Nonprocurement Debarment and Suspension, 52993-52997 [2019-20865]
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52993
Rules and Regulations
Federal Register
Vol. 84, No. 193
Friday, October 4, 2019
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents.
DEPARTMENT OF AGRICULTURE
2 CFR Part 417
Federal Crop Insurance Corporation
7 CFR Part 400
[0505–AA17]
Nonprocurement Debarment and
Suspension
Office of the Chief Financial
Officer and Federal Crop Insurance
Corporation, USDA.
AGENCY:
ACTION:
Final rule.
The USDA issues this final
rule to adopt certain provisions of the
Office of Management and Budget
(OMB) guidelines to agencies on
governmentwide debarment and
suspension (nonprocurement) not
previously adopted, to adopt changes
made to the OMB guidance after its
initial publication in 2010, and to revise
the definition of the term ‘‘disqualified’’
to add the statutory disqualification
requirements for USDA agencies.
Finally, this rule removes a reference to
the old USDA suspension and
debarment regulations for the Federal
Crop Insurance Corporation and
replaces it with the current regulations.
This regulatory action makes no
substantive changes in USDA policy or
procedures for nonprocurement
debarment and suspension.
SUMMARY:
This final rule is effective as of
October 4, 2019.
DATES:
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FOR FURTHER INFORMATION CONTACT:
Tyson Whitney, Director, Transparency
and Accountability Reporting Division,
Office of the Chief Financial Officer,
Room 3027–S, Stop Code 9011, U.S.
Department of Agriculture, 1400
Independence Avenue SW, Washington,
DC 20250; (202) 720–8978;
Tyson.whitney@usda.gov.
SUPPLEMENTARY INFORMATION:
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Background
USDA published a direct final rule on
May 25, 2010, to adopt the OMB
guidelines to agencies on
nonprocurement debarment and
suspension as 2 CFR part 417 (75 FR
29183). USDA issues this final rule to
adopt subpart E, General Services
Administration’s System for Award
Management (GSA/SAM) (formerly
Excluded Parties List System) and
subpart F, General Principles Relating to
Suspension and Debarment, of 2 CFR
part 180. It also revises 2 CFR part 417
to amend subpart I to add the definition
of ‘‘disqualified’’ in 2 CFR 417.935, as
supplemented to include the statutory
disqualifications required under USDA
programs, and the definition of
‘‘nonprocurement transaction’’ in 2 CFR
417.970, and to adopt the Appendix to
Part 180—Covered Transactions.
Finally, this rule amends 7 CFR part 400
to replace a reference to the old USDA
suspension and debarment regulations
in 7 CFR 400.454.
Discussion and Analysis
The amendment to part 417 adopts
subparts and definitions in the OMB
guidelines to agencies on
nonprocurement debarment and
suspension not previously adopted and
captures updates to 2 CFR part 180 that
have occurred since 2010. These
include Subpart E, General Services
Administration’s System for Award
Management (GSA/SAM) (formerly
Excluded Parties List System); Subpart
F, General Principles Relating to
Suspension and Debarment; definitions
added in 2 CFR 180.935, as
supplemented to include USDA
statutory disqualifications, and 2 CFR
180.970; and Appendix to Part 180—
Covered Transactions. This rule also
replaces a reference to 7 CFR part 3017
in 7 CFR 400.454 with a reference to 2
CFR part 417. This regulatory action is
a technical update of the rule and does
not represent a change in current USDA
nonprocurement debarment and
suspension policy or procedures.
Executive Order 12866 Regulatory
Planning and Review
This rule is issued in conformance
with Executive Order 12866,
‘‘Regulatory Planning and Review.’’ It
has been determined to be not
significant for the purposes of Executive
Order 12866 and, therefore, was not
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reviewed by the Office of Management
and Budget. Pursuant to the
Congressional Review Act (5 U.S.C. 801
et seq.), the Office of Information and
Regulatory Affairs designated this rule
as not a major rule, as defined by 5
U.S.C. 804(2).
IV. Regulatory Flexibility Act of 1980 (5
U.S.C. 605(b))
This regulatory action will not have a
significant, adverse impact on a
substantial number of small entities.
V. Unfunded Mandates Act of 1995
(Sec. 202, Pub. L. 104–4)
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.
VI. 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.
VII. Federalism (Executive Order
13132)
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 Federal
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, except as required
by law. This rule does not impose
substantial direct compliance costs on
State and local governments. Therefore,
consultation with the States was not
required.
VIII. Executive Order 13175
(Consultation and Coordination With
Indian Tribal Governments)
Executive Order 13175, entitled
‘‘Consultation and Coordination With
Indian Tribal Governments’’ (65 FR
67249, November 9, 2000), requires
agencies to develop an accountable
process to ensure ‘‘meaningful and
timely input by tribal officials in the
development of regulatory policies that
have tribal implications.’’ This rule does
not have tribal implications, as specified
in Executive Order 13175.
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Federal Register / Vol. 84, No. 193 / Friday, October 4, 2019 / Rules and Regulations
List of Subjects
2 CFR Part 417
Administrative practice and
procedure, Grant programs, Reporting
and recordkeeping requirements.
