Federal Register / Vol. 61, No. 93 / Monday, May 13, 1996 / Rules and Regulations 21975

List of Subjects in 48 CFR Part 231

Government procurement.

Michele P. Peterson,

Executive Editor, Defense Acquisition

Regulations Council.

Therefore, 48 CFR Part 231 is

amended as follows:

PART 231—CONTRACT COST

PRINCIPLES AND PROCEDURES

1. The authority citation for 48 CFR

Part 231 continues to read as follows:

Authority: 41 U.S.C. 421 and 48 CFR

Chapter 1.

2. Section 231.205–71 is added to

read as follows:

231.205–71 Defense capability

preservation agreements.

(a) Scope and authority. Where it

would facilitate the achievement of the

policy objectives relating to defense

reinvestment, diversification, and

conversion set forth in 10 U.S.C.

2501(b), DoD may enter into a ‘‘defense

capability preservation agreement’’ with

a contractor. As authorized by Section

808 of the National Defense

Authorization Act for Fiscal Year 1996

(Public Law 104–106), such an

agreement would permit the contractor

to claim certain indirect costs

attributable to its private sector work as

allowable costs on its defense contracts.

(b) Procedure. A contractor may

submit a request for such an agreement,

together with appropriate justification,

through the Assistant Secretary of

Defense for Economic Security, to the

Under Secretary of Defense for

Acquisition and Technology, who has

exclusive approval or disapproval

authority. The contractor should also

provide an informational copy of any

such request to the cognizant

administrative contracting officer.

[FR Doc. 96–11887 Filed 5–10–96; 8:45 am]

BILLING CODE 5000–04–M

DEPARTMENT OF ENERGY

48 CFR Parts 904, 906, 911, 912, 913,

915, 919, 925, 926, 933, 950, 952 and

970

RIN 1991–AB27

Acquisition Regulation; Technical

Amendments

AGENCY: Department of Energy.

ACTION: Final rule.

SUMMARY: The Department of Energy

(DOE) today issues a final rule to make

technical, non-substantive amendments

to the Department of Energy Acquisition

Regulation (DEAR). The Federal

Acquisition Regulation (FAR) was

amended several times to implement

various parts of the Federal Acquisition

Streamlining Act of 1994, Public Law

103–355. This rule amends sections of

the DEAR to conform to the revised

provisions of the FAR.

EFFECTIVE DATE: This final rule will be

effective June 12, 1996.

FOR FURTHER INFORMATION CONTACT:

Richard B. Langston, Office of Policy

(HR–51), Office of the Deputy Assistant

Secretary for Procurement and

Assistance Management, Department of

Energy, 1000 Independence Avenue,

SW., Washington, DC 20585 (202) 586–

8247.

SUPPLEMENTARY INFORMATION:

I. Explanation of Revisions

II. Procedural Requirements

A. Review Under Executive Order 12866

B. Review Under Executive Order 12778

C. Review Under the Regulatory Flexibility

Act

D. Review Under the Paperwork Reduction

Act

E. Review Under Executive Order 12612

F. Review Under the National

Environmental Policy Act

G. Public Hearing Determination

I. Explanation of Revisions

The revisions in this rule are either

technical and nonsubstantive in nature,

or nondiscretionary. They involve the

renumbering or redesignating of DEAR

sections or subsections, or the

substitution of new terminology for

designations previously used to describe

‘‘small purchases’’ and ‘‘small and small

disadvantaged businesses.’’ These

revisions are intended to ensure that the

DEAR conforms to the FAR to

implement various parts of the Federal

Acquisition Streamlining Act of 1994,

Public Law 103–355. Three

amendments to the FAR created a need

for this technical amendment of the

DEAR. New FAR regulations governing

micropurchases, i.e., acquisitions below

$2,500, and simplified acquisitions, i.e.,

acquisitions exceeding the

micropurchase level but not greater than

$100,000, were published respectively

on December 15, 1994 at 59 FR 64786

and July 3, 1995 at 60 FR 34741. These

two amendments require changes at

DEAR Parts 901, 904, 906, 913, 915, 925,

952 and 970. The third amendment

affected provisions dealing with

commercial items, small business, and

protests. It was published on September

18, 1995, at 60 FR 48206. It requires

changes at DEAR Parts 911, 912, 919,

926, and 933.

