Acquisition Regulation: Subchapter E-General Contracting Requirements, Subchapter F-Special Categories of Contracting, and Subchapter G-Contract Management, 29456-29459 [2010-12520]
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29456
Federal Register / Vol. 75, No. 101 / Wednesday, May 26, 2010 / Rules and Regulations
updated to conform to the FAR. None of
the changes are substantive or of a
nature to cause any significant expense
for DOE or its contractors.
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.
Final rule.
AGENCY:
ACTION:
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SUMMARY: The Department of Energy
(DOE) is amending 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conform to the FAR, remove out-of-date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.
Today’s rule does not alter substantive
rights or obligations under current law.
DATES: Effective Date: June 25, 2010.
FOR FURTHER INFORMATION CONTACT:
Barbara Binney at (202) 287–1340 or by
e-mail, barbara.binney@hq.doe.gov.
SUPPLEMENTARY INFORMATION:
Changes are 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 will separately
propose rules for changes to parts 927
and 945, respectively.
I. Background
II. Comments and Responses
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. Review Under the Small Business
Regulatory Enforcement Fairness Act of
1996
L. Approval by the Office of the Secretary
of Energy
I. Background
This action updates the existing
Department of Energy Acquisition
Regulation (DEAR). Subchapters E, F,
and G have sections that need to be
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II. Comments and Responses
DOE published a notice of proposed
rulemaking on January 7, 2010 (75 FR
964), with a public comment period
ending on February 8, 2010. DOE
received no comments.
DOE amends the DEAR as follows:
1. Section 932.501–2 is amended to
reflect current procedures for unusual
progress payments.
2. Subpart 932.6 is amended to update
the DEAR to conform with changes to a
FAR section title within 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 submittal process has been
changed to 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 a
record with each report.
4. Part 936 is amended to redesignate
936.202 as 936.202–70 and change the
title of that section to read ‘‘specification
charges.’’
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 which DOE officials are
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 the reference
to 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 within the
FAR.
9. Subpart 949.5 is removed and
reserved. There is no longer a need for
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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 to conform with
numbering in the FAR.
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
replacing it with ‘‘48 CFR’’ or ‘‘48 CFR
part’’ and 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 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
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Federal Register / Vol. 75, No. 101 / Wednesday, May 26, 2010 / Rules and Regulations
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 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 rule does not alter
any substantive rights or obligations
and, consequently, today’s 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 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).
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D. Review Under the Paperwork
Reduction Act
This final 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 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 rule is categorically
excluded from NEPA review because
the amendments to the DEAR are
strictly procedural (categorical
exclusion A6). Therefore, today’s rule
does not require an environmental
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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 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 Executive Order 13132.
G. Review Under the Unfunded
Mandates Reform Act of 1995
The Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4) 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 rule does not
impose any 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
rulemaking 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
Policymaking Assessment.
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29457
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
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 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, the
Department 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(3).
L. Approval by the Office of the
Secretary of Energy
Issuance of today’s rule has been
approved by the Office of the Secretary.
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29458
Federal Register / Vol. 75, No. 101 / Wednesday, May 26, 2010 / Rules and Regulations
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 May 19,
2010.
Patrick M. Ferraro,
Acting Director, Department of Energy.
Joseph F. Waddell,
Acting Director, Office of Acquisition and
Supply Management, National Nuclear
Security Administration.
For the reasons set out in the
preamble, the Department of Energy
amends 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, and
942, continue to read as follows:
■
Authority: 42 U.S.C. 7101 et seq. and 50
U.S.C. 2401 et seq.
PART 936—CONSTRUCTION AND
ARCHITECT-ENGINEER CONTRACTS
PART 932—CONTRACT FINANCING
2. Section 932.501–2 is amended by
revising paragraph (a)(3) to read as
follows:
■
932.501–2
5. Section 936.202 is redesignated as
936.202–70 and the section heading is
revised to read as follows:
■
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.
*
*
*
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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
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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.
936.202–70
Specifications charges.
