This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

7685 

Vol. 76, No. 29 

Friday, February 11, 2011 

DEPARTMENT OF ENERGY 

10 CFR Part 1023 

48 CFR Parts 901, 902, 903, 904, 906, 

907, 908, 909, 911, 914, 915, 916, 917, 

and 952 

RIN 1991–AB81 

(General Provisions) Contract Appeals 

and the Acquisition Regulation: 

General, Acquisition Planning, and 

Contracting Methods and Contract 

Types 

AGENCY: Department of Energy. 

ACTION: Final rule. 

SUMMARY: The Department of Energy 

(DOE) is amending the Department of 

Energy Acquisition Regulation (DEAR) 

regulations on Acquisition Planning, 

and Contracting Methods and Contract 

Types to make changes to conform to 

the Federal Acquisition Regulation 

(FAR), remove out-of-date coverage, and 

update references. Today’s rule does not 

alter substantive rights or obligations 

under current law. 

DATES: Effective Date: March 14, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Barbara Binney at (202) 287–1340 or by 

e-mail, barbara.binney@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Discussion 

III. 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 

This final rule amends the 

Department of Energy Acquisition 

Regulation (DEAR) and the DOE 

regulation at 10 CFR part 1023 which 

implements DOE’s contract appeals 

procedures. DEAR subchapters A, B, 

and C have outdated sections that need 

to be updated for consistency with the 

Civilian Board of Contract Appeals 

(CBCA) provisions of Section 847 of the 

National Defense Authorization Act for 

Fiscal Year 2006, Public Law 109–163, 

and provisions of the FAR and the Title 

41, chapter 102—Federal Management 

Regulation. DOE is implementing these 

provisions but they are not yet reflected 

in the DEAR. 

DOE is also removing regulations in 

10 CFR part 1023 that have been made 

obsolete by the establishment of the 

CBCA within the General Services 

Administration. DOE has already 

adjusted its internal procedures to 

address the CBCA jurisdiction. 

With the amended changes to 

Subchapters A, B, and C, the DEAR 

would conform to the FAR, the Title 41, 

chapter 101—Federal Property 

Management Regulation, and the 

Federal Management Regulation. The 

purpose of this rule is to update the 

existing DEAR to conform it to the FAR. 

Changes are to DEAR parts 901, 902, 

903, 904, 906, 907, 908, 909, 911, 914, 

915, 916, 917, and 952. No changes are 

being made to DEAR parts 905, 910, and 

912 at this time. None of today’s 

conforming changes are substantive or 

of a nature to cause any significant 

expense for DOE or its contractors. 

II. Discussion 

DOE published a notice of proposed 

rulemaking on July 1, 2010 (75 FR 

38042), with a public comment period 

ending on August 2, 2010. DOE received 

no comments. 

DOE amends the 10 CFR part 1023 as 

follows: 

1. DOE removes from the regulation 

10 CFR part 1023 made obsolete by the 

termination of the Energy Board of 

Contract Appeals and the establishment 

of the Civilian Board of Contract 

Appeals. Section 847 of the National 

Defense Authorization Act for Fiscal 

Year 2006, Public Law 109–163 

established within the General Services 

Administration the Civilian Board of 

Contract Appeals and terminates 

authority for the Energy Board of 

Contract Appeals. 

DOE amends the DEAR as follows: 

2. Section 901.101 is revised to add 

‘‘(Chapter 1 of Title 48 of the Code of 

Federal Regulations (CFR))’’ to provide 

the citation to the FAR’s CFR chapter. 

3. Section 901.102 is removed and 

redesignated as 901.103 to conform to 

the FAR. It also is revised to add 

‘‘Senior’’ before ‘‘Procurement 

Executive’’ and to clarify that there are 

two Senior Procurement Executives, one 

for the National Nuclear Security 

Administration (NNSA) and the other 

for the rest of the Department of Energy 

(DOE). The section is further revised to 

add a reference to the more recent and 

separate delegation for the NNSA Senior 

Procurement Executive from the 

Administrator of the NNSA, and update 

citation references to the United States 

Code. 

4. Section 901.103 is redesignated as 

901.104. That section is also revised to 

clarify that the DEAR applies to NNSA 

acquisitions. 

5. Section 901.104–1 is redesignated 

as 901.105–1. That section is revised to 

add the CFR citation and the Web site 

reference for the electronic CFR. 

6. Section 901.104–2 is redesignated 

as 901.105–2. In addition, it is moved to 

update the cite in paragraph (b) from 

1.104–2(b) to 1.105–2(b) to conform to 

the FAR. 

7. Section 901.104–3 is redesignated 

as 901.105–3 which is revised to add the 

Web site reference to view the electronic 

DEAR. 

8. Section 901.105 is redesignated as 

901.106. The title of the redesignated 

901.106 is revised to read ‘‘OMB 

approval under the Paperwork 

Reduction Act’’ to conform to the FAR. 

In addition, the Office of Management 

and Budget (OMB) acronym is spelled 

out. The paragraph is further revised to 

remove the redundant FAR text and the 

reference to canceled OMB control 

number 1910–5103. 

9. Section 901.301–70 paragraph (a) is 

revised to add a reference to the Federal 

Management Regulation to conform to 

the FMR. The paragraph is also revised 

to state that the Department of Energy 


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7686 Federal Register / Vol. 76, No. 29 / Friday, February 11, 2011 / Rules and Regulations 

Acquisition Guide provides procedural 

guidance for the acquisition community 

and provides the Web link to the guide. 

10. Subpart 901.6 is revised to add 

‘‘Career Development,’’ to the title of this 

subpart. 

11. Section 901.601 paragraph (a) is 

revised to add the contracting authority 

for NNSA. This paragraph explains the 

authorities for the Senior Procurement 

Executives for DOE and NNSA. 

Paragraph (b) is revised to clarify that 

both of the Senior Procurement 

Executives have been authorized to 

perform functions set forth at FAR 

1.601(b). 

12. Section 901.602–3 is revised to 

clarify that the Senior Procurement 

Executives are authorized to ratify 

unauthorized commitments. 

13. Section 901.603 is revised by 

adding references to DOE Order 361.1B, 

Acquisition Career Management 

Program and DOE Order 541.1B, 

Appointment of Contracting Officers 

and Contracting Officer Representatives, 

or their respective successor orders. 

14. Part 902 is revised by adding 

subpart 902.1 consisting of 902.101, 

Definitions, to define the ‘‘Agency Head 

or Head of the Agency’’, the 

‘‘Department of Energy’’, and the ‘‘Senior 

Procurement Executive’’ and by 

removing 902.200 in its entirety and 

adding the clause instruction at 902.201 

to conform to the FAR. 

15. Section 903.303 is amended in 

paragraph (a) to add ‘‘Senior’’ before 

‘‘Procurement Executive’’. 

16. Subpart 903.4 Contingent Fees is 

amended at 903.405 to revise the section 

heading. 

17. Section 903.405 is revised to 

delete the reference to use Standard 

Form 119, which is outdated, but retains 

the direction that the chief of the 

contracting office seek review by 

counsel before initiating appropriate 

action. 

18. Section 903.603 in paragraph (a) 

removes the first occurrence of ‘‘FAR’’. 

19. Subpart 903.7—Voiding and 

Rescinding Contracts is added to state 

only the Head of the Contracting 

Activity can determine whether a 

contract is voided or rescinded. 

20. Subpart 903.10—Contractor Code 

of Business Ethics and Conduct is added 

to conform with the FAR. 

21. Section 903.1004 Contract clauses, 

paragraph (b)(2)(ii) is added to instruct 

the contracting officer to insert the DOE 

Web site address http://ig.energy.gov/ 

hotline.htm in paragraph (b)(3) of the 48 

CFR 52.203–14 clause, Display of 

Hotline Poster(s). 

