[Federal Register Volume 59, Number 200 (Tuesday, October 18, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-25751]


[[Page Unknown]]

[Federal Register: October 18, 1994]


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DEPARTMENT OF ENERGY

48 CFR Part 970

RIN 1991-AB08

 

Acquisition Regulation; Legislative Lobbying Cost Prohibition

AGENCY: Department of Energy (DOE).

ACTION: Proposed Rule.

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SUMMARY: The Department is proposing to amend the Department of Energy 
Acquisition Regulation (DEAR) to clarify its legislative lobbying cost 
prohibition. To avoid any misunderstandings or disagreements between 
contractors and the Department, the criteria for cost allowability are 
being more clearly stated.

DATES: Written comments must be received by November 17, 1994.

ADDRESSES: Comments should be addressed to: Michael L. Righi, Office of 
Procurement and Assistance Management (HR-521.2), Department of Energy, 
1000 Independence Avenue, SW., Washington, D.C. 20585.

FOR FURTHER INFORMATION CONTACT: Michael L. Righi (202-586-8175) at the 
address above.

SUPPLEMENTARY INFORMATION:

I. Background
II. Detailed Changes
III. Public Comments
IV. Procedural Requirements
    A. Regulatory Review
    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

    Under 42 U.S.C. 7256a, the Department's national security program 
contracts for amounts over $100,000 do not permit, as allowable, costs 
incurred by a contractor to influence legislative action. The only 
exceptions are costs incurred ``in response to a request from Congress 
or a State legislature'' to provide ``information of a factual, 
technical, or scientific nature, or advice of experts, with respect to 
topics directly related to the performance of the contract.'' The 
current standard clause, DEAR 970.5204-17, which is applicable to all 
DOE management and operating (M&O) contracts, permits legislative 
requests to be ``written or oral, prior or contemporaneous'' and to 
come from Members, committees, or their staff. The Department is 
required to reimburse reasonable costs, including travel, meals, and 
lodging in connection with providing the information. The clause does 
not address a contractor's requirements to notify the Department prior 
to providing the information or expert advice or to provide a 
disclaimer that the information or expert advice represents the views 
of the contractor and not the Department. To avoid any 
misunderstandings or disagreements between the contractor and the 
Department, the standard clause is being revised.

II. Detailed Changes

    The clause in part 970 found at 970.5204-17 and entitled 
``Legislative Lobbying Cost Prohibition'' is proposed to be amended to 
revise the criteria for allowability of M&O contractor legislative 
lobbying costs. Oral or written requests from Members of Congress or 
their staff would continue to suffice to justify reimbursement of 
reasonable, otherwise allowable costs, except that if a contractor 
seeks reimbursement for travel, meals, and lodging, the request for 
information or expert advice must be in advance and must be written and 
signed by a Member.
    Unlike congressional requests, a request for information or expert 
advice from a State legislator would be required to be written and 
signed by the legislator (not staff) in advance, in all cases, to 
justify any reimbursement of costs.
    In providing information or expert advice, the contractor must 
indicate that it is not presenting the views of the Department.
    In the case of a written request, the contractor must advise the 
Department of a request before providing the information or expert 
advice. In the case of an oral request, the contractor must advise the 
Department of the request as soon as practicable.

III. Public Comments

    Interested persons are invited to participate by submitting data, 
views, or arguments with respect to the DEAR amendments set forth in 
this rule. Three copies of written comments should be submitted to the 
address indicated in the ADDRESSES section of this notice. All comments 
received will be available for public inspection in the DOE Reading 
Room, 1E-190, Forrestal Building, 1000 Independence Avenue, SW., 
Washington, D.C. 20585, between the hours of 9 a.m. and 4 p.m., Monday 
through Friday, except Federal holidays. All written comments received 
on or before the date specified in the beginning of this notice and all 
other relevant information will be considered by DOE before taking 
final action. Comments received after that date will be considered to 
the extent that time allows. Any person submitting information which 
that person believes to be confidential and which may be exempt from 
public disclosure should submit one complete copy, as well as an 
additional copy from which the information claimed to be confidential 
has been deleted. DOE reserves the right to determine the confidential 
status of the information or data and to treat it according to its 
determination. The Department's generally applicable procedures for 
handling information which has been submitted in a document and may be 
exempt from public disclosure are set forth in 10 CFR 1004.11.
    The Department has concluded that this proposed rule does not 
involve a substantial issue of fact or law and that the rule should not 
have a substantial impact on the nation's economy or large numbers of 
individuals or businesses. Therefore, pursuant to Public Law 95-91, the 
DOE Organization Act, and the Administrative Procedure Act (5 U.S.C. 
553), the Department does not plan to hold a public hearing on this 
proposed rule.

