[Federal Register Volume 72, Number 116 (Monday, June 18, 2007)]
[Rules and Regulations]
[Pages 33383-33386]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-2949]



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 Rules and Regulations
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  Federal Register / Vol. 72, No. 116 / Monday, June 18, 2007 / Rules 
and Regulations  

[[Page 33383]]



DEPARTMENT OF THE INTERIOR

Office of the Secretary

2 CFR Part 1400

43 CFR Parts 12, 42, and 43

RIN 1090-AA96


Department of the Interior Implementation of OMB Guidance on 
Nonprocurement Debarment and Suspension

AGENCY: Office of the Secretary, Interior.

ACTION: Interim final rule with request for comments.

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

SUMMARY: The Department of the Interior (Department) proposes to remove 
its regulations implementing the government-wide common rule on 
nonprocurement debarment and suspension, and to adopt in their place 
the Office of Management and Budget's (OMB) guidance. This regulatory 
action would implement 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 interim rule is effective July 18, 2007. Submit comments on 
this interim rule by August 17, 2007.

ADDRESSES: You may submit comments on the rulemaking by any of the 
following methods listed below. Please use the Regulation Identifier 
Number (RIN) 1090-AA96 in your message:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions on the Web site for submitting comments.
     E-mail: [email protected]. Please submit Internet 
comments as an ASCII file and avoid the use of special characters and 
any form of encryption. Also, please include ``Attn: RIN 1090-AA96'' 
and your name and return address in your Internet message. If you do 
not receive a confirmation that we have received your Internet message, 
call the contact person listed below.
     Regular U.S. Mail: E. Melodee Stith, U.S. Department of 
the Interior, Office of Acquisition and Property Management, 1849 C 
Street, NW., Mail Stop 2607-MIB, Washington, DC 20240.
     Overnight mail, courier, or hand-delivery: E. Melodee 
Stith, U.S. Department of the Interior, Office of Acquisition and 
Property Management, 1849 C Street, NW., Mail Stop 2607-MIB, 
Washington, DC 20240.

FOR FURTHER INFORMATION CONTACT: Melodee Stith at (202) 208-5830 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 the Interior (Department) proposes to: (1) Remove 43 CFR 
Part 42; (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 
43 CFR Part 12 with the citation to the Department's regulations 
located in Title 2, CFR Subtitle B section 1400.
    This interim final regulatory action would implement the OMB's 
initiative to streamline and consolidate all Federal regulations on 
nonprocurment debarment and suspension into one part of the CFR, and 
does not make any change to current policy and procedures. Under 5 
U.S.C. 553(b)(3)(A) agencies are not required to undergo notice and 
comment procedure for ``interpretive rules, general statements of 
policy, or rules of agency organization, procedure, or practice.''

Invitation to Comment

    We intend the new part in 2 CFR to adopt the OMB guidelines with 
the same additions and clarifications made to the common rule on 
nonprocurement debarment and suspension in the Federal Register 
publication of November 26, 2003 (68 FR 66628).

Administrative Procedure Act

    The Department has determined that the public notice and comment 
provisions of the Administrative Procedure Act, 5 U.S.C. 553(b), do not 
apply because of the good cause exception under 5 U.S.C. 553(b)(3)(B), 
which allows the agency to suspend the notice and public procedure when 
the agency finds for good cause that those requirements are 
impractical, unnecessary, and contrary to the public interest. This 
action would merely remove the Department'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.

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))

    This rule, if adopted, would not have a significant economic impact 
on a substantial number of small entities. This action would merely 
remove the

[[Page 33384]]

Department'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, 
we believe that this action would not have a significant economic 
impact on a substantial number of small entities.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This action adopts the 
common rule established by OMB regarding persons who have been debarred 
or suspended. This rule:
    a. Does not have an annual effect on the economy of $100 million or 
more.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.

Takings (E.O. 12630)

    Under the criteria in Executive Order 12630, this rule does not 
have significant takings implications. A takings implication assessment 
is not required.

