[Federal Register Volume 76, Number 113 (Monday, June 13, 2011)]
[Rules and Regulations]
[Pages 34143-34145]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-14242]



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 Rules and Regulations
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  Federal Register / Vol. 76, No. 113 / Monday, June 13, 2011 / Rules 
and Regulations  

[[Page 34143]]



AGENCY FOR INTERNATIONAL DEVELOPMENT

2 CFR Part 780

22 CFR Part 208

RIN 0412-AA67


Implementation of OMB Guidance on Government-Wide Debarment and 
Suspension (Non-procurement)

AGENCY: U.S. Agency for International Development.

ACTION: Final Rule.

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

SUMMARY: The U.S. Agency for International Development (USAID) is 
removing its regulation implementing the Government-wide common rule on 
debarment and suspension (non-procurement), currently located in Part 
208 of Title 22 of the Code of Federal Regulations (CFR), and issuing a 
new regulation to adopt the Office of Management and Budget (OMB) 
guidance at 2 CFR part 180. This regulatory action implements the OMB's 
initiative to streamline and consolidate into one title of the CFR all 
Federal regulations on debarment and suspension. These changes 
constitute an administrative simplification that would make no 
substantive change in USAID policy or procedures for debarment and 
suspension.

DATES: This final rule is effective on August 12, 2011 without further 
action. Submit comments by July 13, 2011 on any unintended changes this 
action makes in USAID policies and procedures for debarment and 
suspension. All comments on unintended changes will be considered and, 
if warranted, USAID will revise the rule.

ADDRESSES: You may submit comments, identified by RIN 0412-AA67 in the 
subject line to Ms. M. E. Yearwood, USAID--M/OAA/P, SA-44, 867B, 1300 
Pennsylvania Ave., NW., Washington, DC 20523, e-mail 
[email protected], fax (202) 567-4695

FOR FURTHER INFORMATION CONTACT: Melita E. Yearwood, Procurement 
Analyst, Office of Acquisition and Assistance, Policy Division at (202) 
567-4672.

SUPPLEMENTARY INFORMATION: 

Background

    When it established Title 2 of the CFR as the new central location 
for OMB guidance and agency implementing regulations concerning grants 
and agreements [69 FR 26276, May 11, 2004], OMB announced its intention 
to replace common rules with OMB guidance that agencies could adopt in 
brief regulations. OMB began that process by proposing [70 FR 51863, 
August 31, 2005] and finalizing [71 FR 66431, November 15, 2006] 
Government-wide guidance on non-procurement suspension and debarment in 
2 CFR part 180.
    The guidance requires each agency to replace the common rule on 
debarment and suspension requirements that the agency previously issued 
in its own CFR title with a brief regulation in 2 CFR adopting the 
Government-wide policies and procedures. One advantage of this approach 
is that it reduces the total volume of drug-free workplace regulations. 
A second advantage is that it collocates OMB's guidance and all of the 
agencies' implementing regulations in 2 CFR.
    OMB published interim final guidance in the Federal Register on 
August 31, 2005 [70 FR 51863]. The August 2005 Federal Register Notice 
stated that the substantive content of the interim final guidelines was 
intended to conform with the substance of the Federal agencies' most 
recent update to the common rule [68 FR 66534, November 26, 2003].

The Current Regulatory Actions

    As the OMB guidance requires, USAID is taking two regulatory 
actions. First, we are removing the debarment and suspension common 
rule from 22 CFR Part 208. Second, to replace the common rule, we are 
issuing a brief regulation in 2 CFR Part 180 to adopt the Government-
wide policies and procedures in the OMB guidance.

Invitation to Comment

    Taken together, these regulatory actions are solely an 
administrative simplification and are not intended to make any 
substantive change in policies or procedures. In soliciting comments on 
these actions, we therefore are not seeking to revisit substantive 
issues that were resolved during the development of the final common 
rule in 2003. We are inviting comments specifically on any unintended 
changes in substantive content that the new part in 2 CFR would make 
relative to the common rule at 22 CFR part 208.

Administrative Procedure Act

    Under the Administrative Procedure Act (5 U.S.C. 553), agencies 
generally propose a regulation and offer interested parties the 
opportunity to comment before it becomes effective. However, as 
described in the ``Background'' section of this preamble, the policies 
and procedures in this regulation have been proposed for comment two 
times--one time by Federal agencies as a common rule in 2003 and a 
second time by OMB as guidance in 2006--and adopted each time after 
resolution of the comments received.
    This direct final rule is solely an administrative simplification 
that would make no substantive change in USAID's policy or procedures 
for debarment and suspension. We therefore believe that the rule is 
noncontroversial and do not expect to receive adverse comments, 
although we are inviting comments on any unintended substantive change 
this rule makes.
    Accordingly, we find 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 
August 12, 2011 without further action, unless we receive adverse 
comment by July 13, 2011. If any comment on unintended changes is 
received, it will be considered and, if warranted, we will publish a 
timely revision of the rule.

