[Federal Register Volume 89, Number 4 (Friday, January 5, 2024)]
[Proposed Rules]
[Pages 714-716]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28838]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 89, No. 4 / Friday, January 5, 2024 / 
Proposed Rules  

[[Page 714]]



INTERNATIONAL DEVELOPMENT FINANCE CORPORATION

2 CFR Chapter XVI


Nonprocurement Suspension and Debarment

AGENCY: U.S. International Development Finance Corporation.

ACTION: Proposed rule.

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SUMMARY: The U.S. International Development Finance Corporation (DFC) 
invites the general public and other Federal agencies to take this 
opportunity to comment on proposed nonprocurement debarment and 
suspension regulations. Under this system, a person who is debarred or 
suspended is excluded from Federal financial and nonfinancial 
assistance and benefits under Federal programs and activities. The 
proposed regulations adopt the common rule format established by the 
Office of Management and Budget (OMB). In this document DFC proposes 
establishing a new CFR chapter that adopts OMB's final Governmentwide 
guidance on nonprocurement debarment and suspension and contains 
supplemental DFC nonprocurement debarment and suspension provisions.

DATES: Comments must be received by March 5, 2024.

ADDRESSES: Comments may be submitted by any of the following methods:
     Mail: Deborah Papadopoulos, Records and Information 
Management Specialist, U.S. International Development Finance 
Corporation, 1100 New York Avenue NW, Washington, DC 20527.
     Email: [email protected].
    Instructions: All submissions received must include the subject 
``DFC Proposed Rule on Suspension and Debarment.'' Please note that all 
written comments received in response to this notice will be considered 
public records.

FOR FURTHER INFORMATION CONTACT: Agency Submitting Officer: Deborah 
Papadopoulos, (202) 357-3979, Email: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    Executive Order 12549 (51 FR 6370, February 18, 1986) established a 
Governmentwide debarment and suspension system covering the full range 
of Federal procurement and nonprocurement activities, and to establish 
procedures for debarment and suspension from participation in Federal 
nonprocurement programs. Section 6 of the Executive order authorized 
OMB to issue guidelines to Executive departments and agencies that 
govern which programs and activities are covered by the Executive 
order, prescribe Governmentwide criteria and Governmentwide minimum due 
process procedures, and set forth other related details for the 
effective administration of the guidelines. Section 3 directed agencies 
to issue implementing regulations that are consistent with OMB 
guidelines.
    OMB issued an interim final guidance that implemented a common rule 
for Governmentwide Debarment and Suspension (Nonprocurement). This 
common rule is codified in part 180 of title 2 of the Code of Federal 
Regulations (70 FR 51864, 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 
Governmentwide policies and procedures contained in the guidance.
    Under this system, a person who is debarred or suspended is 
excluded from Federal financial and nonfinancial assistance and 
benefits under Federal programs and activities. Debarment or suspension 
of a participant in a program by one agency is registered with the 
General Services Administration (GSA)-maintained System for Award 
Management (SAM) exclusion list and has Governmentwide, reciprocal 
effect on that participant's ability to obtain procurement and 
nonprocurement contracts.
    After notice and comment by the public, DFC intends to adopt the 
OMB regulations found in 2 CFR part 180 with agency specific additions 
and clarifications. To adopt these regulations, 2 CFR 180.25 requires 
Federal agencies to address certain agency specific elements. 
Accordingly, the following proposed regulations state what contracts 
are covered under this policy, identify the official authorized to 
grant exceptions to an excluded persons list, and state the person 
responsible for communicating requirements to both first and second 
tier program participants. By default, elements not addressed in the 
agency specific regulations will be covered by the Governmentwide 
sections in the common rule.

Invitation To Comment

    We intend the proposed new chapter in 2 CFR to adopt the OMB 
guidelines with specified agency additions and clarifications as 
outlined in this notice of proposed rulemaking. We invite comments on 
the provisions contained in the common rule as well as any aspect of 
this proposed rulemaking.

Regulatory Analysis

Executive Order 12866

    DFC is an independent agency and is not subject to Executive Order 
12866.

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

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

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.

Paperwork Reduction Act of 1995

    This proposed rule does not impose any additional reporting or 
recordkeeping requirements under the Paperwork Reduction Act.

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,

[[Page 715]]

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 in 2 CFR Part XVI

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

0
For the reasons set forth in the preamble, under the authority at 2 CFR 
180.30, the United States International Development Finance Corporation 
proposes to add 2 CFR chapter XVI (16), consisting of parts 1600-1699, 
to read as follows:

Chapter XVI (16)--US International Development Finance Corporation

PART 1600--NONPROCUREMENT DEBARMENT AND SUSPENSION

PARTS 1601-1699 [RESERVED]

PART 1600--NONPROCUREMENT DEBARMENT AND SUSPENSION

Sec.
1600.10 What does this part do?
1600.20 Does this part apply to me?
1600.30 What regulations must I follow?

Subpart A--General

1600.137 Who in DFC may grant an exception to let an excluded person 
participate in a covered transaction?

Subpart B--Covered Transactions

1600.215 Which nonprocurement transactions are not covered 
transactions?
1600.220 What contracts and subcontracts are covered transactions?
Subpart C--Responsibilities of Participants Regarding Transactions
1600.332 What requirements must I pass down to persons at lower 
tiers with whom I intend to do business?
Subpart D--Responsibilities of Federal Agency Officials Regarding 
Transactions
1600.437 What method do I use to communicate to a participant the 
requirements for participating in a covered transaction?
Subparts E and F [Reserved]
Subpart G--Suspension
1600.765 How may I request reconsideration of my DFC suspension?
Subpart H--Debarment
1600.890 How may I request reconsideration of my DFC debarment?
Subpart I--Definitions
1600.930 Debarring official.
1600.1010 Suspending official.

