Guidance for Governmentwide Debarment and Suspension (Nonprocurement), 66431-66432 [E6-19199]

Agencies

• Office of Management and Budget
• Management and Budget Office

[Federal Register Volume 71, Number 220 (Wednesday, November 15, 2006)]
[Rules and Regulations]
[Pages 66431-66432]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-19199]



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Federal Register / Vol. 71, No. 220 / Wednesday, November 15, 2006 / 
Rules and Regulations

[[Page 66431]]



OFFICE OF MANAGEMENT AND BUDGET

2 CFR Part 180


Guidance for Governmentwide Debarment and Suspension 
(Nonprocurement)

AGENCY: Office of Management and Budget.

ACTION: Final rule.

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

SUMMARY: OMB is revising its Governmentwide guidance on nonprocurement 
debarment and suspension and issuing it in final form. The guidance, as 
implemented by Federal agency regulations, will replace the current 
common rule as the source of uniform agency policies and procedures 
related to nonprocurement debarment and suspension. Replacing the 
common rule with the guidance will reduce the volume of Federal 
regulations in this area and make them simpler to use.

DATES: The effective date for this final guidance is November 15, 2006.

FOR FURTHER INFORMATION CONTACT: Gilbert Tran, Office of Federal 
Financial Management, Office of Management and Budget, telephone (202) 
395-3052 (direct) or (202) 395-3993 (main office) and e-mail: Hai--M.--
Tran@omb.eop.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    OMB published interim final guidance on nonprocurement debarment 
and suspension in the Federal Register on August 31, 2005 [70 FR 
51863]. The issuance of the OMB guidance is an important step toward 
replacing the current common rule on nonprocurement debarment and 
suspension, a regulation that 34 agencies individually publish.
    Replacing the common rule will achieve significant regulatory 
streamlining and simplification. In lieu of its codification of the 
common rule, each agency will adopt the OMB guidance in a brief 
regulation that states any agency-specific additions, exceptions, or 
clarifications to the Government-wide policies and procedures. The OMB 
guidance and the individual agencies' brief adopting parts will replace 
the 34 agency codifications of the full text of the common rule. That 
replacement removes more than 1500 pages of needlessly duplicative 
regulations from the Code of Federal Regulations (CFR). The brief 
adopting parts also make it easy for a reader to see an agency's 
variations from the Government-wide guidance. The variations previously 
were difficult to identify because they were embedded within each 
agency's publication of the full text of the common rule.
    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 notice therefore requested 
comments specifically on any unintended changes from the common rule. 
OMB received comments only from the Interagency Suspension and 
Debarment Committee (ISDC), pointing out a few unintended changes and 
needed technical corrections. These final guidelines make the needed 
revisions.

II. Comments and Changes to the Interim Final Guidance

    The following paragraphs detail the substantive comments OMB 
received from the ISDC and the revisions made to the interim final 
guidance in making it the final guidance:
    Comment: The ISDC recommended adding a new paragraph Sec.  
180.25(c)(7) to state that an agency may include ``any provisions 
authorized by OMB'' in its regulation implementing the guidelines, in 
addition to the specific examples described in Sec.  180.25(c)(1) 
through (6). The added paragraph simply makes explicit the authority 
that OMB already has to approve additional provisions in an agency's 
regulation. The ISDC recommended the paragraph due to a concern that, 
without an explicit statement in Sec.  180.25(c)(7), an agency's 
regulatory provision that was beyond the scope of the six examples in 
Sec.  180.25(c)(1) through (6) could invite a legal challenge, even if 
approved by OMB.
    Response: The guidelines were amended to add the recommended new 
subparagraph Sec.  180.25(c)(7).
    Comment: The ISDC noted a technical error in the wording of Sec.  
180.220(c)(1) that made an unintentional change from the common rule by 
reducing the number of additional tiers of contracts under a covered 
nonprocurement transaction that a Federal agency could include as 
covered transactions under the policy.
    Response: The wording of Sec.  180.220(c)(1) was changed in 
accordance with the recommendation.
    Comment: The ISDC recommended deleting Sec.  180.25(b)(4) and 
revising Sec.  180.300(b) by striking the phrase ``if allowed by the 
Federal agency responsible for the transaction * * *.'' The two changes 
remove the option for a Federal agency to preclude a primary tier 
participant from collecting certifications from a lower tier 
participant as the method it uses to help enforce lower tier 
participant compliance with the requirements of the policy. The ISDC 
recommended dropping the option because no Federal agency used it in 
adopting the common rule on nonprocurement suspension and debarment in 
November 2003.
    Response: Section 180.25(b)(4) was deleted and Sec.  180.300(b) was 
revised, as recommended.
    OMB made one additional technical correction in Sec.  180.220 in 
specifying which contracts and subcontracts under covered 
nonprocurement transactions were to be considered ``covered 
transactions.'' Under the interim final guidelines Sec.  180.220(b)(1) 
included a contract in an amount ``expected to equal or exceed 
$25,000'', while Sec.  180.220(c)(2) included a subcontract with a 
value that ``exceeds or is expected to exceed $25,000.'' The dollar 
thresholds in the two paragraphs were intended to be the same. OMB 
therefore revised the wording of Sec.  180.220(c)(2) to conform with 
that in Sec.  180.220(b)(1).