II. Procedural Requirements

A. Review Under Executive Order 12866

This regulatory action has been

determined not to be a ‘‘significant

regulatory action’’ under Executive

Order 12866, ‘‘Regulatory Planning and

Review’’ (58 FR 51735, October 4, 1993).

Accordingly, this action was not subject

to review, under that Executive Order,

by the Office of Information and

Regulatory Affairs of the Office of

Management and Budget (OMB).

B. Review Under Executive Order 12778

Section 2 of Executive Order 12778

instructs each agency to adhere to

certain requirements in promulgating

new regulations and reviewing existing

regulations. These requirements, set

forth in sections 2 (a) and (b), include

eliminating drafting errors and needless

ambiguity, drafting the regulations to

minimize litigation, providing clear and

certain legal standards for affected legal

conduct, and promoting simplification

and burden reduction. Agencies are also

instructed to make every reasonable

effort to ensure that the regulation

specifies clearly any preemptive effect,

effect on existing Federal law or

regulation, and retroactive effect;

describes any administrative

proceedings to be available prior to

judicial review and any provisions for

the exhaustion of such administrative

proceedings; and defines key terms.

DOE certifies that this rule meets the

requirements of sections 2 (a) and (b) of

Executive Order 12778.

C. Review Under the Regulatory

Flexibility Act

This rule was reviewed under the

Regulatory Flexibility Act of 1980,

Public Law 96–354, which requires

preparation of a regulatory flexibility

analysis for any rule that is likely to

have a significant economic impact on

a substantial number of small entities.

This rule will have no impact on

interest rates, tax policies or liabilities,

the cost of goods or services, or other

direct economic factors. It will also not

have any indirect economic

consequences such as changed

construction rates. 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 or

recordkeeping requirements are

imposed by this rule. Accordingly, no

OMB clearance is required under the
21976 Federal Register / Vol. 61, No. 93 / Monday, May 13, 1996 / Rules and Regulations

Paperwork Reduction Act of 1980 (44

U.S.C. 3501 et seq.).

E. Review Under Executive Order 12612

Executive Order 12612, entitled

‘‘Federalism,’’ 52 FR 41685 (October 30,

1987), requires that regulations, rules,

legislation, and any other policy actions

be reviewed for any substantial direct

effects on States, on the relationship

between the Federal Government and

the States, or in the distribution of

power and responsibilities among

various levels of government. If there

are sufficient substantial direct effects,

then the Executive Order requires

preparation of a federalism assessment

to be used in all decisions involved in

promulgating and implementing a

policy action. DOE has determined that

this rule will not have a substantial

direct effect on the institutional

interests or traditional functions of

States.

F. Review Under the National

Environmental Policy Act

Pursuant to the Council on

Environmental Quality Regulations (40

CFR 1500–1508), the Department has

established guidelines for its

compliance with the provisions of the

National Environmental Policy Act

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

Pursuant to Appendix A of Subpart D of

10 CFR 1021, National Environmental

Policy Act Implementing Procedures

(Categorical Exclusion A6), DOE has

determined that this rule is categorically

excluded from the need to prepare an

environmental impact statement or

environmental assessment.

G. Prior Notice and Public Hearing

Determination

The final regulations published in this

notice are interpretive of FAR

provisions implementing the Federal

Acquisition Streamlining Act of 1994,

Public Law 103–355. They are nondiscretionary in nature. DOE therefore is

not providing prior notice and

opportunity for public comment.

DOE also has concluded that this rule

does not involve any significant issues

of law or fact. Therefore, consistent with

5 U.S.C. 553, DOE has not scheduled a

public hearing.

List of Subjects in 48 CFR Parts 904,

906, 911, 912, 913, 915, 919, 925, 926,

933, 950, 952, and 970

Government procurement.

