Defense Priorities and Allocations System, 10980-10985 [E8-3773]
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Federal Register / Vol. 73, No. 41 / Friday, February 29, 2008 / Rules and Regulations
VI. Regulatory Analysis
A regulatory analysis has not been
prepared for this rule because it applies
to the delegation of authority within the
NRC and does not involve any
provisions that would impose any
economic burdens on licensees or the
public.
VII. Backfit Analysis
The NRC has determined that the
backfit rules (§§ 50.109, 70.76, 72.62, or
76.76) do not apply to this final rule
because this amendment does not
involve any provisions that would
impose backfits as defined in 10 CFR
Chapter I. Therefore, a backfit analysis
is not required.
VIII. Congressional Review Act
Under the Congressional Review Act,
the NRC has determined that this action
is not a major rule and has verified this
determination with the Office of
Information and Regulatory Affairs of
OMB.
List of Subjects in 10 CFR Part 2
Administrative practice and
procedure, Antitrust, Byproduct
material, Classified information,
Environmental protection, Nuclear
materials, Nuclear power plants and
reactors, Penalties, Sex discrimination,
Source material, Special nuclear
material, Waste treatment and disposal.
I For the reasons set out in the
preamble and under the authority of the
Atomic Energy Act of 1954, as amended;
the Energy Reorganization Act of 1974,
as amended; the Energy Policy Act of
2005, and 5 U.S.C. 552 and 553; the
NRC is adopting the following
amendments to 10 CFR part 2.
PART 2—RULES OF PRACTICE FOR
DOMESTIC LICENSING PROCEEDINGS
AND FOR ISSUANCE OF ORDERS
1. The authority citation for part 2
continues to read as follows:
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I
Authority: Secs.161, 181, 68 Stat. 948, 953,
as amended (42 U.S.C. 2201, 2231); sec. 191,
as amended, Pub. L. 87–615, 76 Stat. 409 (42
U.S.C. 2241); sec. 201, 88 Stat. 1242, as
amended (42 U.S.C. 5841); 5 U.S.C. 552; sec.
1704, 112 Stat. 2750 (44 U.S.C. 3504 note).
Section 2.101 also issued under secs. 53,
62, 63, 81, 103, 104, 68 Stat. 930, 932, 933,
935, 936, 937, 938, as amended (42 U.S.C.
2073, 2092, 2093, 2111, 2133, 2134, 2135);
sec. 114(f), Pub. L. 97–425, 96 Stat. 2213, as
amended (42 U.S.C. 10143(f)), sec. 102, Pub.
L. 91–190, 83 Stat. 853, as amended (42
U.S.C. 4332); sec. 301, 88 Stat. 1248 (42
U.S.C. 5871).
Sections 2.102, 2.103, 2.104, 2.105, 2.721
also issued under secs. 102, 103, 104, 105,
183i, 189, 68 Stat. 936, 937, 938, 954, 955,
as amended (42 U.S.C. 2132, 2133, 2134,
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2135, 2233, 2239). Section 2.105 also issued
under Pub. L. 97–415, 96 Stat. 2073 (42
U.S.C. 2239). Sections 2.200–2.206 also
issued under secs. 161b, i, o, 182, 186, 234,
68 Stat. 948–951, 955, 83 Stat. 444, as
amended (42 U.S.C. 2201(b), (i), (o), 2236,
2282); sec. 206, 88 Stat. 1246 (42 U.S.C.
5846). Section 2.205(j) also issued under Pub.
L. 101–410, 104 Stat. 90, as amended by
section 3100(s), Pub. L. 104–134, 110 Stat.
1321–373 (28 U.S.C. 2461 note). Sections
2.600–2.606 also issued under sec. 102, Pub.
L. 91–190, 83 Stat. 853, as amended (42
U.S.C. 4332). Sections 2.700a, 2.719 also
issued under 5 U.S.C. 554.
Sections 2.754, 2.760, 2.770, 2.780 also
issued under 5 U.S.C. 557. Section 2.764 also
issued under secs. 135, 141, Pub. L. 97–425,
96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161).
Section 2.790 also issued under sec. 103, 68
Stat. 936, as amended (42 U.S.C. 2133), and
5 U.S.C. 552. Sections 2.800 and 2.808 also
issued under 5 U.S.C. 553. Section 2.809 also
issued under 5 U.S.C. 553, and sec. 29, Pub.
L. 85–256, 71 Stat. 579, as amended (42
U.S.C. 2039). Subpart K also issued under
sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec.
134, Pub. L. 97–425, 96 Stat. 2230 (42 U.S.C.
10154). Subpart L also issued under sec. 189,
68 Stat. 955 (42 U.S.C. 2239). Subpart M also
issued under sec. 184 (42 U.S.C. 2234) and
sec. 189, 68 stat. 955 (42 U.S.C. 2239).
Appendix A also issued under sec. 6, Pub. L.
91–560, 84 Stat. 1473 (42 U.S.C. 2135).
2. In § 2.307, the heading is amended
and a new paragraph (c) is added to read
as follows:
I
§ 2.307 Extension and reduction of time
limits; delegated authority to order use of
procedures for access by potential parties
to certain sensitive unclassified
information.
*
*
*
*
*
(c) In circumstances where, in order
to meet Commission requirements for
intervention, potential parties may
deem it necessary to obtain access to
safeguards information (as defined in
§ 73.2 of this chapter) or to sensitive
unclassified non-safeguards
information, the Secretary is delegated
authority to issue orders establishing
procedures and timelines for submitting
and resolving requests for this
information.
Dated at Rockville, Maryland, this 21st day
of February 2008.
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. E8–3824 Filed 2–28–08; 8:45 am]
BILLING CODE 7590–01–P
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DEPARTMENT OF ENERGY
10 CFR Part 216
48 CFR Parts 911 and 952
RIN 1991–AB69
Defense Priorities and Allocations
System
Department of Energy.
Direct final rule.
AGENCY:
ACTION:
SUMMARY: The Department of Energy
(DOE) today is issuing a direct final rule
to update the DOE regulations which
implement DOE’s delegated authority
under section 101(c) of the Defense
Production Act of 1950 (DPA). Section
101(c) provides authority to the
President of the United States
(President) to require the allocation of,
or priority performance under contracts
or orders relating to, materials and
equipment, services, or facilities, in
order to maximize domestic energy
supplies, if the President makes certain
findings. The President’s authority
under section 101(c) was delegated to
the Secretary of Commerce and the
Secretary of Energy. This final rule
makes a number of changes to conform
to a 1991 amendment to the DPA which
broadens the scope of authority in
section 101(c). This final rule also
makes conforming changes to
Department of Energy Acquisition
Regulation (DEAR).
DATES: This direct final rule is effective
April 29, 2008, unless adverse or critical
comments are received by March 31,
2008. If the effective date is delayed,
timely notice will be published in the
Federal Register.
ADDRESSES: This direct final rulemaking
is available and comments may be
submitted online at https://
www.Regulations.gov. Comments may
be submitted by e-mail to
Mike.Soboroff@hq.doe.gov. Comments
may be mailed to: Mike Soboroff, U.S.
Department of Energy, Office of
Electricity and Energy Assurance, OE–
30, 1000 Independence Avenue, SW.,
Washington, DC 20585. Comments by
e-mail are encouraged.
FOR FURTHER INFORMATION CONTACT:
Mike Soboroff at (202) 586–4936 or via
e-mail at Mike.Soboroff@hq.doe.gov.
