[Federal Register Volume 71, Number 184 (Friday, September 22, 2006)]
[Proposed Rules]
[Pages 55354-55356]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-8022]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 71, No. 184 / Friday, September 22, 2006 / 
Proposed Rules  

[[Page 55354]]



DEPARTMENT OF COMMERCE

2 CFR Part 1326

15 CFR Parts 14 and 26

[Docket No. 060830228-6228-01]
RIN 0605-AA23


Department of Commerce Implementation of OMB Guidance on 
Nonprocurement Debarment and Suspension

AGENCY: Department of Commerce.

ACTION: Proposed rule.

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SUMMARY: The Department of Commerce (Department) proposes to remove its 
regulations implementing the government-wide common rule on 
nonprocurement debarment and suspension, currently codified at Title 
15, and to adopt the Office of Management and Budget's (OMB) guidance 
at Title 2 of the Code of Federal Regulations (CFR) published in the 
Federal Register on August 31, 2005. This proposed regulatory action 
would implement the OMB's initiative to streamline and consolidate all 
federal regulations on nonprocurement debarment and suspension into one 
part of the CFR. The Department does not intend to modify any of its 
current policy.

DATES: Submit comments on the proposed regulatory action by October 23, 
2006.

ADDRESSES: Comments on this proposed action should be sent to Gary 
Johnson, U.S. Department of Commerce, Room H-6054, 14th & Constitution 
Avenue, NW., Washington, DC 20230.

FOR FURTHER INFORMATION CONTACT: For further information, please 
contact Gary Johnson at (202) 482-1679 or by e-mail at 
[email protected].

SUPPLEMENTARY INFORMATION: 

Background

    On August 31, 2005, the Office of Management and Budget (OMB) 
issued an interim final guidance that implemented its Guidance for 
Governmentwide Debarment and Suspension (Nonprocurement), codified in 
Part 180 of title 2 of the Code of Federal Regulations (70 FR 51862, 
August 31, 2005). In addition to restating and updating its guidance on 
nonprocurement debarment and suspension, the interim final guidance 
requires all federal agencies to adopt a new approach to Federal agency 
implementation of the guidance. OMB requires each agency to issue a 
brief rule that: (1) Adopts the guidance, giving it regulatory effect 
for that agency's activities; and (2) states any agency-specific 
additions, clarifications, and exceptions to the government-wide 
policies and procedures contained in the guidance. That guidance also 
requires agencies to implement the OMB guidance by February 28, 2007.
    Pursuant to the requirements in OMB's interim final guidance, the 
Department of Commerce (Department) proposes to:
    (1) Remove 15 CFR Part 26; (2) replace the Department's part 
containing the full text of the debarment and suspension common rule 
with a brief part implementing OMB's guidance and any provisions 
specific to the Department; (3) co-locate the Department's part with 
OMB's guidance in 2 CFR along with other agencies' regulations in that 
title; and (4) revise references in 15 CFR Part 14 with the citation to 
the Department's regulations located in Title 2, Part 1326.
    This proposed regulatory action would implement the OMB's 
initiative to streamline and consolidate all federal regulations on 
nonprocurement debarment and suspension into one part of the CFR, and 
does not intend to modify any of the Department's current policy.

Invitation to Comment

    We intend the proposed new part in 2 CFR to adopt the OMB 
guidelines with the same additions and clarifications we made to the 
common rule on nonprocurement debarment and suspension in the Federal 
Register publication of November 26, 2003 (68 FR 66575). We invite 
comments on the provisions contained in the common rule as well as any 
aspect of this proposed rulemaking.

Executive Order 12866

    This proposed regulatory action has been determined to be not 
significant for purposes of E.O. 12866.

Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b))

    The Chief Counsel for Regulation at the Department of Commerce 
certified to the Chief Counsel for Advocacy at the Small Business 
Administration that this rule, if adopted, would not have a significant 
economic impact on a substantial number of small entities. This action 
would merely remove the DOC's current policy and provisions related to 
the debarment and suspension common rule and replace it with a brief 
part adopting OMB's guidance and implementing any provisions specific 
to the Department. In addition, it would co-locate the Department's 
regulations with OMB's guidance in 2 CFR along with other agencies' 
rules in that title. These revisions are purely administrative in 
nature and do not modify the Department's current policy. Because these 
changes are not substantive, the Chief Counsel for Regulation certified 
that this action would not have a significant economic impact on a 
substantial number of small entities.

