[Federal Register Volume 70, Number 192 (Wednesday, October 5, 2005)]
[Proposed Rules]
[Pages 58175-58177]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-19965]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 29

[Docket OST-2005-22602]
RIN 2105-AD46


Debarment and Suspension (Nonprocurement) Requirements

AGENCY: Office of the Secretary (OST), DOT.

ACTION: Notice of proposed rulemaking (NPRM); request for comments.

-----------------------------------------------------------------------

SUMMARY: This proposal would amend Department of Transportation 
regulations implementing the governmentwide nonprocurement suspension 
and debarment requirements. Specifically, the DOT proposes to adopt the 
optional lower tier coverage prohibiting excluded parties from 
participating in subcontracts at tiers lower than the first tier below 
a covered nonprocurement transaction.

DATES: Comments must be received on or before November 4, 2005.

ADDRESSES: Mail or hand deliver comments to the U.S. Department of 
Transportation, Dockets Management Facility, Room PL-401, 400 Seventh 
Street, SW., Washington, DC 20590, or submit electronically at http://dms.dot.gov. All comments should include the docket number that appears 
in the heading of this document. All comments received will be 
available for examination and copying at the above address from 9 a.m. 
to 5 p.m., e.t., Monday through Friday, except Federal holidays. Those 
desiring notification of receipt of comments must include a self-
addressed, stamped postcard or you may print the acknowledgment page 
that appears after submitting comments electronically.

FOR FURTHER INFORMATION CONTACT: Ladd Hakes, Office of the Senior 
Procurement Executive, Office of Administration (M-61), (202) 366-4268, 
400 Seventh Street, SW., Washington, DC 20590-0001. Office hours are 
from 7:45 a.m. to 4:15 p.m. e.t., Monday through Friday, except Federal 
holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access and Filing

    You may submit or retrieve comments online through the Document 
Management System (DMS) at: http://dmses.dot.gov. Acceptable formats 
include: MS Word (versions 95 to 97), MS Word for Mac (versions 6 to 
8), Rich Text File (RTF), American Standard

[[Page 58176]]

Code Information Interchange (ASCII) (TXT), Portable Document Format 
(PDF), and WordPerfect (versions 7 to 8). The DMS is available 24 hours 
each day, 365 days each year. Electronic submission and retrieval help 
and guidelines are available under the help section of the Web site.
    An electronic copy of this document may also be downloaded by using 
a computer, modem and suitable communications software from the 
Government Printing Office's Electronic Bulletin Board Service at (202) 
512-1661. Internet users may also reach the Office of the Federal 
Register's home page at: http://www.nara.gov/fedreg and the Government 
Printing Office's Web page at: http://www.access.gpo.gov/nara.

Background

    On November 26, 2003, the DOT, along with twenty-nine other 
agencies, published its final rule implementing changes to the 
governmentwide debarment and suspension common rule (68 FR 66534). 
These regulations were intended to resolve unnecessary technical 
differences between suspensions and debarments in the procurement and 
nonprocurement systems, revise the existing governmentwide suspension 
and debarment regulations in a plain language style and format, and 
make other improvements consistent with the purpose of the suspension 
and debarment system. One of the changes made to the suspension and 
debarment rules included limiting the exclusion from a suspension or 
debarment to only the first procurement level. Under the previous 
governmentwide regulations, all executive agencies applied suspensions 
and debarments to all procurement levels. However, in the revised 
governmentwide suspension and debarment regulations, each agency was 
given the option of applying an exclusion from a suspension or 
debarment to levels below the first procurement level.
    This NPRM proposes to adopt the option to apply an exclusion under 
the suspension and debarment regulations to levels below the first 
procurement level. Many of the DOT programs involve billions of dollars 
in grants that are obligated to construction projects by States, 
localities, and other recipients. For instance, in fiscal year 2003 
alone, the DOT apportioned $24,129,858,248 to the States for highway 
construction under the Federal-aid Highway Program. Since Federal 
Highway Administration regulations governing the Federal-aid Highway 
Program require prime contractors to perform only 30 percent of the 
contract work themselves (less designated specialty items), a suspended 
or debarred contractor may continue to receive significant Federal-aid 
Highway work by continuing to obtain subcontracts. Moreover, suspended 
or debarred contractors may continue to participate in subcontracts for 
other DOT programs as well, such as the Federal Transit Program and the 
Federal-aid Airport Program. The ability of excluded contractors to 
continue receiving significant subcontracts makes these DOT programs 
highly vulnerable to fraud, waste, and abuse. As such, DOT is proposing 
to include the optional lower tier coverage for all DOT nonprocurement 
transactions.

