Acquisition Regulation: Technical and Administrative Changes to Department of Energy Acquisition Regulation, 15737-15741 [2015-06564]

Agencies

• DEPARTMENT OF ENERGY

[Federal Register Volume 80, Number 57 (Wednesday, March 25, 2015)]
[Proposed Rules]
[Pages 15737-15741]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-06564]


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DEPARTMENT OF ENERGY

48 CFR Parts 902, 909, 916, 917, 922, 925, 931, 936, 942, 952, and 
970

RIN 1991-AC00


Acquisition Regulation: Technical and Administrative Changes to 
Department of Energy Acquisition Regulation

AGENCY: Office of Acquisition and Project Management, 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 make technical 
and administrative changes to the DEAR, including changes to conform to 
the Federal Acquisition Regulation (FAR), remove out-of-date coverage, 
update references, and correct minor errors and omissions. This 
proposed rule does not alter substantive rights or obligations under 
current law.

DATES: Written comments on the proposed rulemaking must be received on 
or before close of business April 24, 2015.

ADDRESSES: You may submit comments, identified by: Technical and 
Administrative Changes to Department of Energy Acquisition Regulation 
and RIN 1991-AC00, 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: Small 
Business and other Socioeconomic Programs and RIN 1991-AC00 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, U.S. Department of 
Energy, Office of Acquisition and Project Management, MA-611, 1000 
Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 
287-1945. Email: lawrence.butler@hq.doe.gov.

SUPPLEMENTARY INFORMATION:
I. Background
II. Section-by-Section Analysis
III. Procedural Requirements
    A. Review Under Executive Order 12866 and 13563
    B. Review Under Executive Order 12988
    C. Review Under the Regulatory Flexibility Act
    D. Review Under the Paperwork Reduction Act
    E. Review Under the National Environmental Policy Act
    F. Review Under Executive Order 13132
    G. Review Under the Unfunded Mandates Reform Act of 1995.
    H. Review Under the Treasury and General Government 
Appropriations Act, 1999
    I. Review Under Executive Order 13211
    J. Review Under the Treasury and General Government 
Appropriations Act, 2001
    K. Approval by the Office of the Secretary of Energy

I. Background

    The DEAR has outdated citations and minor errors of a technical 
nature. The objective of this proposed rule is to update the outdated 
citations and correct the errors and omissions in the existing DEAR to 
conform to the FAR. None of these changes are substantive or of a 
nature to cause any significant expense for DOE or its contractors.

II. Section-by-Section Analysis

    DOE proposes to amend the DEAR as follows:

Part 902--DEFINITIONS OF WORDS AND TERMS

    1. Section 902.101, paragraph (2), is revised to change the title 
of the National Nuclear Security Agency (NNSA) Senior Procurement 
Executive (SPE).

Part 909--CONTRACTOR QUALIFICATIONS

    2. Section 909.403, paragraphs (1) and (2), are revised to change 
the title of the NNSA SPE.

Part 916--TYPES OF CONTRACTS

    3. Section 916.505, paragraph (b)(6)(i), is revised to change the 
title of the NNSA SPE.

Part 917--SPECIAL CONTRACTING METHODS

    4. Section 917.602, paragraph (a), is revised to remove language 
that is no longer needed in the DEAR.

Part 922--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITION

    5. Section 922.804 is no longer needed in the DEAR and is removed.

Part 925--FOREIGN ACQUISITION

    6. Section 925.103, paragraph (a), is revised to correct the CFR 
reference.
    7. Section 925.1001, paragraph (b), is revised to change the title 
of the NNSA SPE.

Part 931--CONTRACT COST PRINCIPLES AND PROCEDURES

    8. Section 931.205-18, paragraph (c)(2), is deleted in its entirety 
and replaced with a new paragraph (c).

[[Page 15738]]

Part 936--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

    9. Section 936.202-70 is no longer needed in the DEAR and is 
removed.

Part 942--CONTRACT ADMINISTRATION AND AUDIT SERVICES

    10. Section 942.705-3 is revised to update the circular number and 
remove the paragraph numbering.

Part 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    11. Section 952.204-2, paragraph (j), is revised to inform 
contractors of the format for submitting Foreign Ownership, Control or 
Influence (FOCI) information. Paragraph (h)(2)(vi), is revised to 
remove Contractor requirement for submitting in writing information to 
the head of the cognizant local DOE Security Office concerning each 
uncleared applicant or uncleared employee who is selected for a 
position requiring an access authorization.
    12. Section 952.204-73, paragraph (a), is revised to inform 
contractors of the format for submitting FOCI information.
    13. Section 952.236-72 is no longer needed in the DEAR and is 
removed.
    14. Section 952.250-70, paragraph (d)(1), is revised to raise the 
threshold as required by the Energy Policy Act of 2005.

