Acquisition Regulation: Subchapter E-General Contracting Requirements, Subchapter F-Special Categories of Contracting, and Subchapter G-Contract Management, 964-967 [2010-11]
Download as PDF
<![CDATA[
964
Federal Register / Vol. 75, No. 4 / Thursday, January 7, 2010 / Proposed Rules
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this proposed rule
pertaining to the Baltimore NAA’s 2002
base year emissions inventory; 2008
ozone projected emission inventory;
2008 RFP plan; RFP contingency
measures; RACM analysis; and 2008
transportation conformity budgets does
not have Tribal implications as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000), because
the SIP is not approved to apply in
Indian country located in the State, and
EPA notes that it will not impose
substantial direct costs on Tribal
governments or preempt Tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping
requirements, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: December 23, 2009.
William C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2010–17 Filed 1–6–10; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF ENERGY
48 CFR Parts 928, 931, 932, 933, 935,
936, 937, 941, 942, 949, 950, 951, and
952
RIN 1991–AB88
Acquisition Regulation: Subchapter
E—General Contracting Requirements,
Subchapter F—Special Categories of
Contracting, and Subchapter G—
Contract Management
Department of Energy.
Notice of proposed rulemaking.
AGENCY:
WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS
ACTION:
SUMMARY: The Department of Energy
(DOE) is proposing to amend the
Department of Energy Acquisition
Regulation (DEAR) Subchapters E—
General Contracting Requirements, F—
Special Categories of Contracting, and
G—Contract Management to make
changes to conform to the FAR, remove
out-of-date coverage, and to update
references. DOE will separately propose
rules for changes to parts 927 and 945,
respectively. Today’s proposed rule
does not alter substantive rights or
obligations under current law.
DATES: Written comments on the
proposed rulemaking must be received
on or before close of business February
8, 2010.
VerDate Nov<24>2008
14:23 Jan 06, 2010
Jkt 220001
This proposed rule is
available and you may submit
comments, identified by DEAR:
Subchapters E, F, and G and RIN 1991–
AB88, by any of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• E-mail to:
DEARrulemaking@hq.doe.gov. Include:
DEAR: Subchapters E, F and G and RIN
1991–AB88 in the subject line of the
message.
• Mail to: U.S. Department of Energy,
Office of Procurement and Assistance
Management, MA–611, 1000
Independence Avenue, SW.,
Washington, DC 20585. Comments by email are encouraged.
FOR FURTHER INFORMATION CONTACT:
Barbara Binney at (202) 287–1340 or by
e-mail, barbara.binney@hq.doe.gov.
SUPPLEMENTARY INFORMATION:
ADDRESSES:
I. Background
II. Section-by-Section Analysis
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
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. Approval by the Office of the Secretary
of Energy
I. Background
The objective of this action is to
update the existing Department of
Energy Acquisition Regulation (DEAR).
Subchapters E, F, and G have sections
that need to be updated to conform to
the FAR. None of the proposed changes
are substantive or of a nature to cause
any significant expense for DOE or its
contractors.
II. Section-by-Section Analysis
Changes are proposed to DEAR parts
928, 931, 932, 933, 935, 936, 937, 941,
942, 949, 950, 951, and 952. No changes
are proposed for DEAR parts 927, 929,
930, 934, 938, 939, 940, 943, 944, 945,
946, 947, and 948.
DOE proposes to amend the DEAR as
follows:
1. Section 932.501–2 is amended in
paragraph (a)(3) to reflect current
procedures to state that all requests for
unusual progress payments shall be sent
to the DOE or the NNSA Senior
PO 00000
Frm 00031
Fmt 4702
Sfmt 4702
Procurement Executive to approve or
deny.
2. Subpart 932.6 is amended to update
the DEAR to conform with FAR subpart
32.6 which was revised by Federal
Acquisition Circular 2005–027 effective
October 18, 2008.
3. Section 935.010 is amended by
revising paragraphs (c) and (d). The
report process has been changed to an
electronic submission using the DOE
Energy Link System (E-Link) at https://
www.osti.gov/elink. The contracting
officer shall require the contractors to
use E-Link to submit an announcement
record with each report.
4. Part 936 redesignates 936.202 to
936.202–70.
5. Part 937 is revised to add a new
subpart, Subpart 937.2—Advisory and
Assistance Services and section 937.204
Guidelines for determining availability
of personnel. Sections 937.204(a), (b),
(d) and (e) are added to conform to FAR
37.204 to provide the DOE guidelines
for determining availability of sufficient
personnel with the requisite training
and capabilities to perform the
evaluation or analysis of proposals. It
also clarifies the DOE officials
responsible for making the
determinations prescribed at FAR
37.204 (a), (b), (d) and (e).
