Acquisition Regulations: Export Control, 35195-35201 [2013-13798]

Agencies

• DEPARTMENT OF ENERGY

[Federal Register Volume 78, Number 113 (Wednesday, June 12, 2013)]
[Proposed Rules]
[Pages 35195-35201]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-13798]


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DEPARTMENT OF ENERGY

48 CFR Parts 925, 952, and 970

RIN 1991-AB99


Acquisition Regulations: Export Control

AGENCY: Department of Energy.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Energy (DOE) is proposing to amend the 
Department of Energy Acquisition Regulation (DEAR) to add export 
control requirements applicable to the performance of DOE contracts.

DATES: Written comments on this proposed rulemaking must be received on 
or before close of business July 12, 2013

ADDRESSES: You may submit comments, identified by ``DEAR: Export 
Control and RIN 1991-AB99,'' by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email to: DEARrulemaking@hq.doe.gov. Include DEAR: Export 
Control and RIN 1991-AB99 in the subject line of the message.
     Mail to: U.S. Department of Energy, Office of Acquisition 
and Project Management, MA-611, 1000 Independence Avenue SW., 
Washington, DC 20585. Comments by email are encouraged.

FOR FURTHER INFORMATION CONTACT: Lawrence Butler, (202) 287-1945 or 
lawrence.butler@hq.doe.gov.

SUPPLEMENTARY INFORMATION:

I. Executive Summary
    A. Purpose and Legal Authority
    B. Summary of Major Provisions
    1. Part 925--Foreign Acquisition
    2. Part 952--Solicitation Provisions and Contract Clauses
    3. Part 970--DOE Management and Operating Contracts
II. Summaries of Export Control Laws
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 Executive Order 13609
    L. Approval by the Office of the Secretary of Energy

I. Executive Summary

A. Purpose and Legal Authority

    The purpose of this rulemaking is to add new DEAR subparts 925.71 
and 970.2571 to set forth requirements concerning compliance with 
export control laws, regulations and directives applicable to the 
performance of DOE contracts.
    Export control laws, regulations and directives that may apply to a 
contract in effect on the date of the contract award and as amended 
subsequently include, but are not limited to: the Atomic Energy Act of 
1954, as amended; the Arms Export Control Act (22 U.S.C. 2751 et seq.); 
the Export Administration Act of 1979 (50 U.S.C. app. 2401 et seq.), as 
continued under the International Emergency Economic Powers Act (Title 
II of Pub. L. 95-223, 91 Stat. 1626, October 28, 1977); Trading with 
the Enemy Act (50 U.S.C. App. 5(b) as amended by the Foreign Assistance 
Act of 1961); Assistance to Foreign Atomic Energy Activities (10 Code 
of Federal Regulations (CFR) part 810); Export Administration 
Regulations (15 CFR parts 730 through 774); International Traffic in 
Arms Regulations (22 CFR parts 120 through 130); Export and Import of 
Nuclear Equipment and Material (10 CFR part 110); regulations 
administered by the Office of Foreign Assets Control (31 CFR

[[Page 35196]]

Subtitle B Chapter V); the Espionage Act (37 U.S.C. 791 et seq.); DOE 
Order 142.3A, Unclassified Foreign Visits and Assignments Program; DOE 
Order 551.1D, Official Foreign Travel; and DOE Order 580.1A, Department 
of Energy Personal Property Management Program.
    The list of laws and regulations is the same as that in the Export 
Restriction Notice in 41 CFR 109-1.5303(b)(6), with updated citations 
for revised versions, as appropriate. The Export Restriction Notice is 
required by 41 CFR part 109 for all transfers, sales or other offerings 
of High Risk Personal Property (HRPP), which includes all export-
controlled items. The DOE directives in the list are the three DOE 
orders that refer to export compliance when performing Contractor 
activities. DOE solicits comment on whether additional export control 
laws, regulations or directives should be added to this list. 
Descriptions of these laws, regulations and directives are provided in 
section II.

