[Federal Register Volume 72, Number 102 (Tuesday, May 29, 2007)]
[Rules and Regulations]
[Pages 29431-29434]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-10247]


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

DEPARTMENT OF ENERGY

48 CFR Parts 913 and 970

RIN 1991-AB62


Acquisition Regulation: Technical Revisions or Amendments to 
Update Clauses

AGENCY: Department of Energy.

ACTION: Final rule.

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

SUMMARY: The Department of Energy (DOE) is amending the Department of 
Energy Acquisition Regulation (DEAR) to remove clauses concerning 
simplified acquisition procedures and facilities management contracting 
and to add a clause addressing work authorization. This rule also 
revises associated regulatory coverage, as necessary.

DATES: Effective Date: June 28, 2007.

FOR FURTHER INFORMATION CONTACT: Sandra Cover at (202) 287-1344 or 
[email protected]

SUPPLEMENTARY INFORMATION:
I. Background
II. Comments, Responses, and Discussion
III. Section-by-Section Analysis
IV. Procedural Requirements
    A. Review Under Executive Order 12866
    B. Review Under Executive Order 12988
    C. Review Under the Regulatory Flexibility Act
    D. Review Under the Paperwork Reduction Act
    E. Review Under the National Environmental Policy Act
    F. Review Under Executive Order 13132
    G. Review Under the Unfunded Mandates Reform Act of 1995

[[Page 29432]]

    H. Review Under the Treasury and General Government 
Appropriations Act, 1999
    I. Review Under Executive Order 13211
    J. Review Under the Treasury and General Government 
Appropriations Act, 2001
    K. Review Under the Small Business Regulatory Enforcement 
Fairness Act of 1996
    L. Approval by the Office of the Secretary

I. Background.

    On July 29, 2005, DOE published in the Federal Register (70 FR 
43832) a notice of proposed rulemaking to modify clauses contained in 
the Department of Energy Acquisition Regulation (DEAR) concerning 
debarment; fast payment procedures; applicable laws, regulations, and 
directives; work authorization; and integration of environment, safety, 
and health into work planning and execution. In addition, DOE proposed 
to delete a clause on facilities management and the corresponding 
instruction.
    DOE received comments from interested parties and based upon our 
review and consideration DOE issues a final rule that: (1) Deletes DEAR 
913.4, Fast Payment Procedure; (2) adds DEAR 970.5211-1, Work 
authorization, with prescriptive language at 970.1170-1 and a contract 
clause instruction at DEAR 970.1170-2; and (3) deletes DEAR 970.5237-2, 
Facilities Management System, and the corresponding instruction at DEAR 
970.37, Facilities management contracting.
    The proposed changes to DEAR 909.406, Debarment; DEAR 970.5204-2, 
Laws, Regulations, and DOE Directives', and DEAR 970.5223-1, 
Integration of Environment, Safety, and Health into Work Planning and 
Execution are withdrawn after reviewing comments and further 
consideration.

II. Comments, Responses and Discussion

    DOE received three comments concerning the proposal to amend DEAR 
909.406-2, the Debarment clause. The proposed amendment would have 
permitted the debarring officials to debar a contractor if it was 
established by a preponderance of evidence that the contractor falsely 
self-certified itself as falling into one of the business categories 
aided by the Small Business Administration Act. The commenters argued 
that the proposed rule is not a technical amendment and could harm the 
small business community. Commenters further argued that Congress 
vested Small Business Administration (SBA) with exclusive jurisdiction 
to determine small business size standards and eligibility. Current SBA 
regulations contain size rules, which differ depending on whether a 
company is subject to employee-based size standards or revenue-based 
size standards. Because small businesses self-certify their size, SBA 
affiliation determinations are made after the fact, and there is a risk 
of erroneous self-certification. Therefore, it was argued, the proposed 
rule could result in debarment of small businesses that unintentionally 
misrepresented their size status.
    Response: After reviewing and considering the comments, DOE has 
concluded this change is unnecessary and is withdrawing the proposed 
amendment to DEAR 909.406-2. First, there is sufficient coverage of 
this issue in the Federal Acquisition Regulation (FAR). In addition, 
the Small Business Act vests exclusive jurisdiction in SBA for making 
determinations of small business status, while 15 U.S.C. 645 grants SBA 
the authority to debar or suspend contractors who misrepresent their 
status as small business to obtain government contracts. This statutory 
provision provides SBA with authority to initiate corrective action in 
cases of suspected misrepresentation of small business size status if 
the solicitation and award reference Section 8(d) of the Small Business 
Act.
    DOE has further considered the proposed revisions to clauses DEAR 
970.5204-2, Laws, Regulations, and DOE Directives and DEAR 970.5223-1, 
Integration of Environment, Safety and Health into Work Planning and 
Execution, and decided not to promulgate the proposed revisions. After, 
further considering the proposed revisions, DOE has decided to retain 
the current clauses.

