[Federal Register Volume 80, Number 205 (Friday, October 23, 2015)]
[Rules and Regulations]
[Pages 64361-64369]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-26476]
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DEPARTMENT OF ENERGY
48 CFR Parts 925, 952 and 970
RIN 1991-AB99
Acquisition Regulations: Export Control
AGENCY: Department of Energy.
ACTION: Final rule.
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SUMMARY: The Department of Energy (DOE) is adopting as final, with
changes, a rule amending the Department of Energy Acquisition
Regulation (DEAR) to add clauses regarding applicable export control
requirements for DOE contracts. The rule recognizes contractor
responsibilities to comply with all applicable export control laws and
regulations in the performance of DOE contracts and prescribes Export
Clauses to address these responsibilities.
DATES: Effective Date: November 23, 2015.
Applicability Date: This final rule is applicable to solicitations
issued on or after November 23, 2015.
FOR FURTHER INFORMATION CONTACT: Lawrence Butler, (202) 287-1945 or
[email protected].
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Purpose and Legal Authority
B. Summary of Major Provisions
1. Part 925--Foreign Acquisition.
2. Part 952--Solicitation Provisions and Contract Clauses.
3. Part 970--DOE Management and Operating Contracts.
II. Summary of Comments and Responses
III. Procedural Requirements
A. Review Under Executive Orders 12866 and 13563
B. Review Under Executive Order 12988
C. Review Under the Regulatory Flexibility Act
D. Review Under the Paperwork Reduction Act
E. Review Under the National Environmental Policy Act
F. Review Under Executive Order 13132
G. Review Under the Unfunded Mandates Reform Act of 1995
H. Review Under the Treasury and General Government
Appropriations Act, 1999
I. Review Under Executive Order 13211
J. Review Under the Treasury and General Government
Appropriations Act, 2001
K. Review Under Executive Order 13609
L. Approval by the Office of the Secretary of Energy
I. Executive Summary
A. Purpose and Legal Authority
The purpose of this rulemaking is to add new DEAR Subparts 925.71
and 970.2571 to clarify requirements concerning compliance with export
control laws and regulations applicable in the performance of DOE
contracts.
[[Page 64362]]
Export control laws and regulations that may apply to a DOE
contract include, but are not limited to: The Atomic Energy Act of 1954
(42 U.S.C. 2011 et seq.), as amended; the Arms Export Control Act (22
U.S.C. 2751 et seq.); the Export Administration Act of 1979 (50 U.S.C.
app. 2401 et seq.), as continued under the International Emergency
Economic Powers Act (Title II of Pub. L. 95-223, 91 Stat. 1626, October
28, 1977); Trading with the Enemy Act (50 U.S.C. App. 1 et seq. as
amended by the Foreign Assistance Act of 1961); Assistance to Foreign
Atomic Energy Activities (10 Code of Federal Regulations (CFR) Part
810); Export Administration Regulations (15 CFR parts 730 through 774);
International Traffic in Arms Regulations (22 CFR parts 120 through
130); Export and Import of Nuclear Equipment and Material (10 CFR part
110); and regulations administered by the Office of Foreign Assets
Control of the Department of the Treasury (31 CFR parts 500 through
598).
DOE provided summaries of these export control laws in section II
of its proposed rule. See 78 FR 35195 (June 12, 2013).
B. Summary of Major Provisions
DOE is amending the DEAR to add provisions similar to the 2013
amendments to the Defense Federal Acquisition Regulation Supplement
(DFARS) (DFARS 225, Foreign Acquisition, and DFARS 252, 78 FR 36108,
June 17, 2013); DFARS 252, Foreign Acquisition, 78 FR 48331, August 8,
2013; and to the DFARS Procedures, Guidance, and Information (PGI) 225
``Foreign Acquisition'' (revised June 26, 2013).
1. Part 925--Foreign Acquisition
Part 925 is amended by adding new section 925.71 to set forth
requirements for contractors concerning compliance with U.S. export
control laws and regulations.
Points of contact and specific U.S. government agency requirements
for export controls can be found as follows:
Department of Commerce (DOC): http://www.bis.doc.gov/licensing/exportingbasics.htm
Department of Energy, National Nuclear Security Administration,
Office of Nonproliferation and International Security: http://nnsa.energy.gov/aboutus/ourprograms/nonproliferation/programoffices/officenonproliferationinternationalsecurity.
Nuclear Regulatory Commission: http://www.nrc.gov/about-nrc/ip/export-import.html.
Department of State: http://www.pmddtc.state.gov/about/key_personnel.html and http://www.pmddtc.state.gov/documents/ddtc_getting_started.pdf.
Department of Treasury: http://www.treasury.gov/services/Pages/Foreign-Transaction-Licensing-and-Reporting.aspx.
DOE contractors are responsible for complying with export control
requirements applicable to their contracts as set forth in new DEAR
Export Clauses. It is a contractor's responsibility to comply with all
applicable export control laws and regulations. This responsibility
exists independent of, and is not established or limited by, this DEAR
rulemaking.
2. Part 952--Solicitation Provisions and Contract Clauses
Part 952 is amended by adding new clause 952.225-71 to set forth
requirements for DOE contractors concerning compliance with applicable
export control laws and regulations.
Points of contact and specific U.S. government agency requirements
for export controls can be found as follows:
Department of Commerce (DOC): http://www.bis.doc.gov/licensing/exportingbasics.htm
Department of Energy, National Nuclear Security Administration,
Office of Nonproliferation and International Security: http://nnsa.energy.gov/aboutus/ourprograms/nonproliferation/programoffices/officenonproliferationinternationalsecurity.
