```

[Federal Register Volume 77, Number 241 (Friday, December 14, 2012)]
[Rules and Regulations]
[Pages 74382-74389]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-30189]

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DEPARTMENT OF ENERGY

48 CFR Parts 908, 945, 952, and 970

RIN 1991-AB86

Acquisition Regulation: Department of Energy Acquisition 
Regulation, Government Property

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) to conform to the Federal 
Acquisition Regulation (FAR), remove out-of date government property 
coverage, and update references. This rule does not alter substantive 
rights or obligations under current law.

DATES: Effective Date: January 14, 2013.

FOR FURTHER INFORMATION CONTACT: Helene Abbott at (202) 287-1593 or via 
email: helene.abbott@hq.doe.gov.

SUPPLEMENTARY INFORMATION:

I. Background
II. Comment Resolution
III. Section-by-Section Analysis
IV. 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

    DOE is amending Parts 908, Required Sources of Supplies and 
Services, 945, Government Property, 952, Solicitation Provisions and 
Contract Clauses, and 970, Management and Operating Contracts, to 
remove out-of-date coverage, to update references and to conform to the 
FAR.
    This final rule contains several administrative changes that will 
not substantially change the content of the regulation. Changes include 
adding correct citations; correcting office names; updating vehicle 
license tag ordering procedures; correcting the excess personal 
property screening timeframe; revising the contractor's reporting of 
sensitive item listing; and retaining the definition of ``Capital 
Equipment'' which was included in the proposed rule for deletion. After 
further analysis, it is necessary to retain the ``Capital Equipment'' 
definition for the purpose of this rule. In addition, during the review 
of the final rule, it was discovered that section 952.245-5 referenced 
FAR 52.245-5 which is ``Reserved'' under the FAR rewrite.

II. Comment Resolution.

    This final rule follows a notice of proposed rulemaking published 
in the Federal Register on March 4, 2011, 76 FR 11985. There were no 
comments received as a result of that proposed rulemaking.

III. Section-by-Section Analysis

    DOE is amending the DEAR as follows:
    1. Section 908.1102 is amended by redesignating paragraph (a) (4) 
as 908.1102-70 Vehicle leasing to conform to the FAR convention, and 
adding the phrase ``All subsequent lease renewals or extensions may be 
exercised only when General Service Administration (GSA) has advised 
that it cannot furnish the vehicle(s) as prescribed herein.''
    2. Section 908.1104(f) is amended by removing ``Federal Property 
Management Regulation (FPMR) 41 CFR 101-38.6.'' and adding in its place 
``Federal Management Regulation (FMR) 41 CFR 102-34.160, 102-34.175 and 
102-34.80'' to provide the updated citation.
    3. Section 908.7101-2 (a) is amended by removing ``FPMR 41 CFR 101-
25.304, 101-26.501, and 101-38.13 and DOE-PMR 41 CFR 109-25.304, 109-

[[Page 74383]]

38.13, and 109-38.51'' and adding in its place ``Federal Property 
Management Regulations (FPMR) 41 CFR 101-26.501, and FMR 41 CFR 102-34, 
and Department of Energy-Property Management Regulations (DOE-PMR) 41 
CFR 109-26.501'' to provide the updated citation.
    4. Section 908.7101-2 paragraph (b) is amended by removing ``on GSA 
Form 1781, Motor Vehicle Requisition--Delivery Order--Invoice,'' and 
adding in its place ``utilizing GSA's on-line system (Auto Choice)'' to 
update the procedures.
    5. Section 908.7101-3 is amended by removing in the second sentence 
``Office of Property Management'' and adding in its place ``Personal 
Property Policy Division'' to update office name. Remove ``those'' in 
the third sentence and remove in the last sentence, ``(See DOE-PMR 41 
CFR 109-38.5102-4)'' and add in its place 41 CFR 109-26.501-1 to 
correct grammar and to remove an out-of-date citation.
    6. Section 908.7101-4 is amended in paragraph (a) by removing 
``FMPR 101-38.9 and DOE-PMR 41 CFR 109-38.9'' and adding in its place 
``41 CFR 102-34.270'' and 41 CFR 109-38.402 to update the citation.
    7. Section 908.7101-5 is amended in the third sentence by removing 
``DOE-PMR 41 CFR 38.5102'' and adding in its place ``41 CFR 109-26.501-
50 and 109-26.501-51'', to update the citation.
    8. Section 908.7101-6 is amended in paragraph (a) by removing in 
the second sentence ``Office of Property Management'' and replacing it 
with ``Personal Property Policy Division'' to update office name; and 
remove the last three sentences and adding in their place ``Such 
forecast shall be submitted to the Property Executive, or designee, 
when requested.
    9. Section 908.7101-6 is amended in paragraph (b) by removing 
``Sedans, station wagons, and light trucks requisitioned according to 
an approved forecast, but not contracted for by GSA until the 
subsequent fiscal year, will'' and adding in its place ``Approved 
sedans, station wagons, and light trucks requisitioned, but not 
contracted for by GSA until the subsequent fiscal year, shall'' to 
update the procedures.
