```

[Federal Register Volume 79, Number 182 (Friday, September 19, 2014)]
[Rules and Regulations]
[Pages 56279-56286]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-22283]

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DEPARTMENT OF ENERGY

48 CFR Parts 904, 952 and 970

RIN 1991-AB85

Acquisition Regulation: Access to and Ownership of Records

AGENCY: Department of Energy.

ACTION: Final rule.

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SUMMARY: The Department of Energy (DOE) is publishing a final rule 
amending the Department of Energy Acquisition Regulation (DEAR) to 
ensure the access to and ownership of records generated during contract 
performance for its contractors and subcontractors performing 
potentially hazardous work and clarifies management, retention and 
disposal of records after contract termination. This final rule: 
Ensures that records generated on individuals that meet the 
requirements of the Privacy Act are operated and maintained as Privacy 
Act SORs; clarifies that Privacy Act SORs are Government-owned records, 
not contractor-owned, even though they are created by the contractor; 
ensures the inclusion of this clause in contracts where work activities 
could involve exposure to potentially hazardous substances; and, 
ensures that DOE has consistent records maintenance, retention, and 
disposal requirements in accordance with Federal laws, regulations and 
DOE Directives and updates thereto.

DATES: Effective Date: October 20, 2014.

FOR FURTHER INFORMATION CONTACT: Jason Taylor, U.S. Department of 
Energy, Office of Procurement, MA-61, 1000 Independence Avenue SW., 
Washington, DC 20585; 202-287-1560 or jason.taylor@hq.doe.gov.

SUPPLEMENTARY INFORMATION: 

I. Background
II. Section-by-Section Discussion of Comments and Rule Provisions
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. Congressional Notification
    L. Approval by the Office of the Secretary of Energy

I. Background

    Historically, DOE's Management and Operating (M&O) contractors were 
tasked with performing functions that could involve exposure to 
radioactive and other hazardous materials. Because of the possible 
long-term effects of exposure, DOE contractors and subcontractors must 
create and maintain records documenting the potentially hazardous work 
activities performed by their personnel. For example, the Occupational 
Radiation Protection program at 10 Code of Federal Regulations (CFR) 
Part 835 and the Chronic Beryllium Disease Prevention Program at 10 CFR 
Part 850 both require the creation, maintenance and disposition of 
records on contractor and subcontractor personnel. These records 
include, but are not limited to: Certain personnel records, medical, 
and occupational safety and health records. DOE's M&O contractors 
already provide for DOE ownership and/or access to these types of 
records. However, DOE now also utilizes other types of contracts to 
perform many agency functions. Therefore, DOE is making this revised 
clause applicable to both M&O as well as non-M&O contracts and 
subcontracts to ensure that records are managed and retained in 
accordance with Federal laws (including the Privacy Act), applicable 
regulations and DOE requirements. To provide relevant information for 
processing of claims under the Energy Employees Occupational Illness 
Compensation Program Act (EEOICPA; 42 U.S.C. 7385s-10) and for other 
similar issues, DOE must ensure government-ownership of not only 
records documenting agency functions, but records documenting potential 
exposure to hazardous substances. These records are needed for 
processing claims and provide documentation that otherwise protects the 
financial and legal obligations of both individuals and the Government. 
These records include, but are not limited to: Personnel, medical and 
exposure records listed as privacy act systems of records, facility, 
environmental and other project related records, as well as, 
occupational safety and health records. Personnel records are also 
needed to allow DOE to identify and contact individuals in the future 
for participation in the DOE Federal Worker Medical Screening Program 
(FWP), to comply with other, future records requests, and to meet the 
requirement to retain the records in accordance with Federal laws and 
regulations.
    The National Archives and Records Administration's (NARA) 
regulation at 36 Code of Regulations (CFR), Chapter XII, Subchapter B, 
``Records Management'' requires agencies to ensure contractors 
performing agency functions create and maintain records that document 
these activities and specify government ownership of documents within 
the contract. For the Department of Energy, Title 42 U.S.C. 7101(b)(1) 
defines function as any duty, obligation, power, authority, 
responsibility, right, privilege and activity. Performance of those 
functions is defined in 42 U.S.C. 7101(b)(2). Throughout its history, 
DOE has been tasked by Congress to perform certain functions related to 
research, operations, and environmental clean-up that could cause 
potential exposure to hazardous substances.
    On January 9, 2009, DOE published a System of Records Notice (SORN) 
in the Federal Register (74 FR 994) describing DOE's Privacy Act 
systems of records (SOR) in accordance with the Privacy Act of 1974 (5 
U.S.C. 552a). For example, the SOR for EEOICPA files is located at DOE-
10 (74 FR 1,008), and includes such records as: Employment records, 
exposure records, medical reports, personnel security questionnaires, 
safety records or other incident reports. The Personnel Medical Records 
SOR at DOE-33 (74 FR 1,302) includes the following types of records: 
Medical histories on contractor employees resulting from medical 
examination, medical records of periodic physical examinations and 
psychological testing, records on the results of workplace and medical 
monitoring of individuals for exposure to chemical and physical agents 
(not covered in DOE-35), and related work history data, including drug 
testing information and results, contractor employee-completed health 
questionnaires not resulting from a medical examination. Lastly, the 
Personnel Radiation Exposure Records

[[Page 56280]]

at DOE-35 (74 FR 1,037) includes: DOE contractor personnel and other 
individuals' radiation exposure records, social security numbers, and 
other records, in connection with registries of uranium, transuranic, 
or other elements encountered in the nuclear industry.
