[Federal Register Volume 62, Number 11 (Thursday, January 16, 1997)]
[Rules and Regulations]
[Pages 2310-2313]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-938]


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DEPARTMENT OF ENERGY

48 CFR Parts 904, 906, 908, 915, 923, 925, 945, 952, and 970

RIN 1991-AB34


Acquisition Regulation; Technical Amendments

AGENCY: Department of Energy (DOE).

ACTION: Final rule, technical amendments.

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SUMMARY: The Department of Energy (DOE) is amending the Department of 
Energy Acquisition Regulation (DEAR) to perform ``housekeeping'' duties 
such as conforming certain sections of the DEAR to recent Federal 
Acquisition Regulation changes, updating organizational and other 
references, correcting dates in contract clauses, and clarifying 
certain text. These corrections and changes are technical in nature and 
none of them raises substantive issues or represents changes in policy.

EFFECTIVE DATE: This final rule will be effective February 18, 1997.

FOR FURTHER INFORMATION CONTACT: P. Devers Weaver, Office of Policy 
(HR-51), Office of Procurement and Assistance Management, U.S. 
Department of Energy, 1000 Independence Avenue, SW., Washington, DC 
20585-0705, 202-586-8250.

SUPPLEMENTARY INFORMATION:

I. Explanation of Revisions
II. Procedural Requirements
    A. Procedural Determinations
    B. Review Under Executive Order 12612
    C. Review Under Executive Order 12866
    D. Review Under Executive Order 12988
    E. Review Under the National Environmental Policy Act
    F. Review Under the Paperwork Reduction Act
    G. Review Under the Small Business Regulatory Enforcement 
Fairness Act of 1996
    H. Review Under the Unfunded Mandates Reform Act of 1995

I. Explanation of Revisions

    None of the revisions in this rule is substantive. However, readers 
may benefit from an explanation of some of the revisions.
    The authority citations for Parts 925 and 952 have been conformed 
to those used for all other parts of the regulation

[[Page 2311]]

(except for Part 970, which requires a different citation).
    Subpart 904.6, Contract Reporting, is deleted because the approach 
used in the referenced DOE order has been discontinued in conjunction 
with streamlining initiatives of the Department.
    Subsection 906.303-70, Exemption, is removed because it references 
Special Research Contracts which are no longer addressed in the 
regulation.
    Section 915.401 is revised to delete reference to Special Research 
Contracts, now obsolete.
    Subsection 952.202-1, Definitions, is updated to conform the DEAR 
to the Federal Acquisition Regulation (FAR) for this subsection.
    Subsections 952.211-72 and 952.211-73, sections 970.0406, and 
subsection 970.5204-50 are deleted because the approaches used in the 
referenced DOE Directives have been discontinued in conjunction with 
streamlining initiatives of the Department.
    Subsection 970.5204-60 is revised by deleting two paragraphs which 
referenced DOE Directives that are no longer in existence.

II. Procedural Requirements

A. Procedural Determinations

    Pursuant to the Department of Energy Organization Act and the 
Administrative Procedure Act, DOE hereby waives prior notice and 
opportunity for public comment as unnecessary because the regulatory 
amendments are purely technical and largely non-discretionary. 42 
U.S.C. 7191(b)(3), 5 U.S.C. 553(b)(3).

B. 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. DOE has determined that 
this rule will not have a substantial direct effect on the 
institutional interests or traditional functions of States.

C. Review Under Executive Order 12866

    This regulatory action has been determined not to be a 
``significant regulatory action'' under Executive Order 12866, 
``Regulatory Planning and Review,'' (58 FR 51735, October 4, 1993). 
Accordingly, this 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).

D. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on 
Executive agencies the general duty to adhere to the following 
requirements: (1) eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. With regard to the review 
required by section 3(a), section 3(b) of Executive Order 12988 
specifically requires that Executive agencies make every reasonable 
effort to ensure that the regulation: (1) clearly specifies the 
preemptive effect, if any; (2) clearly specifies any effect on existing 
Federal law or regulation; (3) provides a clear legal standard for 
affected conduct while promoting simplification and burden reduction; 
(4) specifies the retroactive effect, if any; (5) adequately defines 
key terms; and (6) addresses other important issues affecting clarity 
and general draftsmanship under any guidelines issued by the 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, 
the regulations meet the relevant standards of Executive Order 12988.