    10. Section 908.7101-7 is amended in paragraph (a) by removing 
``FPMR 41 CFR 101-38.303'' and adding in its place ``41 CFR 102-
34.140'' to update the citation.
    11. Section 908.7101-7 is amended in paragraph (b) by removing in 
the second sentence ``Assignments of specific ``blocks'' of tag numbers 
and the maintenance of tag records are performed by the ``Director, 
Office of Property Management,'' within the Headquarters procurement 
organization. Assignments of additional ``blocks'' of tag numbers will 
be made upon receipt of written request from field offices'' and adding 
in its place ``Assignment of new tag numbers will be made by UNICOR via 
the UNICOR online vehicle license tag ordering data base. Contractors 
must obtain approval from their Federal fleet manager or OPMO for 
ordering authorization to utilize the UNICOR data base. Director, 
Personal Property Policy Division within the Headquarters procurement 
organization will maintain tag assignment records issued by UNICOR for 
new plates'' to correct punctuation, update office name and current tag 
ordering procedures.
    12. Section 908.7101-7 is amended in paragraph (e) by removing the 
sentence and adding in its place ``See 41 CFR 109-38.202-2 and 109-
38.202-3 for additional guidance.'' to update the citation.
    13. Section 908.7102 is amended by removing the sentence and adding 
in its place ``Acquisition of aircraft shall be in accordance with 41 
CFR 102-33, subpart B and DOE Order 440.2B latest revision.'' to update 
the citation.
    14. Section 908.7103 is amended by removing ``41 CFR 101-25.302-3, 
101-25.302-4, and 101-25.302-6, and 101-25.403, and 41 CFR 109-25.302-3 
to delete outdated citations.
    15. Section 908.7104 is amended by removing ``41 CFR 101-25.302-1 
and 101-25.302-8, and 41 CFR 109-25.302-1 to delete outdated citations.
    16. Section 908.7121 is revised to update the first paragraph to 
clarify that the contracting officers shall require authorized 
contractors to follow procedures set forth in paragraphs (a) through 
(c).
    17. Section 908.7121(b) Precious metals is revised to update the 
responsible office in subparagraph (1) and add subparagraph (2) to 
reference 48 CFR 945.604-1 for contractor identification and reporting 
for contractor inventory containing precious metals or possessing 
precious metals excess.
    18. Section 908.7121(c) is amended to state that lithium is 
available from The National Nuclear Security Administration (NNSA), Y-
12 National Security Complex in Oak Ridge, TN (Y-12) and that the 
excess quantities at Y-12 are to be the first source of supply.
    19. Part 945 is amended to simplify procedures, clarify language, 
and eliminate obsolete requirements related to the management and 
disposition of Government property in the possession of contractors to 
conform to 48 CFR part 45 Government Property regulation.
    20. Section 945.000 is amended by lower casing the first letter of 
the word ``part''; by reversing ``operating and management'' to read 
``management and operating''; and by removing the second sentence in 
its entirety.
    21. Section 945.101 is amended adding a definition of sensitive 
property. For clarity, since the FAR definition of sensitive property 
was changed under FAC 2005-17 and for further emphasis by DOE, the FAR 
definition is incorporated by reference. The definition of capital 
equipment was removed in the proposed rule. However, after further 
analysis, it has been determined to retain the definition as it is 
necessary for the purpose of this rule. The definition is amended by 
removing ``a unit acquisition cost of $5,000'' and adding ``; dollar 
threshold for capital equipment is as established by the DOE Financial 
Management Handbook.''
    22. Section 945.102-70 is revised in the first paragraph, first 
sentence, by removing ``Within 30 days after the end of each fiscal 
year,'' and adding in its place ``The Head of the Contracting Activity 
may be required to report'' (this language changes what was contained 
in the proposed rule and provides clarity); and by removing ``Director, 
Office of Property Management,'' and adding in its place ``Personal 
Property Policy Division''; in paragraph (e), by removing ``dollar'' 
and adding in its place ``acquisition''; and in paragraph (e), by 
removing ``as reported on last semiannual asset report (including date 
of report),''. These changes correct the reporting process and provide 
the correct title of the receiving activity. Changes pertain to the 
Property Information Database System (PIDS) which was created by the 
Idaho National Lab and has been in use since the late 1990's. The PIDS 
system is used by both DOE and Contractors alike.
    23. Subpart 945.1 is revised to add the new section ``945.102-72 
Reporting of contractor sensitive property inventory'' to reflect the 
current sensitive property policy. To further streamline approvals for 
sensitive property list, this section deleted in its entirety and 
replace with the following language ``The contractor must develop and 
maintain a list of personal property items considered sensitive. 
Sensitive Items List must be approved by the PA/OPMO annually.''
    24. Section 945.3 is amended by redesignating subpart 945.3 and 
section 945.303-1 as section 945.170 and section 945.170-1, 
respectively and by reserving section 945.3 and by using lower case 
letters for ``property'' and ``contractors'' in the section 945.170 
title, and by adding a period at the end

[[Page 74384]]

of ``contractors''. These changes are made to conform to the FAR.
