[Federal Register: January 23, 2002 (Volume 67, Number 15)]
[Proposed Rules]
[Page 3265-3314]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23ja02-24]
[[Page 3265]]
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Part II
Governmentwide Debarment and Suspension (Nonprocurement) and
Governmentwide Requirements for Drug-Free Workplace (Grants); Proposed
Rule
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Office of Personnel Management
Department of Agriculture
Department of Energy
Small Business Administration
National Aeronautics and Space Administration
Department of Commerce
Social Security Administration
Office of National Drug Control Policy
Department of State
Agency for International Development
Peace Corps
Inter-American Foundation
African Development Foundation
Department of Labor
Federal Mediation and Conciliation Service
Department of Defense
Department of Education
National Archives and Records Administration
Department of Veterans Affairs
Environmental Protection Agency
General Services Administration
Department of the Interior
Federal Emergency Management Agency
Department of Health and Human Services
National Science Foundation
National Foundation on the Arts and the Humanities
National Endowment for the Arts
National Endowment for the Humanities
Institute of Museum and Library Services
Corporation for National and Community Service
Department of Transportation
[[Page 3266]]
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 970
DEPARTMENT OF AGRICULTURE
7 CFR Parts 3017 and 3021
DEPARTMENT OF ENERGY
10 CFR Parts 606, 607, and 1036
SMALL BUSINESS ADMINISTRATION
13 CFR Parts 145 and 147
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
14 CFR Parts 1265 and 1267
DEPARTMENT OF COMMERCE
15 CFR Parts 26 and 29
SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 436 and 439
OFFICE OF NATIONAL DRUG CONTROL POLICY
21 CFR Parts 1404 and 1405
DEPARTMENT OF STATE
22 CFR Parts 137 and 139
AGENCY FOR INTERNATIONAL DEVELOPMENT
22 CFR Parts 208 and 210
PEACE CORPS
22 CFR Parts 310 and 312
INTER-AMERICAN FOUNDATION
22 CFR Parts 1006 and 1008
AFRICAN DEVELOPMENT FOUNDATION
22 CFR Parts 1508 and 1509
DEPARTMENT OF LABOR
29 CFR Parts 94 and 98
FEDERAL MEDIATION AND CONCILIATION SERVICE
29 CFR Parts 1471 and 1472
DEPARTMENT OF DEFENSE
32 CFR Parts 25 and 26
DEPARTMENT OF EDUCATION
34 CFR Parts 84, 85, 668 and 682
NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
36 CFR Parts 1209 and 1212
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Parts 44 and 48
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 32 and 36
GENERAL SERVICES ADMINISTRATION
41 CFR Parts 105-68 and 105-74
DEPARTMENT OF THE INTERIOR
43 CFR Parts 12, 42 and 43
FEDERAL EMERGENCY MANAGEMENT AGENCY
44 CFR Parts 17 and 21
DEPARTMENT OF HEALTH AND HUMAN SERVICES
45 CFR Parts 76 and 82
NATIONAL SCIENCE FOUNDATION
45 CFR Parts 620 and 630
NATIONAL FOUNDATION ON THE ARTS AND THE HUMANITIES
National Endowment for the Arts
45 CFR Parts 1154 and 1155
National Endowment for the Humanities
45 CFR Parts 1169 and 1173
Institute of Museum and Library Services
45 CFR Parts 1185 and 1186
CORPORATION FOR NATIONAL AND COMMUNITY SERVICE
45 CFR Parts 2542 and 2545
DEPARTMENT OF TRANSPORTATION
49 CFR Parts 29 and 32
Governmentwide Debarment and Suspension (Nonprocurement) and
Governmentwide Requirements for Drug-Free Workplace (Grants)
AGENCIES: Office of Personnel Management; Department of Agriculture;
Department of Energy; Small Business Administration; National
Aeronautics and Space Administration; Department of Commerce; Social
Security Administration; Office of National Drug Control Policy;
Department of State; Agency for International Development; Peace Corps;
Inter-American Foundation; African Development Foundation; Department
of Labor; Federal Mediation and Conciliation Service; Department of
Defense; Department of Education; National Archives and Records
Administration; Department of Veterans Affairs; Environmental
Protection Agency; General Services Administration; Department of the
Interior; Federal Emergency Management Agency; Department of Health and
Human Services; National Science Foundation; National Foundation on the
Arts and the Humanities, National Endowment for the Arts, National
Endowment for the Humanities, Institute of Museum and Library Services;
Corporation for National and Community Service, and Department of
Transportation.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This document proposes substantive changes and amendments to
the governmentwide nonprocurement common rule for debarment and
suspension and the governmentwide rule implementing the Drug-Free
Workplace Act of 1988. The most significant changes are--
First, this proposed common rule on debarment and suspension would
limit the mandatory lower tier application of an exclusion to the first
procurement level under a nonprocurement covered transaction. If an
agency decides that its nonprocurement activities are sufficiently
vulnerable to misconduct, poor performance or abuse at levels below the
first procurement, the agency may add agency-specific language to the
proposed common rule to prohibit lower-tier procurement transactions
with excluded persons. Agencies that do not have sufficient
vulnerability at lower levels to justify the devotion of resources to
enforce exclusions at lower levels need not add language to the common
rule.
Second, this proposed common rule on debarment and suspension would
set the dollar threshold on prohibited lower-tier procurement
transactions with excluded persons at $25,000. This should help clarify
an ambiguity in the current common rule created when Congress, in
enacting the Federal Acquisition Streamlining Act of 1994, elected to
change the terminology in the direct Federal acquisition law from
``small purchase threshold'' to ``simplified acquisition threshold''
and increased the level from $25,000 to
[[Page 3267]]
$100,000. The ambiguity was created because the current common rule is
linked to the small purchase threshold fixed at 10 U.S.C. 2304(g) and
41 U.S.C. 253(g), but states the current level to be $25,000.
Third, both this proposed rule on debarment and suspension and the
proposed rule on drug-free workplace requirements would eliminate the
mandate for agencies and participants to obtain written certifications
from awardees or persons with whom they propose to enter into covered
transactions. The proposed rules will allow agencies and participants
the flexibility to use other means if they so choose, such as award
conditions or electronic access to the GSA List on the internet, to
enforce compliance with the rules.
Fourth, the proposed rule on drug-free workplace requirements would
be separated from this proposed rule on debarment and suspension. The
drug-free workplace requirements currently are in subpart F of the
Debarment and Suspension Nonprocurement Common Rule. Moving those
requirements to a separate part will allow them to appear in a more
appropriate location nearer other requirements used predominately by
award officials.
Finally, this document is prepared in plain language text and
format to make it easier to read and use.
Under the provisions of section 7(o) of the Department of Housing
and Urban Development Act (42 U.S.C. 2535(o)), any Department of
Housing and Urban Development (HUD) proposed or interim rule that is
issued for public comment is subjec to pre-publication Congressional
review for a period of 15 days. Therefore, HUD is not joining in
today's publication but will propose the common amendments in a
separate rulemaking.
DATES: Comments must be received on or before March 25, 2002.
ADDRESSES: Comments on these proposed rules should be addressed to:
Robert F. Meunier, Office of Grants and Debarment (3901-R),
Environmental Protection Agency, 1200 Pennsylvania Avenue NW.,
Washington, DC 20460. Comments may be submitted via e-mail
(meunier.robert@epa.gov), but must be made in the text of the message
and not as an attachment.
FOR FURTHER INFORMATION CONTACT: Robert F. Meunier, Debarring Official,
Environmental Protection Agency, by phone at (202) 564-5399 or by e-
mail (meunier.robert@epa.gov). Information about the Interagency
Committee on Debarment and Suspension can be found on their home page
(http://www.dot.gov/ost/m60/grant/net.htm). A chart showing where each
agency has codified the common rule may be obtained by accessing the
Office of Management and Budget's home page (http://www.whitehouse.gov/
omb), under the heading ``Grants Management.''
SUPPLEMENTARY INFORMATION:
A. Background
Executive Order 12549, ``Debarment and Suspension,'' issued
February 18, 1986 (3 CFR 1986 Comp., p. 189) authorized a
governmentwide system for debarment and suspension under Federal
nonprocurement activities. The Office of Management and Budget (OMB)
published initial guidelines to all Executive branch agencies in 1986
and the agencies published a common rule on May 26, 1988 (53 FR 19160).
The common rule provides uniform requirements for debarment and
suspension by Executive branch agencies to protect assistance, loans,
benefits and other nonprocurement activities from waste, fraud, abuse
and poor performance, similar to the system used for Federal
procurement activities under Subpart 9.4 of the Federal Acquisition
Regulation (FAR).
On January 31, 1989, the agencies amended the common rule by adding
a new subpart F to implement the Drug-Free Workplace Act of 1988. (See
54 FR 4946.)
On August 16, 1989, Executive Order 12689, ``Debarment and
Suspension,'' (3 CFR 1989 Comp., p. 235) directed agencies to reconcile
technical differences existing between the procurement and
nonprocurement debarment systems, and to give exclusions under either
system reciprocal effect across procurement and nonprocurement
activities. In 1994 Congress passed the Federal Acquisition
Streamlining Act of 1994 (Public Law 103-355, 108 Stat. 3327) mandating
reciprocity for exclusions issued under the procurement and
nonprocurement debarment systems.
On April 12, 1999, OMB asked the Interagency Suspension and
Debarment Committee (ISDC) to review the common rule and propose
amendments that would: (a) resolve unnecessary technical differences
between the procurement and nonprocurement systems; (b) revise the
current rule in a plain language style and format; and (c) make other
improvements to the common rule consistent with the purpose of the
suspension and debarment system. The ISDC's proposed amendments form
the basis of this Notice of Proposed Rulemaking.
Format of the Proposed Debarment and Suspension Common Rule
The proposed rule adopts a different approach to the structure and
format of the common rule. It is formatted so that matters common to a
particular class of readers, or to a particular subject, appear
together. This allows readers easy access to information that may be of
particular importance to them. The rule also contains tables and a
chart to assist the reader in locating or clarifying information
presented in the text of the rule.
The proposed rule uses fewer legal terms, and uses more commonly
understood words along with shorter sentences. It also presents
information in a question-and-answer format. Wherever possible, the
rule uses the active voice.
Due to the new format of the proposed rule, requirements would
appear in a different order than they do under the current common rule.
The following table will assist you in locating and comparing the
requirements under both rules.
------------------------------------------------------------------------
Current nonprocurement debarment
Proposed nonprocurement debarment and and suspension common rule
suspension common rule sections sections
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__.25............................... none
__.50............................... none
__.75............................... none
Subpart A: ................................
__.100.............................. __.100
__.105.............................. none
__.110.............................. __.100, __.115
__.115.............................. __.200
__.120.............................. __.215
__.125.............................. __.110(c)
__.130.............................. __.110(c)
__.135.............................. __.110(a)
__.140.............................. __.210
__.145.............................. __.105 (ineligible)
Subpart B: ................................
__.200.............................. __.110(a)
__.205.............................. __.225
__.210.............................. __.110(a)(1)
__.215.............................. __.110(a)(2)
__.220.............................. __.110(a)(1)(ii)
__.225.............................. none
Subpart C: ................................
__.300.............................. __.220(b), __.225
__.305.............................. __.220(b)
__.310.............................. __.220
__.315.............................. __.510
__.320.............................. __.225
__.325.............................. __.510
__.330.............................. __.510, Appendix A
__.335.............................. __.510, Appendix B
__.340.............................. Appendix A, Appendix B
__.345.............................. __.510(c)
__.350.............................. __.510(c)
__.355.............................. __.510, Appendix B
__.360.............................. __.510(c)
Subpart D: ................................
__.400.............................. __.200, __.215
__.405.............................. __.200(a)
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__.410.............................. __.200(b)
__.415.............................. __.220
__.420.............................. __.200(b)
__.425.............................. __.505(d), (e)
__.430.............................. __.505(d), (e)
__.435.............................. __.115(a), __.510
__.440 [Reserved]................... ................................
__.445.............................. __.225(b)
__.450.............................. __.510 Appendix A
__.455.............................. __.510 Appendix B
Subpart E: ................................
__.500.............................. __.105, __.500
__.505.............................. __.505, __.510
__.510.............................. __.105, __.500
__.515.............................. __.500
__.520.............................. __.505
__.525.............................. __.505(c)
__.530.............................. none
Subpart F: ................................
__.600.............................. __.311, __.410(a)
__.605.............................. __.300, __.400
__.610.............................. __.310, __.410
__.615.............................. __.312, __.411
__.620.............................. __.115
__.625.............................. __.325, __.420
__.630.............................. __.325, __.420
__.635.............................. __.315
__.640.............................. __.315
__.645.............................. __.315
Subpart G: ................................
