Federal Register / Vol. 75, No. 110 / Wednesday, June 9, 2010 / Proposed Rules 32719 

§ 54.519 State telecommunications 

networks. 

(a) Telecommunications services. 

State telecommunications networks may 

secure discounts under the universal 

service support mechanisms on 

supported telecommunications services 

(as described in § 54.502) on behalf of 

applicants. Such State 

telecommunications networks shall pass 

on such discounts to applicants and 

shall: 

* * * * * 

(6) Comply with the competitive bid 

requirements set forth in § 54.510(b). 

(b) Internet access and installation 

and maintenance of internal 

connections. State telecommunications 

networks either may secure discounts 

on Internet access and installation and 

maintenance of internal connections in 

the manner described in paragraph (a) of 

this section with regard to 

telecommunications, or shall be eligible, 

consistent with § 54.502(d), to receive 

universal service support for providing 

such services to applicants. 

[FR Doc. 2010–12930 Filed 6–8–10; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF ENERGY 

48 CFR Part 970 

RIN 1991–AB91 

Acquisition Regulation: Agency 

Supplementary Regulations 

AGENCY: Department of Energy. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Department of Energy 

(DOE) is proposing to amend the 

Department of Energy Acquisition 

Regulation (DEAR) on DOE Management 

and Operating Contracts to make 

changes to conform to the Federal 

Acquisition Regulation (FAR), remove 

out-of-date coverage, and update 

references. Today’s proposed rule does 

not alter substantive rights or 

obligations under current law. 

DATES: Written comments on the 

proposed rulemaking must be received 

on or before close of business July 9, 

2010. 

ADDRESSES: You may submit comments, 

identified by DEAR: Subchapter I and 

RIN 1991–AB91, by any of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• E-mail to: 

DEARrulemaking@hq.doe.gov. Include 

DEAR: Subchapter I and RIN 1991– 

AB91 in the subject line of the message. 

• Mail to: U.S. Department of Energy, 

Office of Procurement and Assistance 

Management, MA–611, 1000 

Independence Avenue, SW., 

Washington, DC 20585. Comments by email are encouraged. 

FOR FURTHER INFORMATION CONTACT: 

Barbara Binney at (202) 287–1340 or by 

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

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Section-by-Section Analysis 

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. Approval by the Office of the Secretary 

of Energy 

I. Background 

The Department of Energy 

Acquisition Regulation (DEAR) 

Subchapter I has sections that need to 

be updated to conform with the FAR. 

The objective of this action is to update 

the existing DEAR Subchapter I— 

Agency Supplementary Regulations, 

Part 970—DOE Management and 

Operating Contracts to conform it to the 

FAR. None of these changes are 

substantive or of a nature to cause any 

significant expense for DOE or its 

contractors. 

II. Section-by-Section Analysis 

DOE proposes to amend the DEAR as 

follows: 

1. Section 970.0100 is amended to 

add the references for the Code of 

Federal Regulation (CFR) chapters 1 and 

9. 

2. Section 970.103 is revised to 

remove ‘‘DEAR’’ before 970.0309 and 

remove ‘‘FAR’’ before 3.9 and add in its 

place ‘‘48 CFR subpart’’ in paragraph 

(a)(3). 

3. Section 970.0404–2 is amended to 

update the DOE Order to 475.1, 

Counterintelligence Program. 

4. Section 970.19 is amended to revise 

the subpart heading and the 970.1907 

section heading to conform to the FAR. 

5. Section 970.1907–1 is redesignated 

as 970.1907–4 to conform to the FAR. 

6. Part 970 is revised by adding a new 

subpart ‘‘970.25 Foreign Acquisition’’ 

and section ‘‘970.2570 Contract clauses’’ 

which provides instructions on when to 

insert and how to modify the clauses at 

FAR 52.225–1, Buy American Act— 

Supplies, and FAR 52.225–9, Buy 

American Act—Construction Materials, 

in management and operating contracts. 

7. Section 970.3102–05–6 paragraphs 

(a)(7)(i) and (ii) are amended to clarify 

that the contract will set forth the 

reimbursable costs for compensation for 

personal services, it removes the 

reference to the personnel appendix. 

Paragraph (p)(1) revises the reference to 

the FAR from the ‘‘Federal Acquisition 

Regulation’’ to ‘‘48 CFR.’’ 

8. Subpart 970.34 is amended by 

redesignating 970.3400 as 970.3405 and 

970.3400–1 as 970.3405–2 to conform 

with the FAR. 

