[Federal Register Volume 73, Number 86 (Friday, May 2, 2008)]
[Rules and Regulations]
[Pages 24139-24141]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-8788]



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 Rules and Regulations
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  Federal Register / Vol. 73, No. 86 / Friday, May 2, 2008 / Rules and 
Regulations  

[[Page 24139]]



DEPARTMENT OF TRANSPORTATION

Office of the Secretary

2 CFR Part 1200

49 CFR Part 29

RIN 2105-AD68


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

AGENCY: Office of the Secretary (OST), Department of Transportation.

ACTION: Final rule.

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SUMMARY: The Department of Transportation (Department) is moving its 
regulations on nonprocurement suspension and debarment from their 
current location in title 49 of the Code of Federal Regulations (CFR) 
to title 2 of the CFR. By issuing this final rule and moving its 
nonprocurement suspension and debarment regulations to new CFR part 
1200 in title 2 thereof, the Department is also adopting the interim 
and final government-wide guidance on nonprocurement suspension and 
debarment issued by the Office of Management and Budget (OMB) in the 
Federal Register on August 31, 2005 (70 FR 51863) and November 15, 2006 
(71 FR 66431), respectively. The OMB guidance can be found in 2 CFR 
Part 180, Subtitle A, Chapter I. These actions by the Department 
implement OMB initiatives to streamline and consolidate all federal 
regulations on nonprocurement suspension and debarment into one part of 
the CFR. In addition, this rule removes 49 CFR Part 29, regulations 
that reflect the Department's implementation of the government-wide 
common rule on nonprocurement suspension and debarment. These changes 
are non-substantive in nature and constitute an administrative 
simplification that would make no substantive change in Department 
policy or procedures for nonprocurement suspension and debarment.

DATES: This final rule is effective on June 2, 2008.

FOR FURTHER INFORMATION CONTACT: Ms. Ellen Shields, Office of the 
Senior Procurement Executive, Office of Administration (M-61), (202) 
366-4268, 400 Seventh Street, SW., Washington, DC 20590. Office hours 
are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except 
Federal Holidays.

SUPPLEMENTARY INFORMATION:

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 suspension and debarment 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, ``Suspension and debarment'' (February 18, 1986), which 
have government-wide effect on each agency's nonprocurement suspension 
and debarment actions. Section 6 of the Executive Order authorized OMB 
to issue guidance to Executive agencies on nonprocurement suspension 
and debarment, including provisions describing 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 final guidance with changes (71 FR 66431).
    This final rule places DOT's nonprocurement suspension and 
debarment regulations in subtitle B of title 2 of the CFR, along with 
other agencies' nonprocurement suspension and debarment rules. The new 
2 CFR part 1200 adopts the OMB guidelines with additions and 
clarifications that the Department made to the common rule on 
nonprocurement suspension and debarment in November 2003 (68 FR 66643) 
and October 2006 (71 FR 62394).
    DOT is not soliciting public comment on this rule and is instead 
issuing this rule as a final rule. Under 5 U.S.C. 553(b)(3)(A) agencies 
are not required to undergo notice and comment procedure for 
``interpretative rules, general statements of policy, or rules of 
agency organization, procedure, or practice.'' Because this rule adopts 
OMB's published guidelines, which followed notice and comment 
procedures, and colocates DOT's specific nonprocurement suspension and 
debarment rules to title 2 of the CFR, we believe that it falls under 
the exception cited above. In addition, the Department believes that 
there would not be meaningful public comment on this rule, which is 
purely administrative in nature.

Executive Order 12866

    The Department has determined that this rule is nonsignificant. It 
is purely administrative in nature and does not impose new burdens on 
any parties.

Regulatory Flexibility Act of 1980

    The Department certifies that this rule will not have a significant 
effect on a substantial number of small entities. That is because, as a 
purely administrative rule, it does not create economic effects on 
anyone.

Unfunded Mandates Act of 1995

    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, as adjusted for inflation.

Paperwork Reduction Act of 1995

    This regulatory action will not impose any additional reporting or 
recordkeeping requirements under the Paperwork Reduction Act.

Executive Order 13132 (Federalism)

    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

[[Page 24140]]

government and the States, or on the distribution of power and 
responsibilities among the various levels of government.

List of Subjects

2 CFR Part 1200

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

49 CFR Part 29

    Administrative practice and procedure, Government contracts, Grant 
programs, Loan programs, Reporting and recordkeeping requirements.

