[Federal Register Volume 72, Number 48 (Tuesday, March 13, 2007)]
[Rules and Regulations]
[Pages 11285-11287]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-4362]



 ========================================================================
 Rules and Regulations
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
 under 50 titles pursuant to 44 U.S.C. 1510.
 
 The Code of Federal Regulations is sold by the Superintendent of Documents. 
 Prices of new books are listed in the first FEDERAL REGISTER issue of each 
 week.
 
 ========================================================================
 

  Federal Register / Vol. 72, No. 48 / Tuesday, March 13, 2007 / Rules 
and Regulations  

[[Page 11285]]



DEPARTMENT OF JUSTICE

2 CFR Part 2867

28 CFR Part 67

[Docket Number: OJP (DOJ)-1457; AG Order No. 2870-2007]
RIN 1121-AA73


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

AGENCY: Department of Justice.

ACTION: Direct final rule.

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

SUMMARY: The Department of Justice (``DOJ'' or ``the Department'') is 
removing its regulations implementing the government-wide common rule 
on nonprocurement debarment and suspension, currently located within 
Part 67 of Title 28 of the Code of Federal Regulations (CFR), and 
adopting the Office of Management and Budget's (OMB) guidance at Title 
2 of the CFR. 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. These changes 
constitute an administrative simplification that would make no 
substantive change in DOJ policy or procedures for nonprocurement 
debarment and suspension.

DATES: This final rule is effective on May 14, 2007 without further 
action, unless adverse comment is received by DOJ by April 12, 2007. If 
adverse comment is received, DOJ will publish a timely withdrawal of 
the rule in the Federal Register.

ADDRESSES: Please address all comments regarding this rule by U.S. 
mail, to: Scott A. Chutka, Attorney-Advisor, Office of the General 
Counsel, Office of Justice Programs, Department of Justice, 810 7th 
Street, NW., Washington, DC 20531; by telefacsimile (fax), to: (202) 
307-1419; or by e-mail, to: [email protected]. To 
ensure proper handling, please reference OJP Docket No. 1457 on your 
correspondence. You may view an electronic version of this rule at 
www.regulations.gov and you may also comment by using the 
www.regulations.gov form for this regulation. When submitting comments 
electronically you must include OJP Docket No. 1457 in the subject box.

FOR FURTHER INFORMATION CONTACT: Scott A. Chutka, Attorney-Advisor, 
Office of the General Counsel, at (202) 307-6235 [Note: This is not a 
toll-free telephone number.]; or by e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

Background

    On November 26, 2003, at 68 FR 66534, the Department adopted, on an 
interim final basis, the government-wide nonprocurement debarment and 
suspension common rule (NCR), which recast the nonprocurement debarment 
and suspension regulations in plain English and made other required 
updates. On March 11, 2005, at 70 FR 12141, the Department published a 
final rule completing its adoption of the government-wide common rule.
    Thereafter, on August 31, 2005, OMB issued an interim final 
guidance that implemented its Guidance for Governmentwide Debarment and 
Suspension (Nonprocurement), at 70 FR 51863. 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. OMB issued this guidance in final form on November 
15, 2006, at 71 FR 66431.
    Pursuant to requirements in OMB's interim final guidance, DOJ is 
therefore: (1) Removing 28 CFR part 67; (2) replacing 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; and (3) co-locating the Department's part 
with OMB's guidance in 2 CFR along with other agencies' regulations in 
that title.
    This regulatory action will implement the OMB initiative to 
streamline and consolidate all federal regulations on nonprocurement 
debarment and suspension into one part of the CFR, and does not modify 
any of the Department's current policies.

Invitation to Comment

    With this regulatory action, DOJ is creating a new part in 2 CFR to 
adopt the OMB guidelines with the same additions and clarifications the 
Department made to the common rule on nonprocurement debarment and 
suspension in March 2005, at 68 FR 12141. In soliciting comments on 
this action, therefore, DOJ is not seeking to revisit substantive 
issues that were already resolved during the preparation of that final 
common rule. However, because DOJ intends the new part to make no 
changes in current policies and procedures, the Department specifically 
invites comments only on any unintended changes in substantive content 
that the new part in 2 CFR would make relative to the March 2005 final 
rule at 28 CFR part 67.

