[Federal Register Volume 62, Number 149 (Monday, August 4, 1997)]
[Rules and Regulations]
[Pages 41877-41879]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-20402]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

45 CFR Part 74


Miscellaneous Amendments

AGENCY: Department of Health and Human Services, (HHS).

ACTION: Final rule.

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SUMMARY: This final rule will remove appendixes I and J, which contain 
the text of Office Management and Budget (OMB) Circulars A-128 and A-
133, from 45 CFR part 74. It will also update several items to conform 
them to the Federal Acquisition Streamlining Act of 1994 and correct a 
confusing statement which resulted from two typographical errors in 
that portion of OMB Circular A-110 upon which this statement is based.

EFFECTIVE DATE: This rule is effective September 3, 1997.

FOR FURTHER INFORMATION CONTACT:
Charles Gale, Director, Office of Grants Management, 202-690-6377; for 
the hearing impaired only: TDD 202-690-6415.

SUPPLEMENTARY INFORMATION:  Pursuant to the President's Regulatory 
Reform Initiative, we have identified appendixes I and J of 45 CFR part 
74 as unnecessary. These appendixes are being removed because they 
simply repeat the texts of Circulars A-133 (an out-of-date version of 
the Circular) and A-128 respectively. In addition, various references 
to appendixes I and J are also being removed.
    Copies of Circulars A-128 and A-133 are widely available 
electronically; they may also be obtained from OMB and from the HHS 
Office of Grants Management.
    We are also making the following non-substantive changes and 
corrections:
    1. We are updating the definition of ``small awards'' in section 
74.2 and changing ``small purchase'' threshold to ``simplified 
acquisition'' threshold everywhere that it appears. These actions are 
to conform these terms to the Federal Acquisition Streamlining Act of 
1994 (FASA) (108 Stat. 3243).

[[Page 41878]]

    2. We are correcting a confusing statement in 45 CFR 74.44(e) which 
resulted from two typographical errors in the equivalent paragraph OMB 
Circular A-110 upon which this statement is based. We are accomplishing 
this correction by removing the work ``and,'' which had erroneously 
been included between the term ``pre-award review'' and the term 
``procurement documents,'' and adding an ``s'' to the work ``request'' 
in the term ``request for proposals.''
    3. We are correcting an erroneous amendment to 45 CFR part 74's 
implementation of the Copeland ``Anti-Kickback'' Act (18 U.S.C. and 40 
U.S.C. 276c) which was published in the final amendments of March 22, 
1996 (61 FR 117147). (45 CFR part 74, appendix A)

Regulatory Impact Analyses

Executive Order 12866

    This final rule was submitted to OMB.

Regulatory Flexibility Act

    The Secretary, in accordance with the Regulatory Flexibility Act (5 
U.S.C. 605(b)), has reviewed this final rule before publication and, by 
approving it, certifies that it will not have a significant impact on a 
substantial number of small entities.

Paperwork Reduction Act

    This final rule does not include information collection 
requirements requiring approval under the Paperwork Reduction Act of 
1995 (44 U.S.C. Ch. 35).