Part 970--DOE MANAGEMENT AND OPERATING CONTRACTS

    15. Section 970.5215-3 is revised to update the Order number.
    16. Section 970.5223-1 is revised to correct the prescription.
    17. Section 970.5244-1, paragraph (f) is revised to reflect 
threshold increase in 48 CFR 28.102-2. Paragraph (g) is revised to 
reflect the threshold increase in DOE's class deviation for DEAR 
970.5244-1.
    18. Section 970.5245-1, Alternate I, paragraph (j)(3), is revised 
to update the Order number and to add language that clarifies the 
sentence.

III. Procedural Requirements

A. Review Under Executive Order 12866 and 13563

    This regulatory action has been determined not to be a 
``significant regulatory action'' under Executive Order 12866, 
``Regulatory Planning and Review,'' 58 FR 51735 (October 4, 1993). 
Accordingly, this proposed 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).
    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 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 this final rule 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 United States Attorney General. Section 3(c) of Executive Order 
12988 requires Executive agencies to review regulations in light of 
applicable standards in section 3(a) and section 3(b) to determine 
whether they are met or if it is unreasonable to meet one or more of 
them. DOE has completed the required review and determined that, to the 
extent permitted by law, this proposed 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 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. As required 
by Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published 
procedures and policies on February 19, 2003, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the rulemaking process (68 FR 7990). DOE has made its 
procedures and policies available on the Office of General Counsel's 
Web site at https://www.energy.gov/gc/office-general-counsel.
    This notice of proposed rulemaking is to amend the DEAR to make 
technical and administrative changes as described in the summary. This 
rule would not have a significant economic impact on small entities 
because it imposes no significant burdens. No substantive rights or 
obligations are altered by the proposed amendment. Consequently, this 
proposed rule is exempt from the

[[Page 15739]]

requirements of the Regulatory Flexibility Act.

D. Review Under the Paperwork Reduction Act

    This proposed rule does not impose a collection of information 
requirement subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq. Existing burdens associated with the collection of certain 
contractor data under the DEAR have been cleared under OMB control 
number 1910-4100, with an expiration date of October 31, 2014.

E. Review Under the National Environmental Policy Act

    DOE has concluded that promulgation of this proposed rule falls 
into a class of actions which would not individually or cumulatively 
have significant impact on the human environment, as determined by 
DOE's regulations (10 CFR part 1021, subpart D) implementing the 
National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et 
seq.). Specifically, this proposed rule is categorically excluded from 
NEPA review because the amendments to the DEAR are strictly procedural 
(categorical exclusion A6). Therefore, this proposed rule does not 
require an environmental impact statement or environmental assessment 
pursuant to NEPA.

F. Review Under Executive Order 13132

    Executive Order 13132, 64 FR 43255 (August 4, 1999), imposes 
certain requirements on agencies formulating and implementing policies 
or regulations that preempt State law or that have federalism 
implications. Agencies are required to examine the constitutional and 
statutory authority supporting any action that would limit the 
policymaking discretion of the States and carefully assess the 
necessity for such actions. The Executive Order requires agencies to 
have an accountability process to ensure meaningful and timely input by 
state and local officials in the development of regulatory policies 
that have federalism implications.
    On March 14, 2000, DOE published a statement of policy describing 
the intergovernmental consultation process it will follow in the 
development of such regulations (65 FR 13735). DOE has examined the 
proposed rule and has determined that it does not preempt State law and 
does not have a substantial direct effect on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. No further action is required by Executive Order 13132.

G. Review Under the Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally 
requires a Federal agency to perform a written assessment of costs and 
benefits of any rule imposing a Federal mandate with costs to State, 
local or tribal governments, or to the private sector, of $100 million 
or more. This rulemaking 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 rulemaking or policy that may 
affect family well-being. This rulemaking will have no impact on the 
autonomy or integrity of the family as an institution. Accordingly, DOE 
has concluded that it is not necessary to prepare a Family Policymaking 
Assessment.

I. Review Under Executive Order 13211

    Executive Order 13211, Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use, 66 FR 28355 
(May 22, 2001), requires Federal agencies to prepare and submit to 
Office of Information and Regulatory Affairs (OIRA), of the Office of 
Management and Budget (OMB), a Statement of Energy Effects for any 
significant energy action. A ``significant energy action'' is defined 
as any action by an agency that promulgates or is expected to lead to 
promulgation of a final rule, and that: (1) Is a significant regulatory 
action under 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. 
This proposed rule is not a significant energy action. Accordingly, DOE 
has not prepared a Statement of Energy Effects.

