[Federal Register Volume 75, Number 110 (Wednesday, June 9, 2010)]
[Proposed Rules]
[Pages 32719-32723]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-13678]
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DEPARTMENT OF ENERGY
48 CFR Part 970
RIN 1991-AB91
Acquisition Regulation: Agency Supplementary Regulations
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) on DOE Management
and Operating Contracts to make changes to conform to the Federal
Acquisition Regulation (FAR), remove out-of-date coverage, and update
references. 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 July 9, 2010.
ADDRESSES: You may submit comments, identified by DEAR: Subchapter I
and RIN 1991-AB91, 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:
Subchapter I and RIN 1991-AB91 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 Department of Energy Acquisition Regulation (DEAR) Subchapter I
has sections that need to be updated to conform with the FAR. The
objective of this action is to update the existing DEAR Subchapter I--
Agency Supplementary Regulations, Part 970--DOE Management and
Operating Contracts to conform it 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:
1. Section 970.0100 is amended to add the references for the Code
of Federal Regulation (CFR) chapters 1 and 9.
2. Section 970.103 is revised to remove ``DEAR'' before 970.0309
and remove ``FAR'' before 3.9 and add in its place ``48 CFR subpart''
in paragraph (a)(3).
3. Section 970.0404-2 is amended to update the DOE Order to 475.1,
Counterintelligence Program.
4. Section 970.19 is amended to revise the subpart heading and the
970.1907 section heading to conform to the FAR.
5. Section 970.1907-1 is redesignated as 970.1907-4 to conform to
the FAR.
6. Part 970 is revised by adding a new subpart ``970.25 Foreign
Acquisition'' and section ``970.2570 Contract clauses'' which provides
instructions on when to insert and how to modify the clauses at FAR
52.225-1, Buy American Act--Supplies, and FAR 52.225-9, Buy American
Act--Construction Materials, in management and operating contracts.
7. Section 970.3102-05-6 paragraphs (a)(7)(i) and (ii) are amended
to clarify that the contract will set forth the reimbursable costs for
compensation for personal services, it removes the reference to the
personnel appendix. Paragraph (p)(1) revises the reference to the FAR
from the ``Federal Acquisition Regulation'' to ``48 CFR.''
8. Subpart 970.34 is amended by redesignating 970.3400 as 970.3405
and 970.3400-1 as 970.3405-2 to conform with the FAR.
9. Subpart 970.37 is revised to add the new section ``970.3706
Performance-based acquisition'' and ``970.3706-1 General'' which
references 970.1100 for policy and guidance on performance-based
contracting for management and operating (M&O) contracts.
10. Section 970.3770-1 is amended by adding that the use of DOE
directives is prescribed in 970.0470.
11. Section 970.5204-1 is amended by revising the date of the
clause and removing ``DOE Order 5670.3, Counterintelligence Program''
in paragraph (a) of the clause and adding in its place ``DOE Order
475.1, Counterintelligence Program, or its successor''.
12. Section 970.5223-3 is amended by revising the date of the
provision and adding that DOE may grant an extension to the
notification or implementation period if necessary as per 10 CFR 707.5
(g) in paragraph (b). This change will provide the contracting officer
the authority to extend the time needed for the contractor to submit
the workplace substance abuse program plan.
13. Section 970.5223-4 is amended by revising the date of the
clause and revising the clause to permit the contracting officer to
agree to different date beyond the 30-day notice by the contractor for
the submission of the workplace substance abuse program plan. This
change will provide the Contracting Officer the authority to extend the
time needed for the Contractor to submit the workplace substance abuse
program plan.
14. Section 970.5226-1 is amended by revising the punctuation in
the last sentence of the clause.
15. Section 970.5232-3 is amended at paragraph (h)(1) to add ``or
subcontractor's'' after ``contractor's'' and to add ``and to interview
any current employee regarding such transactions'' after ``hereunder.''
Section 871 of the Duncan Hunter National Defense
[[Page 32720]]
Authorization Act for Fiscal Year 2009 and section 902 of Title IX of
the Recovery Act formalized the current practices permitting access to
the Government Accountability Office to records and to interview
current employees of contractors and subcontractors administering
contracts.
16. Section 970.5235-1 is amended to update the clause to reference
the clause 48 CFR 970.5217-1 in paragraph (c) since this clause applies
the Work for Others Program. Also, paragraph (d) is amended to add the
full title of DOE order 481.1.
17. The rule text is amended as noted in paragraph 15 and in the
tables at paragraphs 27 and 28 by removing ``FAR'' or ``DEAR'' and
adding ``48 CFR''; removing ``FAR'' or ``48 CFR''; adding ``48 CFR'',
revising the punctuation; and capitalizing Contractor, Contractor's,
and Contracting Officer.
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. 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. 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.
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. 104-4) 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
[[Page 32721]]
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
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 Part 970
Government procurement.
Issued in Washington, DC on May 19, 2010.
Patrick M. Ferraro,
Acting Director, Office of Procurement and Assistance Management,
Department of Energy .
Joseph F. Waddell,
Acting Director, Office of Acquisition and Supply Management, National
Nuclear Security Administration.