B. Summary of Major Provisions

    DOE proposes to amend the DEAR as follows, for consistency with a 
2010 amendment to the Department of Defense Acquisition Regulations 
(DFARS) (DFARS Case 2004-D010, 75 FR 18030, Apr. 8, 2010):
1. Part 925--Foreign Acquisition
    Part 925 is amended by adding new section 925.71 to set forth 
requirements for contractors concerning the export control of items, 
including but not limited to unclassified information, materials, 
technology, equipment or software.
    More information on what constitutes an ``item'', as well as export 
control requirements generally, can be found at the following 
Department of Commerce (DOC) Web site: https://www.bis.doc.gov/licensing/exportingbasics.htm. Points of contact for DOC are also 
provided at this Web site. Points of contact and additional information 
for the Department of State can be found at https://www.pmddtc.state.gov/about/key_personnel.html and https://www.pmddtc.state.gov/documents/ddtc_getting_started.pdf. Points of 
contact and additional information for the Department of Treasury can 
be found at https://www.treasury.gov/services/Pages/Foreign-Transaction-Licensing-and-Reporting.aspx. Points of contact and additional 
information for the Nuclear Regulatory Commission can be found at 
https://www.nrc.gov/about-nrc/ip/export-import.html. The point of 
contact for the Department of Energy is the Office of Nonproliferation 
and International Security in the National Nuclear Security 
Administration at https://nnsa.energy.gov/aboutus/ourprograms/nonproliferation/programoffices/officenonproliferationinternationalsecurity.
    DOE contractors are responsible for complying with export control 
requirements applicable to their contracts. DOE requirements for 
contractors will be set forth in a new DEAR Export Clause. It is the 
contractor's responsibility to comply with all applicable laws and 
regulations regarding export-controlled items. This responsibility 
exists independent of, and is not established, or limited by, this DEAR 
rulemaking.
2. Part 952--Solicitation Provisions and Contract Clauses
    Part 952 is amended by adding new clause 952.225-XX to set forth 
requirements for DOE contractors concerning compliance with applicable 
export control laws, regulations and directives, including a 
requirement for DOE contractors to obtain the necessary licenses, 
approvals and relevant documentation to comply with these applicable 
laws, regulations and directives.
3. Part 970--DOE Management and Operating Contracts
    Subpart 970.25 is amended by adding new section 970.2571 to set 
forth requirements for management and operating contractors concerning 
export control of items, including but not limited to unclassified 
information, materials, technology, equipment or software.
    As noted above, more information on what constitutes an ``item'', 
as well as export control requirements generally, can be found at the 
following DOC Web site: https://www.bis.doc.gov/licensing/exportingbasics.htm. Points of contact for DOC are also provided at 
this Web site. Points of contact and additional information for the 
Department of State can be found at https://www.pmddtc.state.gov/about/key_personnel.html and https://www.pmddtc.state.gov/documents/ddtc_getting_started.pdf. Points of contact and additional information for 
the Department of Treasury can be found at https://www.treasury.gov/services/Pages/Foreign-Transaction-Licensing-and-Reporting.aspx. Points 
of contact and additional information for the Nuclear Regulatory 
Commission can be found at https://www.nrc.gov/about-nrc/ip/export-import.html. The point of contact for the Department of Energy is the 
Office of Nonproliferation and International Security in the National 
Nuclear Security Administration at https://nnsa.energy.gov/aboutus/ourprograms/nonproliferation/programoffices/officenonproliferationinternationalsecurity. DOE management and 
operating contractors are responsible for complying with export control 
requirements applicable to their contracts. DOE requirements for 
management and operating contractors will be set forth in a new DEAR 
Export Clause. It is the contractor's responsibility to comply with all 
applicable laws and regulations regarding export-controlled items. This 
responsibility exists independent of, and is not established, or 
limited by, this DEAR rulemaking.
    Subpart 970.52 is amended by adding new clause 970.5225-1 to set 
forth requirements for management and operating contractors concerning 
compliance with export control laws, regulations and directives, 
including a requirement for DOE management and operating contractors to 
obtain the necessary licenses, approvals and relevant documentation to 
comply with applicable laws, regulations and directives.

II. Summaries of Export Control Laws, Regulations and Directives

    Brief summaries of each of these authorities--which are independent 
of, and not limited by, any DEAR policy or clause--are set forth below:

Atomic Energy Act of 1954, as Amended (AEA)

    The AEA empowers DOE to authorize persons subject to the 
jurisdiction of the United States to engage directly or indirectly in 
the production of special nuclear material outside of the United 
States.

Arms Export Control Act

    Provides the authority to control the export of defense articles 
and services, and charges the President to exercise this authority. 
Executive Order 11958, as amended, delegated this statutory authority 
to the Secretary of State.

