[Federal Register Volume 71, Number 245 (Thursday, December 21, 2006)]
[Rules and Regulations]
[Pages 76573-76575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-21846]



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 Rules and Regulations
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  Federal Register / Vol. 71, No. 245 / Thursday, December 21, 2006 / 
Rules and Regulations  

[[Page 76573]]



DEPARTMENT OF COMMERCE

2 CFR Part 1326

15 CFR Parts 14 and 26

[Docket No. 060830228-6311-02]
RIN 0605-AA23


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

AGENCY: Department of Commerce.

ACTION: Final rule.

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

SUMMARY: The Department of Commerce (Department) removes its 
regulations implementing the government-wide common rule on 
nonprocurement debarment and suspension, currently codified at Title 
15, and adopts the Office of Management and Budget's (OMB) guidance at 
Title 2 of the Code of Federal Regulations (CFR) published as interim 
final guidance in the Federal Register on August 31, 2005, as revised 
by the issuance of a final rule in the Federal Register on November 15, 
2006. This regulatory action implements 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: This rule is effective January 22, 2007.

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.
    On November 15, 2006, OMB issued a final rule (71 FR 66431) 
revising its government-wide guidance on nonprocurement debarment and 
suspension. The revisions were necessary to conform a few unintended 
changes in the content of the interim final guidelines to the substance 
of the Federal agencies' most recent update to the common rule (68 FR 
66534, November 26, 2003). The revisions also made needed technical 
corrections.
    Pursuant to the requirements in OMB's final guidance, the 
Department of Commerce (Department) in this action: (1) Removes 15 CFR 
Part 26; (2) revises the Department's debarment and suspension common 
rule to implement OMB's guidance and includes specific provisions to 
the Department; (3) co-locates the Department's part with OMB's 
guidance in 2 CFR along with other agencies' regulations in that title; 
and (4) revises references in 15 CFR Part 14 to include the citation to 
the Department's regulations located in Title 2, Part 1326.
    This regulatory action implements 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.
    Public comment on this action was solicited as a proposed rule in a 
Federal Register notice dated September 22, 2006 (71 FR 55354). No 
comments were received; therefore the Department adopts OMB's final 
guidance, and the provisions specific to the Department contained in 
the proposed rule without change.

Executive Order 12866

    This 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 will not have a significant economic 
impact on a substantial number of small entities. The factual basis for 
the certification is found in the proposed rule and is not repeated 
here. No comments were received on the economic impacts of this rule 
therefore a final Regulatory Flexibility Act analysis was not prepared.

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

    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.

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 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.

List of Subjects

2 CFR Part 1326

    Administrative practice and procedure, Debarment and suspension,

[[Page 76574]]

Grant programs, Reporting and recordkeeping requirements.

15 CFR Part 26

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

Michael S. Sade,
Director for Acquisition Management and Procurement Executive.

0
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 amends 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

0
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.
Sec.  1326.10 What does this part do?
Sec.  1326.20 Does this part apply to me?
Sec.  1326.30 What policies and procedures must I follow?
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?
Subpart B--Covered Transactions
Sec.  1326.215 Which nonprocurement transactions, in addition to 
those listed in 2 CFR 180.215, are not covered transactions?
Sec.  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
Sec.  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
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?
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).
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.


Sec.  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).


Sec.  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 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 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

[[Page 76575]]

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. 1525.
    (b) Cooperative research and development agreements.
    (c) Joint statistical agreements.
    (d) Patent licenses under 35 U.S.C. 207.
    (e) NTIS joint ventures, 15 U.S.C. 3704b.

Subpart J [Reserved]

Title 15, Commerce and Foreign Trade

PART 14--[AMENDED]

0
2. 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).


Sec.  14.13  [Amended]

0
3. Section 14.13 is amended by removing the citation ``15 CFR Part 26'' 
and adding in its place the citation ``2 CFR Part 1326''.

PART 26--[REMOVED AND RESERVED]

0
4. Remove and reserve Part 26.

 [FR Doc. E6-21846 Filed 12-20-06; 8:45 am]
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