63424 Federal Register / Vol. 62, No. 229 / Friday, November 28, 1997 / Rules and Regulations

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.

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

§ 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. Pen ̃ a, 115

S. Ct. 2097 (1995).

Notice of the Department’s proposal

to adopt a clause to be added at 48 CFR

§ 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 forprofit contractor—originally developed

for use with DOE’s ‘‘Sample Contract

Provisions for Department of Energy

Performance Based Management

Contracts (Model Contract) with ForProfit 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.
Federal Register / Vol. 62, No. 229 / Friday, November 28, 1997 / Rules and Regulations 63425

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 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. § 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. § 804(2).

List of Subjects in 48 CFR Part 970

Government procurement.

Issued in Washington, DC, on November

21, 1997.

Federico Pen ̃ a,

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 l.

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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