[Federal Register Volume 65, Number 231 (Thursday, November 30, 2000)]
[Proposed Rules]
[Pages 71292-71295]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-30313]


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DEPARTMENT OF ENERGY

48 CFR Parts 923, 936 and 970

RIN 1991-AB47


Acquisition Regulations: Acquisition of Products Containing 
Recovered Materials

AGENCY: Department of Energy.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Energy (DOE) is proposing to amend its 
acquisition regulations to implement Executive Order 13101, dated 
September 14, 1998, entitled Greening the Government Through Waste 
Prevention, Recycling, and Federal Acquisition.

DATES: Written comments on the proposed rulemaking must be received on 
or before close of business January 2, 2001.

ADDRESSES: Comments should be addressed to: Richard Langston, MA-51, 
U.S. Department of Energy, Office of Procurement and Assistance 
Management 1000 Independence Avenue, SW., Washington, D.C. 20585

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FOR FURTHER INFORMATION CONTACT: Richard Langston at (202) 586-8247 or 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background.
II. Section by Section Analysis.
III. Procedural Requirements.
    A. Review Under Executive Order 12866.
    B. Review Under Executive Order 12988.
    C. Review Under the Regulatory Flexibility Act.
    D. Review Under the Paperwork Reduction Act.
    E. Review Under the National Environmental Policy Act.
    F. Review Under Executive Order 13132.
    G. Review Under the Unfunded Mandates Reform Act of 1995.
    H. Review Under the Treasury and General Government 
Appropriations Act, 1999.

I. Background

    The purpose of this proposed rulemaking is to provide additional 
guidance regarding Executive Order 13101, dated September 14, 1998 (63 
FR 49641), entitled Greening the Government Through Waste Prevention, 
Recycling, and Federal Acquisition which superceded Executive Order 
12873, dated October 20, 1993, Federal Acquisition, Recycling, and 
Waste Prevention.
    A rule has been proposed to amend the Department of Energy 
Acquisition Regulation to streamline policies, procedures, provisions, 
and clauses contained in Part 970 relative to the Department's 
management and operating contracts (65 FR 13418, March 13, 2000). It 
may be necessary to revise certain of the citations in this proposed 
rule if the other action is finalized prior to this action being 
finalized.

II. Section-by-Section Analysis

    The Department of Energy proposes to amend the regulation as 
follows:
    1. The authority citation is revised.
    2. A new section 923.405, Procedures, is being added to note that 
the percentage of recycled content included in the EPA Recovered 
Materials Advisory Notice (RMAN) is to be specified in the solicitation 
as the minimum recycled content.
    3. Section 923.471, Policy, is being deleted as unnecessarily 
duplicative of FAR coverage at 23.403.
    4. A new section 923.705, Contract clause, will be added to 
supplement the FAR instruction concerning the clause at 52.223-10. It 
specifies that the clause is to be used in prime contracts for support 
services performed at Government-owned or Government-leased facilities 
and in contracts for operation of a Government-owned or Government-
leased facility.
    5. A new 936.601-3 is added to supplement FAR coverage regarding 
Architect-Engineer (A-E) work statement preparation.
    6. Section 936.602-70 is modified by the addition of a new 
paragraph (a)(8) regarding consideration of energy efficiency, 
pollution prevention, waste reduction, and the use of recovered 
materials when performing A-E evaluations.
    7. Section 970.2304 is being updated to include reference to 48 CFR 
(FAR) 23.4 and 23.7 and revised to provide guidance concerning 
circumstances under which the clause at 970.5204-39 should be included 
in subcontracts.
    8. The clause at 970.5204-39 is being updated and revised to 
include guidance concerning circumstances under which the clause should 
be included in subcontracts.

III. 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, this proposed rule is not subject to review under that 
Executive Order by the Office of Information and Regulatory Affairs of 
the Office of Management and Budget (OMB).

B. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on 
Executive agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. With regard to the review 
required by section 3(a), section 3(b) of Executive Order 12988 
specifically requires that Executive agencies make every reasonable 
effort to ensure that the regulation: (1) Clearly specifies the 
preemptive effect, if any; (2) clearly specifies any effect on existing 
Federal law or regulation; (3) provides a clear legal standard for 
affected conduct while promoting simplification and burden reduction; 
(4) specifies the retroactive effect, if any; (5) adequately defines 
key terms; and (6) addresses other important issues affecting clarity 
and general draftsmanship under any guidelines issued by the Attorney 
General. Section 3(c) of Executive Order 12988 requires Executive 
agencies to review regulations in light of applicable standards in 
section 3(a) and section 3(b) to determine whether they are met or it 
is unreasonable to meet one or more of them. DOE has completed the 
required review and determined that, to the extent permitted by law, 
these proposed regulations meet the relevant standards of Executive 
Order 12988.