    25. Subpart 945.4 is amended by removing and reserving this subpart 
in its entirety to conform to the FAR.
    26. Section 945.5 title is amended by removing ``Management of 
Government Property in the Possession of Contractors'' and adding in 
its place ``Support Government Property Administration'' to conform to 
the FAR.
    27. Section 945.505-11 is removed in its entirety to conform to the 
FAR.
    28. Subpart 945.5 is revised by changing its title to ``945.570 
Management of Government property in the possession of contractors'' to 
conform to the FAR.
    29. Section 945.506 is removed in its entirety.
    30. Section 945.570-2 is redesignated as 945.570-1 and is amended 
at paragraph (c) the second sentence by removing ``(GSA Form 1781)'', 
and adding ``via GSA AutoChoice'' after ``should be processed''. The 
replaced information updates the DEAR to conform to GSA's current 
procedures.
    31. Redesignated 945.570-1(f) is amended by removing ``Motor 
Vehicle Rental'' and adding in its place ``Leasing of Automobiles and 
Light Trucks''.
    32. Section 945.570-7 is redesignated as 945.570-2.
    33. Section 945.570-8 is redesignated as 945.570-3 and is revised 
in section (a) in the first sentence, by removing ``(on or before 
December 1)''.
    34. Redesignated 945.570-3(b) is amended after ``DOE-owned'' by 
adding ``, GSA leased''; before ``and/or'' and by adding 
``electronically'' before ``submit''.
    35. Redesignated 945.570-3(b)(1) is amended by removing ``DOE 
Report of Motor Vehicle Data (passenger vehicles)'' and adding in its 
place ``Annual Motor Vehicle Fleet Report''.
    36. Redesignated section 945.570-3(b) (2) is amended by removing 
``DOE Report of Truck Data'' and adding in its place ``Federal Fleet 
Report (41 CFR 102-34.335)''.
    37. Subpart 945.6 is amended by removing the subpart title 
``Reporting, Redistribution, and Disposal of Contractor Inventory'' and 
adding in its place ``Reporting, Reutilization, and Disposal''.
    38. Subpart 945.6 is amended by adding a new section ``945.602 
Reutilization of Government property.'' 945.602-3(a)(1) is amended in 
the second sentence by changing the screening period from 15 days to 12 
days, to conform with current procedures.
    39. Subpart 945.6 is amended by adding a new section ``945.602-70 
Local screening''.
    40. Section 945.603 is redesignated as 945.670, DOE disposal 
methods.
    41. Section 945.603-70 is amended by redesignating this section as 
``945.670-1''; and removing ``FAR Subpart 45.6'' and adding in its 
place ``48 CFR 45.606-3''. This amendment is to conform the DEAR to the 
FAR.
    42. Section 945.603-71 is redesignated as ``945.670-2''; and is 
revised by adding ``or its successor'' after ``41 CFR 109-45.50.''
    43. Subpart 945.6 is amended by adding a new section 945.603 
Abandonment, destruction or donation of excess personal property which 
refers to 48 CFR 945.670 for disposal methods. These changes are made 
to conform to the FAR and move current DEAR information to a new 
section.
    44. Subpart 945.6 is amended by adding a new section 945.604 
Disposal of surplus property to conform to the FAR.
    45. Section 945.607-2(b) is redesignated as 945.604-1 Recovering 
precious metals. The office name and address are updated. Paragraph (d) 
references 945.670 for DOE disposal methods. By adding the other 
precious metals, we are aligning the DEAR to FAR 46.101.
    46. Section 945.608-2 is redesignated as ``945.602-3(a)'' and is 
amended by removing subparagraph (b)(1) in its entirety and adding in 
its place ``(a) Standard screening. (1) Prior to reporting excess 
property to GSA, all reportable property, as identified in Federal 
Management Regulation 41 CFR 102-36.220, shall be reported for 
centralized screening in the DOE Energy Asset Disposal System (EADS). 
Reportable excess personal property will be screened internally via the 
EADS system for a period of 12 days.'' These changes are made to update 
the DEAR to the current on-line reporting timeframe.
    47. Redesignated section 945.602-3(a)(1)(i) [previously 945.608-
2(b)(1)] is amended in the first sentence, by removing ``REAPS'' and 
adding in its place ``EADS''; in the first sentence, by removing 
``address code'' and adding in its place ``Activity Address Code 
(AAC)''; by removing the second sentence in its entirety and adding in 
its place ``The AAC will be assigned by DOE Headquarters upon receipt 
of a formal letter of authorization signed by the DOE contracting 
officer,'', and by removing the third sentence in its entirety. These 
changes are made to update the current procedure.
    48. Redesignated section 945.602-3(a)(1)(ii) is amended by removing 
the sentence in its entirety and adding a new sentence to indicate that 
any changes to an Activity Address code shall be submitted to the 
Office of Property Management, Personal Property Policy Division, 
within the Headquarters procurement organization.
    49. The section designated as 945.608-3 is removed. Section 
945.602-70 Local screening provides the correct process and title for 
property screening and disposal.