9. Subpart 970.37 is revised to add the 

new section ‘‘970.3706 Performancebased acquisition’’ and ‘‘970.3706–1 

General’’ which references 970.1100 for 

policy and guidance on performancebased contracting for management and 

operating (M&O) contracts. 

10. Section 970.3770–1 is amended by 

adding that the use of DOE directives is 

prescribed in 970.0470. 

11. Section 970.5204–1 is amended by 

revising the date of the clause and 

removing ‘‘DOE Order 5670.3, 

Counterintelligence Program’’ in 

paragraph (a) of the clause and adding 

in its place ‘‘DOE Order 475.1, 

Counterintelligence Program, or its 

successor’’. 

12. Section 970.5223–3 is amended by 

revising the date of the provision and 

adding that DOE may grant an extension 

to the notification or implementation 

period if necessary as per 10 CFR 707.5 

(g) in paragraph (b). This change will 

provide the contracting officer the 

authority to extend the time needed for 

the contractor to submit the workplace 

substance abuse program plan. 

13. Section 970.5223–4 is amended by 

revising the date of the clause and 

revising the clause to permit the 

contracting officer to agree to different 

date beyond the 30-day notice by the 

contractor for the submission of the 

workplace substance abuse program 

plan. This change will provide the 

Contracting Officer the authority to 

extend the time needed for the 

Contractor to submit the workplace 

substance abuse program plan. 

14. Section 970.5226–1 is amended by 

revising the punctuation in the last 

sentence of the clause. 

15. Section 970.5232–3 is amended at 

paragraph (h)(1) to add ‘‘or 

subcontractor’s’’ after ‘‘contractor’s’’ and 

to add ‘‘and to interview any current 

employee regarding such transactions’’ 

after ‘‘hereunder.’’ Section 871 of the 

Duncan Hunter National Defense 


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Authorization Act for Fiscal Year 2009 

and section 902 of Title IX of the 

Recovery Act formalized the current 

practices permitting access to the 

Government Accountability Office to 

records and to interview current 

employees of contractors and 

subcontractors administering contracts. 

16. Section 970.5235–1 is amended to 

update the clause to reference the clause 

48 CFR 970.5217–1 in paragraph (c) 

since this clause applies the Work for 

Others Program. Also, paragraph (d) is 

amended to add the full title of DOE 

order 481.1. 

17. The rule text is amended as noted 

in paragraph 15 and in the tables at 

paragraphs 27 and 28 by removing 

‘‘FAR’’ or ‘‘DEAR’’ and adding ‘‘48 CFR’’; 

removing ‘‘FAR’’ or ‘‘48 CFR’’; adding ‘‘48 

CFR’’, revising the punctuation; and 

capitalizing Contractor, Contractor’s, 

and Contracting Officer. 

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 proposed 

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. On 

the basis of the foregoing, DOE certifies 

that this proposed rule would not have 

a significant economic impact on a 

substantial number of small entities. 

Today’s proposed rule does not alter 

any substantive rights or obligations and 

consequently, today’s proposed rule 

will not have a significant cost or 

administrative impact on contractors, 

including 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 proposed rule does not impose a 

collection of information requirement 

subject to the Paperwork Reduction Act, 

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

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 proposed 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 proposed rule is 

categorically excluded from NEPA 

review because the amendments to the 

DEAR are strictly procedural 

(categorical exclusion A6). Therefore, 

this proposed 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 the proposed 

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 rulemaking 

proposes changes that do not alter any 

substantive rights or obligations. This 

proposed rule does not impose any 

mandates. 

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 


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family well-being. This rulemaking 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 proposed significant energy action, 

the agency must give a detailed 

statement of any adverse effects on 

energy supply, distribution, or use 

should the proposal be implemented, 

and of reasonable alternatives to the 

action and their expected benefits on 

energy supply, distribution, and use. 

Today’s proposed 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 the proposed rule under the 

OMB and DOE guidelines and has 

concluded that it is consistent with 

applicable policies in those guidelines. 

K. Approval by the Office of the 

Secretary of Energy 

Issuance of this proposed rule has 

been approved by the Office of the 

Secretary. 

List of Subjects in 48 CFR Part 970 

Government procurement. 

Issued in Washington, DC on May 19, 

2010. 

Patrick M. Ferraro, 

Acting Director, Office of Procurement and 

Assistance Management, Department of 

Energy . 