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.

Consultation With Indian Tribes (E.O. 13175)

    Under the criteria in Executive Order 13175, we have evaluated this 
rule and determined that it has no potential effects on federally 
recognized Indian tribes. This rule makes non-substantive changes to 
the Department's nonprocurement debarment and suspension procedures.

Public Availability of Comments

    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. A detailed statement 
under the National Environmental Policy Act of 1969 is not required.

Data Quality Act

    In developing this rule we did not conduct or use a study, 
experiment, or survey requiring peer review under the Data Quality Act 
(Pub. L. 106-554).

List of Subjects

2 CFR Subtitle B, Part 1400

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

43 CFR Part 12

    Administrative practice and procedure, Administrative and audit 
requirements and cost principles for assistance programs.

43 CFR Part 42

    Administrative practice and procedure, Governmentwide Debarment and 
Suspension (nonprocurement).

43 CFR Part 43

    Administrative practice and procedure, Governmentwide Requirements 
for Drug-Free Workplace (Financial Assistance).

    Dated: May 11, 2007.
James E. Cason,
Associate Deputy Secretary.

0
Accordingly, under the authority of 5 U.S.C. 301, the Department of the 
Interior makes the following amendments to the Code of Federal 
Regulations, Title 2, Subtitle B, Part 1400 and Title 43 CFR Parts 12, 
42, and 43:



TITLE 2--GRANTS AND AGREEMENTS

0
1. Add Chapter 14, consisting of Part 1400, to Subtitle B to read as 
follows:

CHAPTER 14--DEPARTMENT OF THE INTERIOR

PART 1400--NONPROCUREMENT DEBARMENT AND SUSPENSION

Sec.
1400.10 What does this part do?
1400.20 When does this part apply to me?
1400.30 What policies and procedures must I follow?
Subpart A--General
1400.137 Who in the Department of the Interior may grant an 
exception to let an excluded person participate in a covered 
transaction?
Subpart B--Covered Transactions
1400.215 Which nonprocurement transactions, in addition to those 
listed in 2 CFR 180.215, are not covered transactions?
1400.220 What contracts and subcontracts, in addition to those 
listed in 2 CFR 180.220, are covered transactions?
Subpart C--Responsibilities of Participants Regarding Transactions
1400.332 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
1400.437 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
1400.930 Debarring official (Department of the Interior supplement 
to the definition at 2 CFR 180.930).

[[Page 33385]]

1400.970 Nonprocurement transaction (Department of the Interior 
supplement to the definition at 2 CFR 180.930).
1400.1010 Suspending official (Department of the Interior supplement 
to the definition at 2 CFR 180.930).

    Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O. 12689 (3 
CFR, 1989 Comp., p. 235); sec. 2455 Pub. L. 103-355, 108 Stat. 3327 
(31 U.S.C. 6101 note); 5 U.S.C. 301.


Sec.  1400.10  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 the Interior 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, Pub. L. 103-355, 108 Stat. 
3327).


Sec.  1400.20  When 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) 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.  
1400.970);
    (b) Respondent in a Department of the Interior suspension or 
debarment action;
    (c) Department of the Interior debarment or suspension official, 
i.e., the Director, Office of Acquisition and Property Management; or
    (d) Department of the Interior grants officer, agreements officer, 
or other official authorized to enter into any type of nonprocurement 
transaction that is a covered transaction.


Sec.  1400.30  What policies and procedures must I follow?

    (a) The Department of the Interior policies and procedures that you 
must follow are specified in:
    (1) Each applicable section of the OMB guidance in subparts A 
through I of 2 CFR part 180; and
    (2) The supplement to each section of the OMB guidance that is 
found in this part under 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. 1400.220)).
    (b) For any section of OMB guidance in subparts A through I of 2 
CFR part 180 that has no corresponding section in this part, Department 
of the Interior policies and procedures are those in the OMB guidance.

Subpart A--General


Sec.  1400.137  Who in the Department of the Interior may grant an 
exception to let an excluded person participate in a covered 
transaction?

