[Federal Register Volume 75, Number 99 (Monday, May 24, 2010)]
[Proposed Rules]
[Pages 28772-28776]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-12404]


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DEPARTMENT OF ENERGY

48 CFR Parts 904, 952 and 970

RIN 1991-AB85


Acquisition Regulation: Access to and Ownership of Records

AGENCY: Department of Energy.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Energy (DOE) is proposing to amend the 
Department of Energy Acquisition Regulation (DEAR) to revise the 
applicability and the policies and procedures involving the access to 
and ownership of records. Much work at DOE facilities is performed by 
contractor and subcontractor personnel and involves hazardous materials 
or the possibility of exposure to radioactive materials. It is 
necessary for the contractors and subcontractors to maintain extensive 
records for the Government involving these workers and processes, in 
particular, personnel; facility; occupational safety and health; 
environment; and medical records. DOE is proposing to amend these 
clauses for consistent inclusion in all applicable contracts, not just 
management and operating (M&O) contracts, based on the type of work 
being performed, to ensure preservation and Government ownership of 
records. Additionally, the proposed revisions address

[[Page 28773]]

inconsistencies relating to DOE contractor and subcontractor efforts in 
managing records in accordance with DOE retention requirements. The 
proposed revisions are being made to establish consistent records 
maintenance, retention, and disposal; and to ensure certain records 
generated on groups of individuals in the performance of the contract 
are maintained as DOE Privacy Act Systems of Records.

DATES: Written comments on the proposed rulemaking must be received on 
or before close of business June 23, 2010.

ADDRESSES: This proposed rule is available and comments may be 
submitted to the Federal Electronic Rulemaking Portal at http://www.regulations.gov. Comments may also be submitted electronically to 
[email protected] Comments may be mailed to: Richard 
Langston, Procurement Policy Analyst; MA-61; U. S. Department of 
Energy; 1000 Independence Avenue, SW.; Washington, DC 20585.

FOR FURTHER INFORMATION CONTACT: Richard Langston at 202-287-1339 or 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Background
II. Section-by-Section Analysis
III. Procedural Requirements
    A. Review Under Executive Order 12866
    B. Review Under Executive Order 12988
    C. Review Under the Regulatory Flexibility Act
    D. Review Under the Paperwork Reduction Act
    E. Review Under the National Environmental Policy Act
    F. Review Under Executive Order 13132
    G. Review Under the Unfunded Mandates Reform Act of 1995
    H. Review Under the Treasury and General Government 
Appropriations Act, 1999
    I. Review Under Executive Order 13211
    J. Review Under the Treasury and General Government 
Appropriations Act, 2001
    K. Approval by the Office of the Secretary of Energy

I. Background

    The Access to and Ownership of Records clause, at 48 CFR 970.5204-
3, raises a number of concerns, including the lack of inclusion of the 
clause in non-M&O contracts; records systems identified as contractor-
owned may not be operated and records may not be maintained 
appropriately as Privacy Act Systems of Records and for the required 
retention period; and the need for the Government to maintain 
personnel; facility; occupational safety and health; environment; and 
medical records on contractors and subcontractors long-term based on 
NARA-approved DOE Records Disposition Schedules and to support the 
Energy Employees Occupational Illness Compensation Program Act 
(EEOICPA), the DOE Former Worker Medical Screening Program (FWP) and 
other records requests.
    In light of the fact that most of the DOE sites have been in 
existence for as many as 60 years, there are inherent variations in 
quality, complexity, and completeness of recordkeeping practices. While 
DOE cannot recreate records that no longer exist, it is vital that DOE 
preserve ownership of, and access to, records in accordance with laws 
and regulations. In particular preservation of records that are vital 
to the safety, health and well being of past, present and future 
workers and the surrounding communities.
    The proposed revisions address inclusion of the clause in all 
applicable contracts, not just M&O contracts, based on the type of work 
being performed, provides clarity to the DOE contractor and 
subcontractor on their records management responsibilities, in 
particular the maintenance, retention, disposition, and Government 
ownership of records [see 44 U.S.C. chapters 21, 29, 31, 33, and 35, 
and 36 CFR chapter 12, subchapter B], including operating and 
maintaining records as DOE Privacy Act Systems of Records [FAR 52-224-
2]; ensures preservation and ownership of personnel, facility; 
occupational safety and health, environment, medical records [see 10 
CFR part 850, 10 CFR part 851, 29 CFR part 1904, and 29 CFR part 1910] 
and facility records required for decision-making and in support of the 
administration of the EEOICPA allows for DOE to identify and contact 
individuals in the future for participation in the FWP; and to meet 
other future records requests.
    These revisions will also serve to stress the importance of 
complete and accurate documentation and proper recordkeeping to 
adequately document Government funded activities, preserve 
institutional memory, protect the legal and financial rights of the 
Government, and preserve worker and facility records to ensure records 
are available to the Government when needed.