7 CFR Part 400
Acreage allotments, Administrative
practice and procedure, Claims, Crop
insurance, Drug traffic control, Fraud,
Government employees, Income taxes,
Intergovernmental relations, Penalties,
Reporting and recordkeeping
requirements, Wages.
For the reasons discussed in the
preamble, the Department of Agriculture
amends 2 CFR part 417 and 7 CFR part
400 as follows:
Title 2—Grants and Agreements
CHAPTER IV—DEPARTMENT OF
AGRICULTURE
1. The authority citation for part 417
continues to read as follows:
■
Authority: 5 U.S.C. 301; Pub. L. 101–576,
104 Stat. 2838; Sec. 2455, Pub. L. 103–355,
108 Stat. 3327 (31 U.S.C. 6101 note); 7 U.S.C.
2209j; E.O. 12549 (3 CFR, 1986 Comp., p.
189); E.O. 12689 (3 CFR, Comp., p. 235); 7
CFR 2.28.
2. Add subpart E, consisting of
§§ 417.500 through 417.530, to read as
follows:
■
Subpart E—System for Award Management
Exclusions
Sec.
417.500 What is the purpose of the System
for Award Management Exclusions
(SAM Exclusions)?
417.505 Who uses SAM Exclusions?
417.510 Who maintains SAM Exclusions?
417.515 What specific information is in
SAM Exclusions?
417.520 Who places the information into
SAM Exclusions?
417.525 Whom do I ask if I have questions
about a person in SAM Exclusions?
417.530 Where can I find SAM Exclusions?
Subpart E—System for Award
Management Exclusions
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§ 417.500 What is the purpose of the
System for Award Management Exclusions
(SAM Exclusions)?
SAM Exclusions is a widely available
source of the most current information
about persons who are excluded or
disqualified from covered transactions.
Who uses SAM Exclusions?
(a) Federal agency officials use SAM
Exclusions to determine whether to
enter into a transaction with a person,
as required under § 180.430 of this title.
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§ 417.510 Who maintains SAM
Exclusions?
The General Services Administration
(GSA) maintains SAM Exclusions.
When a Federal agency takes an action
to exclude a person under the
nonprocurement or procurement
debarment and suspension system, the
agency enters the information about the
excluded person into SAM Exclusions.
§ 417.515 What specific information is in
SAM Exclusions?
PART 417—NONPROCUREMENT
DEBARMENT AND SUSPENSION
§ 417.505
(b) Participants also may, but are not
required to, use SAM Exclusions to
determine if—
(1) Principals of their transactions are
excluded or disqualified, as required
under § 180.320 of this title; or
(2) Persons with whom they are
entering into covered transactions at the
next lower tier are excluded or
disqualified.
(c) SAM Exclusions are available to
the general public.
(a) At a minimum, SAM Exclusions
indicates—
(1) The full name (where available)
and address of each excluded and
disqualified person, in alphabetical
order, with cross references if more than
one name is involved in a single action;
(2) The type of action;
(3) The cause for the action;
(4) The scope of the action;
(5) Any termination date for the
action;
(6) The Federal agency and name and
telephone number of the agency point of
contact for the action; and
(7) The unique entity identifier
approved by the GSA, of the excluded
or disqualified person, if available.
(b)(1) The database for SAM
Exclusions includes a field for the
Taxpayer Identification Number (TIN)
(the social security number (SSN) for an
individual) of an excluded or
disqualified person.
(2) Agencies disclose the SSN of an
individual to verify the identity of an
individual, only if permitted under the
Privacy Act of 1974 and, if appropriate,
the Computer Matching and Privacy
Protection Act of 1988, as codified in 5
U.S.C. 552(a).
§ 417.520 Who places the information into
SAM Exclusions?
Federal agency officials who take
actions to exclude persons under this
part or officials who are responsible for
identifying disqualified persons must
enter the following information about
those persons into SAM Exclusions:
(a) Information required by
§ 180.515(a) of this title;
(b) The Taxpayer Identification
Number (TIN) of the excluded or
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disqualified person, including the social
security number (SSN) for an
individual, if the number is available
and may be disclosed under law;
(c) Information about an excluded or
disqualified person, within three
business days, after—
(1) Taking an exclusion action;
(2) Modifying or rescinding an
exclusion action;
(3) Finding that a person is
disqualified; or
(4) Finding that there has been a
change in the status of a person who is
listed as disqualified.
§ 417.525 Whom do I ask if I have
questions about a person in SAM
Exclusions?
If you have questions about a listed
person in SAM Exclusions, ask the
point of contact for the Federal agency
that placed the person’s name into SAM
Exclusions. You may find the agency
point of contact from SAM Exclusions.
§ 417.530 Where can I find SAM
Exclusions?
You may access SAM Exclusions
through the internet, currently at
https://www.sam.gov.
■ 3. Add subpart F, consisting of
§§ 417.600 through 417.660, to read as
follows:
Subpart F—General Principles Relating to
Suspension and Debarment Actions
Sec.
417.600 How do suspension and debarment
actions start?
417.605 How does suspension differ from
debarment?
417.610 What procedures does a Federal
agency use in suspension and debarment
actions?
417.615 How does a Federal agency notify
a person of a suspension or debarment
action?
417.620 Do Federal agencies coordinate
suspension and debarment actions?