Joseph F. Waddell, 

Acting Director, Office of Acquisition and 

Supply Management, National Nuclear 

Security Administration. 

For the reasons set out in the 

preamble, the Department of Energy is 

proposing to amend Chapter 9 of Title 

48 of the Code of Federal Regulations as 

set forth below. 

PART 970—DOE MANAGEMENT AND 

OPERATING CONTRACTS 

1. The authority citation for part 970 

continues to read as follows: 

Authority: 42 U.S.C. 2201; 2282a; 2282b; 

2282c; 42 U.S.C. 7101 et seq.; 50 U.S.C. 2401 

et seq. 

Subpart 970.01—Management and 

Operating Contract Regulatory System 

970.0100 [Amended] 

2. Section 970.0100 is amended in the 

first sentence, by adding, ‘‘(Chapter 1 of 

Title 48 Code of Federal Regulations 

(CFR))’’ after ‘‘(FAR)’’ and by adding 

‘‘(Chapter 9 of Title 48 CFR)’’ after 

‘‘DEAR’’. 

970.0103 [Amended] 

3. Section 970.0103 is amended by: 

a. Removing, in introductory 

paragraph (a) heading, ‘‘part’’ and adding 

in its place ‘‘Part’’; 

b. Removing, in paragraph (a)(3) 

‘‘DEAR’’; and 

c. Removing, in paragraph (a)(3) ‘‘FAR 

3.9’’ and adding in its place ‘‘48 CFR 

subpart 3.9’’. 

970.0404–2 [Amended] 

4. Section 970.0404–2 is amended in 

paragraph (b) by removing ‘‘5670.3 (as 

amended).’’ at the end of the first 

sentence and adding in its place ‘‘475.1, 

Counterintelligence Program, or its 

successor.’’ 

Subpart 970.19—Small Business 

Programs 

5. Revise subpart 970.19 subpart 

heading to read as set forth above. 

6. Revise 970.1907 section heading to 

read as set forth below: 

970.1907 The Small Business 

Subcontracting Program. 

* * * * * 

970.1907–1 [Redesignated] 

7. Section 970.1907–1 is redesignated 

as 970.1907–4. 

8. Add a new subpart 970.25, 

consisting of 970.2570, to part 970 to 

read as follows: 

Subpart 970.25—Foreign Acquisition 

970.2570 Contract clauses. 

Contracting officers shall insert the 

clauses at 48 CFR 52.225–1, Buy 

American Act—Supplies, and 48 CFR 

52.225–9, Buy American Act— 

Construction Materials, in management 

and operating contracts. The clause at 

48 CFR 52.225–1 shall be modified in 

paragraph (d) by substituting the word 

‘‘use’’ for the word ‘‘deliver.’’ 

970.2673–1 [Amended] 

9. Section 970.2673–1 is amended by: 

a. Removing the ‘‘:’’ in introductory 

text and adding in its place a ‘‘—’’; 

b. Removing the ‘‘,’’ in paragraph (a) 

and adding in its place a ‘‘;’’; and 

c. Removing the ‘‘,’’ in paragraph (b) 

and adding in its place a ‘‘;’’. 

10. Section 970.3102–05–6 is 

amended by: 

a. Revising paragraphs (a)(7)(i) and 

(a)(7)(ii) to read as set forth below; and 

b. Removing ‘‘Federal Acquisition 

Regulation’’ in paragraph (p)(1) and 

adding in its place ‘‘48 CFR’’. 

970.3102–05–6 Compensation for personal 

services. 

(a) * * * 

(7)(i) Reimbursable costs for 

compensation for personal services are 

to be set forth in the contract. This 

compensation shall be set forth using 

the principles and policies of 48 CFR 

31.205–6, Compensation, as 

supplemented by this section, 

970.3102–05–6, and other pertinent 

parts of the DEAR. Costs that are 

unallowable under other contract terms 

shall not be allowable as compensation 

for personnel services. 

(ii) The contract sets forth, in detail, 

personnel costs and related expenses 

allowable under the contract and 

documents personnel policies, practices 

and plans which have been found 

acceptable by the contracting officer. 

The contractor will advise DOE of any 

proposed changes in any matters 

covered by these policies, practices, or 

plans which relate to personnel costs. 

