[Federal Register Volume 67, Number 15 (Wednesday, January 23, 2002)]
[Proposed Rules]
[Pages 3266-3368]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-1]



[[Page 3265]]

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Part II

Governmentwide Debarment and Suspension (Nonprocurement) and 
Governmentwide Requirements for Drug-Free Workplace (Grants); Proposed 
Rule
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Office of Personnel Management
Department of Agriculture
Department of Energy
Small Business Administration
National Aeronautics and Space Administration
Department of Commerce
Social Security Administration
Office of National Drug Control Policy
Department of State
Agency for International Development
Peace Corps
Inter-American Foundation
African Development Foundation
Department of Labor
Federal Mediation and Conciliation Service
Department of Defense
Department of Education
National Archives and Records Administration
Department of Veterans Affairs
Environmental Protection Agency
General Services Administration
Department of the Interior
Federal Emergency Management Agency
Department of Health and Human Services
National Science Foundation
    National Foundation on the Arts and the Humanities
    National Endowment for the Arts
    National Endowment for the Humanities
    Institute of Museum and Library Services
Corporation for National and Community Service
Department of Transportation

  Federal Register / Vol. 67, No. 15 / Wednesday, January 23, 2002 / 
Proposed Rules  

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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 970

DEPARTMENT OF AGRICULTURE

7 CFR Parts 3017 and 3021

DEPARTMENT OF ENERGY

10 CFR Parts 606, 607, and 1036

SMALL BUSINESS ADMINISTRATION

13 CFR Parts 145 and 147

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

14 CFR Parts 1265 and 1267

DEPARTMENT OF COMMERCE

15 CFR Parts 26 and 29

SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 436 and 439

OFFICE OF NATIONAL DRUG CONTROL POLICY

21 CFR Parts 1404 and 1405

DEPARTMENT OF STATE

22 CFR Parts 137 and 139

AGENCY FOR INTERNATIONAL DEVELOPMENT

22 CFR Parts 208 and 210

PEACE CORPS

22 CFR Parts 310 and 312

INTER-AMERICAN FOUNDATION

22 CFR Parts 1006 and 1008

AFRICAN DEVELOPMENT FOUNDATION

22 CFR Parts 1508 and 1509

DEPARTMENT OF LABOR

29 CFR Parts 94 and 98

FEDERAL MEDIATION AND CONCILIATION SERVICE

29 CFR Parts 1471 and 1472

DEPARTMENT OF DEFENSE

32 CFR Parts 25 and 26

DEPARTMENT OF EDUCATION

34 CFR Parts 84, 85, 668 and 682

NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

36 CFR Parts 1209 and 1212

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 44 and 48

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 32 and 36

GENERAL SERVICES ADMINISTRATION

41 CFR Parts 105-68 and 105-74

DEPARTMENT OF THE INTERIOR

43 CFR Parts 12, 42 and 43

FEDERAL EMERGENCY MANAGEMENT AGENCY

44 CFR Parts 17 and 21

DEPARTMENT OF HEALTH AND HUMAN SERVICES

45 CFR Parts 76 and 82

NATIONAL SCIENCE FOUNDATION

45 CFR Parts 620 and 630

NATIONAL FOUNDATION ON THE ARTS AND THE HUMANITIES

National Endowment for the Arts

45 CFR Parts 1154 and 1155

National Endowment for the Humanities

45 CFR Parts 1169 and 1173

Institute of Museum and Library Services

45 CFR Parts 1185 and 1186

CORPORATION FOR NATIONAL AND COMMUNITY SERVICE

45 CFR Parts 2542 and 2545

DEPARTMENT OF TRANSPORTATION

49 CFR Parts 29 and 32


Governmentwide Debarment and Suspension (Nonprocurement) and 
Governmentwide Requirements for Drug-Free Workplace (Grants)

AGENCIES: Office of Personnel Management; Department of Agriculture; 
Department of Energy; Small Business Administration; National 
Aeronautics and Space Administration; Department of Commerce; Social 
Security Administration; Office of National Drug Control Policy; 
Department of State; Agency for International Development; Peace Corps; 
Inter-American Foundation; African Development Foundation; Department 
of Labor; Federal Mediation and Conciliation Service; Department of 
Defense; Department of Education; National Archives and Records 
Administration; Department of Veterans Affairs; Environmental 
Protection Agency; General Services Administration; Department of the 
Interior; Federal Emergency Management Agency; Department of Health and 
Human Services; National Science Foundation; National Foundation on the 
Arts and the Humanities, National Endowment for the Arts, National 
Endowment for the Humanities, Institute of Museum and Library Services; 
Corporation for National and Community Service, and Department of 
Transportation.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This document proposes substantive changes and amendments to 
the governmentwide nonprocurement common rule for debarment and 
suspension and the governmentwide rule implementing the Drug-Free 
Workplace Act of 1988. The most significant changes are--
    First, this proposed common rule on debarment and suspension would 
limit the mandatory lower tier application of an exclusion to the first 
procurement level under a nonprocurement covered transaction. If an 
agency decides that its nonprocurement activities are sufficiently 
vulnerable to misconduct, poor performance or abuse at levels below the 
first procurement, the agency may add agency-specific language to the 
proposed common rule to prohibit lower-tier procurement transactions 
with excluded persons. Agencies that do not have sufficient 
vulnerability at lower levels to justify the devotion of resources to 
enforce exclusions at lower levels need not add language to the common 
rule.
    Second, this proposed common rule on debarment and suspension would 
set the dollar threshold on prohibited lower-tier procurement 
transactions with excluded persons at $25,000. This should help clarify 
an ambiguity in the current common rule created when Congress, in 
enacting the Federal Acquisition Streamlining Act of 1994, elected to 
change the terminology in the direct Federal acquisition law from 
``small purchase threshold'' to ``simplified acquisition threshold'' 
and increased the level from $25,000 to

[[Page 3267]]

$100,000. The ambiguity was created because the current common rule is 
linked to the small purchase threshold fixed at 10 U.S.C. 2304(g) and 
41 U.S.C. 253(g), but states the current level to be $25,000.
    Third, both this proposed rule on debarment and suspension and the 
proposed rule on drug-free workplace requirements would eliminate the 
mandate for agencies and participants to obtain written certifications 
from awardees or persons with whom they propose to enter into covered 
transactions. The proposed rules will allow agencies and participants 
the flexibility to use other means if they so choose, such as award 
conditions or electronic access to the GSA List on the internet, to 
enforce compliance with the rules.
    Fourth, the proposed rule on drug-free workplace requirements would 
be separated from this proposed rule on debarment and suspension. The 
drug-free workplace requirements currently are in subpart F of the 
Debarment and Suspension Nonprocurement Common Rule. Moving those 
requirements to a separate part will allow them to appear in a more 
appropriate location nearer other requirements used predominately by 
award officials.
    Finally, this document is prepared in plain language text and 
format to make it easier to read and use.
    Under the provisions of section 7(o) of the Department of Housing 
and Urban Development Act (42 U.S.C. 2535(o)), any Department of 
Housing and Urban Development (HUD) proposed or interim rule that is 
issued for public comment is subjec to pre-publication Congressional 
review for a period of 15 days. Therefore, HUD is not joining in 
today's publication but will propose the common amendments in a 
separate rulemaking.

DATES: Comments must be received on or before March 25, 2002.

ADDRESSES: Comments on these proposed rules should be addressed to: 
Robert F. Meunier, Office of Grants and Debarment (3901-R), 
Environmental Protection Agency, 1200 Pennsylvania Avenue NW., 
Washington, DC 20460. Comments may be submitted via e-mail 
([email protected]), but must be made in the text of the message 
and not as an attachment.

FOR FURTHER INFORMATION CONTACT: Robert F. Meunier, Debarring Official, 
Environmental Protection Agency, by phone at (202) 564-5399 or by e-
mail ([email protected]). Information about the Interagency 
Committee on Debarment and Suspension can be found on their home page 
(http://www.dot.gov/ost/m60/grant/net.htm). A chart showing where each 
agency has codified the common rule may be obtained by accessing the 
Office of Management and Budget's home page (http://www.whitehouse.gov/omb), under the heading ``Grants Management.''

SUPPLEMENTARY INFORMATION:   

A. Background

    Executive Order 12549, ``Debarment and Suspension,'' issued 
February 18, 1986 (3 CFR 1986 Comp., p. 189) authorized a 
governmentwide system for debarment and suspension under Federal 
nonprocurement activities. The Office of Management and Budget (OMB) 
published initial guidelines to all Executive branch agencies in 1986 
and the agencies published a common rule on May 26, 1988 (53 FR 19160). 
The common rule provides uniform requirements for debarment and 
suspension by Executive branch agencies to protect assistance, loans, 
benefits and other nonprocurement activities from waste, fraud, abuse 
and poor performance, similar to the system used for Federal 
procurement activities under Subpart 9.4 of the Federal Acquisition 
Regulation (FAR).
    On January 31, 1989, the agencies amended the common rule by adding 
a new subpart F to implement the Drug-Free Workplace Act of 1988. (See 
54 FR 4946.)
    On August 16, 1989, Executive Order 12689, ``Debarment and 
Suspension,'' (3 CFR 1989 Comp., p. 235) directed agencies to reconcile 
technical differences existing between the procurement and 
nonprocurement debarment systems, and to give exclusions under either 
system reciprocal effect across procurement and nonprocurement 
activities. In 1994 Congress passed the Federal Acquisition 
Streamlining Act of 1994 (Public Law 103-355, 108 Stat. 3327) mandating 
reciprocity for exclusions issued under the procurement and 
nonprocurement debarment systems.
    On April 12, 1999, OMB asked the Interagency Suspension and 
Debarment Committee (ISDC) to review the common rule and propose 
amendments that would: (a) resolve unnecessary technical differences 
between the procurement and nonprocurement systems; (b) revise the 
current rule in a plain language style and format; and (c) make other 
improvements to the common rule consistent with the purpose of the 
suspension and debarment system. The ISDC's proposed amendments form 
the basis of this Notice of Proposed Rulemaking.

Format of the Proposed Debarment and Suspension Common Rule

    The proposed rule adopts a different approach to the structure and 
format of the common rule. It is formatted so that matters common to a 
particular class of readers, or to a particular subject, appear 
together. This allows readers easy access to information that may be of 
particular importance to them. The rule also contains tables and a 
chart to assist the reader in locating or clarifying information 
presented in the text of the rule.
    The proposed rule uses fewer legal terms, and uses more commonly 
understood words along with shorter sentences. It also presents 
information in a question-and-answer format. Wherever possible, the 
rule uses the active voice.
    Due to the new format of the proposed rule, requirements would 
appear in a different order than they do under the current common rule. 
The following table will assist you in locating and comparing the 
requirements under both rules.

------------------------------------------------------------------------
                                        Current nonprocurement debarment
 Proposed nonprocurement debarment and     and suspension common rule
    suspension common rule sections                 sections
------------------------------------------------------------------------
  __.25...............................  none
  __.50...............................  none
  __.75...............................  none
Subpart A:                              ................................
  __.100..............................  __.100
  __.105..............................  none
  __.110..............................  __.100, __.115
  __.115..............................  __.200
  __.120..............................  __.215
  __.125..............................  __.110(c)
  __.130..............................  __.110(c)
  __.135..............................  __.110(a)
  __.140..............................  __.210
  __.145..............................  __.105 (ineligible)
Subpart B:                              ................................
  __.200..............................  __.110(a)
  __.205..............................  __.225
  __.210..............................  __.110(a)(1)
  __.215..............................  __.110(a)(2)
  __.220..............................  __.110(a)(1)(ii)
  __.225..............................  none
Subpart C:                              ................................
  __.300..............................  __.220(b), __.225
  __.305..............................  __.220(b)
  __.310..............................  __.220
  __.315..............................  __.510
  __.320..............................  __.225
  __.325..............................  __.510
  __.330..............................  __.510, Appendix A
  __.335..............................  __.510, Appendix B
  __.340..............................  Appendix A, Appendix B
  __.345..............................  __.510(c)
  __.350..............................  __.510(c)
  __.355..............................  __.510, Appendix B
  __.360..............................  __.510(c)
Subpart D:                              ................................
  __.400..............................  __.200, __.215
  __.405..............................  __.200(a)

[[Page 3268]]

 
  __.410..............................  __.200(b)
  __.415..............................  __.220
  __.420..............................  __.200(b)
  __.425..............................  __.505(d), (e)
  __.430..............................  __.505(d), (e)
  __.435..............................  __.115(a), __.510
  __.440 [Reserved]...................  ................................
  __.445..............................  __.225(b)
  __.450..............................  __.510 Appendix A
  __.455..............................  __.510 Appendix B
Subpart E:                              ................................
  __.500..............................  __.105, __.500
  __.505..............................  __.505, __.510
  __.510..............................  __.105, __.500
  __.515..............................  __.500
  __.520..............................  __.505
  __.525..............................  __.505(c)
  __.530..............................  none
Subpart F:                              ................................
  __.600..............................  __.311, __.410(a)
  __.605..............................  __.300, __.400
  __.610..............................  __.310, __.410
  __.615..............................  __.312, __.411
  __.620..............................  __.115
  __.625..............................  __.325, __.420
  __.630..............................  __.325, __.420
  __.635..............................  __.315
  __.640..............................  __.315
  __.645..............................  __.315
Subpart G:                              ................................
  __.700..............................  __.400(a) & (b)
  __.705 (a)..........................  __.400(c)
  __.705 (b)..........................  __.412(b)(1)(i) & __.413(a)
  __.705 (c)..........................  none
  __.710..............................  none
  __.715..............................  __.411
  __.720..............................  __.412(a)
  __.725(a)...........................  __.412(a)
  __.725(b)...........................  __.105, definition of Notice,
                                         second sentence; none
  __.730..............................  none
  __.735..............................  __.412(b), __.413(b), none
  __.740(a)...........................  __.410(b)
  __.740(b)...........................  __.412(b)
  __.745..............................  __.413(b)(1), __.412(b)(2)
  __.750..............................  __.413(b)
  __.755..............................  __.413(a) & (c)
  __.760..............................  __.415
Subpart H:                              ................................
  __.800..............................  __.305
  __.805..............................  __.312
  __.810..............................  none
  __.815..............................  __.313(a)
  __.820..............................  __.313(a); __.105, definition of
                                         Notice, none
  __.825..............................  none
  __.830..............................  __.313(b), __.314(b), none
  __.835..............................  __.310
  __.840..............................  __.313(b)
  __.845..............................  none, __.314(a) & (b)(1)
  __.850..............................  __.314(c)(1)
  __.855..............................  __.314(c)(2), none
  __.860..............................  none, See 48 CFR 9.406-1(a)
  __.865..............................  __.320(a)
  __.870..............................  __.314(a) & (d)
  __.875..............................  __.320(c)
  __.880..............................  __.320(c)
  __.885..............................  __.320(b)
Subpart I__Definitions:                 ................................
  __.900-__.1020......................  __.105
------------------------------------------------------------------------

Reconciliation of Technical Differences

    The proposed rule incorporates some changes that are designed to 
bring the procurement and nonprocurement debarment rules into greater 
conformity with each other. However, the ISDC recommended against 
issuing a single consolidated rule, or adopting uniform application of 
the rule as impractical and confusing. This decision was based on the 
ISDC's view that the procurement and nonprocurement communities have 
sufficiently different relationships with participants, distinct 
methods to procure services or to provide benefits or support, varying 
options for dealing with waste, fraud, abuse, and poor performance, and 
very different types of exposure to risk.
    The ISDC therefore focused its attention on ensuring that both the 
procurement and nonprocurement rules contained the same level of 
substantive due process in: (a) Applying the same minimum criteria to 
suspend or propose debarment; (b) notifying respondents of actions; (c) 
making a record to support a decision; (d) providing for fact-finding; 
(e) addressing mitigating and other factors; (f) applying evidentiary 
standards; and (g) issuing decisions.
    Section __.220 of the proposed rule would bring the common rule 
into closer conformity with the FAR by limiting the mandatory down-tier 
application of an exclusion under the common rule to the first 
procurement level. Unless Federal consent is required at a lower level, 
if an agency wishes to apply an exclusion at levels lower than the 
first procurement level (e.g., to subcontractors or suppliers), the 
agency must specifically include that option in its published version 
of the common rule. The ISDC recommended this change because it 
recognizes that some agencies' nonprocurement transactions are highly 
vulnerable to the impact of misconduct and poor performance at levels 
below the first procurement, while other agencies' transactions are 
not. This approach allows those Federal agencies with vulnerability at 
lower tiers to prohibit those transactions, while providing flexibility 
to those agencies whose programs' exposure does not merit the 
additional administrative burden of enforcing exclusions at lower 
tiers.
    In addition, the threshold level for application of an exclusion 
for all procurement-type transactions under a nonprocurement 
transaction would be set at $25,000. This corrects confusion created 
when the term ``small purchase threshold,'' formerly found at 10 U.S.C. 
2304(g) and 41 U.S.C. 403(11) (set at $25,000), was changed under the 
Federal Acquisition Streamlining Act of 1994 to ``simplified 
acquisition threshold'' and set at $100,000. Because the current common 
rule uses the ``small purchase threshold,'' as the point beneath which 
an exclusion does not apply, it has caused confusion as to whether the 
exclusion level is $25,000 or $100,000. The procurement debarment 
system has already made regulatory changes to subpart 9.4 of the FAR to 
keep its exclusion level at $25,000.
    In addition to ``suspension'' and ``debarment,'' the common rule 
recognizes a status called ``voluntary exclusion.'' Subpart 9.4 of the 
FAR makes no reference to such a status. The status of voluntary 
exclusion is a remnant from older rules and practices in the 
nonprocurement community that pre-date the Governmentwide suspension 
and debarment system. It was once used because respondents found the 
``voluntary'' nature of the prohibition to be more acceptable. It was, 
in fact, a special term used for those who accepted ineligibility 
pursuant to an administrative agreement. The ISDC found that there are 
benefits to the nonprocurement community in retaining the ability of 
Federal agencies to accept voluntary exclusion agreements in place of 
debarment or suspension. However, with the creation of the 
Governmentwide system, voluntary exclusion agreements that offer 
protection only to the agency initiating action in the matter, are 
inconsistent with the purposes of the Governmentwide system. 
Accordingly, under the proposed rule agencies may still negotiate 
voluntary exclusion agreements; however, those exclusions must apply 
equally to all Federal agencies.
    Section __.860 of the proposed rule is new to the common rule. This 
section identifies factors that a debarring official may regard as 
mitigating or aggravating factors. It includes factors that currently 
appear under Sec. 9.406-1(a) of the FAR. These factors currently offer 
useful guidance to the Government and contractors with respect to 
matters the

[[Page 3269]]

debarring official should consider in making a debarment decision.

Enhancements to the Proposed Debarment and Suspension Common Rule

    This proposed rule would make several modifications to the existing 
common rule to enhance the effectiveness of, cure some gaps in, or 
clarify requirements and processes under the existing rule. None of 
these changes are intended to alter the fundamental principles inherent 
to debarment and suspension actions. All information related to the 
purposes and procedures applicable to the current rule as reflected in 
its preambles at 53 FR 19160-19171 (May 26, 1988), and 60 FR 33036-
33040 (June 26, 1995), shall continue to apply under this proposed and/
or any final rule unless otherwise stated, or inconsistent with these 
provisions. Therefore, notwithstanding the technical existence of any 
cause for debarment, affiliation, imputable conduct, or other 
actionable condition, debarment or suspension may not be used to 
punish. Nor may it be used to coerce a respondent into accepting 
criminal, civil or administrative sanctions. An agency may address its 
legitimate suspension and debarment concerns before, after or in 
conjunction with sanctions, so long as suspension or debarment is 
otherwise appropriate to protect the Federal Government. In all cases, 
suspending and debarring officials must use business judgment and 
discretion in electing to use the suspension and debarment authority 
under this rule to protect government activities from potential waste, 
fraud, abuse, poor performance and non-compliance with applicable laws, 
regulations or conditions related to nonprocurement transactions. Where 
an agency has the authority to act under either the procurement or 
nonprocurement rule, it may act under either rule to avoid confusion or 
duplication.
    The proposed rule would move definitions from Subpart A of the 
current rule to Subpart I. Under the proposed rule, a new term is used 
to refer to ineligibility that arises from sources other than 
discretionary actions taken under either the common rule or subpart 9.4 
of the FAR. This type of ineligibility may arise by operation of a 
statute, executive order, or other directive and may not be subject to 
the discretion of the agency suspending or debarring official. In 
addition, it may have special attributes that are inconsistent with the 
discretionary actions initiated under the common rule or the FAR. For 
example, persons convicted under the Clean Air Act or Clean Water Act 
are automatically ineligible for procurement and nonprocurement 
participation at the violating facility which gave rise to the 
conviction until the EPA Debarring Official certifies that the 
conditions giving rise to the conviction have been corrected. The 
proposed rule refers to these and other special forms of ineligibility 
as ``disqualifications.'' Disqualifications must be listed on the 
General Services Administration (GSA), List of Parties Excluded or 
Disqualified from Federal Procurement and Nonprocurement Programs 
(List), but are not subject to the uniform procedural requirements of 
this rule. (Note that agencies with special provisions related to 
disqualification may, at their option, include those requirements in 
subpart J or other subparts appended to this rule as a convenience to 
the agency or the public.) For discretionary actions that result in 
ineligibility under the uniform suspension and debarment procedures 
covered by the common rule and the FAR, this proposed rule uses the 
term ``exclusion.'' Therefore, an ineligibility may result from either 
a disqualification or an exclusion.
    The proposed rule adds a new definition for ``agent or 
representative'' as is used under the FAR and clarifies the definition 
of ``participant.'' It also proposes a more useful definition of the 
types of activities that are encompassed within the term ``principal.''
    The term ``voluntary exclusion'' is narrowed under this proposed 
rule to conform to the principles of governmentwide protection and give 
it the same scope of coverage as other exclusions.
    One significant change to the definitions under the proposed common 
rule relates to the term ``conviction.'' Previously, the common rule 
defined conviction as a judgment that had to be ``entered'' by the 
court before it was recognized as constituting a ground for suspension 
or debarment. In recent years, courts have used many vehicles to 
conclude criminal matters short of ``entry'' of a judgment of 
conviction, such as probation before judgment, pre-trial diversion, and 
simply withholding final judgment upon satisfaction of certain 
conditions in lieu of incarceration or payment of a fine. Currently, 
the withholding of entry of the judgment in a criminal matter often 
means that a respondent remains under a temporary suspension until 
criminal proceedings are concluded. This does not benefit either the 
government or the respondent because the government is unable to 
conclude the matter by final decision or with a compliance agreement 
with any certainty that a baseline for risk assessment can be finally 
established. From a business point of view, the withholding of an 
``entry'' of judgment under these conditions should not preclude 
Federal agencies from taking appropriate action to protect the 
government. It makes no sense for an agency to have to prove the 
underlying misconduct or conditions all over again, merely because the 
court decided not to ``enter'' its judgment. Under the proposed rule, 
the suspending or debarring official would be able to consider criminal 
matters resolved by means short of dismissal as final so that 
appropriate administrative action can be taken, or a remedial plan of 
compliance concluded. This change would benefit both the government and 
a respondent.
    The proposed rule would significantly clarify confusion under the 
existing rule as to who may be suspended or debarred and the impact of 
that decision on a suspended or debarred person. An agency may exclude 
any ``person'' as defined in the rule that may be reasonably expected 
to participate in a ``covered transaction'' (see Sec. __.135).
    Even if a person is excluded, agencies could still award a covered 
transaction to that person when it is in the best interest of the 
government to do so. The proposed rule sets forth more clearly the two 
situations that allow an otherwise excluded person to participate in a 
nonprocurement transaction. The first is when an agency grants an 
exception to the excluded person to participate in a covered 
transaction (see Sec. __.120). Exceptions are transaction-specific 
decisions that the designated agency official must justify in writing. 
The second situation that allows an excluded person to participate in a 
transaction is when an agency is entering into an exempt transaction 
(see Sec. __.215). Exempt transactions have special status and are not 
regarded as covered transactions. Exempt transactions may or may not be 
transaction-specific, and do not require the written justification of a 
designated agency official before entering into them. Each agency is 
responsible for clarifying the applicability or non-applicability of an 
exemption to any of its transactions in its agency-specific rule.
    Proposed Sec. __.215 contains a new exemption that has been added 
at paragraph (e). This exemption is proposed because most often the 
transactions listed within this paragraph are regulatory vehicles that 
should not be automatically precluded to an otherwise excluded person. 
In cases

[[Page 3270]]

where an agency uses a ``permit,'' ``license'' or other similar 
transaction to approve or authorize government-regulated activity, but 
desires to subject issuance of the transaction to the GSA List, it must 
do so in its regulations or other guidance.
    Sections __.615, __.715 and __.805 of the proposed rule would amend 
the notice provisions of the existing rule. The proposed rule would 
authorize an agency to use facsimile and e-mail to notify a respondent 
of debarment or suspension actions affecting that person. The proposed 
modification to the existing rule would recognize the advances made in 
communications technology since the original rule was published and 
would provide a better system for confirming receipt of notices that 
were sent.
    The current common rule identifies the two conclusions that a 
suspending official must make before imposing a suspension. While the 
current rule provides some guidance as to how a suspending official may 
conclude that ``adequate evidence'' of a cause for action may exist, it 
is silent as to how the official may conclude that ``immediate action'' 
is necessary to protect the public interest. The proposed rule would 
add information at Sec. __.705(c) that reflects the court's decision in 
Coleman American Moving Services, Inc. v. Weinberger, 716 F. Supp. 1405 
(M. D. Ala. 1989), that a suspending official need not make a separate 
and specific finding as to immediate need, but may reach that 
conclusion from inferences reasonably drawn from the facts and 
circumstances present.
    Also, Sec. __.735 of the proposed rule would authorize the 
suspending official to preclude fact-finding where a State attorney 
general's office, State or local prosecutor advises that conducting 
fact-finding would prejudice substantial interests of the State or 
local government in pending or contemplated legal proceedings based 
upon the same facts as the suspension. This language is necessary to 
close a gap in the current rule that allows a Federal agency to suspend 
on the basis of a Federal, State or local indictment, but only 
addresses denial of fact-finding in the context of advice received from 
Federal officials. In suspension and debarment matters, there is no 
distinction made between indictments issued at the Federal, state or 
local level. All indictments for alleged misconduct relevant to 
nonprocurement and procurement risks provide a basis for Federal 
concern. Therefore, where the prospect of an administrative fact-
finding proceeding could prejudice the outcome of a matter at the state 
or local level, the suspending official must have the same authority to 
deny fact-finding to protect those proceedings as for matters based 
upon actions initiated at the Federal level. Accordingly, Secs. __.735 
and __.760 of the proposed rule would reflect equality of treatment to 
be given to our respective levels of government in suspension matters.
    Proposed Secs. __.730 and __.825 would identify information that a 
respondent must provide the suspending or debarring official when 
contesting a suspension or proposed debarment. This information is 
relevant to the official's decision and is frequently requested during 
the presentation of matters in opposition. By highlighting this 
requirement in the rule, a respondent can be prepared in advance to 
address the issue at the time of the respondent's initial written 
submission, or during the oral presentation if one is made. These 
sections of the proposed rule also clarify that a general denial of 
allegations contained in the notice of action is insufficient to 
establish a genuine dispute over a material fact. A suspending or 
debarring official can only determine if a respondent is entitled to a 
fact-finding proceeding if the respondent's submission in opposition 
contains enough specific information to identify the issue in question 
and establish a basis for dispute.
    Section __.515(b) of the proposed rule includes additional 
information to be contained on the GSA List or within its database. 
Under the current rule, other than the name and address of an excluded 
person, there is currently insufficient information on the List or in 
the GSA database that can be used to confirm the identity of a listed 
person under a commonly used name. Confirmation requires contact with 
the designated Federal official by telephone or other means, a search 
of records if available, and confirmation in accordance with that 
agency's Routine Use Notice. The proposed rule would permit the 
database for the electronic version of the GSA List to include a field 
for Taxpayer Identification Numbers (TINs) and Social Security Numbers 
(SSNs) if legally appropriate. The List and current database contains 
names of individuals, business entities and organizations that can be 
the same or confusingly similar. The current commercial world uses TINs 
and SSNs widely and freely to confirm identities for all kinds of 
transactions.
    The proposed rule would position GSA to compile that information in 
the event the law should allow public access to it. Otherwise, the 
current system will remain commercially inefficient. We specifically 
invite comment on the proposed inclusion of this provision in the 
common rule.
    The proposed rule would also eliminate a requirement under the 
current rule that the exclusions be enforced through a chain of paper 
certifications submitted to an agency or between participants under a 
covered transaction. Certification as a means of enforcement has proven 
to be administratively awkward and impossible for some transactions 
that do not even involve an ``award.'' Advancements in technology allow 
anyone with access to a personal computer to receive up-to-date 
information about a person's eligibility by accessing the GSA list on 
line. This makes the certification process largely obsolete. The 
proposed rule would allow agencies to employ any method of enforcement 
of the GSA List that is administratively and commercially feasible. 
This change is consistent with Congress' intent under the Federal 
Acquisition Reform Act of 1994 (Public Law 104-208), to eliminate 
unnecessary certifications.

Proposed Separate Part To Implement the Drug-Free Workplace Act

    Finally, this document proposes to establish a separate part for 
the drug-free workplace requirements that are in subpart F of the 
existing rule. The only requirement of the Drug Free Workplace Act of 
1988 that relates to suspension and debarment is incorporated into the 
causes for debarment. The remaining provisions of subpart F are used 
predominantly by recipients of Federal assistance awards and by Federal 
officials who make and administer those awards, which distinguishes 
them from the common rule that is used mainly by Federal suspension and 
debarment officials and respondents. Moving the requirements of the 
current subpart F into a part separate from the common rule allows each 
Federal agency to place it in an appropriate location within the Code 
of Federal Regulations where it may be more easily used by recipients 
and Federal awarding and administering officials.
    The proposed separate part to incorporate the provisions of Subpart 
F, like the proposed update to the debarment and suspension common 
rule, is reformatted and rewritten in plain language. Due to the 
proposed reformatting, requirements would appear in a different order 
than they do in the current Subpart F. The following table will assist 
you in locating and comparing the requirements under both rules.

[[Page 3271]]



------------------------------------------------------------------------
 Proposed drug-free workplace common rule   Current drug-free workplace
                 sections                       common rule sections
------------------------------------------------------------------------
.100.....................................  .600(a)
.105(a)(1)...............................  .610(a)
.105(a)(2)...............................  none
.105(b)..................................  none
.110.....................................  .610(b)
.115.....................................  .600(b)
.200.....................................  .630(a)(1)
.200(a)..................................  certification alt I. A. (g)
.200(b)..................................  certification alt I. B.
.205(a)..................................  certification alt I. A. (a)
.205(b)..................................  certification alt I. A. (a)
.205(c)..................................  certification alt I. A. (d)
.210.....................................  certification alt I. A. (c)
.215.....................................  certification alt I. A. (b)
.220.....................................  .630 (e)
.225(a)..................................  .635 (a)(1)
.225(a)..................................  certification alt I. A. (e)
.225(b)..................................  .635(a)(2)
.225(b)..................................  certification alt I. A. (f)
.230(a)..................................  appendix C. 5
.230(b)..................................  Appendix C. 6
.230(c)..................................  Appendix C. 7
.300.....................................  .630(a)(1)
.300.....................................  certification alt II.
.300(b)..................................  .635(b)
.400(a)..................................  none
.400(b)..................................  none
.500.....................................  .615(b)
.505.....................................  .615(c)
.510.....................................  .620(a)
.510.....................................  .............................
.515.....................................  .625
.605.....................................  .605(b)(7)
.610.....................................  .605(b)(1)
.615.....................................  .605(b)(2)
.620.....................................  none
.625.....................................  .605(b)(3)
.630.....................................  D&S common rule
.635.....................................  .605(b)(4)
.640.....................................  .605(b)(5)
.645.....................................  .605(b)(6)
.650.....................................  none
.655.....................................  .605(b)(9)
.660.....................................  .605(b)(8)
.665.....................................  .605(b)(10)
.670.....................................  D&S common rule
                                           .600(a)(1)
                                           .600(a)(2)
                                           .610(c)
                                           .615(a)
D&S common rule..........................  .620(b)
                                           .630(a)(2)
                                           .630(b)
                                           .630(c)
                                           .630(d)
                                           Appendix C. 1
                                           Appendix C. 3
                                           Appendix C. 4
                                           Appendix C. 8
------------------------------------------------------------------------

    The proposed separate part would make one substantive change to the 
current subpart F. The proposed substantive change would require 
Federal agencies to obtain recipients' assurances of compliance with 
drug-free workplace requirements and not require them to obtain 
certifications from recipients. This substantive change implements 
section 809 of the National Defense Authorization Act for Fiscal Year 
1998 (Public Law 105-85, 111 Stat. 1838-1839) that amended the Drug-
Free Workplace Act of 1988. The body of the proposed separate part 
therefore includes the substantive requirements for recipients that now 
are in the text of the drug-free workplace certification in appendix C 
to the common rule.
    The proposed separate part also would make some definitional 
changes to the current subpart F. First, it includes a definition of 
``debarment,'' since it no longer would be a subpart within the common 
rule that relies on the definitions in that part. Second, the proposed 
separate part uses the term ``award,'' rather than the term ``grant,'' 
to include the grants, cooperative agreements, and other assistance 
instruments covered by the drug-free workplace requirements. The term 
``grant'' then is proposed to be redefined to bring it into conformance 
with the use of that term established by the Federal Grant and 
Cooperative Agreement Act (currently at 31 U.S.C. chapter 63). Doing so 
should help avoid confusion about the applicability of the drug-free 
workplace requirements to assistance instruments other than grants. To 
accommodate the change to the term ``award,'' the proposed separate 
part includes a definition for the term ``cooperative agreement'' and 
uses the term ``recipient,'' rather than ``grantee.''

Impact Analysis--Executive Order 12866

    This is not a significant regulatory action under section 3(f)(4) 
of Executive Order 12866, ``Regulatory Planning and Review.''

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 605(b)) requires that, for 
each rule with a ``significant economic impact on a substantial number 
of small entities,'' an analysis must be prepared describing the rule's 
impact on small entities and identifying any significant alternatives 
to the rule that would minimize the economic impact on small entities.
    The participating agencies certify that this proposed rule, if 
published as a final rule, would not have a significant impact on a 
substantial number of small entities. This proposed rule addresses 
Federal agency procedures for suspension and debarment. It clarifies 
current requirements under the Nonprocurement Common Rule for Debarment 
and Suspension by reorganizing information and presenting that 
information in a plain language, question-and-answer format.

C. Unfunded Mandates Act of 1995

    The Unfunded Mandates Act of 1995 (Public Law 104-4) requires 
agencies to prepare several analytic statements before proposing any 
rule that may result in an annual expenditures of $100 million by 
State, local, Indian Tribal governments or the private sector. Since 
this proposed rule, if published as a final rule, would not result in 
expenditures of this magnitude, the participating agencies certify that 
such statements are not necessary.

D. Paperwork Reduction Act

    The participating agencies certify that this proposed rule, if 
published as a final rule, would not impose additional reporting or 
record-keeping requirements under the Paperwork Reduction Act of 1995 
(44 U.S.C. chapter 35).

E. Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996, (5 U.S.C. 
804). This proposed rule, if published as a final rule, would not: 
Result in an annual effect on the economy of $100 million or more; 
result in an increase in cost or prices; or have significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with foreign-based companies in domestic and export markets.

F. Executive Order 13132: Federalism

    This proposed rule, if published as a final rule, would not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the

[[Page 3272]]

distribution of power and responsibilities among the various levels of 
government. Therefore, in accordance with section 6 of Executive Order 
13132, the participating agencies have determined that this rule does 
not have sufficient federalism implications to warrant the preparation 
of a federalism summary impact statement.

Text of the Proposed Common Rules

    The text of the proposed common rules appear below:
    1. [Part/Subpart] __ is revised to read as follows:

[PART/SUBPART] __ GOVERNMENTWIDE DEBARMENT AND SUSPENSION 
(NONPROCUREMENT)

Sec.
__.25  How is this part organized?
__.50  How is this part written?
__.75  Do terms in this part have special meanings?
Subpart A--General
__.100  What does this part do?
__.105  Does this part apply to me?
__.110  What is the purpose of the nonprocurement debarment and 
suspension system?
__.115  How does an exclusion restrict a person's involvement in 
covered transactions?
__.120  May we grant an exception to let an excluded person 
participate in a covered transaction?
__.125  Does an exclusion under the nonprocurement system affect a 
person's eligibility to participate in Federal procurement 
contracts?
__.130  Does an exclusion under the Federal procurement system 
affect a person's eligibility to participate in nonprocurement 
transactions?
__.135  May the [Agency noun] exclude a person who is not currently 
participating in a nonprocurement transaction?
__.140  How do I know if a person is excluded?
__.145  Does this part cover persons who are disqualified as well as 
those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
__.200  What is a covered transaction?
__.205  Why is it important to know if a particular transaction is a 
covered transaction?
__.210  Which nonprocurement transactions are covered transactions?
__.215  Which nonprocurement transactions are not covered 
transactions?
__.220  Are any procurement contracts included as covered 
transactions?
__.225  How do I know if a transaction in which I may participate is 
a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions 
Doing Business With Other Persons
__.300  May I enter into a covered transaction with an excluded or 
disqualified person?
__.305  What must I do if a Federal agency excludes a person with 
whom I am already doing business in a covered transaction?
__.310  May I use the services of an excluded person under a covered 
transaction?
__.315  Must I verify that principals of my covered transactions are 
eligible to participate?
__.320  What happens if I do business with an excluded person in a 
covered transaction?
__.325  What requirements must I pass down to persons at lower tiers 
with whom I intend to do business?

Disclosing Information--Primary Tier Participants

__.330  What information must I provide before entering into a 
covered transaction with the [Agency noun]?
__.335  If I disclose unfavorable information required under 
Sec. __.330 will I be prevented from entering into the transaction?
__.340  What happens if I fail to disclose the information required 
under Sec. __.330?
__.345  What must I do if I learn of the information required under 
Sec. __.330 after entering into a covered transaction with the 
[Agency noun]?

Disclosing Information--Lower Tier Participants

__.350  What information must I provide to a higher tier participant 
before entering into a covered transaction with that participant?
__.355  What happens if I fail to disclose the information required 
under Sec. __.350?
__.360  What must I do if I learn of information required under 
Sec. __.350 after entering into a covered transaction with a higher 
tier participant?
Subpart D--Responsibilities of [Agency adjective] Officials Regarding 
Transactions
__.400  May I enter into a transaction with an excluded or 
disqualified person?
__.405  May I enter into a covered transaction with a participant if 
a principal of the transaction is excluded?
__.410  May I approve a participant's use of the services of an 
excluded person?
__.415  What must I do if a Federal agency excludes the participant 
or a principal after I enter into a covered transaction?
__.420  May I approve a transaction with an excluded or disqualified 
person at a lower tier?
__.425  When do I check to see if a person is excluded or 
disqualified?
__.430  How do I check to see if a person is excluded or 
disqualified?
__.435  What must I require of a primary tier participant?
__.440  [Reserved]
__.445  What action may I take if a primary tier participant 
knowingly does business with an excluded or disqualified person?
__.450  What action may I take if a primary tier participant fails 
to disclose the information required under Sec. __.330?
__.455  What may I do if a lower tier participant fails to disclose 
the information required under Sec. __.350 to the next higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From 
Federal Procurement and Nonprocurement Programs
__.500  What is the purpose of the List?
__.505  Who uses the List?
__.510  Who maintains the List?
__.515  What specific information is on the List?
__.520  Who gives the GSA the information that it puts on the List?
__.525  Whom do I ask if I have questions about a person on the 
List?
__.530  Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment 
Actions
__.600  How do suspension and debarment actions start?
__.605  How does suspension differ from debarment?
__.610  What procedures does the [Agency noun] use in suspension and 
debarment actions?
__.615  How does the [Agency noun] notify a person of suspension and 
debarment actions?
__.620  Do Federal agencies coordinate suspension and debarment 
actions?
__.625  What is the scope of a suspension or debarment action?
__.630  May the [Agency noun] impute the conduct of one person to 
another?
__.635  May the [Agency noun] settle a debarment or suspension 
action?
__.640  May a settlement include a voluntary exclusion?
--.645  Do other Federal agencies know if the [Agency noun] agrees 
to a voluntary exclusion?
Subpart G--Suspension
__.700  When may the suspending official issue a suspension?
__.705  What does the suspending official consider in issuing a 
suspension?
__.710  When does a suspension take effect?
__.715  What notice does the suspending official give me if I am 
suspended?
__.720  How may I contest a suspension?
__.725  How much time do I have to contest a suspension?
__.730  What information must I provide to the suspending official 
if I contest a suspension?
__.735  Under what conditions do I get an additional opportunity to 
challenge the facts on which the suspension is based?
__.740  Are suspension proceedings formal?
__.745  Is a record made of fact-finding proceedings?
__.750  What does the suspending official consider in deciding 
whether to continue or terminate my suspension?
__.755  When will I know whether the suspension is continued or 
terminated?
__.760  How long may my suspension last?

[[Page 3273]]

Subpart H--Debarment
__.800  What are the causes for debarment?
__.805  What notice does the debarring official give me if I am 
proposed for debarment?
__.810  When does a debarment take effect?
__.815  How may I contest a proposed debarment?
__.820  How much time do I have to contest a proposed debarment?
__.825  What information must I provide to the debarring official if 
I contest a proposed debarment?
__.830  Under what conditions do I get an additional opportunity to 
challenge the facts on which a proposed debarment is based?
__.835  Are debarment proceedings formal?
__.840  Is a record made of fact-finding proceedings?
__.845  What does the debarring official consider in deciding 
whether to debar me?
__.850  What is the standard of proof in a debarment action?
__.855  Who has the burden of proof in a debarment action?
__.860  What factors may influence the debarring official's 
decision?
__.865  How long may my debarment last?
__.870  When do I know if the debarring official debars me?
__.875  May I ask the debarring official to reconsider a decision to 
debar me?
__.880  What factors may influence the debarring official during 
reconsideration?
__.885  May the debarring official extend a debarment?
Subpart I--Definitions
__.900  Adequate evidence.
__.905  Affiliate.
__.910  Agency.
__.915  Agent or representative.
__.920  Civil judgment.
__.925  Conviction.
__.930  Debarment.
__.935  Debarring official.
__.940  Disqualified.
__.945  Excluded or exclusion.
__.950  Indictment.
__.955  Ineligible or ineligibility.
__.960  Legal proceedings.
__.965  List of Parties Excluded or Disqualified From Federal 
Procurement and Nonprocurement Programs.
__.970  Nonprocurement transaction.
__.975  Notice.
__.980  Participant.
__.985  Person.
__.990   Preponderance of the evidence.
__.995  Principal.
__1000  Respondent.
__.1005  State.
__.1010  Suspending official.
__.1015  Suspension.
__.1020  Voluntary exclusion or voluntarily excluded.

Subpart J--[Reserved]

Appendix to Part __Covered Transactions

    Authority: Sec. 2455, Pub. L. 103-355, 108 Stat. 3327; E.O. 
12549, 3 CFR, 1986 Comp., p. 189; E.O. 12689, 3 CFR, 1989 Comp., 
p .235.


Sec. __.25  How is this part organized?

    (a) This part is subdivided into ten subparts. Each subpart 
contains information related to a broad topic or specific audience with 
special responsibilities, as shown in the following table:

------------------------------------------------------------------------
                                              You will find provisions
              In subpart ...                       related to ...
------------------------------------------------------------------------
A.........................................  general information about
                                             this rule.
B.........................................  the types of [Agency
                                             adjective] transactions
                                             that are covered by the
                                             Governmentwide
                                             nonprocurement suspension
                                             and debarment system.
C.........................................  the responsibilities of
                                             persons who participate in
                                             covered transactions.
D.........................................  the responsibilities of
                                             [Agency adjective]
                                             officials who are
                                             authorized to enter into
                                             covered transactions.
E.........................................  the responsibilities of
                                             Federal agencies for the
                                             List of Parties Excluded or
                                             Disqualified From Federal
                                             Procurement and
                                             Nonprocurement Programs
                                             (Published by the General
                                             Services Administration).
F.........................................  the general principles
                                             governing suspension,
                                             debarment, voluntary
                                             exclusion and settlement.
G.........................................  suspension actions.
H.........................................  debarment actions.
I.........................................  definitions of terms used in
                                             this part.
J.........................................  [Reserved]
------------------------------------------------------------------------

    (b) The following table shows which subparts may be of special 
interest to you, depending on who you are:

------------------------------------------------------------------------
              If you are ...                     see subpart(s) ...
------------------------------------------------------------------------
(1) a participant or principal in a         A, B, C and I.
 nonprocurement transaction.
(2) a respondent in a suspension action...  A, B, F, G and I.
(3) a respondent in a debarment action....  A, B, F, H and I.
(4) a suspending official.................  A, B, E, F, G and I.
(5) a debarring official..................  A, B, D, F, H and I.
(6) a(n) [Agency adjective] official        A, B, D, E and I.
 authorized to enter into a covered
 transaction.
(7) Reserved..............................  J.
------------------------------------------------------------------------

Sec. __.50  How is this part written?

    (a) This part uses a ``plain language'' format to make it easier 
for the general public and business community to use. The section 
headings and text, often in the form of questions and answers, must be 
read together.
    (b) Pronouns used within this part, such as ``I'' and ``you,'' 
change from subpart to subpart depending on the audience being 
addressed. The pronoun ``we'' always is the [Agency noun].
    (c) The ``Covered Transactions'' chart in the appendix to this part 
shows the levels or ``tiers'' at which the [Agency noun] enforces an 
exclusion under this part.


Sec. __.75  Do terms in this part have special meanings?

    This part uses terms throughout the text that have special meaning. 
Those terms are defined in Subpart I of this part. For example, three 
important terms are--
    (a) Exclusion or excluded, which refers only to discretionary 
actions taken by a suspending or debarring official under this part or 
the Federal Acquisition Regulation (48 CFR part 9, subpart 9.4);
    (b) Disqualification or disqualified, which refers to prohibitions 
under specific statutes, executive orders (other than Executive Order 
12549 and Executive Order 12689), or other authorities. 
Disqualifications frequently are not subject to the discretion of an 
agency official, may have a different scope than exclusions, or have 
special conditions that apply to the disqualification; and
    (c) Ineligibility or ineligible, which generally refers to a person 
who is either excluded or disqualified.

Subpart A--General


Sec. __.100  What does this part do?

    This part adopts a governmentwide system of debarment and 
suspension for [Agency adjective] nonprocurement activities. It also 
provides for reciprocal exclusion of persons who have been excluded 
under the Federal Acquisition Regulation, and provides for the 
consolidated listing of all persons who are excluded, or disqualified 
by statute, executive order, or other legal authority.

[[Page 3274]]

This part satisfies the requirements in section 3 of Executive Order 
12549, ``Debarment and Suspension'' (3 CFR 1986 Comp., p. 189), 
Executive Order 12689, ``Debarment and Suspension'' ( 3 CFR 1989 Comp., 
p. 235) and 31 U.S.C. 6101 note (Section 2455, Public Law 103-355, 108 
Stat. 3327).


Sec. __.105  Does this part apply to me?

    Portions of this part (see table at Sec. __.25(b)) apply to you if 
you are a(n):
    (a) Participant or principal in a covered transaction;
    (b) Respondent (a person against whom the [Agency noun] has 
initiated a debarment or suspension action);
    (c) [Agency adjective] debarring or suspending official; or
    (d) [Agency adjective] official who is authorized to enter into 
covered transactions with non-Federal parties.


Sec. __.110  What is the purpose of the nonprocurement debarment and 
suspension system?

    (a) To protect the public interest, the Federal Government ensures 
the integrity of Federal programs by conducting business only with 
responsible persons.
    (b) A Federal agency uses the nonprocurement debarment and 
suspension system to exclude persons from Federal programs persons who 
are not presently responsible.
    (c) An exclusion is a serious action that a Federal agency may take 
only to protect the public interest. A Federal agency may not exclude a 
person or commodity for the purposes of punishment.


Sec. __.115  How does an exclusion restrict a person's involvement in 
covered transactions?

    With the exceptions stated in Secs. __.120, __.315, and __.420, a 
person who is excluded by the [Agency noun] or any other Federal agency 
may not:
    (a) Be a participant in a(n) [Agency adjective] transaction that is 
a covered transaction under Subpart B of this part;
    (b) Be a participant in a transaction of any other Federal agency 
that is a covered transaction under that agency's regulation for 
debarment and suspension; or
    (c) Act as a principal of a person participating in one of those 
covered transactions.


Sec. __.120  May we grant an exception to let an excluded person 
participate in a covered transaction?

    (a) The [Agency head or designee] may grant an exception permitting 
an excluded person to participate in a particular covered transaction. 
If the [Agency head or designee] grants an exception, the exception 
must be in writing and state the reason(s) for deviating from the 
governmentwide policy in Executive Order 12549.
    (b) An exception granted by one agency for an excluded person does 
not extend to the covered transactions of another agency.


Sec. __.125  Does an exclusion under the nonprocurement system affect a 
person's eligibility for Federal procurement contracts?

    If any Federal agency excludes a person under its nonprocurement 
common rule on or after August 25, 1995, the excluded person is also 
ineligible to participate in Federal procurement transactions under the 
FAR. Therefore, an exclusion under this part has reciprocal effect in 
Federal procurement transactions.


Sec. __.130  Does exclusion under the Federal procurement system affect 
a person's eligibility to participate in nonprocurement transactions?

    If any Federal agency excludes a person under the FAR on or after 
August 25, 1995, the excluded person is also ineligible to participate 
in nonprocurement covered transactions under this part. Therefore, an 
exclusion under the FAR has reciprocal effect in Federal nonprocurement 
transactions.


Sec. __.135 May the  [Agency noun] exclude a person who is not 
currently participating in a nonprocurement transaction?

    Given a cause that justifies an exclusion under this part, we may 
exclude any person who has participated, is currently participating, or 
may reasonably be expected to participate in a covered transaction.


Sec. __.140  How do I know if a person is excluded?

    Check the Governmentwide List of Parties Excluded or Disqualified 
from Federal Procurement and Nonprocurement Programs (List) to 
determine whether a person is excluded. The General Services 
Administration (GSA) maintains the List and makes it available, as 
detailed in Subpart E of this part. When a Federal agency takes an 
action to exclude a person under the nonprocurement or procurement 
debarment and suspension system, the agency sends information about the 
excluded person to the GSA for inclusion on the List.


Sec. __.145  Does this part address persons who are disqualified, as 
well as those who are excluded from nonprocurement transactions?

    Except if provided for in Subpart J of this part, this part--
    (a) Addresses disqualified persons only to--
    (1) Provide for their inclusion on the List; and
    (2) State responsibilities of Federal agencies and participants to 
check for disqualified persons before entering into covered 
transactions.
    (b) Does not specify the--
    (1) [Agency adjective] transactions for which a disqualified person 
is ineligible. Those transactions vary on a case-by-case basis, because 
they depend on the language of the specific statute, Executive order, 
or regulation that caused the disqualification;
    (2) Entities to which the disqualification applies; or
    (3) Process that the agency uses to disqualify a person. Unlike 
exclusion, disqualification is frequently not a discretionary action 
that a Federal agency takes.

Subpart B--Covered Transactions


Sec. __.200  What is a covered transaction?

    A covered transaction is a nonprocurement or procurement 
transaction that is subject to the prohibitions of this part. It may be 
a transaction at--
    (a) The primary tier, between a Federal agency and a person (see 
appendix to this part); or
    (b) A lower tier, between a participant in a covered transaction 
and another person.


Sec. __.205  Why is it important if a particular transaction is a 
covered transaction?

    The importance of a covered transaction depends upon who you are.
    (a) As a participant in the transaction, you have the 
responsibilities laid out in Subpart C of this part. Those include 
responsibilities to the person or Federal agency at the next higher 
tier from whom you received the transaction, if any. They also include 
responsibilities if you subsequently enter into other covered 
transactions with persons at the next lower tier.
    (b) As a Federal official who enters into a primary tier 
transaction, you have the responsibilities laid out in subpart D of 
this part.
    (c) As an excluded person, you may not be a participant or 
principal in the transaction unless--
    (1) The person who entered into the transaction with you allows you 
to continue your involvement in a transaction that predates your 
exclusion, as permitted under Sec. __.305 or Sec. __.415; or
    (2) A(n) [Agency adjective] official obtains an exception from the 
[Agency head or designee] to allow you to be

[[Page 3275]]

involved in the transaction, as permitted under Sec. _.120.


Sec. __.210  Which nonprocurement transactions are covered 
transactions?

    All nonprocurement transactions, as defined in Sec. __.970, are 
covered transactions unless listed in Sec. __.215. (See appendix to 
this part.)


Sec. __.215  Which nonprocurement transactions are not covered 
transactions?

    The following types of nonprocurement transactions are not covered 
transactions:
    (a) A direct award to--
    (1) A foreign government or foreign governmental entity;
    (2) A public international organization;
    (3) An entity owned (in whole or in part) or controlled by a 
foreign government; or
    (4) Any other entity consisting wholly or partially of one or more 
foreign governments or foreign governmental entities.
    (b) A benefit to an individual as a personal entitlement without 
regard to the individual's present responsibility (but benefits 
received in an individual's business capacity are not excepted). For 
example, if a person receives social security benefits under the 
Supplemental Security Income provisions of the Social Security Act, 42 
U.S.C. 1301 et seq., those benefits are not covered transactions and, 
therefore, are not affected if the person is excluded.
    (c) Federal employment.
    (d) A transaction that the [Agency noun] needs to respond to a 
national or agency-recognized emergency or disaster.
    (e) A permit, license, certificate, or similar instrument issued as 
a means to regulate public health, safety, or the environment, unless 
the [Agency noun] specifically designates it to be a covered 
transaction.
    (f) An incidental benefit that results from ordinary governmental 
operations.
    (g) Any other transaction if the application of an exclusion to the 
transaction is prohibited by law.


Sec. __.220  Are any procurement contracts included as covered 
transactions?

    Covered transactions under this part do not include any procurement 
contracts awarded directly by a Federal agency (those transactions are 
covered under the Federal Acquisition Regulation), but they do include 
some procurement contracts awarded by non-Federal participants in 
nonprocurement covered transactions (see appendix to this part). 
Specifically, a contract for goods or services is a covered transaction 
if any of the following applies:
    (a) The contract is awarded by a participant in a nonprocurement 
transaction that is covered under Sec. __.210, and the amount of the 
contract is expected to equal or exceed $25,000.
    (b) The contract requires the consent of a(n) [Agency adjective] 
official. In that case, the contract, regardless of the amount, always 
is a covered transaction, and it does not matter who awarded it. For 
example, it could be a subcontract awarded by a contractor at a tier 
below a nonprocurement transaction, as shown in the appendix to this 
part.
    (c) The contract is for federally-required audit services.


Sec. __.225  How do I know if a transaction in which I may participate 
is a covered transaction?

    As a participant in a transaction, you will know that it is a 
covered transaction because the agency regulations governing the 
transaction, the appropriate agency official, or participant at the 
next higher tier who enters into the transaction with you, will tell 
you that you must comply with applicable portions of this part.

Subpart C--Responsibilities of Participants Regarding Transactions

Doing Business With Other Persons


Sec. __.300  May I enter into a covered transaction with an excluded or 
disqualified person?

    (a) You as a participant may not enter into a covered transaction 
with an excluded person, unless the [Agency noun] grants an exception 
under Sec. __.120.
    (b) You may not enter into any transaction with a person who is 
disqualified from that transaction, unless you have obtained an 
exception under the disqualifying statute, Executive order, or 
regulation.


Sec. __.305  What must I do if a Federal agency excludes a person with 
whom I am already doing business in a covered transaction?

    (a) You as a participant may continue covered transactions with an 
excluded person if the transactions were in existence when the agency 
excluded the person. However, you are not required to continue the 
transactions, and you may consider termination. You should make a 
decision about whether to terminate and the type of termination action, 
if any, only after a thorough review to ensure that the action is 
proper and appropriate.
    (b) You may not renew or extend covered transactions (other than 
no-cost time extensions) with any excluded person, unless the [Agency 
noun] grants an exception under Sec. __.120.


Sec. __.310  May I use the services of an excluded person under a 
covered transaction?

    (a) You as a participant may continue to use the services of an 
excluded person as a principal under a covered transaction if you were 
using the services of that person in the transaction before the person 
was excluded. However, you are not required to continue using that 
person's services as a principal.
    (b) You may not begin to use the services of an excluded person as 
a principal under a covered transaction unless the [Agency noun] grants 
an exception under Sec. __.120.


Sec. __.315  Must I verify that principals of my covered transactions 
are eligible to participate?

    Yes, you as a participant are responsible for determining whether 
any principal of your covered transactions is excluded or disqualified 
from participating in the transaction.
    You may decide the method and frequency by which you do so. You 
may, but you are not required to, check the governmentwide List.


Sec. __.320  What happens if I do business with an excluded person in a 
covered transaction?

    If as a participant you knowingly do business with an excluded 
person, we may disallow costs, annul or terminate the transaction, 
issue a stop work order, debar or suspend you, or take other remedies 
as appropriate.


Sec. __.325  What requirements must I pass down to persons at lower 
tiers with whom I intend to do business?

    Before entering into a covered transaction with a participant at 
the next lower tier, you must require that participant to:
    (a) Comply with this subpart as a condition of participation in the 
transaction. You may do so using any method(s), unless Sec. __.430 
requires you to use specific methods.
    (b) Pass the requirement to comply with this subpart to each person 
with whom the participant enters into a covered transaction at the next 
lower tier.

Disclosing Information--Primary Tier Participants


Sec. __.330  What information must I provide before entering into a 
covered transaction with the [Agency noun]?

    Before you enter into a covered transaction at the primary tier, 
you as the participant must notify the [Agency

[[Page 3276]]

adjective] office that is entering into the transaction with you, if 
you know that you or any of the principals for that covered 
transaction:
    (a) Are presently excluded or disqualified;
    (b) Have been convicted within the preceding three years of any of 
the offenses listed in Sec. __.800(a) or had a civil judgment rendered 
against you for one of those offenses within that time period;
    (c) Are presently indicted for or otherwise criminally or civilly 
charged by a governmental entity (Federal, state or local) with 
commission of any of the offenses listed in Sec. __.800(a); or
    (d) Have had one or more public transactions (Federal, state, or 
local) terminated within the preceding three years for cause or 
default.


Sec. __.335  If I disclose unfavorable information required under 
Sec. __.330, will I be prevented from participating in the transaction?

    As a primary tier participant, your disclosure of unfavorable 
information about yourself or a principal under Sec. __.330 will not 
necessarily cause us to deny your participation in the covered 
transaction. We will consider the information when we determine whether 
to enter into the covered transaction. We also will consider any 
additional information or explanation that you elect to submit with the 
disclosed information.


Sec. __.340  What happens if I fail to disclose information required 
under Sec. __.330?

    If we later determine that you failed to disclose information under 
Sec. __.330 that you knew at the time you entered into the covered 
transaction, we may
    (a) Terminate the transaction for material failure to comply with 
the terms and conditions of the transaction; or
    (b) Pursue any other available remedies, including suspension and 
debarment.


Sec. __.345  What must I do if I learn of information required under 
Sec. __.330 after entering into a covered transaction with the [Agency 
noun]?

    At any time after you enter into a covered transaction, you must 
give immediate written notice to the [Agency adjective] office with 
which you entered into the transaction if you learn either that--
    (a) You failed to disclose information earlier, as required by 
Sec. __.330; or
    (b) Due to changed circumstances, you or any of the principals for 
the transaction now meet any of the criteria in Sec. __.330.

Disclosing Information--Lower Tier Participants


Sec. __.350  What information must I provide to a higher tier 
participant before entering into a covered transaction with that 
participant?

    Before you enter into a covered transaction with a person at the 
next higher tier, you as a lower tier participant must notify that 
person if you know that you or any of the principals are presently 
excluded or disqualified.


Sec. __.355  What happens if I fail to disclose information required 
under Sec. __.350?

    If we later determine that you failed to tell the person at the 
higher tier that you were excluded or disqualified at the time you 
entered into the covered transaction with that person, we may pursue 
any available remedies, including suspension and debarment.


Sec. __.360  What must I do if I learn of information required under 
Sec. __.350 after entering into a covered transaction with a higher 
tier participant?

    At any time after you enter into a lower tier covered transaction 
with a person at a higher tier, you must provide immediate written 
notice to that person if you learn either that--
    (a) You failed to disclose information earlier, as required by 
Sec. __.350; or
    (b) Due to changed circumstances, you or any of the principals for 
the transaction now meet any of the criteria in Sec. __.350.

Subpart D--Responsibilities of [Agency adjective] Officials 
Regarding Transactions


Sec. __.400  May I enter into a transaction with an excluded or 
disqualified person?

    (a) You as an agency official may not enter into a covered 
transaction with an excluded person unless you obtain an exception 
under Sec. __.120.
    (b) You may not enter into any transaction with a person who is 
disqualified from that transaction, unless you obtain a waiver or 
exception under the statute, Executive order, or regulation that is the 
basis for the person's disqualification.


Sec. __.405  May I enter into a covered transaction with a participant 
if a principal of the transaction is excluded?

    As an agency official, you may not enter into a covered transaction 
with a participant if you know that a principal of the transaction is 
excluded, unless you obtain an exception under Sec. __.120.


Sec. __.410  May I approve a participant's use of the services of an 
excluded person?

    After entering into a covered transaction with a participant, you 
as an agency official may not approve a participant's use of an 
excluded person as a principal under that transaction, unless you 
obtain an exception under Sec. __.120.


Sec. __.415  What must I do if a Federal agency excludes the 
participant or a principal after I enter into a covered transaction?

    (a) You as an agency official may continue covered transactions 
with an excluded person, or under which an excluded person is a 
principal, if the transactions were in existence when the person was 
excluded. You are not required to continue the transactions, however, 
and you may consider termination. You should make a decision about 
whether to terminate and the type of termination action, if any, only 
after a thorough review to ensure that the action is proper.
    (b) You may not renew or extend covered transactions (other than 
no-cost time extensions) with any excluded person, or under which an 
excluded person is a principal, unless you obtain an exception under 
Sec. __.120.


Sec. __.420  May I approve a transaction with an excluded or 
disqualified person at a lower tier?

    If a transaction at a lower tier is subject to your approval, you 
as an agency official may not approve--
    (a) A covered transaction with a person who is currently excluded, 
unless you obtain an exception under Sec. __.120; or
    (b) A transaction with a person who is disqualified from that 
transaction, unless you obtain a waiver or exception under the statute, 
Executive order, or regulation that is the basis for the person's 
disqualification.


Sec. __.425  When do I check to see if a person is excluded or 
disqualified?

    As an agency official, you must check to see if a person is 
excluded or disqualified before you--
    (a) Enter into a primary tier covered transaction;
    (b) Approve a principal in a primary tier covered transaction;
    (c) Approve a lower tier participant if agency approval of the 
lower tier participant is required; or
    (d) Approve a principal in connection with a lower tier transaction 
if agency approval of the principal is required.


Sec. __.430  How do I check to see if a person is excluded or 
disqualified?

    You check to see if a person is excluded or disqualified in two 
ways:
    (a) You as an agency official must check the governmentwide List 
when you take any action listed in Sec. __.425.

[[Page 3277]]

    (b) You must review information that a participant gives you, as 
required by Sec. __.330, about its status or the status of the 
principals of a transaction.


Sec. __.435  What must I require of a primary tier participant?

    You as an agency official must require each participant in a 
primary tier covered transaction to--
    (a) Comply with subpart C of this part as a condition of 
participation in the transaction; and
    (b) Communicate the requirement to comply with Subpart C of this 
part to persons at the next lower tier with whom the primary tier 
participant enters into covered transactions.


Sec. __.440  [Reserved]


Sec. __.445  What action may I take if a primary tier participant 
knowingly does business with an excluded or disqualified person?

    If a participant knowingly does business with an excluded or 
disqualified person, you as an agency official may refer the matter for 
suspension and debarment consideration.
    You may also disallow costs, annul or terminate the transaction, 
issue a stop work order, or take any other appropriate remedy.


Sec. __.450  What action may I take if a primary tier participant fails 
to disclose the information required under Sec. __.330?

    If you as an agency official determine that a participant failed to 
disclose information, as required by Sec. __.330, at the time it 
entered into a covered transaction with you, you may--
    (a) Terminate the transaction for material failure to comply with 
the terms and conditions of the transaction; or
    (b) Pursue any other available remedies, including suspension and 
debarment.


Sec. __.455  What may I do if a lower tier participant fails to 
disclose the information required under Sec. __.350 to the next higher 
tier?

    If you as an agency official determine that a lower tier 
participant failed to disclose information, as required by Sec. __.350, 
at the time it entered into a covered transaction with a participant at 
the next higher tier, you may pursue any remedies available to you, 
including the initiation of a suspension or debarment action.

Subpart E--Governmentwide List of Parties Excluded or Disqualified 
From Federal Procurement and Nonprocurement Programs


Sec. __.500  What is the purpose of the List?

    The List is a widely available source of the most current 
information about persons who are excluded or disqualified from covered 
transactions.


Sec. __.505  Who uses the List?

    (a) Federal agency officials use the List to determine whether to 
enter into a transaction with a person, as required under Sec. __.410.
    (b) Participants also may, but are not required to, use the List to 
determine if--
    (1) Principals of their transactions are excluded or disqualified, 
as required under Sec. __.315; or
    (2) Persons with whom they are entering into covered transactions 
at the next lower tier are excluded or disqualified.
    (c) The List is available to the general public.


Sec. __.510  Who maintains the List?

    In accordance with the OMB guidelines, the General Services 
Administration (GSA) compiles, maintains and distributes the List.


Sec. __.515  What specific information is on the List?

    (a) At a minimum, the List indicates--
    (1) The full name (where available) and address of each excluded 
and disqualified person, in alphabetical order, with cross references 
if more than one name is involved in a single action;
    (2) The type of action;
    (3) The cause for the action;
    (4) The scope of the action;
    (5) Any termination date for the action;
    (6) The agency and name and telephone number of the agency point of 
contact for the action; and
    (7) The Contractor and Government Establishment (CAGE) code or 
other similar code approved by the GSA, of the excluded or disqualified 
person, if available.
    (b)(1) The database for the electronic version of the List includes 
a field for the Taxpayer Identification Number (TIN) (the social 
security number (SSN) for an individual) of an excluded or disqualified 
person.
    (2) GSA discloses the SSN of an individual to verify the identity 
of an individual, only if permitted under the Privacy Act of 1974 and, 
if appropriate, the Computer Matching and Privacy Protection Act of 
1988, as codified in 5 U.S.C. 552a.


Sec. __.520  Who gives the GSA the information that it puts on the 
List?

    Federal officials who take actions to exclude persons under this 
part or officials who are responsible for identifying disqualified 
persons must provide current information about those persons to the 
GSA. They must give the GSA--
    (a) Information required by Sec. __.515(a);
    (b) The Taxpayer Identification Number (TIN) of the excluded or 
disqualified person, including the social security number (SSN) for an 
individual, if the number is available and may be disclosed under law;
    (c) Information about an excluded or disqualified person within 
five working days, unless the GSA agrees to an alternative schedule, 
after--
    (1) Taking an exclusion action;
    (2) Modifying or rescinding an exclusion action;
    (3) Finding that a person is disqualified; or
    (4) Finding that there has been a change in the status of a person 
who is listed as disqualified.


Sec. __.525  Whom do I ask if I have questions about a specific person 
on the List?

    If you have questions about a listed person, ask the Federal agency 
that took the action placing the person's name on the List. 


Sec. __.530  Where can I get the List?

    You can get the information contained on the List in two ways.
    (a) You may subscribe to a printed version which you may obtain by 
purchasing a yearly subscription. A Federal agency may subscribe 
through its printing and distribution office. The public may obtain a 
subscription from the Superintendent of Documents, U.S. Government 
Printing Office, Washington, DC 20402, or by calling the Government 
Printing Office Inquiry and Order Desk at (202) 783-3238.
    (b) You may access the List through the Internet, currently at 
http://epls.arnet.gov.

Subpart F--General Principles Relating to Suspension and Debarment 
Actions


Sec. __.600  How do suspension and debarment actions start?

    When we receive information from any source concerning a cause for 
suspension or debarment, we will promptly report and investigate it. We 
refer the question of whether to suspend or debar you to our suspending 
or debarring official for consideration, if appropriate.

[[Page 3278]]

Sec. __.605  How does suspension differ from debarment?

    Suspension differs from debarment in that:

------------------------------------------------------------------------
    A suspending official . . .           A debarring official . . .
------------------------------------------------------------------------
(a) Imposes suspension as a          Imposes debarment for a specified
 temporary status of ineligibility    period as a final determination
 for procurement and nonprocurement   that a person is not presently
 transactions, pending completion     responsible.
 of an investigation or legal
 proceedings.
(b) Must--                           Must conclude, based on a
(1) Have adequate evidence that       preponderance of the evidence,
 there may be a cause for debarment   that the individual or business
 of an individual or business; and.   has engaged in conduct that
(2) Conclude that there is an         warrants debarment.
 immediate need to take action to
 protect the Federal interest.
(c) Usually imposes the suspension   Imposes debarment after giving the
 first, and promptly notifies the     respondent notice of the action
 suspended person, giving the         and an opportunity to contest the
 person an opportunity to contest     proposed debarment.
 the suspension and have it lifted.
------------------------------------------------------------------------

Sec. __.610 What procedures does the  [Agency noun] use in suspension 
and debarment actions?