    Within the Department of the Interior, the Director, Office of 
Acquisition and Property Management 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.  1400.215  Which nonprocurement transactions, in addition to those 
listed in 2 CFR 180.215, are not covered transactions?

    (a) Transactions entered into pursuant to Public Law 93-638, 88 
Stat. 2203.
    (b) Under natural resource management programs, permits, licenses, 
exchanges, and other acquisitions of real property, rights-of-way, and 
easements.
    (c) Transactions concerning mineral patent claims entered into 
pursuant to 30 U.S.C. 22 et seq.; and
    (d) Water service contracts and repayments entered into pursuant to 
43 U.S.C. 485.


Sec.  1400.220  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 the Interior 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.  1400.332  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.

Subpart D--Responsibilities of Federal Agency Officials Regarding 
Transactions


Sec.  1400.437  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.  1400.930  Debarring official (Department of the Interior 
supplement to the definition at 2 CFR 180.930).

    The Debarring Official for the Department of the Interior is the 
Director, Office of Acquisition and Property Management.


Sec.  1400.970  Nonprocurement transaction (Department of the Interior 
supplement to the definition at 2 CFR 180.970).

    In addition to those listed in 2 CFR 180.970, the Department of the 
Interior includes the following as nonprocurement transactions:
    (a) Federal acquisition of a leasehold interest or any other 
interest in real property;
    (b) Concession contracts;
    (c) Disposition of Federal real and personal property and natural 
resources; and
    (d) Any other nonprocurement transactions between the Department 
and a person.


Sec.  1400.1010  Suspending official (Department of the Interior 
supplement to the definition at 2 CFR 180.930).

    The Suspending Official for the Department of the Interior is the 
Director, Office of Acquisition and Property Management.

Subpart J--[Reserved]

TITLE 43, PUBLIC LANDS: INTERIOR

PART 12--ADMINISTRATIVE AND AUDIT REQUIREMENTS AND COST PRINCIPLES 
FOR ASSISTANCE PROGRAMS

0
2. The authority citation for part 12 continues to read as follows:

    Authority: E.O 12549 (3 CFR, 1986 Comp., p. 189); E.O. 12689 (3 
CFR, 1989 Comp., p.

[[Page 33386]]

235); Sec. 2455, Pub. L. 103-355, 108 Stat. 3327 (31 U.S.C. 6101 
note); 5 U.S.C. 301; U.S.C. 6101 note.


Sec.  12.75  [Removed]

0
3. Remove Sec.  12.75.


Sec.  12.913  [Removed]

0
4. Remove Sec.  12.913.

PART 42--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) 
[REMOVED]

0
5. Remove part 42.

PART 43--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE 
(FINANCIAL ASSISTANCE)

0
6. The authority for part 43 continues to read as follows:

    Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O. 12689 (3 
CFR, 1989 Comp., p. 235); Sec. 2455, Pub. L. 103-355, 108 Stat. 3327 
(31 U.S.C. 6101 note); 5 U.S.C. 301; 31 U.S.C.


Sec.  43.510  [Amended]

0
7. Amend Sec.  43.510(c) by removing the citation ``43 CFR Part 42'' 
and adding ``2 CFR Part 180'' in its place.


Sec.  43.630  [Amended]

0
8. Amend Sec.  43.630 by removing the phrase ``the common rule, 
Government-wide Debarment and Suspension (Nonprocurement), that 
implements Executive Order 12549 and Executive Order 12689'' and adding 
the citation ``2 CFR part 180'' in its place.


Sec.  43.670  [Amended]

0
9. Amend Sec.  43.670 by removing the phrase ``the common rule, 
Government-wide Debarment and Suspension (Nonprocurement), that 
implements Executive Order 12549 and Executive Order 12689'' and adding 
the citation ``2 CFR part 180'' in its place.

[FR Doc. 07-2949 Filed 6-15-07; 8:45 am]
BILLING CODE 4310-RF-M