Unfunded Mandates Act of 1995 (Sec. 202, Pub. L. 104-4)

    This proposed regulatory action does not contain a Federal mandate 
that will result in the expenditure by State, local, and tribal 
governments, in aggregate, or by the private sector of $100 million or 
more in any one year.

Paperwork Reduction Act of 1995 (44 U.S.C., Chapter 35)

    This regulatory action will not impose any additional reporting or 
recordkeeping requirements under the Paperwork Reduction Act. 
Notwithstanding any other provision of law, no person is required to 
respond to, nor shall any person be subject to a penalty for failure to 
comply with a collection of information subject to the Paperwork 
Reduction Act unless that collection displays a currently valid OMB 
Control Number.

Federalism (Executive Order 13132)

    This proposed regulatory action does not have Federalism 
implications, as set forth in Executive Order 13132. It will

[[Page 55355]]

not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government.

List of Subjects

2 CFR Part 1326

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

15 CFR Part 14

    Accounting, Administrative pratice and procedure, Grant programs, 
Reporting and recordkeeping requirements.

15 CFR Part 26

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

    Issued this 18th day of September at Washington, DC.
Michael S. Sade,
Director for Acquisition Management and Procurement Executive.
    Accordingly, under the authority of 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); and E.O. 12689 (3 CFR, 1989 Comp., p. 235) the 
Department of Commerce proposes the following amendments to the Code of 
Federal Regulations, Title 2, Subtitle B, Title 15 Part 14 and Title 15 
Part 26, as follows:

Title 2--Grants and Agreements

    1. Add Chapter 13, consisting of Part 1326 to Subtitle B to read as 
follows:

Chapter 13--Department of Commerce

PART 1326--NONPROCUREMENT DEBARMENT AND SUSPENSION

Sec.
1326.10 What does this part do?
1326.20 Does this part apply to me?
1326.30 What policies and procedures must I follow?
Subpart A--General
1326.137 Who in the Department of Commerce may grant an exception to 
let an excluded person participate in a covered transaction?
Subpart B--Covered Transactions
1326.215 Which nonprocurement transactions, in addition to those 
listed in 2 CFR 180.215, are not covered transactions?
1326.220 What contracts and subcontracts, in addition to those 
listed in 2 CFR 180.220, are covered transactions?
Subpart C--Responsibilities of Participants Regarding Transactions
1326.332 What methods must I use to pass requirements down to 
participants at lower tiers with whom I intend to do business?
Subpart D--Responsibilities of Federal Agency Officials Regarding 
Transactions
1326.437 What method do I use to communicate to a participant the 
requirements described in the OMB guidance at 2 CFR 180.435?
Subparts E-H--[Reserved]
Subpart I--Definitions
1326.970 Nonprocurement transaction (Department of Commerce 
supplement to government-wide definition at 2 CFR 180.970).
Subpart J--[Reserved]

    Authority: 5 U.S.C. 301; 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.


1326.10  What does this part do?

    This part adopts the Office of Management and Budget (OMB) guidance 
in Subparts A through I of 2 CFR part 180, as supplemented by this 
part, as the Department of Commerce policies and procedures for 
nonprocurement debarment and suspension. It thereby gives regulatory 
effect to the OMB guidance as supplemented by this part. 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).


1326.20  Does this part apply to me?

    This part and, through this part, pertinent portions of the OMB 
guidance in Subparts A through I of 2 CFR part 180 (see table at 2 CFR 
180.100(b)) apply to you if you are a--
    (a) Participant or principal in a ``covered transaction'' (see 
Subpart B of 2 CFR part 180 and the definition of ``nonprocurement 
transaction'' at 2 CFR 180.970, as supplemented by Subpart B and Sec.  
1326.970 of this part).
    (b) Respondent in a Department of Commerce suspension or debarment 
action.
    (c) Department of Commerce debarment or suspension official;
    (d) Department of Commerce grants officer, agreements officer, or 
other official authorized to enter into any type of nonprocurement 
transaction that is a covered transaction;


Sec.  1326.30  What policies and procedures must I follow?

    The Department of Commerce policies and procedures that you must 
follow are the policies and procedures specified in each applicable 
section of the OMB guidance in Subparts A through I of 2 CFR part 180, 
as that section is supplemented by the section in this part with the 
same section number. The contracts that are covered transactions, for 
example, are specified by section 220 of the OMB guidance (i.e., 2 CFR 
180.220) as supplemented by section 220 in this part (i.e., Sec.  
1326.220). For any section of OMB guidance in Subparts A through I of 2 
CFR 180 that has no corresponding section in this part, Department of 
Commerce policies and procedures are those in the OMB guidance.