II. Section-by-Section Analysis

    The Department proposes to amend the DEAR as follows.
    1. Subpart 904.7--The clause applicability specification for 
Contractor Records Retention at 904.702 has been revised to update the 
name of the Integration of Environment, Safety and Health into Work 
Planning and Execution clause, delete the reference to the obsolete 
Nuclear Safety clause, add a requirement to include the Access to and 
Ownership of Records clause, and specifically reference the ``DOE 
Records Disposition Schedules'' in applicable DOE Directives. These 
changes are being made to ensure that all contracts that generate 
records include the requirements of the Access to and Ownership of 
Records clause to ensure Government ownership and access to these 
records and to establish consistent records management practices in the 
retention of records.
    2. Section 952.223-75--DOE added language to the preservation of 
individual occupational radiation exposure records that requires such 
records be operated and maintained by contractors as a DOE Privacy Act 
Systems of Records (i.e., as DOE-35 Personnel Radiation Exposure 
Records) and emphasizes the requirement to maintain these records in 
accordance with the NARA-approved DOE Records Disposition Schedules.
    3. Section 970.0407-1-3--The prescription of the Access to and 
Ownership of Records clause has been expanded to require inclusion in 
more than just M&O contracts, but must also be included in contracts 
that contain the Integration of Environment, Safety, and Health into 
Work Planning and Execution clause at 48 CFR 952.223-71, and the 
Radiation Protection and Nuclear Criticality clause at 48 CFR 952.223-
72. This change is made to ensure that the Access to and Ownership of 
Records clause is included consistently in all applicable contracts 
based on the type of work being performed (e.g., work that exposes 
personnel to hazardous material, radiation or long-term health issues), 
not just M&O contracts. In addition, the FAR Privacy Act clause at 48 
CFR 52.224-2 must also be included in all contracts that include the 
Access to and Ownership of Records clause as records systems are to be 
operated, and records generated on groups of individuals in the 
performance of the contract are to be maintained by the contractor as a 
DOE Privacy Act Systems of Records.
    4. Section 970.5204-3(a)--Language was added to require contractors 
to operate and maintain certain records classified as Government-owned 
records as DOE Privacy Act Systems of Records as determined by the 
Contracting Officer. The Contracting Officer will tailor the list of 
Government-owned records to be operated and maintained by the 
contractor as Privacy Act Systems of Records using DOE's most recent 
compilation of the Privacy Act Systems of Records (see 74 FR 994, 
January 9, 2009).

[[Page 28774]]

    5. Section 970.5204-3(b)(1)--The words ``non-contract related'' 
were added before the words ``medical/health-related records'' to make 
it clear that those personnel medical records that are not collected by 
the contractor in the direct performance of its contract (i.e., 
corporate wellness programs) could be considered separate and distinct 
from contract-related personnel medical records.
    6. Section 970.5204-3(b)(2)--The words ``internal corporate 
governance records'' was added to the list of confidential contractor 
financial information to make it clear that these types of records 
should be considered to be confidential contractor records.
    7. Section 970.5204-3(c)--Language was added to clarify the 
disposition of both Government-owned and contractor-owned records at 
contract completion or termination. An option was added to allow 
contractors to deliver ``original'' records to the Government in lieu 
of copying these records with assurance that the contractor will have 
rights to access and copy the records as needed.
    8. Section 970.5204-3(e)--The applicability of the Access to and 
Ownership of Records clause was modified to make it clear that the 
records maintained by the contractor, whether they be Government-owned 
or contractor-owned, include all records in the possession of the 
contractor regardless of the date of origin and include those records 
acquired from a predecessor contractor. Therefore, this paragraph has 
been updated to not specify just particular paragraphs but the entire 
clause.
    9. Section 970.5204-3(f)--The title of this paragraph has been 
modified to read ``Records maintenance and retention'' and expanded to 
more specify the contractors records management responsibilities for 
the creation, maintenance, and disposition of records in accordance 
with applicable federal laws, regulations and DOE Directives. The 
proposed revision provides clear direction to the contractor and 
subcontractor on their records management responsibilities, in 
particular maintenance, disposition and ownership of records. The 
language was also revised to clearly link retention of records to the 
DOE Records Disposition Schedules and DOE removed language that singles 
out individual radiation exposure records as such records will be 
operated and maintained by the contractor as Government-owned DOE 
Privacy Act Systems of Records.
    10. Section 970.5204-3(g)--This paragraph is revised to eliminate 
the $2 Million threshold for flow down of the Access to and Ownership 
of Records clause as its applicability is more appropriately determined 
by the nature of the work not the cost of the contract (i.e., 
subcontracts in which contract performance exposes personnel to 
hazardous material, radiation, or long-term health issues). Therefore, 
this paragraph has been modified and expanded to require inclusion in 
subcontracts that contain the Integration of Environment, Safety and 
Health into work Planning and Execution clause at 952.223-71 or the 
Radiation Protection and Nuclear Criticality clause at 952.223-72, 
consistent with the prescription for prime contracts in DEAR 970.0407-
1-3, and the contractor records retention applicability in DEAR 
904.702. This paragraph has also been modified to include flow down of 
the Privacy Act clause into subcontracts.