    Privacy Act SORs are defined within the Privacy Act (5 U.S.C. 
552a(a)(5)) as a group of records under the control of an agency from 
which information is retrieved by the name of the individual, some 
identifying number, symbol or other particular identifying 
characteristic. The authority of DOE to assert Government ownership 
over Privacy Act SORs, whether generated by a prime or subcontractor, 
is set forth in 44 U.S.C. 2104(a). This statute requires the National 
Records and Archives Administration (NARA) to prescribe such 
regulations as deemed necessary to effectuate their functions, and the 
head of each executive agency to issue such orders and directives 
deemed necessary to carry out those regulations. In 36 CFR 1222.32(b), 
NARA's Records Management regulations expressly state that all data 
created for Government use and delivered to, or falling under the legal 
control of, the Government are Federal records. This includes records 
created/received by contractors that document the work specified within 
the contract and are generated or received during the performance of 
the contract.
    DOE's M&O contracts currently provide for DOE ownership and/or 
access to these types of records because of the inclusion of the Access 
to and Ownership of Records clause at 48 CFR 970.5204-3, and 
specifically 970.5204-3(b)(1), which excepts Privacy Act SORs from the 
list of contractor-owned records, even though they are contractor-
generated records. Additionally, in accordance with 10 CFR Part 835, 
Occupational Radiation Protection and 10 CFR Part 850, Chronic 
Beryllium Disease Prevention Program, certain DOE contractors are 
required to create and maintain individual exposure and workplace 
monitoring records that document exposure to these potentially 
hazardous substances during work activities performed by their 
personnel. These regulatory provisions currently require turnover of 
the exposure records to DOE upon cessation of work activities, ensuring 
DOE's control over these records on a long-term basis in accordance 
with Federal laws and regulations.
    DOE contracting officers generally insert the clauses at 48 CFR 
52.224-1 and 52.224-1 when the design, development, or operations of a 
system of records on individuals is required and when the contract 
specifically identifies the system(s) of records that must be managed 
in accordance with the Privacy Act. The contract will contain a clause 
that describes which Privacy Act SORs, by records series, are 
specifically required to be managed as a Privacy Act SOR. By amending 
the Access to and Ownership of Records clause at 48 CFR 970.5204-3(b) 
and (b)(1), and requiring inclusion of the clause in certain non-M&O 
contracts, DOE is ensuring that not only are Privacy Act SORs 
consistently and properly classified as Government-owned under 48 CFR 
970.5204-3(a) turned over to DOE on contract termination for 
maintenance and disposition, but records generated/received in the 
performance of the contract, other than those set forth within the 
contract as Contractor-owned, are managed and dispositioned by DOE on 
contract termination.
    This final rule stresses the importance of complete and accurate 
documentation and proper recordkeeping to adequately document 
Government-funded activities, preserve institutional memory, protect 
the legal and financial rights of the Government, preserve applicable 
worker, facility, and environmental records, and ensure availability of 
those records when they are needed. The rule requires inclusion of the 
Access to and Ownership of Records clause at 48 CFR 970.5204-3 in 
contracts, not just M&O contracts, when the contract contains the 
Integration of Environment, Safety, and Health into Work Planning and 
Execution (ISM) clause at 970.5223-1, as prescribed by 952.223-71, or 
the Radiation Protection and Nuclear Criticality clause at 952.223-72. 
The revisions also add clarifying language to ensure consistent 
maintenance, retention, and disposal of records in accordance with 
NARA's Records Management regulations.
    Further, this rule clarifies the distinction between contractor-
owned and Government-owned records and emphasizes contractor and 
subcontractor records management responsibilities consistent with 
NARA's Records Management regulations, including maintaining certain 
records as DOE Privacy Act SORs (48 CFR 52.224-2). This rule also 
ensures preservation and appropriate ownership of personnel, facility, 
occupational safety and health, environmental, medical, facility and 
other records generated during contract performance. A notice of 
proposed rulemaking was published at 75 FR 28772 on May 24, 2010 and 
twenty-one (21) comments were received from six (6) individuals/
entities.

II. Section-by-Section Discussion of Comments and Rule Provisions.

    DOE carefully reviewed the proposed regulation in light of the 
comments received during the public comment period and has attempted to 
address those requesting clarification or further detail through either 
revisions to the text of the final rule or through clarification in 
this preamble discussion.
    This ``Response to Comments'' addresses issues raised by commenters 
during the public comment period. Every comment has been analyzed and 
the following discussion provides responses organized by issue.