    In deciding whether to suspend or debar you, we handle the actions 
as informally as practicable, consistent with principles of fundamental 
fairness.
    (a) For suspension actions, we use the procedures in this subpart 
and Subpart G of this part.
    (b) For debarment actions, we use the procedures in this subpart 
and Subpart H of this part.


Sec. __.615  How does the [Agency noun] notify a person of suspension 
and debarment actions?

    The suspending or debarring official sends a written notice to you, 
your identified counsel, your agent for service of process, or any of 
your partners, officers, directors, owners, or joint venturers to the 
last known street address, facsimile number, or e-mail address. The 
notice is effective if sent to any of these persons.


Sec. __.620  Do Federal agencies coordinate suspension and debarment 
actions?

    Yes, when more than one Federal agency has an interest in a 
suspension or debarment, the agencies may consider designating one 
agency as the lead agency for making the decision. Agencies are 
encouraged to establish methods and procedures for coordinating their 
suspension and debarment actions.


Sec. ._625  What is the scope of a suspension or debarment?

    If you are suspended or debarred, the suspension or debarment is 
effective as follows:
    (a) Your suspension or debarment constitutes suspension or 
debarment of all of your divisions and other organizational elements 
from all covered transactions, unless the suspension or debarment 
decision is limited--
    (1) By its terms to one or more specifically identified 
individuals, divisions, or other organizational elements; or
    (2) To specific types of transactions.
    (b) Any affiliate of a participant may be included in a suspension 
or debarment action if the suspending or debarring official--
    (1) Officially names the affiliate in the notice; and
    (2) Gives the affiliate an opportunity to contest the action.


Sec. __.630  May the [Agency noun] impute conduct of one person to 
another?

    For purposes of determining the scope of your suspension or 
debarment, we may impute conduct as follows:
    (a) Conduct imputed to participant. We may impute the fraudulent, 
criminal, or other seriously improper conduct of any officer, director, 
shareholder, partner, employee, or other individual associated with a 
participant to the participant when the conduct occurred in connection 
with the individual's performance of duties for or on behalf of the 
participant, or with the participant's knowledge, approval or 
acquiescence. The participant's acceptance of the benefits derived from 
the conduct is evidence of knowledge, approval or acquiescence.
    (b) Conduct imputed to individuals associated with participant. We 
may impute the fraudulent, criminal, or other seriously improper 
conduct of a participant to any officer, director, shareholder, 
partner, employee, or other individual associated with the participant 
who participated in, knew of or had reason to know of the participant's 
conduct.
    (c) Conduct of one participant imputed to other participants in a 
joint venture. We may impute the fraudulent, criminal, or other 
seriously improper conduct of one participant in a joint venture, grant 
pursuant to a joint application, or similar arrangement to other 
participants if the conduct occurred for or on behalf of the joint 
venture, grant pursuant to a joint application or similar arrangement, 
or with the knowledge, approval, or acquiescence of those participants. 
Acceptance of the benefits derived from the conduct is evidence of 
knowledge, approval, or acquiescence.

Settlement and Voluntary Exclusion


Sec. __.635  May the [Agency noun] settle a debarment or suspension 
action?

    Yes, we may settle a debarment or suspension action at any time if 
it is in the best interests of the Federal Government.


Sec. __.640  May a settlement include a voluntary exclusion?

    Yes, if we enter into a settlement with you in which you agree to 
be excluded, it is called a voluntary exclusion and has governmentwide 
effect.


Sec. __.645  Do other Federal agencies know if the [Agency noun] agrees 
to a voluntary exclusion?

    (a) Yes, we send information regarding a voluntary exclusion to the 
General
    Services Administration for entry into the List.
    (b) Also, any agency or person may contact us to find out the 
details of a voluntary exclusion.

Subpart G--Suspension


Sec. __.700  When may the suspending official issue a suspension?

    Suspension is a serious action. Using the procedures of this 
subpart and Subpart F of this part, the suspending official may impose 
suspension only when that official determines that--
    (a) There exists adequate evidence to suspect that a cause for 
debarment under Sec. __.800 may exist; and

[[Page 3279]]

    (b) Immediate action is necessary to protect the public interest.


Sec. __.705  What does the suspending official consider in issuing a 
suspension?

    (a) In determining the adequacy of the evidence to support the 
suspension, the suspending official considers how much information is 
available, how credible it is given the circumstances, whether or not 
important allegations are corroborated, and what inferences can 
reasonably be drawn as a result. During this assessment, the suspending 
official may examine the basic documents, including grants, cooperative 
agreements, loan authorizations, contracts, and other relevant 
documents.
    (b) An indictment, conviction, civil judgment, or other official 
findings by Federal, State, or local bodies that determine factual and/
or legal matters, constitutes adequate evidence for purposes of 
suspension actions.
    (c) In deciding whether immediate action is needed to protect the 
public interest, the suspending official has wide discretion. For 
example, the suspending official may infer the necessity for immediate 
action to protect the public interest either from the nature of the 
circumstances giving rise to a cause for suspension or from potential 
business relationships or involvement with a program of the Federal 
Government.


Sec. __.710  When does a suspension take effect?

    A suspension is effective when the suspending official signs the 
decision to suspend.


Sec. __.715  What notice does the suspending official give me if I am 
suspended?

    After deciding to suspend you, the suspending official promptly 
sends you a Notice of Suspension advising you--
    (a) That you have been suspended;
    (b) That your suspension is based on--
    (1) An indictment;
    (2) A conviction;
    (3) Other adequate evidence that you have committed irregularities 
which seriously reflect on the propriety of further Federal Government 
dealings with you; or
    (4) Conduct of another person that has been imputed to you, or your 
affiliation with a suspended or debarred person;
    (c) Of any other irregularities in terms sufficient to put you on 
notice without disclosing the Federal Government's evidence;
    (d) Of the cause(s) upon which we relied under Sec. __.700 for 
imposing suspension;
    (e) That your suspension is for a temporary period pending the 
completion of an investigation or resulting legal or debarment 
proceedings;
    (f) Of the applicable provisions of this subpart, Subpart F of this 
part, and any other [Agency adjective] procedures governing suspension 
decision making; and
    (g) Of the governmentwide effect of your suspension from 
procurement and nonprocurement programs and activities.


Sec. __.720  How may I contest a suspension?

    If you as a respondent wish to contest a suspension, you or your 
representative must provide the suspending official with information in 
opposition to the suspension.
    You may do this orally or in writing, but any information provided 
orally that you consider important must also be submitted in writing 
for the official record.


Sec. __.725  How much time do I have to contest a suspension?

    (a) As a respondent you or your representative must either send, or 
make arrangements to appear and present, the information and argument 
to the suspending official within 30 days after you receive the Notice 
of Suspension.
    (b) We consider the notice to be received by you--
    (1) When delivered, if we mail the notice to the last known street 
address, or five days after we send it if the letter is undeliverable;
    (2) When sent, if we send the notice by facsimile or five days 
after we send it if the facsimile is undeliverable; or
    (3) When delivered, if we send the notice by e-mail or five days 
after we send it if the e-mail is undeliverable.


Sec. __.730  What information must I provide to the suspending official 
if I contest the suspension?

    (a) In addition to any information and argument in opposition, as a 
respondent your submission to the suspending official must identify--
    (1) Specific facts that contradict the statements contained in the 
Notice of Suspension. A general denial is insufficient to raise a 
genuine dispute over facts material to the suspension;
    (2) All existing, proposed, or prior exclusions under regulations 
implementing Executive Order 12549 and all similar actions taken by 
Federal, state, or local agencies, including administrative agreements 
that affect only those agencies;
    (3) All criminal and civil proceedings not included in the Notice 
of Suspension that grew out of facts relevant to the cause(s) stated in 
the notice; and
    (4) All of your affiliates.
    (b) If you fail to disclose this information, or provide false 
information, the [Agency noun] may seek further criminal, civil or 
administrative action against you, as appropriate.


Sec. __.735  Under what conditions do I get an additional opportunity 
to challenge the facts on which the suspension is based?

    (a) You as a respondent will not have an additional opportunity to 
challenge the facts if the suspending official determines that--
    (1) Your suspension is based upon an indictment, conviction, civil 
judgment, or other finding by a Federal, State, or local body for which 
an opportunity to contest the facts was provided;
    (2) Your presentation in opposition contains only general denials 
to information contained in the Notice of Suspension;
    (3) The issues raised in your presentation in opposition to the 
suspension are not factual in nature, or are not material to the 
suspending official's initial decision to suspend, or the official's 
decision whether to continue the suspension; or
    (4) On the basis of advice from the Department of Justice, an 
office of the United States Attorney, a State attorney general's 
office, or a State or local prosecutor's office, that substantial 
interests of the government in pending or contemplated legal 
proceedings based on the same facts as the suspension would be 
prejudiced by conducting fact-finding.
    (b) You will have an opportunity to challenge the facts if the 
suspending official determines that--
    (1) The conditions in paragraph (a) of this section do not exist; 
and
    (2) Your presentation in opposition raises a genuine dispute over 
facts material to the suspension.
    (c) If you have an opportunity to challenge disputed material facts 
under this section, the suspending official or designee must conduct 
additional proceedings to resolve those facts.


Sec. __.740  Are suspension proceedings formal?

    (a) Suspension proceedings are conducted in a fair and informal 
manner. The suspending official may use flexible procedures to allow 
you to present matters in opposition. In so doing, the suspending 
official is not required to follow formal rules of evidence or 
procedure in creating an official record upon which the official will 
base a final suspension decision.

[[Page 3280]]

    (b) You as a respondent or your representative must submit any 
documentary evidence you want the suspending official to consider. In 
addition, you may present witnesses and confront any person the agency 
presents as a witness against you.


Sec. __.745  Is a record made of fact-finding proceedings?

    (a) Where fact-finding is conducted, the fact-finder must prepare 
written findings of fact for the record.
    (b) A transcribed record of fact-finding proceedings must be made, 
unless you as a respondent and the [Agency noun] agree to waive it in 
advance. If you want a copy of the transcribed record, you may purchase 
it.


Sec. __.750  What does the suspending official consider in deciding 
whether to continue or terminate my suspension?

    (a) The suspending official bases the decision on all information 
contained in the official record. The record includes--
    (1) All information in support of the suspending official's initial 
decision to suspend you;
    (2) Any further information and argument presented in support of, 
or opposition to, the suspension; and
    (3) Any transcribed record of fact-finding proceedings.
    (b) The suspending official may refer disputed material facts to 
another official for findings of fact. The suspending official may 
reject any resulting findings, in whole or in part, only after 
specifically determining them to be arbitrary, capricious, or clearly 
erroneous.


Sec. __.755  When will I know whether the suspension is continued or 
terminated?

    (a) Where no additional fact-finding is conducted, the suspending 
official must make the decision whether to continue, modify, or 
terminate your suspension within 45 days of closing the official 
record. The official may extend that period for good cause. If fact-
finding is conducted, the suspending official must make the final 
decision as promptly as possible after the record is closed.
    (b) In any event, the suspending official must prepare a written 
final decision and notify you of the decision and the reasons for it. 
(See Sec. __.615.)


Sec. __.760  How long may my suspension last?

    (a) If legal or debarment proceedings are initiated at the time of, 
or during your suspension, the suspension may continue until the 
conclusion of those proceedings. However, if proceedings are not 
initiated, a suspension may not exceed 12 months.
    (b) The suspending official may extend the 12 month limit under 
paragraph (a) of this section for an additional 6 months if an office 
of a U.S. Assistant Attorney General, U.S. Attorney, or other 
responsible prosecuting official requests an extension in writing. In 
no event may a suspension exceed 18 months without initiating 
proceedings under paragraph (a) of this section.
    (c) The suspending official must notify the appropriate officials 
under paragraph
    (b) of this section of an impending termination of a suspension at 
least 30 days before the 12 month period expires to allow the officials 
an opportunity to request an extension.

Subpart H--Debarment


Sec. __.800  What are the causes for debarment?

    We may debar a person for--
    (a) Conviction of or civil judgment for--
    (1) Commission of fraud or a criminal offense in connection with 
obtaining, attempting to obtain, or performing a public or private 
agreement or transaction;
    (2) Violation of Federal or State antitrust statutes, including 
those proscribing price fixing between competitors, allocation of 
customers between competitors, and bid rigging;
    (3) Commission of embezzlement, theft, forgery, bribery, 
falsification, or destruction of records, making false statements, tax 
evasion, receiving stolen property, making false claims, or obstruction 
of justice; or
    (4) Commission of any other offense indicating a lack of business 
integrity or business honesty that seriously and directly affects your 
present responsibility;
    (b) Violation of the terms of a public agreement or transaction so 
serious as to affect the integrity of an agency program, such as--
    (1) A willful failure to perform in accordance with the terms of 
one or more public agreements or transactions;
    (2) A history of failure to perform or of unsatisfactory 
performance of one or more public agreements or transactions; or
    (3) A willful violation of a statutory or regulatory provision or 
requirement applicable to a public agreement or transaction;
    (c) Any of the following causes:
    (1) A nonprocurement debarment by any Federal agency taken before 
October 1, 1988, or a procurement debarment by any Federal agency taken 
pursuant to 48 CFR part 9, subpart 9.4, before August 25, 1995;
    (2) Knowingly doing business with an ineligible person, except as 
permitted under Sec. __.120 or Sec. __.305;
    (3) Failure to pay a single substantial debt, or a number of 
outstanding debts (including disallowed costs and overpayments, but not 
including sums owed the Federal Government under the Internal Revenue 
Code) owed to any Federal agency or instrumentality, provided the debt 
is uncontested by the debtor or, if contested, provided that the 
debtor's legal and administrative remedies have been exhausted;
    (4) Violation of a material provision of a voluntary exclusion 
agreement entered into under Sec. _.640 or of any settlement of a 
debarment or suspension action; or
    (5) Violation of the provisions of the Drug-Free Workplace Act of 
1988 (41 U.S.C. 701); or
    (d) Any other cause of so serious or compelling a nature that it 
affects your present responsibility.


Sec. __.805  What notice does the debarring official give me if I am 
proposed for debarment?

    After consideration of the causes in Sec. __.800 of this subpart, 
if the debarring official proposes to debar you, the official sends you 
a Notice of Proposed Debarment, pursuant to Sec. __.615, advising you--
    (a) That the debarring official is considering debarring you;
    (b) Of the reasons for proposing to debar you in terms sufficient 
to put you on notice of the conduct or transactions upon which the 
proposed debarment is based;
    (c) Of the cause(s) under Sec. __.800 upon which the debarring 
official relied for proposing your debarment;
    (d) Of the applicable provisions of this subpart, Subpart F of this 
part, and any other [Agency adjective] procedures governing debarment; 
and
    (e) Of the governmentwide effect of a debarment from procurement 
and nonprocurement programs and activities.


Sec. __.810  When does a debarment take effect?

    Unlike suspension, a debarment is not effective until the debarring 
official issues a decision. The debarring official does not issue a 
decision until the respondent has had an opportunity to contest the 
proposed debarment.


Sec. __.815  How may I contest a proposed debarment?

    If you as a respondent wish to contest a proposed debarment, you or 
your representative must provide the debarring official with 
information in opposition to the proposed debarment. You may do this 
orally or in writing, but

[[Page 3281]]

any information provided orally that you consider important must also 
be submitted in writing for the official record.


Sec. __.820  How much time do I have to contest a proposed debarment?

    (a) As a respondent you or your representative must either send, or 
make arrangements to appear and present, the information and argument 
to the debarring official within 30 days after you receive the Notice 
of Proposed Debarment.
    (b) We consider the Notice of Proposed Debarment to be received by 
you--
    (1) When delivered, if we mail the notice to the last known street 
address, or five days after we send it if the letter is undeliverable;
    (2) When sent, if we send the notice by facsimile or five days 
after we send it if the facsimile is undeliverable; or
    (3) When delivered, if we send the notice by e-mail or five days 
after we send it if the e-mail is undeliverable.


Sec. __.825  What information must I provide to the debarring official 
if I contest a proposed debarment?

    (a) In addition to any information and argument in opposition, as a 
respondent your submission to the debarring official must identify--
    (1) Specific facts that contradict the statements contained in the 
Notice of Proposed Debarment. Include any information about any of the 
factors listed in Sec. __.860. A general denial is insufficient to 
raise a genuine dispute over facts material to the debarment;
    (2) All existing, proposed, or prior exclusions under regulations 
implementing Executive Order 12549 and all similar actions taken by 
Federal, State, or local agencies, including administrative agreements 
that affect only those agencies;
    (3) All criminal and civil proceedings not included in the Notice 
of Proposed Debarment that grew out of facts relevant to the cause(s) 
stated in the notice; and
    (4) All of your affiliates.
    (b) If you fail to disclose this information, or provide false 
information, the [Agency noun] may seek further criminal, civil or 
administrative action against you, as appropriate.


Sec. __.830  Under what conditions do I get an additional opportunity 
to challenge the facts on which a proposed debarment is based?

    (a) You as a respondent will not have an additional opportunity to 
challenge the facts if the debarring official determines that--
    (1) Your debarment is based upon a conviction or civil judgment;
    (2) Your presentation in opposition contains only general denials 
to information contained in the Notice of Proposed Debarment; or
    (3) The issues raised in your presentation in opposition to the 
proposed debarment are not factual in nature, or are not material to 
the debarring official's decision whether to debar.
    (b) You will have an additional opportunity to challenge the facts 
if the debarring official determines that--
    (1) The conditions in paragraph (a) of this section do not exist; 
and
    (2) Your presentation in opposition raises a genuine dispute over 
facts material to the proposed debarment.
    (c) If you have an opportunity to challenge disputed material facts 
under this section, the debarring official or designee must conduct 
additional proceedings to resolve those facts.


Sec. __.835  Are debarment proceedings formal?

    (a) Debarment proceedings are conducted in a fair and informal 
manner. The debarring official may use flexible procedures to allow you 
as a respondent to present matters in opposition. In so doing, the 
debarring official is not required to follow formal rules of evidence 
or procedure in creating an official record upon which the official 
will base the decision whether to debar.
    (b) You or your representative must submit any documentary evidence 
you want the debarring official to consider. In addition, you may 
present witnesses and confront any person the agency presents as a 
witness against you.


Sec. __.840  Is a record made of fact-finding proceedings?

    (a) Where fact-finding is conducted, the fact-finder must prepare 
written findings of fact for the record.
    (b) A transcribed record of fact-finding proceedings must be made, 
unless you as a respondent and the [Agency noun] agree to waive it in 
advance. If you want a copy of the transcribed record, you may purchase 
it.


Sec. __.845  What does the debarring official consider in deciding 
whether to debar me?

    (a) The debarring official may debar you for any of the causes in 
Sec. __.800. However, the official need not debar you even if a cause 
for debarment exists. The official may consider the seriousness of your 
acts or omissions and the mitigating or aggravating factors set forth 
at Sec. __.860.
    (b) The debarring official bases the decision on all information 
contained in the official record. The record includes--
    (1) All information in support of the debarring official's proposed 
debarment;
    (2) Any further information and argument presented in support of, 
or in opposition to, the proposed debarment; and
    (3) Any transcribed record of fact-finding proceedings.
    (c) The debarring official may refer disputed material facts to 
another official for findings of fact. The debarring official may 
reject any resultant findings, in whole or in part, only after 
specifically determining them to be arbitrary, capricious, or clearly 
erroneous.


Sec. __.850  What is the standard of proof in a debarment action?

    (a) In any debarment action, we must establish the cause for 
debarment by a preponderance of the evidence.
    (b) If the proposed debarment is based upon a conviction or civil 
judgment, the standard of proof is met.


Sec. __.855  Who has the burden of proof in a debarment action?

    (a) We have the burden to prove that a cause for debarment exists.
    (b) Once a cause for debarment is established, you as a respondent 
have the burden of demonstrating to the satisfaction of the debarring 
official that you are presently responsible and that debarment is not 
necessary.


Sec. __.860  What factors may influence the debarring official's 
decision?

    This section lists the mitigating and aggravating factors that the 
debarring official may consider in determining whether to debar you and 
the length of your debarment period. The debarring official may 
consider other factors if appropriate in light of the circumstances of 
a particular case. The existence or nonexistence of any factor, such as 
one of those set forth in this section, is not necessarily 
determinative of your present responsibility. In making a debarment 
decision, the debarring official may consider the following factors:
    (a) The actual or potential harm or impact that results or may 
result from the wrongdoing.
    (b) The frequency of incidents and/or duration of the wrongdoing.
    (c) Whether there is a pattern or prior history of wrongdoing. For 
example, if you have been found by another Federal agency or a State 
agency to have engaged in wrongdoing similar to that found in the 
debarment action, the existence of this fact may be used by the 
debarring official in determining that

[[Page 3282]]

you have a pattern or prior history of wrongdoing.
    (d) Whether you are or have been excluded or disqualified by an 
agency of the Federal Government or have not been allowed to 
participate in State or local contracts or assistance agreements on a 
basis of conduct similar to one or more of the causes for debarment 
specified in this part.
    (e) Whether you have entered into an administrative agreement with 
a Federal agency or a State or local government that is not 
governmentwide but is based on conduct similar to one or more of the 
causes for debarment specified in this part.
    (f) Whether and to what extent you planned, initiated, or carried 
out the wrongdoing.
    (g) Whether you have accepted responsibility for the wrongdoing and 
recognize the seriousness of the misconduct that led to the cause for 
debarment.
    (h) Whether you have paid or agreed to pay all criminal, civil and 
administrative liabilities for the improper activity, including any 
investigative or administrative costs incurred by the government, and 
have made or agreed to make full restitution.
    (i) Whether you have cooperated fully with the government agencies 
during the investigation and any court or administrative action. In 
determining the extent of cooperation, the debarring official may 
consider when the cooperation began and whether you disclosed all 
pertinent information known to you.
    (j) Whether the wrongdoing was pervasive within your organization.
    (k) The kind of positions held by the individuals involved in the 
wrongdoing.
    (l) Whether your organization took appropriate corrective action or 
remedial measures, such as establishing ethics training and 
implementing programs to prevent recurrence.
    (m) Whether your principals tolerated the offense.
    (n) Whether you brought the activity cited as a basis for the 
debarment to the attention of the appropriate government agency in a 
timely manner.
    (o) Whether you have fully investigated the circumstances 
surrounding the cause for debarment and, if so, made the result of the 
investigation available to the debarring official.
    (p) Whether you had effective standards of conduct and internal 
control systems in place at the time the questioned conduct occurred.
    (q) Whether you have taken appropriate disciplinary action against 
the individuals responsible for the activity which constitutes the 
cause for debarment.
    (r) Whether you have had adequate time to eliminate the 
circumstances within your organization that led to the cause for the 
debarment.
    (s) Other factors that are appropriate to the circumstances of a 
particular case.


Sec. __.865  How long may my debarment last?

    (a) If the debarring official decides to debar you, your period of 
debarment will be based on the seriousness of the cause(s) upon which 
your debarment is based. Generally, debarment should not exceed three 
years. However, if circumstances warrant, the debarring official may 
impose a longer period of debarment.
    (b) In determining the period of debarment, the debarring official 
may consider the factors in Sec. __.860. If a suspension has preceded 
your debarment, the debarring official must consider the time you were 
suspended.
    (c) If the debarment is for a violation of the provisions of the 
Drug-Free
    Workplace Act of 1988, your period of debarment may not exceed five 
years.


Sec. __.870  When do I know if the debarring official debars me?

    (a) Where no additional fact-finding is conducted, the debarring 
official must make the decision whether to debar you within 45 days of 
closing the official record. The debarring official may extend that 
period for good cause. If fact-finding is conducted, the debarring 
official must make the final decision as promptly as possible after the 
record is closed.
    (b) The debarring official sends you written notice, pursuant to 
Sec. __.615 that the official decided, either--
    (1) Not to debar you; or
    (2) To debar you. In this event, the notice:
    (i) Refers to the Notice of Proposed Debarment;
    (ii) Specifies the reasons for your debarment;
    (iii) States the period of your debarment, including the effective 
dates; and
    (iv) Advises you that your debarment is effective for covered 
transactions and contracts that are subject to the Federal Acquisition 
Regulation (48 CFR chapter 1), throughout the executive branch of the 
Federal Government unless an agency head or an authorized designee 
grants an exception.


Sec. __.875  May I ask the debarring official to reconsider a decision 
to debar me?

    Yes, as a debarred person you may ask the debarring official to 
reconsider the debarment decision or to reduce the time period or scope 
of the debarment. However, you must put your request in writing and 
support it with documentation.


Sec. __.880  What factors may influence the debarring official during 
reconsideration?

    The debarring official may reduce or terminate your debarment based 
on--
    (a) Newly discovered material evidence;
    (b) A reversal of the conviction or civil judgment upon which your 
debarment was based;
    (c) A bona fide change in ownership or management;
    (d) Elimination of other causes for which the debarment was 
imposed; or
    (e) Other reasons the debarring official finds appropriate.


Sec. __.885  May the debarring official extend a debarment period?

    (a) Yes, the debarring official may extend a debarment for an 
additional period, if that official determines that an extension is 
necessary to protect the public interest.
    (b) However, the debarring official may not extend a debarment 
solely on the basis of the facts and circumstances upon which the 
initial debarment action was based.
    (c) If the debarring official decides that a debarment for an 
additional period is necessary, the debarring official must follow the 
applicable procedures in this subpart, and Subpart F of this part, to 
extend the debarment.

Subpart I--Definitions


Sec. __.900  Adequate evidence.

    Adequate evidence means information sufficient to support the 
reasonable belief that a particular act or omission has occurred.


Sec. __.905  Affiliate.

    Persons are affiliates of each other if, directly or indirectly, 
either one controls or has the power to control the other or a third 
person controls or has the power to control both. The ways we use to 
determine control include, but are not limited to--
    (a) Interlocking management or ownership;
    (b) Identity of interests among family members;
    (c) Shared facilities and equipment;
    (d) Common use of employees; or
    (e) A business entity which has been organized following the 
exclusion of a person which has the same or similar management, 
ownership, or principal employees as the excluded person.


Sec. __.910  Agency.

    Agency means any United States executive department, military

[[Page 3283]]

department, defense agency, or any other agency of the executive 
branch. The independent regulatory agencies are not considered 
``agencies'' for purposes of this part.


Sec. __.915  Agent or representative.

    Agent or representative means any person who acts on behalf of, or 
who is authorized to commit a participant in a covered transaction.


Sec. __.920  Civil judgment.

    Civil judgment means the disposition of a civil action by any court 
of competent jurisdiction, whether by verdict, decision, settlement, 
stipulation, other disposition which creates a civil liability for the 
complained of wrongful acts, or a final determination of liability 
under the Program Fraud Civil Remedies Act of 1988 (31 U.S.C. 3801-
3812).


Sec. __.925  Conviction.

    Conviction means a judgment or any other determination of guilt of 
a criminal offense by any court of competent jurisdiction, whether 
entered upon a verdict or plea, including a plea of nolo contendere, or 
any other resolution, including probation before judgment and deferred 
prosecution.


Sec. __.930  Debarment.

    Debarment means an action taken by a debarring official under 
Subpart H of this part to exclude a person from participating in 
covered transactions and transactions covered under the Federal 
Acquisition Regulation (48 CFR chapter 1). A person so excluded is 
debarred.


Sec. __.935  Debarring official.

    (a) Debarring official means an agency official who is authorized 
to impose debarment. A debarring official is either--
    (1) The agency head; or
    (2) An official designated by the agency head.
    (b) [Reserved]


Sec. __.940  Disqualified.

    Disqualified means that a person is prohibited from participating 
in specified Federal procurement or nonprocurement transactions as 
required under a statute, Executive order (other than Executive Orders 
12549 and 12689) or other authority. Examples of disqualifications 
include persons prohibited under--
    (a) The Davis-Bacon Act (40 U.S.C. 276(a));
    (b) The equal employment opportunity acts and Executive orders; or
    (c) The Clean Air Act (42 U.S.C. 7606), Clean Water Act (33 U.S.C. 
1368) and Executive Order 11738 (3 CFR, 1973 Comp., p. 799).


Sec. __.945  Excluded or exclusion.

    Excluded or exclusion means--
    (a) That a person or commodity is prohibited from being a 
participant in covered transactions, whether the person has been 
suspended; debarred; proposed for debarment under 48 CFR part 9, 
subpart 9.4; voluntarily excluded; or
    (b) The act of excluding a person.


Sec. __.950  Indictment.

    Indictment means an indictment for a criminal offense. A 
presentment, information, or other filing by a competent authority 
charging a criminal offense shall be given the same effect as an 
indictment.


Sec. __.955  Ineligible or ineligibility.

    Ineligible or ineligibility means that a person or commodity is 
prohibited from covered transactions because of an exclusion or 
disqualification.


Sec. __.960  Legal proceedings.

    Legal proceedings means any criminal proceeding or any civil 
judicial proceeding, including a proceeding under the Program Fraud 
Civil Remedies Act (31 U.S.C. 3801-3812), to which the Federal 
Government or a State or local government or quasi-governmental 
authority is a party. The term also includes appeals from those 
proceedings.


Sec. __.965  List of Parties Excluded or Disqualified from Federal 
Procurement and Nonprocurement Programs.

    List of Parties Excluded or Disqualified from Federal Procurement 
and Nonprocurement Programs (List) means the list compiled, maintained, 
and distributed by the General Services Administration (GSA) containing 
the names and other information about persons who are ineligible.


Sec. __.970  Nonprocurement transaction.

    (a) Nonprocurement transaction means any transaction, regardless of 
type (except procurement contracts), including, but not limited to the 
following:
    (1) Grants.
    (2) Cooperative agreements.
    (3) Scholarships.
    (4) Fellowships.
    (5) Contracts of assistance.
    (6) Loans.
    (7) Loan guarantees.
    (8) Subsidies.
    (9) Insurances.
    (10) Payments for specified uses.
    (11) Donation agreements.
    (b) A nonprocurement transaction at any tier does not require the 
transfer of Federal funds.


Sec. __.975  Notice.

    Notice means a written communication served in person, sent by 
certified mail or its equivalent, or sent electronically by e-mail or 
facsimile. (See Sec. __.615.)


Sec. __.980  Participant.

    Participant means any person who submits a proposal for or who 
enters into a covered transaction, including an agent or representative 
of a participant.


Sec. __.985  Person.

    Person means any individual, corporation, partnership, association, 
unit of government, or legal entity, however organized.


Sec. __.990  Preponderance of the evidence.

    Preponderance of the evidence means proof by information that, 
compared with information opposing it, leads to the conclusion that the 
fact at issue is more probably true than not.


Sec. __.995  Principal.

    Principal means--
    (a) An officer, director, owner, partner, principal investigator, 
or other person within a participant with management or supervisory 
responsibilities related to a covered transaction; or
    (b) A consultant or other person, whether or not employed by the 
participant or paid with Federal funds, who--
    (1) Is in a position to handle Federal funds;
    (2) Is in a position to influence or control the use of those 
funds; or,
    (3) Occupies a technical or professional position capable of 
influencing the development or outcome of an activity that affects a 
covered transaction.


Sec. __.1000  Respondent.

    Respondent means a person against whom an agency has initiated a 
debarment or suspension action.


Sec. __.1005  State.

    (a) State means--
    (1) Any of the States of the United States;
    (2) The District of Columbia;
    (3) The Commonwealth of Puerto Rico;
    (4) Any territory or possession of the United States; or
    (5) Any agency or instrumentality of a State.
    (b) For purposes of this part, State does not include institutions 
of higher

[[Page 3284]]

education, hospitals, or units of local government.


Sec. __.1010  Suspending official.

    (a) Suspending official means an agency official who is authorized 
to impose suspension. The suspending official is either:
    (1) The agency head; or
    (2) An official designated by the agency head.
    (b) [Reserved]


Sec. __.1015  Suspension.

    Suspension is an action taken by a suspending official under 
subpart G of this part that immediately prohibits a person from 
participating in covered transactions and transactions covered under 
the Federal Acquisition Regulation (48 CFR chapter 1) for a temporary 
period, pending completion of an agency investigation and any judicial 
or administrative proceedings that may ensue. A person so excluded is 
suspended.


Sec. __.1020  Voluntary exclusion or voluntarily excluded.

    (a) Voluntary exclusion means a person's agreement to be excluded 
under the terms of a settlement between the person and one or more 
agencies. Voluntary exclusion must have governmentwide effect.
    (b) Voluntarily excluded means the status of a person who has 
agreed to a voluntary exclusion.
BILLING CODES 6325-01-P et al.

[[Page 3285]]

[GRAPHIC] [TIFF OMITTED] TP23JA02.000

BILLING CODES 6325-01-C et al.

[[Page 3286]]

    2. [Part/Subpart] __ is added to read as follows:

[Part/Subpart] __--Governmentwide Requirements for Drug-Free 
Workplace (Financial Assistance)

Subpart A--Purpose and Coverage
Sec.
__.100  What does this part do?
__.105  Does this part apply to me?
__.110  Are any of my Federal assistance awards exempt from this 
part?
__.115  Does this part affect the Federal contracts that I receive?
Subpart B--Requirements for Recipients Other Than Individuals
__.200  What must I do to comply with this part?
__.205  What must I include in my drug-free workplace statement?
__.210  To whom must I distribute my drug-free workplace statement?
__.215  What must I include in my drug-free awareness program?
__.220  By when must I publish my drug-free workplace statement and 
establish my drug-free awareness program?
__.225  What actions must I take concerning employees who are 
convicted of drug violations in the workplace?
__.230  How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
__.300  What must I do to comply with this part if I am an 
individual recipient?
__.301  [Reserved]
Subpart D--Responsibilities of [Agency adjective] Awarding Officials
__.400  What are my responsibilities as a(n) [Agency adjective] 
awarding official?
Subpart E--Violations of this Part and Consequences
__.500  How are violations of this part determined for recipients 
other than individuals?
__.505  How are violations of this part determined for recipients 
who are individuals?
__.510  What actions will the Federal Government take against a 
recipient determined to have violated this part?
__.515  Are there any exceptions to those actions?
Subpart F--Definitions
__.605  Award.
__.610  Controlled substance.
__.615  Conviction.
__.620  Cooperative agreement.
__.625  Criminal drug statute.
__.630  Debarment.
__.635  Drug-free workplace.
__.640  Employee.
__.645  Federal agency or agency.
__.650  Grant.
__.655  Individual.
__.660  Recipient.
__.665  State.
__.670  Suspension

Subpart A--Purpose and Coverage


Sec. __.100  What does this part do?

    This part carries out the portion of the Drug-Free Workplace Act of 
1988 (41 U.S.C. 701 et seq., as amended) that applies to grants. It 
also applies the provisions of the Act to cooperative agreements and 
other financial assistance awards, as a matter of Federal Government 
policy.


Sec. __.105  Does this part apply to me?

    (a) Portions of this part apply to you if you are either
    (1) A recipient of an assistance award from the [Agency noun]; or
    (2) A(n) [Agency adjective] awarding official. (See definitions of 
award and recipient in Secs. __.605 and __.660, respectively.)
    (b) The following table shows the subparts that apply to you:

------------------------------------------------------------------------
              If you are ...                      see subparts ...
------------------------------------------------------------------------
(1) a recipient who is not an individual..  A, B and E.
(2) a recipient who is an individual......  A, C and E.
(3) a(n) [Agency adjective] awarding        A, D and E.
 official.
------------------------------------------------------------------------

Sec. __.110  Are any of my Federal assistance awards exempt from this 
part?

    This part does not apply to any award that the [Agency head or 
designee] determines that the application of this part would be 
inconsistent with the international obligations of the United States or 
the laws or regulations of a foreign government.


Sec. __.115  Does this part affect the Federal contracts that I 
receive?

    It will affect future contract awards indirectly if you are 
debarred or suspended for a violation of the requirements of this part, 
as described in Sec. __.510(c). However, this part does not apply 
directly to procurement contracts. The portion of the Drug-Free 
Workplace Act of 1988 that applies to Federal procurement contracts is 
carried out through the Federal Acquisition Regulation in chapter 1 of 
Title 48 of the Code of Federal Regulations (the drug-free workplace 
coverage currently is in 48 CFR part 23, subpart 23.5).

Subpart B--Requirements for Recipients Other Than Individuals


Sec. __.200  What must I do to comply with this part?

    There are two general requirements if you are a recipient other 
than an individual.
    (a) First, you must make a good faith effort, on a continuing 
basis, to maintain a drug-free workplace. You must agree to do so as a 
condition for receiving any award covered by this part. The specific 
measures that you must take in this regard are described in more detail 
is subsequent sections of this subpart. Briefly, those measures are 
to--
    (1) Publish a drug-free workplace statement and establish a drug-
free awareness program for your employees (see Secs. __.205 through 
__.220); and
    (2) Take actions concerning employees who are convicted of 
violating drug statutes in the workplace (see Sec. __.225).
    (b) Second, you must identify all known workplaces under your 
Federal awards (see Sec. __.230).


Sec. __.205  What must I include in my drug-free workplace statement?

    You must publish a statement that
    (a) Tells your employees that the unlawful manufacture, 
distribution, dispensing, possession, or use of a controlled substance 
is prohibited in your workplace;
    (b) Specifies the actions that you will take against employees for 
violating that prohibition; and
    (c) Lets each employee know that, as a condition of employment 
under any award, he or she:
    (1) Will abide by the terms of the statement; and
    (2) Must notify you in writing if he or she is convicted for a 
violation of a criminal drug statute occurring in the workplace and 
must do so no more than five calendar days after the conviction.


Sec. __.210  To whom must I distribute my drug-free workplace 
statement?

    You must require that a copy of the statement described in 
Sec. __.205 be given to each employee who will be engaged in the 
performance of any Federal award.


Sec. __.215  What must I include in my drug-free awareness program?

    You must establish an ongoing drug free awareness program to inform 
employees about--
    (a) The dangers of drug abuse in the workplace;
    (b) Your policy of maintaining a drug-free workplace;
    (c) Any available drug counseling, rehabilitation, and employee 
assistance programs; and
    (d) The penalties that you may impose upon them for drug abuse 
violations occurring in the workplace.


Sec. __.220  By when must I publish my drug-free workplace statement 
and establish my drug-free awareness program?

    If you are a new recipient that does not already have a policy 
statement as

[[Page 3287]]

described in Sec. __.205 and an ongoing awareness program as described 
in Sec. __.215, you must publish the statement and establish the 
program by the time given in the following table:

------------------------------------------------------------------------
                 If . . .                          then you . . .
------------------------------------------------------------------------
(a) the performance period of the award is  must have the policy
 less than 30 days.                          statement and program in
                                             place as soon as possible,
                                             but before the date on
                                             which performance is
                                             expected to be completed.
(b) the performance period of the award is  must have the policy
 30 days or more.                            statement and program in
                                             place within 30 days after
                                             award.
(c) you believe there are extraordinary     may ask the [Agency
 circumstances that will require more than   adjective] awarding
 30 days for you to publish the policy       official to give you more
 statement and establish the awareness       time to do so. The amount
 program.                                    of additional time, if any,
                                             to be given is at the
                                             discretion of the awarding
                                             official.
------------------------------------------------------------------------

Sec. __.225  What actions must I take concerning employees who are 
convicted of drug violations in the workplace?

    There are two actions you must take if an employee is convicted of 
a drug violation in the workplace:
    (a) First, you must notify Federal agencies if an employee who is 
engaged in the performance of an award informs you about a conviction, 
as required by Sec. __.205(c)(2), or you otherwise learn of the 
conviction. Your notification to the Federal agencies must--
    (1) Be in writing;
    (2) Include the employee's position title;
    (3) Include the identification number(s) of each affected award;
    (4) Be sent within ten calendar days after you learn of the 
conviction; and
    (5) Be sent to every Federal agency on whose award the convicted 
employee was working. It must be sent to every awarding official or his 
or her official designee, unless the Federal agency has specified a 
central point for the receipt of the notices.
    (b) Second, within 30 calendar days of learning about an employee's 
conviction, you must either--
    (1) Take appropriate personnel action against the employee, up to 
and including termination, consistent with the requirements of the 
Rehabilitation Act of 1973 (29 U.S.C. 794), as amended; or
    (2) Require the employee to participate satisfactorily in a drug 
abuse assistance or rehabilitation program approved for these purposes 
by a Federal, State or local health, law enforcement, or other 
appropriate agency.


Sec. __.230  How and when must I identify workplaces?

    (a) You must identify all known workplaces under each [Agency 
adjective] award. A failure to do so is a violation of your drug-free 
workplace requirements. You may identify the workplaces--
    (1) To the [Agency adjective] official that is making the award, 
either at the time of application or upon award; or
    (2) In documents that you keep on file in your offices during the 
performance of the award, in which case you must make the information 
available for inspection upon request by [Agency adjective] officials 
or their designated representatives.
    (b) Your workplace identification for an award must include the 
actual address of buildings (or parts of buildings) or other sites 
where work under the award takes place.
    Categorical descriptions may be used (e.g., all vehicles of a mass 
transit authority or State highway department while in operation, State 
employees in each local unemployment office, performers in concert 
halls or radio studios).
    (c) If you identified workplaces to the [Agency adjective] awarding 
official at the time of application or award, as described in paragraph 
(a)(1) of this section, and any workplace that you identified changes 
during the performance of the award, you must inform the [Agency 
adjective] awarding official.

Subpart C--Requirements for Recipients Who Are Individuals


Sec. __.300  What must I do to comply with this part if I am an 
individual recipient?

    As a condition of receiving a(n) [Agency adjective] award, if you 
are an individual recipient, you must agree that--
    (a) You will not engage in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance in conducting 
any activity related to the award; and
    (b) If you are convicted of a criminal drug offense resulting from 
a violation occurring during the conduct of any award activity, you 
will report the conviction:
    (1) In writing.
    (2) Within 10 calendar days of the conviction.
    (3) To the [Agency adjective] awarding official or other designee 
for each award that you currently have, unless Sec. _.301 or the award 
document designates a central point for the receipt of the notices. 
When notice is made to a central point, it must include the 
identification number(s) of each affected award.


Sec. __.301  [Reserved]

Subpart D--Responsibilities of [Agency adjective] Awarding 
Officials


Sec. __.400 What are my responsibilities as a(n)  [Agency adjective] 
awarding official?

    As a(n) [Agency adjective] awarding official, you must obtain each 
recipient's agreement, as a condition of the award, to comply with the 
requirements in--
    (a) Subpart B of this part, if the recipient is not an individual; 
or
    (b) Subpart C of this part, if the recipient is an individual.

Subpart E--Violations of this Part and Consequences


Sec. __.500  How are violations of this part determined for recipients 
other than individuals?

    A recipient other than an individual is in violation of the 
requirements of this part if the [Agency head or designee] determines, 
in writing, that--
    (a) The recipient has violated the requirements of Subpart B of 
this part; or
    (b) The number of convictions of the recipient's employees for 
violating criminal drug statutes in the workplace is large enough to 
indicate that the recipient has failed to make a good faith effort to 
provide a drug-free workplace.


Sec. __.505  How are violations of this part determined for recipients 
who are individuals?

    An individual recipient is in violation of the requirements of this 
part if the [Agency head or designee] determines, in writing, that--
    (a) The recipient has violated the requirements of Subpart C of 
this part; or
    (b) The recipient is convicted of a criminal drug offense resulting 
from a violation occurring during the conduct of any award activity.


Sec. __.510  What actions will the Federal Government take against a 
recipient determined to have violated this part?

    If a recipient is determined to have violated this part, as 
described in Sec. __.500 or Sec. __.505, the [Agency noun] may take one 
or more of the following actions--
    (a) Suspension of payments under the award;
    (b) Suspension or termination of the award; and

[[Page 3288]]

    (c) Suspension or debarment of the recipient under [CFR citation 
for the Federal agency's regulations implementing Executive Order 12549 
and Executive Order 12689], for a period not to exceed five years.


Sec. __.515  Are there any provision for exceptions to those actions?

    The [Agency head] may waive with respect to a particular award, in 
writing, a suspension of payments under an award, suspension or 
termination of an award, or suspension or debarment of a recipient if 
the [Agency head] determines that such a waiver would be in the public 
interest. This exception authority cannot be delegated to any other 
official.

Subpart F--Definitions


Sec. __.605  Award.

    Award means an award of financial assistance by the [Agency noun] 
or other Federal agency directly to a recipient.
    (a) The term award includes:
    (1) A Federal grant or cooperative agreement, in the form of money 
or property in lieu of money.
    (2) A block grant or a grant in an entitlement program, whether or 
not the grant is exempted from coverage under the Governmentwide rule 
[Agency-specific CFR citation] that implements OMB Circular A-102 (for 
availability, see 5 CFR 1310.3) and specifies uniform administrative 
requirements.
    (b) The term award does not include:
    (1) Technical assistance that provides services instead of money.
    (2) Loans.
    (3) Loan guarantees.
    (4) Interest subsidies.
    (5) Insurance.
    (6) Direct appropriations.
    (7) Veterans' benefits to individuals (i.e., any benefit to 
veterans, their families, or survivors by virtue of the service of a 
veteran in the Armed Forces of the United States).


Sec. __.610  Controlled substance.

    Controlled substance means a controlled substance in schedules I 
through V of the Controlled Substances Act (21 U.S.C. 812), and as 
further defined by regulation at 21 CFR 1308.11 through 1308.15.


Sec. __.615  Conviction.

    Conviction means a finding of guilt (including a plea of nolo 
contendere) or imposition of sentence, or both, by any judicial body 
charged with the responsibility to determine violations of the Federal 
or State criminal drug statutes.


Sec. __.620  Cooperative agreement.

    Cooperative agreement means an award of financial assistance that, 
consistent with 31 U.S.C. 6305, is used to enter into the same kind of 
relationship as a grant (see definition of grant in Sec. __.650), 
except that substantial involvement is expected between the Federal 
agency and the recipient when carrying out the activity contemplated by 
the award. The term does not include cooperative research and 
development agreements as defined in 15 U.S.C. 3710a.


Sec. __.625  Criminal drug statute.

    Criminal drug statute means a Federal or non-Federal criminal 
statute involving the manufacture, distribution, dispensing, use, or 
possession of any controlled substance.


Sec. __.630  Debarment.

    Debarment means an action taken by a Federal agency to prohibit a 
recipient from participating in Federal Government procurement 
contracts and covered nonprocurement transactions. A recipient so 
prohibited is debarred, in accordance with the Federal Acquisition 
Regulation for procurement contracts (48 CFR part 9, subpart 9.4) and 
the common rule, Government-wide Debarment and Suspension 
(Nonprocurement), that implements Executive Order 12549 and Executive 
Order 12689.


Sec. __.635  Drug-free workplace.

    Drug-free workplace means a site for the performance of work done 
in connection with a specific award at which employees of the recipient 
are prohibited from engaging in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance.


Sec. __.640  Employee.

    (a) Employee means the employee of a recipient directly engaged in 
the performance of work under the award, including--
    (1) All direct charge employees;
    (2) All indirect charge employees, unless their impact or 
involvement in the performance of work under the award is insignificant 
to the performance of the award; and
    (3) Temporary personnel and consultants who are directly engaged in 
the performance of work under the award and who are on the recipient's 
payroll.
    (b) This definition does not include workers not on the payroll of 
the recipient (e.g., volunteers, even if used to meet a matching 
requirement; consultants or independent contractors not on the payroll; 
or employees of subrecipients or subcontractors in covered workplaces).


Sec. __.645  Federal agency or agency.

    Federal agency or agency means any United States executive 
department, military department, government corporation, government 
controlled corporation, any other establishment in the executive branch 
(including the Executive Office of the President), or any independent 
regulatory agency.


Sec. __.650  Grant.

    Grant means an award of financial assistance that, consistent with 
31 U.S.C. 6304, is used to enter into a relationship--
    (a) The principal purpose of which is to transfer a thing of value 
to the recipient to carry out a public purpose of support or 
stimulation authorized by a law of the United States, rather than to 
acquire property or services for the Federal Government's direct 
benefit or use; and
    (b) In which substantial involvement is not expected between the 
Federal agency and the recipient when carrying out the activity 
contemplated by the award.


Sec. __.655  Individual.

    Individual means a natural person.


Sec. __.660  Recipient.

    Recipient means any individual, corporation, partnership, 
association, unit of government (except a Federal agency) or legal 
entity, however organized, that receives an award directly from a 
Federal agency.


Sec. __.665  State.

    State means any of the States of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, or any territory or 
possession of the United States.


Sec. __.670  Suspension.

    Suspension means an action taken by a Federal agency that 
immediately prohibits a recipient from participating in Federal 
Government procurement contracts and covered nonprocurement 
transactions for a temporary period, pending completion of an 
investigation and any judicial or administrative proceedings that may 
ensue. A recipient so prohibited is suspended, in accordance with the 
Federal Acquisition Regulation for procurement contracts (48 CFR part 
9, subpart 9.4) and the common rule, Government-wide Debarment and 
Suspension (Nonprocurement), that implements Executive Order 12549 and 
Executive Order 12689. Suspension of a recipient

[[Page 3289]]

is a distinct and separate action from suspension of an award or 
suspension of payments under an award.

Adoption of Proposed Common Rules

    The adoption of the proposed common rules by the participating 
agencies, as modified by agency-specific text is set forth below:

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 970

RIN 3206-AJ31

FOR FURTHER INFORMATION CONTACT: J. David Cope, Debarring Official, 
Office of the Inspector General, U.S. Office of Personnel Management, 
1900 E Street, NW., Washington, DC 20415, e-mail [email protected], fax 
(202) 606-2153.


ADDITIONAL SUPPLEMENTARY INFORMATION: The Office of Personnel 
Management adopted the Nonprocurement Debarment and Suspension Common 
Rule on May 17, 1993, following the text of the governmentwide rule as 
published on May 26, 1988 (53 FR 19160). OPM did not adopt subpart F of 
the common rule, pertaining to requirements for drug-free workplace 
(grants), because the agency did not issue assistance awards, grants, 
or other forms of financial or nonfinancial assistance that would be 
covered by those provisions. For the same reasons, OPM is not adopting 
the separate regulatory part on drug-free workplace requirements that 
has been developed as part of this governmentwide regulatory package.

List of Subjects in 5 CFR Part 970

    Administrative practice and procedure, Government employees, Grant 
programs, Loan programs, Hostages, Iraq, Kuwait, Lebanon.

    Approved: Office of Personnel Management.
Kay Cole James,
Director.
    For the reasons stated in the common preamble, the Office of 
Personnel Management proposes to amend part 970 of title 5, Code of 
Federal Regulations as follows:
    1. Part 970 is revised as set forth in instruction 1 at the end of 
the common preamble.:

PART 970--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)

Sec.
970.25   How is this part organized?
970.50   How is this part written?
970.75   Do terms in this part have special meanings?
Subpart A--General
970.100   What does this part do?
970.105   Does this part apply to me?
970.110   What is the purpose of the nonprocurement debarment and 
suspension system?
970.115   How does an exclusion restrict a person's involvement in 
covered transactions?
970.120   May we grant an exception to let an excluded person 
participate in a covered transaction?
970.125   Does an exclusion under the nonprocurement system affect a 
person's eligibility to participate in Federal procurement 
contracts?
970.130   Does an exclusion under the Federal procurement system 
affect a person's eligibility to participate in nonprocurement 
transactions?
970.135   May the OPM exclude a person who is not currently 
participating in a nonprocurement transaction?
970.140   How do I know if a person is excluded?
970.145   Does this part cover persons who are disqualified as well 
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
970.200   What is a covered transaction?
970.205   Why is it important to know if a particular transaction is 
a covered transaction?
970.210   Which nonprocurement transactions are covered 
transactions?
970.215   Which nonprocurement transactions are not covered 
transactions?
970.220   Are any procurement contracts included as covered 
transactions?
970.225   How do I know if a transaction in which I may participate 
in is a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions 
Doing Business With Other Persons
970.300   May I enter into a covered transaction with an excluded or 
disqualified person?
970.305   What must I do if a Federal agency excludes a person with 
whom I am already doing business in a covered transaction?
970.310   May I use the services of an excluded person under a 
covered transaction?
970.315   Must I verify that principals of my covered transactions 
are eligible to participate?
970.320   What happens if I do business with an excluded person in a 
covered transaction?
970.325   What requirements must I pass down to persons at lower 
tiers with whom I intend to do business?
Disclosing Information Primary Tier Participants
970.330   What information must I provide before entering into a 
covered transaction with the OPM?
970.335   If I disclose unfavorable information required under 
Sec. 970.330 will I be prevented from entering into the transaction?
970.340   What happens if I fail to disclose the information 
required under Sec. 970.330?
970.345   What must I do if I learn of the information required 
under Sec. 970.330 after entering into a covered transaction with 
the OPM?

Disclosing Information--Lower Tier Participants

970.350   What information must I provide to a higher tier 
participant before entering into a covered transaction with that 
participant?
970.355   What happens if I fail to disclose the information 
required under Sec. 970.350?
970.360   What must I do if I learn of information required under 
Sec. 970.350 after entering into a covered transaction with a higher 
tier participant?
Subpart D--Responsibilities of OPM Officials Regarding Transactions
970.400   May I enter into a transaction with an excluded or 
disqualified person?
970.405   May I enter into a covered transaction with a participant 
if a principal of the transaction is excluded?
970.410   May I approve a participant's use of the services of an 
excluded person?
970.415   What must I do if a Federal agency excludes the 
participant or a principal after I enter into a covered transaction?
970.420   May I approve a transaction with an excluded or 
disqualified person at a lower tier?
970.425   When do I check to see if a person is excluded or 
disqualified?
970.430   How do I check to see if a person is excluded or 
disqualified?
970.435   What must I require of a primary tier participant?
970.440   What method do I use to communicate those requirements to 
participants?
970.445   What action may I take if a primary tier participant 
knowingly does business with an excluded or disqualified person?
970.450   What action may I take if a primary tier participant fails 
to disclose the information required under Sec. 970.330?
970.455   What may I do if a lower tier participant fails to 
disclose the information required under Sec. 970.350 to the next 
higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From 
Federal Procurement and Nonprocurement Programs
970.500   What is the purpose of the List?
970.505   Who uses the List?
970.510   Who maintains the List?
970.515   What specific information is on the List?
970.520   Who gives the GSA the information that it puts on the 
List?
970.525   Whom do I ask if I have questions about a person on the 
List?
970.530   Where can I get the List?

[[Page 3290]]

Subpart F--General Principles Relating to Suspension and Debarment 
Actions
970.600   How do suspension and debarment actions start?
970.605   How does suspension differ from debarment?
970.610   What procedures does the OPM use in suspension and 
debarment actions?
970.615   How does the OPM notify a person of suspension and 
debarment actions?
970.620   Do Federal agencies coordinate suspension and debarment 
actions?
970.625   What is the scope of a suspension or debarment action?
970.630   May the OPM impute the conduct of one person to another?
970.635   May the OPM settle a debarment or suspension action?
970.640   May a settlement include a voluntary exclusion?
970.645   Do other Federal agencies know if the OPM agrees to a 
voluntary exclusion?
Subpart G--Suspension
970.700   When may the suspending official issue a suspension?
970.705   What does the suspending official consider in issuing a 
suspension?
970.710   When does a suspension take effect?
970.715   What notice does the suspending official give me if I am 
suspended?
970.720   How may I contest a suspension?
970.725   How much time do I have to contest a suspension?
970.730   What information must I provide to the suspending official 
if I contest a suspension?
970.735   Under what conditions do I get an additional opportunity 
to challenge the facts on which the suspension is based?
970.740   Are suspension proceedings formal?
970.745   Is a record made of fact-finding proceedings?
970.750   What does the suspending official consider in deciding 
whether to continue or terminate my suspension?
970.755   When will I know whether the suspension is continued or 
terminated?
970.760   How long may my suspension last?
Subpart H--Debarment
970.800   What are the causes for debarment?
970.805   What notice does the debarring official give me if I am 
proposed for debarment?
970.810   When does a debarment take effect?
970.815   How may I contest a proposed debarment?
970.820   How much time do I have to contest a proposed debarment?
970.825   What information must I provide to the debarring official 
if I contest a proposed debarment?
970.830   Under what conditions do I get an additional opportunity 
to challenge the facts on which a proposed debarment is based?
970.835   Are debarment proceedings formal?
970.840   Is a record made of fact-finding proceedings?
970.845   What does the debarring official consider in deciding 
whether to debar me?
970.850   What is the standard of proof in a debarment action?
970.855   Who has the burden of proof in a debarment action?
970.860   What factors may influence the debarring official's 
decision?
970.865   How long may my debarment last?
970.870   When do I know if the debarring official debars me?
970.875   May I ask the debarring official to reconsider a decision 
to debar me?
970.880   What factors may influence the debarring official during 
reconsideration?
970.885   May the debarring official extend a debarment?
Subpart I--Definitions
970.900   Adequate evidence.
970.905   Affiliate.
970.910   Agency.
970.915   Agent or representative.
970.920   Civil judgment.
970.925   Conviction.
970.930   Debarment
970.935   Debarring official.
970.940   Disqualified.
970.945   Excluded or exclusion.
970.950   Indictment.
970.955   Ineligible or ineligibility.
970.960   Legal proceedings.
970.965   List of Parties Excluded or Disqualified from Federal 
Procurement and Nonprocurement Programs.
970.970   Nonprocurement transaction.
970.975   Notice.
970.980   Participant
970.985   Person.
970.990   Preponderance of the evidence.
970.995   Principal.
970.1000   Respondent.
970.1005   State.
970.1010   Suspending official.
970.1015   Suspension.
970.1020   Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]

Appendix to Part 970--Covered Transactions

    Authority: Sec. 2455, Pub. L. 103-355, 108 Stat. 3327; E.O. 
12549, 3 CFR, 1986 Comp., p. 189; E.O. 12689, 3 CFR, 1989 Comp., p. 
235.
    2. Part 970 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``OPM'' is added in its place 
wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``OPM'' is added in its 
place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``Debarring 
Official'' is added in its place wherever it occurs.
    3. Section 970.440 is added to read as follows:


Sec. 970.440  What method do I use to communicate those requirements to 
participants?

    To communicate the requirement, you must include a term or 
condition in the transaction requiring the participants' compliance 
with subpart C of this part and requiring them to include a similar 
term or condition in lower-tier covered transactions.

DEPARTMENT OF AGRICULTURE

7 CFR Parts 3017 and 3021

RIN 0505-AA11

ADDRESSES: Comments on the Department of Agriculture's additional 
provisions should be addressed to Patricia E. Healy, Acting Chief 
Financial Officer, U.S. Department of Agriculture, Room 143-W, Whitten 
Building, 1400 Independence Avenue, SW., Washington, DC 20250.


FOR FURTHER INFORMATION CONTACT: Gerald Miske, Fiscal Policy Division, 
Office of the Chief Financial Officer, 202-720-1553.

ADDITIONAL SUPPLEMENTARY INFORMATION: The Department of Agriculture 
(USDA) is publishing these proposed rules in order to update these two 
regulations, and to maintain governmentwide uniformity in grants 
management policy that is a primary objective of Pub. L. 106-107, ``The 
Federal Financial Assistance Management Improvement Act of 1999.''
    The requirements for maintaining a drug-free workplace are being 
removed as a subpart in the current debarment and suspension common 
rule, and re-codified as a separate part 3021.
    The appendix that is referenced in Sec. 3017.50 contains a model 
for covered transactions that would be accurate for all USDA agencies 
if USDA had not added certain exclusions in Secs. 3017.215 and 
3017.220. Therefore, it is necessary to clarify that the appendix 
contains a general model that will vary for certain categories of 
transactions in accordance with the exclusions from covered 
transactions in Secs. 3017.215 and 3017.220.
    USDA has limited covered transactions under its current debarment 
and suspension regulation (7 CFR part 3017) to primary tier 
transactions for all of its export and foreign assistance programs. 
USDA proposes to retain this limited coverage for most of its export 
and foreign assistance programs but to expand the coverage slightly for 
certain market development and foreign assistance programs. The 
coverage would be expanded to include: (1) Any lower tiers non 
procurement transaction between a nonprofit trade association or state 
regional group and a U.S. entity under the Market Excess Program; and 
(2) any procurement contract for ocean transportation under USDA's 
foreign assistance programs. The types of lower

[[Page 3291]]

tier transactions that would be covered would be those in which the 
Department of Agriculture would be making an identifiable payment, 
directly or indirectly, to the participant in the specific lower tier 
transaction. In accordance with Secs. 3017.215 (i) and 3017.220 (d), 
these two types of transactions would be the only lower tier 
nonprocurement or procurement transactions in USDA's export and foreign 
assistance programs that would be covered transactions under this 
regulation.
    USDA has identified in Sec. 3017.215 certain nonprocurement 
transactions that will not be covered by this regulation.
    Under Sec. 3017.220, USDA has included certain procurement 
contracts as covered transactions when the contract is for the 
procurement of ocean transportation in connection with USDA's export 
and foreign assistance programs.
    In order to communicate requirements to lower-tier covered 
transactions, USDA has added Sec. 3017.440 requiring USDA agencies to 
include a term in each agreement for participants' compliance with 
Subpart C.
    In Secs. 3017.755 (a) and 3017.870 (a) USDA has added the 
requirement that the record remain open for a full 30 days after the 
respondent receives the notice of suspension or debarment even if a 
submission in opposition is made before the 30 days expire. This 
requirement was included in order to make the timing of these actions 
clear.
    USDA does not have a centralized appeal process and therefore has 
retained in Sec. 3017.765 the appeal process established in the current 
USDA regulation on debarment.

List of Subjects

7 CFR Part 3017

    Administrative practice and procedure, Debarment and suspension, 
Grant programs-agriculture, Loan programs-agriculture, Reporting and 
recordkeeping requirements.

7 CFR Part 3021

    Administrative practice and procedure, Drug abuse, Grant programs-
agriculture, Loan programs-agriculture, Reporting and recordkeeping 
requirements.

    Dated: June 1, 2001.
Patricia E. Healy,
Acting, Chief Financial Officer.

    Dated: June 6, 2001.
Ann M. Veneman,
Secretary of Agriculture.
    For the reasons stated in the common preamble, the United States 
Department of Agriculture proposes to amend 7 CFR Chapter XXX as 
follows:
    1. Part 3017 is revised to read as set forth in instruction 1 at 
the end of the common preamble.

PART 3017--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)

Sec.
3017.25  How is this part organized?
3017.50  How is this part written?
3017.75  Do terms in this part have special meanings?
Subpart A--General
3017.100  What does this part do?
3017.105  Does this part apply to me?
3017.110  What is the purpose of the nonprocurement debarment and 
suspension system?
3017.115  How does an exclusion restrict a person's involvement in 
covered transactions?
3017.120  May we grant an exception to let an excluded person 
participate in a covered transaction?
3017.125  Does an exclusion under the nonprocurement system affect a 
person's eligibility to participate in Federal procurement 
contracts?
3017.130  Does an exclusion under the Federal procurement system 
affect a person's eligibility to participate in nonprocurement 
transactions?
3017.135  May the Department of Agriculture exclude a person who is 
not currently participating in a nonprocurement transaction?
3017.140  How do I know if a person is excluded?
3017.145  Does this part cover persons who are disqualified as well 
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
3017.200  What is a covered transaction?
3017.205  Why is it important to know if a particular transaction is 
a covered transaction?
3017.210  Which nonprocurement transactions are covered 
transactions?
3017.215  Which nonprocurement transactions are not covered 
transactions?
3017.220  Are any procurement contracts included as covered 
transactions?
3017.225  How do I know if a transaction that I may participate in 
is a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions 
Doing Business With Other Persons
3017.300  May I enter into a covered transaction with an excluded or 
disqualified person?
3017.305  What must I do if a Federal agency excludes a person with 
whom I am already doing business in a covered transaction?
3017.310  May I use the services of an excluded person under a 
covered transaction?
3017.315  Must I verify that principals of my covered transactions 
are eligible to participate?
3017.320  What happens if I do business with an excluded person in a 
covered transaction?
3017.325  What requirements must I pass down to persons at lower 
tiers with whom I intend to do business?

Disclosing Information--Primary Tier Participants

3017.330  What information must I provide before entering into a 
covered transaction with the Department of Agriculture.
3017.335  If I disclose unfavorable information required under 
Sec. 3017.330 will I be prevented from entering into the 
transaction?
3017.340  What happens if I fail to disclose the information 
required under Sec. 3017.330?
3017.345  What must I do if I learn of the information required 
under Sec. 3017.330 after entering into a covered transaction with 
the Department of Agriculture?

Disclosing Information--Lower Tier Participants

3017.350  What information must I provide to a higher tier 
participant before entering into a covered transaction with that 
participant?
3017.355  What happens if I fail to disclose the information 
required under Sec. 3017.350?
3017.360  What must I do if I learn of information required under 
Sec. 3017.350 after entering into a covered transaction with a 
higher tier participant?
Subpart D--Responsibilities of Department of Agriculture Officials 
Regarding Transactions
3017.400  May I enter into a transaction with an excluded or 
disqualified person?
3017.405  May I enter into a covered transaction with a participant 
if a principal of the transaction is excluded?
3017.410  May I approve a participant's use of the services of an 
excluded person?
3017.415  What must I do if a Federal agency excludes the 
participant or a principal after I enter into a covered transaction?
3017.420  May I approve a transaction with an excluded or 
disqualified person at a lower tier?
3017.425  When do I check to see if a person is excluded or 
disqualified?
3017.430  How do I check to see if a person is excluded or 
disqualified?

[[Page 3292]]

3017.435  What must I require of a primary tier participant?
3017.440  What method do I use to communicate those requirements to 
participants?
3017.445  What action may I take if a primary tier participant 
knowingly does business with an excluded or disqualified person?
3017.450  What action may I take if a primary tier participant fails 
to disclose the information required under Sec. 3017.330?
3017.455  What may I do if a lower tier participant fails to 
disclose the information required under Sec. 3017.350 to the next 
higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From 
Federal Procurement and Nonprocurement Programs
3017.500  What is the purpose of the List?
3017.505  Who uses the List?
3017.510  Who maintains the List?
3017.515  What specific information is on the List?
3017.520  Who gives the GSA the information that it puts on the 
List?
3017.525  Whom do I ask if I have questions about a person on the 
List?
3017.530  Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment 
Actions
3017.600  How do suspension and debarment actions start?
3017.605  How does suspension differ from debarment?
3017.610  What procedures does the Department of Agriculture use in 
suspension and debarment actions?
3017.615  How does the Department of Agriculture notify a person of 
suspension and debarment actions?
3017.620  Do Federal agencies coordinate suspension and debarment 
actions?
3017.625  What is the scope of a suspension or debarment action?
3017.630  May the Department of Agriculture impute the conduct of 
one person to another?
3017.635  May the Department of Agriculture settle a debarment or 
suspension action?
3017.640  May a settlement include a voluntary exclusion?
3017.645  Do other Federal agencies know if the Department of 
Agriculture agrees to a voluntary exclusion?
Subpart G--Suspension
3017.700  When may the suspending official issue a suspension?
3017.705  What does the suspending official consider in issuing a 
suspension?
3017.710  When does a suspension take effect?
3017.715  What notice does the suspending official give me if I am 
suspended?
3017.720  How may I contest a suspension?
3017.725  How much time do I have to contest a suspension?
3017.730  What information must I provide to the suspending official 
if I contest a suspension?
3017.735  Under what conditions do I get an additional opportunity 
to challenge the facts on which the suspension is based?
3017.740  Are suspension proceedings formal?
3017.745  Is a record made of fact-finding proceedings?
3017.750  What does the suspending official consider in deciding 
whether to continue or terminate my suspension?
3017.755  When will I know whether the suspension is continued or 
terminated?
3017.760  How long may my suspension last?
3017.765  How may I appeal my suspension?
Subpart H--Debarment
3017.800  What are the causes for debarment?
3017.805  What notice does the debarring official give me if I am 
proposed for debarment?
3017.810  When does a debarment take effect?
3017.815  How may I contest a proposed debarment?
3017.820  How much time do I have to contest a proposed debarment?
3017.825  What information must I provide to the debarring official 
if I contest a proposed debarment?
3017.830  Under what conditions do I get an additional opportunity 
to challenge the facts on which the proposed debarment is based?
3017.835  Are debarment proceedings formal?
3017.840  Is a record made of fact-finding proceedings?
3017.845  What does the debarring official consider in deciding 
whether to debar me?
3017.850  What is the standard of proof in a debarment action?
3017.855  Who has the burden of proof in a debarment action?
3017.860  What factors may influence the debarring official's 
decision?
3017.865  How long may my debarment last?
3017.870  When do I know if the debarring official debars me?
3017.875  May I ask the debarring official to reconsider a decision 
to debar me?
3017.880  What factors may influence the debarring official during 
reconsideration?
3017.885  May the debarring official extend a debarment?
3017.890  How may I appeal my debarment?
Subpart I--Definitions
3017.900  Adequate evidence.
3017.905  Affiliate.
3017.910  Agency.
3017.915  Agent or representative.
3017.920  Civil judgment.
3017.925  Conviction.
3017.930  Debarment.
3017.935  Debarring official.
3017.940  Disqualified.
3017.945  Excluded or exclusion.
3017.950  Indictment.
3017.955  Ineligible or ineligibility.
3017.960  Legal proceedings.
3017.965  List of Parties Excluded or Disqualified From Federal 
Procurement and Nonprocurement Programs.
3017.970  Nonprocurement transaction.
3017.975  Notice.
3017.980  Participant.
3017.985   Person.
3017.990  Preponderance of the evidence.
3017.995  Principal.
3017.1000  Respondent.
3017.1005  State.
3017.1010  Suspending official.
3017.1015  Suspension.
3017.1020  Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]

Appendix to Part 3017--Covered Transactions

    Authority: 5 U.S.C. 301; Pub. L. 101-576, 104 Stat. 2838; Sec. 
2455, Pub. L. 103-355, 108 Stat. 3327 (31 U.S.C. 6101 note); E.O. 
12549 (3 CFR, 1986 Comp., p. 189); E.O. 12698 (3 CFR, 1989 Comp., p. 
235); 7 CFR part 2, subpart D, Sec. 2.28.
    2. Part 3017 is further amended as set forth below:
    a. ``[Agency noun]'' is removed and ``Department of Agriculture'' 
is added in its place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``Department of 
Agriculture'' is added in its place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``the Secretary of 
Agriculture or designee'' is added in its place wherever it occurs.
    3. Section 3017.50 is further amended by adding a sentence to the 
end of paragraph (c) to read as follows:


Sec. 3017.50  How is this part written?

