Food and Nutrition Service
Food Safety and Inspection Service
Rural Utilities Service
National Oceanic and Atmospheric Administration
Centers for Medicare & Medicaid Services
Food and Drug Administration
National Institutes of Health
Coast Guard
Federal Emergency Management Agency
Transportation Security Administration
U.S. Citizenship and Immigration Services
Geological Survey
Land Management Bureau
National Park Service
Surface Mining Reclamation and Enforcement Office
National Endowment for the Humanities
Federal Aviation Administration
Federal Highway Administration
Federal Railroad Administration
Federal Transit Administration
National Highway Traffic Safety Administration
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
This action removes the current flight prohibition Special Federal Aviation Regulation (SFAR) for specified areas of the Dnipro Flight Information Region (FIR) (UKDV). This SFAR, which is scheduled to expire on October 27, 2023, reflects risks to the safety of U.S. civil aviation as they existed prior to the Russian Federation's full-scale invasion of Ukraine in February 2022 and is therefore obsolete. This action is necessary to alleviate confusion that might otherwise result from leaving an obsolete rule in the Code of Federal Regulations (CFR) after its scheduled expiration date of October 27, 2023. FAA Notice-to-Air-Missions (NOTAM) KICZ A0004/22 remains in effect and continues to prohibit U.S. civil flight operations in the Lviv (UKLV), Kyiv (UKBV), Dnipro (UKDV), Simferopol (UKFV), and Odesa (UKOV) FIRs, as well as the Kyiv Upper Information Region (UIR) (UKBU). NOTAM KICZ A0004/22, together with NOTAMs KICZ A0003/22 and A0005/22, reflects the FAA's current assessment of the safety-of-flight risks the Russia-Ukraine conflict presents to U.S. civil aviation operations.
This final rule is effective on October 27, 2023.
Bill Petrak, Flight Standards Service, through the Washington Operations Center, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone (202) 267-3203; email
This action removes the FAA's current flight prohibition SFAR for specified areas of the Dnipro FIR (UKDV), SFAR No. 113, 14 CFR 91.1607.
The FAA is responsible for the safety of flight in the U.S. and for the safety of U.S. civil operators, U.S.-registered civil aircraft, and U.S.-certificated airmen throughout the world. Sections 106(f) and (g) of title 49, U.S. Code (U.S.C.), subtitle I, establish the FAA Administrator's authority to issue rules on aviation safety. Subtitle VII of title 49, Aviation Programs, describes in more detail the scope of the agency's authority. Section 40101(d)(1) provides that the Administrator shall consider in the public interest, among other matters, assigning, maintaining, and enhancing safety and security as the highest priorities in air commerce. Section 40105(b)(1)(A) requires the Administrator to exercise this authority consistently with the obligations of the U.S. Government under international agreements.
The FAA is promulgating this rule under the authority described in 49 U.S.C. 44701, General requirements. Under that section, the FAA is charged broadly with promoting safe flight of civil aircraft in air commerce by prescribing, among other things, regulations and minimum standards for practices, methods, and procedures that the Administrator finds necessary for safety in air commerce and national security.
This regulation is within the scope of the FAA's authority because it removes an obsolete flight prohibition that prohibits the persons described in paragraph (a) of SFAR No. 113, § 91.1607, from conducting flight operations in specified areas of the Dnipro FIR (UKDV) only. The February 2022 full-scale Russian invasion of Ukraine and the ensuing armed conflict between the Russian Federation and Ukraine significantly expanded the area of unacceptable safety-of-flight risks to U.S. civil aviation beyond the boundaries of SFAR No. 113, § 91.1607. To address the resulting emergency related to safety in air commerce, which required immediate action, the FAA Administrator issued emergency orders, as authorized by 49 U.S.C. 46105(c), in the form of NOTAMs KICZ A0003/22, A0004/22, and A0005/22. As described in NOTAMs KICZ A0003/22, A0004/22, and A0005/22, these emergency orders prohibit U.S. civil aviation operations throughout all of the FIRs managed by Belarus and Ukraine and in specified areas of certain FIRs managed by the Russian Federation. The FAA has determined it is not practicable at this time to give preference to a proceeding to incorporate the flight prohibition contained in NOTAM KICZ A0004/22 into the CFR, because the Russia-
Section 553(b)(B) of title 5, U.S. Code, authorizes agencies to dispense with notice and comment procedures for rules when the agency for “good cause” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Also, section 553(d) permits agencies, upon a finding of good cause, to issue rules with an effective date less than 30 days from the date of publication. In this instance, the FAA finds good cause to forgo notice and comment and the delayed effective date because they would be unnecessary.
This action removes SFAR No. 113, § 91.1607, which only prohibits U.S. civil aviation operations in specified areas of the Dnipro FIR (UKDV) and is scheduled to expire on October 27, 2023. As previously described, the February 2022 full-scale Russian invasion of Ukraine and the ensuing armed conflict between the Russian Federation and Ukraine significantly expanded the area of unacceptable safety-of-flight risks to U.S. civil aviation, leading the FAA to issue NOTAMs KICZ A0003/22, A0004/22, and A0005/22 to address the resulting emergency related to safety in air commerce. NOTAM KICZ A0004/22 prohibits U.S. civil aviation operations in all of the FIRs managed by Ukraine, including the specified areas of the Dnipro FIR (UKDV) in which SFAR No. 113, § 91.1607, prohibits U.S. civil aviation operations. NOTAM KICZ A0004/22 remains in effect until modified, superseded, or rescinded by the FAA.
Leaving SFAR No. 113, § 91.1607, in the CFR after its scheduled expiration date of October 27, 2023, might confuse the regulated community. Therefore, to alleviate the potential for confusion, the FAA is removing SFAR No. 113, § 91.1607. This action is ministerial in nature as it is only removing an expired provision from the CFR and has no substantive effect on the public.
For the reasons previously described, the FAA finds that providing notice and seeking public comment under 5 U.S.C. 553(b)(B) are unnecessary. For the same reasons, the FAA finds that good cause exists under 5 U.S.C. 553(d) for making this rule effective in less than 30 days. Accordingly, the FAA finds good cause exists to forgo notice and comment and any delay in the effective date for this rule.
On April 25, 2014, the FAA published SFAR No. 113, § 91.1607, which initially prohibited certain flight operations in a portion of the Simferopol FIR (UKFV) after Russia unlawfully seized Crimea from Ukraine.
The FAA determined the use of weapons capable of targeting and shooting down aircraft flying on civil air routes at cruising altitudes posed a dangerous threat to U.S. civil aviation operating in the Simferopol and Dnipro FIRs (UKFV and UKDV, respectively). On July 18, 2014, Coordinated Universal Time (UTC), the FAA issued NOTAM FDC 4/2182, which prohibited U.S. civil aviation operations in the entirety of the Simferopol and Dnipro FIRs (UKFV and UKDV, respectively). The FAA subsequently incorporated that flight prohibition into SFAR No. 113, § 91.1607, on December 29, 2014.
In the years that followed, the FAA determined security and safety conditions had stabilized sufficiently in certain portions of the Simferopol and Dnipro FIRs (UKFV and UKDV, respectively) for U.S. civil aviation operations to resume safely.
The February 2022 full-scale Russian invasion of Ukraine greatly expanded the area of unacceptable safety-of-flight risks to U.S. civil aviation to include the entirety of Ukrainian territorial airspace, as well as the international airspace of all of the FIRs managed by Ukraine. On February 24, 2022, the FAA issued NOTAM KICZ A0004/22, prohibiting U.S. civil aviation operations in all of the FIRs managed by Ukraine at all altitudes.
The FAA has determined the situation in all of the FIRs managed by Ukraine continues to pose an unacceptable level of risk for U.S. civil aviation safety. Conflict-related risks affecting civil aviation in these FIRs include near-daily attacks using weaponized unmanned aircraft systems (UAS), cruise missiles, and attack helicopters, resulting in the increased defensive use of advanced surface-to-air missile systems and electronic warfare. The Russian Federation has demonstrated its continuing capability and intent to use standoff strike capabilities to engage targets throughout Ukraine, including the capital, Kyiv, and Lviv, located in western Ukraine near the border with Poland. In June 2023, Ukraine launched its anticipated counteroffensive in eastern and southern Ukraine, prompting increased Russian standoff attacks to put pressure on the Ukrainian government. The protracted conflict is expected to continue in the near to mid-term, despite minimal changes in territorial control so far as the Ukraine counteroffensive takes shape. It remains unclear when and how the conflict, and the associated areas of unacceptable safety-of-flight risks to U.S. civil aviation, may eventually stabilize. Under these circumstances, the FAA has determined it is not practicable to give preference to a proceeding to incorporate the flight prohibition contained in NOTAM KICZ A0004/22 into the CFR at this time.
The current version of SFAR No. 113, § 91.1607, which only prohibits U.S. civil aviation operations in specified
The FAA will continue to closely monitor the conflict for changes in the risk environment as it relates to the safety and security of U.S. civil aviation.
Federal agencies consider impacts of regulatory actions under a variety of executive orders and other requirements. First, Executive Orders 12866 and 13563, as amended by Executive Order 14094 (“Modernizing Regulatory Review”), direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354), as codified in 5 U.S.C. 603
In conducting these analyses, the FAA has determined this final rule has benefits that justify its costs. This rule is a nonsignificant significant regulatory action, as defined in section 3(f) of Executive Order 12866 as amended by Executive Order 14094. As 5 U.S.C. 553 does not require notice and comment for this final rule, 5 U.S.C. 603 and 604 do not require regulatory flexibility analyses regarding impacts on small entities. This rule will not create unnecessary obstacles to the foreign commerce of the United States. This rule will not impose an unfunded mandate on State, local, or Tribal governments, or on the private sector, by exceeding the threshold identified previously.
This rule removes the flight prohibition SFAR for specified areas of the Dnipro FIR (UKDV). Given that the Russia-Ukraine conflict and the associated areas of unacceptable safety-of-flight risks to U.S. civil aviation have yet to stabilize sufficiently, the FAA has determined it is not practicable to give preference to a proceeding to incorporate the flight prohibition contained in NOTAM KICZ A0004/22 into the CFR at this time. To avoid the potential confusion that leaving the obsolete flight prohibition in the CFR after its scheduled expiration date might cause, the FAA is removing SFAR No. 113, § 91.1607.
U.S. civil flight operations in the Lviv (UKLV), Kyiv (UKBV), Dnipro (UKDV), Simferopol (UKFV), and Odesa (UKOV) FIRs, as well as the Kyiv UIR (UKBU), remain prohibited by NOTAM KICZ A0004/22. Accordingly, the removal of SFAR No. 113, § 91.1607, which prohibits U.S. civil aviation operations in airspace fully encompassed within the much larger area of airspace in which NOTAM KICZ A0004/22 prohibits U.S. civil aviation operations, has no incremental costs. This rule alleviates the potential for confusion amongst the regulated community.
The Regulatory Flexibility Act (RFA), in 5 U.S.C. 603, requires an agency to prepare an initial regulatory flexibility analysis describing impacts on small entities whenever 5 U.S.C. 553 or any other law requires an agency to publish a general notice of proposed rulemaking for any proposed rule. Similarly, 5 U.S.C. 604 requires an agency to prepare a final regulatory flexibility analysis when an agency issues a final rule under 5 U.S.C. 553 after that section or any other law requires publication of a general notice of proposed rulemaking. The FAA concludes good cause exists to forgo notice and comment and to not delay the effective date for this rule. As 5 U.S.C. 553 does not require notice and comment in this situation, 5 U.S.C. 603 and 604 similarly do not require regulatory flexibility analyses.
The Trade Agreements Act of 1979 (Pub. L. 96-39) prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to this Act, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.
This rule removes an existing prohibition on U.S. civil aviation operations in specified areas of the Dnipro FIR (UKDV), a location outside the United States, that is scheduled to expire on October 27, 2023. As this rule relates to a location outside the United States, the rule complies with the Trade Agreements Act of 1979.
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and Tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $177 million in lieu of $100 million.
This final rule does not contain such a mandate. Therefore, the requirements of Title II of the Act do not apply.
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires the FAA to consider the impact of paperwork and other information collection burdens it imposes on the public. The FAA has
In keeping with U.S. obligations under the Convention on International Civil Aviation, the FAA's policy is to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined no ICAO Standards and Recommended Practices correspond to this regulation. The FAA finds this action is fully consistent with the obligations under 49 U.S.C. 40105(b)(1)(A) to ensure the FAA exercises its duties consistently with the obligations of the United States under international agreements.
The FAA has analyzed this action under Executive Order 12114, Environmental Effects Abroad of Major Federal Actions, and DOT Order 5610.1C, Paragraph 16. Executive Order 12114 requires the FAA to be informed of environmental considerations and take those considerations into account when making decisions on major Federal actions that could have environmental impacts anywhere beyond the borders of the United States. The FAA has determined this action is exempt pursuant to Section 2-5(a)(i) of Executive Order 12114 because it does not have the potential for a significant effect on the environment outside the United States.
In accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 8-6(c), the FAA has prepared a memorandum for the record stating the reason(s) for this determination and has placed it in the docket for this rulemaking.
The FAA has analyzed this rule under the principles and criteria of Executive Order 13132. The agency has determined this action will not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, this rule will not have federalism implications.
The FAA analyzed this rule under Executive Order 13211. The agency has determined it is not a “significant energy action” under the executive order and will not be likely to have a significant adverse effect on the supply, distribution, or use of energy.
Executive Order 13609 promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policies and agency responsibilities of Executive Order 13609 and has determined that this action will have no effect on international regulatory cooperation.
Except for classified and controlled unclassified material not authorized for public release, all documents the FAA considered in developing this rule, including economic analyses and technical reports, may be accessed from the internet through the docket for this rulemaking.
Those documents may be viewed online at
Copies may also be obtained by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW, Washington, DC 20591, or by calling (202) 267-9677.
The Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) (Pub. L. 104-121) (set forth as a note to 5 U.S.C. 601) requires the FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document may contact its local FAA official, or the persons listed under the
Air traffic control, Aircraft, Airmen, Airports, Aviation safety, Freight, Ukraine.
In consideration of the foregoing, the Federal Aviation Administration amends chapter I of title 14, Code of Federal Regulations, as follows:
49 U.S.C. 106(f), 106(g), 40101, 40103, 40105, 40113, 40120, 44101, 44111, 44701, 44704, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306, 46315, 46316, 46504, 46506-46507, 47122, 47508, 47528-47531, 47534, Pub. L. 114-190, 130 Stat. 615 (49 U.S.C. 44703 note); articles 12 and 29 of the Convention on International Civil Aviation (61 Stat. 1180), (126 Stat. 11).
Issued in Washington, DC, under the authority of 49 U.S.C. 106(f) and (g), 40101(d)(1), 40105(b)(1)(A), and 44701(a)(5).
Office of the Assistant Secretary for Community Planning and Development, HUD.
Announcement of fee.
This document announces the fee that HUD will collect from borrowers of loans guaranteed under HUD's Section 108 Loan Guarantee Program (Section 108 Program) to offset
Paul Webster, Director, Financial Management Division, Office of Block Grant Assistance, Office of Community Planning and Development, U.S. Department of Housing and Urban Development, 451 7th Street SW, Room 7282, Washington, DC 20410; telephone number 202-402-4563 (this is not a toll-free number). HUD welcomes and is prepared to receive calls from individuals who are deaf or hard of hearing, as well as individuals with speech or communication disabilities. To learn more about how to make an accessible telephone call, please visit
The Transportation, Housing and Urban Development, and Related Agencies Appropriations Act, 2015 (division K of Pub. L. 113-235, approved December 16, 2014) (2015 Appropriations Act) provided that “the Secretary shall collect fees from borrowers, notwithstanding subsection (m) of such section 108, to result in a credit subsidy cost of zero for guaranteeing . . .” Section 108 loans. Section 108(m) of the Housing and Community Development Act of 1974 states that “No fee or charge may be imposed by the Secretary or any other Federal agency on or with respect to a guarantee made by the Secretary under this section after February 5, 1988.” Identical language was continued or included in the Department's continuing resolutions and appropriations acts authorizing HUD to issue Section 108 loan guarantees during Fiscal Years (FYs) 2016, 2017, 2018, 2019, 2020, 2021, 2022, and 2023. The Fiscal Year (FY) 2024 HUD appropriations bills under consideration
On November 3, 2015, HUD published a final rule (80 FR 67626) that amended the Section 108 Program regulations at 24 CFR part 570 to establish additional procedures, including procedures for announcing the amount of the fee each fiscal year when HUD is required to offset the credit subsidy costs to the Federal Government to guarantee Section 108 loans. For FYs 2016, 2017, 2018, 2019, 2020, 2021, 2022, and 2023 HUD published notifications to set the fees.
If authorized by statute, this document sets the fee for Section 108 loan disbursements under loan guarantee commitments awarded for FY 2024 at 1.64 percent of the principal amount of the loan. HUD will collect this fee from borrowers of loans guaranteed under the Section 108 Program to offset the credit subsidy costs of the guaranteed loans pursuant to commitments awarded in FY 2024 if either of the FY 2024 HUD appropriations bill under consideration is enacted, or if HUD is otherwise required or authorized by statute to collect fees from borrowers to offset the credit subsidy costs of the guaranteed loans, notwithstanding subsection (m) of section 108 of the Housing and Community Development Act of 1974 (42 U.S.C. 5308(m)). For this fee announcement, HUD is not changing the underlying assumptions or creating new considerations for borrowers. The calculation of the FY 2024 fee uses a similar calculation model as the FY 2016, FY 2017, FY 2018, FY 2019, FY 2020, FY 2021, FY 2022, and FY 2023 fee notifications, but incorporates updated information regarding the composition of the Section 108 portfolio and the timing of the estimated future cash flows for defaults and recoveries. The calculation of the fee is also affected by the discount rates required to be used by HUD when calculating the present value of the future cash flows as part of the Federal budget process.
As described in 24 CFR 570.712(b), HUD's credit subsidy calculation is based on the amount required to reduce the credit subsidy cost to the Federal Government associated with making a Section 108 loan guarantee to the amount established by applicable appropriation acts. As a result, HUD's credit subsidy cost calculations incorporated assumptions based on: (1) data on default frequency for municipal debt where such debt is comparable to loans in the Section 108 loan portfolio; (2) data on recovery rates on collateral security for comparable municipal debt; (3) the expected composition of the Section 108 portfolio by end users of the guaranteed loan funds (
Taking these factors into consideration, HUD determined that the fee for disbursements made under loan guarantee commitments awarded in FY 2024 will be 1.64 percent, which will be applied only at the time of loan disbursements. Note that future notifications may provide for a combination of upfront and periodic fees for loan guarantee commitments awarded in future fiscal years but, if so, HUD will provide the public an opportunity to comment if appropriate under 24 CFR 570.712(b)(2).
The expected cost of a Section 108 loan guarantee is difficult to estimate using historical program data because there have been no defaults in the history of the program that required HUD to invoke its full faith and credit guarantee or use the credit subsidy reserved each year for future losses.
In this regard, Section 108 guaranteed loans can be broken down into two categories: (1) loans that finance public infrastructure and activities to support subsidized housing (other than financing new construction) and (2) other development projects (
This document establishes a statutorily required fiscal requirement in the form of a fee based on rate and cost determinations that does not constitute a development decision that affects the physical condition of specific project areas or building sites. Accordingly, under 24 CFR 50.19(c)(6), this document is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).
Coast Guard, DHS.
Notification of enforcement of regulation.
The Coast Guard will enforce a special local regulation for the Key West World Championship to provide for the safety of life on navigable waterways during this event. Our regulation for marine events within the Seventh Coast Guard District identifies the regulated area for this event in Key West, FL. During the enforcement period, no person or vessel may enter, transit through, anchor in, or remain within the regulated area without permission from the Captain of the Port Key West or a designated representative.
The regulations in 33 CFR 100.701 will be enforced from 10 a.m. until 7 p.m., on November 8, 10, and 12, 2023, for the location identified in paragraph (b), Item 4 in table 1 to § 100.701.
If you have questions about this notification of enforcement, call or email Lieutenant Hailye Wilson, Sector Key West Waterways Management Division, Coast Guard; phone 305-292-8768, email
The Coast Guard will enforce special local regulations in 33 CFR 100.701 for the Key West World Championship regulated area identified in table 1 to § 100.701, paragraph (b), Item 4, from 10 a.m. to 7 p.m. on November 8, 10, and 12, 2023. This action is being taken to provide for the safety of life on navigable waterways during this 3-day event. Our regulation for recurring marine events, Sector Key West, § 100.701, paragraph (b), Item 4, specifies the location of the regulated area for the Key West World Championship, which encompasses a portion of the Atlantic Ocean located southwest of Key West, Florida. During the enforcement period, as reflected in § 100.701(c), all persons and vessels, except those persons and vessels participating in the high speed boat races, are prohibited from entering, transiting through, anchoring in, or remaining within the regulated area without obtaining permission from the Captain of the Port Key West or a designated representative.
In addition to this notice of enforcement in the
Federal Communications Commission.
Final rule.
In this document, the Commission incorporates the compliance dates for the broadband consumer label rules per the
Erica H. McMahon of the Consumer and Governmental Affairs Bureau, Consumer Policy Division, at (202) 418-0346 or
The Commission publishes this document to incorporate the compliance dates for § 8.1(a)(1) through (6) of the rules adopted in the
To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to
Cable television, Common carriers, Communications common carriers, Reporting and recordkeeping requirements, Satellites, Telecommunications, Telephone, Radio.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 8 as follows:
47 U.S.C. 154, 201(b), 257, 303(r), and 1753.
(a) * * *
(7) Compliance with paragraphs (a)(1), (2), and (4) through (6) of this section for providers with 100,000 or fewer subscriber lines is required as of October 10, 2024, and for all other providers is required as of April 10, 2024, except that compliance with the requirement in paragraph (a)(2) of this section to make labels accessible in online account portals will not be required for all providers until October 10, 2024. Compliance with paragraph (a)(3) of this section is required for all providers as of October 10, 2024.
Federal Communications Commission.
Final rule.
This document amends the FM Table of Allotments, of the Federal Communications Commission's (Commission) rules, by allotting Channel 277C2 at Wharton, Texas, as a second local service. A staff engineering analysis indicates that Channel 277C2 can be allotted to Wharton, Texas, consistent with the minimum distance separation requirements of the Commission's rules, with a site restriction of 2.1 km (1.3 miles) west of the community. The reference coordinates are 29-18-26 NL and 96-07-50 WL.
Effective December 4, 2023.
Rolanda F. Smith, Media Bureau, (202) 418-2054,
This is a synopsis of the Commission's Report and Order, adopted October 19, 2023 and released October 19, 2023. The full text of this Commission decision is available online at
The Commission will send a copy of the Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act,
Radio, Radio broadcasting.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows:
47 U.S.C. 154, 155, 301, 303, 307, 309, 310, 334, 336, 339.
(b)
Federal Communications Commission.
Final rule.
The Video Division, Media Bureau (Bureau) has before it a Notice of Proposed Rulemaking issued in response to a Petition for Rulemaking filed by One Ministries, Inc. (Petitioner). The Petitioner requests the allotment of reserved noncommercial educational (NCE) channel *3 to Tulare, California (Tulare), in the Table of TV Allotments as the community's first local television service. The Petitioner filed comments in support of the petition, as required by
Effective November 27, 2023.
Joyce Bernstein, Media Bureau, at (202) 418-1647 or
The proposed rule was published at 88 FR 57032 on August 22, 2023. The Petitioner filed comments in support of the petition reaffirming its commitment to apply for channel *3. No other comments were received.
The Bureau believes the public interest would be served by allotting channel *3 at Tulare, which has a population of 70,733 and clearly qualifies for community of license status for allotment purposes. As stated in the NPRM, Tulare is known for its agricultural production and is home to the nation's largest single-site dairy complex. In addition, Petitioner states that Tulare has a mayor and five council members; police, public works, planning, engineering, and community and economic development departments; a library, school district; and numerous businesses and places of worship. In addition, the proposal would result in a first local service to Tulare under the Commission's second allotment priority. The Petitioner demonstrates, and a staff engineering analysis confirms, that channel *3 can be allotted to Tulare consistent with the minimum geographic spacing requirements for new DTV allotments in section 73.623(d) of the rules. In addition, the allotment point complies with section 73.625(a)(1) of the rules as the entire community of Tulare is encompassed by the 35 dBμ contour.
This is a synopsis of the Commission's
This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
The Commission will send a copy of this
Television.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows:
47 U.S.C. 154, 155, 301, 303, 307, 309, 310, 334, 336, 339.
(j) * * *
Federal Communications Commission.
Final rule.
The Video Division, Media Bureau (Bureau) has before it a Notice of Proposed Rulemaking issued in response to a Petition for Rulemaking filed by Vision Broadcasting Network, Inc. (Petitioner). The Petitioner requests the allotment of reserved noncommercial educational (NCE) channel *4 to Alamogordo, New Mexico (Alamogordo), in the Table of TV Allotments as the community's first local television service. The Petitioner filed comments in support of the petition, as required by the Commission's rules (rules), reaffirming its commitment to apply for channel *4 and if authorized, to construct the facility.
Effective November 27, 2023.
Emily Harrison, Media Bureau, at (202) 418-1665 or
The proposed rule was published at 88 FR 58210 on August 25, 2023. The Petitioner filed comments in support of the petition reaffirming its commitment to apply for channel *4. No other comments were received.
The Bureau believes the public interest would be served by allotting channel *4 at Alamogordo, which, as of 2020, has a population of 30,898 and clearly qualifies for community of license status for allotment purposes. Alamogordo is the county seat of Otero County and has its own seat of government consisting of a mayor, six Commissioners, and a city manager, as well as its own police, fire, public works, utility, planning, engineering, and community and economic development departments. Alamogordo also has a library, school district, numerous businesses and places of worship, and its own ZIP Code. The proposal would also result in a first local service to Alamogordo under the Commission's second allotment priority. The Petitioner demonstrates, and a staff engineering analysis confirms, that channel *4 can be allotted to Alamogordo consistent with the minimum geographic spacing
This is a synopsis of the Commission's
This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
The Commission will send a copy of this
Television.
Federal Communications Commission.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows:
47 U.S.C. 154, 155, 301, 303, 307, 309, 310, 334, 336, 339.
(j) * * *
Transportation Security Administration, DHS.
Interpretive rule.
The Transportation Security Administration (TSA) is amending its interpretive rule that provides guidance to the public on the types of items that TSA considers to be weapons, explosives, and incendiaries, which are prohibited in airport sterile areas, in the cabins of aircraft, or in passengers' checked baggage. This document adds a limited type of unpressurized gas cylinders for air guns used in competitive shooting to those items that may be placed in checked baggage but continue to be prohibited in sterile areas and aircraft cabins. This document also provides clarification on prohibited sharp objects and certain self-defense items.
This rule is effective October 26, 2023.
Justin Keear, Requirements Development Branch, Requirements and Capabilities Analysis, Transportation Security Administration, 6595 Springfield Center Drive, Springfield, VA 20598-6016; Telephone (571) 422-7202; email
You can find an electronic copy of this rulemaking using the internet by accessing the Government Publishing Office's web page at
TSA is responsible for security in all modes of transportation, including aviation.
(1) When performance has begun of the inspection of the individual's person or accessible property before entering a sterile area, or before boarding an aircraft for which screening is conducted under this subchapter;
(2) When the individual is entering or in a sterile area; or
(3) When the individual is attempting to board or onboard an aircraft for which screening is conducted under 49 CFR 1544.201, 1546.201, or 1562.23.
Under 49 CFR 1540.111(c), a passenger may not transport the following items in checked baggage: any loaded firearms; any unloaded firearms unless it meets specific packaging requirements and is properly declared; or any unauthorized explosive or incendiary.
Since February 2003, TSA has published a series of interpretive rules that provide guidance to the public on the types of property TSA considers to be weapons, explosives, and incendiaries prohibited on an individual's person, accessible property, or in checked baggage, as well as items that may be permitted, if they clear TSA's required screening.
As noted in the first interpretive rule, neither the prohibited items list nor the permitted items list in this regulatory interpretation contains all possible items.
Section 1962 of the TSA Modernization Act requires TSA to periodically review and amend, as necessary, the prohibited items list.
TSA established a process to ensure compliance with these statutory requirements. TSA Management Directive 4000.2 (August 25, 2021) establishes TSA's Office of Requirements and Capabilities Analysis as the lead office for revisions to the prohibited items list. All changes to the prohibited items list require review and approval by TSA's Executive Risk Steering Committee, a risk assessment (to include determining potential impact on operations), and a robust process for engagement with internal and external stakeholders. When determining to make these revisions to the prohibited items list, TSA considered, among other factors, known security risks based on intelligence, incidents, and feedback from stakeholders. From information provided by the U.S. intelligence and law enforcement communities, TSA knows that terrorists remain focused on attacking commercial aviation. The use of simple weapons in the aircraft cabin to overpower the flight crew is a known threat tactic.
The second change provides clarification regarding box cutters and utility knives. Recognizing the potential for empty box cutter and utility knife housings to be used to enhance the lethality of a hidden blade, TSA determined it is necessary to provide clarification that both the blades and housings are prohibited.
Through this revision to the interpretive rule, TSA is permitting travelers to transport up to four unpressurized compressed gas cylinders of limited size and capacity intended for air guns. Each passenger may carry no more than four such cylinders, and none of the gas cylinders may exceed 24 inches in length, 3 inches in diameter, or 0.1 cubic feet in total rated volume.
All checked baggage will continue to be screened prior to being loaded on an aircraft. This screening will verify that the items within meet the criteria for transport described in this notice and are not concealing other prohibited items, explosives, or improvised explosive devices or components. The final decision rests with TSA on whether to allow items to be transported, and TSA reserves the ability to prohibit any items that it deems to be a threat to transportation security. As part of risk-based security, TSA may prohibit items discovered during certain types of screening that would otherwise be permitted.
Consistent with the requirements in the TSA Modernization Act, TSA intends to review the prohibited items list on a periodic basis and will revise the list as operational circumstances and the threat landscape may require. TSA will engage with appropriate internal and external stakeholders in the course of the periodic review, as required by the TSA Modernization Act. TSA will continue to announce future changes in the
Changes to Federal regulations must undergo several economic analyses. First, Executive Order (E.O.) 12866 of September 30, 1993 (Regulatory Planning and Review), as supplemented by E.O. 13563 of January 18, 2011 (Improving Regulation and Regulatory Review) and E.O. 14094 of April 6, 2023 (Modernizing Regulatory Review) directs each Federal agency to propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (RFA)
Under the requirements of E.O. 12866, as amended by E.O. 14094, and E.O. 13563, agencies must assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). These requirements were supplemented by E.O. 13563, which emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
The Office of Management and Budget (OMB) has not designated this interpretive rule a significant regulatory action under section 3(f) of Executive Order 12866, as amended by Executive Order 14094. Accordingly, OMB has not reviewed this regulatory action.
In conducting these analyses, TSA made the following determinations:
1. This interpretive rule explains to the public, airport personnel, screeners, and airlines, how TSA interprets certain
2. This interpretive rule will not constitute a barrier to international trade.
3. This interpretive rule does not impose an unfunded mandate on State, Local, or Tribal governments, or on the private sector.
This interpretive rule provides an interpretation of an existing regulation, 49 CFR 1540.111, to provide clarity regarding existing prohibitions and to narrow the scope of the prohibition by permitting certain compressed gas cylinders in checked baggage. As was the case with previous interpretive rules narrowing the scope of the prohibition,
The decision to allow a limited size and number of compressed gas cylinders in checked baggage is made as part of TSA's overall risk-based security approach and is consistent with the requirement to review the prohibited items list in section 1962 of the TSA Modernization Act of 2018.
The RFA requires that agencies consider the impacts of their rules on small entities. For purposes of the RFA, small entities include small businesses, not-for-profit organizations, and small governmental jurisdictions. Individuals and States are not included in the definition of a small entity.
The RFA does not apply to this interpretive rule and TSA is not preparing an analysis under 5 U.S.C. 553 as TSA is not required to publish a notice of proposed rulemaking.
The Trade Agreement Act of 1979 prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. The Trade Agreement Act does not consider legitimate domestic objectives, such as essential security, as unnecessary obstacles. The statute also requires that international standards be considered and, where appropriate, that they be the basis for U.S. standards. TSA has assessed the potential effect of this interpretative rule and has determined this interpretive rule would not have an adverse impact on international trade.
Title II of UMRA, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, Local, and Tribal governments and the private sector. Title II of UMRA requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in a $100 million or more expenditure (adjusted annually for inflation) in any one year by State, Local, and Tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.”
This interpretive rule does not contain such a mandate. The requirements of Title II of UMRA, therefore, do not apply and TSA has not prepared a statement.
A rule has implications for federalism under E.O. 13132 of August 10, 1999 (Federalism), if it has 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. TSA has analyzed this proposed rule under E.O. 13132 and determined that it does not have implications for federalism.
TSA has reviewed this interpretive rule for purposes of the National Environmental Policy Act of 1969 (NEPA)
TSA assessed the energy impact of this action in accordance with the Energy Policy and Conservation Act (EPCA),
TSA is making the following changes to the prohibited items list:
1. Currently, section I.B(5) reads: “Knives of any length, except rounded-blade butter and plastic cutlery.” TSA is revising this section to read: “Knives of any length, except plastic cutlery and butter knives (the butter knife exception is limited to knives that are round-bladed, blunt-edged, without serration, and no longer than a common table knife.”
2. Currently, section I.B(7) reads: “Razor-type blades, such as box cutters, utility knives, and razor blades not in a cartridge, but excluding safety razors. TSA is revising this section to read: “Razor-type blades, such as blades for box cutters, utility knives, and non-disposable safety razors. This prohibition includes box cutter and utility knife housings, with or without the razor blade, but excludes disposable safety razors and disposable safety razor blade cartridges.”
3. TSA is revising section I.C(4) to add cat-eyes, to read: “Brass knuckles, including cat-eyes.”
4. TSA added specific citations to regulatory cross-references in Section III.A and III.B.
5. TSA is adding section III.E. to read: “
6. TSA made technical corrections to update statutory references, address typographical errors, and correct or clarify internal cross-references.
The following is the list of prohibited items and permitted items reprinted in its entirety, with the changes inserted.
For purposes of 49 U.S.C. 40101
(1) BB guns.
(2) Compressed air guns.
(3) Firearms.
(4) Flare pistols.
(5) Gun lighters.
(6) Parts of guns and firearms.
(7) Pellet guns.
(8) Realistic replicas of firearms.
(9) Spear guns.
(10) Starter pistols.
(11) Stun guns/cattle prods/shocking devices.
(1) Axes and hatchets.
(2) Bows and arrows.
(3) Reserved.
(4) Ice axes/Ice picks.
(5) Knives of any length, except plastic cutlery and butter knives (the butter knife exception is limited to knives that are round-bladed, blunt-edged, without serration, and no longer than a common table knife).
(6) Meat cleavers.
(7) Razor-type blades, such as box cutters, utility knives, and non-disposable razors. This prohibition includes box cutter and utility knife housings, with or without the blade, but excludes disposable safety razors and disposable safety razor blade cartridges.
(8) Sabers.
(9) Reserved.
(10) Scissors, metal with pointed tips and a blade length greater than 4 inches as measured from the fulcrum.
(11) Reserved.
(12) Swords.
(13) Throwing stars (martial arts).
(1) Baseball bats.
(2) Billy clubs.
(3) Blackjacks.
(4) Brass knuckles, including cat-eyes.
(5) Cricket bats.
(6) Reserved.
(7) Golf clubs.
(8) Reserved.
(9) Hockey sticks.
(10) Lacrosse sticks.
(11) Martial arts weapons, including nunchucks, and kubatons.
(12) Night sticks.
(13) Pool cues.
(14) Ski poles.
(15) Reserved.
(1) Ammunition.
(2) Blasting caps.
(3) Dynamite.
(4) Fireworks.
(5) Flares in any form.
(6) Gunpowder.
(7) Hand grenades.
(8) Plastic explosives.
(9) Realistic replicas of explosives.
(1) Aerosols, any, except for personal care or toiletries in limited quantities.
(2) Fuels, including cooking fuels and any flammable liquid fuel.
(3) Gasoline.
(4) Gas torches, including micro-torches and torch lighters.
(5) Lighter fluid.
(6) Strike-anywhere matches.
(7) Turpentine and paint thinner.
(8) Realistic replicas of incendiaries.
(9) All lighters.
(1) Chlorine for pools and spas.
(2) Compressed gas cylinders (including fire extinguishers).
(3) Liquid bleach.
(4) Mace.
(5) Pepper spray.
(6) Spillable batteries, except those in wheelchairs.
(7) Spray paint.
(8) Tear gas.
(1) Crowbars.
(2) Drills and drill bits, including cordless portable power drills.
(3) Hammers.
(4) Saws and saw blades, including cordless portable power saws.
(5) Other tools greater than 7 inches in length, including pliers, screwdrivers, and wrenches.
For purposes of 49 U.S.C. 40101
(1) Braille note taker, slate and stylus, and augmentation devices.
(2) Cigar cutters.
(3) Corkscrews.
(4) Cuticle cutters.
(5) Diabetes-related supplies/equipment (once inspected to ensure prohibited items are not concealed), including: insulin and insulin loaded dispensing products; vials or box of individual vials; jet injectors; pens; infusers; and preloaded syringes; and an unlimited number of unused syringes, when accompanied by insulin; lancets; blood glucose meters; blood glucose meter test strips; insulin pumps; and insulin pump supplies. Insulin in any form or dispenser must be properly marked with a professionally printed label identifying the medication or manufacturer's name or pharmaceutical label.
(6) Eyeglass repair tools, including screwdrivers.
(7) Eyelash curlers.
(8) Knives, round-bladed butter or plastic.
(9) Reserved.
(10) Matches (maximum of four books, strike on cover, book type).
(11) Nail clippers.
(12) Nail files.
(13) Nitroglycerine pills or spray for medical use, if properly marked with a professionally printed label identifying the medication or manufacturer's name or pharmaceutical label.
(14) Personal care or toiletries with aerosols, in limited quantities.
(15) Prosthetic device tools and appliances (including drill, Allen wrenches, pullsleeves) used to put on or remove prosthetic devices, if carried by the individual with the prosthetic device or his or her companion.
(16) Safety razors (including disposable razors).
(17) Scissors, plastic or metal with blunt tips, and metal with pointed tips and a blade 4 inches or less in length as measured from the fulcrum.
(18) Tweezers.
(19) Umbrellas (once inspected to ensure prohibited items are not concealed).
(20) Walking canes (once inspected to ensure prohibited items are not concealed).
(1) Knitting and crochet needles.
(2) Toy Transformer® robots and the like.
(3) Toy weapons (if not realistic replicas).
(1) Pliers, screwdrivers, wrenches, and other tools 7 inches or less in length, excluding crowbars, drills, hammers, and saws.
Passengers may place prohibited items other than explosives, incendiaries, disabling chemicals, and other dangerous items (other than individual self-defense sprays as noted below), and loaded firearms in their checked baggage, subject to any limitations provided in the Department of Transportation's hazardous materials regulations provided in 49 CFR part 175.
Neither the prohibited items list nor the permitted items list contains all possible items. A screener has discretion to prohibit an individual from carrying an item into a sterile area or onboard an aircraft if the screener determines that the item is a weapon, explosive, or incendiary, regardless of whether the item is on the prohibited items list or the permitted items list. For example, if a cigar cutter or other article on the permitted list appears unusually dangerous, the screener may refuse to allow it in sterile areas. Similarly, screeners may allow individuals to bring items into the sterile area that are not on the permitted items list. In addition, items may be prohibited from the cabin of an aircraft, or allowed in only limited quantities, by Department of Transportation regulations governing hazardous materials. Individuals with questions about the carriage of hazardous materials on passenger aircraft may call the Hazardous Materials Information Center at 1-800-467-4922 for more information.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain The Boeing Company Model 757 airplanes. This proposed AD was prompted by reports of operators finding frequent and severe damage to the blowout vent grills of the aft soft bulkhead lining in the aft lower lobe cargo compartment. This proposed AD would require repetitive detailed inspections of certain decompression panels and pressure equalization valves, as applicable, in the forward and aft lower lobe cargo compartments for damage, and applicable on-condition actions. For certain airplanes, this proposed AD would also require replacement of a certain soft bulkhead with a rigid bulkhead. For certain other airplanes, this proposed AD would require installation of doublers to a certain bulkhead assembly panel. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by December 11, 2023.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
• For service information identified in this NPRM, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; website
• You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available at
Katherine Venegas, Aviation Safety Engineer, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone: 562-627-5353; email:
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Katherine Venegas, Aviation Safety Engineer, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone: 562-627-5353; email:
Operators have found, on multiple aircraft, frequent and severe damage to the blowout vent grills of the aft soft bulkhead lining in the lower lobe cargo compartment. Damage to the grill assembly consisted of bent, fractured, and missing sections of tubing; deformed frames; and twisted cross members. Boeing investigated the reported damage and found the blowout vent grills are vulnerable to being damaged during baggage loading and unloading. Damage to the blowout vent grills in the forward and aft lower lobe cargo compartments could lead to latent failure of the decompression panels and pressure equalization valves. This latent failure, in combination with a fire, could make the cargo fire protection, detection, suppression, and containment system ineffective. Also,
The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.
The FAA reviewed Boeing Alert Requirements Bulletin 757-25A0319 RB, dated March 24, 2023. This service information specifies procedures for repetitive detailed inspections of certain bulkhead (including STA 1640), sidewall, ceiling, and E5 EE rack decompression panels, and pressure equalization valves on certain airplanes, in the forward and aft lower lobe cargo compartments for damage; and applicable on-condition actions. On-condition actions include repair or replacement of any damaged decompression panels or pressure equalization valves. For certain airplanes, this service information also specifies procedures for replacing the soft bulkhead at STA 1640 with a rigid bulkhead having decompression panels with billet grilles. For certain other airplanes, this service information specifies procedures for installing doublers to the bulkhead assembly panel at STA 1640.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in
This proposed AD would require accomplishing the actions specified in the service information already described, except for any differences identified as exceptions in the regulatory text of this proposed AD. For information on the procedures and compliance times, see this service information at
The FAA estimates that this AD, if adopted as proposed, would affect 489 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:
The FAA estimates the following costs to do any necessary repair or replacement that would be required based on the results of the proposed inspection. The agency has no way of determining the number of aircraft that might need this repair or replacement:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would 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.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) by December 11, 2023.
None.
This AD applies to The Boeing Company Model 757-200, -200PF, -200CB, and -300 series airplanes, certificated in any category, as identified in Boeing Alert Requirements Bulletin 757-25A0319 RB, dated March 24, 2023.
Air Transport Association (ATA) of America Code 25, Equipment/Furnishings.
This AD was prompted by reports that operators have found, on multiple aircraft, frequent and severe damage to the blowout vent grills of the aft soft bulkhead lining in the lower lobe cargo compartment. The FAA is issuing this AD to address damage to the blowout vent grills in the forward and aft lower lobe cargo compartments that could lead to latent failure of the decompression panels and pressure equalization valves. This latent failure, in combination with a fire, could make the cargo fire protection, detection, suppression, and containment system ineffective. Also, this latent failure, in combination with rapid decompression of the airplane, could prevent activation of the station (STA) 1640 decompression panels, which could damage the STA 1640 floor beam and cause loss of hydraulic systems components and flight control. This unsafe condition, if not addressed, could result in the inability of the flightcrew to maintain safe flight and landing.
Comply with this AD within the compliance times specified, unless already done.
Except as specified by paragraph (h) of this AD: At the applicable times specified in the “Compliance” paragraph of Boeing Alert Requirements Bulletin 757-25A0319 RB, dated March 24, 2023, do all applicable actions identified in, and in accordance with, the Accomplishment Instructions of Boeing Alert Requirements Bulletin 757-25A0319 RB, dated March 24, 2023.
Guidance for accomplishing the actions required by this AD can be found in Boeing Alert Service Bulletin 757-25A0319, dated March 24, 2023, which is referred to in Boeing Alert Requirements Bulletin 757-25A0319 RB, dated March 24, 2023.
Where the Compliance Time columns of the tables in the “Compliance” paragraph of Boeing Alert Requirements Bulletin 757-25A0319 RB, dated March 24, 2023, use the phrase “the original issue date of Requirements Bulletin 757-25A0319 RB,” this AD requires replacing those words with “the effective date of this AD.”
(1) The Manager, AIR-520 Continued Operational Safety Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or responsible Flight Standards Office, as appropriate. If sending information directly to the manager of the Continued Operational Safety Branch, send it to the attention of the person identified in paragraph (j)(1) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the responsible Flight Standards Office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by The Boeing Company Organization Designation Authorization (ODA) that has been authorized by the Manager, AIR-520 Continued Operational Safety Branch, FAA, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(1) For more information about this AD, contact Katherine Venegas, Aviation Safety Engineer, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone: 562-627-5353; email:
(2) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (k)(3) and (4) of this AD.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Boeing Alert Requirements Bulletin 757-25A0319 RB, dated March 24, 2023.
(ii) [Reserved]
(3) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; website
(4) You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
(5) You may view this material at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, visit
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to supersede Airworthiness Directive (AD) 2022-01-07, which applies to certain Airbus SAS Model A350-941 and -1041 airplanes. AD 2022-01-07 requires revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations. Since the FAA issued AD 2022-01-07, the FAA has determined that new or more restrictive airworthiness limitations are necessary. This proposed AD would retain the actions required by AD 2022-01-07 and also require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations, as specified in a European Union Aviation Safety Agency (EASA) AD, which is proposed for incorporation by reference (IBR). The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by December 11, 2023.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
• For EASA ADs identified in this NPRM, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
• You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th Street, Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
Dat Le, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone: 562-627-5357; email:
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Dat Le, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone: 562-627-5357; email:
The FAA issued AD 2022-01-07, Amendment 39-21895 (87 FR 5391, February 1, 2022) (AD 2022-01-07), for certain Airbus SAS Model A350-941 and -1041 airplanes. AD 2022-01-07 was prompted by an MCAI originated by EASA, which is the Technical Agent for the Member States of the European Union. EASA issued AD 2021-0209, dated September 15, 2021 (EASA AD 2021-0209) (which corresponds to FAA AD 2022-01-07), to correct an unsafe condition.
AD 2022-01-07 requires revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations. The FAA issued AD 2022-01-07 to address the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in a fuel tank explosion and consequent loss of the airplane.
Since the FAA issued AD 2022-01-07, EASA superseded AD 2021-0209 and issued EASA AD 2023-0162, dated August 17, 2023 (EASA AD 2023-0162) (referred to after this as the MCAI), for certain Airbus SAS Model A350-941 and -1041 airplanes. The MCAI states that new or more restrictive airworthiness limitations have been developed.
Airplanes with an original airworthiness certificate or original export certificate of airworthiness issued after June 1, 2023, must comply with the airworthiness limitations specified as part of the approved type design and referenced on the type certificate data sheet; this proposed AD therefore does not include those airplanes in the applicability.
The FAA is proposing this AD to address the unsafe condition on these products. You may examine the MCAI in the AD docket at
The FAA reviewed EASA AD 2023-0162. This service information specifies new or more restrictive airworthiness limitations related to fuel tank ignition prevention and fuel tank flammability reduction.
This proposed AD would also require EASA AD 2021-0209, which the Director of the Federal Register approved for incorporation by reference as of March 8, 2022 (87 FR 5391, February 1, 2022).
This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in
This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would retain the requirements of AD 2022-01-07. This proposed AD would require revising the existing maintenance or inspection
This proposed AD would require revisions to certain operator maintenance documents to include new actions (
In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate EASA AD 2023-0162 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2023-0162 through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2023-0162 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2023-0162. Service information required by EASA AD 2023-0162 for compliance will be available at
The FAA's process of incorporating by reference MCAI ADs as the primary source of information for compliance with corresponding FAA ADs has been limited to certain MCAI ADs (primarily those with service bulletins as the primary source of information for accomplishing the actions required by the FAA AD). However, the FAA is now expanding the process to include MCAI ADs that require a change to airworthiness limitation documents, such as airworthiness limitation sections.
For these ADs that incorporate by reference an MCAI AD that changes airworthiness limitations, the FAA requirements are unchanged. Operators must revise the existing maintenance or inspection program, as applicable, to incorporate the information specified in the new airworthiness limitation document. The airworthiness limitations must be followed according to 14 CFR 91.403(c) and 91.409(e).
The previous format of the airworthiness limitation ADs included a paragraph that specified that no alternative actions (
The FAA estimates that this AD, if adopted as proposed, would affect 31 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:
The FAA has determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate.
The FAA estimates the total cost per operator for the new proposed actions to be $7,650 (90 work-hours × $85 per work-hour).
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would 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.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) by December 11, 2023.
This AD replaces AD 2022-01-07, Amendment 39-21895 (87 FR 5391, February 1, 2022) (AD 2022-01-07).
This AD applies all Airbus SAS Model A350-941 and -1041 airplanes, certificated in any category, with an original airworthiness certificate or original export certificate of airworthiness issued on or before June 1, 2023.
Air Transport Association (ATA) of America Code 05, Time Limits/Maintenance Checks.
This AD was prompted by a determination that new or more restrictive airworthiness limitations are necessary. The FAA is issuing this AD to address the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in a fuel tank explosion and consequent loss of the airplane.
Comply with this AD within the compliance times specified, unless already done.
This paragraph restates the requirements of paragraph (g) of AD 2022-01-07, with no changes. For airplanes with an original airworthiness certificate or original export certificate of airworthiness issued on or before June 30, 2021: Except as specified in paragraph (h) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, European Union Aviation Safety Agency (EASA) AD 2021-0209, dated September 15, 2021 (EASA AD 2021-0209). Accomplishing the revision of the existing maintenance or inspection program required by paragraph (j) of this AD terminates the requirements of this paragraph.
This paragraph restates the exceptions specified in paragraph (h) of AD 2022-01-07, with no changes.
(1) The requirements specified in paragraphs (1) and (2) of EASA AD 2021-0209 do not apply to this AD.
(2) Paragraph (3) of EASA AD 2021-0209 specifies revising “the AMP [aircraft maintenance program]” within 12 months after its effective date, but this AD requires revising the existing maintenance or inspection program, as applicable, to incorporate the “limitations, tasks and associated thresholds and intervals” specified in paragraph (3) of EASA AD 2021-0209 within 90 days after March 8, 2022 (the effective date of AD 2022-01-07).
(3) The initial compliance time for doing the tasks specified in paragraph (3) of EASA AD 2021-0209 is at the applicable “associated thresholds” specified in paragraph (3) of EASA AD 2021-0209, or within 90 days after March 8, 2022 (the effective date of AD 2022-01-07), whichever occurs later.
(4) The provisions specified in paragraphs (4) and (5) of EASA AD 2021-0209 do not apply to this AD.
(5) The “Remarks” section of EASA AD 2021-0209 does not apply to this AD.
This paragraph restates the requirements of paragraph (i) of AD 2022-01-07, with no changes. Except as required by paragraph (j) of this AD, after the maintenance or inspection program has been revised as required by paragraph (g) of this AD, no alternative actions (
Except as specified in paragraph (k) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, EASA AD 2023-0162, dated August 17, 2023 (EASA AD 2023-0162). Accomplishing the revision of the existing maintenance or inspection program required by this paragraph terminates the requirements of paragraph (g) of this AD.
(1) This AD does not adopt the requirements specified in paragraphs (1) and (2) of EASA AD 2023-0162.
(2) Where paragraph (3) of EASA AD 2023-0162 specifies “Within 12 months after the effective date of this AD, revise the AMP,” this AD requires replacing those words with “Within 90 days after the effective date of this AD, revise the existing maintenance or inspection program, as applicable.”
(3) The initial compliance time for doing the tasks specified in paragraph (3) of EASA AD 2023-0162 is at the applicable “limitations” and “associated thresholds” as incorporated by the requirements of paragraph (3) of EASA AD 2023-0162, or within 90 days after the effective date of this AD, whichever occurs later.
(4) This AD does not adopt the provisions specified in paragraphs (4) and (5) of EASA AD 2023-0162.
(5) This AD does not adopt the “Remarks” section of EASA AD 2023-0162.
After the existing maintenance or inspection program has been revised as required by paragraph (j) of this AD, no alternative actions (
The following provisions also apply to this AD:
(1)
(2)
For more information about this AD, contact Dat Le, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone: 562-627-5357; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(3) The following service information was approved for IBR on [DATE 35 DAYS AFTER PUBLICATION OF THE FINAL RULE].
(i) European Union Aviation Safety Agency (EASA) AD 2023-0162, dated August 17, 2023.
(ii) [Reserved]
(4) The following service information was approved for IBR on March 8, 2022 (87 FR 5391, February 1, 2022).
(i) European Union Aviation Safety Agency (EASA) AD 2021-0209, dated September 15, 2021.
(ii) [Reserved]
(5) For EASA AD 2023-0162 and EASA AD 2021-0209, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
(6) You may view this material at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th Street, Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
(7) You may view this material at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, visit
Federal Trade Commission.
Regulatory review; request for public comment.
As part of the Commission's systematic review of all FTC rules and guides, the Federal Trade Commission (“FTC” or “Commission”) seeks public comment on the overall costs, benefits, necessity, and regulatory and economic impact of its Labeling Requirements for Alternative Fuels and Alternative Fueled Vehicles (“Alternative Fuels Rule” or “Rule”).
Comments must be received on or before December 26, 2023.
Interested parties may file a comment online or on paper, by following the instructions in the Request for Comment part of the
Hampton Newsome (202-326-2889), Attorney, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW, Washington, DC 20580.
The Energy Policy Act of 1992 (“EPAct 92” or “Act”) established federal programs to encourage the development of alternative fuels and alternative fueled vehicles (“AFVs”). Section 406(a) of the Act directs the Commission to establish uniform labeling requirements for alternative fuels and AFVs. Under the Act, such labels must provide “appropriate information with respect to costs and benefits [of alternative fuels and AFVs], so as to reasonably enable the consumer to make choices and comparisons.” The required labels must be “simple and, where appropriate, consolidated with other labels providing information to the consumer.”
In response, the Commission published the Alternative Fuels Rule in 1995.
The Commission systematically reviews all its rules and guides to: (1) examine their efficacy, costs, and benefits; and (2) determine whether to retain, modify, or rescind them. The Commission completed its most recent Rule review a decade ago (78 FR 23832 (April 23, 2013)). During that review, the Commission consolidated the Rule's AFV requirements with fuel economy labels required by EPA and eliminated labeling requirements for used AFVs. With this publication, the Commission commences a new review.
As part of this review, the Commission seeks comment on the current Alternative Fuels Rule. Among other things, commenters should address the economic impact of, and the continuing need for the Rule; the Rule's benefits to alternative fuel and AFV purchasers; and burdens the Rule places on firms subject to its requirements. Additionally, the Commission seeks comment on specific issues related to electric vehicle charging stations (Section III.) and responses to other questions about the Rule (Section IV.).
Given the proliferation of electric vehicles (“EVs”) in the marketplace, the Commission specifically seeks comment on the Rule's labeling requirements for electric vehicle dispensing systems (
(1) Does the Rule's current label for EV charging stations help consumers make choices and comparisons when they are seeking to charge their vehicles? Can the label be “consolidated with other labels providing information to the consumer?” If so, which labels?
(2) Is there any research about how consumers understand or interpret information at EV charging stations, including the FTC label? Is there evidence of consumer confusion related to the use of charging stations in the market now, including the use of the FTC label?
(3) Should the Commission make any changes to the content of the current EV charging station label? If so, what changes should the Commission make? Is there any information on the label that is unnecessary? For example, should the Rule continue to require a disclosure indicating whether the station is conductive or inductive? Is there any other information not covered
(4) Should the Rule require the disclosure of kilowatt capacity in a different way on the label (
(5) Should the label include information about the station's connectors (
(6) Should the Commission consider a different format for the label? For instance, should the Commission adopt a labeling format consistent with the FTC's Lighting Facts label for light bulbs (16 CFR part 305) or the Food and Drug Administration's “Nutrition Facts” label (21 CFR part 101) (
(7) Should the Rule specifically allow the label to appear on the charging station's screen? If so, what requirements should the Rule include to ensure the label is visible to consumers using the station?
The Commission solicits comment on the following questions related to the Rule:
(1) Is there a continuing need for the Rule as currently promulgated? Why or why not?
(2) What benefits has the Rule provided to consumers? What evidence supports the asserted benefits?
(3) What modifications, if any, should the Commission make to the Rule to increase its benefits to consumers?
(a) What evidence supports your proposed modifications?
(b) How would these modifications affect the costs and benefits of the Rule for consumers?
(c) How would these modifications affect the costs and benefits of the Rule for businesses, particularly small businesses?
(4) What impact, if any, has the Rule had on the flow of appropriate information to consumers about alternative fuels?
(5) What significant costs has the Rule imposed on consumers? What evidence supports the asserted costs?
(6) What modifications, if any, should be made to the Rule to reduce the costs imposed on consumers?
(a) What evidence supports your proposed modifications?
(b) How would these modifications affect the costs and benefits of the Rule for consumers?
(c) How would these modifications affect the costs and benefits of the Rule for businesses, particularly small businesses?
(7) Please provide any evidence that has become available since the last review concerning consumer perception of non-liquid alternative fuel labeling. Does this new information indicate that the Rule should be modified? If so, why, and how? If not, why not?
(8) Please provide any evidence that has become available since the last review concerning consumer interest in alternative fuel. Does this new information indicate that the Rule should be modified? If so, why, and how? If not, why not?
(9) What benefits, if any, has the Rule provided to businesses, and in particular to small businesses? What evidence supports the asserted benefits?
(10) What modifications, if any, should be made to the Rule to increase its benefits to businesses, and particularly to small businesses?
(a) What evidence supports your proposed modifications?
(b) How would these modifications affect the costs and benefits of the Rule for consumers?
(c) How would these modifications affect the costs and benefits of the Rule for businesses?
(11) What significant costs, including costs of compliance, has the Rule imposed on businesses, particularly small businesses? What evidence supports the asserted costs?
(12) What modifications, if any, should be made to the Rule to reduce the costs imposed on businesses, particularly on small businesses?
(a) What evidence supports your proposed modifications?
(b) How would these modifications affect the costs and benefits of the Rule for consumers?
(c) How would these modifications affect the costs and benefits of the Rule for businesses?
(13) What evidence is available concerning the degree of industry compliance with the Rule? Does this evidence indicate that the Rule should be modified? If so, why, and how? If not, why not?
(14) Are any of the Rule's requirements no longer needed? If so, explain. Please provide supporting evidence.
(15) What modifications, if any, should be made to the Rule to account for changes in relevant technology, including development of new alternative fuels, or economic conditions?
(a) What evidence supports the proposed modifications?
(b) How would these modifications affect the costs and benefits of the Rule for consumers and businesses, particularly small businesses?
(16) Does the Rule overlap or conflict with other federal, state, or local laws or regulations? If so, how?
(a) What evidence supports the asserted conflicts?
(b) With reference to the asserted conflicts, should the Rule be modified? If so, why, and how? If not, why not?
(c) Is there evidence concerning whether the Rule has assisted in promoting national uniformity with respect to rating, certifying, and posting the rating of non-liquid alternative fuels? If so, please provide that evidence.
(17) Are there foreign or international laws, regulations, or standards with respect to rating, certifying, and posting the rating of non-liquid alternative fuels that the Commission should consider as it reviews the Rule? If so, what are they?
(a) Should the Rule be modified to harmonize with these foreign or international laws, regulations, or standards? If so, why, and how? If not, why not?
(b) How would such harmonization affect the costs and benefits of the Rule for consumers and businesses, particularly small businesses?
(18) Are there any specific changes that should be made to the hydrogen label?
(19) Should the Commission revisit its 2013 decision to consolidate FTC labels for AFVs with the fuel economy labels required by EPA? If so, what Rule changes should the Commission consider?
You can file a comment online or on paper. For the FTC to consider your comment, we must receive it on or before December 26, 2023. Write “Regulatory Review for Alternative Fuels Rule, Matter No. R311002” on your comment.
Because of the agency's heightened security screening, postal mail addressed to the Commission will be subject to delay. As a result, we strongly encourage you to submit your comments online through
If you file your comment on paper, write “Regulatory Review for Alternative Fuels Rule, Matter No. R311002” on your comment and on the envelope, and mail it to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Mail Stop H-144 (Annex F), Washington, DC 20580.
Because your comment will be placed on the publicly accessible website at
Comments containing material for which confidential treatment is requested must be filed in paper form, clearly labeled “Confidential,” and comply with FTC Rule 4.9(c), 16 CFR 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request, and identify the specific portions of the comment to be withheld from the public record.
The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding, as appropriate. The Commission will consider all timely and responsive public comments that it receives on or before December 26, 2023. For information on the Commission's privacy policy, including routine uses permitted by the Privacy Act, see
By direction of the Commission.
Consumer Product Safety Commission.
Notice of proposed rulemaking.
The Danny Keysar Child Product Safety Notification Act, section 104 of the Consumer Product Safety Improvement Act of 2008 (CPSIA), requires the U.S. Consumer Product Safety Commission (Commission or CPSC) to promulgate consumer product safety standards for durable infant or toddler products. These standards are to be substantially the same as applicable voluntary standards, or more stringent than the voluntary standards if the Commission concludes that more stringent requirements would further reduce the risk of injury associated with the product. The Commission is proposing a safety standard for Infant and Infant/Toddler Rockers (rockers). The Commission is also proposing to amend CPSC's consumer registration requirements to add rockers as identified durable infant or toddler products and to amend CPSC's list of notice of requirements (NORs) to include rockers.
Submit comments by December 26, 2023.
Comments related to the Paperwork Reduction Act aspects of the marking, labeling, and instructional literature requirements of the proposed rule should be directed to the Office of Information and Regulatory Affairs, the Office of Management and Budget, Attn: CPSC Desk Officer, FAX: 202-395-6974, or emailed to
Other comments, identified by Docket No. CPSC-0046, may be submitted electronically or in writing:
Zachary S. Foster, Project Manager, Division of Human Factors, Directorate for Engineering Sciences, Consumer Product Safety Commission, 5 Research Place, Rockville, MD 20850; Telephone 301-987-2034; email:
Section 104(b) of the CPSIA, 15 U.S.C. 2056a(b), requires the Commission to: (1) examine and assess the effectiveness of voluntary consumer product safety standards for durable infant or toddler products in consultation with
Currently, no mandatory safety standard exists for infant rockers or infant/toddler rockers. There is a voluntary standard, however. In July 2014, ASTM International's (ASTM) Committee F15 on Consumer Products first published a voluntary standard for rockers—ASTM F3084-14,
Consistent with the consultation requirement in section 104(b)(1) of the CPSIA, CPSC staff has worked with the ASTM F15.18 subcommittee task group since 2013 to update the voluntary standard for rockers.
Section 104(d) of the CPSIA requires manufacturers of durable infant or toddler products to establish a product registration program and comply with CPSC's requirements under 16 CFR part 1130. Any product defined as a “durable infant or toddler product” in part 1130 must comply with the product registration requirements, as well as testing and certification requirements for children's products, as codified in 16 CFR parts 1107 and 1109. Section 104(f)(1) of the CPSIA defines a “durable infant or toddler product” as a “durable product intended for use, or that may be reasonably expected to be used, by children under the age of 5 years.” 15 U.S.C. 2056a(f)(1). Section 104(f)(2) of the CPSIA includes a list of categories of products that are durable infant or toddler products, including products similar to rockers, such as various infant chairs (highchairs, booster chairs, and hook-on chairs) and swings. 15 U.S.C. 2056a(f)(2).
Rockers are not included in the statutory list of durable infant or toddler products. As set forth in section V of the preamble, the statutory product list is not exhaustive. The Commission now proposes to amend part 1130 to include “Infant and Infant/Toddler Rockers” as durable infant or toddler products because they are intended for use, and may be reasonably expected to be used, by children under the age of 5 years; are analogous to other statutory and Commission-defined durable infant products, such as infant bouncers; and are commonly available for resale or “handed down” for use by other children.
The scope of this notice of proposed rulemaking (NPR) includes all infant rockers and all infant/toddler rockers within the scope of ASTM F3084-22, including multi-mode products with a rocker mode, with the addition of weight limits for each product and terminology to define “rocking” pursuant to the Commission's proposed modification to the standard definitions addressed below. The ASTM standard F3084-22 defines an infant rocker as a “freestanding product intended to support an occupant who has not developed the ability to sit up unassisted (approximately 0 to 6 months of age) in a seated, reclined position greater than 10° and to facilitate rocking by the occupant with the aid of the caregiver or by other means.” The ASTM standard defines an infant/toddler rocker as “a freestanding product intended to support an occupant in a seated, reclined position greater than 10° and to facilitate rocking by the occupant with the aid of the caregiver or by other means until the occupant is approximately 2
Products within scope of the NPR include:
• Infant rockers, marketed for infants up to approximately six months old,
• Infant/toddler rockers, marketed for children up to approximately 2.5 years old,
• Combination rocker/bouncers (bouncers with curved rocker legs),
• Combination swings/rockers (rockers that attach to a stationary swing base), and
• Other combination products, such as rocker/bouncer/stationary chair products.
Most rockers have a metal or plastic frame with a padded fabric seat. A few products, primarily from foreign direct shippers and hand crafters, have a wooden frame. Some products have a motorized rocking function, a vibration function, or sound functions, which are powered by batteries or an electrical cord with a plug. All rockers support a child in an inclined position (greater than 10 degrees from vertical) with certain infant/toddler rockers having adjustable seat backs to facilitate upright sitting as the child grows. Many products also feature an accessory bar with attached toys that are, or once the child has grown larger will be, within the child's reach. Certain products also have secondary use modes. For example, some products have a kickstand that can be deployed to keep the product stationary, while other products can be converted into a bouncer or swing. Many rockers have three-point crotch restraints consisting of a wide cloth crotch and short adjustable waist straps with plastic
Some items marketed as “rockers” are subject to the swing mandatory standard, 16 CFR part 1223, rather than the rocker standard, based on how the product moves in relation to a base or stand. Rockers are reclined seated products that move in their entirety, most commonly on curved legs, so as to rock an occupant forward and backward, while swings have a stationary base. Multi-mode items, such as rockers with curved legs that attach to a swing base, are subject to both the swing mandatory standard and the rocker voluntary standard. Some conventional bouncer seats are advertised as “rockers” because they rock up and down, but those products would not meet the definition of a “rocker” in either the ASTM standard or the NPR if the base is stationary. Bouncer seats must meet the bouncer seat mandatory standard in 16 CFR part 1229, while multi-mode items that are both rockers and bouncers are subject to both standards.
Rocking horse toys and similar items are out of scope for this rule because they do not meet the definition of a “rocker” in the ASTM standard or the NPR; such toys do not support the occupant in a seated, reclined position. Similarly, traditional children's rocking chairs with a straight, non-reclining back are not within the scope of the rule.
CPSC staff estimates that rocker sales reach 567,500 units per year, although this estimate is uncertain due to the industry practice of grouping rockers and combination products with non-rocker products into a single survey category. In January 2023, staff found that 25 percent of the bestselling products within the “infant bouncers and rockers” category of a major internet retailer website were rockers or combination rocker/bouncer products within scope of this proposed rule.
While new rockers are available from online general retail sites, brick and mortar baby specialty stores, and brick and mortar general retail stores including “big box” stores, used items are widely available on second-hand online sites, as well as in some thrift stores. Rockers range in price from $35 to $250 with an average price of about $110. The less expensive products tend to be smaller products without powered functions, while the more expensive rockers tend to be combination products (
Rockers are part of a broader group of products (which includes bouncers and swings) that provide support to infants who are initially unable to sit independently. Compared to other postures, sitting can provide infants an improved ability to explore objects with greater visual access to their environment, as well as increased social attention. While infants are sitting, as compared to other postures, caregivers also demonstrate a wider variety of interactions that allow infants to practice cognitive skills.
However, incident data confirms that some caregivers use rockers for brief or extended infant or toddler sleep, despite warnings that these products should not be used for sleep. As Tab A of Staff's NPR Briefing Package explains in greater detail, CPSC staff searched the Consumer Product Safety Risk Management System (CPSRMS)
Table 1 shows the number of incidents reported for each year during the period. Incident reporting is ongoing and the number of incidents—particularly for recent years—may change.
Table 2 provides age information for the victims in the 1,088 incidents.
Table 3 presents the age distribution of children under five years of age who suffered fatal or nonfatal injuries in the incidents from January 1, 2011 to November 7, 2022. All 11 fatalities and 70 nonfatal injuries involved victims less than one year old. Eight incidents involved victims less than four months old, including five of the 11 total fatalities.
Of the 11 fatalities during the period, nine involved infants being placed in the rocker for sleeping or napping. The incident reports indicate that in two of these incidents the infants were placed on their side in the rocker, and in one incident the rocker was damaged and was being supported by a shoe box. One fatality involved an infant being placed in a rocker with the seat back in the “upright/toddler” position for approximately four hours. One fatality involved an infant being placed in a rocker on top of an adult bed without a caregiver present for approximately 20-30 minutes. Six of the 11 fatalities indicate that the restraints were not used. Six of the 11 fatalities indicate that pillows and/or blankets were placed in the product with the infant over the infant for warmth/comfort, under the infant for comfort/support, or both. In one of these incidents a blanket was found covering the infant's face.
Staff identified hazard patterns for all 1,088 reported incidents associated with rockers.