Export Administration Act (EAA)

    Provides legal authority to the President to control, for reasons 
of national security, foreign policy and/or short supply, the export 
and reexport of items that are subject to the Export Administration 
Regulations (EAR) (see below). The EAA has expired but has been 
continued under the International Emergency Economic Powers Act.

International Emergency Economic Powers Act

    Authorizes the President to regulate commerce after declaring a 
national emergency in response to any unusual

[[Page 35197]]

and extraordinary threat to the United States which has a foreign 
source.

Trading With the Enemy Act

    Restricts trade with countries hostile to the United States. The 
law gives the President the power to oversee or restrict any and all 
trade between the U.S. and its enemies in times of war. The scope of 
the TWEA was expanded by the Foreign Assistance Act of 1961.

Foreign Assistance Act of 1961

    Restricts assistance to any government which engages in a 
consistent pattern of gross violations of internationally recognized 
human rights.

10 CFR Part 810, ``Assistance to Foreign Atomic Energy Activities''

    The DOE has jurisdictional authority over exports of unclassified 
nuclear technology under section 57 b.(2) of the Atomic Energy Act of 
1954, as amended.

10 CFR Part 110, ``Export and Import of Nuclear Equipment and 
Material''

    The Nuclear Regulatory Commission (NRC) has jurisdictional 
authority for exports for peaceful nuclear purposes of nuclear 
reactors, nuclear enrichment and reprocessing facilities, heavy water 
production facilities, related proprietary operation and maintenance 
manuals, and related equipment. The NRC also has jurisdictional 
authority for exports of special nuclear material, source material, 
byproduct material, deuterium, and nuclear grade graphite for nuclear 
end use.

Export Administration Regulations (EAR)

    The Department of Commerce (DOC) has jurisdictional authority over 
a broad range of dual-use commodities (items that have both commercial 
and potentially military applications), and items that are not 
controlled by other export regimes. Items that are subject to the EAR 
include items found on the Commerce Control List (CCL), where they are 
grouped into ten categories. These include, among other things, certain 
electronics, computers, sensors and lasers, and microorganisms and 
toxins. Items on the CCL are classified based upon their physical 
characteristics and their potential uses. Items not listed on the CCL 
may nevertheless be subject to the EAR. Such items are designated 
``EAR99.'' An export license may be required for an item subject to the 
EAR if the export of the item could impact U.S. national security or 
foreign policy objectives.

International Traffic in Arms Regulations (ITAR)

    The Arms Export Control Act is implemented through the ITAR. The 
Department of State (State) has jurisdictional authority over munitions 
items, including military systems, equipment, components, and services, 
and space-related systems, equipment, components, services and items.

Treasury Department (Treasury): Foreign Asset Control Regulations

    The Trading with the Enemy Act is implemented through the Foreign 
Asset Control Regulations. The Treasury Office of Foreign Asset Control 
(OFAC) has jurisdictional authority over all financial and tangible 
items having a destination to embargoed and terrorist sponsoring 
states.

Department of Energy: Unclassified Foreign Visits and Assignments 
Program

    Defines a program for unclassified foreign national access to DOE 
sites, information, and technologies by establishing review, approval, 
documenting and tracking requirements.

Department of Energy: Official Foreign Travel

    Establishes DOE and National Nuclear Security Administration (NNSA) 
requirements and responsibilities governing official foreign travel by 
Federal and contractor employees.

Department of Energy: Personal Property Management Program

    Sets forth (a) requirements that implement and supplement Public 
Laws, Executive Orders, Office of Management and Budget directives, and 
any other agency issuances affecting the DOE's personal property 
management program; (b) requirements that reflect the accountability 
perspective of property management; (c) policy that assists DOE 
property managers, contracting and financial managers, and other DOE 
officials in understanding their property management roles and 
responsibilities; and (d) standards, practices, and performance 
expectations for property management.
    This rulemaking, which would add new requirements to DEAR part 925 
and subpart 970.25, and create new clauses in part 952 and subpart 
970.52, addresses concerns raised in DOE Inspector General (IG) Reports 
issued in 2004 and 2007. In the 2004 report, the DOE IG determined that 
the two DOE contractors it reviewed were not properly applying export 
control procedures. The DOE IG further stated that DOE must ensure that 
export control guidance, including deemed export guidance, is 
disseminated and consistently implemented throughout the DOE complex. 
In the 2007 report, the DOE IG recommended expedited actions to ensure 
compliance with export control requirements throughout the DOE complex. 
This rule also addresses a 2011 Government Accountability Office (GAO) 
report in which the GAO identified weaknesses in government-wide export 
controls.