J. Review Under the Treasury and General Government Appropriations Act, 
2001

    The Treasury and General Government Appropriations Act, 2001 (44 
U.S.C. 3516, note) provides for agencies to review most disseminations 
of information to the public under guidelines established by each 
agency pursuant to general guidelines issued by OMB. OMB's guidelines 
were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines 
were published at 67 FR 62446 (October 7, 2002). DOE has reviewed this 
proposed rule under the OMB and DOE guidelines and has concluded that 
it is consistent with applicable policies in those guidelines.

K. Approval by the Office of the Secretary of Energy

    Issuance of this proposed rule has been approved by the Office of 
the Secretary of Energy.

List of Subjects in 48 CFR Parts 902, 909, 916, 917, 922, 925, 931, 
936, 942, 952 and 970

    Government procurement.

    Issued in Washington, DC on March 16, 2015.
Patrick M. Ferraro,
Deputy Director, Office of Acquisition and Project Management, 
Department of Energy.
Joseph Waddell,
Deputy Associate Administrator, Acquisition and Project Management, 
National Nuclear Security Administration.

    For the reasons set out in the preamble, the Department of Energy 
proposes to amend Chapter 9 of Title 48 of the Code of Federal 
Regulations as set forth below.

Title 48--Federal Acquisition Regulations System

0
1. The authority citation for parts 902, 903, 916, 917, 922, 925, 931, 
936 and 942 continues to read as follows:

    Authority:  42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

PART 902--DEFINITIONS OF WORDS AND TERMS


902.101  [Amended]

0
2. Section 902.101 is amended in the definition of ``Senior Procurement 
Executive'', by removing ``Director, Office of Acquisition and Supply 
Management'' and adding in its place ``Deputy Associate Administrator 
for Acquisition and Project Management''.

[[Page 15740]]

PART 909--CONTRACTOR QUALIFICATIONS


909.403   [Amended]

0
3. Section 909.403 is amended in paragraphs (1) and (2), by removing 
``Director, Office of Acquisition and Supply Management'' and adding in 
its place ``Deputy Associate Administrator for Acquisition and Project 
Management''.

PART 916--TYPES OF CONTRACTS


916.505   [Amended]

0
4. Section 916.505 is amended in paragraph (b)(6)(i), by removing 
``Director, Office of Acquisition and Supply Management,'' and adding 
in its place ``Deputy Associate Administrator for Acquisition and 
Project Management,''.

PART 917--SPECIAL CONTRACTING METHODS


917.602   [Amended]

0
5. Section 917.602 is amended in paragraph (a), by removing ``, Deputy 
Secretary or Under Secretary''.

PART 922--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITION


922.804  [Removed and Reserved]

0
6. Section 922.804 is removed and reserved.

PART 925--FOREIGN ACQUISITION

0
7. Section 925.103 is amended by removing paragraph (a), and revising 
paragraph (b)(2)(ii) to read as follows:


925.103  Exceptions.

    (b) Nonavailabilty.
    (2)(i) Individual determinations. Contracting officers may make the 
determination required by 48 CFR 25.103(b)(2)(i), provided such 
determination is factually supported in writing. If the contract is 
estimated to exceed $1 million, the Head of the Contracting Activity 
must approve the determination.
    (ii) Proposals to add an article to the list of nonavailable 
articles at 48 CFR 25.104, with appropriate justifications, must be 
submitted for approval by the Senior Procurement Executive and 
submission to the appropriate council.


925.1001   [Amended]

0
8. Section 925.1001 is amended in paragraph (b), by removing 
``Director, Office of Acquisition and Supply Management'' and adding in 
its place ``Deputy Associate Administrator for Acquisition and Project 
Management''.

PART 931--CONTRACT COST PRINCIPLES AND PROCEDURES

0
9. Section 931.205-18 is revised to read as follows:


931.205-18   Independent research and development (IR&D) and bid and 
proposal (B&P) costs.

    (c) In addition to all the other FAR requirements for allowability 
of IR&D costs, costs for IR&D are allowable under DOE contracts to the 
extent: they are not otherwise unallowable; and they have potential 
benefit or relationship to the DOE program. The term ``DOE program'' 
encompasses the DOE total mission and its objectives. In addition to 
all the other FAR requirements for allowability of B&P costs, costs for 
B&P are allowable under DOE contracts to the extent they are not 
otherwise unallowable.

PART 936--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS


936.202-70   [Removed and Reserved]

0
10. Section 936.202-70 is removed and reserved.

PART 942--CONTRACT ADMINISTRATION AND AUDIT SERVICES


942.705-3   [Amended]

0
11. Section 942.705-3 is amended by:
0
a. Removing the paragraph numbering ``(a)(2)''; and
0
b. Removing ``A-88'' and adding in its place ``A-21''.

PART 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
12. 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.