Issued in Washington, D.C., on April 25,

1996.

Richard H. Hopf,

Deputy Assistant Secretary for 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.

1. The authority citation for Parts 904,

906, 911, 912, 913, 915, 919, 925, 926,

933, 950, and 952 continues to read as

follows:

Authority: 42 U.S.C. 7254; 40 U.S.C.

486(c).

1a. The authority citation for Part 970

continues to read:

Authority: Sec. 161 of the Atomic Energy

Act of 1954 (42 U.S.C. 2201), sec. 644 of the

Department of Energy Organization Act of

1977, Public Law 95–91 (42 U.S.C. 7254).

PART 904—ADMINISTRATIVE

MATTERS

§ 904.7103 [Amended]

2. Section 904.7103, ‘‘Solicitation

provision and contract clause’’ is

amended, at both paragraphs (a) and (b),

by revising the words ‘‘small purchase

or other simplified purchase’’ to read

‘‘simplified acquisition.’’

PART 906—COMPETITION

REQUIREMENTS

§ 906.303–1 [Amended]

3. Subsection 906.303–1(a),

Requirements, is amended by removing

the final sentence.

PART 912—[REDESIGNATED AS PART

911]

4. Part 912 is redesignated Part 911

(Part 912 is reserved). The heading for

the new 911 is ‘‘DESCRIBING AGENCY

NEEDS.’’

§ 912.300, 912.302, 912.304 [Redesignated

as 911.600, 911.602, 911.604]

a. Sections 912.300, 912.302, and

912.304 are redesignated 911.600,

911.602, and 911.604 respectively.

911.600 [Amended]

b. Newly redesignated Section

911.600 is amended by revising the

reference ‘‘FAR subpart 12.3’’ to read

‘‘FAR subpart 911.6.’’

§ 911.604 [Amended]

c. Newly designated Section 911.604

is amended:

i. in paragraph (a) by revising

‘‘952.212–70’’ to read ‘‘952.211–70’’ and

removing ‘‘(JUNE 1987)’’;

ii. in paragraph (b) by revising

‘‘952.212–71’’ to read ‘‘952.211–71’’ and

removing ‘‘(JUNE 1987)’’;

iii. in paragraph (c) by revising

‘‘952.212–70’’ and ‘‘952.212–71’’ to read

‘‘952.211–70’’ and ‘‘952.211–71’’

respectively;

iv. in paragraph (d) by revising

‘‘952.212–70’’ to read ‘‘952.211–70’’ and

removing ‘‘(JUNE 1987)’’; and,

v. in paragraph (e) by revising

‘‘952.212–71’’ to read ‘‘952.211–71’’ and

removing ‘‘(JUNE 1987).’’

PART 913—SIMPLIFIED ACQUISITION

PROCEDURES

5. The Part heading for Part 913 is

amended to read as set forth above.

§ 913.505–1 [Amended]

6. Subsection 913.505–1 is amended

as follows:

a. at paragraph (a)(2) by revising the

words ‘‘small purchase’’ in the first

sentence to read ‘‘simplified

acquisition’’;

b. by adding a new third sentence to

read: 913.505–1 Optional Form (OF)

347, Order for Supplies or Services, and

Optional Form 348, Order for Supplies

or Services-Continuation or DOE F

4250.3, Order for Supplies or Services.

* * * Standard Form 1449 shall be

used for acquisitions of commercial

items.

c. by adding, at paragraph (b)(2), the

words ‘‘or Standard Form 1449’’ after

the words ‘‘Optional Form 347.’’

PART 915—CONTRACTING BY

NEGOTIATION

915.970–8 [Amended]

7. Subsection 915.970–8 is amended

at paragraph (f)(1), second sentence, by

removing the words ‘‘labor surplus,’’

and at paragraph (f)(2)(i), first sentence,

by revising the words ‘‘small business

and small disadvantaged business’’ to

read ‘‘small, small disadvantaged and

women-owned small business,’’ by

removing paragraph (f)(2)(ii), and by

redesignating subparagraph (f)(2)(iii) as

(f)(2)(ii).

915.971–3 [Amended]

8. Subsection 915.971–3, is amended

at paragraph (b)(viii), by revising the

words ‘‘small and small disadvantaged’’

to read ‘‘small, small disadvantaged and

women-owned small.’’

PART 919—SMALL BUSINESS

PROGRAMS

9. The Part heading for Part 919 is

revised to read as set forth above.

919.201 [Amended]

10. Paragraph (c) of section 919.201 is

amended in each of the first three

sentences, by revising the words ‘‘small

and small disadvantaged’’ to read
Federal Register / Vol. 61, No. 93 / Monday, May 13, 1996 / Rules and Regulations 21977

‘‘small, small disadvantaged, and

women-owned small’’ and in the fourth

sentence, by revising the words ‘‘small

business/small disadvantaged business

(SB/DB) specialist’’ to read ‘‘small

business specialist.’’

919.501 [Amended]

11. Section 919.501, General, at the

end of the first sentence of paragraph

(c), is amended by revising the words

‘‘small purchase limitation’’ to read

‘‘simplified acquisition threshold.’’

919.602–1 [Amended]

12. Subsection 919.602–1, Referral, is

amended at paragraph (a)(2) by

removing the words ‘‘and

disadvantaged.’’

919.7 [Amended]

Subpart 919.7—Subcontracting with

Small Business, Small Disadvantaged

Business, and Women-Owned Small

Business Concerns

13. The heading of Subpart 919.7 is

revised to read as set forth above.

PART 925—FOREIGN ACQUISITION

925.901 [Amended]

14. Section 925.901, Omission of the

examination of records clause, is

amended by revising its heading to read

‘‘Omission of the audit clause.’’ and by

revising ‘‘48 CFR 25.903’’ to read ‘‘48

CFR 25.901.’’

PART 926—OTHER SOCIOECONOMIC

PROGRAMS

926.7003 [Amended]

15. Section 926.7003, Review of the

procurement request, is amended by

removing ‘‘/Labor Surplus Area Set

Aside.’’

PART 933—PROTESTS, DISPUTES,

AND APPEALS

933.106 [Amended]

16. Section 933.106 is amended by

revising the words ‘‘for other than small

purchases’’ to read ‘‘above the

simplified acquisition threshold.’’

PART 950—EXTRAORDINARY

CONTRACTUAL ACTIONS

950.7101 [Amended]

17. Section 950.7101, at paragraph

(c)(2), first sentence, is amended by

revising the words ‘‘small businesses

and small disadvantaged businesses’’ to

read ‘‘small, small disadvantaged and

women-owned small businesses.’’

PART 952—SOLICITATION

PROVISIONS AND CONTRACT

CLAUSES

952.212 [Redesignated as 952.211]

18. Section 952.212 is redesignated

952.211. Its subsections are amended as

follows:

a. Subsections 952.212–70, 952.212–

71, 952.212–72, and 952.212–73 are

redesignated 952.211–70, 952.211–71,

952.211–72, and 952.211–73

respectively.

b. Redesignated subsection 952.211–

70, is amended by revising the reference

‘‘912.304(a)’’ to read ‘‘911.604(a)’’ in the

introductory paragraph and by revising

the reference ‘‘912.304(d)’’ to read

‘‘911.604(d)’’ in Alternate I.

c. Redesignated 952.211–71 is

amended by revising the reference

‘‘912.304(b)’’ to read ‘‘911.604(b)’’ in the

introductory paragraph and by revising

the reference ‘‘912.304(e)’’ to read

‘‘911.604(e)’’ in Alternate I.

952.226 [Amended]

19. Section 952.226 is amended at

952.226–70(c) in the first sentence,

952.226–70(d) and 970.226–72(c)(2) by

revising the words ‘‘Small Business and

Small Disadvantaged Business

Subcontracting Plan’’ to read ‘‘Small,

Small Disadvantaged and WomenOwned Subcontracting Plan’’ and at

952.226–71(b) by revising the words

‘‘Utilization of Small Business Concerns

and Small Disadvantaged Business

Concerns’’ to read ‘‘Utilization of Small,

Small Disadvantaged and WomenOwned Small Business Concerns.’’