Nuclear Regulatory Commission: http://www.nrc.gov/about-nrc/ip/export-import.html.
Department of State: http://www.pmddtc.state.gov/about/key_personnel.html and http://www.pmddtc.state.gov/documents/ddtc_getting_started.pdf.
Department of Treasury: http://www.treasury.gov/services/Pages/Foreign-Transaction-Licensing-and-Reporting.aspx.
DOE contractors are responsible for complying with export control
requirements applicable to their contracts as set forth in new DEAR
Export Clauses. It is a contractor's responsibility to comply with all
applicable export control laws and regulations. This responsibility
exists independent of, and is not established or limited by, this DEAR
rulemaking.
3. Part 970--DOE Management and Operating Contracts
Subpart 970.25 is amended by adding new section 970.2571 to set
forth requirements for management and operating contractors concerning
compliance with applicable export control laws and regulations. Subpart
970.52 is amended by adding new clause 970.5225-1 to set forth
requirements for management and operating contractors concerning
compliance with applicable export control laws and regulations.
Points of contact and specific U.S. government agency requirements
for U.S. export controls can be found as follows:
Department of Commerce (DOC): http://www.bis.doc.gov/licensing/exportingbasics.htm.
Department of Energy, National Nuclear Security Administration,
Office of Nonproliferation and International Security: http://nnsa.energy.gov/aboutus/ourprograms/nonproliferation/programoffices/officenonproliferationinternationalsecurity.
Nuclear Regulatory Commission: http://www.nrc.gov/about-nrc/ip/export-import.html.
Department of State: http://www.pmddtc.state.gov/about/key_personnel.html and http://www.pmddtc.state.gov/documents/ddtc_getting_started.pdf.
Department of Treasury: http://www.treasury.gov/services/Pages/Foreign-Transaction-Licensing-and-Reporting.aspx.
DOE management and operating contractors are responsible for
complying with export control requirements applicable to their
contracts as set forth in new DEAR Export Clauses. It is the
contractor's responsibility to comply with all applicable export
control laws and regulations. This responsibility exists independent
of, and is not established or limited by, this DEAR rulemaking.
II. Summary of Comments and Responses
DOE published a notice of proposed rulemaking (NOPR) on June 12,
2013 (78 FR 35195). The NOPR reflected the approach previously taken by
the Department of Defense (DoD) in the Defense Acquisition Regulations
Supplement (DFARS) to address requirements for complying with export
control laws and regulations when performing DoD contracts. DOE has
received recommendations from the General Accounting Office and the DOE
Inspector General to modify the DEAR for the same purpose. DOE received
comments from 15 organizations in response to the NOPR. In addition,
within days of publication of the NOPR, the DoD revised the DFARS to
address issues similar to those reflected in comments received on the
NOPR and provided guidance relating to the
[[Page 64363]]
release of fundamental research information. This final rule reflects
the approach taken by the DoD on June 17, 2013, to changes to sections
225.79 and 252.225-7048 of the DFARS (Foreign Acquisition, 78 FR
36108), and to changes to Part 225 of the DFARS PGI--225.79 (Foreign
Acquisition, Export Control). This NOPR also reflects DoD guidance in
78 FR 48331, August 8, 2013, related to the release of research
information that may be export controlled.
The following paragraphs describe the changes included in this
final rule as a result of those comments and provide DOE's response to
the comments received.
Summary of Changes to the NOPR
(a) All notification and reporting requirements have been removed.
(b) The requirement for contractors to comply with DOE directives
``in effect on the date of the contract award'' has been removed.
(c) References to ``transfers'' have been removed.
(d) References to specific DOE Orders have been removed.
(e) The Export Restriction Notice has been removed from the Export
Clauses.
(f) The phrase ``subject to export controls'' has been removed from
the Export Clauses.
(g) All listings of U.S. export control laws and regulations are
preceded by, ``include, but are not limited to:''
(h) All references to ``export-controlled items'' and ``export
control of items'' have been removed. The rule addresses ``compliance
with export control laws and regulations'' and does not attempt to
define what is and is not export controlled.
Discussion of comments and responses.
1. Comment: Six respondents claimed that export control laws exist
and already apply to U.S. persons, regardless of whether a contractor
represents to DOE that it is complying with applicable export laws.
Response: As stated in the NOPR, export compliance responsibilities
exist independent of and are not established or limited by the proposed
rule. It is customary practice for laws and regulations applicable to
DOE contracts to be listed in the contracts. In addition, DOE is
requiring the new Export Clauses to be added to all applicable
contracts. Listing applicable export laws and regulations in the Export
Clauses will help ensure that contractors are aware of their
responsibilities, emphasize the importance to DOE of contractor
compliance with such laws and regulations, and minimize the risk of
non-compliance with U.S. laws and regulations that could have major
programmatic and financial impacts on DOE and contractors. No change
was made to the text as a result of this comment.
2. Comment: Six respondents claimed that the rule encroaches on the
export authority of other U.S. export licensing authorities.
Response: The rule does not affect the export authority of any U.S.
Government agency. The purpose of the rule is to direct DOE contractors
to seek guidance from and to communicate with export licensing officers
at export licensing agencies and not to ask DOE Contracting Officers
for assistance in complying with export control requirements. The rule
provides explicit instructions to DOE Contracting Officers, if asked by
a DOE contractor to provide export assistance, to direct contractors to
applicable export laws and regulations and to the agencies
administering them. The final rule makes it clear that DOE does not
have an export compliance officer overseeing DOE contractor export
activities, and that contractors are responsible for compliance with
export controls. No change was made to the text as a result of this
comment.
