[Federal Register Volume 59, Number 25 (Monday, February 7, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: X94-10207]
[[Page Unknown]]
[Federal Register: February 7, 1994]
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DEPARTMENT OF ENERGY
48 CFR Part 970
Acquisition Regulation; Environmental Protection
AGENCY: Department of Energy.
ACTION: Final rule.
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SUMMARY: The Department of Energy (DOE) issues a final rule which
amends the Department of Energy Acquisition Regulation (DEAR) to
provide coverage on environmental protection for contractors operating
DOE facilities.
EFFECTIVE DATE: The rule will be effective March 9, 1994.
FOR FURTHER INFORMATION CONTACT: P. Devers Weaver, Procurement Policy
Division (HR-521.1), U.S. Department of Energy, 1000 Independence
Avenue, SW., Washington, DC 20585; telephone 202-586-8250.
SUPPLEMENTARY INFORMATION:
I. Background
II. Section-by-Section Analysis
III. Public Comments
IV. Procedural Requirements
I. Background
In this rule the Department of Energy wishes to more clearly
communicate the importance of the protection of the environment, and it
wishes to enhance compliance with applicable environmental protection
laws, codes, ordinances, and regulations by contractors operating
facilities of the Department. To accomplish this, a new clause,
Environmental Protection, to be included in DOE contracts was proposed
in a notice of proposed rulemaking, published in the August 28, 1991,
Federal Register (56 FR 42584), and is now promulgated in this final
rule.
II. Section-by-Section Analysis
Section 970.5204-62 and 970.2303-2(e) provide a clause and clause
prescription for the use of the clause, Environmental Protection. To
the list of environmental laws and Executive Orders appearing in the
proposed rule have been added entries at 970.5204-62(a)(3), at (a)(15)
to (a)(19) and at (b)(12) and (b)(13). These refer to laws and
Executive Orders that have become effective since the time the proposed
rule was developed or that were overlooked at the time the proposed
rule was developed.
III. Public Comments
a. General
DOE invited interested persons to participate in this rulemaking by
submitting data, views, or arguments with respect to the DEAR
amendments set forth in the notice of proposed rulemaking. Comments
were received from 8 business firms and universities, many of which are
DOE management and operating contractors.
b. Safety and Permits
Comments were received regarding the proposed coverage on the
clause at proposed DEAR 970.5204-2, Safety and Health (Government-owned
or -leased facility), and the clause at proposed DEAR 970.5204-29,
Permits or Licenses. In part DOE agrees with some of the comments
offered and for these and other reasons has decided not to amend the
DEAR coverage on these two clauses at this time. Also, conforming
amendments, related to the two clauses, at proposed DEAR 970.2303-2(a)
and 970.7104-21 will not be made at this time. Should the Department
decide to revise these clauses in the future, a notice of proposed
rulemaking would be issued.
c. Environmental Protection
Comments were offered that the changes in the proposed rule were
burdensome, would have an adverse impact on operations, and would
require a significant increase in administrative and oversight effort
for no apparent effort. Another comment noted a tendency to formalize
good management practices into rigid contractual requirements that can
only have the long-run effect of limiting the ability of management and
operating contractors to respond innovatively and creatively to
changing conditions. Administration of clause requirements has been
substantially reduced by the deletion of requirements from the proposed
Environmental Protection clause in paragraphs, at proposed DEAR
970.5204-60(c) (1), (2) and (3). These involved the need for a
contractor to research laws on an ongoing basis, identify any
inconsistencies that would affect performance, and to include
consideration of environmental laws in planning.
d. Effects of Funding on Compliance
A comment was received stating that the rule did not recognize the
significant joint management relationship between DOE and its
management and operating contractors, that funding for compliance is
controlled by DOE, that pre-existing conditions preclude strict and
immediate or near-term compliance in most DOE facilities, and they
create ambiguity as to an established baseline for compliance. Another
comment stated that it was not clear how the provisions of the
avoidable cost rule, published in the Federal Register of June 19, 1991
(56 FR 28099), relate to the proposed rule; it did not appear that a
management and operating contractor would have sole and exclusive
control of the required compliance actions. Resolution of these
comments is outside the scope of this rule. It is appropriate for a
contract to provide for compliance with applicable laws for which DOE
has some enforcement responsibility role. It is also the case that a
management and operating contractor's obligation to perform under a
contract is contingent upon funds being obligated under the contract.