III. Procedural Requirements

A. 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 rule is not 
subject to review under the Executive Order by the Office of 
Information and Regulatory Affairs (OIRA) within the Office of 
Management and Budget.

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; (3) provide a clear legal standard 
for affected conduct rather than a general standard; and (4) 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 that 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, 
these proposed regulations meet the relevant standards of Executive 
Order 12988.

C. Review Under the Regulatory Flexibility Act

    This proposed rule has been reviewed under the Regulatory 
Flexibility Act, 5 U.S.C. 601 et seq., which requires preparation of an 
initial regulatory flexibility analysis for any rule that must be 
proposed for public comment and is likely to have a significant 
economic impact on a substantial number of small entities. The proposed 
rule would not have a significant economic impact on small entities 
because it imposes no significant burdens.
    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.

D. Review Under Paperwork Reduction Act

    This rulemaking contains no new information collection or 
recordkeeping requirements. Existing information collections imposed by 
the Department of Energy Acquisition Regulation are covered by OMB 
Control Number 1910-4100.

E. Review Under the National Environmental Policy Act

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

F. Review Under Executive Order 13132

    Executive Order 13132 (64 FR 43255, August 4, 1999) imposes certain 
requirements on agencies formulating

[[Page 28775]]

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. DOE has examined today's proposed rule 
and has determined that it does not preempt state law and does not have 
a substantial direct effect on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government. No further 
action is required by Executive Order 13132.

G. Review Under the Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) 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 
in any single year. This rulemaking does not impose a federal mandate 
on state, local or tribal governments or on the private sector.

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 rule or policy that may affect 
family well-being. This rule will have no impact on family well being.

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 the 
OIRA, OMB, a Statement of Energy Effects for any 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 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 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 implementing 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 notice under the OMB and DOE guidelines and has 
concluded that it is consistent with applicable policies in those 
guidelines.

K. Approval by the Office of the Secretary of Energy

    The Office of the Secretary of Energy has approved issuance of this 
proposed rule.

List of Subjects in 48 CFR Parts 904, 952 and 970

    Government procurement.

    Issued in Washington, DC, on May 18, 2010.
Patrick M. Ferraro,
Acting Director, Office of Procurement and Assistance Management, 
Office of Management, Department of Energy.
Joseph F. Waddell,
Acting Director, Office of Acquisition and Supply Management, National 
Nuclear Security Administration.

    For the reasons set out in the preamble, DOE proposes to amend 
chapter 9 of Title 48 of the Code of Federal Regulations as set forth 
below:

PART 904--ADMINISTRATIVE MATTERS

    1. The authority citations for parts 904 and 952 continue to read 
as follows:

    Authority:  42 U.S.C. 7101, et seq. and 50 U.S.C. 2401, et seq.

    2. Revise section 904.702, to read as follows:


904.702   Applicability.

    (b) Contracts containing the Integration of Environment, Safety and 
Health into Work Planning and Execution clause at 952.223-71, or the 
Radiation Protection and Nuclear Criticality clause at 952.223-72 must 
also include the Preservation of Individual Occupational Radiation 
Exposure Records clause at 952.223-75, and the Access to and Ownership 
of Records clause at 970.5204-3, which will necessitate retention of 
records in accordance with DOE Records Disposition Schedules contained 
in applicable DOE Directives, rather than those found at FAR Subpart 
4.7.