SUPPLEMENTARY INFORMATION:
I. Discussion
II. Final Action
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
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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. Review Under Executive Order 13211
J. Review Under the Treasury and General
Government Appropriations Act, 2001
K. Review Under the Small Business
Regulatory Enforcement Fairness Act of
1996
L. Approval by the Office of the Secretary
of Energy
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I. Discussion
The purpose of this final rule is to
update DOE regulations at 10 CFR part
216, which implement DOE’s delegated
authority under section 101(c) of the
DPA, to reflect a 1991 amendment to
that section. Section 101(c) provides
authority to require the allocation of, or
priority performance under contracts or
orders relating to, materials and
equipment, services, and facilities in
order to maximize domestic energy
supplies, if DOE and the Department of
Commerce make certain findings.
As originally enacted in 1975, section
101(c)(1) authorized the President to
require the allocation of, or priority
performance under contracts or orders
relating to, supplies of materials and
equipment, in order to maximize
domestic energy supplies if the
President made the following findings
described in section 101(c)(3):
(A) Such supplies are scarce, critical,
and essential to maintain or further (i)
exploration, production, refining,
transportation, or (ii) the conservation of
energy supplies, or (iii) for the
construction and maintenance of energy
facilities; and
(B) Maintenance or furtherance of
exploration, production, refining,
transportation, or conservation of energy
supplies or the construction and
maintenance of energy facilities cannot
reasonably be accomplished without
exercising the authority specified in
subsection (c)(1).
Executive Order (E.O.) 11912 (April
13, 1976) directed that DOE’s
predecessor, the Federal Energy
Administration, be delegated the
function of making the ‘‘critical and
essential’’ finding and that the
Department of Commerce be delegated
the function of making the findings that
supplies are scarce and that it is
necessary to exercise the section 101(c)
authority.
The Defense Production Act
Extension and Amendments of 1991,
Pub. L. 102–99, amended section 101 to
broaden its scope in section 101(a)(2) by
substituting ‘‘materials, services, and
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facilities’’ for ‘‘materials and facilities’’
and in section 101(c)(1) by substituting
‘‘materials, equipment, and services’’ for
‘‘supplies of materials and equipment.’’
Thereafter, the President issued E.O.
12919 (June 3, 1994), which revoked the
relevant provisions of E.O. 11912. In
section 203 of E.O. 12919, the President
delegated to the Secretary of Commerce
the section 101(c) authority and directed
the Secretary of Commerce to redelegate to the Secretary of Energy the
authority to make the findings described
in subsection 101(c)(2)(A) that the
materials and equipment, services, and
facilities are critical and essential. The
Secretary of Commerce retained the
authority to make the finding that the
materials and equipment, services, or
facilities are scarce, and to make the
finding that maintenance or expansion
of exploration, production, refining,
transportation, or conservation of energy
supplies or the construction and
maintenance of energy facilities cannot
reasonably be accomplished without
exercising the authority in section
101(c)(1).
DOE’s regulations at 10 CFR part 216,
which were promulgated in 1978,
established the procedures to be used by
DOE in considering and making the
section 101(c) findings assigned to DOE
under E.O. 11912. Today’s direct final
rule amends part 216 to reflect the
broader scope of the Defense Production
Act Extension and Amendments of
1991, Public Law 102–99 and E.O.
12919. Today’s rule also adds
definitions of ‘‘services,’’ ‘‘national
defense,’’ ‘‘facilities,’’ and ‘‘person’’ and
amends the definition of ‘‘materials and
equipment’’ in § 216.2. In addition, DOE
is amending DEAR parts 911 and 952 to
inform DOE contracting officers to
include in contracts a clause that
informs DOE contractors of the Defense
Priorities and Allocations System
(DPAS) authority.
II. Final Action
DOE is publishing this direct final
rule without prior proposal because
DOE views these amendments as
noncontroversial and anticipates no
significant adverse comments. However,
in the event that significant adverse
comments are filed, DOE has prepared
a notice of proposed rulemaking (NOPR)
proposing the same amendments. The
NOPR is a separate document published
today in the Federal Register. The direct
final rule will be effective April 29,
2008, unless significant adverse
comments are received by March 31,
2008. If DOE receives significant
adverse comments, the amendments
will be withdrawn before the effective
date. In the case of withdrawal of this
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action, the withdrawal will be
announced by a subsequent notice
published in the Federal Register.
Relevant public comments will then be
addressed in a separate final rule based
on the proposed rule that is also issued
today. DOE will not implement a second
comment period on this action. Any
party interested in commenting on this
rule should do so at this time. If no
significant adverse comments are
received, the public is advised that this
rule will be effective April 29, 2008.
DOE will publish a notice in the Federal
Register to advise the public if no
significant adverse comments are
received.
III. Procedural Requirements
A. Review Under Executive Order 12866
This regulatory action has been
determined not to be a ‘‘significant
regulatory action’’ under E.O. 12866,
‘‘Regulatory Planning and Review’’ (58
FR 51735, October 4, 1993).
Accordingly, this final rule is not
subject to review under the E.O. by the
Office of Information and Regulatory
Affairs within 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 E.O.
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. Section 3(b) of E.O. 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 United States Attorney
General. Section 3(c) of E.O. 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
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required review and determined that, to
the extent permitted by law, this direct
final rule meets the relevant standards
of E.O. 12988.
C. Review Under the Regulatory
Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.) requires preparation
of an initial regulatory flexibility
analysis for any rule that by law must
be proposed for public comment, unless
the agency certifies that the rule, if
promulgated, will not have a significant
economic impact on a substantial
number of small entities. As required by
E.O. 13272, ‘‘Proper Consideration of
Small Entities in Agency Rulemaking’’
(67 FR 53461, August 16, 2002), DOE
published procedures and policies to
ensure that the potential impacts of its
draft rules on small entities are properly
considered during the rulemaking
process (68 FR 7990, February 19, 2003),
and has made them available on the
DOE Office of General Counsel’s Web
site: https://www.gc.doe.gov. DOE has
reviewed today’s final rule under the
provisions of the Regulatory Flexibility
Act and the procedures and policies
published on February 19, 2003.
Today’s direct final rule makes nondiscretionary, conforming changes to
DOE regulations required by the 1991
amendment to the DPA. It also makes
minor changes that will not have any
economic impact beyond that of the
existing regulations. On this basis, DOE
certifies that this direct final rule will
not have a significant economic impact
on a substantial number of small
entities. Accordingly, DOE has not
prepared a regulatory flexibility analysis
for this rulemaking. DOE’s certification
and supporting statement of factual
basis will be provided to the Chief
Counsel for Advocacy of the Small
Business Administration pursuant to 5
U.S.C. 605(b).
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D. Review Under the Paperwork
Reduction Act
This direct final rule contains no new
collection of information requiring OMB
approval under the Paperwork
Reduction Act (44 U.S.C. 3501 et seq.).
E. Review Under the National
Environmental Policy Act
Pursuant to the Council on
Environmental Quality Regulations (40
CFR parts 1500–08), DOE 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, DOE has determined that today’s
regulatory action is an amendment of an
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existing regulation that does not change
the environmental effect of the
regulation being amended (Categorical
Exclusion A5). Accordingly, neither an
environmental impact statement nor an
environmental assessment is required.
F. Review Under Executive Order 13132
Executive Order 13132, ‘‘Federalism’’
(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
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 E.O. 13132.
G. Review Under the Unfunded
Mandates Reform Act of 1995
The Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4) 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.
This rulemaking does not impose a
Federal mandate on state, local or tribal
governments or on the private sector.