Types of personnel costs and related 

expenses addressed in the contract are 

as follows: Salaries and wages; bonuses 

and incentive compensation; overtime, 

shift differential, holiday, and other 

premium pay for time worked; welfare 

benefits and retirement programs; paid 

time off, and salaries and wages to 

employees in their capacity as union 

stewards and committeemen for time 

spent in handling grievances, or serving 

on labor management (contractor) 


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committees provided, however, that the 

contracting officer’s approval is required 

in each instance of total compensation 

to an individual employee above an 

annual rate as specified in the contract. 

* * * * * 

970.3102–05–46 [Amended] 

11. Section 970.3102–05–46 is 

amended in paragraph (e)(3) 

introductory text by adding ‘‘48 CFR’’ 

before ‘‘31.109’’. 

970.3400 and 970.3400–1 [Redesignated] 

12. Redesignate 970.3400 as 970.3405 

and 970.3400–1 as 970.3405–2. 

13. Add a new section 970.3706 and 

970.3706–1 to subpart 970.37 to read as 

follows: 

970.3706 Performance-based acquisition. 

970.3706–1 General. 

For policy and guidance on 

performance-based contracting for 

management and operating (M&O) 

contracts, see 970.1100. 

14. Section 970.3770–1 is revised to 

read as follows: 

970.3770–1 Policy. 

Contractors managing the Department 

of Energy (DOE) facilities shall be 

required to comply with the DOE 

Directives applicable to facilities 

management. The use of the DOE 

Directives is prescribed in 970.0470. 

15. Section 970.5204–1 is amended 

by: 

a. Revising the date of the clause to 

read as set forth below; and 

b. Removing ‘‘DOE Order 5670.3, 

Counterintelligence Program;’’ in 

paragraph (a) of the clause and adding 

in its place ‘‘DOE Order 475.1, 

Counterintelligence Program, or its 

successor;’’. 

The revision reads as follows: 

970.5204–1 Counterintelligence. 

* * * * * 

COUNTERINTELLIGENCE (XXX 20XX) 

* * * * * 

16. Section 970.5223–3 is amended 

by: 

a. Revising the date of the provision 

to read as set forth below; and 

b. Adding a new sentence at the end 

of paragraph (b) as set forth below. 

The revision and addition read as 

follows: 

970.5223–3 Agreement regarding 

Workplace Substance Abuse Programs at 

DOE Sites. 

* * * * * 

AGREEMENT REGARDING WORKPLACE 

SUBSTANCE ABUSE PROGRAMS AT DOE 

SITES (XXX 20XX) 

* * * * * 

(b) * * * DOE may grant an extension 

to the notification or implementation 

period if necessary as per 10 CFR 707.5 

(g). 

* * * * * 

17. Section 970.5223–4 is amended 

by: 

a. Revising the date of the clause to 

read as set forth below; and 

b. Revising paragraph (c)(1). 

The revisions read as follows: 

970.5223–4 Workplace Substance Abuse 

Programs at DOE sites. 

* * * * * 

WORKPLACE SUBSTANCE ABUSE 

PROGRAMS AT DOE SITES (XXX 20XX) 

* * * * * 

(c) Subcontracts. (1) The Contractor agrees 

to notify the Contracting Officer reasonably 

in advance of, but not later than 30 days prior 

to, the award of any subcontract the 

Contractor believes may be subject to the 

requirements of 10 CFR part 707, unless the 

Contracting Officer agrees to a different date. 

* * * * * 

(End of Clause) 

18. Section 970.5232–3 is amended 

by: 

a. Revising the date of the clause to 

read as set forth below; and 

b. Adding ‘‘or subcontractor’s’’ after 

‘‘contractor’s’’ and adding ‘‘and to 

interview any current employee 

regarding such transactions’’ after 

‘‘hereunder’’ in paragraph (h)(1). 

The revision reads as follows: 

970.5232–3 Accounts, records, and 

inspection. 

* * * * * 

ACCOUNTS, RECORDS, AND INSPECTION 

(XXX 20XX) 

* * * * * 

19. Section 970.5235–1 is amended 

by: 

a. Revising the introductory text and 

the date of the clause to read as set forth 

below; 

b. Removing ‘‘DOE Order 481.1, Work 

for Others (Non-Department of Energy 

Funded Work) (see current version).’’ in 

paragraph (c) and adding in its place 

‘‘the clause 48 CFR 970.5217–1 Work for 

Others Program.’’; and 

c. Adding ‘‘, Work for Others (NonDepartment of Energy Funded Work), or 

its successor’’ after ‘‘DOE Order 481.1’’ in 

paragraph (d). 