III. Section-by-Section Analysis

    DOE is amending the DEAR as follows:
    1. DEAR subpart 913.4, Fast Payment Procedure, is deleted in its 
entirety. DEAR 913.402 currently prohibits the use of fast payment 
procedures. Upon review of DOE's policy and the FAR, DOE has determined 
that FAR coverage in subpart 13.4, Fast Payment Procedure, is adequate 
to protect the DOE interests. DOE will now use fast payment procedures 
under FAR 13.4.
    2. A new section 970.1170, Work authorization, is added. It 
consists of DEAR 970.1170-1, Policy, and 970.1170-2, Contract 
provision.
    3. DEAR 970.5211-1, Work authorization, is added. This clause 
incorporates requirements that are presently located in the contractor 
requirements document attached to Directive DOE O 412.1A, Work 
Authorization System. That Order establishes an assignment and control 
process for budget of estimated costs, description of work, and 
schedule of performance, and for individual work activities performed 
by designated contractors within the contract scope of work. The DEAR 
clause eliminates the need for a contractor requirements document.
    4. DEAR 970.5237-2, Facilities management, and the corresponding 
instruction at DEAR 970.37, Facilities Management Contracting, are 
deleted. They currently provide guidance concerning site development 
planning, design criteria, energy management, and subcontract 
requirements. DOE has decided that other DOE directives, such as DOE O 
430.1B, Real Property Asset Management, already provide sufficient 
guidance.

IV. Procedural Requirements

A. Review Under Executive Order 12866

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

B. Review Under Executive Order 12988

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

[[Page 29433]]

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 final rule meets the relevant standards of 
Executive Order 12988.

C. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. As required 
by Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published 
procedures and policies on February 19, 2003, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the rulemaking process (68 FR 7990). DOE has made its 
procedures and policies available on the Office of General Counsel's 
Web site: http://www.gc.doe.gov.
    DOE has reviewed today's rule under the provisions of the 
Regulatory Flexibility Act and the procedures and policies published on 
February 19, 2003. While rule requirements may flow down to 
subcontractors in certain circumstances, the costs of compliance are 
not estimated to be large and, in any event, would be reimbursable 
expenses under the contract or subcontract. On the basis of the 
foregoing, DOE certifies that this rule would not have a significant 
economic impact on a substantial number of small entities. Accordingly, 
DOE has not prepared a regulatory flexibility analysis for this 
rulemaking. DOE's certification and supporting statement of factual 
basis will be provided to the Chief Counsel for Advocacy of the Small 
Business Administration pursuant to 5 U.S.C. 605(b).

D. Review Under the Paperwork Reduction Act

    This rulemaking contains information collection requirements 
associated with the contract clause Work authorization at 970.5211-1. 
The information collection requirements were forwarded to OMB under the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.). OMB assigned this 
information collection OMB Control No. 1910-5132.