22. Section 904.7001 is amended by 

removing the last sentence which 

contained the definitions of 

‘‘contractor,’’ ‘‘contract,’’ and ‘‘special 

nuclear material.’’ 

23. Section 904.7002 is amended by 

adding three definitions of terms that 

were previously described in the last 

sentence of section 904.7001. 

24. Section 906.102 paragraph (d)(4) 

is rewritten to clarify the use of 

competitive selection procedures for the 

award of research proposals in 

accordance with Subpart 917.73 and 

FAR Part 35. 

25. Section 906.102 paragraph (d)(5) 

is rewritten to clarify the use of 

competitive selection procedures for 

award of program opportunity notices 

for commercial demonstrations in 

accordance with Subpart 917.72. 

26. Section 906.501 is revised to add 

the NNSA role in delegating authority 

for appointment of the agency and 

contracting activity competition 

advocates, and removing the last 

sentence referencing procedural 

guidance in internal directives. 

27. Part 907 is removed and reserved, 

pursuant to Federal Acquisition Circular 

2005–09 which revised FAR Subpart 7.3 

to be consistent with OMB Circular A– 

76 (Revised), Performance of 

Commercial Activities, dated May 29, 

2003. 

28. Section 908.7107 on the 

procurement of industrial alcohol is 

amended by revising this section to 

reflect current Alcohol and Tobacco Tax 

and Trade Bureau, Department of 

Treasury regulations. 

29. Sections 909.400(a), 909.400(b), 

and 909.401 are amended by adding 

‘‘National Nuclear Security 

Administration (NNSA)’’ after ‘‘DOE’’. 

30. Section 909.401 is amended by 

removing ‘‘10 CFR part 1036.’’ and 

adding in its place ‘‘2 CFR part 901.’’ to 

update the citation. 

31. Part 909 is amended by adding to 

section 909.405 Effect of listing, by 

identifying the debarment exception 

authority for NNSA in paragraph (e) and 

by adding references to NNSA and the 

Excluded Parties List System (EPLS) in 

paragraphs (f) through (h), which 

supplement FAR 9.405. 

32. Section 909.406–2 is amended in 

paragraph (c) by adding ‘‘DOE and 

NNSA’’ and revising punctuation in 

paragraphs (c)(1) and (d)(1). 

33. Section 909.406–3(a)(1) is 

amended in the first sentence, by 

removing ‘‘both the Deputy Assistant 

Secretary for Procurement and 

Assistance Management’’ and adding in 

its place ‘‘the appropriate Senior 

Procurement Executive’’ to correct the 

title of the official and by removing 

‘‘1010.217(b), Cooperation with the 

Inspector General.’’ and adding in its 

place ‘‘1010.103, Reporting 

Wrongdoing.’’ 

34. Consistent with FAR 9.404, 

section 909.406–3(a)(2) is amended in 

paragraph (2) by revising punctuation; 

in subparagraph (iv) by adding ‘‘or other 

identifying number for an individual’’ as 

identifying information to be provided 

in a debarment referral; in 

subparagraphs (v) and (vii) adding ‘‘and 

NNSA’s’’; and in subparagraph (vi) 

removing ‘‘Board of Contract Appeals; 

and’’ and adding in its place ‘‘Civilian 

Board of Contract Appeals or other factfinding body; and’’. 

35. Section 909.406–3(b)(2) is 

amended in the third sentence by 

removing ‘‘refer the matter to the Energy 

Board of Contract Appeals’’ and adding 

in its place ‘‘appoint, and refer the 

matter to, a Fact-Finding Official’’. 

36. Section 909.406–3(b)(3) is 

amended in the first sentence by 

removing ‘‘therefor’’. 

37. Section 909.406–3(b)(4) is 

amended in the second through the 

fourth sentences by removing reference 

to the Energy Board of Contract Appeals 

and by adding in its place a reference to 

the Fact-Finding Official. 

38. Section 909.406–3(d)(4) is 

amended in the third through fifth 

sentences by removing reference to the 

Energy Board of Contract Appeals and 

adding in its place a reference to the 

Fact-Finding Official. 

39. Section 909.406–70(b) is amended 

in the third sentence, after ‘‘respondent’’ 

by removing the rest of the sentence. 

40. Section 909.407 adds a new 

section heading. 

41. Consistent with FAR 9.404, 

section 909.407–3 is amended in 

paragraph (e)(1)(vii) by removing 

mention of GSA and by adding EPLS to 

update the name of the listing. 

42. Section 915.201 is amended by 

revising the section heading. 

43. Section 915.305(d) is amended to 

remove ‘‘48 CFR (DEAR)’’ in the second 

sentence. 

44. Sections 915.404–2 paragraph 

(a)(1) in two places; 915.404–2–70 

paragraphs (a)(1) and (a)(2); 915.404–4– 

70–4 paragraph (a); and 915.404–4–70– 

7 paragraph (b) are amended by 

removing the dollar values and adding 

the reference to 48 CFR 15.403–4(a)(1). 

45. Section 915.404–4(c)(4)(i) is 

amended by removing ‘‘profit and fees’’ 

and adding ‘‘price and fee’’. 

46. Section 915.404–4–70–2 is 

amended by renumbering the table in 

paragraph (d) to conform to the DOE 

Form 42.20.23, Weighted Guidelines. 

47. Section 915.404–4–72 is amended 

by removing ‘‘916.404–2’’ and adding 

‘‘916.405–2’’ to update the reference to 

conform to FAR 16.405–2. 


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Federal Register / Vol. 76, No. 29 / Friday, February 11, 2011 / Rules and Regulations 7687 

48. Section 916.203–4(d)(2) is 

amended by removing ‘‘(FAR)’’. 

49. Section 916.307 is amended by 

adding a paragraph (a) which provides 

direction to the contracting officer to 

modify paragraph (a) of clause 48 CFR 

52.216–7 by adding the phrase ‘‘as 

supplemented by subpart 931.2 of the 

DEAR’’ after ‘‘FAR subpart 31.2’’. 

50. Section 917.602 is amended to 

remove ‘‘that’’ in the second sentence of 

paragraph (c) and adding in its place 

‘‘than’’. 

51. Section 917.7301–1 is amended by 

removing paragraphs (c) and (d). This 

information is internal guidance and has 

been moved to DOE’s Acquisition 

Guide. 

52. Section 917.7401 is amended by 

adding in the first paragraph before the 

first sentence, ‘‘The acquisition of real 

estate requires the involvement of a 

DOE Certified Realty Specialist, as 

specified at 917.7402.’’ This amendment 

adds clarity to the processes of the 

DEAR and conforms to DOE Order 

430.1B. 

53. Section 917.7401(b) is amended 

by removing paragraph (b) in its entirety 

and adding in its place, ‘‘(b) Lease for 

which DOE will reimburse the 

contractor for the pre-approved costs 

incurred under the lease.’’ This adds 

clarity to the DEAR and conforms to 

DOE Order 430.1B. 

54. Section 917.7402 is amended in 

the first sentence by changing the 

punctuation; and in paragraph (b) 

adding ‘‘acquisition option 

considerations with the best’’ between 

the words ‘‘cost,’’ and ‘‘acquisition 

method’’ and removing ‘‘and property 

appraisal reports; and’’ and adding in its 

place ‘‘property appraisal reports, and 

include the review and approval by the 

applicable DOE Certified Realty 

Specialist in accordance with DOE 

Order 430.1B, or its successor version; 

and’’. This adds clarity to the DEAR and 

conforms to the DOE Order 430.1B. 

55. Section 917.7402(c)(2) and (4) is 

amended in paragraph (c)(2) by adding 

‘‘approved by a DOE Certified Realty 

Specialist’’ and in paragraph (c)(4) by 

removing ‘‘and regulations applicable to 

real estate management.’’ and adding in 

its place ‘‘, regulations, and the DOE 

Order 430.1B, or its successor version, 

applicable to real estate acquisition.’’ 