417.625 What is the scope of a suspension
or debarment?
417.630 May a Federal agency impute the
conduct of one person to another?
417.635 May a Federal agency settle a
debarment or suspension action?
417.640 May a settlement include a
voluntary exclusion?
417.645 Do other Federal agencies know if
an agency agrees to a voluntary
exclusion?
417.650 May an administrative agreement
be the result of a settlement?
417.655 How will other Federal awarding
agencies know about an administrative
agreement that is the result of a
settlement?
417.660 Will administrative agreement
information about me in the designated
integrity and performance system
accessible through SAM be corrected or
updated?
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Subpart F—General Principles Relating
to Suspension and Debarment Actions
§ 417.600 How do suspension and
debarment actions start?
When Federal agency officials receive
information from any source concerning
a cause for suspension or debarment,
they will promptly report it and the
agency will investigate. The officials
refer the question of whether to suspend
or debar you to their suspending or
52995
debarring official for consideration, if
appropriate.
§ 417.605 How does suspension differ
from debarment?
SUSPENSION DIFFERS FROM DEBARMENT IN THAT—
A suspending official . . .
A debarring official . . .
(a) Imposes suspension as a temporary status of ineligibility for procurement and nonprocurement transactions, pending completion of
an investigation or legal proceedings.
(b) Must—
(1) Have ‘‘adequate evidence’’ that there may be a cause for debarment of a person; and.
(2) Conclude that ‘‘immediate action’’ is necessary to protect the
Federal interest.
(c) Usually imposes the suspension ‘‘first,’’ and then promptly notifies
the suspended person, giving the person an opportunity to contest
the suspension and have it lifted.
Imposes debarment for a specified period as a final determination that
a person is not presently responsible.
§ 417.610 What procedures does a Federal
agency use in suspension and debarment
actions?
In deciding whether to suspend or
debar you, a Federal agency handles the
actions as informally as practicable,
consistent with principles of
fundamental fairness.
(a) For suspension actions, a Federal
agency uses the procedures in this
subpart and subpart G of this part.
(b) For debarment actions, a Federal
agency uses the procedures in this
subpart and subpart H of this part.
§ 417.615 How does a Federal agency
notify a person of a suspension or
debarment action?
(a) The suspending or debarring
official sends a written notice to the last
known street address, facsimile number,
or email address of—
(1) You or your identified counsel; or
(2) Your agent for service of process,
or any of your partners, officers,
directors, owners, or joint venturers.
(b) The notice is effective if sent to
any of these persons.
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§ 417.620 Do Federal agencies coordinate
suspension and debarment actions?
Yes, when more than one Federal
agency has an interest in a suspension
or debarment, the agencies may
consider designating one agency as the
lead agency for making the decision.
Agencies are encouraged to establish
methods and procedures for
coordinating their suspension and
debarment actions.
§ 417.625 What is the scope of a
suspension or debarment?
If you are suspended or debarred, the
suspension or debarment is effective as
follows:
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Must conclude, based on a ‘‘preponderance of the evidence,’’ that the
person has engaged in conduct that warrants debarment.
Imposes debarment ‘‘after’’ giving the respondent notice of the action
and an opportunity to contest the proposed debarment.
(a) Your suspension or debarment
constitutes suspension or debarment of
all of your divisions and other
organizational elements from all
covered transactions, unless the
suspension or debarment decision is
limited—
(1) By its terms to one or more
specifically identified individuals,
divisions, or other organizational
elements; or
(2) To specific types of transactions.
(b) Any affiliate of a participant may
be included in a suspension or
debarment action if the suspending or
debarring official—
(1) Officially names the affiliate in the
notice; and
(2) Gives the affiliate an opportunity
to contest the action.
§ 417.630 May a Federal agency impute the
conduct of one person to another?
For purposes of actions taken under
this part, a Federal agency may impute
conduct as follows:
(a) Conduct imputed from an
individual to an organization. A Federal
agency may impute the fraudulent,
criminal, or other improper conduct of
any officer, director, shareholder,
partner, employee, or other individual
associated with an organization, to that
organization when the improper
conduct occurred in connection with
the individual’s performance of duties
for or on behalf of that organization, or
with the organization’s knowledge,
approval or acquiescence. The
organization’s acceptance of the benefits
derived from the conduct is evidence of
knowledge, approval or acquiescence.
(b) Conduct imputed from an
organization to an individual, or
between individuals. A Federal agency
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may impute the fraudulent, criminal, or
other improper conduct of any
organization to an individual, or from
one individual to another individual, if
the individual to whom the improper
conduct is imputed either participated
in, had knowledge of, or reason to know
of the improper conduct.
(c) Conduct imputed from one
organization to another organization. A
Federal agency may impute the
fraudulent, criminal, or other improper
conduct of one organization to another
organization when the improper
conduct occurred in connection with a
partnership, joint venture, joint
application, association or similar
arrangement, or when the organization
to whom the improper conduct is
imputed has the power to direct,
manage, control, or influence the
activities of the organization responsible
for the improper conduct. Acceptance of
the benefits derived from the conduct is
evidence of knowledge, approval, or
acquiescence.
§ 417.635 May a Federal agency settle a
debarment or suspension action?
Yes, a Federal agency may settle a
debarment or suspension action at any
time if it is in the best interest of the
Federal Government.