0
13. Section 952.204-2 is amended by:
0
a. Revising the section heading;
0
b. Revising the clause heading and clause date; and
0
c. Revising introductory paragraph (h)(2)(vi) and paragraph (j)(1).
    The revisions read as follows:


952.204-2  Security requirements.

* * * * *

Security Requirements ([(XXX 20XX)])

* * * * *
    (h) * * *
    (2) * * *
    (vi) The Contractor must maintain a record of information 
concerning each uncleared applicant or uncleared employee who is 
selected for a position requiring an access authorization. Upon request 
only, the following information will be furnished to the head of the 
cognizant local DOE Security Office:
* * * * *
    (j) Foreign ownership, control, or influence. (1) The Contractor 
shall immediately provide the cognizant security office written notice 
of any change in the extent and nature of foreign ownership, control or 
influence over the Contractor which would affect any answer to the 
questions presented in the Standard Form (SF) 328, Certificate 
Pertaining to Foreign Interests, executed prior to award of this 
contract. The Contractor will submit the Foreign Ownership, Control or 
Influence (FOCI) information in the format directed by DOE. When 
completed the Contractor must print and sign one copy of the SF 328 and 
submit it to the Contracting Officer. In addition, any notice of 
changes in ownership or control which are required to be reported to 
the Securities and Exchange Commission, the Federal Trade Commission, 
or the Department of Justice, shall also be furnished concurrently to 
the Contracting Officer.
* * * * *
0
14. Section 952.204-73 is amended by:
0
a. Revising the date of the clause; and
0
b. Revising paragraph (a)(1).
    The revisions read as follows:


952.204-73  Facility clearance.

* * * * *

Facility Clearance ([(XXX 20XX)])

* * * * *
    (a) Use of Certificate Pertaining to Foreign Interests, Standard 
Form 328. (1) The contract work anticipated by this solicitation will 
require access to classified information or special nuclear material. 
Such access will require a Facility Clearance for the Contractor's 
organization and access authorizations (security clearances) for 
Contractor personnel working with the classified information or special 
nuclear material. To obtain a Facility Clearance the Contractor must 
submit the Standard Form 328, Certificate Pertaining to Foreign 
Interests, and all required supporting documents to form a complete 
Foreign Ownership, Control or Influence (FOCI) Package. The Contractor 
will submit the Foreign Ownership, Control or Influence (FOCI) 
information in the format directed by DOE. When completed the 
Contractor must print and sign one copy of the SF 328 and submit it to 
the Contracting Officer.
* * * * *

[[Page 15741]]

952.236-72  [Removed and Reserved]

0
15. Section 952.236-72 is removed and reserved.


952.250-70  [Amended]

0
16. Section 952.250-70 is amended by:
0
a. Revising the date of the clause; and
0
b. Removing in paragraph (d)(1), ``$100 million'' and adding in its 
place ``$500 million''.
    The revision reads as follows:


952.250-70  Nuclear hazards indemnity agreement.

* * * * *

Nuclear Hazards Indemnity Agreement ([(XXX 20XX)])

* * * * *

PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS

0
17. 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.


970.5215-3   [Amended]

0
18. Section 970.5215-3, paragraphs (c)(1)(i) and (c)(2)(i) are amended 
by removing ``DOE Order 225.1A'' and adding in its place ``DOE Order 
225.1B, or successor version''.


970.5223-1  [Amended]

0
19. Section 970.5223-1 is amended by removing ``970.2303-3(b)'' in the 
clause introductory paragraph and adding in its place, ``970.2303-
3(a)''.
0
20. Section 970.5244-1 is amended by:
0
a. Revising the clause date;
0
b. Removing in paragraphs (f)(1) and (f)(2) ``$100,000'' and adding in 
its place ``$150,000''; and
0
c. Removing in paragraph (g) ``$100,000'' in both occurrences and 
adding in its place ``$500,000''.
    The revision read as follows:


970.5244-1  Contractor purchasing system.

* * * * *

Contractor Purchasing System ([(XXX 20XX)])

* * * * *
0
21. Section 970.5245-1 is amended by:
0
a. Revising the clause date;
0
b. Revising Alternate I heading and date; and
0
c. Removing in Alternate I paragraph (j)(3),
0
a. ``Major System Acquisition or Major Project'' and adding in its 
place ``Major System Project'', and
0
b. ``DOE Order 4700.1'' and adding in its place ``DOE Order 413.3B, or 
successor version''.
    The revisions read as follows:


970.5245-1  Property.

* * * * *

Property ([(XXX 20XX)])

* * * * *

Alternate I ([(XXX 20XX)]).

* * * * *
[FR Doc. 2015-06564 Filed 3-24-15; 8:45 am]
 BILLING CODE 6450-01-P