Administrative Procedure Act

    Under the Administrative Procedure Act (5 U.S.C. 553) agencies 
generally offer interested parties the opportunity to comment on 
proposed regulations before they become effective. However, in this 
case, on November 26, 2003, at 68 FR 65534, the Department adopted, on 
an interim final basis, the government-wide nonprocurement debarment 
and suspension common rule (NCR), which recast the nonprocurement 
debarment and suspension regulations in plain English and made other 
required updates. Comments were solicited on the Department's interim 
NCR rule. On March 11, 2005, at 70 FR 12141, the Department published a 
final rule completing its adoption of the government-wide NCR common 
rule.
    The changes made by this direct final rule constitute an 
administrative simplification that would make no

[[Page 11286]]

substantive change in Department policy or procedures for 
nonprocurement debarment and suspension. The Department believes that 
the rule is noncontroversial and adverse comments will not be received, 
although comments on this rule are invited.
    Accordingly, the Department finds that the solicitation of public 
comments on this direct final rule is unnecessary and that ``good 
cause'' exists under 5 U.S.C. 553(b)(B) and 553(d) to make this rule 
effective on May 14, 2007 without further action, unless adverse 
comment is received by DOJ by April 12, 2007. If adverse comment is 
received, the Department will publish a timely withdrawal of the rule 
in the Federal Register.

Executive Order 12866

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

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

    This regulatory action, if adopted, would not have a significant 
adverse impact on a substantial number of small entities. This action 
merely removes DOJ's current policy and provisions related to the 
debarment and suspension common rule and replaces it with a brief part 
adopting OMB's guidance and implementing any provisions specific to the 
Department. In addition, it co-locates the Department's regulations 
with OMB's guidance in 2 CFR along with other agencies' rules in that 
title. These provisions are merely administrative in nature and do not 
modify the Department's current policy.

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.

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 2867

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

28 CFR Part 67

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


0
Accordingly, for the reasons set forth in the preamble, and under the 
authority of 5 U.S.C. 301 and 28 U.S.C. 509, 510, 515-519, the 
Department of Justice amends the Code of Federal Regulations, Title 2, 
Subtitle B, and part 67 of chapter 1 of Title 28, as follows:

Title 2--Grants and Agreements

0
1. Add Chapter 28, consisting of Part 2867, to Subtitle B to read as 
follows:

CHAPTER 28--DEPARTMENT OF JUSTICE

PART 2867--NONPROCUREMENT DEBARMENT AND SUSPENSION

Sec.
Sec.  2867.10 What does this part do?
Sec.  2867.20 To whom does this part apply?
Sec.  2867.30 What policies and procedures must be followed?
Subpart A--General
Sec.  2867.137 Who in the Department of Justice may grant an 
exception to let an excluded person participate in a covered 
transaction?
Subpart B--Covered Transactions
Sec.  2867.220 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.  2867.332 What method must a participant use to pass 
requirements down to participants at lower tiers with whom the 
participant intends to do business?
Subpart D--Responsibilities of Federal Agency Officials Regarding 
Transactions
Sec.  2867.437 What method must be used to communicate to a 
participant the requirements described in the OMB guidance at 2 CFR 
180.435?
Subparts E-J--[Reserved]

    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; 5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.


Sec.  2867.10  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 Justice policies and procedures for 
nonprocurement debarment and suspension. It thereby gives regulatory 
effect for the Department of Justice 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, Pub. L. 103-355, 108 Stat. 3327).


Sec.  2867.20  To whom does this part apply?

    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 any--
    (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 of this 
part));
    (b) Respondent in a Department of Justice suspension or debarment 
action;
    (c) Department of Justice debarment or suspension official;
    (d) Department of Justice grants officer, agreements officer, or 
other official authorized to enter into any type of nonprocurement 
transaction that is a covered transaction.


Sec.  2867.30  What policies and procedures must be followed?

    The Department of Justice policies and procedures that must be 
followed 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.  
2867.220). 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 
Justice policies and procedures are those in the OMB guidance.

[[Page 11287]]

Subpart A--General


Sec.  2867.137  Who in the Department of Justice may grant an exception 
to let an excluded person participate in a covered transaction?

    Within the Department of Justice, the Attorney General 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.  2867.220  What contracts and subcontracts, in addition to those 
listed in 2 CFR 180.220, are covered transactions?

    Although the OMB guidance at 2 CFR 180.220(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), the Department of Justice 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.  2867.332  What method must a participant use to pass requirements 
down to participants at lower tiers with whom the participant intends 
to do business?

    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.  2867.437  What method must be used 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, the communication 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-J--[Reserved]

Title 28--Judicial Administration

CHAPTER 1--DEPARTMENT OF JUSTICE

0
2. Remove Part 67.

    Dated: March 6, 2007.
Alberto R. Gonzales,
Attorney General.
[FR Doc. E7-4362 Filed 3-12-07; 8:45 am]
BILLING CODE 4410-18-P