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

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-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

hase 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

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.

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.

pact 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

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

n 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.

c.

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.

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.

s 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]

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