[Federal Register: December 5, 2006 (Volume 71, Number 233)]
[Rules and Regulations]
[Page 70457-70460]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05de06-1]
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Rules and Regulations
Federal Register
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DEPARTMENT OF ENERGY
2 CFR Part 901
10 CFR Parts 600 and 606
RIN 1991-AB74
Nonprocurement Debarment and Suspension
AGENCY: Department of Energy.
ACTION: Final rule.
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SUMMARY: The Department of Energy (DOE) is moving its regulations on
nonprocurement debarment and suspension from their current location in
title 10 of the Code of Federal Regulations (CFR) to title 2 of the
CFR, and is adopting the format established by the Office of Management
and Budget (OMB) in a notice of interim final guidance on
nonprocurement debarment and suspension published in the Federal
Register on August 31, 2005. In today's rule, DOE establishes a new 2
CFR part 901 that adopts OMB's final government-wide guidance on
nonprocurement debarment and suspension and contains supplemental DOE
nonprocurement debarment and suspension provisions. In addition, this
rule removes 10 CFR part 606, the existing DOE nonprocurement debarment
and suspension regulations, and makes a conforming change to 10 CFR
part 600. These changes constitute an administrative simplification
that makes no substantive change in DOE policy or procedures for
nonprocurement debarment and suspension.
DATES: Effective Date: This final rule is effective on December 5,
2006.
FOR FURTHER INFORMATION CONTACT: Cynthia Yee, Office of Procurement and
Assistance Management, Department of Energy, Mail Stop MA-61, 1000
Independence Avenue, SW., Washington, DC 20585, telephone 202-287-1666
and e-mail: Cynthia.yee@hq.doe.gov.
SUPPLEMENTARY INFORMATION:
I. Introduction
On May 11, 2004, OMB established title 2 of the CFR with two
subtitles (69 FR 2627). 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 debarment and suspension in the Federal
Register (70 FR 51863). The guidance was 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, ``Debarment and Suspension'' (February 18, 1986), which
gave government-wide effect to each agency's nonprocurement debarment
and suspension actions. Section 6 of the Executive order authorized OMB
to issue guidance to Executive agencies on nonprocurement debarment and
suspension, including provisions prescribing government-wide criteria
and minimum due process procedures. Section 3 directed Executive
agencies to issue regulations implementing the Executive order that are
consistent with the OMB guidelines. The interim final guidance at 2 CFR
part 180 conforms the OMB guidance with the Federal agencies' November
26, 2003, update to the common rule on nonprocurement debarment and
suspension (see 70 FR 51864). Although substantively the same as the
common rule, OMB's interim final guidance was published in a form
suitable for agency adoption, thus eliminating the need for each agency
to repeat the full text of the OMB government-wide guidance in its
implementing regulations. This new approach is intended to make it
easier for recipients of covered transactions or respondents in
suspension or debarment actions to discern agency-to-agency variations
from the common rule language; reduce the volume of Federal regulations
in the CFR; and streamline the process for updating the government-wide
requirements on nonprocurement debarment and suspension (70 FR 51864).
On November 15, 2006, OMB published a final rule adopting the interim
final guidance with changes (71 FR 66431).
This final rule places DOE's nonprocurement debarment and
suspension regulations in subtitle B of title 2 of the CFR, along with
other agencies' nonprocurement debarment and suspension rules. This
action was required by the OMB interim final guidance, which is made
final on November 15, 2006 (see 2 CFR 180.20, 180.25, 180.30 and
180.35). The new CFR part 901 adopts the OMB guidelines with additions
and clarifications that DOE made to the common rule on nonprocurement
suspension and debarment in the DOE rule published on November 26, 2003
(68 FR 66566-68). The substance of DOE's nonprocurement debarment and
suspension regulations is unchanged. DOE is removing 10 CFR part 606,
which was added to the CFR as part of the November 2003 common rule.
DOE also is amending a provision in its Financial Assistance Rules (10
CFR 600.23) to update the reference to DOE's nonprocurement debarment
and suspension regulations.
II. Procedural Requirements
A. Executive Order 12866
OMB has determined this rule to not be a ``significant regulatory
action'' under Executive Order 12866, ``Regulatory Planning and
Review,'' 58 FR 51735 (October 4, 1993). Accordingly, this action was
not subject to review under that Executive Order by the Office of
Information and Regulatory Affairs within OMB.
B. Regulatory Flexibility Act of 1980
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
preparation of an initial regulatory flexibility analysis for any rule
that by law must be proposed for public comment, unless the agency
certifies that the rule, if promulgated, will not have a significant
economic impact on a substantial number of small entities. As required
by Executive Order 13272, ``Proper Consideration of Small Entities in
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published
procedures and policies on February 19,
[[Page 70458]]
2003, to ensure that the potential impacts of its rules on small
entities are properly considered during the rulemaking process (68 FR
7990). DOE has made its procedures and policies available on the Office
of General Counsel's Web site: http://www.gc.doe.gov. DOE today is
amending its nonprocurement debarment and suspension procedures.