__.700.............................. __.400(a) & (b)
__.705 (a).......................... __.400(c)
__.705 (b).......................... __.412(b)(1)(i) & __.413(a)
__.705 (c).......................... none
__.710.............................. none
__.715.............................. __.411
__.720.............................. __.412(a)
__.725(a)........................... __.412(a)
__.725(b)........................... __.105, definition of Notice,
second sentence; none
__.730.............................. none
__.735.............................. __.412(b), __.413(b), none
__.740(a)........................... __.410(b)
__.740(b)........................... __.412(b)
__.745.............................. __.413(b)(1), __.412(b)(2)
__.750.............................. __.413(b)
__.755.............................. __.413(a) & (c)
__.760.............................. __.415
Subpart H: ................................
__.800.............................. __.305
__.805.............................. __.312
__.810.............................. none
__.815.............................. __.313(a)
__.820.............................. __.313(a); __.105, definition of
Notice, none
__.825.............................. none
__.830.............................. __.313(b), __.314(b), none
__.835.............................. __.310
__.840.............................. __.313(b)
__.845.............................. none, __.314(a) & (b)(1)
__.850.............................. __.314(c)(1)
__.855.............................. __.314(c)(2), none
__.860.............................. none, See 48 CFR 9.406-1(a)
__.865.............................. __.320(a)
__.870.............................. __.314(a) & (d)
__.875.............................. __.320(c)
__.880.............................. __.320(c)
__.885.............................. __.320(b)
Subpart I__Definitions: ................................
__.900-__.1020...................... __.105
------------------------------------------------------------------------
Reconciliation of Technical Differences
The proposed rule incorporates some changes that are designed to
bring the procurement and nonprocurement debarment rules into greater
conformity with each other. However, the ISDC recommended against
issuing a single consolidated rule, or adopting uniform application of
the rule as impractical and confusing. This decision was based on the
ISDC's view that the procurement and nonprocurement communities have
sufficiently different relationships with participants, distinct
methods to procure services or to provide benefits or support, varying
options for dealing with waste, fraud, abuse, and poor performance, and
very different types of exposure to risk.
The ISDC therefore focused its attention on ensuring that both the
procurement and nonprocurement rules contained the same level of
substantive due process in: (a) Applying the same minimum criteria to
suspend or propose debarment; (b) notifying respondents of actions; (c)
making a record to support a decision; (d) providing for fact-finding;
(e) addressing mitigating and other factors; (f) applying evidentiary
standards; and (g) issuing decisions.
Section __.220 of the proposed rule would bring the common rule
into closer conformity with the FAR by limiting the mandatory down-tier
application of an exclusion under the common rule to the first
procurement level. Unless Federal consent is required at a lower level,
if an agency wishes to apply an exclusion at levels lower than the
first procurement level (e.g., to subcontractors or suppliers), the
agency must specifically include that option in its published version
of the common rule. The ISDC recommended this change because it
recognizes that some agencies' nonprocurement transactions are highly
vulnerable to the impact of misconduct and poor performance at levels
below the first procurement, while other agencies' transactions are
not. This approach allows those Federal agencies with vulnerability at
lower tiers to prohibit those transactions, while providing flexibility
to those agencies whose programs' exposure does not merit the
additional administrative burden of enforcing exclusions at lower
tiers.
In addition, the threshold level for application of an exclusion
for all procurement-type transactions under a nonprocurement
transaction would be set at $25,000. This corrects confusion created
when the term ``small purchase threshold,'' formerly found at 10 U.S.C.
2304(g) and 41 U.S.C. 403(11) (set at $25,000), was changed under the
Federal Acquisition Streamlining Act of 1994 to ``simplified
acquisition threshold'' and set at $100,000. Because the current common
rule uses the ``small purchase threshold,'' as the point beneath which
an exclusion does not apply, it has caused confusion as to whether the
exclusion level is $25,000 or $100,000. The procurement debarment
system has already made regulatory changes to subpart 9.4 of the FAR to
keep its exclusion level at $25,000.
In addition to ``suspension'' and ``debarment,'' the common rule
recognizes a status called ``voluntary exclusion.'' Subpart 9.4 of the
FAR makes no reference to such a status. The status of voluntary
exclusion is a remnant from older rules and practices in the
nonprocurement community that pre-date the Governmentwide suspension
and debarment system. It was once used because respondents found the
``voluntary'' nature of the prohibition to be more acceptable. It was,
in fact, a special term used for those who accepted ineligibility
pursuant to an administrative agreement. The ISDC found that there are
benefits to the nonprocurement community in retaining the ability of
Federal agencies to accept voluntary exclusion agreements in place of
debarment or suspension. However, with the creation of the
Governmentwide system, voluntary exclusion agreements that offer
protection only to the agency initiating action in the matter, are
inconsistent with the purposes of the Governmentwide system.
Accordingly, under the proposed rule agencies may still negotiate
voluntary exclusion agreements; however, those exclusions must apply
equally to all Federal agencies.
Section __.860 of the proposed rule is new to the common rule. This
section identifies factors that a debarring official may regard as
mitigating or aggravating factors. It includes factors that currently
appear under Sec. 9.406-1(a) of the FAR. These factors currently offer
useful guidance to the Government and contractors with respect to
matters the
[[Page 3269]]
debarring official should consider in making a debarment decision.
Enhancements to the Proposed Debarment and Suspension Common Rule
This proposed rule would make several modifications to the existing
common rule to enhance the effectiveness of, cure some gaps in, or
clarify requirements and processes under the existing rule. None of
these changes are intended to alter the fundamental principles inherent
to debarment and suspension actions. All information related to the
purposes and procedures applicable to the current rule as reflected in
its preambles at 53 FR 19160-19171 (May 26, 1988), and 60 FR 33036-
33040 (June 26, 1995), shall continue to apply under this proposed and/
or any final rule unless otherwise stated, or inconsistent with these
provisions. Therefore, notwithstanding the technical existence of any
cause for debarment, affiliation, imputable conduct, or other
actionable condition, debarment or suspension may not be used to
punish. Nor may it be used to coerce a respondent into accepting
criminal, civil or administrative sanctions. An agency may address its
legitimate suspension and debarment concerns before, after or in
conjunction with sanctions, so long as suspension or debarment is
otherwise appropriate to protect the Federal Government. In all cases,
suspending and debarring officials must use business judgment and
discretion in electing to use the suspension and debarment authority
under this rule to protect government activities from potential waste,
fraud, abuse, poor performance and non-compliance with applicable laws,
regulations or conditions related to nonprocurement transactions. Where
an agency has the authority to act under either the procurement or
nonprocurement rule, it may act under either rule to avoid confusion or
duplication.
The proposed rule would move definitions from Subpart A of the
current rule to Subpart I. Under the proposed rule, a new term is used
to refer to ineligibility that arises from sources other than
discretionary actions taken under either the common rule or subpart 9.4
of the FAR. This type of ineligibility may arise by operation of a
statute, executive order, or other directive and may not be subject to
the discretion of the agency suspending or debarring official. In
addition, it may have special attributes that are inconsistent with the
discretionary actions initiated under the common rule or the FAR. For
example, persons convicted under the Clean Air Act or Clean Water Act
are automatically ineligible for procurement and nonprocurement
participation at the violating facility which gave rise to the
conviction until the EPA Debarring Official certifies that the
conditions giving rise to the conviction have been corrected. The
proposed rule refers to these and other special forms of ineligibility
as ``disqualifications.'' Disqualifications must be listed on the
General Services Administration (GSA), List of Parties Excluded or
Disqualified from Federal Procurement and Nonprocurement Programs
(List), but are not subject to the uniform procedural requirements of
this rule. (Note that agencies with special provisions related to
disqualification may, at their option, include those requirements in
subpart J or other subparts appended to this rule as a convenience to
the agency or the public.) For discretionary actions that result in
ineligibility under the uniform suspension and debarment procedures
covered by the common rule and the FAR, this proposed rule uses the
term ``exclusion.'' Therefore, an ineligibility may result from either
a disqualification or an exclusion.
The proposed rule adds a new definition for ``agent or
representative'' as is used under the FAR and clarifies the definition
of ``participant.'' It also proposes a more useful definition of the
types of activities that are encompassed within the term ``principal.''
The term ``voluntary exclusion'' is narrowed under this proposed
rule to conform to the principles of governmentwide protection and give
it the same scope of coverage as other exclusions.
One significant change to the definitions under the proposed common
rule relates to the term ``conviction.'' Previously, the common rule
defined conviction as a judgment that had to be ``entered'' by the
court before it was recognized as constituting a ground for suspension
or debarment. In recent years, courts have used many vehicles to
conclude criminal matters short of ``entry'' of a judgment of
conviction, such as probation before judgment, pre-trial diversion, and
simply withholding final judgment upon satisfaction of certain
conditions in lieu of incarceration or payment of a fine. Currently,
the withholding of entry of the judgment in a criminal matter often
means that a respondent remains under a temporary suspension until
criminal proceedings are concluded. This does not benefit either the
government or the respondent because the government is unable to
conclude the matter by final decision or with a compliance agreement
with any certainty that a baseline for risk assessment can be finally
established. From a business point of view, the withholding of an
``entry'' of judgment under these conditions should not preclude
Federal agencies from taking appropriate action to protect the
government. It makes no sense for an agency to have to prove the
underlying misconduct or conditions all over again, merely because the
court decided not to ``enter'' its judgment. Under the proposed rule,
the suspending or debarring official would be able to consider criminal
matters resolved by means short of dismissal as final so that
appropriate administrative action can be taken, or a remedial plan of
compliance concluded. This change would benefit both the government and
a respondent.
The proposed rule would significantly clarify confusion under the
existing rule as to who may be suspended or debarred and the impact of
that decision on a suspended or debarred person. An agency may exclude
any ``person'' as defined in the rule that may be reasonably expected
to participate in a ``covered transaction'' (see Sec. __.135).
Even if a person is excluded, agencies could still award a covered
transaction to that person when it is in the best interest of the
government to do so. The proposed rule sets forth more clearly the two
situations that allow an otherwise excluded person to participate in a
nonprocurement transaction. The first is when an agency grants an
exception to the excluded person to participate in a covered
transaction (see Sec. __.120). Exceptions are transaction-specific
decisions that the designated agency official must justify in writing.
The second situation that allows an excluded person to participate in a
transaction is when an agency is entering into an exempt transaction
(see Sec. __.215). Exempt transactions have special status and are not
regarded as covered transactions. Exempt transactions may or may not be
transaction-specific, and do not require the written justification of a
designated agency official before entering into them. Each agency is
responsible for clarifying the applicability or non-applicability of an
exemption to any of its transactions in its agency-specific rule.
Proposed Sec. __.215 contains a new exemption that has been added
at paragraph (e). This exemption is proposed because most often the
transactions listed within this paragraph are regulatory vehicles that
should not be automatically precluded to an otherwise excluded person.
In cases
[[Page 3270]]
where an agency uses a ``permit,'' ``license'' or other similar
transaction to approve or authorize government-regulated activity, but
desires to subject issuance of the transaction to the GSA List, it must
do so in its regulations or other guidance.
Sections __.615, __.715 and __.805 of the proposed rule would amend
the notice provisions of the existing rule. The proposed rule would
authorize an agency to use facsimile and e-mail to notify a respondent
of debarment or suspension actions affecting that person. The proposed
modification to the existing rule would recognize the advances made in
communications technology since the original rule was published and
would provide a better system for confirming receipt of notices that
were sent.
The current common rule identifies the two conclusions that a
suspending official must make before imposing a suspension. While the
current rule provides some guidance as to how a suspending official may
conclude that ``adequate evidence'' of a cause for action may exist, it
is silent as to how the official may conclude that ``immediate action''
is necessary to protect the public interest. The proposed rule would
add information at Sec. __.705(c) that reflects the court's decision in
Coleman American Moving Services, Inc. v. Weinberger, 716 F. Supp. 1405
(M. D. Ala. 1989), that a suspending official need not make a separate
and specific finding as to immediate need, but may reach that
conclusion from inferences reasonably drawn from the facts and
circumstances present.
Also, Sec. __.735 of the proposed rule would authorize the
suspending official to preclude fact-finding where a State attorney
general's office, State or local prosecutor advises that conducting
fact-finding would prejudice substantial interests of the State or
local government in pending or contemplated legal proceedings based
upon the same facts as the suspension. This language is necessary to
close a gap in the current rule that allows a Federal agency to suspend
on the basis of a Federal, State or local indictment, but only
addresses denial of fact-finding in the context of advice received from
Federal officials. In suspension and debarment matters, there is no
distinction made between indictments issued at the Federal, state or
local level. All indictments for alleged misconduct relevant to
nonprocurement and procurement risks provide a basis for Federal
concern. Therefore, where the prospect of an administrative fact-
finding proceeding could prejudice the outcome of a matter at the state
or local level, the suspending official must have the same authority to
deny fact-finding to protect those proceedings as for matters based
upon actions initiated at the Federal level. Accordingly, Secs. __.735
and __.760 of the proposed rule would reflect equality of treatment to
be given to our respective levels of government in suspension matters.