E. Review Under the National Environmental Policy Act

    Pursuant to the Council on Environmental Quality Regulations (40 
CFR 1500-1508), the Department has established guidelines for its 
compliance with the provisions of the National Environmental Policy Act 
(NEPA) of 1969 (42 U.S.C. 4321, et seq.). Pursuant to Appendix A of 
Subpart D of 10 CFR 1021, National Environmental Policy Act 
Implementing Procedures (Categorical Exclusion A6), DOE has determined 
that this rule is categorically excluded from the need to prepare an 
environmental impact statement or environmental assessment.

F. 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.).

G. Review Under Small Business Regulatory Enforcement Fairness Act of 
1996

    As required by 5 U.S.C. 801, DOE will report to Congress 
promulgation of the rule prior to its effective date. 5 U.S.C. 801. The 
report will state that it has been determined that the rule is not a 
``major rule'' as defined by 5 U.S.C. 804(3).

H. Review Under the Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally 
requires a Federal agency to perform a detailed assessment of costs and 
benefits of any rule imposing a Federal Mandate with costs to State, 
local or tribal governments, or to the private sector, of $100 million 
or more. This rulemaking only affects private sector entities, and the 
impact is less than $100 million.

List of Subjects in 48 CFR Parts 904, 906, 908, 915, 923, 925, 945, 
952, and 970

    Government procurement.

    Issued in Washington, D.C., on January 3, 1997.
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.
    1. The authority citation for Parts 904, 906, 908, 915, 923, and 
945 continues to read as follows:

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

    2. The authority citation for Parts 925 and 952 is revised to read 
as follows:

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

    3. The authority citation for Part 970 continues to read as 
follows:

    Authority: Sec. 161 of the Atomic Energy Act of 1954 (42 U.S.C. 
2201), sec. 644 of the Department of Energy Organization Act, Public 
Law 95-91 (42 U.S.C. 7254).

[[Page 2312]]

PART 904--ADMINISTRATIVE MATTERS


904.6  [Removed and Reserved]

    4. Subpart 904.6, Contract Reporting, is removed and reserved.


904.702  [Amended]

    5. Section 904.702, Applicability, is amended in paragraph (b) by 
revising the phrase ``Chapter V of DOE Order 1324.2 (see current 
version),'' to read ``applicable DOE Directives in the records 
management series''.

PART 906--COMPETITION REQUIREMENTS


906.303-70  [Removed]

    6. Subsection 906.303-70, Exemption, is removed.

PART 908--REQUIRED SOURCES OF SUPPLIES AND SERVICES


908.7121  [Amended]

    7. Section 908.7121, Special materials, is amended in paragraph (b) 
in the first sentence by inserting the acronym ``DOE'' between the 
words ``The'' and ``Oak'' and in the third sentence by inserting the 
words ``The DOE'' before ``Oak Ridge.''

PART 915--CONTRACTING BY NEGOTIATION


915.401  [Amended]

    8. Section 915.401, Applicability, is amended by deleting the words 
``Special Research Contracts (See 917.71)'' and the comma immediately 
after the parenthetical phrase ``(See 917.72).''

PART 923--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-
FREE WORKPLACE


923.7002  [Amended]

    9. Section 923.7002, Contract clauses, is amended in paragraph (d), 
the fourth sentence, by revising ``The Principal Deputy Assistant 
Secretary for Environment, Safety and Health'' to read ``The Assistant 
Secretary for Environment, Safety and Health (or designee).''

PART 945--GOVERNMENT PROPERTY

    10. Subsection 945.608-2 is amended by revising paragraph 
(b)(1)(ii) to read as follows:


945.608-2  Standard screening.

    (b)(1) * * *
    (ii) Excess screening documents and Address Notification forms 
shall be submitted to the Office of Contractor Management and 
Administration, within the Headquarters procurement organization.

PART 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    11. Subsection 952.202-1 is amended by revising the introductory 
text of paragraph (b) and by redesignating clause paragraph (d) as 
clause paragraph (h) to read as follows:


952.202-1  Definitions.