6. Section 941.201–70 is amended to
update the DOE Order reference by
removing the remainder of the sentence
after the second ‘‘FAR’’ and adding in
its place ‘‘part 41 and the Department of
Energy (DOE) Order 430.2B,
Departmental Energy, Renewable Energy
and Transportation Management, or its
successor.’’
7. Section 942.803 is amended at
paragraph (c) by removing ‘‘as discussed
in 942.70 Audit Services’’ which is no
longer a subpart.
8. Section 949.101 is revised to add
‘‘Senior’’ before ‘‘Procurement
Executive.’’ to conform the use of the
Procurement Executive title with the
FAR.
9. Subpart 949.5 is removed and
reserved. There is no longer a need for
a DEAR termination clause for
Architect-Engineer contracts.
10. Section 951.102 paragraph (e)(4) is
amended to remove the ‘‘(iii)’’ in the
paragraph numbering.
11. Section 952.247–70 is amended to
remove repetitive language.
12. The rule text is amended as noted
in the table at paragraph 16, by
removing ‘‘FAR’’ or ‘‘FAR part’’ and
adding ‘‘48 CFR’’ or ‘‘48 CFR part’’ or
by updating other CFR citations. Section
931.205–47(h)(1) is amended by
changing the capitalization of the word
‘‘part’’ in two places. Section 952 has
E:\FR\FM\07JAP1.SGM
07JAP1
Federal Register / Vol. 75, No. 4 / Thursday, January 7, 2010 / Proposed Rules
several changes in punctuation at
952.235–71 and 952.250–70.
III. Procedural Requirements
A. Review Under Executive Order 12866
Today’s regulatory action has been
determined not to be a ‘‘significant
regulatory action’’ under Executive
Order 12866, ‘‘Regulatory Planning and
Review,’’ (58 FR 51735, October 4,
1993). Accordingly, this rule is not
subject to review under that Executive
Order by the Office of Information and
Regulatory Affairs (OIRA) of the Office
of Management and Budget (OMB).
WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS
B. Review Under Executive Order 12988
With respect to the review of existing
regulations and the promulgation of
new regulations, section 3(a) of
Executive Order 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. With regard to
the review required by section 3(a),
section 3(b) of Executive Order 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 Executive Order
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 if it is unreasonable to meet one or
more of them. DOE has completed the
required review and determined that, to
the extent permitted by law, this rule
meets the relevant standards of
Executive Order 12988.
C. Review Under the Regulatory
Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.) requires that an
agency prepare an initial regulatory
flexibility analysis for any regulation for
which a general notice or proposed
rulemaking is required, unless the
VerDate Nov<24>2008
14:23 Jan 06, 2010
Jkt 220001
agency certifies that the rule, if
promulgated, will not have a significant
economic impact on a substantial
number of small entities (5 U.S.C.
605(b)). This rule updates references in
the DEAR that apply to public contracts
and does not impose any additional
requirements on small businesses.
Today’s proposed rule does not alter
any substantive rights or obligations
and, consequently, today’s proposed
rule will not have a significant cost or
administrative impact on contractors,
including small entities. On the basis of
the foregoing, DOE certifies that this
proposed rule would 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 proposed rule does not impose a
collection of information requirement
subject to the Paperwork Reduction Act,
44 U.S.C. 3501 et seq. Existing burdens
associated with the collection of certain
contractor data under the DEAR have
been cleared under OMB control
number 1910–4100.
E. Review Under the National
Environmental Policy Act
DOE has concluded that promulgation
of this proposed rule falls into a class of
actions which would not individually or
cumulatively have significant impact on
the human environment, as determined
by DOE’s regulations (10 CFR part 1021,
subpart D) implementing the National
Environmental Policy Act (NEPA) of
1969 (42 U.S.C. 4321 et seq.).
Specifically, this proposed rule is
categorically excluded from NEPA
review because the amendments to the
DEAR are strictly procedural
(categorical exclusion A6). Therefore,
this proposed rule does not require an
environmental impact statement or
environmental assessment pursuant to
NEPA.
F. Review Under Executive Order 13132
Executive Order 13132, 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
PO 00000
Frm 00032
Fmt 4702
Sfmt 4702
965
the policymaking discretion of the
States and carefully assess the necessity
for such actions. The Executive Order
requires agencies to have an
accountability process to ensure
meaningful and timely input by State
and local officials in the development of
regulatory policies that have federalism
implications. On March 14, 2000, DOE
published a statement of policy
describing the intergovernmental
consultation process it will follow in the
development of such regulations (65 FR
13735). DOE has examined the proposed
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 Executive Order 13132.
G. Review Under the Unfunded
Mandates Reform Act of 1995
The Unfunded Mandates Reform Act
of 1995 (Pub. L. 104ƒ4) generally
requires a Federal agency to perform a
written 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, of
$100 million or more. This rulemaking
proposes changes that do not alter any
substantive rights or obligations. This
proposed rule does not impose any
mandates.