The revisions read as follows: 

970.5235–1 Federally funded research and 

development center sponsoring agreement. 

As prescribed in 970.3501–4, insert 

the following clause: 

FEDERALLY FUNDED RESEARCH AND 

DEVELOPMENT CENTER SPONSORING 

AGREEMENT (XXX 20XX) 

* * * * * 

PART 970—[AMENDED] 

20. 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 

970.1504–1–4(e), in the introductory text, and 

(e)(2) in the introductory text 

‘‘:’’ ‘‘—’’ 

970.2201–1–1 ‘‘48 CFR Subpart’’ ‘‘48 CFR subpart’’ 

970.2201–1–2(a)(1)(ii)(A) ‘‘A review must:’’ ‘‘A review must—’’ 

970.2201–1–2(a)(1)(ii)(C) ‘‘including those:’’ ‘‘including those—’’ 

970.2201–1–2(a)(1)(iii) ‘‘10 CFR Part 707.4’’ ‘‘10 CFR 707.4’’ 

970.2201–1–2(a)(1)(iii) ‘‘10 CFR Part 707’’ ‘‘10 CFR part 707’’ 

970.2201–1–2(a)(1)(v)(A) ‘‘authorization:’’ ‘‘authorization—’’ 

970.2305–2(b) ‘‘48 CFR 23.5’’ ‘‘48 CFR subpart 23.5’’ 

970.2306(b)(4) ‘‘48 CFR 970.5223–3’’ ‘‘970.5223–3’’ 

970.2672–2 ‘‘48 CFR’’ ‘‘subpart’’ 

970.5215–3(b)(4)(iii) in the first sentence ‘‘contracting officer’’ ‘‘Contracting Officer’’ 

970.3204–1(a) ‘‘48 CFR subpart 932.4’’ ‘‘subpart 932.4’’ 

970.5222–1 in the last sentence ‘‘contractor’’ ‘‘Contractor’’ 

970.5223–1(b) in the third sentence ‘‘contractor’s’’ ‘‘Contractor’s’’ 

970.5223–1(b)(2) ‘‘(ES&H)’’ ‘‘ES&H’’ 

970.5226–1 ‘‘contracting officer’’ ‘‘Contracting Officer’’ 

970.5226–1 in the second sentence ‘‘contractor’’ ‘‘Contractor’’ 

970.5226–1 in the third sentence ‘‘Appendix.’’ ‘‘the Appendix.’’ 


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Section Remove Add 

970.5232–2(e)(2)(iv)(B) in the last sentence ‘‘contractor’’ ‘‘Contractor’’ 

970.5232–3(d) in the second sentence ‘‘Clause __,’’ ‘‘Clause 970.5204–3,’’ 

970.5232–3(j) in the last sentence ‘‘Penalties for Unallowable costs;’’ ‘‘Penalties for Unallowable Costs;’’ 

21. In the table below, for each section 

indicated in the left column, remove the 

word indicated in the right column from 

where it appears in the section: 

Section Remove 

970.2201–1–2(a)(1)(ii) ‘‘48 CFR’’ 

970.2671–2 ‘‘48 CFR’’ 

970.2672–3 ‘‘48 CFR’’ 

970.2673–2 ‘‘48 CFR’’ 

970.5226–1 introductory text ‘‘48 CFR’’ 

970.5226–2 introductory text ‘‘48 CFR’’ 

970.5226–3 introductory text ‘‘48 CFR’’ 

970.5232–5(b) in two places ‘‘FAR’’ 

[FR Doc. 2010–13678 Filed 6–8–10; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF HOMELAND 

SECURITY 

48 CFR Parts 3015, 3016, and 3052 

[Docket No. DHS–2010–0045] 

RIN 1601–AA43 

Revision of Department of Homeland 

Security Acquisition Regulation; 

Limitations on Subcontracting in 

Emergency Acquisitions (HSAR Case 

2009–005) 

AGENCY: Office of the Chief Procurement 

Officer, DHS. 

ACTION: Proposed rule with requests for 

comments. 

SUMMARY: The Department of Homeland 

Security (DHS) is proposing to amend 

its Homeland Security Acquisition 

Regulation (HSAR) to implement a 

statutory requirement limiting the use of 

subcontractors on cost-reimbursement 

type contracts entered into by the 

Department to facilitate the response to 

or recovery from a natural disaster or act 

of terrorism or other man-made disaster. 