Proposed Secs. __.730 and __.825 would identify information that a
respondent must provide the suspending or debarring official when
contesting a suspension or proposed debarment. This information is
relevant to the official's decision and is frequently requested during
the presentation of matters in opposition. By highlighting this
requirement in the rule, a respondent can be prepared in advance to
address the issue at the time of the respondent's initial written
submission, or during the oral presentation if one is made. These
sections of the proposed rule also clarify that a general denial of
allegations contained in the notice of action is insufficient to
establish a genuine dispute over a material fact. A suspending or
debarring official can only determine if a respondent is entitled to a
fact-finding proceeding if the respondent's submission in opposition
contains enough specific information to identify the issue in question
and establish a basis for dispute.
Section __.515(b) of the proposed rule includes additional
information to be contained on the GSA List or within its database.
Under the current rule, other than the name and address of an excluded
person, there is currently insufficient information on the List or in
the GSA database that can be used to confirm the identity of a listed
person under a commonly used name. Confirmation requires contact with
the designated Federal official by telephone or other means, a search
of records if available, and confirmation in accordance with that
agency's Routine Use Notice. The proposed rule would permit the
database for the electronic version of the GSA List to include a field
for Taxpayer Identification Numbers (TINs) and Social Security Numbers
(SSNs) if legally appropriate. The List and current database contains
names of individuals, business entities and organizations that can be
the same or confusingly similar. The current commercial world uses TINs
and SSNs widely and freely to confirm identities for all kinds of
transactions.
The proposed rule would position GSA to compile that information in
the event the law should allow public access to it. Otherwise, the
current system will remain commercially inefficient. We specifically
invite comment on the proposed inclusion of this provision in the
common rule.
The proposed rule would also eliminate a requirement under the
current rule that the exclusions be enforced through a chain of paper
certifications submitted to an agency or between participants under a
covered transaction. Certification as a means of enforcement has proven
to be administratively awkward and impossible for some transactions
that do not even involve an ``award.'' Advancements in technology allow
anyone with access to a personal computer to receive up-to-date
information about a person's eligibility by accessing the GSA list on
line. This makes the certification process largely obsolete. The
proposed rule would allow agencies to employ any method of enforcement
of the GSA List that is administratively and commercially feasible.
This change is consistent with Congress' intent under the Federal
Acquisition Reform Act of 1994 (Public Law 104-208), to eliminate
unnecessary certifications.
Proposed Separate Part To Implement the Drug-Free Workplace Act
Finally, this document proposes to establish a separate part for
the drug-free workplace requirements that are in subpart F of the
existing rule. The only requirement of the Drug Free Workplace Act of
1988 that relates to suspension and debarment is incorporated into the
causes for debarment. The remaining provisions of subpart F are used
predominantly by recipients of Federal assistance awards and by Federal
officials who make and administer those awards, which distinguishes
them from the common rule that is used mainly by Federal suspension and
debarment officials and respondents. Moving the requirements of the
current subpart F into a part separate from the common rule allows each
Federal agency to place it in an appropriate location within the Code
of Federal Regulations where it may be more easily used by recipients
and Federal awarding and administering officials.
The proposed separate part to incorporate the provisions of Subpart
F, like the proposed update to the debarment and suspension common
rule, is reformatted and rewritten in plain language. Due to the
proposed reformatting, requirements would appear in a different order
than they do in the current Subpart F. The following table will assist
you in locating and comparing the requirements under both rules.
[[Page 3271]]
------------------------------------------------------------------------
Proposed drug-free workplace common rule Current drug-free workplace
sections common rule sections
------------------------------------------------------------------------
.100..................................... .600(a)
.105(a)(1)............................... .610(a)
.105(a)(2)............................... none
.105(b).................................. none
.110..................................... .610(b)
.115..................................... .600(b)
.200..................................... .630(a)(1)
.200(a).................................. certification alt I. A. (g)
.200(b).................................. certification alt I. B.
.205(a).................................. certification alt I. A. (a)
.205(b).................................. certification alt I. A. (a)
.205(c).................................. certification alt I. A. (d)
.210..................................... certification alt I. A. (c)
.215..................................... certification alt I. A. (b)
.220..................................... .630 (e)
.225(a).................................. .635 (a)(1)
.225(a).................................. certification alt I. A. (e)
.225(b).................................. .635(a)(2)
.225(b).................................. certification alt I. A. (f)
.230(a).................................. appendix C. 5
.230(b).................................. Appendix C. 6
.230(c).................................. Appendix C. 7
.300..................................... .630(a)(1)
.300..................................... certification alt II.
.300(b).................................. .635(b)
.400(a).................................. none
.400(b).................................. none
.500..................................... .615(b)
.505..................................... .615(c)
.510..................................... .620(a)
.510..................................... .............................
.515..................................... .625
.605..................................... .605(b)(7)
.610..................................... .605(b)(1)
.615..................................... .605(b)(2)
.620..................................... none
.625..................................... .605(b)(3)
.630..................................... D&S common rule
.635..................................... .605(b)(4)
.640..................................... .605(b)(5)
.645..................................... .605(b)(6)
.650..................................... none
.655..................................... .605(b)(9)
.660..................................... .605(b)(8)
.665..................................... .605(b)(10)
.670..................................... D&S common rule
.600(a)(1)
.600(a)(2)
.610(c)
.615(a)
D&S common rule.......................... .620(b)
.630(a)(2)
.630(b)
.630(c)
.630(d)
Appendix C. 1
Appendix C. 3
Appendix C. 4
Appendix C. 8
------------------------------------------------------------------------
The proposed separate part would make one substantive change to the
current subpart F. The proposed substantive change would require
Federal agencies to obtain recipients' assurances of compliance with
drug-free workplace requirements and not require them to obtain
certifications from recipients. This substantive change implements
section 809 of the National Defense Authorization Act for Fiscal Year
1998 (Public Law 105-85, 111 Stat. 1838-1839) that amended the Drug-
Free Workplace Act of 1988. The body of the proposed separate part
therefore includes the substantive requirements for recipients that now
are in the text of the drug-free workplace certification in appendix C
to the common rule.
The proposed separate part also would make some definitional
changes to the current subpart F. First, it includes a definition of
``debarment,'' since it no longer would be a subpart within the common
rule that relies on the definitions in that part. Second, the proposed
separate part uses the term ``award,'' rather than the term ``grant,''
to include the grants, cooperative agreements, and other assistance
instruments covered by the drug-free workplace requirements. The term
``grant'' then is proposed to be redefined to bring it into conformance
with the use of that term established by the Federal Grant and
Cooperative Agreement Act (currently at 31 U.S.C. chapter 63). Doing so
should help avoid confusion about the applicability of the drug-free
workplace requirements to assistance instruments other than grants. To
accommodate the change to the term ``award,'' the proposed separate
part includes a definition for the term ``cooperative agreement'' and
uses the term ``recipient,'' rather than ``grantee.''
Impact Analysis--Executive Order 12866
This is not a significant regulatory action under section 3(f)(4)
of Executive Order 12866, ``Regulatory Planning and Review.''
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 605(b)) requires that, for
each rule with a ``significant economic impact on a substantial number
of small entities,'' an analysis must be prepared describing the rule's
impact on small entities and identifying any significant alternatives
to the rule that would minimize the economic impact on small entities.
The participating agencies certify that this proposed rule, if
published as a final rule, would not have a significant impact on a
substantial number of small entities. This proposed rule addresses
Federal agency procedures for suspension and debarment. It clarifies
current requirements under the Nonprocurement Common Rule for Debarment
and Suspension by reorganizing information and presenting that
information in a plain language, question-and-answer format.
C. Unfunded Mandates Act of 1995
The Unfunded Mandates Act of 1995 (Public Law 104-4) requires
agencies to prepare several analytic statements before proposing any
rule that may result in an annual expenditures of $100 million by
State, local, Indian Tribal governments or the private sector. Since
this proposed rule, if published as a final rule, would not result in
expenditures of this magnitude, the participating agencies certify that
such statements are not necessary.
D. Paperwork Reduction Act
The participating agencies certify that this proposed rule, if
published as a final rule, would not impose additional reporting or
record-keeping requirements under the Paperwork Reduction Act of 1995
(44 U.S.C. chapter 35).
E. Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996, (5 U.S.C.
804). This proposed rule, if published as a final rule, would not:
Result in an annual effect on the economy of $100 million or more;
result in an increase in cost or prices; or have significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete with foreign-based companies in domestic and export markets.
F. Executive Order 13132: Federalism
This proposed rule, if published as a final rule, would not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the
[[Page 3272]]
distribution of power and responsibilities among the various levels of
government. Therefore, in accordance with section 6 of Executive Order
13132, the participating agencies have determined that this rule does
not have sufficient federalism implications to warrant the preparation
of a federalism summary impact statement.
Text of the Proposed Common Rules
The text of the proposed common rules appear below:
1. [Part/Subpart] __ is revised to read as follows:
[PART/SUBPART] __ GOVERNMENTWIDE DEBARMENT AND SUSPENSION
(NONPROCUREMENT)
Sec.
__.25 How is this part organized?
__.50 How is this part written?
__.75 Do terms in this part have special meanings?
Subpart A--General
__.100 What does this part do?
__.105 Does this part apply to me?
__.110 What is the purpose of the nonprocurement debarment and
suspension system?
__.115 How does an exclusion restrict a person's involvement in
covered transactions?
__.120 May we grant an exception to let an excluded person
participate in a covered transaction?
__.125 Does an exclusion under the nonprocurement system affect a
person's eligibility to participate in Federal procurement
contracts?
__.130 Does an exclusion under the Federal procurement system
affect a person's eligibility to participate in nonprocurement
transactions?
__.135 May the [Agency noun] exclude a person who is not currently
participating in a nonprocurement transaction?
__.140 How do I know if a person is excluded?
__.145 Does this part cover persons who are disqualified as well as
those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
__.200 What is a covered transaction?
__.205 Why is it important to know if a particular transaction is a
covered transaction?
__.210 Which nonprocurement transactions are covered transactions?
__.215 Which nonprocurement transactions are not covered
transactions?
__.220 Are any procurement contracts included as covered
transactions?
__.225 How do I know if a transaction in which I may participate is
a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
__.300 May I enter into a covered transaction with an excluded or
disqualified person?
__.305 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
__.310 May I use the services of an excluded person under a covered
transaction?
__.315 Must I verify that principals of my covered transactions are
eligible to participate?
__.320 What happens if I do business with an excluded person in a
covered transaction?
__.325 What requirements must I pass down to persons at lower tiers
with whom I intend to do business?
Disclosing Information--Primary Tier Participants
__.330 What information must I provide before entering into a
covered transaction with the [Agency noun]?
__.335 If I disclose unfavorable information required under
Sec. __.330 will I be prevented from entering into the transaction?
__.340 What happens if I fail to disclose the information required
under Sec. __.330?
__.345 What must I do if I learn of the information required under
Sec. __.330 after entering into a covered transaction with the
[Agency noun]?
Disclosing Information--Lower Tier Participants
__.350 What information must I provide to a higher tier participant
before entering into a covered transaction with that participant?
__.355 What happens if I fail to disclose the information required
under Sec. __.350?
__.360 What must I do if I learn of information required under
Sec. __.350 after entering into a covered transaction with a higher
tier participant?
Subpart D--Responsibilities of [Agency adjective] Officials Regarding
Transactions
__.400 May I enter into a transaction with an excluded or
disqualified person?
__.405 May I enter into a covered transaction with a participant if
a principal of the transaction is excluded?
__.410 May I approve a participant's use of the services of an
excluded person?
__.415 What must I do if a Federal agency excludes the participant
or a principal after I enter into a covered transaction?
__.420 May I approve a transaction with an excluded or disqualified
person at a lower tier?
__.425 When do I check to see if a person is excluded or
disqualified?
__.430 How do I check to see if a person is excluded or
disqualified?
__.435 What must I require of a primary tier participant?
__.440 [Reserved]
__.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
__.450 What action may I take if a primary tier participant fails
to disclose the information required under Sec. __.330?
__.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. __.350 to the next higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From
Federal Procurement and Nonprocurement Programs
__.500 What is the purpose of the List?
__.505 Who uses the List?
__.510 Who maintains the List?
__.515 What specific information is on the List?
__.520 Who gives the GSA the information that it puts on the List?
__.525 Whom do I ask if I have questions about a person on the
List?
__.530 Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment
Actions
__.600 How do suspension and debarment actions start?
__.605 How does suspension differ from debarment?
__.610 What procedures does the [Agency noun] use in suspension and
debarment actions?
__.615 How does the [Agency noun] notify a person of suspension and
debarment actions?
__.620 Do Federal agencies coordinate suspension and debarment
actions?
