[Federal Register Volume 72, Number 76 (Friday, April 20, 2007)]
[Rules and Regulations]
[Pages 19783-19785]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-1949]



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 Rules and Regulations
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  Federal Register / Vol. 72, No. 76 / Friday, April 20, 2007 / Rules 
and Regulations  

[[Page 19783]]



NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

2 CFR Part 1880

14 CFR Parts 1260, 1265, and 1274

RIN 2700-AD32


NASA Implementation of OMB Guidance on Nonprocurement Debarment 
and Suspension

AGENCY: National Aeronautics and Space Administration.

ACTION: Final rule.

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

SUMMARY: The National Aeronautics and Space Administration (NASA) is 
issuing a new Part 1880 on nonprocurement debarment and suspension in 
Title 2 of the Code of Federal Regulations (CFR). This new part is 
NASA's implementation of the Office of Management and Budget's (OMB) 
guidance provided at 2 CFR Part 180. In light of the new Part 1880, 
NASA is removing 14 CFR Part 1265 which contains the current NASA 
implementation of the government-wide common rule on nonprocurement 
debarment and suspension. The new part in 2 CFR serves the same purpose 
as the common rule in a simpler way. This final rule is part of OMB's 
initiative to streamline and consolidate all federal regulations on 
nonprocurement debarment and suspension. It is an administrative 
simplification that makes no substantive change in NASA policy or 
procedures for nonprocurement debarment and suspension.

EFFECTIVE DATE: This final rule is effective April 20, 2007.

FOR FURTHER INFORMATION CONTACT: Jamiel C. Commodore, NASA, Office of 
Procurement, Contract Management Division; (202) 358-0302; e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: 

A. Background

    On May 11, 2004, OMB established Title 2 of the CFR with two 
subtitles (69 FR 26275). 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 is 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 of February 18, 1996, Debarment and Suspension, 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. Section 3 directed Executive agencies to issue 
regulations implementing the Executive Order that are consistent with 
the OMB guidelines. On November 15, 2006, OMB published a final rule 
adopting the interim final guidance with changes (71 FR 66431).
    In accordance with OMB's guidance, NASA is issuing this final rule 
to adopt and implement Title 2 CFR, Part 180. The rule includes the 
same NASA additions and clarifications to the common rule on 
nonprocurement debarment and suspension that were added to 14 CFR 1265 
in November 2003 (68 FR 66573). As indicated, this latter coverage is 
now obsolete and is removed by this final rule.
    This is not a significant regulatory action and, therefore, was not 
subject to review under Section 6(b) of Executive Order 12866, 
Regulatory Planning and Review, dated September 30, 1993. This rule is 
not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

    NASA certifies that this final rule will not have a significant 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., 
because the rule involves an administrative adoption of a previously 
codified material in a new part of the CFR.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes do 
not impose information collection requirements that require the 
approval of the Office of Management and Budget under 44 U.S.C. 3501, 
et seq.

List of Subjects

2 CFR Part 1880

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

14 CFR Part 1260

    Grant programs--science and technology.

14 CFR Part 1265

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

14 CFR Part 1274

    Grant programs--science and technology.

Tom Luedtke,
Assistant Administrator for Procurement.

0
Accordingly, 2 CFR and 14 CFR Parts 1260, 1265 and 1274 are amended as 
follows:

Title 2--Grants and Agreements

0
1. Add Chapter XVIII, consisting of Part 1880 to Subtitle B, to read as 
follows:

CHAPTER 18--NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

PART 1880--NONPROCUREMENT DEBARMENT AND SUSPENSION

Sec.
1880.10 What does this part do?
1880.20 Does this part apply to me?
1880.30 What policies and procedures must I follow?

[[Page 19784]]

Subpart A--General
1880.137 Who in NASA may grant an exception to let an excluded 
person participate in a covered transaction?
Subpart B--Covered Transactions
1880.220 What contracts and subcontracts, in addition to those 
listed in 2 CFR 180.220, are covered transactions?
Subpart C--Responsibilities of Participants Regarding Transactions
1880.332 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
1880.437 What method do I use to communicate to a participant the 
requirements described in the OMB guidance at 2 CFR 180.435?
Subparts E-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; 42 U.S.C. 2473(c)(1).


Sec.  1880.10  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 NASA policies and procedures for nonprocurement debarment 
and suspension. It thereby gives regulatory effect for NASA 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.  1880.20  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 NASA suspension or debarment action;
    (c) NASA debarment or suspension official; or
    (d) NASA grants officer, agreements officer, or other official 
authorized to enter into any type of nonprocurement transaction that is 
a covered transaction.


Sec.  1880.30  What policies and procedures must I follow?

    The NASA 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.  1880.220). For 
any section of OMB guidance in Subparts A through I of 2 CFR 180 that 
has no corresponding section in this part, NASA policies and procedures 
are those in the OMB guidance.

