[Federal Register Volume 84, Number 166 (Tuesday, August 27, 2019)]
[Rules and Regulations]
[Pages 44750-44753]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-18297]
-----------------------------------------------------------------------
DEPARTMENT OF ENERGY
48 CFR Part 970
RIN 1991-AC14
Inclusion of Early Stage Technology Demonstration in Authorized
Technology Transfer Activities
AGENCY: Office of Management, Department of Energy.
ACTION: Final rule; technical amendments.
-----------------------------------------------------------------------
SUMMARY: The Department of Energy (DOE) is publishing this final rule
to amend its current acquisition regulations regarding allowability of
costs associated with technology transfer activities pursuant to the
Stevenson-Wydler Technology Innovation Act of 1980, as amended. The
content of these technical amendments correspond with the provisions
enacted by Congress through the Department of Energy Research and
Innovation Act.
DATES: This rule is effective August 27, 2019.
ADDRESSES: The docket, which includes Federal Register notices and
other supporting documents/materials, is available for review at
https://www.regulations.gov. All documents in the docket are listed in
the https://www.regulations.gov index.
A link to the docket web page can be found at https://www.regulations.gov. The docket web page will contain simple
instructions on how to assess all documents, including public comments,
in the docket.
FOR FURTHER INFORMATION CONTACT: Mr. Jason Taylor, U.S. Department of
Energy, Office of Management, at (202)-287-1560 or by email at
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Summary of This Action
III. Final Action
IV. Procedural Requirements
V. Approval of the Office of the Secretary
I. Background
Section 102 of the Department of Energy Research and Innovation
Act, Public Law 115-246 (Research and Innovation Act), amended section
1001 of EPACT 2005, 42 U.S.C. 16391 to require DOE to permit specified
National Laboratories owned by DOE to use funds authorized to support
technology transfer within DOE to carry out early stage and
precommercial technology demonstration activities to remove technology
barriers that limit private sector interest and demonstrate potential
commercial applications of any research and technologies arising from
National Laboratory activities.
The Technology Transfer Mission clause at 48 CFR 970.5227-3
(paragraph (c)(1)) currently limits the use of funds used to support
Office of Research and Technology Applications (ORTAs) to three
categories: (1) Obtaining, maintaining, licensing, and assigning
Intellectual Property rights; (2) increasing the potential for the
transfer of technology; and (3) providing widespread notice of
technology
[[Page 44751]]
transfer opportunities. Pursuant to the Research and Innovation Act,
DOE is modifying its acquisition regulation by amending the text of the
Technology Transfer Mission clause to add (as a fourth category) early
stage and precommercial technology demonstration activities to
paragraph (c)(1), ``Allowable costs''.
II. Summary of This Action
As a result of the change imposed by the Research and Innovation
Act, DOE amends Sec. 970.5227-3(c)(1) by revising the second sentence
to add ``early stage and precommercial technology demonstration to
remove barriers that limit private sector interest and demonstrate
potential commercial applications of any research and technologies
arising from Laboratory activities.'' DOE welcomes information on the
early stage and precommercial technology demonstration activities that
may be enabled at the DOE National Laboratories through the use of
funds available for technology transfer.
III. Final Action
DOE has determined, pursuant to 5 U.S.C. 553(b)(B), that prior
notice and an opportunity for public comment on this final rule are
unnecessary. This rule inserts into the CFR, for the benefit of the
public, the Research and Innovation Act requirement that DOE permit the
directors of the National Laboratories to use funds authorized to
support technology transfer within the Department to carry out early
stage and precommercial technology demonstration activities to remove
technology barriers that limit private sector interest and demonstrate
potential commercial applications of any research and technologies
arising from National Laboratory activities. DOE exercises no
discretion in amending its regulations to implement this statutory
requirement. DOE, therefore, finds that good cause exists to waive
prior notice and an opportunity to comment for this rulemaking. For the
same reasons, DOE, pursuant to 5 U.S.C. 553(d)(3), finds that good
cause exists for making this final rule effective upon publication in
the Federal Register.
IV. Procedural Requirements
A. Review Under Executive Order 12866, ``Regulatory Planning and
Review''
This final rule is a not a ``significant regulatory action'' under
the criteria set out in section 3(f) of Executive Order 12866,
``Regulatory Planning and Review.'' 58 FR 51735 (October 4, 1993).
Accordingly, this action was not subject to review by the Office of
Information and Regulatory Affairs (``OIRA'') in the Office of
Management and Budget (``OMB'').
B. Review Under Executive Orders 13771 and 13777
On January 30, 2017, the President issued Executive Order 13771,
``Reducing Regulation and Controlling Regulatory Costs.'' That Order
stated the policy of the executive branch is to be prudent and
financially responsible in the expenditure of funds, from both public
and private sources. The Order stated it is essential to manage the
costs associated with the governmental imposition of private
expenditures required to comply with Federal regulations. This final
rule is expected to be an E.O. 13771 deregulatory action.
Additionally, on February 24, 2017, the President issued Executive
Order 13777, ``Enforcing the Regulatory Reform Agenda.'' The Order
required the head of each agency designate an agency official as its
Regulatory Reform Officer (RRO). Each RRO oversees the implementation
of regulatory reform initiatives and policies to ensure that agencies
effectively carry out regulatory reforms, consistent with applicable
law. Further, E.O. 13777 requires the establishment of a regulatory
task force at each agency. The regulatory task force is required to
make recommendations to the agency head regarding the repeal,
replacement, or modification of existing regulations, consistent with
applicable law. At a minimum, each regulatory reform task force must
attempt to identify regulations that:
(i) Eliminate jobs, or inhibit job creation;
(ii) Are outdated, unnecessary, or ineffective;
(iii) Impose costs that exceed benefits;
(iv) Create a serious inconsistency or otherwise interfere with
regulatory reform initiatives and policies;
(v) Are inconsistent with the requirements of Information Quality
Act, or the guidance issued pursuant to that Act, in particular those
regulations that rely in whole or in part on data, information, or
methods that are not publicly available or that are insufficiently
transparent to meet the standard for reproducibility; or
(vi) Derive from or implement Executive Orders or other
Presidential directives that have been subsequently rescinded or
substantially modified.
DOE concludes that this final rule is consistent with the
requirements set forth in these executive orders. The Research and
Innovation Act amends EPACT 2005 to require DOE to permit the directors
of the National Laboratories to use funds authorized to support
technology transfer within the Department to carry out early stage and
precommercial technology demonstration activities to remove technology
barriers that limit private sector interest and demonstrate potential
commercial applications of any research and technologies arising from
National Laboratory activities. The current regulatory language does
not permit such use of these funds. Therefore, this final rule is an
Executive Order 13771 deregulatory action.
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. The Department
has made its procedures and policies available on the Office of General
Counsel's website: http://energy.gov/gc/office-general-counsel. This
rule revises the Code of Federal Regulations to incorporate, without
substantive change, a statutorily-required change to permit use of
funds authorized to support technology transfer to carry out early
stage and precommercial technology demonstration activities to remove
technology barriers that limit private sector interest and demonstrate
potential commercial applications of any research and technologies
arising from National Laboratory activities. Because this is a
technical amendment for which a general notice of proposed rulemaking
is not required, the Regulatory Flexibility Act does not apply to this
rulemaking.
D. Review Under the Paperwork Reduction Act of 1995
This rulemaking imposes no new information or record keeping
requirements. Accordingly, Office of Management and Budget clearance is
not required under the Paperwork Reduction Act. (44 U.S.C. 3501 et
seq.)
[[Page 44752]]
E. Review Under the National Environmental Policy Act of 1969
In this rule, DOE is incorporating requirements prescribed by the
Research and Innovation Act. DOE has determined that this rule falls
into a class of actions that are categorically excluded from review
under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.) and DOE's implementing regulations at 10 CFR part 1021.
Specifically, this rule is strictly procedural and, therefore, would
not result in any environmental impacts. Thus, this rulemaking is
covered by Categorical Exclusion A6 under 10 CFR part 1021, subpart D,
which applies to procedural rulemakings. Accordingly, neither an
environmental assessment nor an environmental impact statement is
required.
F. Review Under Executive Order 13132, ``Federalism''
Executive Order 13132, ``Federalism,'' 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. The Executive Order requires agencies to
examine the constitutional and statutory authority supporting any
action that would limit the policymaking discretion of the States and
to carefully assess the necessity for such actions. The Executive Order
also requires agencies to have an accountable 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 determined that
this rule does not limit the policymaking discretion of the States. No
further action is required by Executive Order 13132.