III. Procedural Requirements

A. Review Under Executive Orders 12866 and 13563

    Today's regulatory action has been determined to be a ``significant 
regulatory action'' under Executive Order 12866, ``Regulatory Planning 
and Review,'' 58 FR 51735 (October 4, 1993). Accordingly, this proposed 
rule was reviewed by the Office of Information and Regulatory Affairs 
within the Office of Management and Budget.
    DOE has also reviewed this regulation pursuant to Executive Order 
13563, issued on January 18, 2011 (76 FR 3281 (Jan. 21, 2011)). 
Executive Order 13563 is supplemental to and explicitly reaffirms the 
principles, structures, and definitions governing regulatory review 
established in Executive Order 12866. To the extent permitted by law, 
agencies are required by Executive Order 13563 to: (1) Propose or adopt 
a regulation only upon a reasoned determination that its benefits 
justify its costs (recognizing that some benefits and costs are 
difficult to quantify); (2) tailor regulations to impose the least 
burden on society, consistent with obtaining regulatory objectives, 
taking into account, among other things, and to the extent practicable, 
the costs of cumulative regulations; (3) select, in choosing among 
alternative regulatory approaches, those approaches that maximize net 
benefits (including potential economic, environmental, public health 
and safety, and other advantages; distributive impacts; and equity); 
(4) to the extent feasible, specify performance objectives, rather than 
specifying the behavior or manner of compliance that regulated entities 
must adopt; and (5) identify and assess available alternatives to 
direct regulation, including providing economic incentives to encourage 
the desired behavior, such as user fees or marketable permits, or 
providing information upon which choices can be made by the public.
    DOE emphasizes as well that Executive Order 13563 requires agencies 
to use the best available techniques to quantify anticipated present 
and future benefits and costs as accurately as

[[Page 35198]]

possible. In its guidance, the Office of Information and Regulatory 
Affairs has emphasized that such techniques may include identifying 
changing future compliance costs that might result from technological 
innovation or anticipated behavioral changes. DOE believes that today's 
NOPR is consistent with these principles, including the requirement 
that, to the extent permitted by law, agencies adopt a regulation only 
upon a reasoned determination that its benefits justify its costs and, 
in choosing among alternative regulatory approaches, those approaches 
maximize net benefits.

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 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 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, these proposed regulations meet 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 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. Neither 5 
U.S.C. 553 nor 41 U.S.C. 418(b) requires that today's proposed rule be 
proposed for public comment. No regulatory flexibility analysis has 
been prepared.

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.

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. 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 detailed assessment of costs and 
benefits of any rule imposing a Federal Mandate with costs to State, 
local or tribal governments, or to the private sector, of $100 million 
or more. This rulemaking does not impose a Federal mandate on State, 
local or tribal governments or on the private sector.

H. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a 
Family Policymaking Assessment for any rule or policy that may affect 
family well being. This rule will have no impact on family well-being. 
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 the 
Office of Information and Regulatory Affairs (OIRA), Office of 
Management and Budget, a Statement of Energy Effects for any 
significant energy action. A ``significant energy action'' is defined 
as any action by an agency that promulgates or is expected to lead to 
promulgation of a final rule, and that: (1) Is a significant regulatory 
action under Executive Order 12866, or any successor order; and (2) is 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy, or (3) is designated by the 
Administrator of OIRA as a significant energy action. For any 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 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 implementing 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 notice under the OMB and DOE guidelines and has 
concluded

[[Page 35199]]

that it is consistent with applicable policies in those guidelines.