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 rule
or policy that may affect family well
being. This rule will have no impact on
the autonomy or integrity of the family
as an institution. Accordingly, DOE has
concluded that it is not necessary to
prepare a Family Policy Assessment.
I. Review Under Executive Order 13211
Executive Order 13211, ‘‘Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355, May
22, 2001) requires Federal agencies to
prepare and submit to the Office of
Information and Regulatory Affairs
(OIRA), OMB, a Statement of Energy
Effects for any significant energy action.
A ‘‘significant energy action’’ is defined
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as any action by an agency that
promulgates or is expected to lead to
promulgation of a final rule, and that:
(1) Is a significant regulatory action
under E.O. 12866, or any successor
order; and (2) is likely to have a
significant adverse effect on the supply,
distribution, or use of energy, or (3) is
designated by the Administrator of
OIRA as a significant energy action. For
any significant energy action, the agency
must give a detailed statement of any
adverse effects on energy supply,
distribution, or use should the proposal
be implemented, and of reasonable
alternatives to the action and their
expected benefits on energy supply,
distribution, and use. Today’s rule is not
a significant energy action. Accordingly,
DOE has not prepared a Statement of
Energy Effects.
J. Review Under the Treasury and
General Government Appropriations
Act, 2001
The Treasury and General
Government Appropriations Act, 2001
(44 U.S.C. 3516 note) provides for
agencies to review most disseminations
of information to the public under
guidelines established by each agency
pursuant to general guidelines issued by
OMB. OMB’s guidelines were published
at 67 FR 8452 (February 22, 2002), and
DOE’s guidelines were published at 67
FR 62446 (October 7, 2002). DOE has
reviewed today’s rule under the OMB
and DOE guidelines and has concluded
that it is consistent with applicable
policies in those guidelines.
K. Review Under the Small Business
Regulatory Enforcement Fairness Act of
1996
As required by 5 U.S.C. 801, DOE will
report to Congress promulgation of this
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).
L. Approval by the Office of the
Secretary of Energy
The Office of the Secretary of Energy
has approved issuance of this direct
final rule.
List of Subjects
10 CFR Part 216
Energy, Government contracts,
Reporting and recordkeeping
requirements, Strategic and critical
materials.
48 CFR Part 911
Government procurement.
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48 CFR Part 952
Government procurement, Reporting
and recordkeeping requirements.
Issued in Washington, DC, on February 20,
2008.
Edward R. Simpson,
Director, Office of Procurement and
Assistance Management, Department of
Energy.
William N. Bryan,
Deputy Assistant Secretary, Infrastructure
Security and Energy Restoration, Department
of Energy.
David O. Boyd,
Director, Office of Acquisition and Supply
Management, National Nuclear Security
Administration.
For the reasons set forth in the
preamble, DOE amends Chapter II of
Title 10 and Chapter 9 of Title 48 of the
Code of Federal Regulations (CFR) as set
forth below:
I
PART 216—MATERIALS ALLOCATION
AND PRIORITY PERFORMANCE
UNDER CONTRACTS OR ORDERS TO
MAXIMIZE DOMESTIC ENERGY
SUPPLIES
1. The authority citation for part 216
is revised to read as follows:
I
Authority: Sec. 104 of the Energy Policy
and Conservation Act (EPCA) Pub. L. 94–163,
89 Stat. 871; section 101(c) of the Defense
Production Act of 1950 (DPA), 50 U.S.C.
App. 2071(c); E.O. 12919, 59 FR 29525 (June
7, 1994); E.O. 13286, 68 FR 10619 (March 5,
2003); 15 CFR part 700; Defense Priorities
and Allocations System Delegation No. 2
(August 6, 2002), as amended at 15 CFR part
700.
2. Section 216.1 is revised to read as
follows:
I
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§ 216.1
Introduction.
(a) This part describes and establishes
the procedures to be used by the
Department of Energy (DOE) in
considering and making certain findings
required by section 101(c)(2)(A) of the
Defense Production Act of 1950, as
amended, 50 U.S.C. app. 2071(c)(2)(A)
(DPA). Section 101(c) authorizes the
allocation of, or priority performance
under contracts or orders (other than
contracts of employment) relating to,
materials and equipment, services, or
facilities in order to maximize domestic
energy supplies if the findings described
in section 101(c)(2) are made. Among
these findings are that such supplies of
materials and equipment, services, or
facilities are critical and essential to
maintain or further exploration,
production, refining, transportation or
the conservation of energy supplies or
for the construction or maintenance of
energy facilities. The function of finding
that supplies are critical and essential
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was delegated to the Secretary of Energy
pursuant to E.O. 12919 (59 FR 29525,
June 7, 1994) and Department of
Commerce Defense Priorities and
Allocations System Delegation No. 2, 15
CFR part 700.
(b) The purpose of these regulations is
to establish the procedures and criteria
to be used by DOE in determining
whether programs or projects maximize
domestic energy supplies and whether
or not supplies of materials and
equipment, services, or facilities are
critical and essential, as required by
DPA section 101(c)(2)(A). The critical
and essential finding will be made only
for supplies of materials and equipment,
services, or facilities related to those
programs or projects determined by
DOE to maximize domestic energy
supplies. These regulations do not
require or imply that the findings, on
which the exercise of such authority is
conditioned, will be made in any
particular case.
(c) If DOE determines that a program
or project maximizes domestic energy
supplies and finds that supplies of
materials and equipment, services, or
facilities are critical and essential to
maintain or further the exploration,
production, refining, transportation or
conservation of energy supplies or for
the construction or maintenance of
energy facilities, such determination
and finding will be communicated to
the Department of Commerce (DOC). If
not, the applicant will be so informed.
If the determination and finding
described in this paragraph are made,
DOC, pursuant to DPA section 101(c)
and section 203 of E.O. 12919, will find
whether or not: The supplies of
materials and equipment, services, or
facilities in question are scarce; and
maintenance or furtherance of
exploration, production, refining,
transportation, or conservation of energy
supplies or the construction or
maintenance of energy facilities cannot
be reasonably accomplished without
exercising the authority specified in
DPA section 101(c). If these additional
two findings are made, DOC will notify
DOE, and DOE will inform the applicant
that it has been granted the right to use
priority ratings under the Defense
Priorities and Allocations System
(DPAS) regulation established by the
DOC, 15 CFR part 700.
I 3. Section 216.2 is amended by
revising paragraphs (e) through (j) and
adding paragraphs (k) through (n) to
read as follows:
(f) DOC means the Department of
Commerce.
(g) DOE means the Department of
Energy.
(h) Defense Priorities and Allocations
System Coordination Office means the
Department of Energy, Office of
Electricity and Energy Assurance, OE–
30.
(i) Eligible energy program or project
means a designated activity which
maximizes domestic energy supplies by
furthering the exploration, production,
refining, transportation or conservation
of energy supplies or construction or
maintenance of energy facilities within
the meaning of DPA section 101(c), as
determined by DOE.
(j) Facilities means all types of
buildings, structures, or other
improvements to real property (but
excluding farms, churches or other
places of worship, and private dwelling
houses), and services relating to the use
of any such building, structure, or other
improvement.
(k) Materials and equipment means:
(1) Any raw materials (including
minerals, metals, and advanced
processed materials), commodities,
articles, components (including critical
components), products, and items of
supply; and
(2) Any technical information or
services ancillary to the use of such raw
materials, commodities, articles,
components, products, or items.