More than 700 of the incidents (64 percent) involved hardware-related problems such as issues related to lock and latch hardware, hinge hardware, seat mounting hardware, or other parts breaking.
Two hundred and seventy-five of the incidents (25 percent) cited rockers wobbling, collapsing, or tipping over. Tipover-related incidents comprised more than 64 percent of all reported injuries. At least 49 of the tipover-related incidents involved a rocker tipping forward. Sixty of the 275 stability-related incidents resulted in head injury. Four of the 275 stability-related incidents resulted in other upper body injuries.
Thirty-seven of the incidents (3 percent) cited rockers having electrical issues, mostly batteries leaking. Thirty-six of the incidents (3 percent), involving 17 injuries, cited issues related to the rocker's design, such as toy bar positioning, slippery fabric seat pads, misaligned screws, pinch points, defective battery compartments, and seat back tubes not staying in sockets.
From January 1, 2011 through August 30, 2023, CPSC issued one recall of two multi-mode products in which four fatalities were reported and one issued warning regarding rockers. Incidents described in the press releases for the multi-mode product recall and the warning involved infants being placed to sleep on their backs and unrestrained in inclined rocking products but found on their stomachs.
The ASTM F15.18 Subcommittee on Cribs, Toddler Beds, Play Yards, Bassinets, Cradles, and Changing Tables first published the voluntary standard for rockers in 2014, as ASTM F3084-14,
Since 2014, ASTM has revised and updated the voluntary standard four times to address safety issues. In 2016, ASTM modified the warning requirements for use of shoulder straps provided as part of the restraint system. In 2018, ASTM made miscellaneous changes. In 2020, ASTM added language to the marking, labeling, and instructional literature requirement that addressed battery operated products and removed references to the CPSIA. In May 2022, ASTM modified warning language to state that rockers are not intended for sleep or unsupervised use, and to instruct consumers to move sleeping infants to a firm, flat sleep surface.
Based on CPSC staff's Engineering and Human Factors assessments, Tabs C and D of Staff's NPR Briefing Package, respectively, CPSC concludes that several ASTM F3084-22 tests are adequate to address rocker hazards, specifically: (1) the sideward and rearward stability tests for infant and infant/toddler rockers to address product sideward and rearward tipover; (2) the structural integrity test to address hardware failures and collapse hazard; (3) the toy bar integrity test to address toy bars snapping apart; and (4) the restraint system test to ensure the heaviest intended occupant is safely secure. Therefore, the Commission proposes in the NPR to adopt the following ASTM tests:
Section 6.3.2 of ASTM F3084-22 specifies performance requirements for rockers' sideward and rearward stability. In the test procedure, a CAMI Infant Dummy is placed in the rocker, which is then positioned in the most unfavorable sideward or rear position on a test surface inclined at 20 degrees. To pass the test, the rocker must not tip over in this position. CPSC testing indicates this test is adequate to address the risk to occupants from sideways or backwards tip-over of the rocker.
The ASTM standard includes a dynamic load test (see section 7.6.1), a static load test (see section 7.6.2), and a disassembly/collapse test (see section 6.6). Section 6.5 specifies that rockers shall not break or create a hazardous condition after these tests are applied. CPSC assess that these tests adequately test the structural strength of rockers.
To prevent caregivers from attempting to raise the rocker by the toy bar, section 6.7 of ASTM F3084-22 requires that toy bars must either be strong enough to not detach when used as a handle or must break free from the rocker when a caregiver attempts to use the toy bar as a handle. CPSC considers these requirements—which are identical to the ASTM F2167-22 toy bar attachment test requirements for infant bouncers, codified in 16 CFR part 1229—adequate to address the hazard of toy bars snapping due to use as a handle.
Section 6.2 of ASTM F3084-22 requires both a waist and crotch restraint to secure a child in a rocker. The test requires that the restraint system anchors shall not separate from the attachment points when subjected to a force of 45 lb. that is maintained for 10 seconds. The force of 45 lb. is approximately 25 percent greater than the 36 lb. weight of a 2.5-year-old male child in the 95th percentile. These requirements are identical to the restraint system test requirements for infant bouncers under 16 CFR part 1229, and adequately ensure the safety of the heaviest intended occupant.
While the foregoing tests in ASTM F3084-22 appear adequate to address rocker hazards, CPSC finds, subject to public comment, that several revisions to the current voluntary standard are necessary to adequately address hazards to infants and toddlers associated with rockers.
First, no provision in ASTM F3084-22 addresses the risk of suffocation in rockers due to concavity or firmness issues. In 2022, CPSC contracted with Boise State University (BSU) to research and analyze the death or injury risks associated with infant seated products and to recommend possible requirements to improve safety. A research team led by Dr. Erin Mannen submitted their report (BSU Report) to CPSC in June 2023. The BSU Report recommends that infant seated products should have a firmness similar to that of a crib mattress, should not envelop the infant's head or face, and should provide sufficient space for the infant's head to rotate without contacting the product side walls.
The BSU Report states that the concavity (
The BSU Report outlines a recommended concavity test. The test consists of calculating the concavity (radius) formed at the intended occupant's head position with a 7.65-pound newborn-sized test device in the seat. With the device in place, the width of the seat is then measured from side to side at the intended infant head position. The depth is also measured from the midline of the infant's head position to the seat back surface. With these measurements, the radius is then calculated to determine the concavity.
The BSU Report states that a seated product with a concavity radius greater than 22 cm (8.66 in.) would protect against mouth and nose contact with sides of the products during a normal head rotation. Therefore, the BSU Report recommends a concavity radius equal to or greater than 22 cm (8.66 in.), which would make it easier for infants to free their mouth and nose from face contact if they roll into a prone position within the product. After conducting testing, CPSC staff similarly found that a concavity radius of less than 22 cm (8.66 in) would increase the risk of an infant's mouth or nose coming into contact with the side of a product. The 22 cm (8.66 in) radius is three times the head radius of a 95th percentile six-month-old male. The minimum 22 cm (8.66 in) radius requirement therefore incorporates a three times safety factor to prevent the infant's face from contacting the side of the rocker. The Commission invites comment on the proposed concavity requirement to address the suffocation hazard by adopting the BSU Report's recommended concavity test for rockers.
The BSU Report states that all seated infant products should be sufficiently firm and flat to prevent the infant's mouth and nose from making contact with the product during supine lying with a normal head rotation. The BSU Report recommends that infant rocker firmness should be equivalent to the crib mattress firmness requirement, confirming that the minimum displacement of 11mm (0.43 in) with a 2.25-pound load would meet the crib mattress firmness requirement. Based on staff's own testing as well as the BSU Report, CPSC staff advises that adopting the BSU Report firmness test for rockers would address a suffocation risk. Staff further found that inserting a foam backing between the fabric of the rocker and the frame would allow the rocker to pass the firmness test, suggesting the feasibility of complying with the BSU Report's firmness recommendation.
The firmness requirement and test method recommended in the BSU Report addresses the hazards of soft surfaces designed into rockers, such as pillows or hammock designs, that can envelope an infant's face in the prone position or with the head turned to the side position. Providing equivalent firmness around the occupant's head will help to ensure that rockers have the same baseline safety as crib mattresses in terms of preventing a child's nose and mouth from being obstructed by the support surface. The Commission proposes to adopt the BSU Report's recommended firmness test to strengthen the rockers standard to address a suffocation hazard that ASTM F3084-22 currently does not address and invites comment on this proposal.
Section 6.3 of ASTM F3084-22 specifies performance requirements for forward stability in infant rockers intended to support an occupant who has not developed the ability to sit up unassisted. The test procedure for forward stability applies a tipping moment to the product in its most upright position to simulate a 21 lb. infant leaning forward in the rocker.
This forward stability requirement for infant rockers is not as stringent as the forward stability requirements for infant bouncers in 16 CFR part 1229, which provides greater protection for larger infants by applying the test weight one inch further from the crotch post (
In addition, it appears the forward stability test for infant/toddler rockers in ASTM F3084-22 does not adequately address occupants larger than six-months-old, as most of the incidents of infant/toddler rockers tipping over involved an occupant that ranged from seven months to 12 months of age.
As noted, 36 of the 1,088 reported rocker incidents within the study period involved leaking batteries. Twelve of the leaking battery incidents reported corroded or rusty battery compartments.
ASTM F3084-22 does not specify requirements to address battery or electrical issues associated with rockers. CPSC's bouncer rule, codified at 16 CFR part 1229, does include requirements to address such electrical hazards. Specifically, the bouncer rule's electrical requirements include: (1) each battery compartment or area around the battery compartment is marked to show the correct battery polarity, size, and voltage; (2) each battery compartment provides a means to contain battery leaks; (3) design protection from the possibility of a battery being charged when it is installed in the rocker; (4) the surfaces of any accessible electrical
The bouncer rule in 16 CFR part 1229 includes a drop test to evaluate the durability of infant bouncers in instances of an inadvertent drop or the product impacting a hard surface. The test drops a bouncer from a height of 36 inches once on each of six different planes (top, bottom, front, rear, left side, and right side). ASTM F3084-22 does not contain a similar test, which reduces the protectiveness of its requirements.
CPSC staff identified one near-strangulation incident involving a rocker in which an eight-month-old male crawled under the product, at which time his neck became entangled in the tethered straps located behind the rocker.
Warning about a hazard is a less effective method of addressing the hazard than either designing the hazard out of a product or guarding consumers from the hazard. Therefore, when a standard relies on warnings to address a hazard, it is particularly important that the warning statements are noticeable, understandable, and motivational. The primary U.S. voluntary consensus standard for product safety signs and labels, ANSI Z535.4,
• a description of the hazard;
• information about the consequences of exposure to the hazard; and
• instructions regarding appropriate hazard-avoidance behaviors.
CPSC staff analyzed literature, incident data, and consumer feedback, concluding that the rocker warnings specified in ASTM F3084-22 do not adequately address the identified product hazards because the warning requirements insufficiently address the use of soft bedding in rockers and the use of rockers for sleep, fail to address potential hazards of prematurely born infants using rockers, do not sufficiently outline label visibility and location requirements, and have typographical errors.
Adding these warnings to the product literature is also necessary to address adequately the hazards associated with rockers.
In light of the substantial record of deaths and injuries with infant rockers and infant/toddler rockers, as summarized in section III above, the Commission issues the NPR under section 104 of the CPSIA to propose a mandatory consumer product safety standard for rockers. The Commission proposes to incorporate by reference ASTM F3084-22, with modifications to make the standard more stringent to further reduce the risk of injury associated with the use of rockers. The objective of this proposed rule is to address the known hazards of infant rockers and infant/toddler rockers, which include positional asphyxia, disassembly and collapse, hardware failures such as screws coming out and parts breaking off, and falls from elevated surfaces. The NPR contains more stringent performance and labeling requirements than the voluntary standard, improving the test
Section 14 of the CPSA establishes requirements for product certification and testing. Products subject to a consumer product safety rule under the CPSA, or to a similar rule, ban, standard, or regulation under any other act enforced by the Commission, must be certified as complying with all applicable CPSC-enforced requirements. 15 U.S.C. 2063(a). Certification of children's products subject to a children's product safety rule must be based on testing conducted by a CPSC-accepted third party conformity assessment body. 15 U.S.C. 2063(a)(2). The Commission must publish a notice of requirements (NOR) for the accreditation of third-party conformity assessment bodies to assess conformity with a children's product safety rule to which a children's product is subject. 15 U.S.C. 2063(a)(3). The proposed rule for 16 CFR part 1240,
16 CFR part 1112 establishes requirements for accreditation of third-party conformity assessment bodies to test for conformity with a children's product safety rule in accordance with section 14(a)(2) of the CPSA. Part 1112 also codifies all of the NORs issued previously by the Commission. To meet the requirement that the Commission issue an NOR for the rocker standard, the Commission proposes as part of the NPR to add rockers to the list of children's product safety rules for which CPSC has issued an NOR.
Testing laboratories applying for acceptance as a CPSC-accepted third party conformity assessment body to test to the new standard for rockers would be required to meet the third-party conformity assessment body accreditation requirements in part 1112. When a laboratory meets the requirements as a CPSC-accepted third party conformity assessment body, the laboratory can apply to CPSC to have 16 CFR part 1240,
In addition to requiring the Commission to issue safety standards for durable infant or toddler products, section 104 of the CPSIA directs the Commission to issue a rule requiring that manufacturers of durable infant or toddler products establish a program for consumer registration of those products. 15 U.S.C. 2056a(d).
Section 104(f) of the CPSIA defines the term “durable infant or toddler product” as “a durable product intended for use, or that may be reasonably expected to be used, by children under the age of 5 years,” and lists 12 product categories. 15 U.S.C. 2056a(f). The product categories listed in section 104(f)(2) of the CPSIA—which do not include rockers—represent a non-exhaustive list of durable infant or toddler product categories. 74 FR 68668, 68669 (Dec. 29, 2009).
As the CPSIA directs, CPSC's consumer registration rule at 16 CFR part 1130 requires each manufacturer of a durable infant or toddler product to provide a postage-paid consumer registration form with each product; keep records of consumers who register their products with the manufacturer; and permanently place the manufacturer's name and certain other identifying information on the product. The Commission here proposes to amend part 1130 to include “Infant and Infant/Toddler Rockers,” as defined in ASTM F3084-22 with modifications, as durable infant or toddler products because they are: (1) intended for use, and may be reasonably expected to be used, by children under the age of 5 years; (2) similar to the other seated products listed in section 104(f)(2) of the CPSIA, such as swings, booster chairs, and activity centers; and (3) durable, as reflected by the fact that they are commonly available for resale or “handed down” for use by other children.
The Commission proposes incorporating ASTM F3084-22 by reference, with modifications to further reduce the risk of injury associated with rockers. The Office of the Federal Register (OFR) has regulations concerning incorporation by reference. 1 CFR part 51. For a proposed rule, agencies must discuss in the preamble of the NPR ways that the materials the agency proposes to incorporate by reference are reasonably available to interested persons or how the agency worked to make the materials reasonably available. In addition, the preamble of the proposed rule must summarize the material. 1 CFR 51.5(a).
In accordance with the OFR's requirements, section IV.B of the preamble summarizes the provisions of ASTM F3084-22 that the Commission proposes to incorporate by reference. ASTM F3084-22 is copyrighted. By permission of ASTM, the standard can be viewed as a read-only document during the comment period of the NPR, at:
The Administrative Procedure Act (APA) generally requires that the effective date of a rule be at least 30 days after publication of the final rule. 5 U.S.C. 553(d). The Commission proposes a 180-day effective date for this rule. The rule would apply to all rockers manufactured after the effective date. 15 U.S.C. 2058(g)(1). This amount of time is typical for other CPSIA section 104 rules.
The RFA requires that agencies review a proposed rule for its potential economic impact on small entities, including small businesses. Section 603 of the RFA generally requires that agencies prepare an initial regulatory flexibility analysis (IRFA) and make the analysis available to the public for comment when the agency publishes an NPR. 5 U.S.C. 603. The IRFA must describe the impact of the proposed rule on small entities and identify significant alternatives that accomplish the statutory objectives and minimize any significant economic impact of the proposed rule on small entities. CPSC staff has addressed these issues in Tab F of Staff's NPR Briefing Package, and they are presented briefly below.
Section I of the preamble explains why CPSC is considering issuing a mandatory rule for rockers and provides a statement of the objectives of, and legal basis for, the proposed rule. Section II of the preamble describes the types of products within the scope of the NPR, the market for rockers, and the use of rockers in the U.S.
The requirements in the NPR are more stringent than the ASTM voluntary standard for rockers. Relatively few rockers for sale in the U.S. are marketed as ASTM-compliant. Only two out of approximately 50 current suppliers to the U.S. market are members of the JPMA certification testing program for rockers, which provides third party testing for compliance with CPSC and ASTM standards. JPMA currently has four member companies that are certified specifically for rockers, two of which do not currently have a rocker for sale in the U.S.
Of the 13 U.S. manufacturers and importers of rockers that currently supply the U.S. market, four are small U.S. manufacturers and five are small U.S. importers based on Small Business Administration (SBA) size standards, for a total of nine small U.S. entities to which the NPR would apply. The rest of the suppliers, about 37, are foreign-based manufacturers and direct shippers.
The NPR would not mandate any requirements or have direct economic impact on retailers of any size because products manufactured or imported before the effective date of the final rule could still be sold. Indirect impacts on retailers could occur in the longer term if rockers are removed from the market rather than redesigned to meet the requirements of this standard, or if an increased price of compliant rockers reduces demand.
The NPR could have a significant impact on nine small U.S. importers and manufacturers whose products may not be consistent with the NPR requirements. CPSC considers one percent of annual revenue from sales to be a potentially “significant” economic impact.
Most rocker products on the market would require redesign to meet the proposed rule and would need new labeling. The extent of the required modifications would depend on whether the products already meet the ASTM standard for rockers or, for multi-mode products, the similar mandatory standards for bouncer chairs or swings. Manufacturers whose products do not meet the performance requirements in the NPR will need to redesign the products at a cost that CPSC staff estimates to be approximately $80,000 per model or remove the products from the market.
Staff anticipates that most models would require at least some redesign to meet the requirements of the standard. However, some redesigns could be relatively inexpensive, such as changing the seat angle or modifying the restraints. Products that currently meet all physical performance requirements might only need the new warning sticker or a stamped-on label. Combination products that are compliant with the mandatory bouncer chair standard or the swing standard and have no hanging restraint straps may require minimal redesign or none at all.
Staff estimates the total cost of redesign for the 17 models supplied by U.S. small businesses to be $1.36 million (17 models × $80,000), though the cost could be less if some models do not require redesign, or only modest redesign. The cost of redesign could also be spread across multiple models because models from the same manufacturer can be similar in structural design and dimensions with different fabrics or toy bars. Similarly, one model from a foreign manufacturer may be sold by multiple direct shippers and small importers under different brand names. The ongoing cost of compliance after the first year that the rule is in effect is expected to be minimal for materials and labor because the redesigned products would likely use the same types of materials and production methods as current products.
Substitutes for rockers are available, so if the costs of compliance were to raise the price of rockers above the price of what parents perceive as reasonable substitutes, such as swings or bouncer seats, there could be a decline in rocker sales as a result of this rule. However, the impact on suppliers of reduced rocker sales could be offset by an increase in sales of these competing products if sold by the same companies.
Based on staff's analysis, additional testing costs beyond what suppliers are already spending to comply with other CPSC standards would be less than $1,000 per year per model. Testing costs would likely vary depending on where the testing takes place and whether volume discounts apply. If products are sold to a global market, those products would require testing to satisfy both U.S. and foreign standards at the same time, for a bundled test price. Multi-mode products that are already required to demonstrate compliance with the bouncer or swing mandatory standard through third-party testing may experience a smaller incremental cost for testing only the rocker mode. Overall, staff estimates the testing costs for the industry as a whole, including foreign and large businesses supplying the U.S. market, to be $80,000 per year (80 models × $1,000 per model for testing).
No adverse impact on testing laboratories should occur as a result of a final rule for rockers. CPSC estimates the required testing instruments and devices to cost in the range of $500 to $1,000. The cost will be on the lower end of this range if the laboratory already has devices such as force gauges, which are common. The 22 labs that are currently accredited to test to the mandatory bouncer standard would likely easily meet the accreditation requirements to test rockers given the similarity of the requirements and test methods. Furthermore, most laboratories are not small businesses. Companies in the lab testing industry include companies with hundreds of locations, including Asia and Europe, and thousands of employees.
The Commission considered several alternatives to reduce burden on small entities. Exempting small entities from this rule or parts of this rule would not be consistent with the applicable statutes; the CPSA allows CPSC to provide “small batch” exemptions to testing requirements or alternative requirements for some mandatory safety standards, such as the standard for bicycle helmets (16 CFR part 1203), but the CPSIA section 104 requirements for durable infant or toddler products do not provide for such exemptions. Nevertheless, several alternatives to the NPR could have a different impact on small businesses. The Commission requests comment on these alternatives or other alternatives that could reduce the potential burden on small entities.
While not establishing a safety standard for rockers would minimize the regulatory impact on small businesses, failing to establish a mandatory standard would fail to reduce injuries and deaths from the known hazards. Establishing a mandatory standard satisfies the mandate in section 104 of the CPSIA requiring the Commission to create mandatory safety standards for all durable infant or toddler products.
The incident data for rockers, discussed in section III of the preamble, reflect that all of the fatalities and most of the injuries were to children less than one year old. While CPSC could consider excluding from the scope of the rule those rockers that are marketed for use only by children over one year old, this would not significantly reduce the impact on small businesses, as there are very few rockers on the market solely for toddlers. Such limitation in scope also would not effectively address the hazards because rockers marketed for older children foreseeably could still be used for infants. Further, the incident data reflects some non-fatal injuries to children over one year old.
The Commission considered proposing to incorporate by reference ASTM F3084-22, without any modifications. While this would reduce the impact on two U.S. small businesses that claim to be compliant with the ASTM standard, the overall impact on U.S. small businesses, as compared to the Commission's proposed rule, would not be significant. Further, as discussed above, ASTM F3084-22 does not adequately address the suffocation and fall hazards rockers present.
An effective date earlier than 180 days after publication could provide the benefits of the NPR more quickly but would increase the burden on small businesses by requiring them to more quickly redesign and test products. An earlier effective date could result in temporary shortages of rockers because the testing labs would need to receive accreditation before they could test for compliance to the new performance requirements. A later effective date could reduce impact on small businesses but would delay addressing the known hazards, including life-threatening risks.
The Commission's regulations address whether the agency is required to prepare an environmental assessment or an environmental impact statement. Under these regulations, certain categories of CPSC actions normally have “little or no potential for affecting the human environment,” and therefore do not require an environmental assessment or an environmental impact statement. Safety standards providing requirements for products come under this categorical exclusion. 16 CFR 1021.5(c)(1). The NPR falls within the categorical exclusion.
This proposed rule for infant rockers contains information collection requirements that are subject to public comment and review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). In this document, pursuant to 44 U.S.C. 3507(a)(1)(D), we set forth:
• a title for the collection of information;
• a summary of the collection of information;
• a brief description of the need for the information and the proposed use of the information;
• a description of the likely respondents and proposed frequency of response to the collection of information;
• an estimate of the burden that shall result from the collection of information; and
• notice that comments may be submitted to the OMB.
Our estimate is based on the following:
ASTM F3084-22 requires that the name and the place of business (city, state, and mailing address, including zip code) or telephone number of the manufacturer, distributor, or seller be marked clearly and legibly on each product and its retail package. It also requires a code mark or other means that identifies the date (month and year, as a minimum) of manufacture.
An estimated 13 U.S. firms supply rockers to the domestic market, as well as seven foreign manufacturers and about 30 foreign direct shippers, for a total of about 50 suppliers. We estimate the time required to respond to the collection is about one hour per model. Approximately 80 models of rockers were available for sale on the U.S. market as of March 2023. Therefore, each supplier is estimated to respond 1.6 times (80 models/50 suppliers = 1.6 responses). The estimated annual burden associated with the collection is 50 respondents × 1.6 responses × 1 hour per response = 80 hours.
CPSC estimates that the hourly compensation for the time required to respond to the collection is $37.41 (U.S. Bureau of Labor Statistics, “Employer Costs for Employee Compensation,” March 2023, total compensation for all sales and office workers in goods-producing private industries:
The NPR requires instructions to be supplied with rockers. Under the OMB's regulations (5 CFR 1320.3(b)(2)), the time, effort, and financial resources necessary to comply with a collection of information that would be incurred by persons in the “normal course of their activities” are excluded from a burden estimate, where an agency demonstrates that the disclosure activities required to comply are “usual and customary.” Firms that supply rockers to the U.S. market typically provide instructional literature to consumers. Therefore, we tentatively estimate that no burden hours are associated with supplying instructional literature because any burden associated with supplying instructions would be “usual and customary” and not within the definition of “burden” under the OMB's regulations.
Based on this analysis, the proposed standard for rockers would impose a burden to industry of 80 hours at a cost of $2,993 annually.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), CPSC has submitted the information collection requirements of this rule to the OMB for review. Interested persons are requested to submit comments (see the
Pursuant to 44 U.S.C. 3506(c)(2)(A), we invite comments on:
• whether the collection of information is necessary for the proper performance of CPSC's functions, including whether the information will have practical utility;
• the accuracy of CPSC's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• ways to enhance the quality, utility, and clarity of the information to be collected;
• ways to reduce the burden of the collection of information on respondents, including the use of automated collection techniques, when appropriate, and other forms of information technology; and
• the estimated burden hours associated with label modification, including any alternative estimates.
Section 26(a) of the CPSA, 15 U.S.C. 2075(a), states that when a consumer product safety standard is in effect and applies to a product, no state or political subdivision of a state may either establish or continue in effect a standard or regulation that prescribes requirements for the performance, composition, contents, design, finish, construction, packaging, or labeling of such product dealing with the same risk of injury unless the state requirement is identical to the federal standard. Section 26(c) of the CPSA also provides that states or political subdivisions of states may apply to the Commission for an exemption from this preemption under certain circumstances. Section 104(b) of the CPSIA refers to the rules to be issued under that section as “consumer product safety rules.” Therefore, the preemption provision of section 26(a) of the CPSA would apply to a rule issued under section 104.
The Commission proposes a rule under section 104(b) of the CPSIA to issue a consumer product safety standard for Infant and Infant/Toddler Rockers, to amend part 1112 to add Infant and Infant/Toddler Rockers to the list of children's product safety rules for which CPSC has issued an NOR, and to amend part 1130 to identify Infant and Infant/Toddler Rockers as a durable infant or toddler product subject to CPSC consumer registration requirements. The Commission requests comments on any aspect of these proposals, including the proposed effective date and the costs of compliance with, and testing to, the proposed
In addition to the areas identified above, the Commission seeks comment on the following matters:
A. What physical design characteristics, not already addressed in this package, would best signal to adults that rockers are unsafe for infant sleep? Should any such characteristics be required for rockers?
B. What benefits, if any, do younger infants (under 4 months) derive from rockers in terms of motor development and visual stimulation? Do the benefits change and/or increase as an infant progresses from early infancy?
C. Should rockers be allowed to be marketed, intended, or designed to accommodate babies that are too young to gain any physical developmental benefit from using them?
D. Would any additional warnings be useful? If so, what messages should be included?
E. The Commission invites comments on staff's recommendation that the warning label specifically address premature infants: “For babies born prematurely, consult a doctor before use.” (See discussion at OS-125, page 68 in Tab B of Staff's NPR Briefing Package). Is a warning appropriate for any other groups of infants, for instance, infants under four months of age?
F. Should soothing features, like vibration or calming sounds, be permitted on rockers?
G. Whether the NPR has identified the appropriate firmness test points, or whether any other test points should be included, for example, a third firmness test point in an area of the head space of the product that is most likely to fail the test, comparable to the additional test points proposed in the recent NPR for nursing pillows at 88 FR 65865, 65883 (Sept. 26, 2023)?
H. Whether an anti-stockpiling provision should be included and, if so, whether the Commission should include an anti-stockpiling provision comparable to the one proposed in the recent SNPR for portable generators at 88 FR 24346, 24372 (Apr. 20, 2023)?
I. Should torso angle restrictions be included? If so:
1. Should those restrictions set a maximum angle, under which sleep is appropriately safe?;
2. Should those restrictions set a minimum angle, above which a baby is sitting upright and unlikely to sleep?; or
3. Should those restrictions do both of the above (
J. The Commission requests comment on whether any rocker (with an incline “greater than 10 degrees”) in which infants are likely to fall asleep is safe for infants under 5 months, or for infants under 6 months. And, if such products are not safe, what modifications to the proposed rule—such as, for example, age grading—should be made to ensure that those products are not available for children in that age range?
K. The Commission invites comments on the proposed definitions of infant rocker and infant/toddler rocker.
1. In addition to the staff's recommendations that the definitions include a weight limit, should a minimum age be specified?
2. With respect to product angle, is the specification of “greater than 10 degrees” in the proposed definition adequate to address positional asphyxia risks?
L. According to the June 2023 report from Boise State University,
Submit comments in accordance with the instructions in the
Administrative practice and procedure, Audit, Consumer protection, Reporting and recordkeeping requirements, Third party conformity assessment body.
Administrative practice and procedure, Business and industry, Consumer protection, Reporting and recordkeeping requirements.
Consumer protection, Incorporation by reference, Infants and children, Labeling, Law enforcement, Seats, Toys.
For the reasons discussed in the preamble, the Commission proposes to amend Title 16 of the Code of Federal Regulations as follows:
Pub. L. 110-314, section 3, 122 Stat. 3016, 3017 (2008); 15 U.S.C. 2063.
(b) * * *
(51) 16 CFR part 1240, Safety Standard for Infant and Infant/Toddler Rockers.
15 U.S.C. 2056a, 2065(b).
(a) * * *
(20) Infant and Infant/Toddler Rockers.
15 U.S.C. 2056a.
This part establishes a consumer product safety standard for Infant and Infant/Toddler Rockers.
(a) Except as provided in paragraph (b) of this section, each infant and infant/toddler rocker must comply with all applicable provisions of ASTM F3084-22,
(b) Comply with the ASTM F3084-22 standard with the following additions or exclusions:
(1) Instead of complying with section 3.1.6 and 3.1.7 of ASTM F3084-22, comply with the following:
(i) 3.1.6
(ii) 3.1.7
(2) In addition to complying with sections 3.1.1 through 3.1.17 of ASTM F3084-22, comply with the following:
(i) 3.1.18
(ii) 3.1.18.1
(iii) 3.1.18.2
(3) Add section 3.1.19 to ASTM F3084-22:
3.1.19
(4) Instead of complying with sections 6.3.1 and 6.3.1.1 of ASTM F3084-22, comply with the following:
(i) 6.3.1
(ii) 6.3.1.1
(5) Add sections 6.8, 6.8.1, and 6.8.2 to ASTM F3084-22:
(i) 6.8
(ii) 6.8.1 A bounded opening formed by tethered strap(s), alone or in conjunction with the product, shall not allow the passage of the small head probe (Figure 2 to paragraph (b)(9)(ix)) when tested in accordance with 7.11.
(iii) 6.8.2 A bounded opening formed by tethered strap(s), alone or in conjunction with the product, shall allow the passage of the large head probe (Figure 3 to Paragraph (b)(9)(xii)), and the tethered strap portion of the bounded opening shall not be greater than 7.4 in. (188 mm) long when tested in accordance with 7.11.
(6) Add section 6.9 to ASTM F3084-22:
6.9
(7) Add sections 6.10, 6.11, and 6.12 to ASTM F3084-22:
(i) 6.10
(ii) 6.10.1 Each battery compartment shall provide a means to contain the electrolytic material in the event of a battery leakage. This containment means shall not be accessible to the occupant.
(iii) 6.10.2 Positive protection from the possibility of charging any primary (non-rechargeable) battery shall be achieved either through physical design of the battery compartment or through the use of appropriate electrical circuit design. This applies to situations in which a battery may be installed incorrectly (reversed), and in which a battery charger may be applied to a product containing primary batteries. This section does not apply to a circuit having one or two batteries as the only source of power.
(iv) 6.10.3 The surfaces of any accessible electrical component, including batteries, shall not achieve temperatures exceeding 160 °F (71 °C) when tested in accordance with 7.13. At the conclusion of the test, there shall be no battery leakage or, explosion or a fire to any electrical component. This test shall be performed prior to conducting any other testing within the performance requirements section.
(v) 6.11
(vi) 6.12
(8) Instead of complying with section 7.4.1.6 of ASTM F3084-22, comply with the following:
7.4.1.6 Apply a static load of 21 lbf. (93 N) vertically downward on the stability test fixture in the location designated in Figure 15 to paragraph (b)(17) (6-in. (152.4-mm) in front of the crotch post) within a period of 5 s and maintain for an additional 60 s (Figure 9 to section 7 of ASTM F3084-22). If the stability test fixture touches the test surface and prevents the product from tipping over, retest the product near the edge of an elevated test surface to allow the product to tip.
(9) Add section 7.11 to ASTM F3084-22:
(i) 7.11
(ii) 7.11.1 Assemble the product in one of the manufacturer's recommended use positions.
(iii) 7.11.2 Adjust any strap underneath or behind the occupant support surface to its full-length configuration. This includes adjusting any sliding buckle and/or other hardware.
(iv) 7.11.3 For straps that are part of the restraint system, unbuckle the restraint system to allow for the maximum strap length underneath or behind the occupant support surface.
(v) 7.11.4 Where applicable, orient any fasteners, buckles, clips, or other hardware in the position most likely to prevent them from being pulled through any opening.
(vi) 7.11.5 Using a
Reprinted, with permission, from ASTM F406-22 Standard Consumer Safety Specification for Non-Full-Size Cribs/Play Yards, copyright ASTM International, 100 Barr Harbor Drive, West Conshohocken, PA 19428. A copy of the complete standard may be obtained from ASTM International,
(vii) 7.11.5.1 If during the test procedure in 7.11.5, the strap remains does not release at a force of 5 lbf. (22 N) or less, proceed to 7.11.6.
(viii) 7.11.5.2 If during the test procedure in 7.11.5, the tethered strap releases, replace the strap through the opening into its original test position described in 7.11.3 and 7.11.4. Repeat the force application in 7.11.5 four more times for a total of five times. If the strap releases during every one of the five individual tests, this strap is exempt from 7.11.6, 7.11.7, and 7.11.8. If the strap remains attached during any of the five force applications, proceed to 7.11.6.
(ix) 7.11.6 Rotate the small head probe (Figure 2 to paragraph (b)(9)(ix)) to the orientation most likely to fail and gradually apply a force of 25 lb. (111 N) in the bounded opening. Apply the force perpendicular to the base of the probe in the direction most likely to fail within a period of 5 s and maintain it for an additional 10 s.
Reprinted, with permission, from ASTM F406-22 Standard Consumer Safety Specification for Non-Full-Size Cribs/Play Yards, copyright ASTM International, 100 Barr Harbor Drive, West Conshohocken, PA 19428. A copy of the complete standard may be obtained from ASTM International,
(x) 7.11.6.1 If the small head probe (Figure 2 to paragraph (b)(9)(ix)) cannot pass entirely through the opening in any orientation, this bounded opening passes 6.8.1.
(xi) 7.11.6.2 If the small head probe (Figure 2 to paragraph (b)(9)(ix)) can pass entirely through the opening in any orientation, proceed to 7.11.7.
(xii) 7.11.7 Determine if the large head probe (Figure 3 to paragraph (b)(9)(xii)) can be freely inserted through the bounded opening.
Reprinted, with permission, from ASTM F406-22 Standard Consumer Safety Specification for Non-Full-Size Cribs/Play Yards, copyright ASTM International, 100 Barr Harbor Drive, West Conshohocken, PA 19428. A copy of the complete standard may be obtained from ASTM International,
(xiii) 7.11.7.1 If the large head probe (Figure 3 to paragraph (b)(9)(xii)) cannot pass entirely through the opening in any orientation, this bounded opening fails 6.8.2.
(xiv) 7.11.7.2 If the large head probe (Figure 3 to paragraph (b)(9)(xii)) can pass entirely through the opening in any orientation, proceed to 7.11.8.
(xv) 7.11.8 Measure the available length of the tethered strap from its two attachment points on the product under a load of 5 lb. (2.27 kg).
(xvi) 7.11.8.1 If the tethered strap is greater than 7.4 in. (188 mm), this tethered strap fails 6.8.2.
(xvii) 7.11.8.2 If the tethered strap is less than or equal to 7.4 in. (188 mm), this tethered strap passes 6.8.2.
(xviii) 7.11.9 Repeat for each bounded opening formed with tethered strap(s), in all manufacturer's recommended use positions.
(10) Add section 7.12 through 7.16 to ASTM F3084-22:
(i) 7.12
(ii) 7.12.1 The rocker shall be dropped from a height of 36 in. (910 mm).
(iii) 7.12.1.1 If the rocker does not fold, drop the rocker once on each of six different planes (top, bottom, front, rear, left side, and right side).
(iv) 7.12.1.2 If the rocker does fold, drop the rocker once on each of six different planes, both in the folded and erect configurations.
(v) 7.13
(vi) 7.13.1 The battery compartment shall be tested using fresh alkaline batteries or an a/c power source. If the function powered by the compartment can be operated using both, then both batteries and a/c power must be tested separately. If another battery chemistry is specifically recommended for use in the rocker by the manufacturer, repeat the test using the batteries specified by the manufacturer. If the rocker will not operate using alkaline batteries, then test with the type of battery recommended by the manufacturer at the specified voltage. The test is to be carried out in a draft-free location, at an ambient temperature of 68 ± 9 °F (20 ± 5 °C).
(vii) 7.13.1.1 Operate the function powered by the battery compartment at the maximum speed or highest intensity. Do not disable any mechanical or electrical protective device, such as clutches or fuses. Operate the function powered by the battery compartment continuously, and record peak temperature. The test shall be discontinued 60 min after the peak temperature is recorded. If the function shuts off automatically or must be kept “on” by hand or foot, monitor temperatures for 30 s, resetting the function as many times as necessary to complete the 30 s of operation. If the function shuts off automatically after an operating time of greater than 30 s, continue the test until the function shuts off.
(viii) 7.14
(ix) 7.14.1
(x) 7.14.1.1 The test device (Figure 4 to paragraph (b)(10)(x)) shall consist of a 7.5 cm (2.95 in.) diameter hemisphere (made of a rigid material such as wood, metal, or plastic) attached to a compression force gauge with a range of 0 to 50 N; ±0.2% accuracy and a depth gauge with sufficient travel to measure displacement of the hemisphere relative to the footprint ring.
(xi) 7.14.2
(xii) 7.14.2.1 Place the Hinged Weight Gauge-Infant in the rocker with the hinged edge into the seat bight.
(xiii) 7.14.2.2 Mark a line on the seat back 4 in. (10.2 cm) from the top of the gauge (Figure 5 to paragraph (b)(10)(xiii)).
(xiv) 7.14.2.3 Remove the hinged weight gauge and mark the test points at the center line and 8 in. (20.3 cm) to the either side of the center line (Figure 6 to paragraph (b)(10)(xiv)).
(xv) 7.14.3 Position the Hand-Held Test Device (Figure 4 to paragraph (b)(10)(x)) on a test location, with the footprint ring of the fixture centered on the location.
(xvi) 7.14.4 Apply a 10N (2.25 lb.) force for at least 30 seconds and record the peak deflection. The product meets the requirements if the deflection is less than 11 mm (0.43 in.).
(xvii) 7.14.5 Repeat the test on the remaining location.
(xviii) 7.15 Concavity Measurement
(xiv) 7.15.1 Configure the rocker with the Hinged Weight Gauge-Infant installed and locate the head support line as shown in Figure 7 to paragraph (b)(10)(xiv).
(xx) 17.15.2 Measure the width L, along the head support line and the interior of the side supports as shown in Figure 7 to paragraph (b)(10)(xiv).
(xxi) 7.15.3 Place a rigid bar between the side support and over the head support line. Measure the maximum vertical distance d, from the bottom of the bar to the hinged weight gauge (Figure 8 to paragraph (b)(10)(xxi)). Calculate the depth D by adding the thickness of the Hinged Weight Gauge-Infant to the vertical distance from the bottom of the bar to the top of the Hinged Weight Gauge-Infant.
(xxii) 7.15.4 Using the equation shown in Figure 9 to this paragraph (b)(10)(xxii), calculate the concavity r by inputting the width L and depth D into the equation below. r values greater than 22 cm (8.66 in.) meet the concavity requirement.
(The larger the radius, the flatter the product, and vice versa).
(xxiii) 7.16
(xxiv) 7.16.1 Place rocker on the floor.
(xxv) 7.16.2 Place and secure the Newborn CAMI dummy (Figure 2 to section 2 of ASTM F3084-22) in the rocker.
(xxvi) 7.16.3
(xxvii) 7.16.3.1
The placement of the warnings is only applicable to the English language portions of the warning label.
(xxviii) 7.16.3.2
(xxix) 7.16.3.3
(11) Remove section 8.6.7, with Figure 14 and Figure 15 in ASTM F3084-22, from ASTM F3084-22.
(12) Add section 8.6.8 to ASTM F3084-22:
8.6.8
(13) Instead of complying with section 8.7.1 of ASTM F3084-22, comply with the following:
“Address” means that verbiage other than what is shown can be used as long as the meaning is the same or information that is product-specific is presented.
(14) Instead of complying with section 8.7.2 of ASTM F3084-22, comply with the following:
(15) Instead of complying with section 8.7.3 of ASTM F3084-22, comply with the following:
(i)
(ii) 8.7.3
(16) In addition to complying with section 8.8 of ASTM F3084-22, comply with the following:
8.8 Manufacturers may present the SUFFOCATION & ASPHYXIA HAZARD and FALL HAZARD warning information on separate labels. If presented separately, both labels shall still meet the requirements set forth in sections 7.16 and 8.6.
(17) Instead of complying with section X1.2 of ASTM F3084-22, comply with the following:
X1.2 Subsection 6.3.1.1—The forward stability test is required if the rocker is to be used after a child can sit up unassisted due to incident data showing injuries because of occupants leaning forward between the ages of 6 and 9 months.
(18) Replace Figure 8 in ASTM F3084-22 with the following:
Reprinted, with permission, from ASTM F2167-22 Standard Consumer Safety Specification for Infant Bouncer Seats, copyright ASTM International, 100 Barr Harbor Drive, West Conshohocken, PA 19428. A copy of the complete standard may be obtained from ASTM International,
Environmental Protection Agency (EPA).
Notice of filing of petition and request for comment.
This document announces the Agency's receipt of an initial filing of a pesticide petition requesting the establishment or modification of regulations for residues of pesticide chemicals in or on various commodities.
Comments must be received on or before November 27, 2023.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2023-0069, through the
Charles Smith, Registration Division (RD) (7505T), main telephone number: (202) 566-2427, email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
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EPA is announcing receipt of a pesticide petition filed under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, requesting the establishment or modification of regulations in 40 CFR part 180 for residues of pesticide chemicals in or on various food commodities. The Agency is taking public comment on the request before responding to the petitioner. EPA is not proposing any particular action at this time. EPA has determined that the pesticide petition described in this document contains data or information prescribed in FFDCA section 408(d)(2), 21 U.S.C. 346a(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data supports granting of the pesticide petition. After considering the public comments, EPA intends to evaluate whether and what action may be warranted. Additional data may be needed before EPA can make a final determination on this pesticide petition.
Pursuant to 40 CFR 180.7(f), a summary of the petition that is the subject of this document, prepared by the petitioner, is included in a docket EPA has created for this rulemaking. The docket for this petition is available at
As specified in FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), EPA is publishing notice of the petition so that the public has an opportunity to comment on this request for the establishment or modification of regulations for residues of pesticides in or on food commodities. Further information on the petition may be obtained through the petition summary referenced in this unit.
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21 U.S.C. 346a.
Federal Transit Administration (FTA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The Federal Transit Administration (FTA) is proposing changes to requirements for the Public Transportation Safety Certification Training Program (PTSCTP). The Bipartisan Infrastructure Law, enacted as the Infrastructure Investment and Jobs Act (IIJA), established new requirements for FTA's Public Transportation Safety Program that relate to PTSCTP requirements. The proposed revisions would streamline the PTSCTP communication process and clarify voluntary PTSCTP participation and refresher training requirements. FTA seeks comments from project sponsors, the transit industry, unions, other stakeholders, and the public on the proposed changes to the regulation.
Comments should be filed by December 26, 2023. FTA will consider comments received after that date to the extent practicable.
You may send comments, identified by docket number FTA-2023-0025, by any of the following methods:
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For program matters, contact Philip Monty, Office of Transit Safety and Oversight, (202) 366-7412 or
Office hours are from 8:30 a.m. to 5 p.m., Monday through Friday, except Federal holidays.
This Notice of Proposed Rulemaking (NPRM) proposes to amend the Public Transportation Safety Certification Training Program (PTSCTP) regulation at 49 CFR part 672. The proposed rule maintains the existing minimum training requirements for State Safety Oversight Agency (SSOA) employees and contractors who conduct reviews, inspections, examinations, and other safety oversight activities of public transportation systems, and employees and contractors who are directly responsible for the safety oversight of a rail fixed guideway public transportation system. The proposed rule adds administrative requirements for recipients that are subject to the requirements of the rule.
Congress directed FTA to establish a comprehensive Public Transportation Safety Program, one element of which is the requirement for the PTSCTP, in the Moving Ahead for Progress in the 21st Century Act (Pub. L. 112-141) (MAP-21), which was reauthorized by the Fixing America's Surface Transportation Act (Pub. L. 114-94). To implement the requirements of 49 U.S.C. 5329(c), FTA issued a final rule on July 19, 2018 that added part 672, “Public Transportation Safety Certification Training Program,” to title 49 of the Code of Federal Regulations (83 FR 34053).
The Bipartisan Infrastructure Law, enacted as the Infrastructure Investment and Jobs Act (Pub. L. 117-58) (IIJA), enhances the Public Transportation Safety Program by adding new requirements that will be addressed in the PTSCTP curriculum.
The proposed rule would revise portions of part 672, “Public Transportation Safety Certification Training Program,” in title 49 of the Code of Federal Regulations.
In general, this rulemaking applies to all recipients of Federal financial assistance under 49 U.S.C. chapter 53. However, the mandatory requirements of this rulemaking currently apply only to SSOA employees and contractors that conduct reviews, inspections, examinations, and other safety oversight activities of rail fixed guideway public transportation systems, and employees and contractors who are directly responsible for the safety oversight of a recipient's rail fixed guideway public transportation systems. In the preamble to the 2018 final rule, FTA noted that though the regulation currently only applies to rail public transit providers, “[s]hould analysis of safety data and trends indicate increased safety risk in the bus transit industry, FTA retains authority to implement mandatory training requirements for bus transit safety oversight personnel” as well (83 FR 34053, at 34055). Accordingly, FTA seeks recipient input on whether mandatory PTSCTP participation should extend to bus transit agencies and personnel.
First, FTA proposes requiring each recipient subject to the requirements of this rulemaking to identify a single point of contact to serve as a liaison with FTA regarding PTSCTP program information, including changes in enrolled personnel, new participant enrollment, refresher training confirmation, and other administrative needs. FTA proposes requiring each SSOA and rail transit agency participating in the PTSCTP to make semiannual submissions to FTA to include confirmation of employees and contractors designated by the recipient as PTSCTP participants and the recipient's refresher training requirements. These submissions will
Second, FTA proposes adding language to clarify existing processes related to PTSCTP voluntary participants. The new language addresses voluntary participant refresher training for employees and contractors of a recipient, as well as individuals not affiliated with a recipient, and clarifies that to receive a certificate of completion as a voluntary participant, individuals must complete the PTSCTP curriculum within three (3) years of their enrollment. Further, the proposed language clarifies that voluntary participants are not required to complete refresher training and that FTA will not issue renewal certificates to voluntary participants. The proposed language specifies that if a voluntary participant has received a PTSCTP certificate of completion and is subsequently designated by an SSOA or rail transit agency as a PTSCTP participant, the individual will need to complete required refresher training within two (2) years of designation.
Third, FTA proposes removing appendix A from the existing 49 CFR part 672. FTA proposes moving the SSOA requirements located in appendix A of the current rule to the body of the revised rule under subpart C. To allow for greater flexibility in addressing industry training needs, the PTSCTP curricula for mandatory and volunteer participants outlined in appendix A of the current regulation will be removed from the rule. FTA has published this information at:
The proposed rule adds administrative and training requirements for SSOAs and rail transit agencies subject to the PTSCTP. The rule would lead to increased compliance with PTSCTP requirements and cost savings for FTA staff; it would also result in increased costs for SSOAs and rail transit agencies. Table 1 summarizes the economic effects of the proposed rule over the first ten years from 2023—the assumed effective date of the rule—to 2032 in 2022 dollars. On an annualized basis, the rule would have net costs of $334,000 at a 7 percent discount rate (discounted to 2023) and $321,000 at 3 percent.
Throughout 49 CFR part 672, FTA proposes to eliminate existing references to 49 CFR part 659. This regulation was rescinded following the publication of 49 CFR part 674 (see 87 FR 6783), which defines requirements for FTA's State Safety Oversight program.
FTA does not propose changes to this section.
FTA proposes dividing paragraph (b) into two paragraphs to provide additional clarity. This change does not affect existing requirements.
FTA has provided additional detail regarding the activities that serve as applicability criteria for designated personnel of SSOAs. The revised language uses “reviews” instead of “audits” to align with SSO Program terminology. The revised language adds the term “inspections” to address the new SSOA requirements for risk-based inspections established by the Bipartisan Infrastructure Law.
FTA proposes adding a definition of “Initial training.” This definition does not impact existing requirements and has been added to provide clarity regarding training required to receive an initial PTSCTP certificate of completion.
FTA proposes adding a definition of “Public Transportation Safety Certification Training Program curriculum”. This definition does not impact existing requirements and has been added to provide clarity regarding the courses an individual must complete as a participant.
FTA proposes revising the existing definition of “Rail fixed guideway public transportation system” for clarity. The changes do not impact existing requirements.
FTA proposes adding a definition of “Rail transit agency.” This definition does not impact existing requirements and has been added to provide clarity of a rail transit agency.
FTA proposes to revise the definition of “Federal Transit Administration” to align with the definition used in other regulatory updates.
FTA proposes adding a definition of “Refresher training.” This definition is added to complement the proposed definition of “Initial training” and does not impact existing requirements.
FTA proposes adding a definition for “Safety review.” This definition has been added to clarify the term that is used in the SSOA applicability language in § 672.3(b)(1).
FTA proposes revising the definition of “Designated personnel” to include the “Safety review” language changes
FTA proposes adding a definition of “Voluntary participant.” This definition does not impact existing requirements and has been added to provide clarity regarding voluntary participation.
This section establishes designation requirements for certain SSOA employees and contractors. FTA proposes amending existing language to provide clarity on the SSOA's responsibility for designating individuals and ensuring a designee's compliance with the applicable training requirements. These changes do not affect existing requirements.
FTA proposes requiring SSOAs to ensure that designated personnel are enrolled in the PTSCTP within 30 days of designation. The three-year deadline for completing the applicable training requirements of part 672 and the PTSCTP curriculum will be based on the participant's PTSCTP enrollment date. With this 30-day requirement, FTA is ensuring the accurate establishment of the three-year compliance deadline for designated individuals.
FTA proposes to identify refresher training requirements for designated SSOA participants in a new paragraph (d). FTA proposes maintaining the existing PTSCTP refresher training requirement for SSOA-defined refresher training, which must include at least one (1) hour of safety oversight training. FTA proposes adding refresher training developed by FTA as a second required refresher training element.
This section establishes designation requirements for certain rail transit agency employees and contractors. FTA proposes amending existing language to provide clarity on the rail transit agency's responsibility for designating individuals and ensuring a designee's compliance with the applicable training requirements. These changes do not affect existing requirements. FTA expects SSOAs to oversee the designation of rail transit agency employees and contractors who are directly responsible for the safety oversight of a rail fixed guideway public transportation system as part of their required oversight duties established under 49 CFR part 674.
FTA proposes requiring rail transit agencies to ensure that designated personnel are enrolled in the PTSCTP within 30 days of designation. The three-year deadline for completing the applicable training requirements of part 672 and the PTSCTP curriculum will be based on the participant's PTSCTP enrollment date. With this 30-day requirement, FTA is ensuring the accurate establishment of the three-year compliance deadline for designated individuals.
FTA proposes to identify refresher training requirements for designated rail transit agency participants in a new paragraph (d). FTA proposes maintaining the existing PTSCTP refresher training requirement for refresher training defined by the rail transit agency, which must include at least one (1) hour of safety oversight training. FTA proposes adding refresher training developed by FTA as a second required refresher training element. FTA intends for SSOAs to oversee a rail transit agency's compliance with refresher training requirements as part of their required oversight duties established under 49 CFR part 674.
FTA proposes revising § 672.15 to clarify existing processes regarding the evaluation of prior certification and training. If participants would like credit for a non-FTA course to meet FTA course requirements, FTA asks participants to submit an equivalency credit request form available on FTA's website (
FTA proposes adding this new section to provide clarification on existing processes related to PTSCTP voluntary participants. This section confirms FTA's classification of voluntary PTSCTP participation and what voluntary participation entails. FTA proposes to eliminate refresher training requirements previously associated with maintaining voluntary PTSCTP certification and no longer renew certification for voluntary participants. Refresher training requirements are defined for designated participants in §§ 672.11(d) and 672.13(d). If a voluntary participant has received PTSCTP certification and is subsequently designated by an SSOA or rail transit agency as a PTSCTP participant, the individual would simply need to meet the established refresher training requirements for designated PTSCTP participants within two (2) years of designation.
FTA proposes revising § 672.21 to establish new administrative requirements for recipients subject to the requirements of the rule, including SSOAs and rail transit agencies. FTA expects to conduct PTSCTP-related communication with recipients through email (
FTA proposes revising § 672.21(a), to clarify an applicable grantee's responsibilities for ensuring its designated personnel meet the requirements established by this part. These responsibilities include ensuring designated personnel are enrolled in the PTSCTP, ensuring designated personnel complete the initial training within three years of enrollment, and ensuring designated personnel complete required refresher training every two years upon completion of the PTSCTP curriculum.
In § 672.21(b), FTA proposes requiring SSOAs and rail transit agencies to identify a single point of contact (POC) at the agency who will serve as a liaison with FTA regarding PTSCTP records. FTA expects recipients to provide FTA with standard contact information for the identified PTSCTP POC, including name, title, phone number, and email address.
In § 672.21(c), FTA proposes to add a section outlining responsibilities of the identified PTSCTP POC, including informing FTA of changes in enrolled PTSCTP participants, enrolling new PTSCTP participants, and confirming refresher training requirements and completion for participants.
In § 672.21(d), FTA proposes to add a semiannual reporting requirement for PTSCTP. FTA proposes two reporting deadlines each year, January 31 and July 31 each year. FTA proposes requiring the identified PTSCTP POC to submit a current list of individuals designated as required PTSCTP participants, a current list of individuals at the agency that are enrolled voluntarily, and the course or courses that that agency has identified as required PTSCTP refresher training.
In § 672.21(e), FTA proposes to clarify the existing requirement for SSOAs to submit their Technical Training Plan to FTA as part of its annual reporting requirements established at 49 CFR 674.39. FTA has also replaced the reference to “System Safety Program Plan” in appendix A of the current rule with “Agency Safety Plan” in the proposed § 672.21(e). FTA also proposes requiring training records to include the minimum passing scores for proficiency tests. This provides FTA with the parameters for passing and failing the subject proficiency test and enables FTA to interpret proficiency test scores.
FTA does not propose changes to this section.
FTA does not propose changes to this section.
Executive Order 12866 (“Regulatory Planning and Review”), as supplemented by Executive Order 13563 (“Improving Regulation and Regulatory Review”), directs Federal agencies to assess the benefits and costs of regulations, to select regulatory approaches that maximize net benefits when possible, and to consider economic, environmental, and distributional effects. It also directs the Office of Management and Budget (OMB) to review significant regulatory actions, including regulations with annual economic effects of $200 million or more. OMB has determined that the proposed rule is not significant within the meaning of Executive Order 12866.
The proposed rule would add administrative and training requirements for SSOAs and rail transit agencies subject to the requirements of the PTSCTP. The rulemaking would require each agency to establish a point of contact who would enroll designated personnel and submit proof of their training. SSOAs and RTAs would also provide semiannual documentation to FTA. Finally, the rulemaking would require designated personnel to complete FTA-defined refresher training every two years.
The proposed rule would lead to increased agency compliance with PTSCTP requirements. This analysis does not estimate benefits from increased compliance, however, because the economic analysis for the PTSCP rule that established the requirements assumed that agencies would have full compliance. Estimating benefits would therefore lead to double-counting.
The proposed rule would also lead to cost savings for FTA staff and contractors who would need to spend less time verifying that agency employees met training requirements. To estimate cost savings, FTA used time and wage estimates for Federal employees and contractors currently supporting the PTSCP program. In 2022 dollars, the rulemaking would have an estimated annual cost savings of $5,900 (table 1).
To estimate the costs of meeting the new requirements, FTA estimated the number of entities affected, the number and type of staff involved, and the time needed (table 2). The requirements would affect 31 SSOAs and 64 rail transit agencies in operation as of March 1, 2023.
To estimate the value of staff time spent on the requirements, FTA used occupational wage data from the Bureau of Labor Statistics as of May 2023 in the “Transit and Ground Passenger Transportation” industry (North American Industry Classification System code 485000).
The administrative and reporting requirements of the proposed rule have estimated annual costs of $318,000 (table 4). The largest annual costs are for point of contact responsibilities ($128,000) and refresher training ($86,000). FTA would also incur minimal one-time costs to develop the refresher training materials.
Table 5 summarizes the economic effects of the proposed rule over the first ten years of the rule from 2023—the assumed effective date of the rule—to 2032 in 2022 dollars. On an annualized basis, the rule would have net costs of $334,000 at a 7 percent discount rate (discounted to 2023) and $321,000 at 3 percent.
The Regulatory Flexibility Act of 1980 (RFA) (5 U.S.C. 601
The proposed rule would require SSOAs and rail transit agencies to meet additional administrative requirements. Under the Regulatory Flexibility Act, local governments and other public-sector organizations qualify as small entities if they serve a population of less than 50,000. State agencies do not qualify, and no rail transit agency serves an urbanized area with a population of less than 50,000. FTA has therefore determined that the proposed rule would not have a significant effect on a substantial number of small entities.
FTA has determined that this rulemaking does not impose unfunded mandates, as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995). This rulemaking does not include a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector of $100 million or more (adjusted for inflation) in any one year. Additionally, the definition of “Federal mandate” in the Unfunded Mandates Reform Act excludes financial assistance of the type in which State, local, or tribal governments have authority to adjust their participation in the program in accordance with changes made in the program by the Federal Government. The Federal Transit Act permits this type of flexibility.
Executive Order 13132 requires agencies to assure meaningful and timely input by State and local officials in the development of regulatory policies that may 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. This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, dated August 4, 1999, and FTA determined this action will not have a substantial direct effect or sufficient federalism implications on the States. FTA also determined this action will not preempt any State law or regulation or affect the States' ability to discharge traditional State governmental functions.
The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Federal agencies are required to adopt implementing procedures for the National Environmental Policy Act (NEPA) that establish specific criteria for, and identification of, three classes of actions: (1) Those that normally require preparation of an Environmental Impact Statement, (2) those that normally require preparation of an Environmental Assessment, and (3) those that are categorically excluded from further NEPA review (40 CFR 1507.3(b)). This rulemaking qualifies for categorical exclusions under 23 CFR 771.118(c)(4) (planning and administrative activities that do not involve or lead directly to construction). FTA has evaluated whether the rulemaking will involve unusual or extraordinary circumstances and has determined that it will not.
FTA has analyzed this rulemaking under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. FTA does not believe this rulemaking affects a taking of private property or otherwise has taking implications under Executive Order 12630.
This rulemaking meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
FTA has analyzed this rulemaking under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. FTA certifies that this action will not cause an environmental risk to health or safety that might disproportionately affect children.
FTA has analyzed this rulemaking under Executive Order 13175, dated November 6, 2000, and believes that it will not have substantial direct effects on one or more Indian tribes; will not impose substantial direct compliance costs on Indian tribal governments; and will not preempt tribal laws. Therefore, a tribal summary impact statement is not required.
FTA has analyzed this action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. FTA has determined that this action is not a significant energy action under that order and is not likely to have a significant adverse effect on the supply,
Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations) and DOT Order 5610.2(a) (77 FR 27534, May 10, 2012) (
FTA has evaluated this action under the Executive order, the DOT Order, and the FTA Circular and FTA has determined that this action will not cause disproportionately high and adverse human health and environmental effects on minority or low-income populations.
A Regulation Identifier Number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross-reference this rulemaking with the Unified Agenda.
Mass transportation, Reporting and recordkeeping requirements, Safety, Transportation.
49 U.S.C. 5329(c)(f), 5334; 49 CFR 1.91.
(a) This part implements a uniform safety certification training curriculum and requirements to enhance the technical proficiency of individuals who conduct safety reviews, inspections, examinations, and other safety oversight activities of public transportation systems operated by public transportation agencies and those who are directly responsible for safety oversight of public transportation agencies.
(b) This part does not preempt any safety certification training requirements required by a State for public transportation agencies within its jurisdiction.
(a) In general, this part applies to all recipients of Federal financial assistance under 49 U.S.C. chapter 53.
(b) The requirements of this part apply only to:
(1) State Safety Oversight Agencies and their employees and contractors that conduct safety reviews, inspections, examinations, and other safety oversight activities of rail fixed guideway public transportation systems, and
(2) Rail transit agencies and their employees and contractors who are directly responsible for the safety oversight of a recipient's rail fixed guideway public transportation systems.
(c) Voluntary participants may complete the Public Transportation Safety Certification Training Program curriculum in accordance with this part.
As used in this part:
(1) Employees and contractors identified by a recipient whose job function is directly responsible for safety oversight of the public transportation system of the public transportation agency; or
(2) Employees and contractors of a State Safety Oversight Agency whose job function requires them to conduct reviews, inspections, examinations, and other safety oversight activities of the rail fixed guideway public transportation systems subject to the jurisdiction of the agency.
(1) Employees and contractors of an applicable recipient that have not been designated under § 672.11(a) or § 672.13(a), and
(2) Individuals who are not employees or contractors of an applicable recipient.
(a) Each SSOA shall designate its employees and contractors that must comply with the applicable training requirements of this part and the Public Transportation Safety Certification Training Program (PTSCTP) curriculum. Each SSOA must designate employees and contractors who conduct reviews, inspections, examinations, and other safety oversight activities of public transportation systems, including appropriate managers and supervisors of such personnel.
(b) Each SSOA shall ensure that each designated individual is enrolled in the PTSCTP within 30 days of the individual's designation. Each SSOA shall ensure the compliance of designated participants with the applicable training requirements of this part and the PTSCTP curriculum.
(c) Employees and contractors designated under paragraph (a) of this section shall complete applicable training requirements of this part and the PTSCTP curriculum within three (3) years of their initial PTSCTP enrollment.
(d) Thereafter, upon completion of the PTSCTP curriculum, designated personnel shall complete refresher training every two (2) years. Required refresher training shall consist of two elements:
(1)
(2)
(a) Each rail transit agency shall designate its employees and contractors that must comply with the applicable training requirements of this part and the PTSCTP curriculum. Each rail transit agency must designate employees and contractors who are directly responsible for safety oversight of rail modes.
(b) Each rail transit agency shall ensure that each designated individual is enrolled in the PTSCTP within 30 days of the individual's designation. Each rail transit agency shall ensure the compliance of designated participants with the applicable training requirements of this part and the PTSCTP curriculum.
(c) Employees and contractors designated under paragraph (a) of this section shall complete applicable training requirements of this part and the PTSCTP curriculum within three (3) years of their initial PTSCTP enrollment.
(d) Thereafter, upon completion of the PTSCTP curriculum, designated personnel must complete refresher training every two (2) years. Required refresher training shall consist of two elements:
(1)
(2)
(a) PTSCTP participants or an identified point of contact described in § 672.21(b) may request that FTA evaluate safety training or certification previously obtained from another entity to determine if the training satisfies an applicable training requirement of this part.
(b) Individuals requesting FTA evaluation of previously obtained training or certification must provide FTA with an official transcript or certificate of the training, a description of the curriculum and competencies obtained, and a brief statement detailing how the training or certification satisfies the applicable requirements of this part. The required information must be submitted using an equivalency credit request via electronic means defined by FTA.
(c) FTA will evaluate the submission and determine if a training requirement of this part may be waived. If a waiver is granted, designated personnel are responsible for completing all other applicable requirements of this part.
(a) Individuals not subject to the requirements of this part may participate voluntarily. To receive a certificate of completion as a voluntary participant, individuals must complete the PTSCTP curriculum within three (3) years of their enrollment. Voluntary participants are not required to complete refresher training. FTA will not issue renewal certificates to voluntary participants.
(b) If a voluntary participant has received a PTSCTP certificate of completion and is subsequently designated by an SSOA or rail transit agency as a PTSCTP participant, the individual will need to complete required refresher training within two (2) years of designation.
(a)
(1) Are enrolled in the PTSCTP;
(2) Complete the initial training specified in the PTSCTP curriculum within three (3) years of their enrollment as a designated participant; and
(3) Complete required refresher training every two (2) years upon completion of the PTSCTP curriculum.
(b)
(c)
(d)
(1) All employees and contractors of the recipient who are designated as PTSCTP participants; and
(2) The course or courses the recipient has identified as required refresher training for their designated personnel. The agency identified refresher training must include, at a minimum, one (1) hour of safety oversight training. The documentation must include the complete name and length of each course, as well as the name of the course training provider.
(e)
(2) Each SSOA shall develop and maintain a technical training plan for designated personnel who perform reviews, inspections, examinations, and other safety oversight activities. The SSOA will submit its technical training plan to FTA for review and evaluation as part of its annual reporting to FTA as required at § 674.39 of this chapter. This review process will support the consultation required between FTA and SSOAs regarding the staffing and qualification of the designated personnel in accordance with 49 U.S.C. 5329(e)(3)(D).
(3) Each SSOA shall identify the tasks related to reviews, inspections, examinations, and other safety oversight activities requiring SSOA approval, which must be performed by the SSOA to carry out its safety oversight requirements, and identify the skills and knowledge necessary to perform each oversight task at that system. At a minimum, the technical training plan will describe the process for receiving technical training in the following competency areas appropriate to the specific rail fixed guideway public transportation system(s) for which reviews and inspections conducted:
(i) Agency organizational structure.
(ii) Agency Safety Plan.
(iii) Knowledge of agency:
(A) Territory and revenue service schedules;
(B) Current bulletins, general orders, and other associated directives that ensure safe operations;
(C) Operations and maintenance rule books;
(D) Safety rules;
(E) Standard Operating Procedures;
(F) Roadway Worker Protection;
(G) Employee Hours of Service and Fatigue Management program;
(H) Employee Observation and Testing Program (Efficiency Testing);
(I) Employee training and certification requirements;
(J) Vehicle inspection and maintenance programs, schedules and records;
(K) Track inspection and maintenance programs, schedules and records;
(L) Tunnels, bridges, and other structures inspection and maintenance programs, schedules and records;
(M) Traction power (substation, overhead catenary system, and third rail), load dispatching, inspection and maintenance programs, schedules and records; and
(N) Signal and train control inspection and maintenance programs, schedules and records.
(4) The SSOA will determine the length of time for the technical training based on the skill level of the designated personnel relative to the applicable rail transit agency(s). FTA will provide a template as requested to assist the SSOA with preparing and monitoring its technical training plan and will provide technical assistance as requested. Each SSOA technical training plan that is submitted to FTA for review will:
(i) Require designated personnel to successfully:
(A) Complete training that covers the skills and knowledge needed to effectively perform the tasks.
(B) Pass a written and/or oral examination covering the skills and knowledge required for the designated personnel to effectively perform their tasks.
(C) Demonstrate hands-on capability to perform their tasks to the satisfaction of the appropriate SSOA supervisor or designated instructor.
(ii) Establish equivalencies or written and oral examinations to allow designated personnel to demonstrate that they possess the skill and qualification required to perform their tasks.
(iii) Require biennial refresher training to maintain technical skills and abilities, which includes classroom and hands-on training, as well as testing. Observation and evaluation of actual performance of duties may be used to meet the hands-on portion of this requirement, provided that such testing is documented.
(iv) Require that training records be maintained to demonstrate the current qualification status of designated personnel assigned to carry out the oversight program. Records may be maintained either electronically or in writing and must be provided to FTA upon request.
Records must include the following information concerning each designated personnel:
(A) Name;
(B) The title and date each training course was completed, the proficiency test score(s), and the minimum passing score of the test, where applicable;
(C) The content of each training course successfully completed;
(D) A description of the designated personnel's hands-on performance applying the skills and knowledge required to perform the tasks that the employee will be responsible for performing and the factual basis supporting the determination;
(E) The tasks the designated personnel are deemed qualified to perform; and
(F) Provide the date that the designated personnel's status as qualified to perform the tasks expires, and the date in which biennial refresher training is due.
(iv) Ensure the qualification of contractors performing oversight activities. SSOAs may use demonstrations, previous training and education, and written and oral examinations to determine if contractors possess the skill and qualification required to perform their tasks.
(vi) Periodically assess the effectiveness of the technical training. One method of validation and assessment could be efficiency tests or
(a) Except as required by law, or expressly authorized or required by this part, a recipient may not release information pertaining to employees and contractors that is required by this part without the written consent of the individual.
(b) Individuals are entitled, upon written request to the recipient, to obtain copies of any records pertaining to their training required by this part. The recipient shall promptly provide the records requested by personnel and access shall not be contingent upon the recipient's receipt of payment for the production of such records.
(c) A recipient shall permit access to all facilities utilized and records compiled in accordance with the requirements of this part to the Secretary of Transportation, the Federal Transit Administration, or any State agency with jurisdiction over public transportation safety oversight of the recipient.
(d) When requested by the National Transportation Safety Board as part of an accident investigation, a recipient shall disclose information related to the training of employees and contractors.
(a) A recipient of FTA financial assistance under 49 U.S.C. chapter 53 that is subject to the requirements of this part as specified in § 672.3(b) shall annually certify compliance with this part in accordance with FTA's procedures for annual grant certification and assurances.