K. Review Under Executive Order 13609

    Executive Order 13609 of May 1, 2012, ``Promoting International 
Regulatory Cooperation,'' requires that, to the extent permitted by law 
and consistent with the principles and requirements of Executive Order 
13563 and Executive Order 12866, each Federal agency shall:
    (a) If required to submit a Regulatory Plan pursuant to Executive 
Order 12866, include in that plan a summary of its international 
regulatory cooperation activities that are reasonably anticipated to 
lead to significant regulations, with an explanation of how these 
activities advance the purposes of Executive Order 13563 and this 
order;
    (b) Ensure that significant regulations that the agency identifies 
as having significant international impacts are designated as such in 
the Unified Agenda of Federal Regulatory and Deregulatory Actions, on 
RegInfo.gov, and on Regulations.gov;
    (c) In selecting which regulations to include in its retrospective 
review plan, as required by Executive Order 13563, consider:
    (i) Reforms to existing significant regulations that address 
unnecessary differences in regulatory requirements between the United 
States and its major trading partners, consistent with section 1 of 
this order, when stakeholders provide adequate information to the 
agency establishing that the differences are unnecessary; and
    (ii) Such reforms in other circumstances as the agency deems 
appropriate; and
    (d) For significant regulations that the agency identifies as 
having significant international impacts, consider, to the extent 
feasible, appropriate, and consistent with law, any regulatory 
approaches by a foreign government that the United States has agreed to 
consider under a regulatory cooperation council work plan.
    DOE has reviewed this proposed rule under the provisions of 
Executive Order 13609 and determined that the rule complies with all 
requirements set forth in the order.

L. Approval by the Office of the Secretary of Energy

    The Office of the Secretary of Energy has approved issuance of this 
proposed rule.

List of Subjects in 48 CFR Parts 925, 952 and 970

    Government procurement.

    Issued in Washington, DC, on May 24, 2013.
Paul Bosco,
Director, Office of Acquisition and Project Management, Department of 
Energy.
Oliver M. Voss,
Acting Director, Office of Acquisition Management, National Nuclear 
Security Administration.

    For reasons set out in the preamble, the DOE is proposing to amend 
Chapter 9 of Title 48 of the Code of Federal Regulations as set forth 
below.

PART 925--FOREIGN ACQUISITION

0
1. The authority citation for part 925 continues to read as follows:

    Authority: 42 U.S.C. 7101 et seq., and 50 U.S.C. 2401 et seq.
0
2. Subpart 925.71 is added to read as follows:
Subpart 925.71--Export Control
Sec.
925.7100 Scope of subpart.
925.7101 Policy.
925.7102 Contract clause.

Subpart 925.71--Export Control


925.7100   Scope of subpart.

    This subpart implements Department of Energy (DOE) requirements for 
contractors concerning export control of items including but not 
limited to unclassified information, materials, technology, equipment 
or software.


925.7101   Policy.

    (a) DOE and its contractors must comply with applicable laws, 
regulations and directives when exporting items, included but not 
limited to, unclassified information, materials, technology, equipment, 
or software. DOE therefore requires its contractors to comply with all 
applicable export control laws, regulations, and directives, in effect 
on the date of contract award and as amended subsequently, including 
but not limited to: the Atomic Energy Act of 1954, as amended; the Arms 
Export Control Act (22 U.S.C. 2751 et seq.); the Export Administration 
Act of 1979 (50 U.S.C. app. 2401 et seq.), as continued under the 
International Emergency Economic Powers Act (Title II of Pub. L. 95-
223, 91 Stat. 1626, October 28, 1977; 50 U.S.C. 1701 et seq.); Trading 
with the Enemy Act; (50 U.S.C. App. 5(b) as amended by the Foreign 
Assistance Act of 1961); Assistance to Foreign Atomic Energy Activities 
(Title 10 of the Code of Federal Regulations (CFR) part 810); Export 
Administration Regulations (15 CFR parts 730 through 774); 
International Traffic in Arms Regulations (22 CFR parts 120 through 
130); Export and Import of Nuclear Equipment and Material (10 CFR part 
110); regulations administered by the Office of Foreign Assets Control 
(31 CFR Subtitle B Chapter V); the Espionage Act (37 U.S.C. 791 et 
seq.); DOE Order 142.3A, Unclassified Foreign Visits and Assignments 
Program, October 14, 2010; DOE Order 551.1D, Official Foreign Travel, 
June 24, 2008; and DOE Order 580.1A, Department of Energy Personal 
Property Management Program, March 30, 2012; and the Espionage Act (37 
U.S.C. 791 et seq.) which among other things, prohibit--
    (1) The making of false statements and concealment of any material 
information regarding the use or disposition, export or re-export of 
property; and
    (2) Any use or disposition, export or re-export of property which 
is not authorized in accordance with the provisions of any transfer, 
sale or other offering.
    (b) Contractors seeking guidance on how to comply with export 
control requirements should review the list of laws, regulations and 
directives applicable to the export of unclassified information, 
materials, technology, equipment or software set forth in paragraph (a) 
of this section and in clause 952.225-XX. Contractors also may contact 
the agencies responsible for administration of export laws, regulations 
or directives applicable to a particular export (e.g., Departments of 
State, Commerce, Treasury, and Energy, or the Nuclear Regulatory 
Commission). Questions regarding DOE Directives should be referred to 
the appropriate DOE program office.
    (c) It is the contractor's responsibility to comply with all 
applicable laws and regulations regarding export-controlled items. This 
responsibility exists independent of, and is not established, or 
limited by, this subpart.