Subpart A--General


Sec.  1326.137  Who in the Department of Commerce may grant an 
exception to let an excluded person participate in a covered 
transaction?

    Within the Department of Commerce, the Secretary of Commerce or 
designee has the authority to grant an exception to let an excluded 
person participate in a covered transaction, as provided in the OMB 
guidance at 2 CFR 180.135.

Subpart B--Covered Transactions


Sec.  1326.215  Which nonprocurement transactions, in addition to those 
listed in 2 CFR 180.215, are not covered transactions?

    (a) For purposes of the Department of Commerce, a transaction that 
the Department needs to respond to a national or agency-recognized 
emergency or disaster includes the Fisherman's Contingency Fund.
    (b) For purposes of the Department of Commerce, an incidental 
benefit that results from ordinary governmental operations includes:
    (1) Export Promotion, Trade Information and Counseling, and Trade 
policy.
    (2) Geodetic Surveys and Services (Specialized Services).
    (3) Fishery Products Inspection Certification.
    (4) Standard Reference Materials.
    (5) Calibration, Measurement, and Testing.
    (6) Critically Evaluated Data (Standard Reference Data).
    (7) Phoenix Data System.
    (8) The sale or provision of products, information, and services to 
the general public.
    (c) For purposes of the Department of Commerce, any other 
transaction if the application of an exclusion to the

[[Page 55356]]

transaction is prohibited by law includes:
    (1) The Administration of the Anti-dumping and Countervailing Duty 
Statutes.
    (2) The export Trading Company Act Certification of Review Program.
    (3) Trade Adjustment Assistance Program Certification.
    (4) Foreign Trade Zones Act of 1934, as amended.
    (5) Statutory Import Program.


Sec.  1326.220  What contracts and subcontracts, in addition to those 
listed in 2 CFR 180.220, are covered transactions?

    In addition to the contracts covered under 2 CFR 180.220(b) of the 
OMB guidance, this part applies to a subcontract that is awarded by a 
participant in a procurement transaction covered under 2 CFR 
180.220(a), if the amount of the subcontract exceeds or is expected to 
exceed $25,000. This extends the coverage of the Department of Commerce 
nonprocurement suspension and debarment requirements to one additional 
tier of contracts under covered nonprocurement transactions, as 
permitted under the OMB guidance at 2 CFR 180.220(c) (see optional 
lower tier coverage in the figure in the Appendix to 2 CFR part 180).

Subpart C--Responsibilities of Participants Regarding Transactions


Sec.  1326.332  What methods must I use to pass requirements down to 
participants at lower tiers with whom I intend to do business?

    You as a participant must include a term or condition in lower-tier 
transactions requiring lower-tier participants to comply with Subpart C 
of the OMB guidance in 2 CFR Part 180, as supplemented by this subpart.

Subpart D--Responsibilities of Federal Agency Officials Regarding 
Transactions


Sec.  1326.437  What method do I use to communicate to a participant 
the requirements described in the OMB guidance at 2 CFR 180.435?

    To communicate to a participant the requirements described in 2 CFR 
180.435 of the OMB guidance, you must include a term or condition in 
the transaction that requires the participant's compliance with subpart 
C of 2 CFR part 180, as supplemented by Subpart C of this part, and 
requires the participant to include a similar term or condition in 
lower-tier covered transactions.

Subparts E-H--[Reserved]

Subpart I--Definitions


Sec.  1326.970  Nonprocurement transaction (Department of Commerce 
supplement to government-wide definition at 2 CFR 180.970).

    For purposes of the Department of Commerce, nonprocurement 
transaction includes the following:
    (a) Joint project Agreements under 15 U.S.C. Sec.  1525.
    (b) Cooperative research and development agreements.
    (c) Joint statistical agreements.
    (d) Patent licenses under 35 U.S.C. Sec.  207.
    (e) NTIS joint ventures, 15 U.S.C. Sec.  3704b.

Subpart J--[Reserved]

Title 15, Commerce and Foreign Trade

Part 26--Department of Commerce

PART 26--[REMOVED]

    2. Remove Part 26.

Title 15, Commerce and Foreign Trade

PART 14--DEPARTMENT OF COMMERCE

    3. The authority citation for part 14 continues to read as follows:

    Authority: 5 U.S.C. 301; OMB Circular A-110 (64 FR 54926, 
October 8, 1999).

    4. Section 14.13 is amended by removing the citation ``15 CFR Part 
26'' and adding in its place the citation ``2 CFR Part 1326''.

[FR Doc. 06-8022 Filed 9-21-06; 8:45 am]
BILLING CODE 3510-FA-P