(b) A certification must be authorized by the recipient's governing board or other authorizing official and must be signed by a party specifically authorized to do so.
Departmental Administration, USDA.
Notice of Performance Review Board appointments.
This notice announces the members of the Senior Executive Service (SES) and Senior Level (SL) and Scientific and Professional (ST) Performance Review Boards (PRB). Agriculture has two PRBs with representatives from each USDA Mission Area. The PRBs are comprised of the Chairpersons and a mix of career and noncareer senior executives and senior professionals that meet annually to review and evaluate performance appraisal documents. The PRB provides a written recommendation to the Secretary for final approval of each executive's performance rating, performance-based pay adjustment, and performance award. The PRBs are advised by the Office of Human Resources Management, Office of General Counsel, and Office of the Assistant Secretary for Civil Rights to ensure compliance with laws and regulations.
The board membership is applicable beginning on October 23, 2023.
Michelle Long, Acting Deputy Chief Human Capital Officer, Office of Human Resources Management, telephone: (202) 941-4075, or Rhonda C. Carr, Director, Human Resources Operations Division, telephone: (202) 720-3967.
In accordance with 5 U.S.C. 4314(c)(4), the USDA Performance Review Board members are named below:
The Secretary of Agriculture, Thomas J. Vilsack, having reviewed and approved this document, is delegating the authority to electronically sign this document to Anita Adkins, Chief Human Capital Officer, for purposes of publication in the
Food Safety and Inspection Service (FSIS), Department of Agriculture (USDA).
Notice of public meeting.
This notice is announcing that the National Advisory Committee on Microbiological Criteria for Foods (NACMCF) will hold a virtual public meeting from November 14, 2023, through November 16, 2023. The NACMCF Secretariat will introduce newly appointed members for the 2023-2025 Committee term and introduce a new charge from FSIS on genomic characterization of pathogens. Also, the Committee will continue working on the response to the U.S. Food and Drug Administration's (FDA)
The full Committee will hold a virtual public plenary meeting on Tuesday, November 14, 2023, from 10:00 a.m. to 12:00 p.m. Concurrent virtual public subcommittee meetings will be held on Tuesday, November 14, 2023, from 1:00 p.m. to 4:30 p.m. As well as on Wednesday, November 15, 2023, from 1:00 p.m. to 4:30 p.m. and Thursday, November 16, 2023, from 10:00 a.m. to 12:00 p.m., respectively. Attendance is free but pre-registration by Wednesday, November 8, 2023, is requested.
The deadline to submit written comments is Wednesday, November 8, 2023.
The plenary and subcommittee meetings will be held virtually using Webex. Attendees must pre-register at
An American Sign Language interpreter will be present during the meeting and attendees will also have the option to turn on closed captions.
Written comments may be submitted by one of the following methods:
The official transcript of the November 14, 2023 plenary meeting, when it becomes available, will be posted on FSIS' website at
Kristal Southern, USDA, FSIS, Office of Public Health Science, 1400 Independence Avenue SW, Room 1128, Washington, DC 20250; Email:
The NACMCF was established in 1988, in response to a recommendation of the National Academy of Sciences for an interagency approach to microbiological criteria for foods, and in response to a recommendation of the U.S. House of Representatives Committee on Appropriations, as expressed in the Rural Development, Agriculture, and Related Agencies Appropriation Bill for fiscal year 1988. The charter for the NACMCF is available for viewing at
NACMCF documents and comments posted on the FSIS website are electronic conversions from a variety of source formats. In some cases, document conversion may result in character translation or formatting errors. The original document is the official, legal copy. To meet the electronic and information technology accessibility standards in Section 508 of the Rehabilitation Act, NACMCF may add alternate text descriptors for non-text elements (graphs, charts, tables, multimedia, etc.). These modifications only affect the internet copies of the documents. Copyrighted documents will not be posted on FSIS' website but will be available for inspection in the FSIS Docket Room.
Public awareness of all segments of rulemaking and policy development is important. Consequently, FSIS will announce this
In accordance with Federal civil rights law and USDA civil rights regulations and policies, USDA, its Mission Areas, agencies, staff offices, employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.
Program information may be made available in languages other than English. Persons with disabilities who require alternative means of communication to obtain program information (
To file a program discrimination complaint, a complainant should complete a Form AD-3027,
(1)
(2)
(3)
USDA is an equal opportunity provider, employer, and lender.
Food and Nutrition Service (FNS), USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on this proposed information collection. This collection is a revision of a currently approved collection to conduct short, quick-turnaround surveys of State and local agencies providing food, education, and other services in the Supplemental Nutrition Assistance Program, Child Nutrition Programs, and Supplemental Nutrition and Safety Programs administered at the federal level by the Food and Nutrition Service (FNS). These programs include the Supplemental Nutrition Assistance Program (SNAP), Special Supplemental Nutrition Program for Women, Infants, and Children (WIC); National School Lunch Program (NSLP); School Breakfast Program (SBP); Special Milk Program (SMP); Fresh Fruit and Vegetable Program (FFVP); Summer Food Service Program (SFSP); Summer EBT (SEBT); Team Nutrition; the Patrick Leahy Farm to School Program; the Child and Adult Care Food Program (CACFP); USDA Foods in Schools; Food Distribution Program on Indian Reservations (FDPIR); The Emergency Food Assistance Program (TEFAP); and the Commodity Supplemental Food Program (CSFP).
Written comments must be received on or before December 26, 2023.
Comments may be submitted via email to
All responses to this notice will be summarized and included in the request for Office of Management and Budget approval. All comments will be a matter of public record.
Requests for additional information or copies of this information collection should be directed to Conor McGovern at
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions that were used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
These programs include the Supplemental Nutrition Assistance Program (SNAP), Special Supplemental Nutrition Program for Women, Infants, and Children (WIC); National School Lunch Program (NSLP); School Breakfast Program (SBP); Special Milk Program (SMP); Fresh Fruit and Vegetable Program (FFVP); Summer Food Service Program (SFSP); Summer Electronic Benefit Transfer (SEBT); the Patrick Leahy Farm to School Program; Team Nutrition; the Child and Adult Care Food Program (CACFP); USDA Foods in Schools; Food Distribution Program on Indian Reservations (FDPIR); The Emergency Food Assistance Program (TEFAP); and the Commodity Supplemental Food Program (CSFP).
Legislation authorizing these programs requires operators to cooperate with USDA program research and evaluation activities. Traditionally, FNS conducts large, program-specific studies to collect information on numerous features of each program. Such studies often take several years to complete. Quick response surveys provide a system for rapidly collecting current information on a specific feature or issue, and, therefore, enable FNS to administer the programs more effectively.
The data collection activities under this clearance will include: (1) sample frame data collections and (2) quick-response surveys. The sample frame data collections are used to request contact information from State agencies for the local program operators within their purview. The quick-response survey data collections will be used to survey key administrators of FNS programs at the State, local, and site level to answer policy and implementation questions.
Following standard OMB requirements, FNS will submit a change request to OMB for each data collection activity undertaken under this generic clearance. The respondents will be identified at the time that each change request is submitted to OMB. FNS will provide OMB with the instruments and supporting materials describing the research project and specific pre-testing activities.
This revision makes some changes to the information collection as previously approved. SNAP, Summer EBT, and the Patrick Leahy Farm to School Program have been added as separate programs, thereby expanding it to all current FNS programs. The type of information to be collected and the methods of collection will remain broadly the same. In this revision, FNS has changed the manner in which we account for burden on respondents. Previously, we requested burden for exactly one survey per program per year at the state and local levels. This had several downsides. First, it overestimated the burden of the clearance itself on many respondent groups, as some programs are surveyed more commonly than others. Second, it reduced flexibility for FNS to perform multiple surveys for a given program when there were significant policy or
Rural Utilities Service, USDA.
Notice; extension of submission deadline.
The Rural Utilities Service (RUS or the Agency), a Rural Development (RD) mission area of the United States Department of Agriculture (USDA), announced its acceptance of applications under the Calendar Year (CY) 2022 Disaster Circuit Rider Technical Assistance (CY 2022 Disaster CRTA) Grants Program in a Notice of Funding Opportunity (NOFO) in the
The deadline for submissions regarding the NOFO published September 28, 2023, at 88 FR 66797, is extended from October 30, 2023, to November 7, 2023.
Applications and supporting information must be submitted electronically through
Penny Douglas, Grant Manager, Water and Environmental Programs, RUS, USDA, by phone at (202) 253-0504 or by email at
The Agency is extending the deadline for submissions regarding the CY 2022 Disaster CRTA Grant Program NOFO published September 28, 2023, at 88 FR 66797, from October 30, 2023, to November 7, 2023. This change is being made due to
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The Mid-Atlantic Fishery Management Council's Summer Flounder, Scup, and Black Sea Bass Monitoring Committee will hold a public meeting.
The meeting will be held on Monday, November 13, 2023, starting at 1 p.m. and continuing through 2:30 p.m. on Tuesday, November 14, 2023. For agenda details, see
This will be an in-person meeting with a virtual option. Monitoring Committee members, other invited meeting participants, and members of the public will have the option to participate in person at the Loews Philadelphia Hotel, 1200 Market Street, Philadelphia, PA, or virtually via Webex webinar. Webinar connection instructions and briefing materials will be available at:
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.
The Summer Flounder, Scup, and Black Sea Bass Monitoring Committee will meet to discuss 2024-2025 recreational management measures for summer flounder and scup and 2024 recreational management measures for black sea bass. The Monitoring Committee will follow the process prescribed in the fishery management plan to recommend the percent change in harvest the measures should achieve for each species. The Monitoring Committee will also recommend the appropriate coastwide or federal waters recreational management measures (
The meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to Shelley Spedden, (302) 526-5251, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of SEDAR 77 Post Review Workshop Webinar for Highly Migratory Species (HMS) Hammerhead Sharks.
The SEDAR 77 assessment process of HMS hammerhead sharks will consist of a Data Workshop, and a series of assessment webinars, and a Review Workshop, and webinars. See
The SEDAR 77 Post Review Workshop webinar will be held November 13, 2023, from 12 p.m. to 6 p.m., Eastern Time.
Julie A. Neer, SEDAR Coordinator; (843) 571-4366; email:
The Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf States Marine Fisheries Commissions have implemented the Southeast Data, Assessment and Review (SEDAR) process, a multi-step method for determining the status of fish stocks in the Southeast Region. SEDAR is a multi-step process including: (1) Data Workshop, (2) a series of assessment webinars, and (3) A Review Workshop. The product of the Data Workshop is a report that compiles and evaluates potential datasets and recommends which datasets are appropriate for assessment analyses. The assessment webinars produce a report that describes the fisheries, evaluates the status of the stock, estimates biological benchmarks, projects future population conditions, and recommends research and monitoring needs. The product of the Review Workshop is an Assessment Summary documenting panel opinions regarding the strengths and weaknesses of the stock assessment and input data. Participants for SEDAR Workshops are appointed by the Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils and NOAA Fisheries Southeast Regional Office, HMS Management Division, and Southeast Fisheries Science Center. Participants include data collectors and database managers; stock assessment scientists, biologists, and researchers; constituency representatives including fishermen, environmentalists, and NGO's; International experts; and staff of Councils, Commissions, and state and federal agencies.
The items of discussion during the Post Review Workshop webinar are as follows: participants will discuss and review outstanding assessment presentations and discuss data issues remaining from the Review Workshop.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to the Council office (see
The times and sequence specified in this agenda are subject to change.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of hybrid meeting.
The North Pacific Fishery Management Council (Council) Groundfish Plan Teams will hold a meeting. See
The meetings will be held on Monday, November 13, 2023 through Friday, November 17, 2023, from 9 a.m. to 5 p.m., PDT.
The meetings will be hybrid meetings. The in-person component of the meetings will be held at the Alaska Fishery Science Center in the Traynor Room (2076) and Room 2079, 7600 Sand Point Way NE, Building 4, Seattle, WA 98115. If you plan to attend in-person you need to notify Sara Cleaver (
Sara Cleaver, Council staff; phone: (907) 271-2809; email:
The Bering Sea and Aleutian Islands (BSAI) and Gulf of Alaska (GOA) Groundfish Plan Teams will compile and review the annual BSAI and GOA Groundfish Stock Assessment and Fishery Evaluation (SAFE) reports, and recommend final groundfish Over Fishing Limits (OFLs) and Allowable Biological Catches (ABCs) for 2024/2025. The Plan Teams will also review the Economic Report and the Ecosystem Status Reports. The agenda is subject to change, and the latest version will be posted at
You can attend the meeting online using a computer, tablet, or smartphone; or by phone only. Connection information will be posted online at:
Public comment letters should be submitted electronically via the electronic agenda at
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of South Atlantic Fishery Management Council's (Council) System
The Council will hold a meeting of the SMP Workgroup via webinar on November 15, 2023. The workgroup will discuss recent research and evaluation tools of the Spawning Special Management Zones (SMZs). This meeting is the first meeting of the workgroup to develop recommendations on the management of the Spawning SMZs.
The meeting will be held on Wednesday, November 15, 2023, from 9 a.m. until 3 p.m.
Kim Iverson, Public Information Officer, SAFMC; phone: (843) 302-8439 or toll free: (866) SAFMC-10; fax: (843) 769-4520; email:
The SMP Workgroup is an advisory group for the Council that reviews actions items, evaluates managed areas, and reviews management of managed areas recommended by the Council. The workgroup will meet to discuss components of SMPs for the Spawning SMZs established by the Council. The workgroup is responsible for development of a report to the Council with recommendations. Components of the report include background information on managed areas; biological and habitat monitoring; socio-economic factors; enforcement and compliance; research recommendations; and outreach.
Agenda items for this meeting include: an overview on why the Spawning SMZs were established, the SMP for the Spawning Special Management Zones, recent research conducted in the areas, and evaluations for trends and management of the areas. The workgroup will discuss the evaluation for the area and how best to develop recommendations. The workgroup will also hold elections at the meeting.
The meeting is physically accessible to people with disabilities. Requests for auxiliary aids should be directed to the Council office (see
The times and sequence specified in this agenda are subject to change.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of South Atlantic Fishery Management Council's (Council) Seminar Series presentation via webinar.
The Council will host a presentation from NOAA Fisheries on a Marine Recreational Information Program Fishing Effort Survey pilot study results and next steps via webinar.
The webinar presentation will be held on Tuesday, November 14, 2023, from 1 p.m. until 2:30 p.m.
Kim Iverson, Public Information Officer, SAFMC; phone: (843) 302-8439 or toll free: (866) SAFMC-10; fax: (843) 769-4520; email:
The Council will host a presentation from NOAA Fisheries on a Marine Recreational Information Program—Fishing Effort Survey pilot study where potential bias in the recreational fishing effort estimate was discovered. The presentation will describe key findings of the pilot study and describe next steps to study the potential bias and potential changes to the survey. A question-and-answer session will follow the presentation. Members of the public will have the opportunity to participate in the discussion. The presentation is for informational purposes only and no management actions will be taken.
The meeting is physically accessible to people with disabilities. Requests for auxiliary aids should be directed to the Council office (see
The times and sequence specified in this agenda are subject to change.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before December 26, 2023. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Nicole Ongele, FCC, via email
For additional information about the information collection, contact Nicole Ongele, (202) 418-2991.
In CC Docket No. 96-187, the Commission adopted measures to streamline tariff filing requirements for local exchange carriers (LECs) pursuant to the Telecommunications Act of 1996. In order to achieve a streamlined and deregulatory environment for LEC tariff filings, LECs are required to file tariffs electronically. The information collected under the electronic filing program will facilitate access to tariffs and associated documents by the public, as well as by state and federal regulators. Ready electronic access to carrier tariffs will also facilitate the compilation of aggregate data for industry analysis purposes without imposing new reporting requirements on carriers.
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice.
This quarterly notice lists CMS manual instructions, substantive and interpretive regulations, and other
It is possible that an interested party may need specific information and not be able to determine from the listed information whether the issuance or regulation would fulfill that need. Consequently, we are providing contact persons to answer general questions concerning each of the addenda published in this notice.
The Centers for Medicare & Medicaid Services (CMS) is responsible for administering the Medicare and Medicaid programs and coordination and oversight of private health insurance. Administration and oversight of these programs involves the following: (1) furnishing information to Medicare and Medicaid beneficiaries, health care providers, and the public; and (2) maintaining effective communications with CMS regional offices, state governments, state Medicaid agencies, state survey agencies, various providers of health care, all Medicare contractors that process claims and pay bills, National Association of Insurance Commissioners
Section 1871(c) of the Act requires that we publish a list of all Medicare manual instructions, interpretive rules, statements of policy, and guidelines of general applicability not issued as regulations at least every 3 months in the
This quarterly notice provides only the specific updates that have occurred in the 3-month period along with a hyperlink to the full listing that is available on the CMS website or the appropriate data registries that are used as our resources. This is the most current up-to-date information and will be available earlier than we publish our quarterly notice. We believe the website list provides more timely access for beneficiaries, providers, and suppliers. We also believe the website offers a more convenient tool for the public to find the full list of qualified providers for these specific services and offers more flexibility and “real time” accessibility. In addition, many of the websites have listservs; that is, the public can subscribe and receive immediate notification of any updates to the website. These listservs avoid the need to check the website, as notification of updates is automatic and sent to the subscriber as they occur. If assessing a website proves to be difficult, the contact person listed can provide information.
This notice is organized into 15 addenda so that a reader may access the subjects published during the quarter covered by the notice to determine whether any are of particular interest. We expect this notice to be used in concert with previously published notices. Those unfamiliar with a description of our Medicare manuals should view the manuals at
The Director of the Office of Strategic Operations and Regulatory Affairs of the Centers for Medicare & Medicaid Services (CMS), Kathleen Cantwell, having reviewed and approved this document, authorizes Trenesha Fultz-Mimms, who is the Federal Register Liaison, to electronically sign this document for purposes of publication in the
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a draft guidance for industry entitled “Remote Interactive Evaluations of Drug Manufacturing and Bioresearch Monitoring Facilities.” FDA is issuing this draft guidance to describe how we request and conduct voluntary remote interactive evaluations at facilities where drugs are manufactured, processed, packed, compounded, or held, and at facilities covered under FDA's bioresearch monitoring program. FDA may consider the use of a remote interactive evaluation for any of the inspection program areas described in the guidance. FDA is also announcing the withdrawal of the guidance entitled “Remote Interactive Evaluations of Drug Manufacturing and Bioresearch Monitoring Facilities During the COVID-19 Public Health Emergency.”
Submit either electronic or written comments on the draft guidance by December 26, 2023 to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance.
You may submit comments on any guidance at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
Submit written requests for single copies of the draft guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993-0002; Office of Communication, Outreach and Development, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 3128, Silver Spring, MD 20993-0002; or the Policy and Regulations Staff (HFV-6), Center for Veterinary Medicine (CVM), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Tina Kiang, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 4374, Silver Spring, MD 20993-0002, 301-796-6487; or Anne Taylor, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993-0002, 240-402-7911; or CVM at
FDA is announcing the availability of a draft guidance for industry entitled “Remote Interactive Evaluations of Drug Manufacturing and Bioresearch Monitoring Facilities.” FDA is issuing this draft guidance to describe how we request and conduct voluntary remote interactive evaluations at: (1) facilities where drugs are manufactured, processed, packed, or held; (2) facilities covered under FDA's bioresearch
During the Coronavirus Disease 2019 (COVID-19) pandemic, FDA expanded our use of alternative tools for evaluating drug manufacturing facilities to support regulatory decision-making. When an inspection was not feasible or practical because of the public health emergency (PHE), FDA used other available tools and information to support regulatory decisions and oversight of facilities. FDA announced its policy for using these alternative tools in a guidance entitled “Remote Interactive Evaluations of Drug Manufacturing and Bioresearch Monitoring Facilities During the COVID-19 Public Health Emergency” posted in April 2021 and announced in the
This draft guidance describes the various remote interactive tools we may request to use to conduct an evaluation. In this draft guidance, we refer to our use of any combination of these interactive tools as a
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on “Remote Interactive Evaluations of Drug Manufacturing and Bioresearch Monitoring Facilities.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
FDA also is announcing that the 2021 COVID-19 Remote Interactive Evaluations Guidance will be withdrawn upon publication of this draft guidance. FDA has determined that the 2021 COVID-19 Remote Interactive Evaluations Guidance is no longer needed because this new draft guidance is available and its recommendations, when finalized, will be applicable outside the context of the COVID-19 public health emergency.
While this guidance contains no collection of information, it does refer to previously approved FDA collections of information. The previously approved collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA). The collections of information in 21 CFR part 312 have been approved under OMB control number 0910-0014. The collections of information in 21 CFR part 314 have been approved under OMB control number 0910-0001. The collections of information in 21 CFR part 58 pertaining to good laboratory practices have been approved under OMB control number 0910-0119. The collection of information pertaining to current good manufacturing practices have been approved under OMB control number 0910-0139. The collections of information relating to the registration of human drug compounding outsourcing facilities under section 503B of the FD&C Act and associated fees under section 744K of the FD&C Act (21 U.S.C. 379j-62) have been approved under OMB control number 0910-0776. The collections of information pertaining to human drug compounding under sections 503A (21 U.S.C. 356a) and 503B of the FD&C Act have been approved under OMB control number 0910-0800. The collections of information in 21 CFR part 11 have been approved under OMB control number 0910-0303. The collections of information in 21 CFR parts 50 and 56 have been approved under OMB control number 0910-0130.
Persons with access to the internet may obtain the draft guidance at
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the National Advisory Council on Drug Abuse.
The meeting will be held as a virtual meeting and is open to the public, as indicated below. Individuals who plan to view the virtual meeting and need special assistance such as sign language interpretation or other reasonable accommodations to view the meeting, should notify Dr. Jeanette Marketon via email at
A portion of the meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The intramural programs and projects as well as the grant applications and/or contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with intramural programs and projects as well as the grant applications and/or contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any interested person may file written comments with the committee by forwarding the statement to Dr. Jeanette Marketon at
Information is also available on the Institute's/Center's home page:
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Federal Emergency Management Agency, Department of Homeland Security.
60-Day notice of renewal and request for comments.
The Federal Emergency Management Agency (FEMA), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public to take this opportunity to comment on a renewal of
Comments must be submitted on or before December 26, 2023.
To avoid duplicate submissions to the docket, please submit comments at
All submissions received must include the agency name and Docket ID. Regardless of the method used to submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
Brian Koper, Emergency Management Specialist, Engineering Services Branch, Risk Management Directorate, DHS/FEMA, at
The National Flood Insurance Program (NFIP) is authorized by the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4001
Comments may be submitted as indicated in the
Cybersecurity and Infrastructure Security Agency, Department of Homeland Security.
Notice; request for information.
The Cybersecurity and Infrastructure Security Agency (CISA) announces the publication of “Software Identification Ecosystem Option Analysis,” which is a white paper on software identification ecosystems and requests public comment on the paths forward identified by the paper and on the analysis of the merits and challenges of the software identifier ecosystems discussed. Additionally, CISA requests input on analysis or approaches currently absent from the paper.
Written comments are requested on or before December 11, 2023. Submissions received after that date may not be considered.
You may send comments, identified by CISA-2023-0026, by any of the following methods:
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To submit comments electronically:
1. Go to
2. Click the “Comment Now!” icon, complete the required fields, and
3. Enter or attach your comments.
All submissions, including attachments and other supporting materials, will become part of the public record and may be subject to public disclosure. CISA reserves the right to publish relevant comments publicly, unedited and in their entirety. Do not include personal information, such as account numbers or Social Security numbers, or names of other individuals. Do not submit confidential business information or otherwise sensitive or protected information. All comments received will be posted to
Commenters may access the “Software Identification Ecosystem Option Analysis” white paper on CISA's website at:
Allan Friedman, 202-961-4349,
Interested persons are invited to comment on this notice by submitting written data, views, or arguments using the method identified in the
Software identification is a key facilitator of effective vulnerability management. Software identifiers are labels for specific versions of software that conform to a defined format. An identifier enables users to track software in relation to other information, such as known vulnerabilities, mitigations for vulnerabilities, lists of approved or disallowed software, and adversary activities. An effective, harmonized software identification ecosystem will facilitate greater automation, inventory visibility, and broader, more effective use of software bills of materials (SBOMs).
The two key requirements for an effective software identification ecosystem are:
1. Timely availability of software identifiers across all software items; and
2. Software identifiers that support both precise identification and grouping of software items.
Key challenges for an effective software identification ecosystem are: (1) uniformly and deterministically generating or locating the identifier for an unknown piece of software (discoverability); (2) distributing unique identifiers for software such that one identifier is not associated with multiple software or versions (precision); and (3) developing a mechanism by which software versions are associated with each other (grouping).
The white paper evaluates the following key criteria for a successful software identifier format:
1. Identifiers all refer to a single variant of a given piece of software and support grouping expressions.
2. Identifiers are built to express a fine level of granularity with support for complete identifier enumeration.
Three software identifier formats are starting points, based on their current use and future potential:
Common Platform Enumeration (CPE): In a system based on CPE, a set of parties generate the software identifiers for the community. Each identifier is generated at a point in time and then distributed to the community.
Package URLs (purl): In a system based on purl, any number of parties may generate software identifiers for the community. purl's existing mechanisms for distributed identification generation also make it feasible as the foundation for a system with a searchable database, however its lack of uniformity presents challenges.
OmniBOR: In a system built on OmniBOR, any party is able to derive a software's identifier from an instance of a piece of software. These identifiers are mechanically generated based on inherent properties of a piece of software, which are available to anyone who has that piece of software. In some cases, these identifiers also contain information about the composition of the software, enabling further identification of its components.
The white paper identifies six paths forward for a software identification ecosystem. Although the paths are individually evaluated, they are not mutually exclusive as a solution.
1. Any party can generate a software's identifier. Inherent identifiers are used.
2. Many parties generate software identifiers. The generators then push the software identifiers to the community through the distribution of the software. Defined software identifiers are used.
3. A central authority oversees and supports the many parties who generate and distribute software identifiers. Defined software identifiers are used.
4. An active management system other than a central authority oversees and supports the many parties that generate inherent identifiers. Defined identifiers are used.
5. In addition to a defined identifier scheme (Paths 2, 3, and 4) there is a standardized structure to characterize unknown software. Correlation is done using fuzzy-matching over the set of provided characteristics.
6. Many parties use multiple defined identifier formats to generate software identifiers.
The “Software Identification Ecosystem Option Analysis” white paper identifies paths forward in solving the problem of software identification and explores the benefits and challenges of the various approaches, as well as the community or authority structure that would be needed to develop and sustain the identifier format ecosystem. In doing so, the white paper outlines the requirements and activities necessary to establish a harmonized software identification ecosystem to facilitate greater automation, inventory visibility, and the multi-faceted value proposition of broad adoption of Software Bill of Materials (SBOM).
Commenters may access the “Software Identification Ecosystem Option Analysis” white paper on CISA's website at:
This notice is issued under the authority of 6 U.S.C. 652 and 659.
Department of Homeland Security.
Notice.
This notice announces the appointment of members of the FY 2023 Senior Executive Service (SES) Performance Review Boards (PRBs) for the Department of Homeland Security (DHS). The purpose of the PRBs is to make recommendations to the appointing authority (
This Notice is applicable as of October 26, 2023.
Christian Fajardo, Human Resources Specialist, Office of the Chief Human Capital Officer,
In accordance with 5 U.S.C. 4314(c) and 5 CFR 430.311, each agency must establish one or more PRBs to make recommendations to the appointing authority (
U.S. Citizenship and Immigration Services, Department of Homeland Security.
60-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) invites the general public and other Federal agencies to comment upon this proposed revision of a currently approved collection of information or new collection of information. In accordance with the Paperwork Reduction Act (PRA) of 1995, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days until December 26, 2023.
All submissions received must include the OMB Control Number 1615-0101 in the body of the letter, the agency name and Docket ID USCIS-2008-0008. Submit comments via the Federal eRulemaking Portal website at
USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Samantha Deshommes, Chief, telephone number (240) 721-3000 (This is not a toll-free number. Comments are not accepted via telephone message). Please note contact information provided here is solely for questions regarding this notice. It is not for individual case status inquiries. Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS website at
You may access the information collection instrument with instructions or additional information by visiting the Federal eRulemaking Portal site at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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U.S. Citizenship and Immigration Services, Department of Homeland Security.
30-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The purpose of this notice is to allow an additional 30 days for public comments.
Comments are encouraged and will be accepted until November 27, 2023.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, must be submitted via the Federal eRulemaking Portal website at
USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Samantha Deshommes, Chief, telephone number (240) 721-3000 (This is not a toll-free number; comments are not accepted via telephone message.). Please note contact information provided here is solely for questions regarding this notice. It is not for individual case status inquiries. Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS website at
The information collection notice was previously published in the
You may access the information collection instrument with instructions, or additional information by visiting the Federal eRulemaking Portal site at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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U.S. Citizenship and Immigration Services, Department of Homeland Security.
30-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The purpose of this notice is to allow an additional 30 days for public comments.
Comments are encouraged and will be accepted until November 27, 2023.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, must be submitted via the Federal eRulemaking Portal website at
USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Samantha Deshommes, Chief, telephone number (240) 721-3000 (This is not a toll-free number; comments are not accepted via telephone message.). Please note contact information provided here is solely for questions regarding this notice. It is not for individual case status inquiries. Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS website at
The information collection notice was previously published in the
You may access the information collection instrument with instructions, or additional information by visiting the Federal eRulemaking Portal site at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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U.S. Citizenship and Immigration Services, Department of Homeland Security.
60-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) invites the general public and other Federal agencies to comment upon this proposed revision of a currently approved collection of information. In accordance with the Paperwork Reduction Act (PRA) of 1995, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days until December 26, 2023.
All submissions received must include the OMB Control Number 1615-0075 in the body of the letter, the agency name and Docket ID USCIS-2007-0029. Submit comments via the Federal eRulemaking Portal website at
USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Samantha Deshommes, Chief, telephone number (240) 721-3000 (This is not a toll-free number. Comments are not accepted via telephone message). Please note contact information provided here is solely for questions regarding this notice. It is not for individual case status inquiries. Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS website at
Since 1997, U.S. immigration law has required certain intending immigrants to submit an Affidavit of Support Under Section 213A of the INA (Form I-864 or Form I-864EZ) executed by a sponsor pledging financial support for the intending immigrant to show that they have adequate means of financial support and are not likely to become a public charge. See INA sections 212(a)(4)(C) and (D). The Affidavit of Support Under Section 213A of the INA is a contract between a sponsor and the U.S. government that imposes a legally enforceable obligation on the sponsor to support the sponsored immigrant until the obligation period ends.
Certain noncitizens are required by regulation to affirmatively request an exemption from filing an Affidavit of Support Under Section 213A of the INA. See 8 CFR 213a.2(a)(1)(i)(B). The Request for Exemption for Intending Immigrant's Affidavit of Support (Form I-864W) is the current mechanism used to affirmatively request the exemption.
However, USCIS is discontinuing the use of the Request for Exemption for Intending Immigrant's Affidavit of Support in its adjudications. Instead, a noncitizen who needs to affirmatively request the exemption from USCIS can request it on the form for their immigration benefit request by checking the appropriate box. For example, an adjustment of status applicant who needs to affirmatively request the exemption will do so on their Application to Register Permanent Residence or Adjust Status (Form I-485) and would not need to complete and submit a Request for Exemption for Intending Immigrant's Affidavit of Support.
You may access the information collection instrument with instructions or additional information by visiting the Federal eRulemaking Portal site at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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Form I-864A is a contract between the sponsor and the sponsor's household members. It is only required if the sponsor used income of their household members to reach the required 125 percent of the Federal poverty guidelines. The contract holds these household members jointly and severally liable for the support of the sponsored immigrant. The information collection required on Form I-864A is necessary for public benefit agencies to enforce the Affidavit of Support in the event the sponsor used income of their household members to reach the required income level and the public benefit agencies are requesting reimbursement from the sponsor.
USCIS uses Form I-864EZ in exactly the same way as Form I-864; however, USCIS collects less information from the sponsors as less information is needed from those who qualify in order to make a thorough adjudication.
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U.S. Citizenship and Immigration Services, Department of Homeland Security.
60-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) invites the public and other Federal agencies to comment upon this proposed extension of a currently approved collection of information. In accordance with the Paperwork Reduction Act (PRA) of 1995, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days until December 26, 2023.
All submissions received must include the OMB Control Number 1615-0125 in the body of the letter, the agency name and Docket ID USCIS-2011-0008. Submit comments via the Federal eRulemaking Portal website at
USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Samantha Deshommes, Chief, telephone number (240) 721-3000 (This is not a toll-free number. Comments are not accepted via telephone message). Please note contact information provided here is solely for questions regarding this notice. It is not for individual case status inquiries. Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS website at
You may access the information collection instrument with instructions or additional information by visiting the Federal eRulemaking Portal site at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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U.S. Citizenship and Immigration Services, Department of Homeland Security.
60-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) invites the general public and other Federal agencies to comment on this proposed revision of a currently approved collection of information. In accordance with the Paperwork Reduction Act (PRA) of 1995, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days until December 26, 2023.
All submissions received must include the OMB Control Number 1615-0028 in the body of the letter, the agency name and Docket ID USCIS-2008-0020. Submit comments via the Federal eRulemaking Portal website at
USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Samantha Deshommes, Chief, telephone number (240) 721-3000 (This is not a toll-free number. Comments are not accepted via telephone message). Please note contact information provided here is solely for questions regarding this notice. It is not for individual case status inquiries. Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS website at
You may access the information collection instrument with instructions or additional information by visiting the Federal eRulemaking Portal site at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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U.S. Geological Survey, Department of the Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995 (PRA), the U.S. Geological Survey (USGS) is proposing a new information collection.
Interested persons are invited to submit comments on or before November 27, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
To request additional information about this information collection request (ICR), contact Rudy Schuster by email at
In accordance with the PRA, 44 U.S.C. 3501
A
As part of our continuing effort to reduce paperwork and respondent burdens, we are again soliciting comments from the public and other federal agencies on the proposed ICR that is described below. We are especially interested in public comment addressing the following:
(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) How the agency might minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments that you submit in response to this notice are a matter of public record. Before including your address, phone number, email address, or other personally identifiable
An agency may not conduct or sponsor, nor is a person required to respond to, a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the PRA (44 U.S.C. 3501
Bureau of Land Management.
Notice of realty action.
The Bureau of Land Management (BLM) proposes a modified competitive sale of an 80-acre parcel of public land in Emery County, Utah. The parcel would be offered for sale pursuant to the John D. Dingell Jr., Conservation, Management, and Recreation Act. The sale would be subject to the applicable provisions of the Federal Land Policy and Management Act of 1976 (FLPMA), as amended, and BLM land sale regulations. The surface estate would be sold for no less than the appraised fair market value of $34,000.
Interested parties must submit written comments, postmarked, or delivered no later than December 11, 2023.
The land would not be offered for sale until after December 26, 2023.
Mail written comments or submit sealed bids to the BLM Price Field Office, Field Manager, 125 South 600 West, Price, UT 84501. Comments may also be emailed to
Patrick Ahrnsbrak, Realty Specialist, BLM Price Field Office, phone: 435-781-2753, or email:
The parcel proposed for sale is isolated from large blocks of Federal land by private land ownership, and is therefore difficult and uneconomic to manage. Enyo Renewable Energy, LLC (Enyo) initially nominated the parcel for the sale. Enyo leased private lands surrounding the parcel to develop the Hornshadow Solar Project, which is a planned 300-megawatt solar photovoltaic (PV) power generation facility that has received a conditional use permit from Emery County. The proposed development is to construct and operate solar PV facilities on lands adjoining the northern and southern boundaries of the BLM sale parcel, also known as Parcel 15. Subsequently, Enyo sold the Hornshadow Solar Project to DESRI Hornshadow Land Holdings, LLC, a wholly owned subsidiary of D.E. Shaw Renewable Investments (DESRI). DESRI has contributed to processing costs associated with the preparation of the modified competitive sale and has therefore been determined to be the designated bidder with the right to meet the highest bid.
The following described public land in Emery County, Utah, located approximately three miles southeast of the town of Castle Dale, has been examined and found suitable for sale in accordance with section 203 of FLPMA, as amended (43 U.S.C. 1713):
The area described contains 80 acres, according to the official plat of the survey of the said land, on file with the BLM.
The parcel proposed for modified competitive sale would include the conveyance of the surface interest of the United States in accordance with section 203 of FLPMA (43 U.S.C. 1713). All mineral interest will be reserved to the United States in accordance with FLPMA section 209 (43 U.S.C. 1719).
No warranty of any kind, express or implied, is given by the United States as to the title, whether or to what extent the land may be developed, its physical condition, future uses, or any other circumstance or condition. The conveyance of any parcel would not be on a contingency basis. However, to the extent required by law, the parcel is subject to the requirements of section 120(h) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).
The proposed sale conforms with the BLM Price Field Office Resource Management Plan (RMP), approved in October 2008. The lands are identified as available for disposal and listed by the legal description in Appendix R-11 of the RMP. A parcel-specific environmental assessment (EA), document number DOI-BLM-UT-G020-2022-0009-EA, was prepared in connection with this realty action and may be viewed at
The parcel proposed for sale has been found appropriate for conveyance under section 203 of FLPMA, and consistent with the following criteria: 43 CFR 2710.0-3(a)(2), “disposal of such tract shall serve important public objectives . . .”; and 43 CFR 2710.0-3(a)(3), “such tract, because of its location or other characteristics is difficult and uneconomic to manage as part of the public lands and is not suitable for management by another Federal department or agency.” The parcel has been proposed for potential future renewable energy development, which has been identified as an important public objective. The parcel is isolated from other public lands and has no legal public access making it difficult and uneconomic to manage. Because this parcel is isolated from other public lands, has no legal public access, does not contain suitable or occupied habitat for federally protected species, or contain other protected resources, it is neither needed for any identified Federal purposes, nor suitable for management by another Federal agency.
Proceeds from the sale would be deposited into the Emery County, Utah, Land Acquisition Account, according to Public Law 116-9, Sec. 1253. Funds can be spent from that account to acquire inholdings in an Emery County wilderness area or the San Rafael Swell Recreation Area. If land acquisition opportunities are not available, the funds could be used for the protection of cultural resources on Federal land in Emery County.
Pursuant to the requirements of 43 CFR 2711.1-2(d), publication of this notice in the
Sealed bids for Parcel 15 must be submitted to the BLM Price Field Office at 125 South 600 West, Price, UT 84501, not later than 4 p.m. Mountain Time on December 26, 2023. Bid envelopes must be marked on the lower left front corner as follows:
If the parcel is not sold pursuant to this notice, it may remain available to non-competitive offers for no less than the fair market value. The acceptance or rejection of any offer to purchase the parcel shall be given in writing by the BLM authorized officer no later than 30 days after receipt of such offer unless the offeror waives this right.
The conveyance document, if issued, will include the following terms, covenants, conditions, and reservations:
1. A reservation to the United States for ditches and canals constructed by the authority of the United States under the Act of August 30, 1890;
2. A reservation to the United States of all mineral rights;
3. Valid existing rights issued prior to conveyance, including Oil and Gas Lease UTU-91334 and Grazing Permit UT25050 (subject to 2-year cancellation notice); and
4. Additional terms and conditions that the authorized officer deems appropriate.
The EA, maps, and associated documents are available for review at the location listed in the
Interested parties and the public may submit in writing any comments concerning the land being considered for sale, including notification of any encumbrances or other claims relating to the identified land, to Parcel 15 Land Sale, BLM Price Field Office, at the address listed in the
Comments may also be emailed to
Before including your address, phone number, email address, or other personal identifying information in your comment, be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. The BLM will not consider comments received via telephone calls.
The BLM Utah State Director will review adverse comments regarding the parcel and may sustain, vacate, or modify this realty action, in whole or in part. In the absence of timely adverse comments, this realty action will become the final determination of the Department of the Interior. The BLM may accept or reject any or all offers or withdraw any land or interest in land from sale.
National Park Service, Interior.
Notice.
The National Park Service is soliciting electronic comments on the
Comments should be submitted electronically by November 13, 2023.
Comments are encouraged to be submitted electronically to
Sherry A. Frear, Chief, National Register of Historic Places/National Historic Landmarks Program, 1849 C Street NW, MS 7228, Washington, DC 20240,
The properties listed in this notice are being considered for listing or related actions in the National Register of Historic Places. Nominations for their consideration were received by the National Park Service before October 14, 2023. Pursuant to Section 60.13 of 36 CFR part 60, comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Nominations submitted by State or Tribal Historic Preservation Officers:
An additional documentation has been received for the following resource(s):
Office of Surface Mining Reclamation and Enforcement, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are proposing to renew an information collection.
Interested persons are invited to submit comments on or before November 27, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
To request additional information about this ICR, contact Mark Gehlhar by email at
In accordance with the Paperwork Reduction Act of 1995 (PRA; 44 U.S.C. 3501
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Commenters were opposed to applicants providing detailed information on contractor hirings at the time of application because AML project procurement process occurs much later in the grant's period of performance. In addition, contracting for AML construction services is governed by each state's procurement laws dictating how contractor bids are to be prioritized and documentation requiring worker's background. This was considered excessively burdensome in the application process and was viewed by applicants better suited for post-award project reporting.
Several commenters expressed concern that requiring information for estimated project benefits submitted with the OSM-51 form duplicates and goes above what is already provided from OSMRE's abandoned mine inventory system. In addition, it appeared as duplicative information because some of the same information is detailed in the Environmental Assessment prepared for each reclamation project which is reviewed prior to issuing the authorization to proceed. Commenters stated OSMRE can collect this benefit-type of information from AML programs in other ways that are not part of the grant application process.
In response to comments OSMRE opted for a simplified version of the OSM-51 form to provide flexibility in how information is submitted and to avoid duplication of other grant information received. In addition, OSMRE allowed the OSM-51 form to be optional to provide applicants flexibility in the choice of format for submitting their program narrative and performance reports.
Commenters also stated that the overall burden hours were understated. OSMRE performed additional outreach with respondents resulting in higher estimated burden hours from increases in annual funding for projects requiring greater time for formalizing submissions.
As part of our continuing effort to reduce paperwork and respondent burdens, we are again soliciting comments from the public and other Federal agencies on the proposed ICR that is described below. We are especially interested in public comment addressing the following:
(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) How might the agency minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments that you submit in response to this notice are a matter of public record. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on September 20, 2023, under section 337 of the Tariff Act of 1930, as amended, on behalf of Wangs Alliance Corporation d/b/a of WAC Lighting of Port Washington, New York. A supplement to the complaint was filed on September 26, 2023. The complaint, as supplemented, alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain smart ceiling fans, components thereof, and associated systems and software thereof, by reason of the infringement of certain claims of U.S. Patent No. 11,028,854 (“the '854 patent”); U.S. Patent No. 10,488,897 (“the '897 patent”); and U.S. Patent No. 11,598,345 (“the '345 patent”). The complaint further alleges that an industry in the United States exists as required by the applicable Federal Statute. The complainant requests that the Commission institute an investigation and, after the investigation, issue a limited exclusion order and cease and desist orders.
The complaint, except for any confidential information contained therein, may be viewed on the Commission's electronic docket (EDIS) at
Katherine Hiner, Office of the Secretary, Docket Services Division, U.S. International Trade Commission, telephone (202) 205-1802.
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain products identified in paragraph (2) by reason of infringement of one or more of claims 1-3 and 8-10 of the '854 patent; claims 1-5, 7-9, and 11 of the '897 patent; and claims 1, 3-10, and 12-17 of the '345 patent, and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) Pursuant to section 210.10(b)(1) of the Commission's Rules of Practice and Procedure, 19 CFR 210.10(b)(1), the plain language description of the accused products or category of accused products, which defines the scope of the investigation, is “smart ceiling fans, smart fan devices, and components thereof, specifically electrical boards carrying circuitry that enables smart features thereof, receivers and their circuitry, motors, housings, electrical conversion filters, and controllers, and systems and software associated with any of the foregoing”;
(3) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is:
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(4) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
The Office of Unfair Import Investigations is not participating as a party to this investigation.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(e) and 210.13(a), as amended in 85 FR 15798 (March 19, 2020), such responses will be considered by the Commission if received not later than 20 days after the date of service by the complainant of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
United States International Trade Commission.
October 31, 2023 at 11:00 a.m.
Room 101, 500 E Street SW, Washington, DC 20436, Telephone: (202) 205-2000.
Open to the public.
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2. Minutes.
3. Ratification List.
4. Commission vote on Inv. Nos. 701-TA-683 and 731-TA-1594-1596 (Final) (Paper File Folders from China, India, and Vietnam). The Commission currently is scheduled to complete and file its determinations and views of the Commission on November 13, 2023.
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Sharon Bellamy, Supervisory Hearings and Information Officer, 202-205-2000.
The Commission is holding the meeting under the Government in the Sunshine Act, 5 U.S.C. 552(b). In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting. Earlier notification of this meeting was not possible.
By order of the Commission.
Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
30-Day notice.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection was previously published in the
Comments are encouraged and will be accepted for 30 days until November 27, 2023.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact: Lakisha Gregory, either by email at
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
Written comments and recommendations for this information collection should be submitted within 30 days of the publication of this notice on the following website
DOJ seeks PRA authorization for this information collection for three (3) years. OMB authorization for an ICR cannot be for more than three (3) years without renewal. The DOJ notes that information collection requirements submitted to the OMB for existing ICRs receive a month-to-month extension while they undergo review.
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If additional information is required, contact: Darwin Arceo, Department
Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
30-Day notice.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection was previously published in the
Comments are encouraged and will be accepted for 30 days until November 27, 2023.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact: Leslie Anderson, by email at
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
Written comments and recommendations for this information collection should be submitted within 30 days of the publication of this notice on the following website
DOJ seeks PRA authorization for this information collection for three (3) years. OMB authorization for an ICR cannot be for more than three (3) years without renewal. The DOJ notes that information collection requirements submitted to the OMB for existing ICRs receive a month-to-month extension while they undergo review.
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Executive Office for Immigration Review, Department of Justice.
30-Day notice.
The Executive Office for Immigration Review (EOIR), Department of Justice (DOJ), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). The proposed information collection was previously published in the
Comments are encouraged and will be accepted for 30 days until November 27, 2023.
If you have additional comments
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
Written comments and recommendations for this information collection should be submitted within 30 days of the publication of this notice on the following website
The DOJ seeks PRA authorization for this information collection for three (3) years. OMB authorization for an information collection request (ICR) cannot be for more than three (3) years without renewal. The DOJ notes that information collection requirements submitted to the OMB for existing ICRs receive a month-to-month extension while they undergo review.
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Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
60-Day notice.
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), Department of Justice (DOJ), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 60 days until December 26, 2023.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, contact: Shawn Stevens, ATF-FELC either by mail at 244 Needy Road, Martinsburg, WV 25427, by email at
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
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If additional information is required contact: Darwin Arceo, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE, 4W-218, Washington, DC.
Drug Enforcement Administration, Department of Justice.
60-Day notice.
The Drug Enforcement Administration (DEA), Department of Justice (DOJ), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 60 days until December 26, 2023.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Scott A Brinks, Regulatory Drafting and Policy Support Section, Drug Enforcement Administration; Mailing Address: 8701 Morrissette Drive, Springfield, Virginia 22152; Telephone: (571) 362-3261, Email:
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
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Drug Enforcement Administration, Department of Justice.
60-Day notice.
The Drug Enforcement Administration (DEA), Department of Justice (DOJ), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 60 days until December 26, 2023.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Scott A Brinks, Regulatory Drafting and Policy Support Section, Drug Enforcement Administration; Mailing Address: 8701 Morrissette Drive, Springfield, Virginia 22152; Telephone: (571) 362-3261, Email:
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
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Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
60-Day notice.
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), Department of Justice (DOJ), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 60 days until December 26, 2023.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, contact: Renee Reid, Office of Field Operations, Special Operations Division—Mailstop (7.E—301) either by mail at 99 New York Ave. NE, Washington, DC 20226, by email at
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
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Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
60-Day notice.
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), Department of Justice (DOJ), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 60 days until December 26, 2023.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, contact: Gwen Cates, PSD, either by mail at Personnel Security Division, Bureau of ATF, Washington, DC 20226, by email at
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
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National Endowment for the Humanities; National Foundation on the Arts and the Humanities.
Notice of intention to award non-competitive cooperative agreement.
NEH intends to award $491,049 to the National Native American Boarding School Healing Coalition (NABS) for continued survey work and prioritization of primary sources documenting the history of Indian boarding schools in the U.S.; digitization and description of 120,000 pages of federal boarding school records held by the National Archives and Records Administration (NARA); and collaboration among source communities, the National Indian Boarding School Digital Archive Data Aggregation Working Group, the Social Networks and Archival Context cooperative, and federal partners. This action is necessary to further the development of digital access to records significant to public understanding of the history and impacts of Indian boarding schools in the U.S. Because NABS has invested four years into developing a unique platform with the technical considerations to aggregate boarding school records of various sizes and formats and leads an established community of practice creating standards and best practices in boarding school record curation, NEH determined that a competition to fund the construction of a similar platform and capacities would be uneconomical and impractical.
The anticipated period of performance is January 1, 2024 to December 31, 2025.
Briann Greenfield, Director, Division Preservation & Access, 400 Seventh Street SW, Washington, DC 20024. Phone: 202.606.8422. Email:
NEH is an independent federal agency created in 1965. It is one of the largest funders of humanities programs in the United States. Because democracy demands wisdom, NEH serves and strengthens our republic by promoting excellence in the humanities and conveying the lessons of history to all Americans. NEH accomplishes this mission by awarding grants for top-rated proposals examined by panels of independent, external reviewers.
NEH offers funding under the authority of
Nuclear Regulatory Commission.
License amendment application; opportunity to comment, request a hearing, and petition for leave to intervene.
The U.S. Nuclear Regulatory Commission (NRC) is considering issuance of an amendment to Renewed Facility Operating License No. NPF-42, issued to Wolf Creek Nuclear Operating Corporation, for operation of the Wolf Creek Generating Station, Unit 1. The proposed amendment would modify the implementation date of License Amendment No. 237 for Wolf Creek Generating Station, Unit 1.
Submit comments by November 27, 2023. Request for a hearing or petitions for leave to intervene must be filed by December 26, 2023.
You may submit comments by any of the following methods; however, the NRC encourages electronic comment submission through the Federal rulemaking website:
• Federal rulemaking website: Go to
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Samson Lee, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-415-3168; email:
Please refer to Docket ID NRC-2023-0185 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:
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The NRC encourages electronic comment submission through the Federal rulemaking website (
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
The NRC is considering issuance of an amendment to Renewed Facility Operating License No. NPF-42, issued to Wolf Creek Nuclear Operating Corporation, for operation of the Wolf Creek Generating Station, Unit 1, located in Coffey County, Kansas.
By letter dated August 31, 2023 (ADAMS Accession No. ML23165A250), the NRC issued Amendment No. 237 to Renewed Facility Operating License No. NPF-42 for the Wolf Creek Generating Station, Unit 1. The amendment revised License Condition 2.C.(5), “Fire Protection (Section 9.5.1, SER [Safety Evaluation Report], Section 9.5.1.8, SSER [Supplement to SER] #5),” and the Updated Safety Analysis Report to allow the use of hard hat mounted portable lights as the primary emergency lighting means in certain fire areas for illuminating safe shutdown equipment, and access and egress routes to the equipment. By letter dated October 19, 2023 (ADAMS Accession No. ML23292A357), Wolf Creek Nuclear Operating Corporation requested correction of the NRC staff safety evaluation for Amendment No. 237. Wolf Creek Nuclear Operating Corporation stated that it cannot implement the amendment as approved and is requesting modification of the implementation date for Amendment No. 237 from 90 days after approval of Amendment No. 237 to 90 days after the NRC corrects the associated safety evaluation.
Before any issuance of the proposed license amendment, the NRC will need to make the findings required by the Atomic Energy Act of 1954, as amended (the Act), and NRC's regulations.
The NRC has made a proposed determination that the license amendment request involves no significant hazards consideration (NSHC). Under the NRC's regulations in section 50.92 of title 10 of the
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed modification to the 90-day implementation date for License Amendment Number 237 does not involve a significant increase in the probability or consequences of an accident previously evaluated. The existing Fire Protection Program will remain in effect during the modified implementation period.
The current Fire Protection Program and associated post-fire operator manual actions for a fire outside the control room will continue to remain feasible and reliable, demonstrating that the plant can be safely shutdown in the event of a fire. The use of the existing Fire Protection Program will not adversely affect the performance of operator manual actions in support of applicable procedures.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed modification to the 90-day implementation date for License Amendment Number 237 does not create the possibility of a new or different kind of accident from any accident previously evaluated. The existing Fire Protection Program will remain in effect during the modified implementation period. Considering the current Fire Protection Program remains in place, no physical alteration of the plant will occur and does not result in the installation of any new or different kind of equipment.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
The proposed modification to the 90-day implementation date for License Amendment Number 237 is not a reduction in margin of safety. The existing Fire Protection Program will remain in effect during the modified implementation period and has an acceptable margin of safety and has been approved by the NRC.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the license amendment request involves NSHC.
The NRC is seeking public comments on this proposed determination that the license amendment request involves NSHC. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of the 60 day notice period. However, if circumstances change during the notice period, such that failure to act in a timely way would result, for example, in derating or shutdown of the facility, the Commission may issue the license amendment before the expiration of the notice period, provided that its final determination is that the amendment involves NSHC. The final determination will consider all public and State comments received. If the Commission takes action prior to the expiration of either the comment period or the notice period, it will publish in the
Within 60 days after the date of publication of this notice, any person (petitioner) whose interest may be affected by this action may file a request for a hearing and petition for leave to intervene (petition) with respect to the action. Petitions shall be filed in
Petitions must be filed no later than 60 days from the date of publication of this notice in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document. Petitions and motions for leave to file new or amended contentions that are filed after the deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the three factors in 10 CFR 2.309(c)(1)(i) through (iii).
If a hearing is requested and the Commission has not made a final determination on the issue of NSHC, the Commission will make a final determination on the issue of NSHC, which will serve to establish when the hearing is held. If the final determination is that the amendment request involves NSHC, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, then any hearing held would take place before the issuance of the amendment unless the Commission finds an imminent danger to the health or safety of the public, in which case it will issue an appropriate order or rule under 10 CFR part 2.
A State, local governmental body, Federally recognized Indian Tribe, or designated agency thereof, may submit a petition to the Commission to participate as a party under 10 CFR 2.309(h) no later than 60 days from the date of publication of this notice. Alternatively, a State, local governmental body, Federally recognized Indian Tribe, or agency thereof may participate as a non-party under 10 CFR 2.315(c).
For information about filing a petition and about participation by a person not a party under 10 CFR 2.315, see ADAMS Accession No. ML20340A053 (
All documents filed in NRC adjudicatory proceedings, including documents filed by an interested State, local governmental body, Federally recognized Indian Tribe, or designated agency thereof that requests to participate under 10 CFR 2.315(c), must be filed in accordance with 10 CFR 2.302. The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases, to mail copies on electronic storage media, unless an exemption permitting an alternative filing method, as further discussed, is granted. Detailed guidance on electronic submissions is located in the “Guidance for Electronic Submissions to the NRC” (ADAMS Accession No. ML13031A056) and on the NRC's public website at
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public website at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC's Electronic Filing Help Desk through the “Contact Us” link located on the NRC's public website at
Participants who believe that they have good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing stating why there is good cause for not filing electronically and requesting authorization to continue to submit documents in paper format. Such filings must be submitted in accordance with 10 CFR 2.302(b)-(d). Participants filing adjudicatory documents in this manner are responsible for serving their documents on all other participants. Participants granted an exemption under 10 CFR 2.302(g)(2) must still meet the electronic formatting requirement in 10 CFR 2.302(g)(1), unless the participant also seeks and is granted an exemption from 10 CFR 2.302(g)(1).
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket, which is publicly available at
For further details with respect to this action, see the application for license amendment dated October 19, 2023 (ADAMS Accession No. ML23292A359).
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of submission to the Office of Management and Budget; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) has recently submitted a request for renewal of an existing collection of information to the Office of Management and Budget (OMB) for review. The information collection is entitled, NRC Form 241, “Report of Proposed Activities in Non-Agreement States, Areas of Exclusive Federal Jurisdiction, or Offshore Waters.”
Submit comments by November 27, 2023. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
David Cullison, NRC Clearance Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
Please refer to Docket ID NRC-2022-0207 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:
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Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. All comment submissions are posted at
If you are requesting or aggregating comments from other persons for submission to the OMB, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that comment submissions are not routinely edited to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the NRC recently submitted a request for renewal of an existing collection of information to OMB for review entitled, NRC Form 241, “Report of Proposed Activities in Non-Agreement States, Areas of Exclusive Federal Jurisdiction, or Offshore Waters.” The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The NRC published a
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For the Nuclear Regulatory Commission.
Notice of request for public comment and submission to OMB of proposed collection of information.
The Department of State has submitted the information collections described below to the Office of Management and Budget (OMB) for approval. In accordance with the Paperwork Reduction Act of 1995, we are requesting comments on these collections from all interested individuals and organizations. The purpose of this Notice is to allow 30 days for public comment.
The Department will accept comments from the public up to November 27, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
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In an ongoing effort to reduce public burden times, the “Sex” field (previously Item 2) has been removed from the DS-10, Birth Affidavit. Passport Services determined that this decision will not affect the procedural or policy aspects of DS-10 form adjudication or impact the determination of U.S. citizenship findings by passport adjudicators.
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All three forms have been amended to replace the term “sex” with “gender” and to be pronoun-inclusive of all genders.
When needed, the Birth Affidavit is either provided by the Department or downloaded from the Department's website and completed by the affiant. It must be signed in the presence of a passport agent, acceptance agent, or notary.
When needed, the Affidavit Regarding a Change of Name is either provided by the Department or downloaded from the Department's website and completed by the affiant. It must be signed in the presence of a passport agent, passport acceptance agent, or notary.
When needed, the Statement of Non-Receipt of a U.S. Passport is either provided by the Department or downloaded from the Department's website and completed by the passport applicant.
Federal Highway Administration (FHWA), Department of Transportation, Utah Department of Transportation (UDOT).
Notice of availability and notice of limitations on claims for judicial review of actions by UDOT and other Federal agencies.
The FHWA, on behalf of UDOT, is issuing this notice to announce the availability of the Finding of No Significant Impact (FONSI) for the Interstate 15 (I-15) St. George Improved Project, Bluff Street to St. George Boulevard, in St. George City, Washington County, Utah. In addition, this notice is being issued to announce actions taken by UDOT that are final Federal agency actions related to the project referenced above. Those actions grant licenses, permits, and/or approvals for the project. The FONSI provides details on the Selected Alternative for the proposed improvements.
This decision became operative on October 12, 2023. By this notice, FHWA, on behalf of UDOT, is advising the public of final agency actions subject to 23 U.S.C. 139(
Carissa Watanabe, Environmental Program Manager, UDOT Environmental Services, P.O. Box 143600, Salt Lake City, UT 84114; (503) 939-3798; email:
The environmental review, consultation, and other actions required by applicable Federal environmental laws for this action are being, or have been, carried out by UDOT pursuant to 23 U.S.C. 327 and a Memorandum of Understanding (MOU) dated May 26, 2022, and executed by FHWA and UDOT. Actions taken by UDOT on FHWA's behalf pursuant to 23 U.S.C. 327 constitute Federal agency actions for purposes of Federal law. Notice is hereby given that UDOT has taken final agency actions subject to 23 U.S.C. 139(
UDOT's purpose for this project is to improve operations of the I-15 Bluff Street (Milepost 6) and St. George Boulevard (Milepost 8) interchanges; improve access from I-15 to regional destinations in St. George City; and improve mobility options for a broad range of users, including pedestrians and cyclists. UDOT has selected the Single Point Urban Interchange (SPUI) alternative. The selected alternative would construct: a new SPUI interchange on I-15 at 700 South; roadway improvements along 700 South and the adjacent intersections; and a new 12-foot-wide shared-use trail.
The project is identified in UDOT's adopted 2023-2028 State Transportation Improvement Program as project number 18218 with funding identified for final design and construction. The project is also included in the Dixie Metropolitan Planning Organization (MPO) 2023-2050 Regional Transportation Plan approved in May 2023 and the Dixie MPO 2023-2027 Transportation Improvement Plan.
The actions by UDOT, and the laws under which such actions were taken, are described in the Environmental Assessment (EA) approved on April 25, 2023, and the FONSI (Finding of No Significant Impact for I-15 St. George Improved; Bluff Street to St. George Boulevard; St. George City, Washington County, Utah, Project No. S-I15-1(136)6) approved on October 12, 2023, and other documents in the project record. The EA and FONSI are available for review at the UDOT Central Complex, 4501 South 2700 West, Salt Lake City, Utah. In addition, the EA and FONSI documents can be viewed and downloaded from the project website at
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Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of availability and request for comments.
This document provides the public with notice that, on October 16, 2023, New Jersey Transit (NJT) submitted a request for amendment (RFA) to its FRA-certified positive train control (PTC) system. The RFA notifies FRA of a planned PTC outage to its I-ETMS PTC System for maintenance purposes. FRA is publishing this notice and inviting public comment on the railroad's RFA to its PTC system.
FRA will consider comments received by November 13, 2023. FRA may consider comments received after that date to the extent practicable and without delaying implementation of valuable or necessary modifications to a PTC system.
Gabe Neal, Staff Director, Signal, Train Control, and Crossings Division, telephone: 816-516-7168, email:
In general, Title 49 United States Code (U.S.C.) section 20157(h) requires FRA to certify that a host railroad's PTC system complies with Title 49 Code of Federal Regulations (CFR) part 236, subpart I, before the technology may be operated in revenue service. Before making certain changes to an FRA-certified PTC system or the associated FRA-approved PTC Safety Plan (PTCSP), a host railroad must submit, and obtain FRA's approval of, an RFA to its PTC system or PTCSP under 49 CFR 236.1021.
Under 49 CFR 236.1021(e), FRA's regulations provide that FRA will publish a notice in the
In accordance with 49 CFR 211.3, FRA solicits comments from the public to better inform its decisions. DOT posts these comments, without edit, including any personal information the commenter provides, to
Issued in Washington, DC.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of availability and request for comments.
This document provides the public with notice that, on October 17, 2023, the National Railroad Passenger Corporation (Amtrak) submitted a request for amendment (RFA) to its FRA-certified positive train control (PTC) system. FRA is publishing this notice and inviting public comment on the railroad's RFA to its PTC system.
FRA will consider comments received by November 15, 2023. FRA may consider comments received after that date to the extent practicable and without delaying implementation of valuable or necessary modifications to a PTC system.
Gabe Neal, Staff Director, Signal, Train Control, and Crossings Division, telephone: 816-516-7168, email:
In general, Title 49 United States Code (U.S.C.) section 20157(h) requires FRA to certify that a host railroad's PTC system complies with title 49 Code of Federal Regulations (CFR) part 236, subpart I, before the technology may be operated in revenue service. Before making certain changes to an FRA-certified PTC system or the associated FRA-approved PTC Safety Plan (PTCSP), a host railroad must submit, and obtain FRA's approval of, an RFA to its PTC system or PTCSP under 49 CFR 236.1021.
Under 49 CFR 236.1021(e), FRA's regulations provide that FRA will publish a notice in the
In accordance with 49 CFR 211.3, FRA solicits comments from the public to better inform its decisions. DOT posts these comments, without edit, including any personal information the commenter provides, to
Issued in Washington, DC.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of availability and request for comments.
This document provides the public with notice that, on October 16, 2023, the Consolidated Rail Corporation (Conrail) submitted a request for amendment (RFA) to its FRA-certified positive train control (PTC) system to notify FRA of a planned PTC outage to perform a necessary PTC Back Office Subsystem upgrade during December 2023. FRA is publishing this notice and inviting public comment on the railroad's RFA to its PTC system.
FRA will consider comments received by November 15, 2023. FRA
Gabe Neal, Staff Director, Signal, Train Control, and Crossings Division, telephone: 816-516-7168, email:
In general, Title 49 United States Code (U.S.C.) section 20157(h) requires FRA to certify that a host railroad's PTC system complies with title 49 Code of Federal Regulations (CFR) part 236, subpart I, before the technology may be operated in revenue service. Before making certain changes to an FRA-certified PTC system or the associated FRA-approved PTC Safety Plan (PTCSP), a host railroad must submit, and obtain FRA's approval of, an RFA to its PTC system or PTCSP under 49 CFR 236.1021.
Under 49 CFR 236.1021(e), FRA's regulations provide that FRA will publish a notice in the
Interested parties are invited to comment on Conrail's RFA to its PTC system by submitting written comments or data. During FRA's review of this railroad's RFA, FRA will consider any comments or data submitted within the timeline specified in this notice and to the extent practicable, without delaying implementation of valuable or necessary modifications to a PTC system.
In accordance with 49 CFR 211.3, FRA solicits comments from the public to better inform its decisions. DOT posts these comments, without edit, including any personal information the commenter provides, to
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Notice and request for comment on the reinstatement of a previously approved collection of information.
The National Highway Traffic Safety Administration (NHTSA) invites public comments about our intention to request approval from the Office of Management and Budget (OMB) for the reinstatement of a previously approved information collection. Before a Federal agency can collect certain information from the public, it must receive approval from OMB. Under procedures established by the Paperwork Reduction Act of 1995, before seeking OMB approval, Federal agencies must solicit public comment on proposed collections of information, including extensions and reinstatement of previously approved collections.
Comments must be submitted on or before December 26, 2023.
You may submit comments identified by the Docket No. NHTSA-2016-0065 through any of the following methods:
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For additional information or access to background documents, contact Jeremy Gunderson, Recall Management Division (NEF-107),
Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Pursuant to the Act, motor vehicle and motor vehicle equipment manufacturers are obligated to notify, and then provide various information and documents to, NHTSA when a safety defect or noncompliance with FMVSS is identified in products they manufactured.
Manufacturers are also required to file with NHTSA a plan explaining how they intend to reimburse owners and purchasers who paid to have their products remedied before being notified of the safety defect or noncompliance and explain that plan in the notifications they issue to owners and purchasers about the safety defect or noncompliance.
The Act and part 573 also contain numerous information collection requirements specific to tire recall and remedy campaigns. These requirements relate to the proper disposal of recalled tires, including a requirement that the manufacturer conducting the tire recall submit a plan and provide specific instructions to certain persons (such as dealers and distributors) addressing that disposal, and a requirement that those persons report back to the manufacturer certain deviations from the plan.
49 U.S.C. 30166(n) and its implementing regulation found at 49 CFR 573.10 mandate that anyone who knowingly and willfully sells or leases for use on a motor vehicle a defective tire or a tire that is not compliant with FMVSS, and with actual knowledge that the tire manufacturer has notified its dealers of the defect or noncompliance as required under the Act, is required to report that sale or lease to NHTSA no more than five working days after the person to whom the tire was sold or leased takes possession of it.
In summary, we estimate that there will be a total of 240 respondents per year associated with OMB No. 2127-0004.
Our prior estimates of the burden hours and cost associated with the requirements currently covered by this
Based on current information, we estimate 240 distinct manufacturers filing an average of 976 part 573 Safety Recall Reports each year. This is a change from our previous estimate of 988 part 573 Safety Recall Reports filed by 249 manufacturers each year. In addition, with reference to the metric associated with NHTSA's Vehicle Identification Number (VIN) Look-up Tool regulation,
We continue to estimate that maintenance of the required owner, purchaser, dealer, and distributors lists requires 8 hours a year per manufacturer. We also continue to estimate it takes a major passenger vehicle manufacturer 40 hours to complete each part 573 Safety Recall notification report to NHTSA, and it takes all other manufacturers 4 hours. Accordingly, we estimate the annual burden hours related to the reporting to NHTSA of a safety defect or noncompliance for the 17 major passenger vehicle-manufacturers to be 14,200 hours annually (355 notices × 40 hours/report), and that all other manufacturers require a total of 2,484 hours annually (621 notices × 4 hours/report) to file their notices. Thus, the estimated annual burden hours related to the reporting to NHTSA of a safety defect or noncompliance is 17,164 hours (14,200 hours + 2,484 hours) + (240 MFRs × 8 hours to maintain purchaser lists).
We continue to estimate that an additional 40 hours will be needed to account for major passenger vehicle manufacturers adding details to Part 573 Safety Recall Reports relating to the intended schedule for notifying its dealers and distributors and tailoring its notifications to dealers and distributors in accordance with the requirements of 49 CFR 577.13. An additional 2 hours will be needed to account for this obligation in other manufacturers' Safety Recall Reports. This burden is estimated at 15,442 hours annually (621 notices × 2 hours/notification) + (355 notices × 40 hours/notification).
49 U.S.C. 30166(f) requires manufacturers to provide to the Agency copies of all communications regarding defects and noncompliances sent to owners, purchasers, and dealerships. Manufacturers must index these communications by the year, make, and model of the vehicle as well as provide a concise summary of the subject of the communication. We continue to estimate this burden requires 3 hours for each vehicle recall for the 17 major passenger vehicle manufacturers, and 30 minutes for all other manufacturers for each vehicle recall. This totals an estimated 1,375.5 hours annually (355 recalls × 3 hours for the 17 major passenger vehicle manufacturers) + (621 recalls × .5 for all other manufacturers).
In the event a manufacturer supplied the defective or noncompliant product to independent dealers through independent distributors, that manufacturer is required to include in its notifications to those distributors an instruction that the distributors are then to provide copies of the manufacturer's notification of the defect or noncompliance to all known distributors or retail outlets further down the distribution chain within five working days.
