[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)