__.625 What is the scope of a suspension or debarment action?
__.630 May the [Agency noun] impute the conduct of one person to
another?
__.635 May the [Agency noun] settle a debarment or suspension
action?
__.640 May a settlement include a voluntary exclusion?
--.645 Do other Federal agencies know if the [Agency noun] agrees
to a voluntary exclusion?
Subpart G--Suspension
__.700 When may the suspending official issue a suspension?
__.705 What does the suspending official consider in issuing a
suspension?
__.710 When does a suspension take effect?
__.715 What notice does the suspending official give me if I am
suspended?
__.720 How may I contest a suspension?
__.725 How much time do I have to contest a suspension?
__.730 What information must I provide to the suspending official
if I contest a suspension?
__.735 Under what conditions do I get an additional opportunity to
challenge the facts on which the suspension is based?
__.740 Are suspension proceedings formal?
__.745 Is a record made of fact-finding proceedings?
__.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
__.755 When will I know whether the suspension is continued or
terminated?
__.760 How long may my suspension last?
[[Page 3273]]
Subpart H--Debarment
__.800 What are the causes for debarment?
__.805 What notice does the debarring official give me if I am
proposed for debarment?
__.810 When does a debarment take effect?
__.815 How may I contest a proposed debarment?
__.820 How much time do I have to contest a proposed debarment?
__.825 What information must I provide to the debarring official if
I contest a proposed debarment?
__.830 Under what conditions do I get an additional opportunity to
challenge the facts on which a proposed debarment is based?
__.835 Are debarment proceedings formal?
__.840 Is a record made of fact-finding proceedings?
__.845 What does the debarring official consider in deciding
whether to debar me?
__.850 What is the standard of proof in a debarment action?
__.855 Who has the burden of proof in a debarment action?
__.860 What factors may influence the debarring official's
decision?
__.865 How long may my debarment last?
__.870 When do I know if the debarring official debars me?
__.875 May I ask the debarring official to reconsider a decision to
debar me?
__.880 What factors may influence the debarring official during
reconsideration?
__.885 May the debarring official extend a debarment?
Subpart I--Definitions
__.900 Adequate evidence.
__.905 Affiliate.
__.910 Agency.
__.915 Agent or representative.
__.920 Civil judgment.
__.925 Conviction.
__.930 Debarment.
__.935 Debarring official.
__.940 Disqualified.
__.945 Excluded or exclusion.
__.950 Indictment.
__.955 Ineligible or ineligibility.
__.960 Legal proceedings.
__.965 List of Parties Excluded or Disqualified From Federal
Procurement and Nonprocurement Programs.
__.970 Nonprocurement transaction.
__.975 Notice.
__.980 Participant.
__.985 Person.
__.990 Preponderance of the evidence.
__.995 Principal.
__1000 Respondent.
__.1005 State.
__.1010 Suspending official.
__.1015 Suspension.
__.1020 Voluntary exclusion or voluntarily excluded.
Subpart J--[Reserved]
Appendix to Part __Covered Transactions
Authority: Sec. 2455, Pub. L. 103-355, 108 Stat. 3327; E.O.
12549, 3 CFR, 1986 Comp., p. 189; E.O. 12689, 3 CFR, 1989 Comp.,
p .235.
Sec. __.25 How is this part organized?
(a) This part is subdivided into ten subparts. Each subpart
contains information related to a broad topic or specific audience with
special responsibilities, as shown in the following table:
------------------------------------------------------------------------
You will find provisions
In subpart ... related to ...
------------------------------------------------------------------------
A......................................... general information about
this rule.
B......................................... the types of [Agency
adjective] transactions
that are covered by the
Governmentwide
nonprocurement suspension
and debarment system.
C......................................... the responsibilities of
persons who participate in
covered transactions.
D......................................... the responsibilities of
[Agency adjective]
officials who are
authorized to enter into
covered transactions.
E......................................... the responsibilities of
Federal agencies for the
List of Parties Excluded or
Disqualified From Federal
Procurement and
Nonprocurement Programs
(Published by the General
Services Administration).
F......................................... the general principles
governing suspension,
debarment, voluntary
exclusion and settlement.
G......................................... suspension actions.
H......................................... debarment actions.
I......................................... definitions of terms used in
this part.
J......................................... [Reserved]
------------------------------------------------------------------------
(b) The following table shows which subparts may be of special
interest to you, depending on who you are:
------------------------------------------------------------------------
If you are ... see subpart(s) ...
------------------------------------------------------------------------
(1) a participant or principal in a A, B, C and I.
nonprocurement transaction.
(2) a respondent in a suspension action... A, B, F, G and I.
(3) a respondent in a debarment action.... A, B, F, H and I.
(4) a suspending official................. A, B, E, F, G and I.
(5) a debarring official.................. A, B, D, F, H and I.
(6) a(n) [Agency adjective] official A, B, D, E and I.
authorized to enter into a covered
transaction.
(7) Reserved.............................. J.
------------------------------------------------------------------------
Sec. __.50 How is this part written?
(a) This part uses a ``plain language'' format to make it easier
for the general public and business community to use. The section
headings and text, often in the form of questions and answers, must be
read together.
(b) Pronouns used within this part, such as ``I'' and ``you,''
change from subpart to subpart depending on the audience being
addressed. The pronoun ``we'' always is the [Agency noun].
(c) The ``Covered Transactions'' chart in the appendix to this part
shows the levels or ``tiers'' at which the [Agency noun] enforces an
exclusion under this part.
Sec. __.75 Do terms in this part have special meanings?
This part uses terms throughout the text that have special meaning.
Those terms are defined in Subpart I of this part. For example, three
important terms are--
(a) Exclusion or excluded, which refers only to discretionary
actions taken by a suspending or debarring official under this part or
the Federal Acquisition Regulation (48 CFR part 9, subpart 9.4);
(b) Disqualification or disqualified, which refers to prohibitions
under specific statutes, executive orders (other than Executive Order
12549 and Executive Order 12689), or other authorities.
Disqualifications frequently are not subject to the discretion of an
agency official, may have a different scope than exclusions, or have
special conditions that apply to the disqualification; and
(c) Ineligibility or ineligible, which generally refers to a person
who is either excluded or disqualified.
Subpart A--General
Sec. __.100 What does this part do?
This part adopts a governmentwide system of debarment and
suspension for [Agency adjective] nonprocurement activities. It also
provides for reciprocal exclusion of persons who have been excluded
under the Federal Acquisition Regulation, and provides for the
consolidated listing of all persons who are excluded, or disqualified
by statute, executive order, or other legal authority.
[[Page 3274]]
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, Public Law 103-355, 108
Stat. 3327).
Sec. __.105 Does this part apply to me?
Portions of this part (see table at Sec. __.25(b)) apply to you if
you are a(n):
(a) Participant or principal in a covered transaction;
(b) Respondent (a person against whom the [Agency noun] has
initiated a debarment or suspension action);
(c) [Agency adjective] debarring or suspending official; or
(d) [Agency adjective] official who is authorized to enter into
covered transactions with non-Federal parties.
Sec. __.110 What is the purpose of the nonprocurement debarment and
suspension system?
(a) To protect the public interest, the Federal Government ensures
the integrity of Federal programs by conducting business only with
responsible persons.
(b) A Federal agency uses the nonprocurement debarment and
suspension system to exclude persons from Federal programs persons who
are not presently responsible.
(c) An exclusion is a serious action that a Federal agency may take
only to protect the public interest. A Federal agency may not exclude a
person or commodity for the purposes of punishment.
Sec. __.115 How does an exclusion restrict a person's involvement in
covered transactions?
With the exceptions stated in Secs. __.120, __.315, and __.420, a
person who is excluded by the [Agency noun] or any other Federal agency
may not:
(a) Be a participant in a(n) [Agency adjective] transaction that is
a covered transaction under Subpart B of this part;
(b) Be a participant in a transaction of any other Federal agency
that is a covered transaction under that agency's regulation for
debarment and suspension; or
(c) Act as a principal of a person participating in one of those
covered transactions.
Sec. __.120 May we grant an exception to let an excluded person
participate in a covered transaction?
(a) The [Agency head or designee] may grant an exception permitting
an excluded person to participate in a particular covered transaction.
If the [Agency head or designee] grants an exception, the exception
must be in writing and state the reason(s) for deviating from the
governmentwide policy in Executive Order 12549.
(b) An exception granted by one agency for an excluded person does
not extend to the covered transactions of another agency.
Sec. __.125 Does an exclusion under the nonprocurement system affect a
person's eligibility for Federal procurement contracts?
If any Federal agency excludes a person under its nonprocurement
common rule on or after August 25, 1995, the excluded person is also
ineligible to participate in Federal procurement transactions under the
FAR. Therefore, an exclusion under this part has reciprocal effect in
Federal procurement transactions.
Sec. __.130 Does exclusion under the Federal procurement system affect
a person's eligibility to participate in nonprocurement transactions?
If any Federal agency excludes a person under the FAR on or after
August 25, 1995, the excluded person is also ineligible to participate
in nonprocurement covered transactions under this part. Therefore, an
exclusion under the FAR has reciprocal effect in Federal nonprocurement
transactions.
Sec. __.135 May the [Agency noun] exclude a person who is not
currently participating in a nonprocurement transaction?
Given a cause that justifies an exclusion under this part, we may
exclude any person who has participated, is currently participating, or
may reasonably be expected to participate in a covered transaction.
Sec. __.140 How do I know if a person is excluded?
Check the Governmentwide List of Parties Excluded or Disqualified
from Federal Procurement and Nonprocurement Programs (List) to
determine whether a person is excluded. The General Services
Administration (GSA) maintains the List and makes it available, as
detailed in Subpart E of this part. When a Federal agency takes an
action to exclude a person under the nonprocurement or procurement
debarment and suspension system, the agency sends information about the
excluded person to the GSA for inclusion on the List.
Sec. __.145 Does this part address persons who are disqualified, as
well as those who are excluded from nonprocurement transactions?
Except if provided for in Subpart J of this part, this part--
(a) Addresses disqualified persons only to--
(1) Provide for their inclusion on the List; and
(2) State responsibilities of Federal agencies and participants to
check for disqualified persons before entering into covered
transactions.
(b) Does not specify the--
(1) [Agency adjective] transactions for which a disqualified person
is ineligible. Those transactions vary on a case-by-case basis, because
they depend on the language of the specific statute, Executive order,
or regulation that caused the disqualification;
(2) Entities to which the disqualification applies; or
(3) Process that the agency uses to disqualify a person. Unlike
exclusion, disqualification is frequently not a discretionary action
that a Federal agency takes.
Subpart B--Covered Transactions
Sec. __.200 What is a covered transaction?
A covered transaction is a nonprocurement or procurement
transaction that is subject to the prohibitions of this part. It may be
a transaction at--
(a) The primary tier, between a Federal agency and a person (see
appendix to this part); or
(b) A lower tier, between a participant in a covered transaction
and another person.
Sec. __.205 Why is it important if a particular transaction is a
covered transaction?
The importance of a covered transaction depends upon who you are.
(a) As a participant in the transaction, you have the
responsibilities laid out in Subpart C of this part. Those include
responsibilities to the person or Federal agency at the next higher
tier from whom you received the transaction, if any. They also include
responsibilities if you subsequently enter into other covered
transactions with persons at the next lower tier.
(b) As a Federal official who enters into a primary tier
transaction, you have the responsibilities laid out in subpart D of
this part.
(c) As an excluded person, you may not be a participant or
principal in the transaction unless--
(1) The person who entered into the transaction with you allows you
to continue your involvement in a transaction that predates your
exclusion, as permitted under Sec. __.305 or Sec. __.415; or
(2) A(n) [Agency adjective] official obtains an exception from the
[Agency head or designee] to allow you to be
[[Page 3275]]
involved in the transaction, as permitted under Sec. _.120.
Sec. __.210 Which nonprocurement transactions are covered
transactions?
All nonprocurement transactions, as defined in Sec. __.970, are
covered transactions unless listed in Sec. __.215. (See appendix to
this part.)
Sec. __.215 Which nonprocurement transactions are not covered
transactions?
The following types of nonprocurement transactions are not covered
transactions:
(a) A direct award to--
(1) A foreign government or foreign governmental entity;
(2) A public international organization;
(3) An entity owned (in whole or in part) or controlled by a
foreign government; or
(4) Any other entity consisting wholly or partially of one or more
foreign governments or foreign governmental entities.
(b) A benefit to an individual as a personal entitlement without
regard to the individual's present responsibility (but benefits
received in an individual's business capacity are not excepted). For
example, if a person receives social security benefits under the
Supplemental Security Income provisions of the Social Security Act, 42
U.S.C. 1301 et seq., those benefits are not covered transactions and,
therefore, are not affected if the person is excluded.
(c) Federal employment.
(d) A transaction that the [Agency noun] needs to respond to a
national or agency-recognized emergency or disaster.
