Department of Labor Implementation of OMB Guidance on Nonprocurement Debarment and Suspension, 25620-25622 [2016-10014]

Agencies

• DEPARTMENT OF LABOR

[Federal Register Volume 81, Number 83 (Friday, April 29, 2016)]
[Proposed Rules]
[Pages 25620-25622]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-10014]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

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. 81, No. 83 / Friday, April 29, 2016 / 
Proposed Rules

[[Page 25620]]



DEPARTMENT OF LABOR

2 CFR Part 2998

29 CFR Parts 95 and 98

RIN 1291-AA38


Department of Labor Implementation of OMB Guidance on 
Nonprocurement Debarment and Suspension

AGENCY: Office of the Assistant Secretary for Administration and 
Management, Department of Labor.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The U.S. Department of Labor (DOL) is proposing to remove its 
regulations implementing the government-wide common rule on 
nonprocurement debarment and suspension, currently located in part 98 
of title 29 of the Code of Federal Regulations (CFR), and adopting the 
Office of Management and Budget's (OMB) guidance at title 2 of the CFR. 
This regulatory action implements the OMB's initiative to streamline 
and consolidate into one title of the CFR all Federal regulations on 
nonprocurement debarment and suspension. These changes constitute an 
administrative simplification that would make no substantive change in 
DOL policy or procedures for nonprocurement debarment and suspension.

DATES: Submit comments on the proposed rule by or before May 31, 2016.

ADDRESSES: Comments may be submitted in two ways. All email comments 
regarding this rule should be sent to Ms. Duyen Tran Ritchie at 
Ritchie.duyen.t@dol.gov. To ensure proper handling, please reference 
the RIN number in the subject line on your electronic correspondence. 
Alternatively, comments may be submitted electronically at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Duyen Tran Ritchie, Office of Chief 
Procurement Officer, (202) 693-7277 [Note: This is not a toll-free 
telephone number]; or by email at Ritchie.duyen.t@dol.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    On November 26, 2003, at 68 FR 66534, DOL adopted the government-
wide nonprocurement debarment and suspension common rule, which recast 
the nonprocurement debarment and suspension regulations in plain 
English and made other required updates.
    Thereafter, on May 11, 2004, at 69 FR 26276, OMB established title 
2 of the CFR as the new central location for OMB guidance and agency 
implementing regulations concerning grants and agreements. This 
approach benefits the public by making it easier for the affected 
public to identify an agency's additions and clarifications to the 
Government-wide policies and procedures. In that action, OMB announced 
its intention to replace the common rules with OMB guidance that 
agencies could adopt. OMB began that process by proposing on August 31, 
2005, at 70 FR 51863, an interim final guidance on non-procurement 
suspension and debarment. That guidance 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 or clarifications to the government-wide policies and 
procedures. The notice stated that the substantive content of the 
guidelines was intended to conform with the substance of the Federal 
agencies' most recent update in 2003 to the common rule. The guidance 
was finalized on November 15, 2006, at 71 FR 66431. The proposed 
regulatory actions will bring the Department into compliance with OMB's 
2006 guidance.

II. The Current Regulatory Actions

    Pursuant to requirements in OMB's guidance, DOL is proposing to 
take three actions. First, DOL would add a new part to its existing 
chapter XXIX under title 2 of the CFR subtitle B, which is a brief 
adoption of the OMB guidance and states DOL-specific additions and 
clarifications. Second, DOL would remove 29 CFR part 98, the part 
containing the common rule on nonprocurement debarment and suspension 
that the OMB guidance supersedes. Third, DOL would make technical 
corrections to provisions within 29 CFR part 95 to replace references 
to the earlier common rule. Taken together, these regulatory actions 
are solely an administrative simplification and are not intended to 
make any substantive change in policies or procedures.

III. Public Participation

    The Department invites public comments on the proposed actions. 
Please submit comments by only one method. Receipt of comments will not 
be acknowledged; however, the Department will post all comments 
received on https://www.regulations.gov without making any change to the 
comments, including any personal information provided. The https://www.regulations.gov Web site is the Federal e-rulemaking portal, and 
all comments posted there are available and accessible to the public.
    The Department cautions commenters not to include personal 
information, such as Social Security Numbers, personal addresses, 
telephone numbers and email addresses, in comments, as such submitted 
information will become viewable by the public via https://www.regulations.gov. It is the responsibility of the commenter to 
safeguard personal information. Comments submitted through https://www.regulations.gov will not include the commenter's email address 
unless the commenter chooses to include that information as a part of a 
comment.

IV. Regulatory Review

A. Administrative Procedure Act

    The proposed rule would be solely an administrative simplification 
that would make no substantive change in DOL's policy or procedures for 
debarment and suspension. Consequently, the proposed rule qualifies for 
the ``good cause'' exception to the Administrative Procedure Act, see 5 
U.S.C. 553(b)(B). However, the Department wishes to provide the public 
with an opportunity to submit comments on any aspect of the entire 
proposed rule.

B. Executive Order 12866

    OMB has determined this proposed rule to be not significant for 
purposes of E.O. 12866.

[[Page 25621]]

C. 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.

D. 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.

E. 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.

F. 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.

G. Impact on Indian Tribes (Executive Order 13175)

    This proposed regulatory action does not have tribal implications 
under Executive Order 13175 that would require a tribal summary impact 
statement. The proposed rule would not have substantial direct effects 
on one or more Indian tribes, on the relationship between the Federal 
government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal government and Indian tribes.

H. Interference With Protected Property Rights (Executive Order 12630)

    The proposed regulatory action is not subject to Executive Order 
12630 because it does not involve implementation of a policy that has 
takings implications or that could impose limitations on private 
property use.

