[Federal Register Volume 75, Number 4 (Thursday, January 7, 2010)]
[Proposed Rules]
[Pages 964-967]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-11]
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DEPARTMENT OF ENERGY
48 CFR Parts 928, 931, 932, 933, 935, 936, 937, 941, 942, 949, 950,
951, and 952
RIN 1991-AB88
Acquisition Regulation: Subchapter E--General Contracting
Requirements, Subchapter F--Special Categories of Contracting, and
Subchapter G--Contract Management
AGENCY: Department of Energy.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Energy (DOE) is proposing to amend the
Department of Energy Acquisition Regulation (DEAR) Subchapters E--
General Contracting Requirements, F--Special Categories of Contracting,
and G--Contract Management to make changes to conform to the FAR,
remove out-of-date coverage, and to update references. DOE will
separately propose rules for changes to parts 927 and 945,
respectively. Today's proposed rule does not alter substantive rights
or obligations under current law.
DATES: Written comments on the proposed rulemaking must be received on
or before close of business February 8, 2010.
ADDRESSES: This proposed rule is available and you may submit comments,
identified by DEAR: Subchapters E, F, and G and RIN 1991-AB88, by any
of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
E-mail to: [email protected]. Include: DEAR:
Subchapters E, F and G and RIN 1991-AB88 in the subject line of the
message.
Mail to: U.S. Department of Energy, Office of Procurement
and Assistance Management, MA-611, 1000 Independence Avenue, SW.,
Washington, DC 20585. Comments by e-mail are encouraged.
FOR FURTHER INFORMATION CONTACT: Barbara Binney at (202) 287-1340 or by
e-mail, [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
II. Section-by-Section Analysis
III. Procedural Requirements
A. Review Under Executive Order 12866
B. Review Under Executive Order 12988
C. Review Under the Regulatory Flexibility Act
D. Review Under the Paperwork Reduction Act
E. Review Under the National Environmental Policy Act
F. Review Under Executive Order 13132
G. Review Under the Unfunded Mandates Reform Act of 1995
H. Review Under the Treasury and General Government
Appropriations Act, 1999
I. Review Under Executive Order 13211
J. Review Under the Treasury and General Government
Appropriations Act, 2001
K. Approval by the Office of the Secretary of Energy
I. Background
The objective of this action is to update the existing Department
of Energy Acquisition Regulation (DEAR). Subchapters E, F, and G have
sections that need to be updated to conform to the FAR. None of the
proposed changes are substantive or of a nature to cause any
significant expense for DOE or its contractors.
II. Section-by-Section Analysis
Changes are proposed to DEAR parts 928, 931, 932, 933, 935, 936,
937, 941, 942, 949, 950, 951, and 952. No changes are proposed for DEAR
parts 927, 929, 930, 934, 938, 939, 940, 943, 944, 945, 946, 947, and
948.
DOE proposes to amend the DEAR as follows:
1. Section 932.501-2 is amended in paragraph (a)(3) to reflect
current procedures to state that all requests for unusual progress
payments shall be sent to the DOE or the NNSA Senior Procurement
Executive to approve or deny.
2. Subpart 932.6 is amended to update the DEAR to conform with FAR
subpart 32.6 which was revised by Federal Acquisition Circular 2005-027
effective October 18, 2008.
3. Section 935.010 is amended by revising paragraphs (c) and (d).
The report process has been changed to an electronic submission using
the DOE Energy Link System (E-Link) at http://www.osti.gov/elink. The
contracting officer shall require the contractors to use E-Link to
submit an announcement record with each report.
4. Part 936 redesignates 936.202 to 936.202-70.
5. Part 937 is revised to add a new subpart, Subpart 937.2--
Advisory and Assistance Services and section 937.204 Guidelines for
determining availability of personnel. Sections 937.204(a), (b), (d)
and (e) are added to conform to FAR 37.204 to provide the DOE
guidelines for determining availability of sufficient personnel with
the requisite training and capabilities to perform the evaluation or
analysis of proposals. It also clarifies the DOE officials responsible
for making the determinations prescribed at FAR 37.204 (a), (b), (d)
and (e).
6. Section 941.201-70 is amended to update the DOE Order reference
by removing the remainder of the sentence after the second ``FAR'' and
adding in its place ``part 41 and the Department of Energy (DOE) Order
430.2B, Departmental Energy, Renewable Energy and Transportation
Management, or its successor.''
7. Section 942.803 is amended at paragraph (c) by removing ``as
discussed in 942.70 Audit Services'' which is no longer a subpart.
8. Section 949.101 is revised to add ``Senior'' before
``Procurement Executive.'' to conform the use of the Procurement
Executive title with the FAR.
9. Subpart 949.5 is removed and reserved. There is no longer a need
for a DEAR termination clause for Architect-Engineer contracts.
10. Section 951.102 paragraph (e)(4) is amended to remove the
``(iii)'' in the paragraph numbering.
11. Section 952.247-70 is amended to remove repetitive language.
12. The rule text is amended as noted in the table at paragraph 16,
by removing ``FAR'' or ``FAR part'' and adding ``48 CFR'' or ``48 CFR
part'' or by updating other CFR citations. Section 931.205-47(h)(1) is
amended by changing the capitalization of the word ``part'' in two
places. Section 952 has
[[Page 965]]
several changes in punctuation at 952.235-71 and 952.250-70.
III. Procedural Requirements
A. Review Under Executive Order 12866
Today's regulatory action has been determined not to be a
``significant regulatory action'' under Executive Order 12866,
``Regulatory Planning and Review,'' (58 FR 51735, October 4, 1993).
Accordingly, this rule is not subject to review under that Executive
Order by the Office of Information and Regulatory Affairs (OIRA) of the
Office of Management and Budget (OMB).
B. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on
Executive agencies the general duty to adhere to the following
requirements: (1) Eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction. With regard to the review
required by section 3(a), section 3(b) of Executive Order 12988
specifically requires that Executive agencies make every reasonable
effort to ensure that the regulation: (1) Clearly specifies the
preemptive effect, if any; (2) clearly specifies any effect on existing
Federal law or regulation; (3) provides a clear legal standard for
affected conduct while promoting simplification and burden reduction;
(4) specifies the retroactive effect, if any; (5) adequately defines
key terms; and (6) addresses other important issues affecting clarity
and general draftsmanship under any guidelines issued by the United
States Attorney General. Section 3(c) of Executive Order 12988 requires
Executive agencies to review regulations in light of applicable
standards in section 3(a) and section 3(b) to determine whether they
are met or if it is unreasonable to meet one or more of them. DOE has
completed the required review and determined that, to the extent
permitted by law, this rule meets the relevant standards of Executive
Order 12988.
C. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires that
an agency prepare an initial regulatory flexibility analysis for any
regulation for which a general notice or proposed rulemaking is
required, unless the agency certifies that the rule, if promulgated,
will not have a significant economic impact on a substantial number of
small entities (5 U.S.C. 605(b)). This rule updates references in the
DEAR that apply to public contracts and does not impose any additional
requirements on small businesses. Today's proposed rule does not alter
any substantive rights or obligations and, consequently, today's
proposed rule will not have a significant cost or administrative impact
on contractors, including small entities. On the basis of the
foregoing, DOE certifies that this proposed rule would not have a
significant economic impact on a substantial number of small entities.
Accordingly, DOE has not prepared a regulatory flexibility analysis for
this rulemaking. DOE's certification and supporting statement of
factual basis will be provided to the Chief Counsel for Advocacy of the
Small Business Administration pursuant to 5 U.S.C. 605(b).
D. Review Under the Paperwork Reduction Act
This proposed rule does not impose a collection of information
requirement subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq. Existing burdens associated with the collection of certain
contractor data under the DEAR have been cleared under OMB control
number 1910-4100.