925.7102  Contract clause.

    The contracting officer shall insert the clause at 952.225-XX, 
Compliance with export control laws, regulations and directives (Export 
Clause), in any contract that may involve the export of items, 
including but not limited to unclassified information, materials, 
technology, equipment, or software.

PART 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
3. The authority citation for part 952 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.

[[Page 35200]]

0
4. Section 952.225-XX is added to read as follows:


952.225-XX  Compliance with export control laws, regulations and 
directives (Export Clause).

    As prescribed in section 925.7102, insert the following clause:

COMPLIANCE WITH EXPORT CONTROL LAWS, REGULATIONS AND DIRECTIVES (XXX 
20XX)

    (a) The Contractor shall comply with applicable laws, regulations 
and directives regarding the export of items, including but not limited 
to unclassified information, materials, technology, equipment or 
software related to the performance of this contract. The Contractor 
may be subject to civil or criminal penalties or contractual remedies 
for non-compliance with applicable laws, regulations and directives as 
set forth in such laws, regulations and directives, including monetary 
fines, imprisonment, or contract termination.
    (b) The Contractor's responsibility to comply with all applicable 
laws and regulations regarding export-controlled items exists 
independent of, and is not established, or limited by, the information 
provided by this clause.
    (c) The following Export Restriction Notice shall be included in 
all transfers, sales or other offerings of unclassified information, 
materials, technology, equipment or software pursuant to a DOE 
contract:
    [Start of Export Restriction Notice]
    Export Restriction Notice--The use, disposition, export, and re-
export of this property are subject to export control laws, regulations 
and directives, in effect on the date of contract award and as amended 
subsequently, that include but are not limited to: the Atomic Energy 
Act of 1954, as amended; the Arms Export Control Act (22 U.S.C. 2751 et 
seq.); the Export Administration Act of 1979 (50 U.S.C. app. 2401 et 
seq.) as continued under the International Emergency Economic Powers 
Act (Title II of Pub.L. 95-223, 91 Stat. 1626, October 28, 1977; 50 
U.S.C. 1701 et seq.); Trading with the Enemy Act (50 U.S.C. App. 5(b) 
as amended by the Foreign Assistance Act of 1961); Assistance to 
Foreign Atomic Energy Activities (10 CFR part 810); Export and Import 
of Nuclear Equipment and Material (10 CFR part 110); International 
Traffic in Arms Regulations (22 CFR parts 120 through 130); Export 
Administration Regulations (15 CFR parts730 through 734); regulations 
administered by the Office of Foreign Assets Control (31 CFR parts 500 
through 598); DOE Order 142.3A, Unclassified Foreign Visits and 
Assignments Program, October 14, 2010; DOE Order 551.1D, Official 
Foreign Travel, June 24, 2008; and DOE Order 580.1A, Department of 
Energy Personal Property Management Program, March 30, 2012; and the 
Espionage Act (37 U.S.C. 791 et seq.) which among other things, 
prohibit--
    (1) The making of false statements and concealment of any 
material information regarding the use or disposition, export or re-
export of the property; and
    (2) Any use or disposition, export or re-export of the property 
which is not authorized in accordance with the provisions of this 
agreement.
    [End of Export Restriction Notice]
    (d) Upon a request for guidance by the Contractor, the 
Contracting Officer should direct the Contractor to the agency 
responsible for administration of the export laws, regulations or 
directives applicable to the Contractor's question.
    (e) The Contractor shall obtain the necessary licenses, 
approvals and relevant documentation to comply with applicable 
export control laws, regulations and directives. The Contractor 
shall notify the Contracting Officer in a timely manner, in writing, 
of:
    (1) Any export control requirements it has determined apply to 
contract performance; and
    (2) That it has taken appropriate steps to comply with such 
requirements.
    (f) The Contractor's responsibility to comply with all 
applicable export control laws, regulations and directives exists 
independent of, and is not established or limited by, this clause.
    (g) Nothing in the terms of this contract adds to, changes, 
supersedes, or waives any of the requirements of applicable Federal 
laws, Executive Orders, and regulations.
    (h) The Contractor shall include this clause in subcontracts at 
any tier that involve the transfer, sale or other offering of items, 
including but not limited to unclassified information, materials, 
technology, equipment or software.

