42072 Federal Register / Vol. 62, No. 150 / Tuesday, August 5, 1997 / Rules and Regulations

a population of less than 10,000 or (ii) is not

within the outer boundaries of a city or town

if the city or town has a population of 50,000

or more and if the adjacent urbanized and

urbanizing areas have a population density of

more than 100 per square mile.

(4) ‘‘Urban area’’ means any Metropolitan

Area (MA) as defined by the Office of

Management and Budget (OMB) and any

non-MA that meets one of the following

criteria:

(i) A geographical area within the

jurisdiction of any incorporated city, town,

borough, village, or other unit of general local

government, except county or parish, having

a population of 10,000 or more inhabitants.

(ii) That portion of the geographical area

within the jurisdiction of any county, town,

township, or similar governmental entity

which contains no incorporated unit of

general local government, but has a

population density equal to or exceeding

1,500 inhabitants per square mile; or

(iii) That portion of any geographical area

having a population density equal to or

exceeding 1,500 inhabitants per square mile

and situated adjacent to the boundary of any

incorporated unit of general local

government which has a population of

10,000 or more inhabitants. (Reference:

Intergovernmental Cooperation Act of 1968,

40 U.S.C. 535.)

[FR Doc. 97–20544 Filed 8–4–97; 8:45 am]

BILLING CODE 6820–24–P

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.

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);

john.bashista@hq.doe.gov (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 ClingerCohen 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
Federal Register / Vol. 62, No. 150 / Tuesday, August 5, 1997 / Rules and Regulations 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:
42074 Federal Register / Vol. 62, No. 150 / Tuesday, August 5, 1997 / Rules and Regulations

(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.

* * * * *
Federal Register / Vol. 62, No. 150 / Tuesday, August 5, 1997 / Rules and Regulations 42075

1Certain regulations are being excluded from

these revisions because they already include the

appropriate nomenclature, will be revised in the

near future to reflect the nomenclature and other

changes, or will be redesignated to other parts of the

CFR.

(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

DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

49 CFR Chapter X

[STB Ex Parte No. 567]

Nomenclature Changes in the Board’s

Regulations

AGENCY: Surface Transportation Board.

ACTION: Final rules.

SUMMARY: The Board revises its

regulations to make nomenclature

changes to reflect the transfer of

functions from the Interstate Commerce

Commission to the Surface

Transportation Board.

EFFECTIVE DATE: These rules are effective

August 5, 1997.

FOR FURTHER INFORMATION CONTACT:

James W. Greene, (202) 565–1578. [TDD

for the hearing impaired: (202) 565–

1695.]

SUPPLEMENTARY INFORMATION: The

Surface Transportation Board (Board) is

revising its regulations to reflect

nomenclature changes effected by the

ICC Termination Act of 1995, Pub. L.

No. 104–88, 109 Stat. 803 (1995)

(ICCTA). The ICCTA abolished the

Interstate Commerce Commission (ICC)

and eliminated many of its functions.

Some of the ICC’s retained functions

were transferred directly to the Board,

while others were transferred directly to

the Secretary of Transportation (and

subsequently delegated to the Federal

Highway Administration (FHWA)). The

ICC’s regulations in 49 CFR chapter X

were, however, transferred en masse to

the Board, after which some were

subsequently transferred to the FHWA

and redesignated in 49 CFR chapter III.

In various rulemaking proceedings

that it has conducted since the ICCTA

was enacted, the Board has eliminated

or revised many of its regulations, and,

in the revised regulations, we have

made the necessary nomenclature

changes to reflect the transfer of

functions from the ICC to the Board.

Nevertheless, numerous regulations in

49 CFR Chapter X continue to contain

incorrect references to the ICC, and we

are revising those regulations to remove

the ICC references and add references to

the Board.1

Small Entities

The Board certifies that this rule will

not have a significant economic effect

on a substantial number of small

entities.

Environment

This action will not significantly

affect either the quality of the human

environment or the conservation of

energy resources.

Decided: July 29, 1997.

By the Board, Chairman Morgan and Vice

Chairman Owen.

Vernon A. Williams,

Secretary.

For the reasons set forth in the

preamble, parts 1002 through 1332

(except in part 1201 subpart A (ii)16.(a),

part 1206, part 1249, and part 1312) of

title 49, chapter X, of the Code of

Federal Regulations are amended as

follows:

In the list below, in the order listed,

remove the term indicated in the left

column from wherever it appears in

parts 1002 through 1332 (except in part

1201 subpart A (ii)16.(a), part 1206, part

1249, and part 1312), and add in its

place the term indicated in the right

column: