44350 Federal Register / Vol. 62, No. 161 / Wednesday, August 20, 1997 / Proposed Rules

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.

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.Pen ̃ a, 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 ForProfit 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

§ 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. § 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. § 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
Federal Register / Vol. 62, No. 161 / Wednesday, August 20, 1997 / Proposed Rules 44351

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. §§ 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. § 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. § 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-Prote ́ge ́ 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)
44352 Federal Register / Vol. 62, No. 161 / Wednesday, August 20, 1997 / Proposed Rules

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 ll.

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]

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