Problems related to insufficient funding to comply with the law are
best resolved on a case-by-case basis.
e. Paperwork Burden
Several commenters perceived that an additional paperwork burden
would be imposed by the proposed rule. The Department does not believe
that this rulemaking imposes material additional paperwork burden. The
primary basis for this conclusion is as follows: to the extent that any
paperwork burden exists, such requirements are already contained in
state and Federal environmental laws and their implementing
regulations, and thus do not result from this rule. Since current
management and operating contracts state that work under the contract
must be performed in compliance with applicable laws, and since the
effect of the rule is simply to clarify that the requirements of all
applicable environmental laws and regulations are not waived for
contractors (by virtue of the fact that work is being performed for the
Government under contract), the rule contains no material ``new''
requirements and therefore, no additional paperwork is required. The
Department believes that the public comments on additional paperwork
burden may reflect a new awareness on the part of some contractors that
DOE has undergone a shift in its emphasis on environmental protection.
To the extent that the rulemaking does impose information collection or
recordkeeping requirements, they have been provided for under Office of
Management and Budget paperwork clearance package No. 1910-0300.
f. Environmental Protection
Several commenters expressed concern over the identification of
laws, codes, ordinances, regulations, and directives by which DOE
intends to monitor compliance. It was said that the proposed rulemaking
appeared to shift the burden of identifying and complying with
environmental laws and regulations from the contractor to the
Government. If the Government failed to list a specific law or
regulation, it could call into question whether or not the contractor
is obligated to comply. In response to these comments the Environmental
Protection clause at paragraph (a)(21) has been revised to state,
``errors in or omissions from the list of laws above, or failure to
identify a requirement having the force and effect of law, shall not be
construed as waiving a requirement for the contractor to comply with
such law or requirement nor shall they form the basis for a defense by
the contractor in an administrative, civil, or criminal proceeding. * *
*''
Comments were offered that the Environmental Protection clause, now
at paragraphs (a)(20) and (a)(21), is open-ended and permits DOE to
unilaterally modify a contract by incorporating as-yet unpublished
directives into the contract. Because of the special nature of
environmental protection Directives, it is appropriate that DOE have
the right to require compliance with them by its management and
operating contractors. This provision is not unlike that in the Safety
and Health (Government Owned or Leased Facility) clause (DEAR 970.5204-
2) and the Security clause (DEAR 952.204-2). If there is a persuasive
reason why a management and operating contractor should not comply with
a requirement in a Directive, this can be a topic of discussion during
the negotiation of a contract or at any time during the performance of
the contract.
IV. Procedural Requirements
a. Regulatory Review
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
f. Review Under Executive Order 12778
a. Regulatory Review
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 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 Appendix A of
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.
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.
d. Review Under the Regulatory Flexibility Act
This rule was reviewed under the Regulatory Flexibility Act of
1980, Public Law 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. This rule will not
affect States substantially.
f. Review Under Executive Order 12778
Section 2 of Executive Order 12778 instructs each agency subject to
Executive Order 12291 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 Part 970
Government procurement.
Issued in Washington, D.C. on February 1, 1994.
G. L. Allen,
Acting 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 970--DOE MANAGEMENT AND OPERATING CONTRACTS
1. 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, Public
Law 95-91 (42 U.S.C. 7254), sec. 201 of the Federal Civilian
Employee and Contractor Travel Expenses Act of 1985 (41 U.S.C. 420)
and sec. 1534 of the Department of Defense Authorization Act, 1986,
Public Law 99-145 (42 U.S.C. 7256a), as amended.
2. Section 970.2303-2 is amended by adding paragraph (e) as
follows:
970.2303-2 Clauses.
* * * * *
(e) The clause at 970.5204-62 shall be included in management and
operating contracts.
3. To subpart 970.52 add section 970.5204-62 as follows:
970.5204-62 Environmental protection.
Environmental Protection (Mar 1994)
(a) In addition to complying with the requirements set forth in
the ``Clean Air and Water'' clause, in the performance of this
contract the contractor shall comply, as applicable, with the
following, which list is not represented to be free of omissions:
(1) The Atomic Energy Act of 1954, as amended (42 U.S.C. 2011 et
seq.);
(2) The Department of Energy Organization Act (42 U.S.C. 7101 et
seq.);
(3) The Energy Reorganization Act of 1974 (42 U.S.C. 5801 et
seq.);
(4) The Resource Conservation and Recovery Act of 1976, as
amended (42 U.S.C. 6901 et seq.);
(5) The Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (42 U.S.C. 9601 et seq.);
(6) The Safe Drinking Water Act, as amended (42 U.S.C. 300 et
seq.);
(7) The Toxic Substances Control Act, as amended (15 U.S.C. 2601
et seq.);
(8) The Federal Insecticide, Fungicide, and Rodenticide Act, as
amended
(7 U.S.C. 136 et seq.);
(9) The Marine Protection, Research, and Sanctuaries Act of
1972, as amended (33 U.S.C. 1401 et seq.);
(10) The Coastal Zone Management Act of 1972, as amended (16
U.S.C. 1451 et seq.);
(11) The Coastal Barrier Resource Act of 1982 (16 U.S.C. 3501 et
seq.);
(12) The Nuclear Waste Policy Act of 1982, as amended (42 U.S.C.
