[Federal Register Volume 61, Number 169 (Thursday, August 29, 1996)]
[Proposed Rules]
[Pages 45391-45394]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-22047]


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DEPARTMENT OF ENERGY

48 CFR Parts 904, 909, 923, 926, 952 and 970

RIN 1991-AB31


Acquisition Regulation: Agency Proposal To Eliminate Non-
Statutory Certification Requirements

AGENCY: Department of Energy.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Energy (DOE) is publishing a Notice of 
Proposed Rulemaking to amend the Department of Energy Acquisition 
Regulation (DEAR) to eliminate all non-statutorily imposed contractor 
and offeror certification requirements.

DATES: Written comments on the proposed rulemaking must be received on 
or before October 28, 1996.

ADDRESSES: Comments (3 copies) should be addressed to John R. Bashista, 
Office of Policy (HR-51), Office of Procurement and Assistance 
Management, U.S. Department of Energy, 1000 Independence Avenue, SW., 
Washington, D.C. 20585.

FOR FURTHER INFORMATION CONTACT: John R. Bashista (202) 586-8192 
(telephone); (202) 586-0545 (facsimile); [email protected] 
(electronic mail).

SUPPLEMENTARY INFORMATION:

I. Background
II. Agency Proposal to Eliminate Non-Statutory Certification 
Requirements
III. Public Comments.
IV. Procedural Requirements.
    A. Review Under Executive Order 12866.
    B. Review Under the National Environmental Policy Act.
    C. Review Under the Paperwork Reduction Act.
    D. Review Under the Regulatory Flexibility Act.
    E. Review Under Executive Order 12612.
    F. Review Under Executive Order 12988.
    G. Public Hearing Determination.

I. Background

    Section 4301(b)(1)(B) of the Federal Acquisition Reform Act of 1996 
(FARA), Pub. L. 104-106, requires agencies that have procurement 
regulations containing one or more certification requirements for 
contractors and offerors that are not specifically imposed by statute 
to issue for public comment a proposal to amend their regulations to 
remove the certification requirements. Such certification requirements 
may be omitted from the agency proposal if (i) the senior procurement 
executive for the executive agency provides the head of the executive 
agency with a written justification for the requirement and a 
determination that there is no less burdensome means for administering 
and enforcing the particular regulation that contains the certification 
requirement; and (ii) the head of the executive agency approves in 
writing the retention of such certification requirement.
    This proposed rule constitutes DOE's proposal for the elimination 
of all non-statutorily imposed contractor and offeror certification 
requirements from the DEAR pursuant to section 4301(b)(1)(B) of FARA. 
DOE has not identified any regulatory certification requirement 
contained in the DEAR which it has determined should be proposed for 
retention. Consequently, the Department is not pursuing approval from 
the Secretary of Energy to retain any certification requirement not 
specifically imposed by statute. The Department invites public comment 
on its proposal to eliminate all regulatory certification requirements 
from the DEAR and on its determination that there are no certification 
requirements which should be proposed for retention.

II. Agency Proposal To Eliminate Non-Statutory Certification 
Requirements

    The following is the Department's proposal pertaining to each 
contractor and offeror certification requirement contained in the DEAR.

1. 952.204-2--Security Requirements

    Section 952.204-2 will be amended to remove the non-statutory 
certification requirement pertaining to retention by a contractor of 
classified matter after contract completion or termination. A 
contractor seeking to retain classified material would still be 
required to identify such material, and the reasons for its retention, 
to the contracting officer.

2. 952.204-73--Foreign Ownership, Control, or Influence (FOCI) Over 
Contractor

    Section 952.204-73 will be amended to remove the certification 
requirement for offerors to certify that FOCI data submitted to the 
Department is accurate, complete and current and that the disclosure is 
made in good faith; and to remove the requirement for offerors to 
certify that FOCI information previously submitted to DOE for a 
facility security clearance is accurate, complete and current. The 
disclosure requirement at DEAR 904.7003, however, will remain. In 
addition, technical and conforming amendments to the DEAR are proposed 
to 904.7003, 904.7005 and 904.7103. Prior to issuance of a final rule 
pertaining to the proposed amendment of subsection 952.204-73 herein, 
DOE will issue for public comment a separate proposed rule which will 
amend the policies currently set forth in the DEAR to be consistent 
with this rule. The separate rulemaking will implement the requirements 
of Executive Order 12829, ``National Industrial Security Program,'' and 
recent amendments to the Federal Acquisition Regulation (61 FR 31617) 
reflecting the Governmentwide applicability of the National Industrial 
Security Program Operating Manual.

