[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
Federal Register
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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.
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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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