Section-by-Section Analysis

Section 29.220 Are any Procurement Contracts Included as Covered 
Transactions?

    This NPRM would add a new paragraph (c) to this section to cover 
contracts that are awarded by any contractor, subcontractor, supplier, 
consultant, or its agent or representative in any transaction that is 
expected to equal or exceed $25,000.

Rulemaking Analyses and Notices

    All comments received before the close of business on the comment 
closing date indicated above will be considered and will be available 
for examination in the docket at the above address. Comments received 
after the comment closing date will be filed in the docket and will be 
considered to the extent practicable. In addition to late comments, the 
DOT will also continue to file relevant information in the docket as it 
becomes available after the comment period closing date, and interested 
persons should continue to examine the docket for new material. A final 
rule may be published at any time after close of the comment period.

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    The DOT has determined that this document does not propose a 
significant rule within the meaning of Executive Order 12866 or within 
the meaning of Department of Transportation regulatory policies and 
procedures. It is anticipated that the economic impact of this 
rulemaking would be minimal, since it would bring the DOT's regulations 
concerning the effect of a suspension and debarment back in line with 
the regulations that were in effect prior to November 26, 2003. These 
proposed changes would not adversely affect, in a material way, any 
sector of the economy. In addition, these changes would not interfere 
with any action taken or planned by another agency and would not 
materially alter the budgetary impact of any entitlements, grants, user 
fees, or loan programs. Consequently, a full regulatory evaluation is 
not required.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612) the Department has evaluated the effects of this 
proposed action on small entities and certifies that the proposed 
action would not have a significant economic impact on a substantial 
number of small entities. This proposal would bring the DOT's 
regulations concerning the effect of a suspension and debarment back in 
line with the regulations that were in effect prior to November 26, 
2003 by excluding persons who have been suspended or debarred from 
participating in transactions beneath the first procurement level under 
a nonprocurement transaction. The only parties that might be 
economically impacted are subcontractors which are suspended or 
debarred. Based on its experience in implementing suspension and 
debarment regulations, the Department concludes that a significant 
number of entities, regardless of size, are unlikely to be suspended or 
debarred. For these reasons, the DOT certifies that this action would 
not have a significant economic impact on a substantial number of small 
entities.

Unfunded Mandates Reform Act of 1995

    This proposed rule would not impose unfunded mandates as defined by 
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 
1995, 109 Stat. 48). Indeed, it does not impose any mandates. This 
proposed rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year (2 U.S.C. 1532).

Executive Order 13132 (Federalism Assessment)

    This proposed action has been analyzed in accordance with the 
principles and criteria contained in Executive Order 13132, and the DOT 
has determined that this proposed action would not have sufficient 
federalism implications to warrant the preparation of a federalism 
assessment. The DOT has also determined that this proposed action would 
not preempt any State law or State regulation or affect the

[[Page 58177]]

States' ability to discharge traditional State governmental functions.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number [Insert 
number], [Insert Program Name]. The regulations implementing Executive 
Order 12372 regarding intergovernmental consultation on Federal 
programs and activities [apply/do not apply] to this program.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et 
seq.), Federal agencies must obtain approval from the Office of 
Management and Budget (OMB) for each collection of information they 
conduct, sponsor, or require through regulations. The DOT has 
determined that this proposal does not contain collection of 
information requirements for the purposes of the PRA.

National Environmental Policy Act

    The agency has analyzed this proposed action for the purpose of the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321) and has 
determined that this proposed action would not have any effect on the 
quality of the environment.

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each 
regulatory action listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in April and October of each year. The RIN contained in the heading of 
this document can be used to cross reference this action with the 
Unified Agenda.

List of Subjects in 49 CFR Part 29

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

    Issued this 22nd day of September, 2005, at Washington, DC.
Norman Y. Mineta,
Secretary of Transportation.
    In consideration of the foregoing, the DOT proposes to amend title 
49, Code of Federal Regulations, part 29, as set forth below:

PART 29--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)

    1. The authority citation for part 29 continues to read as follows:

    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. In Sec.  29.220, add paragraph (c) to read as follows:


Sec.  29.220  Are any procurement transactions included as covered 
transactions?

* * * * *
    (c) 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 DOT 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.]
[FR Doc. 05-19965 Filed 10-4-05; 8:45 am]
BILLING CODE 4910-62-P