This adds clarity to the DEAR and 

conforms to the DOE Order 430.1B. 

56. Section 917.7402(d) is amended 

by adding that any real property actions 

require the involvement of the 

applicable DOE Certified Realty 

Specialist. 

57. Section 917.7403 is amended in 

the title by removing ‘‘Application.’’ and 

adding in its place ‘‘Contract clause.’’; by 

removing ‘‘48 CFR’’ before the clause 

number; by adding ‘‘, Acquisition of 

Real Property,’’ after ‘‘952.217–70’’; by 

removing ‘‘or’’ and adding in its place 

‘‘including’’; and by adding ‘‘of real 

property’’ after ‘‘contractor acquisitions’’. 

58. Section 952.202–1 is amended to 

remove the included definitions and to 

direct contracting officers to supplement 

clause 48 CFR 52.202–1 by inserting 

paragraph (c). These changes are made 

to conform to revised part 902. 

59. Clause 952.204–2 and provision 

952.204–73 are amended to encourage 

contractors to submit information 

through the use of the online tool and 

to send a copy of standard form 328 to 

the contracting officer. 

60. Clause 952.204–71 is amended in 

paragraph (b) by adding ‘‘which may 

involve making unclassified information 

about nuclear technology available to 

sensitive foreign nations’’ after 

‘‘subcontracts’’. This phrase is added to 

provide clarity for subcontractor flow 

down pursuant to DEAR 904.404(d)(3). 

61. Clause 952.217–70 is amended in 

subparagraph (a)(2) by removing this 

subparagraph in its entirety and adding 

in its place ‘‘(2) Lease for which the 

Department of Energy will reimburse 

the incurred costs of the lease as a 

reimbursable contract cost’’. This change 

is made to add clarity on 

reimbursements for leases. 

62. Throughout, sections are amended 

by removing ‘‘FAR’’ and adding ‘‘48 

CFR’’, by removing ‘‘DEAR’’ and adding 

‘‘48 CFR’’, and by updating other CFR 

citations or changing punctuation. 

III. Procedural Requirements 

A. Review Under Executive Order 12866 

Today’s regulatory action has been 

determined not to be a ‘‘significant 

regulatory action’’ under Executive 

Order 12866, ‘‘Regulatory Planning and 

Review,’’ (58 FR 51735, October 4, 

1993). Accordingly, this 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). 

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; and 

(3) provide a clear legal standard for 

affected conduct rather than a general 

standard 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, this rule 

meets the relevant standards of 

Executive Order 12988. 

C. Review Under the Regulatory 

Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.) requires that an 

agency prepare an initial regulatory 

flexibility analysis for any regulation for 

which a general notice or rulemaking is 

required, unless the agency certifies that 

the rule, if promulgated, will not have 

a significant economic impact on a 

substantial number of small entities 

(5 U.S.C. 605(b)). This rule updates 

references in the DEAR that apply to 

public contracts and does not impose 

any additional requirements on small 

businesses. Today’s rule does not alter 

any substantive rights or obligations 

and, consequently, today’s rule will not 

have a significant cost or administrative 

impact on contractors, including small 

entities. On the basis of the foregoing, 

DOE certifies that this rule would not 

have a significant economic impact on 

a substantial number of small entities. 

Accordingly, DOE has not prepared a 

regulatory flexibility analysis for this 

rulemaking. DOE’s certification and 

supporting statement of factual basis 

will be provided to the Chief Counsel 

for Advocacy of the Small Business 

Administration pursuant to 5 U.S.C. 

605(b). 

D. Review Under the Paperwork 

Reduction Act 

This final rule does not impose a 

collection of information requirement 

subject to the Paperwork Reduction Act, 

44 U.S.C. 3501 et seq. Existing burdens 


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7688 Federal Register / Vol. 76, No. 29 / Friday, February 11, 2011 / Rules and Regulations 

associated with the collection of certain 

contractor data under the DEAR have 

been cleared under OMB control 

number 1910–4100. 

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, today’s rule 

does not require an environmental 

impact statement or 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. The Executive Order 

requires agencies to have an 

accountability process to ensure 

meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications. On March 14, 2000, DOE 

published a statement of policy 

describing the intergovernmental 

consultation process it will follow in the 

development of such regulations (65 FR 

13735). DOE has examined today’s 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) generally 

requires a Federal agency to perform a 

written 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 

$100 million or more. This rule does not 

impose any Federal mandate on State, 

local or Tribal governments or on 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 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 Office of 

Information and Regulatory Affairs of 

the Office of Management and Budget, 

a Statement of Energy Effects for any 

proposed 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. Today’s 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 

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 

Issuance of today’s rule has been 

approved by the Office of the Secretary. 

List of Subjects 

10 CFR Part 1023 

Administrative practice and 

procedure, Claims, Equal access to 

justice, Government contracts, 

Government procurement, Lawyers. 

48 CFR Parts 901, 902, 903, 904, 906, 

907, 908, 909, 911, 914, 915, 916, 917, 

and 952 

Government procurement. 

Issued in Washington, DC, on January 13, 

2011. 

Patrick M. Ferraro, 

Acting Director, Office of Procurement and 

Assistance Management, Department of 

Energy. 

Joseph F. Waddell, 

Director, Office of Acquisition and Supply 

Management, National Nuclear Security 

Administration. 

For the reasons set out in the 

preamble, the Department of Energy 

amends Chapter X of Title 10 and 

Chapter 9 of Title 48 of the Code of 

Federal Regulations as set forth below. 

TITLE 10—ENERGY 

PART 1023—[REMOVED] 

■ 1. Under the authority of Section 847 

of the National Defense Authorization 

Act for Fiscal Year 2006, Public Law 

109–163, 10 CFR chapter X is amended 

by removing part 1023. 

TITLE 48—FEDERAL ACQUISITION 

REGULATIONS SYSTEM 

■ 2. Authority citations continue to read 

as follows: 

■ a. For parts 901, 903, 904, 906, 908, 

909, 914, 915, 916, and 917, the 

authority citation continues to read as 

follows: 

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

U.S.C. 2401 et seq. 


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■ b. For parts 911 and 952 the authority 

citations continue 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. 

PART 901—FEDERAL ACQUISITION 

REGULATIONS SYSTEM 

Subpart 901.1—Purpose, Authority, 

Issuance 

901.101 [Amended] 

■ 3. Section 901.101 is amended by 

adding ‘‘(Chapter 1 of Title 48 of the 

Code of Federal Regulations (CFR))’’ at 

the end of the sentence. 

901.102, 901.103, 901.104, 901.104–1, 

901.104–2, 901.104–3, and 901.105 

[Redesignated as 901.103, 901.104, 901.105, 

901.105–1, 901.105–2, 901.105–3, and 

901.106] 

■ 4. Redesignate sections 901.102, 

901.103, 901.104, 901.104–1, 901.104–2, 

901.104–3, and 901.105 as sections 

901.103, 901.104, 901.105, 901.105–1, 

901.105–2, 901.105–3, and 901.106, 

respectively. 

■ 5. Newly redesignated section 901.103 

is revised to read as follows: 

901.103 Authority. 

The DEAR and amendments thereto 

are issued by the Senior Procurement 

Executives of the Department of Energy 

(DOE) and the National Nuclear 

Security Administration (NNSA). The 

DOE Senior Procurement Executive 

delegation is pursuant to a delegation 

from the Secretary of Energy in 

accordance with the authority of section 

644 of the Department of Energy 

Organization Act (42 U.S.C. 7254), 

section 205(c) of the Federal Property 

and Administrative Services Act of 

1949, as amended, (40 U.S.C. 121(c)(2)), 

and other applicable laws. The NNSA 

Senior Procurement Executive 

delegation is pursuant to a delegation 

from the Administrator of the NNSA, in 

accordance with section 3212 of the 

National Nuclear Security 

Administration Act (50 U.S.C. 2402), 

section 205(c) of the Federal Property 

and Administrative Services Act of 

1949, as amended, (40 U.S.C. 121(c)(2)), 

and other applicable laws. 