3. 952.209-70--Organizational Conflicts of Interest--Disclosure or 
Representation

    Section 4304 of FARA repealed section 33 of the Federal Energy 
Administration Act of 1974 (15 U.S.C. 789), and section 19 of the 
Federal Non-nuclear Energy Research and Development Act of 1974 (42 
U.S.C. 5918) which formed the basis for DOE's organizational conflicts 
of interest (OCI) policies and procedures set forth in Subpart 909.5 of 
the DEAR. With the repeal of the statutory basis for DOE's OCI program, 
the Department is now subject to the regulatory OCI program set forth 
in Subpart 9.5 of the Federal Acquisition Regulation (FAR). Based on an 
internal review comparing the current DOE program to the FAR program, 
the Department has determined that there are several important elements 
of the current DOE program which should be retained.
    DOE published a separate proposed rule in the Federal Register on 
August 6, 1996 to codify and make mandatory DOE's new program in the 
DEAR. This separate rule will provide for the elimination of the 
certification currently contained in section 952.209-70.

[[Page 45392]]

4. 952.226-73--Energy Policy Act Target Group Certification

    Section 952.226-73 will be amended to remove the certification 
language requiring offerors to certify as to their status as one of the 
designated target groups under section 3021 of the Energy Policy Act of 
1992. This provision will be amended to require a representation from 
offerors regarding their status instead of a certification. In 
addition, technical and conforming amendments to the DEAR are proposed 
to subsection 926.7007 pursuant to the amendment of subsection 952.226-
73.

5. 952.227-13--Patent Rights--Acquisition by the Government

    Section 952.227-13, paragraph (e)(3) of the DEAR will be amended to 
remove the certification requirements for contractors in the interim 
and final reports pertaining to the disclosure of all inventions 
developed under the subject contract. Contractors will still be 
required to submit interim and final reports and to disclose all 
inventions developed under the subject contract.

6. 952.227-80--Technical Data Certification

    Section 952.227-80 will be deleted from the DEAR including the 
certification requirement for offerors to certify that they have not 
delivered or are not obligated to deliver to the Government under any 
other contract or subcontract the same or substantially the same 
technical data as included in their offer to the Department. The 
Department will use the provision at FAR 52.227-15 entitled, 
``Representation of Limited Rights Data and Restricted Computer 
Software'', instead of DEAR 952.227-80. A technical and conforming 
amendment of the prescription contained at DEAR 952.227-83 is also made 
pursuant to the proposed removal of DEAR 952.227-80.

7. 952.227-81--Royalty Payments Certification

    Section 952.227-81 will be deleted from the DEAR including the 
certification requirement for offerors to disclose whether their 
contract price includes an amount representing the payment of royalty 
by the offeror to others in connection with contract performance and, 
if so, identifying pertinent information about the royalty. The 
Department will use DEAR 952.227-9, Refund of royalties (FEB 1995) 
instead of 952.227-81.

8. 970.5204-57--Certification Regarding Workplace Substance Abuse 
Programs at DOE Facilities

    Section 970.5204-57 will be amended to remove the requirement for 
offerors to certify that they will provide to the contracting officer 
within 30 days after either notification of selection for award or 
award of a contract, their written workplace substance abuse program 
consistent with the requirements of 10 CFR 707. Instead, offerors will 
be required to agree to provide a drug-free workplace in accordance 
with 41 U.S.C. 701(a)(1) as a condition of responsibility prior to 
contract award. This amendment will implement section 4301(a)(3) of 
FARA which eliminates the statutory certification requirement in 
section 5152 of the Drug-Free Workplace Act of 1988. In addition, 
technical and conforming amendments to the DEAR are also proposed for 
sections 909.104, 923.570-2, 923.570-3, 970.2305-4 and 970.2305-5 
pursuant to the amendment of section 970.5204-57.