3. Comment: Four respondents claimed the proposed rule has existing
or potential inconsistencies with export control authorities.
Response: As noted above, the purpose of the rule is to direct DOE
contractors to seek guidance from and to communicate with export
licensing officers at export licensing agencies and not to ask for
export control compliance assistance from DOE Contracting Officers. The
final rule has been revised to remove reporting and marking
requirements, as well as language cited by one respondent as
potentially inconsistent with other authorities.
4. Comment: One respondent expressed concern as to how differences
of opinion on the applicability of export control requirements between
agencies responsible for administering the laws and the DOE Contracting
Officer would be resolved.
Response: The rule makes clear that DOE Contracting Officers do not
make any decisions regarding the applicability of export control laws
or regulations. The appropriate licensing agency determines whether
export control requirements apply. It is a contractor's responsibility
to adhere to all relevant export control laws and regulations. No
change was made to the text as a result of this comment.
5. Comment: One respondent claimed that DOE is potentially setting
up a conflict for a contractor between complying with changes in export
laws and regulations that are not yet changed in its contract clause.
Response: The listing of export control laws and regulations in the
Export Clauses in the final rule are preceded by ``include, but are not
limited to:''. Any changes in U.S. export laws or regulations would
apply to a contractor because the Export Clauses require compliance
with all applicable export control laws and regulations. No change was
made to the text as a result of this comment.
6. Comment: Two respondents alleged that the proposed rule is
inconsistent with the Export Control Reform Initiative.
Response: The final rule is consistent with the Export Control
Reform Initiative (ECRI). The purpose of this rule is to simplify the
export process for DOE contractors, by directing them to the proper
export licensing authorities. Reporting requirements have been removed
from the final rule.
7. Comment: Three respondents claimed that the proposed rule is
redundant to DEAR 970.5204-2 Laws, Regulations and DOE Directives,
because that clause adequately covers compliance with export laws and
regulations.
Response: The rule clarifies DOE contractor and Contracting Officer
responsibilities regarding export controls not clearly stated in any
other law or regulation. The Export Clauses clarify that DOE
contractors are to contact appropriate export licensing agencies and
not DOE Contracting Officers with questions regarding export control
compliance. The Export Clauses direct DOE Contracting Officers to
address contractor export control questions by directing them to
relevant export control laws and regulations and licensing agencies. No
change was made to the text as a result of this comment.
8. Comment: One respondent questioned the requirement for
contractors to comply with DOE directives ``in effect on the date of
the contract award,'' as individual DOE contracts specify applicable
DOE directives for each DOE contract.
Response: DOE acknowledges that contracts specify applicable DOE
directives. This language has been removed from the final rule.
9. Comment: Two respondents claimed that DOE already has adequate
contractual enforcement tools.
Response: The purpose of the rule is not to provide additional
enforcement tools. This rule is needed to clarify DOE contractor and
Contracting Officer export control responsibilities not
[[Page 64364]]
clearly stated in any other law or regulation. No change was made to
the text as a result of this comment.
10. Comment: Six respondents claimed that export control
requirements are not needed in the DEAR and that the Federal
Acquisition Regulation (FAR) limits agency acquisition regulations to
those necessary to implement FAR policies and procedures.
Response: The final rule provides necessary policies and procedures
not included in the FAR. It clarifies that DOE contractors are to
consult appropriate export licensing agencies and not DOE Contracting
Officers with questions regarding export compliance. The final rule
directs DOE Contracting Officers to handle export control questions
posed by contractors by directing the contractors to the relevant
export licensing agencies. This rule is needed to clarify DOE
contractor and DOE Contracting Officer responsibilities that are not
clearly stated in any other law or regulation. No change was made to
the text as a result of this comment.
11. Comment: Six respondents claimed that the proposed rule exceeds
the stated purpose of the rule, which is to amend the DEAR for
consistency with a 2010 amendment to the DFARS. They said that the
proposed rule is not consistent with the revised DFARS clauses.
Response: The final rule reflects the approach taken in the June
17, 2013, changes to 225.79 and 252.225-7048 of the DFARS (Foreign
Acquisition, 78 FR 36108) and to the June 17, 2013 changes to Part
225.79 of the DFARS PGI-225 (Foreign Acquisition). No change was made
to the text as a result of this comment.
12. Comment: Three respondents claimed that the proposed rule is
ineffective as a way to respond to 2004 and 2007 DOE Inspector General
(IG) and 2011 Government Accountability Office (GAO) reports on DOE
contractor non-compliance with export laws.
Response: The rule responds to DOE IG and GAO recommendations in
the cited reports for DOE to provide specific export control guidance
to DOE contractors. In particular, the 2007 DOE IG report recommended
that DOE ``ensure that export control guidance is disseminated and
implemented throughout the complex.'' To implement that recommendation,
the IG report stated that ``NNSA management should expedite action,
such as issuing a directive or modifying the Department of Energy
Acquisition Regulation (DEAR), to fully implement the open
recommendation.'' The 2011 GAO report repeated its prior
recommendations for DOE to provide guidance to its contractors. The
proposed rule is in direct response to the DOE IG recommendation to
modify the DEAR, as well as the recommendations in the GAO report. No
change was made to the text as a result of this comment.