    (c) * * * The ``Covered Transactions'' chart in the appendix to 
this part shows the general model for the levels or ``tiers'' at which 
the Department of Agriculture enforces an exclusion under this part. 
However, the chart in the appendix shows only the general model and the 
model will vary for certain categories of transactions in accordance 
with the exclusions from covered transactions in Secs. 3017.215 and 
3017.220.
    4. Section 3017.215 is further amended by adding paragraphs (h) 
through (p) to read as follows:


Sec. 3017.215  Which nonprocurement transactions are not covered 
transactions?

* * * * *
    (h) An entitlement or mandatory award required by a statue, 
including a lower tier entitlement or mandatory award that is required 
by a statute.
    (i) With respect to the Department of Agriculture's export and 
foreign assistance programs, any transaction below the primary tier 
covered transaction other than a nonprocurement transaction under the

[[Page 3293]]

Market Access Program between a nonprofit trade association or state 
regional group and a U.S. entity, as defined in part 1485 of this 
title.
    (j) Any transaction under the Department of Agriculture's 
conservation programs, warehouse licensing programs, or programs that 
provide statutory entitlements and make available loans to individuals 
and entities in their capacity as producers of agricultural 
commodities.
    (k) The export or substitution of Federal timber governed by the 
Forest Resources Conservation and Shortage Relief Act of 1990, 16 
U.S.C. 620 et seq. (The ``Export Act''), which provides separate 
statutory authority to debar.
    (l) The receipt of licenses, permits, certificates, and 
indemnification under regulatory programs conducted in the interest of 
public health and safety, and animal and plant health and safety.
    (m) The receipt of official grading and inspection services, animal 
damage control services, public health and safety inspection services, 
and animal and plant health and safety inspection services.
    (n) If the person is a State or local government, the provision of 
official grading and inspection services, animal damage control 
services, animal and plant health and safety inspection services.
    (o) The receipt of licenses, permit, or certificates under 
regulatory programs conducted in the interest of ensuring fair trade 
practices.
    (p) Permits, licenses, exchanges and other acquisitions of real 
property, rights of way, and easements under natural resource 
management programs.
    5. Section 3017.220 is amended by adding paragraph (d) to read as 
follows:


Sec. 3017.220  Are any procurement contracts included as covered 
transactions?

* * * * *
    (d) The contract is for the procurement of ocean transportation in 
connection with the Department of Agriculture's foreign assistance 
programs. With respect to the Department of Agriculture's export and 
foreign assistance programs, such contracts are the only procurement 
contracts included as covered transactions, not withstanding the 
provisions in paragraphs (a) through (c) of this section.
    6. Section 3017.440 is added to read as follows:


Sec. 3017.440  What method do I use to communicate those requirements 
to participants?

    To communicate the requirement, you must include a term or 
condition in the transaction requiring the participants' compliance 
with Subpart C of this part and requiring them to include similar term 
or condition in lower-tier covered transactions.
    7. Section 3017.755 is further amended by adding a sentence at the 
end of paragraph (a) to read as follows:


Sec. 3017.755  When will I know whether the suspension is continued or 
terminated?

    (a) * * * However, the record will remain open for the full 30 
days, as called for in Sec. 3017.725, even when you make a submission 
before the 30 days expire.
* * * * *
    8. Section 3017.765 is added to subpart G to read as follows:


Sec. 3017.765  How may I appeal my suspension?

    (a) An appeal may be filled only after the respondent has exhausted 
the option to contest the suspension in Sec. 3017.720. The appeal must 
be filed within 30 days of receiving the decision required 
Sec. 3017.755 and it must specify the basis of the appeal. The 
respondent must file the appeal in writing to the Hearing Clerk in the 
Office of Administrative Law Judges (OALJ), United States Department of 
Agriculture (USDA), Washington, DC 20250. The decision of a suspending 
official under Sec. 3017.700 may be vacated by the assigned appeals 
officer only if the officer determines that the decision is:
    (1) Not in accordance with law;
    (2) Not based on the applicable standard of evidence; or
    (3) Arbitrary and capricious and an abuse of discretion.
    (b) The appeals officer will base the decision solely on the 
administrative record.
    (c) Within 90 days of the date the appeal is filed with USDA's OALJ 
Hearing Clerk, the appeals officer will notify, in writing, the 
respondent(s) and the suspending official, who took the action being 
appealed, of the decision.
    (d) The appeals officer's decision is final and it not appealable 
within USDA.
    9. Section 3017.800 is further amended by adding paragraph (e) to 
read as follows:


Sec. 3017.800  What are the causes of debarment?

* * * * *
    (e) Notwithstanding paragraph (c) (1) of this section, within the 
Department of Agriculture a nonprocurement debarment by any Federal 
agency taken before March 1, 1989.
    10. Section 3017.870 is further amended by adding a sentence to the 
end of paragraph (a) to read as follows:


Sec. 3017.870  When do I know if the debarring official debars me?

    (a) * * * However, the record will remain open for the full 30 
days, as called for in Sec. 3017.820, even when you make a submission 
before the 30 days expire.
* * * * *
    11. Section 3017.890 is added to subpart H to read as follows:


Sec. 3017.890  How may I appeal my debarment?

    (a) An appeal may be filed only after the respondent has exhausted 
the option to contest the debarment in Sec. 3017.815. The appeal must 
be filed within 30 days of receiving the decision required 
Sec. 3017.870 and it must specify the basis of the appeal. The 
respondent must file the appeal in writing to the Hearing Clerk in the 
Office of Administrative Law Judges (OALJ), United States Department of 
Agriculture (USDA), Washington, DC 20250. The decision of a debarring 
official under Sec. 3017.800 may be vacated by the assigned appeals 
officer only if the officer determines that the decision is:
    (1) Not in accordance with law;
    (2) Not based on the applicable standard of evidence; or
    (3) Arbitrary and capricious and an abuse of discretion.
    (b) The appeals officer will base the decision solely on the 
administrative record.
    (c) Within 90 days of the date the appeal is filed with USDA's OALJ 
Hearing
    Clerk, the appeals officer will notify, in writing, the 
respondent(s) and the debarring official, who took the action being 
appealed, of the decision.
    (d) The appeals officer's decision is final and it not appealable 
within USDA.
    12. Section 3017.935 is further amended by adding paragraph (b) to 
read as follows:


Sec. 3017.935  Debarring official.

* * * * *
    (b) Within USDA, the Secretary has designated the Administrators of 
program agencies to be the debarring official, i.e. Administrator, Food 
and Nutrition Service. Further, the Secretary authorizes these 
officials to delegate any and all functions except for making the final 
decision. Final decision includes the decision to initiate, maintain, 
or continue a debarment.
    13. Section 3017.1010 is further amended by adding paragraph (b) to 
read as follows:


Sec. 3017.1010  Suspending official.

* * * * *

[[Page 3294]]

    (b) Within USDA, the Secretary has designated the Administrators of 
program agencies to be the suspending official, i.e. Administrator, 
Food and Nutrition Service. Further, the Secretary authorizes these 
officials to delegate any and all functions except for making the final 
decision. Final decision includes the decision to initiate, maintain, 
or continue a suspension.
    14. Part 3021 is added to read as set forth in instruction 2 at the 
end of the common preamble.

PART 3021--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE 
(FINANCIAL ASSISTANCE)

Subpart A--Purpose and Coverage
Sec.
3021.100   What does this part do?
3021.105   Does this part apply to me?
3021.110   Are any of my Federal assistance awards exempt from this 
part?
3021.115   Does this part affect the Federal contracts that I 
receive?
Subpart B--Requirements for Recipients Other Than Individuals
3021.200   What must I do to comply with this part?
3021.205   What must I include in my drug-free workplace statement?
3021.210   To whom must I distribute my drug-free workplace 
statement?
3021.215   What must I include in my drug-free awareness program?
3021.220   By when must I publish my drug-free workplace statement 
and establish my drug-free awareness program?
3021.225   What actions must I take concerning employees who are 
convicted of drug violations in the workplace?
3021.230   How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
3021.300   What must I do to comply with this part if I am an 
individual recipient?
3021.301   [Reserved]
Subpart D--Responsibilities of Department of Agriculture Awarding 
Officials
3021.400   What are my responsibilities as a Department of 
Agriculture awarding official?
Subpart E--Violations of This Part and Consequences
3021.500   How are violations of this part determined for recipients 
other than individuals?
3021.505   How are violations of this part determined for recipients 
who are individuals?
3021.510   What actions will the Federal Government take against a 
recipient determined to have violated this part?
3021.515   Are there any exceptions to those actions?
Subpart F--Definitions
3021.605   Award.
3021.610   Controlled substance.
3021.615   Conviction.
3021.620   Cooperative agreement.
3021.625   Criminal drug statute.
3021.630   Debarment.
3021.635   Drug-free workplace.
3021.640   Employee.
3021.645   Federal agency or agency.
3021.650   Grant.
3021.655   Individual.
3021.660   Recipient.
3021.665   State.
3021.670   Suspension.

    Authority: 5 U.S.C. 301; 41 U.S.C. 701, et seq.; Pub. L. 101-
576, 104 Stat. 2838; 7 CFR Part 2, Subpart D, Sec. 2.28.

    15. Part 3021 is further amended as set forth below:
    a. ``[Agency noun]'' is removed and ``Department of Agriculture'' 
is added in its place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``Department of 
Agriculture'' is added in its place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``the Secretary of 
Agriculture or designee'' is added in its place wherever it occurs.
    d. ``[Agency head]'' is removed and ``the Secretary of 
Agriculture'' is added in its place wherever it occurs.
    16. Section 3021.510(c) is further amended by removing ``[CFR 
citation for the Federal Agency's regulations implementing Executive 
Order 12549 and Executive Order 12689]'' and adding ``7 CFR part 3017'' 
in its place.
    17. Section 3021.605 (a)(2) is further amended by removing 
``[Agency-specific CFR citation]'' and adding ``7 CFR part 3016'' in 
its place.

DEPARTMENT OF ENERGY

10 CFR Parts 606, 607 and 1036

RIN 1991-AB56

FOR FURTHER INFORMATION CONTACT: Cynthia G. Yee, 202-586-1140; 
[email protected].
ADDITIONAL SUPPLEMENTARY INFORMATION: The administrative practices and 
procedures for suspension and debarment are being removed from part 
1036 and recodified in part 606. The requirements for maintaining a 
drug-free workplace are being removed as a subpart in the current 
debarment and suspension common rule, part 1036, and recodified as a 
separate part 607.

List of Subjects

10 CFR Part 606

    Administrative practice and procedure, Debarment and suspension, 
Government contracts, Grant programs, Loan programs, Reporting and 
recordkeeping requirements.

10 CFR Part 607

    Administrative practice and procedure, Drug abuse, Grant programs, 
Reporting and recordkeeping requirements.

    Dated: June 29, 2001.
Spencer Abraham,
Secretary of Energy.
    Accordingly, as set forth in the common preamble, and under the 
authority of 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq., the 
Department of Energy proposes to amend 10 CFR chapters II and X as 
follows.
    1. Part 606 is added to subchapter H to read as set forth in 
instruction 1 at the end of the common preamble.

PART 606--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)

606.25   How is this part organized?
606.50   How is this part written?
606.75   Do terms in this part have special meanings?
Subpart A--General
606.100  What does this part do?
606.105   Does this part apply to me?
606.110   What is the purpose of the nonprocurement debarment and 
suspension system?
606.115   How does an exclusion restrict a person's involvement in 
covered transactions?
606.120   May we grant an exception to let an excluded person 
participate in a covered transaction?
606.125   Does an exclusion under the nonprocurement system affect a 
person's eligibility to participate in Federal procurement 
contracts?
606.130   Does an exclusion under the Federal procurement system 
affect a person's eligibility to participate in nonprocurement 
transactions?
606.135   May the Department of Energy exclude a person who is not 
currently participating in a nonprocurement transaction?
606.140   How do I know if a person is excluded?
606.145   Does this part cover persons who are disqualified as well 
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
606.200   What is a covered transaction?
606.205   Why is it important to know if a particular transaction is 
a covered transaction?
606.210   Which nonprocurement transactions are covered 
transactions?
606.215   Which nonprocurement transactions are not covered 
transactions?
606.220   Are any procurement contracts included as covered 
transactions?
606.225   How do I know if a transaction that I may participate in 
is a covered transaction?

[[Page 3295]]

Subpart C--Responsibilities of Participants Regarding Transactions 
Doing Business With Other Persons
606.300   May I enter into a covered transaction with an excluded or 
disqualified person?
606.305   What must I do if a Federal agency excludes a person with 
whom I am already doing business in a covered transaction?
606.310   May I use the services of an excluded person under a 
covered transaction?
606.315   Must I verify that principals of my covered transactions 
are eligible to participate?
606.320   What happens if I do business with an excluded person in a 
covered transaction?
606.325   What requirements must I pass down to persons at lower 
tiers with whom I intend to do business?

Disclosing Information--Primary Tier Participants

606.330   What information must I provide before entering into a 
covered transaction with the Department of Energy?
606.335   If I disclose unfavorable information required under 
Sec. 606.330 will I be prevented from entering into the transaction?
606.340   What happens if I fail to disclose the information 
required under Sec. 606.330?
606.345   What must I do if I learn of the information required 
under Sec. 606.330 after entering into a covered transaction with 
the Department of Energy?

Disclosing information--Lower Tier Participants

606.350   What information must I provide to a higher tier 
participant before entering into a covered transaction with that 
participant?
606.355   What happens if I fail to disclose the information 
required under Sec. 606.350?
606.360   What must I do if I learn of information required under 
Sec. 606.350 after entering into a covered transaction with a higher 
tier participant?
Subpart D--Responsibilities of DOE Officials Regarding Transactions
606.400   May I enter into a transaction with an excluded or 
disqualified person?
606.405   May I enter into a covered transaction with a participant 
if a principal of the transaction is excluded?
606.410   May I approve a participant's use of the services of an 
excluded person?
606.415   What must I do if a Federal agency excludes the 
participant or a principal after I enter into a covered transaction?
606.420   May I approve a transaction with an excluded or 
disqualified person at a lower tier?
606.425   When do I check to see if a person is excluded or 
disqualified?
606.430   How do I check to see if a person is excluded or 
disqualified?
606.435   What must I require of a primary tier participant?
606.440   What method do I use to communicate to participants the 
requirement to comply with Subpart C?
606.445   What action may I take if a primary tier participant 
knowingly does business with an excluded or disqualified person?
606.450   What action may I take if a primary tier participant fails 
to disclose the information required under Sec. 606.330?
606.455   What may I do if a lower tier participant fails to 
disclose the information required under Sec. 606.350 to the next 
higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From 
Federal Procurement and Nonprocurement Programs
606.500   What is the purpose of the List?
606.505   Who uses the List?
606.510   Who maintains the List?
606.515   What specific information is on the List?
606.520   Who gives the GSA the information that it puts on the 
List?
606.525   Whom do I ask if I have questions about a person on the 
List?
606.530   Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment 
Actions
606.600   How do suspension and debarment actions start?
606.605   How does suspension differ from debarment?
606.610   What procedures does the Department of Energy use in 
suspension and debarment actions?
606.615   How does the Department of Energy notify a person of 
suspension and debarment actions?
606.620   Do Federal agencies coordinate suspension and debarment 
actions?
606.625   What is the scope of a suspension or debarment action?
606.630   May the Department of Energy impute the conduct of one 
person to another?
606.635   May the Department of Energy settle a debarment or 
suspension action?
606.640   May a settlement include a voluntary exclusion?
606.645   Do other Federal agencies know if the Department of Energy 
agrees to a voluntary exclusion?
Subpart G--Suspension
606.700   When may the suspending official issue a suspension?
606.705   What does the suspending official consider in issuing a 
suspension?
606.710   When does a suspension take effect?
606.715   What notice does the suspending official give me if I am 
suspended?
606.720   How may I contest a suspension?
606.725   How much time do I have to contest a suspension?
606.730   What information must I provide to the suspending official 
if I contest a suspension?
606.735   Under what conditions do I get an additional opportunity 
to challenge the facts on which the suspension is based?
606.740   Are suspension proceedings formal?
606.745   Is a record made of fact-finding proceedings?
606.746   Who conducts fact-finding conferences for DOE?
606.750   What does the suspending official consider in deciding 
whether to continue or terminate my suspension?
606.755   When will I know whether the suspension is continued or 
terminated?
606.760   How long may my suspension last?
Subpart H--Debarment
606.800   What are the causes for debarment?
606.805   What notice does the debarring official give me if I am 
proposed for debarment?
606.810   When does a debarment take effect?
606.815   How may I contest a proposed debarment?
606.820   How much time do I have to contest a proposed debarment?
606.825   What information must I provide to the debarring official 
if I contest a proposed debarment?
606.830   Under what conditions do I get an additional opportunity 
to challenge the facts on which the proposed debarment is based?
606.835   Are debarment proceedings formal?
606.836   Who conducts fact-finding conferences for DOE?
606.840   Is a record made of fact-finding proceedings?
606.845   What does the debarring official consider in deciding 
whether to debar me?
606.850   What is the standard of proof in a debarment action?
606.855   Who has the burden of proof in a debarment action?
606.860   What factors may influence the debarring official's 
decision?
606.865   How long may my debarment last?
606.870   When do I know if the debarring official debars me?
606.875   May I ask the debarring official to reconsider a decision 
to debar me?
606.880   What factors may influence the debarring official during 
reconsideration?
606.885   May the debarring official extend a debarment?
Subpart I--Definitions
606.900   Adequate evidence.
606.905   Affiliate.
606.910   Agency.
606.915   Agent or representative.
606.920   Civil judgment.
606.925   Conviction.
606.930   Debarment.
606.935   Debarring official.
606.936   Director, Office of Procurement and Assistance Management.
606.940   Disqualified.
606.945   Excluded or exclusion.
606.950   Indictment.
606.955   Ineligible or ineligibility.
606.960   Legal proceedings.
606.965   List of Parties Excluded or Disqualified From Federal 
Procurement and Nonprocurement Programs.
606.970   Nonprocurement transaction.
606.975   Notice.
606.980   Participant.

[[Page 3296]]

606.985   Person.
606.990   Preponderance of the evidence.
606.995   Principal.
606.1000   Respondent.
606.1005   State.
606.1010   Suspending official.
606.1015   Suspension.
606.1020   Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]

Appendix to Part 606--Covered Transactions

    Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O. 12689 (3 
CFR, 1989 Comp., p. 235); sec. 2455, Pub. L. 103-355, 108 Stat. 3327 
(31 U.S.C. 6101 note); 42 U.S.C. 7101 et seq.; 50 U.S.C. 2401 et 
seq.
    2. Part 606 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``Department of Energy'' is 
added in its place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``DOE'' is added in its 
place wherever it occurs. c. ``[Agency head or designee]'' is removed 
and ``Director, Office of Procurement and ``Assistance Management'' is 
added in its place wherever it occurs.
    3. Section 606.440 is added to read as follows:


Sec. 606.440  What method do I use to communicate to participants the 
requirement to comply with subpart C?

    To communicate the requirements, you must include a term or 
condition in the transaction requiring the participants' compliance 
with subpart C of this part and requiring them to include a similar 
term or condition in lower-tier covered transactions.
    4. Section 606.746 is added to read as follows:


Sec. 606.746  Who conducts fact-finding conferences for DOE?

    The Energy Board of Contract Appeals conducts fact-finding 
conferences for DOE, in accordance with the rules promulgated by the 
Energy Board of Contract Appeals.
    5. Section 606.836 is added to read as follows:


Sec. 606.836  Who conducts fact-finding conferences for DOE?

    The Energy Board of Contract Appeals conducts fact-finding 
conferences for DOE, in accordance with the rules promulgated by the 
Energy Board of Contract Appeals.
    6. Section 606.910 is further amended by adding a definition for 
Department of Energy in alphabetical order to read as follows:


Sec. 606.910  Agency.

* * * * *
    Department of Energy includes the National Nuclear Security 
Administration (NNSA), and the Federal Energy Regulatory Commission 
(FERC).
    7. Section 606.935 is further amended by adding paragraph (b) to 
read as follows:


Sec. 606.935  Debarring official.

* * * * *
    (b) The DOE debarring official is the Director, Office of 
Procurement and Assistance Management, DOE.
    8. Section 606.936 is added to read as follows:


Sec. 606.936  Director, Office of Procurement and Assistance 
Management.

    Director, Office of Procurement and Assistance Management means the 
Director, Office of Procurement and Assistance Management, DOE, or the 
Director, Office of Procurement and Assistance Management, NNSA, as 
appropriate.
    9. Section 606.1010 is further amended by adding paragraph (b) to 
read as follows:


Sec. 606.1010  Suspending official.

* * * * *
    (b) The DOE suspending official is the Director, Office of 
Procurement and Assistance Management, DOE.
    10. Part 607 is added to subchapter H to read as set forth in 
instruction 2 at the end of the common preamble.

PART 607--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE 
(FINANCIAL ASSISTANCE)

Subpart A--Purpose and Coverage
607.100   What does this part do?
607.105   Does this part apply to me?
607.110   Are any of my Federal assistance awards exempt from this 
part?
607.115   Does this part affect the Federal contracts that I 
receive?
Subpart B--Requirements for Recipients Other Than Individuals
607.200   What must I do to comply with this part?
607.205   What must I include in my drug-free workplace statement?
607.210   To whom must I distribute my drug-free workplace 
statement?
607.215   What must I include in my drug-free awareness program?
607.220   By when must I publish my drug-free workplace statement 
and establish my drug-free awareness program?
607.225   What actions must I take concerning employees who are 
convicted of drug violations in the workplace?
607.230   How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
607.300   What must I do to comply with this part if I am an 
individual recipient?
607.301   [Reserved]
Subpart D--Responsibilities of DOE Awarding Officials
607.400   What are my responsibilities as a DOE awarding official?
Subpart E--Violations of This Part and Consequences
607.500   How are violations of this part determined for recipients 
other than individuals?
607.505   How are violations of this part determined for recipients 
who are individuals?
607.510   What actions will the Federal Government take against a 
recipient determined to have violated this part?
607.515   Are there any exceptions to those actions?
Subpart F--Definitions
607.605   Award.
607.610   Controlled substance.
607.615  Conviction.
607.620  Cooperative agreement.
607.625  Criminal drug statute.
607.630  Debarment.
607.631  Director, Office of Procurement and Assistance Management.
607.635  Drug-free workplace.
607.640  Employee.
607.645  Federal agency or agency.
607.650  Grant.
607.655  Individual.
607.660  Recipient.
607.665  State.
607.670  Suspension.

    Authority: 41 U.S.C. 701, et seq.; 42 U.S.C. 7101 et seq.; 50 
U.S.C. 2401 et seq.

    11. Part 607 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``Department of Energy'' is 
added in its place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``DOE'' is added in its 
place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``Director, Office 
of Procurement and Assistance Management'' is added in its place 
wherever it occurs.
    d. ``[Agency head]'' is removed and ``Secretary of Energy'' is 
added in its place wherever it occurs.
    12. Section 607.510(c) is further amended by removing ``[CFR 
citation for the Federal agency's regulations implementing Executive 
order 12549 and Executive Order 12689]'' and adding ``10 CFR part 606'' 
in its place.
    13. Section 607.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``10 CFR Part 600'' in its place.
    14. Section 607.631 is added to read as follows:


Sec. 607.631  Director, Office of Procurement and Assistance 
Management.

    Director, Office of Procurement and Assistance Management means the 
Director, Office of Procurement and

[[Page 3297]]

Assistance Management, DOE, or the Director, Office of Procurement and 
Assistance Management, NNSA, as appropriate.
    15. Section 607.645 is further amended by adding the definition for 
Department of Energy in alphabetical order to read as follows:


Sec. 607.645  Federal Agency or agency.

    Department of Energy includes the National Nuclear Security 
Administration (NNSA), and the Federal Energy Regulatory Commission 
(FERC).
* * * * *

PART 1036--[REMOVED]

    16. Part 1036 is removed.

SMALL BUSINESS ADMINISTRATION

13 CFR Parts 145 and 147

RIN 3245-AE61

FOR FURTHER INFORMATION CONTACT: Cory Whitehead, SBA Debarring 
Official, Acting Assistant Administrator for Administration (5331), 
U.S. Small Business Administration, 409 Third Street, SW, Washington, 
DC 20416, (202) 205-6630, e-mail: [email protected] or Michael 
Campilongo, Office of General Counsel, 409 Third Street, SW, 
Washington, DC 20416, (202) 205-6879, e-mail: 
[email protected].

ADDITIONAL SUPPLEMENTARY INFORMATION: This part proposes optional lower 
tier suspension and debarment coverage by including a paragraph (d) in 
Sec. 145.220 for all contracts that equal or exceed the $25,000 award 
threshold under SBA nonprocurement transactions. This election 
maintains the SBA's present practice under the common rule.
    In addition, Sec. 145.440 proposes to use terms or conditions to 
the award transaction as a means to enforce exclusions under SBA 
transactions rather than written certifications. This alternative 
available under the common rule is more efficient than the SBA's 
current certification process for prospective recipients and 
participants.
    Sections 145.765 and 145.890 are included as additional sections 
under part 145 and propose to permit persons who have been suspended or 
debarred by the SBA Debarring Official to obtain a review of that 
decision on a limited basis as is currently available under SBA's 
existing rule. These sections propose to delegate the authority to 
issue a stay on a suspension or debarment decision to the reviewing 
official. These changes from current practice reflect a more practical 
approach to matters accepted for review.
    Sections 145.935(b) and 145.1010(b) are added to designate the 
Assistant Administrator for Administration as the SBA debarring and 
suspending official for SBA programs other than financial assistance. 
For that program, the SBA debarring and suspending official will be the 
Assistant Administrator for Financial Assistance.
    Section 145.995 of the debarment and suspension common rule defines 
the term ``principal.'' Agencies implementing the common rule are 
permitted to provide additional examples of principals that are 
commonly involved in their covered transactions. SBA is proposing to 
include several examples by adding a paragraph (c) to this section for 
the benefit of individuals who may be excluded, or employers who may 
have an individual employee who is excluded.
    The requirements for maintaining a drug-free workplace are being 
removed as Subpart F in the current debarment and suspension common 
rule, and re-codified as a separate part 147.

List of Subjects

13 CFR Part 145

    Administrative practice and procedure, Government contracts, Grant 
programs, Loan programs, Reporting and recordkeeping requirements, 
Small businesses.

13 CFR Part 147

    Administrative practice and procedure, Drug abuse, Grant programs, 
Reporting and recordkeeping requirements.

    Dated: June 15, 2001.
John Whitmore,
Acting Administrator, U.S. Small Business Administration.
    For the reasons stated in the common preamble, the U.S. Small 
Business Administration proposes to amend 13 CFR chapter I as follows:
    1. Part 145 is revised to read as set forth in instruction 1 at the 
end of the common preamble.

PART 145--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)

Sec.
145.25  How is this part organized?
145.50  How is this part written?
145.75  Do terms in this part have special meanings?
Subpart A--General
145.100  What does this part do?
145.105  Does this part apply to me?
145.110  What is the purpose of the nonprocurement debarment and 
suspension system?
145.115  How does an exclusion restrict a person's involvement in 
covered transactions?
145.120  May we grant an exception to let an excluded person 
participate in a covered transaction?
145.125  Does an exclusion under the nonprocurement system affect a 
person's eligibility to participate in Federal procurement 
contracts?
145.130  Does an exclusion under the Federal procurement system 
affect a person's eligibility to participate in nonprocurement 
transactions?
145.135  May the SBA exclude a person who is not currently 
participating in a nonprocurement transaction?
145.140  How do I know if a person is excluded?
145.145  Does this part cover persons who are disqualified as well 
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
145.200  What is a covered transaction?
145.205  Why is it important to know if a particular transaction is 
a covered transaction?
145.210  Which nonprocurement transactions are covered transactions?
145.215  Which nonprocurement transactions are not covered 
transactions?
145.220  Are any procurement contracts included as covered 
transactions?
145.225  How do I know if a transaction that I may participate in is 
a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions 
Doing Business With Other Persons
145.300  May I enter into a covered transaction with an excluded or 
disqualified person?
145.305  What must I do if a Federal agency excludes a person with 
whom I am already doing business in a covered transaction?
145.310  May I use the services of an excluded person under a 
covered transaction?
145.315  Must I verify that principals of my covered transactions 
are eligible to participate?
145.320  What happens if I do business with an excluded person in a 
covered transaction?
145.325  What requirements must I pass down to persons at lower 
tiers with whom I intend to do business?

Disclosing Information--Primary Tier Participants

145.330  What information must I provide before entering into a 
covered transaction with the SBA?
145.335  If I disclose unfavorable information required under 
Sec. 145.330 will I be prevented from entering into the transaction?
145.340  What happens if I fail to disclose the information required 
under Sec. 145.330?
145.345  What must I do if I learn of the information required under 
Sec. 145.330

[[Page 3298]]

after entering into a covered transaction with the SBA?

Disclosing Information--Lower Tier Participants

145.350  What information must I provide to a higher tier 
participant before entering into a covered transaction with that 
participant?
145.355  What happens if I fail to disclose the information required 
under Sec. 145.350?
145.360  What must I do if I learn of information required under 
Sec. 145.350 after entering into a covered transaction with a higher 
tier participant?
Subpart D--Responsibilities of SBA Officials Regarding Transactions
145.400  May I enter into a transaction with an excluded or 
disqualified person?
145.405  May I enter into a covered transaction with a participant 
if a principal of the transaction is excluded?
145.410  May I approve a participant's use of the services of an 
excluded person?
145.415  What must I do if a Federal agency excludes the participant 
or a principal after I enter into a covered transaction?
145.420  May I approve a transaction with an excluded or 
disqualified person at a lower tier?
145.425  When do I check to see if a person is excluded or 
disqualified?
145.430  How do I check to see if a person is excluded or 
disqualified?
145.435  What must I require of a primary tier participant?
145.440  What method do I use to communicate Sec. 145.335 
requirements to participants?
145.445  What action may I take if a primary tier participant 
knowingly does business with an excluded or disqualified person?
145.450  What action may I take if a primary tier participant fails 
to disclose the information required under Sec. 145.330?
145.455  What may I do if a lower tier participant fails to disclose 
the information required under Sec. 145.350 to the next higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From 
Federal Procurement and Nonprocurement Programs
145.500  What is the purpose of the List?
145.505  Who uses the List?
145.510  Who maintains the List?
145.515  What specific information is on the List?
145.520  Who gives the GSA the information that it puts on the List?
145.525  Whom do I ask if I have questions about a person on the 
List?
145.530  Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment 
Actions
145.600   How do suspension and debarment actions start?
145.605   How does suspension differ from debarment?
145.610   What procedures does the SBA use in suspension and 
debarment actions?
145.615   How does the SBA notify a person of suspension and 
debarment actions?
145.620   Do Federal agencies coordinate suspension and debarment 
actions?
145.625   What is the scope of a suspension or debarment action?
145.630   May the SBA impute the conduct of one person to another?
145.635   May the SBA settle a debarment or suspension action?
145.640   May a settlement include a voluntary exclusion?
145.645   Do other Federal agencies know if the SBA agrees to a 
voluntary exclusion?
Subpart G--Suspension
145.700   When may the suspending official issue a suspension?
145.705   What does the suspending official consider in issuing a 
suspension?
145.710   When does a suspension take effect?
145.715   What notice does the suspending official give me if I am 
suspended?
145.720   How may I contest a suspension?
145.725   How much time do I have to contest a suspension?
145.730   What information must I provide to the suspending official 
if I contest a suspension?
145.735   Under what conditions do I get an additional opportunity 
to challenge the facts on which the suspension is based?
145.740   Are suspension proceedings formal?
145.745   Is a record made of fact-finding proceedings?
145.750   What does the suspending official consider in deciding 
whether to continue or terminate my suspension?
145.755   When will I know whether the suspension is continued or 
terminated?
145.760   How long may my suspension last?
145.765   How may I appeal my suspension?
Subpart H--Debarment
145.800   What are the causes for debarment?
145.805   What notice does the debarring official give me if I am 
proposed for debarment?
145.810   When does a debarment take effect?
145.815   How may I contest a proposed debarment?
145.820   How much time do I have to contest a proposed debarment?
145.825   What information must I provide to the debarring official 
if I contest a proposed debarment?
145.830   Under what conditions do I get an additional opportunity 
to challenge the facts on which the proposed debarment is based?
145.835   Are debarment proceedings formal?
145.840   Is a record made of fact-finding proceedings?
145.845   What does the debarring official consider in deciding 
whether to debar me?
145.850   What is the standard of proof in a debarment action?
145.855   Who has the burden of proof in a debarment action?
145.860   What factors may influence the debarring official's 
decision?
145.865   How long may my debarment last?
145.870   When do I know if the debarring official debars me?
145.875   May I ask the debarring official to reconsider a decision 
to debar me?
145.880   What factors may influence the debarring official during 
reconsideration?
145.885   May the debarring official extend a debarment?
145.890   How may I appeal my debarment?
Subpart I--Definitions
145.900   Adequate evidence.
145.905   Affiliate.
145.910   Agency.
145.915   Agent or representative.
145.920   Civil judgment.
145.925   Conviction.
145.930   Debarment.
145.935   Debarring official.
145.940   Disqualified.
145.945   Excluded or exclusion.
145.950   Indictment.
145.955   Ineligible or ineligibility.
145.960   Legal proceedings.
145.965   List of parties excluded or disqualified from federal 
procurement and nonprocurement programs.
145.970   Nonprocurement transaction.
145.975   Notice.
145.980   Participant.
144.985   Person.
145.990   Preponderance of the evidence.
145.995   Principal.
145.1000   Respondent.
145.1005   State.
145.1010   Suspending official.
145.1015   Suspension.
145.1020   Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]

Appendix to Part 145--Covered Transactions

    Authority: 5 U.S.C. 301 et seq.; 15 U.S.C. 631 et seq.; Sec. 
2455, Pub. L. 103-355, 108 Stat. 3327 (31 U.S.C. 6101 note); E.O. 
11738, 3 CFR, 1973 Comp., p. 799; E.O. 12549, 3 CFR, 1986 Comp., p. 
189; E.O. 12689, 3 CFR, 1989 Comp., p. 235.

    2. Part 145 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and the ``SBA'' is added in its 
place wherever it occurs.
    b. ``[Agency adjective]'' is removed and the ``SBA'' is added in 
its place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and the ``SBA Debarring 
Official'' is added in its place wherever it occurs.
    3. Section 145.220 is further amended by adding a paragraph (d) to 
read as follows:


Sec. 145.220  Are any procurement contracts included as covered 
transactions?

* * * * *
    (d) The contract is awarded by any contractor, subcontractor, 
supplier, consultant or its agent or representative in any transaction, 
regardless of tier, to be funded or provided by the SBA under a 
nonprocurement transaction

[[Page 3299]]

that is expected to equal or exceed $25,000. (See optional lower tier 
coverage shown in the diagram in the appendix to this part.)
    4. Section 145.440 is added to read as follows:


Sec. 145.440  What method do I use to communicate Sec. 145.435 
requirements to participants?

    To communicate the requirements in Sec. 145.435 to participants, 
you must include a term or condition in the transaction requiring the 
participant's compliance with Subpart C of this part and requiring them 
to include a similar term or condition in lower tier covered 
transactions.
    5. Section 145.765 is added to subpart G to read as follows:


Sec. 145.765  How may I appeal my suspension?

    (a) If the SBA suspending official issues a decision under 
Sec. 145.755 to continue your suspension after you present information 
in opposition to that suspension under Sec. 145.720, you can ask for 
review of the suspending official's decision in two ways:
    (1) You may ask the suspending official to reconsider the decision 
for material errors of fact or law that you believe will change the 
outcome of the matter; and/or
    (2) You may request that the SBA Office of Hearings and Appeals 
(OHA), review the suspending official's decision to continue your 
suspension within 30 days of your receipt of the suspending official's 
decision under Sec. 145.755 or paragraph (a)(1) of this section. 
However, OHA can reverse the suspending official's decision only where 
OHA finds that the decision is based on a clear error of material fact 
or law, or where OHA finds that the suspending official's decision was 
arbitrary, capricious, or an abuse of discretion.
    (b) A request for review under this section must be in writing; 
state the specific findings you believe to be in error; and include the 
reasons or legal bases for your position.
    (c) OHA, in its discretion, may stay the suspension pending review 
of the suspending official's decision.
    (d) The SBA suspending official and OHA must notify you of their 
decisions under this section, in writing, using the notice procedures 
at Secs. 145.615 and 145.975.
    6. Section 145.890 is added to subpart H to read as follows:


Sec. 145.890  How may I appeal my debarment?

    (a) If the SBA debarring official issues a decision under 
Sec. 145.870 to debar you after you present information in opposition 
to a proposed debarment under Sec. 145.815, you can ask for review of 
the debarring official's decision in two ways:
    (1) You may ask the debarring official to reconsider the decision 
for material errors of fact or law that you believe will change the 
outcome of the matter; and/or
    (2) You may request that the SBA Office of Hearings and Appeals 
(OHA), review the debarring official's decision to debar you within 30 
days of your receipt of the debarring official's decision under 
Sec. 145.870 or paragraph (a)(1) of this section. However, OHA can 
reverse the debarring official's decision only where OHA finds that the 
decision is based on a clear error of material fact or law, or where 
OHA finds that the debarring official's decision was arbitrary, 
capricious, or an abuse of discretion.
    (b) A request for review under this section must be in writing; 
state the specific findings you believe to be in error; and include the 
reasons or legal bases for your position.
    (c) OHA may, in its discretion, stay the debarment pending review 
of the debarring official's decision.
    (d) The SBA debarring official and OHA must notify you of their 
decisions under this section, in writing, using the notice procedures 
at Secs. 145.615 and 145.975.
    7. Section 145.935 is further amended by adding a paragraph (b) to 
read as follows:


Sec. 145.935  Debarring official.

* * * * *
    (b) For SBA, the suspending official for financial assistance 
programs means the Assistant Administrator for Financial Assistance; 
for all other programs, the suspending official means the Assistant 
Administrator for Administration.
    8. Section 145.995 is further amended by adding a paragraph (c) to 
read as follows:


Sec. 145.995  Principal.

* * * * *
    (c) Other examples of individuals who are principals in SBA covered 
transactions include:
    (1) Principal investigators.
    (2) Securities brokers and dealers under the section 7(a) Loan, 
Certified Development Company (CDC) and Small Business Investment 
Company (SBIC) programs.
    (3) Applicant representatives under the section 7(a) Loan, 
Certified Development Company (CDC), Small Business Investment Company 
(SBIC), Small Business Development Center (SBDC), and section 7(j) 
programs.
    (4) Providers of professional services under section 7(a) Loan, 
Certified Development Company (CDC), Small Business Investment Company 
(SBIC), Small Business Development Center (SBDC), and section 7(j) 
programs.
    (5) Individuals that certify, authenticate or authorize billings.
    9. Section 145.1010 is further amended by adding a paragraph (b) to 
read as follows:


Sec. 145.1010  Suspending official.

* * * * *
    (b) For SBA, the debarring official for financial assistance 
programs means the Assistant Administrator for Financial Assistance; 
for all other programs, the debarring official means the Assistant 
Administrator for Administration.
    10. Part 147 is added to read as set forth in instruction 2 at the 
end of the common preamble.

PART 147--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE 
(NONPROCUREMENT)

Subpart A--Purpose and Coverage
Sec.
147.100   What does this part do?
147.105   Does this part apply to me?
147.110   Are any of my Federal assistance awards exempt from this 
part?
147.115   Does this part affect the Federal contracts that I 
receive?
Subpart B--Requirements for Recipients Other Than Individuals
147.200   What must I do to comply with this part?
147.205   What must I include in my drug-free workplace statement?
147.210   To whom must I distribute my drug-free workplace 
statement?
147.215   What must I include in my drug-free awareness program?
147.220   By when must I publish my drug-free workplace statement 
and establish my drug-free awareness program?
147.225   What actions must I take concerning employees who are 
convicted of drug violations in the workplace?
147.230   How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
147.300   What must I do to comply with this part if I am an 
individual recipient?
147.301   [Reserved]
Subpart D--Responsibilities of SBA Awarding Officials
147.400   What are my responsibilities as an SBA awarding official?
Subpart E--Violations of This Part and Consequences
147.500   How are violations of this part determined for recipients 
other than individuals?

[[Page 3300]]

147.505   How are violations of this part determined for recipients 
who are individuals?
147.510   What actions will the Federal Government take against a 
recipient determined to have violated this part?
147.515   Are there any exceptions to those actions?
Subpart F--Definitions
147.605   Award.
147.610   Controlled substance.
147.615   Conviction.
147.620   Cooperative agreement.
147.625   Criminal drug statute.
147.630   Debarment.
147.635   Drug-free workplace.
147.640   Employee.
147.645   Federal agency or agency.
147.650   Grant.
147.655   Individual.
147.660   Recipient.
147.665   State.
147.670   Suspension.

    Authority: 41 U.S.C. 701-707.

    11. Part 147 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and the ``SBA'' is added in its 
place wherever it occurs.
    b. ``[Agency adjective]'' is removed and the ``SBA'' is added in 
its place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and the ``SBA 
Administrator or designee'' is added in its place wherever it occurs.
    d. ``[Agency head]'' is removed and the ``SBA Administrator'' is 
added in its place wherever it occurs.
    12. Section 147.510(c) is further amended by removing ``[CFR 
citation for the Federal Agency's regulations implementing Executive 
Order 12549 and Executive Order 12689]'' and adding ``13 CFR part 145'' 
in its place.
    13. Section 147.605(a)(2) is amended by removing ``[Agency specific 
CFR citation]'' and adding ``13 CFR part 147'' in its place.

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

14 CFR Parts 1265 and 1267

RIN 2700-AC43

FOR FURTHER INFORMATION CONTACT: Diane Thompson, NASA Headquarters, 
Office of Procurement, Analysis Division (Code HC), Washington, DC 
20456-0001, (202) 358-0514, e-mail: [email protected].

List of Subjects

14 CFR Part 1265

    Administrative practice and procedure, Debarment and suspension, 
Grant programs, Reporting and recordkeeping requirements.

14 CFR Part 1267

    Administrative practice and procedure, Drug abuse, Grant programs, 
Reporting and recordkeeping requirements.

Anne Guenther,
Acting Associate Administrator for Procurement.
    For the reasons stated in the common preamble, the National 
Aeronautics and Space Administration proposes to amend 14 CFR chapter V 
as follows:
    1. Part 1265 is revised to read as set forth in instruction 1 at 
the end of the common preamble.

PART 1265--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)

Sec.
1265.25   How is this part organized?
1265.50   How is this part written?
1265.75   Do terms in this part have special meanings?
Subpart A--General
1265.100   What does this part do?
1265.105   Does this part apply to me?
1265.110   What is the purpose of the nonprocurement debarment and 
suspension system?
1265.115   How does an exclusion restrict a person's involvement in 
covered transactions?
1265.120   May we grant an exception to let an excluded person 
participate in a covered transaction?
1265.125   Does an exclusion under the nonprocurement system affect 
a person's eligibility to participate in Federal procurement 
contracts?
1265.130   Does an exclusion under the Federal procurement system 
affect a person's eligibility to participate in nonprocurement 
transactions?
1265.135   May NASA exclude a person who is not currently 
participating in a nonprocurement transaction?
1265.140   How do I know if a person is excluded?
1265.145   Does this part cover persons who are disqualified as well 
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
1265.200   What is a covered transaction?
1265.205   Why is it important to know if a particular transaction 
is a covered transaction?
1265.210   Which nonprocurement transactions are covered 
transactions?
1265.215   Which nonprocurement transactions are not covered 
transactions?
1265.220   Are any procurement contracts included as covered 
transactions?
1265.225   How do I know if a transaction that I may participate in 
is a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions 
Doing Business With Other Persons
1265.300   May I enter into a covered transaction with an excluded 
or disqualified person?
1265.305   What must I do if a Federal agency excludes a person with 
whom I am already doing business in a covered transaction?
1265.310   May I use the services of an excluded person under a 
covered transaction?
1265.315   Must I verify that principals of my covered transactions 
are eligible to participate?
1265.320   What happens if I do business with an excluded person in 
a covered transaction?
1265.325   What requirements must I pass down to persons at lower 
tiers with whom I intend to do business?

Disclosing Information Primary Tier Participants

1265.330   What information must I provide before entering into a 
covered transaction with NASA?
1265.335   If I disclose unfavorable information required under 
Sec. 1265.330 will I be prevented from entering into the 
transaction?
1265.340   What happens if I fail to disclose the information 
required under Sec. 1265.330?
1265.345   What must I do if I learn of the information required 
under Sec. 1265.330 after entering into a covered transaction with 
NASA?

Disclosing Information--Lower Tier Participants

1265.350   What information must I provide to a higher tier 
participant before entering into a covered transaction with that 
participant?
1265.355   What happens if I fail to disclose the information 
required under Sec. 1265.350?
1265.360   What must I do if I learn of information required under 
Sec. 1265.350 after entering into a covered transaction with a 
higher tier participant?
Subpart D--Responsibilities of NASA Officials Regarding Transactions
1265.400   May I enter into a transaction with an excluded or 
disqualified person?
1265.405   May I enter into a covered transaction with a participant 
if a principal of the transaction is excluded?
1265.410   May I approve a participant's use of the services of an 
excluded person?
1265.415   What must I do if a Federal agency excludes the 
participant or a principal after I enter into a covered transaction?
1265.420   May I approve a transaction with an excluded or 
disqualified person at a lower tier?
1265.425   When do I check to see if a person is excluded or 
disqualified?
1265.430   How do I check to see if a person is excluded or 
disqualified?
1265.435   What must I require of a primary tier participant?

[[Page 3301]]

1265.440   What method do I use to communicate those requirements to 
participants?
1265.445   What action may I take if a primary tier participant 
knowingly does business with an excluded or disqualified person?
1265.450   What action may I take if a primary tier participant 
fails to disclose the information required under Sec. 1265.330?
1265.455   What may I do if a lower tier participant fails to 
disclose the information required under Sec. 1265.350 to the next 
higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From 
Federal Procurement and Nonprocurement Programs
1265.500   What is the purpose of the List?
1265.505   Who uses the List?
1265.510   Who maintains the List?
1265.515   What specific information is on the List?
1265.520   Who gives the GSA the information that it puts on the 
List?
1265.525   Whom do I ask if I have questions about a person on the 
List?
1265.530   Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment 
Actions
1265.600   How do suspension and debarment actions start?
1265.605   How does suspension differ from debarment?
1265.610   What procedures does NASA use in suspension and debarment 
actions?
1265.615   How does NASA notify a person of suspension and debarment 
actions?
1265.620   Do Federal agencies coordinate suspension and debarment 
actions?
1265.625   What is the scope of a suspension or debarment action?
1265.630   May NASA impute the conduct of one person to another?
1265.635   May NASA settle a debarment or suspension action?
1265.640   May a settlement include a voluntary exclusion?
1265.645   Do other Federal agencies know if NASA agrees to a 
voluntary exclusion?
Subpart G--Suspension
1265.700   When may the suspending official issue a suspension?
1265.705   What does the suspending official consider in issuing a 
suspension?
1265.710   When does a suspension take effect?
1265.715   What notice does the suspending official give me if I am 
suspended?
1265.720   How may I contest a suspension?
1265.725   How much time do I have to contest a suspension?
1265.730   What information must I provide to the suspending 
official if I contest a suspension?
1265.735   Under what conditions do I get an additional opportunity 
to challenge the facts on which the suspension is based?
1265.740   Are suspension proceedings formal?
1265.745   Is a record made of fact-finding proceedings?
1265.750   What does the suspending official consider in deciding 
whether to continue or terminate my suspension?
1265.755   When will I know whether the suspension is continued or 
terminated?
1265.760   How long may my suspension last?
1265.765   How may I appeal my suspension?
Subpart H--Debarment
1265.800   What are the causes for debarment?
1265.805   What notice does the debarring official give me if I am 
proposed for debarment?
1265.810   When does a debarment take effect?
1265.815   How may I contest a proposed debarment?
1265.820   How much time do I have to contest a proposed debarment?
1265.825   What information must I provide to the debarring official 
if I contest a proposed debarment?
1265.830   Under what conditions do I get an additional opportunity 
to challenge the facts on which the proposed debarment is based?
1265.835   Are debarment proceedings formal?
1265.840   Is a record made of fact-finding proceedings?
1265.845   What does the debarring official consider in deciding 
whether to debar me?
1265.850   What is the standard of proof in a debarment action?
1265.855   Who has the burden of proof in a debarment action?
1265.860   What factors may influence the debarring official's 
decision?
1265.865   How long may my debarment last?
1265.870   When do I know if the debarring official debars me?
1265.875   May I ask the debarring official to reconsider a decision 
to debar me?
1265.880   What factors may influence the debarring official during 
reconsideration?
1265.885   May the debarring official extend a debarment?
1265.890   How may I appeal my debarment?
Subpart I--Definitions
1265.900   Adequate evidence.
1265.905   Affiliate.
1265.910   Agency.
1265.915   Agent or representative.
1265.920   Civil judgment.
1265.925   Conviction.
1265.930   Debarment.
1265.935   Debarring official.
1265.940   Disqualified.
1265.945   Excluded or exclusion.
1265.950   Indictment.
1265.955   Ineligible or ineligibility.
1265.960   Legal proceedings.
1265.965   List of Parties Excluded or Disqualified From Federal 
Procurement and Nonprocurement Programs.
1265.970   Nonprocurement transaction.
1265.975   Notice.
1265.980   Participant.
1265.985   Person.
1265.990   Preponderance of the evidence.
1265.995   Principal.
1265.1000   Respondent.
1265.1005   State.
1265.1010   Suspending official.
1265.1015   Suspension.
1265.1020   Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]

Appendix to Part 1265--Covered Transactions

    Authority: Sec. 2455, Pub. L. 103-355, 108 Stat. 3327 (31 U.S.C. 
6101 note); E.O. 11738, 3 CFR, 1973 Comp., p. 799; E.O. 12549, 3 
CFR, 1986 Comp., p. 189; E.O. 12689, 3 CFR, 1989 Comp., p. 235; 42 
U.S.C. 2473(c)(1).

    2. Part 1265 is further amended as set forth below.
    a. ``The [Agency noun]'' is removed and ``NASA'' is added in its 
place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``NASA'' is added in its 
place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``Associate 
Administrator for Procurement'' is added in its place wherever it 
occurs.
    3. Section 1265.440 is added to read as follows:


Sec. 1265.440  What method do I use to communicate the requirements to 
participants?

    To communicate the requirements to participants, you must include a 
term or condition in the transaction requiring the participant's 
compliance with Subpart C of this part and requiring them to include a 
similar term or condition in lower tier covered transactions.
    4. Part 1267 is added to read as set forth in instruction 2 at the 
end of the common preamble.

PART 1267--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE 
(FINANCIAL ASSISTANCE)

Subpart A--Purpose and Coverage
Sec.
1267.100  What does this part do?
1267.105  Does this part apply to me?
1267.110  Are any of my Federal assistance awards exempt from this 
part?
1267.115  Does this part affect the Federal contracts that I 
receive?
Subpart B--Requirements for Recipients Other Than Individuals
1267.200  What must I do to comply with this part?
1267.205  What must I include in my drug-free workplace statement?
1267.210  To whom must I distribute my drug-free workplace 
statement?
1267.215  What must I include in my drug-free awareness program?

[[Page 3302]]

1267.220  By when must I publish my drug-free workplace statement 
and establish my drug-free awareness program?
1267.225  What actions must I take concerning employees who are 
convicted of drug violations in the workplace?
1267.230  How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
1267.300  What must I do to comply with this part if I am an 
individual recipient?
1267.301  [Reserved]
Subpart D--Responsibilities of NASA Awarding Officials
1267.400  What are my responsibilities as a NASA awarding official?
Subpart E--Violations of This Part and Consequences
1267.500  How are violations of this part determined for recipients 
other than individuals?
1267.505  How are violations of this part determined for recipients 
who are individuals?
1267.510  What actions will the Federal Government take against a 
recipient determined to have violated this part?
1267.515  Are there any exceptions to those actions?
Subpart F--Definitions
1267.605  Award.
1267.610  Controlled substance.
1267.615  Conviction.
1267.620  Cooperative agreement.
1267.625  Criminal drug statute.
1267.630  Debarment.
1267.635  Drug-free workplace.
1267.640  Employee.
1267.645  Federal agency or agency.
1267.650  Grant.
1267.655  Individual.
1267.660  Recipient.
1267.665  State.
1267.670  Suspension.

    Authority: 41 U.S.C. 701 et seq.; 42 U.S.C. 2473c.

    5. Part 1267 is further amended as set forth below.
    a. ``The [Agency noun]'' is removed and ``NASA'' is added in its 
place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``NASA'' is added in its 
place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``Associate 
Administrator for Procurement'' is added in its place wherever it 
occurs.
    d. ``[Agency head]'' is removed and ``Associate Administrator for 
Procurement'' is added in its place wherever it occurs.
    6. Section 1267.510(c) is further amended by removing ``[CFR 
citation for the Federal Agency's regulations implementing Executive 
Order 12549 and Executive Order 12689]'' and adding ``14 CFR part 
1265'' in its place.
    7. Section 1267.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``14 CFR part 1273'' in its place.

DEPARTMENT OF COMMERCE

15 CFR Parts 26 and 29

[Docket No. 950601145-5145-01]

RIN 0605-AA02

FOR FURTHER INFORMATION CONTACT: Elizabeth L. Dorfman, Office of 
Executive Assistance Management, U.S. Department of Commerce, 14th 
Street and Constitution Avenue, NW., Room HCHB 6022, Washington, DC 
20230, 202-482-4115, e-mail: [email protected].
ADDITIONAL SUPPLEMENTARY INFORMATION: The Department of Commerce (DoC) 
proposes this amendment to the governmentwide common rules on debarment 
and suspension (nonprocurement) and requirements for drug-free 
workplace (financial assistance). The DoC will maintain uniform 
procedures that are consistent with those of other Executive 
Departments and Agencies. The DoC has reviewed its programs and 
determined that those identified at Sec. 26.215 (d), (f) and (g) are 
excluded from coverage under the debarment and suspension regulations. 
The DoC has elected to add paragraph (d) in Sec. 26.220 so that the 
coverage of Sec. 26.220 (a) is extended to one additional tier of 
contracts. As specified in Sec. 26.440, DoC will use a term or 
condition as a means to communicate requirements to participants.

List of Subjects

15 CFR Part 26

    Administrative practice and procedure, Debarment and suspension, 
Grant programs, Reporting and recordkeeping requirements.

15 CFR Part 29

    Administrative practice and procedure, Drug abuse, Grant programs, 
Reporting and recordkeeping requirements.

    Approved: June 4, 2001.
Robert F. Kugelman,
Director, Office of Executive Budgeting and Assistance Management, 
Department of Commerce.
    Accordingly, as set forth in the common preamble, 15 CFR subtitle A 
is proposed to be amended as follows:
    1. Part 26 is revised to read as set forth in instruction 1 at the 
end of the common preamble.

PART 26--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)

Sec.
26.25  How is this part organized?
26.50  How is this part written?
26.75  Do terms in this part have special meanings?
Subpart A--General
26.100  What does this part do?
26.105  Does this part apply to me?
26.110  What is the purpose of the nonprocurement debarment and 
suspension system?
26.115  How does an exclusion restrict a person's involvement in 
covered transactions?
26.120  May we grant an exception to let an excluded person 
participate in a covered transaction?
26.125  Does an exclusion under the nonprocurement system affect a 
person's eligibility to participate in Federal procurement 
contracts?
26.130  Does an exclusion under the Federal procurement system 
affect a person's eligibility to participate in nonprocurement 
transactions?
26.135  May the Department of Commerce exclude a person who is not 
currently participating in a nonprocurement transaction?
26.140  How do I know if a person is excluded?
26.145  Does this part cover persons who are disqualified as well as 
those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
26.200  What is a covered transaction?
26.205  Why is it important to know if a particular transaction is a 
covered transaction?
26.210  Which nonprocurement transactions are covered transactions?
26.215  Which nonprocurement transactions are not covered 
transactions?
26.220  Are any procurement contracts included as covered 
transactions?
26.225  How do I know if a transaction that I may participate in is 
a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions 
Doing Business With Other Persons
26.300  May I enter into a covered transaction with an excluded or 
disqualified person?
26.305  What must I do if a Federal agency excludes a person with 
whom I am already doing business in a covered transaction?
26.310  May I use the services of an excluded person under a covered 
transaction?
26.315  Must I verify that principals of my covered transactions are 
eligible to participate?
26.320  What happens if I do business with an excluded person in a 
covered transaction?

[[Page 3303]]

26.325  What requirements must I pass down to persons at lower tiers 
with whom I intend to do business?

Disclosing Information--Primary Tier Participants

26.330  What information must I provide before entering into a 
covered transaction with the Department of Commerce?
26.335  If I disclose unfavorable information required under 
Sec. 26.330 will I be prevented from entering into the transaction?
26.340  What happens if I fail to disclose the information required 
under Sec. 26.330?
26.345  What must I do if I learn of the information required under 
Sec. 26.330 after entering into a covered transaction with the 
Department of Commerce?

Disclosing information--Lower Tier Participants

26.350  What information must I provide to a higher tier participant 
before entering into a covered transaction with that participant?
26.355  What happens if I fail to disclose the information required 
under Sec. 26.350?
26.360  What must I do if I learn of information required under 
Sec. 26.350 after entering into a covered transaction with a higher 
tier participant?
Subpart D--Responsibilities of DoC Officials Regarding Transactions
26.400  May I enter into a transaction with an excluded or 
disqualified person?
26.405  May I enter into a covered transaction with a participant if 
a principal of the transaction is excluded?
26.410  May I approve a participant's use of the services of an 
excluded person?
26.415  What must I do if a Federal agency excludes the participant 
or a principal after I enter into a covered transaction?
26.420  May I approve a transaction with an excluded or disqualified 
person at a lower tier?
26.425  When do I check to see if a person is excluded or 
disqualified?
26.430  How do I check to see if a person is excluded or 
disqualified?
26.435  What must I require of a primary tier participant?
26.440  What method do I use to communicate those requirements to 
participants?
26.445   What action may I take if a primary tier participant 
knowingly does business with an excluded or disqualified person?
26.450  What action may I take if a primary tier participant fails 
to disclose the information required under Sec. 26.330?
26.455  What may I do if a lower tier participant fails to disclose 
the information required under Sec. 26.350 to the next higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From 
Federal Procurement and Nonprocurement Programs
26.500  What is the purpose of the List?
26.505  Who uses the List?
26.510  Who maintains the List?
26.515  What specific information is on the List?
26.520  Who gives the GSA the information that it puts on the List?
26.525  Whom do I ask if I have questions about a person on the 
List?
26.530  Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment 
Actions
26.600  How do suspension and debarment actions start?
26.605  How does suspension differ from debarment?
26.610  What procedures does the Department of Commerce use in 
suspension and debarment actions?
26.615  How does the Department of Commerce notify a person of 
suspension and debarment actions?
26.620  Do Federal agencies coordinate suspension and debarment 
actions?
26.625  What is the scope of a suspension or debarment action?
26.630  May the Department of Commerce impute the conduct of one 
person to another?
26.635  May the Department of Commerce settle a debarment or 
suspension action?
26.640  May a settlement include a voluntary exclusion?
26.645  Do other Federal agencies know if the Department of Commerce 
agrees to a voluntary exclusion?
Subpart G--Suspension
26.700  When may the suspending official issue a suspension?
26.705  What does the suspending official consider in issuing a 
suspension?
26.710  When does a suspension take effect?
26.715  What notice does the suspending official give me if I am 
suspended?
26.720  How may I contest a suspension?
26.725  How much time do I have to contest a suspension?
26.730  What information must I provide to the suspending official 
if I contest a suspension?
26.735  Under what conditions do I get an additional opportunity to 
challenge the facts on which the suspension is based?
26.740  Are suspension proceedings formal?
26.745  Is a record made of fact-finding proceedings?
26.750  What does the suspending official consider in deciding 
whether to continue or terminate my suspension?
26.755  When will I know whether the suspension is continued or 
terminated?
26.760  How long may my suspension last?
Subpart H--Debarment
26.800  What are the causes for debarment?
26.805  What notice does the debarring official give me if I am 
proposed for debarment?
26.810  When does a debarment take effect?
26.815  How may I contest a proposed debarment?
26.820  How much time do I have to contest a proposed debarment?
26.825  What information must I provide to the debarring official if 
I contest a proposed debarment?
26.830  Under what conditions do I get an additional opportunity to 
challenge the facts on which the proposed debarment is based?
26.835  Are debarment proceedings formal?
26.840  Is a record made of fact-finding proceedings?
26.845  What does the debarring official consider in deciding 
whether to debar me?
26.850  What is the standard of proof in a debarment action?
26.855  Who has the burden of proof in a debarment action?
26.860  What factors may influence the debarring official's 
decision?
26.865  How long may my debarment last?
26.870  When do I know if the debarring official debars me?
26.875  May I ask the debarring official to reconsider a decision to 
debar me?
26.880  What factors may influence the debarring official during 
reconsideration?
26.885  May the debarring official extend a debarment?
Subpart I--Definitions
26.900  Adequate evidence.
26.905  Affiliate.
26.910  Agency.
26.915  Agent or representative.
26.920  Civil judgment.
26.925  Conviction.
26.930  Debarment
26.935  Debarring official.
26.940  Disqualified.
26.945  Excluded or exclusion.
26.950  Indictment.
26.955  Ineligible or ineligibility.
26.960  Legal proceedings.
26.965  List of Parties Excluded or Disqualified From Federal 
Procurement and Nonprocurement Programs.
26.970  Nonprocurement transaction.
26.975  Notice.
26.980  Participant
26.985  Person.
26.990  Preponderance of the evidence.
26.995  Principal.
26.1000  Respondent.
26.1005  State.
26.1010  Suspending official.
26.1015  Suspension.
26.1020  Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]

Appendix to Part 26--Covered Transactions

    Authority: 5 U.S.C. 301; Sec. 2455, Pub. L. 103-355, 108 Stat. 
3327 (31 U.S.C. 6101 note); E.O. 12549 (3 CFR, 1986 Comp., p. 189); 
E.O. 12689 (3 CFR, 1989 Comp., p. 235).

    2. Part 26 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``Department of Commerce'' is 
added in its place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``DoC'' is added in its 
place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``Director, Office 
of Executive Budgeting and Assistance Management'' is added in its 
place wherever it occurs.

[[Page 3304]]

    3. Section 26.215 is amended as follows:
    a. Add paragraph (d)(1) and add and reserve paragraph (d)(2).
    b. Add paragraph (f)(1) and add and reserve paragraph (f)(2).
    c. Add paragraph (g)(1) and add and reserve paragraph (g)(2).
    The additions read as follows:


Sec. 26.215  Which nonprocurement transactions are not covered 
transactions?

* * * * *
    (d) * * *
    (1) Fisherman's Contingency Fund
    (2) [Reserved]
* * * * *
    (f) * * *
    (1) For purposes of the DoC this means:
    (i) Export Promotion, Trade Information and Counseling, and Trade 
Policy.
    (ii) Geodetic Surveys and Services (Specialized Services).
    (iii) Fishery Products Inspection Certification.
    (iv) Standard Reference Materials.
    (v) Calibration, Measurement and Testing.
    (vi) Critically Evaluated Data (Standard Reference Data).
    (vii) Phoenix Data System.
    (viii) The sale or provision of products, information, and services 
to the general public.
    (2) [Reserved]
    (g) * * *
    (1) For purposes of the DoC this means:
    (i) The Administration of the Antidumping and Countervailing Duty 
Statutes.
    (ii) The Export Trading Company Act Certificate of Review Program.
    (iii) Trade Adjustment Assistance Program Certification.
    (iv) Foreign Trade Zones Act of 1934, as amended.
    (v) Statutory Import Program.
    (2) [Reserved]
    4. Section 26.220 is amended to add paragraph (d) to read as 
follows:


Sec. 26.220  Are any procurement contracts included as covered 
transactions?

* * * * *
    (d) The contract is a subcontract awarded by a participant in a 
procurement transaction that is covered under paragraph (a) of this 
section, and the amount of the contract exceeds or is expected to 
exceed $25,000. This extends the coverage of paragraph (a) of this 
section to one additional tier of contracts, as shown in the diagram in 
the Appendix to this part.
    5. Section 26.440 is added to read as follows:


Sec. 26.440  What method do I use to communicate those requirements to 
participants?

    To communicate the requirements to participants, you must include a 
term or condition in the transaction requiring the participants' 
compliance with Subpart C of this part and requiring them to include a 
similar term or condition in lower-tier covered transactions.
    6. Section 26.970 is amended to add paragraphs (a)(12) through 
(a)(16) to read as follows:


Sec. 26.970  Nonprocurement transaction.

    (a) * * *
    (12) Joint Project Agreements under 15 U.S.C. 1525.
    (13) Cooperative research and development agreements.
    (14) Joint statistical agreements.
    (15) Patent licenses under 35 U.S.C. 207.
    (16) NTIS joint ventures, 15 U.S.C. 3704b.
* * * * *
    7. Part 29 is added to read as set forth in instruction 2 at the 
end of the common preamble.

PART 29--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE 
(FINANCIAL ASSISTANCE)

Subpart A--Purpose and Coverage
29.100  What does this part do?
29.105  Does this part apply to me?
29.110  Are any of my Federal assistance awards exempt from this 
part?
29.115  Does this part affect the Federal contracts that I receive?
Subpart B--Requirements for Recipients Other Than Individuals
29.200  What must I do to comply with this part?
29.205  What must I include in my drug-free workplace statement?
29.210  To whom must I distribute my drug-free workplace statement?
29.215  What must I include in my drug-free awareness program?
29.220  By when must I publish my drug-free workplace statement and 
establish my drug-free awareness program?
29.225  What actions must I take concerning employees who are 
convicted of drug violations in the workplace?
29.230  How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who are Individuals
29.300  What must I do to comply with this part if I am an 
individual recipient?
29.301  [Reserved]
Subpart D--Responsibilities of DoC Awarding Officials
29.400  What are my responsibilities as a DoC awarding official?
Subpart E--Violations of This Part and Consequences
29.500  How are violations of this part determined for recipients 
other than individuals?
29.505  How are violations of this part determined for recipients 
who are individuals?
29.510  What actions will the Federal Government take against a 
recipient determined to have violated this part?
29.515  Are there any exceptions to those actions?
Subpart F--Definitions
29.605  Award.
29.610  Controlled substance.
29.615  Conviction.
29.620  Cooperative agreement.
29.625  Criminal drug statute.
29.630  Debarment.
29.635  Drug-free workplace.
29.640  Employee.
29.645  Federal agency or agency.
29.650  Grant.
29.655  Individual.
29.660  Recipient.
29.665  State.
29.670  Suspension.

    Authority: 5 U.S.C. 301; 41 U.S.C. 701 et seq.

    8. Part 29 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``Department of Commerce'' is 
added in its place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``DoC'' is added in its 
place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``Director, Office 
of Executive Budgeting and Assistance Management is added in its place 
wherever it occurs.
    d. ``[Agency head]'' is removed and ``Secretary of Commerce'' is 
added in its place wherever it occurs.
    9. Section 29.510(c) is further amended by removing ``[CFR citation 
for the Federal agency's regulations implementing Executive Order 12549 
and Executive Order 12689]'' and adding ``15 CFR part 26'' in its 
place.
    10. Section 29.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``15 CFR part 24'' in its place.