III. Public Comments

    DOE invites interested persons to participate by submitting data, 
views, or arguments with respect to the DEAR amendments set forth in 
this proposed rule. Three copies of written comments should be 
submitted to the address indicated in the ADDRESSES section of this 
rule. All comments received will be available for public inspection 
during normal work hours. All written comments received by the date 
indicated in the DATES section of this notice will be carefully 
assessed and fully considered prior to the effective date of these 
amendments as a final rule. Any information considered to be 
confidential must be so identified and submitted in writing, one copy 
only. DOE reserves the right to determine the confidential status of 
the information and to treat it according to its determination in 
accordance with 10 CFR 1004.11.

IV. Procedural Requirements

A. Review Under Executive Order 12866

    This 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 action was not subject to review under the Executive 
Order by the Office of Information and Regulatory Affairs.

B. Review Under the National Environmental Policy Act

    Pursuant to the Council on Environmental Quality Regulations (40 
CFR 1500-1508), the Department 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 (Categorical Exclusion A6), DOE has determined 
that this proposed rule is categorically excluded from the need to 
prepare an environmental impact statement or environmental assessment.

C. Review Under the Paperwork Reduction Act

    To the extent that new information collection or record keeping 
requirements are imposed by this rulemaking, they are provided for 
under Office of Management and Budget paperwork clearance package No. 
1910-0300. No new information collection is proposed by this rule.

D. Review Under the Regulatory Flexibility Act

    This proposed rule was reviewed under the Regulatory Flexibility 
Act of 1980, Pub. L. 96-354, which 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. This 
proposed rule would eliminate any compliance costs on small businesses 
associated with the administrative aspects of providing the express 
certifications proposed for elimination from the Department of Energy 
Acquisition Regulation. The Department 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.

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. DOE has determined that 
this proposed rule will not have a substantial direct effect on the 
institutional interests or traditional functions of States.

[[Page 45393]]

F. 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 duty to adhere to the following requirements: 
(1) eliminate drafting errors and ambiguity; (2) write regulations to 
minimize litigations; 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. The Department of Energy has completed the 
required review and determined that, to the extent permitted by law, 
the proposed regulations meet the relevant standards of Executive Order 
12988.

G. Public Hearing Determination

    DOE has concluded that this proposed rule does not involve any 
significant issues of law or fact. Therefore, consistent with 5 U.S.C. 
553, DOE has not scheduled a public hearing.

List of Subjects in 48 CFR Parts 904, 909, 923, 926, 952 and 970

    Government procurement.

    Issued in Washington, D.C. on August 26, 1996.

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

    For the reasons set forth in the preamble, Chapter 9 of Title 48 of 
the Code of Federal Regulations is proposed to be amended as set forth 
below.
    1. The authority citations for parts 904, 909, 923 and 926 continue 
to read as follows:

    Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).

PART 904--ADMINISTRATIVE MATTERS

    2. Section 904.7003 is amended by revising paragraph (d) to read as 
follows:


904.7003  Disclosure of foreign ownership, control, or influence.

* * * * *
    (d) The contracting officer shall not award or extend any contract 
subject to this subpart, exercise any options under a contract, modify 
any contracts subject to this subpart, or approve or consent to a 
subcontract subject to this subpart unless:
    (1) The contractor provides the information required by the 
solicitation provision at 48 CFR 952.204-73, and
    (2) The contracting officer has made a positive determination in 
accordance with 48 CFR 904.7004.
    3. Section 904.7005 is amended by revising paragraph (a) to read as 
follows:


904.7005  Solicitation provision and contract clause.

    (a) The contracting officer shall insert the provision at 48 CFR 
952.204-73, Foreign Ownership, Control or Influence over Contractor, in 
all solicitations for contracts subject to 48 CFR 904.7001.
* * * * *
    4. Section 904.7103 is amended by revising paragraph (a) to read as 
follows:


904.7103  Solicitation provision and contract clause.

    (a) Any solicitation, including those under simplified acquisition 
procedures, for a contract under the national security program which 
will require access to proscribed information shall include the 
provision at 48 CFR 952.204-73 with its Alternate I.
* * * * *

PART 909--CONTRACTOR QUALIFICATIONS

    5. Section 909.104-1 is amended by revising paragraph (h) to read 
as follows:


909.104-1  General Standards. (DOE coverage--paragraph (h))

    (h) For solicitations for contract work subject to the provisions 
of 10 CFR part 707, Workplace Substance Abuse Programs at DOE Sites, 
the prospective contractor must agree, in accordance with 48 CFR 
970.5204-57, Agreement Regarding Workplace Substance Abuse Programs at 
DOE Sites, to provide the contracting officer with its written 
workplace substance abuse program in order to be determined responsible 
and, thus, eligible to receive the contract award.

PART 923--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-
FREE WORKPLACE

    6. Section 923.570-2 is amended by revising paragraph (a) to read 
as follows:


923.570-2  Solicitation provision and contract clause.

    (a) The contracting officer shall insert the provision at 48 CFR 
970.5204-57, Agreement Regarding Workplace Substance Abuse Programs at 
DOE Sites, in solicitations where the work to be performed by the 
contractor will occur on sites owned or controlled by DOE and operated 
under the authority of the Atomic Energy Act of 1954, as amended, as 
specified in 48 CFR 923.570-1, Applicability.
* * * * *
    7. Section 923.570-3 is amended by revising paragraphs (b)(2) and 
(b)(3) to read as follows, and by removing paragraph (b)(4):


923.570-3  Suspension of payments, termination of contract, and 
debarment and suspension actions.

* * * * *
    (b) * * *
    (1) * * *
    (2) The contractor has failed to comply with the terms of the 
provision at 48 CFR 970.5204-57; or
    (3) Such a number of contractor employees having been convicted of 
violations of criminal drug statutes for violations occurring on the 
DOE-owned or -controlled site, as to indicate that the contractor has 
failed to make a good faith effort to provide a drug free workplace.

PART 926--OTHER SOCIOECONOMIC PROGRAMS

    8. Section 926.7007 is amended by revising paragraph (d) to read as 
follows:


926.7007  Solicitation provisions and contract clauses.

* * * * *
    (d) The contracting officer shall insert the provision at 48 CFR 
952.226-73, Energy Policy Act Target Group Representation, in 
solicitations for Energy Policy Act procurements.
* * * * *

PART 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    9. The authority citations for part 952 continue to read as 
follows:

    Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c); 42 U.S.C. 13524.


[[Page 45394]]


    10. Section 952.204-2 is amended by revising paragraphs (a) and (b) 
of the clause to read as follows:


952.204-2  Security requirements.

* * * * *

Security (XXX 19XX)

    (a) Responsibility. It is the contractor's duty to safeguard all 
classified information, special nuclear material, and other DOE 
property. The contractor shall, in accordance with DOE security 
regulations and requirements, be responsible for safeguarding all 
classified information and protecting against sabotage, espionage, 
loss or theft of the classified documents and material in the 
contractor's possession in connection with the performance of work 
under this contract. Except as otherwise expressly provided in this 
contract, the contractor shall, upon completion or termination of 
this contract, transmit to DOE any classified matter in the 
possession of the contractor or any person under the contractor's 
control in connection with performance of this contract. If 
retention by the contractor of any classified matter is required 
after the completion or termination of the contract, the contractor 
shall identify the items and types or categories of matter proposed 
for retention, the reasons for the retention of the matter, and the 
proposed period of retention. If the retention is approved by the 
contracting officer, the security provisions of the contract shall 
continue to be applicable to the matter retained. Special nuclear 
material shall not be retained after the completion or termination 
of the contract.
    (b) Regulations. The contractor agrees to comply with all 
security regulations and requirements of DOE in effect on the date 
of award.
* * * * *
    11. Section 952.204-73 is amended by removing the certification 
language following the list of questions at the end of paragraph (c) 
and preceding paragraph (d), and revising paragraph (e) to read as 
follows:


952.204-73  Foreign ownership, control, or influence over contractor 
(Representation)

* * * * *

Foreign Ownership, control or influence over contractor (XXX 19XX)

* * * * *
    (c) * * *
    (d) * * * * *
    (e) The offeror shall require any subcontractors having access 
to classified information or a significant quantity of special 
nuclear material to provide responses to the questions in paragraph 
(c) of this provision directly to the DOE contracting officer.
* * * * *
    12. Section 952.226-73 is amended by revising the introductory text 
to paragraph (a) of the provision to read as follows:


952.226-73  Energy Policy Act target group representation.

