Federal Register / Vol. 65, No. 78 / Friday, April 21, 2000 / Rules and Regulations 21371

919.7011 Developmental assistance.

(a) The forms of developmental

assistance a Mentor may provide to a

Protege include, but are not limited to:

(1) Management guidance relating to:

(i) Financial management,

(ii) Organizational management,

(iii) Overall business management

planning,

(iv) Business development, and

(v) Marketing assistance;

(2) Engineering and other technical

assistance;

(3) Noncompetitive award of

subcontracts under DOE or other

Federal contracts where otherwise

authorized;

(4) Award of subcontracts in the

Mentor’s commercial activities;

(5) Progress payments based on costs;

(6) Rent-free use of facilities and/or

equipment owned or leased by Mentor;

and

(7) Temporary assignment of Mentor

personnel to the Protege for purposes of

training.

(b) Costs incurred by a Mentor to

provide developmental assistance, as

described in paragraph (a) of this

section, are allowable only to the extent

provided at 48 CFR 919.7003(b).

919.7012 Review and approval process of

agreement by OSDBU.

(a) OSDBU will review the proposed

Mentor-Protege Agreement under 48

CFR 919.7010 and will complete its

review and assessment no later than 30

days after receipt. OSDBU will provide

a copy of its assessment to the cognizant

DOE technical program manager and

contracting officer for review and

concurrence.

(b) If OSDBU approves the

Agreement, the Mentor may implement

the developmental assistance program.

(c) Upon finding deficiencies that

DOE considers correctable, the OSDBU

will notify the Mentor and request

information to be provided within 30

days that may correct the deficiencies.

The Mentor may then provide

additional information for

reconsideration. The review of any

supplemental material will be

completed within 30 days after receipt

by the OSDBU and the Agreement either

approved or disapproved.

919.7013 Reports.

(a) Prior to performing an evaluation

of a Mentor’s performance under its

Mentor-Protege Agreement for use in

award fee evaluations, the MentorProtege Program Manager must consult

with the cognizant DOE technical

program manager and must provide a

copy of the performance evaluation

comments regarding the technical effort

and Mentor-Protege development to the

contracting officer.

(b) The DOE Mentor-Protege Program

Manager must submit semi-annual

reports to the cognizant contracting

officer regarding the participating

Mentor’s performance in the Program

for use in the award fee determination

process.

(c) The Mentor firm must submit

progress reports to the DOE MentorProtege Program Manager semiannually.

919.7014 Solicitation provision.

The cognizant contracting officer

must insert the provision at 952.219–70,

DOE Mentor-Protege Program, in all

solicitations with an estimated value in

excess of the simplified acquisition

threshold.

PART 952—SOLICITATION

PROVISIONS AND CONTRACT

CLAUSES

3. A new subsection 952.219–70, DOE

Mentor-Protege Program is added as

follows:

952.219–70 DOE Mentor-Protege program.

In accordance with 919.7014 insert

the following provision in applicable

solicitations.

DOE Mentor-Protege Program

(May 2000)

The Department of Energy has established

a Mentor-Protege Program to encourage its

prime contractors to assist firms certified

under section 8(a) of the Small Business Act

by SBA, other small disadvantaged

businesses, women-owned small businesses,

Historically Black Colleges and Universities

and Minority Institutions, other minority

institutions of higher learning and small

business concerns owned and controlled by

service disabled veterans in enhancing their

business abilities. If the contract resulting

from this solicitation is awarded on a costplus-award fee basis, the contractor’s

performance as a Mentor may be evaluated as

part of the award fee plan. Mentor and

Protege firms will develop and submit

‘‘lessons learned’’ evaluations to DOE at the

conclusion of the contract. Any DOE

contractor that is interested in becoming a

Mentor should refer to the applicable

regulations at 48 CFR 919.70 and should

contact the Department of Energy’s Office of

Small and Disadvantaged Business

Utilization.

[FR Doc. 00–9981 Filed 4–20–00; 8:45 am]

BILLING CODE 6450–01–P

DEPARTMENT OF ENERGY

48 CFR Part 970

RIN 1991–AB02

Acquisition Regulation: Financial

Management Clauses for Management

and Operating (M&O) Contracts

AGENCY: Department of Energy.

ACTION: Final rule.

SUMMARY: The Department of Energy

(DOE) amends its Acquisition

Regulation to designate certain

Department of Energy Acquisition

Regulation (DEAR) M&O contract

clauses and Federal Acquisition

Regulation (FAR) clauses as Standard

Financial Management Clauses to be

included in M&O contracts unless the

Chief Financial Officer (CFO) concurs in

a deviation. Additionally, this final rule

will revise selected existing financial

management clauses and add financial

management related clauses.

DATES: This final rule is effective May

22, 2000.

FOR FURTHER INFORMATION CONTACT:

Michael L. Righi, Office of Policy (MA–

51), Department of Energy, 1000

Independence Avenue, SW.,

Washington, D.C. 20585; 202–586–8175

(phone); 202–586–0545 (facsimile); or

michael.l.righi@pr.doe.gov (Internet).

SUPPLEMENTARY INFORMATION

I. Background

II. Discussion of Public Comments

III. Procedural Requirements

A. Review of 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 Executive Order 13132

F. Review Under the National

Environmental Policy Act

G. Unfunded Mandates Reform Act of 1995

H. Review Under Small Business

Regulatory Enforcement Fairness Act of

1996

I. Background

On November 18, 1998, the

Department of Energy (DOE or

Department) published in the Federal

Register (63 FR 64024) a Notice of

Proposed Rulemaking to amend the

DEAR to designate certain Department

of Energy Acquisition Regulation

(DEAR) M&O contract clauses and

Federal Acquisition Regulation (FAR)

clauses as Standard Financial

Management Clauses to be included in

M&O contracts unless the Chief

Financial Officer (CFO) concurs in a

deviation. Additionally, this Notice of

Proposed Rulemaking proposed to

revise selected existing financial

21372 Federal Register / Vol. 65, No. 78 / Friday, April 21, 2000 / Rules and Regulations

management clauses and to add

financial management related clauses.

The Notice of Proposed Rulemaking

solicited comments on all aspects of the

proposed rulemaking. Today’s final rule

amends the DEAR as proposed in the

Notice of Proposed Rulemaking. The

contracting officer must apply the

changes this rule makes to solicitations

issued on or after the effective date of

this rule and may apply the changes to

existing solicitations. Because this rule’s

changes are already incorporated in the

majority of the Department’s

management and operating contracts,

the contracting officer should

incorporate the changes into existing

contracts as soon as practicable, but in

no case later than one year from the

effective date of this rule.

Since publication of the Notice of

Proposed Rulemaking, the President

signed the National Nuclear Security

Administration Act (NNSA) Act into

law (Pub.L. 106–65). The NNSA Act

reorganized DOE by drawing together

various national security-related

components of DOE and placing them

under an Administrator who is the new

DOE Under Secretary for Nuclear

Security. Existing procurement

regulations before March 1, 2000,

including 48 CFR part 970, continue in

effect by operation of law with regard to

NNSA (50 U.S.C. 2401, note, 2484).

Consistent with the NNSA Act and

various delegations of authority under

the NNSA Act, including the authority

to issue procurement regulations subject

to approval by the Secretary, today’s

final regulatory amendments to part 970

revise the authority citation to include

the citation for the NNSA Act.

II. Discussion of Public Comments

The Department received 11

comments from three commenters. None

of the issues raised in the comments

warrants extended treatment in this

rulemaking. Instead, the Department

prepared a comment response document

that addressed each comment and sent

a copy to each of the commenters. A

copy of the comment response

document is available upon request

from Michael L. Righi, Office of Policy

(MA–51), Department of Energy, 1000

Independence Avenue, SW,

Washington, D.C. 20585.

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, today’s action was

not subject to review under the

Executive Order by the Office of

Information and Regulatory Affairs of

the Office of Management and Budget.

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 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 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, the proposed

regulations meet the relevant standards

of Executive Order 12988.

C. Review Under the Regulatory

Flexibility Act

This rule was reviewed under the

Regulatory Flexibility Act of 1980, Pub.

L. 96–354, which requires preparation

of a regulatory flexibility analysis for

any rule which is likely to have a

significant economic impact on a

substantial number of small entities.

This rule would only apply to M&O

contractors, which are all large entities.

DOE certifies that this rule will not have

a significant economic impact on a

substantial number of small entities

and, therefore, no regulatory flexibility

analysis has been prepared.

D. Review Under the Paperwork

Reduction Act

No new information collection

requirements subject to the Paperwork

Reduction Act, 44 U.S.C. 3501 et seq.,

are imposed by today’s regulatory

action.

E. Review Under Executive Order 13132

Executive Order 13132 (64 FR 43255,

August 4, 1999) imposes certain

requirements on agencies formulating

and implementing policies or

regulations that preempt State law or

that have federalism implications.

Agencies are required to examine the

constitutional and statutory authority

supporting any action that would limit

the policymaking discretion of the

States and carefully assess the necessity

for such actions. DOE has examined

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.

F. Review Under the National

Environmental Policy Act

Pursuant to the Council on

Environmental Quality Regulations (40

CFR Parts 1500–1508), the Department

of Energy has established guidelines for

its compliance with the provisions of

the National Environmental Policy Act

(NEPA) of 1969 (42 U.S.C. 4321 et seq.).

