[Federal Register Volume 72, Number 159 (Friday, August 17, 2007)]
[Rules and Regulations]
[Pages 46139-46141]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-16195]



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 Rules and Regulations
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  Federal Register / Vol. 72, No. 159 / Friday, August 17, 2007 / Rules 
and Regulations  

[[Page 46139]]



SOCIAL SECURITY ADMINISTRATION

2 CFR Part 2336 and 20 CFR Part 436

[Docket No. SSA 2007-0033]
RIN 0960-AG48


SSA Implementation of OMB Guidance on Nonprocurement Debarment 
and Suspension

AGENCY: Social Security Administration.

ACTION: Final rule.

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

SUMMARY: The Social Security Administration (SSA) is moving its 
regulations on nonprocurement debarment and suspension from title 20 of 
the Code of Federal Regulations (CFR), chapter III, part 436, to title 
2 of the CFR, subtitle B, chapter 23, part 2336. In 2 CFR part 180, the 
Office of Management and Budget (OMB) provides guidance for Federal 
agencies on the government-wide debarment and suspension system for 
nonprocurement programs and activities. SSA is implementing regulations 
covering policies and procedures for nonprocurement debarment and 
suspension by adopting OMB's guidance in 2 CFR part 180 and adding some 
provisions that are specific to SSA. The new part in 2 CFR will be 
substantively the same as the prior nonprocurement debarment and 
suspension regulations that set forth common policies and procedures 
that Federal Executive branch agencies use in taking suspension and 
debarment actions (the common rule). However, 2 CFR will consolidate 
all of the Executive agencies' regulations in one location so that they 
are easier to find. This regulatory action is an administrative 
simplification that makes no substantive change in SSA policies or 
procedures for nonprocurement debarment and suspension.

DATES: This final rule is effective August 17, 2007.

FOR FURTHER INFORMATION CONTACT: Phyllis Y. Smith, Chief Grants 
Management Officer, Office of Operations Contracts and Grants, Office 
of Acquisition and Grants, SSA, 7111 Security Blvd, 1st Floor Rear 
Entrance, Baltimore, MD 21244; e-mail: [email protected]; 
telephone (410) 965-9518; fax (410) 966-9310. For information on 
eligibility or filing for benefits, call our national toll-free number, 
1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site, 
Social Security Online, at http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION: 

Electronic Version

    The electronic file of this document is available on the date of 
publication in the Federal Register at http://www.gpoaccess.gov/fr/index.html.

Background

    Executive Order 12549, ``Debarment and Suspension,'' issued on 
February 18, 1996, gave government-wide effect to each Federal 
Executive 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 were consistent with 
the OMB guidelines.
    On May 11, 2004, in the Federal Register (69 FR 26275), OMB 
established title 2 in the CFR for grants and other financial 
assistance and nonprocurement agreements. Title 2 consisted of two 
subtitles, subtitles A and B. Subtitle A, ``Office of Management and 
Budget Guidance for Grants and Agreements,'' contained OMB government-
wide policy guidance to Federal agencies. Subtitle B, ``Federal Agency 
Regulations for Grants and Agreements,'' was reserved for 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, located in 2 CFR part 180, 
updated previous OMB guidance. The interim final guidance conformed the 
OMB guidance with an update to the common rule on nonprocurement 
debarment and suspension for Federal agencies published in the Federal 
Register on November 26, 2003 (see 70 FR 51864). On November 15, 2006, 
OMB published a final rule adopting the interim final guidance with 
changes (71 FR 66431).

Regulatory Change

    In accordance with OMB's guidance, this final rule moves SSA's 
nonprocurement debarment regulations to subtitle B in a new chapter 23, 
part 2336, and removes them from 20 CFR part 436. The substance of the 
regulations is unchanged.

Regulatory Procedures

    Pursuant to sections 205(a), 702(a)(5) and 1631(d)(1) of the Social 
Security Act, 42 U.S.C. 405(a), 902(a)(5) and 1383(d)(1), we follow the 
Administrative Procedure Act (APA) rulemaking procedures specified in 5 
U.S.C. 553 in the development of our regulations. The APA provides 
exceptions to its prior notice and public comment procedures when an 
agency finds there is good cause for dispensing with such procedures on 
the basis that they are impracticable, unnecessary, or contrary to the 
public interest.
    In the case of this rule, we have determined that, under 5 U.S.C. 
553(b)(B), good cause exists for dispensing with the notice and public 
comment procedures because we are merely moving our rules on debarment 
and suspension to a new title in the CFR. We are making no substantive 
changes in the rules. Therefore, opportunity for prior comment is 
unnecessary, and we are issuing these regulations as a direct final 
rule.
    In addition, we find good cause for dispensing with the 30-day 
delay in the effective date of a substantive rule, provided for by 5 
U.S.C. 553(d). As explained above, we are merely moving our rules on 
debarment and suspension to a new title in the CFR. This is a 
government-wide initiative to streamline and simplify debarment and 
suspension rules in one place in the CFR. Therefore, we find that it is 
in the public interest to make these rules effective upon publication.