DATES: Comments and related material 

submitted electronically must be 

submitted to the Federal eRulemaking 

Portal http://www.regulations.gov. on or 

before August 9, 2010. Comments and 

related material submitted by mail must 

reach the Department of Homeland 

Security, Office of the Chief 

Procurement Officer, Acquisition Policy 

and Legislation Branch at the address 

shown below on or before August 9, 

2010 to be considered in the formation 

of the final rule. 

ADDRESSES: You may submit comments 

identified by DHS docket number DHS– 

2010–0045, using any one of the 

following methods: 

(1) Via the internet at Federal 

eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments 

and use docket number DHS–2010– 

0045. 

(2) By mail to the Department of 

Homeland Security, Office of the Chief 

Procurement Officer, Acquisition Policy 

and Legislation Branch, Attn: Jeremy 

Olson, 245 Murray Drive, Bldg. 410 

(RDS), Washington, DC 20528. 

FOR FURTHER INFORMATION CONTACT: 

Jeremy Olson, Department of Homeland 

Security, Office of the Chief 

Procurement Officer, Acquisition Policy 

and Legislation Branch, (202) 447–5197. 

SUPPLEMENTARY INFORMATION: 

I. Request for Comments 

II. Background 

III. Discussion of Proposed Rule 

IV. Regulatory Requirements 

A. Executive Order 12866 (Regulatory 

Planning and Review) 

B. Small Entities 

C. Collection of Information 

I. Request for Comments 

Interested persons are invited to 

participate in this rulemaking by 

submitting comments and related 

materials. Comments and related 

materials should be organized by HSAR 

Part, and indicate the specific section 

that is being commented on. All 

comments received will be posted 

without change to http:// 

www.regulations.gov, including any 

personal information provided. See 

ADDRESSES above for information on 

how to submit comments. If you submit 

comments by mail, please submit them 

in an unbound format, no larger than 

81⁄2 by 11 inches, suitable for copying 

and electronic filing. You may submit 

comments either by mail or via the 

internet as identified in the ADDRESSES

section above; but to avoid duplication 

DHS requests that you submit comments 

and materials by only one method. If 

you would like DHS to acknowledge 

receipt of comments submitted by mail, 

please enclose a self-addressed, stamped 

postcard or envelope. DHS will consider 

all comments and material received 

during the comment period. 

Viewing comments and documents: 

To view comments and read background 

documents related to this rulemaking, 

go to http://www.regulations.gov, which 

contains relevant instructions under the 

FAQs tab on the home page. 

II. Background 

Section 692 of the Post-Katrina 

Emergency Management Reform Act of 

2006 (PKEMRA), Public Law 109–295, 

120 Stat. 1394, 1409 (Oct. 4, 2006), 

establishes a limitation on 

subcontracting for cost-reimbursement 

type contracts above the simplified 

acquisition threshold entered into to 

facilitate the response to or recovery 

from a natural disaster or act of 

terrorism or other man-made disaster. 

Congress enacted this limitation based 

on findings that excessive tiering of 

subcontractors under disaster recovery 

cost-reimbursement type contracts leads 

to inflated overhead charges and poor 

prime contractor oversight over 

subcontractor work. In order to 

implement the statutory requirement, 

DHS proposes to amend the Homeland 

Security Acquisition Regulation (HSAR) 

to add implementing policy. 

III. Discussion of Proposed Rule 

The proposed rule would revise 48 

CFR part 3015, Contracting by 

Negotiation; part 3016, Types of 

Contracts; and part 3052, Solicitation 

Provisions and Contract Clauses, to 

limit the use of subcontractors by prime 

contractors on certain DHS acquisitions 

above the simplified acquisition 

threshold (as defined by section 4 of the 

Office of Federal Procurement Policy 

Act (41 U.S.C. 403) (currently 

$100,000)), unless DHS determines that 

such requirements are not feasible or 

practicable. The authority to determine 

whether or not the subcontracting 

requirements are not feasible or 

practicable rests one level above the 

contracting officer. This determination 

may be made on the basis of analysis of 

information provided by an offeror 

seeking a DHS contract or the 

contracting officer may prepare a 

recommended Determination & Finding 

for review and approval by the deciding 

official. 

Contracts to be covered by the 

proposed regulation are those awarded 

in response to or recovery from: (1) A 

major disaster or emergency declared by 

the President under Title IV or Title V 

of the Robert T. Stafford Disaster Relief 

and Emergency Assistance Act, as 


erowe on DSK5CLS3C1PROD with PROPOSALS-1