[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]


      

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Part III





Department of Energy





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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  

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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

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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]
BILLING CODE 6450-01-P