[Federal Register Volume 62, Number 229 (Friday, November 28, 1997)]
[Rules and Regulations]
[Pages 63424-63425]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-31256]



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Part II





Department of Energy





_______________________________________________________________________



48 CFR Part 970



Acquisition Regulation: Department of Energy Management and Operating 
Contracts; Final Rule

  Federal Register / Vol. 62, No. 229 / Friday, November 28, 1997 / 
Rules and Regulations  

[[Page 63424]]



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: Final rule.

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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 is adopting a diversity contract clause to ensure uniform 
implementation of this policy in its management and operating 
contracts.

EFFECTIVE DATE: December 29, 1997.

FOR FURTHER INFORMATION CONTACT: Gloria B. Smith, U.S. Department of 
Energy, Office of Economic Impact and Diversity, 1000 Independence 
Avenue, S.W., 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, S.W., Washington, DC 20585-0103, (202) 586-
2902.

SUPPLEMENTARY INFORMATION:

I. Introduction

    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's diversity goals were included in 
amendments to the DEAR published on June 27, 1997 (62 FR 34842, 34864, 
new Sec. 970.2601(b)). 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).
    Notice of the Department's proposal to adopt a clause to be added 
at 48 CFR Sec. 970.5204-81 for inclusion in all management and 
operating contracts was published for public comment in the Federal 
Register at 62 FR 44350 on August 20, 1997. 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''--was reproduced for 
informational purposes as an appendix to the Department's proposal. (62 
FR 44351) A public hearing on the proposed rulemaking was scheduled for 
September 4, 1997, and the public comment period closed on September 
19, 1997. No comments were received on the proposal, nor were there any 
requests to speak at the public hearing. Accordingly, in order to 
implement the Department's diversity policy found at 48 CFR 
970.2601(b), the final rule adopts without modification the clause 
previously proposed to be added at section 970.5204-81.

II. 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 clause requiring submission of a 
diversity plan by DOE contractors is necessary to implement the 
diversity policy enunciated at 48 CFR 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.
    Comments were solicited on the Department's need for this 
information in the proposed rule, 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. No comments were received.
    The Office of Management and Budget approved the diversity plan 
information collection on October 23, 1997, and assigned to it OMB 
Number 1910-4100. OMB approval for the information collection expires 
April 30, 1998.
    An agency may not conduct or sponsor a collection of information 
unless the collection of information contains a currently valid OMB 
control number. 5 CFR 1320.5(b).

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. 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. Today's 
rule amends an existing rule without changing its environmental effect 
(Categorical Exemption A5).

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 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 regulations meet the relevant 
standards of Executive Order 12988.

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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 rule will 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 rule published 
today does not contain any federal mandate, so these requirements do 
not apply.

H. Congressional Notification

    As required by 5 U.S.C. Sec. 801, DOE will report to Congress on 
the promulgation of the rule prior to its effective date. The report 
will state that it has been determined that the rule is not a ``major 
rule'' as defined by 5 U.S.C. Sec. 804(2).

List of Subjects in 48 CFR Part 970

    Government procurement.

    Issued in Washington, DC, on November 21, 1997.
Federico Pena,
Secretary of Energy.

    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. 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) 970.5204-81 Diversity Plan in management and operating 
contracts.
    3. Subpart 970.52 is amended to add section 970.5204-81 to read as 
follows:


970.5204-81  Diversity Plan.

    As prescribed in 48 CFR (DEAR) 970.2602-2(b), insert the following 
clause.

Diversity Plan

(December 1997)
    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. 97-31256 Filed 11-26-97; 8:45 am]
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