    Authority:  Sec. 2455, Pub. L. 103-355, 108 Stat. 3327 (31 
U.S.C. 6101 note); E.O. 12549, 51 FR 6370, 3 CFR, 1986 Comp., p. 
189; E.O. 12689, 54 FR 34131, 3 CFR, 1989 Comp., p. 235.


Sec.  1600.10   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 U.S. International Development Finance Corporation (DFC) 
regulations for non-procurement debarment and suspension. It thereby 
gives regulatory effect for DFC 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.  1600.20   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 DFC suspension or debarment action;
    (c) DFC suspending or debarring official; and
    (d) DFC investment, guarantee, insurance or grant official 
authorized to enter into any type of non-procurement transaction that 
is a covered transaction.


Sec.  1600.30   What regulations must I follow?

    The DFC regulations that you must follow are the regulations 
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 or by additional 
provisions with no corresponding section number. For any section of OMB 
guidance in subparts A through I of 2 CFR part 180 that has no 
corresponding section in this part, DFC regulations are those in the 
OMB guidance.

Subpart A--General


Sec.  1600.137   Who in DFC may grant an exception to let an excluded 
person participate in a covered transaction?

    The Chief Executive Officer (CEO) of DFC or designee may grant an 
exception permitting an excluded person to participate in a particular 
covered transaction. If the CEO of DFC or designee grants an exception, 
the exception must be in writing and state the reason(s) for deviating 
from the Governmentwide policy in Executive Order 12549.

Subpart B--Covered Transactions


Sec.  1600.215   Which nonprocurement transactions are not covered 
transactions?

    In addition to the nonprocurement transactions which are not 
covered transactions under 2 CFR 180.215, any nonprocurement 
transaction entered into under a primary tier nonprocurement 
transaction that does not require DFC explicit prior consent is not a 
covered transaction under 2 CFR 180.215(g)(2).


Sec.  1600.220   What contracts and subcontracts are covered 
transactions?

    None. Although the OMB guidance at 2 CFR 180.220(c) allows a 
Federal agency to do so (see also optional lower tier coverage in the 
figure in the appendix to 2 CFR part 180), DFC does not extend coverage 
of nonprocurement suspension and debarment requirements beyond first-
tier procurement under a covered nonprocurement transaction. Moreover, 
for purposes of determining whether a procurement contract is included 
as a covered transaction, the threshold in 2 CFR 180.220(b) is 
increased from $25,000 to the ``simplified acquisition threshold'' as 
defined in 48 CFR 2.101.

Subpart C--Responsibilities of Participants Regarding Transactions


Sec.  1600.332   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 that are covered 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.  1600.437   What method do I use to communicate to a participant 
the requirements for participating in a covered transaction?

    To communicate to a participant the requirements described in 2 CFR 
180.435, you must include provisions in the contractual documentation 
of the transaction to ensure compliance with subpart C of 2 CFR part 
180, as supplemented by subpart C of this part.

[[Page 716]]

The provisions must also require the participant to include similar 
terms or conditions of compliance in lower-tier covered transactions.

Subparts E and F [Reserved]

Subpart G--Suspension


Sec.  1600.765   How may I request reconsideration of my DFC 
suspension?

    (a) If the DFC suspending official issues a decision under 2 CFR 
180.755 to continue your suspension after you present information in 
opposition to that suspension under 2 CFR 180.720, you can ask the 
suspending official to reconsider the decision for material errors of 
fact or law that you believe will change the outcome of the matter.
    (b) A request for review under this section must be in writing; 
state the specific findings you believe to be in error; and include the 
reasons or legal bases for your position.
    (c) The suspending official must notify you of their decisions 
under this section, in writing, using the notice procedures at 2 CFR 
180.615 and 180.975.

Subpart H--Debarment


Sec.  1600.890   How may I request reconsideration of my DFC debarment?

    (a) If the DFC debarring official issues a decision under 2 CFR 
180.870 to debar you after you present information in opposition to a 
proposed debarment under 2 CFR 180.815, you can ask the debarring 
official to reconsider the decision for material errors of fact or law 
that you believe will change the outcome of the matter.
    (b) A request for review under this section must be in writing; 
state the specific findings you believe to be in error; and include the 
reasons or legal bases for your position.
    (d) The debarring official must notify you of their decisions under 
this section, in writing, using the notice procedures at 2 CFR 180.615 
and 180.975.

Subpart I--Definitions


Sec.  1600.930   Debarring official.

    The debarring official for DFC is the Vice President & Chief 
Administrative Officer, Office of Administration, or designee as 
delegated in Agency policy.


Sec.  1600.1010   Suspending official.

    The suspending official for DFC is the Vice President & Chief 
Administrative Officer, Office of Administration, or designee as 
delegated in Agency policy.

Subpart J [Reserved]

    Dated: December 14, 2023.
Dev Jagadesan,
Deputy General Counsel, Office of the General Counsel, U.S. 
International Development Finance Corporation.
[FR Doc. 2023-28838 Filed 1-4-24; 8:45 am]
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