[Federal Register Volume 62, Number 150 (Tuesday, August 5, 1997)]
[Rules and Regulations]
[Pages 42072-42075]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-20556]


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DEPARTMENT OF ENERGY

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

RIN 1991-AB31


Acquisition Regulation: Elimination of Non-Statutory 
Certification Requirements

AGENCY: Department of Energy.

ACTION: Final rule.

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SUMMARY: The Department of Energy (DOE) is amending the Department of 
Energy Acquisition Regulation (DEAR) to eliminate all non-statutorily 
imposed contractor and offeror certification requirements.

DATES: This final rule is effective September 4, 1997.

FOR FURTHER INFORMATION CONTACT: John R. Bashista (202) 586-8192 
(telephone); (202) 586-0545 (facsimile); <a href="/cdn-cgi/l/email-protection#ef85808781c18d8e9c87869c9b8eaf879ec18b808ac1888099"><span class="__cf_email__" data-cfemail="b0dadfd8de9ed2d1c3d8d9c3c4d1f0d8c19ed4dfd59ed7dfc6">[email protected]</span></a> 
(electronic mail).

SUPPLEMENTARY INFORMATION:

I. Background
II. Explanation of Revisions
III. Procedural Requirements
    A. Review Under Executive Order 12612.
    B. Review Under Executive Order 12866.
    C. Review Under Executive Order 12988.
    D. Review Under the Regulatory Flexibility Act.
    E. Review Under the National Environmental Policy Act.
    F. Review Under the Paperwork Reduction Act.
    G. Review Under the Small Business Regulatory Enforcement 
Fairness Act.
    H. Review Under the Unfunded Mandates Reform Act.

I. Background

    Section 4301(b)(1)(B) of the Clinger-Cohen Act of 1996, 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.
    A notice of proposed rulemaking was published in the Federal 
Register on August 29, 1996 (61 FR 45391) which constituted 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 the Clinger-Cohen Act of 1996. No comments 
were received. Accordingly, the Department adopts the proposed rule as 
final.
    The proposed rule made reference to a separate rulemaking which 
would eliminate the certification contained in section 952.209-70, 
Organizational conflicts of interest, disclosure or representation. A 
separate final rule will be published in the Federal Register to amend 
section 952.209-70 to eliminate the certification previously contained 
therein.

II. Explanation of Revisions

    1. Section 952.204-2, Security Requirements, is 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 is 
still required to identify such material, and the reasons for its 
retention, to the contracting officer. However, there is no need to 
certify the information.
    2. Section 952.204-73, Foreign ownership, control, or influence 
(FOCI) over contractor, is amended to remove the 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 made to 904.7003, 904.7005 and 
904.7103.
    3. Section 952.226-73, Energy Policy Act target group 
certification, is amended to remove the 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 is 
amended to require a representation from offerors regarding their 
status instead of a certification. In addition, technical and 
conforming amendments to the DEAR are made to subsection 926.7007 
pursuant to the amendment of subsection 952.226-73.
    4. Section 952.227-13, Patent Rights--Acquisition by the 
Government, paragraph (e)(3), is 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 are still required to submit interim and 
final reports and to disclose all inventions developed under the 
subject contract, however, there is no need to certify the information.
    5. Section 952.227-80, Technical data certification, which includes 
a 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, is removed.
    6. Section 952.227-81, Royalty Payments Certification, which 
includes a 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, to identify pertinent information about the 
royalty, is removed.
    7. Section 970.5204-57, Certification regarding workplace substance 
abuse programs at DOE facilities, is amended to remove the requirement 
for offerors to certify that they will provide to the contracting 
officer within 30 days after

[[Page 42073]]

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 are 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. In addition, 
technical and conforming amendments to the DEAR are made to sections 
909.104, 923.570-2, 923.570-3, 970.2305-4 and 970.2305-5.

III. Procedural Requirements

A. 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 rule will not have a substantial direct effect on the 
institutional interests or traditional functions of States.

B. 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 that 
Executive Order, by the Office of Information and Regulatory Affairs of 
the Office of Management and Budget (OMB).

C. 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 general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; 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. DOE has completed the 
required review and determined that, to the extent permitted by law, 
the regulations meet the relevant standards of Executive Order 12988.

D. Review Under the Regulatory Flexibility Act

    This final rule has been reviewed under the Regulatory Flexibility 
Act of 1980, Public Law 96-354, that requires preparation of an initial 
regulatory flexibility analysis for any rule that is likely to have 
significant economic impact on a substantial number of small entities. 
In the preamble to the proposed rule, DOE noted that the proposed rule 
would eliminate any compliance costs on small businesses associated 
with the administrative aspects of providing the express certifications 
which are eliminated from the Department of Energy Acquisition 
Regulation. The Department certified that this rule will not have a 
significant economic impact on a substantial number of small entities, 
and, therefore, no regulatory flexibility analysis had been prepared. 
DOE did not receive any comments on this certification.

E. 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 1021, National Environmental Policy Act 
Implementing Procedures (Categorical Exclusion A6), DOE has determined 
that this rule is categorically excluded from the need to prepare an 
environmental impact statement or environmental assessment.

F. Review Under the Paperwork Reduction Act

    No new information collection or recordkeeping requirements are 
imposed by this rule. Accordingly, no OMB clearance is required under 
the Paperwork Reduction Act of 1980 (44 U.S.C. 3501, et seq.).

G. Review Under Small Business Regulatory Enforcement Fairness Act of 
1996

    As required by 5 U.S.C. 801, DOE will report to Congress 
promulgation of the rule prior to its effective date. The report will 
state that it has been determined that the rule is not a ``major rule'' 
as defined by 5 U.S.C. 804(3).

H. Review Under the Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally 
requires a Federal agency to perform a detailed assessment of costs and 
benefits of any rule imposing a Federal Mandate with costs to State, 
local or tribal governments, or to the private sector, of $100 million 
or more. This rulemaking only affects private sector entities, and the 
impact is less than $100 million.

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

    Government procurement.

    Issued in Washington, DC on July 30, 1997.
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 amended as set forth below.
    1. The authority citations for parts 904, 909, 923, 926 and 952 
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:

[[Page 42074]]

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


952.204-2  Security

* * * * *

Security (SEP 1997)

    (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.
* * * * *
    10. 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 the clause date and paragraph 
(e) to read as follows:


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

* * * * *

Foreign Ownership, control or influence over contractor (JUL 1997)

* * * * *
    (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.
* * * * *
    11. Section 952.226-73 is amended by revising the clause date and 
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 (SEP 1997)

    (a) The offeror is:
* * * * *
    12. Section 952.227-13 is amended by revising the clause date and 
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 (SEP 1997)

* * * * *
    (e) Invention identification, disclosures, and reports.
* * * * *

[[Page 42075]]

    (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]

    13. Sections 952.227-80 and 952.227-81 are removed.
    14. Section 952.227-83 is amended by revising the introductory text 
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

    15. 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).

    16. 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.
* * * * *
    17. 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;
* * * * *
    18. 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 
(SEP 1997)

* * * * *
    (b) By submission of its offer, the officer 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. 97-20556 Filed 8-4-97; 8:45 am]
BILLING CODE 6450-01-P


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