Because a general notice of proposed rulemaking is not required for
this rulemaking, the Regulatory Flexibility Act requirements do not
apply.
C. 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.
D. Paperwork Reduction Act of 1995
This final rule does not impose any new collection of information
subject to review and approval by OMB under the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq.
E. 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
government and the States, or on the distribution of power and
responsibilities among the various levels of government.
F. National Environmental Policy Act
DOE has determined that this rule is covered under the Categorical
Exclusion found in the Department's National Environmental Policy Act
regulations at paragraph A.6 of Appendix A to Subpart D, 10 CFR Part
1021, which applies to rulemakings that are strictly procedural.
Today's final rule makes non-substantive changes to DOE's
nonprocurement debarment and suspension procedures. Accordingly,
neither an environmental assessment nor an environmental impact
statement is required.
G. Treasury and General Government Appropriations Act, 1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family
Policymaking Assessment for any proposed rule that may affect family
well being. This rule will not have any impact on the autonomy or
integrity of the family as an institution. Accordingly, DOE has
concluded that it is not necessary to prepare a Family Policymaking
Assessment.
H. Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, Section 3(a) of Executive Order 12988,
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on
Executive agencies the general duty to adhere to the following
requirements: (1) Eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction. With regard to the review
required by Section 3(a), Section 3(b) of Executive Order 12988
specifically requires that Executive agencies make every reasonable
effort to ensure that the regulation: (1) Clearly specifies the
preemptive effect, if any; (2) clearly specifies any effect on existing
Federal law or regulation; (3) provides a clear legal standard for
affected conduct while promoting simplification and burden reduction;
(4) specifies the retroactive effect, if any; (5) adequately defines
key terms; and (6) addresses other important issues affecting clarity
and general draftsmanship under any guidelines issued by the Attorney
General. Section 3(c) of Executive Order 12988 requires Executive
agencies to review regulations in light of applicable standards in
Section 3(a) and Section 3(b) to determine whether they are met or it
is unreasonable to meet one or more of them. DOE has completed the
required review and determined that, to the extent permitted by law,
the final rule meets the relevant standards of Executive Order 12988.
I. Treasury and General Government Appropriations Act, 2001
The Treasury and General Government Appropriations Act, 2001 (44
U.S.C. 3516 note) provides for agencies to review most disseminations
of information to the public under guidelines established by each
agency pursuant to general guidelines issued by OMB. OMB's guidelines
were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines
were published at 67 FR 62446 (October 7, 2002). DOE has reviewed
today's notice under the OMB and DOE guidelines and has concluded that
it is consistent with applicable policies in those guidelines.
J. Executive Order 13211
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355
(May 22, 2001) requires Federal agencies to prepare and submit to the
OMB, a Statement of Energy Effects for any proposed significant energy
action. A ``significant energy action'' is defined as any action by an
agency that promulgated or is expected to lead to promulgation of a
final rule, and that: (1) Is a significant regulatory action under
Executive Order 12866, or any successor order; and (2) is likely to
have a significant adverse effect on the supply, distribution, or use
of energy, or (3) is designated by the Administrator of OIRA as a
significant energy action. For any proposed significant energy action,
the agency must give a detailed statement of any adverse effects on
energy supply, distribution, or use should the proposal be implemented,
and of reasonable alternatives to the action and their expected
benefits on energy supply, distribution, and use. Today's regulatory
action would not have a significant adverse effect on the supply,
distribution, or use of energy and is therefore not a significant
energy action. Accordingly, DOE has not prepared a Statement of Energy
Effects.
K. Congressional Notification
As required by 5 U.S.C. 801, DOE will report to Congress on the
promulgation of today's rule prior to its effective date. The report
will state that it has been determined that the rule is not a ``major
rule'' as defined by 5 U.S.C. 804(2).
III. Approval of the Office of the Secretary of Energy
Issuance of this final rule has been approved by the Office of the
Secretary of Energy.
List of Subjects
2 CFR Part 901
Administrative practice and procedure, Debarment and suspension,
Grant programs, Reporting and recordkeeping requirements.
10 CFR Part 600
Administrative practice and procedure, Assistance programs.
10 CFR Part 606
Administrative practice and procedure, Debarment and suspension,
Government contracts, Grant programs, Loan programs, Reporting and
recordkeeping requirements.
[[Page 70459]]
Issued in Washington, DC on November 29, 2006.
Edward R. Simpson,
Director, Office of Procurement and Assistance Management, Office of
Management, Department of Energy.
David O. Boyd,
Acting Director, Office of Acquisition and Supply Management, National
Nuclear Security Administration.
