[Federal Register Volume 75, Number 101 (Wednesday, May 26, 2010)]
[Rules and Regulations]
[Pages 29456-29459]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-12520]



[[Page 29456]]

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DEPARTMENT OF ENERGY

48 CFR Parts 928, 931, 932, 933, 935, 936, 937, 941, 942, 949, 950, 
951, and 952

RIN 1991-AB88


Acquisition Regulation: Subchapter E--General Contracting 
Requirements, Subchapter F--Special Categories of Contracting, and 
Subchapter G--Contract Management

AGENCY: Department of Energy.

ACTION: Final rule.

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SUMMARY: The Department of Energy (DOE) is amending the Department of 
Energy Acquisition Regulation (DEAR) Subchapters E--General Contracting 
Requirements, F--Special Categories of Contracting, and G--Contract 
Management to make changes to conform to the FAR, remove out-of-date 
coverage, and to update references. Today's rule does not alter 
substantive rights or obligations under current law.

DATES: Effective Date: June 25, 2010.

FOR FURTHER INFORMATION CONTACT: Barbara Binney at (202) 287-1340 or by 
e-mail, [email protected].

SUPPLEMENTARY INFORMATION: 
    Changes are to DEAR parts 928, 931, 932, 933, 935, 936, 937, 941, 
942, 949, 950, 951, and 952. No changes are proposed for DEAR parts 
927, 929, 930, 934, 938, 939, 940, 943, 944, 945, 946, 947, and 948. 
DOE will separately propose rules for changes to parts 927 and 945, 
respectively.

I. Background
II. Comments and Responses
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. Review Under the Small Business Regulatory Enforcement 
Fairness Act of 1996
    L. Approval by the Office of the Secretary of Energy

I. Background

    This action updates the existing Department of Energy Acquisition 
Regulation (DEAR). Subchapters E, F, and G have sections that need to 
be updated to conform to the FAR. None of the changes are substantive 
or of a nature to cause any significant expense for DOE or its 
contractors.

II. Comments and Responses

    DOE published a notice of proposed rulemaking on January 7, 2010 
(75 FR 964), with a public comment period ending on February 8, 2010. 
DOE received no comments.
    DOE amends the DEAR as follows:
    1. Section 932.501-2 is amended to reflect current procedures for 
unusual progress payments.
    2. Subpart 932.6 is amended to update the DEAR to conform with 
changes to a FAR section title within subpart 32.6 which was revised by 
Federal Acquisition Circular 2005-027 effective October 18, 2008.
    3. Section 935.010 is amended by revising paragraphs (c) and (d). 
The report submittal process has been changed to electronic submission 
using the DOE Energy Link System (E-Link) at http://www.osti.gov/elink. 
The contracting officer shall require the contractors to use E-Link to 
submit a record with each report.
    4. Part 936 is amended to redesignate 936.202 as 936.202-70 and 
change the title of that section to read ``specification charges.''
    5. Part 937 is revised to add a new subpart, Subpart 937.2--
Advisory and Assistance Services and section 937.204 Guidelines for 
determining availability of personnel. Sections 937.204(a), (b), (d), 
and (e) are added to conform to FAR 37.204 to provide the DOE 
guidelines for determining availability of sufficient personnel with 
the requisite training and capabilities to perform the evaluation or 
analysis of proposals. It also clarifies which DOE officials are 
responsible for making the determinations prescribed at FAR 37.204 (a), 
(b), (d), and (e).
    6. Section 941.201-70 is amended to update the DOE Order reference 
by removing the remainder of the sentence after the second ``FAR'' and 
adding in its place ``part 41 and the Department of Energy (DOE) Order 
430.2B, Departmental Energy, Renewable Energy and Transportation 
Management, or its successor.''
    7. Section 942.803 is amended at paragraph (c) by removing the 
reference to 942.70 Audit Services which is no longer a subpart.
    8. Section 949.101 is revised to add ``Senior'' before 
``Procurement Executive.'' to conform the use of the Procurement 
Executive title within the FAR.
    9. Subpart 949.5 is removed and reserved. There is no longer a need 
for a DEAR termination clause for Architect-Engineer contracts.
    10. Section 951.102 paragraph (e)(4) is amended to remove the 
``(iii)'' in the paragraph numbering to conform with numbering in the 
FAR.
    11. Section 952.247-70 is amended to remove repetitive language.
    12. The rule text is amended as noted in the table at paragraph 16, 
by removing ``FAR'' or ``FAR part'' and replacing it with ``48 CFR'' or 
``48 CFR part'' and by updating other CFR citations. Section 931.205-
47(h)(1) is amended by changing the capitalization of the word ``part'' 
in two places. Section 952 has several changes in punctuation at 
952.235-71 and 952.250-70.

III. 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 rule 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 United 
States 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

[[Page 29457]]

3(b) to determine whether they are met or if 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.

C. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires that 
an agency prepare an initial regulatory flexibility analysis for any 
regulation for which a general notice or rulemaking is required, unless 
the agency certifies that the rule, if promulgated, will not have a 
significant economic impact on a substantial number of small entities 
(5 U.S.C. 605(b)). This rule updates references in the DEAR that apply 
to public contracts and does not impose any additional requirements on 
small businesses. Today's rule does not alter any substantive rights or 
obligations and, consequently, today's rule will not have a significant 
cost or administrative impact on contractors, including small entities. 
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 final rule does not impose a collection of information 
requirement subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq. Existing burdens associated with the collection of certain 
contractor data under the DEAR have been cleared under OMB control 
number 1910-4100.

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, today's 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 rule does not impose any 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 rulemaking or policy that may 
affect family well-being. This rule 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 
Office of Information and Regulatory Affairs of the 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; (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. 
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.

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 today's rule has been approved by the Office of the 
Secretary.

[[Page 29458]]

List of Subjects in 48 CFR parts 928, 931, 932, 933, 935, 936, 937, 
941, 942, 949, 950, 951, and 952

    Government procurement.

    Issued in Washington, DC on May 19, 2010.
Patrick M. Ferraro,
Acting Director, Department of Energy.
Joseph F. Waddell,
Acting Director, Office of Acquisition and Supply Management, National 
Nuclear Security Administration.


0
For the reasons set out in the preamble, the Department of Energy 
amends Chapter 9 of Title 48 of the Code of Federal Regulations as set 
forth below.
0
1. The authority citations for parts 928, 931, 932, 933, 935, 936, 941, 
and 942, continue to read as follows:

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

PART 932--CONTRACT FINANCING

0
2. Section 932.501-2 is amended by revising paragraph (a)(3) to read as 
follows:


932.501-2  Unusual progress payments.

    (a)(3) For DOE, the Head of the Contracting Activity shall forward 
all requests which are considered favorable, with supporting 
information, to the DOE Senior Procurement Executive, who, after 
coordination with the Chief Financial Officer, Headquarters, will 
approve or deny the request. For NNSA, the NNSA Senior Procurement 
Executive will coordinate with the NNSA Chief Financial Officer before 
approving or denying the request.
* * * * *


932.605  [Redesignated as 932.602]

0
3. Section 932.605 is redesignated as 932.602 and newly redesignated 
932.602 is amended by:
0
a. Revising the section heading as set forth below; and
0
b. Removing the paragraph designation ``(b)''.
0
The revision reads as follows:


932.602  Responsibilities.

* * * * *

PART 935--RESEARCH AND DEVELOPMENT CONTRACTING

0
4. Revise section 935.010 to read as follows:


935.010  Scientific and technical reports.

    (c) All research and development contracts which require reporting 
of research and development results conveyed in scientific and 
technical information (STI) shall include an instruction requiring the 
contractor to submit all STI, including reports and notices relating 
thereto, electronically to the U.S. Department of Energy (DOE), Office 
of Scientific and Technical Information (OSTI), using the DOE Energy 
Link System (E-link) at http://www.osti.gov/elink. The phrase ``reports 
and notices relating thereto'' does not include reports or notices 
concerning administrative matters such as contract cost or financial 
data and information. The DOE Order 241.1B Scientific and Technical 
Information Management, or its successor version, sets forth 
requirements for STI management.
    (d) As prescribed in DOE Order 241.1B, the contracting officer 
shall ensure that the requirements of the attendant Contractor 
Requirements Document are included in applicable contracts.

PART 936--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

0
5. Section 936.202 is redesignated as 936.202-70 and the section 
heading is revised to read as follows:


936.202-70  Specifications charges.

* * * * *

0
6. The authority citation for parts 937 and 949 is revised to read as 
follows:

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

PART 937--SERVICE CONTRACTING

0
7. Add a new subpart 937.2, consisting of section 937.204, to read as 
follows:

Subpart 937.2--Advisory and Assistance Services


937.204  Guidelines for determining availability of personnel.

    (a) The determination, that there is sufficient DOE personnel with 
the requisite training and capabilities for each evaluation or analysis 
of proposals, shall be determined in accordance with 915.207-
70(f)(2)(i).
    (b) If it is determined that there is no such DOE personnel 
available, then other Federal agencies may have the required personnel 
with the requisite training and capabilities for the evaluation or the 
analysis of proposals. The determination, to use employees of other 
Federal agencies for the evaluation or analysis of proposals, shall be 
in accordance with 915.207-70(f)(2)(ii).
    (d) The determination, to employ non-Federal evaluators or 
advisors, shall be determined in accordance with 915.207-70(f)(3).
    (e) The determination that covered personnel are unavailable for a 
class of proposals, necessitating employment of non-Federal evaluators 
or advisors, shall be determined in accordance with 915.207-70(f)(3).

