[Federal Register Volume 59, Number 47 (Thursday, March 10, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-5437] [[Page Unknown]] [Federal Register: March 10, 1994] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF ENERGY 48 CFR Part 903 RIN 1991-AB10 Acquisition Regulation: Procurement Integrity AGENCY: Department of Energy (DOE). ACTION: Final rule; technical amendments. ----------------------------------------------------------------------- SUMMARY: DOE is amending the Department of Energy Acquisition Regulation (DEAR) to implement the requirements of the Federal Acquisition Regulation (FAR) to identify the individuals responsible for concurring in the contracting officer's decision regarding the impact of a violation, or possible violation, of the procurement integrity requirements occurring during the conduct of a procurement. This rule falls under the exceptions stated in the Administrative Procedure Act to the proposed rulemaking and public procedure requirements. These changes are all technical and administrative in nature, and none of them raises substantive issues. EFFECTIVE DATE: This rule will be effective on May 9, 1994. FOR FURTHER INFORMATION CONTACT: Kevin M. Smith, Office of Policy (HR- 521.1), Office of Procurement and Assistance Management, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585 (202) 586-8189. SUPPLEMENTARY INFORMATION: I. Background. A. Discussion B. Section-by-Section Analysis 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. National Environmental Policy Act I. Background A. Discussion DOE is amending the DEAR to implement the requirements of FAR 3.104-11(a) concerning the identification of the individuals within DOE responsible for concurring in the contracting officer's decision regarding the impact of a violation, or possible violation, of the procurement integrity requirements occurring during the conduct of a procurement. The specific amendments to the DEAR are described below. B. Section-by-Section Analysis The procedures contained in FAR 3.104-11(a)(1) require a contracting officer who has information concerning any violation, or possible violation, of the procurement integrity statute and regulations and who concludes that the violation or possible violation has no impact on the award of the contract or modification to submit this conclusion to an individual within the agency for concurrence. Under FAR 3.104-11(a)(2), that individual is also responsible for notifying the Head of the Contracting Activity, or his or her designee, if that individual does not concur in the contracting officer's conclusion with respect to the impact of the violation or possible violation. The FAR directs that such an individual be designated in accordance with agency procedures. Under this rulemaking, Subpart 903.1, entitled ``Safeguards,'' will be amended to add a new section 903.104-11(a) to implement FAR 3.104- 11(a) by identifying the responsible individual. Within DOE, except for Headquarters activities, the individual designated to perform the responsibilities set forth in FAR 3.104-11(a)(1) and (2) is the legal counsel assigned direct responsibility for providing legal advice to the contracting office making the award of the contract or modification. For Headquarters activities, the individual designated to perform the responsibilities set forth in FAR 3.104-11(a)(1) and (2) concerning questions of disclosure of proprietary or source selection information and certification matters is the Assistant General Counsel for Procurement and Financial Assistance. The designated individual for other questions concerning FAR 3.104-11(a)(1) and (2) for Headquarters activities is the Assistant General Counsel for General Law (Designated Agency Ethics Official). II. Procedural Requirements A. Review Under Executive Order 12866 The Department of Energy has determined that today's regulatory action is not 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 2(b), include eliminating drafting errors and needless ambiguity, drafting the regulations to minimize litigation, providing clear and certain legal standards for affected 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 today's rule meets the requirements of sections 2(a) and 2(b) of Executive Order 12778. 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 proposed rule which 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 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. This rule will not affect states. It deals with relations between Federal agencies. F. National Environmental Policy Act DOE has concluded that this rule would not represent a major Federal action having significant impact on the human environment under the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321, et seq.) (1976) or the Council on Environmental Quality Regulations (40 CFR parts 1500-1508) and, therefore, does not require an environmental impact statement or an environmental assessment pursuant to NEPA. List of Subjects in 48 CFR Part 903 Government procurement. Issued in Washington, DC on March 2, 1994. 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: PART 903-IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST 1. The authority citation for Part 903 continues to read as follows: Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c). 2. Subpart 903.1, Safeguards, is amended by adding a new section 903.104-11 to read as follows: 903.104-11 Processing violations or possible violations under procurement integrity. (a) Except for Headquarters activities, the individual within DOE responsible for fulfilling the requirements of (FAR) 48 CFR 3.104-11(a) (1) and (2) relative to contracting officer conclusions on the impact of a violation or possible violation of the procurement integrity requirements shall be the legal counsel assigned direct responsibility for providing legal advice to the contracting office making the award or selecting the source. The legal counsel is the Chief Counsel for the Operations Offices or the Energy Technology Centers; the Counsel, or the Chief Counsel, for the Support Offices or the Naval Reactors Offices; and the General Counsel for the Power Administrations. For Headquarters activities, the individual designated to perform the responsibilities in (FAR) 48 CFR 3.104-11(a) (1) and (2) regarding questions of disclosure of proprietary or source selection information and certification matters is the Assistant General Counsel for Procurement and Financial Assistance. The designated individual for other questions regarding (FAR) 48 CFR 3.104-11(a) (1) and (2) for Headquarters activities is the Assistant General Counsel for General Law (Designated Agency Ethics Official). [FR Doc. 94-5437 Filed 3-9-94; 8:45 am] BILLING CODE 6450-01-P