For the reasons set out in the preamble, the Department of Energy
is proposing to amend Chapter 9 of Title 48 of the Code of Federal
Regulations as set forth below.
PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS
1. 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.
Subpart 970.01--Management and Operating Contract Regulatory System
970.0100 [Amended]
2. Section 970.0100 is amended in the first sentence, by adding,
``(Chapter 1 of Title 48 Code of Federal Regulations (CFR))'' after
``(FAR)'' and by adding ``(Chapter 9 of Title 48 CFR)'' after ``DEAR''.
970.0103 [Amended]
3. Section 970.0103 is amended by:
a. Removing, in introductory paragraph (a) heading, ``part'' and
adding in its place ``Part'';
b. Removing, in paragraph (a)(3) ``DEAR''; and
c. Removing, in paragraph (a)(3) ``FAR 3.9'' and adding in its
place ``48 CFR subpart 3.9''.
970.0404-2 [Amended]
4. Section 970.0404-2 is amended in paragraph (b) by removing
``5670.3 (as amended).'' at the end of the first sentence and adding in
its place ``475.1, Counterintelligence Program, or its successor.''
Subpart 970.19--Small Business Programs
5. Revise subpart 970.19 subpart heading to read as set forth
above.
6. Revise 970.1907 section heading to read as set forth below:
970.1907 The Small Business Subcontracting Program.
* * * * *
970.1907-1 [Redesignated]
7. Section 970.1907-1 is redesignated as 970.1907-4.
8. Add a new subpart 970.25, consisting of 970.2570, to part 970 to
read as follows:
Subpart 970.25--Foreign Acquisition
970.2570 Contract clauses.
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) by
substituting the word ``use'' for the word ``deliver.''
970.2673-1 [Amended]
9. Section 970.2673-1 is amended by:
a. Removing the ``:'' in introductory text and adding in its place
a ``--'';
b. Removing the ``,'' in paragraph (a) and adding in its place a
``;''; and
c. Removing the ``,'' in paragraph (b) and adding in its place a
``;''.
10. Section 970.3102-05-6 is amended by:
a. Revising paragraphs (a)(7)(i) and (a)(7)(ii) to read as set
forth below; and
b. Removing ``Federal Acquisition Regulation'' in paragraph (p)(1)
and adding in its place ``48 CFR''.
970.3102-05-6 Compensation for personal services.
(a) * * *
(7)(i) Reimbursable costs for compensation for personal services
are to be set forth in the contract. This compensation shall be set
forth using the principles and policies of 48 CFR 31.205-6,
Compensation, as supplemented by this section, 970.3102-05-6, and other
pertinent parts of the DEAR. Costs that are unallowable under other
contract terms shall not be allowable as compensation for personnel
services.
(ii) The contract sets forth, in detail, personnel costs and
related expenses allowable under the contract and documents personnel
policies, practices and plans which have been found acceptable by the
contracting officer. The contractor will advise DOE of any proposed
changes in any matters covered by these policies, practices, or plans
which relate to personnel costs. Types of personnel costs and related
expenses addressed in the contract are as follows: Salaries and wages;
bonuses and incentive compensation; overtime, shift differential,
holiday, and other premium pay for time worked; welfare benefits and
retirement programs; paid time off, and salaries and wages to employees
in their capacity as union stewards and committeemen for time spent in
handling grievances, or serving on labor management (contractor)
[[Page 32722]]
committees provided, however, that the contracting officer's approval
is required in each instance of total compensation to an individual
employee above an annual rate as specified in the contract.
* * * * *
970.3102-05-46 [Amended]
11. Section 970.3102-05-46 is amended in paragraph (e)(3)
introductory text by adding ``48 CFR'' before ``31.109''.
970.3400 and 970.3400-1 [Redesignated]
12. Redesignate 970.3400 as 970.3405 and 970.3400-1 as 970.3405-2.
13. Add a new section 970.3706 and 970.3706-1 to subpart 970.37 to
read as follows:
970.3706 Performance-based acquisition.
970.3706-1 General.
For policy and guidance on performance-based contracting for
management and operating (M&O) contracts, see 970.1100.
14. Section 970.3770-1 is revised to read as follows:
970.3770-1 Policy.
Contractors managing the Department of Energy (DOE) facilities
shall be required to comply with the DOE Directives applicable to
facilities management. The use of the DOE Directives is prescribed in
970.0470.
15. Section 970.5204-1 is amended by:
a. Revising the date of the clause to read as set forth below; and
b. Removing ``DOE Order 5670.3, Counterintelligence Program;'' in
paragraph (a) of the clause and adding in its place ``DOE Order 475.1,
Counterintelligence Program, or its successor;''.
The revision reads as follows:
970.5204-1 Counterintelligence.
* * * * *
COUNTERINTELLIGENCE (XXX 20XX)
* * * * *
16. Section 970.5223-3 is amended by:
a. Revising the date of the provision to read as set forth below;
and
b. Adding a new sentence at the end of paragraph (b) as set forth
below.
