[Federal Register Volume 71, Number 233 (Tuesday, December 5, 2006)]
[Rules and Regulations]
[Pages 70457-70460]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-20518]



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  Federal Register / Vol. 71, No. 233 / Tuesday, December 5, 2006 / 
Rules and Regulations  

[[Page 70457]]


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DEPARTMENT OF ENERGY

2 CFR Part 901

10 CFR Parts 600 and 606

RIN 1991-AB74


Nonprocurement Debarment and Suspension

AGENCY: Department of Energy.

ACTION: Final rule.

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SUMMARY: The Department of Energy (DOE) is moving its regulations on 
nonprocurement debarment and suspension from their current location in 
title 10 of the Code of Federal Regulations (CFR) to title 2 of the 
CFR, and is adopting the format established by the Office of Management 
and Budget (OMB) in a notice of interim final guidance on 
nonprocurement debarment and suspension published in the Federal 
Register on August 31, 2005. In today's rule, DOE establishes a new 2 
CFR part 901 that adopts OMB's final government-wide guidance on 
nonprocurement debarment and suspension and contains supplemental DOE 
nonprocurement debarment and suspension provisions. In addition, this 
rule removes 10 CFR part 606, the existing DOE nonprocurement debarment 
and suspension regulations, and makes a conforming change to 10 CFR 
part 600. These changes constitute an administrative simplification 
that makes no substantive change in DOE policy or procedures for 
nonprocurement debarment and suspension.

DATES: Effective Date: This final rule is effective on December 5, 
2006.

FOR FURTHER INFORMATION CONTACT: Cynthia Yee, Office of Procurement and 
Assistance Management, Department of Energy, Mail Stop MA-61, 1000 
Independence Avenue, SW., Washington, DC 20585, telephone 202-287-1666 
and e-mail: [email protected].

SUPPLEMENTARY INFORMATION:

I. Introduction

    On May 11, 2004, OMB established title 2 of the CFR with two 
subtitles (69 FR 2627). Subtitle A, ``Government-wide Grants and 
Agreements,'' contains OMB policy guidance to Federal agencies on 
grants and agreements. Subtitle B, ``Federal Agency Regulations for 
Grants and Agreements,'' contains Federal agencies' regulations 
implementing the OMB guidance, as it applies to grants and other 
financial assistance agreements and nonprocurement transactions.
    On August 31, 2005, OMB published interim final guidance for 
government-wide nonprocurement debarment and suspension in the Federal 
Register (70 FR 51863). The guidance was located in title 2 of the CFR 
as new subtitle A, chapter 1, part 180. The interim final guidance 
updated previous OMB guidance that was issued pursuant to Executive 
Order 12549, ``Debarment and Suspension'' (February 18, 1986), which 
gave government-wide effect to each agency's nonprocurement debarment 
and suspension actions. Section 6 of the Executive order authorized OMB 
to issue guidance to Executive agencies on nonprocurement debarment and 
suspension, including provisions prescribing government-wide criteria 
and minimum due process procedures. Section 3 directed Executive 
agencies to issue regulations implementing the Executive order that are 
consistent with the OMB guidelines. The interim final guidance at 2 CFR 
part 180 conforms the OMB guidance with the Federal agencies' November 
26, 2003, update to the common rule on nonprocurement debarment and 
suspension (see 70 FR 51864). Although substantively the same as the 
common rule, OMB's interim final guidance was published in a form 
suitable for agency adoption, thus eliminating the need for each agency 
to repeat the full text of the OMB government-wide guidance in its 
implementing regulations. This new approach is intended to make it 
easier for recipients of covered transactions or respondents in 
suspension or debarment actions to discern agency-to-agency variations 
from the common rule language; reduce the volume of Federal regulations 
in the CFR; and streamline the process for updating the government-wide 
requirements on nonprocurement debarment and suspension (70 FR 51864). 
On November 15, 2006, OMB published a final rule adopting the interim 
final guidance with changes (71 FR 66431).
    This final rule places DOE's nonprocurement debarment and 
suspension regulations in subtitle B of title 2 of the CFR, along with 
other agencies' nonprocurement debarment and suspension rules. This 
action was required by the OMB interim final guidance, which is made 
final on November 15, 2006 (see 2 CFR 180.20, 180.25, 180.30 and 
180.35). The new CFR part 901 adopts the OMB guidelines with additions 
and clarifications that DOE made to the common rule on nonprocurement 
suspension and debarment in the DOE rule published on November 26, 2003 
(68 FR 66566-68). The substance of DOE's nonprocurement debarment and 
suspension regulations is unchanged. DOE is removing 10 CFR part 606, 
which was added to the CFR as part of the November 2003 common rule. 
DOE also is amending a provision in its Financial Assistance Rules (10 
CFR 600.23) to update the reference to DOE's nonprocurement debarment 
and suspension regulations.

II. Procedural Requirements

A. Executive Order 12866

    OMB has determined this rule to not be a ``significant regulatory 
action'' under Executive Order 12866, ``Regulatory Planning and 
Review,'' 58 FR 51735 (October 4, 1993). Accordingly, this action was 
not subject to review under that Executive Order by the Office of 
Information and Regulatory Affairs within OMB.

B. Regulatory Flexibility Act of 1980

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. As required 
by Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published 
procedures and policies on February 19,

[[Page 70458]]

2003, to ensure that the potential impacts of its rules on small 
entities are properly considered during the rulemaking process (68 FR 
7990). DOE has made its procedures and policies available on the Office 
of General Counsel's Web site: http://www.gc.doe.gov. DOE today is 
amending its nonprocurement debarment and suspension procedures. 
Because a general notice of proposed rulemaking is not required for 
this rulemaking, the Regulatory Flexibility Act requirements do not 
apply.

C. Unfunded Mandates Act of 1995

    This 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.

D. Paperwork Reduction Act of 1995

    This final rule does not impose any new collection of information 
subject to review and approval by OMB under the Paperwork Reduction 
Act, 44 U.S.C. 3501 et seq.

E. Federalism

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

F. National Environmental Policy Act

    DOE has determined that this rule is covered under the Categorical 
Exclusion found in the Department's National Environmental Policy Act 
regulations at paragraph A.6 of Appendix A to Subpart D, 10 CFR Part 
1021, which applies to rulemakings that are strictly procedural. 
Today's final rule makes non-substantive changes to DOE's 
nonprocurement debarment and suspension procedures. Accordingly, 
neither an environmental assessment nor an environmental impact 
statement is required.

G. Treasury and General Government Appropriations Act, 1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any proposed rule that may affect family 
well being. This rule will not have any impact on the autonomy or 
integrity of the family as an institution. Accordingly, DOE has 
concluded that it is not necessary to prepare a Family Policymaking 
Assessment.

H. Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, Section 3(a) of Executive Order 12988, 
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on 
Executive agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. With regard to the review 
required by Section 3(a), Section 3(b) of Executive Order 12988 
specifically requires that Executive agencies make every reasonable 
effort to ensure that the regulation: (1) Clearly specifies the 
preemptive effect, if any; (2) clearly specifies any effect on existing 
Federal law or regulation; (3) provides a clear legal standard for 
affected conduct while promoting simplification and burden reduction; 
(4) specifies the retroactive effect, if any; (5) adequately defines 
key terms; and (6) addresses other important issues affecting clarity 
and general draftsmanship under any guidelines issued by the Attorney 
General. Section 3(c) of Executive Order 12988 requires Executive 
agencies to review regulations in light of applicable standards in 
Section 3(a) and Section 3(b) to determine whether they are met or it 
is unreasonable to meet one or more of them. DOE has completed the 
required review and determined that, to the extent permitted by law, 
the final rule meets the relevant standards of Executive Order 12988.

I. Treasury and General Government Appropriations Act, 2001

    The Treasury and General Government Appropriations Act, 2001 (44 
U.S.C. 3516 note) provides for agencies to review most disseminations 
of information to the public under guidelines established by each 
agency pursuant to general guidelines issued by OMB. OMB's guidelines 
were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines 
were published at 67 FR 62446 (October 7, 2002). DOE has reviewed 
today's notice under the OMB and DOE guidelines and has concluded that 
it is consistent with applicable policies in those guidelines.

J. Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001) requires Federal agencies to prepare and submit to the 
OMB, a Statement of Energy Effects for any proposed significant energy 
action. A ``significant energy action'' is defined as any action by an 
agency that promulgated or is expected to lead to promulgation of a 
final rule, and that: (1) Is a significant regulatory action under 
Executive Order 12866, or any successor order; and (2) is likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy, or (3) is designated by the Administrator of OIRA as a 
significant energy action. For any proposed significant energy action, 
the agency must give a detailed statement of any adverse effects on 
energy supply, distribution, or use should the proposal be implemented, 
and of reasonable alternatives to the action and their expected 
benefits on energy supply, distribution, and use. Today's regulatory 
action would not have a significant adverse effect on the supply, 
distribution, or use of energy and is therefore not a significant 
energy action. Accordingly, DOE has not prepared a Statement of Energy 
Effects.

K. Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation of today's rule prior to its effective date. The report 
will state that it has been determined that the rule is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).

III. Approval of the Office of the Secretary of Energy

    Issuance of this final rule has been approved by the Office of the 
Secretary of Energy.

List of Subjects

2 CFR Part 901

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

10 CFR Part 600

    Administrative practice and procedure, Assistance programs.

10 CFR Part 606

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


[[Page 70459]]


    Issued in Washington, DC on November 29, 2006.
Edward R. Simpson,
Director, Office of Procurement and Assistance Management, Office of 
Management, Department of Energy.
David O. Boyd,
Acting Director, Office of Acquisition and Supply Management, National 
Nuclear Security Administration.