    Issued on April 14, 2008.
Mary E. Peters,
Secretary of Transportation.

0
For the reasons stated in the preamble, under the authority of Sec. 
2455, Public Law 103-355, 108 Stat. 3327 (31 U.S.C. 6101 note); E.O. 
11738 (3 CFR, 1973 Comp., p. 799); E.O. 12549 (3 CFR, 1986 Comp., p. 
189); E.O. 12689 (3 CFR 1989 Comp., p. 235), the Department of 
Transportation amends Title 2, subtitle B and title 49, subtitle A, of 
the Code of Federal Regulations as follows:

Title 2--Grants and Agreements

0
1. Add Chapter 12, consisting of part 1200 to Subtitle B to read as 
follows:

Chapter 12--Department of Transportation

PART 1200--NONPROCUREMENT SUSPENSION AND DEBARMENT

Sec.
1200.10 What does this part do?
1200.20 Does this part apply to me?
1200.30 What policies and procedures must I follow?
Subpart A--General
1200.137 Who in the Department of Transportation may grant an 
exception to let an excluded person participate in a covered 
transaction?
Subpart B--Covered Transactions
1200.220 What contracts and subcontracts, in addition to those 
listed in 2 CFR 180.220, are covered transactions?
Subpart C--Responsibilities of Participants Regarding Transactions
1200.332 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
1200.437 What method do I use to communicate to a participant the 
requirements described in the OMB guidance at 2 CFR 180.435?
Subparts E Through J--[Reserved]

    Authority: 49 U.S.C. 322; Sec. 2455, Public Law 103-355, 108 
Stat. 3327 (31 U.S.C. 6101 note); E.O. 12549 (3 CFR, 1986 Comp., p. 
189); E.O. 12689 (3 CFR, 1989 Comp., p. 235).


Sec.  1200.10  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 Transportation policies and procedures for 
nonprocurement suspension and debarment. It thereby gives regulatory 
effect for the Department of Transportation to the OMB guidance as 
supplemented by this part. This part satisfies the requirements in 
section 3 of Executive Order 12549, ``Supension and Debarment'' (3 CFR 
1986 Comp., p. 189), Executive Order 12689, ``Suspension and 
Debarment'' (3 CFR 1989 Comp., p. 235) and 31 U.S.C. 6101 note (Section 
2455, Public Law 103-355, 108 Stat. 3327).


Sec.  1200.20  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 Department of Transportation suspension or 
debarment action;
    (c) Department of Transportation debarment or suspension official;
    (d) Department of Transportation grants officer, agreements 
officer, or other official authorized to enter into any type of 
nonprocurement transaction that is a covered transaction.


Sec.  1200.30  What policies and procedures must I follow?

    The Department of Transportation 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.  1200.220). 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 Transportation policies and procedures are 
those in the OMB guidance.

Subpart A--General


Sec.  1200.137  Who in the Department of Transportation may grant an 
exception to let an excluded person participate in a covered 
transaction?

    Within the Department of Transportation, Office of the Secretary, 
the Secretary or an official designated by the Secretary may grant an 
exception permitting an excluded person to participate in a particular 
covered transaction. Within an Operating Administration of the 
Department of Transportation, the head of the operating administration 
may grant an exception permitting an excluded person to participate in 
a particular covered transaction. The head of an operating 
administration may delegate this function and authorize successive 
delegations.

Subpart B--Covered Transactions


Sec.  1200.220  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 any contract, regardless of tier, 
that is awarded by a contractor, subcontractor, supplier, consultant, 
or its agent or representative in any transaction, if the contract is 
to be funded or provided by the Department of Transportation under a 
covered nonprocurement transaction and the amount of the contract is 
expected to equal or exceed $25,000. This extends the coverage of the 
Department of Transportation nonprocurement suspension and debarment 
requirements to all lower tiers of subcontracts 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.  1200.332  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.

[[Page 24141]]

Subpart D--Responsibilities of Federal Agency Officials Regarding 
Transactions


Sec.  1200.437  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 and requires the participant to include a similar 
term or condition in lower-tier covered transactions.

Subpart E Through J--[Reserved]

Title 49--Transportation

PART 29--[REMOVED]

0
2. Remove part 29.

[FR Doc. E8-8788 Filed 5-1-08; 8:45 am]
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