§ 417.640 May a settlement include a
voluntary exclusion?
Yes, if a Federal agency enters into a
settlement with you in which you agree
to be excluded, it is called a voluntary
exclusion and has governmentwide
effect.
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Federal Register / Vol. 84, No. 193 / Friday, October 4, 2019 / Rules and Regulations
§ 417.645 Do other Federal agencies know
if an agency agrees to a voluntary
exclusion?
(a) Yes, the Federal agency agreeing to
the voluntary exclusion enters
information about it into SAM
Exclusions.
(b) Also, any agency or person may
contact the Federal agency that agreed
to the voluntary exclusion to find out
the details of the voluntary exclusion.
§ 417.650 May an administrative
agreement be the result of a settlement?
Yes, a Federal agency may enter into
an administrative agreement with you as
part of the settlement of a debarment or
suspension action.
§ 417.655 How will other Federal awarding
agencies know about an administrative
agreement that is the result of a settlement?
The suspending or debarring official
who enters into an administrative
agreement with you must report
information about the agreement to the
designated integrity and performance
system within three business days after
entering into the agreement. This
information is required by section 872
of the Duncan Hunter National Defense
Authorization Act for Fiscal Year 2009
(41 U.S.C. 2313).
§ 417.660 Will administrative agreement
information about me in the designated
integrity and performance system
accessible through SAM be corrected or
updated?
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Yes, the suspending or debarring
official who entered information into
the designated integrity and
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performance system about an
administrative agreement with you:
(a) Must correct the information
within three business days if he or she
subsequently learns that any of the
information is erroneous.
(b) Must correct in the designated
integrity and performance system,
within three business days, the ending
date of the period during which the
agreement is in effect, if the agreement
is amended to extend that period.
(c) Must report to the designated
integrity and performance system,
within three business days, any other
modification to the administrative
agreement.
(d) Is strongly encouraged to amend
the information in the designated
integrity and performance system in a
timely way to incorporate any update
that he or she obtains that could be
helpful to Federal awarding agencies
who must use the system.
Subpart I—Definitions
■
4. Add § 417.935 to read as follows:
§ 417.935 Disqualified (USDA supplement
to governmentwide definition at 2 CFR
180.935).
‘‘Disqualified’’ means that a person is
prohibited from participating in
specified Federal procurement or
nonprocurement transactions as
required under a statute, Executive
order (other than Executive Orders
12549 and 12689) or other authority.
Examples of disqualifications include
persons prohibited under—
(a) The Davis-Bacon Act (40 U.S.C.
276(a));
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(b) The equal employment
opportunity acts and Executive orders;
or
(c) The Clean Air Act (42 U.S.C.
7606), Clean Water Act (33 U.S.C. 1368)
and Executive Order 11738 (3 CFR, 1973
Comp., p. 799);
(d) 515(h) of the Federal Crop
Insurance Act (7 U.S.C. 1515(h));
(e) Section 12 of the Food and
Nutrition Act of 2008 (7 U.S.C. 2021).
■
5. Add § 417.970 to read as follows:
§ 417.970
Nonprocurement transaction.
(a) ‘‘Nonprocurement transaction’’
means any transaction, regardless of
type (except procurement contracts),
including, but not limited to the
following:
(1) Grants.
(2) Cooperative agreements.
(3) Scholarships.
(4) Fellowships.
(5) Contracts of assistance.
(6) Loans.
(7) Loan guarantees.
(8) Subsidies.
(9) Insurances.
(10) Payments for specified uses.
(11) Donation agreements.
(b) A nonprocurement transaction at
any tier does not require the transfer of
Federal funds.
6. Add Appendix 1 to Part 417 to read
as follows:
■
Appendix 1 to Part 417—Covered
Transactions
Covered Transactions
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Title 7
DEPARTMENT OF AGRICULTURE
Chapter IV—Federal Crop Insurance
Corporation
Food and Nutrition Service
7 CFR Part 251
PART 400—GENERAL
ADMINISTRATIVE REGULATIONS
[FNS–2019–0013]
Subpart R—Administrative Remedies
for Non-compliance
6. The authority citation for 7 CFR
part 400, subpart R, continues to read as
follows:
■
Authority: 7 U.S.C. 1506(l), 1506(o), and
7 U.S.C. 1515(h).
§ 400.454
[Amended]
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Stephen L. Censky,
Deputy Secretary.
[FR Doc. 2019–20865 Filed 10–3–19; 8:45 a.m.]
BILLING CODE 3410–KS–P
16:14 Oct 03, 2019
The Emergency Food Assistance
Program: Implementation of the
Agriculture Improvement Act of 2018
Food and Nutrition Service,
USDA.
ACTION: Final rule; request for
comments.
AGENCY:
Through this rulemaking, the
U.S. Department of Agriculture’s (the
Department or USDA) Food and
Nutrition Service (FNS) is codifying
new statutory requirements included in
the Agriculture Improvement Act of
2018 (2018 Farm Bill). First, the 2018
Farm Bill requires The Emergency Food
Assistance Program (TEFAP) State
Plans, at the option of the State agency,
to describe a plan of operation for
projects to harvest, process, package, or
transport donated commodities for use
by TEFAP emergency feeding
SUMMARY:
7. In § 400.454(e)(3), remove the
phrase ‘‘Excluded Parties List System
(EPLS) in accordance with 7 CFR part
3017, subpart E’’ and add in its place
‘‘System for Award Management (SAM)
in accordance with 2 CFR part 417’’.
