[Federal Register Volume 59, Number 47 (Thursday, March 10, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-5437]


[[Page Unknown]]

[Federal Register: March 10, 1994]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF ENERGY

48 CFR Part 903

RIN 1991-AB10

 

Acquisition Regulation: Procurement Integrity

AGENCY: Department of Energy (DOE).

ACTION: Final rule; technical amendments.

-----------------------------------------------------------------------

SUMMARY: DOE is amending the Department of Energy Acquisition 
Regulation (DEAR) to implement the requirements of the Federal 
Acquisition Regulation (FAR) to identify the individuals responsible 
for concurring in the contracting officer's decision regarding the 
impact of a violation, or possible violation, of the procurement 
integrity requirements occurring during the conduct of a procurement. 
This rule falls under the exceptions stated in the Administrative 
Procedure Act to the proposed rulemaking and public procedure 
requirements. These changes are all technical and administrative in 
nature, and none of them raises substantive issues.

EFFECTIVE DATE: This rule will be effective on May 9, 1994.

FOR FURTHER INFORMATION CONTACT: Kevin M. Smith, Office of Policy (HR-
521.1), Office of Procurement and Assistance Management, U.S. 
Department of Energy, 1000 Independence Avenue, SW., Washington, DC 
20585 (202) 586-8189.

SUPPLEMENTARY INFORMATION:

I. Background.
    A. Discussion
    B. Section-by-Section Analysis
II. Procedural Requirements.
    A. Review Under Executive Order 12866
    B. Review Under Executive Order 12778
    C. Review Under the Regulatory Flexibility Act
    D. Review Under the Paperwork Reduction Act
    E. Review Under Executive Order 12612
    F. National Environmental Policy Act

I. Background

A. Discussion

    DOE is amending the DEAR to implement the requirements of FAR 
3.104-11(a) concerning the identification of the individuals within DOE 
responsible for concurring in the contracting officer's decision 
regarding the impact of a violation, or possible violation, of the 
procurement integrity requirements occurring during the conduct of a 
procurement. The specific amendments to the DEAR are described below.

B. Section-by-Section Analysis

    The procedures contained in FAR 3.104-11(a)(1) require a 
contracting officer who has information concerning any violation, or 
possible violation, of the procurement integrity statute and 
regulations and who concludes that the violation or possible violation 
has no impact on the award of the contract or modification to submit 
this conclusion to an individual within the agency for concurrence. 
Under FAR 3.104-11(a)(2), that individual is also responsible for 
notifying the Head of the Contracting Activity, or his or her designee, 
if that individual does not concur in the contracting officer's 
conclusion with respect to the impact of the violation or possible 
violation. The FAR directs that such an individual be designated in 
accordance with agency procedures.
    Under this rulemaking, Subpart 903.1, entitled ``Safeguards,'' will 
be amended to add a new section 903.104-11(a) to implement FAR 3.104-
11(a) by identifying the responsible individual. Within DOE, except for 
Headquarters activities, the individual designated to perform the 
responsibilities set forth in FAR 3.104-11(a)(1) and (2) is the legal 
counsel assigned direct responsibility for providing legal advice to 
the contracting office making the award of the contract or 
modification. For Headquarters activities, the individual designated to 
perform the responsibilities set forth in FAR 3.104-11(a)(1) and (2) 
concerning questions of disclosure of proprietary or source selection 
information and certification matters is the Assistant General Counsel 
for Procurement and Financial Assistance. The designated individual for 
other questions concerning FAR 3.104-11(a)(1) and (2) for Headquarters 
activities is the Assistant General Counsel for General Law (Designated 
Agency Ethics Official).

II. Procedural Requirements

A. Review Under Executive Order 12866

    The Department of Energy has determined that today's regulatory 
action is not a ``significant regulatory action'' under Executive Order 
12866, ``Regulatory Planning and Review,'' (58 FR 51735, October 4, 
1993). Accordingly, this action was not subject to review under that 
Executive Order by the Office of Information and Regulatory Affairs of 
the Office of Management and Budget (OMB).