As for the burden linked with a manufacturer's preparation of and notification concerning its reimbursement for pre-notification remedies, we continue to estimate that the preparation of a reimbursement plan takes approximately 4 hours annually. We also continue to estimate that an additional 1.5 hours per year is spent by the 17 major passenger vehicle manufacturers adapting the plan to particular defect and noncompliance notifications to NHTSA and adding tailored language about the plan to a particular safety recall's owner notification letters, whereas an additional .5 hours per year is spent on this task by all other manufacturers. And we continue to estimate that an additional 12 hours annually is spent disseminating plan information, for a total of 4,827 annual burden hours ((249 MFRs × 4 hours to prepare plan) + (355 recalls × 1.5 hours tailoring plan for each recall) + (621 recalls × .5 hours) + (249 MFRs × 12 hours to disseminate plan information)).
The Safety Act and 49 CFR part 573 also contain numerous information collection requirements specific to tire recall and remedy campaigns, as well as a statutory and regulatory reporting requirement that anyone who knowingly and intentionally sells or leases a defective or noncompliant tire notify NHTSA of that activity.
Manufacturers are required to include specific information related to tire disposal in the notifications they provide NHTSA concerning identification of a safety defect or noncompliance with FMVSS in their tires, as well as in the notifications they issue to their dealers or other tire outlets participating in the recall campaign.
Manufacturer-owned or controlled dealers are required to notify the manufacturer and provide certain information should they deviate from the manufacturer's disposal plan. Consistent with our previous analysis, we continue to ascribe zero burden hours to this requirement since to date no such reports have been provided, and our original expectation that dealers would comply with manufacturers' plans has proven accurate.
Accordingly, we estimate 22 burden hours a year will be spent complying with the tire recall campaign requirements found in 49 CFR 573.6(c)(9).
The agency continues to estimate 1 burden hour annually will be spent preparing and submitting reports of a defective or noncompliant tire being intentionally sold or leased under 49 U.S.C. 30166(n) and its implementing regulation at 49 CFR 573.10.
We continue to expect that nine vehicle manufacturers, who did not operate VIN-based recalls lookup systems prior to August 2013, incur certain recurring burdens on an annual basis. We continue to estimate that 100 burden hours will be spent on system and database administrator support. These 100 burden hours include: Backup data management and monitoring; database management, updates, and log management; and data transfer, archiving, quality assurance, and cleanup procedures. We continue to estimate another 100 burden hours will be incurred on web/application developer support. These burdens include: Operating system and security patch management; application/web server management; and application server system and log files management. We continue to estimate these burdens will total 1,800 hours each year (9 MFRs × 200 hours). We also continue to estimate the recurring costs of these burden hours will be $30,000 per manufacturer.
Changes to 49 CFR part 573 in 2013 required 27 manufacturers to update each recalled vehicle's repair status no less than every 7 days, for 15 years from the date the VIN is known to be included in the recall. This ongoing requirement to update the status of a VIN for 15 years continues to add a recurring burden on top of the one-time burden to implement and operate these online search tools. We continue to estimate that 8 affected motorcycle manufacturers will make recalled VINs available for an average of 2 recalls each year and 19 affected passenger vehicle manufacturers will make recalled VINs available for an average of 8 recalls each year. We believe it will take no more than 1 hour, and potentially less with automated systems, to update the VIN status of vehicles that have been remedied under the manufacturer's remedy program. We continue to estimate this will require 8,736 burden hours per year (1 hour × 2 recalls × 52 weeks × 8 MFRs + 1 hour × 8 recalls × 52 weeks × 19 MFRs) to support the requirement to update the recalls completion status of each VIN in a recall at least weekly for 15 years.
Due to a congressionally-mandated increase in the required number of quarterly reports for each recall, the number of quarterly reports that track the completion of safety recalls has also increased. Our previous estimate of 4,498 quarterly reports received annually is now revised upwards to 5,875 quarter reports received annually. We continue to estimate it takes manufacturers 1 hour to gather the pertinent information for each quarterly report, and 10 additional hours for the 17 major passenger vehicle manufacturers to submit electronic reports. We therefore now estimate that the quarterly reporting burden pursuant to 49 U.S.C.A. 30118 totals 6,045 hours ((5,875 quarterly reports × 1 hour/report) + (17 MFRs × 10 hours for electronic submission)).
We continue to estimate that 20 percent of part 573 reports will involve a change or addition regarding recall components, and that at two hours per amended report, this totals 390 burden hours per year (976 recalls × .20 = 195 recalls; 195 × 2 = 390 hours).
Additionally, per the Bipartisan Infrastructure Law (Pub. L. 117-58, title IV, subtitle B, section 24202), manufacturers are now required to submit three (3) annual recall completion rate reports. NHTSA estimates that it will receive and average of 316 reports yearly from manufacturers. We estimate it takes manufacturers 2 hours to complete annual reports, including 1.5 hours to gather pertinent information for each report, and .5 hours for the 17 major passenger vehicle manufacturers to submit the electronic reports. We therefore estimate that the annual reporting burden pursuant to 49 U.S.C. 30118 totals 632 hours ((316 annual reports × 1.5 hours) + (17 MFRs × .5 hours for electronic submission)). We continue to estimate that 20 percent of Part 573 reports will involve a change or addition regarding recall components, and that at two hours per amended report, this totals 390 burden hours per year (976 recalls × .20 = 195 recalls; 195 × 2 = 390 hours).
As to the requirement that manufacturers notify NHTSA in the event of a bankruptcy, we expect this notification to take an estimated 2 hours to draft and submit to NHTSA. We continue to estimate that only 10 manufacturers might submit such a notice to NHTSA each year, so we calculate the total burden at 20 hours (10 MFRs × 2 hours).
We continue to estimate that it takes the 17 major passenger vehicle manufacturers an average of 11 hours to draft their notification letters, submit them to NHTSA for review, and then finalize them for mailing to their affected owners and purchasers. We also continue to estimate it takes 8 hours for all other manufacturers to perform this task. Accordingly, we estimate that the 49 CFR part 577 requirements result in 8,873 burden hours annually (11 hours per recall × 355 recalls per year) + (8 hours per recall × 621 recalls per year).
We previously calculated that about 12 percent of past recalls require an interim notification mailing, but recent trends show that 3 percent of recalls require an interim owner notification mailing. We continue to estimate the preparation of an interim notification can take up to 10 hours. We therefore estimate that 1,250 burden hours are associated with the 60-day interim notification requirement (976 recalls × .03 = 34 recalls; 34 recalls times 10 hours per recall = 340 hours).
As for costs associated with notifying owners and purchasers of recalls, to reflect an increase in postage rates, we are revising our estimate of the cost of first-class mail notification to $1.53 per notification, on average. This cost estimate includes the costs of printing and mailing, as well as the costs vehicle manufacturers may pay to third-party vendors to acquire the names and addresses of the current registered owners from state and territory departments of motor vehicles. In reviewing recent recall figures, we determined that an estimated 51.4 million letters are mailed yearly totaling $78,642,000 ($1.53 per letter × 51,400,000 letters). The requirement in 49 CFR part 577 for a manufacturer to notify their affected customers within 60 days would add an additional $10,223,460 (51,400,000 letters × .03 requiring interim owner notifications = 1,542,000 letters; 1,542,000 × $1.53 = $2,359,260). In total, we estimate that the current 49 CFR part 577 requirements cost manufacturers a total of $81,001,260 annually ($78,642,000 for owner notification letters + $2,359,260 for interim notification letters = $81,001,260).
Utilizing these variables, we now estimate an initial annualized cost over the next three years of $81,271,260 per year.
Because of the forgoing burden estimates, we are revising the burden estimate associated with this collection. The 49 CFR part 573 and 49 CFR part 577 requirements found in today's notice will require 68,837.5 hours each year. Additionally, manufacturers impacted by 49 CFR part 573 and 49 CFR part 577 requirements will incur a recurring annual cost estimated at $81,271,260 total. NHTSA welcomes further comment and data on these estimates.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on continuing information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning late filing of certification or notices.
Written comments should be received on or before December 26, 2023 to be assured of consideration
Direct all written comments to Andres Garcia, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or by email to
Requests for additional information or copies of the revenue procedure should be directed to Kerry Dennis at (202) 317-5751, or at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet, at
The following paragraph applies to all the collections of information covered by this notice.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained if their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on continuing information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning production tax credit for refined coal.
Written comments should be received on or before December 26, 2023 to be assured of consideration.
Direct all written comments to Andres Garcia, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or by email to
Requests for additional information or copies of the notice should be directed to Kerry Dennis at (202) 317-5751, or at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet, at
The following paragraph applies to all the collections of information covered by this notice.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained if their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act, 5 U.S.C. ch. 10, that the Veterans' Advisory Committee on Education (“Committee”) will meet November 13-15, 2023, from 11.00 a.m. to 5:00 p.m. Eastern Standard Time virtually via the Microsoft Teams platform. All sessions are open to the public.
The purpose of the Committee is to advise the Secretary of Veterans Affairs on the administration of education and training programs for Veterans, Service members, Reservists and Dependents of Veterans including programs under Chapters 30, 32, 33, 35, and 36 of title 38, and Chapter 1606 of title 10, United States Code.
The purpose of this meeting is for the Committee to hear reports from three subcommittees (Modernization, Veteran Vocational Education and Training Programs, and Distance Learning), to hear other updates and briefings, and to discuss potential 2023 recommendations.
Interested persons may attend virtually via Microsoft Teams. Please email
Time will be allotted for receiving oral presentations from the public and individuals wishing to share information with the Committee may submit written statements for the Committee's review to Ms. Kaprice Dyson, Designated Federal Official, Department of Veterans Affairs, by email at
Department of Energy.
Notice of proposed rulemaking (NOPR) and request for comments.
The Department of Energy (DOE) proposes a comprehensive revision of its Acquisition Regulation in order to update and streamline the policies, procedures, provisions and clauses that are applicable to its contracts. This rulemaking proposes to update or eliminate coverage that is obsolete or that unnecessarily duplicates the Federal Acquisition Regulation (FAR) and retain only that coverage which either implements or supplements the FAR for the award and administration of the DOE's contracts. The rule proposes the addition of several new clauses as well as amendments to several existing clauses, which will promote more uniform application of the DOE's contract award and administration policies.
DOE will accept written comments regarding this notice of proposed rulemaking no later than December 26, 2023.
Interested persons are encouraged to submit comments using the Federal eRulemaking Portal at
The docket, which includes
The docket web page can be found at the
Mr. Jason Taylor, U.S. Department of Energy, Office of Management, Office of Acquisition Management at (202) 287-1560 or by email at
The FAR (48 CFR chapter 1) is the primary regulation for use by all executive agencies in their acquisition of supplies and services with appropriated funds. The Office of Federal Procurement Policy Act (OFPP Act), 41 U.S.C. 1702, authorizes the issuance of agency-specific acquisition regulations that implement or supplement the FAR. Pursuant to this authority, DOE and the National Nuclear Security Administration (NNSA) promulgated the Department of Energy Acquisition Regulation (DEAR), set forth at 48 CFR chapter 9, to provide uniform acquisition policies and procedures for DOE and NNSA. This proposed rule to update the DEAR is issued under that same authority.
Over the past decade, DOE has worked to improve the way it conducts business with its contractors by strengthening contract management policies and practices and implementing new processes throughout the Department complex. In the spirit of alleviating unnecessary regulatory burdens while remaining prudent stewards of taxpayer resources, DOE undertook a review of its acquisition framework, including the DEAR.
As a result of that process, DOE has determined that the proposed amendments are necessary to update or remove obsolete provisions, incorporate class deviations, streamline policies and procedures where appropriate, and implement ten new clauses which will standardize clause language and eliminate the need for various local clauses in current use. Through this proposed rule, DOE aims to amend the DEAR to correct inconsistencies, remove provisions which unnecessarily duplicate coverage contained in the FAR, delete outdated information, and renumber DEAR provisions where required, in order to comport with the FAR numbering. The proposed rule includes revisions to 48 CFR parts 901, 902, 903, 904, 908, 909, 912, 915, 916, 917, 919, 922, 923, 925, 926, 927, 931, 932, 933, 935, 936, 941, 942, 945, 951, 952, and 970.
• Section 901.103: Currently this section provides that the DEAR is issued and amended by the Senior Procurement Executive (SPE) and the National Nuclear Security Administration (NNSA). DOE proposes to amend this section to clarify that (1) references throughout the DEAR to the SPE refers to both the DOE SPE and the NNSA SPE, unless otherwise indicated; (2) the SPEs may approve deviations to the DEAR both together and individually; and (3) except for those authorities designated as non-delegable, the SPEs are delegated those authorities assigned to the Agency Head in the FAR.
• Section 901.301-70: This section states that DOE will maintain an Acquisition Guide. DOE proposes to redesignate this section as 901.301-70 and remove the paragraph designation to conform to standard CFR formatting. DOE proposes to revise the newly redesignated section to update the website address to access the Acquisition Guide.
• Subpart 901.4: DOE proposes to add this new subpart to address deviations from the DEAR. The new subpart consists of section 901.401, which provides a definition for what constitutes a deviation from the DEAR; and sections 901.403 and 901.404, which provide instructions to acquisition personnel for preparing and submitting requests for individual deviations and class deviations respectively.
• Section 901.602-3: DOE proposes to amend this section to increase the threshold for the ratification authority delegated to heads of contracting activity (HCAs) for unauthorized commitments of $250,000 or less. A threshold of $25,000 has been in the DEAR for decades and needs to be updated to account for inflation and associated increases in the Simplified Acquisition Threshold (SAT), which was the original basis for the $25,000 threshold.
• Sections 901.603-1 and 901.603-70: DOE proposes to amend these sections to update references to two DOE orders.
• Section 902.101: DOE proposes to amend the definition of Senior Procurement Executive to reflect a change in the name of the office held by the DOE SPE and the NNSA SPE.
• Section 903.104-7: DOE proposes to amend this section to allow reviews to be conducted by the individual one level above the contracting officer. The regulations at FAR 3.104-7 provide for higher-level review and concurrence within DOE by an individual designated in accordance with agency procedures. For violations or possible violations, the Department decided that this review and concurrence was better undertaken by those with procurement authority and not legal counsel whose role is better aligned with providing advice to those conducting the review and concurrence. Nothing in these changes prevents access to counsel by those with procurement authority.
• Section 903.1003: DOE proposes to add this new section in order to supplement the FAR subpart 3.10 coverage of Contractor Code of Business Ethics and Conduct. The amendatory language articulates the need for contractors to identify themselves, particularly when communicating on behalf of DOE, to ensure that all parties know the status of individuals as contractor personnel.
• Section 903.1004: DOE proposes to amend this section to prescribe a new clause at 48 CFR 952.203-1, Identification of Contractor Employees, for all solicitations and contracts for services over the micro-purchase threshold. This clause requires contractors to use standard measures to ensure that contractors and their employees properly identify themselves as contractors in all DOE internal and external communications so that all parties are aware of their status as contractor personnel. The proposed rule also makes minor editorial changes to the content of the section for the purpose of improving clarity and readability and updates the website address.
• Section 904.401: DOE proposes to amend this section to (1) revise the definition of “access authorization” by including the citation to special nuclear material under the Atomic Energy Act, Executive Order 12968, and 10 CFR part 710 for more specificity; (2) add a definition of “Counterintelligence” previously located in part 970 but proposed to be relocated here because the term is included in revisions to other sections in this part; and (3) amend the definition of “Classified Information” for clarity to also include “Classified National Security Information” and “Transclassified Foreign Nuclear Information”, and to update the reference to Executive Order 12958 with Executive Order 13526 which revoked and replaced Executive Order 12958.
• Section 904.402: DOE proposes to amend this section to reorganize content to conform to the FAR numbering and to add a reference to the DOE Organization Act of 1977, as amended and update the reference to Executive Order 12958 with Executive Order 13526 which revoked and replaced Executive Order 12958. DOE also proposes to relocate text about DOE's counterintelligence program from section 970.0404-2(b). Part 970 primarily concerns management and operating (M&O) contracts, but counterintelligence issues are equally applicable to M&O and non-M&O contracts. Additionally, revisions are proposed to the paragraph on conditional payment of fee in order to align with other changes proposed to the conditional payment of fee clauses in parts 952 and 970 which are discussed in the appropriate places below. Finally, DOE proposes to add a paragraph that points to part 927 for policies and procedures for safeguarding classified information in patent applications and patents.
• Section 904.404: DOE proposes to amend this section to: (1) revise the prescription for the “Security” clause at section 952.204-2 to clarify that it is also required to be included in contracts awarded under simplified acquisition procedures, as well as National Security Program contracts under which access to proscribed information is required; (2) make minor editorial changes and add the title to DOE Order 142.3 to the paragraph that discusses the “Sensitive Foreign Nation Controls” clause at section 952.204-71; (3) delete the prescription for the clause at section 952.204-76, “Conditional Payment of Fee or Profit—Safeguarding Restricted Data and Other Classified Information and Protection of Worker Safety and Health,” because that clause, along with the clauses at sections 952.223-76 and 952.223-77, is proposed for removal with the content of those three clauses consolidated into a single new clause at section 952.242-71, which is prescribed elsewhere; and (4) add a prescription for the counterintelligence clause proposed to be located at section 952.204-74 (and previously at section 970.5204-1) because DOE has determined that counterintelligence policy is appropriate for both M&O and non-M&O contracts.
• Section 904.7004: DOE proposes to amend this section in paragraph (a) to update the name of the office that the Contracting Officer must consult in connection with “Foreign Ownership, Control or Influence (FOCI)” reviews prior to determining that award or continued performance of a contract by a contractor will not pose an undue risk to the common defense and security. The reference to the DOE Office of Safeguards and Security is proposed to be changed to the DOE Office of Environment, Health, Safety and Security.
• Section 904.7102: DOE proposes editorial revisions to streamline this section, in paragraph (e), by removing the following extraneous text: “that has been developed by the Safeguards and Security Lead Responsible Office at the contracting activity.”
• Subpart 904.74: DOE proposes to add this new subpart on DOE Directives. The proposed subpart consists of section 904.7400, which provides general requirements and information, and section 904.7401, which prescribes a new DOE Directives clause at 48 CFR 952.204-78, along with background. Although contractor requirements documents (CRDs) have been integrated into non-M&O contracts for a long time, adding the general information section, the new clause prescription, and the new clause will clarify the process of integrating the requirements of DOE Directives into non-M&O contracts on a bilateral basis.
• Subpart 908.71: DOE proposes to amend subpart 908.71 in order to remove some out-of-date procedures for handling special items. Specifically, sections 908.7103, Office machines; 908.7115, Forms; 908.7116, Electronic data processing tape; and 908.7117, Tabulating machine cards, are proposed for removal.
• Section 909.403: DOE proposes to revise this section to reflect a change in the name of the offices held by the individuals designated as the DOE and NNSA Debarring Official and Suspending Official.
• Section 909.405: DOE proposes to revise this section to replace references to the now defunct Excluded Parties List System (EPLS) with the new System for Award Management (SAM).
• Section 909.407-3: DOE proposes to amend this section in paragraph (e)(1)(vii) to replace a reference to the now defunct EPLS with the new SAM.
• Section 909.507-2: DOE proposes to amend this section to: (1) revise the clause prescription for section 952.209-72, “Organizational Conflicts of Interest,” and its Alternate I in paragraph (a) to limit application of the clause to non-M&O contracts since the addition of an M&O specific clause is proposed in part 970; and (2) revise paragraph (b) to reference section 970.0906 where the prescription for the new M&O specific clause is proposed to be located.
• Section 912.301: DOE proposes to add a new section 912.301 to clarify those DEAR clauses that are also required to be included in solicitations and contracts for the acquisition of commercial items, in accordance with 48 CFR 12.301(f).
• Section 915.404-4-70: DOE proposes to revise this section to clarify that DOE's structured profit and fee system for non-management and operating contracts comprises two approaches.
• Section 915.404-4-70-2: DOE proposes to revise this section to correct the errors throughout the table in paragraph (d) by replacing “items 4.a. thru 4.e.” with “items I.a. thru I.e.”.
• Section 915.404-4-72: DOE proposes to revise paragraph (a) of this section to update the reference to fee policy for management and operating contracts from “970.15404-4-8” to “970.1504-1-1 through 970.1504-3.”
• Section 915.408-70: DOE proposes to amend this section to simplify the clause prescription for section 952.215-70, “Key Personnel,” and make minor editorial changes.
• Section 916.307: DOE proposes to revise this section to: (1) simplify the prescription for the DEAR “Allowable Cost and Payment” clause at section 952.216-7 in paragraph (a); and (2) remove the prescription for section 952.216-15, “Predetermined Indirect Cost Rates,” because the FAR clause at 48 CFR 52.216-15 is now considered to be adequate.
• Section 916.504: DOE proposes to revise this section to redesignate paragraph (c) as paragraph (a)(1) to conform with the FAR coverage at 48 CFR 16.504(a)(1) that this language supplements.
• Section 916.505: DOE proposes to revise this section to: (1) redesignate paragraph (b)(6) as paragraph (b)(8) to conform with the FAR coverage at 48 CFR 16.505(b)(8) that this language supplements and update the corresponding FAR citation accordingly; and (2) update the office name from “Office of Procurement and Assistance Management” to “Office of Acquisition Management”.
• Subpart 917.6: DOE proposes several changes to this subpart. Editorial changes are proposed in sections 917.600(b) and 917.602(b) to remove obsolete references to “performance-based management contracts”. Likewise, section 917.601, which defines “performance-based management contract” and “performance-based contracting” is also proposed to be removed. Those terms and those references to performance-based management contracts are considered to be unnecessary since all management and operating contracts employ, to the maximum extent practicable, performance-based contracting concepts and methodologies. Editorial changes are also proposed in section 917.602(c) to streamline the content of that paragraph.
• Section 917.7402: DOE proposes to revise paragraphs (b) and (c)(4) of this section to update the referenced DOE order from DOE Order 430.1B to the current DOE Order 430.1C.
• Subpart 919.70: DOE proposes to amend this subpart to streamline the coverage of DOE's Mentor-Protege program. To that end, sections 919.7001 and 919.7002 are proposed to be removed as unnecessary. Section 919.7002 is unnecessary as these terms are adequately defined in the FAR. Section 919.7003 is revised to: (1) add a new paragraph (a) with content taken from the removed section 919.7001; (2) redesignate existing paragraphs (a), (b), and (c) as paragraphs (b), (c), and (d), respectively; and (3) make minor editorial changes. Sections 919.7004 and 919.7005 are proposed to be removed as their contents are purely administrative. DOE intends to issue guidance on the process in lieu of regulations. Section 919.7006 is revised to make minor editorial changes to paragraphs (a) and (b) and add a new paragraph (c) to clarify that mentor firms may be reimbursed for allowable developmental assistance costs for protege firms under the contract costs. Sections 919.7007 through 919.7013 are proposed to be removed as their contents are purely administrative. DOE intends to issue guidance on the process in lieu of regulations. Section 919.7014 is revised to change the prescription for the provision at section 952.219-70 to require insertion in all solicitations that include the clause at 48 CFR 52.219-9, “Small Business Subcontracting Plan,” rather than insertion in all solicitations with an estimated value in excess of the simplified acquisition threshold. DOE considers this change to be appropriate since the mentor protégé program is geared towards subcontracting as a development tool.
• Section 922.101-70: DOE proposes to add this new section to describe situations where labor policies applicable to M&O contracts may also apply to non-M&O contracts. DOE labor policies for M&O contracts are located at 48 CFR part 970, subpart 970.22. The policies therein are applicable to non-M&O contracts where the contract work had been previously performed under a DOE Management and Operating contract; and/or the Contractor is required to employ all or part of the former Contractor's workforce; or contracts designated by the Senior Procurement Executive. The labor policies at 48 CFR part 970, subpart 970.22, are reiterated here to highlight their application to certain non-M&O contracts.
• Subpart 922.4: DOE proposes to add this new subpart with content previously located in section 970.2204-1-1, but better placed in part 922 since it is applicable to both non-M&O and M&O contracts. The existing content is revised to update references to the Davis-Bacon Act with the Construction Wage Rate Requirements Statute (40 U.S.C. chapter 31, subchapter IV, Wage Rate Requirements (Construction)) as currently referenced in 48 CFR 22.403-1 and to remove information that unnecessarily duplicates content already set forth in 48 CFR 22.404 through 22.404-12.
• Section 923.002: DOE proposes to remove this section. Paragraph (a) is removed because it conveys policy from revoked Executive Order 13423 and duplicates coverage in the FAR. The prescription at paragraph (b) is removed because revoked Executive Order 13423 was the basis for that prescription and for the clause at section 970.5223-6.
• Section 923.101: DOE proposes to redesignate this section as section 923.170 to maintain consistency with FAR numbering and revise the content to align with current statutory, regulatory, and executive order requirements and to remove an out-of-date hyperlink.
• Section 923.102: DOE proposes to redesignate this section as section 923.171 to maintain consistency with FAR numbering.
• Section 923.103: DOE proposes to redesignate this section as section 923.172 to maintain consistency with
• Section 923.903: DOE proposes to revise this section to correctly state the clause number for the FAR Environmental Management Systems clause as “52.223-19”, whereas the current text has “52.223-XX”.
• Section 923.7002: DOE proposes to revise this section to: while retaining the current policy, state it more clearly and succinctly; update references to reflect new locations of clauses; add references to clause prescriptions; and update office titles.
• Section 923.7003: DOE proposes to revise this section to: (1) in paragraph (a), update the name of the office which the Contracting Officer is required to consult with in making a decision to include or not include environmental, safety, and health clauses and insert a reference to the appropriate coverage for M&O contracts; (2) consolidate paragraphs (f) and (g) into one paragraph (f) and revise it to state the prescription for the Conditional payment of fee clause more clearly and succinctly and update the reference to the clause; and (3) redesignate paragraph (h) as paragraph (g).
• Section 925.1001: DOE proposes to revise this section to update the name of the “Office of Procurement and Assistance Management” to “Office of Acquisition Management” and the office name of the NNSA Deputy Associate Administrator from “Acquisition and Project Management” to “Office of Partnership and Acquisition Services”.
• Section 926.7001: DOE proposes to revise this section to reflect the addition of Qualified HUBZone small business concerns to the list of Energy Policy Act 1992 target groups by the Small Business Reauthorization Act of 1997 (Pub. L. 105-135).
• Section 926.7004: DOE proposes to revise this section to remove the outdated reference to Standard Industrial Classification (SIC) 8711 and add in its place a reference to the North American Industry Classification System code 541330.
• Section 926.7005: DOE proposes to revise this section to reorganize the content to remove the separate paragraph on subcontracts as this content is unnecessarily duplicative of the prescriptions for solicitation provisions and contract clauses in section 926.7007.
• Section 926.7006: DOE proposes to revise this section to reorganize and streamline content to remove obsolete and unnecessary reporting requirements.
• Section 926.7007: DOE proposes to revise this section in the prescription for the clause at 952.226-72, “Energy Policy Act Subcontracting Goals and Reporting Requirements” to update the dollar threshold from $500,000 ($1M for construction) to $750,000 and ($1.5M for construction) to conform to the FAR threshold for requiring a subcontracting plan at 48 CFR 19.702.
• Subpart 926.71: DOE proposes to amend this subpart to: (1) revise section 926.7101 to update the citation in the first sentence from 42 U.S.C. 7474h to 50 U.S.C. 2704(c)(2); (2) revise section 926.7103 to make the same update to the citation in the first sentence of paragraph (a); and (3) revise section 926.7104 to change the clause title to add the words “Workforce Restructuring and” before ” Displaced Employee Hiring Preference” (in order to distinguish this from hiring preferences tied to the Service Contract Act) and revise the clause prescription to add a parenthetical that makes clear that the clause is for both M&O and non-M&O contracts.
• Sections 927.200 and 927.201-1: The proposed rule removes section 927.200 and adds the content of that section to section 927.201-1 to better conform with FAR numbering and section headings. Additionally, the proposed rule broadens the requirement in section 927.201-1 to consult with Patent Counsel regarding the use of the Patent and Copyright Infringement Liability clause, which includes the Authorization and Consent clause referenced currently, to fully address indemnity in contracts based on the work being performed. but instead requires consultation regarding the use of the Patent and Copyright Infringement Liability clause in certain situations.
• Sections 927.202, 927.202-5, and 927.206: The proposed rule removes section 927.206, “Refund of Royalties,” and redesignates sections 927.206-1, “General,” and 927.206-2, “Clause for refund of royalties,” as new sections 927.202, “Royalties,” and 927.202-5, “Solicitation provisions and contract clause,” respectively. These changes are proposed in order to conform to the FAR numbering and section headings which this coverage supplements.
• Sections 927.203 and 927.203-1: The proposed rule redesignates sections 927.207 and 927.207-1 as new sections 927.203 and 927.203-1 respectively and revises the section heading for section 927.203 (formerly section 927.207). These changes are proposed in order to correspond with the FAR numbering and section headings which this coverage supplements.
• Section 927.302: The proposed rule redesignates section 927.300 as section 927.302 and revises the section heading to correspond with the FAR numbering and section headings which this coverage supplements. The proposed rule also makes minor reorganization and editorial changes to the content of new section 927.302 for the purpose of improving clarity and readability.
• Section 927.302-70: The proposed rule redesignates current section 927.302 as section 927.302-70 and revises the section heading in order to accommodate the changes to current section 927.300 described above. In addition, a new paragraph (a) is added to include a definition of “background patent” similar to the definition found in the new Alternate I of section 952.227-13 for the purpose of improving clarity of the regulation. Current paragraphs (b) and (c) are replaced with a new paragraph (c) to reflect DOE's determination that the requirement of licensing background patents should only be permitted in certain situations approved by DOE Patent Counsel with concurrence of a DOE program official. This policy is implemented in new section 927.303(d)(5) by moving the paragraph regarding background patents from the clause at section 952.227-13 to an Alternate I so that it only applies to certain contracts.
• Section 927.303: The proposed rule revises section 927.303 to correspond with the FAR numbering and to make additions to instructions located in 48 CFR 27.303. The proposed rule adds paragraph (a)(4) to direct the Contracting Officer to subpart 970.27 for certain decontamination and decommissioning activities and the building and/or operations of other DOE facilities. Additionally, 48 CFR 27.303(d) provides that DOE will insert its specific patent rights clauses according to agency procedures. Therefore, section 927.303(d) outlines the use of the various patent clauses such as the clause at 48 CFR 952.227-13 or 37 CFR 401.14 depending on whether the contractor is a large or small business or university.
○ DOE proposes in paragraph (d)(2) that contracts with domestic small business firms or nonprofit organizations use the clause at 37 CFR 401.14 instead of the clause at 48 CFR 952.227-11 because DOE has not
○ The most significant update is necessary to implement DOE's Declaration of Exceptional Circumstance that requires contractors, at any tier, to substantially manufacture any subject inventions in the United States. Alternate II for domestic small business firms or nonprofit organizations adds both the agency implementing regulations from Alternate I and the U.S. substantial manufacturing requirements. For 952.227-13, an Alternate II is used to implement the U.S. manufacturing requirement, as addressed in section 927.303(d)(6).
• Section 927.304: The proposed rule revises section 927.304 to make minor editorial changes and to replace the reference to the clause at section 952.227-11, which is proposed for revision, with the clause at 37 CFR 401.14. The clause at section 952.227-11 is not regularly updated while the clause at 37 CFR 401.14 does receive regular updates.
• Subpart 927.4: The proposed rule revises the heading of subpart 927.4 to read “Rights in Data and Copyrights” to conform to the FAR heading at 48 CFR part 27, subpart 27.4, which this subpart supplements.
• Section 927.401: The proposed rule adds section 927.401 to provide a definition of “technical data”. The regulations at 48 CFR 27.401 define “data” to include “technical data” and “computer software”. DOE wants to have a clear definition of what technical data encompasses since it relates directly to information sent to DOE's Office of Scientific and Technical Information.
• Sections 927.402, 927.402-1, and 927.402-2: The proposed rule removes sections 927.402 and 927.402-1, and redesignates section 927.402-2 as section 927.402 to conform to FAR numbering, which these sections supplement. The content of section 927.402-1 is added to new section 927.406 and revised for clarity. Finally, DOE also proposes to revise the introductory language of the newly redesignated section 927.402 to add a reference to scientific and technical information (STI) because this is the term used at the Office of Scientific and Technical Information (OSTI) where DOE's publicly available technical data is stored.
• Section 927.403: The proposed rule removes section 927.403, which outlines when DOE Contracting Officers and Patent Counsel make determinations as part of the acquisition and use of technical data, and adds its content to newly added section 927.406-4 for organizational purposes.
• Sections 927.404 and 927.404-70: The proposed rule:
○ Redesignates section 927.404-70 as section 927.404-71 for organizational purposes and revises the newly redesignated section to replace the reference to 48 CFR 927.409(a) with 48 CFR 52.227-14 to reflect changes to the prescription at 48 CFR 927.409(a);
○ Redesignates section 927.404 as section 927.404-70 for organizational purposes;
○ Revises the newly redesignated section 927.404-70 to update the instructions on when to use 48 CFR 52.227-14 as supplemented by this subpart, as well as the use of 48 CFR 52.227-16; and
○ Relocates paragraphs (g)(4), (l), and (m) of section 927.404-70 to portions of new section 927.406-4 and revised section 927.409.
• Sections 927.406 and 927.406-4: FAR 27.406 is for Acquisition of data with sections 27.406-1 through 27.406-3. The proposed rule adds section 927.406, Acquisition of data, and section 927.406-4, Acquisition and use of technical data, to conform with the numbering and headings of the FAR, which these sections supplement. Section 927.406-4(a) and (b) in the proposed rule address several statutory changes that have been enacted, such as EPAct 2005 and the DOE Energy Research and Innovation Act. EPACT mandates that DOE maintain publicly available collection of Scientific Technical Information funded by the agency which is achieved by the Office of Scientific and Technical Information. DOE Energy Research and Innovation Act has a similar mandate for DOE to maintain a public database populated with information on unclassified research and development projects as well as relevant literature and patents. Additionally, the proposed rule relocates content formerly located at section 927.402-1(b) to new section 927.406-4(c) for organizational purposes and revises the text for clarity and to update references. Likewise, the proposed rule relocates content formerly located at section 927.403 to new section 927.406-4(d) for organizational purposes. And finally, the proposed rule relocates content formerly located at section 927.404(g)(4) and (l) to new section 927.406-4(e) and (f), respectively, for organizational purposes and revises the text for clarity and to update references.
• Section 927.409: The proposed rule revises section 927.409 by removing the contract clause at paragraph (a)(1), which permitted the DOE Patent Counsel to only approve copyright of software. In lieu of that clause, new paragraph (a) instructs the contracting officer to use the definitions at Alternate I of 52.227-14 and a new Alternate VIII of 48 CFR 952.227-14, Rights in Data-General, which allows DOE Patent Counsel to approve copyright of all technical data (including software) of a subcontractor. In addition, the proposed rule reorganizes the section so that paragraph (a)(2) is now a new paragraph (b) that outlines special treatment of certain data. Paragraph (b)(1)(i) requires Patent Counsel to insert a new Alternate I of 48 CFR 952.227-17 to change paragraph (c)(1)(ii) of 48 CFR 52.227-17, Rights in Data-Special Works, such that DOE Patent Counsel can approve the subcontractor to assert copyright in all technical data of subcontractor and transfer to the Government or other entity. Paragraphs (b)(1)(ii) through (vii) of the proposed section remain the same as current paragraphs (a)(2)(ii) through (vii) with some minor changes to streamline content and update references. However, Paragraph (b)(1)(viii) is added to contain an instruction located in current subcontract paragraph (a)(1) regarding the use of Alternate IV of 48 CFR 52.227-14, Rights in Data-General, to be used with educational institutions. The prohibition for use of Alternate IV for any software has been changed to allow for copyright assertion when creating open source software. Paragraph (b)(1)(ix) describes the use of Alternate VI, as provided at 48 CFR 952.227-14, Rights in Data—General. These instructions are being relocated from current section 927.404 (l) to section 927.409(b)(1)(ix) for organizational purposes and revised accordingly to give further guidance on when to require limited licensing of Limited Rights Data and Restricted Computer Software of the subcontractor. Finally, paragraph (b)(1)(x) contains instructions for using Alternate VII as provided at 48 CFR 952.227-14, Rights in Data—General, which are currently located at 927.404(m) to limit the contractor's use of DOE restricted data. Section 927.409(d) is an expansion of the instructions located in current section 927.409(h) and 48 CFR 27.409(d). Lastly, the current paragraphs (s) and (t) of section 927.409 are relocated to paragraphs (m) and (n), respectively, to
• Section 931.205-18: DOE proposes to make minor editorial revisions to this section in order to improve clarity.
• Section 931.205-47: DOE proposes to revise this section to update the citation in the definition of “Employee whistleblower action” from 42 U.S.C. 7239 to 50 U.S.C. 2702.
• Section 932.970: DOE proposes to revise this section in paragraph (b) to clarify that: (1) Contracting Officers can specify accelerated payment dates upon making a written determination (on a case-by-case basis) that a shorter contract financing payment cycle will be beneficial to the Government by reducing the contractor's working capital requirements; and (2) Whenever a contract specifies payment due dates that are sooner than those required under the relevant prompt payment requirements, the contract will permit the Contracting Officer to unilaterally authorize additional time for review of invoices if needed to perform an adequate review prior to payment. These changes are necessary to ensure that accelerated payments are only approved when doing so is determined to be beneficial to the Government, and adequate time for review of invoices is maintained.
• Section 932.971: DOE proposes to add this section concerning electronic submission of invoices/vouchers and to prescribe a new clause at 48 CFR 952.232-7. These changes are intended to establish DOE's strong preference for electronic submission of vendor invoices and to provide standardized instructions for such submissions. While electronic submission is preferred, other methods of submission can be approved after consultation with the Office of the Chief Financial Officer.
• Subpart 932.70: DOE proposes to remove this subpart in its entirety, as DOE Loan Guarantee Authority is regulated at 10 CFR part 609.
• Section 933.103: DOE proposes to revise this section to: (1) reorganize and renumber the paragraphs to conform to the FAR numbering at 48 CFR 33.103 which this section supplements; (2) make minor editorial revisions for clarity; and (3) clarify that DOE does not accept or adjudicate protests from prospective subcontractors.
• Section 933.104: DOE proposes to revise this section to reorganize content to conform to the FAR numbering at 48 CFR 33.104 which this section supplements, streamline content, and make minor editorial revisions for clarity.
• Section 933.106: DOE proposes to revise this section to simplify the prescription for the solicitation provision at section 952.233-2 such that it is required to be inserted whenever the provision at 48 CFR 52.233-2 is included. In addition, the proposed rule removes the prescriptions for the provisions at sections 952.233-4 and 952.233-5 because the content of those provisions is being added to the provision at section 952.233-2.
• Section 935.010: DOE proposes minor editorial revisions to this section to improve clarity, and to add a sentence at the end of paragraph (c) that clarifies that STI products identified in DOE Order 241.1B are reportable to OSTI whether publicly releasable, controlled unclassified information or classified.
• Section 935.070: DOE proposes to simplify this section by making minor editorial revisions and removing the definition paragraph, since research misconduct is already defined in 10 CFR part 733.
• Section 936.202-71: DOE proposes to remove this section because its basis (Executive Order 13514) has been revoked.
• Section 941.201-70: DOE proposes to revise this section to: (1) revise the section heading to conform to 48 CFR 41.201 which this section supplements; (2) revise the text to add a reference to the Energy Policy Act of 2005 (25 U.S.C. 3502) and integrate new Office of Federal Energy Management Programs (FEMP) policy, given that DOE Order 430.2B has been rescinded.
• Section 942.705-1: DOE proposes to revise this section to remove paragraph (a)(3) as its content is outdated.
• Section 942.705-3, 942.705-4, 942.705-5: DOE proposes to remove sections 942.705-3 through 942.705-5 as they only convey procedures internal to the agency that do not need to be covered in this regulation.
• Subpart 942.71: DOE proposes to add this new subpart to provide an explanation of the need for and the use of the new clause proposed at section 952.242-71, “Conditional Payment of Fee, Profit, and Other Incentives,” which is also discussed in sections 904.402, 923.7002, and 923.7003. The new clause's prescription is also added.
• Section 945.000: DOE proposes to revise this section to account for situations where the personal property management policies in 41 CFR chapter 109 may also apply to certain non-M&O contracts.
• Section 945.101: DOE proposes to remove this section as the definitions are either unnecessary or are already defined in the FAR.
• Section 945.102-70: DOE proposes to remove this section as the FAR coverage is considered to be adequate.
• Section 945.102-71: DOE proposes to remove this section as the FAR coverage is considered to be adequate.
• Section 945.570-1: DOE proposes to revise this section to update the reference to the “Personal Property Policy Division” with the “Office of Asset Management.”
• Sections 945.602, 945.602-3, and 945.602-70: DOE proposes to remove these sections as their content is adequately addressed in 41 CFR chapters 102 and 109.
• Section 945.603: DOE proposes to remove this section as its content is adequately addressed in 41 CFR chapters 102 and 109.
• Section 945.670-1: DOE proposes to revise this section to update the currently incorrect reference (48 CFR 45.606-3) to 48 CFR 2.101.
• Section 945.670-3: DOE proposes to remove this section because the content is adequately addressed in 41 CFR chapter 109.
• Section 945.671: DOE proposes to revise this section to add a reference to “41 CFR chapter 109” in place of an outdated reference to “41 CFR 109-45.50 and 45.51 or its successor”.
• Section 951.102: DOE proposes to revise this section, in paragraph (c)(1), to remove the obsolete reference to the Federal Standard Requisitioning and Issue Procedures (FEDSTRIP) and update the reference to the “Office of Resource Management within the Headquarters procurement organization” to the “Systems Division within the Office of Acquisition Management.”
• Section 952.203-1: DOE proposes to add this clause “Identification of Contractor Employees” to require contractors to use standard measures to ensure that contractors and their employees properly identify themselves as contractors in all DOE internal and external communications so that all parties are aware of their status as contractor personnel.
• Section 952.204-2: DOE proposes several amendments to the “Security Requirements” clause. Specifically, DOE proposes to: (1) consolidate definitions previously located in separate paragraphs (c) through (g) into a single paragraph (a), and add definitions of “contracting officer”, “contract”, “contractor”, “cyber system” and “special access program”; (2) make minor editorial revisions and update references throughout; and (3) add a reference in the last paragraph to clarify that facility clearance may be granted prior to award or after award of
• Section 952.204-70: DOE proposes to revise the “Classification/Declassification” clause by reorganizing its content, with definitions being brought together into a separate paragraph (a). Additionally, minor editorials changes were made to improve clarity.
• Section 952.204-73: DOE proposes to amend the “Facility Clearance” clause to make minor editorial revisions throughout and, in paragraph (d), to include both a pre-award facility clearance process and an alternative post-award process. The current 48 CFR 952.204-73 requires a full Facility Clearance prior to the award of a contract requiring access to classified information, and prior to granting any Interim Access Authorizations to key management personnel. DOE proposes to revise the section to provide a process that permits contract award prior to granting a full Facility Clearance, and to permit contract award prior to granting Interim Access Authorizations to key management personnel. This alternate post-award process will enhance efficiencies in awarding contracts while ensuring security requirements are met.
• Section 952.204-74: DOE proposes to move the “Counterintelligence” clause from section 970.5204-1 to this new section, as it is pertinent to both M&O and non-M&O contracts. Minor editorial revisions are also proposed.
• Section 952.204-76: DOE proposes to remove this clause, “Conditional Payment of Fee or Profit—Safeguarding Restricted Data and Other Classified Information,” to reflect that section 952.242-71, Conditional Payment of Fee, Profit or Incentives, a new clause, is proposed to be added. The new clause replaces three existing clauses (952.204-76, Conditional Payment of Fee or Profit—Safeguarding Restricted Data and Other Classified Information, 952.223-76, Conditional Payment of Fee or Profit—Safeguarding Restricted Data and Other Classified Information and Protection of Worker Safety and Health, and 952.223-77, Conditional Payment of Fee or Profit—Protection of Worker Safety and Health).
• Section 952.204-77: DOE proposes to revise this section, in the introductory text, to update the citation for the clause prescription and make minor editorial changes.
• Section 952.204-78: DOE proposes to add this new clause, “DOE Directives” in order to clarify the policy and procedures for integrating directives into non-M&O contracts.
• Section 952.215-70: DOE proposes to revise the “Key Personnel” clause to make minor editorial changes to improve clarity.
• Section 952.216-15: DOE proposes to remove the “Predetermined Indirect Cost Rates” clause as the corresponding FAR clause at 48 CFR 52.216-15 is considered to be adequate.
• Section 952.219-70: DOE proposes to revise the “DOE Mentor-Protégé Program” clause to reflect the fact that the program has been broadened to include all small business concerns, remove unnecessary procedural content and make minor editorial revisions for clarity.
• Section 952.223-71: DOE proposes to revise this section to add a non-M&O version of the “Integration of Environment, Safety, and Health into Work Planning and Execution” clause on the basis that the requirement is applicable to both non-M&Os and M&Os. The section language previously redirected the reader to a clause for M&O contracts.
• Section 952.223-75: DOE proposes to revise this section in the introductory text to update the location of the clause prescription from section 923.7003(h) to section 923.7003(g).
• Sections 952.223-76 and 952.223-77: DOE proposes to remove the “Conditional Payment of Fee or Profit—Safeguarding Restricted Data and Other Classified Information and Protection of Worker Safety and Health” clause and the “Conditional Payment of Fee or Profit—Protection of Worker Safety and Health” clause to reflect that 952.242-71, Conditional Payment of Fee, Profit or Incentives, a new clause, is added. The new clause replaces three existing clauses (952.204-76, Conditional Payment of Fee or Profit—Safeguarding Restricted Data and Other Classified Information, 952.223-76, Conditional Payment of Fee or Profit—Safeguarding Restricted Data and Other Classified Information and Protection of Worker Safety and Health, and 952.223-77, Conditional Payment of Fee or Profit—Protection of Worker Safety and Health).
• Section 952.223-78: DOE proposes to revise the “Sustainable Acquisition Program” clause to streamline requirements, to obviate the need for Alternate I to the clause, and to eliminate outdated references and areas of redundancy with FAR coverage.
• Section 952.226-70: DOE proposes to revise the “Subcontracting Goals Under Section 3021(a) of the Energy Policy Act of 1992” clause to reflect the addition of a fourth target group by the Small Business Reauthorization Act of 1997 (Pub. L. 105-135) and to make minor editorial revisions.
• Section 952.226-71: DOE proposes to revise this clause by updating the citation for the clause prescription in the introductory text and replacing “Energy Policy Act” where it appears in the clause title and text with “Energy Policy Act 1992” or “EPAct 1992” in order to more clearly identify the source of these requirements. Additionally, minor editorial changes are proposed for paragraph (a) of the clause for streamlining purposes.
• Section 952.226-72: DOE proposes to amend the “Energy Policy Act of 1992 Subcontracting Goals and Reporting Requirements” clause to reflect the addition of a fourth target group by the Small Business Reauthorization Act of 1997 (Pub. L. 105-135) as well as to replace references to the outdated Standard Form (SF) 294 and SF 295 with references to the Individual Subcontract Report and or Summary Subcontract Report in the Electronic Subcontracting Reporting System (ESRS).
• Section 952.226-73: DOE proposes to amend this section to revise the section heading and clause title and to reflect the addition of a fourth target group by the Small Business Reauthorization Act of 1997 (Pub. L. 105-135).
• Section 952.226-74: DOE proposes to amend this section to revise the section heading and clause title by adding the words “Workforce Restructuring and” before “Displaced Hiring Preference.” This proposed revision is intended to clearly tie this clause to workforce restructuring and distinguish it from other hiring preferences related to the Service Contract Act.
• Section 952.227-9: DOE proposes to revise the “Refund of Royalties” clause to require contractors with contracts greater than five years in duration to furnish a statement of royalties paid or required to be paid in connection with performing the contract every five years, and to make minor editorial revisions.
• Section 952.227-11: Since 37 CFR 401.14, Standard Patent Rights, is updated regularly, DOE has decided to use that clause in preference to 48 CFR 52.227-11. However, 37 CFR 401.14 has sections requiring agency implementing regulations. Therefore, DOE proposes to revise section 952.227-11 to replace the full clause text with two alternates. Alternate I is used to supplement the standard patent rights clause to include DOE's implementing regulations. For example, paragraph (g)(2) requires the Contracting Officer to direct whether to include this clause in certain subcontracts. Also, paragraph (l) requires reports to be uploaded into
• Section 952.227-13: DOE proposes to amend the “Patent Rights—Acquisition by the Government” clause to update references and account for statutory changes. Paragraph (k) has been moved to a new alternate I to provide for a right to require licensing of third parties to background inventions only when deemed necessary. Also, a new Alternate II has been added to implement the U.S. Competitiveness requirement for DOE funding programs that require it.
• Section 952.227-14: DOE proposes to amend the “Rights in Data—General” clause to add a new Alternate VIII which addresses the approval by DOE Patent Counsel of all types of data by subcontractors of the M&O Contractor. Minor editorial revisions and revisions to update references are also proposed.
• Section 952.227-17: DOE proposes to add a new “Rights in Data—Special Works” clause which supplements the FAR clause at 48 CFR 52.227-17 to permit Patent Counsel to direct the subcontractor to assert copyright and transfer to the Government or M&O Contractor.
• Section 952.227-82: DOE proposes to remove the “Rights to proposal data” clause on the basis that the corresponding FAR clause at 48 CFR 52.227-23 is considered to be adequate.
• Section 952.227-84: DOE proposes to amend this section to revise the introductory text to correctly specify the location of the clause prescription and to revise the clause text in the third sentence to replace the reference to “DEAR 952.227-11” which is proposed for removal, with “37 CFR 401.14.”
• Section 952.231-71: DOE proposes to revise the “Insurance—Litigation and Claims” clause, in paragraph (f)(2) to explicitly identify the property clause at 48 CFR 970.5245-1 that defines “contractor's managerial personnel.”
• Section 952.232-7: As detailed in the description to section 932.971, DOE proposes to add this “Electronic Submission of Invoices/Vouchers” clause to ensure clarity on electronic invoicing and payment procedures.
• Sections 952.233-2, 952.233-4, and 952.233-5: DOE proposes to revise the “Service of Protest” clause to add the provisions previously located at sections 952.233-4 and 952.233-5, since all three provisions had the same prescription and interrelated subject matter. Sections 952.233-4 and 952.233-5 are proposed for removal.
• Section 952.242-71: DOE proposes to add this new “Conditional Payment of Fee, Profit or Incentives” clause to replace three existing clauses (section 952.204-76, Conditional Payment of Fee or Profit—Safeguarding Restricted Data and Other Classified Information, section 952.223-76, Conditional Payment of Fee or Profit—Safeguarding Restricted Data and Other Classified Information and Protection of Worker Safety and Health, and section 952.223-77, Conditional Payment of Fee or Profit—Protection of Worker Safety and Health). Like the previous clauses, the new clause provides for a reduction in payment to a contractor if the contractor fails to meet a performance requirement relating to environment, safety and health or security or safeguarding of restricted data and other classified information. However, the new clause also allows for a reduction in payment if the contractor fails to meet a performance requirement related to business and financial systems. This addition was included because DOE believes adding emphasis to the importance of strong business and financial systems to its fee policy will enhance the effectiveness of its contract administration and its mission accomplishment. The new clause also includes updated references and reflects revisions made for clarity.
• Section 952.245-2: DOE proposes to revise this section to update the clause prescription to conform with the current FAR.
• Section 952.245-5: DOE proposes to revise this section to update the clause prescription to conform with the current FAR.
• Section 952.250-70: DOE proposes to revise the “Nuclear Hazards Indemnity Agreement” clause to correctly reflect the current underlying statute and to eliminate “effective date” considerations not germane to contracts awarded in 2020 and beyond. DOE proposes to update 48 CFR 952.250-70 to delete Note 1 in accordance with 2005 Public Law 109-58, sec. 610(b), which amended Atomic Energy Act (AEA) section 234A(d) to eliminate the exclusion from civil penalties for certain identified non-profit institutions. Prior to amendment, AEA section 234A(d) provided that the provisions of AEA section 234A on imposition of civil penalties would not apply to the University of Chicago for activities associated with Argonne National Laboratory; the University of California for activities associated with Los Alamos National Laboratory, Lawrence Livermore National Laboratory, and Lawrence Berkeley National Laboratory; American Telephone and Telegraph Company and its subsidiaries for activities associated with Sandia National Laboratories; Universities Research Association, Inc. for activities associated with FERMI National Laboratory; Princeton University for activities associated with Princeton Plasma Physics Laboratory; the Associated Universities, Inc. for activities associated with the Brookhaven National Laboratory; and Battelle Memorial Institute for activities associated with Pacific Northwest Laboratory
• Section 970.0100: Section 970.0100 indicates that part 970 of the DEAR provides DOE policies, procedures, provisions, and clauses that implement and supplement the FAR and other parts of the DEAR for the award and administration of M&O contracts. DOE proposes to revise this section to clarify that part 970 does not apply to non-M&O contracts, except as approved by the cognizant SPE, or as otherwise prescribed in the DEAR.
• Section 970.0371-8: Section 970.0371-8 requires that certain information be included in a written disclosure statement made by an employee of an M&O contractor. In the proposed rule, DOE would require each disclosure statement to include an acknowledgement that the employee has read and is familiar with DOE Order 486.1, Department of Energy Foreign Government Sponsored or Affiliated Activities. Additionally, section 970.0371-8 already requires that each disclosure statement include an acknowledgement that the employee has read and is familiar with the DOE publication entitled “Reporting Results of Scientific and Technical Work Funded by DOE”. In the proposed rule, DOE would update the title of that publication to reflect the publication's current title.
• Section 970.0371-9: Section 970.0371-9 requires a contracting officer to insert the clause at section 970.5203-3, Contractor's Organization, in all M&O contracts and provides that in paragraph (a) of that clause, the words “and managerial personnel (see 970.5245-1(j))” may be inserted after “(see 952.215-70)”. In the proposed rule, DOE would update the cross reference from “970.5245-1(j)” to “970.5245-1(k)” to reflect the new location of that paragraph under the proposed rule.
• Section 970.0404-1: Section 970.0404-1 provides definitions of several terms. The proposed rule would remove that section because the
• Section 970.0404-2
○ Paragraph (a) of section 970.0404-2 points to several places where the reader may find information about the National Industrial Security Program, information concerning contractor ownership when national security or atomic energy information is involved, and information regarding contractor ownership involving national security program contracts. Paragraph (b) of section 970.0404-2 provides that all DOE elements should undertake the necessary precautions to ensure that DOE and covered contractor personnel, programs and resources are properly protected from foreign intelligence threats and activities. The regulations in 48 CFR part 904 contain DOE policies, definitions, provisions, and clauses associated with the safeguarding and security of classified information. In order to avoid unnecessary duplication, the proposed rule replaces the content of paragraphs (a) and (b) with a new paragraph (a) that points the reader to that part.
○ Paragraph (c) of section 970.0404-2 provides that for DOE M&O contracts and other contracts designated by the Senior Procurement Executive, or designee, the clause entitled “Conditional Payment of Fee, Profit, and Other Incentives—Facility Management Contracts” implements the requirements of section 234B of the Atomic Energy Act regarding the use of a contract clause that provides for an appropriate reduction in the fee or amount paid to the contractor in the event of a violation by the contractor or any contractor employee of any rule, regulation, or order relating to the safeguarding or security of restricted data or other classified information. The proposed rule makes minor editorial revisions to this text for streamlining purposes and redesignates the content as paragraph (b) of section 970.0404-2.
• Section 970.0404-4: Paragraph (a) of section 970.0404-4 requires a contracting officer to include the clause located at 48 CFR 5204-1 in certain contracts. Paragraph (b) of section 970.0404-4 points the contracting officer to sections 904.404 and 904.7103 for the prescription of solicitation provisions and contract clauses relating to safeguarding classified information and foreign ownership, control, or influence over contractors. The proposed rule would remove section 970.0404-4 because (1) the proposed rule relocates the requirement in paragraph (a) of that section to paragraph (d)(7) of section 904.404 and (2) the references to sections 904.404 and 904.7103 are unnecessary and duplicative of those sections.
• Section 970.0407-1-3: DOE proposes to amend this section to revise the prescription for the “Access to and Ownership of Records” clause to reflect the addition of a non-M&O version of the “Integration of Environment, Safety, and Health into Work Planning and Execution” clause and to make minor editorial changes.
• Section 970.0801-2: DOE proposes to revise this section to replace the reference to the Federal Property Management Regulation at 41 CFR part 101-43 with a reference to the Federal Management Regulation at 41 CFR chapter 102. This change is necessary because the General Services Administration (GSA) is phasing out the Federal Property Management Regulation and transitioning its sections to the Federal Management Regulation.
• Subpart 970.09: The proposed rule would amend this subpart to articulate a uniform policy on conflicts of interest for M&O contractors and prescribe a new M&O specific clause at section 970.5209-70. Specifically, section 970.0905 would be revised to streamline content to more concisely articulate policy, and to reflect the addition of an M&O specific contract clause rather than the clause at section 952.209-72. Additionally, section 970.0906 would be added to prescribe the new M&O specific clause at section 970.5209-70.
• Section 970.1100-1: DOE proposes to amend this section to more concisely state DOE policy. Accordingly, paragraphs (a) and (b) are streamlined and combined into paragraph (a). Paragraph (c) is redesignated as new paragraph (b). Paragraph (d) is removed, as its content is limited to internal procedures and does not need to be included in the regulation.
• Section 970.1100-2: DOE proposes to remove this section as its content is limited to internal procedures and does not need to be included in the regulation.
• Subpart 970.15: DOE's guidance (both current and proposed) in subpart 970.15 covers DOE's fee policy for its Management and Operating contracts. DOE proposes to amend its current guidance found in sections 970.1504-1-1 through 970.1504-5 by revising and reorganizing it (into sections 970.1504-1 through 970.1504-3) to simplify and state explicitly its construct, sequence for calculating, and step-by-step process for determining the total available fee for an M&O contract. DOE's proposed amendments reflect its Contracting Officers' several decades of experience with the current articulation of the policy. They have found the policy satisfactory, have demonstrated a comprehensive understanding of its details, and have reflected their understanding in implementing the policy. Nonetheless, DOE's Contracting Officers have indicated it would be efficacious, for many reasons (training new procurement analysts, communicating with other offices, such as program, reviewing, and legal offices, etc.) if DOE's policy:
○ were reorganized and restated in a more straightforward, more “plain English” format;
○ was pruned of what has become unnecessary guidance for a number of reasons (for example, guidance covered adequately in the FAR, or DOE's internal guidance, such as DOE Acquisition Guide chapters),
○ reflected Contracting Offers' current practices in executing the policy;
○ included a detailed example of a fee calculation; and
○ conformed more tightly to the FAR's articulation of fee policy, fee constructs, fee definitions, and fee terms, to the extent appropriate.
The proposed amendments provide a clearer articulation of the policy. DOE has: (1) deleted or revised entire sections and large portions of sections of the policy, sometimes without replacement, sometimes replacing the deleted or revised language with much more concise language; (2) reorganized the policy; and (3) added a detailed example. Often when replacing deleted or revised language with more concise language, different aspects of the topic addressed by the deleted or revised language appear more cogently stated in several sections of the proposed policy (sometimes more than once in several sections).
In its proposed amending of its guidance, DOE retained the current fee policy for M&O contracts and clarified it. There are no changes of any significance to the current fee policy, with two exceptions. The two exceptions that DOE proposes are: eliminating the special considerations for determining fee for laboratory M&O contracts (which now appears in the current policy at section 970.1504-1-3); and raising the Classification Factor of for research and development at a laboratory (which now appears in the current policy at section 970.1504-1-9(e)(4)) from 1.25 to 1.5.
It is worth noting that one proposed minor change to the current fee policy is the proposed suggested order of the steps in determining the maximum total available fee for a one-year period and the proposed use of the “significant factors” (in one of the steps) in
The proposed suggested order and process comprise considering the: magnitude of the effort (reflected by the total fee base for the year); type of effort (reflected by the allocation of the total fee base to the three fee schedules); nature, difficulty, complexity, and importance of the work (reflected by the choice of classification factors); and specific circumstances of the procurement (reflected by the appropriate percentages derived from considering significant factors). This order entails using (for each type of effort) the maximum amount of fixed fee from the fee schedule, multiplying it by the classification factor, and multiplying by the appropriate percentage (derived from considering the significant factors).
The current fee policy's suggested order and process comprise considering the: magnitude of the effort (reflected by the total fee base for the year); type of effort (reflected by the allocation of the total fee base to the three fee schedules); specific circumstances of the procurement (reflected by the determining an appropriate fee amounts for each of the significant factors and summing those amounts); and nature, difficulty, complexity, and importance of the work (reflected by the choice of classification factors). This order entails using (for each type of effort)
A second proposed minor change to the current fee policy is deleting cost reduction incentives, which are discussed in the current policy at 970.1504-1-4(f), 970.1504-5(c), and 970.5215-4. DOE no longer uses cost reduction incentives, using instead value engineering, which is covered in the DOE Acquisition Guide and the FAR.
Finally, a third proposed minor change to the current fee policy is adding (regarding conditional payment of fee, profit, and other incentives) contract performance requirements relating to business and financial systems to the performance requirements M&O contractors are subject to. Current fee policy (970.1504-1-2(i)) includes only performance requirements relating to: environment, safety, and health; and safeguarding of Restricted Data and other classified information.
A detailed breakdown of the changes to subpart 970.15 is provided below.
• Section 970.1504-1-1: DOE proposes to amend this section for clarity.
• Section 970.1504-1-2: DOE proposes to amend this section to reorganize and clarify the agency's fee policy for M&O contracts. Additionally, in some cases, DOE proposes to revise and move its coverage from other sections to this section. In other cases, DOE proposes to revise its coverage in this section and move it to other sections. In its proposed amendments to this section, among other things, the current numbering of 970.1504-1-2(a) through (h) is proposed to become 970.1504-1-2(a) through (b).
○ Paragraph (a)(1): DOE proposes adding this paragraph to clarify its policy on fee for M&O contracts. DOE's policy on types of contracts and fee arrangements suitable to M&O contracts that was originally located at 48 CFR 970.1504-1-4(a)(1) and 970.1504-1-2(h) is revised for clarity and moved to this paragraph.
○ Paragraph (a)(2): DOE proposes to add this paragraph to reorganize and clarify DOE M&O contract fee policy to: (1) move the policy requiring that a cost-plus-fixed-fee contract only be used if approved in advance by the Senior Procurement Executive (SPE) or designee from current 48 CFR 970.1504-1-4(b) to this paragraph; and (2) add a mention of the limitation on the fee for a cost-plus-fixed-fee contract found at 48 CFR 15.404-4(c)(4)(i), which makes unnecessary the last sentence of current 970.1504-1-2(d), which is deleted.
○ Paragraph (a)(3): DOE proposes to add this paragraph to reorganize and clarify DOE policy on the approval of base fee in a cost-plus-award-fee M&O contract. DOE proposes revising and moving the policy requiring that a base fee amount may only be used if approved in advance by the SPE or designee from 48 CFR 970.1504-1-4(c)(3) to this paragraph.
○ Paragraph (a)(4): DOE proposes to add this paragraph to reorganize and clarify DOE policy that incentive fees allocated to evaluation periods under cost-reimbursement type contracts should, to the greatest extent appropriate, be tied to a specific portion of the maximum total available fee. DOE proposes to revise and move the policy described herein from 48 CFR 970.1504-1-2(b) to this paragraph.
○ Paragraph (a)(5): DOE proposes to add this paragraph to reorganize and clarify DOE policy that: (1) the maximum total available fee amount may not exceed the fee derived from this section unless approved in advance by the SPE or designee; and (2) a request to allow a higher fee must be in writing and must clearly explain why the situation merits consideration. DOE proposes to revise and move the policy described herein from, in part, both 48 CFR 970.1504-1-2(d) and 970.1504-1-10 to this paragraph.
○ Paragraph (a)(5)(i): DOE proposes to add this paragraph to reorganize and clarify DOE policy that typically, only a situation where either unusually difficult objective performance incentives would be used or where successful performance would provide extraordinary value would merit consideration for allowing a higher fee. DOE proposes to revise and move the policy described herein from 48 CFR 970.1504-1-10 to this paragraph.
○ Paragraph (a)(5)(ii): DOE proposes to add this paragraph to reorganize and clarify DOE policy that when a contract requires a contractor to use its own facilities, equipment, or other resources for contract performance (
○ Paragraph (a)(6): DOE proposes to add this paragraph to reorganize and clarify DOE policy that each M&O contract must set forth in the contract (or in a Performance Evaluation and Measurement Plan (PEMP) or similar document) the methods that will be used to rate the contractor's performance and to determine the fee the contractor's performance will earn. The DOE Contracting Officer must ensure all important areas of contract
○ Paragraph (a)(6)(i): DOE proposes to add this paragraph to reorganize and clarify that an M&O contract is an “incentive contract” as that term is used in 48 CFR part 16, subpart 16.4, and that subpart 16.4 prohibits the use in a contract of other than cost incentives without also providing a cost incentive (or constraint). DOE proposes to add this paragraph to better align with the cost-plus-award-fee contract policy in subpart 16.4, particularly 48 CFR 16.401(e).
○ Paragraph (a)(6)(ii): DOE proposes to add this paragraph to clarify: (1) award fee not earned during the award fee cycle shall not be carried over to any future award fee cycle; (2) when the award fee cycle consists of one evaluation period, unearned award fee amounts may not be carried over from one evaluation period to the next; and (3) when the award fee cycle consists of two or more evaluation periods the Contracting Officer may make the decision that unearned award fee amounts may be carried over from one evaluation period to the next, if the periods are within the same award fee cycle. DOE proposes to add this paragraph to better align its cost-plus-award-fee contract policy with the cost-plus-award-fee contract policy in 48 CFR 16.401(e)(4).
○ Paragraphs (b)(1) and (2): DOE proposes to reorganize, revise, and move the policy at 970.1504-1-2(f) to this section to clarify: (1) that before issuing a competitive solicitation, the Head of the Contracting Activity (HCA) must coordinate the maximum total available fee amount with the SPE or designee; (2) a competitive solicitation must identify the greatest maximum total available fee amount the Government will accept and may invite offerors to propose a lower fee amount; and (3) before beginning to negotiate an extension to an existing contract, the HCA must coordinate the greatest maximum total available fee amount the HCA will accept and the maximum total available fee amount targeted for negotiation with the SPE or designee.
• Section 970.1504-1-3: First, DOE proposes to delete the policy describing special considerations for determining fee for laboratory M&O contracts in current 970.1504-1-3(a) through (c)(7). That policy required determining whether any fee is appropriate for laboratory M&O contracts; DOE's new policy is that a fee is appropriate. DOE believes, based upon its experience with the current policy, the new policy will encourage a larger potential group of entities to compete for DOE's laboratory M&O contracts, which will result in better outcomes for DOE. (This deletion of the laboratory M&O contracts fee policy is one of the two proposed changes of any significance to the current M&O contracts fee policy mention earlier, the other being the Classification Factor for research and development at a laboratory was increased.)
Second, a better articulation of DOE's general policy for fee determination for M&O contracts is now proposed to be found at 970.1504-1-3(a) through (f). DOE's general policy for fee determination has been and remains that: all M&O contracts are “incentive fee” contracts as described in 48 CFR part 16, subpart 16.4; and DOE will evaluate (per a contract's performance measures) the contractor's performance to determine the fee the contractor's performance has earned it. This is a long-standing policy, which, in essence, is strewn across several sections of the current fee policy, not necessary in ideal sequential order, or covered by the Federal Acquisition Regulation and not reiterated in the DEAR. Stated in more detail, the long-standing construct of fee policy for M&O contracts has been and is proposed to remain:
Objective performance measures are preferred to subjective ones and tying specific fee to specific outcomes should be accomplished whenever feasible. Consequently, fixed-price actions would be ideal (albeit the unlikelihood of their being feasible in M&O contracts) and cost-plus-fixed-fee actions (such as base fee in a cost-plus-award-fee action) are to be avoided whenever practical (and their use requires high level approval). The formula to determine the maximum total available fee is based on annual fee determinations using fees bases, fee schedules, classification factors, and appropriate percentages. More specifically, the maximum total available fee amount for an M&O contract is the sum of the maximum total available fee amounts of the contract's one-year periods. The maximum total available fee amount in a one-year period is based on the fee base of the one-year period. Calculating the maximum total available fee amount for a one-year period requires considering the: magnitude of the effort (reflected by the total fee base for the year); type of effort (reflected by the allocation of the total fee base to the three fee schedules); nature, difficulty, complexity, and importance of the work (reflected by the choice of classification factors); and specific circumstances of the procurement (reflected by the appropriate percentages derived from considering significant factors).