PART 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    3. In section 952.223-75, the clause paragraph is revised to read 
as follows:


952.223-75   Preservation of individual occupational radiation exposure 
records.

* * * * *
    Individual occupational radiation exposure records generated in 
the performance of work under this contract shall be maintained by 
the contractor and related contractor record systems shall be 
operated as DOE Privacy Act Systems of Records, in accordance with 
the NARA-approved DOE Records Disposition Schedules contained in 
applicable DOE Directives.

PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS

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

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

    5. Revise section 970.0407-1-3 to read as follows:


970.0407-1-3   Contract clause.

    The contracting officer shall insert the clauses at 48 CFR 
970.5204-3, Access to and Ownership of Records and 48 CFR 52.224-2, 
Privacy Act, including the listing of pertinent Privacy Act Systems of 
Records, in management and operating contracts and all contracts that 
contain the Integration of Environment, Safety, and Health into Work 
Planning and Execution clause at 48 CFR 952.223-71 or the Radiation 
Protection and Nuclear Criticality clause at 48 CFR 952.223-72.
    6. Amend 970.5204-3 by:
    a. Revising the clause date;
    b. Revising paragraph (a);
    c. Adding in paragraph (b)(1), the words ``non contract related'' 
before the words ``medical/health-related records)'' and removing the 
words ``described by the contract as being maintained in'' and adding 
in its place, the words ``operated and maintained by the contractor in 
a DOE'' in the last sentence;
    d. Adding in paragraph (b)(2) the words ``internal corporate 
governance records,'' after the word ``information'' in the first 
sentence;
    e. Revising paragraphs (c), (e), (f) and (g).

[[Page 28776]]

    The revisions read as follows:


970.5204-3   Access to and ownership of records.

* * * * *

Access to and Ownership of Records (XXX 20XX)

    (a) Government-owned records. Except as provided in paragraph 
(b) of this clause, all records acquired or generated by the 
contractor in its performance of this contract, shall be the 
property of the Government. The contractor, where applicable, shall 
maintain DOE Privacy Act Systems of Records in accordance with 
requirements of FAR 52.224-2 ``Privacy Act.''
    The contractor shall operate and maintain the following DOE 
Privacy Act Systems of Records: [The Contracting Officer shall 
insert the list of Government-owned records to be operated and 
maintained by the contractor as a DOE Privacy Act Systems of Records 
using DOE's most recent compilation of its Privacy Act Systems of 
Records.]
* * * * *
    (c) Contract completion or termination. Upon contract completion 
or termination, the contractor shall ensure final disposition of all 
Government-owned records to a Federal Record Center, the National 
Archives and Records Administration, to a successor contractor, its 
designee, or other destinations, as directed by the Contracting 
Officer. Upon the request of the Government, the contractor shall 
provide either the original contractor-owned records or copies of 
the records identified in paragraph (b) of this clause, to DOE or 
its designees, including successor contractors. Upon delivery, title 
to such records shall vest in DOE or its designees, and such records 
shall be protected in accordance with applicable federal laws 
(including the Privacy Act) as appropriate. If the contractor 
chooses to provide its original contractor-owned records to the 
Government or its designee, the contractor shall retain future 
access rights to copy such records.
* * * * *
    (e) Applicability. This clause applies to all records maintained 
by the contractor without regard to the date or origination of such 
records including all records acquired from a predecessor 
contractor.
    (f) Records maintenance and retention. Contractor shall create, 
maintain, safeguard, and disposition records in accordance with 36 
CFR, Chapter 12, Subchapter B and the National Archives and Records 
Administration (NARA)-approved records disposition schedules (DOE 
Records Disposition Schedules), contained in applicable DOE 
Directives. Records retention standards are applicable for all 
classes of records described therein, whether or not the records are 
owned by the Government or the contractor. The Government may waive 
application of these records disposition schedules, if, upon 
termination or completion of the contract, the Government exercises 
its right under paragraph (c) of this clause to obtain copies and 
delivery of records described in paragraphs (a) and (b) of this 
clause.
    (g) Subcontracts. The contractor shall include the requirements 
of this clause and the Privacy Act clause of FAR 52.224-2 (pursuant 
to FAR 24.104) in all subcontracts that contain the Integration of 
Environment, Safety and Health into Work Planning and Execution 
clause at 952.223-71 or, the Radiation Protection and Nuclear 
Criticality clause at 952.223-72.


(End of Clause)

[FR Doc. 2010-12404 Filed 5-21-10; 8:45 am]
BILLING CODE 6450-01-P