952.250–70 [Amended]

20. Subsection 952.250–70, Nuclear

hazards indemnity agreement, is

amended at paragraph (h) by removing

the words ‘‘Officials Not to Benefit’’ and

revising the words ‘‘Examination of

Records by the Comptroller General’’ to

read ‘‘Audit and records—negotiation.’’

PART 970—DOE MANAGEMENT AND

OPERATING CONTRACTS

970.19 Small, Small Disadvantaged and

Women-Owned Small Business Concerns

21. The heading of subpart 970.19 is

revised to read as set forth above.

970.5203–2 [Removed and reserved]

22. Subsection 970.5203–2,

Examination of Records by the

Comptroller General, is removed and

reserved.

970.5204–9 [Amended]

23. Subsection 970.5204–9, Accounts,

records, and inspection, is amended by

revising paragraph (g) and adding

paragraph (i). The revised and added

paragraphs read:

970.5204–9 Accounts, records, and

inspection.

* * * * *

Accounts, Records, and Inspection

(APR 1996)

* * * * *

(g) Subcontracts. The contractor further

agrees to require the inclusion of provisions

similar to those in paragraphs (a) through (g)

and paragraph (i) of this clause in all

subcontracts (including fixed-price or unitprice subcontracts or purchase orders) of any

tier entered into hereunder where, under the

terms of the subcontract, costs incurred are

a factor in determining the amount payable

to the subcontractor.

Note: If the prime contract contains a

‘‘Defective Cost or Pricing Data’’ clause, this

paragraph (g) shall be modified by adding the

following:

The contractor further agrees to include an

‘‘Audit’’ clause, the substance of which is the

‘‘Audit’’ clause set forth at FAR 52.215–2, in

each subcontract which does not include

provisions similar to those in paragraph (a)

through paragraph (g) and paragraph (i) of

this clause, but which contains a ‘‘defective

cost and pricing data’’ clause.

* * * * *

(i) Comptroller General.

(1) The Comptroller General of the United

States, or an authorized representative, shall

have access to and the right to examine any

of the contractor’s directly pertinent records

involving transactions related to this contract

or a subcontract hereunder.

(2) This paragraph may not be construed to

require the contractor or subcontractor to

create or maintain any record that the

contractor or subcontractor does not maintain

in the ordinary course of business or

pursuant to a provision of law.

(3) Nothing in this contract shall be

deemed to preclude an audit by the General

Accounting Office of any transaction under

this contract.

970.5204–13 [Amended]

24. Subsection 970.5204–13,

Allowable costs and fixed-fee

(Management and Operating contracts),

at clause paragraph (e)(36)(ii)(A), is

amended by revising the words ‘‘Small

Businesses and Small Disadvantaged

Businesses’’ (both sentences) to read

‘‘small, small disadvantaged and

women-owned small businesses’’ and

by revising the words ‘‘Utilization of

Small Business Concerns and Small

Disadvantaged Business Concerns’’ to

read ‘‘Utilization of Small, Small

Disadvantaged and Women-Owned

Small Business Concerns’’ in the first

sentence.
21978 Federal Register / Vol. 61, No. 93 / Monday, May 13, 1996 / Rules and Regulations

970.5204–14 [Amended]

25. Subsection 970.5204–14,

Allowable costs and fixed-fee (support

contracts), at paragraph (e)(34)(ii)(A), is

amended by revising the words ‘‘Small

Businesses and Small Disadvantaged

Businesses’’ (both sentences) to read

‘‘small, small disadvantaged and

women-owned small businesses’’ and

by revising the words ‘‘Utilization of

Small Business Concerns and Small

Disadvantaged Business Concerns’’ to

read ‘‘Utilization of Small, Small

Disadvantaged and Women-Owned

Small Business Concerns.’’ (first

sentence).