Pursuant to appendix A of subpart D of

10 CFR part 1021, National

Environmental Policy Act Implementing

Procedures (57 FR 15122, 15152, April

24, 1992) (Categorical Exclusion A6),

the Department of Energy has

determined that this rule is categorically

excluded from the need to prepare an

environmental impact statement or

environmental assessment.

G. Review Under the Unfunded

Mandates Reform Act of 1995

Title II of the Unfunded Mandates

Reform Act of 1995 requires each

Agency to assess the effects of Federal

regulatory action on State, local, and

tribal governments and the private

sector. The Department has determined

that today’s regulatory action does not

impose a Federal mandate on State,

local, or tribal governments or on the

private sector.

H. Review Under Small Business

Regulatory Enforcement Fairness Act of

1996

As required by 5 U.S.C. 801, the

Department of Energy will report to

Federal Register / Vol. 65, No. 78 / Friday, April 21, 2000 / Rules and Regulations 21373

Congress promulgation of the 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).

List of Subjects in 48 CFR Part 970

Government procurement.

Issued in Washington, D.C. on April 7,

2000.

Richard H. Hopf,

Director, Office of Procurement and

Assistance Management.

For the reasons set out in the

preamble, Chapter 9 of Title 48 of the

Code of Federal Regulations is amended

as set forth below.

PART 970—DOE MANAGEMENT AND

OPERATING CONTRACTS

1. The authority citation for Part 970

is revised to read as follows:

Authority: Atomic Energy Act of 1954 (42

U.S.C. 2201); Department of Energy

Organization Act (42 U.S.C. 7101, et seq.);

National Nuclear Security Administration

Act (50 U.S.C. 2401, et seq.).

2. Section 970.3201 is revised to read

as follows:

970.3201 General.

It is the policy of the DOE to finance

management and operating contracts

through advance payments and the use

of special financial institution accounts.

3. Section 970.3202 is amended by

revising paragraphs (b) and (c) to read

as follows:

970.3202 Advance payments.

* * * * *

(b) Advance payments shall be made

under a payments cleared financing

arrangement for deposit in a special

financial institution account or, at the

option of the Government, by direct

payment or other payment mechanism

to the contractor.

(c) Prior to providing any advance

payments, the contracting officer shall

enter into an agreement with the

contractor and a financial institution

regarding a special financial institution

account where the advanced funds will

be deposited by the Government. Such

agreement shall:

(1) Provide that DOE shall retain title

to the unexpended balance of funds in

the special financial institution account

including collections, if any, deposited

by the contractor;

(2) Provide that the title in paragraph

(c)(1) of this section shall be superior to

any claim or lien of the financial

institution of deposit or others; and

(3) Incorporate all applicable

requirements, as determined by the

Office of Chief Financial Officer.

* * * * *

4. Section 970.3270 is revised to read

as follows:

970.3270 Standard financial management

clauses.

(a) The following DEAR and FAR

clauses are standard financial

management clauses that shall be

included in all management and

operating contracts: DEAR 970.5204–9,

Accounts, records, and inspection;

DEAR 970.5204–15, Obligation of funds;

DEAR 970.5204–16, Payments and

advances; DEAR 970.5204–20,

Management controls; DEAR 970.5204–

92, Liability with respect to Cost

Accounting Standards; DEAR 970.5204–

93, Work for others funding

authorization; FAR 52.230–2, Cost

Accounting Standards; and FAR

52.230–6, Administration of Cost

Accounting Standards.

(b) The following clauses are standard

financial management clauses that shall

be included in management and

operating contracts with integrated

accounting systems: DEAR 970.5204–90,

Financial management system; and

DEAR 970.5204–91, Integrated

accounting.

(c) Any deviations from the standard

financial management clauses specified

in paragraphs (a) and (b) of this section

require the approval of the Head of the

Contracting Activity and the written

concurrence of the Department’s Chief

Financial Officer.

5. Section 970.3271 is removed and

reserved.

970.3271 [Removed and Reserved]

6. Section 970.5204–9 is amended by

revising the introductory paragraph;

clause title; and paragraphs (a)

(including the note), (b), (d), and (f) to

read as follows:

970.5204–9 Accounts, records, and

inspection.

As prescribed in 970.0407 and

970.3270, insert the following clause.

Accounts, Records, and Inspection (May

2000)

(a) Accounts. The contractor shall maintain

a separate and distinct set of accounts,

records, documents, and other evidence

showing and supporting: all allowable costs

incurred; collections accruing to the

contractor in connection with the work under

this contract, other applicable credits, and fee

accruals under this contract; and the receipt,

use, and disposition of all Government

property coming into the possession of the

contractor under this contract. The system of

accounts employed by the contractor shall be

satisfactory to DOE and in accordance with

generally accepted accounting principles

consistently applied.

