[Federal Register Volume 60, Number 238 (Tuesday, December 12, 1995)]
[Rules and Regulations]
[Pages 63645-63648]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30236]



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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: Final rule.

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SUMMARY: The Department amends the Department of Energy Acquisition 
Regulation (DEAR) to clarify its 

[[Page 63646]]
provision on legislative lobbying cost prohibition. To avoid any 
misunderstandings or disagreements between contractors and the 
Department, the criteria for cost allowability are being revised to 
provide clear direction on when and under what circumstances management 
and operating contractors will be reimbursed for costs of providing 
information or expert advice to Congress or a State legislature. While 
contractors may incur the costs of responding to a request for 
information from Congressional Members or staff, reimbursement of 
travel costs will require the additional step of a written request 
signed by a Member of Congress.

EFFECTIVE DATE: January 11, 1996.

FOR FURTHER INFORMATION CONTACT: Michael L. Righi, Office of Policy 
(HR-51), U.S. Department of Energy, 1000 Independence Avenue, SW., 
Washington, DC 20585, (202-586-8175).

SUPPLEMENTARY INFORMATION:

I. Background
    A. Discussion
    B. Disposition of Comments
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

    The proposed rule was published on October 18, 1994, at 59 FR 52505 
to amend the DEAR standard clause on legislative lobbying cost 
prohibition, DEAR 970.5204-17, which is applicable to all DOE 
management and operating (M&O) contracts. It included a new requirement 
that the contractor notify the Department as soon as practicable when 
providing information or expert advice to Congress or a State 
legislature. It also included a new requirement that the contractor 
provide a disclaimer that the information or expert advice represents 
the views of the contractor and not the Department.
    Five sets of comments were received from organizations outside of 
the Department.

B. Disposition of Comments

1. Statutory Treatment of Laboratories (Pub. L. 100-202)
    Two of the commenters referred to language contained in Pub. L. 
100-202, Section 305 of the Energy and Water Development Appropriation 
Act for 1988. A variation of the same language was enacted in the 
National Defense Authorization Act for Fiscal Years 1988 and 1989, Pub. 
L. 100-180, Section 3131. The language from the authorization act 
extends beyond treatment of just laboratories and was codified at 42 
U.S.C. 7256a(b)(2).
    As a practical matter, neither the 1988 Appropriations Act nor the 
1988/1989 Defense Authorization Act prohibits the Department from 
issuing clarifying regulations on the circumstances under which 
lobbying costs will be reimbursed. In fact, both prohibitions 
specifically contemplate implementing regulations. Further, neither of 
these Acts prohibit the Department from defining the parameters for 
reimbursement or imposing documentation requirements on the contractor 
for reimbursement of these costs. Rather, these Acts appear simply to 
prohibit the Department from making a blanket prohibition of 
unallowability. Since the language in this rulemaking describes the 
parameters for reimbursement of this category of cost, we do not 
believe it violates the prohibition contained in 42 U.S.C. 7256a(b)(2).
2. Distinction Between Requests From Congress and State Legislatures
    Two of the commenters questioned creating different treatment for 
costs depending on whether they were incurred in response to a 
Congressional request or a request from a State legislature. More 
specifically, 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.
    The U.S. Congress has oversight responsibility over the Department 
and its operations, and appropriates funds for its use. This authority 
and responsibility are not delegated to, or shared by, the State 
legislatures. Thus, we believe that the difference in treatment between 
Congressional requests and requests from State legislatures is 
justified because of the higher level of responsibility and 
responsiveness owed by the Department to the U.S. Congress.
3. Deletion of Reference to Congressional Record Notice
    One commenter questioned the deletion of the parenthetical 
reference ``(* * * including a Congressional Record notice requesting 
testimony or statements for the record at a regularly scheduled 
hearing) * * *.'' This language referred to types of requests where the 
response costs would be allowable.
    A general request or invitation for ``interested parties'' to 
present views or testimony to Congress on a particular issue, such as 
that appearing in a Congressional Record notice, is open to the public 
at large and is usually general in nature. Members of the public whose 
views are specifically sought are individually invited. It is not 
unreasonable for the Department to require its contractors be 
specifically invited in writing to testify before providing for 
reimbursement of travel costs.
4. Record Keeping Requirements and Proposed Deletion of FAR 31.205-
22(f)
    Two commenters disagreed with the Department's conclusion that the 
NOPR contained no new record keeping requirements. These commenters 
felt that the burden under this initiative ran counter to the current 
streamlining efforts in the Federal government.
    The Department believes that the additional documentary burden, 
compared to that currently imposed on the Department's contractors, is 
not unreasonable and is consistent with FAR Part 31, generally, and FAR 
31.205-22, specifically. It is also consistent with Office of 
Management and Budget Circular A-21 paragraph 24, and a recently 
proposed amendment to FAR 31.201-2, Determining allowability (59 FR 
47776, September 16, 1994, FAR Case 93-20). The proposal to amend FAR 
31.201-2 will make it clear that the contractor is to be responsible 
for maintaining records to support its cost claims and authorizes the 
contracting officer to disallow costs which are inadequately supported. 
While the proposed rulemaking to amend FAR 31.201-2 has not been 
finalized, 41 U.S.C. 256(f)(2) now provides that the FAR shall require 
that a contracting officer may not resolve any questioned costs until 
the contracting officer has obtained adequate documentation, and the 
opinion of the contract auditor, with respect to such costs. The 
amendment to 41 U.S.C. 256 resulted from Section 2151 of the Federal 
Acquisition Streamlining Act of 1994, Pub. L. 103-355.
    Another commenter pointed out that the Civilian Agency Acquisition 
Council (CAAC) and the Defense Acquisition Regulations Council (DARC) 
have published a proposal to delete paragraph (f) of FAR 31.205-22 (See 
59 FR 47776, September 16, 1994, FAR Case 93-6). Paragraph (f) of the 
DEAR clause parallels paragraph (f) of FAR 31.205-22. The language 
proposed for deletion provides that time logs, 