G. Review Under Executive Order 12988, ``Civil Justice Reform''
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
Federal 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. 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, this final rule meets the relevant standards of
Executive Order 12988.
H. Review Under the Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA)
requires each Federal agency to assess the effects of Federal
regulatory actions on State, local, and Tribal governments and the
private sector. (Pub. L. 104-4, sec. 201 (codified at 2 U.S.C. 1531)).
For a proposed regulatory action likely to result in a rule that may
cause the expenditure by State, local, and Tribal governments, in the
aggregate, or by the private sector of $100 million or more in any one
year (adjusted annually for inflation), section 202 of UMRA requires a
Federal agency to publish a written statement that estimates the
resulting costs, benefits, and other effects on the national economy.
(2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to
develop an effective process to permit timely input by elected officers
of State, local, and Tribal governments on a proposed ``significant
intergovernmental mandate,'' and requires an agency plan for giving
notice and opportunity for timely input to potentially affected small
governments before establishing any requirements that might
significantly or uniquely affect small governments. On March 18, 1997,
DOE published a statement of policy on its process for
intergovernmental consultation under UMRA (62 FR 12820) (also available
at http://www.gc.doe.gov). This final rule contains neither an
intergovernmental mandate nor a mandate that may result in the
expenditure of $100 million or more in any year, so these requirements
under the Unfunded Mandates Reform Act do not apply.
I. 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 that may affect family well-being.
This final rule would not have any 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.
J. Review Under Executive Order 12630, ``Governmental Actions and
Interference With Constitutionally Protected Property Rights''
The Department has determined, under Executive Order 12630,
``Governmental Actions and Interference with Constitutionally Protected
Property Rights,'' 53 FR 8859 (March 18, 1988), that this rule would
not result in any takings which might require compensation under the
Fifth Amendment to the United States Constitution.
K. Review Under the Treasury and General Government Appropriations Act,
2001
Section 515 of 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 this final rule under the OMB and DOE guidelines and
has concluded that it is consistent with applicable policies in those
guidelines.
L. Review Under Executive Order 13211, ``Actions Concerning Regulations
That Significantly Affect Energy Supply, Distribution, or Use''
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
Office of Information and Regulatory Affairs (OIRA), Office of
Management and Budget, a Statement of Energy Effects for any proposed
significant energy action. A ``significant energy action'' is defined
[[Page 44753]]
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.
This final rule, which incorporates recently-enacted statutory
provisions into DOE's regulations, would not have a significant adverse
effect on the supply, distribution, or use of energy and, therefore, is
not a significant energy action.
M. Congressional Notification
As required by 5 U.S.C. 801, DOE will report to Congress on the
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(2).
V. Approval of the Office of the Secretary
The Secretary of Energy has approved publication of this final
rule.
List of Subjects in 48 CFR Part 970
Government procurement.
Signed in Washington, DC, July 24, 2019.
John R. Bashista,
Director, Office of Acquisition Management, Department of Energy.
S. Keith Hamilton,
Deputy Associate Administrator, Acquisition and Project Management,
National Nuclear Security Administration.
For the reasons set forth in the preamble, DOE hereby amends
chapter 9, subchapter I, of title 48 of the Code of Federal Regulations
as set forth below:
PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS
0
1. 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.
0
2. Section 970.5227-3 is amended by revising the clause date and the
second sentence of paragraph (c)(1) to read as follows:
970.5227-3 Technology transfer mission.
* * * * *
Technology Transfer Mission (AUG 2019)
* * * * *
(c) * * *
(1) * * * The costs associated with the conduct of technology
transfer through the ORTA including activities associated with
obtaining, maintaining, licensing, and assigning Intellectual
Property rights, increasing the potential for the transfer of
technology, widespread notice of technology transfer opportunities,
and early stage and precommercial technology demonstration to remove
barriers that limit private sector interest and demonstrate
potential commercial applications of any research and technologies
arising from Laboratory activities, shall be deemed allowable
provided that such costs meet the other requirements of the
allowable cost provisions of this Contract.* * *
* * * * *
[FR Doc. 2019-18297 Filed 8-26-19; 8:45 am]
BILLING CODE 6450-01-P