*
*
*
*
*
■ 6. The authority citation for parts 937
and 949 is 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).
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(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.
PART 942—CONTRACT
ADMINISTRATION
942.803
[Amended]
9. Amend section 942.803 in the last
sentence of paragraph (c)(1) 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, consisting of
section 949.501 and 949.505, 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
13. The authority citation for part 951
continues to read as follows:
■
Authority: 42 U.S.C. 7101 et seq. and 50
U.S.C. 2401 et seq.
951.102
[Amended]
14. Section 951.102 is amended by
revising the paragraph designation
‘‘(e)(4)(iii)’’ to read ‘‘(e)(4)’’.
■
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Federal Register / Vol. 75, No. 101 / Wednesday, May 26, 2010 / Rules and Regulations
15. 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.
16. 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:
■
PART 952—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
952.247–70
*
*
Foreign travel.
*
*
*
FOREIGN TRAVEL JUN 2010
*
*
*
17. 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:
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) ...............................................................................................
936.602–70(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,’’ .........................
‘‘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:’’ ..........................................
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No.: 0910051338–0167–03]
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RIN 0648–AY29
Fisheries of the Northeastern United
States; Northeast Multispecies
Fishery; Revisions to Framework
Adjustment 44 to the Northeast
Multispecies Fishery Management Plan
and Sector Annual Catch Entitlements:
Updated Annual Catch Limits for
Sectors and the Common Pool for
Fishing Year 2010
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
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*
■
Remove
BILLING CODE 6450–01–P
*
PARTS 928, 931, 932, 933, 936, 937,
941, 942, 950, 951, and 952
[AMENDED]
Section
[FR Doc. 2010–12520 Filed 5–25–10; 8:45 am]
29459
Add
‘‘48 CFR’’
‘‘48 CFR part’’
‘‘48 CFR’’
‘‘48 CFR part 31’’
‘‘48 CFR’’
‘‘29 CFR part 24,’’
‘‘10 CFR part 708’’
‘‘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—’’
ACTION: Temporary rule; adjustment to
specifications.
SUMMARY: Based on finalized Northeast
(NE) multispecies sector rosters
submitted on April 30, 2010, NMFS
announces adjustments to the NE
multispecies fishing year (FY) 2010
specification of annual catch limits
(ACLs) for common pool vessels
(common pool sub-ACLs), ACLs for
sector vessels (sector sub-ACLs), and
sector Annual Catch Entitlements
(ACEs) for each of the 20 groundfish
stocks managed under the NE
Multispecies Fishery Management Plan
(FMP). This revision to catch levels is
necessary because some vessel owners
have chosen to drop out of sectors and
fish in the common pool for FY 2010.
DATES: Effective May 21, 2010 through
April 30, 2011.
FOR FURTHER INFORMATION CONTACT:
Travis Ford, Fishery Management
Specialist, (978) 281–9233.
E:\FR\FM\26MYR1.SGM
26MYR1
]]>Agencies
[Federal Register Volume 75, Number 101 (Wednesday, May 26, 2010)]
[Rules and Regulations]
[Pages 29456-29459]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-12520]
[[Page 29456]]
=======================================================================
-----------------------------------------------------------------------
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: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Energy (DOE) is amending 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. Today's rule does not alter
substantive rights or obligations under current law.
DATES: Effective Date: June 25, 2010.
FOR FURTHER INFORMATION CONTACT: Barbara Binney at (202) 287-1340 or by
e-mail, barbara.binney@hq.doe.gov.
SUPPLEMENTARY INFORMATION:
Changes are 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 will separately propose rules for changes to parts 927 and 945,
respectively.
I. Background
II. Comments and Responses
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. Review Under the Small Business Regulatory Enforcement
Fairness Act of 1996
L. Approval by the Office of the Secretary of Energy
I. Background
This action updates 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 changes are substantive
or of a nature to cause any significant expense for DOE or its
contractors.