    50. The section designated as 945.608-4 is removed.
    51. Section 945.608-5 is redesignated as 945.602-3(b)(2) and is 
amended in the first paragraph, by adding ``(b) Special screening 
requirements. (2) Special test equipment with commercial components--'' 
prior to the redesignated text.
    52. Section 945.608-5(c) is redesignated as 945.602-3(b)(3).
    53. Section 945.608-6 is redesignated as 945.670-3; and is amended 
in paragraph (a) after requirements, by removing ``in accordance with 
the provisions of FAR 45.608-6.''; in both paragraphs, by removing 
``Office of Property Management Division'' and adding in its place 
``Personal Property Policy Division''; and in paragraph (b) by removing 
``HCA'' and adding in its place ``Procurement Directors''.
    54. Section 945.610-4 is redesignated as 945.671; and is amended 
after ``41 CFR 109-43.5 and 45.51'' by adding ``or its successor'', and 
adding 48 CFR 45.302 to update correct FAR citation.
    55. Section 970.5244-1(k) is amended by removing the paragraph in 
its entirety and adding in its place ``Government Property''. The 
Contractor shall establish and maintain a property management system 
that complies with criteria in 48 CFR 970.5245-1, Property, and 48 CFR 
52.245-1, Government Property.''
    56. Section 952.245-5 is modified to reference FAR 52.245-1(e)(3) 
to update citation.
    57. Section 970.5244-1 (q)(13) is added to correct an error in the 
DEAR Final Rule [74 FR 36376-36378, dated July 22, 2009] which omitted 
``Products made in Federal and penal and correctional institutions--41 
CFR 101-26.702.''
    58. Section 970.5245-1 is amended by removing and reserving 
paragraph (i)(1)(ii)(B). This amendment clarifies the contract 
conditions for property management systems approval.

[[Page 74385]]

IV. Procedural Requirements

A. Review Under Executive Orders 12866 and 13563

    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 final 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).
    DOE has also reviewed this regulation pursuant to Executive Order 
13563, issued on January 18, 2011 (76 FR 3281 (Jan. 21, 2011)). 
Executive Order 13563 is supplemental to and explicitly reaffirms the 
principles, structures, and definitions governing regulatory review 
established in Executive Order 12866. To the extent permitted by law, 
agencies are required by Executive Order 13563 to: (1) Propose or adopt 
a regulation only upon a reasoned determination that its benefits 
justify its costs (recognizing that some benefits and costs are 
difficult to quantify); (2) tailor regulations to impose the least 
burden on society, consistent with obtaining regulatory objectives, 
taking into account, among other things, and to the extent practicable, 
the costs of cumulative regulations; (3) select, in choosing among 
alternative regulatory approaches, those approaches that maximize net 
benefits (including potential economic, environmental, public health 
and safety, and other advantages; distributive impacts; and equity); 
(4) to the extent feasible, specify performance objectives, rather than 
specifying the behavior or manner of compliance that regulated entities 
must adopt; and (5) identify and assess available alternatives to 
direct regulation, including providing economic incentives to encourage 
the desired behavior, such as user fees or marketable permits, or 
providing information upon which choices can be made by the public.
    Executive Order 13563 requires agencies to use the best available 
techniques to quantify anticipated present and future benefits and 
costs as accurately as possible. In its guidance, the Office of 
Information and Regulatory Affairs has emphasized that such techniques 
may include identifying changing future compliance costs that might 
result from technological innovation or anticipated behavioral changes. 
DOE believes that today's final rule is consistent with these 
principles, including the requirement that, to the extent permitted by 
law, agencies adopt a regulation only upon a reasoned determination 
that its benefits justify its costs and, in choosing among alternative 
regulatory approaches, those approaches maximize net benefits.

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) 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 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, these regulations meet the relevant standards of 
Executive Order 12988.

C. Review Under the Regulatory Flexibility Act

    This 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 which is likely to have a significant economic impact on a 
substantial number of small entities. This rule would not have a 
significant economic impact on small entities because it imposes no 
significant burdens. Any costs incurred by DOE contractors complying 
with the rule would be reimbursed under the contract.
    Accordingly, DOE certifies that this rule would not have a 
significant economic impact on a substantial number of small entities, 
and, therefore, no regulatory flexibility analysis is required and none 
has been prepared.

D. Review Under the Paperwork Reduction Act

    This final rule contains no new information collection or 
recordkeeping requirements. Information collection or recordkeeping 
requirements mentioned in this rule relative to the collection of 
certain contractor data are the same as the previous rule. The 
clearance number is 1910-4100 with an expiration date of October 31, 
2014.

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, this rule does not require an environmental 
impact statement or an 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. DOE has examined this 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

[[Page 74386]]

$100 million or more in any single year. This rule does not impose a 
federal mandate on State, local or tribal governments or 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 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 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; (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 final 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 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

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

List of Subjects in 48 CFR Parts 908, 945, 952 and 970

    Government procurement.

    Issued in Washington, DC, on October 16, 2012.