List of Subjects

2 CFR Part 2998

    Administrative practice and procedure, Debarment and suspension, 
Government procurement, Grant programs, Grants administration, 
Reporting and recordkeeping requirements.

29 CFR Part 95

    Grants and agreements with institutions of higher education, 
hospitals, and other non-profit organizations, and with commercial 
organizations, foreign governments, organizations under the 
jurisdiction of foreign governments, and international organizations.

29 CFR Part 98

    Governmentwide debarment and suspension (nonprocurement).

    Dated: April 22, 2016.
T. Michael Kerr,
Assistant Secretary for Administration and Management.

    Accordingly, for the reasons set forth in the preamble, and under 
the authority of 5 U.S.C. 301; E.O. 12549 (3 CFR, 1986 Comp. p.189); 
E.O. 12689 (3 CFR, 1989 Comp. p.235); sec 2455 Public Law 103-355, 108 
Stat. 3327 (31 U.S.C. 6101 note), the United States Department of Labor 
proposes to amend the Code of Federal Regulations, title 2, subtitle B, 
and parts 95 and 98 of subtitle B of title 29, as follows:

Title 2--Grants and Agreements

0
1. Add part 2998 to chapter XXIX of subtitle B to read as follows:

CHAPTER XXIX--DEPARTMENT OF LABOR

PART 2998--NONPROCUREMENT DEBARMENT AND SUSPENSION

Sec.
2998.10 What does this part do?
2998.20 Does this part apply to me?
2998.30 What policies and procedures must I follow?
Subpart A--General
2998.137 Who in the DOL may grant an exception to let an excluded 
person participate in a covered transaction?
Subpart B--Covered Transactions
2998.220 What contracts and subcontracts, in addition to those 
listed in 2 CFR 180.220, are covered transactions?
Subpart C--Responsibilities of Participants Regarding Transactions
2998.332 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
2998.437 What method do I use to communicate to a participant the 
requirements described in the OMB guidance at 2 CFR 180.435?
Subparts E through J--[Reserved]

    Authority:  5 U.S.C. 301; E.O. 12549 (3 CFR, 1986 Comp., p.189); 
E.O. 12689 (3 CFR, 1989 Comp., p. 235); sec 2455 Pub. L. 103-355, 
108 Stat. 3327 (31 U.S.C. 6101 note).


Sec.  2998.10   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 Department of Labor (DOL) policies and procedures for non-
procurement debarment and suspension. It thereby gives regulatory 
effect for DOL 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, 
103 (31 U.S.C. 6101 note).


Sec.  2998.20   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 Department of Labor suspension or debarment 
action;
    (c) Department of Labor debarment or suspension official; or
    (d) Department of Labor grants officer, agreements officer, or 
other official authorized to enter into any type of non-procurement 
transaction that is a covered transaction.


Sec.  2998.30   What policies and procedures must I follow?

    (a) The Department of Labor's policies and procedures that you must 
follow are specified in:
    (1) Each applicable section of the OMB guidance in subparts A 
through I of 2 CFR part 180; and
    (2) The supplement to each section of the OMB guidance that is 
found in this part under the same section number. (The contracts that 
are covered transactions, for example, are specified by section 220 of 
the OMB guidance (i.e., 2 CFR 180.220) as supplemented by section 220 
in this part (i.e., Sec. 2998.220)).
    (b) For any section of OMB guidance in subparts A through I of 2 
CFR part 180 that has no corresponding section in this part, the 
Department of Labor's policies and procedures are those in the OMB 
guidance.

Subpart A--General


Sec.  9808.137  Who in DOL may grant an exception to let an excluded 
person participate in a covered transaction?

    Within the Department of Labor, the Secretary of Labor or designee 
has the authority to grant an exception to let an

[[Page 25622]]

excluded person participate in a covered transaction, as provided in 
the OMB guidance at 2 CFR 180.135. If any designated official 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.  2998.220  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 Department of Labor under a covered 
non-procurement transaction. This extends the coverage of the 
Department of Labor 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).

Subpart C--Responsibilities of Participants Regarding Transactions


Sec.  2998.332  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.  2998.437  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 through J--[Reserved]

Title 29--Labor

PART 95--[AMENDED]

0
2. The authority citation for part 95 continues to read as follows:

    Authority: 5 U.S.C. 301; OMB Circular A-110, as amended, as 
codified at 2 CFR part 215.


Sec.  95.2  [Amended]

0
3. Section 95.2 is amended in paragraph (mm) by revising the first 
citation ``29 CFR part 98'' to read ``2 CFR part 2998'' and revising 
the second citation ``29 CFR part 98, subpart D'' to read ``29 CFR part 
98''.


Sec.  95.13  [Amended]

0
4. Section 95.13 is amended by revising the citation ``29 CFR part 98'' 
to read ``2 CFR part 2998''.


Sec.  95.44  [Amended]

0
5. Section 95.44 is amended in paragraph (d) by revising the citation 
``29 CFR part 98'' to read ``2 CFR part 2998''.


Sec.  95.62  [Amended]

0
6. Section 95.62 is amended in paragraph (d) by revising the citation 
``29 CFR part 98'' to read ``2 CFR part 2998''.

Appendix A to Part 95--[Amended]

0
7. Appendix A to part 95 is amended in paragraph 7 by removing the 
citation ``29 CFR part 98'' and adding in its place the citation to 
read ``2 CFR part 2998''.

PART 98--[REMOVED]

0
8. Remove part 98.

[FR Doc. 2016-10014 Filed 4-28-16; 8:45 am]
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