E. Review Under the National Environmental Policy Act
DOE has concluded that promulgation of this proposed rule falls
into a class of actions which would not individually or cumulatively
have significant impact on the human environment, as determined by
DOE's regulations (10 CFR part 1021, subpart D) implementing the
National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et
seq.). Specifically, this proposed rule is categorically excluded from
NEPA review because the amendments to the DEAR are strictly procedural
(categorical exclusion A6). Therefore, this proposed rule does not
require an environmental impact statement or environmental assessment
pursuant to NEPA.
F. Review Under Executive Order 13132
Executive Order 13132, 64 FR 43255 (August 4, 1999), imposes
certain requirements on agencies formulating and implementing policies
or regulations that preempt State law or that have federalism
implications. Agencies are required to examine the constitutional and
statutory authority supporting any action that would limit the
policymaking discretion of the States and carefully assess the
necessity for such actions. The Executive Order requires agencies to
have an accountability process to ensure meaningful and timely input by
State and local officials in the development of regulatory policies
that have federalism implications. On March 14, 2000, DOE published a
statement of policy describing the intergovernmental consultation
process it will follow in the development of such regulations (65 FR
13735). DOE has examined the proposed rule and has determined that it
does not preempt State law and does not have a substantial direct
effect on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. No further
action is required by Executive Order 13132.
G. Review Under the Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104[boxh]4)
generally requires a Federal agency to perform a written assessment of
costs and benefits of any rule imposing a Federal mandate with costs to
State, local or tribal governments, or to the private sector, of $100
million or more. This rulemaking proposes changes that do not alter any
substantive rights or obligations. This proposed rule does not impose
any mandates.
H. Review Under the Treasury and General Government Appropriations Act,
1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a
Family Policymaking Assessment for any rulemaking or policy that may
affect family well-being. This rulemaking will have no impact on the
autonomy or integrity of the family as an institution. Accordingly, DOE
has concluded that it is not necessary to prepare a Family Policymaking
Assessment.
I. Review Under Executive Order 13211
Executive Order 13211, Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use, 66 FR 28355,
(May 22, 2001), requires Federal agencies to prepare and submit to
Office of Information and Regulatory Affairs of the Office of
Management and Budget, a Statement of Energy Effects for any proposed
significant energy action. A ``significant energy action'' is defined
as any action by an agency that promulgates or is expected to lead to
[[Page 966]]
promulgation of a final rule, and that: (1) Is a significant regulatory
action under Executive Order 12866, or any successor order; (2) is
likely to have a significant adverse effect on the supply,
distribution, or use of energy, or (3) is designated by the
Administrator of OIRA as a significant energy action. For any proposed
significant energy action, the agency must give a detailed statement of
any adverse effects on energy supply, distribution, or use should the
proposal be implemented, and of reasonable alternatives to the action
and their expected benefits on energy supply, distribution, and use.
Today's proposed rule is not a significant energy action. Accordingly,
DOE has not prepared a Statement of Energy Effects.
J. Review Under the Treasury and General Government Appropriations Act,
2001
The Treasury and General Government Appropriations Act, 2001 (44
U.S.C. 3516, note) provides for agencies to review most disseminations
of information to the public under guidelines established by each
agency pursuant to general guidelines issued by OMB. OMB's guidelines
were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines
were published at 67 FR 62446 (October 7, 2002). DOE has reviewed the
proposed rule under the OMB and DOE guidelines and has concluded that
it is consistent with applicable policies in those guidelines.
K. Approval by the Office of the Secretary of Energy
Issuance of this proposed rule has been approved by the Office of
the Secretary.
List of Subjects in 48 CFR Parts 928, 931, 932, 933, 935, 936, 937,
941, 942, 949, 950, 951, and 952
Government procurement.
Issued in Washington, DC, on December 16, 2009.
Edward R. Simpson,
Director, Office of Procurement and Assistance Management, Department
of Energy.
David O. Boyd,
Director, Office of Acquisition and Supply Management, National Nuclear
Security Administration.
For the reasons set out in the preamble, the Department of Energy
is proposing to amend Chapter 9 of Title 48 of the Code of Federal
Regulations as set forth below.
1. The authority citations for parts 928, 931, 932, 933, 935, 936,
941, 942, and 951 continue to read as follows:
Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.
