Department of Labor Implementation of OMB Guidance on Nonprocurement Debarment and Suspension, 25585-25587 [2016-10015]

Agencies

• DEPARTMENT OF LABOR
• Office of the Assistant Secretary for Administration and Management

[Federal Register Volume 81, Number 83 (Friday, April 29, 2016)]
[Rules and Regulations]
[Pages 25585-25587]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-10015]



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Federal Register / Vol. 81, No. 83 / Friday, April 29, 2016 / Rules 
and Regulations

[[Page 25585]]



DEPARTMENT OF LABOR

Office of the Assistant Secretary for Administration and Management

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: Direct final rule.

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

SUMMARY: The U.S. Department of Labor (DOL) is removing 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: This final rule is effective on April 29, 2016 without further 
action. Submit comments on or before May 31, 2016 on any unintended 
changes this action makes in DOL policies and procedures for debarment 
and suspension. If an adverse comment about unintended changes is 
received, DOL will publish a timely withdrawal of the rule in the 
Federal Register.

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 
debarment and suspension. 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 
guidance 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 taking three 
actions. First, DOL is adding 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 is removing 29 CFR part 98, the part containing the common 
rule on nonprocurement debarment and suspension that the OMB guidance 
supersedes. Third, DOL is making technical corrections to provisions 
within 29 CFR 95 to replace references to the earlier common rule.

III. Public Participation

    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 29 CFR part 98.
    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.

[[Page 25586]]

IV. Regulatory Review

A. 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 DOL'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 
immediately without further action. However, we are affording the 
public an opportunity to comment, in the unlikely scenario where 
unintended consequences are identified. If an adverse comment is 
received, then the rule will be revoked so that such comments can be 
considered fully.

B. Executive Order 12866

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

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

    Foreign governments, Grants and agreements with institutions of 
higher education, hospitals, and other non-profit organizations, and 
with commercial organizations, 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 
amends 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

CHAPTER XXIX--DEPARTMENT OF LABOR

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

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

[[Page 25587]]

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 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 revising the 
citation ``29 CFR part 98'' to read ``2 CFR part 2998''.

PART 98--[REMOVED]

0
8. Remove part 98.

[FR Doc. 2016-10015 Filed 4-28-16; 8:45 am]
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