Note: If the contract includes the clause for

‘‘Price Reduction for Defective Cost or Pricing

Data’’ set forth at FAR 52.215–22, paragraph

(a) above should be modified by adding the

words ‘‘or anticipated to be incurred’’ after

the words ‘‘allowable costs incurred.’’

(b) Inspection and audit of accounts and

records. All books of account and records

relating to this contract shall be subject to

inspection and audit by DOE or its designees

in accordance with the provisions of

Clausell, Access to and ownership of

records, at all reasonable times, before and

during the period of retention provided for in

paragraph (d) of this clause, and the

contractor shall afford DOE proper facilities

for such inspection and audit.

* * * * *

(d) Disposition of records. Except as agreed

upon by the Government and the contractor,

all financial and cost reports, books of

account and supporting documents, system

files, data bases, and other data evidencing

costs allowable, collections accruing to the

contractor in connection with the work under

this contract, other applicable credits, and fee

accruals under this contract, shall be the

property of the Government, and shall be

delivered to the Government or otherwise

disposed of by the contractor either as the

contracting officer may from time to time

direct during the progress of the work or, in

any event, as the contracting officer shall

direct upon completion or termination of this

contract and final audit of accounts

hereunder. Except as otherwise provided in

this contract, including provisions of

Clausell, Access to and ownership of

records, all other records in the possession of

the contractor relating to this contract shall

be preserved by the contractor for a period

of three years after final payment under this

contract or otherwise disposed of in such

manner as may be agreed upon by the

Government and the contractor.

* * * * *

(f) Inspections. The DOE shall have the

right to inspect the work and activities of the

contractor under this contract at such time

and in such manner as it shall deem

appropriate.

* * * * *

7. Section 970.5204–13 is amended by

revising the clause date and clause

paragraph (d)(15) to read as follows

(note following paragraph (d)(15)

remains unchanged).

970.5204–13 Allowable costs and fixed-fee

(management and operating contracts).

* * * * *

Allowable costs and fixed-fee (management

and operating Contracts) (May 2000)

* * * * *

(d) * * *

(15) Establishment and maintenance of

financial institution accounts in connection

with the work hereunder, including, but not

limited to, service charges, the cost of

disbursing cash, necessary guards, cashiers,

and paymasters. If payments to employees

21374 Federal Register / Vol. 65, No. 78 / Friday, April 21, 2000 / Rules and Regulations

are made by check, facilities and

arrangements for cashing checks may be

provided without expense to the employees,

subject to the approval of the contracting

officer.

* * * * *

8. Section 970.5204–15 is revised to

read as follows:

970.5204–15 Obligation of funds.

As prescribed in 970.1508(c) and

970.3270, insert the following clause.

Obligation of Funds (May 2000)

(a) Obligation of funds. The amount

presently obligated by the Government with

respect to this contract is ll dollars ($ll).

Such amount may be increased unilaterally

by DOE by written notice to the contractor

and may be increased or decreased by written

agreement of the parties (whether or not by

formal modification of this contract).

Estimated collections from others for work

and services to be performed under this

contract are not included in the amount

presently obligated. Such collections, to the

extent actually received by the contractor,

shall be processed and accounted for in

accordance with applicable requirements

imposed by the contracting officer pursuant

to the Laws, regulations, and DOE directives

clause of this contract. Nothing in this

paragraph is to be construed as authorizing

the contractor to exceed limitations stated in

financial plans established by DOE and

furnished to the contractor from time to time

under this contract.

(b) Limitation on payment by the

Government. Except as otherwise provided in

this contract and except for costs which may

be incurred by the contractor pursuant to the

clause entitled ‘‘Termination,’’ or costs of

claims allowable under the contract

occurring after completion or termination

and not released by the contractor at the time

of financial settlement of the contract in

accordance with the clause entitled

‘‘Payments and Advances,’’ payment by the

Government under this contract on account

of allowable costs shall not, in the aggregate,

exceed the amount obligated with respect to

this contract, less the contractor’s fee. Unless

expressly negated in this contract, payment

on account of those costs excepted in the

preceding sentence which are in excess of the

amount obligated with respect to this

contract shall be subject to the availability of:

(1) collections accruing to the contractor in

connection with the work under this contract

and processed and accounted for in

accordance with applicable requirements

imposed by the contracting officer pursuant

to the Laws, regulations, and DOE directives

clause of this contract, and

(2) other funds which DOE may legally use

for such purpose, provided DOE will use its

best efforts to obtain the appropriation of

funds for this purpose if not otherwise

available.