Scope and Reach of Rule

    Two commenters expressed concern that the rule is potentially 
overreaching and overbroad which has negative consequences. They also 
asserted that it may place undue burden on small businesses.
    DOE disagrees. The only change to the Access to and Ownership of 
Records clause at 48 CFR 970.5204-3 is to clarify that records series 
specified within the contract as Privacy Act SORs are Government-owned 
records even if the records are contractor-generated. The revisions do 
not expand the breadth of the Access to and Ownership of Records 
clause. The revisions do, however, expand the applicability of the 
clause to certain non-M&O contracts and subcontractors when that 
contract contains the ISM clause at 970.5223-1, as prescribed by 
952.223-71, or the radiation protection and nuclear criticality clause 
at 952.223-72. The revisions are made to ensure records generated on 
individuals that meet the requirements of the Privacy Act are 
maintained in a Privacy Act SOR as required under existing laws and 
regulations, as opposed to any new procedure established by this 
regulation. The revisions also add clarifying language to ensure 
consistent maintenance, retention and disposal of records in accordance 
with NARA's Records Management regulations. DOE believes that the 
additional requirements of this rule will have a minimal burden on 
small businesses.

Possible Freedom of Information Act (FOIA) Implications

    Two commenters suggested that revising the ownership of medical/
health related records to make them Government-owned would subject such 
records to requests by third parties under FOIA. The commenters 
recommend that DOE abandon the requirement that contractor-owned

[[Page 56281]]

records be maintained as a Privacy Act SOR.
    DOE agrees that medical/health related records created, operated 
and maintained as a Privacy Act SOR will no longer be contractor-owned 
but rather Government-owned records. As such, they will be subject to 
the FOIA, which does permit release of Government-owned records to FOIA 
requestors. However, records requested under FOIA are subject to 
certain exemptions set forth in 5 U.S.C. 552(b). In particular, FOIA 
Exemption 6, 5 U.S.C. 552(b)(6), permits withholding personnel, medical 
and similar files the disclosure of which would constitute a clearly 
unwarranted invasion of personal privacy. Unless otherwise required by 
law, DOE will adhere to the statutory requirements of the FOIA and the 
Privacy Act to protect contractor and subcontractor employee personal, 
medical/health-related and similar records from release and disclosure.

Privacy Act SOR (Government vs. Contractor)

    One commenter expressed concern that the change to 48 CFR 970.5204-
3 would allow private ``personnel'' records of private sector, non-
government employees, previously not held by the Government, to be 
turned over to the Government. Several other commenters expressed 
concern that converting medical records into a Privacy Act SOR would be 
an improper Government appropriation of privately-owned and managed 
personal information. Furthermore, they question the ethics of a 
wholesale ``taking'' by the Federal Government of records currently 
under the explicit ownership of the M&O contractor.
    DOE disagrees. The revisions to the DEAR ensure records generated 
in the performance of the contract containing personal information that 
are retrieved by name or other personal identifier are classified and 
maintained in Privacy Act SORs in accordance with the Privacy Act and 
NARA records management regulations. This rule does not extend 
Government ownership to the entirety of personnel or other records 
generated and maintained by the contractor as set forth in 48 CFR 
970.5204-3(b), but to those records series that are generated and 
received that document work performed under the contract. As discussed 
above, DOE categorized certain contractor and subcontractor personnel, 
employment, medical, occupational health and exposure records as 
Privacy Act SORs in the SORN published on January 9, 2009, (74 FR 994). 
These records series currently contain routine use exceptions as to 
whom and when these particular records may be released. Additionally, 
DOE disagrees that the Federal Government is taking records under the 
explicit ownership of the M&O contractor. The regulations in 10 CFR 
parts 835 and 850 requiring contractors to create and maintain 
exposure, medical and occupational health records as part of the 
Occupational Radiation Program and the Chronic Beryllium Disease 
Prevention Program currently require transfer of those records to DOE 
on cessation of work activities.
    DOE acknowledges this may be a new requirement for non-M&O 
contractors, but a requirement that is necessary to address records 
ownership issues and establish consistent records maintenance, 
retention and disposition requirements in accordance with DOE's NARA-
approved Records Management schedules.

Privacy Act and Ownership of Records Considerations

    One commenter expressed concern that having two Privacy Act clauses 
would create a conflict. Since M&O contracts already include the 
Privacy Act clause (48 CFR 52.224-2), the commenter asserted that the 
Access to and Ownership of Records clause would create redundancy and 
inconsistency.
    DOE disagrees. There is no redundancy or inconsistency between the 
Privacy Act clause at 48 CFR 52.224-2 and the Access to and Ownership 
of Records clause at 48 CFR 970.5204-3. Language has been added to 48 
CFR 970.0407-1-2 to clarify the link between the two clauses; however, 
no additional requirements have been added; the revisions are for 
clarity.

Health Insurance Portability and Accountability Act (HIPAA) Liability

    One commenter expressed concern that the transfer of ownership of 
privately-owned medical records to the government would create 
potential conflicts with HIPAA and could result in HIPAA litigation. 