■
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52997
organizations (EFOs), also known as
Farm to Food Bank Projects. Second, the
Department is requiring TEFAP State
agencies to amend their State Plans to
describe a plan that provides EFOs or
eligible recipient agencies (ERAs)
within the State an opportunity to
provide input on their commodity
preferences and needs. Last, the
Department is establishing the
requirements for the projects to harvest,
process, package, or transport donated
commodities as authorized in the 2018
Farm Bill.
DATES:
Effective Date: This rule is effective
October 4, 2019.
Comment Date: Written comments on
this rule must be received on or before
December 3, 2019.
ADDRESSES: The Food and Nutrition
Service, USDA, invites interested
persons to submit written comments on
this final rule. Comments may be
submitted in writing by one of the
following methods:
• Federal eRulemaking Portal: Go to
https://www.regulations.gov. Follow the
online instructions for submitting
comments.
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ER04OC19.006</GPH>
Federal Register / Vol. 84, No. 193 / Friday, October 4, 2019 / Rules and Regulations
]]>Agencies
[Federal Register Volume 84, Number 193 (Friday, October 4, 2019)]
[Rules and Regulations]
[Pages 52993-52997]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20865]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
========================================================================
Federal Register / Vol. 84, No. 193 / Friday, October 4, 2019 / Rules
and Regulations
[[Page 52993]]
DEPARTMENT OF AGRICULTURE
2 CFR Part 417
Federal Crop Insurance Corporation
7 CFR Part 400
[0505-AA17]
Nonprocurement Debarment and Suspension
AGENCY: Office of the Chief Financial Officer and Federal Crop
Insurance Corporation, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The USDA issues this final rule to adopt certain provisions of
the Office of Management and Budget (OMB) guidelines to agencies on
governmentwide debarment and suspension (nonprocurement) not previously
adopted, to adopt changes made to the OMB guidance after its initial
publication in 2010, and to revise the definition of the term
``disqualified'' to add the statutory disqualification requirements for
USDA agencies. Finally, this rule removes a reference to the old USDA
suspension and debarment regulations for the Federal Crop Insurance
Corporation and replaces it with the current regulations. This
regulatory action makes no substantive changes in USDA policy or
procedures for nonprocurement debarment and suspension.
DATES: This final rule is effective as of October 4, 2019.
FOR FURTHER INFORMATION CONTACT: Tyson Whitney, Director, Transparency
and Accountability Reporting Division, Office of the Chief Financial
Officer, Room 3027-S, Stop Code 9011, U.S. Department of Agriculture,
1400 Independence Avenue SW, Washington, DC 20250; (202) 720-8978;
[email protected].
SUPPLEMENTARY INFORMATION:
Background
USDA published a direct final rule on May 25, 2010, to adopt the
OMB guidelines to agencies on nonprocurement debarment and suspension
as 2 CFR part 417 (75 FR 29183). USDA issues this final rule to adopt
subpart E, General Services Administration's System for Award
Management (GSA/SAM) (formerly Excluded Parties List System) and
subpart F, General Principles Relating to Suspension and Debarment, of
2 CFR part 180. It also revises 2 CFR part 417 to amend subpart I to
add the definition of ``disqualified'' in 2 CFR 417.935, as
supplemented to include the statutory disqualifications required under
USDA programs, and the definition of ``nonprocurement transaction'' in
2 CFR 417.970, and to adopt the Appendix to Part 180--Covered
Transactions. Finally, this rule amends 7 CFR part 400 to replace a
reference to the old USDA suspension and debarment regulations in 7 CFR
400.454.
Discussion and Analysis
The amendment to part 417 adopts subparts and definitions in the
OMB guidelines to agencies on nonprocurement debarment and suspension
not previously adopted and captures updates to 2 CFR part 180 that have
occurred since 2010. These include Subpart E, General Services
Administration's System for Award Management (GSA/SAM) (formerly
Excluded Parties List System); Subpart F, General Principles Relating
to Suspension and Debarment; definitions added in 2 CFR 180.935, as
supplemented to include USDA statutory disqualifications, and 2 CFR
180.970; and Appendix to Part 180--Covered Transactions. This rule also
replaces a reference to 7 CFR part 3017 in 7 CFR 400.454 with a
reference to 2 CFR part 417. This regulatory action is a technical
update of the rule and does not represent a change in current USDA
nonprocurement debarment and suspension policy or procedures.
Executive Order 12866 Regulatory Planning and Review
This rule is issued in conformance with Executive Order 12866,
``Regulatory Planning and Review.'' It has been determined to be not
significant for the purposes of Executive Order 12866 and, therefore,
was not reviewed by the Office of Management and Budget. Pursuant to
the Congressional Review Act (5 U.S.C. 801 et seq.), the Office of
Information and Regulatory Affairs designated this rule as not a major
rule, as defined by 5 U.S.C. 804(2).
IV. Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b))
This regulatory action will not have a significant, adverse impact
on a substantial number of small entities.