PART 932--CONTRACT FINANCING
2. Section 932.501-2 is amended by revising paragraph (a)(3) to
read as follows:
935.501-2 Unusual progress payments.
(a)(3) For DOE, the Head of the Contracting Activity shall forward
all requests which are considered favorable, with supporting
information, to the DOE Senior Procurement Executive, who, after
coordination with the Chief Financial Officer, Headquarters, will
approve or deny the request. For NNSA, the NNSA Senior Procurement
Executive will coordinate with the NNSA Chief Financial Officer before
approving or denying the request.
* * * * *
932.605 [Redesignated as 932.602]
3. Section 932.605 is redesignated as 932.602 and newly
redesignated 932.602 is amended by:
a. Revising the section heading as set forth below; and
b. Removing the paragraph designation ``(b)''.
The revision reads as follows:
932.602 Responsibilities.
* * * * *
PART 935--RESEARCH AND DEVELOPMENT CONTRACTING
4. Revise section 935.010 to read as follows:
935.010 Scientific and technical reports.
(c) All research and development contracts which require reporting
of research and development results conveyed in scientific and
technical information (STI) shall include an instruction requiring the
contractor to submit all STI, including reports and notices relating
thereto, electronically to the U.S. Department of Energy (DOE), Office
of Scientific and Technical Information (OSTI), using the DOE Energy
Link System (E-link) at http://www.osti.gov/elink. The phrase ``reports
and notices relating thereto'' does not include reports or notices
concerning administrative matters such as contract cost or financial
data and information. The DOE Order 241.1B Scientific and Technical
Information Management, or its successor version, sets forth
requirements for STI management.
(d) As prescribed in DOE Order 241.1B, the contracting officer
shall ensure that the requirements of the attendant Contractor
Requirements Document are included in applicable contracts.
PART 936--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
936.202 [Redesignated as 936.202-70]
5. Section 936.202 is redesignated as 936.202-70 and the section
heading is revised to read as follows:
936.202-70 Specifications charges.
* * * * *
6. The authority citations for parts 937 and 949 are revised to
read as follows:
Authority: 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.
PART 937--SERVICE CONTRACTING
7. Add a new subpart 937.2, consisting of section 937.204, to read
as follows:
Subpart 937.2--Advisory and Assistance Services
937.204 Guidelines for determining availability of personnel.
(a) The determination, that there is sufficient DOE personnel with
the requisite training and capabilities for each evaluation or analysis
of proposals, shall be determined in accordance with 915.207-
70(f)(2)(i).
(b) If it is determined that there is no such DOE personnel
available, then other Federal agencies may have the required personnel
with the requisite training and capabilities for the evaluation or the
analysis of proposals. The determination, to use employees of other
Federal agencies for the evaluation or analysis of proposals, shall be
in accordance with 915.207-70(f)(2)(ii).
(d) The determination, to employ non-Federal evaluators or
advisors, shall be determined in accordance with 915.207-70(f)(3).
(e) The determination that covered personnel are unavailable for a
class of proposals, necessitating employment of non-Federal evaluators
or advisors, shall be determined in accordance with 915.207-70(f)(3).
PART 941--ACQUISITION OF UTILITY SERVICES
8. Section 941.201-70 is revised to read as follows:
941.201-70 DOE Directives.
Utility services (defined at 48 CFR 41.101) shall be acquired in
accordance with 48 CFR part 41 and the Department of Energy (DOE) Order
430.2B, Departmental Energy, Renewable Energy and Transportation
Management, or its successor.
[[Page 967]]
PART 942--CONTRACT ADMINISTRATION
942.803 [Amended]
9. Amend section 942.803 by revising paragraph (c)(1) in the last
sentence by removing the phrase ``, as discussed in 942.70 Audit
Services''.
PART 949--TERMINATION OF CONTRACTS
949.101 [Amended]
10. Section 949.101 is amended by adding ``Senior'' before
``Procurement Executive''.