SOCIAL SECURITY ADMINISTRATION 

20 CFR Parts 436 and 439

RIN 0096-AE27 

FOR FURTHER INFORMATION CONTACT: Phyllis Y. Smith, Grants Management 
Officer, Office of Acquisition and Grants, Grants Management Team, 1710 
Gwynn Oak Ave Baltimore, MD 21207, (410) 965-9518, e-mail: 
[email protected].

ADDITIONAL SUPPLEMENTARY INFORMATION: Prior to March 31, 1995, SSA was 
an

[[Page 3305]]

operating component of the Department of Health and Human Services 
(HHS). As a result of Public Law 103-296, the Social Security 
Administration (SSA) became an independent agency on March 31, 1995. 
However, pursuant to section 106(b) of that law, the HHS regulations at 
45 CFR part 76 dealing with nonprocurement, debarment and suspension, 
and the requirements for a drug-free workplace have remained applicable 
to SSA. In order to implement its own set of regulations on these 
topics, SSA proposes to adopt the common rules on nonprocurement, 
debarment and suspension, and requirements for a drug-free workplace 
with one amendment as new parts 436 and 439 in title 20 of the Code of 
Federal Regulations. HHS regulations at 45 CFR part 76 will cease to be 
applicable to SSA on the effective date of these regulations, in 
accordance with section 106(b) of Pub. L. 103-296. Under the proposed 
amendment, Sec. 436.440 would use terms or conditions to the award 
transaction as a means to enforce exclusions under SSA transactions 
rather than written certifications. This alternative available under 
the common rule is more efficient than SSA's current certification 
process for prospective recipients and participants.

Paperwork Reduction Act

    SSA will clear separately the reporting and recordkeeping 
requirements in proposed 20 CFR parts 436 and 439 in accordance with 
the requirements of 44 U.S.C. chapter 35 prior to effectuating its own 
rules incorporating the proposed common rule. When effective, the 
proposed SSA rules will not actually impose any additional reporting or 
recordkeeping burden on the public since SSA has been following the 
requirements in the HHS rules in 45 CFR part 76 that were in effect on 
March 31, 1995, the date SSA became an independent agency, and SSA is 
making no substantive changes to those requirements. However, clearance 
is necessary to reflect that adoption of the common rule as a final 
rule by SSA will transfer from HHS to SSA the authority for the 
reporting and recordkeeping requirements SSA has been imposing on the 
public under the HHS rules.

List of Subjects

20 CFR Part 436

    Administrative practice and procedures, Debarment and suspension, 
Grant programs, and reporting and Recordkeeping requirements.

20 CFR Part 439

    Administrative practice and procedure, Drug abuse, Grant programs, 
Reporting and record keeping requirements.

Larry G. Massanari,
Acting Commissioner of Social Security.

    For the reasons stated in the common preamble, we propose to amend 
chapter III of title 20 of the Code of Federal Regulations as follows:
    1. Part 436 is added to read as set forth in instruction 1 at the 
end of the common preamble.

PART 436--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)

Sec.
436.25  How is this part organized?
436.50  How is this part written?
436.75  Do terms in this part have special meanings?
Subpart A--General
436.100  What does this part do?
436.105  Does this part apply to me?
436.110  What is the purpose of the nonprocurement debarment and 
suspension system?
436.115  How does an exclusion restrict a person's involvement in 
covered transactions?
436.120  May we grant an exception to let an excluded person 
participate in a covered transaction?
436.125  Does an exclusion under the nonprocurement system affect a 
person's eligibility to participate in Federal procurement 
contracts?
436.130  Does an exclusion under the Federal procurement system 
affect a person's eligibility to participate in nonprocurement 
transactions?
436.135  May the SSA exclude a person who is not currently 
participating in a nonprocurement transaction?
436.140  How do I know if a person is excluded?
436.145  Does this part cover persons who are disqualified as well 
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
436.200  What is a covered transaction?
436.205  Why is it important to know if a particular transaction is 
a covered transaction?
436.210  Which nonprocurement transactions are covered transactions?
436.215  Which nonprocurement transactions are not covered 
transactions?
436.220  Are any procurement contracts included as covered 
transactions?
436.225  How do I know if a transaction that I may participate in is 
a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions 
Doing Business With Other Persons
436.300   May I enter into a covered transaction with an excluded or 
disqualified person?
436.305   What must I do if a Federal agency excludes a person with 
whom I am already doing business in a covered transaction?
436.310   May I use the services of an excluded person under a 
covered transaction?
436.315   Must I verify that principals of my covered transactions 
are eligible to participate?
436.320   What happens if I do business with an excluded person in a 
covered transaction?
436.325   What requirements must I pass down to persons at lower 
tiers with whom I intend to do business?

Disclosing Information--Primary Tier Participants

436.330   What information must I provide before entering into a 
covered transaction with the SSA?
436.335   If I disclose unfavorable information required under 
Sec. 436.330, will I be prevented from entering into the 
transaction?
436.340   What happens if I fail to disclose the information 
required under Sec. 436.330?
436.345   What must I do if I learn of information required under 
Sec. 436.330 after entering into a covered transaction with the SSA?

Disclosing Information--Lower Tier Participants

436.350   What information must I provide to a higher tier 
participant before entering into a covered transaction with that 
participant?
436.355   What happens if I fail to disclose the information 
required under Sec. 436.350?
436.360   What must I do if I learn of information required under 
Sec. 436.350 after entering into a covered transaction with a higher 
tier participant?
Subpart D--Responsibilities of SSA Officials Regarding Transactions
436.400   May I enter into a transaction with an excluded or 
disqualified person?
436.405   May I enter into a covered transaction with a participant 
if a principal of the transaction is excluded?
436.410   May I approve a participant's use of the services of an 
excluded person?
436.415   What must I do if a Federal agency excludes the 
participant or a principal after I enter into a covered transaction?
436.420   May I approve a transaction with an excluded or 
disqualified person at a lower tier?
436.425   When do I check to see if a person is excluded or 
disqualified?
436.430   How do I check to see if a person is excluded or 
disqualified?
436.435   What must I require of a primary tier participant?

[[Page 3306]]

436.440   What method do I use to communicate those requirements to 
participants?
436.445   What action may I take if a primary tier participant 
knowingly does business with an excluded or disqualified person?
436.450   What action may I take if a primary tier participant fails 
to disclose the information required under Sec. 436.330?
436.455   What may I do if a lower tier participant fails to 
disclose the information required under Sec. 436.350 to the next 
higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From 
Federal Procurement and Nonprocurement Programs
436.500   What is the purpose of the List?
436.505   Who uses the List?
436.510   Who maintains the List?
436.515   What specific information is on the List?
436.520   Who gives the GSA the information that it puts on the 
List?
436.525   Whom do I ask if I have questions about a person on the 
List?
436.530   Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment 
Actions
436.600   How do suspension and debarment actions start?
436.605   How does suspension differ from debarment?
436.610   What procedures does the SSA use in suspension and 
debarment actions?
436.615   How does the SSA notify a person of suspension and 
debarment actions?
436.620   Do Federal agencies coordinate suspension and debarment 
actions?
436.625   What is the scope of a suspension or debarment action?
436.630   May the SSA impute the conduct of one person to another?
436.635   May the SSA settle a debarment or suspension action?
436.640   May a settlement include a voluntary exclusion?
436.645   Do other Federal agencies know if the SSA agrees to a 
voluntary exclusion?
Subpart G--Suspension
436.700   When may the suspending official issue a suspension?
436.705   What does the suspending official consider in issuing a 
suspension?
436.710   When does a suspension take effect?
436.715   What notice does the suspending official give me if I am 
suspended?
436.720   How may I contest a suspension?
436.725   How much time do I have to contest a suspension?
436.730   What information must I provide to the suspending official 
if I contest a suspension?
436.735   Under what conditions do I get an additional opportunity 
to challenge the facts on which the suspension is based?
436.740   Are suspension proceedings formal?
436.745   Is a record made of fact-finding proceedings?
436.750   What does the suspending official consider in deciding 
whether to continue or terminate my suspension?
436.755   When will I know whether the suspension is continued or 
terminated?
436.760   How long may my suspension last?
Subpart H--Debarment
436.800   What are the causes for debarment?
436.805   What notice does the debarring official give me if I am 
proposed for debarment?
436.810   When does a debarment take effect?
436.815   How may I contest a proposed debarment?
436.820   How much time do I have to contest a proposed debarment?
436.825   What information must I provide to the debarring official 
if I contest a proposed debarment?
436.830   Under what conditions do I get an additional opportunity 
to challenge the facts on which the proposed debarment is based?
436.835   Are debarment proceedings formal?
436.840   Is a record made of fact-finding proceedings?
436.845   What does the debarring official consider in deciding 
whether to debar me?
436.850   What is the standard of proof in a debarment action?
436.855   Who has the burden of proof in a debarment action?
436.860   What factors may influence the debarring official's 
decision?
436.865   How long may my debarment last?
436.870   When do I know if the debarring official debars me?
436.875   May I ask the debarring official to reconsider a decision 
to debar me?
436.880   What factors may influence the debarring official during 
reconsideration?
436.885   May the debarring official extend a debarment?
Subpart I--Definitions
436.900   Adequate evidence.
436.905   Affiliate.
436.910   Agency.
436.915   Agent or representative.
436.920   Civil judgment.
436.925   Conviction.
436.930   Debarment.
436.935   Debarring official.
436.940   Disqualified.
436.945   Excluded or exclusion.
436.950   Indictment.
436.955   Ineligible or ineligibility.
436.960   Legal proceedings.
436.965   List of Parties Excluded or Disqualified from Federal 
Procurement and Nonprocurement Programs.
436.970   Nonprocurement transaction.
436.975   Notice.
436.980   Participant.
436.985   Person.
436.990   Preponderance of the evidence.
436.995   Principal.
436.1000   Respondent.
436.1005   State.
436.1010   Suspending official.
436.1015   Suspension.
436.1020   Voluntary exclusion or voluntarily excluded
Subpart J [Reserved]

Appendix to Part 436--Covered Transactions

    Authority: 42 U.S.C. 902(a)(5); Sec. 2455, Pub. L. 103-355, 108 
Stat. 3327; E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O. 12689 (3 
CFR, 1989 Comp., p. 235).

    2. Part 436 is further amended as follows:
    a. ``[Agency noun]'' is removed and ``SSA'' is added in its place 
wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``SSA'' is added in its 
place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``SSA Debarring/
Suspension Official'' is added in its place wherever it occurs.
    3. Section 436.440 is added to read as follows:


Sec. 436.440  What method do I use to communicate those requirements to 
participants?

    To communicate the requirements to participants, you must include a 
term or condition in the transaction requiring the participant's 
compliance with subpart C of this part and requiring them to include a 
similar term or condition in lower tier covered transactions.
    4. Part 439 is added to read as set forth in instruction 2 at the 
end of the common preamble.

PART 439--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE 
(FINANCIAL ASSISTANCE)

Subpart A--Purpose and Coverage
Sec.
439.100   What does this part do?
439.105   Does this part apply to me?
439.110   Are any of my Federal assistance awards exempt from this 
part?
439.115   Does this part affect the Federal contracts that I 
receive?
Subpart B--Requirements for Recipients Other Than Individuals
439.200   What must I do to comply with this part?
439.205   What must I include in my drug-free workplace statement?
439.210   To whom must I distribute my drug-free workplace 
statement?
439.215   What must I include in my drug-free awareness program?
439.220   By when must I publish my drug-free workplace statement 
and establish my drug-free awareness program?
439.225   What actions must I take concerning employees who are 
convicted of drug violations in the workplace?
439.230   How and when must I identify workplaces?

[[Page 3307]]

Subpart C--Requirements for Recipients who are Individuals
439.300   What must I do to comply with this part if I am an 
individual recipient?
439.301   [Reserved]
Subpart D--Responsibilities of SSA Awarding Officials
439.400   What are my responsibilities as an SSA awarding official?
Subpart E--Violations of This Part and Consequences
439.500   How are violations of this part determined for recipients 
other than individuals?
439.505   How are violations of this part determined for recipients 
who are individuals?
439.510   What actions will the Federal Government take against a 
recipient determined to have violated this part?
439.515   Are there any exceptions to those actions?
Subpart F--Definitions
439.605   Award.
439.610   Controlled substance.
439.615   Conviction.
439.620  Cooperative agreement.
439.625  Criminal drug statute.
439.630  Debarment.
439.635  Drug-free workplace.
439.640  Employee.
439.645  Federal agency or agency.
439.650  Grant.
439.655  Individual.
439.660  Recipient.
439.665  State.
439.670  Suspension.

    Authority: 41 U.S.C. 701 et seq; 42 U.S.C. 902(a)(5).

    5. Part 439 is further amended as follows:
    a. ``[Agency noun]'' is removed and ``the SSA'' is added in its 
place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``SSA'' is added in its 
place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``SSA Official or 
designee'' is added in its place wherever it occurs.
    d. ``[Agency head]'' is removed and ``the Commissioner of SSA'' is 
added in its place wherever it occurs.
    6. Section 439.510(c) is further amended by removing ``[CFR 
citation for the Federal Agency's regulations implementing Executive 
Order 12549 and Executive Order 12689]''and adding ``20 CFR part 436'' 
in its place.
    7. Section 439.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]''and adding ``45 CFR part 92'' in its place.

OFFICE OF NATIONAL DRUG CONTROL POLICY

21 CFR Parts 1404 and 1405

RIN 3201-ZA02

FOR FURTHER INFORMATION CONTACT: ONDCP, Attn: Daniel R. Petersen, 
Washington, DC 20503, (202) 395-6745, [email protected].

List of Subjects

21 CFR Part 1404

    Administrative practice and procedure, Debarment and suspension, 
Grant programs, Reporting and recordkeeping requirements.

21 CFR Part 1405

    Administrative practice and procedure, Drug abuse, Grant programs, 
Reporting and recordkeeping requirements.

Edward H. Jurith,
 Acting Director.
    Accordingly, as set forth in the common preamble, 21 CFR chapter 
III is proposed to be amended as follows.
    1. Part 1404 is revised to read as set forth in instruction 1 at 
the end of the common preamble.

PART 1404--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)

Sec.
1404.25  How is this part organized?
1404.50  How is this part written?
1404.75  Do terms in this part have special meanings?
Subpart A--General
1404.100  What does this part do?
1404.105  Does this part apply to me?
1404.110  What is the purpose of the nonprocurement debarment and 
suspension system?
1404.115  How does an exclusion restrict a person's involvement in 
covered transactions?
1404.120  May we grant an exception to let an excluded person 
participate in a covered transaction?
1404.125  Does an exclusion under the nonprocurement system affect a 
person's eligibility to participate in Federal procurement 
contracts?
1404.130  Does an exclusion under the Federal procurement system 
affect a person's eligibility to participate in nonprocurement 
transactions?
1404.135  May the Office of National Drug Control Policy exclude a 
person who is not currently participating in a nonprocurement 
transaction?
1404.140  How do I know if a person is excluded?
1404.145  Does this part cover persons who are disqualified as well 
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
1404.200  What is a covered transaction?
1404.205  Why is it important to know if a particular transaction is 
a covered transaction?
1404.210  Which nonprocurement transactions are covered 
transactions?
1404.215  Which nonprocurement transactions are not covered 
transactions?
1404.220  Are any procurement contracts included as covered 
transactions?
1404.225  How do I know if a transaction that I may participate in 
is a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions 
Doing Business With Other Persons
1404.300  May I enter into a covered transaction with an excluded or 
disqualified person?
1404.305  What must I do if a Federal agency excludes a person with 
whom I am already doing business in a covered transaction?
1404.310  May I use the services of an excluded person under a 
covered transaction?
1404.315  Must I verify that principals of my covered transactions 
are eligible to participate?
1404.320  What happens if I do business with an excluded person in a 
covered transaction?
1404.325  What requirements must I pass down to persons at lower 
tiers with whom I intend to do business?

Disclosing Information--Primary Tier Participants

1404.330  What information must I provide before entering into a 
covered transaction with the Office of National Drug Control Policy.
1404.335  If I disclose unfavorable information required under 
Sec. 1404.330 will I be prevented from entering into the 
transaction?
1404.340  What happens if I fail to disclose the information 
required under Sec. 1404.330?
1404.345  What must I do if I learn of the information required 
under Sec. 1404.330 after entering into a covered transaction with 
the Office of National Drug Control Policy?

Disclosing Information--Lower Tier Participants

1404.350  What information must I provide to a higher tier 
participant before entering into a covered transaction with that 
participant?
1404.355  What happens if I fail to disclose the information 
required under Sec. 1404.350?
1404.360  What must I do if I learn of information required under 
Sec. 1404.350 after entering into a covered transaction with a 
higher tier participant?
Subpart D--Responsibilities of Office of National Drug Control Policy 
Officials Regarding Transactions
1404.400  May I enter into a transaction with an excluded or 
disqualified person?

[[Page 3308]]

1404.405  May I enter into a covered transaction with a participant 
if a principal of the transaction is excluded?
1404.410  May I approve a participant's use of the services of an 
excluded person?
1404.415  What must I do if a Federal agency excludes the 
participant or a principal after I enter into a covered transaction?
1404.420  May I approve a transaction with an excluded or 
disqualified person at a lower tier?
1404.425  When do I check to see if a person is excluded or 
disqualified?
1404.430  How do I check to see if a person is excluded or 
disqualified?
1404.435  What must I require of a primary tier participant?
1404.440  What method do I use to communicate to participants the 
requirements in Sec. 1404.435?
1404.445  What action may I take if a primary tier participant 
knowingly does business with an excluded or disqualified person?
1404.450  What action may I take if a primary tier participant fails 
to disclose the information required under Sec. 1404.330?
1404.455  What may I do if a lower tier participant fails to 
disclose the information required under Sec. 1404.350 to the next 
higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From 
Federal Procurement and Nonprocurement Programs
1404.500  What is the purpose of the List?
1404.505  Who uses the List?
1404.510  Who maintains the List?
1404.515  What specific information is on the List?
1404.520  Who gives the GSA the information that it puts on the 
List?
1404.525  Whom do I ask if I have questions about a person on the 
List?
1404.530  Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment 
Actions
1404.600  How do suspension and debarment actions start?
1404.605  How does suspension differ from debarment?
1404.610  What procedures does the Office of National Drug Control 
Policy use in suspension and debarment actions?
1404.615  How does the Office of National Drug Control Policy notify 
a person of suspension and debarment actions?
1404.620  Do Federal agencies coordinate suspension and debarment 
actions?
1404.625  What is the scope of a suspension or debarment action?
1404.630  May the Office of National Drug Control Policy impute the 
conduct of one person to another?
1404.635  May the Office of National Drug Control Policy settle a 
debarment or suspension action?
1404.640  May a settlement include a voluntary exclusion?
1404.645  Do other Federal agencies know if the Office of National 
Drug Control Policy agrees to a voluntary exclusion?
Subpart G--Suspension
1404.700  When may the suspending official issue a suspension?
1404.705   What does the suspending official consider in issuing a 
suspension?
1404.710   When does a suspension take effect?
1404.715   What notice does the suspending official give me if I am 
suspended?
1404.720   How may I contest a suspension?
1404.725   How much time do I have to contest a suspension?
1404.730   What information must I provide to the suspending 
official if I contest a suspension?
1404.735   Under what conditions do I get an additional opportunity 
to challenge the facts on which the suspension is based?
1404.740   Are suspension proceedings formal?
1404.745   Is a record made of fact-finding proceedings?
1404.750   What does the suspending official consider in deciding 
whether to continue or terminate my suspension?
1404.755   When will I know whether the suspension is continued or 
terminated?
1404.760   How long may my suspension last?
Subpart H--Debarment
1404.800   What are the causes for debarment?
1404.805   What notice does the debarring official give me if I am 
proposed for debarment?
1404.810   When does a debarment take effect?
1404.815   How may I contest a proposed debarment?
1404.820   How much time do I have to contest a proposed debarment?
1404.825   What information must I provide to the debarring official 
if I contest a proposed debarment?
1404.830   Under what conditions do I get an additional opportunity 
to challenge the facts on which the proposed debarment is based?
1404.835   Are debarment proceedings formal?
1404.840   Is a record made of fact-finding proceedings?
1404.845   What does the debarring official consider in deciding 
whether to debar me?
1404.850   What is the standard of proof in a debarment action?
1404.855   Who has the burden of proof in a debarment action?
1404.860   What factors may influence the debarring official's 
decision?
1404.865   How long may my debarment last?
1404.870   When do I know if the debarring official debars me?
1404.875   May I ask the debarring official to reconsider a decision 
to debar me?
1404.880   What factors may influence the debarring official during 
reconsideration?
1404.885   May the debarring official extend a debarment?
Subpart I--Definitions
1404.900   Adequate evidence.
1404.905   Affiliate.
1404.910   Agency.
1404.915   Agent or representative.
1404.920   Civil judgment.
1404.925   Conviction.
1404.930   Debarment
1404.935   Debarring official.
1404.940   Disqualified.
1404.945   Excluded or exclusion.
1404.950   Indictment.
1404.955   Ineligible or ineligibility.
1404.960   Legal proceedings.
1404.965   List of Parties Excluded or Disqualified From Federal 
Procurement and Nonprocurement Programs.
1404.970   Nonprocurement transaction.
1404.975   Notice.
1404.980   Participant.
1404.985   Person.
1404.990   Preponderance of the evidence.
1404.995   Principal.
1404.1000   Respondent.
1404.1005   State.
1404.1010   Suspending official.
1404.1015   Suspension.
1404.1020   Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]

Appendix to Part 1404--Covered Transactions

    Authority: E.O. 12549 3 CFR 1986 Comp., p. 189; E.O. 12689 3 CFR 
1989 Comp., p. 235; sec. 2455, Pub. L. 103-355, 108 Stat. 3327 (31 
U.S.C. 6101 note); 21 U.S.C. 1701.

    2. Part 1404 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``Office of National Drug 
Control Policy'' is added in its place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``Office of National Drug 
Control Policy'' is added in its place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``Director of 
National Drug Control Policy'' is added in its place wherever it 
occurs.
    3. Section 1404.440 is added to read as follows:


Sec. 1404.440  What method do I use to communicate to participants the 
requirements in Sec. 1404.435?

    You must obtain certifications from participants that they will 
comply with Subpart C of this part and that they will obtain similar 
certifications from lower-tier participants.
    4. Part 1405 is added to read as set forth in instruction 2 at the 
end of the common preamble.

PART 1405--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE 
(FINANCIAL ASSISTANCE)

Subpart A--Purpose and Coverage
1405.100   What does this part do?
1405.105   Does this part apply to me?
1405.110   Are any of my Federal assistance awards exempt from this 
part?

[[Page 3309]]

1405.115   Does this part affect the Federal contracts that I 
receive?
Subpart B--Requirements for Recipients Other than Individuals
1405.200  What must I do to comply with this part?
1405.205   What must I include in my drug-free workplace statement?
1405.210   To whom must I distribute my drug-free workplace 
statement?
1405.215   What must I include in my drug-free awareness program?
1405.220   By when must I publish my drug-free workplace statement 
and establish my drug-free awareness program?
1405.225   What actions must I take concerning employees who are 
convicted of drug violations in the workplace?
1405.230   How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
1405.300   What must I do to comply with this part if I am an 
individual recipient?
1405.301   [Reserved]
Subpart D--Responsibilities of Office of National Drug Control Policy 
Awarding Officials
1405.400   What are my responsibilities as an Office of National 
Drug Control Policy awarding official?
Subpart E--Violations of This Part and Consequences
1405.500   How are violations of this part determined for recipients 
other than individuals?
1405.505   How are violations of this part determined for recipients 
who are individuals?
1405.510   What actions will the Federal Government take against a 
recipient determined to have violated this part?
1405.515   Are there exceptions to those actions?
Subpart F--Definitions
1405.605   Award.
1405.610   Controlled substance.
1405.615   Conviction.
1405.620   Cooperative agreement.
1405.625   Criminal drug statute.
1405.630   Debarment.
1405.635   Drug-free workplace.
1405.640   Employee.
1405.645   Federal agency or agency.
1405.650   Grant.
1405.655   Individual.
1405.660   Recipient.
1405.665   State.
1405.670   Suspension.

    Authority: 21 U.S.C. 1701; 41 U.S.C. 701, et seq.

    5. Part 1405 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``Office of National Drug 
Control Policy'' is added in its place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``Office of National Drug 
Control Policy'' is added in its place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``Director of 
National Drug Control Policy'' is added in its place wherever it 
occurs.
    d. ``[Agency head]'' is removed and ``Director of National Drug 
Control Policy'' is added in its place wherever it occurs.
    6. Section 1405.510(c) is further amended by removing ``[CFR 
citation for the Federal Agency's regulations implementing Executive 
Order 12549 and Executive Order 12689]'' and adding ``21 CFR part 
1404'' in its place.
    7. Section 1405.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``21 CFR part 1403'' in its place.

DEPARTMENT OF STATE

22 CFR Parts 133 and 137

RIN 1400-AB-33

FOR FURTHER INFORMATION CONTACT: Gladys Gines, Procurement Analyst, 
Policy Division, Office of the Procurement Executive, U.S. Department 
of State, Washington, DC 20522, (703) 516-1691.

List of Subjects

22 CFR Part 133

    Administrative practice and procedure, Drug abuse, Grant programs, 
Reporting and recordkeeping requirements.

22 CFR Part 137

    Administrative practice and procedure, Debarment and suspension, 
Grant programs, Reporting and recordkeeping requirements.

    Approved: August 17, 2001.
Lloyd W. Pratsch,
Procurement Executive, Department of State.
    Accordingly, as set forth in the common preamble, the Department of 
State proposes to amend 22 CFR chapter I, as follows:
    1. Part 133 is added to read as set forth in instruction 2 at the 
end of the common preamble.

PART 133--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE 
(FINANCIAL ASSISTANCE)

Subpart A--Purpose and Coverage
133.100  What does this part do?
133.105  Does this part apply to me?
133.110  Are any of my Federal assistance awards exempt from this 
part?
133.115  Does this part affect the Federal contracts that I receive?
Subpart B--Requirements for Recipients Other Than Individuals
133.200  What must I do to comply with this part?
133.205  What must I include in my drug-free workplace statement?
133.210  To whom must I distribute my drug-free workplace statement?
133.215  What must I include in my drug-free awareness program?
133.220  By when must I publish my drug-free workplace statement and 
establish my drug-free awareness program?
133.225  What actions must I take concerning employees who are 
convicted of drug violations in the workplace?
133.230  How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
133.300  What must I do to comply with this part if I am an 
individual recipient?
133.301  [Reserved]
Subpart D--Responsibilities of Department of State Awarding Officials
133.400  What are my responsibilities as a Department of State 
awarding official?
Subpart E--Violations of This Part and Consequences
133.500  How are violations of this part determined for recipients 
other than individuals?
133.505  How are violations of this part determined for recipients 
who are individuals?
133.510  What actions will the Federal Government take against a 
recipient determined to have violated this part?
133.515  Are there any exceptions to those actions?
Subpart F--Definitions
133.605  Award.
133.610  Controlled substance.
133.615  Conviction.
133.620  Cooperative agreement.
133.625  Criminal drug statute.
133.630  Debarment.
133.635  Drug-free workplace.
133.640  Employee.
133.645  Federal agency or agency.
133.650  Grant.
133.655  Individual.
133.660  Recipient.
133.665  State.
133.670  Suspension.

    Authority: 22 U.S.C. 2658; 41 U.S.C. 701, et seq.

    2. Part 133 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``Department of State'' is 
added in its place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``Department of State'' is 
added in its place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``Procurement 
Executive'' is added in its place wherever it occurs.
    d. ``[Agency head]'' is removed and ``Procurement Executive'' is 
added in its place wherever it occurs.
    3. Section 133.510(c) is further amended by removing ``[CFR 
citation for the Federal Agency's regulations

[[Page 3310]]

implementing Executive Order 12549 and Executive Order 12689]'' and 
adding ``22 CFR part 137'' in its place.
    4. Section 133.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``22 CFR part 135'' in its place.
    5. Part 137 is revised to read as set forth in instruction 1 at the 
end of the common preamble.

PART 137--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)

137.25  How is this part organized?
137.50  How is this part written?
137.75  Do terms in this part have special meanings?
Subpart A--General
137.100  What does this part do?
137.105  Does this part apply to me?
137.110  What is the purpose of the nonprocurement debarment and 
suspension system?
137.115  How does an exclusion restrict a person's involvement in 
covered transactions?
137.120  May we grant an exception to let an excluded person 
participate in a covered transaction?
137.125  Does an exclusion under the nonprocurement system affect a 
person's eligibility to participate in Federal procurement 
contracts?
137.130  Does an exclusion under the Federal procurement system 
affect a person's eligibility to participate in nonprocurement 
transactions?
137.135  May the Department of State exclude a person who is not 
currently participating in a nonprocurement transaction?
137.140  How do I know if a person is excluded?
137.145  Does this part cover persons who are disqualified as well 
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
137.200  What is a covered transaction?
137.205  Why is it important to know if a particular transaction is 
a covered transaction?
137.210  Which nonprocurement transactions are covered transactions?
137.215  Which nonprocurement transactions are not covered 
transactions?
137.220  Are any procurement contracts included as covered 
transactions?
137.225  How do I know if a transaction that I may participate in is 
a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions 
Doing Business With Other Persons
137.300  May I enter into a covered transaction with an excluded or 
disqualified person?
137.305  What must I do if a Federal agency excludes a person with 
whom I am already doing business in a covered transaction?
137.310  May I use the services of an excluded person under a 
covered transaction?
137.315  Must I verify that principals of my covered transactions 
are eligible to participate?
137.320  What happens if I do business with an excluded person in a 
covered transaction?
137.325  What requirements must I pass down to persons at lower 
tiers with whom I intend to do business?

Disclosing Information Primary Tier Participants

137.330  What information must I provide before entering into a 
covered transaction with the Department of State?
137.335  If I disclose unfavorable information required under 
Sec. 137.330 will I be prevented from entering into the transaction?
137.340  What happens if I fail to disclose the information required 
under Sec. 137.330?
137.345  What must I do if I learn of the information required under 
Sec. 137.330 after entering into a covered transaction with the 
Department of State?

Disclosing Information--Lower Tier Participants

137.350  What information must I provide to a higher tier 
participant before entering into a covered transaction with that 
participant?
137.355  What happens if I fail to disclose the information required 
under Sec. 137.350?
137.360  What must I do if I learn of information required under 
Sec. 137.350 after entering into a covered transaction with a higher 
tier participant?
Subpart D--Responsibilities of Department of State Officials Regarding 
Transactions
137.400  May I enter into a transaction with an excluded or 
disqualified person?
137.405  May I enter into a covered transaction with a participant 
if a principal of the transaction is excluded?
137.410  May I approve a participant's use of the services of an 
excluded person?
137.415  What must I do if a Federal agency excludes the participant 
or a principal after I enter into a covered transaction?
137.420  May I approve a transaction with an excluded or 
disqualified person at a lower tier?
137.425  When do I check to see if a person is excluded or 
disqualified?
137.430  How do I check to see if a person is excluded or 
disqualified?
137.435  What must I require of a primary tier participant?
137.440  What method do I use to communicate those requirements to 
participants?
137.445  What action may I take if a primary tier participant 
knowingly does business with an excluded or disqualified person?
137.450  What action may I take if a primary tier participant fails 
to disclose the information required under Sec. 137.330?
137.455  What may I do if a lower tier participant fails to disclose 
the information required under Sec. 137.350 to the next higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified from 
Federal Procurement and Nonprocurement Programs
137.500  What is the purpose of the List?
137.505  Who uses the List?
137.510  Who maintains the List?
137.515  What specific information is on the List?
137.520  Who gives the GSA the information that it puts on the List?
137.525  Whom do I ask if I have questions about a person on the 
List?
137.530  Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment 
Actions
137.600  How do suspension and debarment actions start?
137.605  How does suspension differ from debarment?
137.610  What procedures does the Department of State use in 
suspension and debarment actions?
137.615  How does the Department of State notify a person of 
suspension and debarment actions?
137.620  Do Federal agencies coordinate suspension and debarment 
actions?
137.625  What is the scope of a suspension or debarment action?
137.630   May the Department of State impute the conduct of one 
person to another?
137.635   May the Department of State settle a debarment or 
suspension action?
137.640   May a settlement include a voluntary exclusion?
137.645   Do other Federal agencies know if the Department of State 
agrees to a voluntary exclusion?
Subpart G--Suspension
137.700   When may the suspending official issue a suspension?
137.705   What does the suspending official consider in issuing a 
suspension?
137.710   When does a suspension take effect?
137.715   What notice does the suspending official give me if I am 
suspended?
137.720   How may I contest a suspension?
137.725   How much time do I have to contest a suspension?
137.730   What information must I provide to the suspending official 
if I contest a suspension?
137.735   Under what conditions do I get an additional opportunity 
to challenge the facts on which the suspension is based?
137.740   Are suspension proceedings formal?
137.745   Is a record made of fact-finding proceedings?
137.750   What does the suspending official consider in deciding 
whether to continue or terminate my suspension?
137.755   When will I know whether the suspension is continued or 
terminated?
137.760   How long may my suspension last?

[[Page 3311]]

Subpart H--Debarment
137.800   What are the causes for debarment?
137.805   What notice does the debarring official give me if I am 
proposed for debarment?
137.810   When does a debarment take effect?
137.815   How may I contest a proposed debarment?
137.820   How much time do I have to contest a proposed debarment?
137.825   What information must I provide to the debarring official 
if I contest a proposed debarment?
137.830   Under what conditions do I get an additional opportunity 
to challenge the facts on which the proposed debarment is based?
137.835   Are debarment proceedings formal?
137.840   Is a record made of fact-finding proceedings?
137.845   What does the debarring official consider in deciding 
whether to debar me?
137.850   What is the standard of proof in a debarment action?
137.855   Who has the burden of proof in a debarment action?
137.860   What factors may influence the debarring official's 
decision?
137.865   How long may my debarment last?
137.870   When do I know if the debarring official debars me?
137.875   May I ask the debarring official to reconsider a decision 
to debar me?
137.880   What factors may influence the debarring official during 
reconsideration?
137.885   May the debarring official extend a debarment?
Subpart I--Definitions
137.900   Adequate evidence.
137.905   Affiliate.
137.910   Agency.
137.915   Agent or representative.
137.920   Civil judgment.
137.925   Conviction.
137.930   Debarment.
137.935   Debarring official.
137.940   Disqualified.
137.945   Excluded or exclusion.
137.950   Indictment.
137.955   Ineligible or ineligibility.
137.960   Legal proceedings.
137.965   List of Parties Excluded or Disqualified From Federal 
Procurement and Nonprocurement Programs.
137.970   Nonprocurement transaction.
137.975   Notice.
137.980   Participant.
137.985   Person.
137.990   Preponderance of the evidence.
137.995   Principal.
137.1000   Respondent.
137.1005   State.
137.1010   Suspending official.
137.1015   Suspension.
137.1020   Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]

Appendix to Part 137--Covered Transactions

    Authority: 22 U.S.C. 2658; sec. 2455, Pub. L. 103-355, 108 Stat. 
3327 (31 U.S.C. 6101 note); E.O. 12549, 3 CFR 1986 Comp., p. 189; 
E.O. 12689, 3 CFR 1989 Comp., p. 235.

    6. Part 137 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``Department of State'' is 
added in its place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``Department of State'' is 
added in its place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``Procurement 
Executive'' is added in its place wherever it occurs.
    7. Section 137.440 is added to read as follows:


Sec. 137.440  What method do I use to communicate those requirements to 
participants?

    To communicate the requirement to participants, you must include a 
term or condition in the transaction requiring the participant's 
compliance with Subpart C of this part and requiring them to include a 
similar term or condition in lower tier covered transactions.

AGENCY FOR INTERNATIONAL DEVELOPMENT

22 CFR Parts 208 and 210

RIN 0412-AA47

FOR FURTHER INFORMATION CONTACT: Kathleen J. O'Hara, M/OP/OD, 1300 
Pennsylvania Avenue, NW, Washington, DC 20523-7900, (202) 712-4759.


ADDITIONAL SUPPLEMENTARY INFORMATION: USAID has determined not to 
require written certifications from awardees or persons with whom they 
propose to enter into covered transactions. In order to clarify that 
transactions such as host country contracts and procurements under 
Commodity Import Programs that USAID finances, but does not award, are 
covered by this regulation, USAID is adding a sentence to the 
definition of primary covered transactions in 208.110(a)(1)(i).

List of Subjects

22 CFR Part 208

    Administrative practice and procedure, Debarment and suspension, 
Grant programs, Reporting and recordkeeping requirements.

22 CFR Part 210

    Administrative practice and procedure, Drug abuse, Grant programs, 
Reporting and recordkeeping requirements.

    Dated: June 11, 2001.
Mark S. Ward,
Director, Office of Procurement.
    Accordingly, as set forth in the common preamble, 22 CFR chapter II 
is proposed to be amended as follows:
    1. Part 208 is revised to read as set forth in instruction 1 at the 
end of the common preamble.

PART 208--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)

Sec.
208.25   How is this part organized?
208.50   How is this part written?
208.75   Do terms in this part have special meanings?
Subpart A--General
208.100   What does this part do?
208.105   Does this part apply to me?
208.110   What is the purpose of the nonprocurement debarment and 
suspension systems?
208.115   How does an exclusion restrict a person's involvement in 
covered transactions?
208.120   May we grant an exception to let an excluded person 
participate in a covered transaction?
208.125   Does an exclusion under the nonprocurement system affect a 
person's eligibility to participate in Federal procurement 
contracts?
208.130   Does an exclusion under the Federal procurement system 
affect a person's eligibility to participate in nonprocurement 
transactions?
208.135   May the U.S. Agency for International Development exclude 
a person who is not currently participating in a nonprocurement 
transaction?
208.140   How do I know if a person is excluded?
208.145   Does this part cover persons who are disqualified as well 
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
208.200  What is a covered transaction?
208.205   Why is it important to know if a particular transaction is 
a covered transaction?
208.210   Which nonprocurement transactions are covered 
transactions?
208.215   Which nonprocurement transactions are not covered 
transactions?
208.220   Are any procurement contracts included as covered 
transactions?
208.225   How do I know if a transaction that I may participate in 
is a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions 
Doing Business With Other Persons
 208.300   May I enter into a covered transaction with an excluded 
or disqualified person?
208.305   What must I do if a Federal agency excludes a person with 
whom I am

[[Page 3312]]

already doing business in a covered transaction?
208.310   May I use the services of an excluded person under a 
covered transaction?
208.315   Must I verify that principals of my covered transactions 
are eligible to participate?
208.320   What happens if I do business with an excluded person in a 
covered transaction?
208.325   What requirements must I pass down to persons at lower 
tiers with whom I intend to do business?

Disclosing Information--Primary Tier Participants

208.330   What information must I provide before entering into a 
covered transaction with the U.S. Agency for International 
Development.
208.335   If I disclose unfavorable information required under 
Sec. 208.330 will I be prevented from entering into the transaction?
208.340   What happens if I fail to disclose the information 
required under Sec. 208.330?
208.345   What must I do if I learn of the information required 
under Sec. 208.330 after entering into a covered transaction with 
the U.S. Agency for International Development?

Disclosing Information--Lower Tier Participants

208.350  What information must I provide to a higher tier 
participant before entering into a covered transaction with that 
participant?
208.355  What happens if I fail to disclose the information required 
under Sec. 208.350?
208.360  What must I do if I learn of information required under 
Sec. 208.350 after entering into a covered transaction with a higher 
tier participant?
Subpart D--Responsibilities of USAID Officials Regarding Transactions
208.400  May I enter into a transaction with an excluded or 
disqualified person?
208.405  May I enter into a covered transaction with a participant 
if a principal of the transaction is excluded?
208.410  May I approve a participant's use of the services of an 
excluded person?
208.415  What must I do if a Federal agency excludes the participant 
or a principal after I enter into a covered transaction?
208.420  May I approve a transaction with an excluded or 
disqualified person at a lower tier?
208.425  When do I check to see if a person is excluded or 
disqualified?
208.430  How do I check to see if a person is excluded or 
disqualified?
208.435  What must I require of a primary tier participant?
208.440  What method do I use to communicate requirements to 
participants?
208.445  What action may I take if a primary tier participant 
knowingly does business with an excluded or disqualified person?
208.450  What action may I take if a primary tier participant fails 
to disclose the information required under Sec. 208.330?
208.455  What may I do if a lower tier participant fails to disclose 
the information required under Sec. 208.350 to the next higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From 
Federal Procurement and Nonprocurement Programs
208.500  What is the purpose of the List?
208.505  Who uses the List?
208.510  Who maintains the List?
208.515  What specific information is on the List?
208.520  Who gives the GSA the information that it puts on the List?
208.525  Whom do I ask if I have questions about a person on the 
List?
208.530  Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment 
Actions
208.600  How do suspension and debarment actions start?
208.605  How does suspension differ from debarment?
208.610  What procedures does the U.S. Agency for International 
Development use in suspension and debarment actions?
208.615  How does the U.S. Agency for International Development 
notify a person of suspension and debarment actions?
208.620  Do Federal agencies coordinate suspension and debarment 
actions?
208.625  What is the scope of a suspension or debarment action?
208.630  May the U.S. Agency for International Development impute 
the conduct of one person to another?
208.635  May the U.S. Agency for International Development settle a 
debarment or suspension action?
208.640  May a settlement include a voluntary exclusion?
208.645  Do other Federal agencies know if the U.S. Agency for 
International Development agrees to a voluntary exclusion?
Subpart G--Suspension
208.700  When may the suspending official issue a suspension?
208.705  What does the suspending official consider in issuing a 
suspension?
208.710  When does a suspension take effect?
208.715  What notice does the suspending official give me if I am 
suspended?
208.720  How may I contest a suspension?
208.725  How much time do I have to contest a suspension?
208.730  What information must I provide to the suspending official 
if I contest a suspension?
208.735  Under what conditions do I get an additional opportunity to 
challenge the facts on which the suspension is based?
208.740  Are suspension proceedings formal?
208.745  Is a record made of fact-finding proceedings?
208.750  What does the suspending official consider in deciding 
whether to continue or terminate my suspension?
208.755  When will I know whether the suspension is continued or 
terminated?
208.760  How long may my suspension last?
Subpart H--Debarment
208.800  What are the causes for debarment?
208.805  What notice does the debarring official give me if I am 
proposed for debarment?
208.810  When does a debarment take effect?
208.815  How may I contest a proposed debarment?
208.820  How much time do I have to contest a proposed debarment?
208.825  What information must I provide to the debarring official 
if I contest a proposed debarment?
208.830  Under what conditions do I get an additional opportunity to 
challenge the facts on which the proposed debarment is based?
208.835  Are debarment proceedings formal?
208.840  Is a record made of fact-finding proceedings?
208.845  What does the debarring official consider in deciding 
whether to debar me?
208.850  What is the standard of proof in a debarment action?
208.855  Who has the burden of proof in a debarment action?
208.860  What factors may influence the debarring official's 
decision?
208.865  How long may my debarment last?
208.870  When do I know if the debarring official debars me?
208.875  May I ask the debarring official to reconsider a decision 
to debar me?
208.880  What factors may influence the debarring official during 
reconsideration?
208.885  May the debarring official extend a debarment?
Subpart I--Definitions
208.900  Adequate evidence.
208.905  Affiliate.
208.910  Agency.
208.915  Agent or representative.
208.920  Civil judgment.
208.925  Conviction.
208.930  Debarment.
208.935  Debarring official.
208.940  Disqualified.
208.945  Excluded or exclusion.
208.950  Indictment.
208.955  Ineligible or ineligibility.
208.960  Legal proceedings.
208.965  List of Parties Excluded or Disqualified From Federal 
Procurement and Nonprocurement Programs.
208.970  Nonprocurement transaction.
208.975  Notice.
208.980  Participant.
208.985  Person.
208.990  Preponderance of the evidence.
208.995  Principal.
208.1000  Respondent.
208.1005  State.
208.1010  Suspending official.
208.1015  Suspension.
208.1020  Voluntary exclusion or voluntarily excluded.

[[Page 3313]]

Subpart J [Reserved]

Appendix to Part 208--Covered Transactions

    Authority: E.O. 12163, 3 CFR 1979 Comp., p. 435; E.O. 12549 3 
CFR 1986 Comp., p. 189; E.O. 12698, 3 CFR 1989 Comp., p. 235; sec. 
2455, Pub. L. 103-355, 108 Stat. 3327 (31 U.S.C. 6101 note); sec. 
621, Pub. L. 87-195, 75 Stat. 445 (22 U.S.C. 2381), as amended.

    2. Part 208 is further amended as set forth below.
    a. ``[Agency Noun]'' is removed and ``U.S. Agency for International 
Development'' is added in its place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``USAID'' is added in its 
place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``Director, Office 
of Procurement'' is added in its place wherever it occurs.
    3. Section 208.440 is added to read as follows:


Sec. 208.440  What method do I use to communicate requirements in 
Sec. 208.35 to participants?

    To communicate the requirements in Sec. 208.35, you must include a 
term or condition in the transaction requiring the participants' 
compliance with Subpart C of this part and requiring them to include a 
similar term or condition in lower-tier covered transactions.
    4. Section 208.935 is further amended by adding paragraph (b) to 
read as follows:


Sec. 208.935  Debarring official.

* * * * *
    (b) The U.S. Agency for International Development's debarring 
official is the Director of the Office of Procurement.
    5. Section 208.1010 is further amended by adding paragraph (b) to 
read as follows:


Sec. 208.1010  Suspending official.

* * * * *
    (b) The U.S. Agency for International Development's suspending 
official is the Director of the Office of Procurement.
    6. Part 210 is added to read as set forth in instruction 2 at the 
end of the common preamble.

PART 210--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE 
(FINANCIAL ASSISTANCE)

Subpart A--Purpose and Coverage
Sec.
210.100  What does this part do?
210.105  Does this part apply to me?
210.110  Are any of my Federal assistance awards exempt from this 
part?
210.115  Does this part affect the Federal contracts that I receive?
Subpart B--Requirements for Recipients Other Than Individuals
210.200  What must I do to comply with this part?
210.205  What must I include in my drug-free workplace statement?
210.210  To whom must I distribute my drug-free workplace statement?
210.215  What must I include in my drug-free awareness program?
210.220  By when must I publish my drug-free workplace statement and 
establish my drug-free awareness program?
210.225  What actions must I take concerning employees who are 
convicted of drug violations in the workplace?
210.230  How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
210.300  What must I do to comply with this part if I am an 
individual recipient?
210.301  [Reserved]
Subpart D--Responsibilities of USAID Awarding Officials
210.400  What are my responsibilities as a USAID awarding official?
Subpart E--Violations of This Part and Consequences
210.500  How are violations of this part determined for recipients 
other than individuals?
210.505  How are violations of this part determined for recipients 
who are individuals?
210.510  What actions will the Federal Government take against a 
recipient determined to have violated this part?
210.515  Are there any provisions for exceptions to those actions?
Subpart F--Definitions
210.605  Award.
210.610  Controlled substance.
210.615  Conviction.
210.620  Cooperative agreement.
210.625   Criminal drug statute.
210.630   Debarment.
210.635   Drug-free workplace.
210.640   Employee.
210.645   Federal agency or agency.
210.650   Grant.
210.655   Individual.
210.660   Recipient.
210.665   State.
210.670   Suspension.

    Authority: 41 U.S.C. 701, et seq.; sec. 621, Pub. L. 87-195, 75 
Stat. 445 (22 U.S.C. 2381), as amended; E.O. 12163, 3 CFR 1979 
Comp., p. 435.

    7. Part 210 is further amended as set forth below.
    a. ``[Agency Noun]'' is removed and ``U.S. Agency for International 
Development'' is added in its place wherever it occurs.
    b. ``[Agency Adjective]'' is removed and ``USAID'' is added in its 
place wherever it occurs.
    c. ``[Agency Head or Designee]'' is removed and ``Director of the 
Office of Procurement'' is added in its place wherever it occurs.
    d. ``[Agency head]'' is removed and ``USAID Administrator or 
designee'' is added in its place wherever it occurs.
    8. Section 210.510(c) is further amended by removing ``[CFR 
citation for the Federal Agency's regulation implementing Executive 
Order 12549 and Executive Order 12689]'' and adding ``22 CFR part 208'' 
in its place.
    9. Section 210.605 is further amended by adding a paragraph (c) to 
read as follows:


Sec. 210.605  Award.

* * * * *
    (c) Notwithstanding paragraph (a)(2) of this section, this 
paragraph is not applicable to AID.

PEACE CORPS

22 CFR Parts 310 and 312

RIN 0420-AA17

FOR FURTHER INFORMATION CONTACT: Ruth L. Ramsey, Acting General 
Counsel, Office of the General Counsel, Peace Corps, 1111 20th Street, 
NW, Washington, DC 20526, (202) 692-2150.


ADDITIONAL SUPPLEMENTARY INFORMATION: This part proposes in 
Sec. 310.440 to use terms or conditions to the award transaction as a 
means to enforce exclusions under Peace Corps transactions rather than 
written certifications. This alternative available under the common 
rule is more efficient than the Peace Corps' current certification 
process for prospective recipients and participants.
    In addition, the requirements for maintaining a drug-free workplace 
are being removed as a subpart in the current debarment and suspension 
common rule, and are proposed to be re-codified as a separate part 312.

List of Subjects

22 CFR Part 310

    Administrative practice and procedure, Government contracts, Grant 
programs, Loan programs, Reporting and recordkeeping requirements, 
Technical assistance.

22 CFR Part 312

    Administrative practice and procedure, Drug abuse, Grant programs, 
Reporting and recordkeeping requirements.


[[Page 3314]]


    Dated: August 22, 2001.
Michael J. Kole,
Director, Office of Administrative Services, Peace Corps.
    For the reasons stated in the common preamble, the Peace Corps 
proposes to amend 22 CFR chapter III, as follows:
    1. Part 310 is revised to read as set forth in instruction 1 at the 
end of the common preamble.

PART 310--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)

Sec.
310.25   How is this part organized?
310.50   How is this part written?
310.75   Do terms in this part have special meanings?
Subpart A--General
310.100   What does this part do?
310.105   Does this part apply to me?
310.110   What is the purpose of the nonprocurement debarment and 
suspension system?
310.115   How does an exclusion restrict a person's involvement in 
covered transactions?
310.120   May we grant an exception to let an excluded person 
participate in a covered transaction?
310.125   Does an exclusion under the nonprocurement system affect a 
person's eligibility to participate in federal procurement 
contracts?
310.130   Does an exclusion under the federal procurement system 
affect a person's eligibility to participate in nonprocurement 
transactions?
310.135   May the Peace Corps exclude a person who is not currently 
participating in a nonprocurement transaction?
310.140   How do I know if a person is excluded?
310.145   Does this part cover persons who are disqualified as well 
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
310.200   What is a covered transaction?
310.205   Why is it important to know if a particular transaction is 
a covered transaction?
310.210   Which nonprocurement transactions are covered 
transactions?
310.215   Which nonprocurement transactions are not covered 
transactions?
310.220   Are any procurement contracts included as covered 
transactions?
310.225   How do I know if a transaction that I may participate in 
is a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions 
Doing Business With Other Persons
310.300   May I enter into a covered transaction with an excluded or 
disqualified person?
310.305   What must I do if a federal agency excludes a person with 
whom I am already doing business in a covered transaction?
310.310   May I use the services of an excluded person under a 
covered transaction?
310.315   Must I verify that principals of my covered transactions 
are eligible to participate?
310.320   What happens if I do business with an excluded person in a 
covered transaction?
310.325   What requirements must I pass down to persons at lower 
tiers with whom I intend to do business?

Disclosing Information--Primary Tier Participants

310.330   What information must I provide before entering into a 
covered transaction with the Peace Corps?
310.335   If I disclose unfavorable information required under 
Sec. 310.330 will I be prevented from entering into the transaction?
310.340   What happens if I fail to disclose the information 
required under Sec. 310.330?
310.345   What must I do if I learn of the information required 
under Sec. 310.330 after entering into a covered transaction with 
the Peace Corps?

Disclosing Information--Lower Tier Participants

310.350   What information must I provide to a higher tier 
participant before entering into a covered transaction with that 
participant?
310.355   What happens if I fail to disclose the information 
required under Sec. 310.350?
310.360   What must I do if I learn of information required under 
Sec. 310.350 after entering into a covered transaction with a higher 
tier participant?
Subpart D--Responsibilities of Peace Corps Officials Regarding 
Transactions
310.400   May I enter into a transaction with an excluded or 
disqualified person?
310.405   May I enter into a covered transaction with a participant 
if a principal of the transaction is excluded?
310.410   May I approve a participant's use of the services of an 
excluded person?
310.415   What must I do if a federal agency excludes the 
participant or a principal after I enter into a covered transaction?
310.420   May I approve a transaction with an excluded or 
disqualified person at a lower tier?
310.425   When do I check to see if a person is excluded or 
disqualified?
310.430   How do I check to see if a person is excluded or 
disqualified?
310.435   What must I require of a primary tier participant?
310.440   What method do I use to communicate those requirements to 
participants?
310.445   What action may I take if a primary tier participant 
knowingly does business with an excluded or disqualified person?
310.450   What action may I take if a primary tier participant fails 
to disclose the information required under Sec. 310.330?
310.455   What may I do if a lower tier participant fails to 
disclose the information required under Sec. 310.350 to the next 
higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From 
Federal Procurement and Nonprocurement Programs
310.500   What is the purpose of the List?
310.505   Who uses the List?
310.510   Who maintains the List?
310.515   What specific information is on the List?
310.520   Who gives the GSA the information that it puts on the 
List?
310.525   Whom do I ask if I have questions about a person on the 
List?
310.530   Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment 
Actions
310.600   How do suspension and debarment actions start?
310.605   How does suspension differ from debarment?
310.610   What procedures does the Peace Corps use in suspension and 
debarment actions?
310.615   How does the Peace Corps notify a person of suspension and 
debarment actions?
310.620   Do federal agencies coordinate suspension and debarment 
actions?
310.625   What is the scope of a suspension or debarment action?
310.630   May the Peace Corps impute the conduct of one person to 
another?
310.635   May the Peace Corps settle a debarment or suspension 
action?
310.640   May a settlement include a voluntary exclusion?
310.645   Do other federal agencies know if the Peace Corps agrees 
to a voluntary exclusion?
Subpart G--Suspension
310.700   When may the suspending official issue a suspension?
310.705   What does the suspending official consider in issuing a 
suspension?
310.710   When does a suspension take effect?
310.715   What notice does the suspending official give me if I am 
suspended?
310.720   How may I contest a suspension?
310.725   How much time do I have to contest a suspension?
310.730   What information must I provide to the suspending official 
if I contest a suspension?
310.735   Under what conditions do I get an additional opportunity 
to challenge the facts on which the suspension is based?
310.740   Are suspension proceedings formal?
310.745   Is a record made of fact-finding proceedings?
310.750   What does the suspending official consider in deciding 
whether to continue or terminate my suspension?
310.755   When will I know whether the suspension is continued or 
terminated?
310.760   How long may my suspension last?
Subpart H--Debarment
310.800   What are the causes for debarment?

[[Page 3315]]

310.805   What notice does the debarring official give me if I am 
proposed for debarment?
310.810   When does a debarment take effect?
310.815   How may I contest a proposed debarment?
310.820   How much time do I have to contest a proposed debarment?
310.825   What information must I provide to the debarring official 
if I contest a proposed debarment?
310.830   Under what conditions do I get an additional opportunity 
to challenge the facts on which the proposed debarment is based?
310.835   Are debarment proceedings formal?
310.840   Is a record made of fact-finding proceedings?
310.845   What does the debarring official consider in deciding 
whether to debar me?
310.850   What is the standard of proof in a debarment action?
310.855   Who has the burden of proof in a debarment action?
310.860   What factors may influence the debarring official's 
decision?
310.865   How long may my debarment last?
310.870   When do I know if the debarring official debars me?
310.875   May I ask the debarring official to reconsider a decision 
to debar me?
310.880   What factors may influence the debarring official during 
reconsideration?
310.885   May the debarring official extend a debarment?
Subpart I--Definitions
310.900   Adequate evidence.
310.905   Affiliate.
310.910   Agency.
310.915   Agent or representative.
310.920   Civil judgment.
310.925   Conviction.
310.930   Debarment.
310.935   Debarring official.
310.940   Disqualified.
310.945   Excluded or exclusion.
310.950   Indictment.
310.955   Ineligible or ineligibility.
310.960   Legal proceedings.
310.965   List of Parties Excluded or Disqualified From Federal 
Procurement and Nonprocurement Programs.
310.970   Nonprocurement transaction.
310.975   Notice.
310.980   Participant.
310.985   Person.
310.990   Preponderance of the evidence.
310.995   Principal.
310.100   Respondent.
310.1005   State.
310.1010   Suspending official.
310.1015   Suspension.
310.1020   Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]

Appendix to Part 310--Covered Transactions

    Authority: 22 U.S.C. 2503; Sec. 2455, Pub. L. 103-355, 108 Stat. 
3327 (31 U.S.C. 6101 note); E.O. 12549 (3 CFR, 1986 Comp., p. 189); 
E.O. 12689 (3 CFR, 1989 Comp., p. 235).

PART 310--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)

    2. Part 310 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``Peace Corps'' is added in its 
place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``Peace Corps'' is added 
in its place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``Peace Corps 
Director or designee'' is added in its place wherever it occurs.
    3. Section 310.440 is added to read as follows:


Sec. 310.440  What method do I use to communicate those requirements to 
participants?

    To communicate the requirements to participants, you must include a 
term or condition in the transaction requiring the participant's 
compliance with subpart C of this part and requiring them to include a 
similar term or condition in lower tier covered transactions.
    4. Part 312 is added to read as set forth in instruction 2 at the 
end of the common preamble.

PART 312--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE 
(FINANCIAL ASSISTANCE)

Subpart A--Purpose and Coverage
Sec.
312.100   What does this part do?
312.105   Does this part apply to me?
312.110   Are any of my federal assistance awards exempt from this 
part?
312.115   Does this part affect the federal contracts that I 
receive?
Subpart B--Requirements for Recipients Other Than Individuals
312.200   What must I do to comply with this part?
312.205   What must I include in my drug-free workplace statement?
312.210   To whom must I distribute my drug-free workplace 
statement?
312.215   What must I include in my drug-free awareness program?
312.220   By when must I publish my drug-free workplace statement 
and establish my drug-free awareness program?
312.225   What actions must I take concerning employees who are 
convicted of drug violations in the workplace?
312.230   How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
312.300   What must I do to comply with this part if I am an 
individual recipient?
312.301   [Reserved]
Subpart D--Responsibilities of Peace Corps Awarding Officials
312.400   What are my responsibilities as a Peace Corps awarding 
official?
Subpart E--Violations of This Part and Consequences
312.500   How are violations of this part determined for recipients 
other than individuals?
312.505   How are violations of this part determined for recipients 
who are individuals?
312.510   What actions will the Federal Government take against a 
recipient determined to have violated this part?
312.515   Are there any exceptions to those actions?
Subpart F--Definitions
312.605   Award.
312.610   Controlled substance.
312.615   Conviction.
312.620   Cooperative agreement.
312.625   Criminal drug statute.
312.630   Debarment.
312.635   Drug-free workplace.
312.640   Employee.
312.645   Federal agency or agency.
312.650   Grant.
312.655   Individual.
312.660   Recipient.
312.665   State.
312.670   Suspension.

    Authority: 22 U.S.C. 2503(b); 41 U.S.C. 701 et seq.

    5. Part 312 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``Peace Corps'' is added in its 
place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``Peace Corps'' is added 
in its place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``Peace Corps 
Director or designee'' is added in its place wherever it occurs.
    d. ``[Agency head]'' is removed and ``Peace Corps Director'' is 
added in its place wherever it occurs.
    6. Section 312.510(c) is further amended by removing ``[CFR 
citation for the federal agency's regulations implementing Executive 
Order 12549 and Executive Order 12689]'' and adding ``22 CFR part 310'' 
in its place.
    7. Section 312.605 is further amended by adding a paragraph (c) to 
read as follows:


Sec. 312.605  Award.

* * * * *
    (c) Notwithstanding paragraph (a)(2) of this section, this 
paragraph is not applicable for the Peace Corps.

INTER-AMERICAN FOUNDATION

22 CFR Parts 1006 and 1008

FOR FURTHER INFORMATION CONTACT: Carolyn Karr, General Counsel, Inter-

[[Page 3316]]

American Foundation, 901 N. Stuart Street, Arlington, Virginia 22203, 
(703) 306-4350, [email protected].

List of Subjects

22 CFR Part 1006

    Administrative practice and procedure, Government contracts, Grant 
programs, Loan programs, Reporting and recordkeeping requirements, 
Technical assistance.

22 CFR Part 1008

    Administrative practice and procedure, Drug abuse, Grant programs, 
Reporting and recordkeeping requirements.

Approved:
David Valenzuela,
President, Inter-American Foundation.
    For the reasons stated in the common preamble, the Inter-American 
Foundation proposes to amend 22 CFR chapter X, as follows:
    1. Part 1006 is revised to read as set forth in instruction 1 at 
the end of the common preamble.

PART 1006--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)

Sec.
1006.25   How is this part organized?
1006.50   How is this part written?
1006.75   Do terms in this part have special meanings?
Subpart A--General
1006.100   What does this part do?
1006.105   Does this part apply to me?
1006.110   What is the purpose of the nonprocurement debarment and 
suspension system?
1006.115   How does an exclusion restrict a person's involvement in 
covered transactions?
1006.120   May we grant an exception to let an excluded person 
participate in a covered transaction?
1006.125   Does an exclusion under the nonprocurement system affect 
a person's eligibility to participate in Federal procurement 
contracts?
1006.130   Does an exclusion under the Federal procurement system 
affect a person's eligibility to participate in nonprocurement 
transactions?
1006.135   May the Inter-American Foundation exclude a person who is 
not currently participating in a nonprocurement transaction?
1006.140   How do I know if a person is excluded?
1006.145   Does this part cover persons who are disqualified as well 
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
1006.200   What is a covered transaction?
1006.205   Why is it important to know if a particular transaction 
is a covered transaction?
1006.210   Which nonprocurement transactions are covered 
transactions?
1006.215   Which nonprocurement transactions are not covered 
transactions?
1006.220   Are any procurement contracts included as covered 
transactions?
1006.225   How do I know if a transaction that I may participate in 
is a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions 
Doing Business With Other Persons
1006.300   May I enter into a covered transaction with an excluded 
or disqualified persons?
1006.305   Must I do if a Federal agency excludes a person with whom 
I am already doing business in a covered transaction?
1006.310   May I use the services of an excluded person under a 
covered transaction?
1006.315   I verify that principals of my covered transactions are 
eligible to participate?
1006.320   What happens if I do business with an excluded person in 
a covered transaction?
1006.325   What requirements must I pass down to persons at lower 
tiers with whom I intend to do business?

Disclosing Information--Primary Tier Participants

1006.330   What information must I provide before entering into a 
covered transaction with the Inter-American Foundation?
1006.335   If I disclose unfavorable information required under 
Sec. 1006.330 will I be prevented from entering into the 
transaction?
1006.340   What happens if I fail to disclose the information 
required under Sec. 1006.330?
1006.345   What must I do if I learn of the information required 
under Sec. 1006.330 after entering into a covered transaction with 
the Inter-American Foundation?

Disclosing Information--Lower Tier Participants

1006.350   What information must I provide to a higher tier 
participant before entering into a covered transaction with that 
participant?
1006.355   What happens if I fail to disclose the information 
required under Sec. 1006.350?
1006.360   What must I do if I learn of information required under 
Sec. 1006.350 after entering into a covered transaction with a 
higher tier participant?
Subpart D--Responsibilities of Inter-American Foundation Officials 
Regarding Transactions
1006.400   May I enter into a transaction with an excluded or 
disqualified person?
1006.405   May I enter into a covered transaction with a participant 
if a principal of the transaction is excluded?
1006.410   May I approve a participant's use of the services of an 
excluded person?
1006.415   What must I do if a Federal agency excludes the 
participant or a principal after I enter into a covered transaction?
1006.420   May I approve a transaction with an excluded or 
disqualified person at a lower tier?
1006.425   When do I check to see if a person is excluded or 
disqualified?
1006.430   How do I check to see if a person is excluded or 
disqualified?
1006.435   What must I require of a primary tier participant?
1006.440   What method do I use to communicate those requirements to 
participants?
1006.445   What action may I take if a primary tier participant 
knowingly does business with an excluded or disqualified person?
1006.450   What action may I take if a primary tier participant 
fails to disclose the information required under Sec. 1006.330?
1006.455   What may I do if a lower tier participant fails to 
disclose the information required under Sec. 1006.350 to the next 
higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From 
Federal Procurement and Nonprocurement Programs
1006.500   What is the purpose of the List?
1006.505   Who uses the List?
1006.510   Who maintains the List?
1006.515   What specific information is on the List?
1006.520   Who gives the GSA the information that it puts on the 
List?
1006.525   Whom do I ask if I have questions about a person on the 
List?
1006.530   Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment 
Actions
1006.600   How do suspension and debarment actions start?
1006.605   How does suspension differ from debarment?
1006.610   What procedures does the Inter-American Foundation use in 
suspension and debarment actions?
1006.615   How does the Inter-American Foundation notify a person of 
suspension and debarment actions?
1006.620   Do Federal agencies coordinate suspension and debarment 
actions?
1006.625   What is the scope of a suspension or debarment action?
1006.630   May the Inter-American Foundation impute the conduct of 
one person to another?
1006.635   May the Inter-American Foundation settle a debarment or 
suspension action?
1006.640   May a settlement include a voluntary exclusion?
1006.645   Do other Federal agencies know if the Inter-American 
Foundation agrees to a voluntary exclusion?
Subpart G--Suspension
1006.700   When may the suspending official issue a suspension?

[[Page 3317]]

1006.705   What does the suspending official consider in issuing a 
suspension?
1006.710   When does a suspension take effect?
1006.715   What notice does the suspending official give me if I am 
suspended?
1006.720   How may I contest a suspension?
1006.725   How much time do I have to contest a suspension?
1006.730   What information must I provide to the suspending 
official if I contest a suspension?
1006.735   Under what conditions do I get an additional opportunity 
to challenge the facts on which the suspension is based?
1006.740   Are suspension proceedings formal?
1006.745   Is a record made of fact-finding proceedings?
1006.750   What does the suspending official consider in deciding 
whether to continue or terminate my suspension?
1006.755   When will I know whether the suspension is continued or 
terminated?
1006.760   How long may my suspension last?
Subpart H--Debarment
1006.800   What are the causes for debarment?
1006.805   What notice does the debarring official give me if I am 
proposed for debarment?
1006.810   When does a debarment take effect?
1006.815   How may I contest a proposed debarment?
1006.820   How much time do I have to contest a proposed debarment?
1006.825   What information must I provide to the debarring official 
if I contest a proposed debarment?
1006.830   Under what conditions do I get an additional opportunity 
to challenge the fact on which the proposed debarment is based?
1006.835   Are debarment proceedings formal?
1006.840   Is a record made of fact-finding proceedings?
1006.845   What does the debarring official consider in deciding 
whether to debar me?
1006.850   What is the standard of proof in a debarment action?
1006.855   Who has the burden of proof in a debarment action?
1006.860   What factors may influence the debarring official's 
decision?
1006.865   How long may my debarment last?
1006.870   When do I know if the debarring official debars me?
1006.875   May I ask the debarring official to reconsider a decision 
to debar me?
1006.880   What factors may influence the debarring official during 
reconsideration?
1006.885   May the debarring official extend a debarment?
Subpart I--Definitions
1006.900   Adequate evidence.
1006.905   Affiliate.
1006.910   Agency.
1006.915   Agent or representative.
1006.920   Civil judgment.
1006.925   Conviction.
1006.930   Debarment.
1006.935   Debarring official.
1006.940   Disqualified.
1006.945   Excluded or exclusion.
1006.950   Indictment.
1006.955   Ineligible or ineligibility.
1006.960   Legal proceedings.
1006.965   List of Parties Excluded or Disqualified From Federal 
Procurement and Nonprocurement Programs.
1006.970   Nonprocurement transaction.
1006.975   Notice.
1006.980   Participant.
1006.985   Person.
1006.990   Preponderance of the evidence.
1006.995   Principal.
1006.1000   Respondent.
1006.1005   State.
1006.1010   Suspending official.
1006.1015   Suspension.
1006.1020  Voluntary exclusion or voluntarily excluded
Subpart J [Reserved]

Appendix to Part 1006--Covered Transactions

    Authority: Sec. 2455, Pub. L. 103-355, 108 Stat. 3327 (31 U.S.C. 
6101 note); E.O. 12549, 3 CFR, 1986 Comp., p. 189; E.O. 12689, 3 
CFR, 1989 Comp., p. 235.

    2. Part 1006 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``Inter-American Foundation'' 
is added in its place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``Inter-American 
Foundation'' is added in its place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``Inter-American 
Foundation Debarring Official'' is added in its place wherever it 
occurs.
    3. Section 1006.440 is added to read as follows:


Sec. 1006.440  What method do I use to communicate those requirements 
to participants?