0
Accordingly, DOE hereby amends subtitle B of title 2 and Chapter II of 
title 10 of the Code of Federal Regulations, as set forth below:

Title 2--Grants and Agreements

0
1. Add Chapter 9, consisting of Part 901 to Subtitle B to read as 
follows:

CHAPTER 9--Department of Energy

PART 901--NONPROCUREMENT DEBARMENT AND SUSPENSION

Sec.
901.10 What does this part do?
901.20 Does this part apply to me?
901.30 What policies and procedures must I follow?
Subpart A--General
901.137 Who in the Department of Energy may grant an exception to 
let an excluded person participate in a covered transaction?
Subpart B--Covered Transactions
901.220 What contracts and subcontracts, in addition to those listed 
in 2 CFR 180.220, are covered transactions?
Subpart C--Responsibilities of Participants Regarding Transactions
901.332 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
901.437 What method do I use to communicate to a participant the 
requirements described in the OMB guidance at 2 CFR 180.435?
Subpart E-H--[Reserved]
Subpart I--Definitions
901.930 Debarring official (Department of Energy supplement to 
government-wide definition at 2 CFR 180.935).
901.950 Federal agency (Department of Energy supplement to 
government-wide definition at 2 CFR 180.910).
901.1010 Suspending official (Department of Energy supplement to 
government-wide definition at 2 CFR 180.1010).
Subpart J [Reserved]

    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); 42 U.S.C. 7101 et seq.; 50 U.S.C. 2401 et 
seq.


Sec.  901.10  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 DOE policies and procedures for nonprocurement debarment 
and suspension. It thereby gives regulatory effect for DOE 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 section 
2455 of the Federal Acquisition Streamlining Act of 1994, Pub. L. 103-
355 (31 U.S.C. 6101 note).


Sec.  901.20  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);
    (b) Respondent in a DOE suspension or debarment action;
    (c) DOE debarment or suspension official; and
    (d) DOE grants officer, agreements officer, or other official 
authorized to enter into any type of nonprocurement transaction that is 
a covered transaction.


Sec.  901.30  What policies and procedures must I follow?

    The DOE 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 and any supplemental 
policies and procedures set forth in this part.

Subpart A--General


Sec.  901.137  Who in the Department of Energy may grant an exception 
to let an excluded person participate in a covered transaction?

    The Director, Office of Procurement and Assistance Management, DOE, 
for DOE actions, and the Director, Office of Acquisition and Supply 
Management, NNSA, for NNSA actions, may grant an exception permitting 
an excluded person to participate in a particular covered transaction. 
If the Director, Office of Procurement and Assistance Management, DOE, 
for DOE actions, and Director, Office of Acquisition and Supply 
Management, NNSA, for NNSA actions, grants an exception, the exception 
must be in writing and state the reason(s) for deviating from the 
government-wide policy in Executive Order 12549.

Subpart B--Covered Transactions


Sec.  901.220  What contracts and subcontracts, in addition to those 
listed in 2 CFR 180.220, are covered transactions?

    Although the OMB guidance at 2 CFR180.220(c) allows a Federal 
agency to do so (also see optional lower tier coverage in the figure in 
the Appendix to 2 CFR part 180), DOE does not extend coverage of 
nonprocurement suspension and debarment requirements beyond first-tier 
procurement contracts under a covered nonprocurement transaction.

Subpart C--Responsibilities of Participants Regarding Transactions


Sec.  901.332  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.  901.437  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.

Subpart E-H--[Reserved]

Subpart I--Definitions


Sec.  901.930  Debarring official (Department of Energy supplement to 
government-wide definition at 2 CFR 180.930).

    The Debarring Official for the Department of Energy, exclusive of 
NNSA, is the Director, Office of Procurement and Assistance Management, 
DOE. The Debarring Official for NNSA is the Director, Office of 
Acquisition and Supply Management, NNSA.

[[Page 70460]]

Sec.  901.950  Federal agency (Department of Energy supplement to 
government-wide definition at 2 CFR 180.950).

    DOE means the U.S. Department of Energy, including the NNSA.
    NNSA means the National Nuclear Security Administration.


Sec.  901.1010  Suspending official (Department of Energy supplement to 
government-wide definition at 2 CFR 180.1010).

    The suspending official for the Department of Energy, exclusive of 
NNSA, is the Director, Office of Procurement and Assistance Management, 
DOE. The suspending official for NNSA is the Director, Office of 
Acquisition and Supply Management, NNSA.

Subpart J--[Reserved]

Title 10--Energy

Chapter II, Subchapter H

PART 600--FINANCIAL ASSISTANCE RULES

0
2. The authority citation for part 600 continues to read as follows:

    Authority: 42 U.S.C. 7101 et seq.; 31 U.S.C. 6301-6308; 50 
U.S.C. 2401 et seq., unless otherwise noted.


Sec.  600.23  [Amended]

0
3. Section 600.23 of subpart A is amended by removing ``10 CFR part 
1036'' and adding ``2 CFR part 901'' in lieu thereof.

PART 606--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)

0
4. Remove part 606.

 [FR Doc. E6-20518 Filed 12-4-06; 8:45 am]
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