901.104 [Amended] 

■ 6. Newly redesignated 901.104 is 

amended by adding ‘‘and NNSA’’ after 

the acronym ‘‘DOE.’’ 

■ 7. Revise newly redesignated 

901.105–1 to read as follows: 

901.105–1 Publication and code 

arrangement. 

(a) The DEAR and its subsequent 

changes are published in the Federal 

Register, cumulative form in the Code of 

Federal Regulations (CFR), and 

Government Printing Office’s Electronic 

CFR at http://ecfr.gpoaccess.gov. 

(b) The DEAR is issued as Chapter 9 

of Title 48 of the CFR. 

901.105–2 [Amended] 

■ 8. Amend newly redesignated 

901.105–2(b) by removing ‘‘(FAR)’’ 

before ‘‘48’’ and removing ‘‘1.104–2(b)’’ 

and adding in its place ‘‘1.105–2(b)’’. 

901.105–3 [Amended] 

■ 9. Amend newly redesignated 

901.105–3 by adding ‘‘or viewed on line 

at http://ecfr.gpoaccess.gov or at http:// 

management.energy.gov/DEAR.htm’’ at 

the end of the sentence. 

■ 10. Revise newly redesignated 

901.106 to read as follows: 

901.106 OMB approval under the 

Paperwork Reduction Act. 

The Office of Management and Budget 

(OMB) control number for the collection 

of information under 48 CFR chapter 9 

is 1910–4100. 

Subpart 901.3—Agency Acquisition 

Regulations 

■ 11. Section 901.301–70 is revised to 

read as follows: 

901.301.70 Other issuances related to 

acquisition. 

(a) In addition to the FAR and DEAR, 

there are other issuances which deal 

with acquisition. Among these are the 

Federal Property Management 

Regulation, the Federal Management 

Regulation, the DOE Property 

Management Regulation, and DOE 

Directives. The Department also 

maintains the DOE Acquisition Guide 

(‘‘the Guide’’), which has procedural 

guidance for the acquisition community. 

The DOE Acquisition Guide serves this 

purpose by identifying relevant internal 

standard operating procedures to be 

followed by both procurement and 

program personnel who are involved in 

various aspects of the acquisition 

process. The Guide also is intended to 

be a repository of best practices found 

throughout the agency that reflect 

specific illustrations of techniques 

which might be helpful to all readers. 

The Guide is at http:// 

management.energy.gov/ 

policy_guidance/ 

Acquisition_Guide.htm. 

Subpart 901.6—Career Development, 

Contracting Authority, and 

Responsibilities 

■ 12. The heading of subpart 901.6 is 

revised to read as set forth above. 

■ 13. Section 901.601 is revised to read 

as follows: 

901.601 General. 

(a) Contracting authority for DOE 

vests in the Secretary of Energy, and for 

NNSA in the Administrator. 

(1) The Secretary has delegated this 

authority to the DOE Senior 

Procurement Executive. The DOE Senior 

Procurement Executive has redelegated 

this authority to the DOE Heads of 

Contracting Activities (HCA). These 

delegations are formal written 

delegations containing specific dollar 

limitations and conditions. Each DOE 

HCA, in turn, makes formal contracting 

officer appointments for its contracting 

activity. 

(2) Contracting authority for NNSA 

vests in the Under Secretary for Nuclear 

Security, also known as the NNSA 

Administrator. The NNSA 

Administrator has delegated this 

authority, with specific dollar 

limitations and conditions to the NNSA 

Senior Procurement Executive. The 

NNSA Senior Procurement Executive 

has redelegated this authority to the 

NNSA Head of the Contracting 

Activities (HCA). Each NNSA HCA in 

turn makes formal contracting officer 

appointments for its contracting 

activity. 

(b) The Senior Procurement 

Executives have been authorized, 

without power of redelegation, to 

perform the functions set forth at 48 

CFR 1.601(b) regarding the assignment 

of contracting functions and 

responsibilities to another agency, and 

the creation of joint or combined offices 

with another agency to exercise 

acquisition functions and 

responsibilities. 

■ 14. Section 901.602–3 is amended by 

revising paragraph (b)(2), and removing 

from paragraph (b)(3), the term 

‘‘Procurement Executive’’ and adding in 

its place ‘‘DOE and NNSA Senior 

Procurement Executives’’. 

The revision reads as follows: 

901.602–3 Ratification of unauthorized 

commitments. 

(b)(2) The Senior Procurement 

Executives are authorized to ratify 

unauthorized commitments. 

* * * * * 

■ 15. Sections 901.603, 901.603–1, and 

901.603–70 are added to subpart 901.6 

to read as follows: 

901.603 Selection, appointment, and 

termination of appointment. 

901.603–1 General. 

The DOE Order 361.1B, Acquisition 

Career Management Program, or its 


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7690 Federal Register / Vol. 76, No. 29 / Friday, February 11, 2011 / Rules and Regulations 

successor order, sets forth the 

requirements and responsibilities for the 

DOE and NNSA Acquisition Career 

Development Program. 

901.603–70 Appointment of contracting 

officers and contracting officer’s 

representatives. 

See the DOE Order 541.1B, 

Appointment of Contracting Officers 

and Contracting Officer Representatives, 

or its successor order, for procedures on 

the appointment of contracting officers 

and contracting officer’s representatives. 

■ 16. Part 902 is revised to read as 

follows: 

PART 902—DEFINITIONS OF WORDS 

AND TERMS 

Sec. 

Subpart 902.1—Definitions 

902.101 Definitions. 

Subpart 902.2—Definitions Clause 

902.201 Contract clause. 

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

U.S.C. 2401 et seq. 

Subpart 902.1—Definitions 

902.101 Definitions. 

Agency Head or Head of the Agency 

means— 

(1) For the Department of Energy 

(DOE)— 

(i) The Secretary; 

(ii) The Deputy Secretary; or 

(iii) Under Secretaries of the 

Department of Energy. 

(2) For the National Nuclear Security 

Administration (NNSA) the 

Administrator, also known as the Under 

Secretary of Nuclear Security. 

Department of Energy (DOE) means, 

as used in the DEAR, the Department of 

Energy and includes the National 

Nuclear Security Administration 

(NNSA), unless otherwise specified. 

Senior Procurement Executive means 

for the Department of Energy, the 

Director, Office of Procurement and 

Assistance Management and for the 

National Nuclear Security 

Administration, the Director, Office of 

Acquisition and Supply Management. 

Subpart 902.2—Definitions Clause 

902.201 Contract clause. 

Insert the clause at 952.202–1, 

Definitions, in solicitation and contracts 

that exceed the simplified acquisition 

threshold. 

PART 903—IMPROPER BUSINESS 

PRACTICES AND PERSONAL 

CONFLICTS OF INTEREST 

903.303 [Amended] 

■ 17. Section 903.303 is amended by: 

■ a. Adding ‘‘Senior’’ before 

‘‘Procurement Executive’’ in the first 

sentence of paragraph (a); and 

■ b. Removing ‘‘FAR’’ from the first 

sentence, both occurrences, and adding 

in its place ‘‘48 CFR’’. 

■ 18. Section 903.405 is revised to read 

as follows: 

903.405 Misrepresentations or violations 

of the Covenant Against Contingent Fees. 

(b) Before the Chief of the Contracting 

Office initiates appropriate action, the 

action shall be reviewed by Legal 

Counsel. 

903.603 [Amended] 

■ 19. Section 903.603 is amended by: 

■ a. Removing the first occurrence of 

‘‘FAR’’ in paragraph (a); and 

■ b. Removing ‘‘FAR’’ at its second 

occurrence in the first sentence and 

adding in its place ‘‘48 CFR’’. 