The revision and addition read as follows:
970.5223-3 Agreement regarding Workplace Substance Abuse Programs at
DOE Sites.
* * * * *
AGREEMENT REGARDING WORKPLACE SUBSTANCE ABUSE PROGRAMS AT DOE SITES
(XXX 20XX)
* * * * *
(b) * * * DOE may grant an extension to the notification or
implementation period if necessary as per 10 CFR 707.5 (g).
* * * * *
17. Section 970.5223-4 is amended by:
a. Revising the date of the clause to read as set forth below; and
b. Revising paragraph (c)(1).
The revisions read as follows:
970.5223-4 Workplace Substance Abuse Programs at DOE sites.
* * * * *
WORKPLACE SUBSTANCE ABUSE PROGRAMS AT DOE SITES (XXX 20XX)
* * * * *
(c) Subcontracts. (1) The Contractor agrees to notify the
Contracting Officer reasonably in advance of, but not later than 30
days prior to, the award of any subcontract the Contractor believes
may be subject to the requirements of 10 CFR part 707, unless the
Contracting Officer agrees to a different date.
* * * * *
(End of Clause)
18. Section 970.5232-3 is amended by:
a. Revising the date of the clause to read as set forth below; and
b. Adding ``or subcontractor's'' after ``contractor's'' and adding
``and to interview any current employee regarding such transactions''
after ``hereunder'' in paragraph (h)(1).
The revision reads as follows:
970.5232-3 Accounts, records, and inspection.
* * * * *
ACCOUNTS, RECORDS, AND INSPECTION (XXX 20XX)
* * * * *
19. Section 970.5235-1 is amended by:
a. Revising the introductory text and the date of the clause to
read as set forth below;
b. Removing ``DOE Order 481.1, Work for Others (Non-Department of
Energy Funded Work) (see current version).'' in paragraph (c) and
adding in its place ``the clause 48 CFR 970.5217-1 Work for Others
Program.''; and
c. Adding ``, Work for Others (Non-Department of Energy Funded
Work), or its successor'' after ``DOE Order 481.1'' in paragraph (d).
The revisions read as follows:
970.5235-1 Federally funded research and development center sponsoring
agreement.
As prescribed in 970.3501-4, insert the following clause:
FEDERALLY FUNDED RESEARCH AND DEVELOPMENT CENTER SPONSORING AGREEMENT
(XXX 20XX)
* * * * *
PART 970--[AMENDED]
20. 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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970.1504-1-4(e), in the ``:'' ``--''
introductory text, and
(e)(2) in the
introductory text
970.2201-1-1 ``48 CFR Subpart'' ``48 CFR subpart''
970.2201-1-2(a)(1)(ii)(A) ``A review must:'' ``A review must--''
970.2201-1-2(a)(1)(ii)(C) ``including those:'' ``including those--''
970.2201-1-2(a)(1)(iii) ``10 CFR Part 707.4'' ``10 CFR 707.4''
970.2201-1-2(a)(1)(iii) ``10 CFR Part 707'' ``10 CFR part 707''
970.2201-1-2(a)(1)(v)(A) ``authorization:'' ``authorization--''
970.2305-2(b) ``48 CFR 23.5'' ``48 CFR subpart 23.5''
970.2306(b)(4) ``48 CFR 970.5223-3'' ``970.5223-3''
970.2672-2 ``48 CFR'' ``subpart''
970.5215-3(b)(4)(iii) in ``contracting officer'' ``Contracting Officer''
the first sentence
970.3204-1(a) ``48 CFR subpart 932.4'' ``subpart 932.4''
970.5222-1 in the last ``contractor'' ``Contractor''
sentence
970.5223-1(b) in the third ``contractor's'' ``Contractor's''
sentence
970.5223-1(b)(2) ``(ES&H)'' ``ES&H''
970.5226-1 ``contracting officer'' ``Contracting Officer''
970.5226-1 in the second ``contractor'' ``Contractor''
sentence
970.5226-1 in the third ``Appendix.'' ``the Appendix.''
sentence
[[Page 32723]]
970.5232-2(e)(2)(iv)(B) in ``contractor'' ``Contractor''
the last sentence
970.5232-3(d) in the ``Clause ----,'' ``Clause 970.5204-3,''
second sentence
970.5232-3(j) in the last ``Penalties for ``Penalties for Unallowable Costs;''
sentence Unallowable costs;''
----------------------------------------------------------------------------------------------------------------
21. In the table below, for each section indicated in the left
column, remove the word indicated in the right column from where it
appears in the section:
------------------------------------------------------------------------
Section Remove
------------------------------------------------------------------------
970.2201-1-2(a)(1)(ii) ``48 CFR''
970.2671-2 ``48 CFR''
970.2672-3 ``48 CFR''
970.2673-2 ``48 CFR''
970.5226-1 introductory text ``48 CFR''
970.5226-2 introductory text ``48 CFR''
970.5226-3 introductory text ``48 CFR''
970.5232-5(b) in two places ``FAR''
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[FR Doc. 2010-13678 Filed 6-8-10; 8:45 am]
BILLING CODE 6450-01-P