[[Page 46140]]

Executive Order 12866

    We have consulted with the Office of Management and Budget (OMB) 
and determined that this final rule does not meet the criteria for a 
significant regulatory action under Executive Order 12866, as amended. 
Thus, it was not subject to OMB review. We have also determined that 
this rule meets the plain language requirement of Executive Order 
12866, as amended.

Regulatory Flexibility Act

    We certify that this final rule will not have a significant 
economic impact on a substantial number of small entities. Therefore, a 
regulatory flexibility analysis as provided in the Regulatory 
Flexibility Act, as amended, is not required.

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

    This rule 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

    This rule will impose no additional reporting or recordkeeping 
requirements requiring OMB clearance.

(Catalog of Federal Domestic Assistance Program Nos. 96.007, Social 
Security--Research and Demonstration; and 96.008, Social Security 
Administration--Benefits Planning, Assistance, and Outreach Program)

List of Subjects

2 CFR Part 2336

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

20 CFR Part 436

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

    Dated: May 8, 2007.
Michael J. Astrue,
Commissioner of Social Security.

0
Accordingly, under the authority of 42 U.S.C. 902(a)(5); 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), SSA amends the Code of 
Federal Regulations, title 2, subtitle B, and title 20, chapter 3, part 
436, as follows:

Title 2--Grants and Agreements

0
1. Add chapter XXIII, part 2336 to subtitle B, to read as follows:

CHAPTER XXIII--SOCIAL SECURITY ADMINISTRATION

PART 2336--NONPROCUREMENT DEBARMENT AND SUSPENSION

Sec.
2336.10 What does this part do?
2336.20 Does this part apply to me?
2336.30 What policies and procedures must I follow?
Subpart A--General
2336.137 Who in the SSA may grant an exception to let an excluded 
person participate in a covered transaction?
Subpart B--Covered Transactions
2336.220 What contracts and subcontracts, in addition to those 
listed in 2 CFR 180.220, are covered transactions?
Subpart C--Responsibilities of Participants Regarding Transactions
2336.332 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
2336.437 What method do I use to communicate to a participant the 
requirements described in the OMB guidance at 2 CFR 180.435?
Subpart E-J--Reserved

    Authority: 42 U.S.C. 902(a)(5); 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.  2336.10  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 SSA policies and procedures for nonprocurement debarment 
and suspension. 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.  2336.20  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 an SSA suspension or debarment action;
    (c) SSA debarment or suspension official; or
    (d) SSA grants officer, agreements officer, or other official 
authorized to enter into any type of nonprocurement transaction that is 
a covered transaction.


Sec.  2336.30  What policies and procedures must I follow?

    The SSA 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 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.  2336.220). For any section of OMB 
guidance in subparts A through I of 2 CFR 180 that has no corresponding 
section in this part, SSA policies and procedures are those in the OMB 
guidance.

Subpart A--General


Sec.  2336.137  Who in the SSA may grant an exception to let an 
excluded person participate in a covered transaction?

    (a) Within the Social Security Administration, the Commissioner or 
the designated agency debarment official may grant an exception 
permitting an excluded person to participate in a particular covered 
transaction. If the Commissioner or the designated agency debarment 
official grants an exception, the exception must be in writing and 
state the reason(s) for deviating from the OMB guidance at 2 CFR 
180.135.
    (b) An exception granted by one agency for an excluded person does 
not extend to the covered transactions of another agency.

Subpart B--Covered Transactions


Sec.  2336.220  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 option lower tier coverage in the figure in 
the Appendix to 2 CFR part 180), SSA 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.  2336.332  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

[[Page 46141]]

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.  2336.437  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-J--[Reserved]

Title 20--Employees' Benefits

CHAPTER III--SOCIAL SECURITY ADMINISTRATION

PART 436--[REMOVED]

0
2. Remove part 436.

[FR Doc. E7-16195 Filed 8-16-07; 8:45 am]
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