[Federal Register: March 13, 2007 (Volume 72, Number 48)]
[Rules and Regulations]
[Page 11285-11287]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13mr07-1]
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Rules and Regulations
Federal Register
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[[Page 11285]]
DEPARTMENT OF JUSTICE
2 CFR Part 2867
28 CFR Part 67
[Docket Number: OJP (DOJ)-1457; AG Order No. 2870-2007]
RIN 1121-AA73
Department of Justice Implementation of OMB Guidance on
Nonprocurement Debarment and Suspension
AGENCY: Department of Justice.
ACTION: Direct final rule.
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SUMMARY: The Department of Justice (``DOJ'' or ``the Department'') is
removing its regulations implementing the government-wide common rule
on nonprocurement debarment and suspension, currently located within
Part 67 of Title 28 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 all federal regulations on nonprocurement
debarment and suspension into one part of the CFR. These changes
constitute an administrative simplification that would make no
substantive change in DOJ policy or procedures for nonprocurement
debarment and suspension.
DATES: This final rule is effective on May 14, 2007 without further
action, unless adverse comment is received by DOJ by April 12, 2007. If
adverse comment is received, DOJ will publish a timely withdrawal of
the rule in the Federal Register.
ADDRESSES: Please address all comments regarding this rule by U.S.
mail, to: Scott A. Chutka, Attorney-Advisor, Office of the General
Counsel, Office of Justice Programs, Department of Justice, 810 7th
Street, NW., Washington, DC 20531; by telefacsimile (fax), to: (202)
307-1419; or by e-mail, to: OJP_Fed_Reg_Comments@usdoj.gov. To
ensure proper handling, please reference OJP Docket No. 1457 on your
correspondence. You may view an electronic version of this rule at
http://www.regulations.gov and you may also comment by using the
http://www.regulations.gov form for this regulation. When submitting comments
electronically you must include OJP Docket No. 1457 in the subject box.
FOR FURTHER INFORMATION CONTACT: Scott A. Chutka, Attorney-Advisor,
Office of the General Counsel, at (202) 307-6235 [Note: This is not a
toll-free telephone number.]; or by e-mail at
OJP_Fed_Reg_Comments@usdoj.gov.
SUPPLEMENTARY INFORMATION:
Background
On November 26, 2003, at 68 FR 66534, the Department adopted, on an
interim final basis, the government-wide nonprocurement debarment and
suspension common rule (NCR), which recast the nonprocurement debarment
and suspension regulations in plain English and made other required
updates. On March 11, 2005, at 70 FR 12141, the Department published a
final rule completing its adoption of the government-wide common rule.
Thereafter, on August 31, 2005, OMB issued an interim final
guidance that implemented its Guidance for Governmentwide Debarment and
Suspension (Nonprocurement), at 70 FR 51863. In addition to restating
and updating its guidance on nonprocurement debarment and suspension,
the interim final guidance requires all federal agencies to adopt a new
approach to Federal agency implementation of the guidance. OMB 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, clarifications, and exceptions to the
government-wide policies and procedures contained in the guidance. That
guidance also requires agencies to implement the OMB guidance by
February 28, 2007. OMB issued this guidance in final form on November
15, 2006, at 71 FR 66431.
Pursuant to requirements in OMB's interim final guidance, DOJ is
therefore: (1) Removing 28 CFR part 67; (2) replacing the Department's
part containing the full text of the debarment and suspension common
rule with a brief part implementing OMB's guidance and any provisions
specific to the Department; and (3) co-locating the Department's part
with OMB's guidance in 2 CFR along with other agencies' regulations in
that title.
This regulatory action will implement the OMB initiative to
streamline and consolidate all federal regulations on nonprocurement
debarment and suspension into one part of the CFR, and does not modify
any of the Department's current policies.
Invitation to Comment
With this regulatory action, DOJ is creating a new part in 2 CFR to
adopt the OMB guidelines with the same additions and clarifications the
Department made to the common rule on nonprocurement debarment and
suspension in March 2005, at 68 FR 12141. In soliciting comments on
this action, therefore, DOJ is not seeking to revisit substantive
issues that were already resolved during the preparation of that final
common rule. However, because DOJ intends the new part to make no
changes in current policies and procedures, the Department specifically
invites comments only on any unintended changes in substantive content
that the new part in 2 CFR would make relative to the March 2005 final
rule at 28 CFR part 67.
Administrative Procedure Act
Under the Administrative Procedure Act (5 U.S.C. 553) agencies
generally offer interested parties the opportunity to comment on
proposed regulations before they become effective. However, in this
case, on November 26, 2003, at 68 FR 65534, the Department adopted, on
an interim final basis, the government-wide nonprocurement debarment
and suspension common rule (NCR), which recast the nonprocurement
debarment and suspension regulations in plain English and made other
required updates. Comments were solicited on the Department's interim
NCR rule. On March 11, 2005, at 70 FR 12141, the Department published a
final rule completing its adoption of the government-wide NCR common
rule.
The changes made by this direct final rule constitute an
administrative simplification that would make no
[[Page 11286]]
substantive change in Department policy or procedures for
nonprocurement debarment and suspension. The Department believes that
the rule is noncontroversial and adverse comments will not be received,
although comments on this rule are invited.