10101 et seq.);
(13) The Low-Level Radioactive Waste Policy Act, as amended (42
U.S.C. 2021 et seq.);
(14) The Uranium Mill Tailings Radiation Control Act of 1978, as
amended (42 U.S.C. 7901 et seq.);
(15) Pollution Prevention Act of 1990, as amended (42 U.S.C.
13101 et seq.);
(16) Emergency Planning and Community Right-to-Know Act, as
amended (42 U.S.C. 11001 et seq.);
(17) Motor Vehicle Information and Cost Savings Act, as amended
(15 U.S.C. 1901 et seq.);
(18) Energy Policy Act of 1992 (Public Law 102-486 and 3 U.S.C.
301);
(19) Energy Policy and Conservation Act (42 U.S.C. 6201 et
seq.);
(20) Code of Federal Regulations, Title 10 (Energy), parts
involving environmental protection and related requirements for
contractors;
(21) DOE Directives (i.e., Orders and Notices) numbered in the
series between 1540 and 1541 (Materiels), between 5000.2 and 5000.4
(Unusual Occurrence Reporting), in the series between 5400 and 5500
(Environmental Quality and Impact), and between 5820.1 and 5820.3
(Radioactive Waste Management), and involving requirements for
contractors; and
(22) Other, Federal and non-Federal, environmental protection
laws, codes, ordinances, Executive Orders, regulations, and
requirements in DOE Directives, as identified in writing by the
contracting officer. Errors in or omissions from the list of laws
above, or failure to identify a requirement having the force and
effect of law, shall not be construed as waiving a requirement for
the contractor to comply with such law or requirement nor shall they
form the basis for a defense by the contractor in an administrative,
civil, or criminal proceeding, including providing a basis for a
claim for the allowability of a fine, penalty, or other cost
associated with failure to comply with such law or requirement.
(b) The contractor shall assist the Department of Energy in
complying, as applicable, with the following:
(1) The National Environmental Policy Act of 1969, as amended
(42 U.S.C. 4321 et seq.);
(2) The Endangered Species Act of 1973, as amended (16 U.S.C.
1531 et seq.);
(3) The Fish and Wildlife Coordination Act, as amended (16
U.S.C. 661 et seq.);
(4) The Noise Control Act of 1972, as amended (42 U.S.C. 4901 et
seq.);
(5) The National Historic Preservation Act of 1966, as amended
(16 U.S.C. 470 et seq.);
(6) The Wild and Scenic Rivers Act, as amended (16 U.S.C. 1273
et seq.);
(7) Farmland Protection Policy Act of 1981 (7 U.S.C. 4201 et
seq.);
(8) Executive Order 11988 of May 24, 1977, Floodplain
Management;
(9) Executive Order 11990, of May 24, 1977, Protection of
Wetlands;
(10) Executive Order 12088 of October 13, 1978, Federal
Compliance with Pollution Control Standards;
(11) Executive Order 12580 of January 23, 1987, Superfund
Implementation;
(12) Executive Order 12843 of April 23, 1993, Procurement
Requirements and Policies for Ozone-Depleting Substances;
(13) Executive Order 12845 of April 23, 1993, Requiring Agencies
to Purchase Energy Efficient Computer Equipment;
(14) Office of Management and Budget (OMB) Circular No. A-106 of
December 31, 1974, Reporting Requirements in Connection with the
Prevention, Control, and Abatement of Environmental Pollution of
Existing Federal Facilities; and
(15) Other, Federal and non-Federal, environmental protection
laws, codes, ordinances, regulations, and DOE Directives, as
identified in writing by the contracting officer.
(c) The contractor shall, with regard to the environmental
protection laws, codes, ordinances, Executive Orders, regulations
and directives included in or covered by paragraphs (a) and (b) of
this clause, set forth appropriate environmental protection
requirements in subcontracts with respect to work to be performed
on-site at a DOE-owned or -leased facility.
(End of Clause)