13. Comment: Two respondents claimed that the proposed rule
unfairly asks Contracting Officers to make export control decisions for
which they are not trained. One respondent proposed rewording the
requirement for Contracting Officers to insert the export control
clause as follows: ``The Contracting Officer shall insert the clause at
952.225-71, Compliance with export control laws, regulations and
directives (Export Clause), in all solicitations and contracts.''
Response: The purpose of the new rule is to set forth the
responsibilities of DOE contractors and DOE Contracting Officers
concerning contractor compliance with export-controlled activities.
Contracting Officers are required to include the Export Clause at DEAR
952.225-71 or DEAR 970.5225-1 in solicitations and contracts that would
involve export-controlled activities. While the rule has been revised
to be applicable to ``all solicitations and contracts,'' export control
laws would not be applicable to solicitations and contracts that do not
involve export-controlled activities. As noted above, the revised
language is similar to the policy approach taken DoD.
14. Comment: Nine respondents claimed that certain reporting
requirements included in the Export Clauses would unduly burden DOE
contractors because the requirement of a timely, written notification
of export controls and compliance for DOE contracts would be an
overbroad approach to ensuring export control compliance. Also, the
requirement to flow down the reporting requirement would impose
administrative and audit burdens on contractors.
Response: The final rule removes the requirements for a contractor
to notify the DOE Contracting Officer when the contract may require
export activities and for a contractor to assure the DOE Contracting
Officer of its ability to comply with U.S. export laws and regulations.
The reporting and notification requirements in the proposed rule were
not required by any law or regulation, or recommended by any auditors.
The purpose of the Export Clauses is to clarify that DOE contractors
should consult appropriate export licensing agencies, and not DOE
Contracting Officers, with questions regarding compliance with export-
controlled activities. The reporting and notification requirements were
removed from the rule to avoid any implication that DOE Contracting
Officers have any export compliance responsibilities.
15. Comment: Two respondents were concerned about the impact on
small business subcontractors and universities.
Response: U.S. export control laws and regulations already apply to
activities conducted by small businesses and by universities that have
DOE contracts, so there would be no substantive change regarding export
control requirements applicable to these entities. No change was made
to the text as a result of this comment.
16. Comment: Three respondents claimed that the proposed rule is
not consistent with National Security Decision Directive (NSDD) 189
because ``products'' most often generated and disseminated while
performing fundamental research are scientific findings excluded from
export regulations under the ``Fundamental Research Exclusion'' set
forth in NSDD-189 and the exclusion of fundamental research from export
controls in EAR and ITAR provisions.
Response: NSDD 189 establishes a national policy that, to the
maximum extent possible, the products of fundamental research shall
remain unrestricted. NSDD 189 provides that no restrictions may be
placed upon the conduct or reporting of federally funded fundamental
research that has not received national security classification, except
as provided in applicable U.S. statutes. As a result, contracts
confined to the performance of unclassified fundamental research
generally do not involve any export-controlled activities. NSDD 189
does not take precedence over statutes. As it clearly states in the
directive, NSDD 189 does not exempt any research from statutes that
apply to export control laws and regulations. In addition, NSDD 189 is
focused on the products of fundamental research and does not exempt
access to export-controlled technology used or generated during the
conduct of fundamental research. The final rule therefore is consistent
with NSDD-189 regarding fundamental research because it does not have
an impact on the NSDD-189 exemption for fundamental research and it
does not modify restrictions already imposed by U.S. export control
laws and regulations on research.
DFARS PGI-225.79 (revised June 17, 2013) and [the final rule on the
release of fundamental research information in DFARS 252.204-7000
(August 8, 2013) address release of fundamental research information].
Note that the revised
[[Page 64365]]
DFARS PGI-225 places reporting requirements on contractors who want to
release information that they have determined to be the product of
fundamental research. This final rule does not place any reporting
requirements on the release of fundamental research by DOE contractors.
17. Comment: Two respondents questioned the scope of the Export
Restriction Notice requirement.
Response: The Export Restriction Notice requirement has been
removed from the final rule because requirements for the use of such a
notice are defined in 41 CFR 109 and do not need to be restated in this
rule.
18. Comment: Three respondents recommended that DOE would be better
served by providing educational materials to contractors to increase
export compliance awareness.
Response: The purpose of the new rule is to direct DOE contractors
to seek guidance from and to communicate with export licensing officers
at appropriate export licensing agencies, and not to ask for export
control compliance assistance from DOE Contracting Officers. Compliance
training offices of Department of Commerce, Department of State and
other agencies provide appropriate training on their respective export
regulations. No change was made to the text as a result of this
comment.
19. Comment: Two respondents believed that DOE may inadvertently
assume liability because of requirements in the Export Clauses should a
contractor be in non-compliance with export control requirements.
Response: DOE will not assume any liability due to inclusion of the
Export Clauses in contracts or for contractor noncompliance with export
control requirements. No change was made to the text as a result of
this comment.
20. Comment: Eight respondents claimed that the proposed rule
potentially increases DOE contractors' risk by specifically listing
regulations in the contract. They also were concerned that contractors
could be liable under the False Claims Act and other laws for their
actions or for those of their subcontractors. If the contractor is not
in compliance with export control regulations, it may also be subject
to Qui Tam penalties, and the rule would make failure to comply with
export regulations a contractual obligation. This liability may be
assumed by the M&O contractor for all of its subcontractors, including
lower-tier subcontractors.