■ 20. Add a new subpart 903.7 

consisting of 903.700 to read as follows: 

Subpart 903.7—Voiding and 

Rescinding Contracts 

903.700 Scope of subpart. 

The HCA is the designee for 

determining whether to void or rescind 

a contract. This authority is 

nondelegable. 

■ 21. Add a new subpart 903.10 

consisting of 903.1004 to read as 

follows: 

Subpart 903.10—Contractor Code of 

Business Ethics and Conduct 

903.1004 Contract clauses. 

(b)(2)(ii) Insert the DOE Web site 

address http://ig.energy.gov/hotline.htm 

in paragraph (b)(3) of the 48 CFR 

52.203–14 clause, Display of Hotline 

Poster(s). 

PART 904—ADMINISTRATIVE 

MATTERS 

904.404 [Amended] 

■ 22. Section 904.404 is amended by 

removing ‘‘FAR’’ in paragraph (d)(1) in 

the last sentence and adding in its place 

‘‘48 CFR’’. 

904.804 [Amended] 

■ 23. Section 904.804–1 is amended by 

removing ‘‘FAR’’ in paragraph (a) and 

adding in its place ‘‘48 CFR’’. 

904.7001 [Amended] 

■ 24. Section 904.7001 is amended by 

removing ‘‘as defined in 10 CFR part 

710’’ from the first sentence and 

removing the last sentence in its 

entirety. 

■ 25. Section 904.7002 is amended by 

adding in alphabetical order new 

definitions for ‘‘contract’’, ‘‘contractor’’, 

and ‘‘special nuclear material’’ to read as 

follows: 

904.7002 Definitions. 

Contract means the prime contract 

and the subcontract at any tier. 

* * * * * 

Contractor means the contractor and 

the subcontractor at any tier. 

* * * * * 

Special nuclear material means 

special nuclear material as defined in 10 

CFR 710.5(a). 

PART 906—COMPETITION 

REQUIREMENTS 

■ 26. Section 906.102 is amended in 

paragraph (d)(1) by removing ‘‘FAR 

Subpart’’ and adding in its place ‘‘48 

CFR subpart’’, and revising paragraphs 

(d)(4) and (d)(5) to read as follows: 

906.102 Use of competitive procedures. 

(d) * * * 

(4) Program research and 

development announcements shall 

follow the competitive selection 

procedures for the award of research 

proposals in accordance with subpart 

917.73 and 48 CFR part 35. 

(5) Program opportunity notices for 

commercial demonstrations shall follow 

the competitive selection procedures for 

award of these proposals in accordance 

with subpart 917.72. 

906.202 [Amended] 

■ 27. Section 906.202 is amended by 

removing ‘‘FAR’’ in paragraph (b)(1) and 

adding in its place ‘‘48 CFR’’. 

906.304 [Amended] 

■ 28. Section 906.304 is amended by 

removing ‘‘FAR’’ in paragraph (c)(2) and 

adding in its place ‘‘48 CFR’’. 

■ 29. Section 906.501 is revised to read 

as follows: 

906.501 Requirement. 

The Secretary of Energy and NNSA 

Administrator have delegated the 

authority for appointment of the agency 

and contracting activity competition 

advocates to the respective DOE and 

NNSA Senior Procurement Executives. 

The Senior Procurement Executives 

have redelegated authority to the Head 

of the Contracting Activity to appoint 

contracting activity competition 

advocates. 

PART 907—[REMOVED AND 

RESERVED] 

■ 30. Under the authority of 42 U.S.C. 

7101 et seq. and 50 U.S.C. 2401 et seq., 

Part 907 is removed and reserved. 


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PART 908—REQUIRED SOURCES OF 

SUPPLIES AND SERVICES 

908.7106 [Amended] 

■ 31. Section 908.7106 is amended by 

removing ‘‘FAR’’ in paragraph (b) and 

adding in its place ‘‘48 CFR part’’. 

■ 32. Section 908.7107 is revised to read 

as follows: 

908.7107 Procurement and use of 

industrial alcohol. 

(a) This section covers the 

procurement of industrial alcohol by 

DOE or authorized contractors and the 

applicable policies and delegations of 

authority to submit industrial alcohol 

user application to procure and use taxfree alcohol or specially denatured 

spirits. To the fullest extent practicable, 

industrial alcohol for use by DOE or its 

contractors shall be procured on a taxfree basis. 

(b) The procurement of tax-free 

alcohol or specially denatured spirits 

shall be conducted in accordance with 

the regulations, policy, and procedures 

of the Alcohol and Tobacco Tax and 

Trade Bureau (TTB), of the Department 

of Treasury. The applicable TTB 

regulations and forms may be accessed 

at the following Web site: http:// 

www.ttb.gov/foia/err.shtml#regulations. 

For further information, contact the 

Alcohol and Tobacco Tax and Trade 

Bureau, Director, National Revenue 

Center, 550 Main St., Suite 8002, 

Cincinnati, OH 45202–5215 or toll free 

at 1–877–882–3277. 

(c) The applying office should 

coordinate, as necessary, with the local 

State Alcohol Control Board, or its 

equivalent, to obtain the appropriate 

State license. 

(1) Tax-free alcohol. TTB regulations 

relating to the procurement and use of 

alcohol free of tax, by Government 

agencies, are set forth in 27 CFR Part 22, 

subpart N, §§ 22.171 to 22.176. 

(2) Specially denatured spirits. TTB 

regulations relating to the acquisition 

and use of alcohol free of tax, by 

Government agencies, are set forth in 27 

CFR Part 20, subpart N, §§ 20.241 to 

20.245. 

(d) For the user permits to procure 

and use tax-free alcohol and specially 

denatured spirits submit the application 

on the TTB Form 5150.22, ‘‘Application 

for Industrial Alcohol User Permit,’’ (or 

the current TTB form). When permits 

are no longer required, they should be 

forwarded to the Alcohol and Tobacco 

Tax and Trade Bureau for cancellation. 

Industrial alcohol procured by use of 

the TTB form referred to in this 

subsection shall be used exclusively on 

DOE work. 

(e) The Senior Procurement Executive 

(SPE) has the authority to sign the TTB 

application, Form 5150.22. The SPE 

may delegate this authority to sign the 

application to specifically named DOE 

personnel. Requests for new 

authorizations or changes to existing 

authorizations shall be submitted by 

letter to the SPE. A copy of the TTB 

approved permit shall be sent to the 

SPE. 

(f) Abandoned and forfeited alcohol 

which has come into the custody or 

control of a Federal agency may be 

obtained by following the procedure set 

forth in the FMR at 41 CFR part 102– 

41. 

PART 909—CONTRACTOR 

QUALIFICATIONS 

909.400 [Amended] 

■ 33. Section 909.400 is amended: 

■ a. In paragraph (a), by adding ‘‘and 

National Nuclear Security 

Administration (NNSA)’’; after ‘‘(DOE)’’; 

■ b. In paragraph (a), by adding ‘‘and, 

NNSA’’, after ‘‘DOE’’; and 

■ c. In paragraph (b), by adding ‘‘and 

NNSA’’ after ‘‘DOE’’. 

909.401 [Amended] 

■ 34. Section 909.401 is amended by: 

■ a. Adding ‘‘and NNSA’’; after ‘‘DOE’’; 

and 

■ b. Removing ‘‘10 CFR part 1036.’’ and 

adding in its place ‘‘2 CFR part 901.’’ 

■ 35. Section 909.405 is revised to read 

as follows: 

909.405 Effect of listing. 

(e) The Department of Energy may not 

solicit offers from, award contracts to or 

consent to subcontracts with contractors 

debarred, suspended, or proposed for 

debarment unless the Senior 

Procurement Executive makes a written 

determination justifying that there is a 

compelling reason for such action in 

accordance with 48 CFR 9.405(a). For 

NNSA, the Head of the Contracting 

Activity (HCA) makes the written 

determination justifying the compelling 

reason. 