This better articulation of DOE's general policy for fee determination for M&O contracts reflects the construct of (and some pertinent details of) DOE's long-standing general policy for fee determination in more concise terms, in a more logical sequence, and in more congruence with the Federal Acquisition Regulation's articulation of the concept of contract types and fee arrangements. In essence, DOE is proposing pulling and revising (sometimes integrating constructs, sometimes integrating and revising specific language, sometimes deleting unnecessary language, sometimes revising necessary language) policy guidance from the following sections and placing it in section 970.1504-1-3:
○ 970.1504-7(a) through (e)—Fee base;
○ 970.1504-1-6(a) and (b)—Calculating fixed fee;
○ 970.1504-1-9(a) through (j)—Special considerations: Cost-plus-award-fee;
○ 970.1504-1-5—General considerations and techniques for determining fixed fees;
○ 970.1504-1-2(i)—which addresses conditional payment of fee, profit, and other incentives;
○ 970.1504-1-4(e)—which addresses requirements if using multiple contract types;
○ 970.1504-1-4(f)—which addresses cost reduction incentives; this section is deleted without replacement because DOE determined its policy for value engineering (stated in its Acquisition Guide) was more appropriate;
○ 970.1504-1-4(g)—which addresses the responsibilities of operations and field offices in establishing contract types and fee arrangements;
○ 970.1504-1-2(c) and (d)—which discuss annual fee determination, maximum amount of annual fee, and the role of the Senior Procurement Executive;
○ 970.1504-1-2(b)(3)—which discusses preferences for fixed price awards, objective measures, and tying fee to specific portions of the fee pool;
○ 970.1504-1-4(c)(3) and (4)—which discuss risk, base fee, performance fee and its two components, and the preference for the objective fee component; and
○ 970.1504-1-4(d)—which addresses performance fee, measures and objectives, the preference for tying fee to
(It should be noted that some of the pulled and revised language listed above appears more than once, that is, it appears not only in 970.1504-1-3(a) through (f) but also—for the purpose of improving readability—in other sections of DOE's proposed fee policy.)
○ Paragraphs (a) through (b)(6): DOE proposes to reorganize, revise, and move the policy currently located at 970.1504-7(a) through (e)—Fee base, 970.1504-1-6(a) and (b)—Calculating fixed fee, 970.1504-1-9(a) through (j)—Special considerations: Cost-plus-award-fee, and 970.1504-1-5—General considerations and techniques for determining fixed fees to section 970.1504-1-3(a) through (b)(6) to clarify the construct of DOE's long-standing general policy for fee determination for M&O contracts. The guidance in the portions of general policy moved to 970.1504-1-3 includes guidance regarding: magnitude of the effort; type of the effort; nature, difficulty, complexity, and importance of the work; specific circumstances of the procurement; maximum total available fee amount for the contract; annual fee bases; allocation of the maximum total available fee amount; the fee base in each of the one-year periods of the contract; allocating that total available fee to the evaluation periods of the contract based upon what best motivates the contractor's superior performance; allocating incentives in a manner that will result in reasonable contractor risk and provide the contractor with the greatest incentive; maximum total available fee amount equaling the sum of the maximum total available fee amounts in the contract's one-year periods; the maximum total available fee amount for a one-year period is based on the fee base for that one-year period; the fee base is an estimate of the allowable costs (with some exclusions) for that one-year period; the fee base is a basic component of the fee schedules, which link the fee base to fee; the amount of the fee base and the amount of fee in the fee schedules are annual amounts; calculating the maximum total available fee amount for a one-year period is based on the contract's one-year periods and their fee bases; usually the maximum total available fee amount for a one-year period is allocated to the same one-year period; when a maximum total available fee amount is established for longer than a year, it is subject to adjustment; the SPE's or designee's approval is required for evaluation periods other than one year; the Government's objective is to allocate incentives in a manner that will provide the contractor with the greatest incentive for efficient and economical performance; and occasions could occur where it would be appropriate to allocate the maximum total available fee amount for a year to a subsequent one-year evaluation period, an evaluation period of greater than a year, or to several evaluation periods.
○ Paragraph (b)(7): To clarify the construct of DOE's long-standing general policy for fee determination for M&O contracts, DOE proposes to: (1) reorganize and revise the policy currently located at 970.1504-1-2(b)(3), (c), and (d), 970.1504-1-4(c)(2) through (d), and 970.1504-1-9(b) and (h) and move it to paragraph (b)(7); (2) repeat some of the M&O contract Total Available Fee contract clause's language and add it to this paragraph, specifically the clause's language requiring the negotiations to establish the requirements for the year and the maximum total available fee that the contractor can earn for its performance must occur before the contract year begins, and the language requiring the maximum total available fee allocated to an evaluation period be apportioned among a base fee amount and a performance fee amount; and (3) rephase some of the Federal Acquisition Regulation's discussion at 48 CFR part 16, subpart 16.4, regarding incentives, objective performance requirements, and subjective performance requirements, and award fee and add it to this paragraph.
○ Paragraph (b)(8): DOE proposes to reorganize, revise, and move the policy at currently located at 970.1504-1-2(b)(3) and (e) to this paragraph.
○ Paragraph (c): DOE proposes to add this paragraph because it repeats and emphasizes the fee determining sequence mentioned earlier. Paragraph (a) addressed the general requirements for determining fee, and paragraph (b) addressed the maximum total fee amount for the contract, which necessarily mentioned total available fee for each one-year period of the contract. Therefore, it adds to the readability of DOE's M&O contract fee policy to address determining the maximum total available fee for each one-year period of the contract at this point. (The next paragraph addresses conditional payment of fee, profit, and other incentives, which applies to paragraphs (a), (b), and (c).) Paragraph (c) alludes to base fee, fee schedules, classification factors, appropriate percentages derived from the significant factors, and the specific details for calculating the maximum total available fee one-year period and an example, subjects addressed comprehensively at 970.1504-1-5, 970.1504-1-6, 970.1504-1-7, 970.1504-1-8, and 970.1504-1-4, respectively.
○ Paragraph (d): DOE proposes to reorganize and revise the policy currently located at 970.1504-1-2(i) and move it to paragraph (d). DOE is taking this action to: (1) clarify the significance to the fee determining process of the performance requirements of the contract relating to environment, safety, and health (ES&H) and relating to safeguarding of Restricted Data and other classified information; and (2) add new performance requirements, those relating to business and financial systems, which also will be significant to the fee determining process. DOE proposes to add the new performance requirements because it believes adding emphasis to the importance of strong business and financial systems to its fee policy will enhance the effectiveness of its contract administration and its mission accomplishment.
○ Paragraph (e): DOE proposes to reorganize and revise the policy on multiple contract types and fee arrangements at 970.1504-1-4(e) and move it to paragraph (e). DOE proposes to remove the policy on cost reduction incentives at 970.1504-1-4(f) and the associated clause at 970.5215-4, which is prescribed at 970.1504-5(c). DOE no longer uses the types of cost reduction incentives at 970.1504-1-4(f), using instead value engineering, which is covered in the DOE Acquisition Guide and the Federal Acquisition Regulation.
○ Paragraph (f): DOE proposes to reorganize and revise the policy at 970.1504-1-4(g) and move it to paragraph (f).
• Section 970.1504-1-4: DOE proposes to reorganize and revise this section to simplify and state explicitly the construct underlying, the sequence for calculating, and the step-by-step process for determining the total available fee for an M&O contract and include a numerical example for determining the total available fee for a one-year period of an M&O contract. While this section articulates the gist of the current fee policy, there is neither an exact parallel to this section in the current fee policy nor a direct link to specific language in the current fee policy. This section is based in large part on the current fee policy's sections on fee base, fee schedules, classification factors, and significant factors, which are found at 970.1504-1-7, 970.1504-1-6, 970.1504-1-9, 970.1504-1-5, respectively.
• Section 970.1504-1-5: DOE proposes to revise and reorganize the section to clarify DOE's policy on the calculation of fee base, which is the
• Section 970.1504-1-6: DOE proposes to revise and reorganize the section to clarify DOE policy on the calculation of the M&O maximum total available fee amount, for a one-year period once the total fee base for the year is determined, including the use of the DOE M&O fee schedules (970.1504-1-6), which list the maximum amount of fixed fee. The DOE fee schedules that are based on three types of efforts (Production, research and development (R&D), environmental management (EM)). The section was revised to align with the proposed revised section 48 CFR 970.1504-1-4. In addition, DOE proposes to revise the section to better align the section with DOE policy that that an M&O contract is an “incentive contract” unless otherwise approved by the SPE.
• Section 970.1504-1-7: DOE proposes to revise and reorganize the section to clarify DOE policy on application of the DOE facility classification factors in the calculation of the maximum total available fee, to increase the Classification Factor for research and development conducted at a laboratory from 1.25 to 1.5, to add a Classification Factor (of 1) for efforts performed using a fixed fee, and to relocate the policy on application of facility classification factors from current 48 CFR 970.1504-1-9 to this section. In addition, DOE proposes revising the section to align with the revisions to 48 CFR 970.1504-1-4. DOE proposes to increase the Classification Factor for research and development conducted at a laboratory because of the increased importance DOE places on such efforts. DOE proposes to add the Classification Factor for efforts performed using a fixed fee because, despite the rare use of fixed fee, use of a fixed fee is permitted by DOE's fee policy.
• Section 970.1504-1-8: DOE proposes to revise and reorganize the section to clarify DOE policy on consideration of the specific circumstances of the procurement in the calculation of the maximum total available fee, the application of DOE significant factors for each type of effort, and to relocate the DOE policy on the consideration of significant factors from current 48 CFR 970.1504-1-5 to this section.
• Section 970.1504-1-9: DOE proposes to revise the section to clarify the sequence for calculating, and the step-by-step process for determining, the maximum total available fee for an M&O contract. In addition, DOE proposes to revise the section to align with revisions to section 48 CFR 970.1504-1-4.
• Section 970.1504-1-10: DOE proposes to revise the section to reorganize and clarify the policy for calculating the maximum total available fee for an M&O contract, the policy for the length of evaluation periods, the policy for allocating the maximum total available fee amount for a one-year period, and the policy for the use of evaluation periods greater than one year. DOE proposes to relocate the policy on the length of evaluation periods and the use of evaluation periods greater than one year from current 48 CFR 970.1504-1-2(c) and (d) to this section.
• Section 970.1504-1-11: DOE proposes to revise the section, which is simply a repetition of the last step in calculating the maximum total available fee for a contract. This section is aligned with the revisions in section 48 CFR 970.1504-1-4.
• Section 970.1504-2-1: DOE proposes to amend this section to maintain its current guidance on cost or pricing data (relocated from current 970.1504-3-1). DOE also proposes to delete its current guidance: on the documentation of the fee prenegotiation objective (970.1504-1-11); and on the price negotiation (970.1504-2). The language in the deleted sections is unnecessary either because it is primarily procurement guidance adequately covered elsewhere (among other places, at 48 CFR 15.406-1 and 15.406-3 and internal DOE guidance) or primary funding guidance that should be addressed in the Office of Chief Financial Officer's guidance.
• Section 970.1504-3: DOE proposes to move the policy currently located at 48 CFR 970.1504-5 to this section. DOE's proposed revisions to the text of 970.1504-5 include:
○ deleting references to the Total Available Fee clause's Alternates I through IV, currently found at 48 CFR 970.1504-5(a)(1) through (4) because elsewhere DOE is proposing revising the Total Available Fee clause and eliminating its Alternates I through IV;
○ deleting the prescription for the Cost Reduction clause (currently found at 970.1504-5(c)) because DOE no longer uses cost reductions incentives (DOE is also proposing eliminating the policy and clause for cost reductions incentives, found at 970.1504-1-4(f) and 970.5215-4, respectively, because DOE uses value engineering instead of cost reduction incentives);
○ deleting the references to the clause at 970.5215-3's Alternates I and II, found at 48 CFR 970.1504-5(b)(2) and (3) because elsewhere DOE is proposing revising the clause to eliminate the need for the Alternates; and
○ revising for clarity DOE's policy on using the Limitation on Fee solicitation provision (found at 970.5215-5).
• Section 970.1706-1: DOE proposes to amend this section to clarify the DOE policy on the award, renewal, and extension of M&O contracts.
○ Paragraph (a): DOE proposes to amend this paragraph to clarify the DOE policy that: (1) effective performance under an M&O contract is facilitated by the use of a relatively long contract term; (2) only the Secretary can authorize the use of an M&O contract; and (3) only the Secretary can renew the original authorization of an M&O contract.
○ Paragraph (a)(1): DOE proposes to add this paragraph to reorganize content and clarify DOE policy that an M&O contract shall provide for a base term not to exceed the lessor of five years or the maximum term the Secretary authorized.
○ Paragraph (a)(2): DOE proposes to add this paragraph to reorganize content and clarify DOE policy that: (1) the contract may include option terms provided no option term exceeds the lessor of five years or the maximum term the Secretary authorized; (2) the sum of base term and the option terms does not exceed the lessor of 10 years or the maximum term the Secretary authorized for the contract; (3) in addition to the base term and the option terms just described, an M&O contract for a national laboratory that is competitively awarded may provide for award term incentives provided none exceed the maximum term the Secretary authorized for each; and (4) the sum of base term, option terms, and award terms shall not exceed the lessor of 20 years or the maximum term the Secretary authorized for the contract.
○ Paragraph (a)(3): DOE proposes to add this paragraph to reorganize content and clarify DOE policy that after the Secretary's original authorization of the use of the M&O contract has expired, any continuation of work under an M&O contract must be preceded by the Secretary's renewal of the authorization for use of an M&O contract.
○ Paragraph (a)(4): DOE proposes to add this paragraph to reorganize content and clarify DOE policy that a sole source extension of an M&O contract to the incumbent must be justified under one of the statutory authorities listed in 48 CFR 6.302 and authorized by the Secretary.
○ Paragraph (a)(5): DOE proposes to add this paragraph to reorganize content and clarify DOE policy that the specific duration of the base term, option terms, and award terms of an M&O contract must be established concurrent with the Secretary's authorization (or renewal of his/her authorization) to use an M&O contract (for original use, sole source award to a new contractor, competitive award to a new contractor or to the incumbent, or sole source extension of the contract to the incumbent).
○ Paragraph (b): DOE proposes to amend this paragraph to clarify the DOE policy that the contracting officer's decision to exercise an option must be approved by the Senior Procurement Executive and the cognizant Assistant Secretary(s), and that in deciding to exercise the option, the contracting officer shall make the determinations required by 48 CFR 17.605.
○ Paragraph (b)(1): DOE proposes to add this paragraph to clarify DOE policy that for the exercise of an M&O option period, the contracting officer shall consider the extent to which performance-based management contract provisions are present or can be negotiated into the contract.
○ Paragraph (b)(2): DOE proposes to add this paragraph to reorganize content and clarify DOE policy that for the exercise of an M&O option period, the contracting officer shall make the determinations required by 48 CFR 17.605 in the manner described therein. The content formerly located at paragraph (b) is moved here and provides that as part of the review required by 48 CFR 17.605(b), the contracting officer shall assess whether competing the contract will produce a more advantageous offer than exercising the option; the incumbent contractor's past performance under the contract; the extent to which performance-based management contract provisions are present, or can be negotiated into, the contract; and the impact of a change in a contractor on the Department's discharge of its programs. The contracting office shall address the considerations in 48 CFR 17.605 in the decision that the exercise of the option is in the Government's best interest. The proposed paragraph adds that the determination described in 48 CFR 17.207(d) and (e)(2) is not required, and because of the way in which the evaluation of cost to the Government is performed in the award of an M&O contract that includes options, the contracting officer need only determine the option was evaluated as part of the initial competition and contains a maximum fee. The contracting officer need not, for example: issue a new solicitation; informally analyze prices; or determine the option is the more advantageous offer.
• Sections 970.1707-1, 970.1707-3, and 970.1707-4: DOE proposes to amend these sections to make minor editorial changes to update references and update policy to reflect the Department of Energy Research and Innovation Act (Pub. L. 115-246). In addition to referencing the Economy Act (31 U.S.C. 1535), 42 U.S.C. 7259a has been added as the authority for the Secretary to allow work to be performed at DOE laboratories “on behalf of other departments and agencies of the Government, agencies of State and local governments, and private persons and entities”.
• Sections 970.1708, 970.1708-1, 970.1708-2, and 970.1708-3: DOE proposes to add these sections to integrate a new DOE policy on Agreements for Commercializing Technology (ACT) and prescribe a new clause at 48 CFR 970.5217-2. DOE proposes to add new regulatory coverage that provides authorization for M&O contractors to conduct third party-sponsored research at the M&O contractor's risk under Agreements for Commercializing Technology. Whereas the requirements and policy for Agreements for Commercializing Technology are currently contained in DOE guidance and in special provisions included in contracts, the proposed rule will establish regulatory coverage and incorporate the requirements into a new clause at 48 CFR 970.5217-2. DOE proposes the new policy and clause to allow M&O contractors to engage with industry more flexibly on research and technology transfer projects. Through ACT, an M&O contractor can negotiate and accept financial and performance risks and accept terms and conditions more consistent with industry practice that are not permitted under Cooperative Research and Development Agreements and SPP agreements to advance technology transfer and the commercialization of technologies.
• Section 970.1907-8: DOE proposes to add this subsection to clarify that Contracting Officers should insert the clause at 48 CFR 5219-9, Small Business Subcontracting Plan, in all M&O solicitations and contracts and to prescribe a new clause that supplements the FAR clause at 48 CFR 970.5219, “Small Business Subcontracting Plan”. The new clause incorporates a DOE policy concerning “Management and Operating Contractor Subcontract Reporting Capability (MOSRC)” to collect key information about M&O contractor first tier subcontracts for reporting to the Small Business Administration.
• Section 970.2201-1-1: DOE proposes to amend this section to identify situations with non-management and operating contracts where the applicability of management and operating contractor basic labor policies may apply.
• Section 970.2201-1-2: DOE proposes to amend this section in several places to identify the basis for the policies presented by adding a citation to the underlying regulations. The amendments also include minor textual edits for clarity, including applicability to certain non-M&O contracts as described in section 970.2201-1-1 and limit the scope of this section to wages, salaries, and employee benefits under the collective bargaining agreement process. The proposed rule also transfers more general matters from this section to section 970.2201-1-4.
• Section 970.2201-1-3: DOE proposes to amend this section to add language to expand the applicability of section 970.5222-1, Collective Bargaining Agreements-Management and Operating Contracts to certain non-M&O contracts (as described in section 970.2201-1-1) and require that it be flowed down to subcontracts for protective services or other services performed at a DOE-owned site that affect continuity of operations.
• Section 970.2201-1-4: DOE proposes to add this section to incorporate policy on critically skilled employees initially established in DOE Acquisition Letter 94-19 and to emphasize the connection to a contractor's compensation system and policies in the recruitment and retention of a critically skilled workforce. This section also emphasizes that costs in support of this policy must be reasonable and meet allowability requirements. Lastly, the discussion of wages, salaries, and employee benefits removed from section 970.2201-1-2 is relocated to this section.
• Sections 970.2204, 970-2204-1, and 970-2204-1-1: DOE proposes to amend section 970.2204 to clarify that both non-management and operating contracts and management and operating contracts are subject to the same subpart (922.4) governing labor standards involving construction. Accordingly, the reader is pointed to the policy in subpart 922.4, and section 970.2204-1 is removed as duplicative. Section 970.2204-1-1 is relocated to subpart 922.4 as well.
• Section 970.2210: DOE proposes to revise this section to update the reference to the Service Contract Act of 1965. The section heading is revised to
• Section 970.2270: DOE proposes to revise this section regarding unemployment compensation to better comport with existing federal and state unemployment compensation laws and eliminate inconsistencies.
• Section 970.2270-2: DOE proposes to add this prescription to ensure contracting officers include the clause at 970.5222-4, Unemployment Compensation, in applicable solicitations and contracts and that fill-in data are also identified by the contracting officer.
• Section 970.2301-1: DOE proposes to remove this section as its contents include an out-of-date hyperlink, reference to the requirements of a rescinded Executive order, and internal procedures that are not necessary to set forth in regulation.
• Section 970.2301-2: DOE proposes to revise this section to: (1) add a prescription for the inclusion of the clause at 952.223-78, “Sustainable Acquisition Program”; (2) remove prescriptions for clauses that are proposed for removal (970.5223-6, which is removed because the Executive order that is its basis has been revoked and 970.5223-7 which duplicates the clause at 952.223-78); and (3) remove prescriptions for various FAR clauses as they are already prescribed in 48 CFR chapter 1 and it is unnecessary to prescribe them here.
• Section 970.2303-2-70: DOE proposes to revise this section to update the office name in paragraph (c)(2)(ii).
• Section 970.2672-3 is amended to clarify the applicability of 48 CFR 952.226-74 “Workforce Restructuring and Displaced Employee Hiring Preference” to both non-management and operating contracts and management and operating contracts pursuant to section 3161 of the National Defense Authorization Act For Fiscal Year 1993.
• Section 970.2673-2: DOE proposes to revise this subsection to change the prescription for the clause at 970.5226-3, “Community Commitment”, making it optional rather than mandatory.
• Section 970.2701-1: DOE proposes to revise this section to clarify that subpart 970.27 applies to contracts for decontamination and decommissioning activities.
• Sections 970.2702 and 970.2702-1-2: DOE proposes several amendments to sections 970.2702 through 970.2702-6. Specifically, DOE proposes to: (1) revise the heading to section 970.2702 and section numbering to conform to the FAR subpart 27.2 which this subpart supplements; and (2) consolidate clause prescriptions formerly located in sections 970.2702-2 through 970.2702-6 into new section 970.2702-1-2.
• Section 970.2703-1: DOE proposes to revise this section to streamline content by removing paragraph (b)(1) through (5) as its content is adequately addressed elsewhere, and redesignating paragraph (c) as paragraph (b).
• Section 970.2703-2: DOE proposes to revise this section to address more clearly when each of the patent clauses should be used based on the type of Contractor and patent waivers granted. In addition, paragraph (a)(2) addresses “privately funded technology transfer” activities that are authorized under Alternate I of 48 CFR 970.5227-3. Although there is no specific language prescribed by an Alternate in this clause, the instructions allow further changes to the patent clause if DOE or the Contractor requests to further define use of royalty funds, cost restrictions and liability related to privately funded licensing activities. Since DOE has replaced a DEAR clause for subcontracts to non-profit organization or small business firms with the FAR provision at 37 CFR 401.14, a new paragraph (h) is added to address the use of appropriate Alternates I or II for 48 CFR 952.227-11 to add agency implementing regulations and, if applicable, DOE's Declaration of Exceptional Circumstance for substantial U.S. manufacture.
• Section 970.2704-2: DOE proposes to revise this section to: (1) add a sentence at the end of paragraph (a) that, in compliance with Government-wide mandates to make research results publicly available, references section 935.010 for R&D results conveyed in scientific and technical information and DOE Order 241.1B which addresses requirements for scientific and technical information that are stored in the Office of Scientific and Technical Information (OSTI); and (2) revise the last sentence of paragraph (e) to reflect the new standard of not requiring the Contractor to renew copyright exclusivity every five years, which was administratively burdensome and hampered long-term licensing activity, but to notify Patent Counsel and OSTI when commercial activity ceases.
• Section 970.2704-3: DOE proposes to revise this subsection to add more clarity as to when to use either of the Rights in Data clauses in M&O Contracts.
• Section 970.2770-2: DOE proposes to revise this subsection to reflect the addition of the new clause at section 970.5217-2, Agreements for Commercializing Technology (ACT), and require its inclusion in new awards for or extensions of existing DOE laboratory or weapon production facility M&O contracts. By authorizing the use of ACT, the Contractor may engage with third parties with more flexibility in terms, but the Contractor accepts greater risks in advance funding and liability.
• Section 970.2803-1: DOE proposes to revise this section by updating the office name in paragraph (b)(1). Additionally, in paragraph (b)(3), DOE proposes to establish the Head of Contracting Activity as the official responsible for approving management and operating contractor employees' benefit plans because that individual is better situated to make these determinations.
• Section 970.2803-2: DOE proposes to revise this section to update the reference in the last sentence from “(f)(3)(C)” to “(f)(1)(iii)(C)”.
• Section 970.3101-00-71: DOE proposes to add this section to clarify that the cost principles of 48 CFR 31.2 and subpart 970.31 apply to M&O contracts, regardless of entity type.
• Section 970.3102-3-70: DOE proposes to revise this section to remove the parenthetical reference in paragraph (a)(3)(i) because DOE's fee policy no longer distinguishes between a contract for the management and operation of a laboratory and a contract for the management and operation of a non-laboratory.
• Section 970.3102-05-6: DOE proposes to amend this section by removing the last sentence of paragraph (a)(6) which states “For purposes of designating the threshold, total compensation includes only the employee's salary and cash bonus or incentive compensation.” Removing this sentence increases DOE flexibility in this area to account for other things which should be included in the definition of total compensation, such as deferred compensation. In addition, DOE proposes to remove paragraph (p)(1) which references the Office of Federal Procurement Policy senior executive compensation benchmark because that information is covered in the FAR. The proposed rule also adds a pointer to that coverage at the end of paragraph (a)(7)(ii).
• Section 970.3200-1: DOE proposes to revise this subsection, in paragraph (c), by removing the words “remedy coordination official” and adding in their place “Head of the Contracting Activity”. This change is intended to improve clarity since “remedy coordination official” is an undefined term that is not widely used whereas
• Section 970.3270: DOE proposes to amend this section by removing section 970.5203-1, “Management Controls,” from the list of standard financial management clauses at paragraph (a)(4) and redesignating paragraphs (a)(5) through (8) as paragraphs (a)(4) through (7). The management controls clause is prescribed elsewhere and does not need to be prescribed here as well.
• Section 970.3501-1: DOE proposes to amend this section to remove an obsolete reference.
• Section 970.3501-2: DOE proposes to amend this section to update references and clarify that only a federal Contracting Officer can obligate the Government to place work on the contract and obligate the Government to reimburse the contractor under the contract.
• Section 970.4102-1: DOE proposes to revise this section to update office names, remove references to a rescinded DOE Order, clarify that Federal Energy Management Program (FEMP) concurrence is not necessary for NNSA programs, and make minor editorial changes.
• Section 970.4207-05-01: DOE proposes to revise this section, in paragraph (b)(4)(ii) to add the words “if such costs have been the subject of a DOE audit” to the end of the sentence. This change is proposed in order to clarify that the contracting officer cannot resolve any questioned costs that have been the subject of a DOE audit without first obtaining the opinion of the DOE's auditor on the allowability of such costs.
• Section 970.4401-1: DOE proposes to amend this section to remove Balanced Scorecard metrics as a means of evaluating purchasing systems and allow for other metrics to be used. This change is proposed because the Balanced Scorecard program does not include metrics for evaluating M&O contractor purchasing systems.
• Section 970.4402-1: DOE proposes to revise this section to add a new paragraph (c) which states that the M&O contractor's purchasing performance, including compliance with its approved system and methods, will be evaluated against the performance criteria and measures set forth in 48 CFR part 44, subpart 44.3, using the procedures articulated in DOE policies including DOE guidance on oversight of M&O Contractor's Purchasing Systems.
• Section 970.4501-1: DOE proposes to amend this section by revising the section heading to read “Applicability” and replacing the existing section text (moved to new section 970.4501-2) with language that clarifies the applicability of this subpart to M&O contractors and on-site environmental management and other major prime contractors as designated by the SPE. A reference to 41 CFR chapter 109 is also added.
• Section 970.4501-2: DOE proposes to add this section with text taken from the former section 970.4501-1. Paragraph (a) is modified by adding “and environmental management, and other major prime contractors located at DOE sites” to the end of the first sentence; removing the second sentence; and updating the reference to managerial personnel in the third sentence from “paragraph (j)” to “paragraph (k)”.
• Section 970.5203-1: DOE proposes to amend the “Management Controls” clause, in the introductory text, by removing the words “and 970.3270(a)(4)” before the words “insert the following clause:”. It is only necessary to prescribe this clause in one location, and the second prescription located at section 970.3270(a)(4) was therefore removed (as described above).
• Section 970.5204-1: DOE proposes to remove the “Counterintelligence” clause from part 970 and relocate it to section 952.204-74, as this requirement pertains to both M&O and non-M&O contractors.
• Section 970.5204-3: DOE proposes to revise the “Access to and Ownership of Records” clause to incorporate a class deviation. Paragraph (b) is revised to delete the parenthetical instruction to Contracting Officers in the second sentence as well as the last sentence of paragraph (b)(1), which lists examples of employee-related systems of record. Paragraph (g) is revised to replace the automatic flow down requirement based on the presence of the “Integration of environment, safety, and health into work planning and execution” clause currently at section 970.5223-1 with language that requires the contractor to flow down the clause (or maintain the applicable records themselves) whenever the subcontract scope of work could result in potential exposure to radioactive or other toxic substances that can cause long term health impacts.
• Section 970.5209-70: DOE proposes to add a new M&O-specific “Conflicts of Interest” clause in order to provide uniform requirements for M&O contractors.
• Section 970.5215-1: DOE proposes to revise the “Total available Fee: Base Fee Amount and Performance Fee Amount” to make minor editorial revisions throughout to improve clarity.
• Section 970.5215-3: DOE proposes to revise the “Conditional Payment of Fee, Profit, and other Incentives—Facility Management Contracts”, to: add a new requirement that the contractor must comply with its contract's business and financial systems requirements; update references; make revisions for clarity; remove Alternate I (it addressed contracts without security requirements; its requirements are now combined with the basic clause); and remove Alternate II (it addressed contracts awarded on a cost plus award fee basis; it is no longer necessary).
• Section 970.5215-4: DOE proposes to remove the “Cost Reduction” clause. Because the Department has a value engineering policy for M&O contracts, a cost reduction clause is not necessary.
• Section 970.5215-5: DOE proposes to revise the “Limitation on Fee” clause by updating the reference for the clause prescription in the introductory text and making minor editorial changes for clarity in paragraph (b).
• Section 970.5217-1: DOE proposes to revise the “Strategic Partnership Projects Program (Non-DOE Funded Work)” clause to incorporate the Research and Innovation Act and Master Statement of Work requirements, which reduce the transactional approvals by DOE for previously-approved groups of projects. In paragraph (d)(3), DOE has modified its requirements for requiring intellectual property indemnity to allow the contractor to reserve the provision when the sponsor is a federally-funded entity (DOE accepting liability to promote Government funded research) or a state or local government or public university, which may be prohibited from indemnifying others by state law.
• Section 970.5217-2: DOE proposes to add this new “Agreements for Commercializing Technology” clause in order to integrate a new DOE policy that was developed to allow M&O contractors to engage with industry more flexibly on research and technology transfer projects. Through ACT, an M&O contractor can negotiate and accept financial and performance risks and accept terms and conditions more consistent with industry practice that are not permitted under Cooperative Research and Development Agreements and SPP agreements. Whereas the requirements and policy for Agreements for Commercializing Technology are currently contained in DOE guidance and in special provisions included in contracts, the proposed rule will establish regulatory coverage and incorporate the requirements into this new clause.
• Section 970.5219: DOE proposes to add this new “Small Business Subcontracting Plan” clause, in order to integrate a new DOE policy concerning
• Section 970.5222-4: DOE proposes to add this new “Unemployment Compensation” clause to address situations where a contractor, under federal and state unemployment rules are permitted to opt out of paying the state unemployment insurance tax and permitted to instead reimburse the state for actual claims paid out to its former employees. This section requires notification to the Government of its election and asserts governments right to review such changes to assess budgetary and programmatic risks when opting out.
• Section 970.5223-6: DOE proposes to remove the “Executive Order 13423, Strengthening Federal Environmental, Energy, and Transportation Management” clause because Executive Order 13423 has been rescinded.
• Section 970.5223-7: DOE proposes to remove the “Sustainable Acquisition Program” clause on the basis that it duplicates the clause at section 952.223-78, which is prescribed in section 923.172.
• Section 952.5226-1: DOE proposes to revise the “Diversity Plan” clause to incorporate the more current terminology of “Diversity, Equity, Inclusion, and Accessibility” (DEIA) and make minor editorial revisions. This update will better align the DOE clause with current Administration initiatives and will clarify the broader scope of recent DEIA initiatives.
• Section 970.5227-1: DOE proposes to revise the “Rights in Data-Facilities” clause to add new definitions of Assistant General Counsel for Technology Transfer and Intellectual Property, Department of Energy, and Patent Counsel for clarity. The revisions also add a new paragraph (b)(4) requiring the Contractor to deposit technical data at the Office of Scientific and Technical Information per the DOE Order 241.1. Paragraph (c)(3) is added to allow the Government to instruct the Contractor to assert copyright in technical data or software and transfer title to the Government for licensing and distribution if necessary. Paragraph (d) is modified to allow Patent Counsel to determine what Alternates are appropriate to data rights clauses in subcontracts. In order to allow for competitive solicitations, Alternate II is added to include a provision in the Limited Rights Notice to allow for the use of contractor's proprietary data in solicitations for government facilities being constructed, modified or decontaminated and decommissioned.
• Section 970.5227-2: DOE proposes to revise the “Rights in Data-Technology Transfer” clause to add several new definitions of Assistant General Counsel for Technology Transfer and Intellectual Property, Department of Energy, Open Source Software, and Patent Counsel for clarity. Paragraph (b) was broadened to allow the lab to assert copyright from just articles to “works” such as drawings, chapters in books, workshop documents, datasets, etc. that are released to the public. This allows control of the content when the public uses or references this copyright work, but still satisfies DOE's duty to disseminate the results of its research. Also, Office of Scientific and Technical Information requirements are updated in this section to comply with DOE Order 241.1. Added paragraph (c)(3) allows the government to direct the Contractor to assert copyright and transfer title to the Government for further control and distribution of technical data and software. As part of the broadening of copyright assertion without DOE Patent Counsel approval, paragraph (d) expands the type of data that the Contractor can protect for control without commercializing and adds a shorter notice to the publisher if necessary. Since paragraph (d) expanded the type of data, paragraph (e) is revised to require DOE Patent Counsel approval when the Contractor needs to control distribution to advance the goals of the technology transfer mission through commercialization. When the Contractor is granted permission to assert copyright, the five-year renewal periods have been changed to a period of commercialization activities since software can be useful for decades and licensees are reluctant to commercialize for only five years if DOE Patent Counsel rejected any extensions of time. The government may distribute copies to the public of the copyrighted work after the period of commercialization has ended. Paragraph (f) is added to address copyright assertion and distribution in open source software (OSS). The Contractor must notify the funding program that the Contractor intends to distribute the software as OSS and the program has two weeks to object. DOE Patent Counsel can supply that approval if a funding program doesn't exist. This section also provides the requirements that the Contractor to retain records, distribute OSS such as the type of OSS licenses used and allow the public free access to software. Paragraph (g), Subcontracting, has been revised to allow DOE Patent Counsel to approve the use of 48 CFR 52.227-14, Rights in Data-General, or 48 CFR 52.227-17, Rights in Data-Special Works. The definitions in section 927.409(a) have been removed to use Alternate I of 48 CFR 52.227-14. The paragraph (d)(3) in 927.409 has been replaced with Alternate VIII of 48 CFR 952.227-14 to allow DOE Patent Counsel to approve copyright requests. Similarly, Alternate I of 48 CFR 952.227-17 permits DOE Patent Counsel to direct a subcontractor to assert copyright in technical data and transfer to the Government or a third party such as the Contractor. This will allow the Laboratory to consolidate copyright title if portions are generated by subcontractors. Alternate II of this clause is added to include a provision for Limited Rights Data in the Notice for government facilities being constructed, modified or decontaminated and decommissioned.
• Section 970.5227-3: DOE proposes to revise the “Technology Transfer Mission” clause to address the M&O Contractor's use of Trademark and Service marks with regards to the Laboratory names and facilities. In paragraph (a), statutory updates are included to comply with the Laboratory Modernization and Technology Transfer Act. Paragraph (b) includes, for clarity, new definitions for Bailment, Assignment, Strategic Partnership Projects (SPP), Agreements for Commercializing Technology (ACT), Master Scope of Work, and Joint Work Statement. Paragraph (d), Conflicts of Interest—Technology Transfer, has been modified in paragraph (d)(8) to include more information when the Contractor requests for approval of some exclusive licenses or assignments of technology to third parties. In addition, paragraph (d)(10) is revised to better define when the DOE is to be notified of potential conflicts when evaluating proposals on behalf of the program. In paragraph (f), U.S. Industrial Competitiveness, DOE has exercised its discretion to require M&O contractors to obtain written information from the U.S. Trade Representative (USTR) to assist in the consideration by the M&O contractor and the DOE Contracting Officer of a prospective foreign partner's home country's treatment of U.S. companies' intellectual property, and whether U.S. companies have opportunities to do collaborative research in the home country. After many years of experience, DOE has determined that a less cumbersome procedure, which involves relying on information available from USTR websites, can be utilized for
• Section 970.5227-4: DOE proposes to revise the “Authorization and Consent” clause in paragraphs (c)(1) through (3) to replace $100,000 with “simplified acquisition threshold” so that when the simplified acquisition threshold limit is increased, this clause does not have to update the dollar value.
• Section 970.5227-5: DOE proposes to revise the “Notice and Assistance Regarding Patent and Copyright Infringement” clause, in paragraph (c) to replace $100,000 with “simplified acquisition threshold” so that when the simplified acquisition threshold limit is increased, this clause does not have to update the dollar value.
• Sections 970.5227-10 and 970.5227-12: DOE proposes to revise the clauses at section 970.5227-10, “Patent Rights-Management and Operating Contracts, Nonprofit Organization or Small Business Firm Contractor,” and section 970.5227-12, “Patent Rights-Management and Operating Contracts, For-Profit Contractor,” in order to reflect statutory changes and addition of approved determinations of exceptional circumstance (DEC). Paragraph (a) of both clauses adds definitions of Initial Patent Application and Statutory Period for clarity. Paragraph (b)(3) of the clause at section 970.5227-10 (previously located at paragraph (b)(2)) and paragraph (b)(6) of the clause at section 970.5227-12 (previously located at paragraph (b)(5)) have been modified to clarify when the Contractor may elect title to inventions that are covered under a DEC. Paragraph (c) of both clauses has been revised to allow electronic reporting using the Government's iEdison or similar system along with certain information such as award numbers. Both clauses have changed the requirement for “publication approval” to “publication review” requiring the Contractor Invention Identification Procedures to address notification to DOE instead of approval. In paragraph (g) of both clauses, the reference to 48 CFR 925.227-11 has been replaced with 37 CFR401.14 because 48 CFR 952.227-11 has been revised with Alternates I and II for agency implementation of the DEC. In paragraph (j), March-in Rights, both clauses were modified to remove the four reasons where DOE can exercise this right by referencing the statute (for nonprofit organization or small business firm contractors) or patent waiver (for For-Profit Contractors.) Both clauses have added paragraph (t), U.S. Competitiveness, in compliance with the Determination of Exceptional Circumstance for Domestic Manufacture of DOE Science and Energy Technologies. Lastly, both clauses added a final paragraph on Unauthorized Access to require the Contractor to adequately protect materials related to inventions and notify DOE of a breach.
• Section 970.5227-11: DOE proposes to revise the “Patent Rights-Management and Operating Contracts, For-profit Contractor Non-Technology Transfer” clause in a few ways. First, DOE proposes to change the clause title to remove “Non-Technology Transfer” and add “No Patent Waiver” in its place. Second the proposed rule adds a definition of Department of Energy to paragraph (a) for clarity. Additional changes are made to reflect statutory changes. Furthermore, paragraph (c)(2)(vii) requires not only the B&R code but related information such as funding announcements or SPP/CRADA numbers to make it easier to identify inventions from other sources and paragraph (c)(5) is modified to include reporting inventions to Government electronic reporting systems instead of the contracting officer or patent counsel. Finally, DOE proposes to add an “Unauthorized Access” paragraph (o) to require the Contractor to adequately protect materials related to inventions and notify DOE of a breach.
• Section 970.5232-2: DOE proposes to revise the “Payments and Advances” clause to: (1) re-organize and re-number the paragraphs; (2) make editorial changes to streamline and simplify content to improve clarity and update references; and (3) add a paragraph concerning “provisional fee,” which DOE has never addressed in the DEAR, to Alternate II. Although DOE has issued internal guidance that defines provisional fee, articulates when it might be useful, and specifies how to use it, neither the FAR nor the DEAR define or addresses it. Consequently, DOE has concluded it would be prudent to heighten awareness of DOE's view of provisional fee by including some discussion of it in DEAR.
• Section 970.5232-3: DOE proposes to revise the “Accounts, Records, and Inspection” clause to clarify (in paragraph (c)) the contractor's responsibility to either perform a sufficient amount of audit work of its subcontractors' incurred costs or arrange for an audit of its subcontractors' incurred costs. Minor editorial changes for clarity are also proposed.
• Section 970.5232-5: DOE proposes to revise the “Liability with Respect to Cost Accounting Standards” clause, in the introductory text, by updating the citation for the clause prescription.
• Section 970.5232-6: DOE proposes to revise the “Strategic Partnership Project Funding Authorization” clause, in the introductory text, by updating the citation for the clause prescription.
• Section 970.5232-7: DOE proposes to revise the “Financial Management System” clause to: (1) reorganize and number the paragraphs; (2) clarify that contractors must maintain and administer a financial management system that is in accordance with Generally Accepted Accounting Principles (GAAP) for Federal Entities as defined by the Federal Accounting Standards Advisory Board and implemented by the DOE Financial Management Handbook and other implementing policies; and (3) make minor editorial changes for clarity.
• Section 970.5235-1: DOE proposes to revise the “Federally Funded Research and Development Center Sponsoring Agreement” clause to make minor editorial revisions and to clarify that only the Contracting Officer can place work on the contract and obligate the Government to reimburse the Contractor for the work.
• Section 970.5244-1: DOE proposes to revise the “Contractor Purchasing System” clause to: (1) clarify the
• Section 970.5245-1: DOE proposes to revise the “Property” clause to add references to 41 CFR chapters 102 and 109 and make minor editorial changes for clarity.
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Executive Order (E.O.) 12866, “Regulatory Planning and Review,” as supplemented and reaffirmed by E.O. 13563, “Improving Regulation and Regulatory Review,” 76 FR 3821 (Jan. 21, 2011), and amended by E.O. 14094, “Modernizing Regulatory Review,” 88 FR 21879 (April 11, 2023), requires agencies, to the extent permitted by law, 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. Section 6(a) of E.O. 12866 also requires agencies to submit “significant regulatory actions” to the Office of Information and Regulatory Affairs (OIRA) for review. This proposed rule 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 under that Executive order by OIRA of the Office of Management and Budget (OMB).
Consistent with Executive Orders 12866, 13563 and 14094, DOE issues this proposed rule only on a reasoned determination that the benefits of the rule justify its costs, and, in choosing among alternative regulatory approaches, DOE has selected those approaches that maximize net benefits. DOE proposes a broad but largely procedural revision of its acquisition regulation to update and streamline the policies, procedures, provisions, and clauses that are currently applicable to its contracts.
The proposed rule seeks to update, clarify, or eliminate coverage that is unclear, obsolete, or unnecessarily duplicates the FAR; incorporate class deviations into the coverage; streamline the coverage's policies and procedures where appropriate (taking into account DOE's and its contractors' actual experiences); and add several new minor clauses in order to standardize local clause language throughout the department by eliminating the multiple versions of local clauses in current use. While the proposed rule does include several minor policy revisions, none of the revisions are substantial and in total they will have negligible impact on DOE's operations, its contractors, or the economy. The revisions do not in any specific case, or in total, substantially change the existing DEAR or how DOE and DOE contractors adhere to the DEAR. Most of these proposed changes would not generate any additional costs.
Nonetheless, DOE would like to highlight several changes to the DEAR that raise potential cost burden concerns and discuss the expected impacts of these changes.
First, the proposed rule includes a revision of the Facility Clearance clause and associated policy coverage to incorporate a pre-award Interim Access procedure and allow for final Facility Clearance post-award. This change should not result in any significant costs and is intended to benefit the Government by leveraging interim access authorizations for key contractor personnel and improving efficiencies in the timeliness of contract awards, and in contract management.
Additionally, DOE proposes to revise the M&O fee policy to simplify the explanation of fee calculations, delete outdated requirements, and raise the classification factor for R&D laboratory from 1.25 to 1.5. These changes should not result in any significant costs. Most of the changes are editorial in nature, and are internal procedures directed to DOE contracting officers who will benefit from the simplified explanation of fee calculations. The change in classification factor will not result in any significant cost increase since DOE expects no change to the total available fees under these contracts. The revisions are intended to reduce the administrative burden associated with routine requests to the SPE to exceed the total available fees calculated using the existing classification factor.
Furthermore, DOE proposes to add several new contract clauses. Four of these (Agreements for Commercializing Technology; Small Business Subcontracting Plan; Conditional Payment of Fee, Profit, and Other Incentives; Identification of Contractor Employees) are substantially similar to clauses already widely used in DOE contracts. As a result, these four changes would not result in any added burden or costs but would benefit the Department and its contractors by standardizing these clauses across contracts.
The entirely new clauses are:
• A clause to address situations where a M&O contractor is permitted under federal and state unemployment rules to opt out of paying the state unemployment insurance tax and instead reimburse the state for actual claims paid out to its former employees. The proposed clause requires notification to the government of the contractor's election and asserts the government's right to review such changes to assess budgetary and programmatic risks when opting out. This clause only applies to M&O contracts and the notification required poses no significant burden or cost.
• A clause to address conflicts of interest, tailored to M&O contracts. The current DEAR requires M&O contracts to contain an organizational conflict of interest clause substantially similar to the clause at section 952.209-72. The proposed clause tailors that existing clause specifically for M&O contracts in an attempt to provide uniform requirements. The clause only applies to M&O contracts and poses no significant additional burden or cost, but the consistency across M&O contracts will benefit the Government in contract award and administration.
• A clause to clarify the policy and procedures for integrating DOE Directives into non-M&O contracts. Contractor requirements documents (CRDs), attached to DOE Directives, have been integrated into non-M&O contracts as needed for a long time. The addition of the proposed clause, along with the general information section and clause prescription is simply intended to codify the existing process of integrating the requirements of DOE Directives into non-M&O contracts on a bilateral basis and imposes no additional burden or cost.
Finally, many of the proposed changes would result in benefits to the public. Because the DEAR has not had a comprehensive update in decades, it contains outdated and unused content. Additionally, it has citations to outdated laws and regulations and contains sections that are duplicative of the FAR or that are more appropriate for internal procedures and policies. The proposed changes would streamline the DEAR, make it easier to read, and would reflect current practice and requirements.
The Regulatory Flexibility Act (5 U.S.C. 601
The DEAR governs all DOE acquisitions which obligate appropriated funds. Using data from its Integrated Data Warehouse, DOE estimates that it currently has approximately 3,200 prime contractors whose contracts are governed in part by the DEAR and that approximately 2,000 of those contractors are small entities under the RFA. Therefore, DOE has reason to believe that the proposed rule, which is a comprehensive update of the DEAR, could affect a substantial number of small entities.
However, DOE expects that the proposed rule would not have a significant economic impact on those small entities. In fact, DOE expects that the overall impacts of the proposed rule would benefit small entities because the proposed changes would, among other things, revise or remove outdated information and citations, remove extraneous procedural information that applies only to DOE's internal procedures, and remove policy or procedures duplicative of FAR requirements.
Moreover, proposed changes that are not merely technical or procedural primarily apply to DOE's twenty-three M&O contracts. An M&O contract is an agreement by which a private sector entity operates a DOE facility, such as a national laboratory. None of DOE's M&O contracts are held by small entities, and therefore changes to those contracts do not directly impact small entities.
Furthermore, even if M&O contractors could be considered small entities under the RFA, the proposed changes that would only impact M&O contracts are not economically significant.
• DOE's proposed changes to the M&O fee policy sections would simplify and state explicitly the methodology Contracting Officers are to utilize for determining the total available fee for an M&O contract. The revisions are primarily intended to reduce the administrative burden for Contracting Officers. For instance, DOE's proposed rule clarifies that the maximum total available fee amount for an M&O contract may not exceed the fee derived from calculations included in the policy unless approved in advance by the SPE or designee. Additionally, the proposed rule includes an increase in the classification factor for R&D laboratory from 1.25 to 1.5. This change would impact 16 M&O contractors who currently operate national laboratories (all of which are managed and operated by large entities) but should not have a significant economic impact because DOE does not anticipate an increase in the total available fees approved for these contracts.
• DOE proposes to add a clause at section 970.5222-4 to address situations where a M&O contractor is permitted under Federal and state unemployment rules to opt out of paying the state unemployment insurance tax and instead reimburse the state for actual claims paid out to its former employees. The proposed clause requires notification to the government of the contractor's election and asserts the government's right to review such changes to assess budgetary and programmatic risks when opting out. DOE does not believe that the notification would result in any economic impact.
• DOE also proposes to add a clause at section 970.5209-70 to address conflicts of interest, tailored to M&O contracts. The current DEAR requires M&O contracts to contain an organizational conflict of interest clause substantially similar to the clause at section 952.209-72. The proposed clause tailors that existing clause specifically for M&O contracts in an attempt to provide uniform requirements and poses no significant additional burden or cost. Therefore, DOE does not believe that the new clause will impose a significant economic impact.
• DOE proposes to add two clauses specific to M&O contractors: Agreements for Commercializing Technology at section 970.5217-2 and Small Business Subcontracting Plan at section 970.1907-8. These clauses are substantially similar to clauses already widely used in DOE contracts, and would therefore not have a significant economic impact.
Finally, the remaining substantive revisions in the proposed rule that are applicable to non-M&O contracts would not have a significant economic impact.
• The proposed rule includes a revision of the Facility Clearance provision at section 952.204-73, which is required in all solicitations for which the contract work is anticipated to require access to classified information or special nuclear material. The current provision requires a full Facility Clearance prior to the award of a contract requiring access to classified information, and prior to granting any Interim Access Authorizations to key management personnel. The proposed revision would provide a process that permits contract award prior to granting a full Facility Clearance, and permit contract award prior to granting Interim Access Authorizations to key management personnel. There is no change to the processes themselves, only to the timing of the processes.
• DOE proposes to add a clause to clarify the policy and procedures for integrating DOE Directives into non-M&O contracts. Contractor requirements documents (CRDs), attached to DOE Directives, have been integrated into non-M&O contracts as needed for a long time. The addition of the proposed clause, along with the general information section and clause prescription is simply intended to codify the existing process of integrating the requirements of DOE Directives into non-M&O contracts on a bilateral basis and imposes no additional burden or cost to the contractors.
• The proposed rule includes two new clauses: Conditional Payment of Fee, Profit, and Other Incentives at section 952.242-71 and Identification of Contractor Employees at section 952.203-1. These clauses are substantially similar to clauses already widely used in DOE contracts, and would therefore not have a significant economic impact.
Accordingly, DOE certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities, and, therefore, no regulatory flexibility analysis has been prepared.
This rulemaking imposes no new information or record keeping requirements. Accordingly, Office of Management and Budget clearance is not required under the Paperwork Reduction Act. (44 U.S.C. 3501
DOE analyzed this proposed rule in accordance with the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321
Executive Order 13132, “Federalism,” 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. The Executive order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive order also requires agencies to have an accountable 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 determined that this proposed rule does not limit the policymaking discretion of the States. No further action is required by Executive Order 13132.
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 Federal 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. 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, this rule meets the relevant standards of Executive Order 12988.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. (Pub. L. 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a proposed regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA (62 FR 12820) (This policy is also available at:
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 that may affect family well-being. This proposed rule would not have any 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.
The Department has determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 18, 1988), that this proposed rule would not result in any takings which might require compensation under the Fifth Amendment to the United States Constitution.
Section 515 of 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). Pursuant to OMB Memorandum M-19-15, Improving Implementation of the Information Quality Act (April 24, 2019), DOE published updated guidelines which are available at:
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.
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 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; 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.
This proposed rule, which revises and updates DOE's acquisition regulation, would not have a significant adverse effect on the supply, distribution, or use of energy and, therefore, is not a significant energy action.
The Secretary of Energy has approved publication of this notice of proposed rulemaking and request for comment.
Government procurement.
Antitrust, Conflict of interest, Government procurement.
Classified information, Government procurement.
Government procurement, Motor vehicles, Printing, Utilities.
Government procurement, Reporting and recordkeeping requirements, Research.
Government procurement, Minority businesses, Small businesses, Women.
Equal employment opportunity, Government procurement, Labor, Reporting and recordkeeping requirements.
Drug abuse, Government procurement, Radiation protection.
Foreign trade, Government procurement.
Copyright, Government procurement, Inventions and patents.
Accounting, Government procurement.
Accounting, Government procurement, Loan programs—energy, Loan programs—National defense.
Administrative procedure and practice, Government procurement.
Government procurement, Research.
Government procurement, Reporting and recordkeeping requirements.
Government procurement, Utilities.
Accounting, Government procurement.
Government procurement, Government property.
Accounting, Classified information, Drug abuse, Government procurement, Insurance, Labor, Minority businesses, Reporting and recordkeeping requirements, Small businesses, Surety bonds, Taxes, Whistleblowing, Women.
This document of the Department of Energy was signed on August 2, 2023, by William J. Quigley, Deputy Associate Administrator, Partnership and Acquisition Services, National Nuclear Security Administration, pursuant to delegated authority from the Administrator, National Nuclear Security Administration, and John R. Bashista, Director, Office of Acquisition Management, Department of Energy, pursuant to delegated authority from the Secretary of Energy. These documents with the original signature and date are maintained by DOE/NNSA. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the
For the reasons stated in the preamble, DOE proposes to amend chapter 9 of title 48 of the Code of Federal Regulations as set forth below:
42 U.S.C. 7101
The DEAR and amendments thereto are issued by the Senior Procurement Executives (SPEs) of the Department of Energy (DOE) and the National Nuclear Security Administration (NNSA). The SPEs may also approve deviations from the DEAR, together and individually. The DOE SPE delegation is pursuant to a delegation from the Secretary of Energy in accordance with the authority of section 644 of the Department of Energy Organization Act (42 U.S.C. 7254), section 205(c) of the Federal Property and Administrative Services Act of 1949, as amended (40 U.S.C. 121(c)(2)), and other applicable laws. The NNSA SPE delegation is pursuant to a delegation from the Administrator of the NNSA, in accordance with section 3212 of the National Nuclear Security Administration Act (50 U.S.C. 2402), section 205(c) of the Federal Property and Administrative Services Act of 1949, as amended (40 U.S.C. 121(c)(2)), and other applicable laws. Except for the authorities designated as non-delegable, the SPEs are delegated the authorities assigned to the Agency Head in the FAR. A reference to the SPE refers to the DOE SPE and the NNSA SPE, unless otherwise indicated.
In addition to the FAR and DEAR, there are other issuances which deal with acquisition. Among these are the Federal Property Management Regulation (41 CFR chapter 101), the Federal Management Regulation (41 CFR chapter 102), the DOE Property Management Regulation (41 CFR chapter 109), and DOE Directives. The Department also maintains the DOE Acquisition Guide (“the Guide”), which has procedural guidance for the acquisition community. The DOE Acquisition Guide serves this purpose by identifying relevant internal standard operating procedures to be followed by both procurement and program personnel who are involved in various aspects of the acquisition process. The Guide also is intended to be a repository of best practices found throughout the agency that reflect specific illustrations of techniques which might be helpful to all readers. The Guide is at
A deviation from the DEAR is defined as the issuance or use of a policy, procedure, solicitation provision, contract clause, method, or practice of conducting acquisition actions of any kind at any stage of the acquisition process that is inconsistent with the DEAR.
Requests for individual deviations from the FAR or the DEAR shall be submitted to the cognizant Senior Procurement Executive (SPE), that is DOE or NNSA, (or designee) for approval. Requests shall cite the specific part of the FAR or DEAR from which it is desired to deviate, shall set forth the nature of the proposed deviation(s), and shall give the reasons for the action requested.
Requests for class deviations from the FAR or the DEAR shall be submitted to the cognizant SPE, that is DOE or NNSA, (or designee) for processing in accordance with FAR 1.404 and this section. Requests shall include the same information prescribed in 901.403 for individual deviations.
(b) * * *
(3) The ratification authority of the DOE and NNSA Senior Procurement Executives in paragraph (b)(2) of this section is delegated to the Head of the Contracting Activity (HCA) for individual unauthorized commitments of $250,000 or under. The ratification authority of the HCA is nondelegable.
42 U.S.C. 7101
42 U.S.C. 7101
(a) Except for Headquarters activities, the individual within DOE responsible for fulfilling the requirements of FAR 3.104-7(a)(1) and (2), relative to contracting officer conclusions on the impact of a violation or possible violation of subsections 27 (a), (b), (c) or (d) of the Office of Federal Procurement Policy Act, shall be the individual who has procurement authority and is one supervisory level above the Contracting Officer. The legal counsel is the Chief Counsel for the Operations Offices or the Federal Energy Technology Center; the Counsel, or the Chief Counsel, for the Support Offices or the Naval Reactors Offices; the General Counsel for National Nuclear Security Administration (NNSA), and the General Counsel for the Power Administrations. For Headquarters activities, the individual designated to perform the responsibilities in FAR 3.104-7(a)(1) and (2) regarding questions of disclosure of proprietary or source selection information is the Assistant General Counsel for Procurement and Financial Assistance. The designated individual for other questions regarding FAR 3.104-7(a)(1) and (2) for Headquarters activities, or for any other office that does not have authority through procurement operations, is the Agency Ethics Official (Designated Agency Ethics Official).
In accordance with FAR subpart 7.5, DOE does not contract for inherently governmental functions. However, DOE may contract for services that can require contractors to perform duties that require regular contact with DOE and the public related to DOE's mission. To ensure that all parties know the status of individuals as contractor personnel, contractors and their employees must properly identify themselves as contractors in all DOE internal and external communications and meetings.
(a) The Contracting Officer shall insert the DOE website address
(b) The Contracting Officer shall insert the clause at 952.203-1, Identification of Contractor Employees, in all solicitations and contracts for services over the micro-purchase threshold.
42 U.S.C. 7101
The revision and additions read as follows:
(b) The basis of Department of Energy's (DOE) industrial security requirements is the Atomic Energy Act of 1954, as amended, the DOE Organization Act of 1977, as amended, and Executive Orders 13526 and 12829.
(3) DOE has established a counterintelligence program. All DOE elements and contractors managing DOE-owned or leased facilities that require access authorizations, should undertake the necessary precautions to ensure that DOE and covered contractor personnel, programs and resources are properly protected from foreign intelligence threats and activities.
(4) DOE security regulations concerning restricted data are codified at 10 CFR part 1045.
(5) Section 234B of the Atomic Energy Act (42 U.S.C. 2282b) requires that DOE contracts include a clause providing for appropriate reductions in fees or amounts paid to the contractor under the contract in the event of violations of any rule, regulation, or order relating to the safeguarding or security of Restricted Data or other classified information. The clause is required for all DOE prime contracts that involve any possibility of contractor access to Restricted Data or other classified information. The clause specifies various degrees of violations and the amount of reduction attributable to each degree. The clause at 952.242-71, Conditional Payment of Fee, Profit, or Other Incentives, shall be used to comply with 42 U.S.C. 2282b (unless the clause at 970.5215-3, Conditional Payment of Fee, Profit, and Other Incentives—Facility Management Contracts is used). See 942.71(d) for the clause's prescription.
(e) Part 927 contains policies and procedures for safeguarding classified information in patent applications and patents.
(d) * * *
(1)
(3)
(6)
(7)
(a) Based on the information disclosed by the offeror(s) or contractor, and after consulting with the DOE Office of Environment, Health, Safety and Security, the contracting officer must determine that award of a contract to an offeror(s) or continued performance of a contract by a contractor will not pose an undue risk to the common defense and security. * * *
(e) Any request for a waiver under this subpart shall be accompanied by the information required by the clause at 952.204-73, Facility Clearance.
The contractor is required to comply with the requirements of applicable Federal, State, and local laws and regulations, unless relief has been granted by the appropriate authority. Additionally, the Department of Energy (DOE) Directives Program is a system of instructions, including orders, notices, manuals, guides, and standards, for DOE elements. In certain circumstances, DOE will apply requirements contained in these directives to a contract. In these circumstances, program and requirements personnel will be responsible for identifying the requirements that are applicable to the contract and for providing a list of applicable requirements to the Contracting Officer for inclusion in the contract.
The Contracting Officer shall insert the clause at 952.204-78, DOE Directives, in non-management and operating contracts where the work will be performed on a DOE site and the contract will be subject to the requirements of DOE Directives. This includes information technology or cybersecurity work, as well as other work program officials identify as requiring the clause.
42 U.S.C. 7101
42 U.S.C. 7101
(1)
(2)
(f) DOE or NNSA may disapprove or not consent to the selection (by a contractor) of an individual to serve as a principal investigator, as a project manager, in a position of responsibility for the administration of Federal funds, or in another key personnel position, if the individual is listed in the System for Award Management (SAM) exclusions.
(g) DOE or NNSA shall not conduct business with an agent or representative of a contractor if the agent's or representative's name has an active exclusion in SAM.
(h) DOE or NNSA shall review SAM before conducting a pre-award survey or soliciting proposals, awarding contracts, renewing or otherwise extending the duration of existing contracts, or approving or consenting to the award, extension, or renewal of subcontracts.
(a)(1) The contracting officer shall insert the clause at 952.209-72, Organizational Conflicts of Interest, in each non-M&O solicitation and contract for advisory and assistance services expected to exceed the simplified acquisition threshold.
(3) The contracting officer shall include Alternate I with the clause at 952.209-72 in instances in which a meaningful amount of subcontracting for advisory and assistance services is expected or the contract provides for the operation of a DOE site or facility or environmental remediation of specific DOE sites.
(b) For M&O contracts, see 970.0906.
42 U.S.C. 7101
(f) The Contracting Officer shall supplement the clauses prescribed at FAR 12.301—
(1) In all cases, with 952.232-7, Electronic Submission of Invoices/Vouchers; and
(2) In appropriate cases, following prescriptions elsewhere in this chapter, with the following:
(i) 952.204-74, Counterintelligence.
(ii) 952.204-77, Computer Security.
(iii) 952.211-71, Priorities and allocations for energy programs (clause).
42 U.S.C. 7101
(a) This section implements FAR 15.404-4(b) and (d).
(b) DOE's structured profit and fee system for non-management and operating contracts comprises two approaches: a weighted guidelines system for all but construction contracts, construction management contracts, and special equipment purchases; and a fee schedules-based system for construction contracts, construction management contracts, and special equipment purchases. The former is covered at 915.404-70-2 through 915.404-70-8; the latter is covered at 915.404-71 through 915.404-4-71-6. Both approaches use the procedures at 915.404-4-72 for cost-plus-award-fee contracts.
(d) * * *
The Contracting Officer shall insert the clause at 952.215-70, Key Personnel, in solicitations and contracts under which successful performance is largely dependent on the expertise of specific key personnel.
42 U.S.C. 7101
When using the clause at FAR 52.216-7, Allowable Cost and Payment, supplement the clause with 952.216-7, Allowable Cost and Payment.
42 U.S.C. 7101
(b) The requirements of this subpart apply to any Department of Energy management and operating contract.
(b) It is the policy of the Department of Energy to provide for full and open competition in the award of management and operating contracts.
(c) A management and operating contract may be extended at the completion of its term without providing for full and open competition only when such extension is justified under one of the statutory authorities identified in FAR 6.302 and only when authorized by the Secretary.
42 U.S.C. 7101
(a) The DOE Mentor-Protege program seeks to foster long-term business relationships between DOE prime contractors and small business concerns, historically Black colleges and universities (HBCUs), and other minority institutions of higher learning, and to increase the overall number of such entities that receive DOE contract and subcontract awards.
(b) DOE contractors may enter into Mentor-Protege Agreements, aimed at providing developmental assistance to enhance capabilities, with the entities identified in paragraph (a) of this section.
(c) Costs incurred by a mentor to provide developmental assistance are allowable only to the extent incurred in performance of a contract identified in the Mentor-Protege Agreement and are otherwise allowable in accordance with the cost principles applicable to that contract. Developmental assistance must not duplicate any effort normally expended in the course of awarding and administering the Mentor firm's subcontract.
(d) The DOE Headquarters Office of Small and Disadvantaged Business Utilization (OSDBU) is the Program Manager for the DOE Mentor-Protege Program.
(a) Under cost-plus-award fee contracts, approved Mentor firms may earn award fees associated with their performance as a Mentor. The award fee plan may include provision for the evaluation of the contractor's utilization of small business concerns, HBCUs, and other minority institutions of higher learning. DOE may evaluate the Mentor's performance in the DOE Mentor-Protege Program under any Mentor-Protege Agreement(s) as a separate element of the award fee plan.
(b) Mentor firms shall receive credit towards applicable subcontracting goals for subcontracts awarded pursuant to their Mentor-Protege Agreements, as negotiated under FAR subpart 19.7.
(c) Mentor firms may be reimbursed for allowable developmental assistance costs for protege firms under the contract costs.
The cognizant contracting officer shall insert the provision at 952.219-70, DOE Mentor-Protege Program, in all solicitations that include the clause at FAR 52.219-9, Small Business Subcontracting Plan.
42 U.S.C. 7101
(a) The policies and associated contract clauses in 970.2201 apply to the award and administration of non-Management and Operating contracts if:
(1) The contract work had been previously performed under a DOE
(2) The Contractor is required to employ all or part of the former Contractor's workforce; or
(3) The contract has been specifically designated by the Senior Procurement Executive.
(b) The non-M&O contracts described by paragraph (a) of this section may include, but are not limited to, contracts whose work is for:
(1) Environmental remediation;
(2) Decontamination and decommissioning;
(3) Environmental restoration;
(4) Infrastructure services for the site;
(5) Site closure at a current or former M&O contract site or facility; or
(6) Protective forces that provide physical security of sites at a current or former M&O contract site.
This section sets forth additional controls and criteria for the application of the Construction Wage Rate Requirements Statute (40 U.S.C. chapter 31, subchapter IV, Wage Rate Requirements (Construction), formerly known as the Davis-Bacon Act) (Statute) in the Department of Energy's operational or maintenance activities. The policy included in this subpart applies to M&O contracts.
(c)
(1) Work for which continuity of operations is mission-essential (
(2) Emergency work to combat the effects of fire, flood, earthquake, military or terrorist attacks, technological emergencies, infectious disease/pandemic influenza threats, equipment failure, accident, or other casualties, and to restart the operational activity following the casualty. This exemption will generally apply only to work directly related to restarting the activity or work.
(d)
(1)
(2)
(3)
(4)
(i)
(ii)
(iii)
(iv)
(v)
(5)
(6)
(e)
(f)
(1) Contractors whose contracts do not contemplate the performance of work covered by the Statute with the contractor's employees are not authorized to perform such work within the scope of the Statute, unless the Contracting Officer, in compliance with FAR subpart 22.4, modifies the contract.
(2) Determinations of Statute applicability are the responsibility of the HCA on a case-by-case basis. However, the HCA may delegate to the Contracting Officer, if consistent with DOE's responsibilities as described in this subsection, the authority to prescribe, from time to time, classes of work as to which applicability or non-applicability of the Statute is clear.
(g)
(h)
42 U.S.C. 7101
The Department of Energy's (DOE) policy is to promote sustainable acquisition by acquiring products and services that are energy-efficient, contain recycled or biobased content, and have other environmentally preferable attributes, as specified in applicable statutory, regulatory, and Executive Order based requirements.
Insert the clause at 952.223-78, Sustainable Acquisition Program, in all contracts under which the contractor operates Government-owned facilities or motor vehicle fleets, or significant portions thereof, or performs construction at a Government-owned facility.
(a) The Atomic Energy Act mandates that DOE shall either pursue civil penalties, as implemented at 10 CFR part 851, for a violation under 42 U.S.C. 2282c, or a contract fee reduction, but not both. For a contract fee reduction—
(1) The clause prescribed at both 942.71(d) and 923.7003(f), which is 952.242-71, Conditional Payment of Fee, Profit, or Other Incentives, addresses contract fee reductions (for both non-management and operating contracts and management and operating contracts; for the latter 942.71(d) and 923.7003(f) refer to clause prescribed in 970.1504-3(b)).
(2) The clause provides, among other things, for an appropriate reduction to the fee, profit, or other incentives under the contract in the event of a violation by the contractor or any contractor employee of any Departmental regulation relating to the enforcement of worker safety and health concerns.
(3) When reviewing performance failures that would warrant a reduction of otherwise earned fee, the Contracting Officer must consider mitigating factors that may warrant a reduction below the applicable range specified in the clause. The mitigating factors are specified in the clause.
(4) The Contracting Officer must obtain the concurrence of the Head of the Contracting Activity: prior to effecting any reduction of fee, profit or other incentives otherwise payable under the clause at 952.942-71, Conditional Payment of Fee, Profit, or Other Incentives; and prior to determining that no reduction is warranted for performance failure(s) that would otherwise warrant a reduction.
(b) In the event of a violation by the contractor or any contractor employee of any Department regulation relating to worker safety and health concerns, before deciding to pursue a contract fee reduction, the Contracting Officer must coordinate with the Office of Nuclear Safety within the Office of Enforcement in the Office of Enterprise Assessments (or designated successor office).
The revisions read as follows:
(a) A decision to include or not include environmental, safety and health clauses in DOE contracts shall be made by the contracting officer in consultation with appropriate personnel within the Office of Environment, Health, Safety and Security (or designated successor office). For M&O contracts see 970.2303-3 and insert the clause at 970.5223-1.
(f) Unless the clause for management and operating contracts is prescribed (see 970.1504-3(b)), insert the clause at 952.242-71, Conditional Payment of Fee, Profit, and Other Incentives, in all contracts that contain the clause at 952.204-2, Security Requirements, the clause at 952.250-70, Nuclear Hazards Indemnity Agreement, or both clauses.
