid for products
containing recovered/recycled materials.
PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS
3. The authority citation for Part 970 continues to read as
follows:
Authority: Sec. 161 of the Atomic Energy Act of 1954 (42 U.S.C.
2201), sec. 644 of the Department of Energy Organization Act, Pub.
L. 95-91 (42 U.S.C. 7254).
4. Section 970.2304 is added to read as follows:
970.2304 Use of Recovered/Recycled Materials.
970.2304-1 General.
The policy for the acquisition and use of environmentally
preferable products and services is described at 48 CFR (DEAR) subpart
923.4.
970.2304-2 Contract clause.
The contracting officer shall insert the clause at 48 CFR (DEAR)
970.5204-39, Acquisition and Use of Environmentally Preferable Products
and Services, in management and operating contracts.
5. To subpart 970.52 add section 970.5204-39 as follows:
970.5204-39 Acquisition and Use of Environmentally Preferable Products
and Services.
As prescribed in 48 CFR (DEAR) 970.2304-2, insert the following
clause in management and operating contracts.
ACQUISITION AND USE OF ENVIRONMENTALLY PREFERABLE PRODUCTS AND SERVICES
(OCT 1995)
(a) In the performance of this contract, the Contractor shall
comply with the requirements of the following issuances:
(1) Executive Order 12873 of October 20, 1993, entitled
``Federal Acquisition, Recycling, and Waste Prevention,''
(2) Section 6002 of the Resource Conservation and Recovery Act
(RCRA) of 1976, as amended (42 U.S.C. 6962, Pub. L. 94-580, 90 Stat.
2822),
(3) Title 40 of the Code of Federal Regulations, Subchapter I,
Part 247 (Comprehensive Guidelines for the Procurement of Products
Containing Recovered Materials) and such other Subchapter I Parts or
Comprehensive Procurement Guidelines as the Environmental Protection
Agency may issue from time to time as guidelines for the procurement
of products that contain recovered/recycled materials,
(4) ``U.S. Department of Energy Affirmative Procurement Program
for Products Containing Recovered Materials'' and related guidance
document(s), as they are identified in writing by the Department.
(b) The Contractor shall prepare and submit reports on matters
related to the use of environmentally preferable products and
services from time to time in accordance with written direction
(e.g., in a specified format) from the Contracting Officer.
(c) In complying with the requirements of paragraph (a) of this
clause, the Contractor shall coordinate its concerns and seek
implementing guidance on Federal and Departmental policy, plans, and
program guidance with the DOE recycling point of contact, who shall
be identified by the Contracting Officer. Reports required pursuant
to paragraph (b) of this clause, shall be submitted through the DOE
recycling point of contact.
[FR Doc. 95-22754 Filed 9-12-95; 8:45 am]
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