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
rulemaking or policy that may affect
family well-being. This rulemaking 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
Policymaking 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 Office of
Information and Regulatory Affairs of
the Office of Management and Budget,
a Statement of Energy Effects for any
proposed significant energy action. A
‘‘significant energy action’’ is defined as
any action by an agency that
promulgates or is expected to lead to
E:\FR\FM\07JAP1.SGM
07JAP1
966
Federal Register / Vol. 75, No. 4 / Thursday, January 7, 2010 / Proposed Rules
promulgation of a final rule, and that:
(1) Is a significant regulatory action
under Executive Order 12866, or any
successor order; (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 proposed 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 proposed 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
K. Approval by the Office of the
Secretary of Energy
List of Subjects in 48 CFR Parts 928,
931, 932, 933, 935, 936, 937, 941, 942,
949, 950, 951, and 952
WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS
Government procurement.
Issued in Washington, DC, on December
16, 2009.
Edward R. Simpson,
Director, Office of Procurement and
Assistance Management, Department of
Energy.
David O. Boyd,
Director, Office of Acquisition and Supply
Management, National Nuclear Security
Administration.
For the reasons set out in the
preamble, the Department of Energy is
proposing to amend Chapter 9 of Title
48 of the Code of Federal Regulations as
set forth below.
1. The authority citations for parts
928, 931, 932, 933, 935, 936, 941, 942,
and 951 continue to read as follows:
Jkt 220001
PART 932—CONTRACT FINANCING
936.202
2. Section 932.501–2 is amended by
revising paragraph (a)(3) to read as
follows:
5. Section 936.202 is redesignated as
936.202–70 and the section heading is
revised to read as follows:
935.501–2
936.202–70
Unusual progress payments.
(a)(3) For DOE, the Head of the
Contracting Activity shall forward all
requests which are considered
favorable, with supporting information,
to the DOE Senior Procurement
Executive, who, after coordination with
the Chief Financial Officer,
Headquarters, will approve or deny the
request. For NNSA, the NNSA Senior
Procurement Executive will coordinate
with the NNSA Chief Financial Officer
before approving or denying the request.
*
*
*
*
*
[Redesignated as 932.602]
3. Section 932.605 is redesignated as
932.602 and newly redesignated
932.602 is amended by:
a. Revising the section heading as set
forth below; and
b. Removing the paragraph
designation ‘‘(b)’’.
The revision reads as follows:
932.602
*
*
Responsibilities.
*
*
*
PART 935—RESEARCH AND
DEVELOPMENT CONTRACTING
4. Revise section 935.010 to read as
follows:
935.010
Issuance of this proposed rule has
been approved by the Office of the
Secretary.
14:23 Jan 06, 2010
PART 936—CONSTRUCTION AND
ARCHITECT-ENGINEER CONTRACTS
932.605
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 the proposed rule under the
OMB and DOE guidelines and has
concluded that it is consistent with
applicable policies in those guidelines.
VerDate Nov<24>2008
Authority: 42 U.S.C. 7101 et seq. and 50
U.S.C. 2401 et seq.
Scientific and technical reports.
(c) All research and development
contracts which require reporting of
research and development results
conveyed in scientific and technical
information (STI) shall include an
instruction requiring the contractor to
submit all STI, including reports and
notices relating thereto, electronically to
the U.S. Department of Energy (DOE),
Office of Scientific and Technical
Information (OSTI), using the DOE
Energy Link System (E-link) at https://
www.osti.gov/elink. The phrase ‘‘reports
and notices relating thereto’’ does not
include reports or notices concerning
administrative matters such as contract
cost or financial data and information.
The DOE Order 241.1B Scientific and
Technical Information Management, or
its successor version, sets forth
requirements for STI management.
(d) As prescribed in DOE Order
241.1B, the contracting officer shall
ensure that the requirements of the
attendant Contractor Requirements
Document are included in applicable
contracts.
PO 00000
Frm 00033
Fmt 4702
Sfmt 4702
[Redesignated as 936.202–70]
Specifications charges.
*
*
*
*
*
6. The authority citations for parts 937
and 949 are revised to read as follows:
Authority: 42 U.S.C. 7101 et seq. and 50
U.S.C. 2401 et seq.
PART 937—SERVICE CONTRACTING
7. Add a new subpart 937.2,
consisting of section 937.204, to read as
follows:
Subpart 937.2—Advisory and
Assistance Services
937.204 Guidelines for determining
availability of personnel.
(a) The determination, that there is
sufficient DOE personnel with the
requisite training and capabilities for
each evaluation or analysis of proposals,
shall be determined in accordance with
915.207–70(f)(2)(i).
(b) If it is determined that there is no
such DOE personnel available, then
other Federal agencies may have the
required personnel with the requisite
training and capabilities for the
evaluation or the analysis of proposals.
The determination, to use employees of
other Federal agencies for the evaluation
or analysis of proposals, shall be in
accordance with 915.207–70(f)(2)(ii).
(d) The determination, to employ nonFederal evaluators or advisors, shall be
determined in accordance with
915.207–70(f)(3).
(e) The determination that covered
personnel are unavailable for a class of
proposals, necessitating employment of
non-Federal evaluators or advisors, shall
be determined in accordance with
915.207–70(f)(3).
PART 941—ACQUISITION OF UTILITY
SERVICES
8. Section 941.201–70 is revised to
read as follows:
941.201–70
DOE Directives.
Utility services (defined at 48 CFR
41.101) shall be acquired in accordance
with 48 CFR part 41 and the Department
of Energy (DOE) Order 430.2B,
Departmental Energy, Renewable Energy
and Transportation Management, or its
successor.
E:\FR\FM\07JAP1.SGM
07JAP1
967
Federal Register / Vol. 75, No. 4 / Thursday, January 7, 2010 / Proposed Rules
Authority: 42 U.S.C. 2201; 2282a; 2282b;
2282c; 42 U.S.C. 7101 et seq.; 50 U.S.C. 2401
et seq.
PART 942—CONTRACT
ADMINISTRATION
942.803
[Amended]
9. Amend section 942.803 by revising
paragraph (c)(1) in the last sentence by
removing the phrase ‘‘, as discussed in
942.70 Audit Services’’.
PART 949—TERMINATION OF
CONTRACTS
949.101
adding in its place ‘‘Official Foreign
Travel, or its successor’’. The revision
reads as follows:
PART 951—USE OF GOVERNMENT
SOURCES BY CONTRACTORS
952.247–70
951.102
FOREIGN TRAVEL (XXX 20XX)
[INSERT ABBREVIATED MONTH AND
YEAR 30 DAYS AFTER DATE OF
FINAL RULE PUBLICATION]
*
*
*
*
*
[Amended]
13. Section 951.102 is amended by
revising the paragraph designation
‘‘(e)(4)(iii)’’ to read ‘‘(e)(4)’’.
PART 952—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
[Amended]
10. Section 949.101 is amended by
adding ‘‘Senior’’ before ‘‘Procurement
Executive’’.
14. The authority citation for part 952
is revised to read as follows:
Subpart 949.5 [Removed and
Reserved]
Authority: 42 U.S.C. 2201; 2282a; 2282b;
2282c; 42 U.S.C. 7101 et seq.; 50 U.S.C. 2401
et seq.
11. Subpart 949.5 is removed and
reserved.
PART 950—EXTRAORDINARY
CONTRACTUAL ACTIONS AND THE
SAFETY ACT
12. The authority citation for part 950
continues to read as follows:
15. Section 952.247–70 is amended
by:
a. Revising the date of the clause to
read as set forth below; and
b. Removing ‘‘or its successor Official
Foreign Travel, or any subsequent
version of the order’’ in the clause and
*
*
Foreign travel.
*
*
*
PARTS 928, 931, 932, 933, 936, 937,
941, 942, 950, 951, AND 952
[AMENDED]
16. In the table below, for each section
indicated in the left column, remove the
word indicated in the middle column
from where it appears in the section,
and add the word in the right column:
WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS
Section
Remove
Add
928.101–1 ...........................................................
928.301 ...............................................................
931.102 in 2 places ............................................
931.102 ...............................................................
931.205–32(a) ....................................................
931.205–47(h)(1), in the Employee whistleblower action definition.
931.205–47(h)(1), in the Employee whistleblower action definition.
932.006–4(a) ......................................................
932.803(d) ..........................................................
932.7004–1 in 3 places ......................................
932.7004–3(a) ....................................................
933.103(k) ..........................................................
933.104(b) ..........................................................
933.104(c) ..........................................................
933.104(g) ..........................................................
933.106(a) ..........................................................
936.602–10(a)(8) ................................................
936.609–3 ...........................................................
936.7100 .............................................................
937.7040 .............................................................
942.704(b) in 2 places .......................................
942.705–1(b)(1) ..................................................
950.7003(a) in the first sentence .......................
951.102(a) ..........................................................
951.102(a) ..........................................................
952.233–2 in the introductory text .....................
952.233–4(a) ......................................................
952.233–4(b) ......................................................
952.235–71(b)(1) ................................................
952.250–70(e)(2) ................................................
‘‘FAR’’ ...............................................................
‘‘FAR Part’’ .......................................................
‘‘FAR’’ ...............................................................
‘‘FAR Part 31’’ ..................................................
‘‘FAR’’ ...............................................................
‘‘29 CFR Part 24,’’ ...........................................
‘‘48
‘‘48
‘‘48
‘‘48
‘‘48
‘‘29
‘‘10 CFR Part 708’’ ..........................................
‘‘10 CFR part 708’’
‘‘FAR’’ ...............................................................
‘‘FAR’’ ...............................................................
‘‘FAR’’ ...............................................................
‘‘FAR’’ ...............................................................
‘‘FAR’’ ...............................................................
‘‘FAR’’ ...............................................................
‘‘FAR’’ ...............................................................
‘‘FAR’’ ...............................................................
‘‘FAR’’ ...............................................................
‘‘FAR’’ ...............................................................
‘‘FAR’’ ...............................................................
‘‘FAR Part’’ .......................................................
‘‘FAR’’ ...............................................................
‘‘FAR’’ ...............................................................
‘‘FAR’’ ...............................................................
‘‘(DOE)’’ ............................................................
‘‘FAR Part’’ .......................................................
‘‘DOE PMR 41 CFR 109–26’’ ..........................
‘‘FAR’’ ...............................................................
‘‘FAR’’ ...............................................................
‘‘FAR’’ ...............................................................
‘‘warranted;’’ .....................................................
‘‘which:’’ ............................................................
‘‘48 CFR’’
‘‘48 CFR’’
‘‘48 CFR’’
‘‘48 CFR’’
‘‘48 CFR’’
‘‘48 CFR’’
‘‘48 CFR’’
‘‘48 CFR’’
‘‘48 CFR’’
‘‘48 CFR’’
‘‘48 CFR’’
‘‘48 CFR part’’
‘‘48 CFR’’
‘‘48 CFR’’
‘‘48 CFR’’
‘‘DOE’’
‘‘48 CFR part’’
‘‘DOE PMR 41 CFR 109’’
‘‘48 CFR’’
‘‘48 CFR’’
‘‘48 CFR’’
‘‘warranted.’’
‘‘which—’’
CFR’’
CFR part’’
CFR’’
CFR part 31’’
CFR’’
CFR part 24,’’
[FR Doc. 2010–11 Filed 1–6–10; 8:45 am]
BILLING CODE 6450–01–P
VerDate Nov<24>2008
14:23 Jan 06, 2010
Jkt 220001
PO 00000
Frm 00034
Fmt 4702
Sfmt 4702
E:\FR\FM\07JAP1.SGM
07JAP1
]]>Agencies
[Federal Register Volume 75, Number 4 (Thursday, January 7, 2010)]
[Proposed Rules]
[Pages 964-967]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-11]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF ENERGY
48 CFR Parts 928, 931, 932, 933, 935, 936, 937, 941, 942, 949, 950,
951, and 952
RIN 1991-AB88
Acquisition Regulation: Subchapter E--General Contracting
Requirements, Subchapter F--Special Categories of Contracting, and
Subchapter G--Contract Management
AGENCY: Department of Energy.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Department of Energy (DOE) is proposing to amend the
Department of Energy Acquisition Regulation (DEAR) Subchapters E--
General Contracting Requirements, F--Special Categories of Contracting,
and G--Contract Management to make changes to conform to the FAR,
remove out-of-date coverage, and to update references. DOE will
separately propose rules for changes to parts 927 and 945,
respectively. Today's proposed rule does not alter substantive rights
or obligations under current law.
DATES: Written comments on the proposed rulemaking must be received on
or before close of business February 8, 2010.
ADDRESSES: This proposed rule is available and you may submit comments,
identified by DEAR: Subchapters E, F, and G and RIN 1991-AB88, by any
of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
E-mail to: DEARrulemaking@hq.doe.gov. Include: DEAR:
Subchapters E, F and G and RIN 1991-AB88 in the subject line of the
message.
Mail to: U.S. Department of Energy, Office of Procurement
and Assistance Management, MA-611, 1000 Independence Avenue, SW.,
Washington, DC 20585. Comments by e-mail are encouraged.
FOR FURTHER INFORMATION CONTACT: Barbara Binney at (202) 287-1340 or by
e-mail, barbara.binney@hq.doe.gov.
SUPPLEMENTARY INFORMATION:
I. Background
II. Section-by-Section Analysis
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
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. Approval by the Office of the Secretary of Energy
I. Background
The objective of this action is to update the existing Department
of Energy Acquisition Regulation (DEAR). Subchapters E, F, and G have
sections that need to be updated to conform to the FAR. None of the
proposed changes are substantive or of a nature to cause any
significant expense for DOE or its contractors.
II. Section-by-Section Analysis
Changes are proposed to DEAR parts 928, 931, 932, 933, 935, 936,
937, 941, 942, 949, 950, 951, and 952. No changes are proposed for DEAR
parts 927, 929, 930, 934, 938, 939, 940, 943, 944, 945, 946, 947, and
948.
DOE proposes to amend the DEAR as follows:
1. Section 932.501-2 is amended in paragraph (a)(3) to reflect
current procedures to state that all requests for unusual progress
payments shall be sent to the DOE or the NNSA Senior Procurement
Executive to approve or deny.