The commenter claims that it may also impede normal functions of a 
medical provider.
    DOE disagrees. DOE must comply with the statutory requirements of 
HIPAA and the Privacy Act; these requirements will not impede the 
normal functions of a medical provider. The Privacy Act does not apply 
to all categories of records; it only applies to a SOR, paper based or 
electronic, under the control of DOE. Accordingly, a record that 
contains personal information about an individual but is not retrieved 
by a personal identifier does not quality as a SOR under the Privacy 
Act. Under 48 CFR 52.224-2(a), the Privacy Act applies to contractors 
and subcontractors that develop or use a SOR under contract with DOE to 
collect, maintain or disseminate personal information within a SOR. 
Additionally, under 48 CFR 52.224-2(b), the contactor and its employees 
are considered employees of DOE for purposes of the sanction provisions 
of the Privacy Act during the performance of the contract. Thus, 
records created based on the contract (e.g., medial records, exposure 
records, etc.) would be required to be maintained under a SOR.

Integrated Safety Management System (ISMS)

    One commenter stated that the Integration of Environment, Safety 
and Health into Work Planning and Execution clause at 48 CFR 970.5223-
1, which is also known as Integrated Safety Management (ISM) clause has 
been an effective framework for integrating safety or a Safety 
Management System (SMS) into work planning activities at DOE Sites. 
Under this clause, contractors must provide a documented system for DOE 
approval, verify effectiveness through periodic validation, and 
continually monitor safety performance and improvement. The commenter 
expressed that there are difficulties in achieving required ISM flow 
down clauses to subcontractors performing work at DOE sites.
    The commenter also asserted that the application of the records 
retention requirements across the DOE complex would lead to a chaotic 
mosaic of practices as is already evidenced by the variety of ISM 
clauses and 10 CFR part 850 flow down practices by M&O contractors and 
the wide variety of Privacy Act SORs now required in existing M&O 
contracts.
    DOE disagrees. The terms of the ISM clause and its prescription are 
not affected by this rulemaking, and by revising 48 CFR 952.223-75, 
904.702(b) and 970.5204-3(g) DOE is clarifying and streamlining the 
flow down requirements of the Access to and Ownership of Records 
clause.

Other Comments

    One commenter expressed concern that the application of the 
proposed changes are applied indiscriminately across all forms of 
contracts and will yield unintended and negative consequences due to 
over breadth.
    DOE disagrees. This rule does not require any changes for DOE M&O 
contractors who are already covered by the Access to and Ownership of 
Records clause at 48 CFR 970.5204-3. For DOE's

[[Page 56282]]

non-M&O contractors, this rule affects contracts by requiring inclusion 
of the Access to and Ownership of Records clause when the contract 
contains the ISM clause at 970.5223-1, as prescribed by 952.223-71, or 
the Radiation Protection and Nuclear Criticality clause at 952.223-72 
to ensure proper ownership of records, including records series 
described within the contract as Privacy Act SORs, are properly defined 
within the contract as Government-owned records. Records management 
requirements and responsibilities have not changed, but clarifying 
language and revisions to referenced requirements were added for 
consistency across contracts (48 CFR 970.0407-1-1 and 970.5204-3(a), 
(c), (e) and (f)).
    One commenter expressed the view that DOE should use the Notice of 
Proposed Rulemaking (NOPR) process as an opportunity to revisit and 
revise DOE Order 206.1 ``Department of Energy Privacy Program.''
    DOE disagrees. Revising DOE Order 206.1 is outside the scope of 
this rulemaking.
    One commenter stated that that the records ownership clause should 
be applied only to contracts (prime and subcontractors) where the scope 
of work clearly includes potential for exposure to radiation or other 
hazardous substances. The current clause does not specify what 
constitutes a ``contract with potential for exposure.''
    DOE disagrees. DOE will retain the proposed language in the final 
rule because the revisions to the DEAR include amending 48 CFR 
904.702(b), which clearly establishes that the presence of the 
Integration of Environment, Safety and Health into Work Planning and 
Execution clause at 48 CFR 952.223-71 or the Radiation Protection and 
Nuclear Criticality clause at 48 CFR 952.223-72 is the criterion used 
to identify contracts with the potential for exposure to radiological 
or other hazardous substances. If either of those two clauses is 
included, the contract is considered a contract with the potential for 
exposure and the Access to and Ownership of Records clause is included 
in the contract.
    One commenter expressed concern that the applicability in 48 CFR 
904.702(b), and Preservation of Individual Occupational Radiation 
Exposure Records clause at 48 CFR 952.223-75 do not specify that the 
clause is to be flowed down to subcontractors, even though the 
Background section of the NOPR indicates DOE is concerned about 
``medical records on contractors and subcontractors.'' The commenter 
argued that if the Preservation of Individual Occupational Radiation 
Exposure Records is not a mandatory flow-down to the subcontracts, DOE 
may not still have adequate access to the information (at the 
subcontractor level) that it seeks.