* * * * *
    (b) The following shall be added as paragraph (h) except it will be 
designated paragraph (g) if Alternate I of the FAR clause is used.
* * * * *
    12. Subpart 952.2, Text of Provisions and Clauses, is amended to 
correct the parenthetical dates following clause titles wherever they 
appear in accordance with the following table:

Subpart 952.2--Text of Provisions and Clauses

------------------------------------------------------------------------
                                 Change the date in                     
  Clause at 48 CFR Chapter 9      the parentheses                       
            (DEAR)                 following the           to read      
                                 clause title from                      
------------------------------------------------------------------------
952.204-2.....................  (APR 1984)           (APR 1994)         
952.204-71....................  (APR 1984)           (APR 1994)         
952.204-72....................  (APR 1984)           (APR 1994)         
952.204-73....................  (APR 1984)           (APR 1994)         
952.224-70....................  (APR 1984)           (APR 1994)         
952.227-75....................  (APR 1984)           (APR 1994)         
952.227-76....................  (APR 1984)           (APR 1994)         
952.227-77....................  (APR 1984)           (APR 1994)         
952.227-78....................  (APR 1984)           (APR 1994)         
952.227-79....................  (APR 1984)           (APR 1994)         
952.227-82....................  (APR 1984)           (APR 1994)         
952.235-70....................  (APR 1984)           (APR 1994)         
952.236-71....................  (APR 1984)           (APR 1994)         
952.249-70....................  (APR 1984)           (APR 1994)         
------------------------------------------------------------------------

952.211-72  [Removed and Reserved]

    13. Subsection 952.211-72, Uniform Reporting System, is removed and 
reserved.


952.211-73  [Removed and Reserved]

    14. Subsection 952.211-73, Cost and schedule control systems 
criteria, is removed and reserved.


952.216-15  [Amended]

    15. Subsection 952.216-15, Predetermined indirect cost rates, is 
amended by inserting ``(APR 1994)'' between the word ``Alternate'' and 
the colon.


952.247-70  [Amended]

    16. Subsection 952.247-70 is amended by revising the parenthetical 
date following the clause title to read ``FEB 1997'' and in the last 
sentence of clause paragraph (a) by inserting ``, Mexico'' between 
``Canada'' and ``and.''

PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS


970.0404-3  [Amended]

    17. Subsection 970.0404-3, Responsibilities of contracting 
officers, is amended in paragraph (a) by revising the phrase ``as noted 
in DOE Order 5631.2'' to read ``in accordance with applicable DOE 
Directives in the safeguards and security series.'' Also, in paragraph 
(b) the phrase ``provisions of DOE Orders (See current versions.) 
5634.1; 5635.1; and 5632.2'' is revised to read ``applicable DOE 
Directives in the safeguards and security series.''


970.0406  [Removed and Reserved]

    18. Section 970.0406, Uniform reporting system, is removed and 
reserved.


970.2273  [Amended]

    19. Section 970.2273, Administrative controls and criteria for 
application of the Davis-Bacon Act in operational or maintenance 
activities, is amended in paragraph (a)(3) by deleting the words 
``defined as'' and the words ``in 922.470(e).'' Paragraphs (a)(4), 
(a)(5), and (a)(6) are amended by removing the last parenthetical 
sentence ``(See 922.403-7302(g) and 920.2273(c).)'' Paragraph (c)(1) 
introductory text is amended by deleting the quotation marks around the 
words ``incidental amount,'' and deleting the words ``as defined in 
922.470(e).''

Subpart 970.29--Taxes

    20. Section 970.2903 is revised to read as follows:


970.2903 Contract clause.

    Contracting officers shall include the clause Taxes, at 970.5204-
23, in management and operating contracts.

Subpart 970.41--[Added]

    21. A new subpart 970.41, Acquisition of Utility Services, is 
added. Section 970.0803 is transferred to that subpart and redesignated 
970.4100, General. In paragraph (a) of newly designated 970.4100, the 
citation ``FAR 8.301'' is revised to read ``FAR 41.101.'' In paragraph 
(c) the citation ``FAR subpart 8.3'' is revised to read ``FAR part 
41.'' Paragraph (d) is removed.