V. Unfunded Mandates Act of 1995 (Sec. 202, Pub. L. 104-4)
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.
VI. 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.
VII. Federalism (Executive Order 13132)
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 Federal
government and the States, or on the distribution of power and
responsibilities among the various levels of government, except as
required by law. This rule does not impose substantial direct
compliance costs on State and local governments. Therefore,
consultation with the States was not required.
VIII. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
Executive Order 13175, entitled ``Consultation and Coordination
With Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires agencies to develop an accountable process to ensure
``meaningful and timely input by tribal officials in the development of
regulatory policies that have tribal implications.'' This rule does not
have tribal implications, as specified in Executive Order 13175.
[[Page 52994]]
List of Subjects
2 CFR Part 417
Administrative practice and procedure, Grant programs, Reporting
and recordkeeping requirements.
7 CFR Part 400
Acreage allotments, Administrative practice and procedure, Claims,
Crop insurance, Drug traffic control, Fraud, Government employees,
Income taxes, Intergovernmental relations, Penalties, Reporting and
recordkeeping requirements, Wages.
For the reasons discussed in the preamble, the Department of
Agriculture amends 2 CFR part 417 and 7 CFR part 400 as follows:
Title 2--Grants and Agreements
CHAPTER IV--DEPARTMENT OF AGRICULTURE
PART 417--NONPROCUREMENT DEBARMENT AND SUSPENSION
0
1. The authority citation for part 417 continues to read as follows:
Authority: 5 U.S.C. 301; Pub. L. 101-576, 104 Stat. 2838; Sec.
2455, Pub. L. 103-355, 108 Stat. 3327 (31 U.S.C. 6101 note); 7
U.S.C. 2209j; E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O. 12689 (3
CFR, Comp., p. 235); 7 CFR 2.28.
0
2. Add subpart E, consisting of Sec. Sec. 417.500 through 417.530, to
read as follows:
Subpart E--System for Award Management Exclusions
Sec.
417.500 What is the purpose of the System for Award Management
Exclusions (SAM Exclusions)?
417.505 Who uses SAM Exclusions?
417.510 Who maintains SAM Exclusions?
417.515 What specific information is in SAM Exclusions?
417.520 Who places the information into SAM Exclusions?
417.525 Whom do I ask if I have questions about a person in SAM
Exclusions?
417.530 Where can I find SAM Exclusions?
Subpart E--System for Award Management Exclusions
Sec. 417.500 What is the purpose of the System for Award Management
Exclusions (SAM Exclusions)?
SAM Exclusions is a widely available source of the most current
information about persons who are excluded or disqualified from covered
transactions.
Sec. 417.505 Who uses SAM Exclusions?
(a) Federal agency officials use SAM Exclusions to determine
whether to enter into a transaction with a person, as required under
Sec. 180.430 of this title.
(b) Participants also may, but are not required to, use SAM
Exclusions to determine if--
(1) Principals of their transactions are excluded or disqualified,
as required under Sec. 180.320 of this title; or
(2) Persons with whom they are entering into covered transactions
at the next lower tier are excluded or disqualified.
(c) SAM Exclusions are available to the general public.
Sec. 417.510 Who maintains SAM Exclusions?
The General Services Administration (GSA) maintains SAM Exclusions.
When a Federal agency takes an action to exclude a person under the
nonprocurement or procurement debarment and suspension system, the
agency enters the information about the excluded person into SAM
Exclusions.
Sec. 417.515 What specific information is in SAM Exclusions?
(a) At a minimum, SAM Exclusions indicates--
(1) The full name (where available) and address of each excluded
and disqualified person, in alphabetical order, with cross references
if more than one name is involved in a single action;
(2) The type of action;
(3) The cause for the action;
(4) The scope of the action;
(5) Any termination date for the action;
(6) The Federal agency and name and telephone number of the agency
point of contact for the action; and
(7) The unique entity identifier approved by the GSA, of the
excluded or disqualified person, if available.
(b)(1) The database for SAM Exclusions includes a field for the
Taxpayer Identification Number (TIN) (the social security number (SSN)
for an individual) of an excluded or disqualified person.
(2) Agencies disclose the SSN of an individual to verify the
identity of an individual, only if permitted under the Privacy Act of
1974 and, if appropriate, the Computer Matching and Privacy Protection
Act of 1988, as codified in 5 U.S.C. 552(a).
Sec. 417.520 Who places the information into SAM Exclusions?
Federal agency officials who take actions to exclude persons under
this part or officials who are responsible for identifying disqualified
persons must enter the following information about those persons into
SAM Exclusions:
(a) Information required by Sec. 180.515(a) of this title;
(b) The Taxpayer Identification Number (TIN) of the excluded or
disqualified person, including the social security number (SSN) for an
individual, if the number is available and may be disclosed under law;
(c) Information about an excluded or disqualified person, within
three business days, after--
(1) Taking an exclusion action;
(2) Modifying or rescinding an exclusion action;
(3) Finding that a person is disqualified; or
(4) Finding that there has been a change in the status of a person
who is listed as disqualified.
Sec. 417.525 Whom do I ask if I have questions about a person in SAM
Exclusions?