(l) National Defense means programs
for military and energy production or
construction, military assistance to any
foreign nation, stockpiling, space, and
any directly related activity. Such term
also includes emergency preparedness
activities conducted pursuant to title VI
of the Robert T. Stafford Disaster Relief
and Emergency Assistance Act (42
U.S.C. 5195, et seq.) and critical
infrastructure protection and
restoration.
(m) Person means an individual,
corporation, partnership, association, or
any other organized group of persons, or
legal successor or representative thereof,
or any state or local government or
agency thereof.
(n) Services include any effort that is
needed for or incidental to:
(1) The development, production,
processing, distribution, delivery, or use
of an industrial resource, or critical
technology item; or
(2) The construction of facilities.
I 4. Section 216.3, paragraph (a) is
revised to read as follows:
§ 216.2
§ 216.3
Definitions.
*
*
*
*
*
(e) DHS means the Department of
Homeland Security.
PO 00000
Frm 00013
Fmt 4700
Sfmt 4700
Requests for assistance.
(a) Persons who believe that they
perform work associated with a program
or project which may qualify as an
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eligible energy program or project and
wishing to receive assistance as
authorized by DPA section 101(c)(1)
may submit an application to DOE
requesting DOE to determine whether a
program or project maximizes domestic
energy supplies and to find whether or
not specific supplies of materials and
equipment, services, or facilities
identified in the application are critical
and essential for a purpose identified in
section 101(c). The application shall be
sent to: U.S. Department of Energy,
Attn: Office of Electricity and Energy
Assurance, OE–30, Forrestal Building,
1000 Independence Avenue, SW.,
Washington, DC 20585. The application
shall contain the following information:
(1) The name and address of the
applicant and of its duly authorized
representative.
(2) A description of the energy
program or project for which assistance
is requested and an assessment of its
impact on the maximization of domestic
energy supplies.
(3) The amount of energy to be
produced by the program or project
which is directly affected by the
supplies of the materials and
equipment, services, or facilities in
question.
(4) A statement explaining why the
materials and equipment, services, or
facilities for which assistance is
requested are critical and essential to
the construction or operation of the
energy project or program.
(5) A detailed description of the
specific supplies of materials and
equipment, services, or facilities in
connection with which assistance is
requested, including: Components,
performance data (capacity, life
duration, etc.), standards, acceptable
tolerances in dimensions and
specifications, current inventory,
present and expected rates of use,
anticipated deliveries and substitution
possibilities (feasibility of using other
materials and equipment, services, or
facilities).
(6) A detailed description of the
sources of supply, including: The name
of the regular supplying company or
companies, other companies capable of
supplying the materials and equipment,
services, or facilities; location of
supplying plants or plants capable of
supplying the needed materials and
equipment, services, or facilities;
possible suppliers for identical or
substitutable materials and equipment,
services, or facilities and possible
foreign sources of supply.
(7) A detailed description of the
delivery situation, including: Normal
delivery times, promised delivery time
without priorities assistance, and
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15:40 Feb 28, 2008
Jkt 214001
delivery time required for expeditious
fulfillment or completion of the program
or project.
(8) Evidence of the applicant’s
unsuccessful efforts to obtain on a
timely basis the materials and
equipment, services, or facilities in
question through normal business
channels from current or other known
suppliers.
(9) A detailed estimate of the delay in
fulfilling or completing the energy
program or project which will be caused
by inability to obtain the specified
materials and equipment, services, or
facilities in the usual course of business.
(10) Any known conflicts with rated
orders already issued pursuant to the
DPA for supplies of the described
materials and equipment, services, or
facilities.
*
*
*
*
*
I 5. In § 216.4, paragraph (a), paragraph
(b)(4), and paragraphs (c) and (d) are
revised to read as follows:
§ 216.4
Evaluation by DOE of applications.
(a) Based on the information provided
by the applicant and other available
information, DOE will:
(1) Determine whether or not the
energy program or project in connection
with which the application is made
maximizes domestic energy supplies
and should be designated an eligible
energy program or project; and
(2) Find whether the described
supplies of materials and equipment,
services, or facilities are critical and
essential to the eligible energy program
or project.
*
*
*
*
*
(b) * * *
(4) The need for the end product for
which the materials and equipment,
services, or facilities are allegedly
required; and
*
*
*
*
*
(c) In finding whether the supplies of
materials and equipment, services, or
facilities described in the application
are critical and essential to an eligible
energy program or project, DOE will
consider all factors which it considers
relevant including, but not limited to,
the following:
(1) Availability and utility of
substitute materials and equipment,
services, or facilities; and
(2) Impact of the nonavailability of the
specific supplies of materials and
equipment, services, or facilities on the
furtherance or timely completion of the
approved energy program or project.
(d) Increased costs which may be
associated with obtaining materials and
equipment, services, or facilities
without assistance shall not be
PO 00000
Frm 00014
Fmt 4700
Sfmt 4700
considered a valid reason for finding the
materials and equipment, services, or
facilities to be critical and essential.
*
*
*
*
*
I 6. Section 216.5 is revised to read as
follows:
§ 216.5
Notification of findings.
(a) DOE will notify DOC if it finds that
supplies of materials and equipment,
services, or facilities for which an
applicant requested assistance are
critical and essential to an eligible
energy program or project, and in such
cases will forward to DOC the
application and whatever information or
comments DOE believes appropriate. If
DOE believes at any time that findings
previously made may no longer be
valid, it will immediately notify the
DOC and the affected applicant(s) and
afford such applicant(s) an opportunity
to show cause why such findings should
not be withdrawn.
(b) If DOC notifies DOE that DOC has
found that supplies of materials and
equipment, services, or facilities for
which the applicant requested
assistance are scarce and that the related
eligible energy program or project
cannot reasonably be accomplished
without exercising the authority
specified in DPA section 101(c)(1), DOE
will notify the applicant that the
applicant is authorized to place rated
orders for specific materials and
equipment, services, or facilities
pursuant to the provisions of the DOC’s
DPAS regulation.
§ 216.6
[Amended]
7. Section 216.6 is amended:
a. In the first sentence by adding
‘‘, services, or facilities’’ after ‘‘materials
and equipment’’; and
I b. At the beginning of the third
sentence by removing the words ‘‘Such
a’’ and adding the word ‘‘A’’.
I
I
§ 216.7
[Amended]
8. Section 216.7 is amended:
a. By removing the word ‘‘such’’ in
both sentences wherever it appears and
adding in its place the word ‘‘the’’;
I b. By removing the words ‘‘in an
attempt’’ from the first sentence; and
I c. By removing the words ‘‘the
FEMA’’ and adding in its place ‘‘DHS’’
in the second sentence.
I d. By removing the words ‘‘will
resolve’’ and adding in its place ‘‘will
attempt to resolve’’ in the second
sentence.
I 9. Section 216.8 is revised to read as
follows:
I
I
§ 216.8
Communications.
All written communications
concerning these regulations shall be
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addressed to: U.S. Department of
Energy, Attention: Office of Electricity
and Energy Assurance, OE–30, Forrestal
Building, 1000 Independence Avenue,
SW., Washington, DC 20585.
(DPAS) regulation (15 CFR part 700) in
obtaining materials (including equipment),
services, or facilities needed to fill this
contract.
[End of Clause]
Chapter 9 of Title 48
[FR Doc. E8–3773 Filed 2–28–08; 8:45 am]
10. The authority citation for parts
911 and 952 is revised to read as
follows:
BILLING CODE 6450–01–P
I
Authority: 42 U.S.C. 2201; 2282a; 2282b;
2282c; 42 U.S.C. 7101 et seq.; 41 U.S.C. 418b;
50 U.S.C. 2401 et seq.
Office of Thrift Supervision
12 CFR Part 585
PART 911—DESCRIBING AGENCY
NEEDS
911.600
DEPARTMENT OF THE TREASURY
[OTS–2007–0008]
RIN 1550–AC14
[Amended]
11. Section 911.600 is amended by
removing the words ‘‘and those energy
programs which maximize domestic
energy supplies’’.
