[Federal Register Volume 59, Number 90 (Wednesday, May 11, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-11263]
[[Page Unknown]]
[Federal Register: May 11, 1994]
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DEPARTMENT OF ENERGY
48 CFR Parts 904, 905, 914, 915, 917, 919, 936, 943, 952, and 970
Acquisition Regulation; Updated Coverage
AGENCY: Department of Energy (DOE).
ACTION: Final rule.
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SUMMARY: The Department today issues a final rule to amend the
Department of Energy Acquisition Regulation (DEAR). This rule
represents the Department's initial effort in meeting the intent of
Executive Order 12861, Elimination of One-Half of Executive Branch
Internal Regulations, as applied to its acquisition regulation. The
rule deletes obsolete coverage, updates existing coverage, and
clarifies existing coverage in the areas of sensitive foreign nation
controls, special research contracting, rental of construction
equipment, use of Standard Form 30, Amendment of Solicitation
Modification of Contract, incorporation of contract clauses by
reference, subcontractor representations and certifications, and
conduct of contractor employees. These changes are summarized in the
``Section-by-Section Analysis'' appearing later in this document.
EFFECTIVE DATE: This final rule will be effective July 11, 1994.
FOR FURTHER INFORMATION CONTACT: Kevin M. Smith, Procurement Policy
Division (HR-521.1), Department of Energy, 1000 Independence Avenue,
SW., Washington, DC 20585, (202) 586-8189.
SUPPLEMENTARY INFORMATION:
I. Section-by-Section Analysis
II. Public Comments
III. Procedural Requirements
A. Regulatory Review
B. Review Under Executive Order 12778
C. Review Under the Regulatory Flexibility Act
D. Review Under the Paperwork Reduction Act
E. Review Under Executive Order 12612
F. Review Under the National Environmental Policy Act
I. Section-by-Section Analysis
A detailed list of changes follows:
1. Section 904.404 is amended to reference the updated version of
Department of Energy Order 1240.2, Unclassified Visits and Assignments
by Foreign Nationals.
2. Subsection 904.601-71, paragraph (b) is revised to delete two
references to special research contracts, which are no longer used by
the Department.
3. Subsection 905.403-70, paragraph (c) is deleted to remove a
reference to special research contracts, which are no longer used by
the Department.
4. Subsection 914.201-5, paragraph (b) is deleted to remove the
requirement to include the solicitation provision at 952.215-70,
Required subcontractor representations and certifications. This
solicitation provision is being deleted as noted below.
5. Subsection 915.406-5, paragraph (d) is deleted to remove the
requirement to include the solicitation provision at 952.215-70,
Required subcontractor representations and certifications.
6. Subpart 917.71 is deleted to remove obsolete coverage addressing
Special Research Contracts with Educational Institutions. This type of
contract has not been used by DOE for several years, and, pursuant to
FAR 1.302, continued DEAR coverage is neither appropriate nor necessary
to satisfy the specific needs of the agency.
7. Subsection 919.705-2, paragraph (a), fourth sentence is revised
to remove the reference to special research contracts, which are no
longer used by the Department.
8. Subparts 936.70 and 936.73 are deleted to remove obsolete
coverage addressing Rental of Construction Equipment and the Outline
for Equipment Rental Agreement. These procedures have not been used by
DOE for several years, and, pursuant to FAR 1.302, continued DEAR
coverage is neither appropriate nor necessary to satisfy the specific
needs of the agency.
9. Section 943.301 is amended to remove language that is
duplicative of FAR coverage addressing the use of Standard Form 30 for
the deobligation of contract funds.
10. Subpart 952.1 is deleted to remove language addressing the
incorporation of provisions and clauses by reference. The appropriate
guidance is contained in the FAR.
11. Subsection 952.212-72 is revised to delete a reference to
special research contracts, which are no longer used by the Department.
12. Subsection 952.215-70 is deleted to remove language addressing
subcontractor representations and certifications. The appropriate
guidance is contained in the FAR.
13. Subsection 970.0404-4(a)(3) is deleted to remove the
requirement to include clause 970.5204-34, Sensitive Foreign Nations
Control, in management and operating contracts. This clause applies
solely to unclassified research contracts that may involve making
unclassified information about nuclear technology available to certain
sensitive foreign nations, and not to management and operating
contracts which encompass broader missions than those contained in
unclassified research contracts.