(c) Notices—Contractor excused from

further performance. The contractor shall

notify DOE in writing whenever the

unexpended balance of available funds

(including collections available under

paragraph (a) of this clause), plus the

contractor’s best estimate of collections to be

received and available during the ll day

period hereinafter specified, is in the

contractor’s best judgment sufficient to

continue contract operations at the

programmed rate for onlyll days and to

cover the contractor’s unpaid fee, and

outstanding encumbrances and liabilities on

account of costs allowable under the contract

at the end of such period. Whenever the

unexpended balance of available funds

(including collections available under

paragraph (a) of this clause), less the amount

of the contractor’s fee then earned but not

paid, is in the contractor’s best judgment

sufficient only to liquidate outstanding

encumbrances and liabilities on account of

costs allowable under this contract, the

contractor shall immediately notify DOE and

shall make no further encumbrances or

expenditures (except to liquidate existing

encumbrances and liabilities), and, unless

the parties otherwise agree, the contractor

shall be excused from further performance

(except such performance as may become

necessary in connection with termination by

the Government) and the performance of all

work hereunder will be deemed to have been

terminated for the convenience of the

Government in accordance with the

provisions of the clause entitled

‘‘Termination.’’

(d) Financial plans; cost and encumbrance

limitations. In addition to the limitations

provided for elsewhere in this contract, DOE

may, through financial plans, such as

Approved Funding Programs, or other

directives issued to the contractor, establish

controls on the costs to be incurred and

encumbrances to be made in the performance

of the contract work. Such plans and

directives may be amended or supplemented

from time to time by DOE. The contractor

agrees

(1) to comply with the specific limitations

(ceilings) on costs and encumbrances set

forth in such plans and directives,

(2) to comply with other requirements of

such plans and directives, and

(3) to notify DOE promptly, in writing,

whenever it has reason to believe that any

limitation on costs and encumbrances will be

exceeded or substantially underrun.

Note: This paragraph (d) may be omitted

in contracts which expressly or otherwise

provide a contractual basis for equivalent

controls in a separate clause.

(e) Government’s right to terminate not

affected. The giving of any notice under this

clause shall not be construed to waive or

impair any right of the Government to

terminate the contract under the provisions

of the clause entitled ‘‘Termination.’’

9. Section 970.5204–16 is amended

by: Revising the introductory paragraph;

clause title; clause paragraphs (a) (notes

remain unchanged); last sentence of

alternate paragraph (a) that follows note

2; paragraphs (c), (d) (including note 3),

(e) (including note 4); adding alternate

paragraph (e) following note 4; revising

paragraphs (f) and (i) to read as follows:

970.5204–16 Payments and advances.

As prescribed in 970.3270, insert the

following clause.

Payments and Advances (May 2000)

(a) Installments of fixed-fee. The fixed-fee

payable under this contract shall become due

and payable in periodic installments in

accordance with a schedule determined by

the contracting officer. Fixed-fee payments

shall be made by direct payment or

withdrawn from funds advanced or available

under this contract, as determined by the

contracting officer. The contracting officer

may offset against any such fee payment the

amounts owed to the Government by the

contractor, including any amounts owed for

disallowed costs under this contract. No

fixed-fee payment may be withdrawn against

the payments cleared financing arrangement

without prior written approval of the

contracting officer.

* * * * *

(a) * * * No base fee or award fee pool

amount earned payment may be withdrawn

against the payments cleared financing

arrangement without prior written approval

of the contracting officer.

* * * * *

(c) Special financial institution account—

use. All advances of Government funds shall

be withdrawn pursuant to a payments

cleared financing arrangement prescribed by

DOE in favor of the financial institution or,

at the option of the Government, shall be

made by direct payment or other payment

mechanism to the contractor, and shall be

deposited only in the special financial

institution account referred to in the Special

Financial Institution Account Agreement,

which is incorporated into this contract as

Appendixll. No part of the funds in the

special financial institution account shall be

commingled with any funds of the contractor

or used for a purpose other than that of

making payments for costs allowable and, if

applicable, fees earned under this contract or

payments for other items specifically

approved in writing by the contracting

officer. If the contracting officer determines

that the balance of such special financial

institution account exceeds the contractor’s

current needs, the contractor shall promptly

make such disposition of the excess as the

contracting officer may direct.

(d) Title to funds advanced. Title to the

unexpended balance of any funds advanced

and of any special financial institution

account established pursuant to this clause

shall remain in the Government and be

superior to any claim or lien of the financial

institution of deposit or others. It is

understood that an advance to the contractor

hereunder is not a loan to the contractor, and

will not require the payment of interest by

the contractor, and that the contractor

acquires no right, title or interest in or to

such advance other than the right to make

expenditures therefrom, as provided in this

clause.