(g) The contracting officer shall insert the clause at 952.223-75, Preservation of Individual Occupational Radiation Exposure Records, in contracts containing 952.223-71, Integration of Environment, Safety, and Health into Work Planning and Execution, or 952.223-72, Radiation Protection and Nuclear Criticality.
42 U.S.C. 7101
(b)
42 U.S.C. 7101
(a) Section 3021(a) of the Energy Policy Act of 1992, as amended, specifies that the Department of Energy (DOE) shall, to the extent practicable, provide that not less than 10 percent of the total combined amounts obligated for competitively awarded contracts and subcontracts under the Energy Policy Act be expended with -
(1) Small business concerns controlled by socially and economically disadvantaged individuals or by women;
(2) Historically Black colleges and universities;
(3) Colleges and universities having a student body in which more than 20 percent of the students are Hispanic Americans or Native Americans; or
(4) Qualified HUBZone small business concerns, as defined at FAR 2.101.
(b) The four groups in paragraph (a) of this section are collectively referred to in this section as “Energy Policy Act target groups.”
The size standard for Energy Policy Act engineering services procurements shall be North American Industry Classification System code 541330.
Solicitations for all competitive Energy Policy Act procurements not for 8(a) firms and in excess of the simplified acquisition threshold shall provide for an evaluation preference for offers received from entities from among the Energy Policy Act target groups. The evaluation criteria shall provide that in instances in which two or more proposals being considered for final selection are ranked as essentially equal after consideration of all technical and cost evaluation factors, and if one of these proposals is from an offeror from among an Energy Policy Act target group that offeror will be selected for award.
(a)
(1) Any award set-aside for small disadvantaged business;
(2) Any competitive section 8(a) award;
(3) Any competitive award to one of the four target groups under an unrestricted procurement;
(4) Any award to one of the four target groups conducted under simplified acquisition procedures in excess of the micro-purchase threshold; and
(5) Any competitively awarded subcontract to one of the four target groups under a prime award.
(c) The contracting officer shall insert the clause at 952.226-72, Energy Policy Act Subcontracting Goals and Reporting Requirements, in contracts for Energy Policy Act requirements with an award value in excess of $750,000 ($1,500,000 in the case of construction).
The contracting officer shall insert the clause at 952.226-74, Workforce Restructuring and Displaced Employee Hiring Preference, in contracts (both non-management and operating contracts and management and operating contracts), except for contracts for commercial items, pursuant to 41 U.S.C. 403, that exceed $500,000.
Atomic Energy Act of 1954, as amended (42 U.S.C. 2168, 2182, 2201); Federal Nonnuclear Energy Research and Development Act of 1974 (42 U.S.C. 5908); Department of Energy National Security and Military Applications of Nuclear Energy Authorization Act of 1987 (42 U.S.C. 7261a.); Department of Energy Organization Act (42 U.S.C. 7101
For the purposes of this subpart, “research and development (R&D)” includes “research, development, and demonstration.” In certain contracting situations, such as those involving research, development, or demonstration projects, consideration should be given to the impact of third party-owned patents covering technology that may be incorporated in the project if the patents may ultimately affect widespread commercial use of the project results. In such situations, Patent Counsel shall be consulted to determine what modifications, if any, are to be made to the utilization of the Patent and Copyright Infringement Liability and Patent Indemnity provisions or clauses or what other action might be deemed appropriate.
(a)
(2) Another primary mission of DOE is to manage the Nation's nuclear weapons programs and other classified programs, where research and development procurements are directed toward processes and equipment not available to the public. To support DOE programs for bringing private industry into these and other special programs to the maximum extent permitted by national security and policy considerations, the technology developed in these programs should be made available for use in the particular fields of interest and under controlled conditions by properly cleared industrial and scientific research institutions. To ensure such availability and control, the granting of waivers in these programs may be more limited, either by the imposition of field of use restrictions or national security measures, than in other DOE programs.
(b)
(a) In this section and 927.303,
(1) Which the Contractor, but not the Government, has the right to license to others without obligation to pay royalties thereon; and
(2) Infringement of which cannot reasonably be avoided upon the practice of any specific process, method, machine, manufacture, or composition of matter (including relatively minor modifications thereof) which is a subject of the research, development, or demonstration work performed under this contract.
(b) Except for contracts with organizations that are beneficiaries of Public Law 96-517, the United States, as represented by DOE, shall normally acquire title in and to any invention or discovery conceived or first actually reduced to practice in the course of or under the contract, allowing the contractor to retain a nonexclusive,
(c) Normally, contracts will not include background patent and background data provisions. Under special circumstances, however, to provide heightened assurance of commercialization, a provision providing for a right to require licensing to third parties of background inventions, limited rights data or restricted computer software may be included (
(d) The Assistant General Counsel for Technology Transfer and Intellectual Property shall:
(1) Determine whether reported inventions are subject inventions under the patent rights clause of the contract;
(2) Determine whether and where patent protection will be obtained on inventions;
(3) Represent DOE before domestic and foreign patent offices;
(4) Accept assignments and instruments confirmatory of the Government's rights to inventions; and
(5) Represent DOE in patent, trademark, technical data, copyright, and other intellectual property matters not specifically reserved to the Head of the Agency or designee under this part.
(a)(1) Insert a patent rights clause in all solicitations and contracts for experimental, research, developmental, or demonstration work as prescribed in this section.
(2)-(3) [Reserved]
(4) For M&O contracts, certain decontamination and decommissioning activities and the building and/or operation of other DOE facilities, see subpart 970.27.
(d) The Contracting Officer shall use the clause at 952.227-13, Patent Rights—Ownership by the Government, except for—
(1)
(2)
(3)
(4)
(5)
(6)
The revision reads as follows:
* * * This section supplements FAR 27.304-1(c).
The technical data and scientific and technical information (STI) policies are directed toward achieving the following objectives:
(a) Prime contractors and higher-tier subcontractors, in meeting their obligations with respect to contract data, must obtain from their subcontractors the rights in, access to, and delivery of such data on behalf of the Government. Accordingly, subject to the policy set forth in this subpart and subject to the approval of the Contracting Officer, where required, prime contractors or higher-tier subcontractors must select appropriate technical data provisions for their subcontracts.
(1) In many, but not all instances, use of the clause at FAR 52.227-14, Rights in Data—General, as supplemented pursuant to this subpart, in a subcontract will provide for sufficient Government rights in and access to technical data. The inspection rights afforded in Alternate V to the clause at FAR 52.227-14 normally should be obtained only in first-tier subcontracts for research, development, or demonstration work or the furnishing of supplies for which there are substantial technical data requirements as reflected in the prime contract.
(2) If a subcontractor refuses to accept technical data provisions affording rights in and access to technical data on behalf of the Government, the Contractor shall so inform the Contracting Officer in writing and not proceed with the subcontract award without written authorization of the Contracting Officer.
(3) In prime contracts or higher-tier subcontracts that contain the clause at FAR 52.227-16, Additional Data Requirements, the Contractor or higher-tier subcontractor must determine whether inclusion of such clause in a subcontract is required to satisfy technical data requirements of the prime contract or higher-tier subcontract.
(b) As is the case for DOE in its determination of technical data requirements, the clause at FAR 52.227-16, Additional Data Requirements, should not be used at any subcontracting tier where the technical data requirements are fully known. Normally, the clause will be used only in subcontracts having as a purpose the conduct of research, development, or demonstration work. Prime contractors and higher-tier subcontractors shall not use their power to award subcontracts as economic leverage to acquire rights in the subcontractor's limited rights data or restricted computer software for their private use, and they shall not acquire rights to limited rights data or restricted computer software on behalf of the Government for standard commercial items without the prior approval of Patent Counsel.
* * * Generally, such clauses will be based upon the clause at FAR 52.227-14, Rights in Data-General, with appropriate modifications to define and protect the “protected data” in accordance with the applicable statute. * * *
To meet the objectives stated in 927.402, DOE has extensive technical data needs.
(a) Section 982 of the Energy Policy Act of 2005 (EPAct 2005, 42 U.S.C. 16352) mandates that the Secretary of Energy, through the Office of Scientific and Technical Information, shall maintain within the Department publicly available collections of STI resulting from research, development, demonstration, and commercial-applications activities supported by DOE.
(b) Section 105 of the DOE Energy Research and Innovation Act (Pub. L. 115-246) further mandates that DOE establish and maintain a public database populated with information on unclassified research and development projects, as well as relevant literature and patents.
(c) The legal rights in technical data acquired by the Government through DOE contracts, other than management and operating (M&O) contracts (
(d) Contracting Officers shall contact Patent Counsel assisting their contracting activity or the Assistant General Counsel for Technology Transfer and Intellectual Property for assistance in selecting, negotiating, or approving appropriate data and copyright clauses in accordance with the procedures set forth in this subpart and FAR subpart 27.4. In particular, Contracting Officers shall seek the advice of Patent Counsel regarding any situation not in conformance with this subpart, including the inclusion or modification of alternate paragraphs of the clause at FAR 52.227-14, as supplemented pursuant to this subpart, the exclusion of specific items from that clause, the exclusion of the clause at FAR 52.227-16, Additional Data Requirements, and the inclusion of any special provisions in a particular contract. Deviations shall follow the requirements in FAR subpart 1.4 and subpart 901.4.
(e) Contractors are required by Alternate VIII of the clause at 952.227-14, as supplemented pursuant to this subpart, to acquire permission from DOE Patent Counsel to assert copyright in any data including computer software first produced in the performance of the contract. This requirement reflects DOE's established software distribution program, and DOE's statutory dissemination obligations. When a contractor requests permission to assert copyright, Patent Counsel shall predicate its decision on the considerations reflected in paragraph (e) of the clause at 970.5227-2, Rights in Data—Technology Transfer.
(f) In many situations the achievement of DOE's objectives would be frustrated if the Government, at time of award, did not obtain on behalf of responsible third parties and itself limited license rights in and to limited rights data or restricted computer software, or both. Such rights are necessary for the practice of subject inventions or data first produced or delivered under the contract. When the contract is for research, development, or demonstration, Contracting Officers should consult with program officials and Patent Counsel to determine whether such rights should be acquired. No such rights should be obtained from a small business or non-profit organization, unless similar rights in background inventions of such organizations have been authorized in accordance with 35 U.S.C. 202(f). In all cases when the Contractor has agreed to include a provision assuring commercial availability of background patents, consideration should be given to securing for the Government and responsible third parties at reasonable royalties and under appropriate restrictions, co-extensive license rights for data, which are limited rights data and restricted computer software.
(a) The contracting officer shall insert the clause at FAR 52.227-14, Rights in Data-General, and supplement it with Alternates I and V of FAR 52.227-14 and Alternate VIII of FAR 952.227-14, Rights in Data-General, in solicitations and contracts if it is contemplated that data will be produced, furnished, or acquired under the contract. Generally, a contract should contain only one data rights clause. However, where more than one is needed as prescribed in paragraph (b) of this section, the contact should distinguish the portion of contract performance to which each pertains.
(b)(1) However, the rights in data in specific situations will be treated as described, where the contract is—
(i) For the production of special works of the type set forth in FAR 27.405-1, the Patent Counsel shall insert the clause at FAR 52.227-17, Rights in Data-Special Works, including Alternate I. The clause at FAR 52.227-14, Rights in Data-General, may be included in the contract and made applicable to data other than special works, as appropriate (see paragraph (e) of FAR 27.409);
(ii) For the acquisition of existing data works, as described in FAR 27.405-2 (see paragraph (f) of FAR 27.409);
(iii) To be performed outside the United States, its possessions, and Puerto Rico, in which case agencies may prescribe different clauses (see paragraph (i) of FAR 27.409);
(iv) For architect-engineer services or construction work, in which case the Patent Counsel shall utilize the clause at FAR 52.227-17, Rights in Data-Special Works, including Alternate I;
(v) A Small Business Innovation Research contract (see paragraph (h) of FAR 27.409);
(vi) For management and operation of a DOE facility (see 970.2704) or other contracts involving the production of data necessary for the management or operation of DOE facilities or a DOE site, certain decontamination and decommissioning activities, or the building and/or operation of other DOE facilities, after consultation with Patent Counsel (see 927.402-1(b));
(vii) Awarded pursuant to a statute expressly providing authority for the protection of data first produced thereunder from disclosure or dissemination. (see 927.404-70);
(viii) For basic or applied research with educational institutions (other than those in which software is specified for delivery unless the software will be released as open source software or other special circumstances exist), the Patent Counsel may use the clause at FAR 52.227-14 with its Alternate IV instead of Alternate VIII of the clause at FAR 952.227-14, Rights in Data-General;
(ix)(A) Requiring license rights that are deemed necessary, the Patent Counsel should supplement the clause at FAR 52.227-14, Rights in Data—General, with Alternate VI, as provided at 952.227-14, Rights in Data—General, which will normally be sufficient to cover limited rights data and restricted computer software for items and processes used in the contract and necessary to ensure widespread commercial use or practical utilization of a subject of the contract. The phrase “subject of the contract” in Alternate VI is intended to limit licensing to the fields of technology specifically contemplated under the contract; the phrase may be replaced by a more specific statement of the fields of technology intended to be covered in the manner described in the clause at 952.227-13, Patent Rights—Ownership by the Government.
(B) Where limited rights data and restricted computer software are the main purpose or basic technology of the research, development, or demonstration effort of the contract (rather than subcomponents, products, or processes ancillary to the contract effort), the limitations in paragraphs (k)(1) through (4) of Alternate VI of the clause at 952.227-14 should be supplemented or deleted. Paragraph (k) of Alternate VI further provides that limited rights data or restricted computer software may be specified in the contract as being excluded from or not subject to the licensing requirements. This exclusion is implemented by limiting the applicability of the provisions of paragraph (k) of Alternate VI to only those classes or categories of limited rights data and restricted computer software determined essential for licensing. Although contractor licensing may be required under paragraph (k) of Alternate VI, the final resolution of questions regarding the scope of such licenses and the terms thereof, including provisions for confidentiality, and reasonable royalties, is left to the negotiation between the contractor and the Contracting Officer; or
(x) Where the contractor has access to certain categories of DOE-owned Category C-24 restricted data, as set forth in 10 CFR part 725, Alternate VII of 952.227-14, Rights in Data-General, shall be used. DOE has reserved the right to receive reasonable compensation for the use of its inventions and discoveries, including its related data and technology. In addition, in any other types of contracting situations in which the contractor may be given access to restricted data owned by DOE, appropriate limitations on the use of such data must be specified.
(d) The contracting officer shall insert the clause at FAR 52.227-16, Additional Data Requirements, in solicitations and contracts involving experimental, developmental, research, or demonstration work (other than basic or applied research to be performed solely by a university or college where the contract amount will be $500,000 or less.) See FAR 27.406-2. Patent Counsel may use the clause at FAR 52.227-16, Additional Data Requirements, along with the clause at FAR 52.227-14, Rights in Data—General, to require the contractor to furnish additional technical data, in instances where technical data requirements were not known at the time of award. There is, however, a built-in limitation on the kind of technical data that a contractor may be required to deliver under either the contract or the Additional Data Requirements clause. This limitation is in the withholding provision of paragraph (g) of FAR 52.227-14, Rights in Data—General, which provides that the contractor need not furnish limited rights data or restricted computer software. Unless Alternate II or III to the clause at FAR 52.227-14 is used, the Additional Data Rights clause is specifically intended that the contractor may withhold limited rights data or restricted computer software even though a requirement for technical data specified in the contract or called for delivery (pursuant to the clause at FAR 52.227-16) would otherwise require the delivery of such data.
(m) Contracting officers shall incorporate the solicitation provision at FAR 52.227-23, Rights to Proposal Data (Technical), in all requests for proposals.
(n) Contracting officers shall include the solicitation provision at 952.227-84 in all solicitations involving research, developmental, or demonstration work.
42 U.S.C. 7101
(c)(1) Independent research and development (IR&D) costs are
(2) [Reserved]
42 U.S.C. 7101
(b)
In general, Contracting Officers should insert the clause at 952.232-7, Electronic Submission of Invoices/Vouchers, in contracts. However, after consultation with the Office of the Chief Financial Officer, the Contracting Officer may approve alternate methods of submission.
42 U.S.C. 7101
(a)
(c) The Department of Energy encourages direct negotiations between an offeror and the contracting officer, including alternative dispute resolution (ADR) techniques. A protest requesting a decision at the Headquarters level shall state whether the protester is willing to utilize ADR techniques such as mediation or nonbinding evaluation of the protest by a neutral party. Both the protester and the Department must agree that the use of such techniques is appropriate. If the parties do not mutually agree to utilize ADR techniques to resolve the protest, the protest will be processed in accordance with the procedures set forth in paragraphs (f) and (g) of this section.
(f)(5) Upon receipt of a protest filed against DOE, the contracting officer shall prepare a report similar to that discussed in FAR 33.104(a)(3)(iv).
(6) Protests filed with the contracting officer before or after award shall be decided by the HCA except for the following cases, which shall be decided by the Senior Procurement Executive:
(i) The protester requests that the protest be decided by the Senior Procurement Executive;
(ii) The HCA is the contracting officer of record at the time the protest is filed, having signed either the solicitation where the award has not been made, or the contract, where the award or nomination of the apparent successful offeror has been made;
(iii) The HCA concludes that one or more of the issues raised in the protest have the potential for significant impact on Department of Energy (DOE) acquisition policy; or
(iv) The SPE elects to decide the protest.
(g) The official identified in paragraph (f)(6) of this section will render a decision on a protest within 35 calendar days, unless a longer period of time is deemed necessary.
The GAO does not have jurisdiction over protests from subcontractors.
(a)(2) The contracting officer shall provide the notice of protest.
(b)(1) The finding required under FAR 33.104(b)(1) shall be concurred upon by the local DOE counsel with cognizance over the underlying procurement and the Senior Program Official, and approved by the SPE before the HCA authorizes a contract award. The finding shall also address the likelihood that the protest will be sustained by the GAO.
(c)(2) The finding required by FAR 33.104(c)(2) shall be concurred upon by the local DOE counsel with cognizance over the underlying procurement and the Senior Program Official, and approved by the SPE before the HCA authorizes contract performance.
(g)
(a) When using the provision at FAR 52.233-2, Service of Protest, the Contracting Officer shall insert the provision at 952.233-2, Service of Protest.
42 U.S.C. 7101
(c) For purposes of section 982 of the Energy Policy Act of 2005 (42 U.S.C. 16322), the research results, referred to as scientific and technical information (STI), are derived from management and operation (M&O), research and development (R&D), facility management, and non-major site/facility management type contracts. STI must be documented, managed, and electronically submitted to the Department of Energy (DOE), Office of Scientific and Technical Information (OSTI), using the DOE Energy Link System. DOE Order 241.1B, Scientific and Technical Information Management, or successor, sets forth requirements for STI management and the types of STI products to be announced and submitted to DOE OSTI. STI products identified in DOE Order 241.1B are reportable to OSTI whether publicly releasable, controlled unclassified information or classified.
(d) The Contracting Officer shall ensure that the requirements for STI management, as prescribed in DOE Order 241.1B, or its successor version, are included in accordance with the attendant Contractor Requirements Document or in the statement of work.
The policy on research misconduct, set forth at 10 CFR part 733, applies to individuals who propose, perform or review research of any kind for the Department of Energy pursuant to a contract. The regulations in 10 CFR part 733 apply regardless of where the research or other activity is conducted or by whom.
42 U.S.C. 7101
42 U.S.C. 7101
Utility services shall be acquired in accordance with 48 CFR part 41 and the Energy Policy Act of 2005 (EPAct 2005) (25 U.S.C. 3502). Pursuant to EPAct 2005, the requirement must be publicized appropriately, and pricing may not exceed prevailing market prices for energy. For Department of Energy (DOE) programs, Acquisition Plans for utility services shall be submitted to DOE's Federal Energy Management Program (FEMP) for review, technical input, and concurrence. For NNSA programs, FEMP review and technical input may be obtained, but FEMP concurrence is not required.
42 U.S.C. 7101
(a) If the contractor does not meet the contract's requirements relating to environment, safety and health (ES&H) (see subpart 923.70), security or safeguarding of Restricted Data and other classified information (see subpart 904.4), or business and financial systems, the Contracting Officer may unilaterally reduce otherwise earned fee, fixed fee, profit, or other incentives in accordance with the clause at 952.242-71, Conditional Payment of Fee, Profit, and Other Incentives.
(b) When reviewing performance failures that would warrant a reduction of otherwise earned fee, the Contracting Officer must consider mitigating factors that may warrant a reduction below the applicable range specified in the clause. The mitigating factors are specified in the clause. The Contracting Officer must obtain the concurrence of the Head of the Contracting Activity—
(1) Prior to effecting any reduction of fee, profit or other incentives otherwise payable under the clause at 952.242-71, Conditional Payment of Fee, Profit, or Other Incentives; and
(2) Prior to determining that no reduction is warranted for performance failure(s) that would otherwise warrant a reduction.
(c) Before pursuing a reduction in the event of a violation by the contractor or any contractor employee of any Department regulation relating to worker safety and health concerns, the Contracting Officer must coordinate with the Office of Enforcement within the Office of Enterprise Assessments (or designated successor office).
(d) Unless the clause for management and operating contracts is prescribed (see 970.1504-3(b)), insert the clause at 952.242-71, Conditional Payment of Fee, Profit, and Other Incentives, in all contracts that contain the clause at 952.204-2, Security Requirements, the clause at 952.250-70, Nuclear Hazards Indemnity Agreement, or both clauses.
42 U.S.C. 7101,
This part and FAR part 45 are not applicable to the management of property by management and operating contractors or other on-site contractors designated in 41 CFR chapter 109, unless otherwise stated in the applicable contract.
42 U.S.C. 7101
(c)(1) The DOE central point of contact for the assignment, correction, or deletion of activity address codes is the Systems Division, within the Office of Acquisition Management.
42 U.S.C. 2201; 2282a; 2282b; 2282c; 42 U.S.C. 7101
As prescribed at 903.1004, insert the following clause:
Contractors and their employees shall be properly identified in communications (
As prescribed in 904.404(d)(1), insert the following clause:
(a)
“
“
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“
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(1) Relates primarily to the military utilization of atomic weapons; and
(2) Can be adequately protected as National Security Information. However, such information is subject to the same restrictions on transmission to other countries or regional defense organizations that apply to Restricted Data.
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“
(1) Plutonium, uranium enriched in the isotope 233 or in the isotope 235, and any other material that, pursuant to section 51 of the Atomic Energy Act of 1954 (42 U.S.C. 2071) has been determined to be special nuclear material, but does not include source material; or
(2) Any material artificially enriched by any of the foregoing, but does not include source material.
(b)
(c)
(d)
(2) The Contractor shall conduct a thorough review or background review, as defined at 48 CFR 904.401, of any uncleared applicants or employees, and must test individuals for illegal drugs prior to selecting them for positions requiring DOE access authorizations.
(i) The review must—(A) Verify applicant's or employee's educational
(B) Contact listed employers for the last three years and listed personal references;
(C) Conduct local law enforcement checks when such checks are not prohibited by state or local law or regulation and when the uncleared applicant or uncleared employee resides in the jurisdiction where the Contractor is located; and
(D) Conduct a credit check and other checks as appropriate.
(ii) For DOE access authorization, contractor reviews are not required for applicants who possesses a current access authorization from DOE or another Federal agency, or whose access authorization may be reapproved without a federal background investigation pursuant to Executive Order 12968 of August 2, 1995, as amended, Access to Classified Information, sections 3.3(c) and (d).
(iii) In collecting and using this information to make a determination as to whether it is appropriate to select an uncleared applicant or uncleared employee to a position requiring an access authorization, the Contractor must comply with all applicable laws, regulations, and Executive orders, including those—
(A) Governing the processing and privacy of an individual's information, such as the Fair Credit Reporting Act, Americans with Disabilities Act Amendments Act of 2008 (ADAAA), and Health Insurance Portability and Accountability Act; and
(B) prohibiting discrimination in employment, such as under the Genetic Information Nondiscrimination Act of 2008, ADAAA, Title VII and the Older Workers Benefit and Protection Act of 1990, including with respect to pre- and post-offer of employment disability related questioning.
(iv) In addition to a review, each candidate for a DOE access authorization must be tested to demonstrate the absence of any illegal drug, as defined in 10 CFR 707.4. All positions requiring access authorizations are deemed
(v) When an uncleared applicant or uncleared employee receives an offer of employment for a position that requires a DOE access authorization, the Contractor shall not place that individual in such a position prior to the individual's receipt of a DOE access authorization, unless an approval has been obtained from the head of the cognizant local DOE security office. If the individual is hired and placed in the position prior to receiving an access authorization, the uncleared employee may not be afforded access to classified information or matter or special nuclear material (in categories requiring access authorization) until an access authorization has been granted.
(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:
(A) The date(s) each Review was conducted;
(B) Each entity that provided information concerning the individual;
(C) A certification that the review was conducted in accordance with all applicable laws, regulations, and Executive orders, including those governing the processing and privacy of an individual's information collected during the review;
(D) A certification that all information collected during the review was reviewed and evaluated in accordance with the Contractor's personnel policies; and
(E) The results of the test for illegal drugs.
(vii)
(e)
(2) If a Contractor has changes involving FOCI, DOE must determine whether the changes will pose an undue risk to the common defense and security. In making this determination, DOE will consider proposals made by the Contractor to avoid or mitigate foreign influences.
(3) If the cognizant security office at any time determines that the Contractor is, or is potentially, subject to FOCI, the Contractor shall comply with such instructions as the Contracting Officer shall provide in writing to protect any classified information or special nuclear material.
(4) The Contracting Officer may terminate this contract for default either if the Contractor fails to meet obligations imposed by this clause or if the Contractor creates a FOCI situation in order to avoid performance or a termination for default. The Contracting Officer may terminate this contract for convenience if the Contractor becomes subject to FOCI for reasons other than avoidance of performance of the contract, cannot, or chooses not to, avoid or mitigate the FOCI problem.
(f)
(g)
Additionally, the Contractor must require such subcontractors to have an existing DOD or DOE facility clearance or submit a completed SF 328,
As prescribed in 904.404(d)(2), the following clause shall be included in all contracts which involve classified information:
(a)
“Contractor,” as used in this clause includes subcontractors.
“Document” means any recorded information, regardless of the nature of the medium or the method or circumstances of recording (
“Information” means facts, data, or knowledge itself.
“Material” means a product or substance that contains or reveals information, regardless of its physical form or characteristics.
(b) The Contractor shall comply with all provisions of DOE's regulations and DOE directives applicable to work involving the classification and declassification of information, documents, or material. (Note: The decision to classify or declassify information is considered an inherently Governmental function. As such, only Government personnel may serve as Federal Government original classifiers. Both Government and Contractor personnel may serve as derivative classifiers; this involves making decisions based upon classification guidance and, where authorized by DOE directives, portion marked source documents that reflects the decisions of Federal Government. Both Government and Contractor personnel may also serve as derivative declassifiers; this involves making decisions based only on classification guidance).
(c) The Contractor shall ensure that any document or material that may contain classified information is reviewed by either a derivative classifier, or in the case of documents intended for public release, a classification officer or a specifically designated DC, in accordance with classification regulations, and DOE directives. In accordance with DOE directives DCs must use classification/declassification guidance furnished to the Contractor by the DOE or a portion marked source document, when authorized to determine whether it contains classified information prior to dissemination. For information not addressed in classification/declassification guidance, but whose sensitivity appears to warrant classification, the Contractor shall ensure it is reviewed by a Federal Government original classifier or the Director, Office of Classification in accordance with classification directives or regulations.
(d) The Contractor shall ensure that existing classified documents (containing either Restricted Data, Formerly Restricted Data, Transclassified Foreign Nuclear Information, or National Security Information) in its possession or under its control are periodically reviewed by a Federal Government or Contractor derivative declassifier in accordance with classification regulations, DOE directives and classification/declassification guidance furnished to the Contractor by DOE to determine if the documents are no longer appropriately classified. Priorities for declassification review of classified documents shall be based on the degree of public and researcher interest and the likelihood of declassification upon review. Documents that no longer contain classified information are to be declassified. Declassified documents then shall be reviewed to determine if they are publicly releasable. Documents that are declassified and determined to be publicly releasable are to be made available to the public in order to maximize the public's access while minimizing security costs.
(e)
As prescribed in 904.404(d)(5), insert the following provision in all solicitations and contracts which require the use of Standard Form 328, Certificate Pertaining to Foreign Interests, for contracts or subcontracts subject to the provisions of subpart 904.70:
Section 2536 of title 10, United States Code, prohibits the award of a contract under a national security program to an entity controlled by a foreign government if it is necessary for that entity to be given access to information in a proscribed category of information in order to perform the contract unless a waiver is granted by the Secretary of Energy. In addition, a Facility Clearance and foreign ownership, control and influence information are required when the contract or subcontract to be awarded is expected to require employees to have access authorizations. An offeror who has either a Department of Defense or a Department of Energy Facility Clearance generally need not resubmit the following foreign ownership, control and influence information unless specifically requested to do so. Instead, provide your DOE Facility Clearance code or your DOD assigned commercial and government entity (CAGE) code. If uncertain, consult the office that issued this solicitation.
(a)
(2) Information submitted by the offeror in the Standard Form 328 will be used solely for the purposes of evaluating foreign ownership, control or influence and will be treated by DOE, to the extent permitted by law, as business or financial information submitted in confidence.
(3) Following submission of a Standard Form 328 and prior to contract award, the successful offeror/Contractor shall immediately submit to the Contracting Officer written notification of any changes in the extent and nature of FOCI information it submitted that could affect its answers to the questions in Standard Form 328. Following award of a contract, the Contractor must immediately submit to the cognizant security office written notification of any changes in the extent and nature of FOCI information it submitted that could affect its answers to the questions in Standard Form 328. Notice of changes in FOCI information that are required to be reported to the Securities and Exchange Commission, the Federal Trade Commission, or the Department of Justice must also be reported concurrently to the cognizant security office.
(b)
(i) A foreign government, foreign government agency, or representative of a foreign government;
(ii) Any form of business enterprise or legal entity organized, chartered or incorporated under the laws of any country other than the United States or its possessions and trust territories; and
(iii) Any person who is not a citizen or national of the United States.
(2)
(c)
(1) A favorable foreign ownership, control, or influence (FOCI) determination based upon the Contractor's response to the ten questions in Standard Form 328 and any required, supporting data provided by the Contractor;
(2) A contract or proposed contract containing the appropriate security clauses;
(3) Approved safeguards and security plans which describe protective measures appropriate to the activities being performed at the facility;
(4) An established Reporting Identification Symbol code for the Nuclear Materials Management and Safeguards Reporting System if access to nuclear materials is involved;
(5) A survey conducted no more than 6 months before the Facility Clearance date, with a composite facility rating of satisfactory, if the facility is to possess classified matter or special nuclear material at its location;
(6) Appointment of a Facility Security Officer, who must possess or be in the process of obtaining an access authorization equivalent to the Facility Clearance; and, if applicable, appointment of a Materials Control and Accountability Representative; and
(7) Access authorizations for key management personnel who will be determined on a case-by-case basis, and who possess or are in the process of obtaining access authorizations equivalent to the level of the Facility Clearance.
(d)
(1) A Facility Clearance is required for this contract, although not necessarily prior to contract award. A favorable FOCI determination for this contract is required prior to contract award. It must be rendered by the responsible cognizant security office. The Contracting Officer may require the offeror to submit additional information as deemed pertinent to this determination.
(i) The DOE must determine that awarding this contract to the offeror will not pose an undue risk to the common defense and security as a result of its access to classified information or special nuclear material in the performance of the contract. The Contracting Officer may require the offeror to submit such additional information as deemed pertinent to this determination.
(ii) Before contract award, after obtaining a favorable FOCI determination, the successful offeror/Contractor may be eligible to obtain a Facility Clearance.
(iii) If the successful offeror/Contractor does not obtain a Facility Clearance before contract award, after contract award the Contractor shall submit the necessary information to obtain a Facility Clearance and to obtain personnel Interim Access Authorizations in accordance with Departmental policies and procedures.
(2) The DOE may grant certain of the Contractor's Key Management Personnel and the Contractor's Facility Security Officer Interim Access Authorization. If granted Interim Access Authorization, the Contractor's Key Management Personnel and the Contractor's Facility Security Officer will have access to classified information or special nuclear material.
(e) A Facility Clearance is required even for contracts that do not require the Contractor's corporate offices to receive, process, reproduce, store, transmit, or handle classified information or special nuclear material, but that require DOE access authorizations for the Contractor's employees to perform work at a DOE location. This type of facility is identified as a non-possessing facility.
(f) Except as otherwise authorized in writing by the Contracting Officer, the Contractor shall insert provisions similar to the foregoing in all subcontracts and purchase orders (or vendors for purchase orders) requiring access authorizations for access to classified information or special nuclear material. Subcontractors shall be directed to provide responses to the questions in Standard Form 328, Certificate Pertaining to Foreign Interests, directly to the prime Contractor or the Contracting Officer for the prime contract.
Prior to submitting the Standard Form 328, required by paragraph (a)(1) of this clause, the offeror should review the FOCI submission to ensure that:
(1) The Standard Form 328 has been signed and dated by an authorized official of the offeror;
(2) If publicly owned, the Contractor's most recent annual report, and its most recent proxy statement for its annual meeting of stockholders; or, if privately owned, the audited, consolidated financial information for the most
(3) A copy of the company's articles of incorporation and an attested copy of the company's by-laws, or similar documents filed for the company's existence and management, and all amendments to those documents are provided;
(4) A list identifying the organization's owners, officers, directors, and executive personnel, including their names, social security numbers, citizenship, titles of all positions they hold within the organization, and what clearances, if any, they possess or are in the process of obtaining, and identification of the government agency(ies) that granted or will be granting those clearances; and
(5) A summary FOCI data sheet is provided.
As prescribed in 904.404(d)(7), insert the following clause:
(a) The Contractor shall take all reasonable precautions in performing the work under this contract to protect Department of Energy (DOE) programs, facilities, technology, personnel, unclassified sensitive information and classified matter from foreign intelligence threats and activities conducted for governmental or industrial purposes, in accordance with the current version of DOE Order 475.1, Counterintelligence Program; E.O. 12333 of December 4, 1981, U.S. Intelligence Activities; and other applicable national and DOE counterintelligence requirements.
(b) The Contractor shall appoint qualified employees to function as contractor counterintelligence officers. A contractor counterintelligence officer is responsible for conducting defensive counterintelligence briefings and debriefings of employees traveling to foreign countries or interacting with foreign nationals; providing thoroughly documented written reports relative to targeting, suspicious activity and other matters of counterintelligence interest; immediately reporting targeting, suspicious activity and other counterintelligence concerns to the DOE Headquarters Counterintelligence Division; and providing assistance to other elements of the U.S. Intelligence Community as stated in E.O. 12333, DOE Order 475.1, and other applicable national and DOE counterintelligence requirements.
As prescribed in 904.404(d)(6), insert the following clause:
As prescribed in 904.7401, insert the following clause:
(a) In performing work under this contract, the Contractor shall comply with the requirements of Department of Energy Directives, or parts thereof, identified in the List of Applicable Directives appended to this contract, identified in the Statement of Work or identified in a special clause within this contract. The Contracting Officer may revise the list of applicable Directives by bilateral modification to the contract. Prior to the modification, the Contracting Officer shall notify the Contractor in writing of DOE's intent and provide the contractor with the opportunity to: assess the impact on cost, funding, technical performance, and schedule; and identify any potential inconsistencies between the revised list and the other terms and conditions of the contract. Within 30 days of being notified, the Contractor shall advise the Contracting Officer in writing of the potential impact of the modification. The Contracting Officer and Contractor shall decide whether or not to proceed with the modification. Before executing the modification, they must agree to any appropriate changes to other contract terms and conditions, including cost and schedule, pursuant to the clause of this contract entitled “Changes.”
(b) Regardless of the performer of the work, the Contractor is responsible for compliance with the requirements of this clause. The Contractor is responsible for flowing down the requirements of this clause to subcontracts at any tier to the extent necessary to ensure the contractor's compliance with the requirements.
As prescribed in 915.408-70, the contracting officer shall insert the following clause:
(a) The personnel listed below or elsewhere in this contract [Insert cross-reference, if applicable] are considered essential to the work being performed under this contract. Before removing, replacing, or diverting any of the listed or specified personnel, the Contractor must:
(1) Notify the Contracting Officer and submit justification including resumes for any proposed substitutions, at least [insert number] calendar days in advance; and
(2) Obtain the Contracting Officer's written approval. Notwithstanding the foregoing, the Contractor may immediately remove or suspend any key person if necessary to maintain satisfactory standards of employee competency, conduct, and integrity under the clause at 48 CFR 970.5203-3, Contractor's Organization, although the Contractor must notify Contracting Officer prior to or concurrently with such action.
(b) The list of personnel may, with the consent of the contracting parties, be amended from time to time during the course of the contract to add or delete personnel. The Contractor must provide written notice to the cognizant security office if changes to the list of personnel affect key personnel connected to a facility clearance.
In accordance with 919.7014 insert the following provision:
The Department of Energy has established a Mentor-Protege Program to encourage its prime contractors to assist small business concerns, Historically Black Colleges and Universities and Minority Institutions, and other
As prescribed in 923.7003, insert the following clause:
(a)
“Safety” encompasses environment, safety and health, including pollution prevention and waste minimization.
(b) In performing work under this contract, the Contractor shall perform work safely, in a manner that ensures adequate protection for employees, the public, and the environment, and shall be accountable for the safe performance of work. The Contractor shall exercise a degree of care commensurate with the work and the associated hazards. The Contractor shall ensure that management of environment, safety and health (ES&H) functions and activities becomes an integral but visible part of the Contractor's work planning and execution processes. The Contractor shall, in the performance of work, ensure that:
(1) Line management is responsible for the protection of employees, the public, and the environment. Line management includes those Contractor and subcontractor employees who manage or supervise employees.
(2) Clear lines of authority and responsibility for ensuring ES&H are established and maintained at all organizational levels.
(3) Personnel possess the experience, knowledge, skills, and abilities that are necessary to discharge their responsibilities.
(4) Resources are effectively allocated to address ES&H, programmatic, and operational considerations. Protecting employees, the public, and the environment is a priority whenever activities are planned and performed.
(5) Before work is performed, the associated hazards are evaluated and an agreed-upon set of ES&H standards and requirements are established that, if properly implemented, provide adequate assurance that employees, the public, and the environment are protected from adverse consequences.
(6) Administrative and engineering controls to prevent and mitigate hazards are tailored to the work being performed and associated hazards. Emphasis should be on designing the work and/or controls to reduce or eliminate the hazards and to prevent accidents and unplanned releases and exposures.
(7) The conditions and requirements to be satisfied for operations to be initiated and conducted are established and agreed-upon by DOE and the Contractor. These agreed-upon conditions and requirements are requirements of the contract and binding upon the Contractor. The extent of documentation and level of authority for agreement shall be tailored to the complexity and hazards associated with the work and shall be established in a Safety Management System.
(c) The Contractor shall manage and perform work in accordance with a documented Safety Management System that, at a minimum, fulfills all conditions in paragraph (b) of this clause. Documentation of this system shall describe how the Contractor will—
(1) Define the scope of work;
(2) Identify and analyze hazards associated with the work;
(3) Develop and implement hazard controls;
(4) Perform work within controls; and
(5) Provide feedback on adequacy of controls and continue to improve safety management.
(d) The system shall describe how the Contractor will establish, document, and implement safety performance objectives, performance measures, and commitments in response to DOE program and budget execution guidance while maintaining the integrity of the system. The system shall also describe how the Contractor will measure system effectiveness.
(e) The Contractor shall submit to the Contracting Officer documentation of its system for review and approval. Dates for submittal, discussions, and revisions to the system will be established by the Contracting Officer. Guidance on the preparation, content, review, and approval of the system will be provided by the Contracting Officer. On an annual basis, the Contractor shall review and update, for DOE approval, its safety performance objectives, performance measures, and commitments consistent with and in response to DOE's program and budget execution guidance and direction. Resources shall be identified and allocated to meet the safety objectives and performance commitments as well as maintain the integrity of the entire System. Accordingly, the system shall be integrated with the Contractor's business processes for work planning, budgeting, authorization, execution, and change control.
(f) The Contractor shall comply with, and assist the Department of Energy in complying with, ES&H requirements of all applicable laws and regulations, and applicable directives in accordance with the DOE Directives clause. The Contractor shall cooperate with Federal and non-Federal agencies having jurisdiction over ES&H matters under this contract.
(g) The Contractor shall promptly evaluate and resolve any noncompliance with applicable ES&H requirements and the System. If the Contractor fails to provide resolution or if, at any time, the Contractor's acts or failure to act causes substantial harm or an imminent danger to the environment or health and safety of employees or the public, the Contracting Officer may issue an order stopping work in whole or in part. Any stop work order issued by a contracting officer under this clause (or issued by the Contractor to a subcontractor in accordance with paragraph (i) of this clause) shall be without prejudice to any other legal or contractual rights of the Government. In the event that the Contracting Officer issues a stop work order, an order authorizing the resumption of the work may be issued at the discretion of the Contracting Officer. The Contractor shall not be entitled to an extension of time or additional fee or damages by reason of, or in connection with, any work stoppage ordered in accordance with this clause.
(h) Regardless of the performer of the work, the Contractor is responsible for compliance with the ES&H requirements applicable to this contract. The Contractor is responsible for flowing down the ES&H requirements applicable to this contract to subcontracts at any tier to the extent necessary to ensure the Contractor's compliance with the requirements.
(i)
As prescribed in 923.172, insert the following clause:
(a) Pursuant to DOE policy, as specified in 48 CFR 923.170, the Contractor shall maintain a sustainable acquisition program that ensures procurement of environmentally preferable products and services as required of DOE by statute, regulation and Executive order. This program shall apply to all products and services acquired in performance of this contract, including first-tier subcontracts, which have reasonable opportunities for environmentally preferable purchasing, consistent with the requirements specified above.
(b) The Contractor shall coordinate its sustainable acquisition activities, and submit any required annual reports at the end of the Government fiscal year, through their Sustainability Coordinator (or equivalent), or as otherwise directed by the Contracting Officer. Reporting under this paragraph is only required if the contract offers subcontracting opportunities exceeding the simplified acquisition threshold in any contract year.
(c)
As prescribed in 926.7008(b)(1), insert the following provision:
(a)
(b) Section 3021 of the EPAct 1992 establishes a goal of award of 10 percent of the contract dollar value for prime and subcontract EPAct 1992 awards to EPAct 1992 target groups.
(c) The Offeror, if other than one of the three groups specified in paragraph (a) of this clause, shall submit, as part of its business management proposal or, if this solicitation requires the submission of a Small Business Subcontracting Plan, then as part of that plan, unless otherwise stated in the proposal preparation instructions, individual subcontracting goals for each of the EPAct 1992 target groups. Individual goals shall be expressed in terms of a percentage of the Offeror's proposed contract dollar value. In addition, the Offeror shall provide a description of the nature of the effort to be performed by each of the three groups, and, if possible, the identity of the contemplated subcontractor(s).
(d) Unless otherwise stated, such goals shall be considered in the evaluation of the Business Management Proposal as discussed in Section M of this solicitation or, if applicable, as part of the evaluation of the Small Business Subcontracting Plan.
As prescribed in 926.7008(b)(2), insert the following clause:
(a)
(b)
As prescribed in 926.7008(c), insert the following clause:
(a)
(b)
(1) Small business concerns controlled by socially and economically disadvantaged individuals or by women: * * * percent;
(2) Historically Black colleges and universities: * * * percent;
(3) Colleges or universities having a student body in which more than 20 percent of the students are Hispanic Americans or Native Americans: * * * percent;
(4) Qualified HUBZone small business concerns: * * * percent.
[ * * * These goals are stated in a percentage reflecting the relationship of estimated award value of subcontracts to the value of this contract and appear elsewhere in this contract.]
(c)
(2) If the contract includes reporting requirements under 48 CFR 52.219-9, Small Business Subcontracting Plan, the Contractor's progress against the goals stated in paragraph (b) of this clause shall be included as an addendum to the Individual Subcontract Report and/or the Summary Subcontract Report using the Electronic Subcontracting Reporting System (available at
As prescribed in 926.7008(a)(1), insert the following provision:
(a) The Offeror is:
(1) __ An institution of higher education that meets the requirements of 34 CFR 600.4(a), and has a student enrollment that consists of at least 20 percent—
(i) Hispanic Americans,
(ii) Native Americans,
(2) __ An institution of higher learning determined to be a Historically Black College and University by the Secretary of Education pursuant to 34 CFR 608.2; or
(3) __ A small business concern, as defined under section 3 of the Small Business Act (15 U.S.C. 632), that is owned and controlled by individuals who are both socially and economically disadvantaged within the meaning of section 8(d) of the Small Business Act (15 U.S.C. 637(d)) or by a woman or women; or
(4) Qualified HUBZone small business concerns, as defined at 48 CFR 2.101.
The revisions and addition read as follows:
As prescribed in 927.202-5, insert the following clause:
(b)
(c) * * * For contracts greater than five years in duration, the contractor shall furnish the statement to the Contracting Officer every five years.
Replace the heading (“Standard Patent Rights”) with “37 CFR 401.14 Standard Patent Rights with Alternate I of 48 CFR 952.227-11 Patent rights—retention by the contractor”.
Replace subparagraphs (g)(1) and (2) with the following:
(g) Subcontracts.
(1) The contractor will include this clause, suitably modified to identify the parties, in all subawards, regardless of tier, for experimental, developmental or research work to be performed by a domestic small business firm or nonprofit organization. The subcontractor will retain all rights provided for the contractor in this clause, and the contractor will not, as part of the consideration for awarding the subaward, obtain rights in the subcontractor's subject inventions.
(2) The contractor will include in all other subawards, regardless of tier, for experimental developmental or research work the patent rights clause directed by the Contracting Officer.
Replace paragraph (l), Communications, with the following:
(l) Communication.
Unless otherwise directed by DOE Patent Counsel, all reports and notifications required by this clause shall be submitted via the iEdison invention management system.
Replace the heading (“Standard Patent Rights”) with “37 CFR 401.14 Standard Patent Rights with Alternate II of 48 CFR 952.227-11 Patent Rights-Retention by the Contractor (DETERMINATION OF EXCEPTIONAL CIRCUMSTANCES)”.
Add the following subparagraph:
(d)(3) Upon breach of paragraph (n) U.S. Competitiveness of this Patent Rights clause.
Replace subparagraphs (g)(1) and (2) with the following:
(g) Subcontracts.
(1) The contractor will include this clause, suitably modified to identify the parties, in all subawards, regardless of tier, for experimental, developmental or research work to be performed by a domestic small business firm or nonprofit organization. The subcontractor will retain all rights provided for the contractor in this clause, and the contractor will not, as part of the consideration for awarding the subaward, obtain rights in the subcontractor's subject inventions.
(2) The contractor will include in all other subawards, regardless of tier, for experimental developmental or research work the patent rights clause directed by the Contracting Officer.
Replace paragraph (l), Communications, with the following:
(l) Communication.
Unless otherwise directed by DOE Patent Counsel, all reports and notifications required by this clause shall be submitted via the iEdison invention management system.
Add the following paragraphs (n) and (o):
(n) The Contractor agrees that any products embodying any subject invention or produced through the use of any subject invention will be manufactured substantially in the United States unless the Contractor can show to the satisfaction of DOE that it is not commercially feasible. In the event DOE agrees to foreign manufacture, there will be a requirement that the Government's support of the technology be recognized in some appropriate manner,
(o) The requirements, rights and administration of paragraph (n) are further clarified as follows:
1. Waivers. The Contractor (or any entity subject to paragraph (n)) may request a waiver or modification of paragraph (n). Such waivers or modifications may be granted when DOE determines that (1) the Contractor (or any entity subject to paragraph (n)) has demonstrated, with quantifiable data, that manufacturing in the United States is not commercially feasible and (2) a waiver or modification would best serve the interests of the United States and the general public.
2. Final determination of breach of paragraph (n). If DOE determines the Contractor is in breach of paragraph (n), the Department may issue a final written determination of such breach. If such determination includes a demand for title to the subject inventions under the award, the demand for title will cause an immediate conveyance and assignment of all rights to all subject inventions under the award to the United States Government, including all pending U.S. and foreign patent applications and all U.S. and foreign patents that cover any subject invention, without compensation. Any such final determination shall be signed by the cognizant DOE Contracting Officer with the concurrence of the Assistant General Counsel for Technology Transfer & Intellectual Property. Advanced notice will be provided for comment to the Contractor before any final written determination by DOE is issued.
3. Pursuant to Contractor's agreement in paragraph (n) to not license, assign or otherwise transfer rights to subject inventions at any tier unless the entity agrees to paragraph (n): any such license, assignment, or other transfer of right to any subject invention developed under the award shall contain paragraph (n) suitably modified to properly identify the parties. If a licensee, assignee, or other transferee of rights to any subject invention is finally determined by DOE in writing to be in breach of paragraph (n), the applicable license, assignment or other transfer shall be deemed null and void. Advanced notice will be provided for comment to the non-complying party before any final written determination by DOE is made.
4. For clarity, if the forfeiture of title to any subject invention is due to a breach of paragraph (n), the Contractor shall not be entitled to any compensation, or to a license to the subject invention including the reserved license in paragraph (e)(1), unless DOE grants a license through a separately agreed upon licensing agreement.
5. Authority. The requirements and administration of paragraph (n) is in accordance with the Determination of Exceptional Circumstances (DEC) under the Bayh-Dole Act to Further Promote Domestic Manufacture of DOE Science and Energy Technologies executed by DOE on June 7, 2021, or any other applicable DEC. A copy of the DEC is available at
The revisions and additions read as follows:
As prescribed at 927.303(d), insert the following clause:
(b) * * *
(2) * * *
(iii) Not less than sixty (60) days before the expiration of the response period for any action required by the Patent and Trademark Office, notify the Patent Counsel of any decision not to continue prosecution of the application.
(e) * * *
(2) Unless otherwise directed by DOE Patent Counsel, the Contractor shall disclose each subject invention to DOE through the iEdison invention management system within 2 months after the inventor discloses it in writing to Contractor personnel responsible for patent matters or, if earlier, within 6 months after the Contractor becomes aware that a subject invention has been made, but in any event before any on sale, public use, or publication of such invention known to the Contractor. The disclosure to DOE shall be in the form of a written report and shall identify the contract under which the invention was made and the inventor(s). It shall be sufficiently complete in technical detail to convey a clear understanding, to the extent known at the time of the disclosure, of the nature, purpose, operation, and physical, chemical, biological, or electrical characteristics of the invention. The disclosure shall also identify any publication, on sale, or public use of the invention and whether a manuscript describing the invention has been submitted for publication and, if so, whether it has been accepted for publication at the time of disclosure. In addition, after disclosure to DOE, the Contractor shall promptly notify Patent Counsel of the acceptance of any manuscript describing the invention for publication or of any on sale or public use planned by the Contractor. The report should also include any request for a greater rights determination in accordance with subparagraph (b)(2) of this clause. When an invention is disclosed to DOE under this paragraph, it shall be deemed to have been made in the manner specified in sections (a)(1) and (a)(2) of 42 U.S.C. 5908, unless the Contractor contends in writing at the time the invention is disclosed that it was not so made.
(3) * * *
(i) Interim reports every 12 months (or such longer period as may be specified by the Contracting Officer) from the date of the contract, listing all subject inventions during that period, and including a statement that all subject inventions have been disclosed (or that there are not such inventions), and that such disclosure has been made in accordance with the procedures required by paragraph (e)(1) of this clause.
(h) * * *
(1) The contractor shall include the clause at 37 CFR 401.14 (suitably modified to identify the parties) in all subcontracts, regardless of tier, for experimental, developmental,
(l) * * *
(2) However, the Contractor shall not forfeit rights in a subject invention if, within the time specified in subparagraph (l)(1) of this clause, the Contractor:
(3) * * * The forfeiture provision of this paragraph (l) shall be in addition to and shall not supersede other rights and remedies which the Government may have with respect to subject inventions.
(m)
(i) Which the contractor, but not the Government, has the right to license to others without obligation to pay royalties thereon, and
(ii) Infringement of which cannot reasonably be avoided upon the practice of any specific process, method, machine, manufacture, or composition of matter (including relatively minor modifications thereof) which is a subject of the research, development, or demonstration work performed under this contract.
(2) The Contractor agrees to and does hereby grant to the Government a royalty-free, nonexclusive license under any background patent for purposes of practicing a subject of this contract by or for the Government in research, development, and demonstration work only.
(3) The Contractor also agrees that upon written application by DOE, it will grant to responsible parties, for purposes of practicing a subject of this contract, nonexclusive licenses under any background patent on terms that are reasonable under the circumstances. If, however, the Contractor believes that exclusive rights are necessary to achieve expeditious commercial development or utilization, then a request may be made to DOE for DOE approval of such licensing by the Contractor.
(4) Notwithstanding subparagraph (m)(3) of this clause, the contractor shall not be obligated to license any background patent if the Contractor demonstrates to the satisfaction of the Secretary of Energy or designee that:
(i) A competitive alternative to the subject matter covered by said background patent is commercially available or readily introducible from one or more other sources; or
(ii) The Contractor or its licensees are supplying the subject matter covered by said background patent in sufficient quantity and at reasonable prices to satisfy market needs, or have taken effective steps or within a reasonable time are expected to take effective steps to so supply the subject matter.
The Contracting Officer shall insert the phrase “or upon a breach of paragraph (n) U.S. Competitiveness of this clause” after “fails to disclose the subject invention within the times specified in subparagraph (e)(2) of this clause” in the first sentence of paragraph (d)(1).
The Contracting Officer shall insert the following paragraph (n):
(n)
(1) Undergo a change in ownership amounting to a controlling interest, or
(2) Sell, assign, or otherwise transfer title or exclusive rights in the invention(s), then the assignment, license, or other transfer of rights in the subject invention(s) is/are suspended until approved in writing by DOE. The Contractor and any successor assignee will convey to DOE, upon written request from DOE, title to any subject invention, upon a breach of this paragraph. The Contractor will include this paragraph in all subawards/contracts, regardless of tier, for experimental, developmental or research work.
(k)
(1) Such data are not essential to the manufacture or practice of hardware designed or fabricated, or processes developed, under this contract;
(2) Such data, in the form of results obtained by their use, have a commercially competitive alternate available or readily introducible from one or more other sources;
(3) Such data, in the form of results obtained by their use, are being supplied by the contractor or its licensees in sufficient quantity and at reasonable prices to satisfy market needs, or the contractor or its licensees
(4) Such data, in the form of results obtained by their use, can be furnished by another firm skilled in the art of manufacturing items or performing processes of the same general type and character necessary to achieve the contract results.
(b)(2)(i) Assert copyright in data first produced in the performance of this contract (except Restricted Data in category C-24, 10 CFR part 725, in which DOE has reserved the right to receive reasonable compensation for the use of its inventions and discoveries, including related data and technology) to the extent provided in paragraph (c)(1) of this clause.
(c)
(c)(1)(ii) If the Government desires to obtain copyright in data first produced in the performance of this contract and permission has not been granted as set forth in paragraph (c)(1)(i) of this clause, the DOE Patent Counsel may direct the Contractor to assign (with or without registration), or obtain the assignment of, the copyright to the Government or its designated assignee.
As prescribed in 927.409(n), insert this provision:
* * * Domestic small businesses and domestic nonprofit organizations normally will receive the patent rights clause at 37 CFR 401.14 which permits the contractor to retain title to such inventions, except under contracts for management or operation of a Government-owned research and development facility or under contracts involving exceptional circumstances or intelligence activities. * * *
As prescribed in 931.205-19(f), insert the following clause in applicable non-management and operating contracts:
(f) * * *
(2) The term “contractor's managerial personnel” is defined in the Property clause
48 CFR 970.5245-1 in this contract.
As prescribed at 932.971, insert the following clause:
Contractors shall submit vouchers electronically through the Oak Ridge Financial Service Center's (ORFSC) Vendor Inquiry Payment Electronic Reporting System (VIPERS). VIPERS allows vendors to submit vouchers, attach supporting documentation and check the payment status of any voucher submitted to the DOE. Instructions concerning contractor enrollment and use of VIPERS can be found at
As prescribed in 933.106, insert the following provision:
(c) Another copy of a protest filed with the Government Accountability Office shall be furnished to the following address within the time periods described in paragraph (b) of this clause: U.S. Department of Energy, Assistant General Counsel for Procurement and Financial Assistance (GC-61), 1000 Independence Avenue SW, Washington, DC 20585, or email:
(d)
(2) Any offeror who submits information or documents to DOE for the purpose of competing in this procurement is hereby notified that information or documents it submits may be included in the protest file that will be available to actual or prospective offerors in accordance with the requirements of 48 CFR 33.104(a)(3)(ii). DOE will be required to make such documents available unless they are exempt from disclosure pursuant to the Freedom of Information Act. Therefore, offerors should mark any documents as to which they would assert that an exemption applies (see 10 CFR part 1004).
(e)
As prescribed at 923.7003(f) and 942.71(d), insert the following clause: (Note: If the clause at 952.204-2, Security Requirements, is not included in the contract, the security or safeguarding of Restricted Data and other classified information requirements of the clause do not apply; if the clause at 952.250-70, Nuclear Hazards Indemnity Agreement, is not included in this contract, the environment, safety and health requirements of the clause do not apply.)
(a)
(1)
(i) If the contract includes incentives allocable to more than one period, the amount of payment for otherwise earned fee, fixed fee, profit, or other incentives for a period includes the allocable amount of payment for each such incentive for otherwise earned fee, fixed fee, profit, or other incentives. Unless stated otherwise, the allocable amount is the total amount divided by the number of periods the incentive covered.
(2)
(b)
(1) (Note: If the clause at 48 CFR 952.204-2, Security Requirements, is not included in this contract, the security or safeguarding of Restricted Data and other classified information requirements of this clause do not apply; if the clause at 48 CFR 952.250-70, Nuclear Hazards Indemnity Agreement, is not included in this contract, the environment, safety and health requirements of this clause do not apply.)
The amount of payment of otherwise earned fee, fixed fee, profit, or other incentives for any period under this contract is dependent upon the Contractor's and the Contractor's employees' compliance during the period with the performance requirements of this contract relating to:
(i) environment, safety and health (ES&H), which includes worker safety and health (WS&H);
(ii) security or safeguarding of Restricted Data and other classified information; and
(iii) business and financial systems.
(2) The ES&H performance requirements of this contract are set forth in its ES&H terms and conditions, including in some cases a DOE approved contractor (Integrated Safety Management System (ISMS) or similar document. Financial incentives for timely mission accomplishment or cost effectiveness shall never compromise or impede full and effective implementation of the ISMS and full ES&H compliance.
(3) The security or safeguarding of Restricted Data and other classified information performance requirements of this contract are set forth in the clause of this contract entitled, “Security requirements,” the clause (if it is included) of this contract entitled “Laws, Regulations, and DOE Directives,” and in other terms and conditions.
(4) The business and financial systems performance requirements of this contract are set forth in various terms and conditions relating to management, accounting, property, procurement, and earned value management, such as, the “Management controls” clause (if it is included).
(5) If the Contractor does not, in any period, meet the performance requirements of this contract relating to ES&H, security or the safeguarding of Restricted Data and other classified information, or business and financial systems, the Contracting Officer may, per this clause, reduce the amount of payment of otherwise earned fee, fixed fee, profit or other incentives.
(c)
(1) If in any period (see paragraph (c)(5) of this clause) the Contractor does not meet the performance requirements of this contract relating to ES&H, security or the safeguarding of Restricted Data and other classified information, or business and financial systems, the Contracting Officer will unilaterally determine the amount of reduction to the amount of payment for otherwise earned fee, fixed fee, profit, or other incentives for the period based on the severity of the performance failure pursuant to the degrees of failure specified in paragraphs (e), (f), and (g) of this clause. The percent reduction for each performance failure will be: not less than 26% nor more than 100% for a first degree failure; not less than 11% nor more than 26% for a second degree failure; and no more than 11% for a third degree failure.
(2) For a reduction allocable to more than one period, the Government will make the allocation at the end of the period in which it determines the total amount of the reduction. Unless stated otherwise, the allocable amount is the total reduction amount divided by the number of periods the reduction covered.
(3) The Government will reduce the payment of otherwise earned fee, fixed fee, profit, or other incentives as soon as practicable after the end of the period in which the performance failure occurs. If the Government is not aware of the failure when it occurs, it will make the reduction as soon as practical after becoming aware.
(4) In determining the reduction to the amount of payment and the applicability of mitigating factors, the Contracting Officer must consider the Contractor's overall performance in meeting the ES&H, security or safeguarding of Restricted Data and other classified information, or business and financial systems performance requirements of the contract. Such consideration must include performance against any specific performance criteria/requirements that provide additional definition, guidance for the amount of reduction, or guidance for the applicability of mitigating factors. In all cases, the Contracting Officer must consider mitigating factors that may warrant a reduction below the reduction that would be appropriate absent mitigating factors. Mitigating factors include, but are not limited to, the following (paragraphs (c)(4)(v), (vi), (vii) and (viii) of this clause apply to ES&H only).
(i) Degree of control the Contractor had over the event or incident.
(ii) Efforts the Contractor had made to anticipate and mitigate the possibility of the event in advance.
(iii) Contractor's self-identification and response to the event to mitigate impacts and recurrence.
(iv) General status (trend and absolute performance) of: ES&H and compliance in related areas; safeguarding Restricted
(v) Contractor's demonstration to the Contracting Officer's satisfaction that the principles of industrial ES&H standards are routinely practiced.
(vi) Event caused by “Good Samaritan” act by the Contractor (
(vii) Contractor's demonstration that a performance measurement system is routinely used to improve and maintain ES&H performance (including effective resource allocation) and to support DOE corporate decision-making (
(viii) Contractor's demonstration that an Operating Experience and Feedback Program is functioning that demonstrably affects continuous improvement in ES&H by use of lessons-learned and best practices inter- and intra-DOE sites.
(5) The Contracting Officer will, for purposes of this clause, at the time of contract award or as soon as possible after contract award, allocate the total amount of fee, profit, and other incentives that is available under the contract to equal periods of [insert 6 or 12] months to run sequentially for the term of the contract, including options. The amount to be allocated to each period shall equal: (the average monthly amount available during the term of the contact) multiplied by (the number of months for each period).
(d)
(1) The amount of the reduction under this clause, in combination with the amount of any reduction under any other clause, shall not exceed the amount of payment for otherwise earned fee, fixed fee, profit, or other incentives for the period.
(2) If at any time during the contract any reductions under this clause or other clauses result in the sum of the amount of payments the Contractor has received for earned fee, fixed fee, profit, or other incentives to exceed the sum of the amounts of actually payable to the Contractor, the Contractor shall immediately return the excess to the Government.
(3) At the end of the contract—
(i) The Government will pay the Contractor the amount by which the sum of amounts actually payable to the Contractor exceeds the sum of the payments the Contractor has received; or
(ii) The Contractor shall return to the Government the amount by which the sum of the payments the Contractor has received exceeds the sum of the amounts actually payable to the Contractor.
(e)
(1) First Degree: Performance failures that are most adverse to ES&H. They include:
(i) Failure to develop and obtain required DOE approval of an ISMS, if an ISMS is required.
(The Government will perform necessary reviews in a timely manner and not unreasonably withhold approval.)
(ii) Performance failures determined, per applicable ES&H laws, regulations, or DOE directives to have resulted in, or that could reasonably be expected to result in, serious injury or death to a worker.
(iii) Occurrence of any accident or event that meets the criteria of Appendix A of DOE Order 225.1B (or successor Order) and results in a determination to conduct a Federal Accident Investigation Board.
(2) Second Degree: Performance failures that are significantly adverse to ES&H. They include:
(i) Failures to comply with an approved ISMS, if an ISMS is required.
(ii) Failures that have been determined, per applicable ES&H laws, regulations, or DOE directives, to have resulted in, or could reasonably be expected to result in, an actual injury, exposure, or exceedance that occurred or nearly occurred but had minor practical long-term health consequences.
(iii) A breakdown of the Integrated Safety Management System.
(iv) Non-compliance with applicable ES&H laws, regulations, or DOE directives actually resulting in an accident that meets the criteria of Appendix A of DOE Order 225.1B (or successor Order) but not resulting in a determination to conduct a Federal Accident Investigation Board.
(v) Non-compliance with applicable ES&H laws, regulations, or DOE directives that results in a near miss of an accident or event that could have resulted in an adverse effect and a determination to conduct a Federal Accident Investigation Board. (A near miss is a situation in which an inappropriate action occurs, or a necessary action is omitted, that does not result in an adverse effect.)
(3) Third Degree: Performance failures that have been determined per applicable ES&H laws, regulations, or DOE directives to reflect a lack of focus on improving ES&H. They include:
(i) Non-compliance with applicable ES&H laws, regulations, or DOE directives actually resulting in potential breakdown of the Integrated Safety Management System. The following performance failures or performance failures of similar import will be considered third degree:
(A) Failure to implement effective corrective actions to address deficiencies/non-compliances documented through external (
(B) Multiple similar non-compliances identified by external (
(C) Non-compliances that: have, or that may have, significant negative impacts to the worker, the public, or the environment; or indicate a significant programmatic breakdown.
(D) Failure to notify DOE upon discovery of events or conditions where notification is required by the terms and conditions of the contract.
(f)
(1) First Degree: Performance failures that have been determined, in accordance with applicable law, DOE regulation, or directive, to have resulted in, or that can reasonably be expected to result in, exceptionally grave damage to the national security. The following are examples of performance failures or performance failures of similar import that will be considered first degree:
(i) Non-compliance with applicable laws, regulations, and DOE directives actually resulting in, or creating a risk of, loss, compromise, or unauthorized disclosure of Top Secret Restricted Data or other information classified as Top Secret, any classification level of information in a Special Access Program
(ii) Contractor actions that result in a breakdown of the safeguards and security management system that can reasonably be expected to result in the loss, compromise, or unauthorized disclosure of Top Secret Restricted Data or other information classified as Top Secret, any classification level of information in an SAP, information identified as SCI, or high risk nuclear weapons-related data.
(iii) Failure to promptly report the loss, compromise, or unauthorized disclosure of Top Secret Restricted Data or other information classified as Top Secret, any classification level of information in an SAP, information identified as SCI, or high risk nuclear weapons-related data.
(iv) Failure to timely implement corrective actions stemming from the loss, compromise, or unauthorized disclosure of Top Secret Restricted Data or other information classified as Top Secret, any classification level of information in a SAP, information identified as SCI, or high risk nuclear weapons-related data.
(2) Second Degree: Performance failures that have been determined, in accordance with applicable law, DOE regulation, or directive, to have actually resulted in, or that can reasonably be expected to result in, serious damage to the national security. The following are examples of performance failures or performance failures of similar import that will be considered second degree:
(i) Non-compliance with applicable laws, regulations, and DOE directives actually resulting in, or creating risk of, loss, compromise, or unauthorized disclosure of Secret Restricted Data or other information classified as Secret.
(ii) Contractor actions that result in a breakdown of the safeguards and security management system that can reasonably be expected to result in the loss, compromise, or unauthorized disclosure of Secret Restricted Data, or other information classified as Secret.
(iii) Failure to promptly report the loss, compromise, or unauthorized disclosure of Secret Restricted Data or other classified information regardless of classification (except for information covered by paragraph (f)(1)(iii) of this clause).
(iv) Failure to timely implement corrective actions stemming from the loss, compromise, or unauthorized disclosure of Secret Restricted Data or other classified information classified as Secret.
(3) Third Degree: Performance failures that have been determined, in accordance with applicable law, regulation, or DOE directive, to have actually resulted in, or that can reasonably be expected to result in, undue risk to the common defense and security. This category includes performance failures that result from a lack of Contractor management and/or employee attention to the proper safeguarding of Restricted Data and other classified information. These performance failures may be indicators of future, more severe performance failures and/or conditions that if identified and corrected early would prevent serious incidents. The following are examples of performance failures or performance failures of similar import that will be considered third degree:
(i) Non-compliance with applicable laws, regulations, and DOE directives actually resulting in, or creating risk of, loss, compromise, or unauthorized disclosure of Restricted Data or other information classified as Confidential.
(ii) Failure to promptly report alleged or suspected violations of laws, regulations, or directives pertaining to the safeguarding of Restricted Data or other classified information.
(iii) Failure to identify or timely execute corrective actions to mitigate or eliminate identified vulnerabilities and reduce residual risk relating to the protection of Restricted Data or other classified information in accordance with the Contractor's Safeguards and Security Plan or other security plan, as applicable.
(iv) Contractor actions that result in performance failures that unto themselves pose minor risk, but when viewed in the aggregate indicate degradation in the integrity of the Contractor's safeguards and security management system relating to the protection of Restricted Data and other classified information.
(g)
(1) First Degree: A performance failure that poses significant adverse long-term practical consequences to the mission of the site is a first-degree performance failure.
(2) Second Degree: A performance failure that poses measurable, but less than significant, adverse long-term practical consequences to the mission of the site is a second-degree performance failure.
(3) Third Degree: A performance failure that results in minor adverse long-term practical consequences to the mission of the site is a third degree performance failure.
Modify FAR 52.245-2 by adding “and the DOE Acquisition Regulation subpart 945.5,” at the end of paragraph (d) of the clause.