    DOE agrees. DOE has revised the final rule to require contractors 
to include the requirements of the Preservation of Individual 
Occupational Radiation Exposure Records clause at 48 CFR 952.223-75 and 
the Access to and Ownership of Records clause at 48 CFR 970.5204-3 in 
all subcontracts that contain either the Integration of Environment, 
Safety and Health into Work Planning and Execution clause at 48 CFR 
970.5223-1, or the Radiation Protection and Nuclear Criticality clause 
at 48 CFR 952.223-72.
    One commenter stated that the proposed revisions to 48 CFR 
970.5204-3(b)(1), Section II.5 of the NOPR did not elaborate on why 
this change is being proposed and it was not apparent how the proposed 
change would improve the ability to provide contract-related medical/
health records as needed to support EEOICPA and other worker claims.
    DOE disagrees that the rule does not improve the ability to provide 
contract-related medical/health records as needed to support EEOICPA 
and other work claims. DOE's NARA-approved Records Management Schedules 
require that DOE maintain certain personnel, exposure, medical and 
occupational records for extended periods of time to support the 
EEOICPA and other similar programs by providing records that could 
support claims (42 USC 7385s-10). To avoid a potential loss or 
misplacement of records and remove uncertainty regarding ownership of 
these types of records, the amendments and clarifications within the 
Access to and Ownership of Records clause clarify that Privacy Act SORs 
are Government-owned and not contractor owned clearly establishes that 
on contract termination the aforementioned Privacy Act SORs containing 
the records needed to support the EEOICPA are transferred to DOE (or to 
a location directed by the contracting officer). This will ensure that 
DOE can support the EEOICPA and similar programs, respond to future 
records requests by officials and individuals, and protect the 
financial and legal interests of individuals and the Government.

III. Section-by-Section Analysis

    Section 904.702.--Applicability. The clause applicability 
specification for Contractor Records Retention at 48 CFR 904.702(b) was 
revised to update the name of the Integration of Environment, Safety 
and Health into Work Planning and Execution clause, delete the 
reference to the obsolete Nuclear Safety clause, add a requirement to 
include the Access to and Ownership of Records clause at 48 CFR 
970.5204-3, and reference the ``National Archives and Records 
Administration (NARA)-approved DOE Records Disposition Schedules'' in 
applicable DOE Directives to ensure Government ownership and access to 
these records and to establish consistent records management practices 
in the retention of records.
    Section 952.223-75--Preservation of individual occupational 
radiation exposure records. DOE added language to preserve individual 
occupational radiation exposure records that requires such records be 
operated and maintained by contractors and subcontractors as a DOE 
Privacy Act system of records (i.e., as DOE-35 Personnel Radiation 
Exposure Records) and to emphasize the requirement to maintain these 
records in accordance with Subchapter B of 36 CFR, Chapter 12, National 
Archives and Records Administration (NARA)-approved DOE Records 
Disposition Schedules and the Privacy Act.
    Section 970.0407-1-1--Alternate retention schedules. The clause was 
updated to replace a guide ``DOE G 1324.5B, Records Management 
Program,'' with ``Subchapter B of 36 CFR Chapter 12--Records 
Management'' to ensure records retentions are managed in accordance 
with the regulations. The words ``National Archives and Records 
Administration (NARA)-approved'' were added before ``DOE Records,'' 
``Disposition'' was added between ``Records'' and ``Schedules'' and 
``(see current version)'' was replaced with ``(consult current 
schedule)'' for consistency.
    Section 970.0407-1-2--Access to and Ownership of Records. The words 
``the records do not fall within a DOE Privacy Act system of record 
and'' were added to the first sentence and the Privacy Act was added to 
the list of requirements to ensure contracting officers do not agree to 
contractor ownership of Privacy Act system of records that are 
generated during the performance of the contract. In accordance with 48 
CFR 52.224-2(b), contractors and their employees are considered 
employees of DOE for purposes of the Privacy Act during the performance 
of the contract.
    Section 970.0407-1-3--Contract clause. The prescription of the 
Access to and Ownership of Records clause has been expanded to require 
inclusion, in addition to M&O contracts, in contracts that contain the 
Integration of Environment, Safety, and Health into

[[Page 56283]]

Work Planning and Execution clause at 48 CFR 952.223-71 or 48 CFR 
970.5223-1, or the Radiation Protection and Nuclear Criticality clause 
at 48 CFR 952.223-72. This change is made to ensure that the Access to 
and Ownership of Records clause is included consistently in all 
applicable contracts based on the type of work being performed (e.g., 
work that exposes personnel to hazardous material, radiation or long-
term health issues), in addition to M&O contracts. The change is also 
to meet the requirements of 36 CFR 1222.32(a)(1) requirements that 
requires Agencies to specify Government ownership and delivery of 
records into contracts to ensure contractors performing Federal 
government agency functions create and maintain records that document 
these activities.