[[Page 63647]]
calendars and other records shall not be required to be created when 
the lobbying employee engages in lobbying less than 25% of the 
employee's compensated hours, or when the contractor has not materially 
misstated its allowable or unallowable costs, of any nature, within the 
last 5 years.
    When the two proposed rules amending FAR Part 31 discussed above 
are put together, the result is that the specific requirement of record 
keeping is no longer stated, but the contractor is made responsible for 
maintaining adequate records to support its cost claims for all 
categories of cost. The Department will review the issue of deleting 
paragraph (f) of the DEAR clause once the rulemaking amending FAR 
31.205-22 is finalized.
5. Distinction Between Oral and Written Requests
    One commenter objected to the bifurcated system for cost 
allowability which provides that oral requests are adequate to support 
some costs while written requests are required to support others. In 
particular, the rulemaking places a greater burden to support costs 
associated with travel.
    Both FAR 31.205-22 and OMB Circular A-21 paragraph 24 place a 
higher burden on the contractor to support costs of transportation, 
lodging and meals. When costs of transportation, lodging or meals are 
associated with responding to a request for information from Congress 
or a State legislature, the costs are likely to increase dramatically. 
Additionally, these are the areas of cost probably most vulnerable to 
abuse.
6. Advance Notification Requirement
    One commenter objected to the bifurcated requirement in the newly 
proposed paragraph (h). While acknowledging that the contracting 
officer should be made aware of all requests for information or expert 
advice regardless of how the request was communicated, the commenter 
disagreed with the requirement that the contracting officer be notified 
in advance of responding in the case of a written request. As pointed 
out by that commenter, the contractor could conceivably receive the 
request by facsimile or mail with less than a 48-hour turnaround. 
(There was also some confusion by a different commenter whether the 
contractor would have to have the contracting officer's acknowledgement 
before responding to the request for information.)
    The commenter recommended deleting the language ``in the case of a 
written request.'' The language in paragraph (h) is revised to require 
the contractor to ``advise the contracting officer in advance or as 
soon as practicable.''

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 (b)(2), 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. This final rule will have no preemptive effect; will not have 
any effect on existing Federal laws; and will only clarify the existing 
regulations on this subject. The revised clauses apply only to 
contracts which would be awarded after the effective date of the final 
rule and, thus, have no retroactive effect. Therefore, DOE certifies 
that this final rule meets the requirements of Sections 2(a) and (b)(2) 
of Executive Order 12778.

C. Review Under the Regulatory Flexibility Act

    This final rule was reviewed under the Regulatory Flexibility Act 
of 1980, Pub. L. 96-354, that requires preparation of a regulatory 
flexibility analysis for any rule which is likely to have significant 
economic impact on a substantial number of small entities. 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

    This rule will require only an insignificant addition to the data 
collection required for the Standard Forms 294 and 295. Accordingly, no 
OMB clearance is required by the Paperwork Reduction Act of 1980 (44 
U.S.C. 3501 et seq.).

E. Review Under Executive Order 12612

    Executive Order 12612 (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, and 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.
    Today's final rule will revise certain policy and procedural 
requirements. However, DOE has determined that none of the revisions 
will have a substantial direct effect on the institutional interests or 
traditional functions of States.

F. Review Under the National Environmental Policy Act

    DOE has concluded that this rule falls into a class of actions that 
are categorically excluded from the National Environmental Policy Act 
of 1969 (42 U.S.C. 4321, 4331-4335, 4341-4347 (1976)) under 10 CFR Part 
1021, Appendix A to Subpart D as rulemakings that are strictly 
procedural, such as rulemakings establishing contracting practices 
(Exclusion A6). Therefore, this rule does not require an environmental 
impact statement or an environmental assessment pursuant to NEPA.

List of Subjects in 48 CFR Part 970

    Government procurement.
Richard H. Hopf,
Deputy Assistant Secretary for Procurement and Assistance Management.

PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS

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

    Authority: Sec. 161 of the Atomic Energy Act of 1954 (42 U.S.C. 
2201), sec. 644 of the Department of Energy Organization Act, Pub. 
L. 95-91 (42 U.S.C. 7254).

    2. Section 970.5204-17 is amended by revising clause paragraph 
(b)(1), redesignating paragraphs (b)(2) and 

[[Page 63648]]
(b)(3) as (b)(3) and (b)(4), adding a new 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 or as soon as practicable.

[FR Doc. 95-30236 Filed 12-11-95; 8:45 am]
BILLING CODE 6450-01-P