Accordingly, the Department finds 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 on May 14, 2007 without further action, unless adverse
comment is received by DOJ by April 12, 2007. If adverse comment is
received, the Department will publish a timely withdrawal of the rule
in the Federal Register.
Executive Order 12866
This regulatory action has been determined by OMB to be not
significant for purposes of E.O. 12866.
Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b))
This regulatory action, if adopted, would not have a significant
adverse impact on a substantial number of small entities. This action
merely removes DOJ's current policy and provisions related to the
debarment and suspension common rule and replaces it with a brief part
adopting OMB's guidance and implementing any provisions specific to the
Department. In addition, it co-locates the Department's regulations
with OMB's guidance in 2 CFR along with other agencies' rules in that
title. These provisions are merely administrative in nature and do not
modify the Department's current policy.
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.
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.
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 national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.
List of Subjects
2 CFR Part 2867
Administrative practice and procedure, Debarment and suspension,
Grant programs, Reporting and recordkeeping requirements.
28 CFR Part 67
Administrative practice and procedure, Government contracts, Grant
programs, Loan programs, Reporting and recordkeeping requirements,
Technical assistance, Drug Abuse.
0
Accordingly, for the reasons set forth in the preamble, and under the
authority of 5 U.S.C. 301 and 28 U.S.C. 509, 510, 515-519, the
Department of Justice amends the Code of Federal Regulations, Title 2,
Subtitle B, and part 67 of chapter 1 of Title 28, as follows:
Title 2--Grants and Agreements
0
1. Add Chapter 28, consisting of Part 2867, to Subtitle B to read as
follows:
CHAPTER 28--DEPARTMENT OF JUSTICE
PART 2867--NONPROCUREMENT DEBARMENT AND SUSPENSION
Sec.
Sec. 2867.10 What does this part do?
Sec. 2867.20 To whom does this part apply?
Sec. 2867.30 What policies and procedures must be followed?
Subpart A--General
Sec. 2867.137 Who in the Department of Justice may grant an
exception to let an excluded person participate in a covered
transaction?
Subpart B--Covered Transactions
Sec. 2867.220 What contracts and subcontracts, in addition to those
listed in 2 CFR 180.220, are covered transactions?
Subpart C--Responsibilities of Participants Regarding Transactions
Sec. 2867.332 What method must a participant use to pass
requirements down to participants at lower tiers with whom the
participant intends to do business?
Subpart D--Responsibilities of Federal Agency Officials Regarding
Transactions
Sec. 2867.437 What method must be used to communicate to a
participant the requirements described in the OMB guidance at 2 CFR
180.435?
Subparts E-J--[Reserved]
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; 5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.
Sec. 2867.10 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 Justice policies and procedures for
nonprocurement debarment and suspension. It thereby gives regulatory
effect for the Department of Justice 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 31 U.S.C. 6101 note
(Section 2455, Pub. L. 103-355, 108 Stat. 3327).
Sec. 2867.20 To whom does this part apply?
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 any--
(a) Participant or principal in a ``covered transaction'' (see
Subpart B of 2 CFR part 180 and the definition of ``nonprocurement
transaction'' at 2 CFR 180.970 (as supplemented by Subpart B of this
part));
(b) Respondent in a Department of Justice suspension or debarment
action;
(c) Department of Justice debarment or suspension official;
(d) Department of Justice grants officer, agreements officer, or
other official authorized to enter into any type of nonprocurement
transaction that is a covered transaction.
Sec. 2867.30 What policies and procedures must be followed?
The Department of Justice policies and procedures that must be
followed are the policies and procedures specified in each applicable
section of the OMB guidance in Subparts A through I of 2 CFR part 180,
as that section is supplemented by the section in this part with 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.
2867.220). For any section of OMB guidance in Subparts A through I of 2
CFR 180 that has no corresponding section in this part, Department of
Justice policies and procedures are those in the OMB guidance.
[[Page 11287]]
Subpart A--General
Sec. 2867.137 Who in the Department of Justice may grant an exception
to let an excluded person participate in a covered transaction?
Within the Department of Justice, the Attorney General 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.
Subpart B--Covered Transactions
Sec. 2867.220 What contracts and subcontracts, in addition to those
listed in 2 CFR 180.220, are covered transactions?
Although the OMB guidance at 2 CFR 180.220(c) allows a Federal
agency to do so (also see optional lower tier coverage in the figure in
the Appendix to 2 CFR part 180), the Department of Justice does not
extend coverage of nonprocurement suspension and debarment requirements
beyond first-tier procurement contracts under a covered nonprocurement
transaction.
Subpart C--Responsibilities of Participants Regarding Transactions
Sec. 2867.332 What method must a participant use to pass requirements
down to participants at lower tiers with whom the participant intends
to do business?
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. 2867.437 What method must be used 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, the communication must include a term or
condition in the transaction that requires the participant's compliance
with subpart C of 2 CFR part 180, as supplemented by Subpart C of this
part, and requires the participant to include a similar term or
condition in lower-tier covered transactions.
Subparts E-J--[Reserved]
Title 28--Judicial Administration
CHAPTER 1--DEPARTMENT OF JUSTICE
0
2. Remove Part 67.
Dated: March 6, 2007.
Alberto R. Gonzales,
Attorney General.
[FR Doc. E7-4362 Filed 3-12-07; 8:45 am]
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