Paul Bosco,
Director, Office of Acquisition and Project Management, Department of 
Energy.
Joseph W. Waddell,
Director, Office of Acquisition Management, National Nuclear Security 
Administration.

    For the reasons set out in the preamble, the Department of Energy 
(DOE) amends Chapter 9 of Title 48 of the Code of Federal Regulations 
as set forth below.

PART 908--REQUIRED SOURCES OF SUPPLIES AND SERVICES

0
1. The authority citation for part 908 continues to read as follows:

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

0
2. Section 908.1102 is revised to read as follows:

908.1102  Presolicitation requirements.

0
3. Section 908.1102-70 is added to read as follows:

908.1102-70  Vehicle leasing.

    (a)(4) Commercial vehicle lease sources may be used only when the 
General Services Administration (GSA) has advised that it cannot 
furnish the vehicle(s) through the Interagency Motor Pool System and it 
has been determined that the vehicle(s) are not available through the 
GSA Consolidated Leasing Program. All subsequent lease renewals or 
extensions may be exercised only when GSA has advised that it cannot 
furnish the vehicle(s) as prescribed herein.

908.1104  [Amended]

0
4. Section 908.1104 is amended by removing ``(FPMR) 41 CFR 101-38.6'' 
in paragraph (f) and adding in its place ``Federal Management 
Regulation (FMR) 41 CFR 102-34.160, 102-34.175, and 102-34.180''.

0
5. Section 908.7101-2 is amended by:
0
a. Revising paragraph (a); and
0
b. Removing ``on GSA Form 1781, Motor Vehicle Requisition--Delivery 
Order--Invoice,'' in paragraph (b), and adding in its place ``utilizing 
GSA's on-line system (Auto Choice)''.
    The revision reads as follows:

908.7101-2  Consolidated acquisition of new vehicles by General 
Services Administration.

    (a) New vehicles shall be procured in accordance with Federal 
Property Management Regulations (FPMR) 41 CFR 101-26.501, and 41 CFR 
102-1 through 102-220, and Department of Energy Property Management 
Regulations (DOE-PMR) 41 CFR 109-26.501. Orders for all motor vehicles 
must be placed utilizing GSA's online vehicle purchasing system 
(AutoChoice).
* * * * *

908.7101-3  [Amended]

0
6. Section 908.7101-3 is amended by:
0
a. Removing in the second sentence ``Office of Property Management'' 
and adding in its place ``Personal Property Policy Division.'';
0
b. Removing ``those'' in the third sentence; and
0
c. Removing ``(See DOE-PMR 41 CFR 109-38.5102-4)'' in the last sentence 
and adding in its place ``(See 41 CFR 109-26.501-1)''.

908.7101-4  [Amended]

0
7. Section 908.7101-4 is amended by removing ``FPMR 41 CFR 101-38.9 and 
DOE-PMR 41 CFR 109-38.9'' in paragraph (a), and adding in its place 
``41 CFR 102-34.270 and 109-38.402''.

908.7101-5  [Amended]

0
8. Section 908.7101-5 is amended by removing ``DOE-PMR 41 CFR 109-
38.5102,'' in the third sentence and adding in its place ``41 CFR 109-
26.501-50 and 109-26.501-51,''.

908.7101-6  [Amended]

0
9. Section 908.7101-6 is amended by:
0
a. Removing in paragraph (a), in the second sentence ``Office of 
Property Management'' and adding in its place ``Personal Property 
Policy Division''; and
0
b. Removing the last three sentences in paragraph (a), and adding one 
sentence in their place to read as set forth below;
0
c. Removing ``Sedans'' and adding ``Approved sedans'' at the beginning 
of the first sentence of paragraph (b);

[[Page 74387]]

0
d. Removing in paragraph (b) ``according to an approved forecast'' ; 
and
0
e. Removing in paragraph (b) ``will'' and adding in its place 
``shall''.

908.7101-6  Acquisition of fuel-efficient vehicles.

    (a) * * * Such forecast shall be submitted to the Property 
Executive, or designee.
* * * * *

0
10. Section 908.7101-7 is amended by:
0
a. Removing ``FPMR 41 CFR 101-38.303.'' in paragraph (a) and adding in 
its place ``41 CFR 102-34.140.'';
0
b. Revising paragraph (b); and
0
c. Removing ``DOE-PMR 41 CFR 109-38.3 and 109-38.6'' in paragraph (e) 
and adding in its place ``41 CFR 109-38.202-2 and 109-38.202-3''.
    The revision reads as follows:

908.7101-7  Government license tags.

* * * * *
    (b) The letter ``E'' has been designated as the prefix symbol for 
all DOE official license tags. Assignment of new tag numbers will be 
made by UNICOR via the UNICOR online vehicle license tag ordering data 
base. Contractors must obtain approval from their Federal fleet manager 
or OPMO for authorization to utilize the UNICOR data base. Director, 
Personal Property Policy Division, within the Headquarters procurement 
organization will maintain tag assignment records issued by UNICOR.