Justification for Waiver of Proposed Rulemaking

    As a matter of longstanding policy set forth at 36 FR 2532 (Feb. 5, 
1971), the Department of Health and Human Services normally follows the 
notice of proposed rulemaking and public comment (NPRM) procedures set 
forth in the Administrative Procedure Act (APA), 5 U.S.C. 553, even 
when it is not required by the APA to do so. The APA, however, provides 
for an exception to the NPRM procedures when an agency finds that there 
is good cause for dispensing with such procedures on the grounds that 
they are impracticable, unnecessary or contrary to the public interest.
    We find that the publication of this regulation in proposed form 
would be unnecessary and contrary to the public interest for the 
following reasons:
     This final rule removes from 45 CFR part 74 appendixes I 
and J, both of which are unnecessary since they simply repeat the 
language of OMB Circulars A-128 and A-133, which Circulars are 
referenced in the body of the regulation and otherwise readily 
available to the public. We conclude that public comment on this non-
substantive change is unnecessary.
     Also, this regulation makes several non-substantive 
amendments to update the definition of the term ``small award,'' and to 
change the term ``small purchase'' threshold to ``simplified 
acquisition'' threshold, which actions are to conform these terms to 
those in the Federal Acquisition Streamlining Act of 1994 (FASA). 
Although we are not specifically required by FASA to make these 
changes, FASA, along with previous acquisition acts, have generally 
been used to provide definitions for these terms. Since these changes 
merely reflect those which are required by law for contracts, we 
conclude that public comment on them would serve no useful purpose and 
is unnecessary.
     Further, this regulation corrects a confusing statement in 
45 CFR 74.44(e), which resulted from two typographical errors in the 
equivalent portion of OMB Circular A-110 upon which it is based. It is 
our view that public comment on these minor, straightforward, non-
substantive corrections is unnecessary and is contrary to public 
interest, since it would only delay making these helpful corrections.
     Finally, this regulation would also correct an erroneous 
amendment to 45 CFR part 74's implementation of the Copeland ``Anti-
Kickback'' Act (18 U.S.C. 874 and 40 U.S.C. 276c), which we had 
published in the March 22, 1996 final amendments to 45 CFR part 74. (61 
FR 11747). Since this is a non-substantive correction which is required 
for proper implementation of this provision, we find that public 
comment is unnecessary and is contrary to the public interest, since it 
would delay making this helpful correction.

List of Subjects in 45 CFR part 74

    Accounting, Administrative practice and procedures, Grants 
administration, Reporting and recordkeeping requirements.

(Catalog of Federal Domestic Assistance Number does not apply.)

    Dated: February 25, 1997.
Donna E. Shalala,
Secretary.

    Accordingly, title 45, part 74, of the Code of Federal Regulations 
is amended as follows:

PART 74--UNIFORM ADMINISTRATIVE REQUIREMENTS FOR AWARDS AND 
SUBAWARDS TO INSTITUTIONS OF HIGHER EDUCATION, HOSPITALS, OTHER 
NONPROFIT ORGANIZATIONS, AND COMMERCIAL ORGANIZATIONS; AND CERTAIN 
GRANTS AND AGREEMENTS WITH STATES, LOCAL GOVERNMENTS AND INDIAN 
TRIBAL GOVERNMENTS

    1. The authority citation for part 74 is revised to read as 
follows:

    Authority: 5 U.S.C. 301; OMB Circular A-110 (58 FR 62992, 
November 29, 1993).

    2. The table of contents is amended by removing appendixes I and J.


Sec. 74.2   [Amended]

    3. In section 74.2 the definition of ``Small awards'' is amended by 
removing the words ``small purchase threshold fixed at 41 U.S.C. 
403(11) (currently $25,000)'' and adding, in their place, the words 
``simplified acquisition threshold fixed at 41 U.S.C. 403(11) 
(currently $100,000)''.


Sec. 74.26   [Amended]

    4. Section 74.26(a) is amended by removing the words ``(See 
appendix I to this part.)''.
    5. Section 74.26(c) is amended by removing the words ``(See 
appendix J to this part.)''.
    6. Section 74.44 is amended by revision paragraph (e) to read as 
follows:


Sec. 74.44   Procurement procedures.

* * * * *
    (e) Recipients shall, on request, make available for HHS awarding 
agency pre-award review, procurement documents such as requests for 
proposals or invitations for bids, independent cost estimates, etc., 
when any of the following conditions apply:
* * * * *


Secs. 74.44, 74.46, 74.48, and appendix A paragraph 8   [Amended]

    7. Remove the words ``small purchase threshold'' and add, in their 
place, the words ``simplified acquisition threshold'' in the following 
places:
    a. Section 74.44(e)(3), (e)(4), and (e)(5);
    b. Section 74.46;
    c. Section 74.48(a) and (d); and
    d. Appendix A, paragraph 8.

Appendix A To Part 74 [Amended]

    8. Paragraph 2 of appendix A is amended by removing the amount 
``$100,000'' and adding, in its place, the amount ``$2,000''.

Appendix I To Part 74 [Removed]

    9. Appendix I is removed.

[[Page 41879]]

Appendix J To Part 74 [Removed]

    10. 10. Appendix J is removed.
[FR Doc. 97-20402 Filed 8-1-97; 8:45 am]
BILLING CODE 4150-04-M