2. Subpart 932.6 is amended to update the DEAR to conform with FAR
subpart 32.6 which was revised by Federal Acquisition Circular 2005-027
effective October 18, 2008.
3. Section 935.010 is amended by revising paragraphs (c) and (d).
The report process has been changed to an electronic submission using
the DOE Energy Link System (E-Link) at https://www.osti.gov/elink. The
contracting officer shall require the contractors to use E-Link to
submit an announcement record with each report.
4. Part 936 redesignates 936.202 to 936.202-70.
5. Part 937 is revised to add a new subpart, Subpart 937.2--
Advisory and Assistance Services and section 937.204 Guidelines for
determining availability of personnel. Sections 937.204(a), (b), (d)
and (e) are added to conform to FAR 37.204 to provide the DOE
guidelines for determining availability of sufficient personnel with
the requisite training and capabilities to perform the evaluation or
analysis of proposals. It also clarifies the DOE officials responsible
for making the determinations prescribed at FAR 37.204 (a), (b), (d)
and (e).
6. Section 941.201-70 is amended to update the DOE Order reference
by removing the remainder of the sentence after the second ``FAR'' and
adding in its place ``part 41 and the Department of Energy (DOE) Order
430.2B, Departmental Energy, Renewable Energy and Transportation
Management, or its successor.''
7. Section 942.803 is amended at paragraph (c) by removing ``as
discussed in 942.70 Audit Services'' which is no longer a subpart.
8. Section 949.101 is revised to add ``Senior'' before
``Procurement Executive.'' to conform the use of the Procurement
Executive title with the FAR.
9. Subpart 949.5 is removed and reserved. There is no longer a need
for a DEAR termination clause for Architect-Engineer contracts.
10. Section 951.102 paragraph (e)(4) is amended to remove the
``(iii)'' in the paragraph numbering.
11. Section 952.247-70 is amended to remove repetitive language.
12. The rule text is amended as noted in the table at paragraph 16,
by removing ``FAR'' or ``FAR part'' and adding ``48 CFR'' or ``48 CFR
part'' or by updating other CFR citations. Section 931.205-47(h)(1) is
amended by changing the capitalization of the word ``part'' in two
places. Section 952 has
[[Page 965]]
several changes in punctuation at 952.235-71 and 952.250-70.
III. Procedural Requirements
A. Review Under Executive Order 12866
Today's regulatory action has been determined not to be a
``significant regulatory action'' under Executive Order 12866,
``Regulatory Planning and Review,'' (58 FR 51735, October 4, 1993).
Accordingly, this rule is not subject to review under that Executive
Order by the Office of Information and Regulatory Affairs (OIRA) of 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 Executive Order 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. With regard to the review
required by section 3(a), section 3(b) of Executive Order 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 Executive Order 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 if it is unreasonable to meet one or more of them. DOE has
completed the required review and determined that, to the extent
permitted by law, this rule meets the relevant standards of Executive
Order 12988.
C. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires that
an agency prepare an initial regulatory flexibility analysis for any
regulation for which a general notice or proposed rulemaking is
required, unless the agency certifies that the rule, if promulgated,
will not have a significant economic impact on a substantial number of
small entities (5 U.S.C. 605(b)). This rule updates references in the
DEAR that apply to public contracts and does not impose any additional
requirements on small businesses. Today's proposed rule does not alter
any substantive rights or obligations and, consequently, today's
proposed rule will not have a significant cost or administrative impact
on contractors, including small entities. On the basis of the
foregoing, DOE certifies that this proposed rule would 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 proposed rule does not impose a collection of information
requirement subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq. Existing burdens associated with the collection of certain
contractor data under the DEAR have been cleared under OMB control
number 1910-4100.
E. Review Under the National Environmental Policy Act
DOE has concluded that promulgation of this proposed rule falls
into a class of actions which would not individually or cumulatively
have significant impact on the human environment, as determined by
DOE's regulations (10 CFR part 1021, subpart D) implementing the
National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et
seq.). Specifically, this proposed rule is categorically excluded from
NEPA review because the amendments to the DEAR are strictly procedural
(categorical exclusion A6). Therefore, this proposed rule does not
require an environmental impact statement or environmental assessment
pursuant to NEPA.
F. Review Under Executive Order 13132
Executive Order 13132, 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. The Executive Order requires agencies to
have an accountability process to ensure meaningful and timely input by
State and local officials in the development of regulatory policies
that have federalism implications. On March 14, 2000, DOE published a
statement of policy describing the intergovernmental consultation
process it will follow in the development of such regulations (65 FR
13735). DOE has examined the proposed 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 Executive Order 13132.
