[Federal Register Volume 60, Number 7 (Wednesday, January 11, 1995)]
[Proposed Rules]
[Pages 2727-2729]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-681]


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DEPARTMENT OF ENERGY

48 CFR Parts 923 and 970

RIN 1991-AB05


Acquisition Regulation; Acquisition and Use of Environmentally 
Preferable Products and Services

AGENCY: Department of Energy.

ACTION: Proposed rule.

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SUMMARY: The Department of Energy (DOE) proposes to amend the 
Department of Energy Acquisition Regulation (DEAR) to provide for the 
acquisition and use of environmentally preferable products and 
services.

DATES: Written comments must be received on or before March 13, 1995.

ADDRESSES: Comments on the proposed rule should be addressed to the 
U.S. Department of Energy, Procurement Policy Division (HR-521.1), 
Attention: P. Devers Weaver, 1000 Independence Avenue SW., Washington, 
D.C. 20585.

FOR FURTHER INFORMATION CONTACT: P. Devers Weaver, Procurement Policy 
Division (HR-521.1), U.S. Department of Energy, 1000 Independence 
Avenue SW., Washington, D.C. 20585; telephone 202-586-8250.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background.
II. Section-by-Section Analysis.
III. Public Comments.
IV. Procedural Requirements.
    A. Review Under Executive Order 12866.
    B. Review Under the National Environmental Policy Act.
    C. Review Under the Paperwork Reduction Act.
    D. Review Under the Regulatory Flexibility Act.
    E. Review Under Executive Order 12612.
    F. Public Hearing Determination
    G. Review Under Executive Order 12778.

I. Background

    Section 6002 of the Resource Conservation and Recovery Act (RCRA) 
of 1976, Public Law 89-272, 42 U.S.C. 6962, requires procuring agencies 
to establish a preference for the acquisition of products made with 
recovered materials. The Environmental Protection Agency (EPA) has 
promulgated guidelines to implement section 6002 of RCRA. These 
guidelines, for products that are designated ``environmentally 
preferable,'' including retread tires, re-refined lubricating oil, and 
recycled paper, are set forth at Title 40 of the Code of Federal 
Regulations, Parts 247 through 253. Also, Executive Order 12873 of 
October 20, 1993, Federal Acquisition, Recycling, and Waste Prevention, 
requires management and operating contractors in their contracting 
practices to comply with RCRA requirements that are applicable to 
Federal agencies. Implementing RCRA, the Office of Federal Procurement 
Policy on November 2, 1992, issued its Policy Letter No. 92-4, 
Procurement of Environmentally-Sound and Energy Efficient Products.
    RCRA requires all Federal agencies to develop ``affirmative 
procurement programs'' (APPs) to assure the purchase of materials 
covered by the EPA guidelines. DOE issued its APP in May 1994 in the 
document ``Affirmative Procurement Program For Products Containing 
Recovered Materials,'' providing DOE guidance for compliance with RCRA 
and the Executive Order.
    The Department proposes to amend the DEAR to provide a contract 
clause, Acquisition and Use of Environmentally Preferable Products and 
Services. The clause is to be incorporated in DOE management and 
operating contracts, to promote the acquisition and use of 
environmentally preferable products and services, in accordance with 
specified Department of Energy and other Federal policies.

II. Section-by-Section Analysis

    1. Section 923.471 describes DOE policy to acquire items composed 
of the highest percentage of recovered/recycled materials without 
adversely affecting performance requirements.
    2. To subpart 970.23, section 970.2304 is added.
    Section 970.2304-1 extends the requirements at subpart 923.4 on the 
acquisition and use of environmentally preferable products and services 
to management and operating contracts.
    3. Sections 970.5204-YY and 970.2304-2 provide a clause and a 
requirement for the use of the clause, Acquisition and Use of 
Environmentally Preferable Products and Services. The clause provides 
for compliance with Executive Order 12873, certain RCRA and EPA 
requirements, and certain DOE requirements involving the acquisition 
and use of environmentally preferable products and services. Paragraph 
(a)(4) of the clause at 970.5204-YY refers to an ``Affirmative 
Procurement Program'' guidance document. A copy of this guidance 
document is available, without charge, upon informal written request 
to: Director, Waste Minimization Division (EM-334), U.S. Department of 
Energy, Washington, DC 20585-0002. (Please do not use telephone or fax 
to request the document.)

