[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); john.bashista@hq.doe.gov
(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]
BILLING CODE 6450-01-P