Prohibited Service at Savings and
Loan Holding Companies Extension of
Expiration Date of Temporary
Exemption
911.602
AGENCY:
I
[Amended]
Office of Thrift Supervision
(OTS) Treasury.
ACTION: Final rule.
12. Section 911.602 is amended by
removing paragraph (d).
I
911.604
[Amended]
13. Section 911.604 is amended by
removing paragraphs (d) and (e).
I
PART 952—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
14. Section 952.211–70 is revised to
read as follows:
I
952.211–70 Priorities and allocations for
energy programs (solicitations).
As prescribed in 911.604(a), insert the
following provision in solicitations that
will result in the award of a contract in
support of DOE atomic energy programs.
Priorities and Allocations (Atomic Energy)
(APR 2008)
Contracts or purchase orders awarded as a
result of this solicitation shall be assigned a
[ ] DO-Rating; [ ] DX Rating; and certified
for national defense use in accordance with
the Defense Priorities and Allocations System
(DPAS) regulation (15 CFR part 700)
(Contracting officer check appropriate box.)
[End of Clause]
15. Section 952.211–71 is revised to
read as follows:
I
rfrederick on PROD1PC67 with RULES
952.211–71 Priorities and allocations for
energy programs (contracts).
As prescribed in 911.604(b), insert the
following clause in contracts and
purchase orders that are placed in
support of authorized DOE atomic
energy programs pursuant to the Atomic
Energy Act of 1954, as amended.
Priorities and Allocations (Atomic Energy)
(APR 2008)
The Contractor shall follow the provisions
of Defense Priorities and Allocations System
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15:40 Feb 28, 2008
Jkt 214001
SUMMARY: OTS is revising its rules
implementing section 19(e) of the
Federal Deposit Insurance Act (FDIA),
which prohibits any person who has
been convicted of any criminal offense
involving dishonesty, breach of trust, or
money laundering (or who has agreed to
enter into a pretrial diversion or similar
program in connection with a
prosecution for such an offense) from
holding certain positions with respect to
a savings and loan holding company
(SLHC). Specifically, OTS is extending
the expiration date of a temporary
exemption granted to persons who held
positions with respect to a SLHC as of
the date of the enactment of section
19(e). The revised expiration date for
the temporary exemption is June 1,
2008.
Effective Date: The final rule is
effective on February 29, 2008.
FOR FURTHER INFORMATION CONTACT:
Donna Deale, Director, Holding
Companies and Affiliates, Supervision
Policy, (202) 906–7488, or Karen
Osterloh, Special Counsel, Regulations
and Legislation, (202) 906–6639, Office
of Thrift Supervision, 1700 G Street,
NW., Washington, DC 20552.
SUPPLEMENTARY INFORMATION: On May 8,
2007, OTS published an interim final
rule adding 12 CFR part 585. This new
part implemented section 19(e) of the
FDIA, which prohibits any person who
has been convicted of any criminal
offense involving dishonesty, breach of
trust, or money laundering (or who has
agreed to enter into a pretrial diversion
or similar program in connection with a
prosecution for such an offense) from
DATES:
PO 00000
Frm 00015
Fmt 4700
Sfmt 4700
10985
holding certain positions with a SLHC.
Section 19(e) also authorizes the
Director of OTS to provide exemptions
from the prohibitions, by regulation or
order, if the exemption is consistent
with the purposes of the statute.
The interim final rule described the
actions that are prohibited under the
statute and prescribed procedures for
applying for an OTS order granting a
case-by-case exemption from the
prohibition. The rule also provided
regulatory exemptions to the
prohibitions, including a temporary
exemption for persons who held
positions with respect to a SLHC on
October 13, 2006, the date of enactment
of section 19(e). This temporary
exemption is set to expire on March 1,
2008, unless a case-by-case exemption is
filed prior to that expiration date.1
OTS is extending the expiration date
of the temporary exemption to June 1,
2008. This extension will avoid
needless disruptions of SLHC
operations while OTS reviews the
public comments and develops a final
rule addressing these comments. OTS
has concluded that this extension of the
exemption of the exemption is
consistent with the purposes of section
19(3) of the FDIA.
Regulatory Findings
Notice and Comment and Effective Date
For the reasons set out in the interim
final rule,2 OTS has concluded that:
notice and comment on this extension
are unnecessary and contrary to the
public interest under section 552(b)(B)
of the Administrative Procedure Act;
there is good cause for making the
extension effective immediately under
section 553(d) of the APA; and the
delayed effective date requirements of
section 302 of the Riegle Community
Development and Regulatory
Improvement Act of 1994 (CDRIA) do
not apply.
Regulatory Flexibility Act
For the reasons stated in the interim
final rule,3 OTS has concluded that this
extension does not require an initial
regulatory flexibility analysis under the
Regulatory Flexibility Act (RFA) (5
U.S.C. 601 et seq.), and that this
extension should not have a significant
impact on a substantial number of small
entities, as defined in the RFA.
1 This temporary exemption originally was
scheduled to expire on September 5, 2007. OTS
extended the expiration date to March 1, 2008. 72
FR 50644 (Sept. 4, 2008).
2 72 FR at 25953.
3 72 FR at 25953–54.
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Agencies
[Federal Register Volume 73, Number 41 (Friday, February 29, 2008)]
[Rules and Regulations]
[Pages 10980-10985]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-3773]
-----------------------------------------------------------------------
DEPARTMENT OF ENERGY
10 CFR Part 216
48 CFR Parts 911 and 952
RIN 1991-AB69
Defense Priorities and Allocations System
AGENCY: Department of Energy.
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Energy (DOE) today is issuing a direct final
rule to update the DOE regulations which implement DOE's delegated
authority under section 101(c) of the Defense Production Act of 1950
(DPA). Section 101(c) provides authority to the President of the United
States (President) to require the allocation of, or priority
performance under contracts or orders relating to, materials and
equipment, services, or facilities, in order to maximize domestic
energy supplies, if the President makes certain findings. The
President's authority under section 101(c) was delegated to the
Secretary of Commerce and the Secretary of Energy. This final rule
makes a number of changes to conform to a 1991 amendment to the DPA
which broadens the scope of authority in section 101(c). This final
rule also makes conforming changes to Department of Energy Acquisition
Regulation (DEAR).
DATES: This direct final rule is effective April 29, 2008, unless
adverse or critical comments are received by March 31, 2008. If the
effective date is delayed, timely notice will be published in the
Federal Register.
ADDRESSES: This direct final rulemaking is available and comments may
be submitted online at https://www.Regulations.gov. Comments may be
submitted by e-mail to Mike.Soboroff@hq.doe.gov. Comments may be mailed
to: Mike Soboroff, U.S. Department of Energy, Office of Electricity and
Energy Assurance, OE-30, 1000 Independence Avenue, SW., Washington, DC
20585. Comments by e-mail are encouraged.
FOR FURTHER INFORMATION CONTACT: Mike Soboroff at (202) 586-4936 or via
e-mail at Mike.Soboroff@hq.doe.gov.