IV. Procedural Requirements

A. Review under Executive Order 12866

    Today's regulatory action has been determined not to be a 
``significant regulatory action'' under Executive Order 12866, 
``Regulatory Planning and Review,'' (58 Fed. Reg. 51735, October 4, 
1993). Accordingly, today's action was not subject to review under the 
Executive Order by the Office of Information and Regulatory Affairs.

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, any effect on existing Federal law or 
regulation, and any 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 proposal 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, Public Law 96-354, which requires preparation of a regulatory 
flexibility analysis for any rule which is likely to have a significant 
economic impact on a substantial number of small entities. This rule 
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 Office of Management and Budget 
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.

F. National Environmental Policy Act

    Pursuant to the Council on Environmental Quality Regulations (40 
CFR Parts 1500-1508), the Department of Energy has established 
guidelines for its compliance with the provisions of the National 
Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.). 
Pursuant to appendix A of subpart D of 10 CFR part 1021, National 
Environmental Policy Act Implementing Procedures (57 FR 15122, 15152, 
April 24, 1992) (Categorical Exclusion A6), the Department of Energy 
has determined that this rule is categorically excluded from the need 
to prepare an environmental impact statement or environmental 
assessment.

List of Subjects in 48 CFR Part 970

    Government procurement.

    Issued in Washington, D.C., on October 11, 1994.
Richard H. Hopf,
Deputy Assistant Secretary for Procurement and Assistance Management.

    For the reasons set out in the preamble, Part 970 of Chapter 9 of 
Title 48 of the Code of Federal Regulations is proposed to be amended 
as set forth below.

PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS

    1. The authority citation for part 970 continues to read as 
follows:

    Authority: Section 161 of the Atomic Energy Act of 1954 (42 
U.S.C. 2201), section 644 of the Department of Energy Organization 
Act, Public Law 95-91 (42 U.S.C. 7254), section 201 of the Federal 
Civilian Employee and Contractor Travel Expenses Act of 1985 (41 
U.S.C. 420) and section 1534 of the Department of Defense 
Authorization Act, 1986, Public Law 99-145 (42 U.S.C. 7256a), as 
amended.

    2. Section 970.5204-17 is amended by revising paragraph (b)(1), 
redesignating paragraphs (b)(2) and (3) as (b)(3) and (4), adding a 
paragraph (b)(2), and adding paragraph (h) to read as follows:


970.5204-17  Legislative lobbying cost prohibition.

* * * * *
    (b) * * *
    (1) Providing Members of Congress, their staff members, or staff 
of cognizant legislative committees, in response to a request 
(written or oral, prior or contemporaneous) from Members of 
Congress, their staff members, or staff of cognizant legislative 
committees, or as otherwise directed by the Contracting Officer, 
information or expert advice of a factual, technical, or scientific 
nature, with respect to topics directly related to the performance 
of the contract or proposed legislation. In providing this 
information or expert advice, the contractor shall indicate to the 
recipient that it is not presenting the views of DOE. Reasonable 
costs for transportation, lodging, or meals incurred by contractor 
employees for the purpose of providing such information or advice 
shall also be reimbursable, provided the request for information or 
expert advice is a prior written request signed by a Member of 
Congress, and provided such costs also comply with the allowable 
cost provisions of the contract.
    (2) Providing State legislatures or subdivisions thereof, their 
staff members, or staff of cognizant legislative committees, in 
response to a prior written request from a State legislator, or as 
otherwise directed by the Contracting Officer, information or expert 
advice of a factual, technical, or scientific nature, with respect 
to topics directly related to the performance of the contract or 
proposed legislation. In providing this information or expert 
advice, the contractor shall indicate to the recipient that it is 
not presenting the views of DOE. Reasonable costs for 
transportation, lodging, or meals incurred by contractor employees 
shall also be reimbursable, provided such costs also comply with the 
allowable costs provision of the contract.
* * * * *
    (h) In providing information or expert advice under paragraphs 
(b)(1) and (b)(2) of this clause, the contractor shall advise the 
Contracting Officer in advance, in the case of a written request, or 
as soon as practicable in the case of an oral request.

[FR Doc. 94-25751 Filed 10-17-94; 8:45 am]
BILLING CODE 6450-01-P