Response: The Export Clauses in the final rule do not require
reporting or written assurances. Contractors will not assume new
liabilities due to insertion of the Export Clauses in DOE contracts.
21. Comment: One respondent claimed that the proposed rule
potentially increases DOE contractors' risk by requiring the contractor
to identify specific aspects of the contract governed by export laws.
Response: For the reasons stated previously, reporting and written
assurance requirements have been removed from the final rule.
22. Comment: One respondent claimed that adoption of the proposed
regulation would increase costs for DOE procurements.
Response: For the reasons stated previously, reporting requirements
and written assurances have been removed from the final rule. The only
de minimis costs associated with the final rule are costs to add the
Export Clauses to solicitations and contracts. No further change was
made to the text as a result of this comment.
23. Comment: One respondent believed that the rule affects 10 CFR
part 810 procedures for contractors subject to that regulation.
Response: The proposed rule does not affect implementation of 10
CFR part 810 with respect to DOE program activities. No change was made
to the text as a result of this comment.
24. Comment: One respondent claimed that DOE Contracting Officers
will be required to submit all DOE contracts to the Office of
Nonproliferation and International Security (NIS) of the National
Nuclear Security Administration for 10 CFR part 810 review.
Response: The reporting requirements have been removed from the
revised rule. The rule does not place any requirements on DOE
Contracting Officers to submit contracts to the office now called the
Office of Nonproliferation and Arms Control for 10 CFR part 810 review.
No change was made to the text as a result of this comment.
25. Comment: Two respondents asked that this rule to be pursued in
conjunction with the revised 10 CFR part 810.
Response: The final rule amending 10 CFR part 810 (part 810) was
issued on February 23, 2015. 80 FR 9359 (Feb. 23, 2014). The purpose of
that final rule and this final rule are different. Part 810 controls
the export of unclassified nuclear technology and assistance, and is
one of the export rules that may apply to contractors. It was revised
to, among other things, reflect current global civil nuclear trade
practices. The purpose of this rule final is to direct DOE contractors
to seek guidance from and to communicate with export licensing officers
at export licensing agencies regarding export rules such as 10 CFR part
810. No change was made to the text as a result of this comment.
26. Comment: Two respondents stated that the meaning of
``transfer'' is not clear.
Response: References to ``transfers'' have been removed from the
final rule.
27. Comment: One respondent stated that the list of items to be
transferred that are subject to the Notice is ambiguous.
Response: The Export Restriction Notice has been removed from the
rule.
28. Comment: One respondent pointed out that DOE cites obsolete and
unavailable references with regard to DoD directives. For instance, DOE
lists DOE Order 580.1A which directs the reader to follow requirements
in a DoD Demilitarization Manual 4160.21-M-1, that was cancelled and
replaced. In addition, the replacement (DoD 4160.28-M series) directs
users to obtain disposal guidance for ITAR items from Web sites that
are available only to DoD components or those with .mil email
addresses.
Response: References to specific DOE Orders in the rule have been
removed. References in the NOPR were current at the time that it was
published.
29. Comment: Six respondents recommended that the rule more closely
follow the DoD example in the revised DFARS.
Response: The final rule has been revised consistent with June 17,
2013, changes to sections 225.79 and 252.225-7048 of the DFARS and the
DFARS PGI-225.
30. Comment: One respondent disagreed with the implication in the
Export Restriction Notice that all items are subject to export
controls.
Response: The Export Restriction Notice has been removed from the
final rule. As noted above, the phrase ``subject to export controls''
has been removed from the Export Clauses.
III. Procedural Requirements
A. Review Under Executive Orders 12866 and 13563
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 the Executive
Order by the Office of Information and Regulatory Affairs (OIRA) of the
Office of Management and Budget (OMB).
DOE has also reviewed this regulation pursuant to Executive Order
13563,
[[Page 64366]]
issued on January 18, 2011 (76 FR 3281 (Jan. 21, 2011)). Executive
Order 13563 is supplemental to, and explicitly reaffirms the
principles, structures, and definitions governing, regulatory review
established in Executive Order 12866. To the extent permitted by law,
agencies are required by Executive Order 13563 to: (1) Propose or adopt
a regulation only upon a reasoned determination that its benefits
justify its costs (recognizing that some benefits and costs are
difficult to quantify); (2) tailor regulations to impose the least
burden on society, consistent with obtaining regulatory objectives,
taking into account, among other things, and to the extent practicable,
the costs of cumulative regulations; (3) select, in choosing among
alternative regulatory approaches, those approaches that maximize net
benefits (including potential economic, environmental, public health
and safety, and other advantages; distributive impacts; and equity);
(4) to the extent feasible, specify performance objectives, rather than
specifying the behavior or manner of compliance that regulated entities
must adopt; and (5) identify and assess available alternatives to
direct regulation, including providing economic incentives to encourage
the desired behavior, such as user fees or marketable permits, or
providing information upon which choices can be made by the public.
DOE emphasizes as well that Executive Order 13563 requires agencies
to use the best available techniques to quantify anticipated present
and future benefits and costs as accurately as possible. In its
guidance, the Office of Information and Regulatory Affairs has
emphasized that such techniques may include identifying changing future
compliance costs that might result from technological innovation or
anticipated behavioral changes. DOE believes that today's final rule is
consistent with these principles, including the requirement that, to
the extent permitted by law, agencies adopt a regulation only upon a
reasoned determination that its benefits justify its costs and, in
choosing among alternative regulatory approaches, those approaches
maximize net benefits.