(f) DOE or NNSA may disapprove or 

not consent to the selection (by a 

contractor) of an individual to serve as 

a principal investigator, as a project 

manager, in a position of responsibility 

for the administration of Federal funds, 

or in another key personnel position, if 

the individual is listed in the Excluded 

Parties List System (EPLS). 

(g) DOE or NNSA shall not conduct 

business with an agent or representative 

of a contractor if the agent’s or 

representative’s name is listed in the 

EPLS. 

(h) DOE or NNSA shall review the 

EPLS before conducting a pre-award 

survey or soliciting proposals, awarding 

contracts, renewing or otherwise 

extending the duration of existing 

contracts, or approving or consenting to 

the award, extension, or renewal of 

subcontracts. 

909.406–2 [Amended] 

■ 36. Section 909.406–2 is amended by 

adding ‘‘DOE and NNSA’’ in paragraph 

(c) introductory text, first sentence, after 

‘‘The’’. 

■ 37. Section 909.406–3 is amended by: 

■ a. Removing from the first sentence in 

paragraph (a)(1), ‘‘both the Deputy 

Assistant Secretary for Procurement and 

Assistance Management’’ and adding in 

its place ‘‘the appropriate Senior 

Procurement Executive’’; and removing, 

‘‘§ 1010.217(b), Cooperation with the 

Inspector General.’’ and adding in its 

place ‘‘§ 1010.103, Reporting 

Wrongdoing.’’; 

■ b. Removing the colon at the end of 

the introductory text of paragraph (a)(2) 

and adding in its place ‘‘—’’; 

■ c. Adding ‘‘or other identifying 

number for an individual’’ in paragraph 

(a)(2)(iv) after ‘‘Number’’; 

■ d. Adding ‘‘and NNSA’s’’ in paragraph 

(a)(2)(v) after ‘‘DOE’s’’; 

■ e. Removing ‘‘Board of Contract 

Appeals; and’’ in paragraph (a) (2)(vi) 

and adding in its place ‘‘Civilian Board 

of Contract Appeals or other fact-finding 

body; and;’’; 

■ f. Adding ‘‘and NNSA’’ in paragraph 

(a)(2) (vii) after ‘‘DOE’’; 

■ g. Removing ‘‘refer the matter to the 

Energy Board of Contract Appeals’’ in 

paragraph (b)(2) third sentence and 

adding in its place ‘‘appoint, and refer 

the matter to, a Fact-Finding Official’’; 

■ h. Removing ‘‘therefor’’ in paragraph 

(b)(3) first sentence; and 

■ i. Revising paragraphs (b)(4) and (d)(4) 

to read as follows: 

909.406–3 Procedures. 

* * * * * 

(b) * * * 

(4) Fact-finding conference. The 

purpose of a fact-finding conference 

under this section is to provide the 

respondent an opportunity to dispute 

material facts through the submission of 

oral and written evidence; resolve facts 

in dispute; and provide the Debarring 

Official with findings of fact based, as 

applicable, on adequate evidence or on 

a preponderance of the evidence. The 

fact-finding conference shall be 

conducted in accordance with rules 

consistent with 48 CFR 9.406–3(b). The 

Fact-Finding Official will notify the 

affected parties of the schedule for the 

hearing. The Fact-Finding Official shall 

deliver written findings of fact to the 

Debarring Official (together with a 


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7692 Federal Register / Vol. 76, No. 29 / Friday, February 11, 2011 / Rules and Regulations 

transcription of the proceeding, if made) 

within a certain time period after the 

hearing record closes as specified by the 

Fact-Finding Official. The findings shall 

resolve any disputes over material facts 

based upon a preponderance of the 

evidence, if the case involves a proposal 

to debar, or on adequate evidence, if the 

case involves a suspension. Since 

convictions or civil judgments generally 

establish the cause for debarment by a 

preponderance of the evidence, there 

usually is no genuine dispute over a 

material fact that would warrant a factfinding conference for those proposed 

debarments based on convictions or 

civil judgments. 

(d) Debarring Official’s decision. (4) 

The Debarring Official’s final decision 

shall be based on the administrative 

record. In those actions where 

additional proceedings are necessary as 

to disputed material facts, written 

findings of fact shall be prepared and 

included in the final decision. In those 

cases where the contractor has 

requested and received a fact-finding 

conference, the written findings of fact 

shall be those findings prepared by the 

Fact-Finding Official. Findings of fact 

shall be final and conclusive unless, 

within 15 days of receipt of the findings, 

the Department or the respondent 

requests reconsideration, or unless set 

aside by a court of competent 

jurisdiction. The Fact-Finding Official 

shall be provided a copy of the 

Debarring Official’s final decision. 

909.406–70 [Amended] 

■ 38. Section 909.406–70 is amended by 

removing the words ‘‘and, if a factfinding conference under 909.406– 

3(b)(4) is pending (as in the case of a 

request for reconsideration of a 

suspension, where the proposed 

debarment is the subject of a factfinding conference), a copy of the 

disposition shall be transmitted to the 

Energy Board of Contract Appeals’’ in 

paragraph (b), third sentence. 

909.407–3 [Amended] 

■ 39. Section 909.407–3 is amended by 

revising paragraph (e)(1)(vii) to read as 

follows: 

909.407–3 Procedures. 

* * * * * 

(e) * * * 

(1) * * * 

(vii) A statement that the respondent’s 

name and address will be added to the 

EPLS; and 

* * * * * 

909.400, 909.403, 909.406, 909.407 

[Amended] 

■ 40. In the table below, for each section 

indicated in the left column, remove the 

word indicated in the middle column 

from where it appears in the section, 

and add the word in the right column: 

Section Remove Add 

909.400(c) ............... ‘‘FAR’’ ..... ‘‘48 CFR’’ 

909.403 ................... ‘‘FAR’’ ..... ‘‘48 CFR’’ 

909.406–2(d)(1) ....... ‘‘FAR’’ ..... ‘‘48 CFR’’ 

909.406–70(a) ......... ‘‘FAR’’ ..... ‘‘48 CFR’’ 

909.407–3(b)(2) ....... ‘‘FAR’’ ..... ‘‘48 CFR’’ 

909.407–3(e)(1)(v) .. ‘‘FAR’’ ..... ‘‘48 CFR’’ 

PART 911—DESCRIBING AGENCY 

NEEDS 

911.600 [Amended] 

■ 41. Section 911.600 is amended by 

removing ‘‘FAR’’ and adding in its place 

‘‘48 CFR part’’. 

PART 914—SEALED BIDDING 

914.404, 914.407, 914.502 [Amended] 

■ 42. In the table below, for each section 

indicated in the left column, remove the 

word indicated in the middle column 

from where it appears in the section, 

and add the word in the right column: 

Section Remove Add 

914.404–1 ............ ‘‘FAR’’ ....... ‘‘48 CFR’’ 

914.407–3(e) in 3 

places.

‘‘FAR’’ ....... ‘‘48 CFR’’ 

914.407–4 in 2 

places.

‘‘FAR’’ ....... ‘‘48 CFR’’ 

914.502(c) ............ ‘‘FAR’’ ....... ‘‘48 CFR’’ 

PART 915—CONTRACTING BY 

NEGOTIATION 

■ 43. Section 915.201 is amended by 

revising the section heading to read as 

follows: 

915.201 Exchanges with industry before 

receipt of proposals. 

* * * * * 

915.305 [Amended] 

■ 44. Section 915.305(d) is amended by 

removing ‘‘48 CFR (DEAR)’’ in the 

second sentence. 

915.404–2 [Amended] 

■ 45. Section 915.404–2 is amended by 

removing ‘‘$500,000’’ in paragraph (a)(1), 

in two places, and adding in its place 

‘‘the threshold stated at 48 CFR 15.403– 

4(a)(1).’’ 