If you have questions about a listed person in SAM Exclusions, ask
the point of contact for the Federal agency that placed the person's
name into SAM Exclusions. You may find the agency point of contact from
SAM Exclusions.
Sec. 417.530 Where can I find SAM Exclusions?
You may access SAM Exclusions through the internet, currently at
https://www.sam.gov.
0
3. Add subpart F, consisting of Sec. Sec. 417.600 through 417.660, to
read as follows:
Subpart F--General Principles Relating to Suspension and Debarment
Actions
Sec.
417.600 How do suspension and debarment actions start?
417.605 How does suspension differ from debarment?
417.610 What procedures does a Federal agency use in suspension and
debarment actions?
417.615 How does a Federal agency notify a person of a suspension or
debarment action?
417.620 Do Federal agencies coordinate suspension and debarment
actions?
417.625 What is the scope of a suspension or debarment?
417.630 May a Federal agency impute the conduct of one person to
another?
417.635 May a Federal agency settle a debarment or suspension
action?
417.640 May a settlement include a voluntary exclusion?
417.645 Do other Federal agencies know if an agency agrees to a
voluntary exclusion?
417.650 May an administrative agreement be the result of a
settlement?
417.655 How will other Federal awarding agencies know about an
administrative agreement that is the result of a settlement?
417.660 Will administrative agreement information about me in the
designated integrity and performance system accessible through SAM
be corrected or updated?
[[Page 52995]]
Subpart F--General Principles Relating to Suspension and Debarment
Actions
Sec. 417.600 How do suspension and debarment actions start?
When Federal agency officials receive information from any source
concerning a cause for suspension or debarment, they will promptly
report it and the agency will investigate. The officials refer the
question of whether to suspend or debar you to their suspending or
debarring official for consideration, if appropriate.
Sec. 417.605 How does suspension differ from debarment?
Suspension Differs From Debarment in That--
------------------------------------------------------------------------
A suspending official . . . A debarring official . . .
------------------------------------------------------------------------
(a) Imposes suspension as a temporary Imposes debarment for a
status of ineligibility for specified period as a final
procurement and nonprocurement determination that a person is
transactions, pending completion of an not presently responsible.
investigation or legal proceedings.
(b) Must--
(1) Have ``adequate evidence'' that
there may be a cause for debarment
of a person; and.
(2) Conclude that ``immediate Must conclude, based on a
action'' is necessary to protect ``preponderance of the
the Federal interest. evidence,'' that the person
has engaged in conduct that
warrants debarment.
(c) Usually imposes the suspension Imposes debarment ``after''
``first,'' and then promptly notifies giving the respondent notice
the suspended person, giving the of the action and an
person an opportunity to contest the opportunity to contest the
suspension and have it lifted. proposed debarment.
------------------------------------------------------------------------
Sec. 417.610 What procedures does a Federal agency use in suspension
and debarment actions?
In deciding whether to suspend or debar you, a Federal agency
handles the actions as informally as practicable, consistent with
principles of fundamental fairness.
(a) For suspension actions, a Federal agency uses the procedures in
this subpart and subpart G of this part.
(b) For debarment actions, a Federal agency uses the procedures in
this subpart and subpart H of this part.
Sec. 417.615 How does a Federal agency notify a person of a
suspension or debarment action?
(a) The suspending or debarring official sends a written notice to
the last known street address, facsimile number, or email address of--
(1) You or your identified counsel; or
(2) Your agent for service of process, or any of your partners,
officers, directors, owners, or joint venturers.
(b) The notice is effective if sent to any of these persons.
Sec. 417.620 Do Federal agencies coordinate suspension and debarment
actions?
Yes, when more than one Federal agency has an interest in a
suspension or debarment, the agencies may consider designating one
agency as the lead agency for making the decision. Agencies are
encouraged to establish methods and procedures for coordinating their
suspension and debarment actions.
Sec. 417.625 What is the scope of a suspension or debarment?
If you are suspended or debarred, the suspension or debarment is
effective as follows:
(a) Your suspension or debarment constitutes suspension or
debarment of all of your divisions and other organizational elements
from all covered transactions, unless the suspension or debarment
decision is limited--
(1) By its terms to one or more specifically identified
individuals, divisions, or other organizational elements; or
(2) To specific types of transactions.
(b) Any affiliate of a participant may be included in a suspension
or debarment action if the suspending or debarring official--
(1) Officially names the affiliate in the notice; and
(2) Gives the affiliate an opportunity to contest the action.
Sec. 417.630 May a Federal agency impute the conduct of one person
to another?
For purposes of actions taken under this part, a Federal agency may
impute conduct as follows:
(a) Conduct imputed from an individual to an organization. A
Federal agency may impute the fraudulent, criminal, or other improper
conduct of any officer, director, shareholder, partner, employee, or
other individual associated with an organization, to that organization
when the improper conduct occurred in connection with the individual's
performance of duties for or on behalf of that organization, or with
the organization's knowledge, approval or acquiescence. The
organization's acceptance of the benefits derived from the conduct is
evidence of knowledge, approval or acquiescence.
(b) Conduct imputed from an organization to an individual, or
between individuals. A Federal agency may impute the fraudulent,
criminal, or other improper conduct of any organization to an
individual, or from one individual to another individual, if the
individual to whom the improper conduct is imputed either participated
in, had knowledge of, or reason to know of the improper conduct.