(e) A permit, license, certificate, or similar instrument issued as
a means to regulate public health, safety, or the environment, unless
the [Agency noun] specifically designates it to be a covered
transaction.
(f) An incidental benefit that results from ordinary governmental
operations.
(g) Any other transaction if the application of an exclusion to the
transaction is prohibited by law.
Sec. __.220 Are any procurement contracts included as covered
transactions?
Covered transactions under this part do not include any procurement
contracts awarded directly by a Federal agency (those transactions are
covered under the Federal Acquisition Regulation), but they do include
some procurement contracts awarded by non-Federal participants in
nonprocurement covered transactions (see appendix to this part).
Specifically, a contract for goods or services is a covered transaction
if any of the following applies:
(a) The contract is awarded by a participant in a nonprocurement
transaction that is covered under Sec. __.210, and the amount of the
contract is expected to equal or exceed $25,000.
(b) The contract requires the consent of a(n) [Agency adjective]
official. In that case, the contract, regardless of the amount, always
is a covered transaction, and it does not matter who awarded it. For
example, it could be a subcontract awarded by a contractor at a tier
below a nonprocurement transaction, as shown in the appendix to this
part.
(c) The contract is for federally-required audit services.
Sec. __.225 How do I know if a transaction in which I may participate
is a covered transaction?
As a participant in a transaction, you will know that it is a
covered transaction because the agency regulations governing the
transaction, the appropriate agency official, or participant at the
next higher tier who enters into the transaction with you, will tell
you that you must comply with applicable portions of this part.
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
Sec. __.300 May I enter into a covered transaction with an excluded or
disqualified person?
(a) You as a participant may not enter into a covered transaction
with an excluded person, unless the [Agency noun] grants an exception
under Sec. __.120.
(b) You may not enter into any transaction with a person who is
disqualified from that transaction, unless you have obtained an
exception under the disqualifying statute, Executive order, or
regulation.
Sec. __.305 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
(a) You as a participant may continue covered transactions with an
excluded person if the transactions were in existence when the agency
excluded the person. However, you are not required to continue the
transactions, and you may consider termination. You should make a
decision about whether to terminate and the type of termination action,
if any, only after a thorough review to ensure that the action is
proper and appropriate.
(b) You may not renew or extend covered transactions (other than
no-cost time extensions) with any excluded person, unless the [Agency
noun] grants an exception under Sec. __.120.
Sec. __.310 May I use the services of an excluded person under a
covered transaction?
(a) You as a participant may continue to use the services of an
excluded person as a principal under a covered transaction if you were
using the services of that person in the transaction before the person
was excluded. However, you are not required to continue using that
person's services as a principal.
(b) You may not begin to use the services of an excluded person as
a principal under a covered transaction unless the [Agency noun] grants
an exception under Sec. __.120.
Sec. __.315 Must I verify that principals of my covered transactions
are eligible to participate?
Yes, you as a participant are responsible for determining whether
any principal of your covered transactions is excluded or disqualified
from participating in the transaction.
You may decide the method and frequency by which you do so. You
may, but you are not required to, check the governmentwide List.
Sec. __.320 What happens if I do business with an excluded person in a
covered transaction?
If as a participant you knowingly do business with an excluded
person, we may disallow costs, annul or terminate the transaction,
issue a stop work order, debar or suspend you, or take other remedies
as appropriate.
Sec. __.325 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Before entering into a covered transaction with a participant at
the next lower tier, you must require that participant to:
(a) Comply with this subpart as a condition of participation in the
transaction. You may do so using any method(s), unless Sec. __.430
requires you to use specific methods.
(b) Pass the requirement to comply with this subpart to each person
with whom the participant enters into a covered transaction at the next
lower tier.
Disclosing Information--Primary Tier Participants
Sec. __.330 What information must I provide before entering into a
covered transaction with the [Agency noun]?
Before you enter into a covered transaction at the primary tier,
you as the participant must notify the [Agency
[[Page 3276]]
adjective] office that is entering into the transaction with you, if
you know that you or any of the principals for that covered
transaction:
(a) Are presently excluded or disqualified;
(b) Have been convicted within the preceding three years of any of
the offenses listed in Sec. __.800(a) or had a civil judgment rendered
against you for one of those offenses within that time period;
(c) Are presently indicted for or otherwise criminally or civilly
charged by a governmental entity (Federal, state or local) with
commission of any of the offenses listed in Sec. __.800(a); or
(d) Have had one or more public transactions (Federal, state, or
local) terminated within the preceding three years for cause or
default.
Sec. __.335 If I disclose unfavorable information required under
Sec. __.330, will I be prevented from participating in the transaction?
As a primary tier participant, your disclosure of unfavorable
information about yourself or a principal under Sec. __.330 will not
necessarily cause us to deny your participation in the covered
transaction. We will consider the information when we determine whether
to enter into the covered transaction. We also will consider any
additional information or explanation that you elect to submit with the
disclosed information.
Sec. __.340 What happens if I fail to disclose information required
under Sec. __.330?
If we later determine that you failed to disclose information under
Sec. __.330 that you knew at the time you entered into the covered
transaction, we may
(a) Terminate the transaction for material failure to comply with
the terms and conditions of the transaction; or
(b) Pursue any other available remedies, including suspension and
debarment.
Sec. __.345 What must I do if I learn of information required under
Sec. __.330 after entering into a covered transaction with the [Agency
noun]?
At any time after you enter into a covered transaction, you must
give immediate written notice to the [Agency adjective] office with
which you entered into the transaction if you learn either that--
(a) You failed to disclose information earlier, as required by
Sec. __.330; or
(b) Due to changed circumstances, you or any of the principals for
the transaction now meet any of the criteria in Sec. __.330.
Disclosing Information--Lower Tier Participants
Sec. __.350 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
Before you enter into a covered transaction with a person at the
next higher tier, you as a lower tier participant must notify that
person if you know that you or any of the principals are presently
excluded or disqualified.
Sec. __.355 What happens if I fail to disclose information required
under Sec. __.350?
If we later determine that you failed to tell the person at the
higher tier that you were excluded or disqualified at the time you
entered into the covered transaction with that person, we may pursue
any available remedies, including suspension and debarment.
Sec. __.360 What must I do if I learn of information required under
Sec. __.350 after entering into a covered transaction with a higher
tier participant?
At any time after you enter into a lower tier covered transaction
with a person at a higher tier, you must provide immediate written
notice to that person if you learn either that--
(a) You failed to disclose information earlier, as required by
Sec. __.350; or
(b) Due to changed circumstances, you or any of the principals for
the transaction now meet any of the criteria in Sec. __.350.
Subpart D--Responsibilities of [Agency adjective] Officials
Regarding Transactions
Sec. __.400 May I enter into a transaction with an excluded or
disqualified person?
(a) You as an agency official may not enter into a covered
transaction with an excluded person unless you obtain an exception
under Sec. __.120.
(b) You may not enter into any transaction with a person who is
disqualified from that transaction, unless you obtain a waiver or
exception under the statute, Executive order, or regulation that is the
basis for the person's disqualification.
Sec. __.405 May I enter into a covered transaction with a participant
if a principal of the transaction is excluded?
As an agency official, you may not enter into a covered transaction
with a participant if you know that a principal of the transaction is
excluded, unless you obtain an exception under Sec. __.120.
Sec. __.410 May I approve a participant's use of the services of an
excluded person?
After entering into a covered transaction with a participant, you
as an agency official may not approve a participant's use of an
excluded person as a principal under that transaction, unless you
obtain an exception under Sec. __.120.
Sec. __.415 What must I do if a Federal agency excludes the
participant or a principal after I enter into a covered transaction?
(a) You as an agency official may continue covered transactions
with an excluded person, or under which an excluded person is a
principal, if the transactions were in existence when the person was
excluded. You are not required to continue the transactions, however,
and you may consider termination. You should make a decision about
whether to terminate and the type of termination action, if any, only
after a thorough review to ensure that the action is proper.
(b) You may not renew or extend covered transactions (other than
no-cost time extensions) with any excluded person, or under which an
excluded person is a principal, unless you obtain an exception under
Sec. __.120.
Sec. __.420 May I approve a transaction with an excluded or
disqualified person at a lower tier?
If a transaction at a lower tier is subject to your approval, you
as an agency official may not approve--
(a) A covered transaction with a person who is currently excluded,
unless you obtain an exception under Sec. __.120; or
(b) A transaction with a person who is disqualified from that
transaction, unless you obtain a waiver or exception under the statute,
Executive order, or regulation that is the basis for the person's
disqualification.
Sec. __.425 When do I check to see if a person is excluded or
disqualified?
As an agency official, you must check to see if a person is
excluded or disqualified before you--
(a) Enter into a primary tier covered transaction;
(b) Approve a principal in a primary tier covered transaction;
(c) Approve a lower tier participant if agency approval of the
lower tier participant is required; or
(d) Approve a principal in connection with a lower tier transaction
if agency approval of the principal is required.
Sec. __.430 How do I check to see if a person is excluded or
disqualified?
You check to see if a person is excluded or disqualified in two
ways:
(a) You as an agency official must check the governmentwide List
when you take any action listed in Sec. __.425.
[[Page 3277]]
(b) You must review information that a participant gives you, as
required by Sec. __.330, about its status or the status of the
principals of a transaction.
Sec. __.435 What must I require of a primary tier participant?
You as an agency official must require each participant in a
primary tier covered transaction to--
(a) Comply with subpart C of this part as a condition of
participation in the transaction; and
(b) Communicate the requirement to comply with Subpart C of this
part to persons at the next lower tier with whom the primary tier
participant enters into covered transactions.
Sec. __.440 [Reserved]
Sec. __.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
If a participant knowingly does business with an excluded or
disqualified person, you as an agency official may refer the matter for
suspension and debarment consideration.
You may also disallow costs, annul or terminate the transaction,
issue a stop work order, or take any other appropriate remedy.
Sec. __.450 What action may I take if a primary tier participant fails
to disclose the information required under Sec. __.330?
If you as an agency official determine that a participant failed to
disclose information, as required by Sec. __.330, at the time it
entered into a covered transaction with you, you may--
(a) Terminate the transaction for material failure to comply with
the terms and conditions of the transaction; or
(b) Pursue any other available remedies, including suspension and
debarment.
Sec. __.455 What may I do if a lower tier participant fails to
disclose the information required under Sec. __.350 to the next higher
tier?
If you as an agency official determine that a lower tier
participant failed to disclose information, as required by Sec. __.350,
at the time it entered into a covered transaction with a participant at
the next higher tier, you may pursue any remedies available to you,
including the initiation of a suspension or debarment action.
Subpart E--Governmentwide List of Parties Excluded or Disqualified
From Federal Procurement and Nonprocurement Programs
Sec. __.500 What is the purpose of the List?
The List is a widely available source of the most current
information about persons who are excluded or disqualified from covered
transactions.
Sec. __.505 Who uses the List?
(a) Federal agency officials use the List to determine whether to
enter into a transaction with a person, as required under Sec. __.410.
(b) Participants also may, but are not required to, use the List to
determine if--
(1) Principals of their transactions are excluded or disqualified,
as required under Sec. __.315; or
(2) Persons with whom they are entering into covered transactions
at the next lower tier are excluded or disqualified.
(c) The List is available to the general public.
Sec. __.510 Who maintains the List?
In accordance with the OMB guidelines, the General Services
Administration (GSA) compiles, maintains and distributes the List.
Sec. __.515 What specific information is on the List?
(a) At a minimum, the List 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 agency and name and telephone number of the agency point of
contact for the action; and
(7) The Contractor and Government Establishment (CAGE) code or
other similar code approved by the GSA, of the excluded or disqualified
person, if available.
(b)(1) The database for the electronic version of the List includes
a field for the Taxpayer Identification Number (TIN) (the social
security number (SSN) for an individual) of an excluded or disqualified
person.
(2) GSA discloses 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. 552a.
Sec. __.520 Who gives the GSA the information that it puts on the
List?
Federal officials who take actions to exclude persons under this
part or officials who are responsible for identifying disqualified
persons must provide current information about those persons to the
GSA. They must give the GSA--
(a) Information required by Sec. __.515(a);
(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
five working days, unless the GSA agrees to an alternative schedule,
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. __.525 Whom do I ask if I have questions about a specific person
on the List?
If you have questions about a listed person, ask the Federal agency
that took the action placing the person's name on the List.
Sec. __.530 Where can I get the List?
You can get the information contained on the List in two ways.
(a) You may subscribe to a printed version which you may obtain by
purchasing a yearly subscription. A Federal agency may subscribe
through its printing and distribution office. The public may obtain a
subscription from the Superintendent of Documents, U.S. Government
Printing Office, Washington, DC 20402, or by calling the Government
Printing Office Inquiry and Order Desk at (202) 783-3238.