III. Public Comments

    DOE invites interested persons to participate by submitting data, 
views, or arguments with respect to the proposed DEAR amendments set 
forth in this rule. Three copies of written comments should be 
submitted to the address indicated in the ADDRESSES section of this 
rule. All comments received will be available for public inspection 
during normal work hours. All written comments received by the date 
indicated in the DATES section of this notice will be carefully 
assessed and fully considered prior to the effective date of these 
amendments as a final rule. Any information considered to be 
confidential must be so identified and submitted in writing, one copy 
only. DOE reserves the right to determine the confidential status of 
the information and to treat it according to its determination in 
accordance with 10 CFR 1004.11.

[[Page 2728]]

IV. Procedural Requirements

A. Review Under Executive Order 12866

    This 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 action was not subject to review under the Executive 
Order by the Office of Information and Regulatory Affairs.

B. Review Under the National Environmental Policy Act

    Pursuant to the Council on Environmental Quality Regulations (40 
CFR 1500-1508), the Department has established guidelines for its 
compliance with the provisions of the National Environmental Policy Act 
(NEPA) of 1969 (42 U.S.C. 4321 et seq.). Pursuant to Subpart D of 10 
CFR Part 1021, National Environmental Policy Act Implementing 
Procedures, the Department of Energy has determined that this rule is 
categorically excluded from the need to prepare an environmental impact 
statement or environmental assessment. This rule establishes a clause 
and practices for the purchase of goods and services and does not 
require preparation of an environmental impact statement or an 
environmental assessment under categorical exclusion A6 of Subpart D.

C. Review Under the Paperwork Reduction Act

    To the extent that new information collection or recordkeeping 
requirements are imposed by this rulemaking, they are provided for 
under Office of Management and Budget paperwork clearance package No. 
1910-0300.

D. Review Under the Regulatory Flexibility Act

    This rule was reviewed under the Regulatory Flexibility Act of 
1980, Pub. L. 96-354, which requires preparation of a regulatory 
flexibility analysis for any rule which is likely to have significant 
economic impact on a substantial number of small entities. This rule 
will have no impact on interest rates, tax policies or liabilities, the 
cost of goods or services, or other direct economic factors. It will 
also not have any indirect economic consequences, such as changed 
construction rates. DOE certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
and, therefore, no regulatory flexibility analysis has been prepared.

E. Review Under Executive Order 12612

    Executive Order 12612 entitled ``Federalism,'' 52 FR 41685 (October 
30, 1987), requires that regulations, rules, legislation, and any other 
policy actions be reviewed for any substantial direct effects on 
States, on the relationship between the Federal 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 of Energy 
has determined that this rule will not have a substantial direct effect 
on the institutional interests or traditional functions of States.

F. Public Hearing Determination

    DOE has concluded that the proposed rule does not involve any 
significant issues of law or fact. Therefore, consistent with 5 U.S.C. 
553, DOE has not scheduled a public hearing.

G. Review Under Executive Order 12778

    Section 2 of Executive Order 12778 instructs each agency to adhere 
to certain requirements in promulgating new regulations and reviewing 
existing regulations. These requirements, set forth in sections 2(a) 
and (b)(2), include eliminating drafting errors and needless ambiguity, 
drafting the regulations to minimize litigation, providing clear and 
certain legal standards for affected legal conduct, and promoting 
simplification and burden reduction. Agencies are also instructed to 
make every reasonable effort to ensure that the regulation: specifies 
clearly any preemptive effect, effect on existing Federal law or 
regulation, and retroactive effect; describes any administrative 
proceedings to be available prior to judicial review and any provisions 
for the exhaustion of such administrative proceedings; and defines key 
terms. DOE certifies that this rule meets the requirements of sections 
2(a) and 2(b) of Executive Order 12778.