(c) Conduct imputed from one organization to another organization.
A Federal agency may impute the fraudulent, criminal, or other improper
conduct of one organization to another organization when the improper
conduct occurred in connection with a partnership, joint venture, joint
application, association or similar arrangement, or when the
organization to whom the improper conduct is imputed has the power to
direct, manage, control, or influence the activities of the
organization responsible for the improper conduct. Acceptance of the
benefits derived from the conduct is evidence of knowledge, approval,
or acquiescence.
Sec. 417.635 May a Federal agency settle a debarment or suspension
action?
Yes, a Federal agency may settle a debarment or suspension action
at any time if it is in the best interest of the Federal Government.
Sec. 417.640 May a settlement include a voluntary exclusion?
Yes, if a Federal agency enters into a settlement with you in which
you agree to be excluded, it is called a voluntary exclusion and has
governmentwide effect.
[[Page 52996]]
Sec. 417.645 Do other Federal agencies know if an agency agrees to a
voluntary exclusion?
(a) Yes, the Federal agency agreeing to the voluntary exclusion
enters information about it into SAM Exclusions.
(b) Also, any agency or person may contact the Federal agency that
agreed to the voluntary exclusion to find out the details of the
voluntary exclusion.
Sec. 417.650 May an administrative agreement be the result of a
settlement?
Yes, a Federal agency may enter into an administrative agreement
with you as part of the settlement of a debarment or suspension action.
Sec. 417.655 How will other Federal awarding agencies know about an
administrative agreement that is the result of a settlement?
The suspending or debarring official who enters into an
administrative agreement with you must report information about the
agreement to the designated integrity and performance system within
three business days after entering into the agreement. This information
is required by section 872 of the Duncan Hunter National Defense
Authorization Act for Fiscal Year 2009 (41 U.S.C. 2313).
Sec. 417.660 Will administrative agreement information about me in
the designated integrity and performance system accessible through SAM
be corrected or updated?
Yes, the suspending or debarring official who entered information
into the designated integrity and performance system about an
administrative agreement with you:
(a) Must correct the information within three business days if he
or she subsequently learns that any of the information is erroneous.
(b) Must correct in the designated integrity and performance
system, within three business days, the ending date of the period
during which the agreement is in effect, if the agreement is amended to
extend that period.
(c) Must report to the designated integrity and performance system,
within three business days, any other modification to the
administrative agreement.
(d) Is strongly encouraged to amend the information in the
designated integrity and performance system in a timely way to
incorporate any update that he or she obtains that could be helpful to
Federal awarding agencies who must use the system.
Subpart I--Definitions
0
4. Add Sec. 417.935 to read as follows:
Sec. 417.935 Disqualified (USDA supplement to governmentwide
definition at 2 CFR 180.935).
``Disqualified'' means that a person is prohibited from
participating in specified Federal procurement or nonprocurement
transactions as required under a statute, Executive order (other than
Executive Orders 12549 and 12689) or other authority. Examples of
disqualifications include persons prohibited under--
(a) The Davis-Bacon Act (40 U.S.C. 276(a));
(b) The equal employment opportunity acts and Executive orders; or
(c) The Clean Air Act (42 U.S.C. 7606), Clean Water Act (33 U.S.C.
1368) and Executive Order 11738 (3 CFR, 1973 Comp., p. 799);
(d) 515(h) of the Federal Crop Insurance Act (7 U.S.C. 1515(h));
(e) Section 12 of the Food and Nutrition Act of 2008 (7 U.S.C.
2021).
0
5. Add Sec. 417.970 to read as follows:
Sec. 417.970 Nonprocurement transaction.
(a) ``Nonprocurement transaction'' means any transaction,
regardless of type (except procurement contracts), including, but not
limited to the following:
(1) Grants.
(2) Cooperative agreements.
(3) Scholarships.
(4) Fellowships.
(5) Contracts of assistance.
(6) Loans.
(7) Loan guarantees.
(8) Subsidies.
(9) Insurances.
(10) Payments for specified uses.
(11) Donation agreements.
(b) A nonprocurement transaction at any tier does not require the
transfer of Federal funds.
0
6. Add Appendix 1 to Part 417 to read as follows:
Appendix 1 to Part 417--Covered Transactions
Covered Transactions
[[Page 52997]]
[GRAPHIC] [TIFF OMITTED] TR04OC19.006
Title 7
Chapter IV--Federal Crop Insurance Corporation
PART 400--GENERAL ADMINISTRATIVE REGULATIONS
Subpart R--Administrative Remedies for Non-compliance
0
6. The authority citation for 7 CFR part 400, subpart R, continues to
read as follows:
Authority: 7 U.S.C. 1506(l), 1506(o), and 7 U.S.C. 1515(h).
Sec. 400.454 [Amended]
0
7. In Sec. 400.454(e)(3), remove the phrase ``Excluded Parties List
System (EPLS) in accordance with 7 CFR part 3017, subpart E'' and add
in its place ``System for Award Management (SAM) in accordance with 2
CFR part 417''.
Stephen L. Censky,
Deputy Secretary.
[FR Doc. 2019-20865 Filed 10-3-19; 8:45 a.m.]
BILLING CODE 3410-KS-P