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; these proposed regulations meet 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
preparation of a regulatory flexibility analysis for any rule that by
law must be proposed for public comment, unless the agency certifies
that the rule, if promulgated, will not have a significant economic
impact on a substantial number of small entities.
As required by Executive Order 13272, ``Proper Consideration of
Small Entities in Agency Rulemaking,'' 67 FR 53461 (August 16, 2002),
DOE published procedures and policies on February 19, 2003, to ensure
that the potential impacts of its rules on small entities are properly
considered during the rulemaking process. 68 FR 7990 (February 19,
2003), DOE has made its procedures and policies available on the Office
of the General Counsel's Web site (http://energy.gov/gc/office-general-counsel).
DOE certifies that this rule would not have a significant impact on
a substantial number of small entities because the rule is intended
only to recognize existing export control compliance obligations and to
clarify the role of DOE and its contracting officers in relation to
these requirements. The rule itself does not impose any new
requirements on manufacturers. In addition, DOE notes that the
reporting requirements referenced in the proposed rule have been
eliminated from the final rule for the reasons discussed in response to
the comments received on this issue. DOE transmitted this certification
to the Small Business Administration (SBA) as required by 5 U.S.C.
605(b).
D. Review Under the Paperwork Reduction Act
This final rule does not impose a collection of information
requirement subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq. DOE's procurement reporting and recordkeeping burdens have been
approved under OMB Control No. 1910-4100.
E. Review Under the National Environmental Policy Act
DOE has concluded that promulgation of this final 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 final rule is categorically excluded from NEPA
review because the amendments to the DEAR are strictly procedural
(categorical exclusion A6). Therefore, this final 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. DOE has examined today's rule and has
determined that it does not preempt State law and does not have a
substantial direct effect on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government. No further
action is required by Executive Order 13132.
G. Review Under the Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally
[[Page 64367]]
requires a Federal agency to perform a detailed 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 does not impose a Federal mandate on State,
local or tribal governments or on the private sector.
H. Review Under the Treasury and General Government Appropriations Act,
1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a
Family Policymaking Assessment for any rule or policy that may affect
family well being. This rule will have no impact on family well-being.
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 the
Office of Information and Regulatory Affairs (OIRA), Office of
Management and Budget, a Statement of Energy Effects for any
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; and (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 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 implementing guidelines established
by each agency pursuant to general guidelines issued by OMB. OMB's
guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's
guidelines were published at 67 FR 62446 (October 7, 2002). DOE has
reviewed today's notice under the OMB and DOE guidelines and has
concluded that it is consistent with applicable policies in those
guidelines.
K. Review Under Executive Order 13609
Executive Order 13609 of May 1, 2012, ``Promoting International
Regulatory Cooperation,'' requires that, to the extent permitted by law
and consistent with the principles and requirements of Executive Order
13563 and Executive Order 12866, each Federal agency shall:
(a) If required to submit a Regulatory Plan pursuant to Executive
Order 12866, include in that plan a summary of its international
regulatory cooperation activities that are reasonably anticipated to
lead to significant regulations, with an explanation of how these
activities advance the purposes of Executive Order 13563 and this
order;
(b) Ensure that significant regulations that the agency identifies
as having significant international impacts are designated as such in
the Unified Agenda of Federal Regulatory and Deregulatory Actions, on
RegInfo.gov, and on Regulations.gov;
(c) In selecting which regulations to include in its retrospective
review plan, as required by Executive Order 13563, consider:
(i) Reforms to existing significant regulations that address
unnecessary differences in regulatory requirements between the United
States and its major trading partners, consistent with section 1 of
this order, when stakeholders provide adequate information to the
agency establishing that the differences are unnecessary; and
(ii) Such reforms in other circumstances as the agency deems
appropriate; and
(d) For significant regulations that the agency identifies as
having significant international impacts, consider, to the extent
feasible, appropriate, and consistent with law, any regulatory
approaches by a foreign government that the United States has agreed to
consider under a regulatory cooperation council work plan.
DOE has reviewed this final rule under the provisions of Executive
Order 13609 and determined that the rule complies with all requirements
set forth in the order.
L. Approval by the Office of the Secretary of Energy
The Office of the Secretary of Energy has approved issuance of this
final rule.
M. Congressional Notification
As required by 5 U.S.C. 801, DOE will report to Congress on the
promulgation of this rule prior to its effective date. The report will
state that it has been determined that the rule is not a ``major rule''
as defined by 5 U.S.C. 804(2).
List of Subjects in 48 CFR Parts 925, 952 and 970
Government procurement.
Issued in Washington, DC, on October 8, 2015.
Patrick Ferraro,
Director, Office of Acquisition Management, Department of Energy.
For reasons set out in the preamble, the DOE is amending Chapter 9
of Title 48 of the Code of Federal Regulations as set forth below.
PART 925--FOREIGN ACQUISITION
0
1. The authority citation for part 925 continues to read as follows:
Authority: 42 U.S.C. 7101 et seq., and 50 U.S.C. 2401 et seq.
0
2. Subpart 925.71 is added to part 925 to read as follows:
Subpart 925.71--Export Control
Sec.
925.7100 Scope of subpart.
925.7101 Policy.
925.7102 Contract clause.
Subpart 925.71--Export Control
925.7100 Scope of subpart.
This subpart implements Department of Energy (DOE) requirements for
contractors concerning compliance with U.S. export control laws and
regulations.