    To communicate the requirements to participants, you must include a 
term or condition in the transaction requiring the participant's 
compliance with Subpart C of this part and requiring them to include a 
similar term or condition in lower tier covered transactions.
    5. Part 1008 is added to read as set forth in instruction 2 at the 
end of the common preamble.

PART 1008--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE 
(FINANCIAL ASSISTANCE)

Subpart A--Purpose and Coverage
Sec.
1008.100  What does this part do?
1008.105  Does this part apply to me?
1008.110  Are any of my Federal assistance awards exempt from this 
part?
1008.115  Does this part affect the Federal contracts that I 
receive?
Subpart B--Requirements for Recipients Other Than Individuals
1008.200  What must I do to comply with this part?
1008.205  What must I include in my drug-free workplace statement?
1008.210  To whom must I distribute my drug-free workplace 
statement?
1008.215  What must I include in my drug-free awareness program?
1008.220  By when must I publish my drug-free workplace statement 
and establish my drug-free awareness program?
1008.225  What actions must I take concerning employees who are 
convicted of drug violations in the workplace?
1008.230  How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
1008.300  What must I do to comply with this part if I am an 
individual recipient?
1008.301  [Reserved]
Subpart D--Responsibilities of Inter-American Foundation Awarding 
Officials
1008.400  What are my responsibilities as an Inter-American 
Foundation awarding official?
Subpart E--Violations of This Part and Consequences
1008.500  How are violations of this part determined for recipients 
other than individuals?
1008.505  How are violations of this part determined for recipients 
who are individuals?
1008.510  What actions will the Federal Government take against a 
recipient determined to have violated this part?
1008.515  Are there any exceptions to those actions?
Subpart F--Definitions
1008.605  Award.
1008.610  Controlled substance.
1008.615  Conviction.
1008.620  Cooperative agreement.
1008.625  Criminal drug statute.
1008.630  Debarment.
1008.635  Drug-free workplace.
1008.640  Employee.
1008.645  Federal agency or agency.
1008.650  Grant.
1008.655  Individual.
1008.660  Recipient.
1008.665  State.
1008.670  Suspension.

    Authority: 41 U.S.C. 701 et seq.

    5. Part 1008 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``Inter-American Foundation'' 
is added in its place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``Inter-American 
Foundation'' is added in its place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``Inter-American

[[Page 3318]]

Foundation President or designee'' is added in its place wherever it 
occurs.
    d. ``[Agency head]'' is removed and ``Inter-American Foundation'' 
is added in its place wherever it occurs.
    6. Section 1008.510(c) is further amended by removing ``[CFR 
citation for the Federal Agency's regulations implementing Executive 
Order 12549 and Executive Order 12689]'' and adding ``22 CFR part 
1006'' in its place.
    7. Section 1008.605 is further amended by adding a paragraph (c) to 
read as follows:


Sec. 1008.605  Award.

* * * * *
    (c) Notwithstanding paragraph (a)(2) of this section, this 
paragraph is not applicable for the Inter-American Foundation.

AFRICAN DEVELOPMENT FOUNDATION

22 CFR Parts 1508 and 1509

RIN Number 3005-ZA00

FOR FURTHER INFORMATION CONTACT: Doris Martin at 202-673-3916 (phone) 
or [email protected].

List of Subjects

22 CFR Part 1508

    Administrative practice and procedure, Debarment and suspension, 
Government contracts, Grant programs, Loan programs, Reporting and 
recordkeeping requirements.

22 CFR Part 1509

    Administrative practice and procedure, Drug abuse, Grant programs, 
Reporting and recordkeeping requirements.

    Approved:
Doris Martin,
General Counsel.
    For the reasons stated in the preamble, the African Development 
Foundation proposes to amend 22 CFR chapter XV as follows:
    1. Part 1508 is revised to read as set forth in instruction 1 at 
the end of the common preamble.

PART 1508--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)

Sec.
1508.25  How is this part organized?
1508.50  How is this part written?
1508.75  Do terms in this part have special meanings?
Subpart A--General
1508.100  What does this part do?
1508.105  Does this part apply to me?
1508.110  What is the purpose of the nonprocurement debarment and 
suspension system?
1508.115  How does an exclusion restrict a person's involvement in 
covered transactions?
1508.120  May we grant an exception to let an excluded person 
participate in a covered transaction?
1508.125  Does an exclusion under the nonprocurement system affect a 
person's eligibility to participate in Federal procurement 
contracts?
1508.130  Does an exclusion under the Federal procurement system 
affect a person's eligibility to participate in nonprocurement 
transactions?
1508.135  May the African Development Foundation exclude a person 
who is not currently participating in a nonprocurement transaction?
1508.140  How do I know if a person is excluded?
1508.145  Does this part cover persons who are disqualified as well 
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
1508.200  What is a covered transaction?
1508.205  Why is it important to know if a particular transaction is 
a covered transaction?
1508.210  Which nonprocurement transactions are covered 
transactions?
1508.215  Which nonprocurement transactions are not covered 
transactions?
1508.220  Are any procurement contracts included as covered 
transactions?
1508.225  How do I know if a transaction in which I may participate 
is a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions 
Doing Business With Other Persons
1508.300  May I enter into a covered transaction with an excluded or 
disqualified person?
1508.305  What must I do if a Federal agency excludes a person with 
whom I am already doing business in a covered transaction?
1508.310  May I use the services of an excluded person under a 
covered transaction?
1508.315  Must I verify that principals of my covered transactions 
are eligible to participate?
1508.320  What happens if I do business with an excluded person in a 
covered transaction?
1508.325  What requirements must I pass down to persons at lower 
tiers with whom I intend to do business?

Disclosing Information--Primary Tier Participants

1508.330  What information must I provide before entering into a 
covered transaction with the African Development Foundation?
1508.335  If I disclose unfavorable information required under 
Sec. 1508.330 will I be prevented from entering into the 
transaction?
1508.340  What happens if I fail to disclose the information 
required under Sec. 1508.330?
1508.345  What must I do if I learn of the information required 
under Sec. 1508.330 after entering into a covered transaction with 
the African Development Foundation?

Disclosing Information--Lower Tier Participants

1508.350  What information must I provide to a higher tier 
participant before entering into a covered transaction with that 
participant?
1508.355  What happens if I fail to disclose the information 
required under Sec. 1508.350?
1508.360  What must I do if I learn of information required under 
Sec. 1508.350 after entering into a covered transaction with a 
higher tier participant?
Subpart D--Responsibilities of ADF Officials Regarding Transactions
1508.400  May I enter into a transaction with an excluded or 
disqualified person?
1508.405  May I enter into a covered transaction with a participant 
if a principal of the transaction is excluded?
1508.410  May I approve a participant's use of the services of an 
excluded person?
1508.415  What must I do if a Federal agency excludes the 
participant or a principal after I enter into a covered transaction?
1508.420  May I approve a transaction with an excluded or 
disqualified person at a lower tier?
1508.425  When do I check to see if a person is excluded or 
disqualified?
1508.430  How do I check to see if a person is excluded or 
disqualified?
1508.435  What must I require of a primary tier participant?
1508.440  What method do I use to communicate those requirements to 
participants?
1508.445  What action may I take if a primary tier participant 
knowingly does business with an excluded or disqualified person?
1508.450  What action may I take if a primary tier participant fails 
to disclose the information required under Sec. 1508.330?
1508.455  What may I do if a lower tier participant fails to 
disclose the information required under Sec. 1508.350 to the next 
higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From 
Federal Procurement and Nonprocurement Programs
1508.500  What is the purpose of the List?
1508.505  Who uses the List?
1508.510  Who maintains the List?
1508.515  What specific information is on the List?
1508.520  Who gives the GSA the information that it puts on the 
List?
1508.525  Whom do I ask if I have questions about a person on the 
List?
1508.530  Where can I get the List?

[[Page 3319]]

Subpart F--General Principles Relating to Suspension and Debarment 
Actions
1508.600  How do suspension and debarment actions start?
1508.605  How does suspension differ from debarment?
1508.610  What procedures does the African Development Foundation 
use in suspension and debarment actions?
1508.615  How does the African Development Foundation notify a 
person of suspension and debarment actions?
1508.620  Do Federal agencies coordinate suspension and debarment 
actions?
1508.625  What is the scope of a suspension or debarment action?
1508.630  May the African Development Foundation impute the conduct 
of one person to another?
1508.635  May the African Development Foundation settle a debarment 
or suspension action?
1508.640  May a settlement include a voluntary exclusion?
1508.645  Do other Federal agencies know if the African Development 
Foundation agrees to a voluntary exclusion?
Subpart G--Suspension
1508.700  When may the suspending official issue a suspension?
1508.705  What does the suspending official consider in issuing a 
suspension?
1508.710  When does a suspension take effect?
1508.715  What notice does the suspending official give me if I am 
suspended?
1508.720  How may I contest a suspension?
1508.725  How much time do I have to contest a suspension?
1508.730  What information must I provide to the suspending official 
if I contest a suspension?
1508.735  Under what conditions do I get an additional opportunity 
to challenge the facts on which the suspension is based?
1508.740  Are suspension proceedings formal?
1508.745  Is a record made of fact-finding proceedings?
1508.750  What does the suspending official consider in deciding 
whether to continue or terminate my suspension?
1508.755  When will I know whether the suspension is continued or 
terminated?
1508.760  How long may my suspension last?
Subpart H--Debarment
1508.800  What are the causes for debarment?
1508.805  What notice does the debarring official give me if I am 
proposed for debarment?
1508.810  When does a debarment take effect?
1508.815  How may I contest a proposed debarment?
1508.820  How much time do I have to contest a proposed debarment?
1508.825  What information must I provide to the debarring official 
if I contest a proposed debarment?
1508.830  Under what conditions do I get an additional opportunity 
to challenge the facts on which the proposed debarment is based?
1508.835  Are debarment proceedings formal?
1508.840  Is a record made of fact-finding proceedings?
1508.845  What does the debarring official consider in deciding 
whether to debar me?
1508.850  What is the standard of proof in a debarment action?
1508.855  Who has the burden of proof in a debarment action?
1508.860  What factors may influence the debarring official's 
decision?
1508.865  How long may my debarment last?
1508.870  When do I know if the debarring official debars me?
1508.875  May I ask the debarring official to reconsider a decision 
to debar me?
1508.880  What factors may influence the debarring official during 
reconsideration?
1508.885  May the debarring official extend a debarment?
Subpart I--Definitions
1508.900  Adequate evidence.
1508.905  Affiliate.
1508.910  Agency.
1508.915  Agent or representative.
1508.920  Civil judgment.
1508.925  Conviction.
1508.930  Debarment.
1508.935  Debarring official.
1508.940  Disqualified.
1508.945  Excluded or exclusion.
1508.950  Indictment.
1508.955  Ineligible or ineligibility.
1508.960  Legal proceedings.
1508.965  List of Parties Excluded or Disqualified From Federal 
Procurement and Nonprocurement Programs.
1508.970  Nonprocurement transaction.
1508.975  Notice.
1508.980  Participant.
1508.985  Person.
1508.990  Preponderance of the evidence.
1508.995  Principal.
1508.1000  Respondent.
1508.1005  State.
1508.1010  Suspending official.
1508.1015  Suspension.
1508.1020  Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]

Appendix to Part 1508--Covered Transactions

    Authority: Sec. 2455, Pub.L. 103-355, 108 Stat. 3327; E.O. 
12549, 3CFR, 1986 Comp., p.89; E.O. 12689, 3CFR, 1989 Comp., p. 235.

    2. Part 1508 is further amended as set forth below:
    a. ``[Agency noun]'' is removed and ``African Development 
Foundation'' is added in its place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``ADF'' is added in its 
place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``ADF President'' 
is added in its place wherever it occurs.
    3. Part 1509 is added to read as set forth in instruction 2 at the 
end of the common preamble.

PART 1509--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE 
(FINANCIAL ASSISTANCE)

Subpart A--Purpose and Coverage
Sec.
1509.100  What does this part do?
1509.105  Does this part apply to me?
1509.110  Are any of my Federal assistance awards exempt from this 
part?
1509.115  Does this part affect the Federal contracts that I 
receive?
Subpart B--Requirements for Recipients Other Than Individuals
1509.200  What must I do to comply with this part?
1509.205  What must I include in my drug-free workplace statement?
1509.210  To whom must I distribute my drug-free workplace 
statement?
1509.215  What must I include in my drug-free awareness program?
1509.220  By when must I publish my drug-free workplace statement 
and establish my drug-free awareness program?
1509.225  What actions must I take concerning employees who are 
convicted of drug violations in the workplace?
1509.230  How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
1509.300  What must I do to comply with this part if I am an 
individual recipient?
1509.301  [Reserved]
Subpart D--Responsibilities of ADF Awarding Officials
1509.400   What are my responsibilities as an ADF awarding official?
Subpart E--Violations of This Part and Consequences
1509.500  How are violations of this part determined for recipients 
other than individuals?
1509.505  How are violations of this part determined for recipients 
who are individuals?
1509.510  What actions will the Federal Government take against a 
recipient determined to have violated this part?
1509.515  Are there any exceptions to those actions?
Subpart F--Definitions
1509.605  Award.
1509.610  Controlled substance.
1509.615  Conviction.
1509.620  Cooperative agreement.
1509.625  Criminal drug statute.
1509.630  Debarment.
1509.635  Drug-free workplace.
1509.640  Employee.
1509.645  Federal agency or agency.
1509.650  Grant.
1509.655  Individual.
1509.660  Recipient.
1509.665  State.

[[Page 3320]]

1509.670  Suspension.

    Authority: 41 U.S.C. 701 et seq.

    4. Part 1509 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``African Development 
Foundation'' is added in its place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``ADF'' is added in its 
place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``ADF President'' 
is added in its place wherever it occurs.
    d. ``[Agency head]'' is removed and ``ADF President'' is added in 
its place wherever it occurs.
    5. Section 1509.310(c) is further amended by removing ``[CFR 
citation for the Federal Agency's regulations implementing Executive 
Order 12549 and Executive Order 12689]'' and adding ``22 CFR part 
1508'' in its place.
    6. Section 1509.605 is further amended by adding a paragraph (c) to 
read as follows:


Sec. 1509.605  Award.

* * * * *
    (c) Notwithstanding paragraph (a)(2) of this section, this 
paragraph is not applicable for ADF.

DEPARTMENT OF LABOR

29 CFR Part 94 and 98

RIN 1291-AA33

FOR FURTHER INFORMATION CONTACT: Phyllis McMeekin, Director Division of 
Departmental Procurement Policy, N5425 Washington, DC 20210, (202) 219-
9174, email [email protected]

List of Subjects

29 CFR Part 94

    Administrative practices and procedures, Drug abuse, Grant 
programs, Reporting and recordkeeping requirements.

29 CFR Part 98

    Administrative practices and procedures, Grant programs, Loan 
programs, Reporting and recordkeeping requirements.

    Dated: June 15, 2001.
Elaine L. Chao,
Secretary of Labor.
    For the reasons stated in the common preamble, the Department of 
Labor proposes to amend 29 CFR subtitle A as follows:
    Part 94 is added to read as set forth in instruction 2 at the end 
of the common preamble.

PART 94--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE 
(FINANCIAL ASSISTANCE)

Subpart A--Purpose and Coverage
Sec.
94.100  What does this part do?
94.105  Does this part apply to me?
94.110  Are any of my Federal assistance awards exempt from this 
part?
94.115  Does this part affect the Federal contracts that I receive?
Subpart B--Requirements for Recipients Other Than Individuals
94.200  What must I do to comply with this part?
94.205  What must I include in my drug-free workplace statement?
94.210  To whom must I distribute my drug-free workplace statement?
94.215  What must I include in my drug-free awareness program?
94.220  By when must I publish my drug-free workplace statement and 
establish my drug-free awareness program?
94.225  What actions must I take concerning employees who are 
convicted of drug violations in the workplace?
94.230  How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
94.300  What must I do to comply with this part if I am an 
individual recipient?
94.301  [Reserved]
Subpart D--Responsibilities of Department of Labor Awarding Officials
94.400  What are my responsibilities as a Department of Labor 
awarding official?
Subpart E--Violations of this Part and Consequences
94.500  How are violations of this part determined for recipients 
other than individuals?
94.505  How are violations of this part determined for recipients 
who are individuals?
94.510  What actions will the Federal Government take against a 
recipient determined to have violated this part?
94.515  Is there any provision for exceptions to those actions?
Subpart F--Definitions
94.605  Award.
94.610  Controlled substance.
94.615  Conviction.
94.620  Cooperative agreement.
94.625  Criminal drug statute.
94.630  Debarment.
94.635  Drug-free workplace.
94.640  Employee.
94.645  Federal agency or agency.
94.650  Grant.
94.655  Individual.
94.660  Recipient.
94.665  State.
94.670  Suspension.

    Authority: 41 U.S.C. 701 et seq.

    2. Part 94 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``Department of Labor'' is 
added in its place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``Department of Labor'' is 
added in its place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``Secretary of 
Labor or designee'' is added in its place wherever it occurs.
    d. ``[Agency head]'' is removed and ``Secretary of Labor or 
designee'' is added in its place wherever it occurs.
    3. Section 94.510(c) is further amended by removing ``CFR citation 
for the Federal Agency's regulations implementing Executive Order 12549 
and Executive Order 12689]'' and adding ``29 CFR Part 98'' in its 
place.
    4. Section 98.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``29 CFR part 97'' in its place.
    5. Part 98 is revised to read as set forth in instruction 1 at the 
end of the common preamble.

PART 98--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)

Sec.
98.25  How is this part organized?
98.50  How is this part written?
98.75  Do terms in this part have special meanings?
Subpart A--General
98.100  What does this part do?
98.105  Does this part apply to me?
98.110  What is the purpose of the nonprocurement debarment and 
suspension system?
98.115  How does an exclusion restrict a person's involvement in 
covered transactions?
98.120  May we grant an exception to let an excluded person 
participate in a covered transaction?
98.125  Does an exclusion under the nonprocurement system affect a 
person's eligibility to participate in Federal procurement 
contracts?
98.130  Does an exclusion under the Federal procurement system 
affect a person's eligibility to participate in nonprocurement 
transactions?
98.135  May the U.S. Department of Labor exclude a person who is not 
currently participating in a nonprocurement transaction?
98.140  How do I know if a person is excluded?
98.145  Does this part cover persons who are disqualified as well as 
those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
98.200  What is a covered transaction?
98.205  Why is it important to know if a particular transaction is a 
covered transaction?

[[Page 3321]]

98.210  Which nonprocurement transactions are covered transactions?
98.215  Which nonprocurement transactions are not covered 
transactions?
98.220  Are any procurement contracts included as covered 
transactions?
98.225  How do I know if a transaction that I may participate in is 
a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions 
Doing Business With Other Persons
98.300  May I enter into a covered transaction with an excluded or 
disqualified person?
98.305  What must I do if a Federal agency excludes a person with 
whom I am already doing business in a covered transaction?
98.310  May I use the services of an excluded person under a covered 
transaction?
98.315  Must I verify that principals of my covered transactions are 
eligible to participate?
98.320  What happens if I do business with an excluded person in a 
covered transaction?
98.325  What requirements must I pass down to persons at lower tiers 
with whom I intend to do business?

Disclosing Information--Primary Tier Participants

98.330  What information must I provide before entering into a 
covered transaction with the Department of Labor?
98.335  If I disclose unfavorable information required under 
Sec. 98.330 will I be prevented from entering into the transaction?
98.340  What happens if I fail to disclose the information required 
under Sec. 98.330?
98.345  What must I do if I learn of the information required under 
Sec. 98.330 after entering into a covered transaction with the U.S. 
Department of Labor?

Disclosing information--Lower Tier Participants

98.350  What information must I provide to a higher tier participant 
before entering into a covered transaction with that participant?
98.355  What happens if I fail to disclose the information required 
under Sec. 98.350?
98.360  What must I do if I learn of information required under 
Sec. 98.350 after entering into a covered transaction with a higher 
tier participant?
Subpart D--Responsibilities of the Department of Labor Officials 
Regarding

Transactions

98.400  May I enter into a transaction with an excluded or 
disqualified person?
98.405  May I enter into a covered transaction with a participant if 
a principal of the transaction is excluded?
98.410  May I approve a participant's use of the services of an 
excluded person?
98.415  What must I do if a Federal agency excludes the participant 
or a principal after I enter into a covered transaction?
98.420  May I approve a transaction with an excluded or disqualified 
person at a lower tier?
98.425  When do I check to see if a person is excluded or 
disqualified?
98.430  How do I check to see if a person is excluded or 
disqualified?
98.435  What must I require of a primary tier participant?
98.440  [Reserved]
98.445  What action may I take if a primary tier participant 
knowingly does business with an excluded or disqualified person?
98.450  What action may I take if a primary tier participant fails 
to disclose the information required under Sec. 98.330?
98.455  What may I do if a lower tier participant fails to disclose 
the information required under Sec. 98.350 to the next higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From 
Federal Procurement and Nonprocurement Programs
98.500  What is the purpose of the List?
98.505  Who uses the List?
98.510  Who maintains the List?
98.515  What specific information is on the List?
98.520  Who gives the GSA the information that it puts on the List?
98.525  Whom do I ask if I have questions about a person on the 
List?
98.530  Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment 
Actions
98.600  How do suspension and debarment actions start?
98.605  How does suspension differ from debarment?
98.610  What procedures does the U.S. Department of Labor use in 
suspension and debarment actions?
98.615  How does the U.S. Department of Labor notify a person of 
suspension and debarment actions?
98.620  Do Federal agencies coordinate suspension and debarment 
actions?
98.625  What is the scope of a suspension or debarment action?
98.630  May the U.S. Department of Labor impute the conduct of one 
person to another?
98.635  May the U.S. Department of Labor settle a debarment or 
suspension action?
98.640  May a settlement include a voluntary exclusion?
98.645  Do other Federal agencies know if the U.S. Department of 
Labor agrees to a voluntary exclusion?
Subpart G--Suspension
98.700  When may the suspending official issue a suspension?
98.705  What does the suspending official consider in issuing a 
suspension?
98.710  When does a suspension take effect?
98.715  What notice does the suspending official give me if I am 
suspended?
98.720  How may I contest a suspension?
98.725  How much time do I have to contest a suspension?
98.730  What information must I provide to the suspending official 
if I contest a suspension?
98.735  Under what conditions do I get an additional opportunity to 
challenge the facts on which the suspension is based?
98.740  Are suspension proceedings formal?
98.745  Is a record made of fact-finding proceedings?
98.750  What does the suspending official consider in deciding 
whether to continue or terminate my suspension?
98.755  When will I know whether the suspension is continued or 
terminated?
98.760  How long may my suspension last?
Subpart H--Debarment
98.800  What are the causes for debarment?
98.805  What notice does the debarring official give me if I am 
proposed for debarment?
98.810  When does a debarment take effect?
98.815  How may I contest a proposed debarment?
98.820  How much time do I have to contest a proposed debarment?
98.825  What information must I provide to the debarring official if 
I contest a proposed debarment?
98.830  Under what conditions do I get an additional opportunity to 
challenge the facts on which the proposed debarment is based?
98.835  Are debarment proceedings formal?
98.840  Is a record made of fact-finding proceedings?
98.845  What does the debarring official consider in deciding 
whether to debar me?
98.850  What is the standard of proof in a debarment action?
98.855  Who has the burden of proof in a debarment action?
98.860  What factors may influence the debarring official's 
decision?
98.865  How long may my debarment last?
98.870  When do I know if the debarring official debars me?
98.875  May I ask the debarring official to reconsider a decision to 
debar me?
98.880  What factors may influence the debarring official during 
reconsideration?
98.885  May the debarring official extend a debarment?
Subpart I--Definitions
98.900  Adequate evidence.
98.905  Affiliate.
98.910  Agency.
98.915  Agent or representative.
98.920  Civil judgment.
98.925  Conviction.
98.930  Debarment.
98.935  Debarring official.
98.940  Disqualified.
98.945  Excluded or exclusion.
98.950  Indictment.
98.955  Ineligible or ineligibility.
98.960  Legal proceedings.
98.965  List of Parties Excluded or Disqualified From Federal 
Procurement and Nonprocurement Programs.
98.970  Nonprocurement transaction.
98.975  Notice.
98.980  Participant.
98.985  Person.
98.990  Preponderance of the evidence.
98.995  Principal.

[[Page 3322]]

97.1000  Respondent.
98.1005  State.
98.1010  Suspending official.
98.1015  Suspension.
98.1020  Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]

Appendix to Part 98--Covered Transactions

    Authority: 5 U.S.C. 301, Pub. L. 103-355, 108 Stat. 3327 (31 
U.S.C. 6101 Note); E.O. 11738, 3 CFR, 1973 Comp., p. 799; E.O. 
12549, 3 CFR, 1986 Comp., p. 189; E.O. 12689, 3 CFR, 1989 Comp., p. 
235.

    6. Part 98 is further amended as follows:
    a. ``[Agency noun]'' is removed and ``Department of Labor'' is 
added in its place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``Department of Labor'' is 
added in its place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``Secretary of 
Labor or designee'' is added in its place wherever it occurs.

FEDERAL MEDIATION AND CONCILIATION SERVICE

29 CFR Parts 1471 and 1472

RIN 3076-AA08

FOR FURTHER INFORMATION CONTACT: Jane Lorber, General Counsel, 2100 K 
St., NW, Washington, DC 20427, (202) 606-5444, e-mail: 
[email protected].

ADDITIONAL SUPPLEMENTARY INFORMATION: This proposed rule relocates the 
requirements for maintaining a drug-free workplace from 29 CFR part 
1471 to 29 CFR part 1472.

List of Subjects

29 CFR Part 1471

    Administrative practice and procedure, Debarment and suspension, 
Grant programs, Loan programs, Reporting and recordkeeping 
requirements.

29 CFR Part 1472

    Administrative practice and procedure, Drug abuse, Grant programs, 
Reporting and recordkeeping requirements.

    Approved:
C. Richard Barnes,
Director.
    Accordingly, as set forth in the common preamble, the Federal 
Mediation and Conciliation Service proposes to amend 29 CFR chapter 
XII, as follows:
    1. Part 1471 is revised to read as set forth in instruction 1 at 
the end of the common preamble.

PART 1471--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)

Sec.
1471.25  How is this part organized?
1471.50  How is this part written?
1471.75  Do terms in this part have special meanings?
Subpart A--General
1471.100  What does this part do?
1471.105  Does this part apply to me?
1471.110  What is the purpose of the nonprocurement debarment and 
suspension system?
1471.115  How does an exclusion restrict a person's involvement in 
covered transactions?
1471.120  May we grant an exception to let an excluded person 
participate in a covered transaction?
1471.125  Does an exclusion under the nonprocurement system affect a 
person's eligibility to participate in Federal procurement 
contracts?
1471.130   Does an exclusion under the Federal procurement system 
affect a person's eligibility to participate in nonprocurement 
transactions?
1471.135   May FMCS exclude a person who is not currently 
participating in a nonprocurement transaction?
1471.140   How do I know if a person is excluded?
1471.145   Does this part cover persons who are disqualified as well 
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
1471.200   What is a covered transaction?
1471.205   Why is it important to know if a particular transaction 
is a covered transaction?
1471.210   Which nonprocurement transactions are covered 
transactions?
1471.215   Which nonprocurement transactions are not covered 
transactions?
1471.220   Are any procurement contracts included as covered 
transactions?
1471.225   How do I know if a transaction that I may participate in 
is a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions 
Doing Business With Other Persons
1471.300   May I enter into a covered transaction with an excluded 
or disqualified person?
1471.305   What must I do if a Federal agency excludes a person with 
whom I am already doing business in a covered transaction?
1471.310   May I use the services of an excluded person under a 
covered transaction?
1471.315   Must I verify that principals of my covered transactions 
are eligible to participate?
1471.320   What happens if I do business with an excluded person in 
a covered transaction?
1471.325   What requirements must I pass down to persons at lower 
tiers with whom I intend to do business?

Disclosing Information--Primary Tier Participants

1471.330   What information must I provide before entering into a 
covered transaction with FMCS?
1471.335   If I disclose unfavorable information required under 
Sec. 1471.330 will I be prevented from entering into the 
transaction?
1471.340   What happens if I fail to disclose the information 
required under Sec. 1471.330?
1471.345   What must I do if I learn of the information required 
under Sec. 1471.330 after entering into a covered transaction with 
FMCS?

Disclosing Information--Lower Tier Participants

1471.350   What information must I provide to a higher tier 
participant before entering into a covered transaction with that 
participant?
1471.355   What happens if I fail to disclose the information 
required under Sec. 1471.350?
1471.360   What must I do if I learn of information required under 
Sec. 1471.350 after entering into a covered transaction with a 
higher tier participant?
Subpart D--Responsibilities of FMCS Officials Regarding Transactions
1471.400   May I enter into a transaction with an excluded or 
disqualified person?
1471.405   May I enter into a covered transaction with a participant 
if a principal of the transaction is excluded?
1471.410   May I approve a participant's use of the services of an 
excluded person?
1471.415   What must I do if a Federal agency excludes the 
participant or a principal after I enter into a covered transaction?
1471.420   May I approve a transaction with an excluded or 
disqualified person at a lower tier?
1471.425   When do I check to see if a person is excluded or 
disqualified?
1471.430   How do I check to see if a person is excluded or 
disqualified?
1471.435   What must I require of a primary tier participant?
1471.440   What method do I use to communicate those requirements to 
participants?
1471.445   What action may I take if a primary tier participant 
knowingly does business with an excluded or disqualified person?
1471.450   What action may I take if a primary tier participant 
fails to disclose the information required under Sec. 1471.330?
1471.455   What may I do if a lower tier participant fails to 
disclose the information required under Sec. 1471.350 to the next 
higher tier?

[[Page 3323]]

Subpart E--Governmentwide List of Parties Excluded or Disqualified From 
Federal Procurement and Nonprocurement Programs
1471.500   What is the purpose of the List?
1471.505   Who uses the List?
1471.510   Who maintains the List?
1471.515   What specific information is on the List?
1471.520   Who gives the GSA the information that it puts on the 
List?
1471.525   Whom do I ask if I have questions about a person on the 
List?
1471.530   Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment 
Actions
1471.600   How do suspension and debarment actions start?
1471.605   How does suspension differ from debarment?
1471.610   What procedures does FMCS use in suspension and debarment 
actions?
1471.615   How does FMCS notify a person of suspension and debarment 
actions?
1471.620   Do Federal agencies coordinate suspension and debarment 
actions?
1471.625   What is the scope of a suspension or debarment action?
1471.630   May FMCS impute the conduct of one person to another?
1471.635   May FMCS settle a debarment or suspension action?
1471.640   May a settlement include a voluntary exclusion?
1471.645   Do other Federal agencies know if FMCS agrees to a 
voluntary exclusion?
Subpart G--Suspension
1471.700   When may the suspending official issue a suspension?
1471.705   What does the suspending official consider in issuing a 
suspension?
1471.710   When does a suspension take effect?
1471.715   What notice does the suspending official give me if I am 
suspended?
1471.720   How may I contest a suspension?
1471.725   How much time do I have to contest a suspension?
1471.730   What information must I provide to the suspending 
official if I contest a suspension?
1471.735   Under what conditions do I get an additional opportunity 
to challenge the facts on which the suspension is based?
1471.740   Are suspension proceedings formal?
1471.745   Is a record made of fact-finding proceedings?
1471.750   What does the suspending official consider in deciding 
whether to continue or terminate my suspension?
1471.755   When will I know whether the suspension is continued or 
terminated?
1471.760   How long may my suspension last?
Subpart H--Debarment
1471.800   What are the causes for debarment?
1471.805   What notice does the debarring official give me if I am 
proposed for debarment?
1471.810   When does a debarment take effect?
1471.815   How may I contest a proposed debarment?
1471.820   How much time do I have to contest a proposed debarment?
1471.825   What information must I provide to the debarring official 
if I contest a proposed debarment?
1471.830   Under what conditions do I get an additional opportunity 
to challenge the facts on which the proposed debarment is based?
1471.835   Are debarment proceedings formal?
1471.840   Is a record made of fact-finding proceedings?
1471.845   What does the debarring official consider in deciding 
whether to debar me?
1471.850   What is the standard of proof in a debarment action?
1471.855   Who has the burden of proof in a debarment action?
1471.860   What factors may influence the debarring official's 
decision?
1471.865   How long may my debarment last?
1471.870   When do I know if the debarring official debars me?
1471.875   May I ask the debarring official to reconsider a decision 
to debar me?
1471.880   What factors may influence the debarring official during 
reconsideration?
1471.885   May the debarring official extend a debarment?
Subpart I--Definitions
1471.900   Adequate evidence.
1471.905   Affiliate.
1471.910   Agency.
1471.915   Agent or representative.
1471.920   Civil judgment.
1471.925   Conviction.
1471.930   Debarment.
1471.935   Debarring official.
1471.940   Disqualified.
1471.945   Excluded or exclusion.
1471.950   Indictment.
1471.955   Ineligible or ineligibility.
1471.960   Legal proceedings.
1471.965   List of parties excluded or disqualified from federal 
procurement and nonprocurement programs.
1471.970   Nonprocurement transaction.
1471.975   Notice.
1471.980   Participant.
1471.985   Person.
1471.990   Preponderance of the evidence.
1471.995   Principal.
1471.1000   Respondent.
1471.1005   State.
1471.1010   Suspending official.
1471.1015   Suspension.
1471.1020   Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]

Appendix to Part 1471--Covered Transactions

    Authority: E.O. 12549 ,3 CFR 1986 Comp., p. 189; E.O. 12698, 3 
CFR 1989 Comp., p. 235; sec. 2455, Pub. L. 103-355, 108 Stat. 3327 
(31 U.S.C. 6101 note); 29 U.S.C. 175a.

    2. Part 1471 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``Federal Mediation and 
Conciliation Service'' is added in its place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``FMCS'' is added in its 
place wherever it occurs.
    c. ``[Agency Head or designee]'' is removed and ``Agency Director'' 
is added in its place wherever it occurs.
    3. Section 1471.440 is added to read as follows:


Sec. 1471.440  What method do I use to communicate those requirements 
to participants?

    To communicate the requirement you must include a term or condition 
in the transaction requiring the participants' compliance with Subpart 
C of this part and requiring them to include a similar term or 
condition in lower-tier covered transactions.
    4. Part 1472 is added to read as set forth in instruction 2 at the 
end of the common preamble.

PART 1472 --GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE 
(FINANCIAL ASSISTANCE)

Subpart A--Purpose and Coverage
Sec.
1472.100   What does this part do?
1472.105   Does this part apply to me?
1472.110   Are any of my Federal assistance awards exempt from this 
part?
1472.115   Does this part affect the Federal contracts that I 
receive?
Subpart B--Requirements for Recipients Other than Individuals
1472.200   What must I do to comply with this part?
1472.205   What must I include in my drug-free workplace statement?
1472.210   To whom must I distribute my drug-free workplace 
statement?
1472.215   What must I include in my drug-free awareness program?
1472.220   By when must I publish my drug-free workplace statement 
and establish my drug-free awareness program?
1472.225   What actions must I take concerning employees who are 
convicted of drug violations in the workplace?
1472.230   How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
1472.300   What must I do to comply with this part if I am an 
individual recipient?
1472.301   [Reserved]
Subpart D--Responsibilities of FMCS Awarding Officials
1472.400   What are my responsibilities as an FMCS awarding 
official?

[[Page 3324]]

Subpart E--Violations of This Part and Consequences
1472.500   How are violations of this part determined for recipients 
other than individuals?
1472.505   How are violations of this part determined for recipients 
who are individuals?
1472.510   What actions will the Federal Government take against a 
recipient determined to have violated this part?
1472.515   Are there any exceptions to those actions?
Subpart F--Definitions
1472.605   Award.
1472.610   Controlled substance.
1472.615   Conviction.
1472.620   Cooperative agreement.
1472.625   Criminal drug statute.
1472.630   Debarment.
1472.635   Drug-free workplace.
1472.640   Employee.
1472.645   Federal agency or agency.
1472.650   Grant.
1472.655   Individual.
1472.660   Recipient.
1472.665   State.
1472.670   Suspension.

    Authority: 41 U.S.C. 701, et seq.

    5. Part 1472 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``Federal Mediation and 
Conciliation Service'' is added in its place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``FMCS'' is added in its 
place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``Agency Director'' 
is added in its place wherever it occurs.
    d. ``[Agency head]'' is removed and ``Agency Director'' is added in 
its place wherever it occurs.
    6. Section 1472.510 (c) is further amended by removing ``[CFR 
citation for the Federal Agency's regulations implementing Executive 
Order 12549 and Executive Order 12689] and adding ``29 CFR part 1471'' 
in its place.
    7. Section 1472.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``29 CFR part 1470'' in its place.

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Parts 25 and 26

RIN 0790-AG86

FOR FURTHER INFORMATION CONTACT: Mark Herbst, Office of the Deputy 
Under Secretary of Defense (Science and Technology), 3080 Defense 
Pentagon, Washington, DC 20301-3080, telephone: (703) 696-0372.
ADDITIONAL SUPPLEMENTARY INFORMATION: The Department of Defense (DoD) 
proposes to adopt two updated common rules, on nonprocurement debarment 
and suspension and on drug-free workplace requirements for grants and 
agreements. In adopting these rules, the Office of the Secretary of 
Defense, Military Departments, Defense Agencies, and DoD Field 
Activities will maintain uniform policies and procedures that are 
consistent with those of other Executive Departments and Agencies. At 
the time the final rule is adopted, the DoD will make conforming 
amendments in other parts of the DoD Grant and Agreement Regulations 
(32 CFR parts 21, 22, 32, and 34), to update references to the 
debarment and suspension and the drug-free workplace requirements that 
currently are in 32 CFR part 25.

List of Subjects

32 CFR Part 25

    Administrative practice and procedure, Debarment and suspension, 
Grant programs, Reporting and recordkeeping requirements

32 CFR Part 26

    Administrative practice and procedure, Drug abuse, Grant programs, 
Reporting and recordkeeping requirements

    Approved: August 22, 2001.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
    Accordingly, as set forth in the common preamble, 32 CFR chapter I, 
subchapter B, is proposed to be amended as follows.
    1. Part 25 is revised to read as set forth in instruction 1 at the 
end of the common preamble.

PART 25--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)

Sec.
25.25  How is this part organized?
25.50  How is this part written?
25.75  Do terms in this part have special meanings?
Subpart A--General
25.100  What does this part do?
25.105  Does this part apply to me?
25.110  What is the purpose of the nonprocurement debarment and 
suspension system?
25.115  How does an exclusion restrict a person's involvement in 
covered transactions?
25.120  May we grant an exception to let an excluded person 
participate in a covered transaction?
25.125  Does an exclusion under the nonprocurement system affect a 
person's eligibility to participate in Federal procurement 
contracts?
25.130  Does an exclusion under the Federal procurement system 
affect a person's eligibility to participate in nonprocurement 
transactions?
25.135  May the DoD Component exclude a person who is not currently 
participating in a nonprocurement transaction?
25.140  How do I know if a person is excluded?
25.145  Does this part cover persons who are disqualified as well as 
those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
25.200  What is a covered transaction?
25.205  Why is it important to know if a particular transaction is a 
covered transaction?
25.210  Which nonprocurement transactions are covered transactions?
25.215  Which nonprocurement transactions are not covered 
transactions?
25.220  Are any procurement contracts included as covered 
transactions?
25.225  How do I know if a transaction in which I may participate is 
a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions 
Doing Business With Other Persons
25.300  May I enter into a covered transaction with an excluded or 
disqualified person?
25.305  What must I do if a Federal agency excludes a person with 
whom I am already doing business in a covered transaction?
25.310  May I use the services of an excluded person under a covered 
transaction?
25.315  Must I verify that principals of my covered transactions are 
eligible to participate?
25.320  What happens if I do business with an excluded person in a 
covered transaction?
25.325  What requirements must I pass down to persons at lower tiers 
with whom I intend to do business?
Disclosing Information--Primary Tier Participants
25.330  What Information must I provide before entering into a 
covered transaction with the DoD Component?
25.335  If I disclose unfavorable information required under 
Sec. 25.330 will I be prevented from entering into the transaction?
25.340  What happens if I fail to disclose the information required 
under Sec. 25.330?
25.345  What must I do if I learn of the information required under 
Sec. 25.330 after entering into a covered transaction with the DoD 
Component?
Disclosing information--Lower Tier Participants
25.350  What information must I provide to a higher tier participant 
before entering into a covered transaction with that participant?
25.355  What happens if I fail to disclose the information required 
under Sec. 25.350?
25.360  What must I do if I learn of information required under 
Sec. 25.350 after

[[Page 3325]]

entering into a covered transaction with a higher tier participant?
Subpart D--Responsibilities of DoD Component Officials Regarding 
Transactions
25.400  May I enter into a transaction with an excluded or 
disqualified person?
25.405  May I enter into a covered transaction with a participant if 
a principal of the transaction is excluded?
25.415  What must I do if a Federal agency excludes the participant 
or a principal after I enter into a covered transaction?
25.420  May I approve a transaction with an excluded or disqualified 
person at a lower tier?
25.425  When do I check to see if a person is excluded or 
disqualified?
25.430  How do I check to see if a person is excluded or 
disqualified?
25.435  What must I require of a primary tier participant?
25.440  What method do I use to communicate those requirements to 
participants?
25.445  What action may I take if a primary tier participant 
knowingly does business with an excluded or disqualified person?
25.450  What action may I take if a primary tier participant fails 
to disclose the information required under Sec. 25.330?
25.455  What may I do if a lower tier participant fails to disclose 
the information required under Sec. 25.350 to the next higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From 
Federal Procurement and Nonprocurement Programs
25.500  What is the purpose of the List?
25.505  Who uses the List?
25.510  Who maintains the List?
25.515  What specific information is on the List?
25.520  Who gives the GSA the information that it puts on the List?
25.525  Whom do I ask if I have questions about a person on the 
List?
25.530  Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment 
Actions
25.600  How do suspension and debarment actions start?
25.605  How does suspension differ from debarment?
25.610  What procedures does the DoD Component use in suspension and 
debarment actions?
25.615  How does the DoD Component notify a person of suspension and 
debarment actions?
25.620  Do Federal agencies coordinate suspension and debarment 
actions?
25.625  What is the scope of a suspension or debarment action?
25.630  May the DoD Component impute the conduct of one person to 
another?
25.635  May the DoD Component settle a debarment or suspension 
action?
25.640  May a settlement include a voluntary exclusion?
25.645  Do other Federal agencies know if the DoD Component agrees 
to a voluntary exclusion?
Subpart G--Suspension
25.700  When may the suspending official issue a suspension?
25.705  What does the suspending official consider in issuing a 
suspension?
25.710  When does a suspension take effect?
25.715  What notice does the suspending official give me if I am 
suspended?
25.720  How may I contest a suspension?
25.725  How much time do I have to contest a suspension?
25.730  What information must I provide to the suspending official 
if I contest a suspension?
25.735  Under what conditions do I get an additional opportunity to 
challenge the facts on which the suspension is based?
25.740  Are suspension proceedings formal?
25.745  Is a record made of fact-finding proceedings?
25.750  What does the suspending official consider in deciding 
whether to continue or terminate my suspension?
25.755  When will I know whether the suspension is continued or 
terminated?
25.760  How long may my suspension last?
Subpart H--Debarment
25.800  What are the causes for debarment?
25.805  What notice does the debarring official give me if I am 
proposed for debarment?
25.810  When does a debarment take effect?
25.815  How may I contest a proposed debarment?
25.820  How much time do I have to contest a proposed debarment?
25.825  What information must I provide to the debarring official if 
I contest a proposed debarment?
25.830  Under what conditions do I get an additional opportunity to 
challenge the facts on which a proposed debarment is based?
25.835  Are debarment proceedings formal?
25.840  Is a record made of fact-finding proceedings?
25.845  What does the debarring official consider in deciding 
whether to debar me?
25.850  What is the standard of proof in a debarment action?
25.855  Who has the burden of proof in a debarment action?
25.860  What factors may influence the debarring official's 
decision?
25.865  How long may my debarment last?
25.870  When do I know if the debarring official debars me?
25.875  May I ask the debarring official to reconsider a decision to 
debar me?
25.880  What factors may influence the debarring official during 
reconsideration?
25.885  May the debarring official extend a debarment?
Subpart I--Definitions
25.900  Adequate evidence.
25.905  Affiliate.
25.910  Agency.
25.915  Agent or representative.
25.920  Civil judgment.
25.925  Conviction.
25.930  Debarment.
25.935  Debarring official.
25.940  Disqualified.
25.942  DoD Component.
25.945  Excluded or exclusion.
25.950  Indictment.
25.955  Ineligible or ineligibility.
25.960  Legal proceedings.
25.965  List of Parties Excluded or Disqualified From Federal 
Procurement and Nonprocurement Programs.
25.970  Nonprocurement transaction.
25.975  Notice.
25.980  Participant.
25.985  Person.
25.990  Preponderance of the evidence.
25.995  Principal.
25.1000  Respondent.
25.1005  State.
25.1010  Suspending official.
25.1015  Suspension.
25.1020  Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]

Appendix to Part 25--Covered Transactions

    Authority: E.O. 12549, 3 CFR 1986 Comp., p. 189; E.O. 12689 , 3 
CFR 1989 Comp., p. 235; sec. 2455, Pub. L. 103-355, 108 Stat. 3327 
(31 U.S.C. 6101 note).

    2. Part 25 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``DoD Component'' is added in 
its place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``DoD Component'' is added 
in its place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``Head of the DoD 
Component or his or her designee'' is added in its place wherever it 
occurs.
    3. Section 25.440 is added to read as follows:


Sec. 25.440  What method do I use to communicate those requirements to 
participants?

    To communicate the requirement, you must include a term or 
condition in the transaction requiring the participants' compliance 
with subpart C of this part and requiring them to include a similar 
term or condition in lower-tier covered transactions.
    4. Section 25.935 is further amended by adding paragraph (b) to 
read as follows:


Sec. 25.935  Debarring official.

* * * * *
    (b) DoD Components' debarring officials for nonprocurement 
transactions are the same officials identified in 48 CFR part 209, 
subpart 209.4 as debarring officials for procurement contracts.
    5. Section 25.942 is added to read as follows:


Sec. 25.942  DoD Component.

    DoD Component means the Office of the Secretary of Defense, a 
Military

[[Page 3326]]

Department, a Defense Agency, or the Office of Economic Adjustment.
    6. Section 25.1010 is further amended by adding a paragraph (b) to 
read as follows:


Sec. 25.1010  Suspending official.

* * * * *
    (b) DoD Components' suspending officials for nonprocurement 
transactions are the same officials identified in 48 CFR part 209, 
subpart 209.4 as suspending officials for procurement contracts.
    7. Part 26 is added to read as set forth in instruction 2 at the 
end of the common preamble.

PART 26--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE 
(FINANCIAL ASSISTANCE)

Subpart A--Purpose and Coverage
Sec.
26.100  What does this part do?
26.105  Does this part apply to me?
26.110  Are any of my Federal assistance awards exempt from this 
part?
26.115  Does this part affect the Federal contracts that I receive?
Subpart B--Requirements for Recipients Other Than Individuals
26.200  What must I do to comply with this part?
26.205  What must I include in my drug-free workplace statement?
26.210  To whom must I distribute my drug-free workplace statement?
26.215  What must I include in my drug-free awareness program?
26.220  By when must I publish my drug-free workplace statement and 
establish my drug-free awareness program?
26.225  What actions must I take concerning employees who are 
convicted of drug violations in the workplace?
26.230  How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
26.300  What must I do to comply with this part if I am an 
individual recipient?
26.301  [Reserved]
Subpart D--Responsibilities of DoD Component Awarding Officials
26.400  What are my responsibilities as a DoD Component awarding 
official?
Subpart E--Violations of This Part and Consequences
26.500  How are violations of this part determined for recipients 
other than individuals?
26.505  How are violations of this part determined for recipients 
who are individuals?
26.510  What actions will the Federal Government take against a 
recipient determined to have violated this part?
26.515  Are there any exceptions to those actions?
Subpart F--Definitions
26.605  Award.
26.610  Controlled substance.
26.615  Conviction.
26.620  Cooperative agreement.
26.625  Criminal drug statute.
26.630  Debarment.
26.632  DoD Component.
26.635  Drug-free workplace.
26.640  Employee.
26.645  Federal agency or agency.
26.650  Grant.
26.655  Individual.
26.660  Recipient.
26.665  State.
26.670  Suspension.

    Authority: 41 U.S.C. 701, et seq.

    8. Part 26 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``DoD Component'' is added in 
its place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``DoD Component'' is added 
in its place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``Head of the DoD 
Component or his or her designee'' is added in its place wherever it 
occurs.
    d. ``[Agency head]'' is removed and ``Secretary of Defense or 
Secretary of a Military Department'' is added in its place wherever it 
occurs.
    9. Section 26.510(c) is further amended by removing ``[CFR citation 
for the Federal agency's regulations implementing Executive Order 12549 
and Executive Order 12689]'' and adding ``32 CFR part 25'' in its 
place.
    10. Section 26.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``32 CFR part 33'' in its place.
    11. Section 26.632 is added to read as follows:


Sec. 26.632  DoD Component.

    DoD Component means the Office of the Secretary of Defense, a 
Military Department, a Defense Agency, or the Office of Economic 
Adjustment.

DEPARTMENT OF EDUCATION

34 CFR Parts 84, 85, 668, and 682

RIN 1890-AA07

FOR FURTHER INFORMATION CONTACT: Peter Wathen-Dunn, Office of the 
General Counsel, U.S. Department of Education, 400 Maryland Avenue, 
SW., room 6E211, Washington, DC 20202-2243. Telephone: 202-401-6700 or 
via e-mail [email protected].
    If you use a telecommunications device for the deaf (TDD), you may 
call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
    Individuals with disabilities may obtain this document in an 
alternative format (e.g., Braille, large print, audiotape, or computer 
diskette) on request to the contact person listed under FOR FURTHER 
INFORMATION CONTACT.


ADDITIONAL SUPPLEMENTARY INFORMATION: The proposed common rule would 
provide agencies with certain areas of flexibility in adopting the 
common rule. An agency can determine the extent to which the effect of 
a debarment or suspension action flows down to tiers lower than a 
nonprocurement transaction. Under the original common rule, every 
procurement below the nonprocurement level is covered if it exceeds the 
small purchase threshold ($25,000). The Department of Education has 
significant vulnerabilities to fraud and abuse below the nonprocurement 
level, particularly among participants in the financial aid programs 
authorized under title IV of the Higher Education Act of 1965, as 
amended (HEA), 20 U.S.C. 1070, et seq. Thus, the Secretary proposes 
language for Sec. 85.220(d) that preserves coverage at multiple lower 
tiers for any contract or subcontract that is greater than $25,000, and 
language for Sec. 85.220(e) that reaches contracts for services for 
title IV HEA programs without regard to dollar amount.
    For example, if a subgrantee entered into a contract with a third 
party and the contract exceeds the $25,000 threshold, the contract 
would be covered under the proposed rule and every subcontract after 
that would be covered if it exceeds that threshold.
    The Secretary also proposes to adopt the rule so that direct notice 
between one tier and the next of the potential for suspension and 
debarment is not needed to impose coverage. As explained more fully 
later in this preamble, certain persons pose significant risks to the 
U.S. Department of Education (ED) funded programs even though in some 
cases those people receive no funds directly from ED related to the 
transaction over which they have a significant control or influence.
    The Secretary proposes additional changes to the common rule. These 
changes would clarify the effect of debarment and suspension actions on 
an institution's eligibility to participate in student assistance 
programs authorized under title IV of the HEA, 20 U.S.C. 1070, et seq. 
These changes are consistent with the original common rule, as adopted 
by the Department in 1988.
    The Secretary also proposes to clarify some of the coverage 
definitions to ensure that any person who has a significant control or 
influence over an ED transaction would be covered. The

[[Page 3327]]

Secretary would also clarify the meaning of ``principal'' and 
``participant'' in the context of title IV, HEA transactions. The 
Secretary considers an excluded person to pose significant risk to the 
integrity of the title IV, HEA programs. Thus, the Secretary proposes 
changes to the common rule regarding the definition of an excluded 
``principal.'' The proposed revised definition would include those 
persons who would--
     Provide services as third-party servicers to schools, 
lenders, and guarantors that participate in the title IV, HEA programs.
     Provide counsel or guidance directly to third-party 
servicers; or
     Provide counsel or guidance through a third-party 
servicer, indirectly or directly, to the lender, school, or guarantor.
    To further clarify this position and to make participants aware of 
this precaution, the Secretary expressly designates as a covered lower-
tier transaction any contract between a third-party servicer and a 
lender, school, or guarantor, regardless of the amount of the contract.
    Parties apparently have structured these types of transactions to 
avoid the dollar threshold needed to extend coverage to lower-tier 
procurement transactions. The Secretary proposes this change to avoid 
attempts by excluded parties to use agreements or arrangements that 
contain indefinite or ambiguously phrased compensation provisions to 
evade sanction. In addition, the Secretary considers the dollar amount 
of the procurement contract for the services of an excluded person to 
have no necessary connection with the amount of abuse that may be 
caused by the excluded person.
    The proposed changes would make the scope of the exclusion clearer 
and easier for participants to apply to their transactions.
    The common rule allows a participant to continue to use the 
services of an excluded person on the premise that the transaction or 
agreement under which a participant operates has a limited duration. 
However, it is contrary to the intent of the rule, to apply that 
approach to situations in which the party participates under an 
agreement or arrangement of extended or even indefinite duration. 
Several major title IV, HEA agreements have no stated expiration date; 
others, including program participation agreements with postsecondary 
institutions, commonly extend for six years.
    The Secretary wishes to prevent a title IV, HEA participant from 
continuing to use the services of an excluded person under this kind of 
agreement or arrangement. Thus, the Secretary--solely for the purpose 
of this rule--proposes to treat these agreements as having limited 
duration, regardless of other regulatory or contractual provisions that 
control their duration as between the participant and the Government. 
The Secretary considers this approach necessary in order to ensure a 
level of protection for these kinds of transactions or agreements that 
the common rule is intended to achieve for other Federal agreements.
    Thus, for the purposes of title IV, HEA transactions, the Secretary 
proposes to allow a participant to continue to use the services of the 
excluded person for a period of 90 days or up to the close of the 
Federal fiscal year in which the participant learns of the exclusion, 
whichever is longer. This would give the participant time to arrange 
for a substitute to perform needed services.
    Because this NPRM would reorganize part 85 of title 34 of the Code 
of Federal Regulations (CFR), some of the cross-references to this part 
in parts 668 and 682 of the CFR would become obsolete when this rule 
becomes final. Therefore, the Secretary proposes to make conforming 
amendments to parts 668 and 682 of the CFR so they refer to the proper 
provisions in part 85.
    Also, the Secretary proposes to remove 34 CFR 682.705(a)(3), which 
prescribes the duration of a suspension by another Federal agency. 
Because the period of the suspension is expressly covered in proposed 
34 CFR 85.612(b), there is no need to retain the separate explanation.
    Finally, we note that the common rule clarifies the conditions 
under which a Federal agency gives a respondent an opportunity to 
challenge facts on which the agency based a suspension or proposed 
debarment.

Assessment of Educational Impact

    The Secretary particularly requests comments on whether these 
proposed regulations would require transmission of information that any 
other agency or authority of the United States gathers or makes 
available.

Electronic Access to This Document

    You may view this document, as well as all other Department of 
Education documents published in the Federal Register, in text or Adobe 
Portable Document Format (PDF) on the Internet at the following site: 
http://www.ed.gov/legislation/FedRegister.
    To use PDF you must have Adobe Acrobat Reader, which is available 
free at this site. If you have questions about using PDF, call the U.S. 
Government Printing Office (GPO), toll free, at 1-888-293-6498; or in 
the Washington, DC, area at (202) 512-1530.

    Note: The official version of this document is the document 
published in the Federal Register. Free Internet access to the 
official edition of the Federal Register and the Code of Federal 
Regulations is available on GPO Access at: http://www.access.gpo.gov/nara/index.html.

(Catalog of Federal Domestic Assistance Number 84.032 Federal Family 
Education Loan Program)

List of Subjects

34 CFR Part 84

    Debarment and suspension, Drug abuse, Grant programs, Reporting and 
recordkeeping requirements.

34 CFR Part 85

    Administrative practice and procedure, Debarment and suspension, 
Drug abuse, Grant programs, Loan programs, Reporting and recordkeeping 
requirements.

34 CFR Part 668

    Administrative practice and procedure, Colleges and universities, 
Consumer protection, Grant programs-education, Loan programs-education, 
Reporting and recordkeeping requirements, Student aid.

34 CFR Part 682

    Administrative practice and procedure, Colleges and universities, 
Education, Loan programs-education, Reporting and recordkeeping 
requirements, Student aid, Vocational education.

    Dated: September 6, 2001.
Rod Paige,
Secretary of Education.
    For the reasons stated in the common preamble and in the specific 
preamble of the Department of Education (ED), the Secretary proposes to 
amend title 34 of the Code of Federal Regulations by adding part 84, 
revising part 85, and amending parts 668 and 682 to read as follows:
    1. Part 84 is added to read as set forth in instruction 2 at the 
end of the common preamble.

PART 84--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE 
(FINANCIAL ASSISTANCE)

Subpart A--Purpose and Coverage
Sec.
84.100  What does this part do?
84.105  Does this part apply to me?
84.110  Are any of my Federal assistance awards exempt from this 
part?
84.115  Does this part affect the Federal contracts that I receive?

[[Page 3328]]

Subpart B--Requirements for Recipients Other Than Individuals
84.200  What must I do to comply with this part?
84.205  What must I include in my drug-free workplace statement?
84.210  To whom must I distribute my drug-free workplace statement?
84.215  What must I include in my drug-free awareness program?
84.220  By when must I publish my drug-free workplace statement and 
establish my drug-free awareness program?
84.225  What actions must I take concerning employees who are 
convicted of drug violations in the workplace?
84.230  How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
84.300  What must I do to comply with this part if I am an 
individual recipient?
84.301  [Reserved]
Subpart D--Responsibilities of ED Awarding Officials
84.400  What are my responsibilities as an ED awarding official?
Subpart E--Violations of This Part and Consequences
84.500  How are violations of this part determined for recipients 
other than individuals?
84.505  How are violations of this part determined for recipients 
who are individuals?
84.510  What actions will the Federal Government take against a 
recipient determined to have violated this part?
84.515  Are there any exceptions to those actions?
Subpart F--Definitions
84.605  Award.
84.610  Controlled substance.
84.615  Conviction.
84.620  Cooperative agreement.
84.625  Criminal drug statute.
84.630  Debarment.
84.635  Drug-free workplace.
84.640  Employee.
84.645  Federal agency or agency.
84.650  Grant.
84.655  Individual.
84.660  Recipient.
84.665  State.
84.670  Suspension.
Authority: E.O.s 12549 and 12689; 20 U.S.C. 1082, 1094, 1221e-3 and 
3474; and Sec. 2455, Pub. L. 103-355, 108 Stat. 3243 at 3327, unless 
otherwise noted.

    2. Part 84 is further amended as follows:
    a. ``[Agency noun]'' is removed and ``Department of Education'' is 
added in its place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``ED'' is added in its 
place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``ED Deciding 
Official'' is added in its place wherever it occurs.
    d. ``[Agency head]'' is removed and ``ED Deciding Official'' is 
added in its place wherever it occurs.
    3. Section 84.510(c) is further amended by removing ``[CFR citation 
for the Federal Agency's regulations implementing Executive Order 12549 
and Executive Order 12689]'' and adding ``34 CFR part 85'' in its 
place.
    4. Section 84.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``34 CFR part 85'' in its place.
    5. Each section in part 84 is further amended by adding to the end 
of each section the following authority citation to read:

(Authority: E.O.s 12549 and 12689; 20 U.S.C. 1082, 1094, 1221e-3 and 
3474; and Sec. 2455, Pub. L. 103-355, 108 Stat. 3243 at 3327)

    6. Part 85 is revised to read as provided in instruction 1 at the 
end of the common preamble:

PART 85--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)

Sec.
85.25  How is this part organized?
85.50  How is this part written?
85.75  Do terms in this part have special meanings?
Subpart A--General
85.100  What does this part do?
85.105  Does this part apply to me?
85.110  What is the purpose of the nonprocurement debarment and 
suspension system?
85.115  How does an exclusion restrict a person's involvement in 
covered transactions?
85.120  May we grant an exception to let an excluded person 
participate in a covered transaction?
85.125  Does an exclusion under the nonprocurement system affect a 
person's eligibility to participate in Federal procurement 
contracts?
85.130  Does an exclusion under the Federal procurement system 
affect a person's eligibility to participate in nonprocurement 
transactions?
85.135  May the Department of Education exclude a person who is not 
currently participating in a nonprocurement transaction?
85.140  How do I know if a person is excluded?
85.145  Does this part cover persons who are disqualified as well as 
those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
85.200  What is a covered transaction?
85.205  Why is it important to know if a particular transaction is a 
covered transaction?
85.210  Which nonprocurement transactions are covered transactions?
85.215  Which nonprocurement transactions are not covered 
transactions?
85.220  Are any procurement contracts included as covered 
transactions?
85.225  How do I know if a transaction that I may participate in is 
a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions 
Doing Business With Other Persons
85.300  May I enter into a covered transaction with an excluded or 
disqualified person?
85.305  What must I do if a Federal agency excludes a person with 
whom I am already doing business in a covered transaction?
85.310  May I use the services of an excluded person under a covered 
transaction?
85.315  Must I verify that principals of my covered transactions are 
eligible to participate?
85.320  What happens if I do business with an excluded person in a 
covered transaction?
85.325  What requirements must I pass down to persons at lower tiers 
with whom I intend to do business?

Disclosing Information--Primary Tier Participants

85.330  What information must I provide before entering into a 
covered transaction with the Department of Education?
85.335  If I disclose unfavorable information required under 
Sec. 85.330 will I be prevented from entering into the transaction?
85.340  What happens if I fail to disclose the information required 
under Sec. 85.330?
85.345  What must I do if I learn of the information required under 
Sec. 85.330 after entering into a covered transaction with the 
Department of Education?

Disclosing Information--Lower Tier Participants

85.350  What information must I provide to a higher tier participant 
before entering into a covered transaction with that participant?
85.355  What happens if I fail to disclose the information required 
under Sec. 85.350?
85.360  What must I do if I learn of information required under 
Sec. 85.350 after entering into a covered transaction with a higher 
tier participant?
Subpart D--Responsibilities of ED Officials Regarding Transactions
85.400  May I enter into a transaction with an excluded or 
disqualified person?
85.405  May I enter into a covered transaction with a participant if 
a principal of the transaction is excluded?
85.410  May I approve a participant's use of the services of an 
excluded person?
85.415  What must I do if a Federal agency excludes the participant 
or a principal after I enter into a covered transaction?
85.420  May I approve a transaction with an excluded or disqualified 
person at a lower tier?

[[Page 3329]]

85.425  When do I check to see if a person is excluded or 
disqualified?
85.430  How do I check to see if a person is excluded or 
disqualified?
85.435  What must I require of a primary tier participant?
85.440  What method do I use to communicate those requirements to 
participants?
85.445  What action may I take if a primary tier participant 
knowingly does business with an excluded or disqualified person?
85.450  What action may I take if a primary tier participant fails 
to disclose the information required under Sec. 85.330?
85.455  What may I do if a lower tier participant fails to disclose 
the information required under Sec. 85.350 to the next higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From 
Federal Procurement and Nonprocurement Programs
85.500  What is the purpose of the List?
85.505  Who uses the List?
85.510  Who maintains the List?
85.515  What specific information is on the List?
85.520  Who gives the GSA the information that it puts on the List?
85.525  Whom do I ask if I have questions about a person on the 
List?
85.530  Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment 
Actions
85.600  How do suspension and debarment actions start?
85.605  How does suspension differ from debarment?
85.610  What procedures does the Department of Education use in 
suspension and debarment actions?
85.611  What procedures do we use for a suspension or debarment 
action involving title IV, HEA transaction?
85.612  When does an exclusion by another agency affect the ability 
of the excluded person to participate in title IV, HEA transaction?
85.615  How does the Department of Education notify a person of 
suspension and debarment actions?
85.620  Do Federal agencies coordinate suspension and debarment 
actions?
85.625  What is the scope of a suspension or debarment action?
85.630  May the Department of Education impute the conduct of one 
person to another?
85.635  May the Department of Education settle a debarment or 
suspension action?
85.640  May a settlement include a voluntary exclusion?
85.645  Do other Federal agencies know if the Department of 
Education agrees to a voluntary exclusion?
Subpart G--Suspension
85.700  When may the suspending official issue a suspension?
85.705  What does the suspending official consider in issuing a 
suspension?
85.710  When does a suspension take effect?
85.711  When does a suspension affect title IV, HEA transactions?
85.715  What notice does the suspending official give me if I am 
suspended?
85.720  How may I contest a suspension?
85.725  How much time do I have to contest a suspension?
85.730  What information must I provide to the suspending official 
if I contest a suspension?
85.735  Under what conditions do I get an additional opportunity to 
challenge the facts on which the suspension is based?
85.740  Are suspension proceedings formal?
85.745  Is a record made of fact-finding proceedings?
85.750  What does the suspending official consider in deciding 
whether to continue or terminate my suspension?
85.755  When will I know whether the suspension is continued or 
terminated?
85.760  How long may my suspension last?
Subpart H--Debarment
85.800  What are the causes for debarment?
85.805  What notice does the debarring official give me if I am 
proposed for debarment?
85.810  When does a debarment take effect?
85.811  When does a debarment affect title IV, HEA transactions?
85.815  How may I contest a proposed debarment?
85.820  How much time do I have to contest a proposed debarment?
85.825  What information must I provide to the debarring official if 
I contest a proposed debarment?
85.830  Under what conditions do I get an additional opportunity to 
challenge the facts on which the proposed debarment is based?
85.835  Are debarment proceedings formal?
85.840  Is a record made of fact-finding proceedings?
85.845  What does the debarring official consider in deciding 
whether to debar me?
85.850  What is the standard of proof in a debarment action?
85.855  Who has the burden of proof in a debarment action?
85.860  What factors may influence the debarring official's 
decision?
85.865  How long may my debarment last?
85.870  When do I know if the debarring official debars me?
85.875  May I ask the debarring official to reconsider a decision to 
debar me?
85.880  What factors may influence the debarring official during 
reconsideration?
85.885  May the debarring official extend a debarment?
Subpart I--Definitions
85.900  Adequate evidence.
85.905  Affiliate.
85.910  Agency.
85.915  Agent or representative.
85.920  Civil judgment.
85.925  Conviction.
85.930  Debarment.
85.935  Debarring official.
85.940  Disqualified.
85.942  ED Deciding Official.
85.945  Excluded or exclusion.
85.947  HEA.
85.950  Indictment.
85.955  Ineligible or ineligibility.
85.960  Legal proceedings.
85.965  List of Parties Excluded or Disqualified From Federal 
Procurement and Nonprocurement Programs.
85.970  Nonprocurement transaction.
85.975  Notice.
85.980  Participant.
85.985  Person.
85.990  Preponderance of the evidence.
85.995  Principal.
85.1000  Respondent.
85.1005  State.
85.1010  Suspending official.
85.1015  Suspension.
85.1016  Title IV, HEA participant.
85.1017  Title IV, HEA program.
85.1018  Title IV, HEA transaction.
85.1020  Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]

Appendix to Part 85--Covered Transactions

    Authority: E.O. 12549 (3 CFR 1986 Comp., p. 189); E.O. 12698 (3 
CFR 1989 Comp., p. 235); sec. 2455, Pub. L. 103-355, 108 Stat. 3327 
(31 U.S.C. 6101 note); 20 U.S.C. 1082, 1094, 1221e-3, and 3474, 
unless otherwise noted.

    7. Part 85 is further amended as follows:
    a. ``[Agency noun]'' is removed and ``Department of Education'' is 
added in its place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``ED'' is added in its 
place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``ED Deciding 
Official'' is added in its place wherever it occurs.
    d. Each section in part 85 is further amended by adding to the end 
of each section the following authority citation to read:

(Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O 12689 (3 
CFR, 1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; 
and Sec. 2455, Pub. L. 103-355, 108 Stat. 3243 at 3327)

    8. Section 85.220 is further amended by adding new paragraphs (d) 
and (e) to read as follows.


Sec. 85.220  Are any procurement contracts included as covered 
transactions?

* * * * *
    (d) The contract is awarded by any contractor, subcontractor, 
supplier, consultant or its agent or representative in any transaction, 
regardless of tier, that is funded or authorized under ED programs and 
is expected to equal or exceed $25,000.
    (e) The contract is to perform services as a third party servicer 
in connection with a title IV, HEA program.
    9. Section 85.305 is further amended by adding paragraph (c) to 
read as follows:

[[Page 3330]]

Sec. 85.305  What must I do if a Federal agency excludes a person with 
whom I am already doing business in a covered transaction?