915.404–2–70 [Amended] 

■ 46. Section 915.404–2–70 is amended 

by: 

(a) Removing ‘‘$500,000’’ in paragraph 

(a)(1), and adding in its place ‘‘The 

threshold stated at 48 CFR 15.403– 

4(a)(1)’’; and 

(b) Removing ‘‘$1,000,000’’ in 

paragraph (a)(2), and adding in its place 

‘‘Twice the threshold at 48 CFR 15.403– 

4(a)(1) for requiring cost or pricing 

data’’. 

915.404–4 [Amended] 

■ 47. Section 915.404–4(c)(4)(i) is 

amended in the first sentence by 

removing ‘‘profit and fees’’ and adding in 

its place ‘‘price and fee’’. 

■ 48. Section 915.404–4–70–2 

paragraph (d) is revised to read as 

follows: 

915.404–4–70–2 Weighted guidelines 

system. 

* * * * * 

(d) The factors set forth in the 

following table are to be used in 

determining DOE profit objectives. The 

factors and weight ranges for each factor 

shall be used in all instances where the 

weighted guidelines are applied. 

Profit factors 

Weight 

ranges 

(percent) 

I. Contractor Effort (Weights applied to cost): 

a. Material acquisitions: 

(1) Purchased parts ................ 1 to 3. 

(2) Subcontracted items .......... 1 to 4. 

(3) Other materials .................. 1 to 3. 

b. Labor skills: 

(1) Technical and managerial: 

(a) Scientific ..................... 10 to 20. 

(b) Project management/ 

administration.

8 to 20. 

(c) Engineering ................ 8 to 14. 

(2) Manufacturing .................... 4 to 8. 

(3) Support services ................ 4 to 14. 

c. Overhead: 

(1) Technical and managerial 5 to 8. 

(2) Manufacturing .................... 3 to 6. 

(3) Support services ................ 3 to 7. 

d. Other direct costs ................... 3 to 8. 

e. G&A (General Management) 

expenses.

5 to 7. 

II. Contract Risk (type of contractweights applied to total cost of 

items 4.a. thru 4.e.).

0 to 8. 

III. Capital Investment (Weights applied to the net book value of allocable facilities).5 to 20. 

IV. Independent Research and Development: 

a. Investment in IR&D program 

(Weights applied to allocable 

IR&D costs).

5 to 7. 

b. Developed items employed 

(Weights applied to total of 

profit $ for items 4.a. thru 4.e.).

0 to 20. 

V. Special Program Participation 

(Weights applied to total of Profit 

$ for items 4.a. thru 4.e.).

¥5 to 

+5. 

VI. Other Considerations (Weights 

applied to total of Profits $ for 

items 4.a. thru 4.e.).

¥5 to 

+5. 


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Federal Register / Vol. 76, No. 29 / Friday, February 11, 2011 / Rules and Regulations 7693 

Profit factors 

Weight 

ranges 

(percent) 

VII. Productivity/Performance (special computation).(N/A). 

915.404–4–70–4 [Amended] 

■ 49. Section 915.404–4–70–4 is 

amended by removing ‘‘$500,000’’ in 

paragraph (a), and adding in its place 

‘‘the threshold stated at 48 CFR 15.403– 

4(a)(1)’’. 

915.404–4–70–7 [Amended] 

■ 50. Section 915.404–4–70–7 is 

amended by removing ‘‘$500,000’’ in 

paragraph (b), and adding in its place 

‘‘the threshold stated at 48 CFR 15.403– 

4(a)(1)’’. 

915.404–4–72 [Amended] 

■ 51. Section 915.404–4–72 is amended 

by removing ‘‘916.404–2’’ in paragraph 

(a), and adding in its place ‘‘916.405–2’’. 

915.207, 915.404 [Amended] 

■ 52. In the table below, for each section 

indicated in the left column, remove the 

word indicated in the middle column 

from where it appears in the section, 

and add the word in the right column: 

Section Remove Add 

915.207–70(e)(2) ...................................................................................................................................... ‘‘FAR’’ .................... ‘‘48 CFR’’ 

915.207–70(f)(2)(i) .................................................................................................................................... ‘‘FAR’’ .................... ‘‘48 CFR’’ 

915.207–70(f)(5) ....................................................................................................................................... ‘‘FAR’’ .................... ‘‘48 CFR’’ 

915.404–2(a)(1) in the first sentence ....................................................................................................... ‘‘FAR’’ .................... ‘‘48 CFR’’ 

915.404–4(c)(4)(i) ..................................................................................................................................... ‘‘FAR’’ .................... ‘‘48 CFR’’ 

915.404–4(d) ............................................................................................................................................. ‘‘FAR’’ .................... ‘‘48 CFR’’ 

915.404–4–70 ........................................................................................................................................... ‘‘FAR’’ .................... ‘‘48 CFR’’ 

915.404–4–70–2(a) ................................................................................................................................... ‘‘FAR’’ .................... ‘‘48 CFR’’ 

915.404–4–70–3, in the last sentence ..................................................................................................... ‘‘FAR’’ .................... ‘‘48 CFR’’ 

915.404–4–71–1(a) in the introductory text ............................................................................................. ‘‘DOE to’’ ............... ‘‘DOE to’’ 

PART 916—TYPES OF CONTRACTS 

916.203 [Amended] 

■ 53. Section 916.203–4(d)(2) is 

amended by removing ‘‘(FAR)’’. 

916.307 [Amended] 

■ 54. Section 916.307 is amended by: 

■ a. Adding a new paragraph (a) to read 

set forth below; and 

■ b. By removing ‘‘FAR’’ in paragraph (g) 

and adding in its place ‘‘48 CFR’’. 

916.307 Contract clauses. 

(a) When contracting with a 

commercial organization, modify 

paragraph (a) of the clause at 48 CFR 

52.216–7 by adding the phrase ‘‘as 

supplemented by subpart 931.2 of the 

DEAR’’ after ‘‘FAR subpart 31.2.’’ 

* * * * * 

PART 917—SPECIAL CONTRACTING 

METHODS 

917.602 [Amended] 

■ 55. Section 917.602 is amended by 

removing ‘‘that’’ in the second sentence 

of paragraph (c) and adding in its place 

‘‘than’’. 

917.7200 [Amended] 

■ 56. Section 917.7200 is amended by 

removing ‘‘non nuclear’’ in paragraph (a) 

and adding in its place ‘‘nonnuclear’’. 

917.7301 [Amended] 

■ 57. Section 917.7301–1 is amended by 

removing paragraphs (c) and (d). 

■ 58. Section 917.7401 is amended by 

adding a new sentence at the beginning 

of the introductory text and by revising 

paragraph (b) to read as follows: 

917.7401 General. 

The acquisition of real estate requires 

the involvement of a DOE Certified 

Realty Specialist, as specified at 

917.7402. * * * 

* * * * * 

(b) Lease for which DOE will 

reimburse the contractor for the preapproved costs incurred under the lease. 

* * * * * 

■ 59. Section 917.7402 is amended by: 

■ a. Removing the colon from the end of 

the introductory text and adding in its 

place ‘‘—’’; 

■ b. Revising paragraphs (b), (c)(2) and 

(4); and 

■ c. Adding a new paragraph (d). 

The revisions and addition read as 

follows: 

917.7402 Policy. 

* * * * * 

(b) Acquisitions shall be justified, 

with documentation which describes 

the need for the acquisitions, general 

requirements, cost, acquisition option 

considerations with the best acquisition 

method to be used, site investigation 

reports, site recommended for selection, 

property appraisal reports, and include 

the review and approval by the 

applicable DOE Certified Realty 

Specialist in accordance with DOE 

Order 430.1B, or its successor version; 

and 

(c) * * * 

(2) May exceed a one-year term, when 

the lease is for special purpose space 

funded by no-year appropriations and 

approved by a DOE Certified Realty 

Specialist. * * * 

(4) Shall be consistent with 

Government laws, regulations, and the 

DOE Order 430.1B, or its successor 

version, applicable to real estate 

acquisition. 

(d) Any real property actions require 

the involvement of the applicable DOE 

Certified Realty Specialist. 

■ 60. Section 917.7403 is revised to read 

as follows: 

917.7403 Contract clause. 

The clause at 952.217–70, Acquisition 

of Real Property, shall be included in 

contracts including modifications where 

contractor acquisitions of real property 

are expected to be made. 

PART 952—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 61. Section 952.202–1 is revised to 

read as follows: 

952.202–1 Definitions. 

As prescribed in 902.201, insert the 

clause at 48 CFR 52.202–1, Definitions, 

in all contracts. The following shall be 

added to the clause as paragraph (c): 

(c) When a solicitation provision or 

contract clause uses a word or term that 

is defined in the Department of Energy 

Acquisition Regulation (DEAR) (48 CFR 

chapter 9), the word or term has the 

same meaning as the definition in 48 

CFR 902.101 or the definition in the 

part, subpart, or section of 48 CFR 

chapter 9 where the provision or clause 

is prescribed in effect at the time the 

solicitation was issued, unless an 

exception in (a) applies. 

■ 62. Section 952.204–2 is amended by: 

■ a. Revising the date of the clause; and 


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7694 Federal Register / Vol. 76, No. 29 / Friday, February 11, 2011 / Rules and Regulations 

■ b. Adding in paragraph (j)(1) after the 

first sentence, two new sentences to 

read as follows: 

952.204–2 Security. 

* * * * * 

SECURITY MAR 2011 

* * * * * 

(j) * * * 

(1) * * * Contractors are encouraged 

to submit this information through the 

use of the online tool at https:// 

foci.td.anl.gov. When completed the 

Contractor must print and sign one copy 

of the SF 328 and submit it to the 

Contracting Officer. * * * 

* * * * * 

■ 63. Section 952.204–71 is amended by 

revising the clause date and paragraph 

(b) to read as follows: 

952.204–71 Sensitive foreign nations 

controls. 

* * * * * 

SENSITIVE FOREIGN NATIONS 

CONTROLS MAR 2011 

* * * * * 

(b) The provisions of this clause shall 

be included in any subcontracts which 

may involve making unclassified 

information about nuclear technology 

available to sensitive foreign nations. 

* * * * * 

■ 64. Section 952.204–73 is amended 

by: 

■ a. Revising the date of the provision; 

and 

■ b. Adding two new sentences at the 

end of paragraph (a)(1). 

The revision and addition reads as 

follows: 

952.204–73 Facility clearance. 

* * * * * 

FACILITY CLEARANCE MAR 2011 

(a) * * * 

(1) * * * Contractors are encouraged 

to submit this information through the 

use of the online tool at https:// 

foci.td.anl.gov. When completed the 

Contractor must print and sign one copy 

of the SF 328 and submit it to the 

Contracting Officer. 

* * * * * 

952.209–72 [Amended] 

■ 65. Section 952.209–72 is amended by 

removing ‘‘48 CFR’’ in the introductory 

text. 

952.217–70 [Amended] 

■ 66. Section 952.217–70 is amended by 

revising the date of the clause and 

paragraph (a)(2) to read as follows: 

952.217–70 Acquisition of real property. 

* * * * * 

ACQUISITION OF REAL PROPERTY 

MAR 2011 

* * * * * 

(a) * * * 

(2) Lease for which the Department of 

Energy will reimburse the incurred costs 

as a reimbursable contract cost. 

* * * * * 

952.204, 952.215, 952.216 [Amended] 

■ 67. In the table below, for each section 

indicated in the left column, remove the 

word indicated in the middle column 

from where it appears in the section, 

and add the word in the right column: 

Section Remove Add 

952.204–2(e) in the first sentence .......................................................................................... ‘‘the information:’’ ........... ‘‘the information—’’ 

952.204–2(g) in the first sentence .......................................................................................... ‘‘means:’’ ........................ ‘‘means—’’ 

952.204–2(h)(2)(i) in the first sentence .................................................................................. ‘‘A review must:’’ ............ ‘‘a review must—’’ 

952.204–2(h)(2)(iii) in the first sentence ................................................................................ ‘‘including those: (a)’’ ..... ‘‘including those—(A)’’ 

952.204–2(h)(2)(iv) ................................................................................................................. ‘‘10 CFR Part 707.4’’ ..... ‘‘10 CFR 707.4’’ 

952.204–2(h)(2)(iv) ................................................................................................................. ‘‘10 CFR Part 707’’ ........ ‘‘10 CFR part 707’’ 

952.204–2(h)(2)(vi) in the introductory text ............................................................................ ‘‘authorization:’’ .............. ‘‘authorization—’’ 

952.204–2(l) in five places ..................................................................................................... ‘‘Subcontractor’’ .............. ‘‘subcontractor’’ 

952.204–2(l) in the second sentence ..................................................................................... ‘‘Subcontractors’’ ............ ‘‘subcontractors’’ 

952.204–2(l) in the second sentence ..................................................................................... ‘‘DEAR 952.204–73’’ ...... ‘‘48 CFR 952.204–73’’ 

952.215–70(a) in the second sentence .................................................................................. ‘‘DEAR 970.5203–3’’ ...... ‘‘48 CFR 970.5203–3’’ 

952.216–7 ............................................................................................................................... ‘‘FAR’’ ............................. ‘‘48 CFR’’ 

952.216–15 Alternate ............................................................................................................. ‘‘FAR’’ ............................. ‘‘48 CFR’’ 

[FR Doc. 2011–1320 Filed 2–10–11; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2011–0054; Directorate 

Identifier 2010–CE–070–AD; Amendment 

39–16582; AD 2011–01–53] 

RIN 2120–AA64 

Airworthiness Directives; PIAGGIO 

AERO INDUSTRIES S.p.A Model 

PIAGGIO P–180 Airplanes 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Final rule; correction. 

SUMMARY: The FAA is correcting an 

airworthiness directive (AD) that 

published in the Federal Register. That 

AD applies to the products listed above. 

The Piaggio service bulletin number 

specified in the Alternative Methods of 

Compliance (AMOCs) section is 

incorrect. This document corrects that 

error. In all other respects, the original 

document remains the same. 

DATES: This final rule is effective 

February 11, 2011. The effective date for 

AD 2011–01–53 remains January 24, 

2011. 

ADDRESSES: You may examine the AD 

docket on the Internet at http:// 

www.regulations.gov; or in person at the 

Docket Management Facility between 

9 a.m. and 5 p.m., Monday through 

Friday, except Federal holidays. The AD 

docket contains this AD, the regulatory 

evaluation, any comments received, and 

other information. The address for the 

Docket Office (phone: 800–647–5527) is 

Document Management Facility, U.S. 

Department of Transportation, Docket 

Operations, M–30, West Building 

Ground Floor, Room W12–140, 1200 

New Jersey Avenue SE., Washington, 

DC 20590. 

FOR FURTHER INFORMATION CONTACT: 

Mike Kiesov, Aerospace Engineer, Small 

Airplane Directorate, FAA, 901 Locust, 

Kansas City, MO 64106; phone: (816) 

329–4144; fax: (816) 329–4090; e-mail: 

mike.kiesov@faa.gov. 

SUPPLEMENTARY INFORMATION: 

Airworthiness Directive 2011–01–53, 

amendment 39–16582 (76 FR 4056, 

January 24, 2011), currently requires an 

immediate functional test of the fuselage 

drain holes, and requires sending a 

report of the results to the FAA. The AD 

also allows, with noted exceptions, for 


emcdonald on DSK2BSOYB1PROD with RULES