970.5204–44 [Amended]

26. Subsection 970.5204–44,

Flowdown of contract requirements to

subcontracts, is amended by removing

and reserving paragraph (b)(12),

Examination of Records by the

Comptroller General, and revising the

title of subparagraph (b)(19) to read

‘‘Accounts, Records, and Inspection.’’

[FR Doc. 96–11918 Filed 5–10–96; 8:45 am]

BILLING CODE 6450–01–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 678

[I.D. 042696D]

Atlantic Shark Fisheries; Large Coastal

Shark Species

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Closure.

SUMMARY: NMFS is closing the

commercial fishery for large coastal

sharks conducted by vessels with a

Federal Atlantic shark permit in the

Western North Atlantic Ocean,

including the Gulf of Mexico and

Caribbean Sea. This action is necessary

to prevent exceeding the semiannual

quota of 1285 metric tons (mt) for the

period January 1 through June 30, 1996.

EFFECTIVE DATE: The closure is effective

from 11:30 p.m. local time May 17,

1996, through June 30, 1996.

FOR FURTHER INFORMATION CONTACT: C.

Michael Bailey, 301–713–2347; Kevin B.

Foster, 508–281–9260; or John M. Ward

813–570–5335.

SUPPLEMENTARY INFORMATION: The

Atlantic shark fishery is managed by

NMFS according to the Fishery

Management Plan (FMP) for Atlantic

Sharks prepared by NMFS under

authority of the Magnuson Fishery

Conservation and Management Act (16

U.S.C. 1801 et seq.). Fishing by U.S.

vessels is governed by regulations

implementing the FMP at 50 CFR part

678.

Section 678.24(b) of the regulations

provides for two semiannual quotas of

large coastal sharks to be harvested from

Atlantic, Caribbean, and Gulf of Mexico

waters by commercial fishermen. The

first semiannual quota of 1,285 mt is

available for harvest from January 1

through June 30, 1996.

The Assistant Administrator for

Fisheries, NOAA (AA), is required

under § 678.25 to monitor the catch and

landing statistics and, on the basis of

these statistics, to determine when the

catch of Atlantic, Caribbean, and Gulf of

Mexico sharks will equal any quota

under § 678.24(b). When shark harvests

reach, or are projected to reach, a quota

established under § 678.24(b), the AA is

further required under § 678.25 to close

the fishery.

The AA has determined, based on the

reported catch and other relevant

factors, that the semiannual quota for

the period January 1 through June 30,

1996, for large coastal sharks, in or from

the Western North Atlantic Ocean,

including the Gulf of Mexico and

Caribbean Sea, will be attained by May

17, 1996. During this closure, for vessels

issued a permit under § 678.4, retention

of large coastal sharks from the

management unit is prohibited, unless

the vessel is operating as a charter

vessel or headboat, in which case, the

vessel limit per trip is four large coastal

sharks. Also, the sale, purchase, trade,

or barter or attempted sale, purchase,

trade, or barter of carcasses and/or fins

of large coastal sharks harvested by a

person aboard a vessel that has been

issued a permit under § 678.4, is

prohibited, except for those that were

harvested, offloaded, and sold, traded,

or bartered prior to May 17, 1996, and

were held in storage by a dealer or

processor.

Vessels that have been issued a

Federal permit under § 678.4 are

reminded that, as a condition of permit

issuance, the vessel may not retain a

large coastal shark during the closure,

except as provided by § 678.24(a).

Fishing for pelagic and small coastal

sharks may continue. The recreational

fishery is not affected by this closure.

Classification

This action is taken under 50 CFR

part 678 and is exempt from review

under E.O. 12866.

Authority: 16 U.S.C. et seq.

Dated: May 6, 1996

Richard W. Surdi,

Acting Director, Office of Fisheries

Conservation and Management, National

Marine Fisheries Service.

[FR Doc. 96–11851 Filed 5–8–96; 2:28 pm]

BILLING CODE 3510–22–F