(b) You may access the List through the Internet, currently at
http://epls.arnet.gov.
Subpart F--General Principles Relating to Suspension and Debarment
Actions
Sec. __.600 How do suspension and debarment actions start?
When we receive information from any source concerning a cause for
suspension or debarment, we will promptly report and investigate it. We
refer the question of whether to suspend or debar you to our suspending
or debarring official for consideration, if appropriate.
[[Page 3278]]
Sec. __.605 How does suspension differ from debarment?
Suspension differs from debarment in that:
------------------------------------------------------------------------
A suspending official . . . A debarring official . . .
------------------------------------------------------------------------
(a) Imposes suspension as a Imposes debarment for a specified
temporary status of ineligibility period as a final determination
for procurement and nonprocurement that a person is not presently
transactions, pending completion responsible.
of an investigation or legal
proceedings.
(b) Must-- Must conclude, based on a
(1) Have adequate evidence that preponderance of the evidence,
there may be a cause for debarment that the individual or business
of an individual or business; and. has engaged in conduct that
(2) Conclude that there is an warrants debarment.
immediate need to take action to
protect the Federal interest.
(c) Usually imposes the suspension Imposes debarment after giving the
first, and promptly notifies the respondent notice of the action
suspended person, giving the and an opportunity to contest the
person an opportunity to contest proposed debarment.
the suspension and have it lifted.
------------------------------------------------------------------------
Sec. __.610 What procedures does the [Agency noun] use in suspension
and debarment actions?
In deciding whether to suspend or debar you, we handle the actions
as informally as practicable, consistent with principles of fundamental
fairness.
(a) For suspension actions, we use the procedures in this subpart
and Subpart G of this part.
(b) For debarment actions, we use the procedures in this subpart
and Subpart H of this part.
Sec. __.615 How does the [Agency noun] notify a person of suspension
and debarment actions?
The suspending or debarring official sends a written notice to you,
your identified counsel, your agent for service of process, or any of
your partners, officers, directors, owners, or joint venturers to the
last known street address, facsimile number, or e-mail address. The
notice is effective if sent to any of these persons.
Sec. __.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. ._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. __.630 May the [Agency noun] impute conduct of one person to
another?
For purposes of determining the scope of your suspension or
debarment, we may impute conduct as follows:
(a) Conduct imputed to participant. We may impute the fraudulent,
criminal, or other seriously improper conduct of any officer, director,
shareholder, partner, employee, or other individual associated with a
participant to the participant when the conduct occurred in connection
with the individual's performance of duties for or on behalf of the
participant, or with the participant's knowledge, approval or
acquiescence. The participant's acceptance of the benefits derived from
the conduct is evidence of knowledge, approval or acquiescence.
(b) Conduct imputed to individuals associated with participant. We
may impute the fraudulent, criminal, or other seriously improper
conduct of a participant to any officer, director, shareholder,
partner, employee, or other individual associated with the participant
who participated in, knew of or had reason to know of the participant's
conduct.
(c) Conduct of one participant imputed to other participants in a
joint venture. We may impute the fraudulent, criminal, or other
seriously improper conduct of one participant in a joint venture, grant
pursuant to a joint application, or similar arrangement to other
participants if the conduct occurred for or on behalf of the joint
venture, grant pursuant to a joint application or similar arrangement,
or with the knowledge, approval, or acquiescence of those participants.
Acceptance of the benefits derived from the conduct is evidence of
knowledge, approval, or acquiescence.
Settlement and Voluntary Exclusion
Sec. __.635 May the [Agency noun] settle a debarment or suspension
action?
Yes, we may settle a debarment or suspension action at any time if
it is in the best interests of the Federal Government.
Sec. __.640 May a settlement include a voluntary exclusion?
Yes, if we enter into a settlement with you in which you agree to
be excluded, it is called a voluntary exclusion and has governmentwide
effect.
Sec. __.645 Do other Federal agencies know if the [Agency noun] agrees
to a voluntary exclusion?
(a) Yes, we send information regarding a voluntary exclusion to the
General
Services Administration for entry into the List.
(b) Also, any agency or person may contact us to find out the
details of a voluntary exclusion.
Subpart G--Suspension
Sec. __.700 When may the suspending official issue a suspension?
Suspension is a serious action. Using the procedures of this
subpart and Subpart F of this part, the suspending official may impose
suspension only when that official determines that--
(a) There exists adequate evidence to suspect that a cause for
debarment under Sec. __.800 may exist; and
[[Page 3279]]
(b) Immediate action is necessary to protect the public interest.
Sec. __.705 What does the suspending official consider in issuing a
suspension?
(a) In determining the adequacy of the evidence to support the
suspension, the suspending official considers how much information is
available, how credible it is given the circumstances, whether or not
important allegations are corroborated, and what inferences can
reasonably be drawn as a result. During this assessment, the suspending
official may examine the basic documents, including grants, cooperative
agreements, loan authorizations, contracts, and other relevant
documents.
(b) An indictment, conviction, civil judgment, or other official
findings by Federal, State, or local bodies that determine factual and/
or legal matters, constitutes adequate evidence for purposes of
suspension actions.
(c) In deciding whether immediate action is needed to protect the
public interest, the suspending official has wide discretion. For
example, the suspending official may infer the necessity for immediate
action to protect the public interest either from the nature of the
circumstances giving rise to a cause for suspension or from potential
business relationships or involvement with a program of the Federal
Government.
Sec. __.710 When does a suspension take effect?
A suspension is effective when the suspending official signs the
decision to suspend.
Sec. __.715 What notice does the suspending official give me if I am
suspended?
After deciding to suspend you, the suspending official promptly
sends you a Notice of Suspension advising you--
(a) That you have been suspended;
(b) That your suspension is based on--
(1) An indictment;
(2) A conviction;
(3) Other adequate evidence that you have committed irregularities
which seriously reflect on the propriety of further Federal Government
dealings with you; or
(4) Conduct of another person that has been imputed to you, or your
affiliation with a suspended or debarred person;
(c) Of any other irregularities in terms sufficient to put you on
notice without disclosing the Federal Government's evidence;
(d) Of the cause(s) upon which we relied under Sec. __.700 for
imposing suspension;
(e) That your suspension is for a temporary period pending the
completion of an investigation or resulting legal or debarment
proceedings;
(f) Of the applicable provisions of this subpart, Subpart F of this
part, and any other [Agency adjective] procedures governing suspension
decision making; and
(g) Of the governmentwide effect of your suspension from
procurement and nonprocurement programs and activities.
Sec. __.720 How may I contest a suspension?
If you as a respondent wish to contest a suspension, you or your
representative must provide the suspending official with information in
opposition to the suspension.
You may do this orally or in writing, but any information provided
orally that you consider important must also be submitted in writing
for the official record.
Sec. __.725 How much time do I have to contest a suspension?
(a) As a respondent you or your representative must either send, or
make arrangements to appear and present, the information and argument
to the suspending official within 30 days after you receive the Notice
of Suspension.
(b) We consider the notice to be received by you--
(1) When delivered, if we mail the notice to the last known street
address, or five days after we send it if the letter is undeliverable;
(2) When sent, if we send the notice by facsimile or five days
after we send it if the facsimile is undeliverable; or
(3) When delivered, if we send the notice by e-mail or five days
after we send it if the e-mail is undeliverable.
Sec. __.730 What information must I provide to the suspending official
if I contest the suspension?
(a) In addition to any information and argument in opposition, as a
respondent your submission to the suspending official must identify--
(1) Specific facts that contradict the statements contained in the
Notice of Suspension. A general denial is insufficient to raise a
genuine dispute over facts material to the suspension;
(2) All existing, proposed, or prior exclusions under regulations
implementing Executive Order 12549 and all similar actions taken by
Federal, state, or local agencies, including administrative agreements
that affect only those agencies;
(3) All criminal and civil proceedings not included in the Notice
of Suspension that grew out of facts relevant to the cause(s) stated in
the notice; and
(4) All of your affiliates.
(b) If you fail to disclose this information, or provide false
information, the [Agency noun] may seek further criminal, civil or
administrative action against you, as appropriate.
Sec. __.735 Under what conditions do I get an additional opportunity
to challenge the facts on which the suspension is based?
(a) You as a respondent will not have an additional opportunity to
challenge the facts if the suspending official determines that--
(1) Your suspension is based upon an indictment, conviction, civil
judgment, or other finding by a Federal, State, or local body for which
an opportunity to contest the facts was provided;
(2) Your presentation in opposition contains only general denials
to information contained in the Notice of Suspension;
(3) The issues raised in your presentation in opposition to the
suspension are not factual in nature, or are not material to the
suspending official's initial decision to suspend, or the official's
decision whether to continue the suspension; or
(4) On the basis of advice from the Department of Justice, an
office of the United States Attorney, a State attorney general's
office, or a State or local prosecutor's office, that substantial
interests of the government in pending or contemplated legal
proceedings based on the same facts as the suspension would be
prejudiced by conducting fact-finding.
(b) You will have an opportunity to challenge the facts if the
suspending official determines that--
(1) The conditions in paragraph (a) of this section do not exist;
and
(2) Your presentation in opposition raises a genuine dispute over
facts material to the suspension.
(c) If you have an opportunity to challenge disputed material facts
under this section, the suspending official or designee must conduct
additional proceedings to resolve those facts.
Sec. __.740 Are suspension proceedings formal?
(a) Suspension proceedings are conducted in a fair and informal
manner. The suspending official may use flexible procedures to allow
you to present matters in opposition. In so doing, the suspending
official is not required to follow formal rules of evidence or
procedure in creating an official record upon which the official will
base a final suspension decision.
[[Page 3280]]
(b) You as a respondent or your representative must submit any
documentary evidence you want the suspending official to consider. In
addition, you may present witnesses and confront any person the agency
presents as a witness against you.
Sec. __.745 Is a record made of fact-finding proceedings?
(a) Where fact-finding is conducted, the fact-finder must prepare
written findings of fact for the record.
(b) A transcribed record of fact-finding proceedings must be made,
unless you as a respondent and the [Agency noun] agree to waive it in
advance. If you want a copy of the transcribed record, you may purchase
it.
Sec. __.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
(a) The suspending official bases the decision on all information
contained in the official record. The record includes--
(1) All information in support of the suspending official's initial
decision to suspend you;
(2) Any further information and argument presented in support of,
or opposition to, the suspension; and
(3) Any transcribed record of fact-finding proceedings.
(b) The suspending official may refer disputed material facts to
another official for findings of fact. The suspending official may
reject any resulting findings, in whole or in part, only after
specifically determining them to be arbitrary, capricious, or clearly
erroneous.
Sec. __.755 When will I know whether the suspension is continued or
terminated?
(a) Where no additional fact-finding is conducted, the suspending
official must make the decision whether to continue, modify, or
terminate your suspension within 45 days of closing the official
record. The official may extend that period for good cause. If fact-
finding is conducted, the suspending official must make the final
decision as promptly as possible after the record is closed.
(b) In any event, the suspending official must prepare a written
final decision and notify you of the decision and the reasons for it.
(See Sec. __.615.)
Sec. __.760 How long may my suspension last?
(a) If legal or debarment proceedings are initiated at the time of,
or during your suspension, the suspension may continue until the
conclusion of those proceedings. However, if proceedings are not
initiated, a suspension may not exceed 12 months.
(b) The suspending official may extend the 12 month limit under
paragraph (a) of this section for an additional 6 months if an office
of a U.S. Assistant Attorney General, U.S. Attorney, or other
responsible prosecuting official requests an extension in writing. In
no event may a suspension exceed 18 months without initiating
proceedings under paragraph (a) of this section.
(c) The suspending official must notify the appropriate officials
under paragraph
(b) of this section of an impending termination of a suspension at
least 30 days before the 12 month period expires to allow the officials
an opportunity to request an extension.
Subpart H--Debarment
Sec. __.800 What are the causes for debarment?
We may debar a person for--
(a) Conviction of or civil judgment for--
(1) Commission of fraud or a criminal offense in connection with
obtaining, attempting to obtain, or performing a public or private
agreement or transaction;
(2) Violation of Federal or State antitrust statutes, including
those proscribing price fixing between competitors, allocation of
customers between competitors, and bid rigging;
(3) Commission of embezzlement, theft, forgery, bribery,
falsification, or destruction of records, making false statements, tax
evasion, receiving stolen property, making false claims, or obstruction
of justice; or
(4) Commission of any other offense indicating a lack of business
integrity or business honesty that seriously and directly affects your
present responsibility;
(b) Violation of the terms of a public agreement or transaction so
serious as to affect the integrity of an agency program, such as--
(1) A willful failure to perform in accordance with the terms of
one or more public agreements or transactions;
(2) A history of failure to perform or of unsatisfactory
performance of one or more public agreements or transactions; or
(3) A willful violation of a statutory or regulatory provision or
requirement applicable to a public agreement or transaction;
(c) Any of the following causes:
(1) A nonprocurement debarment by any Federal agency taken before
October 1, 1988, or a procurement debarment by any Federal agency taken
pursuant to 48 CFR part 9, subpart 9.4, before August 25, 1995;
(2) Knowingly doing business with an ineligible person, except as
permitted under Sec. __.120 or Sec. __.305;
(3) Failure to pay a single substantial debt, or a number of
outstanding debts (including disallowed costs and overpayments, but not
including sums owed the Federal Government under the Internal Revenue
Code) owed to any Federal agency or instrumentality, provided the debt
is uncontested by the debtor or, if contested, provided that the
debtor's legal and administrative remedies have been exhausted;
(4) Violation of a material provision of a voluntary exclusion
agreement entered into under Sec. _.640 or of any settlement of a
debarment or suspension action; or
(5) Violation of the provisions of the Drug-Free Workplace Act of
1988 (41 U.S.C. 701); or
(d) Any other cause of so serious or compelling a nature that it
affects your present responsibility.
