[Federal Register Volume 89, Number 85 (Wednesday, May 1, 2024)]
[Rules and Regulations]
[Pages 34953-34955]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-08855]



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 Rules and Regulations
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 This section of the FEDERAL REGISTER contains regulatory documents 
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  Federal Register / Vol. 89, No. 85 / Wednesday, May 1, 2024 / Rules 
and Regulations  

[[Page 34953]]



INTERNATIONAL DEVELOPMENT FINANCE CORPORATION

2 CFR Chapter XVI


Nonprocurement Suspension and Debarment

AGENCY: U.S. International Development Finance Corporation.

ACTION: Final rule.

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SUMMARY: The U.S. International Development Finance Corporation (DFC) 
is issuing a final rule to implement its nonprocurement debarment and 
suspension regulations. With this regulatory action, DFC adopts Office 
of Management and Budget (OMB) regulations with some agency specific 
additions and clarifications. This final rule states what contracts are 
covered under this regulation, identifies the official authorized to 
grant exceptions to an excluded persons list, and states the person 
responsible for communicating requirements to both first and second 
tier program participants. Elements not addressed in this regulation 
are covered by the Governmentwide sections in the common rule.

DATES: This rule is effective May 30, 2024.

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 established 
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.
    DFC published its proposed rule regarding nonprocurement suspension 
and debarment on January 5, 2024 (89 FR 714). During the public comment 
period, we received two comments, which are addressed in Sec. Sec.  
1600.220 and 1600.890 (see the corrections published on January 22, 
2024 (89 FR 3896), and March 8, 2024 (89 FR 16701)).

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 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, 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 1600

    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 
adds 2 CFR chapter XVI, consisting of parts 1600 through 1699, to read 
as follows:

Chapter XVI--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?

[[Page 34954]]

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-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 2 
CFR part 180, subpart B, 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?

    First-tier procurements (i.e., primary contracts) under a covered 
nonprocurement transaction are covered transactions. 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 the OMB guidance in 2 CFR part 180, subpart 
C, 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 2 CFR part 180, subpart C, 
as supplemented by subpart C of this part. The provisions must also 
require the participant to include similar terms or conditions of 
compliance in lower-tier covered transactions.

Subparts E-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

[[Page 34955]]

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.
    (c) DFC may debar a person or entity for refusing to engage in 
efforts to remediate identified environmental, social, and human rights 
harm stemming from their activities, including harm that may be 
identified through a DFC Office of Accountability complaints process.
    (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.

PARTS 1601-1699 [RESERVED]

    Dated: April 10, 2024.
Lisa Wischkaemper,
Assistant General Counsel, Office of the General Counsel, U.S. 
International Development Finance Corporation.
[FR Doc. 2024-08855 Filed 4-30-24; 8:45 am]
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