SUPPLEMENTARY INFORMATION:
I. Discussion
II. Final Action
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
[[Page 10981]]
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. Review Under Executive Order 13211
J. Review Under the Treasury and General Government
Appropriations Act, 2001
K. Review Under the Small Business Regulatory Enforcement
Fairness Act of 1996
L. Approval by the Office of the Secretary of Energy
I. Discussion
The purpose of this final rule is to update DOE regulations at 10
CFR part 216, which implement DOE's delegated authority under section
101(c) of the DPA, to reflect a 1991 amendment to that section. Section
101(c) provides authority to require the allocation of, or priority
performance under contracts or orders relating to, materials and
equipment, services, and facilities in order to maximize domestic
energy supplies, if DOE and the Department of Commerce make certain
findings.
As originally enacted in 1975, section 101(c)(1) authorized the
President to require the allocation of, or priority performance under
contracts or orders relating to, supplies of materials and equipment,
in order to maximize domestic energy supplies if the President made the
following findings described in section 101(c)(3):
(A) Such supplies are scarce, critical, and essential to maintain
or further (i) exploration, production, refining, transportation, or
(ii) the conservation of energy supplies, or (iii) for the construction
and maintenance of energy facilities; and
(B) Maintenance or furtherance of exploration, production,
refining, transportation, or conservation of energy supplies or the
construction and maintenance of energy facilities cannot reasonably be
accomplished without exercising the authority specified in subsection
(c)(1).
Executive Order (E.O.) 11912 (April 13, 1976) directed that DOE's
predecessor, the Federal Energy Administration, be delegated the
function of making the ``critical and essential'' finding and that the
Department of Commerce be delegated the function of making the findings
that supplies are scarce and that it is necessary to exercise the
section 101(c) authority.
The Defense Production Act Extension and Amendments of 1991, Pub.
L. 102-99, amended section 101 to broaden its scope in section
101(a)(2) by substituting ``materials, services, and facilities'' for
``materials and facilities'' and in section 101(c)(1) by substituting
``materials, equipment, and services'' for ``supplies of materials and
equipment.'' Thereafter, the President issued E.O. 12919 (June 3,
1994), which revoked the relevant provisions of E.O. 11912. In section
203 of E.O. 12919, the President delegated to the Secretary of Commerce
the section 101(c) authority and directed the Secretary of Commerce to
re-delegate to the Secretary of Energy the authority to make the
findings described in subsection 101(c)(2)(A) that the materials and
equipment, services, and facilities are critical and essential. The
Secretary of Commerce retained the authority to make the finding that
the materials and equipment, services, or facilities are scarce, and to
make the finding that maintenance or expansion of exploration,
production, refining, transportation, or conservation of energy
supplies or the construction and maintenance of energy facilities
cannot reasonably be accomplished without exercising the authority in
section 101(c)(1).
DOE's regulations at 10 CFR part 216, which were promulgated in
1978, established the procedures to be used by DOE in considering and
making the section 101(c) findings assigned to DOE under E.O. 11912.
Today's direct final rule amends part 216 to reflect the broader scope
of the Defense Production Act Extension and Amendments of 1991, Public
Law 102-99 and E.O. 12919. Today's rule also adds definitions of
``services,'' ``national defense,'' ``facilities,'' and ``person'' and
amends the definition of ``materials and equipment'' in Sec. 216.2. In
addition, DOE is amending DEAR parts 911 and 952 to inform DOE
contracting officers to include in contracts a clause that informs DOE
contractors of the Defense Priorities and Allocations System (DPAS)
authority.
II. Final Action
DOE is publishing this direct final rule without prior proposal
because DOE views these amendments as noncontroversial and anticipates
no significant adverse comments. However, in the event that significant
adverse comments are filed, DOE has prepared a notice of proposed
rulemaking (NOPR) proposing the same amendments. The NOPR is a separate
document published today in the Federal Register. The direct final rule
will be effective April 29, 2008, unless significant adverse comments
are received by March 31, 2008. If DOE receives significant adverse
comments, the amendments will be withdrawn before the effective date.
In the case of withdrawal of this action, the withdrawal will be
announced by a subsequent notice published in the Federal Register.
Relevant public comments will then be addressed in a separate final
rule based on the proposed rule that is also issued today. DOE will not
implement a second comment period on this action. Any party interested
in commenting on this rule should do so at this time. If no significant
adverse comments are received, the public is advised that this rule
will be effective April 29, 2008. DOE will publish a notice in the
Federal Register to advise the public if no significant adverse
comments are received.
III. Procedural Requirements
A. Review Under Executive Order 12866
This regulatory action has been determined not to be a
``significant regulatory action'' under E.O. 12866, ``Regulatory
Planning and Review'' (58 FR 51735, October 4, 1993). Accordingly, this
final rule is not subject to review under the E.O. by the Office of
Information and Regulatory Affairs within 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 E.O. 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. Section 3(b) of E.O. 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 United
States Attorney General. Section 3(c) of E.O. 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
[[Page 10982]]
required review and determined that, to the extent permitted by law,
this direct final rule meets the relevant standards of E.O. 12988.
C. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
preparation of an initial regulatory flexibility analysis for any rule
that by law must be proposed for public comment, unless the agency
certifies that the rule, if promulgated, will not have a significant
economic impact on a substantial number of small entities. As required
by E.O. 13272, ``Proper Consideration of Small Entities in Agency
Rulemaking'' (67 FR 53461, August 16, 2002), DOE published procedures
and policies to ensure that the potential impacts of its draft rules on
small entities are properly considered during the rulemaking process
(68 FR 7990, February 19, 2003), and has made them available on the DOE
Office of General Counsel's Web site: https://www.gc.doe.gov. DOE has
reviewed today's final rule under the provisions of the Regulatory
Flexibility Act and the procedures and policies published on February
19, 2003. Today's direct final rule makes non-discretionary, conforming
changes to DOE regulations required by the 1991 amendment to the DPA.
It also makes minor changes that will not have any economic impact
beyond that of the existing regulations. On this basis, DOE certifies
that this direct final rule will not have a significant economic impact
on a substantial number of small entities. Accordingly, DOE has not
prepared a regulatory flexibility analysis for this rulemaking. DOE's
certification and supporting statement of factual basis will be
provided to the Chief Counsel for Advocacy of the Small Business
Administration pursuant to 5 U.S.C. 605(b).
D. Review Under the Paperwork Reduction Act
This direct final rule contains no new collection of information
requiring OMB approval under the Paperwork Reduction Act (44 U.S.C.
3501 et seq.).
E. Review Under the National Environmental Policy Act
Pursuant to the Council on Environmental Quality Regulations (40
CFR parts 1500-08), DOE 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, DOE has
determined that today's regulatory action is an amendment of an
existing regulation that does not change the environmental effect of
the regulation being amended (Categorical Exclusion A5). Accordingly,
neither an environmental impact statement nor an environmental
assessment is required.
F. Review Under Executive Order 13132
Executive Order 13132, ``Federalism'' (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 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 E.O. 13132.
G. Review Under the Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) 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. This rulemaking does not
impose a Federal mandate on state, local or tribal governments or on
the private sector.
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 rule or policy that may affect
family well being. This rule will have no impact on the autonomy or
integrity of the family as an institution. Accordingly, DOE has
concluded that it is not necessary to prepare a Family Policy
Assessment.
I. Review Under Executive Order 13211
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001) requires Federal agencies to prepare and submit to
the Office of Information and Regulatory Affairs (OIRA), OMB, a
Statement of Energy Effects for any significant energy action. A
``significant energy action'' is defined as any action by an agency
that promulgates or is expected to lead to promulgation of a final
rule, and that: (1) Is a significant regulatory action under E.O.