II. Comments and Responses
DOE published a notice of proposed rulemaking on January 7, 2010
(75 FR 964), with a public comment period ending on February 8, 2010.
DOE received no comments.
DOE amends the DEAR as follows:
1. Section 932.501-2 is amended to reflect current procedures for
unusual progress payments.
2. Subpart 932.6 is amended to update the DEAR to conform with
changes to a FAR section title within 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 submittal process has been changed to 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 a record with each report.
4. Part 936 is amended to redesignate 936.202 as 936.202-70 and
change the title of that section to read ``specification charges.''
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 which DOE officials are
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 the
reference to 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 within 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 to conform with numbering in the
FAR.
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 replacing it with ``48 CFR'' or
``48 CFR part'' and 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 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
[[Page 29457]]
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 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 rule does not alter any substantive rights or
obligations and, consequently, today's 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 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 final 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 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 rule is categorically excluded from NEPA review
because the amendments to the DEAR are strictly procedural (categorical
exclusion A6). Therefore, today's 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 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
Executive Order 13132.
G. Review Under the Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) 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 rule does not impose any 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 rulemaking 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 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
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
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, the Department 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(3).
L. Approval by the Office of the Secretary of Energy
Issuance of today's rule has been approved by the Office of the
Secretary.
[[Page 29458]]
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 May 19, 2010.
Patrick M. Ferraro,
Acting Director, Department of Energy.
Joseph F. Waddell,
Acting Director, Office of Acquisition and Supply Management, National
Nuclear Security Administration.
0
For the reasons set out in the preamble, the Department of Energy
amends Chapter 9 of Title 48 of the Code of Federal Regulations as set
forth below.
0
1. The authority citations for parts 928, 931, 932, 933, 935, 936, 941,
and 942, 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
0
2. Section 932.501-2 is amended by revising paragraph (a)(3) to read as
follows:
932.501-2 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]
0
3. Section 932.605 is redesignated as 932.602 and newly redesignated
932.602 is amended by:
0
a. Revising the section heading as set forth below; and
0
b. Removing the paragraph designation ``(b)''.
0
The revision reads as follows:
932.602 Responsibilities.
* * * * *
PART 935--RESEARCH AND DEVELOPMENT CONTRACTING
0
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
0
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.
* * * * *
0
6. The authority citation for parts 937 and 949 is 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
0
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
0
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.
PART 942--CONTRACT ADMINISTRATION
942.803 [Amended]
0
9. Amend section 942.803 in the last sentence of paragraph (c)(1) by
removing the phrase ``, as discussed in 942.70 Audit Services''.
PART 949--TERMINATION OF CONTRACTS
949.101 [Amended]
0
10. Section 949.101 is amended by adding ``Senior'' before
``Procurement Executive''.
Subpart 949.5 [Removed and Reserved]
0
11. Subpart 949.5, consisting of section 949.501 and 949.505, is
removed and reserved.
PART 950--EXTRAORDINARY CONTRACTUAL ACTIONS AND THE SAFETY ACT
0
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
0
13. The authority citation for part 951 continues to read as follows:
Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.
951.102 [Amended]
0
14. Section 951.102 is amended by revising the paragraph designation
``(e)(4)(iii)'' to read ``(e)(4)''.
[[Page 29459]]
PART 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
15. 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.
0
16. Section 952.247-70 is amended by:
0
a. Revising the date of the clause to read as set forth below; and
0
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 JUN 2010
* * * * *
PARTS 928, 931, 932, 933, 936, 937, 941, 942, 950, 951, and 952
[AMENDED]
0
17. 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 ``29 CFR part
Employee whistleblower action 24,''. 24,''
definition.
931.205-47(h)(1), in the ``10 CFR Part ``10 CFR part
Employee whistleblower action 708''. 708''
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''
936.602-70(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 ``DOE PMR 41 CFR
109-26''. 109''
952.233-2 in the introductory ``FAR''........... ``48 CFR''
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. 2010-12520 Filed 5-25-10; 8:45 am]
BILLING CODE 6450-01-P