970.52  [Amended]

    22. Subpart 970.52, Contract Clauses for Management and Operating 
Contracts is amended to correct the parenthetical dates following 
clause titles in accordance with the following table:

[[Page 2313]]



------------------------------------------------------------------------
                                 Change the date in                     
  Clause at 48 CFR Chapter 9      the parentheses                       
            (DEAR)                 following the           to read      
                                 clause title from                      
------------------------------------------------------------------------
970.5204-12...................  (APR 1984)           (JUL 1994)         
970.5204-15...................  (SEP 1991)           (APR 1994)         
970.5204-16...................  (JAN 1991)           (JUL 1991)         
970.5204-17...................  (JUNE 1988)          (JAN 1996)         
970.5204-18...................  (JUL 1991)           (APR 1994)         
970.5204-20...................  (JAN 1992)           (AUG 1993)         
970.5204-21...................  (APR 1984)           (OCT 1995)         
970.5204-24...................  (APR 1984)           (OCT 1995)         
970.5204-26...................  (APR 1984)           (SEP 1991)         
970.5204-31...................  (JUL 1991)           (APR 1994)         
970.5204-33(a) and (b) [two     (JUNE 1987)          (APR 1994)         
 places].                                                               
970.5204-35...................  (APR 1984)           (JUL 1994)         
970.5204-38...................  (APR 1984)           (APR 1994)         
970.5204-41...................  (APR 1984)           (APR 1994)         
970.5204-43...................  (APR 1984)           (APR 1994)         
970.5204-45...................  (APR 1984)           (OCT 1995)         
970.5204-54...................  (JUL 1991)           (APR 1994)         
970.5204-55...................  (JUL 1991)           (APR 1994)         
970.5204-56...................  (JUL 1991)           (APR 1994)         
970.5204-57...................  (AUG 1992)           (APR 1994)         
970.5204-61...................  (DEC 1993)           (APR 1994)         
------------------------------------------------------------------------

970.5204-23  [Amended]

    23. Subsection 970.5204-23 is amended in the introductory sentence 
by revising ``970.2902'' to read ``970.2903''.


970.5204-32  [Amended]

    24. In subsection 970.5204-32 paragraphs (a) and (b) are amended by 
revising the introductory text and adding a heading immediately before 
the clause text to read as follows:
    (a) In contracts with nonprofit contractors use the following 
clause:

Required Bond and Insurance--Exclusive of Government Property 
(Nonprofit) (APR 1994)
* * * * *
    (b) In contracts with profit making contractors use the following 
clause:

Required Bond and Insurance--Exclusive of Government Property 
(Profit Making) (APR 1994)
* * * * *


970.5204-44  [Amended]

    25. Subsection 970.5204-44, Flowdown of contract requirements to 
subcontracts, is amended by revising the date following the clause 
title to read ``(FEB 1997)'' and in clause paragraph (b)(11) ``40 CFR 
part 60'' is revised to read ``41 CFR part 60.''


970.5204-50  [Removed and Reserved]

    26. Subsection 970.5204-50, Cost and schedule control systems, is 
removed and reserved.
    27. Subsection 970.5204-52 is revised to read as follows:


970.5204-52  Foreign travel.

    When foreign travel may be required under the contract, insert the 
clause at 952.247-70.


970.5204-60  [Amended]

    28. Subsection 970.5204-60, Facilities management, is amended by 
revising the date ``August 30, 1993'' following the clause title to 
read ``(FEB 1997)'' and by deleting clause paragraphs (c), Maintenance 
Management, and (e), Capital Assets Management. Paragraphs (d), Energy 
Management, and (f), Subcontract Requirements, are redesignated as 
paragraphs (c) and (d), respectively.


970.7105  [Amended]

    29. Section 970.7105, Purchasing from contractor affiliated 
sources, is amended in paragraph (a)(3) by deleting the parenthetical 
reference ``(See 970.7101(c))''.

[FR Doc. 97-938 Filed 1-15-97; 8:45 am]
BILLING CODE 6450-01-P