* * * * *

0
11. Section 908.7102 is revised to read as follows:

908.7102  Aircraft.

    Acquisition of aircraft shall be in accordance with 41 CFR 102-33, 
subpart B and DOE Order 440.2B latest revision.

908.7103  [Amended]

0
12. Section 908.7103 is amended by removing '' 41 CFR 101-25.302-3, 
101-25.302-4, and 101-25.302-6, and 101-25.403,'', and ``109-25.302-
3,''.

908.7104  [Amended]

0
13. Section 908.7104 is amended by removing ``101-25.302-1,'', ``and 
101-25.302-8,'' and ``109-25.302-1,''.

0
14. Section 908.7121 is revised to read as follows:

908.7121  Special materials.

    This section covers the purchase of materials peculiar to the DOE 
program. While purchases of these materials may be unclassified, the 
specific quantities, destination or use may be classified (see 
appropriate sections of the Classification Guide). Contracting officers 
shall require authorized contractors to obtain the special materials 
identified in the following subsections in accordance with the 
following procedures:
    (a) Heavy water. The Senior Program Official or designee controls 
the acquisition and production of heavy water for a given program. 
Request for orders shall be placed directly with the cognizant Senior 
Program Official or designee.
    (b) Precious metals. (1) NNSA, Y-12 National Security Complex in 
Oak Ridge, TN is responsible for maintaining the DOE supply of precious 
metals. These metals are platinum, palladium, iridium, osmium, rhodium, 
ruthenium, gold and silver. The NNSA Y-12 National Security Complex has 
assigned management of these precious metals to its Management and 
Operating (M&O) contractor. DOE and NNSA offices and authorized 
contractors shall coordinate with the Y-12 M&O contractor regarding the 
availability of these metals prior to purchasing in the open market.
    (2) For contractor inventory containing precious metals or 
possessing precious metals excess, see 945.604-1 for contractor 
identification and reporting.
    (c) Lithium. Lithium is available from Y-12 at no cost other than 
normal packing, handling, and shipping charges from Oak Ridge. The 
excess quantities at Y-12 are the first source of supply prior to 
procurement of lithium compounds from any other source.

0
15. Part 945 is revised to read as follows:

PART 945--GOVERNMENT PROPERTY

Sec.
945.000 Scope of part.
Subpart 945.1--General
945.101 Definitions.
945.102-70 Reporting of contractor-held property.
945.102-71 Maintenance of records.
945.102-72 Reporting of contractor sensitive property inventory.
945.170 Providing Government property to contractors.
945.170-1 Policy.
Subpart 945.3--[Reserved]
Subpart 945.4--[Reserved]
Subpart 945.5--Support Government Property Administration
945.570 Management of Government property in the possession of 
contractors.
945.570-1 Acquisition of motor vehicles.
945.570-2 Disposition of motor vehicles.
945.570-3 Reporting motor vehicle data.
Subpart 945.6--Reporting, Reutilization, and Disposal
945.602 Reutilization of Government property.
945.602-3 Screening.
945.602-70 Local screening.
945.603 Abandonment, destruction or donation of excess personal 
property.
945.604 Disposal of surplus property.
945.604-1 Disposal methods.
945.670 DOE disposal methods.
945.670-1 Plant clearance function.
945.670-2 Disposal of radioactively contaminated personal property.
945.670-3 Waiver of screening requirements.
945.671 Contractor inventory in foreign countries.

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

945.000  Scope of part.

    This part and 48 CFR part 45 are not applicable to the management 
of property by management and operating contractors, unless otherwise 
stated.

Subpart 945.1--General

945.101  Definitions.

    Capital equipment, as used in this part, means personal property 
items having anticipated service life in excess of two years, 
regardless of type of funding, and having the potential for maintaining 
their integrity as capital items, i.e., not expendable due to use; 
dollar threshold for capital equipment is as established by the DOE 
Financial Management Handbook.
    Personal property, as used in this part, means property of any kind 
or interest therein, except real property, records of the Federal 
Government, and nuclear and special source materials, atomic weapons, 
and by-product materials.
    Sensitive property, as used in this part, has the meaning contained 
in 48 CFR 45.101.

945.102-70  Reporting of contractor-held property.

    The Head of the Contracting Activity may be required to report the 
following information to the Personal Property Policy Division, within 
the Headquarters procurement organization:
    (a) Name and address of each contractor with DOE personal property 
in their possession, or in the possession of their subcontractors (do 
not include grantees, cooperative agreements, interagency agreements, 
or agreements with state or local governments).
    (b) Contract number of each DOE contract with Government personal 
property.
    (c) Date contractor's property management system was approved and 
by whom (DOE office, Defense Contract

[[Page 74388]]

Management Command, or the Office of Naval Research).
    (d) Date of most current appraisal of contractor's property 
management system, who conducted the appraisal, and status of the 
system (satisfactory or unsatisfactory).
    (e) Total acquisition value of DOE personal property for each DOE 
contract administered by the contracting activity.

945.102-71  Maintenance of records.

    The contracting activity shall maintain records of approvals and 
reviews of contractors' property management systems, the dollar value 
of DOE property as reported on the most recent semiannual financial 
report, and records on property administration delegations to other 
Government agencies.

945.102-72  Reporting of contractor sensitive property inventory.

    The contractor must develop and maintain a list of personal 
property items considered sensitive. Sensitive Items List must be 
approved by the PA/OPMO annually.

945.170  Providing Government property to contractors.

945.170-1  Policy.

    The DOE has established specific policies concerning special 
nuclear material requirements needed under DOE contracts for 
fabricating end items using special nuclear material, and for 
conversion or scrap recovery of special nuclear material. Special 
nuclear material means uranium enriched in the isotopes U233 or U235, 
and/or plutonium, other than PU238. The policies to be followed are:
    (a) Special nuclear material will be furnished by the DOE for 
fixed-price contracts and subcontracts, at any tier, which call for the 
production of special nuclear products, including fabrication and 
conversion, for Government use. (The contractor or subcontractor must 
have the appropriate license or licenses to receive the special nuclear 
material. The Nuclear Regulatory Commission is the licensing agency.)
    (b) Contracts and subcontracts for fabrication of end items using 
special nuclear material generally shall be of the fixed-price type. 
Cost-type contracts or subcontracts for fabrication shall be used only 
with the approval of the Head of the Contracting Activity. This 
approval authority shall not be further delegated.
    (c) Contracts and subcontracts for conversion or scrap recovery of 
special nuclear material shall be of a fixed-price type, except as 
otherwise approved by the Head of the Contracting Activity.

Subpart 945.3--[Reserved]

Subpart 945.4--[Reserved]

Subpart 945.5--Support Government Property Administration

945.570  Management of Government property in the possession of 
contractors.

945.570-1   Acquisition of motor vehicles.

    (a) GSA Interagency Fleet Management System (GSA-IFMS) is the first 
source of supply for providing motor vehicles to contractors; however, 
contracting officer approval is required for contractors to utilize 
this service.
    (b) Prior approval of GSA must be obtained before--
    (1) Fixed-price contractors can use the GSA-IFMS;
    (2) DOE-owned motor vehicles can be furnished to any contractor in 
an area served by GSA-IFMS; and
    (3) A contractor can commercially lease a motor vehicle for more 
than 60 days after GSA has determined that it cannot provide the 
required vehicle.
    (c) GSA has the responsibility for acquisition of motor vehicles 
for Government agencies. All requisitions shall be processed via GSA 
AutoChoice in accordance with 41 CFR 101-26.501.
    (d) Contractors shall submit all motor vehicle requirements to the 
contracting officer for approval.
    (e) The acquisition of sedans and station wagons is limited to 
small, subcompact, and compact vehicles which meet Government fuel 
economy standards. The acquisition of light trucks is limited to those 
vehicles which meet the current fuel economy standards set by Executive 
Orders 12003 and 12375.
    (f) Cost reimbursement contractors may be authorized by the 
contracting officer to utilize GSA Federal Supply Schedule 751, Leasing 
of Automobiles and Light Trucks, for short term rentals not to exceed 
60 days, and are required to utilize available GSA consolidated leasing 
programs for long term (60 continuous days or longer) commercial 
leasing of passenger vehicles and light trucks.
    (g) The Personal Property Policy Division, within the Headquarters 
procurement organization shall certify all requisitions prior to 
submittal to GSA for the following:
    (1) The acquisition of sedans and station wagons.
    (2) The lease (60 continuous days or longer) of any passenger 
automobile.
    (3) The acquisition or lease (60 continuous days or longer) of 
light trucks less than 8,500 GVWR.
    (h) Purchase requisitions for other motor vehicles may be submitted 
directly to GSA when approved by the contracting officer.
    (i) Contractors shall thoroughly examine motor vehicles acquired 
under a GSA contract for defects. Any defect shall be reported promptly 
to GSA, and repairs shall be made under terms of the warranty.

945.570-2   Disposition of motor vehicles.

    (a) The contractor shall dispose of DOE-owned motor vehicles as 
directed by the contracting officer.
    (b) DOE-owned motor vehicles may be disposed of as exchange/sale 
items when directed by the contracting officer; however, a designated 
DOE official must execute the Title Transfer forms (SF-97).

945.570-3   Reporting motor vehicle data.

    (a) Contractors conducting motor vehicle operations shall forward 
annually to the contracting officer their plan for acquisition of motor 
vehicles for the next fiscal year for review, approval and submittal to 
DOE Headquarters. This plan shall conform to the fuel efficiency 
standards for motor vehicles for the applicable fiscal year, as 
established by Executive Orders 12003 and 12375 and as implemented by 
GSA and current DOE directives. Additional guidance for the preparation 
of the plan will be issued by the contracting officer, as required.
    (b) Contractors operating DOE-owned, GSA leased and/or commercially 
leased (for 60 continuous days or longer) motor vehicles shall prepare 
and electronically submit the following annual year-end reports to the 
contracting officer:
    (1) Annual Motor Vehicle Fleet Report.