Executive Order 12866

    OMB has determined this rule to be not significant for purposes of 
E.O. 12866.

[[Page 34144]]

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

    This proposed regulatory action will not have a significant adverse 
impact on a substantial number of small entities.

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

    This proposed 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 proposed 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 780

    Administrative practice and procedure, Debarment and suspension, 
Grant programs, Grants administration, Reporting and recordkeeping 
requirements, Government procurement.

22 CFR Part 208

    Administrative practice and procedure, Debarment and suspension, 
Grant programs, Grants administration, Reporting and recordkeeping 
requirements, Government procurement.

    Accordingly, for the reasons set forth in the preamble, and under 
the authority of 5 U.S.C. 301, the USAID amends the Code of Federal 
Regulations, Title 2, Subtitle B, by establishing Chapter VII, 
consisting of part 780 and to read as follows:

0
1. Chapter VII, consisting of part 780 is added to Title 2 to read as 
follows:

CHAPTER VII--AGENCY FOR INTERNATIONAL DEVELOPMENT

PART 780--NONPROCUREMENT DEBARMENT AND SUSPENSION

Sec.
780.10 What does this part do?
780.20 Does this part apply to me?
780.30 What policies and procedures must I follow?
Subpart A--General
780.137 Who in the Agency for International Development may grant an 
exception to let an excluded person participate in a covered 
transaction?
Subpart B--Covered Transactions
780.220 What contracts and subcontracts, in addition to those listed 
in 2 CFR 180.220, are covered transactions?
Subpart C--Responsibilities of Participants Regarding Transactions
780.332 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
780.437 What method do I use to communicate to a participant the 
requirements described in the OMB guidance at 2 CFR 180.435?
Subparts E-H--[Reserved]
Subpart I--Definitions
780.930 Debarring Official (Agency for International Development 
supplement to government-wide definition at 2 CFR 180.930).
780.1010 Suspending Official (Agency for International Development 
supplement to government-wide definition at 2 CFR 180.1010).
Subpart 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.


Sec.  780.10  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 USAID policies and procedures for non-procurement 
debarment and suspension. It thereby gives regulatory effect for USAID 
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 section 
2455 of the Federal Acquisition Streamlining Act of 1994, Public Law 
103-355 (31 U.S.C. 6101 note).


Sec.  780.20  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 ``non-procurement 
transaction'' at 2 CFR 180.970);
    (b) Respondent in a USAID suspension or debarment action;
    (c) USAID debarment or suspension official; and
    (d) USAID grants officer, agreements officer, or other official 
authorized to enter into any type of non-procurement transaction that 
is a covered transaction.


Sec.  780.30  What policies and procedures must I follow?

    The USAID 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 and any supplemental 
policies and procedures set forth in this part.

Subpart A--General


Sec.  780.137  Who in USAID may grant an exception to let an excluded 
person participate in a covered transaction?

    The Director, Office of Acquisition and Assistance or designee, may 
grant an exception permitting an excluded person to participate in a 
particular covered transaction. If the Director, Office of Acquisition 
and Assistance or designee grants an exception, the exception must be 
in writing and state the reason(s) for deviating from the government-
wide policy in Executive Order 12549.

Subpart B--Covered Transactions


Sec.  780.220  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 USAID under a covered non-procurement 
transaction and the amount of the contract is expected to equal or 
exceed $25,000. This extends the coverage of the USAID non-procurement 
suspension and debarment requirements to all lower tiers of 
subcontracts under covered non-procurement 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).

[[Page 34145]]

Subpart C--Responsibilities of Participants Regarding Transactions


Sec.  780.332  What requirements must I pass down to persons 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.  780.437  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 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-H--[Reserved]

Subpart I--Definitions


Sec.  780.930  Debarring Official (Agency for International Development 
supplement to government-wide definition at 2 CFR 180.930).

    The Debarring Official for USAID is the Director of the Office of 
Acquisition and Assistance.


Sec.  780.1010  Suspending Official (Agency for International 
Development supplement to government-wide definition at 2 CFR 
180.1010).

    The Suspending Official for USAID is the Director of the Office of 
Acquisition and Assistance.

Subpart J--[Reserved]

0
2. Title 22, chapter II is amended by removing part 208.

    Dated: March 24, 2011.
M.E. Yearwood,
Acquisitions and Assistance Policy Analyst, USAID.
[FR Doc. 2011-14242 Filed 6-10-11; 8:45 am]
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