List of Subjects in 48 CFR Parts 923 and 970

    Government procurement.

    Issued in Washington, D.C. on January 6, 1995.
Richard H. Hopf,
Deputy Assistant Secretary for 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 923--ENVIRONMENT, CONSERVATION, AND OCCUPATIONAL SAFETY

    1. The authority citation for Part 923 continues to read as 
follows:

    Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).

    2. New subpart 923.4 is added as follows:

Subpart 923.4--Use of Recovered Materials


923.471  Policy.

    The DOE policy is to acquire items composed of the highest 
percentage of recovered/recycled materials practicable (consistent with 
published minimum content standards), without adversely affecting 
performance requirements; consistent with maintaining a satisfactory 
level of competition; and consistent with maintaining cost 
effectiveness and not having a price premium paid for products 
containing recovered/recycled materials.

PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS

    3. The authority citation for Part 970 continues to read as 
follows:

    Authority: Sec. 161 of the Atomic Energy Act of 1954 (42 U.S.C. 
2201), sec. 644 of the Department of Energy Organization Act, Pub. 
L. 95-91 (42 U.S.C. 7254), sec. 201 of the Federal Civilian Employee 
and Contractor Travel Expenses Act of 1985 (41 U.S.C. 420) and sec. 
1534 of the Department of Defense Authorization Act, 1986, Pub. L. 
99-145 (42 U.S.C. 7256a), as amended.

    4. Section 970.2304 is added to read as follows:


970.2304  Use of Recovered/Recycled Materials.


970.2304-1  General.

    The policy for the acquisition and use of environmentally 
preferable products and services is described at 48 CFR part 923, 
subpart 923.4.


970.2304-2  Contract clause.

    The contracting officer shall insert the clause at 970.5204-YY, 
Acquisition and Use of Environmentally Preferable Products and 
Services, in management and operating contracts.
    5. To subpart 970.52 add section 970.5204-YY as follows:


970.5204-YY  Acquisition and Use of Environmentally Preferable Products 
and Services.

    As prescribed in 970.2304-2, insert the following clause in 
management and operating contracts.

[[Page 2729]]

Acquisition and Use of Environmentally Preferable Products and Services

    (a) In the performance of this contract, the Contractor shall 
comply with the requirements of the following issuances:
    (1) Executive Order 12873 of October 20, 1993, entitled 
``Federal Acquisition, Recycling, and Waste Prevention,''
    (2) Section 6002 of the Resource Conservation and Recovery Act 
(RCRA) of 1976, as amended (42 U.S.C. 6962, Pub. L. 94-580, 90 Stat. 
2822),
    (3) Title 40 of the Code of Federal Regulations, Subchapter I, 
Parts 247 through 253 (Solid Wastes, Guidelines for the procurement 
of certain products that contain recovered/recycled materials) and 
such other Subchapter I Parts or Comprehensive Procurement 
Guidelines as the Environmental Protection Agency may issue from 
time to time as guidelines for the procurement of products that 
contain recovered/recycled materials,
    (4) ``U.S. Department of Energy Affirmative Procurement Program 
for Products Containing Recovered Materials'' and related guidance 
document(s), as they are identified in writing by the Department.
    (b) The Contractor shall prepare and submit reports on matters 
related to the use of environmentally preferable products and 
services from time to time in accordance with written direction 
(e.g., in a specified format) from the Contracting Officer.
    (c) In complying with the requirements of paragraph (a), the 
Contractor shall coordinate its concerns and seek implementing 
guidance on Federal and Departmental policy, plans, and program 
guidance with the DOE recycling point of contact, who shall be 
identified by the Contracting Officer. Reports required pursuant to 
paragraph (b) shall be submitted through the DOE recycling point of 
contact.

(End of clause)

[FR Doc. 95-681 Filed 1-10-95; 8:45 am]
BILLING CODE 6450-01-U