    (End of clause)

PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS

0
5. The authority citation for part 970 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.

0
6. Subpart 970.25 is revised to read as follows:
Subpart 970.25--Foreign Acquisition
Sec.
970.2570 Buy American Act.
970.2570-1 Contract clause.
970.2571 Export control.
970.2571-1 Scope of subpart.
970.2571-2 Policy.
970.2571-3 Contract clause.

Subpart 970.25--Foreign Acquisition


970.2570  Buy American Act.


970.2570-1  Contract clause.

    Contracting officers shall insert the clauses at 48 CFR 52.225-1, 
Buy American Act-- Supplies, and 48 CFR 52.225-9, Buy American Act--
Construction Materials, in management and operating contracts. The 
clause at 48 CFR 52.225-1 shall be modified in paragraph (d) of the FAR 
by substituting the word ``use'' for the word ``deliver.''


970.2571  Export control.


970.2571-1  Scope of subpart.

    This subpart implements requirements concerning the export by DOE 
management and operating contractors of unclassified information, 
materials, technology, equipment or software.


970.2571-2  Policy.

    (a) DOE and its contractors must comply with applicable laws, 
regulations and directives when exporting unclassified information, 
materials, technology, equipment or software DOE therefore requires its 
contractors to comply with all applicable export control laws, 
regulations, and directives, in effect on the date of contract award 
and as amended subsequently, including but not limited to: the Atomic 
Energy Act of 1954, as amended; the Arms Export Control Act (22 U.S.C. 
2751 et seq.); the Export Administration Act of 1979 (50 U.S.C. app. 
2401 et seq.) as continued under the International Emergency Economic 
Powers Act (Title II of Pub. L. 95-223, 91 Stat. 1626, October 28, 
1977; 50 U.S.C. 1701 et seq.); Trading with the Enemy Act; (50 U.S.C. 
App. 5(b) as amended by the Foreign Assistance Act of 1961); Assistance 
to Foreign Atomic Energy Activities (Title 10 of the Code of Federal 
Regulations (CFR) part 810); Export Administration Regulations (15 CFR 
parts 730 through 774); International Traffic in Arms Regulations (22 
CFR parts 120 through 130); Export and Import of Nuclear Equipment and 
Material (10 CFR part 110); regulations administered by the Office of 
Foreign Assets Control (31 CFR parts 500 through 598); the Espionage 
Act (37 U.S.C. 791 et seq.); DOE Order 142.3A, Unclassified Foreign 
Visits and Assignments Program, October 14, 2010; DOE Order 551.1D, 
Official Foreign Travel, June 24, 2008; and DOE Order 580.1A, 
Department of Energy Personal Property Management Program, March 30, 
2012; and the Espionage Act (37 U.S.C. 791 et seq.) which among other 
things, prohibit--

[[Page 35201]]

    (1) The making of false statements and concealment of any material 
information regarding the use or disposition, export or re-export of 
property; and
    (2) Any use or disposition, export or re-export of property which 
is not authorized in accordance with the provisions of any transfer, 
sale or other offering.
    (b) Contractors seeking guidance on how to comply with export 
control requirements should review the list of laws, regulations and 
directives applicable to the export of unclassified information, 
materials, technology, equipment or software set forth in paragraph (a) 
above and in clause 970.5225-1. Contractors also may contact the 
agencies responsible for administration of export laws, regulations or 
directives applicable to a particular export (e.g., Departments of 
State, Commerce, Treasury and Energy, or the Nuclear Regulatory 
Commission). Questions regarding DOE Directives should be referred to 
the appropriate DOE program office.
    (c) It is the Contractor's responsibility to comply with all 
applicable laws and regulations regarding export-controlled items. This 
responsibility exists independent of, and is not established, or 
limited by, this subpart.


