[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]


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 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.

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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