925.7101 Policy.
(a) DOE and its contractors must comply with all applicable U.S.
export control laws and regulations.
(b) Export control laws and regulations include, but are not
limited to, the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.), as
amended; the Arms Export Control Act (22 U.S.C. 2751 et seq.); the
Export Administration Act of 1979 (50 U.S.C. app. 2401 et seq.), as
continued under the International Emergency Economic Powers Act (Title
II of Pub. L. 95-223, 91 Stat. 1626, October 28, 1977; 50 U.S.C. 1701
et seq.); Trading with the Enemy Act (50 U.S.C. App. 5(b), as amended
by the Foreign Assistance Act
[[Page 64368]]
of 1961); Assistance to Foreign Atomic Energy Activities (Title 10 of
the Code of Federal Regulations (CFR) Part 810); Export Administration
Regulations (15 CFR parts 730 through 774); International Traffic in
Arms Regulations (22 CFR parts 120 through 130); Export and Import of
Nuclear Equipment and Material (10 CFR part 110); and regulations
administered by the Office of Foreign Assets Control of the Department
of the Treasury (31 CFR parts 500 through 598).
(c) Contractors seeking guidance on how to comply with export
control laws and regulations should review the illustrative list of
laws and regulations set forth in Clause 952.225-71. Contractors also
may contact the agencies responsible for administration of export laws
or regulations applicable to a particular export (e.g., Departments of
State, Commerce, Treasury and Energy, or the Nuclear Regulatory
Commission).
(d) DOE Contracting Officers will not answer contractor questions
regarding how to comply with U.S. export laws and regulations.
Contracting Officers should direct contractors to the export laws,
regulations, and agencies cited in the Export Clause at section
952.225-71 of this subpart.
(e) It is the contractor's responsibility to comply with all
applicable export control laws and regulations. This responsibility
exists independent of, and is not established or limited by, this
subpart.
925.7102 Contract clause.
The Contracting Officer shall insert the clause at 952.225-71,
Compliance with Export Control Laws and Regulations (Export Clause), in
all solicitations and contracts.
PART 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
3. The authority citation for part 952 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.
0
4. Section 952.225-71 is added to read as follows:
952.225-71 Compliance with export control laws and regulations (Export
Clause)
As prescribed in 925.7102, use the following clause:
COMPLIANCE WITH EXPORT CONTROL LAWS AND REGULATIONS (NOV 2015)
(a) The Contractor shall comply with all applicable export
control laws and regulations.
(b) The Contractor's responsibility to comply with all
applicable export control laws and regulations exists independent
of, and is not established or limited by, the information provided
by this clause.
(c) Nothing in the terms of this contract adds to, changes,
supersedes, or waives any of the requirements of applicable Federal
laws, Executive Orders, and regulations, including but not limited
to--
(1) The Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.), as
amended;
(2) The Arms Export Control Act (22 U.S.C. 2751 et seq.);
(3) The Export Administration Act of 1979 (50 U.S.C. app. 2401
et seq.), as continued under the International Emergency Economic
Powers Act (Title II of Pub. L. 95-223, 91 Stat. 1626, October 28,
1977; 50 U.S.C. 1701 et seq.);
(4) Trading with the Enemy Act (50 U.S.C. App. 5(b), as amended
by the Foreign Assistance Act of 1961);
(5) Assistance to Foreign Atomic Energy Activities (10 CFR part
810);
(6) Export and Import of Nuclear Equipment and Material (10 CFR
part 110);
(7) International Traffic in Arms Regulations (ITAR) (22 CFR
parts 120 through 130);
(8) Export Administration Regulations (EAR) (15 CFR Parts730
through 774); and
(9) The regulations administered by the Office of Foreign Assets
Control of the Department of the Treasury (31 CFR parts 500 through
598).
(d) In addition to the Federal laws and regulations cited above,
National Security Decision Directive (NSDD) 189, National Policy on
the Transfer of Scientific, Technical, and Engineering Information,
establishes a national policy that, to the maximum extent possible,
the products of fundamental research shall remain unrestricted. NSDD
189 provides that no restrictions may be placed upon the conduct or
reporting of federally funded fundamental research that has not
received national security classification, except as provided in
applicable U.S. statutes. As a result, contracts confined to the
performance of unclassified fundamental research generally do not
involve any export-controlled activities.
NSDD 189 does not take precedence over statutes. NSDD 189 does
not exempt any research from statutes that apply to export controls
such as the Atomic Energy Act, as amended; the Arms Export Control
Act; the Export Administration Act of 1979, as amended; or the U.S.
International Emergency Economic Powers Act, or regulations that
implement parts of those statutes (e.g., the ITAR, the EAR, 10 CFR
part 110 and 10 CFR part 810). Thus, if items (e.g., commodities,
software or technologies) that are controlled by U.S. export control
laws or regulations are used to conduct research or are generated as
part of the research efforts, export control laws and regulations
apply to the controlled items.
(e) The Contractor shall include the substance of this clause,
including this paragraph (e), in all solicitations and subcontracts.
PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS
0
5. 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.
0
6. Subpart 970.25 is revised to read as follows:
Subpart 970.25--Foreign Acquisition
Sec.
970.2570 Buy American Act.
970.2570-1 Contract clause.
970.2571 Export control.
970.2571-1 Scope of subpart.
970.2571-2 Policy.
970.2571-3 Contract clause.
Subpart 970.25--Foreign Acquisition
970.2570 Buy American Act.
970.2570-1 Contract clause.