Note 3: The following paragraph (e) shall

be included in management and operating

contracts with integrated accounting systems.

(e) Review and approval of costs incurred.

The contractor shall prepare and submit

annually as of September 30, a ‘‘Statement of

Costs Incurred and Claimed’’ (Cost

Statement) for the total of net expenditures

accrued (i.e., net costs incurred) for the

Federal Register / Vol. 65, No. 78 / Friday, April 21, 2000 / Rules and Regulations 21375

period covered by the Cost Statement. The

contractor shall certify the Cost Statement

subject to the penalty provisions for

unallowable costs as stated in sections 306(b)

and (i) of the Federal Property and

Administrative Services Act of 1949 (41

U.S.C. 256), as amended. DOE, after audit

and appropriate adjustment, will approve

such Cost Statement. This approval by DOE

will constitute an acknowledgment by DOE

that the net costs incurred are allowable

under the contract and that they have been

recorded in the accounts maintained by the

contractor in accordance with DOE

accounting policies, but will not relieve the

contractor of responsibility for DOE’s assets

in its care, for appropriate subsequent

adjustments, or for errors later becoming

known to DOE.

Note 4: The following paragraph (e) shall

be included in management and operating

contracts without integrated accounting

systems.

(e) Certification and penalties. The

contractor shall prepare and submit a

‘‘Statement of Costs Incurred and Claimed’’

(Cost Statement) for the total of net

expenditures incurred for the period covered

by the Cost Statement. It is anticipated that

this will be an annual submission unless

otherwise agreed to by the contracting officer.

The contractor shall certify the Cost

Statement subject to the penalty provisions

for unallowable costs as stated in sections

306(b) and (i) of the Federal Property and

Administrative Services Act of 1949 (41

U.S.C. 256), as amended.

(f) Financial settlement. The Government

shall promptly pay to the contractor the

unpaid balance of allowable costs and fee

upon termination of the work, expiration of

the term of the contract, or completion of the

work and its acceptance by the Government

after:

(1) Compliance by the contractor with

DOE’s patent clearance requirements, and

(2) The furnishing by the contractor of:

(i) An assignment of the contractor’s rights

to any refunds, rebates, allowances, accounts

receivable, collections accruing to the

contractor in connection with the work under

this contract, or other credits applicable to

allowable costs under the contract;

(ii) A closing financial statement;

(iii) The accounting for Government-owned

property required by the clause entitled

‘‘Property’’; and

(iv) A release discharging the Government,

its officers, agents, and employees from all

liabilities, obligations, and claims arising out

of or under this contract subject only to the

following exceptions:

(A) Specified claims in stated amounts or

in estimated amounts where the amounts are

not susceptible to exact statement by the

contractor;

(B) Claims, together with reasonable

expenses incidental thereto, based upon

liabilities of the contractor to third parties

arising out of the performance of this

contract; provided that such claims are not

known to the contractor on the date of the

execution of the release; and provided further

that the contractor gives notice of such

claims in writing to the contracting officer

promptly, but not more than one (1) year

after the contractor’s right of action first

accrues. In addition, the contractor shall

provide prompt notice to the contracting

officer of all potential claims under this

clause, whether in litigation or not (see also

Contract Clause ll, DEAR 970.5204–31,

‘‘Insurance—Litigation and Claims’’);

(C) Claims for reimbursement of costs

(other than expenses of the contractor by

reason of any indemnification of the

Government against patent liability),

including reasonable expenses incidental

thereto, incurred by the contractor under the

provisions of this contract relating to patents;

and

(D) Claims recognizable under the clause

entitled, Nuclear Hazards Indemnity

Agreement.

(3) In arriving at the amount due the

contractor under this clause, there shall be

deducted,

(i) any claim which the Government may

have against the contractor in connection

with this contract, and

(ii) deductions due under the terms of this

contract, and not otherwise recovered by or

credited to the Government. The

unliquidated balance of the special financial

institution account may be applied to the

amount due and any balance shall be

returned to the Government forthwith.

* * * * *

(i) Collections. All collections accruing to

the contractor in connection with the work

under this contract, except for the

contractor’s fee and royalties or other income

accruing to the contractor from technology

transfer activities in accordance with this

contract, shall be Government property and

shall be processed and accounted for in

accordance with applicable requirements

imposed by the contracting officer pursuant

to the Laws, regulations, and DOE directives

clause of this contract and, to the extent

consistent with those requirements, shall be

deposited in the special financial institution

account or otherwise made available for

payment of allowable costs under this

contract, unless otherwise directed by the

contracting officer.