    Section 970.5204-3(a)--Government-owned records. Language 
pertaining to records turnover was relocated from 48 CFR 970.5204-3(a) 
to 970.5204-3(c) and 970.5204-3(a) was expanded to include the 
requirements of 36 CFR, Chapter XII,--Subchapter B, ``Records 
Management'' and FAR 52.224-2 ``Privacy Act.''
    Section 970.5024-3(b). The words ``excluding records operated and 
maintained in DOE Privacy Act system of record'' were added to the last 
sentence in brackets.
    Section 970.5204-3(b)(1)--Contractor-owned records. The words 
``operated and maintained by the Contractor'' were added to replace 
``described by the contract as being maintained.''
    Section 970.5204-3(b) (2). The words ``internal corporate 
governance records'' were added to the list of confidential contractor 
financial information to make it clear that these types of records are 
contractor-owned records. Internal corporate governance records may 
include processes and policies affecting the way the corporate office 
is directed, administered or controlled.
    Section 970.5204-3(c)--Contract completion or termination. Language 
was added to clarify the disposition of both Government-owned and 
contractor-owned records at contract completion or termination. An 
option was added to allow contractors to deliver ``original'' 
contractor-owned records to the Government in lieu of copying these 
records with assurance that the contractor will have rights to access 
and copy the records as needed.
    Section 970.5204-3(e)--Applicability. DOE modified the 
applicability of the Access to and Ownership of Records clause to make 
it clear that records created, received, and maintained by the 
contractor, whether they be Government-owned or contractor-owned, 
includes all records in the possession of the contractor regardless of 
the date of origin and includes those records acquired from a 
predecessor contractor.
    Section 970.5204-3(f)--Records retention standards. The title of 
this section has been modified to read ``Records maintenance and 
retention'' and the section has been expanded to specify the 
contractor's records management responsibilities for the creation, 
maintenance, and disposition of records in accordance with applicable 
Federal laws, regulations and DOE Directives. The revisions provide 
clear direction to the contractor and subcontractor on their records 
management responsibilities, particularly the maintenance, disposition 
and ownership of records. The language was also revised to clearly link 
retention of records to the NARA-approved DOE Records Disposition 
Schedules. DOE removed language that previously singled out individual 
radiation exposure records because these records shall be operated and 
maintained by the contractor as Government-owned DOE Privacy Act SOR. 
The last sentence was also modified to clarify when application of the 
NARA-approved record schedules may be waived.
    Section 970.5204-3(g)--Subcontracts. This paragraph is revised to 
eliminate the $2 million dollar threshold requirement for flow down of 
the Access to and Ownership of Records clause because applicability of 
the clause is more appropriately determined by the nature of the work 
rather than cost of the contract (i.e., subcontracts in which contract 
performance exposes personnel to hazardous material, radiation, or 
long-term health issues). The paragraph was also expanded to require 
inclusion in subcontracts containing the Integration of Environment, 
Safety and Health into work Planning and Execution clause at 48 CFR 
952.223-71 or the Radiation Protection and Nuclear Criticality clause 
at 48 CFR 952.223-72, consistent with the prescription for prime 
contracts in 48 CFR 970.0407-1-3, and the contractor records retention 
applicability in 48 CFR 904.702. This paragraph was also modified to 
include flow down of the Privacy Act clause into subcontracts.

IV. Procedural Requirements

A. Review Under Executive Orders 12866 and 13563

    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, September 30, 1993. 
Accordingly, this rule is not subject to review under the Executive 
Order by the Office of Information and Regulatory Affairs (OIRA) within 
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.
    DOE emphasizes as well that 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.

[[Page 56284]]

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 5, 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) 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 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 that 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.

C. Review Under the Regulatory Flexibility Act

    This final 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 is likely to have a significant economic impact on a 
substantial number of small entities. DOE recognizes that a burden may 
be placed on small businesses performing these applicable work scopes, 
but it is a burden that is imposed under existing regulations 
(Subchapter B of 36 CFR, Chapter 12), not by revisions to these 
clauses.
    Accordingly, 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

    This rule does not impose any new information collection or 
recordkeeping requirements. Existing information collections imposed by 
the Department of Energy Acquisition Regulation are covered by OMB 
Control Number 1910-4100. Public reporting burden for these collections 
is estimated to average 119 hours per response, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. Send comments regarding this burden 
estimate, or any other aspect of this data collection, including 
suggestions for reducing the burden, to 
ChadS.Whiteman@omb.eop.gov.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

E. Review Under the National Environmental Policy Act

    DOE has concluded that this final 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 environmental assessment pursuant to NEPA.

F. Review Under Executive Order 13132

    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. 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 today's rule and has 
determined that it does not preempt State law and would 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

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA; Pub. L. 
104-4) requires each Federal agency to assess the effects of Federal 
regulatory actions on State, local, and Tribal governments and the 
private sector. For proposed regulatory actions likely to result in a 
rule that may cause expenditures 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 estimates of the resulting 
costs, benefits, and other effects on the national economy. (2 U.S.C. 