Modify FAR 52.245-1 by adding “and DOE Acquisition Regulation subpart 945.5” at the end of the first sentence in paragraphs (e)(1) and (2) of the clause.
Insert the following clause in accordance with 950.7006:
(a)
“Extraordinary nuclear occurrence” means an event that DOE has determined to be such an occurrence, as defined in the Act. A determination of whether or not there has been an extraordinary nuclear occurrence will be made in accordance with the procedures in 10 CFR part 840.
“Public liability,” as defined in the Act, means liability that arises out of or in connection with the activities under this contract, including transportation; and arises out of or results from a nuclear incident or precautionary evacuation.
(b)
(c)
(d)
(e)(1)
(2) In the event of an extraordinary nuclear occurrence that—
(i) Arises out of, results from, or occurs in the course of the construction, possession, or operation of a production or utilization facility; or
(ii) Arises out of, results from, or occurs in the course of transportation of source material, by- product material, or special nuclear material to or from a production or utilization facility; or
(iii) Arises out of or results from the possession, operation, or use by the Contractor or a subcontractor of a device utilizing special nuclear material or by-product material, during the course of the contract activity; or
(iv) Arises out of, results from, or occurs in the course of nuclear waste activities, the Contractor, on behalf of itself and other persons indemnified, agrees to waive—
(A) Any issue or defense as to the conduct of the claimant (including the conduct of persons through whom the claimant derives its cause of action) or fault of persons indemnified, including, but not limited to negligence, contributory negligence, assumption of risk; or
(B) Unforeseeable intervening causes, whether involving the conduct of a third person or an act of God; any issue or defense as to charitable or governmental immunity; and any issue or defense based on any statute of limitations, if suit is instituted within three years of the date on which the claimant first knew, or reasonably could have known, of his injury or change and the cause thereof. The waiver of any such issue or defense shall be effective regardless of whether such issue or defense may otherwise be deemed jurisdictional or relating to an element in the cause of action. The waiver shall be judicially enforceable in accordance with its terms by the claimant against the person indemnified.
(v) For the purposes of making a determination of whether or not there has been an extraordinary nuclear occurrence, “offsite,” as used in 10 CFR part 840, means “away from the contract location,” a phrase that means any DOE facility, installation, or site at which the contract is being performed, or any contractor-owned or -controlled facility, installation, or site at which the Contractor is engaged in performing the contract.
(3) The waivers set forth in paragraph (e)(1) of this clause—
(i) Shall be effective regardless of whether such issue or defense may otherwise be deemed jurisdictional or relating to an element in the cause of action;
(ii) Shall be judicially enforceable in accordance with its terms by the claimant against the person indemnified;
(iii) Shall not preclude a defense based upon a failure to take reasonable steps to mitigate damages;
(iv) Shall not apply to any injury or damage to a claimant (or his property) that is intentionally sustained by the claimant, or that results from a nuclear incident intentionally and wrongfully caused by the claimant;
(v) Shall not apply to injury to a claimant who is employed at the site of and in connection with the activity where the extraordinary nuclear occurrence takes place, if benefits therefor are either payable or required to be provided under any workmen's compensation or occupational disease law;
(vi) Shall not apply to any claim resulting from a nuclear incident occurring outside the United States;
(vii) Shall be effective only with respect to those obligations set forth in this clause and in insurance policies, contracts or other proof of financial protection; and
(viii) Shall not apply to, or prejudice the prosecution or defense of, any claim or portion of claim not within the protection afforded under (A) the limit of liability provisions under subsection 170e. of the Act, and (B) the terms of this agreement and the terms of insurance policies, contracts, or other proof of financial protection.
(f)
(1) Require the prior approval of DOE for the payment of any claim that DOE may be required to indemnify hereunder; and
(2) Appear through the Attorney General on behalf of the Contractor or other person indemnified in any action brought upon any claim that DOE may be required to indemnify hereunder, take charge of such action, and settle or defend any such action. If the settlement or defense of any such action or claim is undertaken by DOE, the Contractor or other person indemnified shall furnish all reasonable assistance in effecting a settlement or asserting a defense.
(g)
(h)
(i)
(j)
(k)
( ) See note II below for instructions related to this section on Effective Date.
( ) See note III below for instructions related to this section on Relationship to General Indemnity.
(1) For contracts with an award date after August 16, 2012, do not include an effective date provision.
(2) For contracts with an award date before August 16, 2012—
(i) If the contract contains the Nuclear Hazards Indemnity Agreement clause (June 1996 or prior version), replace the clause at 48 CFR 952.250-70 with this clause and use the EFFECTIVE DATE title and language, as follows:
“Effective Date. This contract was awarded on or after August 8, 2005, and at contract award contained the clause at 48 CFR 952.250-70 (JUN 1996) or prior version. That clause has been deleted and replaced with this clause. The Price-Anderson Amendments Act of 2005, described by this clause, controls the indemnity for any nuclear incident that occurred on or after August 8, 2005. The Contractor's liability for civil penalties for violations of the Atomic Energy Act of 1954 under this contract is described by paragraph (i) of this clause.
(ii) If the contract was awarded prior to August 8, 2005, and contains the Nuclear Hazards Indemnity Agreement clause, dated June 1996 or prior version, add this clause in addition to the clause at 48 CFR 952.250-70 or prior version and use the EFFECTIVE DATE title and language, as follows:
“Effective Date. This contract was in effect prior to August 8, 2005, and contains the clause at 48 CFR 952.250-70 (JUN 1996) or prior version. The indemnity of paragraph (d)(1) is limited to the indemnity provided by the Price-Anderson Amendments Act of 1988 for any nuclear incident to which the indemnity applies that occurred before August 8, 2005.
The indemnity of paragraph (d)(1) of this clause applies to any nuclear incident that occurred on or after August 8, 2005. The Contractor's liability for violations of the Atomic Energy Act of 1954 under this contract is that in effect prior to August 8, 2005.
The following alternate will be added to the above Nuclear Hazards Indemnity Agreement clause for all contracts that contain a general authority indemnity pursuant to 48 CFR 950.7101. Caution: Be aware that for contracts that will have this provision added, but that do not contain an effective date provision, this paragraph shall be marked (1). In the event an Effective Date provision has been included, it shall be marked (m).
“( ) To the extent that the Contractor is compensated by any financial protection, or is indemnified pursuant to this clause, or is effectively relieved of public liability by an order or orders limiting same, pursuant to 170e of the Act, the provisions of the clause providing general authority indemnity shall not apply.”
42 U.S.C. 2201; 2282a; 2282b; 2282c; 42 U.S.C. 7101
* * * This part does not apply to contracts not designated as M&O contracts by the Secretary of Energy, except as approved by the cognizant Senior Procurement Executive (SPE) or as otherwise prescribed in the DEAR.
(a) * * *
(1) Acknowledge that the employee has read and is familiar with:
(i) The requirements and restrictions prescribed in this section;
(ii) Current version of DOE Order 486.1, Department of Energy Foreign Government Sponsored or Affiliated Activities;
(iii) Current version of DOE Order 241.1, Scientific and Technical Information Management; and
(iv) The requirements of the contractor's contract with DOE relating to patents.
* * * In paragraph (a), the words “and managerial personnel (see 970.5245-1(k))” may be inserted after “(see 952.215-70)”.
(a) DOE policies, definitions, provisions, and clauses associated with safeguarding and security of classified information are in part 904.
(b) For DOE management and operating contracts and other contracts designated by the Senior Procurement Executive or designee, the clause at 970.5215-3, “Conditional Payment of Fee, Profit, and Other Incentives—Facility Management Contracts,” implements the requirements of section
The contracting officer shall insert the clause at 970.5204-3, Access to and Ownership of Records, in management and operating contracts and other contracts that contain:
(a) The Integration of Environment, Safety, and Health into Work Planning and Execution clause located at either 952.223-71 or 970.5223-1; or
(b) The clause at 952.223-72, Radiation Protection and Nuclear Criticality.
The provisions of FAR subpart 8.1, 41 CFR chapter 102, and 41 CFR part 109-43 apply to DOE's management and operating contracts.
(a) The Department of Energy (DOE) requires all activities performed under M&O contracts to be conducted without conflict of interest at the organizational and individual level.
(b) Management and Operating (M&O) contractors shall develop, maintain and follow a policy on organizational and financial conflict of interest in accordance with the clause at 970.5209-70, Conflicts of Interest. The policy must be appropriate to the statement of work of the underlying contract to ensure that the contractor:
(1) Is not biased because of its financial, contractual, organizational, or other interests which relate to the work under the contract; and
(2) Does not obtain any unfair competitive advantage over other parties by virtue of its performance of the contract.
(c) The Contracting Officer shall ensure that M&O contractors adopt policies and procedures in the award of subcontracts that will protect against a biased work product and an unfair competitive advantage.
The Contracting Officer shall insert the clause at 970.5209-70, Conflicts of Interest, in all M&O contracts.
(a) Each management and operating (M&O) contract must contain a performance work statement that describes, in general terms, work planned and/or required to be performed and expectations in terms of outcome, results, or final work products, as opposed to methods, processes, or design.
(b) Contract performance requirements and expectations should be consistent with the Department's strategic planning goals and objectives, as made applicable to the site or facility through Departmental programmatic and financial planning processes. Measurable performance criteria, objective measures, and where appropriate, performance incentives, shall be structured to correspond to the performance requirements established in the statement of work and other documents used to establish work requirements.
This subsection sets forth the Department's policies on fees for management and operating (M&O) contracts.
(a)
(2) A cost-plus-fixed-fee contract shall only be used if approved in advance by the Senior Procurement Executive (SPE) or designee. The fee for a cost-plus-fixed-fee contract may not exceed the limits at FAR 15.404-4(c)(4)(i).
(3) A base fee amount may only be used if approved in advance by the SPE or designee.
(4) Incentive fees allocated to evaluation periods under cost-reimbursement type contracts should, to the greatest extent appropriate, be tied to a specific portion of the maximum total available fee.
(5) The maximum total available fee amount may not exceed the fee derived from this subsection unless approved in advance by the SPE or designee. A request to allow a higher fee must be in writing and must clearly explain why the situation merits consideration.
(i) Typically, only a situation where either unusually difficult objective performance incentives would be used or where successful performance would provide extraordinary value would merit consideration.
(ii) When a contract requires a contractor to use its own facilities, equipment, or other resources for contract performance (
(6) Each M&O contract must set forth in the contract (or in a Performance Evaluation and Measurement Plan (PEMP) or similar document) the methods that will be used to rate the contractor's performance and to
(i) An M&O contract is an “incentive contract” as that term is used in FAR subpart 16.4. FAR subpart 16.4 prohibits the use in a contract of other than cost incentives without also providing a cost incentive (or constraint).
(ii) Award fee not earned during the award fee cycle shall not be carried over to any future award fee cycle. Consequently—
(A) When the award fee cycle consists of one evaluation period, unearned award fee amounts may not be carried over from one evaluation period to the next.
(B) When the award fee cycle consists of two or more evaluation periods, at the sole discretion of the Contracting Officer, unearned award fee amounts may be carried over from one evaluation period to the next, so long as the periods are within the same award fee cycle.
(b) C
(2) Before beginning to negotiate an extension to an existing contract, the HCA must coordinate the greatest maximum total available fee amount the HCA will accept and the maximum total available fee amount targeted for negotiation with the SPE or designee.
(a)
(1) Magnitude of the effort;
(2) Type of the effort;
(3) Nature, difficulty, complexity, and importance of the work; and
(4) Specific circumstances of the procurement.
(b)
(2) The maximum total available fee amount in an M&O contract is the sum of the maximum total available fee amounts in the contract's one-year periods. (See 970.1504-1-4 for a complete explanation of the calculation of the maximum total available fee amount for a one-year period and an example.)
(3) The maximum total available fee amount for a one-year period is based on the fee base for that one-year period. The fee base is an estimate of the allowable costs (with some exclusions) for that one-year period.
(4) The fee base is a basic component of the fee schedules, which link the fee base to fee. A fundamental aspect of fee calculations is the amount of the fee base and the amount of fee in the fee schedules are annual amounts. Calculating the maximum total available fee amount for a one-year period starts with determining the fee base for the one-year period. Consequently, a contract's maximum total available fee amount is based on the contract's one-year periods and their fee bases.
(5) Usually (but not necessarily) once the maximum total available fee amount for a one-year period is calculated, it is allocated (that is, made available to be earned by the M&O contractor) to the same one-year period. Additionally, when a maximum total available fee amount is established for longer than a year, it is subject to adjustment in the event of a significant change (greater than plus or minus ten percent or a lessor percent if appropriate) to the budget or work scope.
(6) In summary, while the maximum total available fee amount for a one-year period is based on the fee base for the one-year period, the evaluation period in which the contractor may earn all or part of that fee need not be the same one-year period or even a single evaluation period. Usually, the length of an evaluation period is one year, mirroring the one-year period used in the calculation of the maximum total available fee amount for a one-year period. In fact, the SPE's or designee's approval is required to do otherwise. Nonetheless, the Government's objective is to allocate incentives in a manner that will provide the contractor with the greatest incentive for efficient and economical performance. Consequently, there may be occasions where after calculating the maximum total available fee amount for a year, part or all of it should be allocated to a subsequent one-year evaluation period, an evaluation period of greater than a year, or to several evaluation periods.
(7) Before each year (or other appropriate period), at any time before the year (or period), including as early as the time of contract award, the Contracting Officer and M&O contractor will enter negotiations to establish the requirements for the year (or other appropriate period), including evaluation areas, individual requirements, and the maximum total available fee that the contractor can earn for its performance. If the parties cannot agree, the Contracting Officer will unilaterally establish the requirements and the maximum total available fee. The maximum total available fee allocated to an evaluation period must be apportioned among a base fee amount (which is usually zero) and a performance fee amount. The performance fee amount may consist of an incentive fee component for objective performance requirements, an award fee component for subjective performance requirements, or both. Both performance fee components are “incentives” per FAR subpart 16.4 and both are performance based. The performance fee must be tied to objective measures to the maximum extent appropriate. Performance incentive fee is preferable to performance award fee because it uses objective performance requirements rather than subjective performance requirements. Performance fee that is award fee may be used when: objective measures are not feasible (that is, when it is not feasible to devise effective predetermined objective measures applicable to cost, technical performance, or schedule); and the likelihood of meeting acquisition objectives will be enhanced by using incentives that effectively motivate the contactor toward exceptional performance and provide the Government with the flexibility to evaluate both actual performance and the conditions under which it was achieved.
(8) Within the maximum total available fee, Contracting Officer may include a type of incentive fee component, often labeled “performance based incentive (PBI),” that includes a target fee for a target level of performance. Each PBI must be tied to a specific portion of the total available fee pool. PBIs may only be used when—
(i) A target level of performance can be established that the contractor can reasonably be expected to reach;
(ii) Factors likely to impede the target performance are clearly within the control of the contractor; and
(iii) The contract indicates clearly a level below which performance is not acceptable.
(c)
(i) Magnitude of the effort (reflected by the total fee base for the year; see 970.1504-1-5);
(ii) Type of the effort (reflected by the allocation of the total fee base to the three fee schedules—production, research and development, and environmental restoration; see 970.1504-1-6);
(iii) Nature, difficulty, complexity, and importance of the work (reflected by the choice of classification factors; see 970.1504-1-7); and
(iv) Specific circumstances of the procurement (reflected by the appropriate percentages derived from considering significant factors; see 970.1504-1-8).
(2) Calculating the maximum total available fee for a one-year period entails determining the total fee base for the year, allocating it to the fee schedules based on the type of effort, using the fee schedules to determine a fee subtotal for each type of effort, multiplying those fee subtotals by classification factors, multiplying the resulting products by appropriate percentages, and summing those products. (See 970.1504-1-4 for a complete explanation and an example.)
(d)
(2) If the contractor does not meet the performance requirements of the contract relating to ES&H, to the safeguarding of Restricted Data and other classified information, or to business and financial systems, otherwise earned fee, fixed fee, profit, or other incentives may be unilaterally reduced by the Contracting Officer in accordance with the clause at 970.5215-3, “Conditional Payment of Fee, Profit, and Other Incentives—Facility Management Contracts.”
(3) The clause at 970.5215-3, entitled “Conditional Payment of Fee, Profit, and Other Incentives—Facility Management Contracts,” provides for reductions of earned fee, fixed fee, profit, or other incentives under the contract depending upon the severity of the contractor's performance failure relating to ES&H requirements, relating to the safeguarding of Restricted Data and other classified information, and relating to business and financial systems. When reviewing performance failures that would otherwise warrant a reduction of earned fee, fixed fee, profit, or other incentives, the Contracting Officer must consider mitigating factors that may warrant a reduction below the applicable range specified in the clause. Some of the mitigating factors that must be considered are included in the clause.
(4) The Contracting Officer must obtain the concurrence of the cognizant Program Secretarial Officer—
(i) Prior to effecting any reduction; and
(ii) Prior to determining that a reduction is not warranted for a particular performance failure or a group of performance failures.
(5) The Contracting Officer must coordinate with the Office of Enforcement within the Office of Enterprise Assessments (or with any designated successor office) before pursuing a contract fee reduction in the event of a violation by the contractor or any contractor employee of any DOE regulation relating to worker safety and health concerns. See 970.2303-2-70.
(e)
(i) Conform to the requirements of parts 915 and 916 and FAR parts 15 and 16; and
(ii) Where appropriate to the type, be supported by:
(A) Negotiated costs subject to the requirements of the 41 U.S.C. chapter 35;
(B) A pre-negotiation memorandum; and
(C) A plan describing how each contract type or fee arrangement will be administered.
(2) [Reserved]
(f)
(a) The maximum total available fee amount for a contract is the sum of the maximum total available fee amounts of the contract's one-year periods. The maximum total available fee amount in a one-year period is based on the fee base of the one-year period. Calculating the maximum total available fee amount for a one-year period requires considering the: magnitude of the effort (reflected by the total fee base for the year); type of effort (reflected by the allocation of the total fee base to the three fee schedules); nature, difficulty, complexity, and importance of the work (reflected by the choice of classification factors); and specific circumstances of the procurement (reflected by the appropriate percentages derived from considering significant factors).
(b) To calculate the maximum total available fee amount for a year, the Contracting Officer takes the following steps:
(1)
(2)
(3)
(4)
(5)
(6)
(c) An example of calculating the maximum total available fee for a one-year period follows in paragraphs (c)(1) through (6) of this section. The assumptions are: total fee base is 50,000,000 (comprising 10,000,000 of Production efforts, 15,000,000 of Research and Development (R&D) efforts, and 25,000,000 of Environmental Management (EM) efforts), classification factors are 3.0, 1.5, and 2.0, and appropriate percentages are 90%, 85%, and 75%.
(1)
(2)
(i) 10,000,000 to Production;
(ii) 15,000,000 to R&D; and
(iii) 25,000,000 to EM.
(3)
(i) 578,726 for Production;
(ii) 957,250 for R&D; and
(iii) 1,236,340 for EM.
(4)
578,726 × 3.0 = 1,736,178 for Production;
957,250 × 1.5 = 1,435,875 for R&D; and
1,236,340 × 2.0 = 2,472,680 for EM.
(5)
(i) 1,736,178 × .9 = 1,562,560 for Production;
(ii) 1,435,875 × .85 = 1,220,494 for R&D; and
(iii) 2,472,680 × .75 = 1,854,510 for EM.
(6)
1,562,560.
1,220,494.
1,854,510.
4,637,564.
(d) In summary, the maximum total available fee amount for a contract is the sum of the maximum total available fee amounts of the contract's one-year periods. Calculating the maximum total available fee amount for a one-year period entails determining the total fee base, allocating it to the fee schedules, using the fee schedules to determine fee subtotals, multiplying the fee subtotals by classification factors, multiplying the resulting products by appropriate percentages, and summing those products. (Allocating the amount of maximum total available fee for a one-year period to an evaluation period or periods is a separate action.)
(a) The total fee base for a one-year period (see step 1 located at 970.1504-1-4(b)(1)) is an estimate of the allowable costs for the one-year period, with some exclusions. (Estimates for Strategic Partnership Projects may be included in the total fee base, where appropriate.) The total fee base excludes estimates of allowable costs for: source and special nuclear materials; land, buildings, and facilities (whether they are to be leased, purchased or constructed); depreciation of Government facilities; and efforts for which a separate fee is to be negotiated.
(b) In addition to the exclusions in paragraph (a) of the section, the total fee base excludes:
(1) Any part of the estimated allowable cost of capital equipment that the contractor procures by subcontract and other similar costs that are of such magnitude or nature as to distort the technical and management effort required of the contractor;
(2) At least 20% of the estimated allowable cost of subcontracts and other major contractor procurements, with the excluded amount increasing as the contractor's estimated required management effort decreases;
(3) Estimates of allowable home office or corporate general and administrative expenses that will be reimbursed;
(4) Any cost of work funded with uncosted balances previously included in a fee base of this or any other contract performed by the contractor;
(5) Cost of rework attributable to the contractor; and
(6) State taxes.
(c) The total fee base does not reflect any fee or compensation for unusual architect-engineer or construction services provided by the M&O contractor. Architect-engineer and construction services are normally covered by special agreements based on the policies applying to architect-engineer or construction contracts. The fees for such services shall be calculated per 915.404-4-71 and added to the fees calculated using the production, R&D, and EM schedules. The total fee base also does not reflect any fee or compensation for special equipment purchases. The fees for special equipment purchases shall be calculated per 915.404-4-71 and added to the fees calculated using the production, R&D, and EM schedules.
(d) No fee schedule may be used more than once in calculating the maximum total available fee amount for a one-year period.
(a) In calculating the amount of maximum total available fee amount for a one-year period (see 970.1504-1-4), once the total fee base for the year is determined it is allocated to one or more of the three fee schedules based upon the type of effort. The three types of efforts are: Production; R&D; and EM. Each fee schedule provides a fee subtotal (see steps 2 and 3 in 970.1504-1-4(b)(2) and (3)).
(b) The three schedules are:
(a) There are five classification factors. They are tied to facility/task categories. Step 4 in calculating the maximum total available fee amount for the one-year period (see 970.1504-1-4(b)(4)) is to multiply the fee subtotal in step 3 for each type of effort by the appropriate classification factor. The classification factors and their corresponding facility/task categories are:
(b) The Contracting Officer shall select the Facility/Task Category after considering the following:
(1)
(i) The manufacture, assembly, retrieval, disassembly, or disposal of nuclear weapons with explosive potential;
(ii) The physical cleanup, processing, handling, or storage of nuclear radioactive or toxic chemicals with consideration given to the degree the nature of the work advances state-of-the-art technologies in cleanup, processing or storage operations and/or the inherent difficulty or risk of the work is significantly demanding when compared to similar industrial/DOE settings (
(iii) Construction of facilities such as nuclear reactors, atomic particle accelerators, or complex laboratories or industrial units especially designed for handling radioactive materials;
(iv) R&D directly supporting paragraph (b)(1)(i), (ii), or (iii) of this subsection and not conducted in a DOE laboratory; or
(v) As designated by the SPE, or designee. (Classification factor 3.0)
(2)
(i) The safeguarding and maintenance of nuclear weapons or nuclear material;
(ii) The manufacture or assembly of nuclear components;
(iii) The physical cleanup, processing, handling, or storage of nuclear radioactive or toxic chemicals or other substances that pose a significant threat to the environment or the health and safety of workers or the public, if the nature of the work uses state-of-the-art technologies or applications in such operations and/or the inherent difficulty or risk of the work is more demanding than that found in similar industrial/DOE settings (
(iv) The detailed planning necessary for the assembly/disassembly of nuclear weapons/components;
(v) Construction of facilities involving operations requiring a high degree of design layout or process control;
(vi) R&D directly supporting paragraph (b)(2)(i), (ii), (iii), (iv), or (v) of this subsection and not conducted in a DOE laboratory; or
(vii) As designated by the SPE or designee. (Classification factor 2.5)
(3)
(i) The physical cleanup, processing, or storage of nuclear radioactive or toxic chemicals if the nature of the work uses routine technologies in cleanup, processing or storage operations and/or the inherent difficulty or risk of the work is similar to that found in similar industrial/DOE settings (
(ii) Plant and facility maintenance;
(iii) Plant and facility security (other than the safeguarding of nuclear weapons and material);
(iv) Construction of facilities involving operations requiring normal processes and operations; general or administrative service buildings; or routine infrastructure requirements;
(v) R&D directly supporting paragraph (b)(3)(i), (ii), (iii), or (iv) of this subsection and not conducted in a DOE laboratory; or
(vi) As designated by the SPE or designee. (Classification factor 2.0)
(4)
(5)
(d) Any risks that are indemnified by the Government (for example, risks under the Price-Anderson Act) will not be considered as risks to the contractor.
(a) In calculating the maximum total available fee for a one-year period (see 970.1504-1-4), step 5 (970.1504-1-4(b)(5)) is to consider the specific circumstances of the procurement using the following significant factors for each type of effort, determine the appropriate percentage for the type of work, and apply it to the subtotals of fee from step 4 (970.1504-1-4(b)(4)). An appropriate percentage of 100% would be applied to work of maximum difficulty and/or complexity; lesser percentages would be applied to work less difficult or complex. The significant factors are:
(1) The relative difficulty of work, including specific performance objectives, environment, safety and health concerns, and the technical and administrative knowledge, and skill necessary for work accomplishment and experience;
(2) Management risk relating to performance, including—
(i) Composite risk and complexity of principal work tasks required to do the job; and
(ii) Advance planning, forecasting and other such requirements;
(3) Size and operation (number of locations, plants, differing operations, etc.);
(4) The nature and relative complexity of subcontracted efforts, subcontractor management, and complexity of integration with other contractors;
(5) Other special considerations, including support of Government programs such as those relating to small and minority business subcontracting, energy conservation, etc.; and
(6) The presence or absence of financial risk, including the type and terms of the contract.
(b) [Reserved]
In calculating the maximum total available fee amount for a one-year period (see 970.1504-1-4), step 6 (970.1504-1-4(b)(6)) is to add the products of step 5 (970.1504-1-4(b)(5).
Usually, the length of an evaluation period is one year, mirroring the one-year period used in calculating the maximum total available fee amount for a one-year period. The SPE's or designee's approval is required to do otherwise. Nonetheless, the Government's objective is to allocate incentives in a manner that will result in reasonable contractor risk and provide the contractor with the greatest incentive for efficient and economical performance. Consequently, there may
The maximum total available fee amount for a contract is the sum of the maximum total available fee amounts of the contract's one-year periods.
(a) The certification requirements of FAR 15.406-2 are not applied to DOE cost- reimbursement M&O contracts.
(b) The Contracting Officer shall ensure that M&O contractors and their subcontractors obtain certified cost or pricing data prior to the award of a negotiated subcontract or modification of a subcontract in accordance with FAR 15.406-2, if required by FAR 15.403-4, and incorporate appropriate contract provisions similar to those set forth at FAR 52.215-10 and 52.215-11 that provide for the reduction of a negotiated subcontract price by any significant amount that the subcontract price was increased because of the submission of defective cost or pricing data by a subcontractor at any tier.
(c) The clauses at FAR 52.215-12 and 52.215-13 shall be included in M&O contracts.
(a) The Contracting Officer shall insert the clause at 970.5215-1, Total Available Fee: Base Fee Amount and Performance Fee Amount, in M&O contracts.
(b) The Contracting Officer shall insert the clause at 970.5215-3, Conditional Payment of Fee, Profit, and Other Incentives—Facility Management Contracts, in M&O contracts. (Note: The clause states if the contract does not include the Security Requirements clause (952.204-2), the requirements of the clause related to security or safeguarding of Restricted Data and other classified information do not apply.)
(c) The Contracting Officer shall insert the provision at 970.5215-5, Limitation on Fee, in solicitations for M&O contracts.
(a)
(1) An M&O contract shall—after the Secretary has authorized its original use (either by a competitive award or by a sole source award), its maximum term, and any other limits on its terms (options or other terms)—provide for a base term not to exceed the lessor of five years or the maximum term the Secretary authorized.
(2) The contract may include option terms provided no option term exceeds the lessor of five years or the maximum term the Secretary authorized (for options or the contract) and the sum of base term and the option terms does not exceed the lessor of 10 years or the maximum term the Secretary authorized for the contract. In addition to the base term and the option terms just described, an M&O contract for a national laboratory that is competitively awarded may provide for award term incentives provided none exceed the maximum term the Secretary authorized for each. The sum of base term, option terms, and award terms shall not exceed the lessor of 20 years or the maximum term the Secretary authorized for the contract.
(3) After the Secretary's original authorization of the use of the M&O contract has expired, any continuation of work under an M&O contract must be preceded by the Secretary's renewal of his/her authorization for use of an M&O contract. Whether work is to be continued by a competitive award to a new contractor or to the incumbent, by a sole source award to a new contractor, or by a sole source extension of the contract to the incumbent, the Secretary's renewal of his/her authorization for use of an M&O contract to perform the work is required before work may continue.
(4) In addition to requiring the Secretary's renewal of his/her authorization for use of an M&O contract, a sole source extension of an M&O contract to the incumbent must be justified under one of the statutory authorities listed in FAR 6.302 and authorized by the Secretary.
(5) The specific duration of the base term, option terms, and award terms of an M&O contract must be established concurrent with the Secretary's authorization (or renewal of his/her authorization) to use an M&O contract (for original use, sole source award to a new contractor, competitive award to a new contractor or to the incumbent, or sole source extension of the contract to the incumbent).
(b)
(1) Consider the extent to which performance-based management contract provisions are present or can be negotiated into the contract.
(2) Make the determinations required by FAR 17.605 in the manner described therein. As part of the review required by FAR 17.605(b), the Contracting Officer shall assess whether competing the contract will produce a more advantageous offer than exercising the option. The incumbent contractor's past performance under the contract, the extent to which performance-based management contract provisions are present, or can be negotiated into the contract, and the impact of a change in a contractor on the Department's discharge of its programs are considerations that shall be addressed in the Contracting Officer's decision that the exercise of the option is in the Government's best interest. The Contracting Officer's decision shall be approved by the Senior Procurement Executive and the cognizant Assistant Secretary(s). The determinations described in FAR 17.207(d) and (e)(2) are not required, and because of the way in which the evaluation of cost to the Government is performed in the award of an M&O contract that includes options, the Contracting Officer need only determine the option was evaluated as part of the initial competition and contains a maximum fee. The Contracting Officer need not, for example: issue a new solicitation; informally analyze prices; or determine the option is the more advantageous offer.
Pursuant to 42 U.S.C. 2053 and 7259a, DOE is authorized to make its facilities available to other Federal and non-Federal entities (sponsors) for the conduct of certain research and development and training activities. Pursuant to 31 U.S.C. 1535 and 42 U.S.C. 7259a, or other applicable authority, other Federal entities may
The revisions read as follows:
(a) DOE's internal review and approval procedural requirements for strategic partnership projects agreements are set forth in the current version of DOE Order 481.1, and such other guidance as may be issued by DOE.
(c) * * *
(1) The interagency agreement with DOE complies with the Economy Act of 1932 (31 U.S.C. 1535) or other applicable statutory authorities and FAR 6.002, which prohibits the use of an Interagency Agreement for the purpose of avoiding the competition requirements of the Federal Acquisition Regulation (48 CFR chapter 1); and
Insert the clause at 970.5217-1, Strategic Partnership Projects Program (Non-DOE Funded Work), in any contract that may involve work under the Strategic Partnership Projects Program.
The scope of this subpart is to provide authorization for the M&O contractor to conduct third party-sponsored research at the M&O contractor's risk.
M&O contractors may elect to enter into agreements directly with non-Federal sponsors to conduct research at the facility the M&O contractor is responsible for managing and operating so long as the work does not present, or minimizes, any apparent COI, as well as avoiding or neutralizing any actual COI as a result of the agreement. This research is conducted at the M&O contractor's risk and the M&O contractor may obtain compensation beyond full-cost recovery for accepting the risk of performance.
The Contracting Officer shall insert the clause at 970.5217-2, Agreements for Commercializing Technology (ACT), in any contract that may involve ACT pursuant to 970.1708.
(a) In accordance with FAR 19.708(b)(1), the Contracting Officer shall insert the clause FAR 52.219-9, Small Business Subcontracting Plan, in all M&O solicitations and contracts.
(b) The Contracting Officer shall supplement the clause at FAR 52.219-9 with the clause at 970.5219, Small Business Subcontracting Plan, in M&O solicitations and contracts, except for those for the Ames Laboratory and Princeton Plasma Physics Laboratory. The Contracting Officer may tailor the clause as needed.
Contracting officers shall, in appropriate circumstances, follow the requirements in FAR subpart 22.1, as supplemented in this section, in the award and administration of:
(a) Management and operating (M&O) contracts;
(b) Contracts the Senior Procurement Executive designates; and
(c) Non-M&O contracts where the current contract's work was previously performed under an M&O contract and the current Contractor was required to, and did, employ the former Contractor's legacy workforce. These non-M&O contracts may include, but are not limited to, contracts whose work is for:
(1) Environmental remediation;
(2) Decontamination and decommissioning;
(3) Environmental restoration;
(4) Infrastructure services for the site;
(5) Site closure at a current or former M&O contract site or facility; or
(6) Protective forces that provide physical security of sites at a current of former M&O contract site or facility.
(a) The extent of Government ownership of the nation's energy plant and materials, and the overriding concerns of national defense and security, impose special conditions on personnel and labor relations in the energy program. Such special conditions include the need for continuity of vital operations at DOE installations; retention by DOE of absolute authority on all questions of security in accordance with 10 CFR 706.40; and DOE review of labor expenses under management and operating (M&O) contracts (and certain other contracts) to assure judicious expenditure of public funds. It is the intent of DOE that personnel and labor policies throughout the energy program reflect the best experience of American industry in aiming to achieve the type of stable labor-management relations that are essential to the proper development of the energy program. The following enunciates the principles upon which the DOE policy is based:
(1)
(ii) When the clause at 952.204-2, Security Requirements, is applicable (see 904.404), the Contracting Officer will obtain adequate assurance that the Contractor performed the required review of an uncleared applicant's or of an uncleared employee's background in its determination to select an individual for a position requiring a DOE access authorization.
(2)
(3)
(4)
(5)
(ii) Consistent with the policy of assuring continuity of operation of vital facilities, all collective bargaining agreements at DOE-owned facilities should provide that grievances and disputes involving the interpretation or application of the agreement will be settled without resorting to strike, lockout, or other interruption of normal operations. For purposes of this paragraph (a)(5)(ii), each collective bargaining agreement entered into during the period of performance of this contract should provide an effective grievance procedure with arbitration as its final step, unless the parties mutually agree upon some other method of assuring continuity of operation for the term of the collective bargaining agreement.
(iii) DOE expects its management and operating contractors and the unions representing the contractor's employees to cooperate fully with the Federal Mediation and Conciliation Service.
(6)
(7)
(i) Maintain comprehensive continuous preventive and protective programs appropriate to the particular activities throughout all operations.
(ii) Provide appropriate financial protection in case of occupational disability to employees.
(b) Title to payroll and associated records under certain contracts (see 970.0407-1-2) for the management and operation of DOE facilities, and for necessary miscellaneous construction incidental to the function of these facilities, shall vest in the Government. Such records are to be disposed of in accordance with the clause at 970.5232-3, Accounts, Records, and Inspection, and other DOE directions. For such contracts, the Solicitor of Labor has granted a tolerance from the Department of Labor regulations to omit from the prescribed labor clauses the requirement for the retention of payrolls and associated records for a period of three years after completion of the contract. Under this tolerance, the records retention requirements for all labor clauses in the contract and the Fair Labor Standards Act are satisfied by disposal of such records in accordance with applicable DOE directives.
In addition to the clause at FAR 52.222-1, Notice to the Government of Labor Disputes, the contracting officer shall insert the clause at 970.5222-1, Collective Bargaining Agreements—Management and Operating Contracts, in all M&O contracts and certain other non-M&O contracts as described in 970.2201-1-1. The substance of the clause at 970.5222-1, Collective Bargaining Agreements, shall be included in any subcontract for protective services or other services performed on the DOE-owned site which will affect the continuity of operations of the facility.
(a) It is DOE policy that contractors facilitate the retention of certain critically skilled employees for: the management and operation of laboratories and other national defense and security site facilities; contracts designated by the Senior Procurement Executive; and certain other non-M&O contracts as described in 970.2201-1. Critically skilled employees are those employees whose specific recognized technical skills, knowledge, and experience in a specific field are critical to the operations or strategy of a contractor, and whose loss from the DOE contractor's workforce system would cause a significant negative impact on achieving and supporting national research, environmental, defense, and security objectives.
(b) Wages, salaries, and employee benefits shall be administered in a manner designated to adapt the normal practices and conditions of industry or institutions of higher education to the contract work, and to provide for appropriate review by DOE.
(c) The contractor's compensation systems and supporting policies should support the effective recruitment and retention of a highly skilled, motivated, and experienced workforce at a reasonable cost. For a cost to be allowable it must comply with each of the five requirements for allowability stated in FAR 31.201-2. Some of the specific details of the allowable costs for compensation for personal services are discussed at FAR 31.205-6, as supplemented by, 970.3102-05-6, and other pertinent parts of the DEAR and DOE directives and policies.
The policy in 922.406-1 applies to M&O contracts.
The Service Contract Labor Standards, historically referred to as the Service Contract Act of 1965, is not applicable to contracts for the management and operation of DOE facilities, but it is applicable to subcontracts under such contracts (see 970.5244-1(x)).
(a) Each state has its own unemployment compensation system to provide payments to workers who become unemployed involuntarily and through no fault of their own. These claims are payable by employers through the state unemployment
(b) The predictability of paying claims through the state unemployment insurance tax is preferred and highly encouraged. However, an M&O contractor may choose to opt out. A contractor before deciding to opt out, generally performs an analysis of its workforce including size and stability of the workforce, historical turnover rate and historical payout data. This information may also be provided to state regulators who are interested in ensuring that employers who opt out establish an adequate reserve fund to reimburse the state for the claims that are processed for the company's former employees.
(c) When an M&O contractor opts out of paying for claims through the state's unemployment insurance tax, as permitted and in accordance with state laws, regulations and guidelines, the reimbursement by DOE, in any given year, should generally be limited to the actual incurred cost, but no more than what would have been incurred had the contractor chosen to pay in.
The Contracting Officer shall insert the clause at 970.5222-4, Unemployment Compensation, in all solicitations for an M&O contract and in all M&O contracts awarded to a nonprofit entity. When this is included in a contract or solicitation, the Contracting Officer shall fill in the appropriate number of calendar days.
The Contracting Officer shall insert the clause at 952.223-78, Sustainable Acquisition Requirements, in all management and operating (M&O) contracts in accordance with 923.172.
The contracting officer shall insert the clause at 970.5226-2, Workforce Restructuring under section 3161 of the National Defense Authorization Act for Fiscal Year 1993, in contracts for the management and operation of Department of Energy Defense Nuclear Facilities and, as appropriate, in other contracts that include site management responsibilities at a Department of Energy Defense Nuclear Facility. The contracting officer shall insert the clause at 952.226-74, Workforce Restructuring and Displaced Employee Hiring Preference, in contracts and subcontracts at any tier (except for contracts for commercial items, pursuant to 41 U.S.C. 403) which exceed $500,000 in value.
The contracting officer may insert the clause at 970.5226-3, Community Commitment, in management and operating contracts where community involvement will be required of the contractor.
This subpart applies to negotiation of patent rights, rights in technical data provisions and other related provisions for the Department of Energy contracts for the management and operation of DOE's major sites or facilities, including the conduct of research and development and nuclear weapons production, and contracts which involve major, long-term or continuing activities conducted at a DOE site, including decontamination and decommissioning activities.
(a)
(b)
(c)
(2) Normally, the clause at FAR 52.227-3 would not be appropriate for an M&O contract; however, if there is a question, such as when the mission of the contractor involves production, the Contracting Officer must consult with DOE patent counsel and use the clause where appropriate.
(d)
(e)
(f)
(a)
(2) If the M&O contractor is conducting privately funded technology transfer activities, involving the use of private funds to conduct licensing and marketing activities related to inventions made under the contract in accordance with the Bayh-Dole Act, DOE may modify the clause at 970.5227-10 to address issues such as the disposition of royalties earned under the privately funded technology transfer program, the transfer of patent rights to a successor contractor, allowable cost restrictions concerning privately funded technology transfer activities, and the Government's freedom from any liability related to licensing under the contractor's privately funded technology transfer program.
(b)
(i) For any the M&O contractor that does not qualify as a nonprofit organization or small business firm as defined by 35 U.S.C. 201 and for which DOE has not granted a patent waiver pursuant to 10 CFR part 784; or
(ii) If, without regard to the type of contractor, the M&O contract is for the operation of a DOE facility primarily dedicated to naval nuclear propulsion or weapons related programs.
(2) The clause at 970.5227-11 requires the contractor to assign the Government title to inventions conceived or first actually reduced to practice in the course of or under an M&O contract in accordance with 42 U.S.C. 2182 and 5908 (the Atomic Energy of 1954 and the Federal Nonnuclear Energy Act of 1974).
(c)
(h)
(1) Reflect DOE required subcontracting instructions pursuant to 37 CFR 401.5(a) as well as the deletion of the definition of contractor that does not apply based on the subcontracting instructions; and
(2) Include the U.S. competitiveness provision in paragraph (m) of the clause pursuant to the Determination of Exceptional Circumstances under the Bayh-Dole Act to Further Promote Domestic Manufacture of DOE Science and Energy Technologies executed by DOE on June 7, 2021.
(a) The clauses at 970.5227-1, Rights in Data—Facilities, and 970.5227-2, Rights in Data—Technology Transfer, both provide generally for Government ownership and for unlimited rights in the Government for all data first produced in the performance of the contract and unlimited rights in data specifically used in the performance of the contract. Both clauses provide that, subject to patent, security, and other provisions of the contract, the contractor may use contract data for its private purposes. The contractor, under either clause, must treat any data furnished by DOE or acquired from other Government agencies or private entities in the performance of their contracts in accordance with any restrictive legends contained therein. For Research and Development Contracting, requirements for R&D results conveyed in scientific and technical information are addressed in 935.010 and should be set forth as part of the contract. These contractual requirements are further addressed in DOE Order 241.1B, or its successor version, which sets forth requirements for scientific and technical information.
(c) * * *
(2) Where, however, a subcontract is to be awarded by the management and operating contractor in connection with a program, as discussed at 927.404-71, which provides statutory authority to protect from public disclosure, data first produced under contracts awarded pursuant to the program, contracting officers shall ensure that the management and operating contractor includes in that subcontract the rights in data clause provided by DOE Patent Counsel, consistent with any accompanying guidance.
(e) The Rights in Data—Technology Transfer clause at 970.5227-2 differs from the clause at 970.5227-1, Rights in Data—Facilities, in the context of its more detailed treatment of copyright. In management and operating contracts that have technology transfer as a mission, the right to assert copyright in data first produced under the contract will be a valuable right, and commercialization of such data, including computer software, will assist the management and operating contractor in advancing the technology transfer mission of the contract. The clause at 970.5227-2, Rights in Data—Technology Transfer, provides for DOE approval of DOE's taking a limited copyright license during the period in which the copyrighted data is being commercialized. The contractor must notify DOE (Patent Counsel and Office of Scientific and Technical Information (OSTI)) when commercial activity ceases.
(a) The contracting officer shall insert the clause at 970.5227-1, Rights in Data—Facilities, in management and operating contracts which do not contain the clause at 970.5227-2, Rights in Data—Technology Transfer. The Contracting Officer may insert, with concurrence of Patent Counsel, the clause at 970.5227-1, Rights in Data—Facilities, in other contracts where Government facilities are being constructed, modified, or in decontamination and decommissioning. The contracting officer shall include the clause with its Alternate I in contracts
(b) The contracting officer shall insert the clause at 970.5227-2, Rights in Data—Technology Transfer, in management and operating contracts which contain the clause at 970.5227-3, Technology Transfer Mission. The contracting officer shall include the clause with its Alternate I in contracts where access to Category C-24 restricted data, as set forth in 10 CFR part 725, is to be provided to contractors. The Contracting Officer shall include the clause with its Alternate II in contracts where Government facilities are being constructed, modified, or in decontamination and decommissioning, and it is anticipated that further solicitation may be required to complete the project.
* * * All new awards for or extensions of existing DOE laboratory or weapon production facility M&O contracts shall include authorization for the M&O contractor to engage directly with third parties in Agreements for Commercializing Technology, under section 107 of the Department of Energy Research and Innovation Act, Public Law 115-246, by using 970.5217-2, Agreements for Commercializing Technology. * * *
(b)
(2) In discharging assigned responsibility, the Heads of Contracting Activities shall—
(i) Periodically review workers' compensation insurance programs of management and operating contractors in the light of applicable workers' compensation statutes to assure conformance with the requirements of paragraph (a) of this section;
(ii) Evaluate the adequacy of coverage of “self-insured” workers” compensation programs; and
(iii) Provide arrangements for the administration of any existing “employees” benefit plans until such plans” are terminated.
(3) Heads of Contracting Activities are responsible for approving management and operating contractor “employees' benefit plans.”
* * * Paragraphs (f)(1)(iii)(C) and (g)(2) of that clause apply to a nonprofit contractor only to the extent specifically provided in the individual contract.
The cost principles of FAR subpart 31.2 and this subpart apply regardless of entity type for the M&O contract.
(a) * * *
(3) * * *
(i) Fee in addition to its normal fee; or
(a)(6) In determining the reasonableness of compensation, the compensation of each individual contractor employee normally need not be subjected to review and approval. Generally, the compensation paid individual employees should be left to the judgment of contractors subject to the limitations of DOE-approved compensation policies, programs, classification systems, and schedules, and amounts of money authorized for wage and salary increases for groups of employees. However, the contracting officer shall designate a compensation threshold appropriate for the particular situation. The contract shall specifically provide that contracting officer approval is required for compensating an individual contractor employee above the threshold if a total of 50 percent or more of such compensation is reimbursed under DOE cost-type contracts.
(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 FAR 31.205-6, Compensation for personal services, as supplemented by this section, 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) 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. Allowable costs of employee compensation shall be determined pursuant to FAR 31.205-6(p).
The revision reads as follows:
(c) * * *
(2) The plan for the identification, use, and disposition of retained earnings, if applicable;
The contractor may only accept work from a non-sponsor (as defined in FAR 35.017) in accordance with the requirements of the current DOE approved mechanisms for engaging with a non-sponsor (
(b) Where it is determined to be in the best interest of the Government, a DOE contracting activity may authorize a management and operating contractor for a facility to acquire such utility service for the facility, after requesting and receiving concurrence to make such an authorization from the DOE Federal Energy Management Program (FEMP). Any request for such concurrence should be included in the Utility Acquisition Plan. Alternatively, it may be made in a separate document submitted to the FEMP Utility Program Manager early in the acquisition cycle. Any request shall set forth why it is in the best interest of the DOE to acquire utility service(s) by subcontract,
(c) The requirements of FAR part 41 and this section shall be applied to a subcontract level acquisition for furnishing utility services to a facility owned or leased by DOE.
(b) * * *
(4) * * *
(ii) The opinion of the Department of Energy's auditor on the allowability of such costs if such costs have been the subject of a DOE audit.
(b) * * *
(4) Ensure that periodic appraisals of the contractor's management of all facets of the purchasing function, including compliance with the contractor's approved system and methods, are performed by the contracting officer.
(c) The M&O contractor's purchasing performance, including compliance with the contractor's approved system and methods, will be evaluated against the performance criteria and measures set forth in FAR subpart 44.3, using the procedures articulated in DOE policies including DOE guidance on oversight of M&O Contractors' Purchasing Systems.
This subpart is applicable to management and operating (M&O) contractors, and on-site environmental management and other major prime contractors as designated by the Senior Procurement Executive, or designee. This subpart supplements 41 CFR part 109.
(a) The contracting officer shall insert the clause at 970.5245-1, Property, in management and operating contracts and environmental management, and other major prime contractors located at DOE sites. Specific managerial personnel may be listed in paragraph (k) of the clause at 970.5245-1, provided their listing is consistent with the clause and the DEAR.
(b) The contracting officer shall insert the basic clause at 970.5245-1 with its Alternate I in contracts with nonprofit contractors.
As prescribed in 970.0370-2(a), insert the following clause:
(b)
(1) Employment-related records (such as worker's compensation files; employee relations records, records on salary and employee benefits; drug testing records, labor negotiation records; records on ethics, employee concerns; records generated during the course of responding to allegations of research misconduct; records generated during other employee related investigations conducted under an expectation of confidentiality; employee assistance program records; and personnel and medical/health-related records and similar files), and non-employee patient medical/health-related records, except those records described by the contract as being operated and maintained by the Contractor in Privacy Act system of records.
(g)
(1) The contractor shall include the requirements of this clause in all subcontracts that contain the Radiation Protection and Nuclear Criticality clause at 48 CFR 952.223-72, or whenever an on-site subcontract scope of work:
(i) Could result in potential exposure to:
(A) Radioactive materials;
(B) Beryllium; or
(C) Asbestos; or
(ii) Involves a risk associated with chronic or acute exposure to toxic chemicals or substances or other hazardous materials that can cause adverse health impacts, in accordance with 10 CFR part 851. In determining its flow-down responsibilities, the Contractor shall include the requirements of this clause in all on-site subcontracts where the scope of work is performed in:
(A) Radiological areas and/or radioactive materials areas (as defined at 10 CFR 835.2);
(B) Areas where beryllium concentrations exceed or can reasonably be expected to exceed action levels specified in 10 CFR part 850;
(C) An asbestos regulated area (as defined at 29 CFR 1926.1101 or 1910.1001); or
(D) A workplace where hazard prevention and abatement processes are implemented in compliance with 10 CFR 851.21 to specifically control potential exposure to toxic chemicals or substances or other hazardous materials that can cause long term health impacts.
(2) The Contractor may elect to take on the obligations of the provisions of this clause in lieu of the subcontractor and maintain records that would otherwise be maintained by the subcontractor.
As prescribed in 970.0906, insert the following clause:
(a) The M&O contractor shall ensure, in accordance with 48 CFR part 9, subpart 9.5, that it maintains and enforces a written policy on conflicts of interest (COI).
(b) The restrictions described herein shall apply to performance or participation by the M&O contractor and any of its affiliates or their successors in interest (hereinafter collectively referred to as “M&O contractor”) in the activities covered by this clause as a prime contractor, subcontractor, cosponsor, joint venturer, consultant, or in any similar capacity. For the purpose of this clause, affiliation occurs when a business concern is controlled by or has the power to control another or when a third party has the power to control both.
(1)
(ii) If, under this contract, the M&O contractor prepares a complete or essentially complete statement of work or specifications to be used in competitive acquisitions, the Contractor shall be ineligible to perform or participate in any capacity in any contractual effort based on such statement of work or specifications.
(iii) A Contractor performing under a Federally Funded Research and Development Center (FFRDC) contract (to discharge its responsibilities under the contract to the sponsoring agency) has access (beyond the access common in the typical contractual relationship between the Government and a Contractor) to both Government and supplier data (including sensitive and proprietary data) and to employees and installations' equipment and real property. Therefore, a FFRDC Contractor is required to: conduct its business in a manner befitting the uncommon access it has due to its special contractual relationship with the Government; operate in the public interest with objectivity and independence; be free from organizational conflicts of interest; and make full disclosure of its affairs to the sponsoring agency.
(2)
(A) Use such information for any private purpose unless the information has been released or otherwise made available to the public;
(B) Compete for work for the Department based on such information for a period of six months after either the completion of this contract or until such information is released or otherwise made available to the public, whichever is first;
(C) submit an unsolicited proposal to the Government that is based on such information until one year after such information is released or otherwise made available to the public; and
(D) release such information unless such information has previously been released or otherwise made available to the public by the Department.
(ii) In addition, the M&O contractor agrees that to the extent it receives or is given access to proprietary data, data protected by the Privacy Act of 1974 (5 U.S.C. 552a), or other confidential or privileged technical, business, or financial information under this contract, it shall treat such information in accordance with any restrictions imposed on such information.
(iii) The Contractor may use technical data it first produces under this contract for its private purposes consistent with paragraphs (b)(2)(i)(A) and (D) of this clause and the patent, rights in data, and security provisions of this contract.
(c)
(1) The policy shall include coverage for parents, affiliates, subsidiaries, subrecipients, and contractors, including subcontractors.
(2) The policy shall require disclosure by each investigator of all COI and require the disclosures to remain current.
(3) The policy shall designate one or more individuals to review disclosures by investigators.
(4) The policy should designate one or more individuals to oversee organizational review and enforcement of COI.
(5) The policy shall include adequate enforcement mechanisms and procedures for managing COI.
(6) The policy shall include appropriate restraints on intra-corporate relations between the M&O contractor's organization and personnel operating the Department's facility and its parent corporate body and affiliates. Such restraints shall include personnel access to the facility, technical transfer of information from the facility, and the availability from the facility of other advantages flowing from performance of the contract.
(7) The policy shall include, where a university is the prime contractor, a statement identifying that the university has adopted policies and procedures, designed to avoid conflict-of-interest situations, which are in substantial conformance with the Joint Statement of the Council of American Association of University Professors and the American Council on Education of December 1964, entitled “On Preventing Conflicts of Interest.”
(8) The policy shall be updated regularly, but at least once every five years.
(d) The M&O contractor must disclose all COIs that cannot be mitigated, including those with parent company, affiliate or subsidiaries, contractors, subrecipients and investigators to the Contracting Officer. Disclosure should be within 10 calendar days of identifying a COI. All COI disclosures
(e)
(f)
Prior to the award under this contract of any such subcontracts for advisory and assistance services, the Contractor shall obtain from the proposed subcontractor or consultant the disclosure required by 48 CFR 909.507-1, and shall determine in writing whether the interests disclosed present an actual or significant potential for an organizational conflict of interest. Where an actual or significant potential organizational conflict of interest is identified, the Contractor shall take actions to avoid, neutralize, or mitigate the organizational conflict to the satisfaction of the Contractor. If the conflict cannot be avoided or neutralized, the Contractor must obtain the approval of the DOE Contracting Officer prior to entering into the subcontract.
As prescribed in 970.1504-3(a), insert the following clause.
(a)
(b)
(c)
(2) If the award fee cycle consists of one evaluation period, award fee not earned during the evaluation period shall not be allocated to future evaluation periods. At the sole discretion of DOE, if the award fee cycle consists of more than one evaluation period, award fee not earned during the evaluation period may be allocated to future evaluation periods within the same award fee cycle.
(3) Following each evaluation period, the Contractor [insert may or shall] submit a self-assessment within [insert number] calendar days after the end of the period. This self-assessment shall address both the strengths and weaknesses of the Contractor's performance during the evaluation period. Where deficiencies in performance are noted, the Contractor shall describe the actions planned or taken to correct them and avoid their recurrence. The FDO will review the Contractor's self-assessment as part of the evaluation of the Contractor's performance during the period.
(4) The FDO will evaluate the Contractor's performance in accordance with the Performance Evaluation and Measurement Plan (PEMP) described in subparagraph (d) of this clause unless otherwise set forth in the contract. The Contractor shall be promptly advised in writing of the total available fee amount earned determination and the basis of the determination.
(d)
(1) DOE shall establish a PEMP upon which the determination of the total available fee amount earned shall be based. The PEMP will address all of the requirements of contract performance specified in the contract directly or by reference. The Contracting Officer shall provide the Contractor with a copy of the PEMP before the start of an evaluation period.
(2) The PEMP will set forth the criteria upon which the Contractor will be evaluated relating to any technical, schedule, management, and/or cost objectives selected for evaluation. The PEMP will include, per 48 CFR 16.402-1, a cost incentive (or constraint). The criteria in the PEMP should be objective but may also include subjective criteria. The PEMP will set forth the method by which the total available fee amount will be allocated, and the total available fee amount earned will be determined.
(3) The PEMP may be revised, either unilaterally (by DOE) or bilaterally, during the evaluation period. If it is revised, the Contracting Officer shall notify the contractor—
(i) Of unilateral revisions (unless they are urgent and high priority) at least ninety calendar days prior to the end of the evaluation period and at least thirty calendar days prior to the effective date of the revision;
(ii) Of bilateral revisions (unless they are urgent and high priority) at least sixty calendar days prior to the end of the evaluation period;
(iii) Of urgent and high priority revisions, whether made unilaterally or bilaterally, at least thirty calendar days prior to the end of the evaluation period.
(e)
(1) The determination for the evaluation period must be made within the later of: sixty calendar days after the receipt by the Contracting Officer of the Contractor's self-assessment, if one is required or permitted; seventy calendar days after the end of the evaluation period; or a longer period if the Contractor and Contracting Officer agree.
(2) If the FDO elects to evaluate the Contractor's performance of any specific requirements upon their completion, the determination of any fee amount earned must be made: within seventy calendar days of the requirements' completion; or a longer period if the Contractor and Contracting Officer agree.
(3) If the determination is not made within the periods stated above, the Contractor shall be entitled to interest on the total available fee amount earned at the rate established by the Secretary of the Treasury under section 12 of the Contract Disputes Act of 1978 (41 U.S.C. 7109) that is in effect on the payment date. This rate is referred to as the “Renegotiation Board Interest Rate,” and is published in the
As prescribed in 970.1504-3(b), insert the following clause:
(a)
(b)
(1) The amount of payment of otherwise earned fee, fixed fee, profit, or other incentives for any evaluation period under this contract is dependent upon the Contractor's and the Contractor's employees' compliance during the evaluation period with the performance requirements of this contract relating to:
(i) Environment, safety and health (ES&H), which includes worker safety and health (WS&H);
(ii) Security or safeguarding of Restricted Data and other classified information; and
(iii) Business and financial systems.
(2) The ES&H performance requirements of this contract are set forth in its ES&H terms and conditions, including the DOE-approved contractor Integrated Safety Management System (ISMS) or similar document. Financial incentives for timely mission accomplishment or cost effectiveness shall never compromise or impede full and effective implementation of the ISMS and full ES&H compliance.
(3) The security or safeguarding of Restricted Data and other classified information performance requirements of this contract are set forth in: the clause of this contract entitled, “Security Requirements”; the clause of this contract entitled “Laws, Regulations, and DOE Directives”; and other terms and conditions of this contract.
(4) The business and financial systems performance requirements of this contract are set forth in terms and conditions relating to management, accounting, property, procurement, and earned value management, such as the “Management controls” clause.
(5) If the Contractor does not meet the performance requirements of this contract relating to ES&H, security or safeguarding of Restricted Data and other classified information, or business and financial systems during any evaluation period established under the contract pursuant to the clause of this contract entitled “Total Available Fee: Base Fee Amount and Performance Fee Amount,” the amount of payment of otherwise earned fee, fixed fee, profit or other incentives for the evaluation period may be unilaterally reduced by the Contracting Officer.
(c)
(2) For a reduction allocable to more than one evaluation period, the Government will effect the allocation at the end of the evaluation period in which it determines the total amount of the reduction. The allocable amount is
(3) The Government will reduce the payment of otherwise earned fee, fixed fee, profit, or other incentives as soon as practicable after the end of the evaluation period in which the performance failure occurs. If the Government is not aware of the failure, it will effect the reduction as soon as practicable after becoming aware.
(4) In determining the reduction and in applying the mitigating factors, the Contracting Officer must consider the Contractor's overall performance in meeting the ES&H, security or safeguarding of Restricted Data and other classified information, or business and financial systems performance requirements of the contract. Such consideration must include performance against any site-specific performance criteria/requirements that provide additional definition or guidance for the amount of reduction or for the applicability of mitigating factors. In all cases, the Contracting Office must consider mitigating factors that may warrant a reduction below the reduction that would be appropriate absent mitigating factors. Mitigating factors include, but are not limited to, the following (paragraphs (c)(4)(v), (vi), (vii), and (viii) of this clause apply to ES&H only):
(i) Degree of control the Contractor had over the event or incident.
(ii) Efforts the Contractor made to anticipate and mitigate the possibility of the event in advance.
(iii) Contractor self-identification and response to the event to mitigate impacts and recurrence.
(iv) General status (trend and absolute performance) of: ES&H and compliance in related areas; or of safeguarding Restricted Data and other classified information and compliance in related areas; and business and financial systems and compliance in related areas.
(v) Contractor demonstration to the Contracting Officer's satisfaction that the principles of industrial ES&H standards are routinely practiced.
(vi) Event caused by “Good Samaritan” act by the Contractor (
(vii) Contractor demonstration that a performance measurement system is routinely used to improve and maintain ES&H performance (including effective resource allocation) and to support DOE corporate decision-making (
(viii) Contractor demonstration that an operating experience and feedback program is functioning that demonstrably affects continuous improvement in ES&H by use of lessons learned and best practices inter- and intra-DOE sites.
(d)
(1) The amount of the reduction under this clause for an evaluation period, in combination with the amount of any reduction under any other clause, shall not exceed the amount of payment for otherwise earned fee, fixed fee, profit, or other incentives for the evaluation period.
(2) If at any time during the contract any reductions under this clause or other clauses result in the sum of the amount of payments the Contractor has received for earned fee, fixed fee, profit, or other incentives to exceed the sum of the amounts of actually payable to the Contractor, the Contractor shall immediately return the excess to the Government.
(3) At the end of the contract—
(i) The Government will pay the Contractor the amount by which the sum of amounts actually payable to the Contractor exceeds the sum of the payments the Contractor has received; or
(ii) The Contractor shall return to the Government the amount by which the sum of the payments the Contractor has received exceeds the sum of the amounts actually payable to the Contractor.
(e)
(1)
(i) Failure to develop and obtain required DOE approval of an ISMS. (The Government will perform necessary reviews in a timely manner and not unreasonably withhold approval.)
(ii) Performance failures determined, per applicable ES&H laws, regulations, or DOE directives, to have resulted in, or that could reasonably be expected to result in, serious injury or death to a worker.
(iii) Occurrence of any accident or event that meets the criteria of Appendix A of DOE Order 225.1B (or successor Order) and results in a determination to conduct a Federal Accident Investigation Board.
(2)
(i) Failures to comply with an approved ISMS.
(ii) Failures that have been determined, per applicable ES&H laws, regulations, or DOE directives, to have resulted in, or could reasonably be expected to result in, an actual injury, exposure, or exceedance that occurred or nearly occurred but had minor practical long-term health consequences.
(iii) A breakdown of the Safety Management System.
(iv) The following performance failures or performance failures of similar import will be considered second degree:
(A) Non-compliance with applicable ES&H laws, regulations, or DOE directives actually resulting in an accident that meets the criteria of Appendix A of DOE Order 225.1B (or successor Order) but not resulting in a determination to conduct a Federal Accident Investigation Board.
(B) Non-compliance with applicable ES&H laws, regulations, or DOE directives that results in a near miss of an accident or event that could have resulted in an adverse effect and a determination to conduct a Federal Accident Investigation Board. (A near miss is a situation in which an inappropriate action occurs, or a necessary action is omitted, that does not result in an adverse effect.)
(3)
(i) Non-compliance with applicable ES&H laws, regulations, or DOE directives actually resulting in potential breakdown of the Safety Management System. The following performance failures or performance failures of similar import will be considered third degree:
(A) Failure to implement effective corrective actions to address deficiencies/non-compliances documented through: external (
(B) Multiple similar non-compliances identified by external (
(C) Non-compliances that have, or may have, significant negative impacts to the worker, the public, or the environment or that indicate a significant programmatic breakdown.
(D) Failure to notify DOE upon discovery of events or conditions where notification is required by the terms and conditions of the contract.
(f)
(1)
(i) Non-compliance with applicable laws, regulations, and DOE directives actually resulting in, or creating a risk of, loss, compromise, or unauthorized disclosure of Top Secret Restricted Data or other information classified as Top Secret, any classification level of information in a Special Access Program (SAP), information identified as sensitive compartmented information (SCI), or high risk nuclear weapons-related data.
(ii) Contractor actions that result in a breakdown of the safeguards and security management system that can reasonably be expected to result in the loss, compromise, or unauthorized disclosure of Top Secret Restricted Data, or other information classified as Top Secret, any classification level of information in an SAP, information identified as SCI, or high risk nuclear weapons-related data.
(iii) Failure to promptly report the loss, compromise, or unauthorized disclosure of Top Secret Restricted Data, or other information classified as Top Secret, any classification level of information in an SAP, information identified as SCI, or high risk nuclear weapons-related data.
(iv) Failure to timely implement corrective actions stemming from the loss, compromise, or unauthorized disclosure of Top Secret Restricted Data or other information classified as Top Secret, any classification level of information in a SAP, information identified as SCI, or high risk nuclear weapons-related data.
(2)
(i) Non-compliance with applicable laws, regulations, and DOE directives actually resulting in, or creating risk of, loss, compromise, or unauthorized disclosure of Secret Restricted Data or other information classified as Secret.
(ii) Contractor actions that result in a breakdown of the safeguards and security management system that can reasonably be expected to result in the loss, compromise, or unauthorized disclosure of Secret Restricted Data or other information classified as Secret.
(iii) Failure to promptly report the loss, compromise, or unauthorized disclosure of Secret Restricted Data or other classified information regardless of classification (except for information covered by paragraph (f)(1)(iii) of this clause).
(iv) Failure to timely implement corrective actions stemming from the loss, compromise, or unauthorized disclosure of Secret Restricted Data or other classified information classified as Secret.
(3)
(i) Non-compliance with applicable laws, regulations, and DOE directives actually resulting in, or creating risk of, loss, compromise, or unauthorized disclosure of Restricted Data or other information classified as Confidential.
(ii) Failure to promptly report alleged or suspected violations of laws, regulations, or directives pertaining to the safeguarding of Restricted Data or other classified information.
(iii) Failure to identify or timely execute corrective actions to mitigate or eliminate identified vulnerabilities and reduce residual risk relating to the protection of Restricted Data or other classified information in accordance with the Contractor's Safeguards and Security Plan or other security plan, as applicable.
(iv) Contractor actions that result in performance failures that by themselves pose minor risk, but when viewed in the aggregate indicate degradation in the integrity of the Contractor's safeguards and security management system relating to the protection of Restricted Data and other classified information.
(g)
(1)
(2)
(3)
As prescribed in 970.1504-3(c), insert the following provision:
(a) For the purpose of this solicitation, fee amounts shall not exceed the total available fee allowed by the fee policy at 48 CFR 970.1504-1-1, or as specifically stated elsewhere in the solicitation.
(b) The Government reserves the unilateral right, in the event an offeror's proposal is selected for award, to limit the total available fee to an amount allowed by the fee policy at 48 CFR 970.1504-1-1 unless specifically stated in this solicitation.
As prescribed in 970.1707-4, insert the following clause:
(a)
(b)
(c)
(1) Must not perform Strategic Partnership Projects activities that would place it in direct competition with the domestic private sector;
(2) Must not respond to a request for proposals or any other solicitation from another Federal agency or non-Federal organization that involves direct comparative competition, either as an offeror, team member, or subcontractor to an offeror; however, the Contractor may, following notification to the Contracting Officer, respond to Broad Agency Announcements, Financial Assistance solicitations, and similar solicitations from another Federal Agency or non-Federal organizations when the selection is based on merit or peer review, the work involves basic or applied research to further advance scientific knowledge or understanding, and a response does not result in direct, comparative competition;
(3) Must not commence work on any Strategic Partnership Projects activity until a Strategic Partnership Projects proposal package has been approved by the DOE Contracting Officer or designated representative or, if it includes support for a Special Access Program (SAP), receives formal approval outlined in DOE Order 471.5 (or its successor), or the work falls under an approved Master Statement of Work (MSW);
(4) Must not incur project costs until receipt of DOE notification that a budgetary resource is available for the project, except as provided in 48 CFR 970.5232-6;
(5) Must ensure that all costs associated with the performance of the work, as provided for in the current version of DOE Order 522.1, Pricing of Departmental Materials and Services, including specifically all DOE direct costs and applicable surcharges, are included in any Strategic Partnership Projects proposal;
(6) Must maintain records for the accumulation of costs and the billing of such work to ensure that DOE's appropriated funds are not used in support of Strategic Partnership Projects activities and to provide an accounting of the expenditures to DOE and the sponsor upon request;
(7) Must perform all Strategic Partnership Projects agreements in accordance with the standards, policies, and procedures that apply to performance under this contract, including but not limited to environmental, safety and health, security, safeguards and classification procedures, and human and animal research regulations;
(8) May subcontract portion(s) of a Strategic Partnership Project; however, the Contractor must select the subcontractor and the work to be subcontracted. Any subcontracted work must be in direct support of the Contractor's performance as defined in the DOE approved Strategic Partnership Projects proposal package;
(9) Must maintain a summary listing of project information for each active Strategic Partnership Projects project, consisting of—
(i) Sponsoring agency;
(ii) Total estimated costs;
(iii) Project title and description;
(iv) Project point of contact; and,
(v) Estimated start and completion dates; and,
(10) May use a Master Scope of Work (MSW) as defined in 48 CFR 970.5227-3 in a Strategic Partnership Project Agreement.
(d)
(2) With the exception of a Strategic Partnership Project using a Contracting Officer approved MSW, the Contractor must submit all Strategic Partnership Projects agreements to the DOE Contracting Officer for DOE review and approval. The Contactor shall also include in any request for DOE approval a listing of any associated intellectual property having a prior assignment, exclusive licensing or option for exclusive licensing. The Contractor may not execute any proposed agreement until it has received notice of DOE approval except when the work falls under an approved MSW.
