[Federal Register Volume 62, Number 161 (Wednesday, August 20, 1997)]
[Proposed Rules]
[Pages 44350-44352]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-21963]
[[Page 44349]]
_______________________________________________________________________
Part III
Department of Energy
_______________________________________________________________________
48 CFR Part 970
Acquisition Regulation; Department of Energy Management and Operating
Contracts; Proposed Rule
Federal Register / Vol. 62, No. 161 / Wednesday, August 20, 1997 /
Proposed Rules
[[Page 44350]]
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: Notice of proposed rulemaking.
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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 proposes to adopt a diversity contract clause to ensure uniform
implementation of this policy in its management and operating
contracts.
DATES: Written comments (1 copy) on this proposal must be submitted by
September 19, 1997. A public hearing will be held on September 4, 1997,
beginning at 2:00 p.m. local time at the address listed below. Requests
to speak at the hearing should be received by 4:30 p.m. local time on
September 2, 1997. Later requests will be accommodated to the extent
practicable.
ADDRESSES: All comments, as well as requests to speak at the public
hearing, are to be submitted to the Office of Executive Secretariat,
Department of Energy, 1000 Independence Avenue, S.W., Washington, DC
20585-0101, or (202) 586-4403 (facsimile).
The public hearing will be held at the U.S. Department of Energy,
Small Auditorium (Room GJ-015), Forrestal Building, 1000 Independence
Avenue, SW, Washington, DC.
The administrative record regarding this rulemaking that is on file
for public inspection, including a copy of the transcript of the public
hearing and any written public comments received, is located in the
Department of Energy Freedom of Information Reading Room, Forrestal
Building, Room 1E-190, 1000 Independence Avenue, SW, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Gloria B. Smith, U.S. Department of
Energy, Office of Economic Impact and Diversity, 1000 Independence
Avenue, SW, 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, SW, Washington, DC 20585-0103, 202) 586-2902.
SUPPLEMENTARY INFORMATION: 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 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). A contract clause is proposed to be
added at 970.5204-xx for inclusion in all management and operating
contracts, which would implement the Department's diversity policy
found at 48 CFR 970.2601(b).
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'' and
subsequently revised--is reproduced for informational purposes as an
appendix to this preamble. Notice of the availability of the Model
Contract was published in the Commerce Business Daily on February 13,
1995.
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 proposed clause requiring submission of
a diversity plan by DOE contractors is necessary to implement the
diversity policy enunciated at 48 CFR Sec. 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.
The requirement that DOE contractors submit a diversity plan, which
would be established by this DEAR amendment, has been submitted to the
Office of Management and Budget (OMB) for review under section 3507(d)
of the Paperwork Reduction Act (PRA), 44 U.S.C. Sec. 3507(d). Under the
PRA, the Department must obtain OMB approval of an information
collection, and no person is required to respond to an information
collection request unless the form or regulation requesting the
information has a currently valid OMB control number.
Comments are solicited on the Department's need for this
information, 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. To ensure
consideration by OMB, comments on any aspect of the information
collection should be sent within 30 days after publication of this
notice to the contact listed at the beginning of this notice and to the
Office of Management and Budget, Office of Information and Regulatory
Affairs, Room 3019, Washington, DC 20503, Attn: Desk Officer for the
Department of Energy.
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. Sec. 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.
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
[[Page 44351]]
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 proposed regulations meet the
relevant standards of Executive Order 12988.
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 proposed rule, if promulgated, would 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 proposed rule
published today does not contain any Federal mandate, so these
requirements do not apply.
Appendix--Model Contract Guidance for Preparation of Diversity Plan
This Guidance is to assist the contractor in understanding the
information being sought by the Department for each of the Diversity
elements and where these issues may already be addressed in the
contract. To the extent these issues are already addressed in a
contract, the Contractor need only cross reference the location.
Work Force
This contract includes clauses on Equal Opportunity and
Affirmative Action. The Contractor should discuss its policies and
plans for implementation of these clauses in its operations. If the
Contractor already has procedures in place, these should be
discussed and copies provided.
Educational Outreach
The Contractor should outline or discuss any programs already
provided, or which it intends to provide, which will provide
employees an opportunity to improve their employment skills and
opportunities. These programs may already be discussed in the
proposal submitted for this contract or in the contract itself and
could include: educational assistance allowances, provision for
outside training programs either during or outside regular work
hours, and executive training programs for non-executive employees.
The Contractor should also discuss any plans to participate in any
programs supporting Historically Black Colleges and Universities,
Hispanic Serving Institutions and Native American Institutions.
Community Involvement and Outreach
An offeror's proposal or this contract may include a section
dealing with community involvement and outreach activities. In that
event, those sections may be cross referenced and do not need to be
repeated. Contractor community relations activities could include
support for the following activities: support for science,
mathematics and engineering education; support for community service
organizations; assistance to governmental and community service
organizations and for equal opportunity activities; and community
assistance in connection with work force reduction plans. The
Contractor may provide support to these activities through direct
sponsorship or making individual employees available to work with
the specific community activity. The Contractor's Diversity Plan
should discuss the Contractor's existing and planned activities
promoting community involvement of its employees as well as the
corporation.
Subcontracting
If appropriate to the contractor, the contract will contain FAR
52.219-9, ``Small, Small Disadvantaged, and Woman-owned Small
Business Subcontracting Plan'' (Aug. 1996) and other small business
related clauses. Additionally, the RFP may have contained additional
guidance on small business subcontracting. The Contractor should
briefly summarize its subcontracting plan. If the Contractor is
participating, or plans to participate, in the Department's Mentor-
Protege Program, this involvement, or planned involvement, should be
summarized. Information concerning its subcontracting plans already
submitted and approved do not need to be redeveloped or
renegotiated.
Economic Development (Including Technology Transfer)
Many of the Department's contracts include clauses dealing with
technology transfer. Planning or activities developed under such
clauses may apply to this element of the Contractor's Diversity
Plan. Additionally, some of the subcontracting activities planned by
the Contractor with small business, small disadvantaged businesses,
or woman-owned small businesses may be entered into for the purpose
of assisting the economic development of or transferring technology
to such a business. The Contractor's Diversity Plan should outline
and discuss its planned activities promoting economic
diversification of the local community.
List of Subjects in 48 CFR Part 970
Government procurement.
Issued in Washington, DC, on August 13, 1997.
Stephen D. Mournighan,
Director, Office of Management Systems, Procurement and Assistance
Management.
For the reasons set forth in the preamble, Chapter 9 of Title 48 of
the Code of Federal Regulations is proposed to be 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)
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970.5204-xx Diversity Plan in management and operating contracts.
3. Subpart 970.52 is amended to add section 970.5204-xx to read as
follows:
970.5204-xx Diversity Plan.
As prescribed in 48 CFR (DEAR) 970.2602-2(b), insert the following
clause.
Diversity Plan
(Month and Year TBE)
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. 97-21963 Filed 8-19-97; 8:45 am]
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