G. Review Under the Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104[boxh]4)
generally requires a Federal agency to perform a written 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, of $100
million or more. This rulemaking proposes changes that do not alter any
substantive rights or obligations. This proposed rule does not impose
any mandates.
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 rulemaking or policy that may
affect family well-being. This rulemaking 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 Policymaking
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
Office of Information and Regulatory Affairs of the Office of
Management and Budget, a Statement of Energy Effects for any proposed
significant energy action. A ``significant energy action'' is defined
as any action by an agency that promulgates or is expected to lead to
[[Page 966]]
promulgation of a final rule, and that: (1) Is a significant regulatory
action under Executive Order 12866, or any successor order; (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 proposed
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 proposed 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 the
proposed rule under the OMB and DOE guidelines and has concluded that
it is consistent with applicable policies in those guidelines.
K. Approval by the Office of the Secretary of Energy
Issuance of this proposed rule has been approved by the Office of
the Secretary.
List of Subjects in 48 CFR Parts 928, 931, 932, 933, 935, 936, 937,
941, 942, 949, 950, 951, and 952
Government procurement.
Issued in Washington, DC, on December 16, 2009.
Edward R. Simpson,
Director, Office of Procurement and Assistance Management, Department
of Energy.
David O. Boyd,
Director, Office of Acquisition and Supply Management, National Nuclear
Security Administration.
For the reasons set out in the preamble, the Department of Energy
is proposing to amend Chapter 9 of Title 48 of the Code of Federal
Regulations as set forth below.
1. The authority citations for parts 928, 931, 932, 933, 935, 936,
941, 942, and 951 continue to read as follows:
Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.
PART 932--CONTRACT FINANCING
2. Section 932.501-2 is amended by revising paragraph (a)(3) to
read as follows:
935.501-2 Unusual progress payments.
(a)(3) For DOE, the Head of the Contracting Activity shall forward
all requests which are considered favorable, with supporting
information, to the DOE Senior Procurement Executive, who, after
coordination with the Chief Financial Officer, Headquarters, will
approve or deny the request. For NNSA, the NNSA Senior Procurement
Executive will coordinate with the NNSA Chief Financial Officer before
approving or denying the request.
* * * * *
932.605 [Redesignated as 932.602]
3. Section 932.605 is redesignated as 932.602 and newly
redesignated 932.602 is amended by:
a. Revising the section heading as set forth below; and
b. Removing the paragraph designation ``(b)''.
The revision reads as follows:
932.602 Responsibilities.
* * * * *
PART 935--RESEARCH AND DEVELOPMENT CONTRACTING
4. Revise section 935.010 to read as follows:
935.010 Scientific and technical reports.
(c) All research and development contracts which require reporting
of research and development results conveyed in scientific and
technical information (STI) shall include an instruction requiring the
contractor to submit all STI, including reports and notices relating
thereto, electronically to the U.S. Department of Energy (DOE), Office
of Scientific and Technical Information (OSTI), using the DOE Energy
Link System (E-link) at https://www.osti.gov/elink. The phrase ``reports
and notices relating thereto'' does not include reports or notices
concerning administrative matters such as contract cost or financial
data and information. The DOE Order 241.1B Scientific and Technical
Information Management, or its successor version, sets forth
requirements for STI management.
(d) As prescribed in DOE Order 241.1B, the contracting officer
shall ensure that the requirements of the attendant Contractor
Requirements Document are included in applicable contracts.
PART 936--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
936.202 [Redesignated as 936.202-70]
5. Section 936.202 is redesignated as 936.202-70 and the section
heading is revised to read as follows:
936.202-70 Specifications charges.
* * * * *
6. The authority citations for parts 937 and 949 are revised to
read as follows:
Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.
PART 937--SERVICE CONTRACTING
7. Add a new subpart 937.2, consisting of section 937.204, to read
as follows:
Subpart 937.2--Advisory and Assistance Services
937.204 Guidelines for determining availability of personnel.
(a) The determination, that there is sufficient DOE personnel with
the requisite training and capabilities for each evaluation or analysis
of proposals, shall be determined in accordance with 915.207-
70(f)(2)(i).
(b) If it is determined that there is no such DOE personnel
available, then other Federal agencies may have the required personnel
with the requisite training and capabilities for the evaluation or the
analysis of proposals. The determination, to use employees of other
Federal agencies for the evaluation or analysis of proposals, shall be
in accordance with 915.207-70(f)(2)(ii).
(d) The determination, to employ non-Federal evaluators or
advisors, shall be determined in accordance with 915.207-70(f)(3).
(e) The determination that covered personnel are unavailable for a
class of proposals, necessitating employment of non-Federal evaluators
or advisors, shall be determined in accordance with 915.207-70(f)(3).
PART 941--ACQUISITION OF UTILITY SERVICES
8. Section 941.201-70 is revised to read as follows:
941.201-70 DOE Directives.