PART 941--ACQUISITION OF UTILITY SERVICES

0
8. Section 941.201-70 is revised to read as follows:


941.201-70  DOE Directives.

    Utility services (defined at 48 CFR 41.101) shall be acquired in 
accordance with 48 CFR part 41 and the Department of Energy (DOE) Order 
430.2B, Departmental Energy, Renewable Energy and Transportation 
Management, or its successor.

PART 942--CONTRACT ADMINISTRATION


942.803  [Amended]

0
9. Amend section 942.803 in the last sentence of paragraph (c)(1) by 
removing the phrase ``, as discussed in 942.70 Audit Services''.

PART 949--TERMINATION OF CONTRACTS


949.101  [Amended]

0
10. Section 949.101 is amended by adding ``Senior'' before 
``Procurement Executive''.

Subpart 949.5 [Removed and Reserved]

0
11. Subpart 949.5, consisting of section 949.501 and 949.505, is 
removed and reserved.

PART 950--EXTRAORDINARY CONTRACTUAL ACTIONS AND THE SAFETY ACT

0
12. The authority citation for part 950 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.

PART 951--USE OF GOVERNMENT SOURCES BY CONTRACTORS

0
13. The authority citation for part 951 continues to read as follows:

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


951.102  [Amended]

0
14. Section 951.102 is amended by revising the paragraph designation 
``(e)(4)(iii)'' to read ``(e)(4)''.

[[Page 29459]]

PART 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
15. The authority citation for part 952 is revised 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.


0
16. Section 952.247-70 is amended by:
0
a. Revising the date of the clause to read as set forth below; and
0
b. Removing ``or its successor Official Foreign Travel, or any 
subsequent version of the order'' in the clause and adding in its place 
``Official Foreign Travel, or its successor''.
    The revision reads as follows:


952.247-70  Foreign travel.

* * * * *

FOREIGN TRAVEL JUN 2010

* * * * *

PARTS 928, 931, 932, 933, 936, 937, 941, 942, 950, 951, and 952 
[AMENDED]

0
17. In the table below, for each section indicated in the left column, 
remove the word indicated in the middle column from where it appears in 
the section, and add the word in the right column:

------------------------------------------------------------------------
             Section                    Remove                Add
------------------------------------------------------------------------
928.101-1.......................  ``FAR''...........  ``48 CFR''
928.301.........................  ``FAR Part''......  ``48 CFR part''
931.102 in 2 places.............  ``FAR''...........  ``48 CFR''
931.102.........................  ``FAR Part 31''...  ``48 CFR part 31''
931.205-32(a)...................  ``FAR''...........  ``48 CFR''
931.205-47(h)(1), in the          ``29 CFR Part       ``29 CFR part
 Employee whistleblower action     24,''.              24,''
 definition.
931.205-47(h)(1), in the          ``10 CFR Part       ``10 CFR part
 Employee whistleblower action     708''.              708''
 definition.
932.006-4(a)....................  ``FAR''...........  ``48 CFR''
932.803(d)......................  ``FAR''...........  ``48 CFR''
932.7004-1 in 3 places..........  ``FAR''...........  ``48 CFR''
932.7004-3(a)...................  ``FAR''...........  ``48 CFR''
933.103(k)......................  ``FAR''...........  ``48 CFR''
933.104(b)......................  ``FAR''...........  ``48 CFR''
933.104(c)......................  ``FAR''...........  ``48 CFR''
933.104(g)......................  ``FAR''...........  ``48 CFR''
933.106(a)......................  ``FAR''...........  ``48 CFR''
936.602-70(a)(8)................  ``FAR''...........  ``48 CFR''
936.609-3.......................  ``FAR''...........  ``48 CFR''
936.7100........................  ``FAR Part''......  ``48 CFR part''
937.7040........................  ``FAR''...........  ``48 CFR''
942.704(b) in 2 places..........  ``FAR''...........  ``48 CFR''
942.705-1(b)(1).................  ``FAR''...........  ``48 CFR''
950.7003(a) in the first          ``(DOE)''.........  ``DOE''
 sentence.
951.102(a)......................  ``FAR Part''......  ``48 CFR part''
951.102(a)......................  ``DOE PMR 41 CFR    ``DOE PMR 41 CFR
                                   109-26''.           109''
952.233-2 in the introductory     ``FAR''...........  ``48 CFR''
 text.
952.233-4(a)....................  ``FAR''...........  ``48 CFR''
952.233-4(b)....................  ``FAR''...........  ``48 CFR''
952.235-71(b)(1)................  ``warranted;''....  ``warranted.''
952.250-70(e)(2)................  ``which:''........  ``which--''
------------------------------------------------------------------------

[FR Doc. 2010-12520 Filed 5-25-10; 8:45 am]
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