1532(a), (b).) UMRA also requires Federal agencies to develop an 
effective process to permit timely input by elected officers of State, 
local, and Tribal governments on a proposed ``significant 
intergovernmental mandate.'' In addition, UMRA requires an agency plan 
for giving notice and opportunity for timely input to small governments 
that may be affected before establishing a requirement that might 
significantly or uniquely affect them. On March 18, 1997, DOE published 
a statement of policy on its process for intergovernmental consultation 
under UMRA. (62 FR 12820). Today's rule contains neither an 
intergovernmental mandate, nor a mandate that may result in the 
expenditure of $100 million or more in any year, therefore these 
requirements do not apply.

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 rule or policy that may affect 
family well-being. This rule will have no impact on the autonomy or 
integrity of the family as an institution. Accordingly, DOE has 
concluded that it is not necessary to prepare a Family Policymaking 
Assessment.

I. Review Under Executive Order 13211

    Executive Order 13211, Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, 
May 22, 2001), requires federal agencies to prepare and submit to the 
OIRA, OMB, a Statement of Energy Effects for any

[[Page 56285]]

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; 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 
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 in 
the aggregate, or to the private sector, other than to the extent such 
actions merely incorporate requirements specifically set forth in a 
statute.
    DOE has determined that the rule published today does not have a 
significant adverse effect on the supply, distribution, or use of 
energy and is therefore 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 final rule under the OMB and DOE guidelines and has 
concluded that it is consistent with applicable policies in those 
guidelines.

K. Congressional Notification

    As required by 5 U.S.C. 801, the Department will submit to Congress 
a report regarding the issuance of today's final rule prior to the 
effective date set forth at the outset of this rule. 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).

L. Approval by the Office of the Secretary of Energy

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

List of Subjects in 48 CFR Parts 904, 952 and 970

    Government procurement.

    Issued in Washington, DC, on September 10, 2014.
Paul Bosco,
Director, Office of Acquisition and Project Management, Department of 
Energy.
Joseph Waddell,
Deputy Associate Administrator, Acquisition and Project Management, 
National Nuclear Security Administration.

    For the reasons set out in the preamble, DOE amends Chapter 9 of 
Title 48 of the Code of Federal Regulations as set forth below:

PART 904--ADMINISTRATIVE MATTERS

0
1. The authority citation for part 904 continues to read as follows:

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

0
2. Section 904.702 is revised to read as follows:

904.702  Applicability.

    (b) Contracts containing the Integration of Environment, Safety and 
Health into Work Planning and Execution clause at 970.5223-1, as 
prescribed by 952.223-71, or the Radiation Protection and Nuclear 
Criticality clause at 952.223-72 must also include the Preservation of 
Individual Occupational Radiation Exposure Records clause at 952.223-
75, and the Access to and Ownership of Records clause at 970.5204-3, 
which will necessitate retention of records in accordance with the 
National Archives and Records Administration (NARA)-approved DOE 
Records Disposition Schedules, rather than those found at FAR Subpart 
4.7.

PART 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
3. 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.

0
4. In section 952.223-75, the clause text is revised to read as 
follows:

952.223-75  Preservation of individual occupational radiation exposure 
records.

* * * * *
    Individual occupational radiation exposure records generated in the 
performance of work under this contract shall be generated and 
maintained by the contractor in accordance with 36 CFR Chapter XII, 
Subchapter B, ``Records Management,'' the National Archives and Records 
Administration (NARA)-approved DOE Records Disposition Schedules, and 
shall be operated as a DOE Privacy Act system of records, in accordance 
with the Privacy Act.

PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS

0
5. 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
6. Revise section 970.0407-1-1 to read as follows:

970.0407-1-1  Alternate retention schedules.

    Records produced under the Department's contracts involving 
management and operation responsibilities relative to DOE-owned or -
leased facilities are to be retained and disposed of in accordance with 
the requirements contained in 36 CFR Chapter XII, Subchapter B, 
``Records Management'' and National Archives and Records Administration 
(NARA)-approved DOE Records Disposition Schedules (consult current 
schedule), rather than those set forth at 48 CFR subpart 4.7, 
Contractor Records Retention.

970.0407-1-2  [Amended]

0
7. Section 970.0407-1-2 is amended by adding in the first sentence the 
words ``the records do not fall within a DOE Privacy Act system of 
record and'' after ``provided'' and adding in the last sentence the 
words ``the Privacy Act'' before ``requirements.''

0
8. Revise section 970.0407-1-3 to read as follows:

970.0407-1-3  Contract clause.

    The contracting officer shall insert the clause at 48 CFR 970.5204-
3, Access to and Ownership of Records, in management and operating 
contracts and other contracts and resulting subcontracts that contain 
the clause at 48 CFR 970.5223-1, Integration of Environment, Safety, 
and Health into Work Planning and Execution clause, or the clause at 48 
CFR 952.223-72, Radiation Protection and Nuclear Criticality.