C. Review Under the Regulatory Flexibility Act

    This proposed rule has been reviewed under the Regulatory 
Flexibility Act, 5 U.S.C. 601 et seq., which requires preparation of an 
initial regulatory flexibility analysis for any rule that must be 
proposed for public comment and that is likely to have significant 
economic impact on a substantial number of small entities. The proposed 
rule, which would implement provisions of Executive Order 13101 
concerning use of recycled materials, would not have a significant 
economic impact on small entities. While rule requirements may flow 
down to subcontractors in certain circumstances, the costs of 
compliance are not estimated to be large and, in any event, would be 
reimbursable expenses under the contract or subcontract.
    Accordingly, DOE certifies that this proposed rule would not have a 
significant economic impact on a substantial number of small entities, 
and, therefore, no regulatory flexibility analysis has been prepared.

D. Review Under the Paperwork Reduction Act

    Information collection or record keeping requirements contained in 
this rulemaking have been previously cleared under Office of Management 
and Budget paperwork clearance package Number 1910-0300. There are no 
new burdens imposed by this rule.

E. Review Under the National Environmental Policy Act

    DOE has concluded that promulgation of this proposed rule falls 
into a class of actions which would not individually or cumulatively 
have significant impact on the human environment, as determined by 
DOE's regulations (10 CFR part 1021, subpart D) implementing the 
National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et 
seq.). Specifically, this proposed rule is categorically excluded from 
NEPA review because the amendments to the DEAR would be strictly 
procedural (categorical exclusion A6). Therefore, this proposed rule 
does not require an

[[Page 71294]]

environmental impact statement or environmental assessment pursuant to 
NEPA.

F. Review Under Executive Order 13132

    Executive Order 13132 (64 FR 43255, August 4, 1999) imposes certain 
requirements on agencies formulating and implementing policies or 
regulations that preempt State law or that have federalism 
implications. Agencies are required to examine the constitutional and 
statutory authority supporting any action that would limit the 
policymaking discretion of the States and carefully assess the 
necessity for such actions. DOE has examined today's proposed rule and 
has determined that it does not preempt State law and does not have a 
substantial direct effect on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government. No further 
action is required by Executive Order 13132.

G. Review Under the Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally 
requires a Federal agency to perform a detailed assessment of costs and 
benefits of any rule imposing a Federal Mandate with costs to State, 
local or tribal governments, or to the private sector, of $100 million 
or more. This proposed rulemaking would only affect private sector 
entities, and the impact is less than $100 million.

H. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a 
Family Policymaking Assessment for any proposed rule or policy that may 
affect family well-being. This rulemaking will have no impact on family 
well being.

List of Subjects in 48 CFR Parts 923, 936 and 970

    Government procurement.

    Issued in Washington, D.C. on November 16, 2000.
    T. J. Glauthier,
Deputy Secretary of Energy.
    For the reasons set out in the preamble, Chapter 9 of Title 48 of 
the Code of Federal Regulations is proposed to be amended as set forth 
below.
    1. The authority citations for parts 923 and 936 are revised to 
read as follows:

    Authority: Atomic Energy Act of 1954 (42 U.S.C. 2201); 
Department of Energy Organization Act (42 U.S.C. 7101, et seq.); 
National Nuclear Security Administration Act (50 U.S.C. 2401 et 
seq.).

PART 923--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-
FREE WORKPLACE

    2. Section 923.405(e) is added to read as follows:


Sec. 923.405  Procedures [DOE supplemental coverage--paragraph (e)].

    (e) When acquiring items designated in the EPA Comprehensive 
Procurement Guidelines, the EPA recommended percentage of recovered/
recycled content contained in the Recovered Materials Advisory Notice 
(RMAN) shall be specified in the solicitation as the minimum percentage 
of recycled content. Acquisition of products with recycled contents 
exceeding the RMAN recommended content is encouraged if their 
performance is acceptable.


Sec. 923.471  [Removed and Reserved].

    3. Section 923.471 is removed and reserved.
    4. Subpart 923.7 is added to read as follows:

Subpart 923.7--Contracting for Environmentally Preferable and 
Energy-Efficient Products and Services


Sec. 923.705  Contract clause.

    Pursuant to 48 CFR (FAR) 23.704, the clause at 48 CFR (FAR) 52.223-
10 should be included in solicitations and contracts for prime support 
service awards being performed at Government-owned or Government-leased 
facilities and in contracts for operation of a Government-owned or 
Government-leased facility.

PART 936--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

    5. Section 936.601-3 is added to read as follows:


Sec. 936.601-3  Applicable contract procedures.