* * * * *

10. Section 970.5204–20 is amended

by revising the introductory paragraph,

clause title, and paragraph (a) to read as

follows:

970.5204–20 Management controls.

In accordance with 970.0901 and as

prescribed in 970.3270, the following

clause shall be used in management and

operating contracts:

Management Controls (May 2000)

(a) The contractor shall be responsible for

maintaining, as an integral part of its

organization, effective systems of

management controls for both administrative

and programmatic functions. Management

controls comprise the plan of organization,

methods, and procedures adopted by

management to reasonably ensure that: the

mission and functions assigned to the

contractor are properly executed; efficient

and effective operations are promoted;

resources are safeguarded against waste, loss,

mismanagement, unauthorized use, or

misappropriation; all encumbrances and

costs that are incurred under the contract and

fees that are earned are in compliance with

applicable clauses and other current terms,

conditions, and intended purposes; all

collections accruing to the contractor in

connection with the work under this

contract, expenditures, and all other

transactions and assets are properly recorded,

managed, and reported; and financial,

statistical, and other reports necessary to

maintain accountability and managerial

control are accurate, reliable, and timely. The

systems of controls employed by the

contractor shall be documented and

satisfactory to DOE. Such systems shall be an

integral part of the contractor’s management

functions, including defining specific roles

and responsibilities for each level of

management, and holding employees

accountable for the adequacy of the

management systems and controls in their

areas of assigned responsibility. The

contractor shall, as part of the internal audit

program required elsewhere in this contract,

periodically review the management systems

and controls employed in programs and

administrative areas to ensure that they are

adequate to provide reasonable assurance

that the objectives of the systems are being

accomplished and that these systems and

controls are working effectively.

* * * * *

11. Section 970.5204–90 is added to

read as follows:

970.5204–90 Financial management

system.

As prescribed in 970.3270, insert the

following clause.

Financial Management System (May 2000)

The contractor shall maintain and

administer a financial management system

that is suitable to provide proper accounting

in accordance with DOE requirements for

assets, liabilities, collections accruing to the

contractor in connection with the work under

this contract, expenditures, costs, and

encumbrances; permits the preparation of

accounts and accurate, reliable financial and

statistical reports; and assures that

accountability for the assets can be

maintained. The contractor shall submit to

DOE for written approval an annual plan for

new financial management systems and/or

subsystems and major enhancements and/or

upgrades to the currently existing financial

systems and/or subsystems. The contractor

shall notify DOE thirty (30) days in advance

of any planned implementation of any

substantial deviation from this plan and, as

requested by the contracting officer, shall

submit any such deviation to DOE for written

approval before implementation.

12. Section 970.5204–91 is added to

read as follows:

970.5204–91 Integrated accounting.

As prescribed in 970.3270, insert the

following clause.

21376 Federal Register / Vol. 65, No. 78 / Friday, April 21, 2000 / Rules and Regulations

Integrated Accounting (May 2000)

Integrated accounting procedures are

required for use under this contract. The

contractor’s financial management system

shall include an integrated accounting

system that is linked to DOE’s accounts

through the use of reciprocal accounts and

that has electronic capability to transmit

monthly and year-end self-balancing trial

balances to the Department’s Primary

Accounting System for reporting financial

activity under this contract in accordance

with requirements imposed by the

contracting officer pursuant to the Laws,

regulations, and DOE directives clause of this

contract.

13. Section 970.5204–92 is added to

read as follows:

970.5204–92 Liability With respect to cost

accounting standards.

As prescribed in 970.3270, insert the

following clause.

Liability with Respect to Cost Accounting

Standards (May 2000)

(a) The contractor is not liable to the

Government for increased costs or interest

resulting from its failure to comply with the

clauses of this contract entitled, ‘‘Cost

Accounting Standards,’’ and ‘‘Administration

of Cost Accounting Standards,’’ if its failure

to comply with the clauses is caused by the

contractor’s compliance with published DOE

financial management policies and

procedures or other requirements established

by the Department’s Chief Financial Officer

or Procurement Executive.

(b) The contractor is not liable to the

Government for increased costs or interest

resulting from its subcontractors’ failure to

comply with the clauses at FAR 52.230–2,

‘‘Cost Accounting Standards,’’ and FAR

52.230–6, ‘‘Administration of Cost

Accounting Standards,’’ if the contractor

includes in each covered subcontract a clause

making the subcontractor liable to the

Government for increased costs or interest

resulting from the subcontractor’s failure to

comply with the clauses; and the contractor

seeks the subcontract price adjustment and

cooperates with the Government in the

Government’s attempts to recover from the

subcontractor.

14. Section 970.5204–93 is added to

read as follows:

970.5204–93 Work for others funding

authorization.