* * * * *

Energy Policy Act target group representation (XXX 19XX)

    (a) The offeror is:
* * * * *
    13. Section 952.227-13 is amended by revising paragraph (e)(3) of 
the clause to read as follows:


952.227-13   Patent rights-acquisition by the Government.

* * * * *

Patent rights-acquisition by the Government (XXX 19XX)

* * * * *
    (e) Invention identification, disclosures, and reports.
* * * * *
    (3) The Contractor shall furnish the Contracting Officer the 
following:
    (i) Interim reports every 12 months (or such longer period as 
may be specified by the Contracting Officer) from the date of the 
contract, listing all subject inventions during that period, and 
including a statement that all subject inventions have been 
disclosed (or that there are not such inventions), and that such 
disclosure has been made in accordance with the procedures required 
by paragraph (e)(1) of this clause.
    (ii) A final report, within 3 months after completion of the 
contracted work listing all subject inventions or containing a 
statement that there were no such inventions, and listing all 
subcontracts at any tier containing a patent rights clause or 
containing a statement that there were no such subcontracts.
* * * * *


952.227-80 and 952.227-81  [Removed]

    14. Sections 952.227-80 and 952.227-81 are removed.
    15. Section 952.227-83 is amended by revising the prescription to 
read as follows:


952.227-83  Rights in technical data solicitation representation.

    Pursuant to 48 CFR 927.7004-1 and 927.7004-2, include this 
provision and the legend at FAR 52.215-12 in solicitations which may 
result in contracts for research, development, or demonstration work or 
contracts for supplies in which delivery of required technical data is 
contemplated.
* * * * *

PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS

    16. 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, Public 
Law 95-91 (42 U.S.C. 7254).

    17. Subsection 970.2305-4 is amended by revising paragraph (a) to 
read as follows:


970.2305-4   Solicitation provision and contract clause.

    (a) The contracting officer shall insert the provision at 48 CFR 
970.5204-57, Agreement Regarding Workplace Substance Abuse Programs at 
DOE Sites, in solicitations for the management and operation of DOE-
owned or -controlled sites operated under the authority of the Atomic 
Energy Act of 1954, as amended.
* * * * *
    18. Subsection 970.2305-5 is amended by revising paragraph (b)(2) 
to read as follows:


970.2305-5  Suspension of payments, termination of contract, and 
debarment and suspension actions.

* * * * *
    (b) * * *
    (1) * *  *
    (2) The contractor has failed to comply with the terms of the 
provision at 48 CFR 970.5204-57;
* * * * *
    19. Subsection 970.5204-57 is amended by revising the section and 
provision heading, removing paragraph (d) of the provision, and 
revising paragraphs (b) and (c) of the provision to read as follows:


970.5204-57  Agreement regarding workplace substance abuse programs at 
DOE facilities.

* * * * *

AGREEMENT REGARDING WORKPLACE SUBSTANCE ABUSE PROGRAMS AT DOE SITES 
(XXX 19 XX)

* * * * *
    (b) By submission of its offer, the offeror agrees to provide to 
the contracting officer, within 30 days after notification of 
selection for award, or award of a contract, whichever occurs first, 
pursuant to this solicitation, its written workplace substance abuse 
program consistent with the requirements of 10 CFR part 707.
    (c) Failure of the offeror to agree to the condition of 
responsibility set forth in paragraph (b) of this provision, renders 
the offeror unqualified and ineligible for award.

[FR Doc. 96-22047 Filed 8-28-96; 8:45 am]
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