Sec. __.805 What notice does the debarring official give me if I am
proposed for debarment?
After consideration of the causes in Sec. __.800 of this subpart,
if the debarring official proposes to debar you, the official sends you
a Notice of Proposed Debarment, pursuant to Sec. __.615, advising you--
(a) That the debarring official is considering debarring you;
(b) Of the reasons for proposing to debar you in terms sufficient
to put you on notice of the conduct or transactions upon which the
proposed debarment is based;
(c) Of the cause(s) under Sec. __.800 upon which the debarring
official relied for proposing your debarment;
(d) Of the applicable provisions of this subpart, Subpart F of this
part, and any other [Agency adjective] procedures governing debarment;
and
(e) Of the governmentwide effect of a debarment from procurement
and nonprocurement programs and activities.
Sec. __.810 When does a debarment take effect?
Unlike suspension, a debarment is not effective until the debarring
official issues a decision. The debarring official does not issue a
decision until the respondent has had an opportunity to contest the
proposed debarment.
Sec. __.815 How may I contest a proposed debarment?
If you as a respondent wish to contest a proposed debarment, you or
your representative must provide the debarring official with
information in opposition to the proposed debarment. You may do this
orally or in writing, but
[[Page 3281]]
any information provided orally that you consider important must also
be submitted in writing for the official record.
Sec. __.820 How much time do I have to contest a proposed debarment?
(a) As a respondent you or your representative must either send, or
make arrangements to appear and present, the information and argument
to the debarring official within 30 days after you receive the Notice
of Proposed Debarment.
(b) We consider the Notice of Proposed Debarment to be received by
you--
(1) When delivered, if we mail the notice to the last known street
address, or five days after we send it if the letter is undeliverable;
(2) When sent, if we send the notice by facsimile or five days
after we send it if the facsimile is undeliverable; or
(3) When delivered, if we send the notice by e-mail or five days
after we send it if the e-mail is undeliverable.
Sec. __.825 What information must I provide to the debarring official
if I contest a proposed debarment?
(a) In addition to any information and argument in opposition, as a
respondent your submission to the debarring official must identify--
(1) Specific facts that contradict the statements contained in the
Notice of Proposed Debarment. Include any information about any of the
factors listed in Sec. __.860. A general denial is insufficient to
raise a genuine dispute over facts material to the debarment;
(2) All existing, proposed, or prior exclusions under regulations
implementing Executive Order 12549 and all similar actions taken by
Federal, State, or local agencies, including administrative agreements
that affect only those agencies;
(3) All criminal and civil proceedings not included in the Notice
of Proposed Debarment that grew out of facts relevant to the cause(s)
stated in the notice; and
(4) All of your affiliates.
(b) If you fail to disclose this information, or provide false
information, the [Agency noun] may seek further criminal, civil or
administrative action against you, as appropriate.
Sec. __.830 Under what conditions do I get an additional opportunity
to challenge the facts on which a proposed debarment is based?
(a) You as a respondent will not have an additional opportunity to
challenge the facts if the debarring official determines that--
(1) Your debarment is based upon a conviction or civil judgment;
(2) Your presentation in opposition contains only general denials
to information contained in the Notice of Proposed Debarment; or
(3) The issues raised in your presentation in opposition to the
proposed debarment are not factual in nature, or are not material to
the debarring official's decision whether to debar.
(b) You will have an additional opportunity to challenge the facts
if the debarring official determines that--
(1) The conditions in paragraph (a) of this section do not exist;
and
(2) Your presentation in opposition raises a genuine dispute over
facts material to the proposed debarment.
(c) If you have an opportunity to challenge disputed material facts
under this section, the debarring official or designee must conduct
additional proceedings to resolve those facts.
Sec. __.835 Are debarment proceedings formal?
(a) Debarment proceedings are conducted in a fair and informal
manner. The debarring official may use flexible procedures to allow you
as a respondent to present matters in opposition. In so doing, the
debarring official is not required to follow formal rules of evidence
or procedure in creating an official record upon which the official
will base the decision whether to debar.
(b) You or your representative must submit any documentary evidence
you want the debarring official to consider. In addition, you may
present witnesses and confront any person the agency presents as a
witness against you.
Sec. __.840 Is a record made of fact-finding proceedings?
(a) Where fact-finding is conducted, the fact-finder must prepare
written findings of fact for the record.
(b) A transcribed record of fact-finding proceedings must be made,
unless you as a respondent and the [Agency noun] agree to waive it in
advance. If you want a copy of the transcribed record, you may purchase
it.
Sec. __.845 What does the debarring official consider in deciding
whether to debar me?
(a) The debarring official may debar you for any of the causes in
Sec. __.800. However, the official need not debar you even if a cause
for debarment exists. The official may consider the seriousness of your
acts or omissions and the mitigating or aggravating factors set forth
at Sec. __.860.
(b) The debarring official bases the decision on all information
contained in the official record. The record includes--
(1) All information in support of the debarring official's proposed
debarment;
(2) Any further information and argument presented in support of,
or in opposition to, the proposed debarment; and
(3) Any transcribed record of fact-finding proceedings.
(c) The debarring official may refer disputed material facts to
another official for findings of fact. The debarring official may
reject any resultant findings, in whole or in part, only after
specifically determining them to be arbitrary, capricious, or clearly
erroneous.
Sec. __.850 What is the standard of proof in a debarment action?
(a) In any debarment action, we must establish the cause for
debarment by a preponderance of the evidence.
(b) If the proposed debarment is based upon a conviction or civil
judgment, the standard of proof is met.
Sec. __.855 Who has the burden of proof in a debarment action?
(a) We have the burden to prove that a cause for debarment exists.
(b) Once a cause for debarment is established, you as a respondent
have the burden of demonstrating to the satisfaction of the debarring
official that you are presently responsible and that debarment is not
necessary.
Sec. __.860 What factors may influence the debarring official's
decision?
This section lists the mitigating and aggravating factors that the
debarring official may consider in determining whether to debar you and
the length of your debarment period. The debarring official may
consider other factors if appropriate in light of the circumstances of
a particular case. The existence or nonexistence of any factor, such as
one of those set forth in this section, is not necessarily
determinative of your present responsibility. In making a debarment
decision, the debarring official may consider the following factors:
(a) The actual or potential harm or impact that results or may
result from the wrongdoing.
(b) The frequency of incidents and/or duration of the wrongdoing.
(c) Whether there is a pattern or prior history of wrongdoing. For
example, if you have been found by another Federal agency or a State
agency to have engaged in wrongdoing similar to that found in the
debarment action, the existence of this fact may be used by the
debarring official in determining that
[[Page 3282]]
you have a pattern or prior history of wrongdoing.
(d) Whether you are or have been excluded or disqualified by an
agency of the Federal Government or have not been allowed to
participate in State or local contracts or assistance agreements on a
basis of conduct similar to one or more of the causes for debarment
specified in this part.
(e) Whether you have entered into an administrative agreement with
a Federal agency or a State or local government that is not
governmentwide but is based on conduct similar to one or more of the
causes for debarment specified in this part.
(f) Whether and to what extent you planned, initiated, or carried
out the wrongdoing.
(g) Whether you have accepted responsibility for the wrongdoing and
recognize the seriousness of the misconduct that led to the cause for
debarment.
(h) Whether you have paid or agreed to pay all criminal, civil and
administrative liabilities for the improper activity, including any
investigative or administrative costs incurred by the government, and
have made or agreed to make full restitution.
(i) Whether you have cooperated fully with the government agencies
during the investigation and any court or administrative action. In
determining the extent of cooperation, the debarring official may
consider when the cooperation began and whether you disclosed all
pertinent information known to you.
(j) Whether the wrongdoing was pervasive within your organization.
(k) The kind of positions held by the individuals involved in the
wrongdoing.
(l) Whether your organization took appropriate corrective action or
remedial measures, such as establishing ethics training and
implementing programs to prevent recurrence.
(m) Whether your principals tolerated the offense.
(n) Whether you brought the activity cited as a basis for the
debarment to the attention of the appropriate government agency in a
timely manner.
(o) Whether you have fully investigated the circumstances
surrounding the cause for debarment and, if so, made the result of the
investigation available to the debarring official.
(p) Whether you had effective standards of conduct and internal
control systems in place at the time the questioned conduct occurred.
(q) Whether you have taken appropriate disciplinary action against
the individuals responsible for the activity which constitutes the
cause for debarment.
(r) Whether you have had adequate time to eliminate the
circumstances within your organization that led to the cause for the
debarment.
(s) Other factors that are appropriate to the circumstances of a
particular case.
Sec. __.865 How long may my debarment last?
(a) If the debarring official decides to debar you, your period of
debarment will be based on the seriousness of the cause(s) upon which
your debarment is based. Generally, debarment should not exceed three
years. However, if circumstances warrant, the debarring official may
impose a longer period of debarment.
(b) In determining the period of debarment, the debarring official
may consider the factors in Sec. __.860. If a suspension has preceded
your debarment, the debarring official must consider the time you were
suspended.
(c) If the debarment is for a violation of the provisions of the
Drug-Free
Workplace Act of 1988, your period of debarment may not exceed five
years.
Sec. __.870 When do I know if the debarring official debars me?
(a) Where no additional fact-finding is conducted, the debarring
official must make the decision whether to debar you within 45 days of
closing the official record. The debarring official may extend that
period for good cause. If fact-finding is conducted, the debarring
official must make the final decision as promptly as possible after the
record is closed.
(b) The debarring official sends you written notice, pursuant to
Sec. __.615 that the official decided, either--
(1) Not to debar you; or
(2) To debar you. In this event, the notice:
(i) Refers to the Notice of Proposed Debarment;
(ii) Specifies the reasons for your debarment;
(iii) States the period of your debarment, including the effective
dates; and
(iv) Advises you that your debarment is effective for covered
transactions and contracts that are subject to the Federal Acquisition
Regulation (48 CFR chapter 1), throughout the executive branch of the
Federal Government unless an agency head or an authorized designee
grants an exception.
Sec. __.875 May I ask the debarring official to reconsider a decision
to debar me?
Yes, as a debarred person you may ask the debarring official to
reconsider the debarment decision or to reduce the time period or scope
of the debarment. However, you must put your request in writing and
support it with documentation.
Sec. __.880 What factors may influence the debarring official during
reconsideration?
The debarring official may reduce or terminate your debarment based
on--
(a) Newly discovered material evidence;
(b) A reversal of the conviction or civil judgment upon which your
debarment was based;
(c) A bona fide change in ownership or management;
(d) Elimination of other causes for which the debarment was
imposed; or
(e) Other reasons the debarring official finds appropriate.
Sec. __.885 May the debarring official extend a debarment period?
(a) Yes, the debarring official may extend a debarment for an
additional period, if that official determines that an extension is
necessary to protect the public interest.
(b) However, the debarring official may not extend a debarment
solely on the basis of the facts and circumstances upon which the
initial debarment action was based.
(c) If the debarring official decides that a debarment for an
additional period is necessary, the debarring official must follow the
applicable procedures in this subpart, and Subpart F of this part, to
extend the debarment.
Subpart I--Definitions
Sec. __.900 Adequate evidence.
Adequate evidence means information sufficient to support the
reasonable belief that a particular act or omission has occurred.
Sec. __.905 Affiliate.
Persons are affiliates of each other if, directly or indirectly,
either one controls or has the power to control the other or a third
person controls or has the power to control both. The ways we use to
determine control include, but are not limited to--
(a) Interlocking management or ownership;
(b) Identity of interests among family members;
(c) Shared facilities and equipment;
(d) Common use of employees; or
(e) A business entity which has been organized following the
exclusion of a person which has the same or similar management,
ownership, or principal employees as the excluded person.
Sec. __.910 Agency.
Agency means any United States executive department, military
[[Page 3283]]
department, defense agency, or any other agency of the executive
branch. The independent regulatory agencies are not considered
``agencies'' for purposes of this part.