B. Review Under Executive Order 12778

    Section 2 of Executive Order 12778 instructs each agency to adhere 
to certain requirements in promulgating new regulations and reviewing 
existing regulations. These requirements, set forth in sections 2(a) 
and 2(b), include eliminating drafting errors and needless ambiguity, 
drafting the regulations to minimize litigation, providing clear and 
certain legal standards for affected conduct, and promoting 
simplification and burden reduction. Agencies are also instructed to 
make every reasonable effort to ensure that the regulation: specifies 
clearly any preemptive effect, effect on existing Federal law or 
regulation, and retroactive effect; describes any administrative 
proceedings to be available prior to judicial review and any provisions 
for the exhaustion of such administrative proceedings; and defines key 
terms. DOE certifies that today's rule meets the requirements of 
sections 2(a) and 2(b) of Executive Order 12778.

C. Review Under the Regulatory Flexibility Act

    This rule was reviewed under the Regulatory Flexibility Act of 
1980, Pub. L. 96-354, which requires preparation of a regulatory 
flexibility analysis for any proposed rule which is likely to have a 
significant economic impact on a substantial number of small entities. 
This rule will have no impact on interest rates, tax policies or 
liabilities, the cost of goods or services, or other direct economic 
factors. It will also not have any indirect economic consequences, such 
as changed construction rates. DOE certifies that this rule will not 
have a significant economic impact on a substantial number of small 
entities and, therefore, no regulatory flexibility analysis has been 
prepared.

D. Review Under the Paperwork Reduction Act

    No new information collection or recordkeeping requirements are 
imposed by this rule. Accordingly, no OMB clearance is required under 
the Paperwork Reduction Act of 1980 (44 U.S.C. 3501, et seq.).

E. Review Under Executive Order 12612

    Executive Order 12612, entitled ``Federalism,'' 52 FR 41685 
(October 30, 1987), requires that regulations, rules, legislation, and 
any other policy actions be reviewed for any substantial direct effects 
on states, on the relationship between the Federal Government and the 
states, or in the distribution of power and responsibilities among 
various levels of government.
    If there are sufficient substantial direct effects, then the 
Executive Order requires preparation of a federalism assessment to be 
used in all decisions involved in promulgating and implementing a 
policy action. This rule will not affect states. It deals with 
relations between Federal agencies.

F. National Environmental Policy Act

    DOE has concluded that this rule would not represent a major 
Federal action having significant impact on the human environment under 
the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321, 
et seq.) (1976) or the Council on Environmental Quality Regulations (40 
CFR parts 1500-1508) and, therefore, does not require an environmental 
impact statement or an environmental assessment pursuant to NEPA.

List of Subjects in 48 CFR Part 903

    Government procurement.

    Issued in Washington, DC on March 2, 1994.
Richard H. Hopf,
Deputy Assistant Secretary for Procurement and Assistance Management.

    For the reasons set out in the preamble, chapter 9 of title 48 of 
the Code of Federal Regulations is amended as set forth below:

PART 903-IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF 
INTEREST

    1. The authority citation for Part 903 continues to read as 
follows:

    Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).

    2. Subpart 903.1, Safeguards, is amended by adding a new section 
903.104-11 to read as follows:


903.104-11  Processing violations or possible violations under 
procurement integrity.

    (a) Except for Headquarters activities, the individual within DOE 
responsible for fulfilling the requirements of (FAR) 48 CFR 3.104-11(a) 
(1) and (2) relative to contracting officer conclusions on the impact 
of a violation or possible violation of the procurement integrity 
requirements shall be the legal counsel assigned direct responsibility 
for providing legal advice to the contracting office making the award 
or selecting the source. The legal counsel is the Chief Counsel for the 
Operations Offices or the Energy Technology Centers; the Counsel, or 
the Chief Counsel, for the Support Offices or the Naval Reactors 
Offices; and the General Counsel for the Power Administrations. For 
Headquarters activities, the individual designated to perform the 
responsibilities in (FAR) 48 CFR 3.104-11(a) (1) and (2) regarding 
questions of disclosure of proprietary or source selection information 
and certification matters is the Assistant General Counsel for 
Procurement and Financial Assistance. The designated individual for 
other questions regarding (FAR) 48 CFR 3.104-11(a) (1) and (2) for 
Headquarters activities is the Assistant General Counsel for General 
Law (Designated Agency Ethics Official).

[FR Doc. 94-5437 Filed 3-9-94; 8:45 am]
BILLING CODE 6450-01-P