* * * * *
    (c) If you are a title IV, HEA participant, you may not continue a 
title IV, HEA transaction with an excluded person after the effective 
date of the exclusion unless permitted by 34 CFR 668.26, 682.702, or 
668.94, as applicable.
    10. Section 85.310 is further amended by adding paragraph (c) to 
read as follows:


Sec. 85.310  May I use the services of an excluded person under a 
covered transaction?

* * * * *
    (c) Title IV, HEA transactions. If you are a title IV, HEA 
participant--
    (1) You may not renew or extend the term of any contract or 
agreement for the services of an excluded person as a principal with 
respect to a title IV, HEA transaction; and
    (2) You may not continue to use the services of that excluded 
person as a principal under this kind of an agreement or arrangement 
more than 90 days after you learn of the exclusion or after the close 
of the Federal fiscal year in which the exclusion takes effect, 
whichever is later.
    11. Section 85.415 is further amended by adding a new paragraph (c) 
to read as follows.


Sec. 85.415  What must I do if a Federal agency excludes the 
participant or a principal after I enter into a covered transaction?

* * * * *
    (c) Title IV, HEA transactions. If you are a title IV, HEA 
participant--
    (1) You may not renew or extend the term of any contract or 
agreement for the services of an excluded person as a principal with 
respect to a title IV, HEA transaction; and
    (2) You may not continue to use the services of that excluded 
person as a principal under this kind of an agreement or arrangement 
more than 90 days after you learn of the exclusion or after the close 
of the Federal fiscal year in which the exclusion takes effect, 
whichever is later.
    12. Subpart D of part 85 is further amended by adding Sec. 85.440 
to read as follows:


Sec. 85.440  What method do I use to communicate those requirements to 
participants?

    (a) To communicate those requirements, you must include a term or 
condition in the transaction requiring each participant's compliance 
with subpart C of this part and requiring the participant to include a 
similar term or condition in lower-tier covered transactions.
    (b) The failure of a participant to include a requirement to comply 
with subpart C of this part in the agreement with a lower tier 
participant does not affect the lower tier participant's 
responsibilities under this part.

(Authority: E.O. 12549 (3 CFR, 1985 Comp., p. 189); E.O. 12689 (3 
CFR 1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; and 
Sec. 2455 of Pub. L. 103-355, 108 Stat. 3243 at 3327)

    13. Subpart F of part 85 is further amended by adding a new 
Sec. 85.611 to read as follows:


Sec. 85.611  What procedures do we use for a suspension or debarment 
action involving a title IV, HEA transaction?

    (a) If we suspend a title IV, HEA participant under Executive Order 
12549, we use the following procedures to ensure that the suspension 
prevents participation in title IV, HEA transactions:
    (1) The notification procedures in Sec. 85.715.
    (2) Instead of the procedures in Secs. 85.720 through 85.760, the 
procedures in 34 CFR part 668, subpart G or 34 CFR part 682, subpart D 
or G as applicable.
    (3) In addition to the findings and conclusions required by 34 CFR 
part 668, subpart G or 34 CFR part 682, subpart D or G, the suspending 
official, and, on appeal, the Secretary determines whether there is 
sufficient cause for suspension as explained in Sec. 85.700.
    (b) If we debar a title IV, HEA participant under E.O. 12549, we 
use the following procedures to ensure that the debarment also 
precludes participation in title IV, HEA transactions:
    (1) The notification procedures in Secs. 85.805 and 85.870.
    (2) Instead of the procedures in Secs. 85.810 through 85.885, the 
procedures in 34 CFR part 668, subpart G or 34 CFR part 682, subpart D 
or G, as applicable.
    (3) On appeal from a decision debarring a title IV, HEA 
participant, we issue a final decision after we receive any written 
materials from the parties.
    (4) In addition to the findings and conclusions required by 34 CFR 
part 668, subpart G or 682, subpart D or G, the debarring official, 
and, on appeal, the Secretary determines whether there is sufficient 
cause for debarment as explained in Sec. 85.800.

(Authority: E.O. 12549 (3 CFR 1986 Comp., p. 189); E.O. 12689 (3 CFR 
Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; and Sec. 
2455 of Pub. L. 103-355, 108 Stat. 3243 at 3327)

    14. Subpart F of Part 85 is further amended by adding Sec. 85.612 
to read as follows:


Sec. 85.612  When does an exclusion by another agency affect the 
ability of the excluded person to participate in a title IV, HEA 
transaction?

    (a) If a title IV, HEA participant is debarred by another agency 
under E.O. 12549, using procedures described in paragraph (d) of this 
section, that party is not eligible to enter into title IV, HEA 
transactions for the duration of the debarment.
    (b)(1) If a title IV, HEA participant is suspended by another 
agency under E.O. 12549 or under a proposed debarment under the Federal 
Acquisition Regulation (FAR) (48 CFR part 9, subpart 9.4), using 
procedures described in paragraph (d) of this section, that party is 
not eligible to enter into title IV, HEA transactions for the duration 
of the suspension.
    (2)(i) The suspension of title IV, HEA eligibility as a result of 
suspension by another agency lasts for at least 60 days.
    (ii) If the excluded party does not object to the suspension, the 
60-day period begins on the 35th day after that agency issues the 
notice of suspension.
    (iii) If the excluded party objects to the suspension, the 60-day 
period begins on the date of the decision of the suspending official.
    (3) The suspension of title IV, HEA eligibility does not end on the 
60th day if--
    (i) The excluded party agrees to an extension; or
    (ii) Before the 60th day we begin a limitation or termination 
proceeding against the excluded party under 34 CFR part 668, subpart G 
or part 682, subpart D or G.
    (c)(1) If a title IV, HEA participant is debarred or suspended by 
another Federal agency--
    (i) We notify the participant whether the debarment or suspension 
prohibits participation in title IV, HEA transactions; and
    (ii) If participation is prohibited, we state the effective date 
and duration of the prohibition.
    (2) If a debarment or suspension by another agency prohibits 
participation in title IV, HEA transactions, that prohibition takes 
effect 20 days after we mail notice of our action.
    (3) If ED or another Federal agency suspends a title IV, HEA 
participant, we determine whether grounds exist for an emergency action 
against the participant under 34 CFR part 668, subpart G or part 682, 
subpart D or G, as applicable.

[[Page 3331]]

    (4) We use the procedures in Sec. 85.611 to exclude a title IV, HEA 
participant excluded by another Federal agency using procedures that 
did not meet the standards in paragraph (d) of this section.
    (d) If a title IV, HEA participant is excluded by another agency, 
we debar, terminate, or suspend the participant--as provided under this 
part, 34 CFR part 668, or 34 CFR part 682, as applicable--if that 
agency followed procedures that gave the excluded party--
    (1) Notice of the proposed action;
    (2) An opportunity to submit and have considered evidence and 
argument to oppose the proposed action;
    (3) An opportunity to present its objection at a hearing--
    (i) At which the agency has the burden of persuasion by a 
preponderance of the evidence that there is cause for the exclusion; 
and
    (ii) Conducted by an impartial person who does not also exercise 
prosecutorial or investigative responsibilities with respect to the 
exclusion action;
    (4) An opportunity to present witness testimony, unless the hearing 
official finds that there is no genuine dispute about a material fact;
    (5) An opportunity to have agency witnesses with personal knowledge 
of material facts in genuine dispute testify about those facts, if the 
hearing official determines their testimony to be needed, in light of 
other available evidence and witnesses; and
    (6) A written decision stating findings of fact and conclusions of 
law on which the decision is rendered.

(Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189), E.O. 12689 (3 
CFR, 1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; 
and Sec. 2455 of Pub. L. 103-355, 108 Stat. 3243 at 3327)

    15. Subpart G is further amended by adding a new Sec. 85.711,to 
read as follows:


Sec. 85.711  When does a suspension affect title IV, HEA transactions?

    (a) A suspension under Sec. 85.611(a) takes effect immediately if 
the Secretary takes an emergency action under 34 CFR part 668, subpart 
G or 34 CFR part 682, subpart D or G at the same time the Secretary 
issues the suspension.
    (b)(1) Except as provided under paragraph (a) of this section, a 
suspension under Sec. 85.611(a) takes effect 20 days after those 
procedures are complete.
    (2) If the respondent appeals the suspension to the Secretary 
before the expiration of the 20 days under paragraph (b)(1) of this 
section, the suspension takes effect when the respondent receives the 
Secretary's decision.

(Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189), E.O. 12689 (3 
CFR, 1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; 
and Sec. 2455 of Pub. L. 103-355, 108 Stat. 3243 at 3327)

    16. Subpart H is further amended by adding a new Sec. 85.811 to 
read as follows:


Sec. 85.811  When does a debarment affect title IV, HEA transactions?

    (a) A debarment under Sec. 85.611(b) takes effect 30 days after 
those procedures are complete.
    (b) If the respondent appeals the debarment to the Secretary before 
the expiration of the 30 days under paragraph (a) of this section, the 
debarment takes effect when the respondent receives the Secretary's 
decision.

(Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189) E.O. 12689 (3 
CFR, Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; and 
Sec. 2455 of Pub. L. 103-355, 108 Stat. 3243 at 3327)

    17. Subpart I of part 85 is further amended by adding Sec. 85.942 
to read as follows:


Sec. 85.942  ED Deciding Official.

    The ED Deciding Official is an ED officer who has delegated 
authority under the procedures of the Department of Education to decide 
whether to affirm a suspension or enter a debarment.

(Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189), E.O. 12689 (3 
CFR, 1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; 
and Sec. 2455 of Pub. L. 103-355, 108 Stat. 3243 at 3327)

    18. Subpart I of part 85 is further amended by adding Sec. 85.947 
to read as follows:


Sec. 85.947  HEA.

    HEA means the Higher Education Act of 1965, as amended.
    19. Section 85.995 is further amended by adding paragraph (c) to 
read as follows:


Sec. 85.995  Principal.

* * * * *
    (c) For the purposes of Department of Education title IV, HEA 
transactions--
    (1) A third-party servicer, as defined in 34 CFR 668.2 or 682.200; 
or
    (2) Any person who provides services described in 34 CFR 668.2 or 
682.200 to a title IV, HEA participant, whether or not that person is 
retained or paid directly by the title IV, HEA participant.
* * * * *
    20. Subpart I of part 85 is further amended by adding Sec. 85.1016 
to read as follows:


Sec. 85.1016  Title IV, HEA participant.

    A title IV, HEA participant is--
    (a) An institution described in 34 CFR 600.4, 600.5, or 600.6 that 
provides postsecondary education; or
    (b) A lender, third-party servicer, or guaranty agency, as those 
terms are defined in 34 CFR 668.2 or 682.200.

(Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O. 12689 (3 
CFR, 1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; 
and Sec. 2455 of Pub. L. 103-355, 108 Stat. 3243 at 3327)

    21. Subpart I of part 85 is further amended by adding Sec. 85.1017 
to read as follows:


Sec. 85.1017  Title IV, HEA program.

    A title IV, HEA program includes any program listed in 34 CFR 
668.1(c).

(Authority: E.O. 12549 (3 CFR, 1986 Comp., p.1890: E.O. 12689 (3 
CFR, 1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; 
and Sec. 2455 of Pub. L. 103-355, 108 Stat. 3243 at 3327)

    22. Subpart I of part 85 is further amended by adding Sec. 85.1018 
to read as follows:


Sec. 85.1018  Title IV, HEA transaction.

    A title IV, HEA transaction includes:
    (a) A disbursement or delivery of funds provided under a title IV, 
HEA program to a student or borrower;
    (b) A certification by an educational institution of eligibility 
for a loan under a title IV, HEA program;
    (c) Guaranteeing a loan made under a title IV, HEA program; and
    (d) The acquisition or exercise of any servicing responsibility for 
a grant, loan, or work study assistance under a title IV, HEA program.

(Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189) E.O. 12689 (3 
CFR, 1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; 
and Sec. 2455 of Pub. L. 103-355, 108 Stat. 3243 at 3327)

    23. The appendix to part 85 is amended by removing and reserving 
the Covered Transactions Chart and by adding a Covered Transactions for 
ED Chart to read as follows.
BILLING CODE 6325-01-P et al.

[[Page 3332]]

[GRAPHIC] [TIFF OMITTED] TP23JA02.001


BILLING CODE 6325-01-C et al.

[[Page 3333]]

PART 668--STUDENT ASSISTANCE GENERAL PROVISIONS

    24. The authority citation for part 668 is revised to read as 
follows:

    Authority: 20 U.S.C. 1001, 1002, 1003, 1085, 1088, 1091, 1092, 
1094, 1099c, and 1099c-1, unless otherwise noted.


Sec. 668.82  [Amended]

    25. Amend Sec. 668.82 as follows:
    a. In paragraph (e)(1)(i)(B), by removing the words ``Cause exists 
under 34 CFR 85.305 or 85.405'' and adding, in their place, the words 
``Cause exists under 34 CFR 85.700 or 85.800''.
    b. In paragraphs (f)(1) and (f)(2)(i), by removing the citation 
``34 CFR 85.201(c)'' and adding, in its place, the citation ``34 CFR 
85.612(d)''.

PART 682--FEDERAL FAMILY EDUCATION LOAN (FFEL) PROGRAM

    26. The authority citation for part 682 continues to read as 
follows:

    Authority: 20 U.S.C. 1071 to 1087-2, unless otherwise noted.


Sec. 682.416  [Amended]

    27. Amend Sec. 682.416(d)(1)(ii)(B) by removing the words ``cause 
under 34 CFR 85.305 or 85.405'' and adding, in their place, the words 
``cause under 34 CFR 85.700 or 85.800.''


Sec. 682.705  [Amended]

    28. Amend Sec. 682.705 by removing paragraph (a)(3).

NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

36 CFR Parts 1209 and 1212

RIN 3095-AB04

FOR FURTHER INFORMATION CONTACT: Nancy Allard at Policy and 
Communications Staff (NPOL), Room 4100, 8601 Adelphi Road, College 
Park, Maryland 20740-6001, 301-713-7360, extension 226, or 
[email protected].

List of Subjects

36 CFR Part 1209

    Administrative practice and procedure, Debarment and suspension, 
Grant programs, Reporting and recordkeeping requirements.

36 CFR Part 1212

    Administrative practice and procedure, Drug abuse, Grant programs, 
Reporting and recordkeeping requirements.

    Approved: May 4, 2001.
John W. Carlin,
Archivist of the United States.
    For the reasons stated in the common preamble, the National 
Archives and Records Administration amends 36 CFR chapter XII as 
follows:
    1. Part 1209 is revised to read as set forth in instruction 1 at 
the end of the common preamble.

PART 1209--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)

Sec.
1209.25  How is this part organized?
1209.50  How is this part written?
1209.75  Do terms in this part have special meanings?
Subpart A--General
1209.100  What does this part do?
1209.105  Does this part apply to me?
1209.110  What is the purpose of the nonprocurement debarment and 
suspension system?
1209.115  How does an exclusion restrict a person's involvement in 
covered transactions?
1209.120  May we grant an exception to let an excluded person 
participate in a covered transaction?
1209.125  Does an exclusion under the nonprocurement system affect a 
person's eligibility to participate in Federal procurement 
contracts?
1209.130  Does an exclusion under the Federal procurement system 
affect a person's eligibility to participate in nonprocurement 
transactions?
1209.135  May NARA exclude a person who is not currently 
participating in a nonprocurement transaction?
1209.140  How do I know if a person is excluded?
1209.145  Does this part cover persons who are disqualified as well 
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
1209.200   What is a covered transaction?
1209.205  Why is it important to know if a particular transaction is 
a covered transaction?
1209.210  Which nonprocurement transactions are covered 
transactions?
1209.215  Which nonprocurement transactions are not covered 
transactions?
1209.220  Are any procurement contracts included as covered 
transactions?
1209.225  How do I know if a transaction that I may participate in 
is a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions 
Doing Business With Other Persons
1209.300  May I enter into a covered transaction with an excluded or 
disqualified person?
1209.305  What must I do if a Federal agency excludes a person with 
whom I am already doing business in a covered transaction?
1209.310  May I use the services of an excluded person under a 
covered transaction?
1209.315  Must I verify that principals of my covered transactions 
are eligible to participate?
1209.320  What happens if I do business with an excluded person in a 
covered transaction?
1209.325  What requirements must I pass down to persons at lower 
tiers with whom I intend to do business?

Disclosing Information--Primary Tier Participants

1209.330  What information must I provide before entering into a 
covered transaction with NARA?
1209.335  If I disclose unfavorable information required under 
Sec. 1209.330 will I be prevented from entering into the 
transaction?
1209.340  What happens if I fail to disclose the information 
required under Sec. 1209.330?
1209.345  What must I do if I learn of the information required 
under Sec. 1209.330 after entering into a covered transaction with 
NARA?

Disclosing Information--Lower Tier Participants

1209.350  What information must I provide to a higher tier 
participant before entering into a covered transaction with that 
participant?
1209.355  What happens if I fail to disclose the information 
required under Sec. 1209.350?
1209.360  What must I do if I learn of information required under 
Sec. 1209.350 after entering into a covered transaction with a 
higher tier participant?
Subpart D--Responsibilities of NARA Officials Regarding Transactions
1209.400  May I enter into a transaction with an excluded or 
disqualified person?
1209.405  May I enter into a covered transaction with a participant 
if a principal of the transaction is excluded?
1209.410  May I approve a participant's use of the services of an 
excluded person?
1209.415  What must I do if a Federal agency excludes the 
participant or a principal after I enter into a covered transaction?
1209.420  May I approve a transaction with an excluded or 
disqualified person at a lower tier?
1209.425  When do I check to see if a person is excluded or 
disqualified?
1209.430  How do I check to see if a person is excluded or 
disqualified?
1209.435  What must I require of a primary tier participant?
1209.440  What method do I use to communicate those requirements to 
participants?
1209.445  What action may I take if a primary tier participant 
knowingly does business with an excluded or disqualified person?
1209.450  What action may I take if a primary tier participant fails 
to disclose the information required under Sec. 1209.330?
1209.455  What may I do if a lower tier participant fails to 
disclose the

[[Page 3334]]

information required under Sec. 1209.350 to the next higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From 
Federal Procurement and Nonprocurement Programs
1209.500   What is the purpose of the List?
1209.505  Who uses the List?
1209.510  Who maintains the List?
1209.515  What specific information is on the List?
1209.520  Who gives the GSA the information that it puts on the 
List?
1209.525  Whom do I ask if I have questions about a person on the 
List?
1209.530  Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment 
Actions
1209.600  How do suspension and debarment actions start?
1209.605  How does suspension differ from debarment?
1209.610  What procedures does NARA use in suspension and debarment 
actions?
1209.615  How does NARA notify a person of suspension and debarment 
actions?
1209.620  Do Federal agencies coordinate suspension and debarment 
actions?
1209.625  What is the scope of a suspension or debarment action?
1209.630  May NARA impute the conduct of one person to another?
1209.635  May NARA settle a debarment or suspension action?
1209.640  May a settlement include a voluntary exclusion?
1209.645  Do other Federal agencies know if NARA agrees to a 
voluntary exclusion?
Subpart G--Suspension
1209.700  When may the suspending official issue a suspension?
1209.705  What does the suspending official consider in issuing a 
suspension?
1209.710  When does a suspension take effect?
1209.715  What notice does the suspending official give me if I am 
suspended?
1209.720  How may I contest a suspension?
1209.725  How much time do I have to contest a suspension?
1209.730  What information must I provide to the suspending official 
if I contest a suspension?
1209.735  Under what conditions do I get an additional opportunity 
to challenge the facts on which the suspension is based?
1209.740  Are suspension proceedings formal?
1209.745  Is a record made of fact-finding proceedings?
1209.750  What does the suspending official consider in deciding 
whether to continue or terminate my suspension?
1209.755  When will I know whether the suspension is continued or 
terminated?
1209.760  How long may my suspension last?
Subpart H--Debarment
1209.800  What are the causes for debarment?
1209.805  What notice does the debarring official give me if I am 
proposed for debarment?
1209.810  When does a debarment take effect?
1209.815  How may I contest a proposed debarment?
1209.820  How much time do I have to contest a proposed debarment?
1209.825  What information must I provide to the debarring official 
if I contest a proposed debarment?
1209.830  Under what conditions do I get an additional opportunity 
to challenge the facts on which the proposed debarment is based?
1209.835  Are debarment proceedings formal?
1209.840  Is a record made of fact-finding proceedings?
1209.845  What does the debarring official consider in deciding 
whether to debar me?
1209.850  What is the standard of proof in a debarment action?
1209.855  Who has the burden of proof in a debarment action?
1209.860  What factors may influence the debarring official's 
decision?
1209.865  How long may my debarment last?
1209.870  When do I know if the debarring official debars me?
1209.875  May I ask the debarring official to reconsider a decision 
to debar me?
1209.880  What factors may influence the debarring official during 
reconsideration?
1209.885  May the debarring official extend a debarment?
Subpart I--Definitions
1209.900  Adequate evidence.
1209.905  Affiliate.
1209.910  Agency.
1209.915  Agent or representative.
1209.920  Civil judgment.
1209.925  Conviction.
1209.930  Debarment
1209.935   Debarring official.
1209.940  Disqualified.
1209.945  Excluded or exclusion.
1209.950  Indictment.
1209.955  Ineligible or ineligibility.
1209.960  Legal proceedings.
1209.965  List of Parties Excluded or Disqualified From Federal 
Procurement and Nonprocurement Programs.
1209.970  Nonprocurement transaction.
1209.975  Notice.
1209.980  Participant.
1209.985  Person.
1209.990  Preponderance of the evidence.
1209.995  Principal.
1209.1000  Respondent.
1209.1005  State.
1209.1010  Suspending official.
1209.1015  Suspension.
1209.1020  Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]

Appendix to Part 1209--Covered Transactions

    Authority: 44 U.S.C. 2104(a); sec. 2455, Pub. L. 103-355, 108 
Stat. 3327 (31 U.S.C. 6101 note); E.O. 12549 (3 CFR, 1986 Comp., p. 
189); E.O. 12689 (3 CFR, 1989 Comp., p. 235).

    2. Part 1209 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``NARA'' is added in its place 
wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``NARA'' is added in its 
place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``Archivist of the 
United States or designee'' is added in its place wherever it occurs.
    3. Section 1209.440 is added to read as follows:


Sec. 1209.440  What method do I use to communicate those requirements 
to participants?

    To communicate the requirement, you must include a term or 
condition in the transaction requiring the participants' compliance 
with subpart C of this part and requiring them to include a similar 
term or condition in lower-tier covered transactions.
    4. Part 1212 is added to read as set forth in instruction 2 at the 
end of the common preamble.

PART 1212--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE 
(FINANCIAL ASSISTANCE)

Subpart A--Purpose and Coverage
Sec.
1212.100  What does this part do?
1212.105  Does this part apply to me?
1212.110  Are any of my Federal assistance awards exempt from this 
part?
1212.115  Does this part affect the Federal contracts that I 
receive?
Subpart B--Requirements for Recipients Other Than Individuals
1212.200  What must I do to comply with this part?
1212.205  What must I include in my drug-free workplace statement?
1212.210  To whom must I distribute my drug-free workplace 
statement?
1212.215  What must I include in my drug-free awareness program?
1212.220  By when must I publish my drug-free workplace statement 
and establish my drug-free awareness program?
1212.225  What actions must I take concerning employees who are 
convicted of drug violations in the workplace?
1212.230  How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who are Individuals
1212.300  What must I do to comply with this part if I am an 
individual recipient?
1212.301  [Reserved]
Subpart D--Responsibilities of NARA Awarding Officials
1212.400  What are my responsibilities as a NARA awarding official?

[[Page 3335]]

Subpart E--Violations of This Part and Consequences
1212.500  How are violations of this part determined for recipients 
other than individuals?
1212.505  How are violations of this part determined for recipients 
who are individuals?
1212.510  What actions will the Federal Government take against a 
recipient determined to have violated this part?
1212.515  Are there any exceptions to those actions?
Subpart F--Definitions
1212.605  Award.
1212.610  Controlled substance.
1212.615  Conviction.
1212.620  Cooperative agreement.
1212.625  Criminal drug statute.
1212.630  Debarment.
1212.635  Drug-free workplace.
1212.640  Employee.
1212.645  Federal agency or agency.
1212.650  Grant.
1212.655  Individual.
1212.660  Recipient.
1212.665  State.
1212.670  Suspension.

    Authority: 41 U.S.C. 701, et seq.; 44 U.S.C. 2104(a).

    5. Part 1212 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``NARA'' is added in its place 
wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``NARA'' is added in its 
place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``Archivist of the 
United States or designee'' is added in its place wherever it occurs.
    d. ``[Agency head]'' is removed and ``Archivist of the United 
States or designee'' is added in its place wherever it occurs.
    6. Section 1212.510(c) is further amended by removing ``[CFR 
citation for the Federal agency's regulations implementing Executive 
Order 12549 and Executive Order 12689]'' and adding ``36 CFR part 
1209'' in its place.
    7. Section 1212.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``36 CFR part 1207'' in its place .

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 44 and 48

RIN 2900-AK16

FOR FURTHER INFORMATION CONTACT: Mr. Robert D. Finneran, Assistant 
Director for Loan Policy and Valuation (262), Loan Guaranty Service, 
Veterans Benefits Administration, Department of Veterans Affairs, 
Washington, DC 20420, (202) 273-7369, e-mail: [email protected].

ADDITIONAL SUPPLEMENTARY INFORMATION: VA is a party to the proposed 
common rule with the following differences.
    Under proposed Sec. 44.435 for certain nonprocurement transactions, 
a primary tier participant must communicate to each lower tier 
participant that the lower tier participant must not have been debarred 
or suspended. We propose to add Sec. 44.440 to require the 
communication to be included as a condition in the covered transaction 
document. We believe this is adequate to ensure that the parties 
understand and comply with debarment and suspension requirements.
    Under the proposed common rule, the debarring and suspending 
official is the agency head or an official designated by the agency 
head. We propose at Sec. 44.935 and Sec. 44.1010 of the proposed common 
rule to add as the debarring and suspending official the following: for 
the Veterans Health Administration, the Under Secretary for Health; for 
the Veterans Benefits Administration, the Under Secretary for Benefits; 
and for the National Cemetery Administration, the Deputy Under 
Secretary for Operations.
    Proposed Sec. 44.995 of the debarment and suspension common rule, 
defines the term ``principal.'' A principal is subject to the debarment 
and suspension requirements. Agencies implementing the common rule are 
allowed to add principals that are commonly involved in their covered 
transactions. VA proposes to retain as principals, at proposed 
Sec. 44.995(c), the positions designated in the current regulation, 38 
CFR 44.105. This is intended to include those that have significant 
responsibilities in real estate transactions affecting VA. We also 
propose to add mortgage brokers to this list due to their significant 
responsibilities in real estate transactions with VA.
    Requirements to ensure that certain grantees maintain a drug-free 
workplace currently are set forth at 38 CFR part 44, subpart F. We 
propose that these provisions, with proposed amendments explained above 
in the preamble for the common rule, be transferred to a new 38 CFR 
part 48.

List of Subjects

38 CFR Part 44

    Administrative practice and procedure, Condominiums, Debarment and 
suspension, Grant programs, Handicapped, Housing loan programs--housing 
and community development, Manufactured homes, Reporting and 
recordkeeping requirements, Veterans.

38 CFR Part 48

    Administrative practice and procedure, Drug abuse, Grant programs, 
Reporting and recordkeeping requirements.

    Approved: June 15, 2001.
Anthony J. Principi,
Secretary of Veterans Affairs.
    For the reasons stated in the preamble, the Department of Veterans 
Affairs proposes to amend 38 CFR chapter I as follows:
    1. Part 44 is revised to read as set forth in instruction 1 at the 
end of the common preamble.

PART 44--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)

Sec.
44.25   How is this part organized?
44.50   How is this part written?
44.75   Do terms in this part have special meanings?
Subpart A--General
44.100   What does this part do?
44.105   Does this part apply to me?
44.110   What is the purpose of the nonprocurement debarment and 
suspension system?
44.115   How does an exclusion restrict a person's involvement in 
covered transactions?
44.120   May we grant an exception to let an excluded person 
participate in a covered transaction?
44.125   Does an exclusion under the nonprocurement system affect a 
person's eligibility to participate in Federal procurement 
contracts?
44.130   Does an exclusion under the Federal procurement system 
affect a person's eligibility to participate in nonprocurement 
transactions?
44.135   May the Department of Veterans Affairs exclude a person who 
is not currently participating in a nonprocurement transaction?
44.140   How do I know if a person is excluded?
44.145   Does this part cover persons who are disqualified as well 
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
44.200   What is a covered transaction?
44.205   Why is it important to know if a particular transaction is 
a covered transaction?
44.210   Which nonprocurement transactions are covered transactions?
44.215   Which nonprocurement transactions are not covered 
transactions?
44.220   Are any procurement contracts included as covered 
transactions?
44.225   How do I know if a transaction that I may participate in is 
a covered transaction?

[[Page 3336]]

Subpart C--Responsibilities of Participants Regarding Transactions 
Doing Business With Other Persons
44.300   May I enter into a covered transaction with an excluded or 
disqualified person?
44.305   What must I do if a Federal agency excludes a person with 
whom I am already doing business in a covered transaction?
44.310   May I use the services of an excluded person under a 
covered transaction?
44.315   Must I verify that principals of my covered transactions 
are eligible to participate?
44.320   What happens if I do business with an excluded person in a 
covered transaction?
44.325   What requirements must I pass down to persons at lower 
tiers with whom I intend to do business?

Disclosing Information--Primary Tier Participants

44.330   What information must I provide before entering into a 
covered transaction with the Department of Veterans Affairs?
44.335   If I disclose unfavorable information required under 
Sec. 44.330 will I be prevented from entering into the transaction?.
44.340   What happens if I fail to disclose the information required 
under Sec. 44.330?
44.345   What must I do if I learn of the information required under 
Sec. 44.330 after entering into a covered transaction with the 
Department of Veterans Affairs?

Disclosing Information--Lower Tier Participants

44.350   What information must I provide to a higher tier 
participant before entering into a covered transaction with that 
participant?
44.355   What happens if I fail to disclose the information required 
under Sec. 44.350?
44.360   What must I do if I learn of information required under 
Sec. 44.350 after entering into a covered transaction with a higher 
tier participant?
Subpart D--Responsibilities of Department of Veterans Affairs Officials 
Regarding Transactions
44.400   May I enter into a transaction with an excluded or 
disqualified person?
44.405   May I enter into a covered transaction with a participant 
if a principal of the transaction is excluded?
44.410   May I approve a participant's use of the services of an 
excluded person?
44.415   What must I do if a Federal agency excludes the participant 
or a principal after I enter into a covered transaction?
44.420   May I approve a transaction with an excluded or 
disqualified person at a lower tier?
44.425   When do I check to see if a person is excluded or 
disqualified?
44.430   How do I check to see if a person is excluded or 
disqualified?
44.435   What must I require of a primary tier participant?
44.440   What method do I use to communicate those requirements to 
participants?
44.445   What action may I take if a primary tier participant 
knowingly does business with an excluded or disqualified person?
44.450   What action may I take if a primary tier participant fails 
to disclose the information required under Sec. 44.330?
44.455   What may I do if a lower tier participant fails to disclose 
the information required under Sec. 44.350 to the next higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From 
Federal Procurement and Nonprocurement Programs
44.500   What is the purpose of the List?
44.505   Who uses the List?
44.510   Who maintains the List?
44.515   What specific information is on the List?
44.520   Who gives the GSA the information that it puts on the List?
44.525   Whom do I ask if I have questions about a person on the 
List?
44.530   Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment 
Actions
44.600   How do suspension and debarment actions start?
44.605   How does suspension differ from debarment?
44.610   What procedures does the Department of Veterans Affairs use 
in suspension and debarment actions?
44.615   How does the Department of Veterans Affairs notify a person 
of suspension and debarment actions?
44.620   Do Federal agencies coordinate suspension and debarment 
actions?
44.625   What is the scope of a suspension or debarment action?
44.630   May the Department of Veterans Affairs impute the conduct 
of one person to another?
44.635   May the Department of Veterans Affairs settle a debarment 
or suspension action?
44.640   May a settlement include a voluntary exclusion?
44.645   Do other Federal agencies know if the Department of 
Veterans Affairs agrees to a voluntary exclusion?
Subpart G--Suspension
44.700   When may the suspending official issue a suspension?
44.705   What does the suspending official consider in issuing a 
suspension?
44.710   When does a suspension take effect?
44.715   What notice does the suspending official give me if I am 
suspended?
44.720   How may I contest a suspension?
44.725   How much time do I have to contest a suspension?
44.730   What information must I provide to the suspending official 
if I contest a suspension?
44.735   Under what conditions do I get an additional opportunity to 
challenge the facts on which the suspension is based?
44.740   Are suspension proceedings formal?
44.745   Is a record made of fact-finding proceedings?
44.750   What does the suspending official consider in deciding 
whether to continue or terminate my suspension?
44.755   When will I know whether the suspension is continued or 
terminated?
44.760   How long may my suspension last?
Subpart H--Debarment
44.800   What are the causes for debarment?
44.805   What notice does the debarring official give me if I am 
proposed for debarment?
44.810   When does a debarment take effect?
44.815   How may I contest a proposed debarment?
44.820   How much time do I have to contest a proposed debarment?
44.825   What information must I provide to the debarring official 
if I contest a proposed debarment?
44.830   Under what conditions do I get an additional opportunity to 
challenge the facts on which the proposed debarment is based?
44.835   Are debarment proceedings formal?
44.840   Is a record made of fact-finding proceedings?
44.845   What does the debarring official consider in deciding 
whether to debar me?
44.850   What is the standard of proof in a debarment action?
44.855   Who has the burden of proof in a debarment action?
44.860   What factors may influence the debarring official's 
decision?
44.865   How long may my debarment last?
44.870   When do I know if the debarring official debars me?
44.875   May I ask the debarring official to reconsider a decision 
to debar me?
44.880   What factors may influence the debarring official during 
reconsideration?
44.885   May the debarring official extend a debarment?
Subpart I--Definitions
44.900   Adequate evidence.
44.905   Affiliate.
44.910   Agency.
44.915   Agent or representative.
44.920   Civil judgment.
44.925   Conviction.
44.930   Debarment
44.935   Debarring official.
44.940   Disqualified.
44.945   Excluded or exclusion.
44.950   Indictment.
44.955   Ineligible or ineligibility.
44.960   Legal proceedings.
44.965   List of Parties Excluded or Disqualified From Federal 
Procurement and Nonprocurement Programs.
44.970   Nonprocurement transaction.
44.975   Notice.
44.980   Participant.
44.985   Person.
44.990   Preponderance of the evidence.
44.995   Principal.
44.1000   Respondent.
44.1005   State.
44.1010   Suspending official.
44.1015   Suspension.
44.1020   Voluntary exclusion or voluntarily excluded.

[[Page 3337]]

Subpart J [Reserved]

Appendix to Part 44--Covered Transactions

    Authority: 38 U.S.C. 501 and 38 U.S.C. 3703(c); Sec. 2455, Pub. 
L. 103-355, 108 Stat. 3327 (31 U.S.C. 6101 note); E.O. 11738 (3 CFR, 
1973 Comp., p. 799); E.O. 12549 (3 CFR 1986 comp., p. 189) E.O. 
12689 (3 CFR 1989 Comp., p. 235).

PART 44--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)

    2. Part 44 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``Department of Veterans 
Affairs'' is added in its place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``Department of Veterans 
Affairs'' is added in its place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``Secretary'' is 
added in its place wherever it occurs.
    3. Section 44.440 is added to read as follows:


Sec. 44.440  What method do I use to communicate those requirements to 
participants?

    To communicate the requirement, you must include a term or 
condition in the transaction requiring the participants' compliance 
with subpart C of this part and requiring them to include a similar 
term or condition in lower-tier covered transactions.
    4. Section 44.935 is further amended by adding paragraph (b) to 
read as follows:


Sec. 44.935  Debarring official.

* * * * *
    (b) For the Department of Veterans Affairs the debarring official 
is:
    (1) For the Veterans Health Administration, the Under Secretary for 
Health;
    (2) For the Veterans Benefits Administration, the Under Secretary 
for Benefits; and
    (3) For the National Cemetery Administration, the Deputy Under 
Secretary for Operations.
    5. Section 44.995 is further amended by adding a paragraph (c) to 
read as follows:


Sec. 44.995  Principal.

* * * * *
    (c) In the Department of Veterans Affairs loan guaranty program, 
principals include, but are not limited to the following:
    (1) Loan officers.
    (2) Loan solicitors,
    (3) Loan processors.
    (4) Loan servicers.
    (5) Loan supervisors.
    (6) Mortgage brokers.
    (7) Office managers.
    (8) Staff appraisers and inspectors.
    (9) Fee appraisers and inspectors.
    (10) Underwriters.
    (11) Bonding companies.
    (12) Real estate agents and brokers.
    (13) Management and marketing agents.
    (14) Accountants, consultants, investments bankers, architects, 
engineers, attorneys, and others in a business relationship with 
participants in connection with a covered transaction under the 
Department of Veterans Affairs loan guaranty program.
    (15) Contractors involved in the construction, improvement or 
repair of properties financed with Department of Veterans Affairs 
guaranteed loans.
    (16) Closing Agents.
    6. Section 44.1010 is further amended by adding paragraph (b) to 
read as follows:


Sec. 44.1010  Suspending official.

* * * * *
    (b) For the Department of Veterans Affairs the suspending official 
is:
    (1) For the Veterans Health Administration, the Under Secretary for 
Health;
    (2) For the Veterans Benefits Administration, the Under Secretary 
for Benefits; and
    (3) For the National Cemetery Administration, the Deputy Under 
Secretary for Operations.
    7. Part 48 is added to read as set forth in instruction 2 at the 
end of the common preamble.

PART 48--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE 
(FINANCIAL ASSISTANCE)

Subpart A--Purpose and Coverage

Sec.
48.100  What does this part do?
48.105  Does this part apply to me?
48.110  Are any of my Federal assistance awards exempt from this 
part?
48.115  Does this part affect the Federal contracts that I receive?
Subpart B--Requirements for Recipients Other Than Individuals
48.200  What must I do to comply with this part?
48.205  What must I include in my drug-free workplace statement?
48.210  To whom must I distribute my drug-free workplace statement?
48.215  What must I include in my drug-free awareness program?
48.220  By when must I publish my drug-free workplace statement and 
establish my drug-free awareness program?
48.225  What actions must I take concerning employees who are 
convicted of drug violations in the workplace?
48.230  How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
48.300   What must I do to comply with this part if I am an 
individual recipient?
48.301  [Reserved]
Subpart D--Responsibilities of the Department of Veterans Affairs 
Awarding Officials
48.400  What are my responsibilities as a Department of Veterans 
Affairs awarding official?
Subpart E--Violations of This Part and Consequences
48.500  How are violations of this part determined for recipients 
other than individuals?
48.505  How are violations of this part determined for recipients 
who are individuals?
48.510  What actions will the Federal Government take against a 
recipient determined to have violated this part?
48.515  Are there any exceptions to those actions?
Subpart F--Definitions
48.605  Award.
48.610  Controlled substance.
48.615  Conviction.
48.620  Cooperative agreement.
48.625  Criminal drug statute.
48.630  Debarment.
48.635  Drug-free workplace.
48.640  Employee.
48.645  Federal agency or agency.
48.650  Grant.
48.655  Individual.
48.660  Recipient.
48.665  State.
48.670  Suspension.

    Authority: 41 U.S.C. 701, et seq.; 38 U.S.C 501.

    8. Part 48 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``Department of Veterans 
Affairs'' is added in its place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``Department of Veterans 
Affairs'' is added in its place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``Secretary'' is 
added in its place wherever it occurs.
    d. ``[Agency head]'' is removed and ``Secretary'' is added in its 
place wherever it occurs.
    9. Section 48.510(c) is further amended by removing ``[CFR citation 
for the Federal Agency's regulations implementing Executive Order 12549 
and Executive Order 12689] and adding ``38 CFR part 44'' in its place.
    10. Section 48.605(a)(2) is further amended by removing ``[Agency 
specific CFR citation]'' and adding ``38 CFR part 43'' in its place.

[[Page 3338]]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 32 and 36

[FRL 7075-5]

RIN 2030 AA48

FOR FURTHER INFORMATION CONTACT: Robert F. Meunier, EPA Debarring 
Official, Office of Grants and Debarment (3901R), U. S. Environmental 
Protection Agency, 1200 Pennsylvania Ave., NW, Washington, DC 20460, 
(202) 564-5399, e-mail: [email protected].

ADDITIONAL SUPPLEMENTARY INFORMATION:

A. Optional Provisions

    This part proposes optional lower tier suspension and debarment 
coverage by including a paragraph (d) in Sec. 32.220 for all contracts 
that equal or exceed the $25,000 award threshold under EPA 
nonprocurement transactions. This election maintains the EPA's present 
practice under the common rule.
    In addition, Sec. 32.440 proposes to use terms or conditions to 
award transactions as the ordinary means of enforcing exclusions under 
EPA transactions rather than obtaining written certifications. This 
alternative available under the common rule is more efficient than the 
EPA's current certification process for prospective recipients and 
participants.
    Sections 32.765 and 32.890 are included as additional sections 
under part 32 to continue the EPA's practice of permitting persons who 
have been suspended or debarred by the EPA Debarring Official to obtain 
a limited review of that decision. However, these sections transfer the 
authority for issuing a stay on a suspension or debarment decision from 
the debarring official to the review official. This change from current 
practice reflects a more practical approach to matters accepted for 
review. A similar provision appears at Sec. 32.1400 of subpart J to 
this part for persons seeking review of reinstatement denials under the 
Clean Air Act (CAA) or Clean Water Act (CWA) disqualification 
provisions.
    Section 32.995 of the nonprocurement suspension and debarment 
common rule defines the term ``principal.'' Agencies implementing the 
common rule are permitted to provide additional examples of principals 
that are commonly involved in their covered transactions. EPA is 
proposing to include several examples by adding a paragraph (c) to this 
section for the benefit of individuals who may be excluded, or 
employers who may have employees who are excluded.

B. Clean Air Act and Clean Water Act Disqualification

    The EPA proposes to include a subpart J in its version of the 
common rule to address CAA and CWA disqualification and reinstatement. 
In 1994, the EPA transferred the responsibility for administration of 
those requirements from the Office of Enforcement and Compliance 
Assurance to the Office of Administration and Resources Management in 
an effort to consolidate all of the Agency's statutory and 
discretionary debarment authority into a single program. In 1996, the 
EPA removed its regulations at 40 CFR part 15 and amended various 
provisions within 40 CFR part 32 to accommodate the change. A separate 
subpart J in part 32 will highlight the various differences between 
EPA's discretionary and statutory debarment authorities, while 
retaining these complementary actions under a single program.

C. Executive Order 13175 (Consultation and Coordination with Indian 
Tribal Governments)

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This proposed rule does not have tribal implications. It will not 
have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
The disqualification from procurement and nonprocurement awards of 
persons who have been convicted of designated offenses under the CAA 
and CWA are statutorily mandated, as are the requirements for 
reestablishing procurement and nonprocurement eligibility. This 
proposed rule sets forth the procedures EPA uses under existing rules 
to decide petitions for CAA and CWA reinstatement in a separate subpart 
from those procedures that apply to discretionary debarment actions, 
and explains those procedures in a plain language format. Thus, 
Executive Order 13175 does not apply to this rule.

D. Drug-Free Workplace Requirements

    This proposed rule relocates the requirements for maintaining a 
drug-free workplace from 40 CFR part 32 to 40 CFR part 36 and proposes 
to restate those requirements in plain language format.

List of Subjects

40 CFR Part 32

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Government contracts, Grant programs, Loan 
programs, Reporting and recordkeeping requirements, Technical 
assistance, Water pollution control.

40 CFR Part 36

    Administrative practice and procedure, Drug abuse, Grant programs, 
Reporting and record keeping requirements.

    Dated: June 11, 2001.
David J. O'Connor,
Acting Assistant Administrator, Office of Administration and Resources 
Management, Environmental Protection Agency.

    For the reasons stated in the common preamble, the Environmental 
Protection Agency proposes to amend 40 CFR chapter I, as follows:
    1. Part 32 is revised to read as set forth in instruction 1 at the 
end of the common preamble.

PART 32--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)

Sec.
32.25   How is this part organized?
32.50   How is this part written?
32.75   Do terms in this part have special meanings?
Subpart A--General
32.100   What does this part do?
32.105   Does this part apply to me?
32.110   What is the purpose of the nonprocurement debarment and 
suspension system?
32.115   How does an exclusion restrict a person's involvement in 
covered transactions?
32.120   May we grant an exception to let an excluded person 
participate in a covered transaction?
32.125   Does an exclusion under the nonprocurement system affect a 
person's eligibility to participate in Federal procurement 
contracts?
32.130   Does an exclusion under the Federal procurement system 
affect a person's eligibility to participate in nonprocurement 
transactions?

[[Page 3339]]

32.135   May the EPA exclude a person who is not currently 
participating in a nonprocurement transaction?
32.140   How do I know if a person is excluded?
32.145   Does this part cover persons who are disqualified as well 
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
32.200   What is a covered transaction?
32.205   Why is it important to know if a particular transaction is 
a covered transaction?
32.210   Which nonprocurement transactions are covered transactions?
32.215   Which nonprocurement transactions are not covered 
transactions?
32.220   Are any procurement contracts included as covered 
transactions?
32.225   How do I know if a transaction that I may participate in is 
a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions 
Doing Business With Other Persons
32.300   May I enter into a covered transaction with an excluded or 
disqualified person?
32.305   What must I do if a Federal agency excludes a person with 
whom I am already doing business in a covered transaction?
32.310   May I use the services of an excluded person under a 
covered transaction?
32.315   Must I verify that principals of my covered transactions 
are eligible to participate?
32.320   What happens if I do business with an excluded person in a 
covered transaction?
32.325   What requirements must I pass down to persons at lower 
tiers with whom I intend to do business?

Disclosing Information--Primary Tier Participants

32.330   What information must I provide before entering into a 
covered transaction with the EPA?
32.335   If I disclose unfavorable information required under 
Sec. 32.330 will I be prevented from entering into the transaction?
32.340   What happens if I fail to disclose the information required 
under Sec. 32.330?
32.345   What must I do if I learn of the information required under 
Sec. 32.330 after entering into a covered transaction with the EPA?

Disclosing Information--Lower Tier Participants

32.350   What information must I provide to a higher tier 
participant before entering into a covered transaction with that 
participant?
32.355   What happens if I fail to disclose the information required 
under Sec. 32.350?
32.360   What must I do if I learn of information required under 
Sec. 32.350 after entering into a covered transaction with a higher 
tier participant?
Subpart D--Responsibilities of EPA Officials Regarding Transactions
32.400   May I enter into a transaction with an excluded or 
disqualified person?
32.405   May I enter into a covered transaction with a participant 
if a principal of the transaction is excluded?
32.410   May I approve a participant's use of the services of an 
excluded person?
32.415   What must I do if a Federal agency excludes the participant 
or a principal after I enter into a covered transaction?
32.420   May I approve a transaction with an excluded or 
disqualified person at a lower tier?
32.425   When do I check to see if a person is excluded or 
disqualified?
32.430   How do I check to see if a person is excluded or 
disqualified?
32.435   What must I require of a primary tier participant?
32.440   What method do I use to communicate those requirements to 
participants?
32.445   What action may I take if a primary tier participant 
knowingly does business with an excluded or disqualified person?
32.450   What action may I take if a primary tier participant fails 
to disclose the information required under Sec. 32.330?
32.455   What may I do if a lower tier participant fails to disclose 
the information required under Sec. 32.350 to the next higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From 
Federal Procurement and Nonprocurement Programs
32.500   What is the purpose of the List?
32.505   Who uses the List?
32.510   Who maintains the List?
32.515   What specific information is on the List?
32.520   Who gives the GSA the information that it puts on the List?
32.525   Whom do I ask if I have questions about a person on the 
List?
32.530   Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment 
Actions
32.600   How do suspension and debarment actions start?
32.605   How does suspension differ from debarment?
32.610   What procedures does the EPA use in suspension and 
debarment actions?
32.615   How does the EPA notify a person of suspension and 
debarment actions?
32.620   Do Federal agencies coordinate suspension and debarment 
actions?
32.625   What is the scope of a suspension or debarment action?
32.630   May the EPA impute the conduct of one person to another?
32.635   May the EPA settle a debarment or suspension action?
32.640   May a settlement include a voluntary exclusion?
32.645   Do other Federal agencies know if the EPA agrees to a 
voluntary exclusion?
Subpart G--Suspension
32.700   When may the suspending official issue a suspension?
32.705   What does the suspending official consider in issuing a 
suspension?
32.710   When does a suspension take effect?
32.715   What notice does the suspending official give me if I am 
suspended?
32.720   How may I contest a suspension?
32.725   How much time do I have to contest a suspension?
32.730   What information must I provide to the suspending official 
if I contest a suspension?
32.735   Under what conditions do I get an additional opportunity to 
challenge the facts on which the suspension is based?
32.740   Are suspension proceedings formal?
32.745   Is a record made of fact-finding proceedings?
32.750   What does the suspending official consider in deciding 
whether to continue or terminate my suspension?
32.755   When will I know whether the suspension is continued or 
terminated?
32.760   How long may my suspension last?
32.765   How may I appeal my suspension?
Subpart H--Debarment
32.800   What are the causes for debarment?
32.805   What notice does the debarring official give me if I am 
proposed for debarment?
32.810   When does a debarment take effect?
32.815   How may I contest a proposed debarment?
32.820   How much time do I have to contest a proposed debarment?
32.825   What information must I provide to the debarring official 
if I contest a proposed debarment?
32.830   Under what conditions do I get an additional opportunity to 
challenge the facts on which a proposed debarment is based?
32.835   Are debarment proceedings formal?
32.840   Is a record made of fact-finding proceedings?
32.845   What does the debarring official consider in deciding 
whether to debar me?
32.850   What is the standard of proof in a debarment action?
32.855   Who has the burden of proof in a debarment action?
32.860   What factors may influence the debarring official's 
decision?
32.865   How long may my debarment last?
32.870   When do I know if the debarring official debars me?
32.875   May I ask the debarring official to reconsider a decision 
to debar me?
32.880   What factors may influence the debarring official during 
reconsideration?
32.885   May the debarring official extend a debarment?
32.890   How may I appeal my debarment?
Subpart I--Definitions
32.900   Adequate evidence.
32.905   Affiliate.
32.910   Agency.
32.915   Agent or representative.
32.920   Civil judgment.
32.925   Conviction.
32.930   Debarment.
32.935   Debarring official.
32.940   Disqualified.

[[Page 3340]]

32.945   Excluded or exclusion.
32.950   Indictment.
32.955   Ineligible or ineligibility.
32.960   Legal proceedings.
32.965   List of Parties Excluded or Disqualified From Federal 
Procurement and Nonprocurement Programs.
32.970   Nonprocurement transaction.
32.975   Notice.
32.980   Participant.
32.985   Person.
32.990   Preponderance of the evidence.
32.995   Principal.
32.1000   Respondent.
32.1005   State.
32.1010   Suspending official.
32.1015   Suspension.
32.1020   Voluntary exclusion or voluntarily excluded.
Subpart J--Statutory Disqualification and Reinstatement Under the Clean 
Air Act and Clean Water Act
32.1100  What does this subpart do?
32.1105  Does this subpart apply to me?
32.1110  How will a CAA or CWA conviction affect my eligibility to 
participate in Federal contracts, subcontracts, assistance, loans 
and other benefits?
32.1115  Can the EPA extend a CAA or CWA disqualification to other 
facilities?
32.1120  What is the purpose of CAA or CWA disqualification?
32.1125  How do award officials and others know if I am 
disqualified?
32.1130  How does disqualification under the CAA or CWA differ from 
a Federal discretionary suspension or debarment action?
32.1135  Does CAA or CWA disqualification mean that I must remain 
ineligible?
32.1140  Can an exception be made to allow me to receive an award 
even though I may be disqualified?
32.1200  How will I know if I am disqualified under the CAA or CWA?
32.1205  What procedures must I follow to have my procurement and 
nonprocurement eligibility reinstated under the CAA or CWA?
32.1210  Will anyone else provide information to the EPA debarring 
official concerning my reinstatement request?
32.1215  What happens if I disagree with the information provided by 
others to the EPA debarring official on my reinstatement request?
32.1220  What will the EPA debarring official consider in making a 
decision on my reinstatement request?
32.1225  When will the EPA debarring official make a decision on my 
reinstatement request?
32.1230  How will the EPA debarring official notify me of the 
reinstatement decision?
32.1300  Can I resolve my eligibility status under terms of an 
administrative agreement without having to submit a formal 
reinstatement request?
32.1305  What are the consequences if I mislead the EPA in seeking 
reinstatement or fail to comply with my administrative agreement?
32.1400  How may I appeal a decision denying my request for 
reinstatement?
32.1500  If I am reinstated, when will my name be removed from the 
GSA List?
32.1600  What definitions apply specifically to actions under this 
subpart?

Appendix to Part 32--Covered Transactions

    Authority: 33 U.S.C. 1251 et seq.; 42 U.S.C. 7401 et seq.; Sec. 
2455, Pub. L. 103-355, 108 Stat. 3327 (31 U.S.C. 6101 note); E.O. 
11738 (3 CFR, 1973 Comp., p. 799); E.O. 12549 (3 CFR, 1986 Comp., p. 
189); E.O. 12689 (3 CFR, 1989 Comp., p. 235).

    2. Part 32 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``EPA'' is added in its place 
wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``EPA'' is added in its 
place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``EPA Debarring 
Official'' is added in its place wherever it occurs.
    3. Section 32.220 is further amended by adding a paragraph (d) to 
read as follows:


Sec. 32.220  Are any procurement contracts included as covered 
transactions?

* * * * *
    (d) The contract is awarded by any contractor, subcontractor, 
supplier, consultant or its agent or representative in any transaction, 
regardless of tier, to be funded or provided by the EPA under a 
nonprocurement transaction that is expected to equal or exceed $25,000. 
(See optional lower tier coverage shown in the diagram in the appendix 
to this part.)
    4. Section 32.440 is added to read as follows:


Sec. 32.440  What method do I use to communicate those requirements to 
participants?

    To communicate the requirements to participants, you must include a 
term or condition in the transaction requiring the participant's 
compliance with subpart C of this part, and requiring them to include a 
similar term or condition in lower tier covered transactions.
    5. Section 32.765 is added to subpart G to read as follows:


Sec. 32.765  How may I appeal my suspension?

    (a) If the EPA suspending official issues a decision under 
Sec. 32.755 to continue your suspension after you present information 
in opposition to that suspension under Sec. 32.720, you can ask for 
review of the suspending official's decision in two ways:
    (1) You may ask the suspending official to reconsider the decision 
for material errors of fact or law that you believe will change the 
outcome of the matter; and/or
    (2) You may request the Director, Office of Grants and Debarment 
(OGD Director), to review the suspending official's decision to 
continue your suspension within 30 days of your receipt of the 
suspending official's decision under Sec. 32.755 or paragraph (a)(1) of 
this section. However, the OGD Director can reverse the suspending 
official's decision only where the OGD Director finds that the decision 
is based on a clear error of material fact or law, or where the OGD 
Director finds that the suspending official's decision was arbitrary, 
capricious, or an abuse of discretion.
    (b) A request for review under this section must be in writing; 
state the specific findings you believe to be in error; and include the 
reasons or legal bases for your position.
    (c) A review under paragraph (a)(2) of this section is solely 
within the discretion of the OGD Director who may also stay the 
suspension pending review of the suspending official's decision.
    (d) The EPA suspending official and the OGD Director must notify 
you of their decisions under this section, in writing, using the notice 
procedures at Secs. 32.615 and 32.975.
    6. Section 32.890 is added to subpart H to read as follows:


Sec. 32.890  How may I appeal my debarment?

    (a) If the EPA debarring official issues a decision under 
Sec. 32.870 to debar you after you present information in opposition to 
a proposed debarment under Sec. 32.815, you can ask for review of the 
debarring official's decision in two ways:
    (1) You may ask the debarring official to reconsider the decision 
for material errors of fact or law that you believe will change the 
outcome of the matter; and/or
    (2) You may request the Director, Office of Grants and Debarment 
(OGD Director), to review the debarring official's decision to debar 
you within 30 days of your receipt of the debarring official's decision 
under Sec. 32.870 or paragraph (a)(1) of this section. However, the OGD 
Director can reverse the debarring official's decision only where the 
OGD Director finds that the decision is based on a clear error of 
material fact or law, or where the OGD Director finds that the 
debarring official's decision was arbitrary, capricious, or an abuse of 
discretion.
    (b) A request for review under this section must be in writing; 
state the specific findings you believe to be in error; and include the 
reasons or legal bases for your position.
    (c) A review under paragraph (a)(2) of this section is solely 
within the

[[Page 3341]]

discretion of the OGD Director who may also stay the debarment pending 
review of the debarring official's decision.
    (d) The EPA debarring official and the OGD Director must notify you 
of their decisions under this section, in writing, using the notice 
procedures at Secs. 32.615 and 32.975.
    7. Section 32.995 is further amended by adding a paragraph (c) to 
read as follows:


Sec. 32.995  Principal.

* * * * *
    (c) Other examples of individuals who are principals in EPA covered 
transactions include:
    (1) Principal investigators;
    (2) Technical or management consultants;
    (3) Individuals performing chemical or scientific analysis or 
oversight;
    (4) Professional service providers such as doctors, lawyers, 
accountants, engineers, etc.;
    (5) Individuals responsible for the inspection, sale, removal, 
transportation, storage or disposal of solid or hazardous waste or 
materials;
    (6) Individuals whose duties require special licenses;
    (7) Individuals that certify, authenticate or authorize billings; 
and
    (8) Individuals that serve in positions of public trust.
    8. Subpart J is added to read as follows:

Subpart J--Statutory Disqualification and Reinstatement Under the 
Clean Air Act and Clean Water Act


Sec. 32.1100  What does this subpart do?

    This subpart explains how the EPA administers section 306 of the 
Clean Air Act (CAA) (42 U.S.C. 7606), and section 508 of the Clean 
Water Act (CWA) (33 U.S.C. 1368), which disqualify persons convicted 
for certain offenses under those statutes (see Sec. 32.1105), from 
eligibility to receive certain contracts, subcontracts, assistance, 
loans and other benefits (see coverage under the Federal Acquisition 
Regulation (FAR), 48 CFR part 9, subpart 9.4, and subparts A through I 
of this part). It also explains: the procedures for seeking 
reinstatement of a person's eligibility under the CAA or CWA; the 
criteria and standards that apply to EPA's decision-making process; and 
requirements of award officials and others involved in Federal 
procurement and nonprocurement activities in carrying out their 
responsibilities under the CAA and CWA.


Sec. 32.1105  Does this subpart apply to me?

    (a) Portions of this subpart apply to you if you are convicted or 
likely be convicted of any offense under section 7413(c) of the CAA or 
section 1319(c) of the CWA.
    (b) Portions of this subpart apply to you if you are the EPA 
debarring official, a Federal procurement or nonprocurement award 
official, a participant in a Federal procurement or nonprocurement 
program that is precluded from entering into a covered transaction with 
a person disqualified under the CAA or CWA, or if you are a Federal 
department or agency anticipating issuing an exception to a person 
otherwise disqualified under the CAA or CWA.


Sec. 32.1110  How will a CAA or CWA conviction affect my eligibility to 
participate in Federal contracts, subcontracts, assistance, loans and 
other benefits?

    If you are convicted of any offense described in Sec. 32.1105, you 
are automatically disqualified from eligibility to receive any 
contract, subcontract, assistance, sub-assistance, loan or other 
nonprocurement benefit or transaction that is prohibited by a Federal 
department or agency under the Governmentwide debarment and suspension 
system (i.e., covered transactions under subparts A through I of this 
part, or prohibited awards under 48 CFR part 9, subpart 9.4), if you:
    (a) Will perform any part of the transaction or award at the 
facility giving rise to your conviction (called the violating 
facility); and
    (b) You own, lease or supervise the violating facility.


Sec. 32.1115  Can the EPA extend a CAA or CWA disqualification to other 
facilities?

    The CAA specifically authorizes the EPA to extend a CAA 
disqualification to other facilities that are owned or operated by the 
convicted person. The EPA also has authority under subparts A through I 
of this part, or under 48 CFR part 9, subpart 9.4, to take 
discretionary suspension and debarment actions on the basis of 
misconduct leading to a CAA or CWA conviction, or for activities that 
the EPA debarring official believes were designed to improperly 
circumvent a CAA or CWA disqualification.


Sec. 32.1120  What is the purpose of CAA or CWA disqualification?

    As provided for in Executive Order 11738 (3 CFR, 1973 Comp., p. 
799), the purpose of CAA and CWA disqualification is to enforce the 
Federal Government's policy of undertaking Federal procurement and 
nonprocurement activities in a manner that improves and enhances 
environmental quality by promoting effective enforcement of the CAA or 
CWA.


Sec. 32.1125  How do award officials and others know if I am 
disqualified?

    If you are convicted under these statutes, the EPA sends your name 
and address and that of the violating facility to the General Services 
Administration (GSA) as soon as possible after the EPA learns of your 
conviction. The GSA places your name and that of the violating facility 
on the List of Parties Excluded from Procurement and Nonprocurement 
Programs (List), along with other information describing the nature of 
your disqualification . Federal award officials and others who 
administer Federal programs consult the List before entering into or 
approving procurement and nonprocurement transactions. Award officials 
and others, including the public, may obtain a yearly subscription to a 
printed version of the List from the Superintendent of Documents, U.S. 
Government Printing Office, Washington, DC 20402, or by calling the 
Government Printing Office Inquiry and Order Desk at (202) 783-3238. As 
an alternative, anyone may access the List through the internet, 
currently at http://epls.arnet.gov.


Sec. 32.1130  How does disqualification under the CAA or CWA differ 
from a Federal discretionary suspension or debarment action?

    (a) CAA and CWA disqualifications are exclusions mandated by 
statute. In contrast, suspensions and debarments imposed under subparts 
A through I of this part or under 48 CFR part 9, subpart 9.4, are 
exclusions imposed at the discretion of Federal suspending or debarring 
officials. This means that if you are convicted of violating the CAA or 
CWA provisions described under Sec. 32.1105, ordinarily your name and 
that of the violating facility is placed on the GSA List before you 
receive a confirmation notice of the listing, or have an opportunity to 
discuss the disqualification with, or seek reinstatement from, the EPA.
    (b) CAA or CWA disqualification applies to both the person 
convicted of the offense, and to the violating facility during 
performance of an award or covered transaction under the Federal 
procurement and nonprocurement suspension and debarment system. It is 
the EPA's policy to carry out CAA and CWA disqualifications in a manner 
which integrates the disqualifications into the Governmentwide 
suspension and debarment system. Whenever the EPA determines that the 
risk presented to Federal procurement or nonprocurement activities on 
the basis

[[Page 3342]]

of the misconduct which gives rise to a person's CAA or CWA conviction 
exceeds the coverage afforded by mandatory disqualification, the EPA 
may use its discretionary authority to suspend or debar a person under 
subparts A through I of this part, or under 48 CFR part 9, subpart 9.4.


Sec. 32.1135  Does CAA or CWA disqualification mean that I must remain 
ineligible?

    You must remain ineligible until the EPA debarring official 
certifies that the condition giving rise to your conviction has been 
corrected. If you desire to have your disqualification terminated, you 
must submit a written request for reinstatement to the EPA debarring 
official and support your request with persuasive documentation. For 
information about the process for reinstatement see Secs. 32.1205 and 
32.1300.


Sec. 32.1140  Can an exception be made to allow me to receive an award 
even though I may be disqualified?

    (a) After consulting with the EPA debarring official, the head of 
any Federal department or agency (or designee) may exempt any 
particular award or a class of awards with that department or agency 
from the prohibitions otherwise resulting from CAA or CWA 
disqualification. In the event an exemption is granted, the exemption 
must:
    (1) Be in writing; and
    (2) State why the exemption is in the paramount interests of the 
United States.
    (b) In the event an exemption is granted, the exempting department 
or agency must send a copy of the exemption decision to the EPA 
debarring official for inclusion in the official record.


Sec. 32.1200  How will I know if I am disqualified under the CAA or 
CWA?

    There may be several ways that you learn about your 
disqualification. You are legally on notice by the statutes that a 
criminal conviction under the CAA or CWA automatically disqualifies 
you. As a practical matter, you may learn about your disqualification 
from your defense counsel, a Federal contract or award official, or 
from someone else who sees your name on the GSA List. As a courtesy, 
the EPA will attempt to notify you and the owner, lessor or supervisor 
of the violating facility that your names have been sent to the GSA for 
inclusion in the List. The EPA will inform you of the procedures for 
seeking reinstatement and give you the name of a person you can contact 
to discuss your reinstatement request.


Sec. 32.1205  What procedures must I follow to have my procurement and 
nonprocurement eligibility reinstated under the CAA or CWA?

    (a) You must submit a written request for reinstatement to the EPA 
debarring official stating what you believe the conditions were that 
led to your conviction, and how those conditions have been corrected, 
relieved or addressed. Your request must include documentation 
sufficient to support all material assertions you make. The debarring 
official must determine that all the technical and non-technical 
causes, conditions and consequences of your actions have been 
sufficiently addressed so that the Government can confidently conduct 
future business activities with you, and that your future operations 
will be conducted in compliance with the CAA and CWA.
    (b) You may begin the reinstatement process by having informal 
discussions with the EPA representative named in your notification of 
listing. Having informal dialogue with that person will make you aware 
of the EPA concerns that must be addressed. The EPA representative is 
not required to negotiate conditions for your reinstatement. However, 
beginning the reinstatement process with informal dialogue increases 
the chance of achieving a favorable outcome, and avoids unnecessary 
delay that may result from an incomplete or inadequate reinstatement 
request. It may also allow you to resolve your disqualification by 
reaching an agreement with the EPA debarring official under informal 
procedures. Using your informal option first does not prevent you from 
submitting a formal reinstatement request with the debarring official 
at any time.


Sec. 32.1210  Will anyone else provide information to the EPA debarring 
official concerning my reinstatement request?

    If you request reinstatement under Sec. 32.1205, the EPA debarring 
official may obtain review and comment on your request by anyone who 
may have information about, or an official interest in, the matter. For 
example, the debarring official may consult with the EPA Regional 
offices, the Department of Justice or other Federal agencies, or state, 
tribal or local governments. The EPA debarring official will make sure 
that you have an opportunity to address important allegations or 
information contained in the administrative record before making a 
final decision on your request for reinstatement.


Sec. 32.1215  What happens if I disagree with the information provided 
by others to the EPA debarring official on my reinstatement request?

    (a) If your reinstatement request is based on factual information 
(as opposed to a legal matter or discretionary conclusion) that is 
different from the information provided by others or otherwise 
contained in the administrative record, the debarring official will 
decide whether those facts are genuinely in dispute, and material to 
making a decision. If so, a fact-finding proceeding will be conducted 
in accordance with Secs. 32.830 through 32.840, and the debarring 
official will consider the findings when making a decision on your 
reinstatement request.
    (b) If the basis for your disagreement with the information 
contained in the administrative record relates to a legal issue or 
discretionary conclusion, or is not a genuine dispute over a material 
fact, you will not have a fact-finding proceeding. However, the 
debarring official will allow you ample opportunity to support your 
position for the record and present matters in opposition to your 
continued disqualification. A summary of any information you provide 
orally, if not already recorded, should also be submitted to the 
debarring official in writing to assure that it is preserved for the 
debarring official's consideration and the administrative record.


Sec. 32.1220  What will the EPA debarring official consider in making a 
decision on my reinstatement request?

    (a) The EPA debarring official will consider all information and 
arguments contained in the administrative record in support of, or in 
opposition to, your request for reinstatement, including any findings 
of material fact.
    (b) The debarring official will also consider any mitigating or 
aggravating factors that may relate to your conviction or the 
circumstances surrounding it, including any of those factors that 
appear in Sec. 32.860 that may apply to your situation.
    (c) Finally, if disqualification applies to a business entity, the 
debarring official will consider any corporate or business attitude, 
policies, practices and procedures that contributed to the events 
leading to conviction, or that may have been implemented since the date 
of the misconduct or conviction. You can obtain any current policy 
directives issued by the EPA that apply to CAA or CWA disqualification 
or reinstatement by contacting the Office of the EPA Debarring 
Official, U.S. Environmental Protection Agency, Office of Grants and 
Debarment (3901-

[[Page 3343]]

R), 1200 Pennsylvania Avenue NW., Washington, DC 20460.


Sec. 32.1225  When will the EPA debarring official make a decision on 
my reinstatement request?

    (a) The EPA debarring official will make a decision regarding your 
reinstatement request under Sec. 32.1205(a), when the administrative 
record is complete, and he or she can determine whether the condition 
giving rise to the CAA or CWA conviction has been corrected--usually 
within 45 days of closing the administrative record.
    (b) A reinstatement request is not officially before the debarring 
official while you are having informal discussions under 
Sec. 32.1205(b).


Sec. 32.1230  How will the EPA debarring official notify me of the 
reinstatement decision?

    The EPA debarring official will notify you of the reinstatement 
decision in writing, using the same methods for communicating debarment 
or suspension action notices under Sec. 32.615.