14. Section 970.2272 is amended to remove obsolete language
addressing conflict of interest policies for management and operating
contracts with colleges and universities. The referenced ``Policy of
the Federal Council for Science and Technology Relating to Conflicts of
Interest by Staff Members of Colleges and Universities'' is no longer
utilized by DOE, and, pursuant to FAR 1.302, continued DEAR coverage is
neither appropriate nor necessary to satisfy the specific needs of the
agency.
15. Subsection 970.5204-12 is amended to clarify the prescription
for use of alternate language in the clause which addresses the
responsibility of management and operating contractors for the conduct
of their employees.
16. Subsection 970.5204-34 is deleted to remove the requirement to
include clause 970.5204-34, Sensitive Foreign Nations Control, in
Management and Operating contracts. The clause does not apply to these
contracts, as identified in the change to Subsection 970.0404-4(a)(3)
above.
17. Subsection 970.5204-35 is amended to include a reference to
Department of Energy Order 1240.2, Unclassified Visits and Assignments
by Foreign Nationals, which had been omitted from the clause language.
II. Public Comments
These amendments were announced in a notice of proposed rulemaking
in the December 2, 1993, Federal Register (58 FR 63553). DOE invited
interested persons to participate in this rulemaking by submitting
data, views or arguments with respect to the DEAR amendments set forth
in the notice of proposed rulemaking. The public comment period closed
on January 31, 1994, a period of 60 days. During that period, no
comments were received; however, comments were received from one
interested party after the closing date and were subsequently
considered by DOE prior to issuing this final rule.
The comments addressed DEAR 952.215-70, Required subcontractor
representations and certifications, stating that the DEAR coverage did
not recognize the dollar thresholds identified in the FAR for
applicability of the representations and certifications to
subcontractors. After review of these comments and the guidance
contained in DEAR 952.215-70, it was determined that the requirements
contained in FAR do not need supplementary coverage in the DEAR.
Therefore, DEAR 952.215-70 will be deleted. Additionally, subsections
914.201-5(b) and 915.406-5(d) are deleted to remove the prescriptions
for including this solicitation provision.
III. Procedural Requirements
A. Regulatory Review
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, today's action was not subject to review, under that
Executive Order, by the Office of Information and Regulatory Affairs of
the Office of Management and Budget (OMB).
B. Review Under Executive Order 12778
Section 2 of Executive Order 12778 instructs each agency to adhere
to certain requirements in promulgating new regulations and reviewing
existing regulations. These requirements, set forth in sections 2(a)
and (b), include eliminating drafting errors and needless ambiguity,
drafting the regulations to minimize litigation, providing clear and
certain legal standards for affected conduct, and promoting
simplification and burden reduction. Agencies are also instructed to
make every reasonable effort to ensure that the regulation specifies
clearly any preemptive effect, effect on existing Federal law or
regulation, and retroactive effect; describes any administrative
proceedings to be available prior to judicial review and any provisions
for the exhaustion of such administrative proceedings; and defines key
terms. DOE certifies that this rule meets the requirements of sections
2(a) and (b) of Executive Order 12778.
C. Review Under the Regulatory Flexibility Act
This rule was reviewed under the Regulatory Flexibility Act of
1980, Pub. L. 96-354, which requires preparation of a regulatory
flexibility analysis for any rule that is likely to have a significant
economic impact on a substantial number of small entities. This rule
will have no impact on interest rates, tax policies or liabilities, the
cost of goods or services, or other direct economic factors. It will
also not have any indirect economic consequences such as changed
construction rates. DOE certifies that this rule will 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 the Paperwork Reduction Act
No new information collection or recordkeeping requirements are
imposed by this rule. Accordingly, no OMB clearance is required under
the Paperwork Reduction Act of 1980 (44 U.S.C. 3501, et seq.).
E. Review Under Executive Order 12612
Executive Order 12612, entitled ``Federalism,'' 52 FR 41685
(October 30, 1987), requires that regulations, rules, legislation, and
any other policy actions be reviewed for any substantial direct effects
on States, on the relationship between the Federal Government and the
States, or in the distribution of power and responsibilities among
various levels of government. If there are sufficient substantial
direct effects, then the Executive Order requires preparation of a
federalism assessment to be used in all decisions involved in
promulgating and implementing a policy action. This rule will apply to
States that contract with DOE; however, none of the revisions is
substantive in nature.
