On 12 June 2013, the Department of Energy (DOE) issued a notice of proposed rulemaking to amend the DOE Acquisition Regulation (DEAR) to make export control requirements applicable to the performance of DOE contracts. Written comments on the proposed rulemaking must be submitted by 12 July 2013.

The main changes the rule proposes are:

  • Part 925 (Foreign Acquisition) and Part 970 (DOE Management and Operating Contracts) would be amended to include new sections regarding requirements for contractors concerning the export control of items, including but not limited to unclassified information, materials, technology, equipment, or software. The new sections would make clear that DOE requires all of its contractors to comply with all export control laws, regulations, and directives effective at the time of the contract award.
  • The relevant export control laws, regulations, and directives include, but are not limited to: the Atomic Energy Act of 1954, the Arms Export Control Act, the Export Administration Act of 1979 (as continued under the International Emergency Economic Powers Act), the Trading with the Enemy Act, the DOE’s part 810 Regulations, the Nuclear Regulatory Commission’s Part 110 Regulations, the Export Administration Regulations, the International Traffic in Arms Regulations, economic sanctions regulations administered by the Treasury Department’s Office of Foreign Assets Control, the Espionage Act, DOE Order 142.3A (regarding Unclassified Foreign Visits and Assignments Program), DOE Order 551.1D (regarding Official Foreign Travel), and DOE Order 580.1A (regarding the DOE Personal Property Management Program) (collectively, “Export Control Laws”).
  • Under the proposed rule, DOE contracting officers would be required to include a clause regarding compliance with export control laws in any contract that may involve the export of any items. Contractors would be require to certify that they:
    • will comply with all Export Control Laws related to the performance of the DOE contract;
    • acknowledge that the responsibility to comply with Export Control Laws exists independent of the compliance clause;
    • will include a specified “Export Restriction Notice” in all transfers, sales, or other offerings of unclassified information, materials, technology, equipment, or software that notes that the items at issue are subject to Export Control Laws;
    • will obtain any necessary licenses, approvals, and relevant documentation to comply with Export Control Laws;
    • will timely notify the DOE Contracting Officer of any export control requirements applicable to contract requirements and identify the steps taken by the contractor to comply with such requirements; and
    • will include the export control compliance clause in any subcontracts related to the transfer, sale, or other offering of items. 

Written comments on the proposed rulemaking are due on or before 12 July 2013.