III. How To Cite Agency Adopted Suspension and Debarment Guidelines

    OMB understands there may be some confusion among practitioners 
regarding citation of the guidelines when adopted by agencies. OMB 
recommends the following long form citation to practitioners:


[[Page 66432]]


2 CFR 180.630 ([Year when the section goes final]) as implemented by 2 
CFR 2424.10 ([Year when section goes final]).

    In the proposed citation, 180.630 refers to the OMB guideline in 
subtitle A, while 2424.10 refers to the specific agency enactment in 
subtitle B giving the guideline regulatory effect. Long forms for 
citations involving only Agency-specific sections or both Adopted 
Guideline and Agency-specific sections should follow standard citation 
formats based upon the above long form.
    OMB further recommends that short forms following the initial 
citation be solely to the guideline or the specific agency drop-in 
cited. The reference to CFR title in the short forms below would be 
dropped if it were to be repeated constantly.

2 CFR 180.630 by 2 CFR 2424.10
[Where the guideline contains all relevant material.]
2 CFR 2424.137
[Where the agency drop-in contains all relevant material.]
2 CFR 180.995, 2424.995
[Where both the guideline and agency drop-in are necessary.]

IV. Next Step

    The next step in replacing the current common rule on 
nonprocurement debarment and suspension is the agencies' issuance of 
regulations adopting the final OMB guidelines, as Sec.  180.30 of the 
guidelines requires. Over the coming months, each agency will publish a 
regulation in a new agency chapter in Subtitle B of 2 CFR, the new 
Government-wide title that OMB established for grants and agreements. 
Each agency also will remove its codification of the common rule from 
its own CFR title so that the OMB guidance and all agency implementing 
regulations on nonprocurement debarment and suspension ultimately will 
be located in 2 CFR.

Availability of Amended 2 CFR Part 180

    OMB has prepared an updated version of 2 CFR part 180 as amended 
herein. It is available electronically on the OMB Home Page at https://
www.omb.gov, and then select ``Grants Management'' followed by 
``Circulars.''

List of Subjects in 2 CFR Part 180

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

Rob Portman,
Director.

Authority and Issuance

0
For the reasons set forth above, the Office of Management and Budget 
amends 2 CFR part 180 in Subtitle A, Chapter I, as set forth below.

PART 180--OMB GUIDELINES TO AGENCIES ON GOVERNMENTWIDE DEBARMENT 
AND SUSPENSION (NONPROCUREMENT)

0
1. The authority citation for part 180 continues to read as follows:

    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.  180.25  [Amended]

0
2. Remove Sec.  180.25(b)(4) and redesignate Sec.  180.25(b)(5) as 
Sec.  180.25(b)(4).

0
3. Revise Sec.  180.25(c)(2) and add (c)(7) to read as follows:


Sec.  180.25  What must a Federal agency address in its implementation 
of the guidance?

* * * * *
    (c) * * *
    (2) Identify any types of nonprocurement transactions that the 
Federal agency exempts from coverage under these guidelines, as 
authorized under Sec.  180.215(g)(2).
* * * * *
    (7) Include any provisions authorized by OMB.

0
4. Revise Sec.  180.220(c)(1) and (c)(2) to read as follows:


Sec.  180.220  Are any procurement contracts included as covered 
transactions?

* * * * *
    (c) * * *
    (1) It is awarded by a participant in a procurement transaction 
under a nonprocurement transaction of a Federal agency that extends the 
coverage of paragraph (b)(1) of this section to additional tiers of 
contracts (see the diagram in the appendix to this part showing that 
optional lower tier coverage); and
    (2) The value of the subcontract is expected to equal or exceed 
$25,000.

0
5. Revise Sec.  180.300(b) to read as follows:


Sec.  180.300  What must I do before I enter into a covered transaction 
with another person at the next lower tier?

* * * * *
    (b) Collecting a certification from that person; or
* * * * *

 [FR Doc. E6-19199 Filed 11-14-06; 8:45 am]
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