F. Review Under the National Environmental Policy Act
DOE has concluded that this rule would not represent a major
Federal action having significant impact on the human environment under
the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321,
et seq.) (1976) or the Council on Environmental Quality Regulations (40
CFR Parts 1500-1508) and, therefore, does not require an environmental
impact statement or an environmental assessment pursuant to NEPA.
List of Subjects in 48 CFR Parts 904, 905, 914, 915, 917, 919, 936,
943, 952, and 970
Government procurement.
Issued in Washington, DC, on May 4, 1994.
Richard H. Hopf,
Deputy Assistant Secretary for Procurement and Assistance Management.
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.
1. The authority citation for Parts 904, 917, 936, 943, and 952
continues to read as follows:
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
PART 904--ADMINISTRATIVE MATTERS
904.404 [Amended]
2. Section 904.404 is amended by revising the second sentence of
paragraph (d)(3) to read as follows:
904.404 Contract clause.
(d) * * *
(3) * * * The contractor shall be provided at the time of award the
listing of nations included in DOE 1240.2 (see current version.),
Attachment 3, and any subsequent changes. * * *
* * * * *
904.601-71 [Amended]
3. Subsection 904.601-71 is amended in paragraph (b) by removing
the words ``special research contracts and'' in the second sentence,
and by removing the third sentence.
PART 905--PUBLICIZING CONTRACT ACTIONS
905.403-70 [Amended]
4. Subsection 905.403-70 is amended by removing paragraph (c).
PART 914--SEALED BIDDING
914.201-5 [Amended]
5. Subsection 914.201-5 is amended by removing paragraph (b).
PART 915--CONTRACTING BY NEGOTIATION
915.406-5 [Amended]
6. Subsection 915.406-5 is amended by removing paragraph (d).
PART 917--SPECIAL CONTRACTING METHODS
917.71 [Removed]
7. Subpart 917.71 is removed.
PART 919--SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS CONCERNS
919.705-2 [Amended]
8. Subsection 919.705-2 is amended in paragraph (a), by removing
the words ``including special research contracts awarded pursuant to
Subpart 917.71,'' in the fourth sentence.
PART 936--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
936.70 and 936.73 [Removed]
9. Subparts 936.70 and 936.73 are removed.
PART 943--CONTRACT MODIFICATIONS
943.301 [Amended]
10. Section 943.301 is amended by removing the first sentence in
paragraph (c).
PART 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
952.1 [Removed]
11. Subpart 952.1 is removed.
952.212-72 [Amended]
12. Subsection 952.212-72 is amended by removing the words
``special research contracts and'' in the first sentence.
952.215-70 [Removed]
13. Subsection 952.215-70 is removed.
PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS
14. The authority citation for Part 970 continues to read as
follows:
Authority: Sec. 161 of the Atomic Energy Act of 1954 (42 U.S.C.
2201), sec. 644 of the Department of Energy Organization Act, Pub.
L. 95-91 (42 U.S.C. 7254), sec. 201 of the Federal Civilian Employee
and Contractor Travel Expenses Act of 1985 (41 U.S.C. 420) and sec.
1534 of the Department of Defense Authorization Act, 1986, Pub. L.
99-145 (42 U.S.C. 7256a), as amended.
970.0404-4 [Amended]
15. Subsection 970.0404-4 is amended by removing paragraph (a)(3).
970.2272 [Amended]
16. Section 970.2272 is amended by removing the second sentence of
paragraph (a).
970.5204-12 [Amended]
17. Subsection 970.5204-12 is amended by removing ``NOTE: In
contracts identified in 970.2272, the following paragraph shall be
substituted for (c) above:'' following the first paragraph (c) and
adding ``NOTE: The contracting officer may substitute the following
paragraph for (c) above:'' in its place.
970.5204-34 [Removed]
18. Subsection 970.5204-34 is removed.
970.5204-35 [Amended]
19. Subsection 970.5204-35 is amended by removing the phrase
``specified in Attachment ________ to this contract,'' and adding the
phrase ``1240.2 (see current version.), Unclassified Visits and
Assignments by Foreign Nationals,'' in its place.
[FR Doc. 94-11263 Filed 5-10-94; 8:45 am]
BILLING CODE 6450-01-P