Sec. 32.1300  Can I resolve my eligibility status under terms of an 
administrative agreement without having to submit a formal 
reinstatement request?

    (a) The EPA debarring official may, at any time, resolve your CAA 
or CWA
    eligibility status under the terms of an administrative agreement. 
Ordinarily, the debarring official will not make an offer to you for 
reinstatement until after the administrative record for decision is 
complete, or contains enough information to enable him or her to make 
an informed decision in the matter.
    (b) Any resolution of your eligibility status under the CAA or CWA 
resulting from an administrative agreement must include a certification 
that the condition giving rise to the conviction has been corrected.
    (c) The EPA debarring official may enter into an administrative 
agreement to resolve CAA or CWA disqualification issues as part of a 
comprehensive criminal plea, civil or administrative agreement when it 
is in the best interest of the United States to do so.


Sec. 32.1305  What are the consequences if I mislead the EPA in seeking 
reinstatement or fail to comply with my administrative agreement?

    (a) Any certification of correction issued by the EPA debarring 
official, whether the certification results from a reinstatement 
decision under Secs. 32.1205(a) and 32.1230, or from an administrative 
agreement under Secs. 32.1205(b) and 32.1300, is conditioned upon the 
accuracy of the information, representations or assurances made during 
development of the administrative record.
    (b) If the EPA debarring official finds that he or she has 
certified correction of the condition giving rise to a CAA or CWA 
conviction or violation on the basis of a false, misleading, incomplete 
or inaccurate information; or if a person fails to comply with material 
condition of an administrative agreement, the EPA debarring official 
may revoke the certification of correction and immediately reinstate 
the CAA or CWA disqualification. In addition, the EPA debarring 
official may take suspension or debarment action against the person(s) 
responsible for the misinformation or noncompliance with the agreement 
as appropriate. If anyone provides false, inaccurate, incomplete or 
misleading information to EPA in an attempt to obtain reinstatement, 
the EPA debarring official will refer the matter to the EPA Office of 
the Inspector General for potential criminal or civil action.


Sec. 32.1400  How may I appeal a decision denying my request for 
reinstatement?

    (a) If the EPA debarring official denies your request for 
reinstatement under the CAA or CWA, you can ask for review of the EPA 
debarring official's decision in two ways:
    (1) You may ask the debarring official to reconsider the decision 
for material errors of fact or law that you believe will change the 
outcome of the matter; and/or
    (2) You may request the Director, Office of Grants and Debarment 
(OGD Director), to review the debarring official's denial within 30 
days of your receipt of the debarring official's decision under 
Sec. 32.1230 or paragraph (a)(1) of this section. However, the OGD 
Director can reverse the debarring official's decision denying 
reinstatement only where the OGD Director finds that there is a clear 
error of material fact or law, or where the OGD Director finds that the 
debarring official's decision was arbitrary, capricious, or an abuse of 
discretion.
    (b) A request for review under this section must be in writing and 
state the specific findings you believe to be in error and the reason 
for your position.
    (c) A review by the OGD Director under this section is solely 
within the discretion of the OGD Director.
    (d) The OGD Director must notify you of his or her decision under 
this section, in writing, using the notice procedures identified at 
Secs. 32.615 and 32.975.


Sec. 32.1500  If I am reinstated, when will my name be removed from the 
GSA List?

    (a) If your eligibility for procurement and nonprocurement 
participation is restored under the CAA or CWA, whether by decision, 
appeal, or by administrative agreement, the EPA will notify the GSA 
within 5 working days of your reinstatement and ask GSA to remove your 
name and that of the violating facility from the List.
    (b) You may check the List manually or through the internet as 
stated at Sec. 32.1125, to confirm that your name and that of the 
violating facility are removed from the List following reinstatement. 
In the event your name is not removed in a timely manner, you should 
call the EPA debarring official or the EPA representative identified 
under the agency contacts section of the List to inform them that the 
listing has not been removed.


Sec. 32.1600  What definitions apply specifically to actions under this 
subpart?

    In addition to definitions under subpart I of this part that apply 
to this part as a whole, the following two definitions apply 
specifically to CAA and CWA disqualifications under this subpart:
    (a) Person means an individual, corporation, partnership, 
association, state, municipality, commission, or political subdivision 
of a state, or any interstate body.
    (b) Violating facility means any building, plant, installation, 
structure, mine, vessel, floating craft, location or site of operations 
that gives rise to a CAA or CWA conviction, and is a location at which 
or from which a Federal contract, subcontract, loan, assistance award 
or other covered transaction may be performed. If a site of operations 
giving rise to a CAA or CWA conviction contains or includes more than 
one building, plant, installation, structure, mine, vessel, floating 
craft, or other operational element, the entire location or site of 
operation is regarded as the violating facility unless otherwise 
limited by the EPA.
    9. Part 36 is added to read as set forth in instruction 2 at the 
end of the common preamble.

PART 36--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE 
(FINANCIAL ASSISTANCE)

Subpart A--Purpose and Coverage
Sec.
36.100   What does this part do?
36.105   Does this part apply to me?
36.110   Are any of my Federal assistance awards exempt from this 
part?

[[Page 3344]]

36.115   Does this part affect the Federal contracts that I receive?
Subpart B--Requirements for Recipients Other Than Individuals
36.200   What must I do to comply with this part?
36.205   What must I include in my drug-free workplace statement?
36.210   To whom must I distribute my drug-free workplace statement?
36.215   What must I include in my drug-free awareness program?
36.220   By when must I publish my drug-free workplace statement and 
establish my drug-free awareness program?
36.225   What actions must I take concerning employees who are 
convicted of drug violations in the workplace?
36.230   How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
36.300   What must I do to comply with this part if I am an 
individual recipient?
36.301   [Reserved]
Subpart D--Responsibilities of EPA Awarding Officials
36.400   What are my responsibilities as an EPA awarding official?
Subpart E--Violations of This Part and Consequences
36.500   How are violations of this part determined for recipients 
other than individuals?
36.505   How are violations of this part determined for recipients 
who are individuals?
36.510   What actions will the Federal Government take against a 
recipient determined to have violated this part?
36.515   Are there any exceptions to those actions?
Subpart F--Definitions
36.605   Award.
36.610   Controlled substance.
36.615   Conviction.
36.620   Cooperative agreement.
36.625   Criminal drug statute.
36.630   Debarment.
36.635   Drug-free workplace.
36.640   Employee.
36.645   Federal agency or agency.
36.650   Grant.
36.655   Individual.
36.660   Recipient.
36.665   State.
36.670   Suspension.

    Authority: 41 U.S.C. 701 et seq.

    10. Part 36 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``EPA'' is added in its place 
wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``EPA'' is added in its 
place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``EPA Administrator 
or designee'' is added in its place wherever it occurs.
    d. ``[Agency head]'' is removed and ``EPA Administrator'' is added 
in its place wherever it occurs.
    11. Section 36.510(c) is further amended by removing ``[CFR 
citation for the Federal Agency's regulations implementing Executive 
Order 12549 and Executive Order 12689]'' and adding ``40 CFR part 32'' 
in its place.
    12. Section 36.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]''and adding ``40 CFR part 31'' in its place.

GENERAL SERVICES ADMINISTRATION

41 CFR Parts 105-68 and 105-74

RIN 3090-AH35

FOR FURTHER INFORMATION CONTACT: Donald J. Suda, Special Assistant for 
Contractor Integrity, General Services Administration, 1800 F Street 
NW., Washington, DC 20405-0002, (202) 501-4770, e-mail: 
[email protected]

List of Subjects

41 CFR Part 105-68

    Administrative practice and procedure, Debarment and suspension, 
Grant programs, Reporting and recordkeeping requirements.

41 CFR Part 105-74

    Administrative practice and procedure, Drug abuse, Grant programs, 
Reporting and recordkeeping requirements.

    Approved: July 5, 2001.
Stephen A. Perry,
Administrator of General Services.
    For the reasons stated in the preamble, the General Services 
Administration proposes to amend 41 CFR chapter 105 as follows:

CHAPTER 105--[AMENDED]

    1. Part 105-68 is revised to read as set forth in instruction 1 at 
the end of the common preamble.

PART 105-68--GOVERNMENTWIDE DEBARMENT AND SUSPENSION 
(NONPROCUREMENT)

Sec.
105-68.25   How is this part organized?
105-68.50   How is this part written?
105-68.75   Do terms in this part have special meanings?
Subpart A--General
105-68.100   What does this part do?
105-68.105   Does this part apply to me?
105-68.110   What is the purpose of the nonprocurement debarment and 
suspension system?
105-68.115   How does an exclusion restrict a person's involvement 
in covered transactions?
105-68.120   May we grant an exception to let an excluded person 
participate in a covered transaction?
105-68.125   Does an exclusion under the nonprocurement system 
affect a person's eligibility to participate in Federal procurement 
contracts?
105-68.130   Does an exclusion under the Federal procurement system 
affect a person's eligibility to participate in nonprocurement 
transactions?
105-68.135   May the General Services Administration exclude a 
person who is not currently participating in a nonprocurement 
transaction?
105-68.140   How do I know if a person is excluded?
105-68.145   Does this part cover persons who are disqualified as 
well as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
105-68.200   What is a covered transaction?
105-68.205   Why is it important to know if a particular transaction 
is a covered transaction?
105-68.210   Which nonprocurement transactions are covered 
transactions?
105-68.215   Which nonprocurement transactions are not covered 
transactions?
105-68.220   Are any procurement contracts included as covered 
transactions?
105-68.225   How do I know if a transaction that I may participate 
in is a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions

Doing Business With Other Persons

105-68.300   May I enter into a covered transaction with an excluded 
or disqualified person?
105-68.305   What must I do if a Federal agency excludes a person 
with whom I am already doing business in a covered transaction?
105-68.310   May I use the services of an excluded person under a 
covered transaction?
105-68.315   Must I verify that principals of my covered 
transactions are eligible to participate?
105-68.320   What happens if I do business with an excluded person 
in a covered transaction?
105-68.325   What requirements must I pass down to persons at lower 
tiers with whom I intend to do business?

Disclosing Information--Primary Tier Participants

105-68.330   What information must I provide before entering into a 
covered transaction with the General Services Administration?
105-68.335   If I disclose unfavorable information required under 
Sec. 105-68.330 will I be prevented from entering into the 
transaction?
105-68.340   What happens if I fail to disclose the information 
required under Sec. 105-68.330?
105-68.345   What must I do if I learn of the information required 
under Sec. 105-68.330

[[Page 3345]]

after entering into a covered transaction with the General Services 
Administration?

Disclosing Information Lower--Tier Participants

105-68.350   What information must I provide to a higher tier 
participant before entering into a covered transaction with that 
participant?
105-68.355   What happens if I fail to disclose the information 
required under Sec. 105-68.350?
105-68.360   What must I do if I learn of information required under 
Sec. 105-68.350 after entering into a covered transaction with a 
higher tier participant?
Subpart D--Responsibilities of GSA Officials Regarding Transactions
105-68.400   May I enter into a transaction with an excluded or 
disqualified person?
105-68.405   May I enter into a covered transaction with a 
participant if a principal of the transaction is excluded?
105-68.410   May I approve a participant's use of the services of an 
excluded person?
105-68.415   What must I do if a Federal agency excludes the 
participant or a principal after I enter into a covered transaction?
105-68.420   May I approve a transaction with an excluded or 
disqualified person at a lower tier?
105-68.425   When do I check to see if a person is excluded or 
disqualified?
105-68.430   How do I check to see if a person is excluded or 
disqualified?
105-68.435   What must I require of a primary tier participant?
105-68.440   What method do I use to communicate those requirements 
to participants?
105-68.445   What action may I take if a primary tier participant 
knowingly does business with an excluded or disqualified person?
105-68.450   What action may I take if a primary tier participant 
fails to disclose the information required under Sec. 105-68.330?
105-68.455   What may I do if a lower tier participant fails to 
disclose the information required under Sec. 105-68.350 to the next 
higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From 
Federal Procurement and Nonprocurement Programs
105-68.500   What is the purpose of the List?
105-68.505   Who uses the List?
105-68.510   Who maintains the List?
105-68.515   What specific information is on the List?
105-68.520   Who gives the GSA the information that it puts on the 
List?
105-68.525   Whom do I ask if I have questions about a person on the 
List?
105-68.530   Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment 
Actions
105-68.600   How do suspension and debarment actions start?
105-68.605   How does suspension differ from debarment?
105-68.610   What procedures does the General Services 
Administration use in suspension and debarment actions?
105-68.615   How does the General Services Administration notify a 
person of suspension and debarment actions?
105-68.620   Do Federal agencies coordinate suspension and debarment 
actions?
105-68.625   What is the scope of a suspension or debarment action?
105-68.630   May the General Services Administration impute the 
conduct of one person to another?
105-68.635   May the General Services Administration settle a 
debarment or suspension action?
105-68.640   May a settlement include a voluntary exclusion?
105-68.645   Do other Federal agencies know if the General Services 
Administration agrees to a voluntary exclusion?
Subpart G--Suspension
105-68.700   When may the suspending official issue a suspension?
105-68.705   What does the suspending official consider in issuing a 
suspension?
105-68.710   When does a suspension take effect?
105-68.715   What notice does the suspending official give me if I 
am suspended?
105-68.720   How may I contest a suspension?
105-68.725   How much time do I have to contest a suspension?
105-68.730   What information must I provide to the suspending 
official if I contest a suspension?
105-68.735   Under what conditions do I get an additional 
opportunity to challenge the facts on which the suspension is based?
105-68.740   Are suspension proceedings formal?
105-68.745   Is a record made of fact-finding proceedings?
105-68.750   What does the suspending official consider in deciding 
whether to continue or terminate my suspension?
105-68.755   When will I know whether the suspension is continued or 
terminated?
105-68.760   How long may my suspension last?
Subpart H--Debarment
105-68.800   What are the causes for debarment?
105-68.805   What notice does the debarring official give me if I am 
proposed for debarment?
105-68.810   When does a debarment take effect?
105-68.815   How may I contest a proposed debarment?
105-68.820   How much time do I have to contest a proposed 
debarment?
105-68.825   What information must I provide to the debarring 
official if I contest a proposed debarment?
105-68.830   Under what conditions do I get an additional 
opportunity to challenge the facts on which the proposed debarment 
is based?
105-68.835   Are debarment proceedings formal?
105-68.840   Is a record made of fact-finding proceedings?
105-68.845   What does the debarring official consider in deciding 
whether to debar me?
105-68.850   What is the standard of proof in a debarment action?
105-68.855   Who has the burden of proof in a debarment action?
105-68.860   What factors may influence the debarring official's 
decision?
105-68.865   How long may my debarment last?
105-68.870   When do I know if the debarring official debars me?
105-68.875   May I ask the debarring official to reconsider a 
decision to debar me?
105-68.880   What factors may influence the debarring official 
during reconsideration?
105-68.885   May the debarring official extend a debarment?
Subpart I--Definitions
105-68.900  Adequate evidence.
105-68.905  Affiliate.
105-68.910  Agency.
105-68.915  Agent or representative.
105-68.920  Civil judgment.
105-68.925  Conviction.
105-68.930  Debarment
105-68.935  Debarring official.
105-68.940  Disqualified.
105-68.945  Excluded or exclusion.
105-68.950  Indictment.
105-68.955  Ineligible or ineligibility.
105-68.960  Legal proceedings.
105-68.965  List of Parties Excluded or Disqualified From Federal 
Procurement and Nonprocurement Programs.
105-68.970  Nonprocurement transaction.
105-68.975  Notice.
105-68.980  Participant
105-68.985  Person.
105-68.990  Preponderance of the evidence.
105-68.995  Principal.
105-68.1000  Respondent.
105-68.1005  State.
105-68.1010  Suspending official.
105-68.1015  Suspension.
105-68.1020  Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]

Appendix to Part 105-68--Covered Transactions

    Authority: Sec. 2455, Pub.L. 103-355, 108 Stat. 3327; E.O. 
12549, 3 CFR, 1986 Comp., p. 189; E.O. 12689, 3 CFR, 1989 Comp., p. 
235.

    2. Part 105-68 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``General Services 
Administration'' is added in its place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``GSA'' is added in its 
place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``Administrator of 
General Services'' is added in its place wherever it occurs.

[[Page 3346]]

    3. Section 105-68.440 is added to read as follows:


Sec. 105-68.440  What method do I use to communicate those requirements 
to participants?

    To communicate the requirement, you must include a term or 
condition in the transaction requiring the participants' compliance 
with subpart C of this part and requiring them to include a similar 
term or condition in lower-tier covered transactions.
    4. Part 105-74 is added to read as set forth in instruction 2 at 
the end of the common preamble.

PART 105-74--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE 
(FINANCIAL ASSISTANCE)

Subpart A--Purpose and Coverage
Sec.
105-74.100  What does this part do?
105-74.105  Does this part apply to me?
105-74.110  Are any of my Federal assistance awards exempt from this 
part?
105-74.115  Does this part affect the Federal contracts that I 
receive?
Subpart B--Requirements for Recipients Other Than Individuals
105-74.200   What must I do to comply with this part?
105-74.205  What must I include in my drug-free workplace statement?
105-74.210  To whom must I distribute my drug-free workplace 
statement?
105-74.215  What must I include in my drug-free awareness program?
105-74.220  By when must I publish my drug-free workplace statement 
and establish my drug-free awareness program?
105-74.225  What actions must I take concerning employees who are 
convicted of drug violations in the workplace?
105-74.230  How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
105-74.300  What must I do to comply with this part if I am an 
individual recipient?
105-74.301  [Reserved]
Subpart D--Responsibilities of GSA Awarding Officials
105-74.400  What are my responsibilities as a GSA awarding official?
Subpart E--Violations of This Part and Consequences
105-74.500  How are violations of this part determined for 
recipients other than individuals?
105-74.505  How are violations of this part determined for 
recipients who are individuals?
105-74.510  What actions will the Federal Government take against a 
recipient determined to have violated this part?
105-74.515  Are there any exceptions to those actions?
Subpart F--Definitions
105-74.605  Award.
105-74.610  Controlled substance.
105-74.615  Conviction.
105-74.620  Cooperative agreement.
105-74.625  Criminal drug statute.
105-74.630  Debarment.
105-74.635  Drug-free workplace.
105-74.640  Employee.
105-74.645  Federal agency or agency.
105-74.650  Grant.
105-74.655  Individual.
105-74.660  Recipient.
105-74.665  State.
105-74.670  Suspension.

    Authority: 41 U.S.C. 701 et seq.

    5. Part 105-74 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``General Services 
Administration'' is added in its place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``GSA'' is added in its 
place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``Administrator of 
General Services'' is added in its place wherever it occurs.
    d. ``[Agency head]'' is removed and ``Administrator of General 
Services'' is added in its place wherever it occurs.
    6. Section 105-74.510(c) is further amended by removing ``[CFR 
citation for the Federal agency's regulations implementing Executive 
Order 12549 and Executive Order 12689]'' and adding ``41 CFR part 105-
68'' in its place.
    7. Section 105-74.605(a)(2) is further amended by removing 
``[Agency-specific CFR citation]'' and adding ``41CFR part 105-71'' in 
its place.

DEPARTMENT OF THE INTERIOR

43 CFR Parts 12, 42 and 43

RIN 1090-AA79 

FOR FURTHER INFORMATION CONTACT: Debra E. Sonderman, Director, Office 
of Acquisition and Property Management, (202) 208-6431.

ADDITIONAL SUPPLEMENTARY INFORMATION: The Department of the Interior 
(Department) proposes to adopt the proposed common, governmentwide rule 
for debarment and suspension, and the common, governmentwide rule 
implementing the Drug-Free Workplace Act of 1988, with several specific 
provisions that apply to the Department of the Interior. The two 
proposed common rules are contained in the Notice of Proposed 
Rulemaking for a number of agencies, earlier in this document. This 
preamble for the Department sets out the headings of the sections of 
the proposed common rules that the Department proposes to adopt, with 
the appropriate numbering system for the Department. This preamble also 
explains the deviations from the proposed common rules.
    The Department joined in the publication of the governmentwide 
common rule which provided requirements for nonprocurement debarment 
and suspension by Executive branch agencies published on May 26, 1988 
(53 FR 19160), found at 43 CFR 12.100 to 12.510. In 43 CFR 
12.200(c)(8), the Department excluded from the requirements of the rule 
any transactions entered into pursuant to Pub. L. 93-638, ``Indian Self 
Determination and Education Assistance Act,'' since application of the 
common rule to such transactions was prohibited by Pub. L. 93-638.
    The Department also joined in the January 31, 1989, publication of 
the amendment to the governmentwide common rule on nonprocurement 
debarment and suspension and revised Subpart D to implement the Drug-
Free Workplace Act of 1988 (54 FR 4946), found at 43 CFR 12.600 to 
12.635.
    At the time of the revision to the common rule for nonprocurement 
debarment and suspension which was issued in response to Executive 
Order 12689 and section 2455 of the Federal Acquisition Streamlining 
Act of 1994, and published on June 26, 1995 (60 FR 33035), the 
Department excluded additional transactions from the requirements of 
the nonprocurement debarment and suspension regulations. Specifically, 
in 43 CFR 12.200(c)(9)-(11), the Department excluded all transactions 
concerning permits, licenses, exchanges and other acquisitions of real 
property, rights-of-way, easements, mineral patent claims, water 
service contracts, and repayment contracts from the nonprocurement 
debarment and suspension regulations.
    In this proposed rule, the Department will continue to exclude all 
transactions excluded in the current regulations at 43 CFR 
12.200(c)(8)-(11). These exclusions are found at 43 CFR 42.215 (h)-(k) 
in the proposed rule.
    In this proposed rule, the Department will discontinue the use of a 
certification from participants contained in 43 CFR 12.510(a). The 
Department proposes to include a term or condition in transaction 
documents which requires the participants' compliance. The term or 
condition will also require participants to include a similar term or 
condition in lower-tier covered transactions as well. This new 
provision is found at 43 CFR 42.440 of the proposed rule.
    The requirements for nonprocurement debarment and suspension, 
currently found at 43 CFR 12.100 to 12.510 are

[[Page 3347]]

being removed from 43 CFR part 12 and are proposed to be placed in 43 
CFR part 42.
    The requirements for maintaining a drug-free workplace, currently 
found at 43 CFR 12.600 to 12.635, are being removed from 43 CFR part 12 
and are proposed to be placed in 43 CFR part 43.

Compliance With Laws, Executive Orders, and Department Policy

    In addition to the certifications stated in the general preamble, 
the Department is including the following statements:
    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. A takings implication assessment is 
not required. No takings of personal property will occur as a result of 
this rule.
    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3 (b) 
of the Order.
    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. A detailed statement 
under the National Environmental Policy Act of 1969 is not required.
    In accordance with the President's memorandum of April 29, 1994, 
Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), 512 DM 2, and Executive Order 13175 (65 FR 
67249), we have evaluated possible effects on Federally recognized 
Indian tribes and have determined that there are no effects on trust 
resources.

List of Subjects

43 CFR Part 12

    Administrative practice and procedure, Contract programs, 
Cooperative agreements, Debarment and suspension, Grant programs, Grant 
administration.

43 CFR Part 42

    Administrative practice and procedure, Contract programs, 
Cooperative agreements, Debarment and suspension, Grant programs, 
Grants administration, Reporting and recordkeeping requirements.

43 CFR Part 43

    Administrative practice and procedure, Contract programs, 
Cooperative agreements, Drug abuse, Grant programs, Grants 
administration, Reporting and recordkeeping requirements.

    Dated: May 30, 2001.
Robert J. Lamb,
Acting Assistant Secretary-Policy, Management and Budget.

    Accordingly, for the reasons stated in the common preamble and in 
the above additional supplementary information section, 43 CFR subtitle 
A is proposed to be amended as follows:

PART 12--ADMINISTRATIVE AND AUDIT REQUIREMENTS AND COST PRINCIPLES 
FOR ASSISTANCE PROGRAMS

    1. The authority citation for part 12 is revised to read as 
follows:

    Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O. 12689 (3 
CFR, 1989 Comp., p. 235); sec. 2455, Pub. L. 103-355, 108 Stat. 3327 
(31 U.S.C. 6101 note); 5 U.S.C. 301; U.S.C 6101 note.

    2. Part 12, Subpart D is removed and reserved.
    3. Part 42 is added to read as set forth in instruction 1 at the 
end of the common preamble.

PART 42--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)

Sec.
42.25  How is this part organized?
42.50  How is this part written?
42.75  Do terms in this part have special meanings?
Subpart A--General
42.100   What does this part do?
42.105  Does this part apply to me?
42.110  What is the purpose of the nonprocurement debarment and 
suspension system?
42.115  How does an exclusion restrict a person's involvement in 
covered transactions?
42.120  May we grant an exception to let an excluded person 
participate in a covered transaction?
42.125  Does an exclusion under the nonprocurement system affect a 
person's eligibility to participate in Federal procurement 
contracts?
42.130  Does an exclusion under the Federal procurement system 
affect a person's eligibility to participate in nonprocurement 
transactions?
42.135  May the Department of the Interior exclude a person who is 
not currently participating in a nonprocurement transaction?
42.140  How do I know if a person is excluded?
42.145  Does this part cover persons who are disqualified as well as 
those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
42.200  What is a covered transaction?
42.205  Why is it important to know if a particular transaction is a 
covered transaction?
42.210  Which nonprocurement transactions are covered transactions?
42.215  Which nonprocurement transactions are not covered 
transactions?
42.220  Are any procurement contracts included as covered 
transactions?
42.225  How do I know if a transaction that I may participate in is 
a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions 
Doing Business With Other Persons
42.300   May I enter into a covered transaction with an excluded or 
disqualified person?
42.305  What must I do if a Federal agency excludes a person with 
whom I am already doing business in a covered transaction?
42.310  May I use the services of an excluded person under a covered 
transaction?
42.315  Must I verify that principals of my covered transactions are 
eligible to participate?
42.320  What happens if I do business with an excluded person in a 
covered transaction?
42.325  What requirements must I pass down to persons at lower tiers 
with whom I intend to do business?

Disclosing Information--Primary Tier Participants

42.330  What information must I provide before entering into a 
covered transaction with the Department of the Interior?
42.335  If I disclose unfavorable information required under 
Sec. 42.330 will I be prevented from entering into the transaction?
42.340  What happens if I fail to disclose the information required 
under Sec. 42.330?
42.345  What must I do if I learn of the information required under 
Sec. 42.330 after entering into a covered transaction with the 
Department of the Interior?

Disclosing Information--Lower Tier Participants

42.350  What information must I provide to a higher tier participant 
before entering into a covered transaction with that participant?
42.355  What happens if I fail to disclose the information required 
under Sec. 42.350?
42.360  What must I do if I learn of information required under 
Sec. 42.350 after entering into a covered transaction with a higher 
tier participant?
Subpart D--Responsibilities of Department of the Interior Officials 
Regarding Transactions
42.400  May I enter into a transaction with an excluded or 
disqualified person?
42.405  May I enter into a covered transaction with a participant if 
a principal of the transaction is excluded?
42.410  May I approve a participant's use of the services of an 
excluded person?
42.415  What must I do if a Federal agency excludes the participant 
or a principal after I enter into a covered transaction?

[[Page 3348]]

42.420  May I approve a transaction with an excluded or disqualified 
person at a lower tier?
42.425  When do I check to see if a person is excluded or 
disqualified?
42.430  How do I check to see if a person is excluded or 
disqualified?
42.435  What must I require of a primary tier participant?
42.440  What method do I use to communicate those requirements to 
participants?
42.445  What action may I take if a primary tier participant 
knowingly does business with an excluded or disqualified person?
42.450  What action may I take if a primary tier participant fails 
to disclose the information required under Sec. 42.330?
42.455  What may I do if a lower tier participant fails to disclose 
the information required under Sec. 42.350 to the next higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From 
Federal Procurement and Nonprocurement Programs
42.500   What is the purpose of the List?
42.505  Who uses the List?
42.510  Who maintains the List?
42.520  Who gives the GSA the information that it puts on the List?
42.525  Whom do I ask if I have questions about a person on the 
List?
42.530  Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment 
Actions
42.600   How do suspension and debarment actions start?
42.605  How does suspension differ from debarment?
42.610   What procedures does the Department of the Interior use in 
suspension and debarment actions?
42.615  How does the Department of the Interior notify a person of 
suspension and debarment actions?
42.620  Do Federal agencies coordinate suspension and debarment 
actions?
42.625  What is the scope of a suspension or debarment action?
42.630  May the Department of the Interior impute the conduct of one 
person to another?
42.635  May the Department of the Interior settle a debarment or 
suspension action?
42.640  May a settlement include a voluntary exclusion?
42.645  Do other Federal agencies know if the Department of the 
Interior agrees to a voluntary exclusion?
Subpart G--Suspension
42.700  When may the suspending official issue a suspension?
42.705  What does the suspending official consider in issuing a 
suspension?
42.710  When does a suspension take effect?
42.715  What notice does the suspending official give me if I am 
suspended?
42.720  How may I contest a suspension?
42.725  How much time do I have to contest a suspension?
42.730  What information must I provide to the suspending official 
if I contest a suspension?
42.735  Under what conditions do I get an additional opportunity to 
challenge the facts on which the suspension is based?
42.740  Are suspension proceedings formal?
42.745  Is a record made of fact-finding proceedings?
42.750  What does the suspending official consider in deciding 
whether to continue or terminate my suspension?
42.755  When will I know whether the suspension is continued or 
terminated?
42.760  How long may my suspension last?
Subpart H--Debarment
42.800  What are the causes for debarment?
42.805  What notice does the debarring official give me if I am 
proposed for debarment?
42.810  When does a debarment take effect?
42.815  How may I contest a proposed debarment?
42.820  How much time do I have to contest a proposed debarment?
42.825  What information must I provide to the debarring official if 
I contest a proposed debarment?
42.830  Under what conditions do I get an additional opportunity to 
challenge the facts on which the proposed debarment is based?
42.835  Are debarment proceedings formal?
42.840  Is a record made of fact-finding proceedings?
42.845  What does the debarring official consider in deciding 
whether to debar me?
42.850  What is the standard of proof in a debarment action?
42.855  Who has the burden of proof in a debarment action?
42.860  What factors may influence the debarring official's 
decision?
42.865  How long may my debarment last?
42.870  When do I know if the debarring official debars me?
42.875  May I ask the debarring official to reconsider a decision to 
debar me?
42.880  What factors may influence the debarring official during 
reconsideration?
42.885  May the debarring official extend a debarment?
Subpart I--Definitions
42.900   Adequate evidence.
42.905  Affiliate.
42.910  Agency.
42.915  Agent or representative.
42.920  Civil judgment.
42.925  Conviction.
42.930  Debarment.
42.935  Debarring official.
42.940  Disqualified.
42.945  Excluded or exclusion.
42.950  Indictment.
42.955  Ineligible or ineligibility.
42.960  Legal proceedings.
42.965  List of Parties Excluded or Disqualified From Federal 
Procurement and Nonprocurement Programs.
42.970  Nonprocurement transaction.
42.975  Notice.
42.980  Participant.
42.985  Person.
42.990  Preponderance of the evidence.
42.995  Principal.
42.1000  Respondent.
42.1005  State.
42.1010  Suspending official.
42.1015  Suspension.
42.1020  Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]

Appendix to Part 42--Covered Transactions

    Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O. 12689 (3 
CFR, 1989 Comp., p. 235); sec. 2455, Pub. L. 103-355, 108 Stat. 3327 
(31 U.S.C. 6101 note); 5 U.S.C. 301; 31 U.S.C.

    4. Part 42 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``Department of the Interior'' 
is added in its place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``Department of the 
Interior'' is added in its place where it occurs.
    c. ``[Agency head or designee]'' is removed and ``Director, Office 
of Acquisition and Property Management'' is added in its place wherever 
it occurs.
    5. Section 42.215 is further amended by adding paragraphs (h) 
through (k) to read as follows:


Sec. 42.215  Which nonprocurement transactions are not covered 
transactions?

* * * * *
    (h) Transactions entered into pursuant to Public Law 93-638, 88 
Stat. 2203.
    (i) Under natural resource management programs, permits, licenses, 
exchanges and other acquisitions of real property, rights-of-way, and 
easements.
    (j) Transactions concerning mineral patent claims entered into 
pursuant to 30 U.S.C. 22 et. seq.
    (k) Water service contracts and repayments entered into pursuant to 
43 U.S.C. 485.
    6. Section 42.440 is added to read as follows:


Sec. 42.440  What method do I use to communicate those requirements to 
participants?

    To communicate the requirement to participants, you must include a 
term or condition in the transaction requiring the participants' 
compliance with subpart C of this part and requiring them to include a 
similar term or condition in lower-tier covered transactions.
    7. Section 42.935 is further amended by adding paragraph (b) to 
read as follows:


Sec. 42.935  Debarring official.

* * * * *
    (b) The debarring official for the Department of the Interior is 
the Director, Office of Acquisition and Property Management.

[[Page 3349]]

    8. Section 42.970 is further amended by adding paragraphs (a)(12) 
through (a) (15) to read as follows:


Sec. 42.970  Nonprocurement transaction.

* * * * *
    (a) * * *
    (12) Federal acquisition of a leasehold interest or any other 
interest in real property.
    (13) Concession contracts.
    (14) Disposition of Federal real and personal property and natural 
resources.
    (15) Any other nonprocurement transactions between the Department 
and a person.
* * * * *
    9. Section 42.1010 is further amended by adding paragraph (b) to 
read as follows:


Sec. 42.1010  Suspending official.

* * * * *
    (b) The suspending official for the Department of the Interior is 
the Director, Office of Acquisition and Property Management.
    10. Part 43 is added to read as set forth in instruction 2 at the 
end of the common preamble.

PART 43--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE 
(FINANCIAL ASSISTANCE)

Subpart A--Purpose and Coverage
Sec.
43.100  What does this part do?
43.105  Does this part apply to me?
43.110  Are any of my Federal assistance awards exempt from this 
part?
43.115  Does this part affect the Federal contracts that I receive?
Subpart B--Requirements for Recipients Other Than Individuals
43.200  What must I do to comply with this part?
43.205  What must I include in my drug-free workplace statement?
43.210  To whom must I distribute my drug-free workplace statement?
43.215  What must I include in my drug-free awareness program?
43.220  By when must I publish my drug-free workplace statement and 
establish my drug-free awareness program?
43.225  What actions must I take concerning employees who are 
convicted of drug violations in the workplace?
43.230  How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
43.300  What must I do to comply with this part if I am an 
individual recipient?
43.301  Is there a central point to which I may report information 
required by Sec. 43.300?
Subpart D--Responsibilities of Department of the Interior Awarding 
Officials?
43.400  What are my responsibilities as a Department of the Interior 
awarding official?
Subpart E--Violations of This Part and Consequences
43.500  How are violations of this part determined for recipients 
other than individuals?
43.505  How are violations of this part determined for recipients 
who are individuals?
43.510  What actions will the Federal Government take against a 
recipient determined to have violated this part?
43.515   Are there any exceptions to those actions?
Subpart F--Definitions
43.605   Award.
43.610   Controlled substance.
43.615   Conviction.
43.620   Cooperative agreement.
43.625   Criminal drug statute.
43.630   Debarment.
43.635   Drug-free workplace.
43.640   Employee.
43.645   Federal agency or agency.
43.650   Grant.
43.655   Individual.
43.660   Recipient.
43.665   State.
43.670   Suspension.

    Authority: 5 U.S.C. 301; 31 U.S.C. 6101 note, 7501; 41 U.S.C. 
Sections 252a and 701 et seq.

    11. Part 43 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``Department of the Interior'' 
is added in its place where it occurs.
    b. ``[Agency adjective]'' is removed and ``Department of the 
Interior'' is added in its place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``Director, Office 
of Acquisition and Property Management'' is added in its place wherever 
it occurs.
    d. ``[Agency head]'' is removed and ``Secretary of the Interior'' 
is added in its place wherever it occurs.
    12. Section 43.301 is added to read as follows:


Sec. 43.301  Is there a central point to which I may report information 
required by Sec. 43.300?

    No. The Department of the Interior is not designating a central 
location for the receipt of these reports. Therefore you shall provide 
this report to every grant officer, or other designee within a Bureau/
Office of the Department on whose grant activity the convicted employee 
was working.
    13. Section 43.510(c) is further amended by removing ``[CFR 
citation for the Federal Agency's regulations implementing Executive 
Order 12549 and Executive Order 12689]'' and adding ``43 CFR part 42'' 
in its place.
    14. Section 43.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``43 CFR part 12'' in its place.

FEDERAL EMERGENCY MANAGEMENT AGENCY

44 CFR Parts 17 and 21

RIN 3067-AD15

FOR FURTHER INFORMATION CONTACT: Edward Broyles, Office of General 
Counsel, Federal Emergency Management Agency, 500 C Street, SW., 
Washington, DC 20472, (202) 646-3961, e-mail [email protected].


ADDITIONAL SUPPLEMENTARY INFORMATION: This part proposes optional lower 
tier suspension and debarment coverage by including a paragraph (d) in 
Sec. 17.220 for all contracts that equal or exceed the $25,000 award 
threshold under FEMA nonprocurement transactions. This election 
maintains FEMA's present practice under the common rule.
    In addition, Sec. 17.440 proposes to use terms or conditions to 
award transactions as the ordinary means of enforcing exclusions under 
FEMA transactions rather than obtaining written certifications. This 
alternative available under the common rule is more efficient than 
FEMA's current certification process for prospective recipients and 
participants.
    This proposed rule relocates the requirements for maintaining a 
drug-free workplace from 44 CFR part 17 to 44 CFR part 21.

List of Subjects

44 CFR Part 17

    Administrative practice and procedure, Grant programs.

44 CFR Part 21

    Administrative practice and procedure, Grant programs, Drug abuse, 
Reporting and recordkeeping requirements.

    Dated: June 22, 2001.
Patricia A. English,
Acting Chief Financial Officer, Federal Emergency Management Agency.
    For the reasons stated in the common preamble, the Federal 
Emergency Management Agency proposes to amend 44 CFR chapter I, as 
follows:
    1. Part 17 is revised to read as set forth in instruction 1 at the 
end of the common preamble.

PART 17--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)

Sec.
17.25   How is this part organized?

[[Page 3350]]

17.50   How is this part written?
17.75   Do terms in this part have special meanings?
Subpart A--General
17.100   What does this part do?
17.105   Does this part apply to me?
17.110   What is the purpose of the nonprocurement debarment and 
suspension system?
17.115   How does an exclusion restrict a person's involvement in 
covered transactions?
17.120   May we grant an exception to let an excluded person 
participate in a covered transaction?
17.125   Does an exclusion under the nonprocurement system affect a 
person's eligibility to participate in Federal procurement 
contracts?
17.130   Does an exclusion under the Federal procurement system 
affect a person's eligibility to participate in nonprocurement 
transactions?
17.135   May FEMA exclude a person who is not currently 
participating in a nonprocurement transaction?
17.140   How do I know if a person is excluded?
17.145   Does this part cover persons who are disqualified as well 
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
17.200   What is a covered transaction?
17.205   Why is it important if a particular transaction is a 
covered transaction?
17.210   Which nonprocurement transactions are covered transactions?
17.215   Which nonprocurement transactions are not covered 
transactions?
17.220   Are any procurement contracts included as covered 
transactions?
17.225   How do I know if a transaction in which I may participate 
is a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions 
Doing Business With Other Persons
17.300   May I enter into a covered transaction with an excluded or 
disqualified person?
17.305   What must I do if a Federal agency excludes a person with 
whom I am already doing business in a covered transaction?
17.310   May I use the services of an excluded person under a 
covered transaction?
17.315   Must I verify that principals of my covered transactions 
are eligible to participate?
17.320   What happens if I do business with an excluded person in a 
covered transaction?
17.325   What requirements must I pass down to persons at lower 
tiers with whom I intend to do business?

Disclosing Information--Primary Tier Participants

17.330   What information must I provide before entering into a 
covered transaction with FEMA?
17.335   If I disclose unfavorable information required under 
Sec. 17.330 will I be prevented from entering into the transaction?
17.340   What happens if I fail to disclose the information required 
under Sec. 17.330?
17.345   What must I do if I learn of the information required under 
Sec. 17.330 after entering into a covered transaction with FEMA?

Disclosing Information--Lower Tier Participants

17.350   What information must I provide to a higher tier 
participant before entering into a covered transaction with that 
participant?
17.355   What happens if I fail to disclose the information required 
under Sec. 17.350?
17.360   What must I do if I learn of information required under 
Sec. 17.350 after entering into a covered transaction with a higher 
tier participant?
Subpart D--Responsibilities of FEMA Officials Regarding Transactions
17.400   May I enter into a transaction with an excluded or 
disqualified person?
17.405   May I enter into a covered transaction with a participant 
if a principal of the transaction is excluded?
17.410   May I approve a participant's use of the services of an 
excluded person?
17.415   What must I do if a Federal agency excludes the participant 
or a principal after I enter into a covered transaction?
17.420   May I approve a transaction with an excluded or 
disqualified person at a lower tier?
17.425   When do I check to see if a person is excluded or 
disqualified?
17.430   How do I check to see if a person is excluded or 
disqualified?
17.435   What must I require of a primary tier participant?
17.440  What method do I use to communicate those requirements to 
participants?
17.445  What action may I take if a primary tier participant 
knowingly does business with an excluded or disqualified person?
17.450  What action may I take if a primary tier participant fails 
to disclose the information required under Sec. 17.330?
17.455  What may I do if a lower tier participant fails to disclose 
the information required under Sec. 17.350 to the next higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From 
Federal Procurement and Nonprocurement Programs
17.500  What is the purpose of the List?
17.505  Who uses the List?
17.510  Who maintains the List?
17.515  What specific information is on the List?
17.520  Who gives the GSA the information that it puts on the List?
17.525  Whom do I ask if I have questions about a person on the 
List?
17.530  Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment 
Actions
17.600  How do suspension and debarment actions start?
17.605  How does suspension differ from debarment?
17.610  What procedures does FEMA use in suspension and debarment 
actions?
17.615  How does FEMA notify a person of suspension and debarment 
actions?
17.620  Do Federal agencies coordinate suspension and debarment 
actions?
17.625  What is the scope of a suspension or debarment action?
17.630  May FEMA impute the conduct of one person to another?
17.635  May FEMA settle a debarment or suspension action?
17.640  May a settlement include a voluntary exclusion?
17.645  Do other Federal agencies know if FEMA agrees to a voluntary 
exclusion?
Subpart G--Suspension
17.700  When may the suspending official issue a suspension?
17.705  What does the suspending official consider in issuing a 
suspension?
17.710  When does a suspension take effect?
17.715  What notice does the suspending official give me if I am 
suspended?
17.720  How may I contest a suspension?
17.725  How much time do I have to contest a suspension?
17.730  What information must I provide to the suspending official 
if I contest a suspension?
17.735  Under what conditions do I get an additional opportunity to 
challenge the facts on which the suspension is based?
17.740  Are suspension proceedings formal?
17.745  Is a record made of fact-finding proceedings?
17.750  What does the suspending official consider in deciding 
whether to continue or terminate my suspension?
17.755  When will I know whether the suspension is continued or 
terminated?
17.760  How long may my suspension last?
Subpart H--Debarment
17.800  What are the causes for debarment?
17.805  What notice does the debarring official give me if I am 
proposed for debarment?
17.810  When does a debarment take effect?
17.815  How may I contest a proposed debarment?
17.820  How much time do I have to contest a proposed debarment?
17.825  What information must I provide to the debarring official if 
I contest a proposed debarment?
17.830  Under what conditions do I get an additional opportunity to 
challenge the facts on which a proposed debarment is based?
17.835  Are debarment proceedings formal?
17.840  Is a record made of fact-finding proceedings?
17.845  What does the debarring official consider in deciding 
whether to debar me?
17.850  What is the standard of proof in a debarment action?
17.855  Who has the burden of proof in a debarment action?

[[Page 3351]]

17.860  What factors may influence the debarring official's 
decision?
17.865  How long may my debarment last?
17.870  When do I know if the debarring official debars me?
17.875  May I ask the debarring official to reconsider a decision to 
debar me?
17.880  What factors may influence the debarring official during 
reconsideration?
17.885  May the debarring official extend a debarment?
Subpart I--Definitions
17.900  Adequate evidence.
17.905  Affiliate.
17.910  Agency.
17.915  Agent or representative.
17.920  Civil judgment.
17.925  Conviction.
17.930  Debarment.
17.935  Debarring official.
17.940  Disqualified.
17.945  Excluded or exclusion.
17.950  Indictment.
17.955  Ineligible or ineligibility.
17.960  Legal proceedings.
17.965  List of Parties Excluded or Disqualified From Federal 
Procurement and Nonprocurement Programs.
17.970  Nonprocurement transaction.
17.975  Notice.
17.980  Participant.
17.985  Person.
17.990  Preponderance of the evidence.
17.995  Principal.
17.1000  Respondent.
17.1005  State.
17.1010  Suspending official.
17.1015  Suspension.
17.1020  Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]

Appendix to Part 17--Covered Transactions

    Authority: 41 U.S.C. 701 et seq.; Sec. 2455, Pub. L. 103-355, 
108 Stat. 3327 (31 U.S.C. 6101 note); E.O. 12549 (3 CFR, 1986 Comp., 
p. 189); E.O. 12689 (3 CFR, 1989 Comp., p. 235).

    2. Part 17 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``FEMA'' is added in its place 
wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``FEMA'' is added in its 
place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``FEMA Debarring 
Official'' is added in its place wherever it occurs.
    3. Section 17.220 is further amended by adding a paragraph (d) to 
read as follows:


Sec. 17.220  Are any procurement contracts included as covered 
transactions?

* * * * *
    (d) The contract is awarded by any contractor, subcontractor, 
supplier, consultant or its agent or representative in any transaction, 
regardless of tier, to be funded or provided by FEMA under a 
nonprocurement transaction that is expected to equal or exceed $25,000. 
(See optional lower tier coverage shown in the diagram in the appendix 
to this part.)
    4. Section 17.440 is added to read as follows:


Sec. 17.440  What method do I use to communicate those requirements to 
participants?

    To communicate the requirements to participants, you must include a 
term or condition in the transaction requiring the participant's 
compliance with Subpart C of this part, and requiring them to include a 
similar term or condition in lower tier covered transactions.
    5. Part 21 is added to read as set forth in instruction 2 at the 
end of the common preamble.

PART 21--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE 
(FINANCIAL ASSISTANCE)

Subpart A--Purpose and Coverage
Sec.
21.100  What does this part do?
21.105  Does this part apply to me?
21.110  Are any of my Federal assistance awards exempt from this 
part?
21.115  Does this part affect the Federal contracts that I receive?
Subpart B--Requirements for Recipients Other Than Individuals
21.200  What must I do to comply with this part?
21.205  What must I include in my drug-free workplace statement?
21.210  To whom must I distribute my drug-free workplace statement?
21.215   What must I include in my drug-free awareness program?
21.220   By when must I publish my drug-free workplace statement and 
establish my drug-free awareness program?
21.125   What actions must I take concerning employees who are 
convicted of drug violations in the workplace?
21.230   How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
21.300   What must I do to comply with this part if I am an 
individual recipient?
21.301   [Reserved]
Subpart D--Responsibilities of FEMA Awarding Officials
21.400   What are my responsibilities as a FEMA awarding official?
Subpart E--Violations of This Part and Consequences
21.500   How are violations of this part determined for recipients 
other than individuals?
21.505   How are violations of this part determined for recipients 
who are individuals?
21.510   What actions will the Federal Government take against a 
recipient determined to have violated this part?
21.515   Are there any exceptions to those actions?
Subpart F--Definitions
21.605   Award.
21.610   Controlled substance.
21.615   Conviction.
21.620   Cooperative agreement.
21.625   Criminal drug statute.
21.630   Debarment.
21.635   Drug-free workplace.
21.640   Employee.
21.645   Federal agency or agency.
21.650   Grant.
21.655   Individual.
21.660   Recipient.
21.665   State.
21.670   Suspension.

    Authority: 41 U.S.C. 701 et seq.

    6. Part 21 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``FEMA'' is added in its place 
wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``FEMA'' is added in its 
place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``FEMA Director or 
designee'' is added in its place wherever it occurs.
    d. ``[Agency head]'' is removed and ``FEMA Director'' is added in 
its place wherever it occurs.
    7. Section 21.1510(c) is further amended by removing ``[CFR 
citation for the Federal Agency's regulations implementing Executive 
Order 12549 and Executive Order 12689]'' and adding ``44 CFR part 17'' 
in its place.
    8. Section 21.1605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]''and adding ``44 CFR part 13'' in its place.

DEPARTMENT OF HEALTH AND HUMAN SERVICES

45 CFR Parts 76 and 82

RIN 0991-AB12

FOR FURTHER INFORMATION CONTACT: Terrence J. Tychan, Deputy Assistant 
Secretary, Office of Grants and Acquisition Management, 202-690-6901; 
for the hearing impaired only: TDD 202-690-6415.
ADDITIONAL SUPPLEMENTARY INFORMATION: The Department of Health and 
Human Services (HHS) proposes to adopt the common rule on 
nonprocurement debarment and suspension with a few amendments. The 
first proposed amendment would cover additional tiers of contracts 
below covered nonprocurement transactions. The

[[Page 3352]]

common rule as drafted includes automatic coverage for any contract at 
the first tier below a covered nonprocurement transaction, if the 
amount of the contract is expected to equal or exceed a threshold value 
of $25,000. It also includes an option for agencies to extend that 
coverage to lower tiers of contracts expected to equal or exceed the 
threshold value of $25,000. HHS proposes to extend coverage to lower 
tiers of contracts, but at a higher threshold value equal to the 
``simplified acquisition threshold'' defined at 41 U.S.C. 403(11), 
which is currently set at $100,000. At final rulemaking, this proposed 
amendment would require a conforming change in the illustration at 
appendix A to the common rule, which shows the $25,000 threshold amount 
for optional coverage of lower tier contracts.
    In addition, Sec. 76.440 proposes to use terms or conditions to the 
award transaction as a means to enforce exclusions under HHS 
transactions rather than written certifications. This alternative 
available under the common rule is more efficient than HHS's current 
certification process for prospective recipients and participants.
    Section 76.995 of the debarment and suspension common rule defines 
the term ``principal.'' Agencies implementing the common rule are 
permitted to provide additional examples of principals that are 
commonly involved in their covered transactions. HHS is proposing to 
include several examples by adding a paragraph (c) to this section for 
the benefit of individuals who may be excluded, or employers who may 
have an individual employee who is excluded.
    In addition to the general regulatory language developed by the 
Interagency Committee on Debarment and Suspension to be used 
governmentwide, we are proposing to add clarifying language to the HHS 
nonprocurement common rule at 45 CFR part 76. This additional language 
reflects minor changes to address adequately the relationship of the 
HHS Office of Inspector General's (OIG) program exclusion authorities 
(42 U.S.C. 1320a-7) to the common rule, and the applicability of these 
exclusion authorities to participation in Executive branch procurement 
and nonprocurement programs. Accordingly, we are proposing the 
inclusion of the following additional language in 45 CFR part 76:
    1. Adding a new Sec. 76.230 in subpart B, Covered Transactions, 
that would address the relationship between covered transactions and 
Federal health care program exclusions under Title XI of the Social 
Security Act. Specifically, an individual or entity excluded by the OIG 
from Medicare, Medicaid and other Federal health care program 
participation would also be prohibited from participating in all other 
Federal Government procurement and nonprocurement programs.
    2. Adding a new section in Subpart D, Responsibilities of Agency 
(HHS) Officials Regarding Transactions, that would address the 
obligations of Medicare carriers, intermediaries and other Medicare 
contractors. Specifically, proposed Sec. 76.460 would state that these 
entities assume the same responsibilities and obligations for checking 
the GSA List as Medicare agency officials under this part.
    3. Amending the proposed definition of the term ``disqualified'' in 
Sec. 76.940 in Subpart I to include direct reference to the OIG 
exclusion authorities. The amended definition would indicate that an 
example of disqualifications include persons prohibited under the ``* * 
* program exclusion authorities under Title XI of the Social Security 
Act (42 U.S.C. 1320a-7) * * * '' For purposes of exclusions from 
participation in Federal health care programs by the HHS OIG, the 
governing regulations are set forth in 42 CFR part 1001.
    In addition, the requirements for maintaining a drug-free workplace 
are being removed as a subpart in the current debarment and suspension 
common rule, and re-codified as a new separate part 82.

List of Subjects

45 CFR Part 76

    Administrative practice and procedure, Grant programs, Reporting 
and recordkeeping requirements.

45 CFR Part 82

    Administrative practice and procedure, Drug abuse, Grant programs, 
Reporting and recordkeeping requirements.

    Approved: June 5, 2001.
Tommy G. Thompson,
Secretary, Department of Health and Human Services.

    For the reasons stated in the common preamble, the Department of 
Health and Human Services proposes to amend 45 CFR subtitle A as 
follows:
    1. Part 76 is revised to read as set forth in instruction 1 at the 
end of the common preamble.

PART 76--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)

Sec.
76.25   How is this part organized?
76.50   How is this part written?
76.75   Do terms in this part have special meanings?
Subpart A--General
76.100   What does this part do?
76.105   Does this part apply to me?
76.110   What is the purpose of the nonprocurement debarment and 
suspension system?
76.115   How does an exclusion restrict a person's involvement in 
covered transactions?
76.120   May we grant an exception to let an excluded person 
participate in a covered transaction?
76.125   Does an exclusion under the nonprocurement system affect a 
person's eligibility to participate in Federal procurement 
contracts?
76.130   Does an exclusion under the Federal procurement system 
affect a person's eligibility to participate in nonprocurement 
transactions?
76.135   May HHS exclude a person who is not currently participating 
in a nonprocurement transaction?
76.140   How do I know if a person is excluded?
76.145   Does this part cover persons who are disqualified as well 
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
76.200   What is a covered transaction?
76.205   Why is it important to know if a particular transaction is 
a covered transaction?
76.210   Which nonprocurement transactions are covered transactions?
76.215   Which nonprocurement transactions are not covered 
transactions?
76.220   Are any procurement contracts included as covered 
transactions?
76.225   How do I know if a transaction that I may participate in is 
a covered transaction?
76.230   What is the relationship between covered transactions and 
exclusions from participation in Federal health care programs under 
Title XI of the Social Security Act?
Subpart C--Responsibilities of Participants Regarding Transactions 
Doing Business With Other Persons
76.300   May I enter into a covered transaction with an excluded or 
disqualified person?
76.305   What must I do if a Federal agency excludes a person with 
whom I am already doing business in a covered transaction?
76.310   May I use the services of an excluded person under a 
covered transaction?
76.315   Must I verify that principals of my covered transactions 
are eligible to participate?

[[Page 3353]]

76.320   What happens if I do business with an excluded person in a 
covered transaction?
76.325   What requirements must I pass down to persons at lower 
tiers with whom I intend to do business?

Disclosing Information--Primary Tier Participants

76.330   What information must I provide before entering into a 
covered transaction with HHS?
76.335   If I disclose unfavorable information required under 
Sec. 76.330 will I be prevented from entering into the transaction?
76.340   What happens if I fail to disclose the information required 
under Sec. 76.330?
76.345   What must I do if I learn of the information required under 
Sec. 76.330 after entering into a covered transaction with HHS?

Disclosing Information--Lower Tier Participants

76.350   What information must I provide to a higher tier 
participant before entering into a covered transaction with that 
participant?
76.355   What happens if I fail to disclose the information required 
under Sec. 76.350?
76.360   What must I do if I learn of information required under 
Sec. 76.350 after entering into a covered transaction with a higher 
tier participant?
Subpart D--Responsibilities of HHS Officials Regarding Transactions
76.400   May I enter into a transaction with an excluded or 
disqualified person?
76.405   May I enter into a covered transaction with a participant 
if a principal of the transaction is excluded?
76.410   May I approve a participant's use of the services of an 
excluded person?
76.415   What must I do if a Federal agency excludes the participant 
or a principal after I enter into a covered transaction?
76.420   May I approve a transaction with an excluded or 
disqualified person at a lower tier?
76.425  When do I check to see if a person is excluded or 
disqualified?
76.430  How do I check to see if a person is excluded or 
disqualified?
76.435  What must I require of a primary tier participant?
76.440  What method do I use to communicate those requirements to 
participants?
76.445  What action may I take if a primary tier participant 
knowingly does business with an excluded or disqualified person?
76.450  What action may I take if a primary tier participant fails 
to disclose the information required under Sec. 76.330?
76.455  What may I do if a lower tier participant fails to disclose 
the information required under Sec. 76.350 to the next higher tier?
76.460  What are the obligations of Medicare carriers and 
intermediaries?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From 
Federal Procurement and Nonprocurement Programs
76.500  What is the purpose of the List?
76.505  Who uses the List?
76.510  Who maintains the List?
76.515  What specific information is on the List?
76.520  Who gives the GSA the information that it puts on the List?
76.525  Whom do I ask if I have questions about a person on the 
List?
76.530  Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment 
Actions
76.600  How do suspension and debarment actions start?
76.605  How does suspension differ from debarment?
76.610  What procedures does HHS use in suspension and debarment 
actions?
76.615  How does HHS notify a person of suspension and debarment 
actions?
76.620  Do Federal agencies coordinate suspension and debarment 
actions?
76.625  What is the scope of a suspension or debarment action?
76.630  May HHS impute the conduct of one person to another?
76.635  May HHS settle a debarment or suspension action?
76.640  May a settlement include a voluntary exclusion?
76.645  Do other Federal agencies know if HHS agrees to a voluntary 
exclusion?
Subpart G--Suspension
76.700  When may the suspending official issue a suspension?
76.705  What does the suspending official consider in issuing a 
suspension?
76.710  When does a suspension take effect?
76.715  What notice does the suspending official give me if I am 
suspended?
76.720  How may I contest a suspension?
76.725  How much time do I have to contest a suspension?
76.730  What information must I provide to the suspending official 
if I contest a suspension?
76.735  Under what conditions do I get an additional opportunity to 
challenge the facts on which the suspension is based?
76.740  Are suspension proceedings formal?
76.745  Is a record made of fact-finding proceedings?
76.750  What does the suspending official consider in deciding 
whether to continue or terminate my suspension?
76.755  When will I know whether the suspension is continued or 
terminated?
76.760  How long may my suspension last?
Subpart H--Debarment
76.800  What are the causes for debarment?
76.805  What notice does the debarring official give me if I am 
proposed for debarment?
76.810  When does a debarment take effect?
76.815  How may I contest a proposed debarment?
76.820  How much time do I have to contest a proposed debarment?
76.825  What information must I provide to the debarring official if 
I contest a proposed debarment?
76.830  Under what conditions do I get an additional opportunity to 
challenge the facts on which the proposed debarment is based?
76.835  Are debarment proceedings formal?
76.840  Is a record made of fact-finding proceedings?
76.845  What does the debarring official consider in deciding 
whether to debar me?
76.850  What is the standard of proof in a debarment action?
76.855  Who has the burden of proof in a debarment action?
76.860  What factors may influence the debarring official's 
decision?
76.865  How long may my debarment last?
76.870  When do I know if the debarring official debars me?
76.875  May I ask the debarring official to reconsider a decision to 
debar me?
76.880  What factors may influence the debarring official during 
reconsideration?
76.885  May the debarring official extend a debarment?
Subpart I--Definitions
76.900  Adequate evidence.
76.905  Affiliate.
76.910  Agency.
76.915  Agent or representative.
76.920  Civil judgment.
76.925  Conviction.
76.930  Debarment.
76.935  Debarring official.
76.940  Disqualified.
76.945  Excluded or exclusion.
76.950  Indictment.
76.955  Ineligible or ineligibility.
76.960  Legal proceedings.
76.965  List of Parties Excluded or Disqualified From Federal 
Procurement and Nonprocurement Programs.
76.970  Nonprocurement transaction.
76.975  Notice.
76.980  Participant.
76.985  Person.
76.990  Preponderance of the evidence.
76.995  Principal.
76.1000  Respondent.
76.1005  State.
76.1010  Suspending official.
76.1015  Suspension.
76.1020  Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]

Appendix to Part 76--Covered Transactions

    Authority: 5 U.S.C. 301; Sec. 2455, Pub. L. 103-355, 108 Stat. 
3327 (31 U.S.C. 6101 note); E.O. 11738 (3 CFR, 1973 Comp., p. 799); 
E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O. 12689 (3 CFR, 1989 
Comp., p. 235).

    2. Part 76 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``HHS'' is added in its place 
wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``HHS'' is added in its 
place wherever it occurs.

[[Page 3354]]

    c. ``[Agency head or designee]'' is removed and ``HHS Debarring/
Suspension Official'' is added in its place wherever it occurs.
    3. Section 76.220 is further amended by adding a paragraph (d) to 
read as follows:


Sec. 76.220  Are any procurement contracts included as covered 
transactions?

* * * * *
    (d) The contract is a subcontract at any tier below a procurement 
transaction that is covered under paragraph (a) of this section, and 
the value of the contract exceeds or is expected to exceed the 
``simplified acquisition threshold'' defined at 42 U.S.C. 403(11). This 
extends the coverage of paragraph (a) of this section to all lower 
tiers of contracts that exceed the simplified acquisition threshold 
(see optional lower tier coverage shown in the diagram in the appendix 
to this part).
    4. Section 76.230 is added to read as follows:


Sec. 76.230  What is the relationship between covered transactions and 
exclusions from participation in Federal health care programs under 
Title XI of the Social Security Act?

    Any individual or entity excluded from participation in Medicare, 
Medicaid and other Federal health care programs under Title XI of the 
Social Security Act, 42 U.S.C. 1320a-7, will be subject to the 
prohibitions against participating in covered transactions, as set 
forth in this part. In addition, these excluded parties are also 
prohibited from participating in all Executive Branch procurement 
programs and activities. (Public Law 103-355, section 2455) For 
example, if an individual or entity is excluded by the HHS Office of 
Inspector General from participation in Medicare, Medicaid and all 
other Federal health care programs, in accordance with 42 U.S.C. 1320a-
7, then that individual or entity is prohibited from participating in 
all Federal Government procurement and nonprocurement programs (42 CFR 
part 1001).
    5. Section 76.440 is added to read as follows:


Sec. 76.440  What method do I use to communicate those requirements to 
participants?

    To communicate the requirements to participants, you must include a 
term or condition in the transaction requiring the participant's 
compliance with Subpart C of this part and requiring them to include a 
similar term or condition in lower tier covered transactions.
    6. Section 76.460 is added to read as follows:


Sec. 76.460  What are the obligations of Medicare carriers and 
intermediaries?

    Because Medicare carriers, intermediaries and other Medicare 
contractors undertake responsibilities on behalf of the Medicare 
program (Title XVIII of the Social Security Act), these entities assume 
the same obligations and responsibilities as Medicare agency officials 
with respect to actions under 45 CFR part 76. This would include these 
entities checking the GSA List and taking necessary steps to effectuate 
this part.
    7. Section 76.940 is further amended by adding a paragraph (d) to 
read as follows:


Sec. 76.940  Disqualified.

* * * * *
    (d) The program exclusion authorities under Title XI of the Social 
Security Act (42 U.S.C. 1320a-7) and enforced by the HHS Office of 
Inspector General.
    8. Section 76.995 is further amended by adding a paragraph (c) to 
read as follows:


Sec. 76.995  Principal.

* * * * *
    (c) Other examples of individuals who are principals in HHS covered 
transactions include:
    (1) Principal investigators;
    (2) Providers of Federally-required audit services; and
    (3) Researchers.
    9. Part 82 is added to read as set forth in instruction 2 at the 
end of the common preamble.

PART 82--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE 
(FINANCIAL ASSISTANCE)

Subpart A--Purpose and Coverage
Sec.
82.100  What does this part do?
82.105  Does this part apply to me?
82.110  Are any of my Federal assistance awards exempt from this 
part?
82.115  Does this part affect the Federal contracts that I receive?
Subpart B--Requirements for Recipients Other Than Individuals
82.200  What must I do to comply with this part?
82.205  What must I include in my drug-free workplace statement?
82.210  To whom must I distribute my drug-free workplace statement?
82.215  What must I include in my drug-free awareness program?
82.220  By when must I publish my drug-free workplace statement and 
establish my drug-free awareness program?
82.225  What actions must I take concerning employees who are 
convicted of drug violations in the workplace?
82.230  How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
82.300  What must I do to comply with this part if I am an 
individual recipient?
82.301  [Reserved]
Subpart D--Responsibilities of HHS Awarding Officials
82.400  What are my responsibilities as an HHS awarding official?
Subpart E--Violations of This Part and Consequences
82.500  How are violations of this part determined for recipients 
other than individuals?
82.505  How are violations of this part determined for recipients 
who are individuals?
82.510  What actions will the Federal Government take against a 
recipient determined to have violated this part?
82.515  Are there any exceptions to those actions?
Subpart F--Definitions
82.605  Award.
82.610  Controlled substance.
82.615  Conviction.
82.620  Cooperative agreement.
82.625  Criminal drug statute.
82.630  Debarment.
82.635  Drug-free workplace.
82.640  Employee.
82.645  Federal agency or agency.
82.650  Grant.
82.655  Individual.
82.660  Recipient.
82.665  State.
82.670  Suspension.

    Authority: 41 U.S.C. 701 et seq.

    10. Part 82 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``HHS'' is added in its place 
wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``HHS'' is added in its 
place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``HHS Official or 
designee'' is added in its place wherever it occurs.
    d. ``[Agency head]'' is removed and ``the Secretary of HHS'' is 
added in its place wherever it occurs.
    11. Section 82.510(c) is further amended by removing ``[CFR 
citation for the Federal Agency's regulations implementing Executive 
Order 12549 and Executive Order 12689]'' and adding ``45 CFR part 76'' 
in its place.
    12. Section 82.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]''and adding ``45 CFR part 92'' in its place.

[[Page 3355]]

NATIONAL SCIENCE FOUNDATION

45 CFR Parts 620 and 630

FOR FURTHER INFORMATION CONTACT: Anita Eisenstadt, Assistant General 
Counsel, National Science Foundation, 4201 Wilson Boulevard, Room 1265, 
Arlington, Virginia, 22230, (703) 292-8060; e:mail: [email protected].

List of Subjects

45 CFR Part 620

    Administrative practice and procedure, Debarment and suspension, 
Grant programs, Reporting and recordkeeping requirements.

45 CFR Part 630

    Administrative practice and procedure, Drug abuse, Grant programs, 
Reporting and recordkeeping requirements.

Lawrence Rudolph,
General Counsel, National Science Foundation.
    Accordingly, as set forth in the common preamble, the National 
Science Foundation proposes to amend 45 CFR chapter VI as follows:
    1. Part 620 is revised to read as set forth in instruction 1 at the 
end of the common preamble.

PART 620--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)

Sec.
620.25  How is this part organized?
620.50  How is this part written?
620.75  Do terms in this part have special meanings?
Subpart A--General
620.100  What does this part do?
620.105  Does this part apply to me?
620.110  What is the purpose of the nonprocurement debarment and 
suspension system?
620.115  How does an exclusion restrict a person's involvement in 
covered transactions?
620.120  May we grant an exception to let an excluded person 
participate in a covered transaction?
620.125  Does an exclusion under the nonprocurement system affect a 
person's eligibility to participate in Federal procurement 
contracts?
620.130  Does an exclusion under the Federal procurement system 
affect a person's eligibility to participate in nonprocurement 
transactions?
620.135  May the National Science Foundation exclude a person who is 
not currently participating in a nonprocurement transaction?
620.140  How do I know if a person is excluded?
620.145  Does this part cover persons who are disqualified as well 
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
620.200  What is a covered transaction?
620.205  Why is it important to know if a particular transaction is 
a covered transaction?
620.210  Which nonprocurement transactions are covered transactions?
620.215  Which nonprocurement transactions are not covered 
transactions?
620.215  Are any procurement contracts included as covered 
transactions?
620.225  How do I know if a transaction that I may participate in is 
a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions 
Doing Business With Other Persons
620.300  May I enter into a covered transaction with an excluded or 
disqualified person?
620.305  What must I do if a Federal agency excludes a person with 
whom I am already doing business in a covered transaction?
620.310  May I use the services of an excluded person under a 
covered transaction?
620.315  Must I verify that principals of my covered transactions 
are eligible to participate?
620.320  What happens if I do business with an excluded person in a 
covered transaction?
620.325  What requirements must I pass down to persons at lower 
tiers with whom I intend to do business?

Disclosing Information--Primary Tier Participants

620.330  What information must I provide before entering into a 
covered transaction with the National Science Foundation?
620.335  If I disclose unfavorable information required under 
Sec. 620.330 will I be prevented from entering into the transaction?
620.340  What happens if I fail to disclose the information required 
under Sec. 620.330?
620.345  What must I do if I learn of the information required under 
Sec. 620.330 after entering into a covered transaction with the 
National Science Foundation?