E. Review Under the National Environmental Policy Act

    DOE has concluded that promulgation of this rule falls into a class 
of actions which would not individually or cumulatively have 
significant impact on the human environment, as determined by DOE's 
regulations (10 CFR part 1021, subpart D) implementing the National 
Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.). 
Specifically, this rule is categorically excluded from NEPA review 
because the amendments to the DEAR are strictly procedural (categorical 
exclusion A6). Therefore, this rule does not require an environmental 
impact statement or environmental assessment pursuant to NEPA.

F. Review Under Executive Order 13132

    Executive Order 13132 (64 FR 43255, August 4, 1999) imposes certain 
requirements on agencies formulating and implementing policies or 
regulations that preempt State law or that have federalism 
implications. Agencies are required to examine the constitutional and 
statutory authority supporting any action that would limit the 
policymaking discretion of the States and carefully assess the 
necessity for such actions. The Executive Order requires agencies to 
have an accountability process to ensure meaningful and timely input by 
state and local officials in the development of regulatory policies 
that have federalism implications. On March 14, 2000, DOE published a 
statement of policy describing the intergovernmental consultation 
process it will follow in the development of such regulations (65 FR 
13735). DOE has examined today's rule and has determined that it does 
not preempt State law and does not have a substantial direct effect on 
the States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. No further action is required by 
Executive Order 13132.

G. Review Under the Unfunded Mandates Reform Act of 1995

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

H. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a 
Family Policymaking Assessment for any rulemaking or policy that may 
affect family well-being. This rulemaking will have no impact on the 
autonomy or integrity of the family as an institution. Accordingly, DOE 
has concluded that it is not necessary to prepare a Family Policymaking 
Assessment.

I. Review Under Executive Order 13211

    Executive Order 13211, Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use, (66 FR 28355, 
May 22, 2001) requires Federal agencies to prepare and submit to OIRA, 
of the OMB, 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. Today's rule is not a 
significant energy action. Accordingly, DOE has not prepared a 
Statement of Energy Effects.

J. Review Under the Treasury and General Government Appropriations Act, 
2001

    The Treasury and General Government Appropriations Act., 2001 (44 
U.S.C. 3516, note) provides for agencies to review most disseminations 
of information to the public under guidelines established by each 
agency pursuant to general guidelines issued by OMB. OMB's guidelines 
were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines 
were published at 67 FR 62446 (October 7, 2002). DOE has reviewed 
today's rule under the OMB and DOE guidelines and has concluded that it 
is consistent with applicable policies in those guidelines.

[[Page 29434]]

K. Review Under the Small Business Regulatory Enforcement Fairness Act 
of 1996

    As required by 5 U.S.C. 801, the Department will report to Congress 
promulgation of this rule prior to its effective date. 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).

L. Approval by the Office of the Secretary of Energy

    Issuance of this rule has been approved by the Office of the 
Secretary.

List of Subjects in 48 CFR Parts 913 and 970.

    Government procurement.

    Issued in Washington, DC on May 21, 2007.
Edward R. Simpson,
Director, Office of Procurement and Assistance Management, Office of 
Management.
David O. Boyd,
Director, Office of Acquisition and Supply Management, National Nuclear 
Security Administration.

0
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 913--SIMPLIFIED ACQUISITION PROCEDURES

0
1. The authority citation for part 913 continues to read as follows:

    Authority: 42 U.S.C. 7101 et seq.; 41 U.S.C. 418(b); 50 U.S.C. 
2401 et seq.

Subpart 913.4--[Removed and Reserved]

0
2. Subpart 913.4 is removed and reserved.

PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS

0
3. The authority citation for part 970 continues to read as follows:

    Authority: 42 U.S.C. 2201, 2282a, 2282b, 2282c; 42 U.S.C. 7101 
et seq.; 41 U.S.C. 418b; 50 U.S.C. 2401 et seq.

Subpart 970.11--Describing Agency Needs

0
4. Sections 970.1170, 970.1170-1, and 970.1170-2 are added to read as 
follows:


970.1170  Work authorization.


970.1170-1  Policy.

    Each contract for the management and operation of a DOE site or 
facility, and other contracts designated by the DOE or NNSA Procurement 
Executive, must contain a scope of work section that describes, in 
general terms, work planned and/or required to be performed. Work to be 
performed under the contract shall be assigned through the use of a 
work authorization to control individual work activities performed 
within the scope of work. Work authorizations must be issued prior to 
the commencement of the work and incurrence of any costs.


970.1170-2  Contract provision.

    The Contracting Officer shall insert the clause at 48 CFR 970.5211-
1, Work authorization, in each solicitation and contract for the 
management and operation of a DOE site or facility and in other 
contracts designated by the DOE or NNSA Procurement Executive.

Subpart 970.37--Facilities Management Contracting


970.3770-2  [Removed and Reserved]

0
5. Section 970.3770-2 is removed and reserved.

Subpart 970.52--Solicitation Provisions and Contract Clauses For 
Management and Operating Contracts

0
6. Section 970.5211-1 is added to read as follows:


970.5211-1  Work authorization.

    As prescribed in 970.1170-2, insert the following clause:
Work Authorization (MAY 2007)
    (a) Work authorization proposal. Prior to the start of each fiscal 
year, the Contracting Officer or designee shall provide the contractor 
with program execution guidance in sufficient detail to enable the 
contractor to develop an estimated cost, scope, and schedule. In 
addition, the Contracting Officer may unilaterally assign work. The 
contractor shall submit to the Contracting Officer or other designated 
official, a detailed description of work, a budget of estimated costs, 
and a schedule of performance for the work it recommends be undertaken 
during that upcoming fiscal year.
    (b) Cost estimates. The contractor and the Contracting Officer 
shall establish a budget of estimated costs, description of work, and 
schedule of performance for each work assignment. If agreement cannot 
be reached as to scope, schedule, and estimated cost, the Contracting 
Officer may issue a unilateral work authorization, pursuant to this 
clause. The work authorization, whether issued bilaterally or 
unilaterally shall become part of the contract. No activities shall be 
authorized or costs incurred prior to Contracting Officer issuance of a 
work authorization or direction concerning continuation of activities 
of the contract.
    (c) Performance. The contractor shall perform work as specified in 
the work authorization, consistent with the terms and conditions of 
this contract.
    (d) Modification. The Contracting Officer may at any time, without 
notice, issue changes to work authorizations within the overall scope 
of the contract. A proposal for adjustment in estimated costs and 
schedule for performance of work, recognizing work made unnecessary as 
a result, along with new work, shall be submitted by the contractor in 
accordance with paragraph (a) of this clause. Resolution shall be in 
accordance with paragraph (b) of this clause.
    (e) Increase in estimated cost. The contractor shall notify the 
Contracting Officer immediately whenever the cost incurred, plus the 
projected cost to complete work is projected to differ (plus or minus) 
from the estimate by 10 percent. The contractor shall submit a proposal 
for modification in accordance with paragraph (a) of this clause. 
Resolution shall be in accordance with paragraph (b) of this clause.
    (f) Expenditure of funds and incurrence of costs. The expenditure 
of monies by the contractor in the performance of all authorized work 
shall be governed by the ``Obligation of Funds'' or equivalent clause 
of the contract.
    (g) Responsibility to achieve environment, safety, health, and 
security compliance. Notwithstanding other provisions of the contract, 
the contractor may, in the event of an emergency, take that corrective 
action necessary to sustain operations consistent with applicable 
environmental, safety, health, and security statutes, regulations, and 
procedures. If such action is taken, the contractor shall notify the 
Contracting Officer within 24 hours of initiation and, within 30 days, 
submit a proposal for adjustment in estimated costs and schedule 
established in accordance with paragraphs (a) and (b) of this clause. 
(End of clause)


970.5237-2  [Removed and Reserved]

0
7. Section 970.5237-2 is removed and reserved.

 [FR Doc. E7-10247 Filed 5-25-07; 8:45 am]
BILLING CODE 6450-01-P