    (2) Federal Fleet Report (41 CFR 102-34.335).

Subpart 945.6--Reporting, Reutilization, and Disposal

945.602  Reutilization of Government property.

945.602-3   Screening.

    (a) Standard screening. (1) Prior to reporting excess property to 
GSA, all reportable property, as identified in Federal Management 
Regulations 41 CFR 102-36.220, shall be reported for centralized 
screening in the DOE Energy Asset Disposal System (EADS). Reportable 
excess personal property will be screened internally via the EADS 
system for a period of 12 days.
    (i) EADS requires the inclusion of a six character Activity Address 
Code (AAC) which identifies the reporting contractor. The AAC will be 
assigned by DOE Headquarters upon receipt of a

[[Page 74389]]

formal letter of authorization signed by the DOE contracting officer.
    (ii) Requests to establish, extend or delete an Activity Address 
Code shall be submitted by the contracting officer to the Office of 
Property Management, Personal Property Policy Division, within the 
Headquarters procurement organization.
    (b) Special screening requirements. (2) Special test equipment with 
commercial components.--Prior to reporting the property to GSA in 
accordance with 48 CFR 45.604-1 (a), (b) and (c), the property shall be 
reported and screened within DOE in accordance with 945.602-3(a) and 
945.602-70.
    (3) Printing equipment. All printing equipment excess to 
requirements shall be reported to the Office of Administration at 
Headquarters.

945.602-70   Local screening.

    Local screening shall be done using EADS.

945.603   Abandonment, destruction or donation of excess personal 
property.

    See 945.670 for DOE disposal methods.

945.604  Disposal of surplus property.

945.604-1   Disposal methods.

    (b)(3) Recovering precious metals. Contractors generating 
contractor inventory containing precious metals or possessing precious 
metals excess to their programmatic requirements, shall identify and 
promptly report such items to the contracting officer for review, 
approval and reporting to the DOE Business Center for Precious Metals 
Sales & Recovery (Business Center). This includes Gold, Silver, 
Platinum, Rhodium, Palladium, Iridium, Osmium, and Ruthenium in any 
form, shape, concentration, or purity. Report all RCRA contaminated 
precious metals, but not radiological contaminated. The Y-12 NNSA Site 
Office is responsible for maintaining the DOE Business Center. Precious 
metals scrap will be reported to the DOE Business Center.
    (d) See 945.670 for DOE disposal methods.

945.670   DOE disposal methods.

945.670-1   Plant clearance function.

    If the plant clearance function has not been formally delegated to 
another Federal agency, the contracting officer shall assume all 
responsibilities of the plant clearance officer identified in 48 CFR 
45.606-3.

945.670-2   Disposal of radioactively contaminated personal property.

    Special procedures regarding the disposal of radioactively 
contaminated property may be found at 41 CFR 109-45.50 and 45.51, or 
its successor.

945.670-3   Waiver of screening requirements.

    (a) The Director of the Personal Property Policy Division, within 
the Headquarters procurement organization may authorize exceptions from 
screening requirements.
    (b) A request to the Director of the Personal Property Policy 
Division, within the Headquarters procurement organization for the 
waiver of screening requirements must be submitted by the Procurement 
Directors with a justification setting forth the compelling 
circumstances warranting the exception.

945.671   Contractor inventory in foreign countries.

    Contractor inventory located in foreign countries will be utilized 
and disposed of in accordance with 41 CFR 109-43.5 and 45.41, or its 
successor and 48 CFR 45.302.

PART 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
16. The authority citation for part 952 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.

952.245-5   [Amended]

0
17. Section 952.245-5 is amended by removing ``FAR 52.245-5'' and 
adding in its place ``FAR 52.245-1''.

PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS

0
18. 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
19. Section 970.5244-1 is amended by:
0
a. Revising the clause date to read as set forth below;
0
b. Revising clause paragraph (k); and
0
c. Adding paragraph (q)(13).
    The revisions and additions read as follows:

970.5244-1   Contractor purchasing system.

* * * * *

CONTRACTOR PURCHASING SYSTEM (JAN 2013)

* * * * *
    (k) Government Property. The Contractor shall establish and 
maintain a property management system that complies with criteria in 
48 CFR 970.5245-1, Property, and 48 CFR 52.245-1, Government 
Property.
* * * * *
    (q) * * *
    (13) Products made in Federal penal and correctional 
institutions--41 CFR 101-26.702.
* * * * *

0
20. Section 970.5245-1 is amended by:
0
a. Revising the date of the clause to read as set forth below;
0
b. Removing and reserving paragraph (i)(1)(ii)(B).
    The revision reads as follows:

970.5245-1   Property.

* * * * *

PROPERTY (JAN 2013)

* * * * *
    (i) * * *
    (1) * * *
    (ii) * * *
    (B) [Reserved];
* * * * *
[FR Doc. 2012-30189 Filed 12-13-12; 8:45 am]
BILLING CODE 6450-01-P
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