Disclosing Information--Lower Tier Participants

620.350  What information must I provide to a higher tier 
participant before entering into a covered transaction with that 
participant?
620.355  What happens if I fail to disclose the information required 
under Sec. 620.350?
620.360  What must I do if I learn of information required under 
Sec. 620.350 after entering into a covered transaction with a higher 
tier participant?
Subpart D--Responsibilities of National Science Foundation Officials 
Regarding Transactions
620.400  May I enter into a transaction with an excluded or 
disqualified person?
620.405  May I enter into a covered transaction with a participant 
if a principal of the transaction is excluded?
620.410  May I approve a participant's use of the services of an 
excluded person?
620.415  What must I do if a Federal agency excludes the participant 
or a principal after I enter into a covered transaction?
620.420  May I approve a transaction with an excluded or 
disqualified person at a lower tier?
620.425  When do I check to see if a person is excluded or 
disqualified?
620.430  How do I check to see if a person is excluded or 
disqualified?
620.435  What must I require of a primary tier participant?
620.440  What method do I use to communicate those requirements to 
participants?
620.445  What action may I take if a primary tier participant 
knowingly does business with an excluded or disqualified person?
620.450  What action may I take if a primary tier participant fails 
to disclose the information required under Sec. 620.330?
620.455  What may I do if a lower tier participant fails to disclose 
the information required under Sec. 620.350 to the next higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From 
Federal Procurement and Nonprocurement Programs
620.500  What is the purpose of the List?
620.505  Who uses the List?
620.510  Who maintains the List?
620.515  What specific information is on the List?
620.520  Who gives the GSA the information that it puts on the List?
620.525  Whom do I ask if I have questions about a person on the 
List?
620.530  Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment 
Actions
620.600  How do suspension and debarment actions start?
620.605  How does suspension differ from debarment?
620.610  What procedures does the National Science Foundation use in 
suspension and debarment actions?
620.615  How does the National Science Foundation notify a person of 
suspension and debarment actions?
620.620  Do Federal agencies coordinate suspension and debarment 
actions?
620.625  What is the scope of a suspension or debarment action?
620.630  May the National Science Foundation impute the conduct of 
one person to another?
620.635  May the National Science Foundation settle a debarment or 
suspension action?
620.640  May a settlement include a voluntary exclusion?
620.645  Do other Federal agencies know if the National Science 
Foundation agrees to a voluntary exclusion?
Subpart G--Suspension
620.700  When may the suspending official issue a suspension?

[[Page 3356]]

620.705  What does the suspending official consider in issuing a 
suspension?
620.710  When does a suspension take effect?
620.715  What notice does the suspending official give me if I am 
suspended?
620.720  How may I contest a suspension?
620.725  How much time do I have to contest a suspension?
620.730  What information must I provide to the suspending official 
if I contest a suspension?
620.735  Under what conditions do I get an additional opportunity to 
challenge the facts on which the suspension is based?
620.740  Are suspension proceedings formal?
620.745  Is a record made of fact-finding proceedings?
620.750  What does the suspending official consider in deciding 
whether to continue or terminate my suspension?
620.755  When will I know whether the suspension is continued or 
terminated?
620.760  How long may my suspension last?
Subpart H--Debarment
620.800  What are the causes for debarment?
620.805  What notice does the debarring official give me if I am 
proposed for debarment?
620.810  When does a debarment take effect?
620.815  How may I contest a proposed debarment?
620.820  How much time do I have to contest a proposed debarment?
620.825  What information must I provide to the debarring official 
if I contest a proposed debarment?
620.830  Under what conditions do I get an additional opportunity to 
challenge the facts on which the proposed debarment is based?
620.835  Are debarment proceedings formal?
620.840  Is a record made of fact-finding proceedings?
620.845  What does the debarring official consider in deciding 
whether to debar me?
620.850  What is the standard of proof in a debarment action?
620.855  Who has the burden of proof in a debarment action?
620.860  What factors may influence the debarring official's 
decision?
620.865  How long may my debarment last?
620.870  When do I know if the debarring official debars me?
620.875  May I ask the debarring official to reconsider a decision 
to debar me?
620.880  What factors may influence the debarring official during 
reconsideration?
620.885  May the debarring official extend a debarment?
Subpart I--Definitions
620.900  Adequate evidence.
620.905  Affiliate.
620.910  Agency.
620.915  Agent or representative.
620.920  Civil judgment.
620.925  Conviction.
620.930  Debarment
620.935  Debarring official.
620.940  Disqualified.
620.945  Excluded or exclusion.
620.950  Indictment.
620.955  Ineligible or ineligibility.
620.960  Legal proceedings.
620.965  List of Parties Excluded or Disqualified From Federal 
Procurement and Nonprocurement Programs.
620.970  Nonprocurement transaction.
620.975  Notice.
620.980  Participant.
620.985  Person.
620.990  Preponderance of the evidence.
620.995  Principal.
620.1000  Respondent.
620.1005  State.
620.1010  Suspending official.
620.1015  Suspension.
620.1020   Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]

Appendix to Part 620--Covered Transactions

    Authority: 42 U.S.C. 1870(a); Sec. 2455, Pub. L. 103-355, 108 
Stat. 3327 (31 U.S.C. 6101 note); E.O. 12549 (3 CFR, 1986 Comp., p. 
189); E.O. 12689 (3 CFR, 1989 Comp., p. 235).

    2. Part 620 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``National Science Foundation'' 
is added in its place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``National Science 
Foundation'' is added in its place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``Director or 
designee'' is added in its place wherever it occurs.
    3. Section 620.440 is added to read as follows:


Sec. 620.440  What method do I use to communicate those requirements to 
participants?

    To communicate the requirements to participants, you must include a 
term or condition in the transaction requiring the participant's 
compliance with Subpart C of this part and requiring them to include a 
similar term or condition in lower tier covered transactions.
    4. Part 630 is added to read as set forth in instruction 2 at the 
end of the common preamble.

PART 630--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE 
(FINANCIAL ASSISTANCE)

Subpart A--Purpose and Coverage
Sec.
630.100   What does this part do?
620.105   Does this part apply to me?
630.110   Are any of my Federal assistance awards exempt from this 
part?
630.115   Does this part affect the Federal contracts that I 
receive?
Subpart B--Requirements for Recipients Other Than Individuals
630.200   What must I do to comply with this part?
630.205   What must I include in my drug-free workplace statement?
630.210   To whom must I distribute my drug-free workplace 
statement?
630.215   What must I include in my drug-free awareness program?
630.220   By when must I publish my drug-free workplace statement 
and establish my drug-free awareness program?
630.225   What actions must I take concerning employees who are 
convicted of drug violations in the workplace?
630.230   How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
630.300   What must I do to comply with this part if I am an 
individual recipient?
630.301   [Reserved]
Subpart D--Responsibilities of National Science Foundation Awarding 
Officials
630.400   What are my responsibilities as a National Science 
Foundation awarding official?
Subpart E--Violations of This Part and Consequences
630.500   How are violations of this part determined for recipients 
other than individuals?
630.505   How are violations of this part determined for recipients 
who are individuals?
630.510   What actions will the Federal Government take against a 
recipient determined to have violated this part?
630.515   Are there any exceptions to those actions?
Subpart F--Definitions
630.605   Award.
630.610   Controlled substance.
630.615   Conviction.
630.620   Cooperative agreement.
630.625   Criminal drug statute.
630.630   Debarment.
630.635   Drug-free workplace.
630.640   Employee.
630.645   Federal agency or agency.
630.650   Grant.
630.655   Individual.
630.660   Recipient.
630.665   State.
630.670   Suspension.

    Authority: 41 U.S.C. 701 et seq.

    5. Part 630 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``National Science Foundation'' 
is added in its place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``National Science 
Foundation'' is added in its place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``Director or 
designee'' is added in its place wherever it occurs.
    d. ``[Agency head]'' is removed and ``Director, National Science

[[Page 3357]]

Foundation'' is added in its place wherever it occurs.
    6. Section 630.510(c) is further amended by removing ``[CFR 
citation for the Federal Agency's regulations implementing Executive 
Order 12549 and Executive Order 12689]'' and adding ``45 CFR part 620'' 
in its place.
    7. Section 630.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``45 CFR part 602'' in its place.

NATIONAL FOUNDATION ON THE ARTS AND HUMANITIES

National Endowment for the Arts

45 CFR Parts 1154 and 1155

RIN 3135-AA18 and 3135-AA19

FOR FURTHER INFORMATION CONTACT: Karen Elias, Deputy General Counsel, 
National Endowment for the Arts, Room 518, 1100 Pennsylvania Avenue, 
NW, Washington, DC 20506, (202) 682-5418, or by e-mail: 
[email protected].

ADDITIONAL SUPPLEMENTARY INFORMATION:
    Section 1154.440 of this part proposes to use terms or conditions 
to award transactions as the ordinary means of enforcing exclusions 
under NEA transactions rather than obtaining written certifications. 
This alternative available under the common rule is more efficient than 
the NEA's current reliance on the certification process for prospective 
recipients and participants.
    This proposed rule relocates the requirements for maintaining a 
drug-free workplace from 45 CFR part 1154 to 45 CFR part 1155 and 
proposes to restate those requirements in plain language format.

List of Subjects

45 CFR Part 1154

    Administrative practice and procedure, Debarment and suspension, 
Government contracts, Grant programs, Loan programs, Reporting and 
recordkeeping requirements.

45 CFR Part 1155

    Administrative practice and procedure, Drug abuse, Grant programs, 
Reporting and recordkeeping requirements.

    Dated: June 28, 2001.
Karen L. Elias,
Deputy General Counsel, National Endowment for the Arts.
    For the reasons stated in the preamble, the National Endowment for 
the Arts proposes to amend 45 CFR chapter XI as follows:
    1. Part 1154 is revised to read as set forth in instruction 1 at 
the end of the common preamble.

PART 1154--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)

Sec.
1154.25   How is this part organized?
1154.50   How is this part written?
1154.75   Do terms in this part have special meanings?
Subpart A--General
1154.100   What does this part do?
1154.105   Does this part apply to me?
1154.110   What is the purpose of the nonprocurement debarment and 
suspension system?
1154.115   How does an exclusion restrict a person's involvement in 
covered transactions?
1154.120   May we grant an exception to let an excluded person 
participate in a covered transaction?
1154.125   Does an exclusion under the nonprocurement system affect 
a person's eligibility to participate in Federal procurement 
contracts?
1154.130   Does an exclusion under the Federal procurement system 
affect a person's eligibility to participate in nonprocurement 
transactions?
1154.135   May the National Endowment for the Arts exclude a person 
who is not currently participating in a nonprocurement transaction?
1154.140   How do I know if a person is excluded?
1154.145   Does this part cover persons who are disqualified as well 
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
1154.200   What is a covered transaction?
1154.205   Why is it important to know if a particular transaction 
is a covered transaction?
1154.210   Which nonprocurement transactions are covered 
transactions?
1154.215   Which nonprocurement transactions are not covered 
transactions?
1154.220   Are any procurement contracts included as covered 
transactions?
1154.225   How do I know if a transaction in which I may participate 
is a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions 
Doing Business With Other Persons
1154.300   May I enter into a covered transaction with an excluded 
or disqualified person?
1154.305   What must I do if a Federal agency excludes a person with 
whom I am already doing business in a covered transaction?
1154.310   May I use the services of an excluded person under a 
covered transaction?
1154.315   Must I verify that principals of my covered transactions 
are eligible to participate?
1154.320   What happens if I do business with an excluded person in 
a covered transaction?
1154.325   What requirements must I pass down to persons at lower 
tiers with whom I intend to do business?

Disclosing Information--Primary Tier Participants

1154.330   What information must I provide before entering into a 
covered transaction with the National Endowment for the Arts?
1154.335   If I disclose unfavorable information required under 
Sec. 1154.330 will I be prevented from entering into the 
transaction?
1154.340   What happens if I fail to disclose the information 
required under Sec. 1154.330?
1154.345   What must I do if I learn of the information required 
under Sec. 1154.330 after entering into a covered transaction with 
the National Endowment for the Arts?

Disclosing information--Lower Tier Participants

1154.350   What information must I provide to a higher tier 
participant before entering into a covered transaction with that 
participant?
1154.355   What happens if I fail to disclose the information 
required under Sec. 1154.350?
1154.360   What must I do if I learn of information required under 
Sec. 1154.350 after entering into a covered transaction with a 
higher tier participant?
Subpart D--Responsibilities of NEA Officials Regarding Transactions
1154.400   May I enter into a transaction with an excluded or 
disqualified person?
1154.405   May I enter into a covered transaction with a participant 
if a principal of the transaction is excluded?
1154.410   May I approve a participant's use of the services of an 
excluded person?
1154.415   What must I do if a Federal agency excludes the 
participant or a principal after I enter into a covered transaction?
1154.420   May I approve a transaction with an excluded or 
disqualified person at a lower tier?
1154.425   When do I check to see if a person is excluded or 
disqualified?
1154.430   How do I check to see if a person is excluded or 
disqualified?
1154.435   What must I require of a primary tier participant?
1154.440   What method do I use to communicate those requirements to 
participants?
1154.445   What action may I take if a primary tier participant 
knowingly does business with an excluded or disqualified person?
1154.450   What action may I take if a primary tier participant 
fails to disclose the information required under Sec. 1154.330?
1154.455   What may I do if a lower tier participant fails to 
disclose the information required under Sec. 1154.350 to the next 
higher tier?

[[Page 3358]]

Subpart E--Governmentwide List of Parties Excluded or Disqualified From 
Federal Procurement and Nonprocurement Programs
1154.500   What is the purpose of the List?
1154.505   Who uses the List?
1154.510   Who maintains the List?
1154.515   What specific information is on the List?
1154.520   Who gives the GSA the information that it puts on the 
List?
1154.525   Whom do I ask if I have questions about a person on the 
List?
1154.530   Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment 
Actions
1154.600   How do suspension and debarment actions start?
1154.605   How does suspension differ from debarment?
1154.610   What procedures does the National Endowment for the Arts 
use in suspension and debarment actions?
1154.615   How does the National Endowment for the Arts notify a 
person of suspension and debarment actions?
1154.620   Do Federal agencies coordinate suspension and debarment 
actions?
1154.625   What is the scope of a suspension or debarment action?
1154.630   May the National Endowment for the Arts impute the 
conduct of one person to another?
1154.635   May the National Endowment for the Arts settle a 
debarment or suspension action?
1154.640   May a settlement include a voluntary exclusion?
1154.645   Do other Federal agencies know if the National Endowment 
for the Arts agrees to a voluntary exclusion?
Subpart G--Suspension
1154.700   When may the suspending official issue a suspension?
1154.705   What does the suspending official consider in issuing a 
suspension?
1154.710   When does a suspension take effect?
1154.715   What notice does the suspending official give me if I am 
suspended?
1154.720   How may I contest a suspension?
1154.725   How much time do I have to contest a suspension?
1154.730   What information must I provide to the suspending 
official if I contest a suspension?
1154.735   Under what conditions do I get an additional opportunity 
to challenge the facts on which the suspension is based?
1154.740   Are suspension proceedings formal?
1154.745   Is a record made of fact-finding proceedings?
1154.750   What does the suspending official consider in deciding 
whether to continue or terminate my suspension?
1154.755   When will I know whether the suspension is continued or 
terminated?
1154.760   How long may my suspension last?
Subpart H--Debarment
1154.800   What are the causes for debarment?
1154.805   What notice does the debarring official give me if I am 
proposed for debarment?
1154.810   When does a debarment take effect?
1154.815   How may I contest a proposed debarment?
1154.820   How much time do I have to contest a proposed debarment?
1154.825   What information must I provide to the debarring official 
if I contest a proposed debarment?
1154.830   Under what conditions do I get an additional opportunity 
to challenge the facts on which the proposed debarment is based?
1154.835   Are debarment proceedings formal?
1154.840   Is a record made of fact-finding proceedings?
1154.845   What does the debarring official consider in deciding 
whether to debar me?
1154.850   What is the standard of proof in a debarment action?
1154.855   Who has the burden of proof in a debarment action?
1154.860   What factors may influence the debarring official's 
decision?
1154.865   How long may my debarment last?
1154.870   When do I know if the debarring official debars me?
1154.875   May I ask the debarring official to reconsider a decision 
to debar me?
1154.880   What factors may influence the debarring official during 
reconsideration?
1154.885   May the debarring official extend a debarment?
Subpart I--Definitions
1154.900   Adequate evidence.
1154.905   Affiliate.
1154.910   Agency.
1154.915   Agent or representative.
1154.920   Civil judgment.
1154.925   Conviction.
1154.930   Debarment
1154.935   Debarring official.
1154.940   Disqualified.
1154.945   Excluded or exclusion.
1154.950   Indictment.
1154.955   Ineligible or ineligibility.
1154.960   Legal proceedings.
1154.965   List of Parties Excluded or Disqualified From Federal 
Procurement and Nonprocurement Programs.
1154.970   Nonprocurement transaction.
1154.975   Notice.
1154.980   Participant.
1154.985   Person.
1154.990   Preponderance of the evidence.
1154.995   Principal.
1154.1000   Respondent.
1154.1005   State.
1154.1010   Suspending official.
1154.1015   Suspension.
1154.1020   Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]

Appendix to Part 1154--Covered Transactions

    Authority: Sec. 2455, Pub. L. 103-355, 108 Stat. 3327; E.O. 
12549, 3 CFR, 1986 Comp., p. 189; E.O. 12689, 3 CFR, 1989 Comp., p. 
235.

    2. Part 1154 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``National Endowment for the 
Arts'' is added in its place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``NEA'' is added in its 
place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``NEA Chairman'' is 
added in its place wherever it occurs.
    3. Section 1154.440 is added to read as follows:


Sec. 1154.440  What method do I use to communicate those requirements 
to participants?

    To communicate the requirements to participants, you must include a 
term or condition in the transaction requiring the participant's 
compliance with subpart C of this part, and requiring them to include a 
similar term or condition in lower tier covered transactions.
    4. Part 1155 is added to read as set forth in instruction 2 at the 
end of the common preamble.

PART 1155--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE 
(FINANCIAL ASSISTANCE)

Subpart A--Purpose and Coverage
Sec.
1155.100   What does this part do?
1155.105   Does this part apply to me?
1155.110   Are any of my Federal assistance awards exempt from this 
part?
1155.115   Does this part affect the Federal contracts that I 
receive?
Subpart B--Requirements for Recipients Other Than Individuals
1155.200   What must I do to comply with this part?
1155.205   What must I include in my drug-free workplace statement?
1155.210   To whom must I distribute my drug-free workplace 
statement?
1155.215   What must I include in my drug-free awareness program?
1155.220   By when must I publish my drug-free workplace statement 
and establish my drug-free awareness program?
1155.225   What actions must I take concerning employees who are 
convicted of drug violations in the workplace?
1155.230   How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
1155.300   What must I do to comply with this part if I am an 
individual recipient?
1155.301   [Reserved]
Subpart D--Responsibilities of NEA Awarding Officials
1155.400   What are my responsibilities as an NEA awarding official?

[[Page 3359]]

Subpart E--Violations of This Part and Consequences
1155.500   How are violations of this part determined for recipients 
other than individuals?
1155.505   How are violations of this part determined for recipients 
who are individuals?
1155.510   What actions will the Federal Government take against a 
recipient determined to have violated this part?
1155.515   Are there any exceptions to those actions?
Subpart F--Definitions
1155.605   Award.
1155.610   Controlled substance.
1155.615   Conviction.
1155.620   Cooperative agreement.
1155.625   Criminal drug statute.
1155.630   Debarment.
1155.635   Drug-free workplace.
1155.640   Employee.
1155.645   Federal agency or agency.
1155.650   Grant.
1155.655   Individual.
1155.660   Recipient.
1155.665   State.
1155.670   Suspension.

    Authority: 41 U.S.C. 701 et seq.

    5. Part 1155 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``National Endowment for the 
Arts'' is added in its place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``NEA'' is added in its 
place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``NEA Chairman'' is 
added in its place wherever it occurs.
    d. ``[Agency head]'' is removed and ``NEA Chairman'' is added in 
its place wherever it occurs.
    6. Section 1155.310(c) is further amended by removing ``[CFR 
citation for the Federal Agency's regulations implementing Executive 
Order 12549 and Executive Order 12689]'' and adding ``45 CFR part 
1154'' in its place.
    7. Section 1155.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``45 CFR part 1157'' in its place.

NATIONAL FOUNDATION ON THE ARTS AND HUMANITIES

National Endowment for the Humanities

45 CFR Part 1169 and 1173

RIN 3136-AA25

FOR FURTHER INFORMATION CONTACT: Laura S. Nelson, Assistant General 
Counsel, National Endowment for the Humanities, 1100 Pennsylvania 
Avenue, NW., Room 530, Washington, DC, 20506, (202) 606-8322.

List of Subjects

45 CFR Part 1169

    Administrative practice and procedure, Debarment and suspension, 
Grant programs, Reporting and recordkeeping requirements.

45 CFR Part 1173

    Administrative practice and procedure, Drug abuse, Grant programs, 
Reporting and recordkeeping requirements.

    Dated: June 15, 2001.
Laura S. Nelson,
Assistant General Counsel.
    Accordingly, as set forth in the common preamble, 45 CFR chapter XI 
is proposed to be amended as follows.
    1. Part 1169 is revised to read as set forth in instruction 1 at 
the end of the common preamble.

PART 1169--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)

Sec.
1169.25   How is this part organized?
1169.50   How is this part written?
1169.75   Do terms in this part have special meanings?
Subpart A--General
1169.100   What does this part do?
1169.105   Does this part apply to me?
1169.110   What is the purpose of the nonprocurement debarment and 
suspension system?
1169.115   How does an exclusion restrict a person's involvement in 
covered transactions?
1169.120   May we grant an exception to let an excluded person 
participate in a covered transaction?
1169.125   Does an exclusion under the nonprocurement system affect 
a person's eligibility to participate in Federal procurement 
contracts?
1169.130   Does an exclusion under the Federal procurement system 
affect a person's eligibility to participate in nonprocurement 
transactions?
1169.135   May the NEH exclude a person who is not currently 
participating in a nonprocurement transaction?
1169.140   How do I know if a person is excluded?
1169.145   Does this part cover persons who are disqualified as well 
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
1169.200   What is a covered transaction?
1169.205   Why is it important to know if a particular transaction 
is a covered transaction?
1169.210   Which nonprocurement transactions are covered 
transactions?
1169.215   Which nonprocurement transactions are not covered 
transactions?
1169.220   Are any procurement contracts included as covered 
transactions?
1169.225   How do I know if a transaction that I may participate in 
is a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions 
Doing Business With Other Persons
1169.300   May I enter into a covered transaction with an excluded 
or disqualified person?
1169.305   What must I do if a Federal agency excludes a person with 
whom I am already doing business in a covered transaction?
1169.310   May I use the services of an excluded person under a 
covered transaction?
1169.315   Must I verify that principals of my covered transactions 
are eligible to participate?
1169.320   What happens if I do business with an excluded person in 
a covered transaction?
1169.325   What requirements must I pass down to persons at lower 
tiers with whom I intend to do business?

Disclosing Information--Primary Tier Participants

1169.330   What information must I provide before entering into a 
covered transaction with the NEH?
1169.335   If I disclose unfavorable information required under 
Sec. 1169.330 will I be prevented from entering into the 
transaction?
1169.340   What happens if I fail to disclose the information 
required under Sec. 1169.330?
1169.345   What must I do if I learn of the information required 
under Sec. 1169.330 after entering into a covered transaction with 
the NEH?

Disclosing Information--Lower Tier Participants

1169.350   What information must I provide to a higher tier 
participant before entering into a covered transaction with that 
participant?
1169.355   What happens if I fail to disclose the information 
required under Sec. 1169.350?
1169.360   What must I do if I learn of information required under 
Sec. 1169.350 after entering into a covered transaction with a 
higher tier participant?
Subpart D--Responsibilities of NEH Officials Regarding Transactions
1169.400   May I enter into a transaction with an excluded or 
disqualified person?
1169.405   May I enter into a covered transaction with a participant 
if a principal of the transaction is excluded?
1169.410   May I approve a participant's use of the services of an 
excluded person?
1169.415   What must I do if a Federal agency excludes the 
participant or a principal after I enter into a covered transaction?
1169.420   May I approve a transaction with an excluded or 
disqualified person at a lower tier?

[[Page 3360]]

1169.425   When do I check to see if a person is excluded or 
disqualified?
1169.430   How do I check to see if a person is excluded or 
disqualified?
1169.435   What must I require of a primary tier participant?
1169.440   What method do I use to communicate requirements to 
participants?
1169.445   What action may I take if a primary tier participant 
knowingly does business with an excluded or disqualified person?
1169.450   What action may I take if a primary tier participant 
fails to disclose the information required under Sec. 1169.330?
1169.455   What may I do if a lower tier participant fails to 
disclose the information required under Sec. 1169.350 to the next 
higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From 
Federal Procurement and Nonprocurement Programs
1169.500   What is the purpose of the List?
1169.505   Who uses the List?
1169.510   Who maintains the List?
1169.515   What specific information is on the List?
1169.520   Who gives the GSA the information that it puts on the 
List?
1169.525   Whom do I ask if I have questions about a person on the 
List?
1169.530   Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment 
Actions
1169.600   How do suspension and debarment actions start?
1169.605   How does suspension differ from debarment?
1169.610   What procedures does the NEH use in suspension and 
debarment actions?
1169.615   How does the NEH notify a person of suspension and 
debarment actions?
1169.620   Do Federal agencies coordinate suspension and debarment 
actions?
1169.625   What is the scope of a suspension or debarment action?
1169.630   May the NEH impute the conduct of one person to another?
1169.635   May the NEH settle a debarment or suspension action?
1169.640   May a settlement include a voluntary exclusion?
1169.645   Do other Federal agencies know if the NEH agrees to a 
voluntary exclusion?
Subpart G--Suspension
1169.700   When may the suspending official issue a suspension?
1169.705   What does the suspending official consider in issuing a 
suspension?
1169.710   When does a suspension take effect?
1169.715   What notice does the suspending official give me if I am 
suspended?
1169.720   How may I contest a suspension?
1169.725   How much time do I have to contest a suspension?
1169.730   What information must I provide to the suspending 
official if I contest a suspension?
1169.735  Under what conditions do I get an additional opportunity 
to challenge the facts on which the suspension is based?
1169.740  Are suspension proceedings formal?
1169.745  Is a record made of fact-finding proceedings?
1169.750  What does the suspending official consider in deciding 
whether to continue or terminate my suspension?
1169.755  When will I know whether the suspension is continued or 
terminated?
1169.760  How long may my suspension last?
Subpart H--Debarment
1169.800  What are the causes for debarment?
1169.805  What notice does the debarring official give me if I am 
proposed for debarment?
1169.810  When does a debarment take effect?
1169.815  How may I contest a proposed debarment?
1169.820  How much time do I have to contest a proposed debarment?
1169.825  What information must I provide to the debarring official 
if I contest a proposed debarment?
1169.830  Under what conditions do I get an additional opportunity 
to challenge the facts on which the proposed debarment is based?
1169.835  Are debarment proceedings formal?
1169.840  Is a record made of fact-finding proceedings?
1169.845  What does the debarring official consider in deciding 
whether to debar me?
1169.850  What is the standard of proof in a debarment action?
1169.855  Who has the burden of proof in a debarment action?
1169.860  What factors may influence the debarring official's 
decision?
1169.865  How long may my debarment last?
1169.870  When do I know if the debarring official debars me?
1169.875  May I ask the debarring official to reconsider a decision 
to debar me?
1169.880  What factors may influence the debarring official during 
reconsideration?
1169.885  May the debarring official extend a debarment?
Subpart I--Definitions
1169.900  Adequate evidence.
1169.905  Affiliate.
1169.910  Agency.
1169.915  Agent or representative.
1169.920  Civil judgment.
1169.925  Conviction.
1169.930  Debarment.
1169.935  Debarring official.
1169.940  Disqualified.
1169.945  Excluded or exclusion.
1169.950  Indictment.
1169.955  Ineligible or ineligibility.
1169.960  Legal proceedings.
1169.965  List of Parties Excluded or Disqualified From Federal 
Procurement and Nonprocurement Programs.
1169.970  Nonprocurement transaction.
1169.975  Notice.
1169.980  Participant.
1169.985  Person.
1169.990  Preponderance of the evidence.
1169.995  Principal.
1169.1000  Respondent.
1169.1005  State.
1169.1010  Suspending official.
1169.1015  Suspension.
1169.1020  Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]

Appendix to Part 1169--Covered Transactions

    Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O. 12698 (3 
CFR, 1989 Comp., p. 235); sec. 2455, Pub. L. 103-355, 108 Stat. 3327 
(31 U.S.C. 6101 note); 20 U.S.C. 959(a)(1).

    2. Part 1169 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``NEH'' is added in its place 
wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``NEH'' is added in its 
place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``NEH Assistant 
General Counsel'' is added in its place wherever it occurs.
    3. Section 1169.440 is added to read as follows:


Sec. 1169.440  What method do I use to communicate requirements to 
participants?

    To communicate the requirements, you must include a term or 
condition in the transaction requiring the participants' compliance 
with subpart C of this part and requiring them to include a similar 
term or condition in lower-tier covered transactions.
    4. Part 1173 is added to read as set forth in instruction 2 at the 
end of the common preamble.

PART 1173--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE 
(FINANCIAL ASSISTANCE)

Subpart A--Purpose and Coverage
Sec.
1173.100  What does this part do?
1173.105  Does this part apply to me?
1173.110  Are any of my Federal assistance awards exempt from this 
part?
1173.115  Does this part affect the Federal contracts that I 
receive?
Subpart B--Requirements for Recipients Other Than Individuals
1173.200  What must I do to comply with this part?
1173.205  What must I include in my drug-free workplace statement?
1173.210  To whom must I distribute my drug-free workplace 
statement?
1173.215  What must I include in my drug-free awareness program?

[[Page 3361]]

1173.220  By when must I publish my drug-free workplace statement 
and establish my drug-free awareness program?
1173.225  What actions must I take concerning employees who are 
convicted of drug violations in the workplace?
1173.230  How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
1173.300   What must I do to comply with this part if I am an 
individual recipient?
1173.301  [Reserved]
Subpart D--Responsibilities of NEH Awarding Officials
1173.400  What are my responsibilities as an NEH awarding official?
Subpart E--Violations of This Part and Consequences
1173.500  How are violations of this part determined for recipients 
other than individuals?
1173.505  How are violations of this part determined for recipients 
who are individuals?
1173.510  What actions will the Federal Government take against a 
recipient determined to have violated this part?
1173.515  Are there any exceptions to those actions?
Subpart F--Definitions
1173.605  Award.
1173.610  Controlled substance.
1173.615  Conviction.
1173.620  Cooperative agreement.
1173.625  Criminal drug statute.
1173.630  Debarment.
1173.635  Drug-free workplace.
1173.640  Employee.
1173.645  Federal agency or agency.
1173.650  Grant.
1173.655  Individual.
1173.660  Recipient.
1173.665  State.
1173.670  Suspension.

    Authority: 41 U.S.C. 701, et seq.; 20 U.S.C. 959(a)(1).

    5. Part 1173 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``NEH'' is added in its place 
wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``NEH'' is added in its 
place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``NEH Assistant 
General Counsel'' is added in its place wherever it occurs.
    d. ``[Agency head]'' is removed and ``NEH Assistant General 
Counsel'' is added in its place wherever it occurs.
    6. Section 1173.510(c) is further amended by removing ``[CFR 
citation for the Federal agency's regulations implementing Executive 
Order 12549 and Executive Order 12689]'' and adding ``45 CFR part 
1169'' in its place.
    7. Section 1173.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``45 CFR part 1174'' in its place.

NATIONAL FOUNDATION ON THE ARTS AND HUMANITIES

Institute of Museum and Library Services

45 CFR Parts 1185 and 1186

RIN 3137-AA14

FOR FURTHER INFORMATION CONTACT: Nancy E. Weiss, General Counsel, 
Institute of Museum and Library Services, 1100 Pennsylvania Avenue, 
NW., Suite 802, Washington, DC 20506; Telephone: (202) 606-5414; E-
mail: [email protected].

List of Subjects

45 CFR Part 1185

    Administrative practice and procedure, Debarment and suspension, 
Government contracts, Grant programs, Loan programs, Reporting and 
recordkeeping requirements.

45 CFR Part 1186

    Administrative practice and procedure, Drug abuse, Grant programs, 
Reporting and recordkeeping requirements.

    Dated: August 10, 2001.
Robert S. Martin,
Director, Institute of Museum and Library Services.

    For the reasons stated in the preamble, the Institute of Museum and 
Library Services proposes to amend 45 CFR chapter XI as follows:
    1. Part 1185 is revised to read as set forth in instruction 1 at 
the end of the common preamble.

PART 1185--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)

Sec.
1185.25  How is this part organized?
1185.50  How is this part written?
1185.75  Do terms in this part have special meanings?
Subpart A--General
1185.100  What does this part do?
1185.105  Does this part apply to me?
1185.110  What is the purpose of the nonprocurement debarment and 
suspension system?
1185.115  How does an exclusion restrict a person's involvement in 
covered transactions?
1185.120  May we grant an exception to let an excluded person 
participate in a covered transaction?
1185.125  Does an exclusion under the nonprocurement system affect a 
person's eligibility to participate in Federal procurement 
contracts?
1185.130  Does an exclusion under the Federal procurement system 
affect a person's eligibility to participate in nonprocurement 
transactions?
1185.135  May the Institute of Museum and Library Services exclude a 
person who is not currently participating in a nonprocurement 
transaction?
1185.140  How do I know if a person is excluded?
1185.145  Does this part cover persons who are disqualified as well 
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
1185.200  What is a covered transaction?
1185.205  Why is it important to know if a particular transaction is 
a covered transaction?
1185.210  Which nonprocurement transactions are covered 
transactions?
1185.215  Which nonprocurement transactions are not covered 
transactions?
1185.220  Are any procurement contracts included as covered 
transactions?
1185.225  How do I know if a transaction in which I may participate 
is a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions 
Doing Business With Other Persons
1185.300  May I enter into a covered transaction with an excluded or 
disqualified person?
1185.305  What must I do if a Federal agency excludes a person with 
whom I am already doing business in a covered transaction?
1185.310  May I use the services of an excluded person under a 
covered transaction?
1185.315  Must I verify that principals of my covered transactions 
are eligible to participate?
1185.320  What happens if I do business with an excluded person in a 
covered transaction?
1185.325  What requirements must I pass down to persons at lower 
tiers with whom I intend to do business?

Disclosing Information--Primary Tier Participants

1185.330  What information must I provide before entering into a 
covered transaction with the Institute of Museum and Library 
Services?
1185.335  If I disclose unfavorable information required under 
Sec. 1185.330 will I be prevented from entering into the 
transaction?
1185.340  What happens if I fail to disclose the information 
required under Sec. 1185.330?
1185.345  What must I do if I learn of the information required 
under Sec. 1185.330 after entering into a covered transaction with 
the Institute of Museum and Library Services?

Disclosing information--Lower Tier Participants

1185.350  What information must I provide to a higher tier 
participant before entering into a covered transaction with that 
participant?

[[Page 3362]]

1185.355  What happens if I fail to disclose the information 
required under Sec. 1185.350?
1185.360  What must I do if I learn of information required under 
Sec. 1185.350 after entering into a covered transaction with a 
higher tier participant?
Subpart D--Responsibilities of Institute of Museum and Library Services 
Officials Regarding Transactions
1185.400  May I enter into a transaction with an excluded or 
disqualified person?
1185.405  May I enter into a covered transaction with a participant 
if a principal of the transaction is excluded?
1185.410  May I approve a participant's use of the services of an 
excluded person?
1185.415  What must I do if a Federal agency excludes the 
participant or a principal after I enter into a covered transaction?
1185.420  May I approve a transaction with an excluded or 
disqualified person at a lower tier?
1185.425  When do I check to see if a person is excluded or 
disqualified?
1185.430  How do I check to see if a person is excluded or 
disqualified?
1185.435  What must I require of a primary tier participant?
1185.440  What method do I use to communicate those requirements to 
participants?
1185.445  What action may I take if a primary tier participant 
knowingly does business with an excluded or disqualified person?
1185.450  What action may I take if a primary tier participant fails 
to disclose the information required under Sec. 1185.330?
1185.455  What may I do if a lower tier participant fails to 
disclose the information required under Sec. 1185.350 to the next 
higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From 
Federal Procurement and Nonprocurement Programs
1185.500  What is the purpose of the List?
1185.505  Who uses the List?
1185.510  Who maintains the List?
1185.515  What specific information is on the List?
1185.520  Who gives the GSA the information that it puts on the 
List?
1185.525  Whom do I ask if I have questions about a person on the 
List?
1185.530  Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment 
Actions
1185.600  How do suspension and debarment actions start?
1185.605  How does suspension differ from debarment?
1185.610  What procedures does the Institute of Museum and Library 
Services use in suspension and debarment actions?
1185.615  How does the Institute of Museum and Library Services 
notify a person of suspension and debarment actions?
1185.620  Do Federal agencies coordinate suspension and debarment 
actions?
1185.625  What is the scope of a suspension or debarment action?
1185.630  May the Institute of Museum and Library Services impute 
the conduct of one person to another?
1185.635  May the Institute of Museum and Library Services settle a 
debarment or suspension action?
1185.640  May a settlement include a voluntary exclusion?
1185.645  Do other Federal agencies know if the Institute of Museum 
and Library Services agrees to a voluntary exclusion?
Subpart G--Suspension
1185.700  When may the suspending official issue a suspension?
1185.705  What does the suspending official consider in issuing a 
suspension?
1185.710  When does a suspension take effect?
1185.715  What notice does the suspending official give me if I am 
suspended?
1185.720  How may I contest a suspension?
1185.725  How much time do I have to contest a suspension?
1185.730  What information must I provide to the suspending official 
if I contest a suspension?
1185.735  Under what conditions do I get an additional opportunity 
to challenge the facts on which the suspension is based?
1185.740  Are suspension proceedings formal?
1185.745  Is a record made of fact-finding proceedings?
1185.750  What does the suspending official consider in deciding 
whether to continue or terminate my suspension?
1185.755  When will I know whether the suspension is continued or 
terminated?
1185.760  How long may my suspension last?
Subpart H--Debarment
1185.800  What are the causes for debarment?
1185.805  What notice does the debarring official give me if I am 
proposed for debarment?
1185.810  When does a debarment take effect?
1185.815  How may I contest a proposed debarment?
1185.820  How much time do I have to contest a proposed debarment?
1185.825  What information must I provide to the debarring official 
if I contest a proposed debarment?
1185.830  Under what conditions do I get an additional opportunity 
to challenge the facts on which the proposed debarment is based?
1185.835  Are debarment proceedings formal?
1185.840  Is a record made of fact-finding proceedings?
1185.845  What does the debarring official consider in deciding 
whether to debar me?
1185.850  What is the standard of proof in a debarment action?
1185.855  Who has the burden of proof in a debarment action?
1185.860  What factors may influence the debarring official's 
decision?
1185.865  How long may my debarment last?
1185.870  When do I know if the debarring official debars me?
1185.875  May I ask the debarring official to reconsider a decision 
to debar me?
1185.880  What factors may influence the debarring official during 
reconsideration?
1185.885  May the debarring official extend a debarment?
Subpart I--Definitions
1185.900  Adequate evidence.
1185.905  Affiliate.
1185.910  Agency.
1185.915  Agent or representative.
1185.920  Civil judgment.
1185.925  Conviction.
1185.930  Debarment.
1185.935  Debarring official.
1185.940  Disqualified.
1185.945  Excluded or exclusion.
1185.950  Indictment.
1185.955  Ineligible or ineligibility.
1185.960  Legal proceedings.
1185.965  List of Parties Excluded or Disqualified From Federal 
Procurement and Nonprocurement Programs.
1185.970  Nonprocurement transaction.
1185.975  Notice.
1185.980  Participant
1185.985   Person.
1185.990  Preponderance of the evidence.
1185.995  Principal.
1185.1000  Respondent.
1185.1005  State.
1185.1010  Suspending official.
1185.1015  Suspension.
1185.1020  Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]

Appendix to Part 1185--Covered Transactions

    Authority: 20 U.S.C. 9101 et seq.; Sec. 2455 Pub.L. 103-355, 108 
Stat. 311867 (31 U.S.C. 6101 note); E.O. 12549 (3 CFR,1986 Comp., 
p.189); E.O. 12689 (3 CFR, 1989 Comp., p. 235).
    2. Part 1185 is further amended as set forth below:
    a. ``[Agency noun]'' is removed and ``Institute of Museum and 
Library Services'' is added in its place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``IMLS'' is added in its 
place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``Director, 
Institute of Museum and Library Services'' is added in its place 
wherever it occurs.
    3. Section 1185.440 is added to read as follows:


Sec. 1185.440  What method do I use to communicate requirements to 
participants?

    To communicate the requirements, you must include a term or 
condition in the transaction requiring the participant's compliance 
with subpart C of this part and requiring them to

[[Page 3363]]

include a similar term or condition in lower-tier covered transactions.
    4. Part 1186 is added to read as set forth in instruction 2 at the 
end of the common preamble.

PART 1186--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE 
(FINANCIAL ASSISTANCE)

Subpart A--Purpose and Coverage
Sec.
1186.100  What does this part do?
1186.105  Does this part apply to me?
1186.110  Are any of my Federal assistance awards exempt from this 
part?
1186.115  Does this part affect the Federal contracts that I 
receive?
Subpart B--Requirements for Recipients Other Than Individuals
1186.200  What must I do to comply with this part?
1186.205  What must I include in my drug-free workplace statement?
1186.210  To whom must I distribute my drug-free workplace 
statement?
1186.215  What must I include in my drug-free awareness program?
1186.220  By when must I publish my drug-free workplace statement 
and establish my drug-free awareness program?
1186.225  What actions must I take concerning employees who are 
convicted of drug violations in the workplace?
1186.230  How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
1186.300  What must I do to comply with this part if I am an 
individual recipient?
1186.301  [Reserved]
Subpart D--Responsibilities of Institute of Museum and Library Services 
Awarding Officials
1186.400  What are my responsibilities as an Institute of Museum and 
Library Services awarding official?
Subpart E--Violations of This Part and Consequences
1186.500  How are violations of this part determined for recipients 
other than individuals?
1186.505  How are violations of this part determined for recipients 
who are individuals?
1186.510  What actions will the Federal Government take against a 
recipient determined to have violated this part?
1186.515  Are there any exceptions to those actions?
Subpart F--Definitions
1186.605   Award.
1186.610  Controlled substance.
1186.615  Conviction.
1186.620  Cooperative agreement.
1186.625  Criminal drug statute.
1186.630  Debarment.
1186.635  Drug-free workplace.
1186.640  Employee.
1186.645  Federal agency or agency.
1186.650  Grant.
1186.655  Individual.
1186.660  Recipient.
1186.665  State.
1186.670  Suspension.

    Authority: 41 U.S.C. 701 et seq.

    5. Part 1186 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``Institute of Museum and 
Library Services'' is added in its place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``IMLS'' is added in its 
place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``Director, 
Institute of Museum and Library Services or designee'' is added in its 
place wherever it occurs.
    d. ``[Agency head]'' is removed and ``Director, Institute of Museum 
and Library Services'' is added in its place wherever it occurs.
    6. Section 1186.310(c) is further amended by removing ``[CFR 
citation for the Federal Agency's regulations implementing Executive 
Order 12549 and Executive Order 12689]'' and adding ``45 CFR part 
1185'' in its place.
    7. Section 1186.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``45 CFR part 1183'' in its place.

CORPORATION FOR NATIONAL AND COMMUNITY SERVICE

45 CFR Parts 2542 and 2545

RIN 3045-AA28

FOR FURTHER INFORMATION CONTACT: Suzanne Dupre, Office of General 
Counsel, Corporation for National and Community Service, Room 8200, 
1201 New York Ave., NW., Washington, DC 20525, (202) 606-5000 ext. 396, 
e-mail: [email protected].

List of Subjects

45 CFR Part 2542

    Administrative practice and procedure, Debarment and suspension, 
Grant programs, Reporting and recordkeeping requirements.

45 CFR Part 2545

    Administrative practice and procedure, Drug abuse, Grant programs, 
Reporting and recordkeeping requirements.

    Dated: May 31, 2001.
Wendy Zenker,
Chief Operating Officer, Corporation for National and Community 
Service.

    Accordingly, as set forth in the common preamble, the Corporation 
for National and Community Service proposes to amend 45 CFR chapter XXV 
as follows:
    1. Part 2542 is revised to read as set forth in instruction 1 at 
the end of the common preamble.

PART 2542--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)

Sec.
2542.25  How is this part organized?
2542.50  How is this part written?
2542.75  Do terms in this part have special meanings?
Subpart A--General
2542.100   What does this part do?
2542.105  Does this part apply to me?
2542.110  What is the purpose of the nonprocurement debarment and 
suspension system?
2542.115  How does an exclusion restrict a person's involvement in 
covered transactions?
2542.120  May we grant an exception to let an excluded person 
participate in a covered transaction?
2542.125  Does an exclusion under the nonprocurement system affect a 
person's eligibility to participate in Federal procurement 
contracts?
2542.130  Does an exclusion under the Federal procurement system 
affect a person's eligibility to participate in nonprocurement 
transactions?
2542.135  May the Corporation exclude a person who is not currently 
participating in a nonprocurement transaction?
2542.140  How do I know if a person is excluded?
2542.145  Does this part cover persons who are disqualified as well 
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
2542.200  What is a covered transaction?
2542.205  Why is it important to know if a particular transaction is 
a covered transaction?
2542.210  Which nonprocurement transactions are covered 
transactions?
2542.215  Which nonprocurement transactions are not covered 
transactions?
2542.220  Are any procurement contracts included as covered 
transactions?
2542.225  How do I know if a transaction that I may participate in 
is a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions 
Doing Business With Other Persons
2542.300  May I enter into a covered transaction with an excluded or 
disqualified person?
2542.305  What must I do if a Federal agency excludes a person with 
whom I am already doing business in a covered transaction?
2542.310  May I use the services of an excluded person under a 
covered transaction?

[[Page 3364]]

2542.315  Must I verify that principals of my covered transactions 
are eligible to participate?
2542.320  What happens if I do business with an excluded person in a 
covered transaction?
2542.325  What requirements must I pass down to persons at lower 
tiers with whom I intend to do business?

Disclosing Information--Primary Tier Participants

2542.330  What information must I provide before entering into a 
covered transaction with the Corporation?
2542.335  If I disclose unfavorable information required under 
Sec. 2542.330 will I be prevented from entering into the 
transaction?
2542.340  What happens if I fail to disclose the information 
required under Sec. 2542.330?
2542.345  What must I do if I learn of the information required 
under Sec. 2542.330 after entering into a covered transaction with 
the Corporation?

Disclosing Information--Lower Tier Participants

2542.350  What information must I provide to a higher tier 
participant before entering into a covered transaction with that 
participant?
2542.355  What happens if I fail to disclose the information 
required under Sec. 2542.350?
2542.360  What must I do if I learn of information required under 
Sec. 2542.350 after entering into a covered transaction with a 
higher tier participant?
Subpart D--Responsibilities of Corporation Officials Regarding 
Transactions
2542.400  May I enter into a transaction with an excluded or 
disqualified person?
2542.405  May I enter into a covered transaction with a participant 
if a principal of the transaction is excluded?
2542.410  May I approve a participant's use of the services of an 
excluded person?
2542.415  What must I do if a Federal agency excludes the 
participant or a principal after I enter into a covered transaction?
2542.420  May I approve a transaction with an excluded or 
disqualified person at a lower tier?
2542.425  When do I check to see if a person is excluded or 
disqualified?
2542.430  How do I check to see if a person is excluded or 
disqualified?
2542.435  What must I require of a primary tier participant?
2542.440  What method do I use to communicate requirements to 
primary tier participants?
2542.445  What action may I take if a primary tier participant 
knowingly does business with an excluded or disqualified person?
2542.450  What action may I take if a primary tier participant fails 
to disclose the information required under Sec. 2542.330?
2542.455  What may I do if a lower tier participant fails to 
disclose the information required under Sec. 2542.350 to the next 
higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From 
Federal Procurement and Nonprocurement Programs
2542.500  What is the purpose of the List?
2542.505  Who uses the List?
2542.510  Who maintains the List?
2542.515  What specific information is on the List?
2542.520  Who gives the GSA the information that it puts on the 
List?
2542.525  Whom do I ask if I have questions about a person on the 
List?
2542.530  Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment 
Actions
2542.600   How do suspension and debarment actions start?
2542.605  How does suspension differ from debarment?
2542.610  What procedures does the Corporation use in suspension and 
debarment actions?
2542.615  How does the Corporation notify a person of suspension and 
debarment actions?
2542.620  Do Federal agencies coordinate suspension and debarment 
actions?
2542.625  What is the scope of a suspension or debarment action?
2542.630  May the Corporation impute the conduct of one person to 
another?
2542.635  May the Corporation settle a debarment or suspension 
action?
2542.640  May a settlement include a voluntary exclusion?
2542.645  Do other Federal agencies know if the Corporation agrees 
to a voluntary exclusion?
Subpart G--Suspension
2542.700  When may the suspending official issue a suspension?
2542.705  What does the suspending official consider in issuing a 
suspension?
2542.710  When does a suspension take effect?
2542.715  What notice does the suspending official give me if I am 
suspended?
2542.720  How may I contest a suspension?
2542.725  How much time do I have to contest a suspension?
2542.730  What information must I provide to the suspending official 
if I contest a suspension?
2542.735  Under what conditions do I get an additional opportunity 
to challenge the facts on which the suspension is based?
2542.740  Are suspension proceedings formal?
2542.745  Is a record made of fact-finding proceedings?
2542.750  What does the suspending official consider in deciding 
whether to continue or terminate my suspension?
2542.755  When will I know whether the suspension is continued or 
terminated?
2542.760  How long may my suspension last?
Subpart H--Debarment
2542.800  What are the causes for debarment?
2542.805  What notice does the debarring official give me if I am 
proposed for debarment?
2542.810  When does a debarment take effect?
2542.815  How may I contest a proposed debarment?
2542.820  How much time do I have to contest a proposed debarment?
2542.825  What information must I provide to the debarring official 
if I contest a proposed debarment?
2542.830  Under what conditions do I get an additional opportunity 
to challenge the facts on which the proposed debarment is based?
2542.835  Are debarment proceedings formal?
2542.840  Is a record made of fact-finding proceedings?
2542.845  What does the debarring official consider in deciding 
whether to debar me?
2542.850  What is the standard of proof in a debarment action?
2542.855  Who has the burden of proof in a debarment action?
2542.860  What factors may influence the debarring official's 
decision?
2542.865  How long may my debarment last?
2542.870  When do I know if the debarring official debars me?
2542.875  May I ask the debarring official to reconsider a decision 
to debar me?
2542.880  What factors may influence the debarring official during 
reconsideration?
2542.885  May the debarring official extend a debarment?
Subpart I--Definitions
2542.900  Adequate evidence.
2542.905  Affiliate.
2542.910  Agency.
2542.915  Agent or representative.
2542.920  Civil judgment.
2542.925  Conviction.
2542.930  Debarment.
2542.935  Debarring official.
2542.940  Disqualified.
2542.945  Excluded or exclusion.
2542.950  Indictment.
2542.955  Ineligible or ineligibility.
2542.960  Legal proceedings.
2542.965  List of Parties Excluded or Disqualified From Federal 
Procurement and Nonprocurement Programs.
2542.970  Nonprocurement transaction.
2542.975  Notice.
2542.980  Participant.
2542.985  Person.
2542.990  Preponderance of the evidence.
2542.995  Principal.
2542.1000  Respondent.
2542.1005  State.
2542.1010  Suspending official.
2542.1015  Suspension.
2542.1020  Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]

Appendix to Part 2542--Covered Transactions

    Authority: 42 U.S.C. 12651(c); sec. 2455, Pub. L. 103-355, 108 
Stat. 3327 (31 U.S.C.

[[Page 3365]]

6101 note); E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O. 12689 (3 
CFR, 1989 Comp., p. 235).

    2. Part 2542 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``Corporation'' is added in its 
place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``Corporation'' is added 
in its place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``Corporation Chief 
Executive Officer or designee'' is added in its place wherever it 
occurs.
    3. Section 2542.440 is added to read as follows:


Sec. 2542.440  What method do I use to communicate requirements to 
participants?

    To communicate the requirements, you must include a term or 
condition in the transaction requiring the participant's compliance 
with subpart C of this part and requiring them to include a similar 
term or condition in lower-tier covered transactions.
    4. Part 2545 is added to read as set forth in instruction 2 at the 
end of the common preamble.

PART 2545--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE 
(FINANCIAL ASSISTANCE)

Subpart A--Purpose and Coverage
Sec.
2545.100  What does this part do?
2545.105  Does this part apply to me?
2545.110  Are any of my Federal assistance awards exempt from this 
part?
2545.115  Does this part affect the Federal contracts that I 
receive?
Subpart B--Requirements for Recipients Other Than Individuals
2545.200  What must I do to comply with this part?
2545.205  What must I include in my drug-free workplace statement?
2545.210  To whom must I distribute my drug-free workplace 
statement?
2545.215  What must I include in my drug-free awareness program?
2545.220  By when must I publish my drug-free workplace statement 
and establish my drug-free awareness program?
2545.225  What actions must I take concerning employees who are 
convicted of drug violations in the workplace?
2545.230  How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
2545.300  What must I do to comply with this part if I am an 
individual recipient?
2545.301  [Reserved]
Subpart D--Responsibilities of Corporation Awarding Officials
2545.400  What are my responsibilities as a Corporation awarding 
official?
Subpart E--Violations of This Part and Consequences
2545.500  How are violations of this part determined for recipients 
other than individuals?
2545.505  How are violations of this part determined for recipients 
who are individuals?
2545.510  What actions will the Federal Government take against a 
recipient determined to have violated this part?
2545.515  Are there any exceptions to those actions?
Subpart F--Definitions
2545.605  Award.
2545.610  Controlled substance.
2545.615  Conviction.
2545.620  Cooperative agreement.
2545.625  Criminal drug statute.
2545.630  Debarment.
2545.635  Drug-free workplace.
2545.640  Employee.
2545.645  Federal agency or agency.
2545.650  Grant.
2545.655  Individual.
2545.660  Recipient.
2545.665  State.
2545.670  Suspension.

    Authority: 41 U.S.C. 701, et seq.; 42 U.S.C. 12644 and 12651(c).

    5. Part 2545 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``Corporation'' is added in its 
place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``Corporation'' is added 
in its place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``Corporation Chief 
Executive Officer or designee'' is added in its place wherever it 
occurs.
    d. ``[Agency head]'' is removed and ``Corporation Chief Executive 
Officer'' is added in its place wherever it occurs.
    6. Section 2545.510(c) is further amended by removing ``[CFR 
citation for the Federal Agencies' regulations implementing Executive 
Order 12549 and Executive Order 12689]'' and adding ``45 CFR part 
2542'' in its place.
    7. Section 2545.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``45 CFR part 2541'' in its place.

DEPARTMENT OF TRANSPORTATION

49 CFR Parts 29 and 32

RIN 2105-AD07

FOR FURTHER INFORMATION CONTACT: Ladd Hakes, Office of the Senior 
Procurement Executive (M-62), 400 Seventh Street SW., Washington, DC 
20590, (202) 366-4268, e-mail: [email protected].

ADDITIONAL SUPPLEMENTARY INFORMATION: This part proposes additional 
debarment and suspension exception authority by including a paragraph 
(c) in Sec. 29.120 to allow any DOT debarring or suspending official to 
grant exceptions and make written determinations under that section. In 
addition, Sec. 29.440 proposes to use terms or conditions to the award 
transactions as a means to enforce exclusions under DOT transactions 
rather than written certifications. This alternative available under 
the common rule is more efficient that DOT's current certification 
process for prospective recipients and participants. This part also 
proposes to add a paragraph (d) to Sec. 29.520 requiring DOT officials, 
when providing information to GSA, to include their Operating 
Administration identifying code. This part also proposes to add a 
paragraph (b) to the definitions of a ``debarring official'' at 
Sec. 29.935 and ``suspending official'' at Sec. 29.1010 to include the 
head of a Departmental operating administration, with downward 
delegation authority. Finally, this proposed rule relocates the 
requirements for maintaining a drug-free workplace from 49 CFR part 29 
to 49 CFR part 32.

List of Subjects

49 CFR Part 29

    Administrative practice and procedure, Government contracts, Grant 
programs, Loan programs, Reporting and recordkeeping requirements.

49 CFR Part 32

    Administrative practice and procedure, Drug abuse, Grant programs, 
Reporting and recordkeeping requirements.

    Approved: November 2, 2001.
Norman Y. Mineta,
Secretary of Transportation.

    For the reasons stated in the common preamble, the Department of 
Transportation proposes to amend 49 CFR chapter I, as follows:
    1. Part 29 is revised to read as set forth in instruction 1 at the 
end of the common preamble.

PART 29--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)

Sec.
29.25   How is this part organized?
29.50   How is this part written?
29.75   Do terms in this part have special meanings?
Subpart A--General
29.100   What does this part do?
29.105   Does this part apply to me?
29.110   What is the purpose of the nonprocurement debarment and 
suspension system?

[[Page 3366]]

29.115   How does an exclusion restrict a person's involvement in 
covered transactions?
29.120   May we grant an exception to let an excluded person 
participate in a covered transaction?
29.125   Does an exclusion under the nonprocurement system affect a 
person's eligibility to participate in Federal procurement 
contracts?
29.130   Does an exclusion under the Federal procurement system 
affect a person's eligibility to participate in nonprocurement 
transactions?
29.135   May DOT exclude a person who is not currently participating 
in a nonprocurement transaction?
29.140   How do I know if a person is excluded?
29.145   Does this part cover persons who are disqualified as well 
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
29.200   What is a covered transaction?
29.205   Why is it important to know if a particular transaction is 
a covered transaction?
29.210   Which nonprocurement transactions are covered transactions?
29.215   Which nonprocurement transactions are not covered 
transactions?
29.220   Are any procurement contracts included as covered 
transactions?
29.225   How do I know if a transaction that I may participate in is 
a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions

Doing Business With Other Persons

29.300   May I enter into a covered transaction with an excluded or 
disqualified person?
29.305   What must I do if a Federal agency excludes a person with 
whom I am already doing business in a covered transaction?
29.310   May I use the services of an excluded person under a 
covered transaction?
29.315   Must I verify that principals of my covered transactions 
are eligible to participate?
29.320   What happens if I do business with an excluded person in a 
covered transaction?
29.325   What requirements must I pass down to persons at lower 
tiers with whom I intend to do business?

Disclosing Information--Primary Tier Participants

29.330   What information must I provide before entering into a 
covered transaction with DOT?
29.335   If I disclose unfavorable information required under 
Sec. 29.330 will I be prevented from entering into the transaction?
29.340   What happens if I fail to disclose the information required 
under Sec. 29.330?
29.345   What must I do if I learn of the information required under 
Sec. 29.330 after entering into a covered transaction with DOT?

Disclosing Information--Lower Tier Participants

29.350   What information must I provide to a higher tier 
participant before entering into a covered transaction with that 
participant?
29.355   What happens if I fail to disclose the information required 
under Sec. 29.350?
29.360   What must I do if I learn of information required under 
Sec. 29.350 after entering into a covered transaction with a higher 
tier participant?
Subpart D--Responsibilities of DOT Officials Regarding Transactions
29.400   May I enter into a transaction with an excluded or 
disqualified person?
29.405   May I enter into a covered transaction with a participant 
if a principal of the transaction is excluded?
29.410   May I approve a participant's use of the services of an 
excluded person?
29.415   What must I do if a Federal agency excludes the participant 
or a principal after I enter into a covered transaction?
29.420   May I approve a transaction with an excluded or 
disqualified person at a lower tier?
29.425   When do I check to see if a person is excluded or 
disqualified?
29.430   How do I check to see if a person is excluded or 
disqualified?
29.435   What must I require of a primary tier participant?
29.440   What method do I use to communicate those requirements to 
participants?
29.445   What action may I take if a primary tier participant 
knowingly does business with an excluded or disqualified person?
29.450   What action may I take if a primary tier participant fails 
to disclose the information required under Sec. 29.330?
29.455   What may I do if a lower tier participant fails to disclose 
the information required under Sec. 29.350 to the next higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From 
Federal Procurement and Nonprocurement Programs
29.500   What is the purpose of the List?
29.505   Who uses the List?
29.510   Who maintains the List?
29.515   What specific information is on the List?
29.520   Who gives the GSA the information that it puts on the List?
29.525   Whom do I ask if I have questions about a person on the 
List?
29.530   Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment 
Actions
29.600   How do suspension and debarment actions start?
29.605   How does suspension differ from debarment?
29.610   What procedures does DOT use in suspension and debarment 
actions?
29.615   How does DOT notify a person of suspension and debarment 
actions?
29.620   Do Federal agencies coordinate suspension and debarment 
actions?
29.625   What is the scope of a suspension or debarment action?
29.630   May DOT impute the conduct of one person to another?
29.635   May DOT settle a debarment or suspension action?
29.640   May a settlement include a voluntary exclusion?
29.645   Do other Federal agencies know if DOT agrees to a voluntary 
exclusion?
Subpart G--Suspension
29.700   When may the suspending official issue a suspension?
29.705   What does the suspending official consider in issuing a 
suspension?
29.710   When does a suspension take effect?
29.715   What notice does the suspending official give me if I am 
suspended?
29.720   How may I contest a suspension?
29.725   How much time do I have to contest a suspension?
29.730   What information must I provide to the suspending official 
if I contest a suspension?
29.735   Under what conditions do I get an additional opportunity to 
challenge the facts on which the suspension is based?
29.740   Are suspension proceedings formal?
29.745   Is a record made of fact-finding proceedings?
29.750   What does the suspending official consider in deciding 
whether to continue or terminate my suspension?
29.755   When will I know whether the suspension is continued or 
terminated?
29.760   How long may my suspension last?
Subpart H--Debarment
29.800   What are the causes for debarment?
29.805   What notice does the debarring official give me if I am 
proposed for debarment?
29.810   When does a debarment take effect?
29.815   How may I contest a proposed debarment?
29.820   How much time do I have to contest a proposed debarment?
29.825   What information must I provide to the debarring official 
if I contest a proposed debarment?
29.830   Under what conditions do I get an additional opportunity to 
challenge the facts on which the proposed debarment is based?
29.835   Are debarment proceedings formal?
29.840   Is a record made of fact-finding proceedings?
29.845   What does the debarring official consider in deciding 
whether to debar me?
29.850   What is the standard of proof in a debarment action?
29.855   Who has the burden of proof in a debarment action?
29.860   What factors may influence the debarring official's 
decision?
29.865   How long may my debarment last?
29.870   When do I know if the debarring official debars me?
29.875   May I ask the debarring official to reconsider a decision 
to debar me?
29.880   What factors may influence the debarring official during 
reconsideration?
29.885   May the debarring official extend a debarment?

[[Page 3367]]

Subpart I--Definitions
29.900   Adequate evidence.
29.905   Affiliate.
29.910   Agency.
29.915   Agent or representative.
29.920   Civil judgment.
29.925   Conviction.
29.930   Debarment.
29.935   Debarring official.
29.940   Disqualified.
29.945   Excluded or exclusion.
29.950   Indictment.
29.955   Ineligible or ineligibility.
29.960   Legal proceedings.
29.965   List of Parties Excluded or Disqualified from Federal 
Procurement and Nonprocurement Programs.
29.970   Nonprocurement transaction.
29.975   Notice.
29.980   Participant.
29.985   Person.
29.990   Preponderance of the evidence.
29.995   Principal.
29.1000   Respondent.
29.1005   State.
29.1010   Suspending official.
29.1015   Suspension.
29.1020   Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]

Appendix to Part 29--Covered Transactions

    Authority: Sec. 2455, Pub. L. 103-355, 108 Stat. 3327 (31 U.S.C. 
6101 note); E.O.11738 (3 CFR, 1973 Comp., p.799); E.O.12549 (3 CFR, 
1986 Comp., p. 189); E.O. 12689 (3 CFR, 1989 Comp., p. 235).

    2. Part 29 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``Department of 
Transportation'' is added in its place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``DOT'' is added in its 
place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``debarring or 
suspending official'' is added in its place wherever it occurs.
    3. Section 29.120 is further amended by adding a paragraph (c) to 
read as follows:


Sec. 29.120  May we grant an exception to an excluded person to 
participate in a covered transaction?

* * * * *
    (c) A debarring or suspending official may grant exceptions and 
make written determinations under this section.
    4. Section 29.440 is added to read as follows:


Sec. 29.440  What method do I use to communicate those requirements to 
participants?

    To communicate the requirement you must include a term or condition 
in the transaction requiring the participants' compliance with subpart 
C of this part and requiring them to include a similar term or 
condition in lower-tier covered transactions.
    5. Section 29.520 is further amended by removing the period at the 
end of paragraph (c)(4) and adding a semi-colon, and adding a paragraph 
(d) to read as follows:


Sec. 29.520.  Who gives the GSA the information that it puts on the 
List?

* * * * *
    (d) The DOT official's Operating Administration code, as follows: 
United States Coast Guard [DOT-USCG]; Federal Aviation Administration 
[DOT-FAA]; Federal Highway Administration [DOT-FHWA]; Federal Motor 
Carrier Safety Administration [DOT-FMCSA]; Federal Railway 
Administration [DOT-FRA]; Federal Transit Administration [DOT-FTA]; 
National Highway Traffic Safety Administration [DOT-NHTSA]; Research 
and Special Programs [DOT-RSPA]; Maritime Administration [DOT-MARAD]; 
and DOT (general) [DOT-OST].
    6. Section 29.935 is further amended by adding a paragraph (b) to 
read as follows:


Sec. 29.935  Debarring official.

* * * * *
    (b) For DOT ``debarring official'' means the designated head of a 
DOT operating administration, who may delegate any of his or her 
functions under this part and authorize successive delegations.
    7. Section 29.1010 is further amended by adding a paragraph (b) to 
read as follows:


Sec. 29.1010  Suspending official.

* * * * *
    (b) For DOT ``suspending official'' means the designated head of a 
DOT operating administration, who may delegate any of his or her 
functions under this part and authorize successive delegations.
    8. Part 32 is added to read as set forth in instruction 2 at the 
end of the common preamble.

PART 32--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE 
(FINANCIAL ASSISTANCE)

Subpart A--Purpose and Coverage
Sec.
32.100   What does this part do?
32.105   Does this part apply to me?
32.110   Are any of my Federal assistance awards exempt from this 
part?
32.115   Does this part affect the Federal contracts that I receive?
Subpart B--Requirements for Recipients Other Than Individuals
32.200   What must I do to comply with this part?
32.205   What must I include in my drug-free workplace statement?
32.210   To whom must I distribute my drug-free workplace statement?
32.215   What must I include in my drug-free awareness program?
32.220   By when must I publish my drug-free workplace statement and 
establish my drug-free awareness program?
32.225   What actions must I take concerning employees who are 
convicted of drug violations in the workplace?
32.230   How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
32.300   What must I do to comply with this part if I am an 
individual recipient?
32.301   [Reserved]
Subpart D--Responsibilities of DOT Awarding Officials
32.400   What are my responsibilities as a DOT awarding official?
Subpart E--Violations of This Part and Consequences
32.500   How are violations of this part determined for recipients 
other than individuals?
32.505   How are violations of this part determined for recipients 
who are individuals?
32.510   What actions will the Federal Government take against a 
recipient determined to have violated this part?
32.515   Are there any exceptions to those actions?
Subpart F--Definitions
32.605   Award.
32.610   Controlled substance.
32.615   Conviction.
32.620   Cooperative agreement.
32.625   Criminal drug statute.
32.630   Debarment.
32.635   Drug-free workplace.
32.640   Employee.
32.645   Federal agency or agency.
32.650   Grant.
32.655   Individual.
32.660   Recipient.
32.665   State.
32.670   Suspension.

    Authority: 41 U.S.C. 701 et seq.

    9. Part 32 is further amended as set forth below.
    a. ``[Agency noun]'' is removed and ``Department of 
Transportation'' is added in its place wherever it occurs.
    b. ``[Agency adjective]'' is removed and ``DOT'' is added in its 
place wherever it occurs.
    c. ``[Agency head or designee]'' is removed and ``Secretary of 
Transportation'' is added in its place wherever it occurs.
    d. ``[Agency head]'' is removed and ``Secretary of Transportation'' 
is added in its place wherever it occurs.

[[Page 3368]]

    10. Section 32.510 (c) is further amended by removing ``CFR 
citation for the Federal Agency's regulations implementing Executive 
Order 12549 and Executive Order 12689'' and adding ``49 CFR part 29'' 
in its place.
    11. Section 32.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]''and adding ``49 CFR part 18'' in its place.
[FR Doc. 02-1 Filed 1-22-02; 8:45 am]
BILLING CODES 6325-01, 3410-KS, 6450-01, 8025-01, 7510-01, 3510-FA, 
4191-02, 3180-02, 4710-05, 6116-01, 6051-01, 7025-01, 6117-01, 4510-23, 
6732-01, 5001-08, 4000-01, 7515-01, 8320-01, 6560-50, 6820-61, 4310-RF, 
6718-01, 4150-24, 7555-01, 7537-01, 7536-01, 7036-01, 6050-28, 4910-62P