(3) The Contractor is authorized to reserve the intellectual property indemnity clause for federally-funded sponsors, state and local governments and public universities. The Contractor is further authorized to include in subcontracts with other domestic sponsors (
(e)
(f)
(g)
As prescribed in 970.1708-3, insert the following clause:
(a) This clause authorizes the use of the mechanism, Agreements for Commercializing Technology (ACT). In accordance with the requirements specified in this clause, the M&O Contractor may conduct third party-sponsored research at the M&O Contractor's risk. While the Department believes ACT has the potential to greatly assist in the commercialization of technologies, it also specifically recognizes that ACT can be used for other engagements with outside entities that are not necessary aimed at commercialization (
(b) The following applies to all work conducted under the ACT mechanism, regardless of the source of funding:
(1)
(2)
(3)
(ii) May only conduct work under this clause if the work does not interfere with or adversely affect projects and programs the M&O Contractor conducts on behalf of the DOE under this contract, and complies with the terms and conditions of the prime contract If the Government determines that an activity conducted under this clause interferes with the Department's work under the M&O contract, or that termination/stay/suspension of work under an ACT agreement is in the best interest of the Government, the M&O Contractor must stop the interfering ACT work immediately to the extent necessary to resolve the interference. At any time, the Contracting Officer may require the use of specified Government-owned or leased property and facilities for the exclusive use of the DOE mission by providing a written notice excluding said property from the M&O Contractor's activities under this clause. Any cost incurred as a result of Contracting Officer decisions identified in this subparagraph shall be borne by the M&O Contractor. The Contracting Officer shall provide to the M&O Contractor in writing its decision, identifying the issues and reasons for the decisions. The M&O Contractor shall be provided with a reasonable opportunity to address and resolve the issues identified by the Contracting Officer;
(iii) Except as otherwise excluded in this clause, must perform all ACT activities in accordance with the standards, policies, and procedures that apply to performance under this M&O contract, including but not limited to environmental, safety and health, security, safeguards, conflict of interest and classification procedures, and human and animal research regulations;
(iv) Must maintain and provide when requested by the DOE Contracting Officer, a summary of project information for each active ACT project, consisting of: sponsor name; total estimated costs; project title and description; project point of contact; and estimated start and completion dates;
(v) Is responsible for addressing the following items in ACT agreements as appropriate: disposition of property acquired under the agreement; export control; notice of intellectual property infringement; and a statement that the Government and/or the M&O Contractor shall have the right to perform similar services in the Statement of Work for other Parties as otherwise authorized by this M&O contract subject to applicable data restrictions;
(vi) Must include a standard legal disclaimer notice on all publications generated under ACT activities. Each DOE M&O Contractor has its own pre-approved publications statement, and this should be included; and
(vii) Must insert the following disclaimer in each agreement under ACT, which must be conspicuous (
THIS AGREEMENT IS SOLELY BETWEEN [INSERT NAME OF THE M&O CONTRACTOR] AND [THE OTHER IDENTIFIED PARTY]. THE UNITED STATES GOVERNMENT IS
(4)
(ii) The M&O Contractor shall submit an ACT proposal package (Package) to the Contracting Officer for approval prior to beginning work under an ACT agreement.
(A) A complete Package will include at a minimum: the identity of the parties to the ACT agreement; the principal place of performance; any foreign ownership or control of the ACT agreement parties; a Statement of Work; an estimate of costs incurred under the M&O contract; an anticipated schedule; identification of key Government equipment and facilities that will be used under the ACT agreement; a list of expected deliverables; identification of the Intellectual Property (IP) lead and proposed selection of IP rights, as defined in DOE Class Waiver W(C)-2011-013; a signed certification by the private party(ies) that the M&O Contractor offered the option to use Cooperative Research and Development Agreement (CRADA) and Strategic Partnership Project (SPP) alternatives (see paragraph (b)(7)(i) sufficiently such that the private parties are aware of the relative costs and other differences between the ACT agreement and the CRADA and SPP alternatives; source of funds, including a statement that no Federal funds, including pass-through funds received as a subcontractor or partner, are being utilized; applicable ES&H and NEPA documentation; a statement of consideration, summarizing the risk and/or consideration offered the ACT participants in exchange for charging beyond full cost recovery or for other compensation provided by the participants; and when multiple third parties are parties to the ACT agreement, or as otherwise requested by the Contracting Officer, an IP Management Plan that sets forth the proposed disposition of IP rights, and income and royalty sharing, among the parties to an ACT agreement.
(B) If the M&O Contractor, the M&O Contractor's parent, member, subsidiary, or other entity in which the M&O Contractor, the M&O Contractor's parent, member or subsidiary has an equity interest, is a party to the ACT agreement, the M&O Contractor shall include as necessary a project-specific addendum to the Master OCI Plan in the Package to address special circumstances not fully anticipated in the prior approved Master OCI Plan (see paragraph (b)(7) of this clause).
(C) If the ACT agreement includes a foreign entity as a party or the statement of work includes the use of human subjects, animal subjects, classified or sensitive subject matter or describes a work scope involving high risks or hazards including environmental issues, the M&O Contractor shall include additional information as necessary or as requested by the Contracting Officer.
(iii) The Contracting Officer shall use reasonable best efforts to review each complete Package submitted by the M&O Contractor under subparagraph (b)(4)(ii)(B) of this clause within 10 business days of receiving the Package and provide the M&O Contractor with approval or non-approval of the Package. The review of the complete Package by the Contracting Officer shall include a determination that the proposed work: is consistent with or complementary to DOE missions and the contract statement of work; will not adversely impact programs under the contract scope of work; will not place the contractor in direct competition with the domestic private sector; and will not create a detrimental future burden on DOE resources.
(iv) Except as conditionally allowed under subparagraph (b)(4)(iv)(A) of this clause, the Contracting Officer must approve the Package before the M&O Contractor may begin work under the proposed ACT agreement. If the Contracting Officer rejects the Package, then the Contracting Officer must provide said rejection to the M&O Contractor in writing including the reasons for the rejection. Upon receipt of the Contracting Officer's written rejection, the M&O Contractor agrees to not further pursue the work described in the package or incur additional costs under the M&O contract for the work described in the Package.
(A) The M&O Contractor may request a preliminary determination that the proposed scope of work is consistent with the contract statement of work and the Contracting Officer will use his/her best efforts to provide such a determination within three business days. Upon such a determination from the Contracting Officer, the M&O Contractor may begin work under the ACT agreement at the M&O Contractor's risk pending final approval of the complete Package. The M&O Contractor must submit a complete Package, as identified in subparagraph (b)(4)(ii) of this clause, within 10 business days of the preliminary determination. All costs associated with the performance of work under a preliminary determination are the responsibility of the M&O Contractor, as no Federal funds will be used to fund any work conducted under this clause.
(B) If any source affiliated with the M&O Contractor (any division, subsidiary, or affiliate of the M&O Contractor or its parent company) is a party sponsoring work in connection with the ACT agreement, work may not commence until approval of the complete Package by the Contracting Officer.
(5)
(6)
(ii) Work conducted under this clause shall be excluded from the M&O contract award fee calculations and such fee shall not be allocable to work conducted under this clause.
(7)
(i)
(ii)
(iii)
(iv)
(8)
(i) All Contractor ACT inventions shall be reported to DOE pursuant to the requirements of the [
(ii) In reporting ACT inventions, the M&O Contractor shall identify the ACT agreement under which the invention was made and specify the rights reserved by the Government pursuant to the ACT Class Waiver.
(iii) All technical data identified by the ACT client as Protected ACT Information shall also be marked to identify the ACT agreement under which the data was generated.
(iv) The M&O Contractor shall ensure that all rights and obligations concerning ACT IP, including the appropriate IP provisions authorized in the ACT Class Waiver, are clearly provided in ACT agreements, and that all parties granted any rights in ACT IP are informed of the terms of the waived rights, including the rights reserved by the Government.
(v) Where the M&O Contractor receives ownership or license rights to ACT IP, the M&O Contractor may elect to commercialize the ACT IP consistent with the Technology Transfer Mission clause of this M&O contract.
(vi) As an alternative to subparagraph (b)(8)(v) of this clause, if the M&O Contractor has an authorized Private Funded Technology Transfer (PFTT) program, the M&O Contractor may elect to retain private ownership of the ACT IP and commercialize the IP under its applicable PFTT clause, using its private funds, where no costs for developing, patenting, and marketing will be allowable under this M&O contract. The M&O Contractor will share royalties collected on ACT IP with inventors in accordance with paragraph (h) of the Technology Transfer Mission clause of this M&O contract.
(vii) For ACT projects in which the terms of the Agreement provide that the Government reserves the right to use generated data after the particular project expires, the M&O Contractor must provide, to the DOE Office of Technical Information (OSTI), computer software produced under the Agreement in both source and executable object code format.
(viii) Where terms and conditions governing Data and Subject Inventions under this Contract are inconsistent with the terms of the ACT Class Waiver, the ACT Class Waiver will control.
(9)
(i)
(A) The M&O Contractor agrees to indemnify and hold harmless the Government, the Department, and persons acting on their behalf from all liability, including costs and expenses incurred, to any person, including the ACT participants, for injury to or death of persons or other living things or injury to or destruction of property arising out of the performance of an ACT transaction by the Government, the Department, the M&O Contractor, or persons acting on their behalf, or arising out of the use of the services performed, materials supplied, or information given hereunder by any person including the M&O Contractor, and not directly resulting from the fault or negligence of the Government, the Department, or persons (other than the M&O Contractor) acting on their behalf.
(B) Subject to Contracting Officer approval, the General Indemnity set forth in this paragraph (b)(9)(i) may be modified or waived where:
(
(C) Notwithstanding the provisions in a (b)(9)(i)(A) and (B) above, the M&O Contractor shall indemnify and hold harmless the Government, the Department, and persons acting on their behalf for loss, damage, or destruction of Government property resulting from the fault or negligence of the M&O
(ii)
(iii)
(A) Except for any liability resulting from any negligent acts or omissions of the Government, the M&O Contractor agrees to indemnify the Government for all damages, costs, and expenses, including attorney's fees, arising from personal injury or property damage occurring as a result of the making, using, or selling of a product, process, or service by or on behalf of the ACT participants or the M&O Contractor, their assignees, or licensees, which was derived from the work performed under ACT transactions. With respect to this clause, neither the Government nor the M&O Contractor shall be considered assignees or licensees as a result of reserved Government rights in ACT IP. The indemnity set forth in this paragraph shall apply only if the M&O Contractor shall have been informed as soon and as completely as practical by the Government of the action alleging such claim and shall have been given an opportunity, to the maximum extent afforded by applicable laws, rules, or regulations, to participate in and control its defense, and the Government shall have provided all reasonably available information and reasonable assistance requested by the M&O Contractor. No settlement for which the M&O Contractor would be responsible shall be made without the M&O Contractor's consent, unless required by final decree of a court of competent jurisdiction.
(B) Where the M&O Contractor assigns the responsibility for indemnifying the Government under subparagraph (b)(9)(iii)(A) of this clause to other ACT participants, the M&O Contractor agrees to seek such indemnification from the other ACT participants.
(iv)
(v)
(vi)
(10)
(11)
(12)
(13)
As prescribed in 970.1907-8(b), supplement the clause at FAR 52.219-9 with the following:
(b)
“
“
(l)(3)
As prescribed in 970.2270-2, insert the following clause.
(a) When under state law the contractor is permitted the option to pay unemployment claims either through the state unemployment insurance tax (pay in) or by reimbursing the state for actual claims paid out to former employees (opt out), the contractor shall provide the following:
(1)
(2)
(b) The Government reserves the right to request additional information to assess budgetary and programmatic risks and impact when the contractor chooses to opt out.
As prescribed in 970.2671-2, insert the following clause:
The Contractor shall submit a Diversity, Equity, Inclusion, and Accessibility (DEIA) Plan to the Contracting Officer for approval within 90 days after the effective date of this contract (or contract modification, if appropriate). The Contractor shall submit an update to its Plan annually or with its annual fee proposal. Guidance for preparation of a Diversity Plan is provided in the Appendix __. The Plan shall include innovative strategies for increasing opportunities to fully use the talents and capabilities of a diverse work force. The Plan shall address, at a minimum, the Contractor's approach for promoting diversity through (1) the Contractor's work force, (2) educational outreach, (3) community involvement and outreach, (4) subcontracting, (5) economic development (including technology transfer), and (6) the prevention of profiling, harassment, discrimination, and/or retaliation based on protected EEO categories.
The revisions and additions read as follows:
(a)
(1) Computer programs which are data comprising a series of instructions, rules, routines, or statements, regardless of the media in which recorded, that allow or cause a computer to perform a specific operation or series of operations; and
(2) Data comprising source code listings, design details, algorithms, processes, flow charts, formulae, and related material that would enable the computer program to be produced, created, or compiled. The term does not include computer data bases.
(b) * * *
(1) Except as may be otherwise expressly provided or directed in writing by the Patent Counsel, the Government shall have:
(ii) Unlimited rights in technical data and computer software specifically used in the performance of this Contract, except as provided herein regarding copyright, limited rights data, or restricted computer software, or except for other data specifically protected by statute for a period of time or, where, approved by Patent Counsel;
(4) In the performance of DOE contracted obligations, each contractor is required to manage scientific and technical information (STI) produced under the contract as a direct and integral part of the work and ensure its broad availability to all customer segments by making STI available to DOE's central STI coordinating office, the Office of Scientific and Technical Information (OSTI). Requirements for all such reportable information to OSTI are in DOE Order 241.1, or successor version, whether it is publicly releasable, controlled unclassified information, or classified.
(c) * * *
(3) If the Contractor has not been granted permission to copyright technical data or computer software first produced under the contract, and if the Government desires to obtain copyright in such data and computer software, the Patent Counsel may direct the Contractor to establish claim to copyright in such data or computer software and to assign such copyright to the Government or its designated assignee.
(d) * * *
(1) Unless otherwise directed by the contracting officer, the Contractor agrees to use in subcontracts in which technical data or computer software is expected to be produced or in subcontracts for supplies that contain a requirement for production or delivery of data in accordance with the policy and procedures the clause entitled, “Rights in Data—General” at 48 CFR 52.227-14 modified in accordance with 48 CFR 927.409 including alternates as appropriate with the prior approval of DOE Patent Counsel, and the Contractor shall not acquire rights in a subcontractor's limited rights data or restricted computer software, except through the use of Alternate II or III, respectively, without the prior approval of DOE Patent Counsel. The clause at 48 CFR 52.227-16, Additional Data Requirements, shall be included in subcontracts in accordance with 48 CFR 927.409(d). In subcontracts, including subcontracts for related support services, involving the design or operation of any plants or facilities or specially designed equipment for such plants or facilities that are managed or operated under its contract with DOE, the Contractor shall use the “rights in Data—Facilities clause at 48 CFR 970.5227-1.
(f) This “limited rights data” may be disclosed in future solicitations for the continuation or completion of the work contemplated under this contract under the restriction that the “limited rights data” be retained in confidence and not be further disclosed.
As prescribed in 970.2704-3(b), insert the following clause:
(a)
(1) Computer programs which are data comprising a series of instructions, rules, routines, or statements, regardless of the media in which recorded, that allow or cause a computer to perform a specific operation or series of operations; and
(2) Data comprising source code listings, design details, algorithms, processes, flow charts, formulae, and related material that would enable the computer program to be produced, created, or compiled. The term does not include computer data bases.
(b)
(i) Ownership of all technical data and computer software first produced in the performance of this Contract;
(ii) Unlimited rights in technical data and computer software specifically used in the performance of this Contract, except as provided herein regarding copyright, limited rights data, or restricted computer software, and except for data subject to the withholding provisions for protected Cooperative Research and Development Agreement (CRADA) information in accordance with Technology Transfer actions under this Contract, or other data specifically protected by statute for a period of time or, where, approved by Patent Counsel, appropriate instances of the DOE Strategic Partnership Projects Program;
(iii) The right to inspect technical data and computer software first produced or specifically used in the performance of this Contract at all reasonable times. The Contractor shall make available all necessary facilities to allow DOE personnel to perform such inspection;
(iv) The right to have all technical data and computer software first produced or specifically used in the performance of this Contract delivered to the Government or otherwise disposed of by the Contractor, either as the contracting officer may from time to time direct during the progress of the work or in any event as the contracting officer shall direct upon completion or termination of this Contract. When delivering all Contractor-produced computer software to the DOE Office of Scientific and Technical Information (OSTI), the Contractor shall submit a complete package as prescribed in paragraph (e)(3) of this clause. The Contractor agrees to leave a copy of such data at the facility or plant to which such data relate, and to make available for access or to deliver to the Government such data upon request by the contracting officer. If such data are limited rights data or restricted computer software, the rights of the Government in such data shall be governed solely by the provisions of paragraph (h) of this clause (“Rights in Limited Rights Data”) or paragraph (i) of this clause (“Rights in Restricted Computer Software”); and
(v) The right to remove, cancel, correct, or ignore any markings not authorized by the terms of this Contract on any data furnished hereunder if, in response to a written inquiry by DOE concerning the propriety of the markings, the Contractor fails to respond thereto within 60 days or fails to substantiate the propriety of the markings. In either case DOE will notify the Contractor of the action taken.
(2) The Contractor shall have:
(i) The right to withhold limited rights data and restricted computer software unless otherwise provided in provisions of this clause;
(ii) The right to use for its private purposes, subject to patent, security or other provisions of this Contract, data it first produces in the performance of this Contract, except for data in DOE's Uranium Enrichment Technology, including diffusion, centrifuge, and atomic vapor laser isotope separation, provided the data requirements of this Contract have been met as of the date of the private use of such data; and
(iii) The right to assert copyright subsisting in scientific and technical works, and works produced by Contractor under 48 CFR 952.204-75 as provided in paragraph (d) of this clause and the right to request permission to assert copyright subsisting in works other than scientific and technical articles as provided in paragraph (e) of this clause.
(3) The Contractor agrees that for limited rights data or restricted computer software or other technical business or financial data in the form of recorded information which it receives from, or is given access to by DOE or a third party, including a DOE contractor or subcontractor, and for technical data or computer software it first produces under this Contract which is authorized to be marked by DOE, the Contractor shall treat such data in accordance with any restrictive legend contained thereon.
(4) In the performance of DOE contracted obligations, each Contractor is required to manage scientific and technical information (STI) produced under the contract as a direct and integral part of the work and ensure its broad availability to all customer segments by making STI available to DOE's central STI coordinating office, OSTI. Requirements for all such reportable information to OSTI are in DOE Order 241.1B, or successor version, whether it is publicly releasable, controlled unclassified information, or classified.
(c)
(2) Except for material to which the Contractor has obtained the right to assert copyright in accordance with either paragraph (d), (e), or (f) of this clause, the Contractor agrees not to include in the data delivered under this Contract any material copyrighted by the Contractor and not to knowingly include any material copyrighted by others without first granting or obtaining at no cost a license therein for the benefit of the Government of the same scope as set forth in paragraph (d) of this clause. If the Contractor believes that such copyrighted material for which the license cannot be obtained must be included in the data to be delivered, rather than merely incorporated therein by reference, the Contractor shall obtain the written authorization of the contracting officer to include such material in the data prior to its delivery.
(3) If the Contractor has not been granted permission to copyright data or computer software first produced under the contract where such permission is necessary,
(d)
(2) For each scientific or technical work first produced or composed under this contract and submitted for publication or similar means of dissemination, the contractor shall provide notice to the publisher of the Government's license in the copyright that is substantially similar to or otherwise references one of the following notices below:
A suitable notice (long version) reflecting the Government's non-exclusive, paid-up, irrevocable, world-wide license in the copyright.
A suitable notice (short version) reflecting the Government's non-exclusive, paid-up, irrevocable, world-wide license in the copyright follows:
(3) The title to the copyright of the original of unclassified graduate theses and the original of related unclassified scientific papers shall vest in the author thereof, subject to the right of DOE to retain duplicates of such documents and to use such documents for any purpose whatsoever without any claim on the part of the author or the contractor for additional compensation.
(e)
(1)
(i) For data other than scientific and technical works under paragraph (d) of this clause and data produced under a CRADA, the Contractor shall submit in writing to Patent Counsel its request to assert copyright in data first produced in the performance of this Contract pursuant to this clause. The right of the Contractor to copyright data first produced under a CRADA is as described in the individual CRADA. Each request by the Contractor must include:
(A) The identity of the data (including any computer program) for which the Contractor requests permission to assert copyright, as well as an abstract which is descriptive of the data and is suitable for dissemination purposes;
(B) The program under which it was funded;
(C) Whether, to the best knowledge of the Contractor, the data is subject to an international treaty or agreement;
(D) Whether the data is subject to export control; and if so, which jurisdiction;
(E) A statement that the Contractor plans to commercialize the data in compliance with the clause of this contract entitled, “Technology Transfer Mission,” within five (5) years after obtaining permission to assert copyright or, on a case-by-case basis, a specified longer period where the Contractor can demonstrate that the ability to commercialize effectively is dependent upon such longer period; and
(F) For data other than computer software, a statement explaining why the assertion of copyright is necessary to enhance commercialization and is consistent with DOE's dissemination responsibilities.
(ii) For data that is developed using other funding sources in addition to DOE funding, the permission to assert copyright in accordance with this clause must also be obtained by the Contractor from all other funding sources prior to the Contractor's request to Patent Counsel. The request shall include the Contractor's certification or other documentation acceptable to Patent Counsel demonstrating such permission has been obtained.
(iii) Permission for the Contractor to assert copyright in excepted categories of data as determined exclusively by DOE will be expressly withheld. Such excepted categories include data whose release:
(A) Would be detrimental to national security,
(B) Would not enhance the appropriate transfer or dissemination and commercialization of such data;
(C) Would have a negative impact on U.S. industrial competitiveness;
(D) Would prevent DOE from meeting its obligations under treaties and international agreements; or
(E) Would be detrimental to one or more of DOE's programs.
(iv) The Contractor will obtain the advanced written approval of the Patent
(A) Under export control restrictions;
(B) Developed with Naval Reactors' funding;
(C) Subject to disposition of data rights under treaties and international agreements. Additional excepted categories may be added by the Assistant General Counsel for Technology Transfer and Intellectual Property. Where data are determined to be under export control restriction, the Contractor may obtain permission to assert copyright subject to the provisions of this clause for purposes of limited commercialization in a manner that complies with export control statutes and applicable regulations. In addition, notwithstanding any other provision of this contract, all data developed with Naval Reactors' funding and those data that are classified fall within excepted categories. The rights of the Contractor in data are subject to the disposition of data rights in the treaties and international agreements identified at DOE's Office of International Affairs (International Commitments—IEC).
If a patent application containing export-controlled information (ECI) stems from a Federally funded project, then the cognizant Federal Program Manager must approve its submittal without a secrecy order, and the NNSA Office of Nonproliferation and Arms Control must be notified in advance.
The following situations apply when patent applications containing ECI are intended to be submitted without a secrecy order.
• Any patent application containing controlled technology that falls within the scope of the International Traffic in Arms Regulations requires advance authorization from the Department of State, Directorate of Defense Trade Controls.
• Any patent application containing export-controlled technology as captured in Tier 2 as defined in NNSA Policy Letter NAP 476.1 (or successor version) must receive approval from NNSA's Office of Defense Programs.
(2)
(3)
(i) For computer software, the Contractor shall furnish, or make available to the DOE Office of Scientific and Technical Information (OSTI) in accordance with OSTI guidelines at the time permission to assert copyright is given under paragraph (e)(2) of this clause:
(A) Announcement information/metadata contained in the Software Announcement Notice 241.4;
(B) the source code and/or executable file for each software program; and
(C) Documentation, if any, which may consist of a user manual, sample test cases, or similar information, needed by a technically competent user to understand and use the software (whether included on the software media itself or provided in a separate file or in paper format).
(ii) The Contractor acknowledges that the DOE designated software distribution and control point may provide a technical description of the software in an announcement identifying its availability from the copyright holder.
(iii) Unless otherwise directed by the Patent Counsel, for data other than computer software to which the Contractor has received permission to assert copyright under paragraph (e)(2) of this clause, the Contractor shall within sixty (60) days of obtaining such permission furnish, or make available to OSTI in accordance with OSTI guidelines, a copy of such data as well as an abstract of the data suitable for dissemination purposes. The Contractor acknowledges that OSTI may provide an abstract of the data in an announcement to DOE, its contractors and to the public identifying its availability from the copyright holder.
(iv) Once the Contractor is given permission to assert copyright in data, the Contractor may begin to commercialize the copyrighted data by making copyrighted data available for licensing to third parties and by offering other types of distribution to third parties. During the period in which commercialization activities pertaining to the copyrighted data are continuing, or for a specified period of time prescribed by Patent Counsel in paragraph (e)(2) of this clause, the Contractor grants to the Government, and others acting on its behalf, a paid-up, nonexclusive, irrevocable worldwide license in such copyrighted data to reproduce, prepare derivative works and perform publicly and display publicly, by or on behalf of the Government. For all previously approved and current copyrighted data that the Contractor is actively commercializing, the Contractor may continue to commercialize in accordance with this paragraph.
(v) When the Contractor abandons commercialization activities pertaining to the data to which the Contractor has been given permission to assert copyright or at the end of the specified period as prescribed by Patent Counsel, the Contractor grants to the Government, and others acting on its behalf, a paid-up, nonexclusive, irrevocable worldwide license in such copyrighted data to reproduce, distribute copies to the public, prepare derivative works, perform publicly and display publicly, and to permit others to do so.
(vi) At any time the Contractor abandons commercialization activities for copyrighted data, the Contractor shall advise OSTI and Patent Counsel and, upon request, assign the copyright to the Government so that the Government can distribute the copyrighted data to the public. When the Contractor abandons commercialization activities, the Contractor will provide to OSTI the latest version of the copyrighted data (for example, source code, object code, minimal support documentation, drawings or updated manuals.) In addition, the Contractor will provide annually to Patent Counsel, if requested, a list of all copyrighted data that the Contractor has abandoned commercial licensing activity during that year.
(vii) Whenever the Contractor asserts copyright in data pursuant to this paragraph (e), the Contractor shall affix the applicable copyright notice of 17 U.S.C. 401 or 402 on the copyrighted data and also an acknowledgment of the Government sponsorship and license rights of paragraphs (e)(3)(iv) and (v) of this clause. Such action shall be taken when the data are delivered to the Government, licensed or deposited for registration as a published work in the U.S. Copyright Office, or when submitted for publication. The acknowledgment of Government sponsorship and license rights shall be substantially similar to the following:
(viii) With respect to any data to which the Contractor has received permission to assert copyright, the DOE has the right, during the period that Contractor is commercializing the data as provided for in paragraph (e)(3)(iv) of this clause, to request the Contractor to grant a nonexclusive, partially exclusive or exclusive license in any field of use to a responsible applicant(s) upon terms that are reasonable under the circumstances, and if the Contractor refuses such request, to grant such license itself, if the DOE determines that the Contractor has not made a satisfactory demonstration that either it or its licensee(s) is actively pursuing commercialization of the data as set forth in subparagraph (e)(1)(i) of this clause. Before licensing under this subparagraph, DOE shall furnish the Contractor a written request for the Contractor to grant the stated license, and the Contractor shall be allowed thirty (30) days (or such longer period as may be authorized by the contracting officer for good cause shown in writing by the Contractor) after such notice to show cause why the license should not be granted. The Contractor shall have the right to appeal the decision of the DOE to grant the stated license to the Invention Licensing Appeal Board as set forth in 10 CFR 781.65—“Appeals.”
(ix) No costs shall be allowable for maintenance of copyrighted data, primarily for the benefit of the Contractor and/or a licensee which exceeds DOE Program needs, except as expressly provided in writing by the contracting officer. The Contractor may use its net royalty income to effect such maintenance costs.
(4) The following notice may be included in computer software prior to any publication or release and prior to the Contractor's obtaining permission from the Department of Energy to assert copyright in the computer software pursuant to paragraph (c)(3) of this clause.
(5) A similar notice can be used for data, other than computer software, prior to any publication or release and prior to Contractor's obtaining permission of DOE Patent Counsel to assert copyright.
(f)
(1)
(i) The Contractor shall provide written notice (including relevant data such as, for example, the software disclosure form) to each DOE Program or Programs that have provided a substantial portion of the funding (funding source(s)) to develop the software that the Contractor intends to release as OSS unless the funding Program(s) has previously provided blanket approval for all software developed with funding from that Program or a specific DOE project stipulates the software to be released as OSS. If Program has neither consented nor objected to the assertion of copyright within two weeks of such written notification, the Contractor may assert copyright in the software. If notification of a funding DOE Program(s) is not practicable or DOE Program(s) has objected, the Contractor shall consult with Patent Counsel, which may provide approval. For software developed under a CRADA, Strategic Partnership Projects (SPP), User Facility Agreement, or Agreement for Commercializing Technology (ACT), authorization from the partner of such agreement shall be additionally obtained for OSS release unless such agreement has a provision providing for such copyright assertion.
(ii) If the software is developed with funding from a federal government agency or agencies (funding source(s)) other than DOE, then authorization from all the funding agency(ies) shall be obtained for OSS release, if practicable. Such federal government agency(ies) may provide blanket approval for all software developed with funding from that agency(ies). However, OSS release of any one of such software shall be subject to approval by all other funding sources for the software, if any. If approval from such federal government agency(ies) is not practicable, the Patent Counsel may provide approval instead.
(2)
(3)
(4)
(5)
(6)
(i) A disclaimer or equivalent that disclaims the Government's and Contractor's liability for licensees' and third parties' use of the software; and
(ii) A grant of permission for licensee to distribute OSS containing the licensee's derivative works. This provision may allow the licensee and third parties to commercialize their derivative works or might request that the licensee's derivative works be forwarded to the Contractor for incorporation into future OSS versions.
(7)
(8)
(9)
(g)
(2) It is the responsibility of the Contractor to obtain from its subcontractors technical data and computer software and rights therein, on behalf of the Government, necessary to fulfill the Contractor's obligations to the Government with respect to such data. In the event of refusal by a subcontractor to accept a clause affording the Government such rights, the Contractor shall:
(i) Promptly submit written notice to the contracting officer setting forth reasons or the subcontractor's refusal and other pertinent information which may expedite disposition of the matter, and
(ii) Not proceed with the subcontract without the written authorization of the contracting officer.
(3) Neither the Contractor nor higher-tier subcontractors shall use their power to award subcontracts as economic leverage to acquire rights in a subcontractor's limited rights data and restricted computer software for their private use.
(h)
These data contain “limited rights data,” furnished under Contract No. ___ with the United States Department of Energy which may be duplicated and used by the Government with the express limitations that the “limited rights data” may not be disclosed outside the Government or be used for purposes of manufacture without prior permission of the Contractor, except that further disclosure or use may be made solely for the following purposes:
(a) Use (except for manufacture) by support services contractors within the scope of their contracts;
(b) This “limited rights data” may be disclosed for evaluation purposes under the restriction that the “limited rights data” be retained in confidence and not be further disclosed;
(c) This “limited rights data” may be disclosed to other contractors participating in the Government's program of which this Contract is a part for information or use (except for manufacture) in connection with the work performed under their contracts and under the restriction that the “limited rights data” be retained in confidence and not be further disclosed;
(d) This “limited rights data” may be used by the Government or others on its behalf for emergency repair or overhaul work under the restriction that the “limited rights data” be retained in confidence and not be further disclosed; and
(e) Release to a foreign government, or instrumentality thereof, as the interests of the United States Government may require, for information or evaluation, or for emergency repair or overhaul work by such government.
This Notice shall be marked on any reproduction of this data in whole or in part.
(i)
(a) This computer software is submitted with restricted rights under Department of Energy Contract No. ___. It may not be used, reproduced, or disclosed by the Government except as provided in paragraph (b) of this notice.
(b) This computer software may be:
(1) Used or copied for use in or with the computer or computers for which it was acquired, including use at any Government installation to which such computer or computers may be transferred;
(2) Used, copied for use, in a backup or replacement computer if any computer for which it was acquired is inoperative or is replaced;
(3) Reproduced for safekeeping (archives) or backup purposes;
(4) Modified, adapted, or combined with other computer software, provided that only the portions of the derivative software consisting of the restricted computer software are to be made subject to the same restricted rights; and
(5) Disclosed to and reproduced for use by contractors under a service contract (of the type defined in 48 CFR 37.101) in accordance with subparagraphs (b)(1) through (4) of this Notice, provided the Government makes such disclosure or reproduction subject to these restricted rights.
(c) Notwithstanding the foregoing, if this computer software has been published under copyright, it is licensed to the Government, without disclosure prohibitions, with the rights set forth in the restricted rights notice above.
(d) This Notice shall be marked on any reproduction of this computer software, in whole or in part.
(2) Where it is impractical to include the Restricted Rights Notice on restricted computer software, the following short-form Notice may be used in lieu thereof:
Use, reproduction, or disclosure is subject to restrictions set forth in the Long Form Notice of DOE Contract No. ___ with (name of Contractor).
(3) If the software is embedded, or if it is commercially impractical to mark it with human readable text, then the symbol R and the clause date (mo/yr) in brackets or a box, a [R-mo/yr], may be used. This will be read to mean restricted computer software, subject to the rights of the Government as described in the Long Form Notice, in effect as of the date indicated next to the symbol. The symbol shall not be used to mark human readable material. In the event this Contract contains any variation to the rights in the Long Form Notice, then the contract number must also be cited.
(4) If restricted computer software is delivered with the copyright notice of 17 U.S.C. 401, the software will be presumed to be published copyrighted computer software licensed to the Government without disclosure prohibitions and with unlimited rights, unless the Contractor includes the following statement with such copyright notice “Unpublished-rights reserved under the Copyright Laws of the United States.”
(j)
(f) This “limited rights data” may be disclosed in future solicitations for the continuation or completion of the work contemplated under this contract under the restriction that the “limited rights data” be retained in confidence and not be further disclosed.
As prescribed in 970.2770-4(a), insert the following clause:
This clause has as its purpose implementation of the National Competitiveness Technology Transfer Act of 1989 (sections 3131, 3132, 3133, and 3157 of Public Law 101-189 and as amended by Public Law 103-160, sections 3134 and 3160). The Contractor shall conduct technology transfer activities with a purpose of providing benefit from Federal research to U.S. industrial competitiveness.
(a)
(2) In pursuing the technology transfer mission, the Contractor is authorized to conduct activities including but not limited to: identifying and protecting Intellectual Property made, created or acquired at or by the Laboratory; negotiating licensing agreements and assignments for Intellectual Property
(3)
(b)
(1) Are provided to permit replication, reproduction, evaluation or confirmation of the research effort, or to evaluate its potential commercial utility;
(2) Are not materials generally commercially available; and
(3) Were made under this contract by Laboratory employees or through the use of Laboratory research facilities.
(1) Ensure that the Contractor and the cognizant Contracting Officer (CO) have a common understanding of the work to be performed;
(2) Allow DOE to make all reviews, approvals, determinations, and certifications required pursuant to relevant DOE Orders and policy; and
(3) Enable the CO and the Contractor to agree that the work is suitable for special processing as the subject of Strategic Partnership Project (SPP) agreements or Cooperative Research and Development Agreements (CRADAs) for non-Federal sponsors.
(c)
(2) The Contractor's participation in litigation to enforce or defend Intellectual Property claims incurred in its technology transfer efforts shall be as provided in the clause entitled “Insurance—Litigation and Claims” of this contract.
(d)
(1) Inform employees of and require conformance with standards of conduct and integrity in connection with research involving non-federal sponsors in accordance with the provisions of paragraph (n)(5) of this clause;
(2) Review and approve employee activities so as to avoid conflicts of interest arising from commercial utilization activities relating to Contractor-developed Intellectual Property;
(3) Conduct work performed using royalties so as to avoid interference with or adverse effects on ongoing DOE projects and programs;
(4) Conduct activities relating to commercial utilization of Contractor-developed Intellectual Property so as to avoid interference with or adverse effects on user facility or SPP activities of the Contractor;
(5) Conduct DOE-funded projects and programs so as to avoid the appearance of conflicts of interest or actual conflicts of interest with non-Government funded work;
(6) Notify the contracting officer with respect to any new work to be performed or proposed to be performed under the Contract for DOE or other Federal agencies where the new work or proposal involves Intellectual Property in which the Contractor has obtained or intends to request or elect title;
(7) Except as provided elsewhere in this Contract, obtain the approval of the contracting officer for any licensing of or assignment of title to Intellectual Property rights by the Contractor to any business or corporate affiliate of the Contractor;
(8) Obtain the approval of the contracting officer prior to any assignment, exclusive licensing, or option for exclusive licensing, of Intellectual Property to any individual who is a current or has been a Laboratory employee within the previous two years or to the company in which the individual is a principal and the Contractor's request should include notice of any SPP, CRADA and/or ACT associated with the Intellectual Property;
(9) Notify non-Federal sponsors of SPP activities of any relevant Intellectual Property interest of the Contractor prior to execution of SPP; and
(10) Notify the Contracting Officer and DOE funding program prior to evaluating a proposal from a third party for DOE, when:
(i) The evaluator is an inventor of a Contractor invention that is the subject matter of the proposal; or
(ii) The evaluator is a principal or has financial interest in the third party; or
(iii) The third party is a licensee of the Contractor.
(e)
(f)
(i) Whether any resulting design and development will be performed in the United States and whether resulting products, embodying parts, including components thereof, will be substantially manufactured in the United States; or
(ii)(A) Whether the proposed licensee or assignee has a business unit located in the United States and whether significant economic and technical benefits will flow to the United States as a result of the license or assignment agreement; and
(B) In licensing or assigning any entity subject to the control of a foreign company or government, whether such foreign government permits United States agencies, organizations or other persons to enter into cooperative research and development agreements and licensing agreements and has policies to protect United States Intellectual Property rights.
(C) If the proposed licensee, assignee, or parent of either type of entity is subject to the control of a foreign company or government, the Contractor, with the assistance of the Contracting Officer, in considering the factors set forth in paragraph (f)(1)(ii)(B) of this clause, may rely upon the following information—
(
(
(
(D)(
(
(
(
(g)
(h)
(2) The Contractor shall include as a part of its annual Laboratory Institutional Plan or other such annual document a plan setting out those uses to which royalties and other income received as a result of performance of authorized technology transfer activities herein will be applied at the Laboratory, and at the end of the year, provide a separate accounting for how the funds were actually used. Under no circumstances shall these royalties and income be used for any purpose inconsistent with DOE mission direction.
(3) The Contractor shall establish subject to the approval of the contracting officer a policy for making awards or sharing of royalties with Contractor employees, other coinventors and coauthors, including Federal employee coinventors when deemed appropriate by the contracting officer. The Contractor shall notify the contracting officer of any changes to that policy, and such changes, shall be subject to the approval of the contracting officer.
(i)
(j)
(2) The Contractor shall include in all of its technology transfer agreements with third parties, including, but not limited to, CRADAs, licensing agreements and assignments, notice to such third parties that the export of goods and/or Technical Data from the United States may require some form of export control license or other authority from the U.S. Government and that failure to obtain such export control license may result in criminal liability under U.S. laws.
(3) For other than fundamental research as defined in National Security Decision Directive 189, the Contractor is responsible to conduct internal export control reviews and assure that technology is transferred in accordance with applicable law.
(k)
(l)
(m)
(n)
(1)
(ii) The Contractor shall also include (specific to the proposed CRADA) a statement of compliance with the Fairness of Opportunity requirements of paragraph (e) of this clause.
(iii) Within thirty (30) days after submission of a JWS, MSW or proposed CRADA, the contracting officer shall approve, disapprove or request modification to the JWS, MSW or CRADA. The contracting officer shall provide a written explanation to the Contractor's Laboratory Director or designee of any disapproval or requirement for modification of a JWS or proposed CRADA.
(iv) Except as otherwise directed in writing by the contracting officer, the Contractor shall not enter into, or begin work under, a CRADA until approval of the CRADA or relevant MSW has been granted by the contracting officer. The Contractor may submit its proposed CRADA to the contracting officer at the time of submitting its proposed JWS, relevant MSW or any time thereafter.
(2)
(i) Give special consideration to small business firms, and consortia involving small business firms;
(ii) Give preference to business units located in the United States which agree that products or processes embodying Intellectual Property will be substantially manufactured or practiced in the United States and, in the case of any industrial organization or other person subject to the control of a foreign company or government, take into consideration whether or not such foreign government permits United States agencies, organizations, or other persons to enter into cooperative research and development agreements and licensing agreements. The Contractor, in considering these factors, may rely upon the information and same sources as referenced in paragraphs (f)(1)(ii)(C) and (D) of this clause;
(iii) Provide Fairness of Opportunity in accordance with the requirements of paragraph (e) of this clause; and
(iv) Give consideration to the Conflicts of Interest requirements of paragraph (d) of this clause.
(3)
(ii) Unless otherwise expressly approved by the contracting officer in advance for a specific CRADA, the Contractor agrees, at the request of the contracting officer, to transmit such data to other DOE facilities for use by DOE or its Contractors by or on behalf of the Government. When data protected pursuant to paragraph (n)(3)(i) of this clause is so transferred, the Contractor shall clearly mark the data with a legend setting out the restrictions against private use and further dissemination, along with the expiration date of such restrictions.
(iii) A final technical report, upon completion of a CRADA, shall be provided to DOE's Office of Scientific and Technical Information; reports marked as Protected CRADA Information will not be released to the public for a period in accordance with the terms of the CRADA.
(iv) In addition to its authority to license Intellectual Property, the Contractor may enter into licensing agreements with third parties for data developed by the Contractor under a CRADA subject to other provisions of this Contract. However, the Contractor shall neither use the protection against dissemination nor the licensing of data as an alternative to the submittal of invention disclosures which include data protected pursuant to paragraph (n)(3)(i) of this clause.
(4)
(ii) Where the Contractor believes that the transfer of technology to the U.S. domestic economy will benefit from, or other equity considerations dictate, an arrangement other than the Class Waiver of patent rights to the sponsor in SPP, ACT and UFAs, a request may be made to the contracting officer for an exception to the Class Waivers.
(iii) Rights to inventions made under agreements other than funding agreements with third parties shall be governed by the appropriate provisions incorporated, with DOE approval, in such agreements, and the provisions in such agreements take precedence over any disposition of rights contained in this Contract. Disposition of rights under any such agreement shall be in accordance with any DOE class waiver (including SPP, ACT and User Class Waivers) or individually negotiated waiver which applies to the agreement.
(5)
(A) Such employee, or the spouse, child, parent, sibling, or partner of such employee, or an organization (other than the Contractor) in which such employee serves as an officer, director, trustee, partner, or employee—
(
(
(B) A financial interest in any entity, other than the Contractor, that has a substantial interest in the entity of the CRADA, is held by any person or organization with whom such employee is negotiating or has any arrangement concerning prospective employment.
(ii) The Contractor shall require that each employee of the Contractor who has a substantial role (including an advisory role) in the negotiation, approval or performance of the CRADA certify through the Contractor to the contracting officer that the circumstances described in paragraph (n)(5)(i) of this clause do not apply to that employee.
(iii) The requirements of paragraphs (n)(5)(i) and (ii) of this clause shall not apply in a case where the contracting officer is advised by the Contractor in advance of the participation of an employee described in those paragraphs of the nature of and extent of any financial interest described in paragraph (n)(5)(i) of this clause, and the contracting officer determines that such financial interest is not so substantial as to be considered likely to affect the integrity of the Contractor employee's participation in the process of negotiation, approval or performance of the CRADA.
(o)
(p)
(2) The Ombudsman shall be a senior official of the Contactor's laboratory staff, who is not involved in day-to-day technology partnerships, patents or technology licensing, or, if appointed from outside the laboratory or facility, shall function as such senior official.
(3) The duties of the Technology Partnership Ombudsman shall include:
(i) Serving as the focal point for assisting the public and industry in resolving complaints and disputes with the laboratory or facility regarding technology partnerships, patents, and technology licensing;
(ii) Promoting the use of collaborative alternative dispute resolution techniques such as mediation to facilitate the speedy and low cost resolution of complaints and disputes, when appropriate; and
(iii) Submitting a quarterly report, in a format provided by DOE, to the Director of the DOE Office of Dispute Resolution, and the Contracting Officer concerning the number and nature of complaints and disputes raised, along with the Ombudsman's assessment of their resolution, consistent with the protection of confidential and sensitive information.
(q) Nothing in paragraphs (c) Allowable Costs, (e) Fairness of Opportunity, (f) U.S. Industrial Competitiveness, (g) Indemnity—Product Liability, (h) Disposition of Income, and (i) Transfer to Successor Contractor of this clause are intended to apply to the contractor's privately funded technology transfer activities if such privately funded activities are addressed elsewhere in the contract.
Insert the following clause in solicitations and contracts in accordance with 970.2702-1:
(c)(1) The Contractor agrees to include, and require inclusion of, the Authorization and Consent clause at 48 CFR 52.227-1, without Alternate 1, but suitably modified to identify the parties, in all subcontracts expected to exceed the simplified acquisition threshold at any tier for supplies or services, including construction, architect-engineer services, and materials, supplies, models, samples, and design or testing services.
(2) The Contractor agrees to include, and require inclusion of, paragraph (a) of this Authorization and Consent clause, suitably modified to identify the parties, in all subcontracts at any tier for research and development activities expected to exceed the simplified acquisition threshold.
(3) Omission of an authorization and consent clause from any subcontract, including those valued less than the simplified acquisition threshold does not affect this authorization and consent.
The revisions read as follows:
Insert the following clause in solicitations and contracts in accordance with 970.2702-2:
As prescribed in 970.2703-2(a), insert the following clause:
(a)
(b)
(2)
(3)
(i) Inventions within or relating to the following fields of technology are exceptional circumstance subject inventions in which the Contractor cannot retain title without specific grant of a waiver from DOE:
(A) Uranium enrichment technology;
(B) Storage and disposal of civilian high-level nuclear waste and spent fuel technology; and
(C) National security technologies classified or sensitive under section 148 of the Atomic Energy Act (42 U.S.C. 2168); and
(D) DOE Steel Initiative and Metals Initiative.
(ii) As determined by the DOE, inventions made under any agreement, contract or subcontract related to the exceptional circumstance subject inventions subject to specific terms outlined in those declarations of exceptional circumstance, the Contractor may take title to these inventions consistent with the terms of the contract. A complete list of declarations of exceptional circumstance, which is maintained by the Office of the Assistant General Counsel for Technology Transfer and Intellectual Property, include but is not limited to the following—
(A) U.S. Advanced Battery Consortium;
(B) Any funding agreement which is funded in part by the Electric Power Research Institute (EPRI) or the Gas Research Institute (GRI);
(C) Any funding agreement related to Energy Efficiency, Storage, Integration and Related Technologies, Renewable Energy, and Advanced Energy Technologies which is funded by the Office of Energy Efficiency and Renewable Energy (EERE) or the Advanced Research Projects Agency—Energy (ARPA-E);
(D) Solid State Energy Conversion Alliance (SECA), if the Contractor is a participant in the “Core Technology Program”;
(E) Solid State Lighting (SSL) Program, if the Contractor is a participant in the “Core Technology Program.”
(F) Cybersecurity, Energy Security, and Emergency Response;
(G) Quantum Information Science Technologies; and
(H) Domestic Manufacture of DOE Science and Energy Technologies (S&E DEC).
(iii) Inventions subject to “Department of Energy Determination of Exceptional Circumstances under the Bayh-Dole Act to Further Promote Domestic Manufacture of DOE Science and Energy Technologies” (S&E DEC) issued June 7, 2021, must comply with paragraph (t) U.S. Competitiveness requirements to the maximum extent authorized by the S&E DEC unless otherwise directed by DOE Patent Counsel in writing.
(iv) DOE reserves the right to unilaterally amend this contract to modify, by deletion or insertion, technical fields, tasks, or other classifications for the purpose of determining DOE exceptional circumstance subject inventions.
(4)
(5)
(6)
(c)
(2)
(3)
(4)
(5)
(6)
(d)
(1) If the Contractor fails to disclose or elect title to the subject invention within the times specified in paragraph (c) of this clause, or elects not to retain title.
(2) In those countries in which the Contractor fails to file a patent application within the times specified in paragraph (c) of this clause; provided, however, that if the Contractor has filed a patent application in a country after the times specified in paragraph (c), but prior to its receipt of the written request of the DOE, the Contractor shall continue to retain title in that country.
(3) In any country in which the Contractor decides not to continue the prosecution of any application for, to pay the maintenance fees on, or defend
(4) If the Contractor requests that DOE acquire title or rights from the Contractor in a subject invention to which the Contractor had initially retained title or rights, or in an exceptional circumstance subject invention to which the Contractor was granted greater rights, DOE may acquire such title or rights from the Contractor, or DOE may decide against acquiring such title or rights from the Contractor, at DOE's sole discretion.
(5) Upon a breach of paragraph (t) U.S. Competitiveness of this clause.
(e)
(2)
(3)
(f)
(i) Establish or confirm the rights the Government has throughout the world in those subject inventions to which the Contractor elects to retain title; and
(ii) Convey title to DOE when requested under subparagraphs (b) or paragraph (d) of this clause and to enable the Government to obtain patent protection throughout the world in that subject invention.
(2)
(3)
(4)
(5)
(6)
(i) The filing date, serial number, title, and a copy of the patent application (including an English-language version if filed in a language other than English);
(ii) An executed and approved instrument fully confirmatory of all Government rights in the subject invention; and
(iii) The patent number, issue date, and a copy of any issued patent claiming the subject invention.
(7)
(g)
(2)
(3)
(4)
(5)
(6)
(7)
(h)
(i)
(j)
(k)
(1)
(2)
(3)
(l)
(m)
(2)
(n)
(2)
(3)
(4)
(o)
(1) To practice or have practiced by or for the Government at the facility; and
(2) To transfer such license with the transfer of that facility. Notwithstanding the acceptance or exercise by the Government of these rights, the Government may contest at any time the enforceability, validity or scope of, or title to, any rights or patents herein licensed.
(p)
(2)
(q)
(2)
(3)
(r)
(s)
(t) U.S. Competitiveness. Notwithstanding 48 CFR 970.5227-3(f), U.S. Industrial Competitiveness, for all work subject to the S&E DEC, the Contractor agrees that any products embodying any subject invention or produced through the use of any subject invention will be manufactured substantially in the United States unless the Contractor can show to the satisfaction of DOE that it is not commercially feasible. In the event DOE agrees to foreign manufacture, there will be a requirement that the Government's support of the technology be recognized in some appropriate manner,
(1) Undergo a change in ownership amounting to a controlling interest; or
(2) Sell, assign, or otherwise transfer title or exclusive rights in the invention(s), then the assignment, license, or other transfer of rights in the subject invention(s) is/are suspended until approved in writing by DOE. The Contractor and any successor assignee will convey to DOE, upon written request from DOE, title to any subject invention, upon a breach of this paragraph. The Contractor will include this paragraph in all subawards/contracts, regardless of tier, for experimental, developmental or research work.
(u)
(v)
(a)
(b)
The revisions and addition read as follows:
As prescribed in 970.2702-2(b), insert the following clause:
(a)
(c) * * *
(2)
(vii) All sources of funding by Budget and Resources (B&R) code. The funding program may require other invention identifiers such as related award numbers or funding opportunity announcement numbers; and
(5)
(f) * * *
(3)
(o)
As prescribed in 970.2703-2(c), insert the following clause:
(a)
(b)
(2)
(3)
(4)
(5)
(6)
(i) Inventions within or relating to the following fields of technology are exceptional circumstance subject inventions in which the Contractor cannot retain title without specific grant of a waiver from DOE:
(A) Uranium enrichment technology;
(B) Storage and disposal of civilian high-level nuclear waste and spent fuel technology; and
(C) National security technologies classified or sensitive under section 148 of the Atomic Energy Act (42 U.S.C. 2168); and
(D) DOE Steel Initiative and Metals Initiative.
(ii) As determined by the DOE, inventions made under any agreement, contract or subcontract related to the exceptional circumstance subject inventions subject to specific terms outlined in those declarations of exceptional circumstance, the Contractor may take title to these inventions consistent with the terms of this contract. A complete list of declarations of exceptional circumstance, which is maintained by the Office of the Assistant General Counsel for Technology Transfer and Intellectual Property, include but is not limited to the following—
(A) U.S. Advanced Battery Consortium;
(B) Any funding agreement which is funded in part by the Electric Power Research Institute (EPRI) or the Gas Research Institute (GRI);
(C) Any funding agreement related to Energy Efficiency, Storage, Integration and Related Technologies, Renewable Energy, and Advanced Energy Technologies which is funded by the Office of Energy Efficiency and Renewable Energy (EERE) or the Advanced Research Projects Agency—Energy (ARPA-E);
(D) Solid State Energy Conversion Alliance (SECA), if the Contractor is a participant in the “Core Technology Program”;
(E) Solid State Lighting (SSL) Program, if the Contractor is a participant in the “Core Technology Program.”
(F) Cybersecurity, Energy Security, and Emergency Response;
(G) Quantum Information Science Technologies; and
(H) Domestic Manufacture of DOE Science and Energy Technologies (S&E DEC).
(iii) Inventions subject to “Department of Energy Determination of Exceptional Circumstances under the Bayh-Dole Act to Further Promote Domestic Manufacture of DOE Science and Energy Technologies” (S&E DEC) issued 6/7/2021 must comply with paragraph (t) U.S. Competitiveness requirements to the maximum extent authorized by the S&E DEC unless otherwise directed by DOE Patent Counsel in writing.
(iv) Exceptional circumstances subject inventions are as set forth in the applicable patent waiver. In addition, DOE reserves the right to unilaterally amend this contract to modify, by deletion or insertion, technical fields, programs, initiatives, and/or other classifications for the purpose of defining DOE exceptional circumstance subject inventions.
(7)
(8)
(9)
(c)
(i) The contract number under which the subject invention was made;
(ii) The inventor(s) of the subject invention;
(iii) A description of the subject invention in sufficient technical detail to convey a clear understanding of the nature, purpose and operation of the subject invention, and of the physical, chemical, biological or electrical characteristics of the subject invention, to the extent known by the Contractor at the time of the disclosure;
(iv) The date and identification of any publication, on sale or public use of the invention;
(v) The date and identification of any submissions for publication of any manuscripts describing the invention, and a statement of whether the manuscript is accepted for publication, to the extent known by the Contractor at the time of the disclosure;
(vi) A statement indicating whether the subject invention is an exceptional circumstance subject invention, related to national security, or subject to a treaty or an international agreement, to the extent known or believed by Contractor at the time of the disclosure;
(vii) All sources of funding by Budget and Resources (B&R) code. The funding program may require other invention identifiers such as related award numbers or funding opportunity announcement numbers; and
(viii) The identification of any agreement relating to the subject invention, including Cooperative Research and Development Agreements and Strategic Partnership Projects agreements.
Unless the Contractor contends otherwise in writing at the time the invention is disclosed, inventions
(2)
(3)
(4)
(5)
(i) The filing date, serial number, title, and a copy of the patent application (including an English-language version if filed in a language other than English);
(ii) An executed and approved instrument fully confirmatory of all Government rights in the subject invention; and
(iii) The patent number, issue date, and a copy of any issued patent claiming the subject invention.
(6)
(7)
(8)
(d)
(2)
(3)
(4)
(5)
(6) Upon a breach of paragraph (t) U.S. Competitiveness of this clause.
(e)
(2)
(3)
(4)
(f)
(i) Establish or confirm the Government's rights throughout the world in subject inventions to which the Contractor elects to retain title;
(ii) Convey title in a subject invention to DOE pursuant to subparagraph (b)(5) and paragraph (d) of this clause; or
(iii) Enable the Government to obtain patent protection throughout the world in a subject invention to which the Government has title.
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(g)
(2)
(3)
(4)
(5) Subcontractor refusal to accept terms of patent rights clause. If a prospective subcontractor refuses to accept the terms of a patent rights clause, the Contractor shall promptly submit a written notice to the Contracting Officer stating the subcontractor's reasons for such refusal and including relevant information for expediting disposition of the matter; and the Contractor shall not proceed with the subcontract without the written authorization of the Contracting Officer.
(6)
(7)
(h)
(i)
(j)
(k)
(l)
(2)
(m)
(1) To practice or have practiced by or for the Government at the facility; and
(2) To transfer such license with the transfer of that facility. Notwithstanding the acceptance or exercise by the Government of these rights, the Government may contest at any time the enforceability, validity or scope of, or title to, any rights or patents herein licensed.
(n)
(2)
(o)
(2)
(3)
(p)
(2)
(3)
(4)
(q)
(r)
(s)
(t)
(u)
(v)
(w)
(a)
(b)
As prescribed in 970.3270(a)(1), insert the following clause:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(1) Compliance by the Contractor with DOE's patent clearance requirements; and
(2) The furnishing by the Contractor of—
(i) An assignment of the Contractor's rights to any refunds, rebates, allowances, accounts receivable, collections accruing to the Contractor in connection with the work under this contract, or other credits applicable to allowable costs under the contract;
(ii) A closing financial statement;
(iii) The accounting for Government-owned property required by the clause entitled “Property”; and
(iv) A release discharging the Government, its officers, agents, and employees from all liabilities, obligations, and claims arising out of or under this contract subject only to the following exceptions—
(A) Specified claims in stated amounts or in estimated amounts where the amounts are not susceptible to exact statement by the Contractor;
(B) Claims, together with reasonable expenses incidental thereto, based upon liabilities of the Contractor to third parties arising out of the performance of this contract; provided that such claims are not known to the Contractor on the date of the execution of the release; and provided further that the Contractor gives notice of such claims in writing to the Contracting Officer promptly, but not more than one (1) year after the Contractor's right of action first accrues.
(C) Claims for reimbursement of costs (other than expenses of the Contractor by reason of any indemnification of the Government against patent liability), including reasonable expenses incidental thereto, incurred by the Contractor under the provisions of this contract relating to patents; and
(D) Claims recognizable under the clause entitled, Nuclear Hazards Indemnity Agreement.
(3) In arriving at the amount due the Contractor under this clause, there shall be deducted—
(i) Any claim which the Government may have against the Contractor in connection with this contract; and
(ii) Deductions due under the terms of this contract and not otherwise recovered by or credited to the Government. The unliquidated balance of the special financial institution account may be applied to the amount due, and any balance shall be returned to the Government forthwith.
(h)
(i)
(j)
(k)
(l)
(a)
(2)
(k)
(a)
(c)
(h) * * *
(1) The Comptroller General of the United States, or an authorized representative, shall have access to and the right to examine any of the contractor's or subcontractor's directly pertinent records involving transactions related to this contract or a subcontract hereunder and to interview any employee regarding such transactions.
As prescribed in 970.3270(a)(4), insert the following clause:
As prescribed in 970.3270(a)(5), insert the following clause:
As prescribed in 970.3270(b)(1), insert the following clause:
(a) The Contractor shall maintain and administer a financial management system that is suitable to provide proper accounting in accordance with DOE requirements. In addition, the Contractor shall maintain and administer a financial management system that is in accordance with Generally Accepted Accounting Principles (GAAP) for Federal entities, as defined by the Federal Accounting Standards Advisory Board and implemented by the DOE Financial Management Handbook and other implementing policies. The financial system will also permit the proper allocation of costs to separately funded activities consistent with Cost Accounting Standards (CAS), as defined by 48 CFR part 9900 and any implementing DOE policies, and ensures that accountability for the assets can be maintained.
(b) The Contractor shall submit to the Contracting Officer for written approval an annual plan for new financial management systems and/or subsystems and major enhancements and/or upgrades to the currently existing financial systems and/or subsystems. The Contractor shall notify DOE thirty (30) days in advance of any planned implementation of any substantial changes to the plan and, as requested by the Contracting Officer, shall submit any such changes to the Contracting Officer for written approval before implementation.
(c) Unless otherwise provided by the contract, the Contractor may accept work from a nonsponsor (as defined in 48 CFR 35.017) in accordance with the requirements and limitations of 48 CFR 970.3501, and the clause at 48 CFR 970.5217-1, Strategic Partnership Projects Program. Only the Contracting Officer can place work on the contract; and obligate the Government to reimburse the contractor for the work.
(d) As an FFRDC, the Contractor shall not use its privileged information or access to government facilities to compete with the private sector. Specific guidance on restricted activities is contained in DOE Order 481.1, Strategic Partnership Projects (Non-Department of Energy Funded Work)), or its successor version.
(a)
(c)
(e)
(i) Periodic post-award audit—or a sufficient amount of audit work (that the Contractor's auditor or the Contracting Officer agrees is sufficient)—to provide reasonable assurance that all claimed subcontract costs are allowable for: flexibly priced subcontracts at all tiers; and the flexibly priced elements in any subcontracts at all tiers (“flexibly priced” subcontracts and elements include Cost-Reimbursement subcontracts, Time-and-Materials subcontracts, cost-reimbursement elements in Fixed-Priced contracts, etc.); and
(ii) Audits, where necessary, to provide a valid basis for pre-award or cost or price analysis.
(2) Responsibility for determining the costs allowable under each cost-reimbursement subcontract remains with the contractor or next higher-tier subcontractor. The Contractor shall provide, in appropriate cases, for the timely joint involvement of the Contractor and the DOE Contracting Officer in resolution of subcontract cost allowability. In no case, however, shall the Contractor's subcontract audit arrangements preclude the Contracting Officer's determination of the allowability or unallowability of the subcontract costs the Contractor claims for reimbursement.
(3) Where audits of subcontractors at any tier are required, the Contractor shall consult with the DOE Contracting Officer on the best approach for obtaining an audit; this may involve employing external auditors. The Contractor shall interact with the cognizant Federal agency in a manner appropriate to the magnitude and nature of the subcontracted work. In no case, however, shall subcontractor auditing arrangements preclude determination by the DOE Contracting Officer of the allowability or unallowability of subcontractor costs claimed for reimbursement by the Contractor.
(4) Allowable costs for cost reimbursable subcontracts are to be determined in accordance with the cost principles of 48 CFR part 31, appropriate for the type of organization to which the subcontract is to be awarded, as supplemented by 48 CFR part 931. Allowable costs in the purchase or transfer from contractor-affiliated sources shall be determined in accordance with 48 CFR 970.4402-3 and 31.205-26(e).
(f)
(2) For fixed-price, unit-priced and cost reimbursement construction subcontracts in excess of $150,000, a payment bond shall be obtained on Standard Form 25A modified to name the Contractor as well as the United States of America as obligees. The amounts shall be determined in accordance with 48 CFR 28.102-2(b).
(3) For fixed-price, unit-priced and cost-reimbursement construction subcontracts greater than $35,000, but not greater than $150,000, the Contractor shall select two or more of the payment protections at 48 CFR 28.102-1(b), giving particular consideration to the inclusion of an irrevocable letter of credit as one of the selected alternatives.
(4) A subcontractor may have more than one acceptable surety in both construction and other subcontracts, provided that in no case will the liability of any one surety exceed the maximum sum for which it is qualified for any one obligation. For subcontracts other than construction, a co-surety (two or more sureties together) may reinsure amounts in excess of their individual capacity, with each surety having the required underwriting capacity that appears on the list of acceptable corporate sureties.
(h) * * *
(1)
(l)
(w)
(x)
(1) Construction Wage Rate requirements, formerly known as Davis-Bacon, clauses prescribed in 48 CFR 22.407.
(2) Foreign Travel clause prescribed in 48 CFR 952.247-70.
(3) Counterintelligence clause prescribed in 48 CFR 904.404(d)(7).
(4) Service Contract Labor Standards, formerly known as Service Contract Act, clauses prescribed in 48 CFR 22.1006.
(5) State and local taxes clause prescribed in 48 CFR 970.2904-1.
(6) Cost or pricing data clauses prescribed in 48 CFR 970.1504-2-1.
(7) Workforce Restructuring and Displaced Employee Hiring Preference clause prescribed in 48 CFR 970.2672-3.
(8) Service Contract Reporting clause prescribed in 48 CFR 4.1705.
(9) Contract Work Hours and Safety Standards—Overtime Compensation as prescribed in 48 CFR 22.305.
(10) Paid Sick leave under Executive Order 13706 as prescribed in 48 CFR 22.2110.
(11) Collective Bargaining Agreements Management and Operating Contracts as prescribed in 48 CFR 970.2201-1-3.
(12) Workplace Substance Abuse Programs at DOE Sites as prescribed in 48 CFR 970.2305-4.
(13) Contracts for Materials, Supplies, Articles, and Equipment clause prescribed in 48 CFR 22.610.
As prescribed in 970.4501-2, insert the following clause:
(a)
(b)
(c)
(1) Issuance for use of such property in the performance of this contract; or
(2) Commencement of processing or use of such property in the performance of this contract; or
(3) Reimbursement of the cost thereof by the Government, whichever first occurs. Property furnished by the Government and property purchased or furnished by the Contractor, title to which vests in the Government, under this paragraph are hereinafter referred to as Government property. Title to Government property shall not be affected by the incorporation of the property into or the attachment of it to any property not owned by the Government, nor shall such Government property or any part thereof, be or become a fixture or lose its identity as personal property by reason of affixation to any realty.
(d)
(e)
(f)
(2) In addition, the Contractor shall ensure that adequate safeguards are in place, and adhered to, for the handling, control and disposition of high-risk property and classified materials throughout the life cycle of the property and materials consistent with the policies, practices and procedures for property management contained in the Federal Property Management Regulations (41 CFR chapter 101), the Department of Energy (DOE) Property Management Regulations (41 CFR chapter 109), and other applicable Regulations.
(3) High-risk property is property, the loss, destruction, damage to, or the unintended or premature transfer of which could pose risks to the public, the environment, or the national security interests of the United States. High-risk property includes proliferation sensitive, nuclear related dual use, export controlled, chemically or radioactively contaminated, hazardous, and specially designed and prepared property, including property on the militarily critical technologies list.
(g)
(A) Willful misconduct or lack of good faith on the part of the Contractor's managerial personnel;
(B) Failure of the Contractor's managerial personnel to take all reasonable steps to comply with any appropriate written direction of the Contracting Officer to safeguard such property and classified materials; or
(C) Failure of contractor managerial personnel to establish, administer, or properly maintain an approved property management system in accordance with 41 CFR chapter 109.
(ii) If, after an initial review of the facts, the Contracting Officer informs the Contractor that there is reason to believe that the loss, destruction of, or damage to the government property results from conduct falling within one of the categories set forth above, the burden of proof shall be upon the Contractor to show that the Contractor should not be required to compensate the government for the loss, destruction, or damage.
(2) In the event that the Contractor is determined liable for the loss, destruction or damage to Government property in accordance with this clause, the Contractor's compensation to the Government shall be determined as follows:
(i) For damaged property, the compensation shall be the cost of repairing such damaged property, plus any costs incurred for temporary replacement of the damaged property. However, the value of repair costs shall not exceed the fair market value of the damaged property. If a fair market value of the property does not exist, the Contracting Officer shall determine the value of such property, consistent with all relevant facts and circumstances.
(ii) For destroyed or lost property, the compensation shall be the fair market value of such property at the time of such loss or destruction, plus any costs incurred for temporary replacement and costs associated with the disposition of destroyed property. If a fair market value of the property does not exist, the Contracting Officer shall determine the value of such property, consistent with all relevant facts and circumstances.
(3) The portion of the cost of insurance obtained by the Contractor that is allocable to coverage of risks of loss referred to in this clause is not allowable.
(h)
(1) Shall immediately inform the Contracting Officer of the occasion and extent thereof;
(2) Shall take all reasonable steps to protect the property remaining; and
(3) Shall repair or replace the damaged, destroyed, or lost property in accordance with the written direction of the Contracting Officer. The Contractor shall take no action prejudicial to the
(i)
(j)
(ii) In order for a property management system to be approved, it must provide for—
(A) Comprehensive coverage of property from the requirement identification, through its life cycle, to final disposition;
(B) [Reserved]
(C) Full integration with the Contractor's other administrative and financial systems; and
(D) A method for continuously improving property management practices through the identification of best practices established by “best in class” performers.
(iii) Approval of the Contractor's property management system shall be contingent upon the completion of the baseline inventory as provided in subparagraph (i)(2) of this clause.
(2)
(ii) If the Contractor is succeeding another contractor in the performance of this contract, the Contractor shall conduct a joint reconciliation of the property inventory with the predecessor contractor. The Contractor agrees to participate in a joint reconciliation of the property inventory at the completion of this contract. This information will be used to provide a baseline for the succeeding contract as well as information for closeout of the predecessor contract.
(k) The term “contractor's managerial personnel” as used in this clause means the Contractor's directors, officers and any of its managers, superintendents, or other equivalent representatives who have supervision or direction of—
(1) All or substantially all of the Contractor's business; or
(2) All or substantially all of the Contractor's operations at any one facility or separate location to which this contract is being performed; or
(3) A separate and complete major industrial operation in connection with the performance of this contract; or
(4) A separate and complete major construction, alteration, or repair operation in connection with performance of this contract; or
(5) A separate and discrete major task or operation in connection with the performance of this contract.
(l) The Contractor shall include this clause in all cost reimbursable subcontracts.
(k) The term “contractor's managerial personnel” as used in this clause means the Contractor's directors, officers and any of its managers, superintendents, or other equivalent representatives who have supervision or direction of all or substantially all of—
(1) The Contractor's business; or
(2) The Contractor's operations at any one facility or separate location at which this contract is being performed; or
(3) The Contractor's Government property system and/or a Major System Project as defined in DOE Order 413.3B, or successor version (Version in effect on effective date of contract).