As prescribed in 970.3270, insert the

following clause.

Work for Others Funding Authorization (May

2000)

Any uncollectible receivables resulting

from the contractor utilizing contractor

corporate funding for reimbursable work

shall be the responsibility of the contractor,

and the United States Government shall have

no liability to the contractor for the

contractor’s uncollected receivables. The

contractor is permitted to provide advance

payment utilizing contractor corporate funds

for reimbursable work to be performed by the

contractor for a non-Federal entity in

instances where advance payment from that

entity is required under the Laws,

regulations, and DOE directives clause of this

contract and such advance cannot be

obtained. The contractor is also permitted to

provide advance payment utilizing contractor

corporate funds to continue reimbursable

work to be performed by the contractor for

a Federal entity when the term or the funds

on a Federal interagency agreement required

under the Laws, regulations, and DOE

directives clause of this contract have

elapsed. The contractor’s utilization of

contractor corporate funds does not relieve

the contractor of its responsibility to comply

with all requirements for Work for Others

applicable to this contract.

[FR Doc. 00–9633 Filed 4–20–00; 8:45 am]

BILLING CODE 6450–01–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AF80

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Parts 224, 226, and 424

[Docket No. 000330090–0090–01]

RIN 0648–XA51

Endangered and Threatened Wildlife

and Plants; Notice of Change of

Jurisdiction for Coastal Cutthroat

Trout

AGENCIES: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce; Fish and Wildlife Service

(FWS), Interior.

ACTION: Transfer of agency jurisdiction.

SUMMARY: The Fish and Wildlife Service

(FWS) and National Marine Fisheries

Service (NMFS) have, in the past, jointly

managed coastal cutthroat trout

(Oncorhynchus clarki clarki) under the

Endangered Species Act of 1973, as

amended (16 U.S.C. 1531 et seq.) (ESA).

This document is to alert interested

parties that, effective November 22,

1999, the FWS assumed all ESA

regulatory jurisdiction over coastal

cutthroat. The only exception is that

NMFS will retain ESA jurisdiction over

the endangered Umpqua River cutthroat

trout Evolutionary Significant Unit

(ESU) until the agencies complete a

final determination on the proposed delisting of this ESU. The change in

jurisdiction results from a joint agency

determination that coastal cutthroat

trout spend the majority of their life

cycle in fresh water habitat.

DATES: The finding announced in this

document was made on November 22,

1999.

ADDRESSES: Questions concerning this

document should be submitted to the

Supervisor, Fish and Wildlife Service,

Oregon State Office, 2600 SE 98th

Avenue, Suite 100, Portland, Oregon

97266; or to, Garth Griffin, National

Marine Fisheries Service, Northwest

Region, Protected Resources Division,

525 NE Oregon Street, Suite 500,

Portland, OR 97232–2737.

FOR FURTHER INFORMATION CONTACT:

Rollie White, Fish and Wildlife Service,

telephone 503–231–6179, fax 503–231–

6195; or, Garth Griffin, National Marine

Fisheries Service, telephone 503–231–

2005, fax 503–230–5435.

SUPPLEMENTARY INFORMATION: In the

past, ESA jurisdiction over the coastal

cutthroat trout has been shared by the

FWS and NMFS, although NMFS has a

history of conducting status reviews on

sea-run forms of cutthroat trout (61 FR

41514, August 9, 1996; 64 FR 16397,

April 5, 1999). During the status review

for Umpqua River sea-run cutthroat

trout, both agencies agreed that NMFS

would handle ESA responsibilities for

this species in the Umpqua River Basin

(FWS, 1994). Since that time, the matter

of agency jurisdiction has arisen for the

various cutthroat life forms in other

west coast basins. At issue is the

question of appropriate jurisdiction for

a species with both diadromous (i.e.,

migrating between fresh-and saltwater)

and resident (i.e., freshwater-dwelling)

life forms. Salmonid species exhibiting

the former life forms have generally

been managed by NMFS while the latter

forms have typically been under the

jurisdiction of the FWS. The change in

jurisdiction announced in this Notice is

based on a determination that coastal

cutthroat trout spend the majority of

their life cycle in fresh water habitat.

On April 5, 1999, the agencies

published a joint proposal to list the

southwestern Washington/Columbia

River cutthroat trout ESU as a

threatened species and to de-list the

Umpqua River ESU under the ESA (64

FR 16397). In that proposal, we

announced that a decision would be

made about which agency would have

sole jurisdiction over the species. On

November 22, 1999, the Directors of

NMFS and the FWS signed a joint letter

determining that the FWS shall assume

all ESA regulatory jurisdiction over

coastal cutthroat trout. For the FWS,

applicable ESA regulations would

include those promulgated in 50 CFR