12866, or any successor order; and (2) is likely to have a significant
adverse effect on the supply, distribution, or use of energy, or (3) is
designated by the Administrator of OIRA as a significant energy action.
For any significant energy action, the agency must give a detailed
statement of any adverse effects on energy supply, distribution, or use
should the proposal be implemented, and of reasonable alternatives to
the action and their expected benefits on energy supply, distribution,
and use. Today's rule is not a significant energy action. Accordingly,
DOE has not prepared a Statement of Energy Effects.
J. Review Under the Treasury and General Government Appropriations Act,
2001
The Treasury and General Government Appropriations Act, 2001 (44
U.S.C. 3516 note) provides for agencies to review most disseminations
of information to the public under guidelines established by each
agency pursuant to general guidelines issued by OMB. OMB's guidelines
were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines
were published at 67 FR 62446 (October 7, 2002). DOE has reviewed
today's rule under the OMB and DOE guidelines and has concluded that it
is consistent with applicable policies in those guidelines.
K. Review Under the Small Business Regulatory Enforcement Fairness Act
of 1996
As required by 5 U.S.C. 801, DOE will report to Congress
promulgation of this 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).
L. Approval by the Office of the Secretary of Energy
The Office of the Secretary of Energy has approved issuance of this
direct final rule.
List of Subjects
10 CFR Part 216
Energy, Government contracts, Reporting and recordkeeping
requirements, Strategic and critical materials.
48 CFR Part 911
Government procurement.
[[Page 10983]]
48 CFR Part 952
Government procurement, Reporting and recordkeeping requirements.
Issued in Washington, DC, on February 20, 2008.
Edward R. Simpson,
Director, Office of Procurement and Assistance Management, Department
of Energy.
William N. Bryan,
Deputy Assistant Secretary, Infrastructure Security and Energy
Restoration, Department of Energy.
David O. Boyd,
Director, Office of Acquisition and Supply Management, National Nuclear
Security Administration.
0
For the reasons set forth in the preamble, DOE amends Chapter II of
Title 10 and Chapter 9 of Title 48 of the Code of Federal Regulations
(CFR) as set forth below:
PART 216--MATERIALS ALLOCATION AND PRIORITY PERFORMANCE UNDER
CONTRACTS OR ORDERS TO MAXIMIZE DOMESTIC ENERGY SUPPLIES
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1. The authority citation for part 216 is revised to read as follows:
Authority: Sec. 104 of the Energy Policy and Conservation Act
(EPCA) Pub. L. 94-163, 89 Stat. 871; section 101(c) of the Defense
Production Act of 1950 (DPA), 50 U.S.C. App. 2071(c); E.O. 12919, 59
FR 29525 (June 7, 1994); E.O. 13286, 68 FR 10619 (March 5, 2003); 15
CFR part 700; Defense Priorities and Allocations System Delegation
No. 2 (August 6, 2002), as amended at 15 CFR part 700.
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2. Section 216.1 is revised to read as follows:
Sec. 216.1 Introduction.
(a) This part describes and establishes the procedures to be used
by the Department of Energy (DOE) in considering and making certain
findings required by section 101(c)(2)(A) of the Defense Production Act
of 1950, as amended, 50 U.S.C. app. 2071(c)(2)(A) (DPA). Section 101(c)
authorizes the allocation of, or priority performance under contracts
or orders (other than contracts of employment) relating to, materials
and equipment, services, or facilities in order to maximize domestic
energy supplies if the findings described in section 101(c)(2) are
made. Among these findings are that such supplies of materials and
equipment, services, or facilities are critical and essential to
maintain or further exploration, production, refining, transportation
or the conservation of energy supplies or for the construction or
maintenance of energy facilities. The function of finding that supplies
are critical and essential was delegated to the Secretary of Energy
pursuant to E.O. 12919 (59 FR 29525, June 7, 1994) and Department of
Commerce Defense Priorities and Allocations System Delegation No. 2, 15
CFR part 700.
(b) The purpose of these regulations is to establish the procedures
and criteria to be used by DOE in determining whether programs or
projects maximize domestic energy supplies and whether or not supplies
of materials and equipment, services, or facilities are critical and
essential, as required by DPA section 101(c)(2)(A). The critical and
essential finding will be made only for supplies of materials and
equipment, services, or facilities related to those programs or
projects determined by DOE to maximize domestic energy supplies. These
regulations do not require or imply that the findings, on which the
exercise of such authority is conditioned, will be made in any
particular case.
(c) If DOE determines that a program or project maximizes domestic
energy supplies and finds that supplies of materials and equipment,
services, or facilities are critical and essential to maintain or
further the exploration, production, refining, transportation or
conservation of energy supplies or for the construction or maintenance
of energy facilities, such determination and finding will be
communicated to the Department of Commerce (DOC). If not, the applicant
will be so informed. If the determination and finding described in this
paragraph are made, DOC, pursuant to DPA section 101(c) and section 203
of E.O. 12919, will find whether or not: The supplies of materials and
equipment, services, or facilities in question are scarce; and
maintenance or furtherance of exploration, production, refining,
transportation, or conservation of energy supplies or the construction
or maintenance of energy facilities cannot be reasonably accomplished
without exercising the authority specified in DPA section 101(c). If
these additional two findings are made, DOC will notify DOE, and DOE
will inform the applicant that it has been granted the right to use
priority ratings under the Defense Priorities and Allocations System
(DPAS) regulation established by the DOC, 15 CFR part 700.
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3. Section 216.2 is amended by revising paragraphs (e) through (j) and
adding paragraphs (k) through (n) to read as follows:
Sec. 216.2 Definitions.
* * * * *
(e) DHS means the Department of Homeland Security.
(f) DOC means the Department of Commerce.
(g) DOE means the Department of Energy.
(h) Defense Priorities and Allocations System Coordination Office
means the Department of Energy, Office of Electricity and Energy
Assurance, OE-30.
(i) Eligible energy program or project means a designated activity
which maximizes domestic energy supplies by furthering the exploration,
production, refining, transportation or conservation of energy supplies
or construction or maintenance of energy facilities within the meaning
of DPA section 101(c), as determined by DOE.
(j) Facilities means all types of buildings, structures, or other
improvements to real property (but excluding farms, churches or other
places of worship, and private dwelling houses), and services relating
to the use of any such building, structure, or other improvement.
(k) Materials and equipment means: (1) Any raw materials (including
minerals, metals, and advanced processed materials), commodities,
articles, components (including critical components), products, and
items of supply; and
(2) Any technical information or services ancillary to the use of
such raw materials, commodities, articles, components, products, or
items.
(l) National Defense means programs for military and energy
production or construction, military assistance to any foreign nation,
stockpiling, space, and any directly related activity. Such term also
includes emergency preparedness activities conducted pursuant to title
VI of the Robert T. Stafford Disaster Relief and Emergency Assistance
Act (42 U.S.C. 5195, et seq.) and critical infrastructure protection
and restoration.
(m) Person means an individual, corporation, partnership,
association, or any other organized group of persons, or legal
successor or representative thereof, or any state or local government
or agency thereof.
(n) Services include any effort that is needed for or incidental
to:
(1) The development, production, processing, distribution,
delivery, or use of an industrial resource, or critical technology
item; or
(2) The construction of facilities.
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4. Section 216.3, paragraph (a) is revised to read as follows:
Sec. 216.3 Requests for assistance.