    Executive Order 13123, Section 403(d), requires agencies to apply 
sustainable design principles to the siting, design, and construction 
of new facilities. Contracting activities shall optimize life-cycle 
costs, recycled materials, pollution prevention, and other 
environmental and energy efficiency considerations associated with the 
construction, life-cycle operation, and decommissioning of their 
facilities. Contracting activities shall consider using Energy Savings 
Performance Contracts or utility energy-efficiency service contracts to 
aid them in constructing sustainable design buildings.
    6. Section 936.602-70 is amended by adding paragraph (a)(8) to read 
as follows:


Sec. 936.602-70  DOE selection criteria.

* * * * *
    (a) * * *
    (8) In addition to these requirements, consider the Architect 
Engineer firms' experience in energy efficiency, pollution prevention, 
waste reduction, and the use of recovered materials and other criteria 
at FAR 36.602-1.
* * * * *

PART 970--MANAGEMENT AND OPERATING CONTRACTS

    7. The authority citation for part 970 continues to read as 
follows:

    Authority: Atomic Energy Act of 1954 (42 U.S.C. 2201); 
Department of Energy Organization Act (42 U.S.C. 7101, et seq.); 
National Nuclear Security Administration Act (50 U.S.C. 2401 et 
seq.).

Subpart 970.23--Environment, Conservation, Occupational Safety, and 
Drug-Free Workplace

    8. Sections 970.2304, 970.2304-1, and 970.2304-2 are revised to 
read as follows:


Sec. 970.2304  Use of recovered/recycled materials.


Sec. 970.2304-1  General.

    The policy for the acquisition and use of EPA designated items, 
i.e. items with recovered/recycled content, is set forth at 48 CFR 
(FAR) 23.4--Use of Recovered Materials as supplemented by 48 CFR (DEAR) 
923.405(e) and by 48 CFR (FAR) 23.705, Application to Government-owned 
or Government-leased facilities, and 48 CFR (FAR) 23.706, Contract 
clause, as supplemented by 48 CFR (DEAR) 923.706.


Sec. 970.2304-2  Contract clause.

    The contracting officer shall insert the clause at 48 CFR (FAR) 
52.223-10, Waste Reduction Program, and the clause at 48 CFR (DEAR) 
970.5204-39, Affirmative Procurement Program, in contracts for the 
management of DOE facilities including national laboratories. If the 
contractor subcontracts a significant portion of the logistical 
operation of the Government facility, or subcontracts for construction 
or remodeling at the facility, which includes the acquisition of items 
designated in EPA's Comprehensive Procurement Guidelines that Federal 
agencies and their contractors are to acquire with recovered/recycled

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content, the subcontract shall contain the clause at 48 CFR (DEAR) 
970.5204-39. Examples of such subcontracts would be operation of the 
facility supply function, construction or remodeling at the facility, 
or operation of the facility motor vehicle fleet.

Subpart 970.52--Contract Clauses for Management and Operating 
Contracts

    9. Section 970.5204-39 is revised to read as follows:


Sec. 970.5204-39  Affirmative procurement program.

    As prescribed in 48 CFR (DEAR) 970.2304-2, insert the following 
clause in contracts for the management of DOE facilities, including 
national laboratories.

Affirmative Procurement Program (xxx 2000)

    (a) In the performance of this contract, the Contractor shall 
comply with the requirements of the U.S. Department of Energy 
Affirmative Procurement Program Guidance which is available on the 
Internet.
    (b) In complying with the requirements of paragraph (a) of this 
clause, the Contractor shall coordinate its activities with the DOE 
Recycling Coordinator. Reports required by paragraph (c) of this 
clause shall be submitted through the DOE Recycling Coordinator.
    (c) The contractor shall prepare and submit reports on matters 
related to the acquisition of items designated in EPA's 
Comprehensive Procurement Guidelines that Federal agencies and their 
contractors are to procure with recovered/recycled content at the 
conclusion of each fiscal year.
    (d) If the contractor subcontracts a significant portion of the 
logistical operation of the Government facility or subcontracts for 
construction or remodeling at the facility which includes the 
acquisition of items designated in EPA's Comprehensive Procurement 
Guidelines that Federal agencies and their contractors are to 
acquire with recovered/recycled content, the subcontract shall 
contain the clause at 48 CFR (DEAR) 970.5204-39. Examples of such a 
subcontract would be operation of the facility supply function, 
construction or remodeling at the facility, or operation of the 
facility motor vehicle fleet.
    (e) When this clause is used in a subcontract, the word 
``contractor'' will be understood to mean ``subcontractor'' and the 
term ``DOE Recycling Coordinator'' will be understood to mean 
``Contractor Recycling Coordinator.''

[FR Doc. 00-30313 Filed 11-29-00; 8:45 am]
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