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Accordingly, DOE hereby amends subtitle B of title 2 and Chapter II of
title 10 of the Code of Federal Regulations, as set forth below:
Title 2--Grants and Agreements
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1. Add Chapter 9, consisting of Part 901 to Subtitle B to read as
follows:
CHAPTER 9--Department of Energy
PART 901--NONPROCUREMENT DEBARMENT AND SUSPENSION
Sec.
901.10 What does this part do?
901.20 Does this part apply to me?
901.30 What policies and procedures must I follow?
Subpart A--General
901.137 Who in the Department of Energy may grant an exception to
let an excluded person participate in a covered transaction?
Subpart B--Covered Transactions
901.220 What contracts and subcontracts, in addition to those listed
in 2 CFR 180.220, are covered transactions?
Subpart C--Responsibilities of Participants Regarding Transactions
901.332 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
901.437 What method do I use to communicate to a participant the
requirements described in the OMB guidance at 2 CFR 180.435?
Subpart E-H--[Reserved]
Subpart I--Definitions
901.930 Debarring official (Department of Energy supplement to
government-wide definition at 2 CFR 180.935).
901.950 Federal agency (Department of Energy supplement to
government-wide definition at 2 CFR 180.910).
901.1010 Suspending official (Department of Energy supplement to
government-wide definition at 2 CFR 180.1010).
Subpart J [Reserved]
Authority: Sec. 2455, Pub. L. 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); 42 U.S.C. 7101 et seq.; 50 U.S.C. 2401 et
seq.
Sec. 901.10 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 DOE policies and procedures for nonprocurement debarment
and suspension. It thereby gives regulatory effect for DOE 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, Pub. L. 103-
355 (31 U.S.C. 6101 note).
Sec. 901.20 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 DOE suspension or debarment action;
(c) DOE debarment or suspension official; and
(d) DOE grants officer, agreements officer, or other official
authorized to enter into any type of nonprocurement transaction that is
a covered transaction.
Sec. 901.30 What policies and procedures must I follow?
The DOE 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. 901.137 Who in the Department of Energy may grant an exception
to let an excluded person participate in a covered transaction?
The Director, Office of Procurement and Assistance Management, DOE,
for DOE actions, and the Director, Office of Acquisition and Supply
Management, NNSA, for NNSA actions, may grant an exception permitting
an excluded person to participate in a particular covered transaction.
If the Director, Office of Procurement and Assistance Management, DOE,
for DOE actions, and Director, Office of Acquisition and Supply
Management, NNSA, for NNSA actions, 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. 901.220 What contracts and subcontracts, in addition to those
listed in 2 CFR 180.220, are covered transactions?
Although the OMB guidance at 2 CFR180.220(c) allows a Federal
agency to do so (also see optional lower tier coverage in the figure in
the Appendix to 2 CFR part 180), DOE does not extend coverage of
nonprocurement suspension and debarment requirements beyond first-tier
procurement contracts under a covered nonprocurement transaction.
Subpart C--Responsibilities of Participants Regarding Transactions
Sec. 901.332 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.
Subpart D--Responsibilities of Federal Agency Officials Regarding
Transactions
Sec. 901.437 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, as supplemented by subpart C of this part, and
requires the participant to include a similar term or condition in
lower-tier covered transactions.
Subpart E-H--[Reserved]
Subpart I--Definitions
Sec. 901.930 Debarring official (Department of Energy supplement to
government-wide definition at 2 CFR 180.930).
The Debarring Official for the Department of Energy, exclusive of
NNSA, is the Director, Office of Procurement and Assistance Management,
DOE. The Debarring Official for NNSA is the Director, Office of
Acquisition and Supply Management, NNSA.
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Sec. 901.950 Federal agency (Department of Energy supplement to
government-wide definition at 2 CFR 180.950).
DOE means the U.S. Department of Energy, including the NNSA.
NNSA means the National Nuclear Security Administration.
Sec. 901.1010 Suspending official (Department of Energy supplement to
government-wide definition at 2 CFR 180.1010).
The suspending official for the Department of Energy, exclusive of
NNSA, is the Director, Office of Procurement and Assistance Management,
DOE. The suspending official for NNSA is the Director, Office of
Acquisition and Supply Management, NNSA.
Subpart J--[Reserved]
Title 10--Energy
Chapter II, Subchapter H
PART 600--FINANCIAL ASSISTANCE RULES
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2. The authority citation for part 600 continues to read as follows:
Authority: 42 U.S.C. 7101 et seq.; 31 U.S.C. 6301-6308; 50
U.S.C. 2401 et seq., unless otherwise noted.
Sec. 600.23 [Amended]
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3. Section 600.23 of subpart A is amended by removing ``10 CFR part
1036'' and adding ``2 CFR part 901'' in lieu thereof.
PART 606--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
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4. Remove part 606.
[FR Doc. E6-20518 Filed 12-4-06; 8:45 am]
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