0
9. Amend section 970.5204-3 by:
0
a. Revising the clause date; and
0
b. Revising paragraphs (a), (b), (c), (e), (f) and (g);
    The revisions read as follows:

970.5204-3  Access to and ownership of records.

* * * * *

[[Page 56286]]

ACCESS TO AND OWNERSHIP OF RECORDS

[October 2014]

    (a) Government-owned records. Except as provided in paragraph 
(b) of this clause, all records acquired or generated by the 
contractor in its performance of this contract, including records 
series described within the contract as Privacy Act systems of 
records, shall be the property of the Government and shall be 
maintained in accordance with 36 CFR, Chapter XII, Subchapter B, 
``Records Management.'' The contractor shall ensure records 
classified as Privacy Act system of records are maintained in 
accordance with FAR 52.224.2 ``Privacy Act.''
    (b) Contractor-owned records. The following records are 
considered the property of the contractor and are not within the 
scope of paragraph (a) of this clause. [The contracting officer 
shall identify which of the following categories of records will be 
included in the clause, excluding records operated and maintained in 
DOE Privacy Act system of records].
    (1) Employment-related records (such as worker's compensation 
files; employee relations records, records on salary and employee 
benefits; drug testing records, labor negotiation records; records 
on ethics, employee concerns; records generated during the course of 
responding to allegations of research misconduct; records generated 
during other employee related investigations conducted under an 
expectation of confidentiality; employee assistance program records; 
and personnel and medical/health-related records and similar files), 
and non-employee patient medical/health-related records, excluding 
records operated and maintained by the Contractor in Privacy Act 
system of records. Employee-related systems of record may include, 
but are not limited to: Employee Relations Records (DOE-3), 
Personnel Records of Former Contractor Employees (DOE-5), Payroll 
and Leave Records (DOE-13), Report of Compensation (DOE-14), 
Personnel Medical Records (DOE-33), Employee Assistance Program 
(EAP) Records (DOE-34) and Personnel Radiation Exposure Records 
(DOE-35).
    (2) Confidential contractor financial information, internal 
corporate governance records and correspondence between the 
contractor and other segments of the contractor located away from 
the DOE facility (i.e., the contractor's corporate headquarters);
    (3) Records relating to any procurement action by the 
contractor, except for records that under 48 CFR 970.5232-3 are 
described as the property of the Government; and
    (4) Legal records, including legal opinions, litigation files, 
and documents covered by the attorney-client and attorney work 
product privileges; and
    (5) The following categories of records maintained pursuant to 
the technology transfer clause of this contract:
    (i) Executed license agreements, including exhibits or 
appendices containing information on royalties, royalty rates, other 
financial information, or commercialization plans, and all related 
documents, notes and correspondence.
    (ii) The contractor's protected Cooperative Research and 
Development Agreement (CRADA) information and appendices to a CRADA 
that contain licensing terms and conditions, or royalty or royalty 
rate information.
    (iii) Patent, copyright, mask work, and trademark application 
files and related contractor invention disclosures, documents and 
correspondence, where the contractor has elected rights or has 
permission to assert rights and has not relinquished such rights or 
turned such rights over to the Government.
    (c) Contract completion or termination. Upon contract completion 
or termination, the contractor shall ensure final disposition of all 
Government-owned records to a Federal Record Center, the National 
Archives and Records Administration, to a successor contractor, its 
designee, or other destinations, as directed by the Contracting 
Officer. Upon the request of the Government, the contractor shall 
provide either the original contractor-owned records or copies of 
the records identified in paragraph (b) of this clause, to DOE or 
its designees, including successor contractors. Upon delivery, title 
to such records shall vest in DOE or its designees, and such records 
shall be protected in accordance with applicable federal laws 
(including the Privacy Act) as appropriate. If the contractor 
chooses to provide its original contractor-owned records to the 
Government or its designee, the contractor shall retain future 
rights to access and copy such records as needed.
* * * * *
    (e) Applicability. This clause applies to all records created, 
received and maintained by the contractor without regard to the date 
or origination of such records including all records acquired from a 
predecessor contractor.
    (f) Records maintenance and retention. Contractor shall create, 
maintain, safeguard, and disposition records in accordance with 36 
CFR Chapter XII, Subchapter B, ``Records Management'' and the 
National Archives and Records Administration (NARA)-approved Records 
Disposition Schedules. Records retention standards are applicable 
for all classes of records, whether or not the records are owned by 
the Government or the contractor. The Government may waive 
application of the NARA-approved Records Disposition Schedules, if, 
upon termination or completion of the contract, the Government 
exercises its right under paragraph (c) of this clause to obtain 
copies of records described in paragraph (b) and delivery of records 
described in paragraph (a) of this clause.
    (g) Subcontracts. The contractor shall include the requirements 
of this clause in all subcontracts that contain the Integration of 
Environment, Safety and Health into Work Planning and Execution 
clause at 952.223-71 or, the Radiation Protection and Nuclear 
Criticality clause at 952.223-72.

(End of Clause)
[FR Doc. 2014-22283 Filed 9-18-14; 8:45 am]
BILLING CODE 6450-01-P
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