Subpart 949.5 [Removed and Reserved]
11. Subpart 949.5 is removed and reserved.
PART 950--EXTRAORDINARY CONTRACTUAL ACTIONS AND THE SAFETY ACT
12. The authority citation for part 950 continues to read as
follows:
Authority: 42 U.S.C. 2201; 2282a; 2282b; 2282c; 42 U.S.C. 7101
et seq.; 50 U.S.C. 2401 et seq.
PART 951--USE OF GOVERNMENT SOURCES BY CONTRACTORS
951.102 [Amended]
13. Section 951.102 is amended by revising the paragraph
designation ``(e)(4)(iii)'' to read ``(e)(4)''.
PART 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
14. The authority citation for part 952 is revised to read as
follows:
Authority: 42 U.S.C. 2201; 2282a; 2282b; 2282c; 42 U.S.C. 7101
et seq.; 50 U.S.C. 2401 et seq.
15. Section 952.247-70 is amended by:
a. Revising the date of the clause to read as set forth below; and
b. Removing ``or its successor Official Foreign Travel, or any
subsequent version of the order'' in the clause and adding in its place
``Official Foreign Travel, or its successor''. The revision reads as
follows:
952.247-70 Foreign travel.
* * * * *
FOREIGN TRAVEL (XXX 20XX) [INSERT ABBREVIATED MONTH AND YEAR 30 DAYS
AFTER DATE OF FINAL RULE PUBLICATION]
* * * * *
PARTS 928, 931, 932, 933, 936, 937, 941, 942, 950, 951, AND 952
[AMENDED]
16. In the table below, for each section indicated in the left
column, remove the word indicated in the middle column from where it
appears in the section, and add the word in the right column:
------------------------------------------------------------------------
Section Remove Add
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928.101-1................... ``FAR''............. ``48 CFR''
928.301..................... ``FAR Part''........ ``48 CFR part''
931.102 in 2 places......... ``FAR''............. ``48 CFR''
931.102..................... ``FAR Part 31''..... ``48 CFR part 31''
931.205-32(a)............... ``FAR''............. ``48 CFR''
931.205-47(h)(1), in the ``29 CFR Part 24,''. ``29 CFR part 24,''
Employee whistleblower
action definition.
931.205-47(h)(1), in the ``10 CFR Part 708''. ``10 CFR part 708''
Employee whistleblower
action definition.
932.006-4(a)................ ``FAR''............. ``48 CFR''
932.803(d).................. ``FAR''............. ``48 CFR''
932.7004-1 in 3 places...... ``FAR''............. ``48 CFR''
932.7004-3(a)............... ``FAR''............. ``48 CFR''
933.103(k).................. ``FAR''............. ``48 CFR''
933.104(b).................. ``FAR''............. ``48 CFR''
933.104(c).................. ``FAR''............. ``48 CFR''
933.104(g).................. ``FAR''............. ``48 CFR''
933.106(a).................. ``FAR''............. ``48 CFR''
936.602-10(a)(8)............ ``FAR''............. ``48 CFR''
936.609-3................... ``FAR''............. ``48 CFR''
936.7100.................... ``FAR Part''........ ``48 CFR part''
937.7040.................... ``FAR''............. ``48 CFR''
942.704(b) in 2 places...... ``FAR''............. ``48 CFR''
942.705-1(b)(1)............. ``FAR''............. ``48 CFR''
950.7003(a) in the first ``(DOE)''........... ``DOE''
sentence.
951.102(a).................. ``FAR Part''........ ``48 CFR part''
951.102(a).................. ``DOE PMR 41 CFR 109- ``DOE PMR 41 CFR
26''. 109''
952.233-2 in the ``FAR''............. ``48 CFR''
introductory text.
952.233-4(a)................ ``FAR''............. ``48 CFR''
952.233-4(b)................ ``FAR''............. ``48 CFR''
952.235-71(b)(1)............ ``warranted;''...... ``warranted.''
952.250-70(e)(2)............ ``which:''.......... ``which--''
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[FR Doc. 2010-11 Filed 1-6-10; 8:45 am]
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