(a) Persons who believe that they perform work associated with a
program or project which may qualify as an
[[Page 10984]]
eligible energy program or project and wishing to receive assistance as
authorized by DPA section 101(c)(1) may submit an application to DOE
requesting DOE to determine whether a program or project maximizes
domestic energy supplies and to find whether or not specific supplies
of materials and equipment, services, or facilities identified in the
application are critical and essential for a purpose identified in
section 101(c). The application shall be sent to: U.S. Department of
Energy, Attn: Office of Electricity and Energy Assurance, OE-30,
Forrestal Building, 1000 Independence Avenue, SW., Washington, DC
20585. The application shall contain the following information:
(1) The name and address of the applicant and of its duly
authorized representative.
(2) A description of the energy program or project for which
assistance is requested and an assessment of its impact on the
maximization of domestic energy supplies.
(3) The amount of energy to be produced by the program or project
which is directly affected by the supplies of the materials and
equipment, services, or facilities in question.
(4) A statement explaining why the materials and equipment,
services, or facilities for which assistance is requested are critical
and essential to the construction or operation of the energy project or
program.
(5) A detailed description of the specific supplies of materials
and equipment, services, or facilities in connection with which
assistance is requested, including: Components, performance data
(capacity, life duration, etc.), standards, acceptable tolerances in
dimensions and specifications, current inventory, present and expected
rates of use, anticipated deliveries and substitution possibilities
(feasibility of using other materials and equipment, services, or
facilities).
(6) A detailed description of the sources of supply, including: The
name of the regular supplying company or companies, other companies
capable of supplying the materials and equipment, services, or
facilities; location of supplying plants or plants capable of supplying
the needed materials and equipment, services, or facilities; possible
suppliers for identical or substitutable materials and equipment,
services, or facilities and possible foreign sources of supply.
(7) A detailed description of the delivery situation, including:
Normal delivery times, promised delivery time without priorities
assistance, and delivery time required for expeditious fulfillment or
completion of the program or project.
(8) Evidence of the applicant's unsuccessful efforts to obtain on a
timely basis the materials and equipment, services, or facilities in
question through normal business channels from current or other known
suppliers.
(9) A detailed estimate of the delay in fulfilling or completing
the energy program or project which will be caused by inability to
obtain the specified materials and equipment, services, or facilities
in the usual course of business.
(10) Any known conflicts with rated orders already issued pursuant
to the DPA for supplies of the described materials and equipment,
services, or facilities.
* * * * *
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5. In Sec. 216.4, paragraph (a), paragraph (b)(4), and paragraphs (c)
and (d) are revised to read as follows:
Sec. 216.4 Evaluation by DOE of applications.
(a) Based on the information provided by the applicant and other
available information, DOE will:
(1) Determine whether or not the energy program or project in
connection with which the application is made maximizes domestic energy
supplies and should be designated an eligible energy program or
project; and
(2) Find whether the described supplies of materials and equipment,
services, or facilities are critical and essential to the eligible
energy program or project.
* * * * *
(b) * * *
(4) The need for the end product for which the materials and
equipment, services, or facilities are allegedly required; and
* * * * *
(c) In finding whether the supplies of materials and equipment,
services, or facilities described in the application are critical and
essential to an eligible energy program or project, DOE will consider
all factors which it considers relevant including, but not limited to,
the following:
(1) Availability and utility of substitute materials and equipment,
services, or facilities; and
(2) Impact of the nonavailability of the specific supplies of
materials and equipment, services, or facilities on the furtherance or
timely completion of the approved energy program or project.
(d) Increased costs which may be associated with obtaining
materials and equipment, services, or facilities without assistance
shall not be considered a valid reason for finding the materials and
equipment, services, or facilities to be critical and essential.
* * * * *
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6. Section 216.5 is revised to read as follows:
Sec. 216.5 Notification of findings.
(a) DOE will notify DOC if it finds that supplies of materials and
equipment, services, or facilities for which an applicant requested
assistance are critical and essential to an eligible energy program or
project, and in such cases will forward to DOC the application and
whatever information or comments DOE believes appropriate. If DOE
believes at any time that findings previously made may no longer be
valid, it will immediately notify the DOC and the affected applicant(s)
and afford such applicant(s) an opportunity to show cause why such
findings should not be withdrawn.
(b) If DOC notifies DOE that DOC has found that supplies of
materials and equipment, services, or facilities for which the
applicant requested assistance are scarce and that the related eligible
energy program or project cannot reasonably be accomplished without
exercising the authority specified in DPA section 101(c)(1), DOE will
notify the applicant that the applicant is authorized to place rated
orders for specific materials and equipment, services, or facilities
pursuant to the provisions of the DOC's DPAS regulation.
Sec. 216.6 [Amended]
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7. Section 216.6 is amended:
0
a. In the first sentence by adding ``, services, or facilities'' after
``materials and equipment''; and
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b. At the beginning of the third sentence by removing the words ``Such
a'' and adding the word ``A''.
Sec. 216.7 [Amended]
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8. Section 216.7 is amended:
0
a. By removing the word ``such'' in both sentences wherever it appears
and adding in its place the word ``the'';
0
b. By removing the words ``in an attempt'' from the first sentence; and
0
c. By removing the words ``the FEMA'' and adding in its place ``DHS''
in the second sentence.
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d. By removing the words ``will resolve'' and adding in its place
``will attempt to resolve'' in the second sentence.
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9. Section 216.8 is revised to read as follows:
Sec. 216.8 Communications.
All written communications concerning these regulations shall be
[[Page 10985]]
addressed to: U.S. Department of Energy, Attention: Office of
Electricity and Energy Assurance, OE-30, Forrestal Building, 1000
Independence Avenue, SW., Washington, DC 20585.
Chapter 9 of Title 48
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10. The authority citation for parts 911 and 952 is revised to read as
follows:
Authority: 42 U.S.C. 2201; 2282a; 2282b; 2282c; 42 U.S.C. 7101
et seq.; 41 U.S.C. 418b; 50 U.S.C. 2401 et seq.
PART 911--DESCRIBING AGENCY NEEDS
911.600 [Amended]
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11. Section 911.600 is amended by removing the words ``and those energy
programs which maximize domestic energy supplies''.
911.602 [Amended]
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12. Section 911.602 is amended by removing paragraph (d).
911.604 [Amended]
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13. Section 911.604 is amended by removing paragraphs (d) and (e).
PART 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
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14. Section 952.211-70 is revised to read as follows:
952.211-70 Priorities and allocations for energy programs
(solicitations).
As prescribed in 911.604(a), insert the following provision in
solicitations that will result in the award of a contract in support of
DOE atomic energy programs.
Priorities and Allocations (Atomic Energy) (APR 2008)
Contracts or purchase orders awarded as a result of this
solicitation shall be assigned a [ ] DO-Rating; [ ] DX Rating; and
certified for national defense use in accordance with the Defense
Priorities and Allocations System (DPAS) regulation (15 CFR part
700) (Contracting officer check appropriate box.)
[End of Clause]
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15. Section 952.211-71 is revised to read as follows:
952.211-71 Priorities and allocations for energy programs (contracts).
As prescribed in 911.604(b), insert the following clause in
contracts and purchase orders that are placed in support of authorized
DOE atomic energy programs pursuant to the Atomic Energy Act of 1954,
as amended.
Priorities and Allocations (Atomic Energy) (APR 2008)
The Contractor shall follow the provisions of Defense Priorities
and Allocations System (DPAS) regulation (15 CFR part 700) in
obtaining materials (including equipment), services, or facilities
needed to fill this contract.
[End of Clause]
[FR Doc. E8-3773 Filed 2-28-08; 8:45 am]
BILLING CODE 6450-01-P