970.2571-3  Contract clause.

    The contracting officer shall insert the clause at 970.5225-1, 
Compliance with export control laws, regulations and directives (Export 
Clause), in any contract that may involve the export of items including 
but not limited to unclassified information, materials, technology, 
equipment or software.
0
7. Section 970.5225-1 is added to read as follows:

Subpart 970.52--Solicitation Provisions and Contract Clauses for 
Management and Operating Contracts


970.5225-1  Compliance with export control laws, regulations and 
directives (Export Clause).

    As prescribed in section 970.2571-3, insert the following clause:

COMPLIANCE WITH EXPORT CONTROL LAWS, REGULATIONS AND DIRECTIVES (XXX 
20XX)

    (a) The Contractor shall comply with applicable laws, 
regulations and directives regarding the export of items including 
but not limited to unclassified information, materials, technology, 
equipment or software related to the performance of this contract. 
The Contractor may be subject to civil or criminal penalties for 
non-compliance with applicable laws, regulations and directives, as 
set forth in such laws, regulations and directives, including 
contract termination, monetary fines and/or imprisonment.
    (b) The Contractor's responsibility to comply with all 
applicable laws and regulations regarding export-controlled items 
exists independent of, and is not established, or limited by, the 
information provided by this clause.
    (c) The following Export Restriction Notice shall be included in 
all transfers, sales or other offerings of unclassified information, 
materials, technology, equipment or software:
    [Start of Export Restriction Notice]
    Export Restriction Notice--The use, disposition, export, and re-
export of this property are subject to export control laws, 
regulations and directives, in effect on the date of contract award 
and as amended subsequently, that include but are not limited to: 
the Atomic Energy Act of 1954, as amended; the Arms Export Control 
Act (22 U.S.C. 2751 et seq.); the Export Administration Act of 1979 
(50 U.S.C. app. 2401 et seq.), as continued under the International 
Emergency Economic Powers Act (Title II of Pub.L. 95-223, 91 Stat. 
1626, October 28, 1977; 50 U.S.C. 1701 et seq.); Trading with the 
Enemy Act (50 U.S.C. App. 5(b) as amended by the Foreign Assistance 
Act of 1961); Assistance to Foreign Atomic Energy Activities (10 CFR 
part 810); Export and Import of Nuclear Equipment and Material (10 
CFR part 110); International Traffic in Arms Regulations (22 CFR 
parts 120 through 130); Export Administration Regulations (15 CFR 
parts 730 through 734); regulations administered by the Office of 
Foreign Assets Control (31 CFR Subtitle B Chapter V); DOE Order 
142.3A, Unclassified Foreign Visits and Assignments Program, October 
14, 2010; DOE Order 551.1D, Official Foreign Travel, June 24, 2008; 
and DOE Order 580.1A, Department of Energy Personal Property 
Management Program, March 30, 2012; and the Espionage Act (37 U.S.C. 
791 et seq.) which among other things, prohibit:
    (1) The making of false statements and concealment of any 
material information regarding the use or disposition, export or re-
export of the property; and
    (2) Any use or disposition, export or re-export of the property 
which is not authorized in accordance with the provisions of this 
agreement.
    [End of Export Restriction Notice]
    (d) Upon a request for guidance by the Contractor, the 
Contracting Officer should direct the Contractor to the agency 
responsible for the administration of the export laws, regulations 
or directives applicable to the Contractor's question.
    (e) The Contractor shall obtain the necessary licenses, 
approvals and relevant documentation to comply with applicable 
export control laws, regulations and directives. The Contractor 
shall notify the Contracting Officer in a timely manner, in writing, 
of 1) any export control requirements it has determined apply to 
contract performance, and 2) that it has taken appropriate steps to 
comply with such requirements.
    (f) The Contractor's responsibility to comply with all 
applicable export control laws, regulations and directives exists 
independent of, and is not established or limited by this clause.
    (g) Nothing in the terms of this contract adds to, changes, 
supersedes, or waives any of the requirements of applicable Federal 
laws, Executive Orders, and regulations.
    (h) The Contractor shall include this clause in subcontracts at 
any tier that involve the transfer, sale or other offering of items 
including but not limited to unclassified information, materials, 
technology, equipment, or software.


(End of clause)

[FR Doc. 2013-13798 Filed 6-11-13; 8:45 am]
BILLING CODE 6450-01-P