Subpart A--General


Sec.  1880.137  Who in NASA may grant an exception to let an excluded 
person participate in a covered transaction?

    The Chief Acquisition Officer 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.  1880.220  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), NASA 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.  1880.332  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.  1880.437  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-J--[Reserved]

Title 14--Aeronautics and Space

Chapter V--National Aeronautics and Space Administration

PART 1260--GRANTS AND COOPERATIVE AGREEMENTS

0
2. The authority citation for 14 CFR part 1260 continues to read as 
follows:

    Authority: 42 U.S.C. 2473(c)(1), Pub. L. 97-258, 96 Stat. 1003 
(31 U.S.C. 6301, et seq.), and OMB Circular A-110.

0
3. Amend Sec.  1260.10 by revising paragraph (c)(1)(i) to read as 
follows:


Sec.  1260.10  Proposals.

* * * * *
    (c)(1) * * *
    (i) A certification for debarment and suspension under the 
requirements of 2 CFR Sec.  180.510.
* * * * *

0
4. Amend Sec.  1260.76 by revising paragraph (b) to read as follows:


Sec.  1260.76  Termination and enforcement.

* * * * *
    (b) The Director, Contract Management Division, shall provide to 
the General Services Administration information concerning all NASA 
debarments, suspensions, determinations of ineligibility, and voluntary 
exclusions of persons in accordance with 2 CFR 180.505.
* * * * *
0
5. Amend Sec.  1260.113 to read as follows:


Sec.  1260.113  Debarment and suspension.

    NASA and recipients shall comply with the nonprocurement debarment 
and suspension rule, 2 CFR 180 implementing Executive Orders 12549 and 
12689, ``Debarment and Suspension''. This rule restricts contracts with 
certain parties that are debarred, suspended or otherwise excluded from 
or ineligible for participation in Federal assistance programs or 
activities.

0
6. Amend Sec.  1260.144 by revising paragraph (d) to read as follows:


Sec.  1260.144  Procurement procedures.

* * * * *

[[Page 19785]]

    (d) Contracts shall be made only with responsible contractors who 
possess the potential ability to perform successfully under the terms 
and conditions of the proposed procurement. Consideration shall be 
given to such matters as contractor integrity, record of past 
performance, financial and technical resources or accessibility to 
other necessary resources. In certain circumstances, contracts with 
certain parties are restricted by 2 CFR part 180, the implementation of 
Executive Orders 12549 and 12689, ``Debarment and Suspension.''
* * * * *

0
7. Amend Sec.  1260.162 by revising paragraph (d) to read as follows:


Sec.  1260.162  Enforcement.

* * * * *
    (d) Relationship to debarment and suspension. The enforcement 
remedies identified in this section, including suspension and 
termination, do not preclude a recipient from being subject to 
debarment and suspension under Executive Orders 12549 and 12689 and 2 
CFR part 180 (see Sec.  1260.113).

PART 1265--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)

0
8. The authority citation for 14 CFR part 1265 continues to read as 
follows:

    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; 42 U.S.C. 2473(c)(1).

PART 1265--[REMOVED]

0
9. Remove Part 1265.

PART 1274--COOPERATIVE AGREEMENTS WITH COMMERCIAL FIRMS

0
10. The authority citation for 14 CFR part 1274 continues to read as 
follows:

    Authority: 31 U.S.C. 6301 to 6308; 42 U.S.C. 2451, et seq.


0
11. Amend Sec.  1274.211 by revising paragraph (d)(2) to read as 
follows:


Sec.  1274.211  Award procedures.

* * * * *
    (d) * * *
    (2) Each new proposal shall include a certification for debarment 
and suspension under the requirements of 2 CFR 180.510 and 1260.117.
* * * * *
0
12. Amend Sec.  1274.505 by revising paragraph (d) to read as follows:


Sec.  1274.505  Procurement procedures.

* * * * *
    (d) Contracts shall be made only with responsible contractors who 
possess the potential ability to perform successfully under the terms 
and conditions of the proposed procurement. Consideration shall be 
given to such matters as contractor integrity, record of past 
performance, financial and technical resources or accessibility to 
other necessary resources. In certain circumstances, contracts with 
certain parties are restricted by 2 CFR part 180, the implementation of 
Executive Orders 12549 and 12689, ``Debarment and Suspension.''
* * * * *
0
13. Revise Sec.  1274.927 to read as follows:


Sec.  1274.927  Debarment and Suspension and Drug-Free Workplace.

Debarment and Suspension and Drug-Free Workplace (APR 2007)

    NASA cooperative agreements are subject to the provisions of 2 CFR 
part 180, Government-wide Debarment and Suspension (Nonprocurement) and 
14 CFR part 1267, Government-wide requirements for Drug-Free Workplace, 
unless excepted by 2 CFR 180.110 or 180.610.
    [End of Provision]

[FR Doc. 07-1949 Filed 4-19-07; 8:45 am]
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