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) of this
section by substituting the word ``use'' for the word ``deliver.''
970.2571 Export control.
970.2571-1 Scope of subpart.
This subpart implements DOE requirements for DOE management and
operating contractors concerning compliance with U.S. export control
laws and regulations.
970.2571-2 Policy.
(a) DOE and its contractors must comply with all applicable export
control laws and regulations.
(b) Export control laws and regulations include, but are not
limited to, the Atomic Energy Act of 1954, as amended; the Arms Export
Control Act (22 U.S.C. 2751 et seq.); the Export Administration Act of
1979 (50 U.S.C. app. 2401 et seq.), as continued under the
International Emergency Economic Powers Act (Title II of Pub. L. 95-
223, 91 Stat. 1626, October 28, 1977; 50 U.S.C. 1701 et seq.); Trading
with the Enemy Act (50 U.S.C. App. 5(b), as amended by the Foreign
Assistance Act of 1961); Assistance to Foreign Atomic Energy Activities
(Title 10 of the Code of Federal Regulations (CFR) Part 810);
[[Page 64369]]
Export Administration Regulations (15 CFR parts 730 through 774);
International Traffic in Arms Regulations (22 CFR parts 120 through
130); Export and Import of Nuclear Equipment and Material (10 CFR part
110); and regulations administered by the Office of Foreign Assets
Control of the Department of the Treasury (31 CFR parts 500 through
598).
(c) Contractors seeking guidance on how to comply with export
control requirements should review the illustrative list of laws and
regulations applicable to the export of unclassified information,
materials, technology, equipment or software set forth in clause
970.5225-1. Contractors also may contact the agencies responsible for
administration of export laws and regulations applicable to a
particular export (e.g., Departments of State, Commerce, Treasury and
Energy, or the Nuclear Regulatory Commission).
(d) The contracting officer will not answer any questions a
contractor may ask regarding how to comply with export regulations. If
asked, the contracting officer should direct the contractor to export
regulations and agencies cited in the Export Clause at 970.5225-1.
(e) It is the contractor's responsibility to comply with all
applicable U.S. export control laws and regulations. This
responsibility exists independent of, and is not established or limited
by, this subpart.
970.2571-3 Contract clause.
The Contracting Officer shall insert the clause at 970.5225-1,
Compliance with Export Control Laws and Regulations (Export Clause), in
all solicitations and contracts.
Subpart 970.52--Solicitation Provisions and Contract Clauses for
Management and Operating Contracts
0
7. Section 970.5225-1 is added to read as follows:
970.5225-1 Compliance with export control laws and regulations (Export
Clause).
As prescribed in 970.2571-3, use the following clause:
COMPLIANCE WITH EXPORT CONTROL LAWS AND REGULATIONS (NOV 2015)
(a) The Contractor shall comply with all applicable U.S. export
control laws and regulations.
(b) The Contractor's responsibility to comply with all
applicable laws and regulations exists independent of, and is not
established or limited by, the information provided by this clause.
(c) Nothing in the terms of this contract adds to, changes,
supersedes, or waives any of the requirements of applicable Federal
laws, Executive Orders, and regulations, including but not limited
to--
(1) The Atomic Energy Act of 1954, as amended;
(2) The Arms Export Control Act (22 U.S.C. 2751 et seq.);
(3) The Export Administration Act of 1979 (50 U.S.C. app. 2401
et seq.), as continued under the International Emergency Economic
Powers Act (Title II of Pub. L. 95-223, 91 Stat. 1626, October 28,
1977; 50 U.S.C. 1701 et seq.);
(4) Trading with the Enemy Act (50 U.S.C. App. 5(b), as amended
by the Foreign Assistance Act of 1961);
(5) Assistance to Foreign Atomic Energy Activities (10 CFR part
810);
(6) Export and Import of Nuclear Equipment and Material (10 CFR
part 110);
(7) International Traffic in Arms Regulations (ITAR) (22 CFR
parts 120 through 130);
(8) Export Administration Regulations (EAR) (15 CFR parts 730
through 774); and
(9) Regulations administered by the Office of Foreign Assets
Control (31 CFR parts 500 through 598).
(d) In addition to the Federal laws and regulations cited above,
National Security Decision Directive (NSDD) 189, National Policy on
the Transfer of Scientific, Technical, and Engineering Information
establishes a national policy that, to the maximum extent possible,
the products of fundamental research shall remain unrestricted. NSDD
189 provides that no restrictions may be placed upon the conduct or
reporting of federally funded fundamental research that has not
received national security classification, except as provided in
applicable U.S. statutes. As a result, contracts confined to the
performance of unclassified fundamental research generally do not
involve any export-controlled activities.
NSDD 189 does not take precedence over statutes. NSDD 189 does
not exempt any research from statutes that apply to export controls
such as the Atomic Energy Act, as amended; the Arms Export Control
Act; the Export Administration Act of 1979, as amended; or the U.S.
International Emergency Economic Powers Act; or the regulations that
implement those statutes (e.g., the ITAR, the EAR, 10 CFR part 110
and 10 CFR part 810). Thus, if items (e.g., commodities, software or
technologies) that are controlled by U.S. export control laws or
regulations are used to conduct research or are generated as part of
the research efforts, the export control laws and regulations apply
to the controlled items.
(e) The Contractor shall include the substance of this clause,
including this paragraph (e), in all solicitations and subcontracts.
[FR Doc. 2015-26476 Filed 10-22-15; 8:45 am]
BILLING CODE 6450-01-P