Utility services (defined at 48 CFR 41.101) shall be acquired in
accordance with 48 CFR part 41 and the Department of Energy (DOE) Order
430.2B, Departmental Energy, Renewable Energy and Transportation
Management, or its successor.
[[Page 967]]
PART 942--CONTRACT ADMINISTRATION
942.803 [Amended]
9. Amend section 942.803 by revising paragraph (c)(1) in the last
sentence by removing the phrase ``, as discussed in 942.70 Audit
Services''.
PART 949--TERMINATION OF CONTRACTS
949.101 [Amended]
10. Section 949.101 is amended by adding ``Senior'' before
``Procurement Executive''.
Subpart 949.5 [Removed and Reserved]
11. Subpart 949.5 is removed and reserved.
PART 950--EXTRAORDINARY CONTRACTUAL ACTIONS AND THE SAFETY ACT
12. The authority citation for part 950 continues to read as
follows:
Authority: 42 U.S.C. 2201; 2282a; 2282b; 2282c; 42 U.S.C. 7101
et seq.; 50 U.S.C. 2401 et seq.
PART 951--USE OF GOVERNMENT SOURCES BY CONTRACTORS
951.102 [Amended]
13. Section 951.102 is amended by revising the paragraph
designation ``(e)(4)(iii)'' to read ``(e)(4)''.
PART 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
14. The authority citation for part 952 is revised to read as
follows:
Authority: 42 U.S.C. 2201; 2282a; 2282b; 2282c; 42 U.S.C. 7101
et seq.; 50 U.S.C. 2401 et seq.
15. Section 952.247-70 is amended by:
a. Revising the date of the clause to read as set forth below; and
b. Removing ``or its successor Official Foreign Travel, or any
subsequent version of the order'' in the clause and adding in its place
``Official Foreign Travel, or its successor''. The revision reads as
follows:
952.247-70 Foreign travel.
* * * * *
FOREIGN TRAVEL (XXX 20XX) [INSERT ABBREVIATED MONTH AND YEAR 30 DAYS
AFTER DATE OF FINAL RULE PUBLICATION]
* * * * *
PARTS 928, 931, 932, 933, 936, 937, 941, 942, 950, 951, AND 952
[AMENDED]
16. In the table below, for each section indicated in the left
column, remove the word indicated in the middle column from where it
appears in the section, and add the word in the right column:
------------------------------------------------------------------------
Section Remove Add
------------------------------------------------------------------------
928.101-1................... ``FAR''............. ``48 CFR''
928.301..................... ``FAR Part''........ ``48 CFR part''
931.102 in 2 places......... ``FAR''............. ``48 CFR''
931.102..................... ``FAR Part 31''..... ``48 CFR part 31''
931.205-32(a)............... ``FAR''............. ``48 CFR''
931.205-47(h)(1), in the ``29 CFR Part 24,''. ``29 CFR part 24,''
Employee whistleblower
action definition.
931.205-47(h)(1), in the ``10 CFR Part 708''. ``10 CFR part 708''
Employee whistleblower
action definition.
932.006-4(a)................ ``FAR''............. ``48 CFR''
932.803(d).................. ``FAR''............. ``48 CFR''
932.7004-1 in 3 places...... ``FAR''............. ``48 CFR''
932.7004-3(a)............... ``FAR''............. ``48 CFR''
933.103(k).................. ``FAR''............. ``48 CFR''
933.104(b).................. ``FAR''............. ``48 CFR''
933.104(c).................. ``FAR''............. ``48 CFR''
933.104(g).................. ``FAR''............. ``48 CFR''
933.106(a).................. ``FAR''............. ``48 CFR''
936.602-10(a)(8)............ ``FAR''............. ``48 CFR''
936.609-3................... ``FAR''............. ``48 CFR''
936.7100.................... ``FAR Part''........ ``48 CFR part''
937.7040.................... ``FAR''............. ``48 CFR''
942.704(b) in 2 places...... ``FAR''............. ``48 CFR''
942.705-1(b)(1)............. ``FAR''............. ``48 CFR''
950.7003(a) in the first ``(DOE)''........... ``DOE''
sentence.
951.102(a).................. ``FAR Part''........ ``48 CFR part''
951.102(a).................. ``DOE PMR 41 CFR 109- ``DOE PMR 41 CFR
26''. 109''
952.233-2 in the ``FAR''............. ``48 CFR''
introductory text.
952.233-4(a)................ ``FAR''............. ``48 CFR''
952.233-4(b)................ ``FAR''............. ``48 CFR''
952.235-71(b)(1)............ ``warranted;''...... ``warranted.''
952.250-70(e)(2)............ ``which:''.......... ``which--''
------------------------------------------------------------------------
[FR Doc. 2010-11 Filed 1-6-10; 8:45 am]
BILLING CODE 6450-01-P