Sec. __.915 Agent or representative.
Agent or representative means any person who acts on behalf of, or
who is authorized to commit a participant in a covered transaction.
Sec. __.920 Civil judgment.
Civil judgment means the disposition of a civil action by any court
of competent jurisdiction, whether by verdict, decision, settlement,
stipulation, other disposition which creates a civil liability for the
complained of wrongful acts, or a final determination of liability
under the Program Fraud Civil Remedies Act of 1988 (31 U.S.C. 3801-
3812).
Sec. __.925 Conviction.
Conviction means a judgment or any other determination of guilt of
a criminal offense by any court of competent jurisdiction, whether
entered upon a verdict or plea, including a plea of nolo contendere, or
any other resolution, including probation before judgment and deferred
prosecution.
Sec. __.930 Debarment.
Debarment means an action taken by a debarring official under
Subpart H of this part to exclude a person from participating in
covered transactions and transactions covered under the Federal
Acquisition Regulation (48 CFR chapter 1). A person so excluded is
debarred.
Sec. __.935 Debarring official.
(a) Debarring official means an agency official who is authorized
to impose debarment. A debarring official is either--
(1) The agency head; or
(2) An official designated by the agency head.
(b) [Reserved]
Sec. __.940 Disqualified.
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).
Sec. __.945 Excluded or exclusion.
Excluded or exclusion means--
(a) That a person or commodity is prohibited from being a
participant in covered transactions, whether the person has been
suspended; debarred; proposed for debarment under 48 CFR part 9,
subpart 9.4; voluntarily excluded; or
(b) The act of excluding a person.
Sec. __.950 Indictment.
Indictment means an indictment for a criminal offense. A
presentment, information, or other filing by a competent authority
charging a criminal offense shall be given the same effect as an
indictment.
Sec. __.955 Ineligible or ineligibility.
Ineligible or ineligibility means that a person or commodity is
prohibited from covered transactions because of an exclusion or
disqualification.
Sec. __.960 Legal proceedings.
Legal proceedings means any criminal proceeding or any civil
judicial proceeding, including a proceeding under the Program Fraud
Civil Remedies Act (31 U.S.C. 3801-3812), to which the Federal
Government or a State or local government or quasi-governmental
authority is a party. The term also includes appeals from those
proceedings.
Sec. __.965 List of Parties Excluded or Disqualified from Federal
Procurement and Nonprocurement Programs.
List of Parties Excluded or Disqualified from Federal Procurement
and Nonprocurement Programs (List) means the list compiled, maintained,
and distributed by the General Services Administration (GSA) containing
the names and other information about persons who are ineligible.
Sec. __.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.
Sec. __.975 Notice.
Notice means a written communication served in person, sent by
certified mail or its equivalent, or sent electronically by e-mail or
facsimile. (See Sec. __.615.)
Sec. __.980 Participant.
Participant means any person who submits a proposal for or who
enters into a covered transaction, including an agent or representative
of a participant.
Sec. __.985 Person.
Person means any individual, corporation, partnership, association,
unit of government, or legal entity, however organized.
Sec. __.990 Preponderance of the evidence.
Preponderance of the evidence means proof by information that,
compared with information opposing it, leads to the conclusion that the
fact at issue is more probably true than not.
Sec. __.995 Principal.
Principal means--
(a) An officer, director, owner, partner, principal investigator,
or other person within a participant with management or supervisory
responsibilities related to a covered transaction; or
(b) A consultant or other person, whether or not employed by the
participant or paid with Federal funds, who--
(1) Is in a position to handle Federal funds;
(2) Is in a position to influence or control the use of those
funds; or,
(3) Occupies a technical or professional position capable of
influencing the development or outcome of an activity that affects a
covered transaction.
Sec. __.1000 Respondent.
Respondent means a person against whom an agency has initiated a
debarment or suspension action.
Sec. __.1005 State.
(a) State means--
(1) Any of the States of the United States;
(2) The District of Columbia;
(3) The Commonwealth of Puerto Rico;
(4) Any territory or possession of the United States; or
(5) Any agency or instrumentality of a State.
(b) For purposes of this part, State does not include institutions
of higher
[[Page 3284]]
education, hospitals, or units of local government.
Sec. __.1010 Suspending official.
(a) Suspending official means an agency official who is authorized
to impose suspension. The suspending official is either:
(1) The agency head; or
(2) An official designated by the agency head.
(b) [Reserved]
Sec. __.1015 Suspension.
Suspension is an action taken by a suspending official under
subpart G of this part that immediately prohibits a person from
participating in covered transactions and transactions covered under
the Federal Acquisition Regulation (48 CFR chapter 1) for a temporary
period, pending completion of an agency investigation and any judicial
or administrative proceedings that may ensue. A person so excluded is
suspended.
Sec. __.1020 Voluntary exclusion or voluntarily excluded.
(a) Voluntary exclusion means a person's agreement to be excluded
under the terms of a settlement between the person and one or more
agencies. Voluntary exclusion must have governmentwide effect.
(b) Voluntarily excluded means the status of a person who has
agreed to a voluntary exclusion.
BILLING CODES 6325-01-P et al.
[[Page 3285]]
[GRAPHIC] [TIFF OMITTED] TP23JA02.000
BILLING CODES 6325-01-C et al.
[[Page 3286]]
2. [Part/Subpart] __ is added to read as follows:
[Part/Subpart] __--Governmentwide Requirements for Drug-Free
Workplace (Financial Assistance)
Subpart A--Purpose and Coverage
Sec.
__.100 What does this part do?
__.105 Does this part apply to me?
__.110 Are any of my Federal assistance awards exempt from this
part?
__.115 Does this part affect the Federal contracts that I receive?
Subpart B--Requirements for Recipients Other Than Individuals
__.200 What must I do to comply with this part?
__.205 What must I include in my drug-free workplace statement?
__.210 To whom must I distribute my drug-free workplace statement?
__.215 What must I include in my drug-free awareness program?
__.220 By when must I publish my drug-free workplace statement and
establish my drug-free awareness program?
__.225 What actions must I take concerning employees who are
convicted of drug violations in the workplace?
__.230 How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
__.300 What must I do to comply with this part if I am an
individual recipient?
__.301 [Reserved]
Subpart D--Responsibilities of [Agency adjective] Awarding Officials
__.400 What are my responsibilities as a(n) [Agency adjective]
awarding official?
Subpart E--Violations of this Part and Consequences
__.500 How are violations of this part determined for recipients
other than individuals?
__.505 How are violations of this part determined for recipients
who are individuals?
__.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
__.515 Are there any exceptions to those actions?
Subpart F--Definitions
__.605 Award.
__.610 Controlled substance.
__.615 Conviction.
__.620 Cooperative agreement.
__.625 Criminal drug statute.
__.630 Debarment.
__.635 Drug-free workplace.
__.640 Employee.
__.645 Federal agency or agency.
__.650 Grant.
__.655 Individual.
__.660 Recipient.
__.665 State.
__.670 Suspension
Subpart A--Purpose and Coverage
Sec. __.100 What does this part do?
This part carries out the portion of the Drug-Free Workplace Act of
1988 (41 U.S.C. 701 et seq., as amended) that applies to grants. It
also applies the provisions of the Act to cooperative agreements and
other financial assistance awards, as a matter of Federal Government
policy.
Sec. __.105 Does this part apply to me?
(a) Portions of this part apply to you if you are either
(1) A recipient of an assistance award from the [Agency noun]; or
(2) A(n) [Agency adjective] awarding official. (See definitions of
award and recipient in Secs. __.605 and __.660, respectively.)
(b) The following table shows the subparts that apply to you:
------------------------------------------------------------------------
If you are ... see subparts ...
------------------------------------------------------------------------
(1) a recipient who is not an individual.. A, B and E.
(2) a recipient who is an individual...... A, C and E.
(3) a(n) [Agency adjective] awarding A, D and E.
official.
------------------------------------------------------------------------
Sec. __.110 Are any of my Federal assistance awards exempt from this
part?
This part does not apply to any award that the [Agency head or
designee] determines that the application of this part would be
inconsistent with the international obligations of the United States or
the laws or regulations of a foreign government.
Sec. __.115 Does this part affect the Federal contracts that I
receive?
It will affect future contract awards indirectly if you are
debarred or suspended for a violation of the requirements of this part,
as described in Sec. __.510(c). However, this part does not apply
directly to procurement contracts. The portion of the Drug-Free
Workplace Act of 1988 that applies to Federal procurement contracts is
carried out through the Federal Acquisition Regulation in chapter 1 of
Title 48 of the Code of Federal Regulations (the drug-free workplace
coverage currently is in 48 CFR part 23, subpart 23.5).
Subpart B--Requirements for Recipients Other Than Individuals
Sec. __.200 What must I do to comply with this part?
There are two general requirements if you are a recipient other
than an individual.
(a) First, you must make a good faith effort, on a continuing
basis, to maintain a drug-free workplace. You must agree to do so as a
condition for receiving any award covered by this part. The specific
measures that you must take in this regard are described in more detail
is subsequent sections of this subpart. Briefly, those measures are
to--
(1) Publish a drug-free workplace statement and establish a drug-
free awareness program for your employees (see Secs. __.205 through
__.220); and
(2) Take actions concerning employees who are convicted of
violating drug statutes in the workplace (see Sec. __.225).
(b) Second, you must identify all known workplaces under your
Federal awards (see Sec. __.230).
Sec. __.205 What must I include in my drug-free workplace statement?
You must publish a statement that
(a) Tells your employees that the unlawful manufacture,
distribution, dispensing, possession, or use of a controlled substance
is prohibited in your workplace;
(b) Specifies the actions that you will take against employees for
violating that prohibition; and
(c) Lets each employee know that, as a condition of employment
under any award, he or she:
(1) Will abide by the terms of the statement; and
(2) Must notify you in writing if he or she is convicted for a
violation of a criminal drug statute occurring in the workplace and
must do so no more than five calendar days after the conviction.
Sec. __.210 To whom must I distribute my drug-free workplace
statement?
You must require that a copy of the statement described in
Sec. __.205 be given to each employee who will be engaged in the
performance of any Federal award.
Sec. __.215 What must I include in my drug-free awareness program?
You must establish an ongoing drug free awareness program to inform
employees about--
(a) The dangers of drug abuse in the workplace;
(b) Your policy of maintaining a drug-free workplace;
(c) Any available drug counseling, rehabilitation, and employee
assistance programs; and
(d) The penalties that you may impose upon them for drug abuse
violations occurring in the workplace.
Sec. __.220 By when must I publish my drug-free workplace statement
and establish my drug-free awareness program?
If you are a new recipient that does not already have a policy
statement as
[[Page 3287]]
described in Sec. __.205 and an ongoing awareness program as described
in Sec. __.215, you must publish the statement and establish the
program by the time given in the following table:
------------------------------------------------------------------------
If . . . then you . . .
------------------------------------------------------------------------
(a) the performance period of the award is must have the policy
less than 30 days. statement and program in
place as soon as possible,
but before the date on
which performance is
expected to be completed.
(b) the performance period of the award is must have the policy
30 days or more. statement and program in
place within 30 days after
award.
(c) you believe there are extraordinary may ask the [Agency
circumstances that will require more than adjective] awarding
30 days for you to publish the policy official to give you more
statement and establish the awareness time to do so. The amount
program. of additional time, if any,
to be given is at the
discretion of the awarding
official.
------------------------------------------------------------------------
Sec. __.225 What actions must I take concerning employees who are
convicted of drug violations in the workplace?
There are two actions you must take if an employee is convicted of
a drug violation in the workplace:
(a) First, you must notify Federal agencies if an employee who is
engaged in the performance of an award informs you about a conviction,
as required by Sec. __.205(c)(2), or you otherwise learn of the
conviction. Your notification to the Federal agencies must--
(1) Be in writing;
(2) Include the employee's position title;
(3) Include the identification number(s) of each affected award;
(4) Be sent within ten calendar days after you learn of the
conviction; and
(5) Be sent to every Federal agency on whose award the convicted
employee was working. It must be sent to every awarding official or his
or her official designee, unless the Federal agency has specified a
central point for the receipt of the notices.
(b) Second, within 30 calendar days of learning about an employee's
conviction, you must either--
(1) Take appropriate personnel action against the employee, up to
and including termination, consistent with the requirements of the
Rehabilitation Act of 1973 (29 U.S.C. 794), as amended; or
(2) Require the employee to participate satisfactorily in a drug
abuse assistance or rehabilitation program approved for these purposes
by a Federal, State or local health, law enforcement, or other
appropriate agency.
Sec. __.230 How and when must I identify workplaces?
(a) You must identify all known workplaces under each [Agency
adjective] award. A failure to do so is a violation of your drug-free
workplace requirements. You may identify the workplaces--
(1) To the [Agency adjective] official that is making the award,
either at the time of application or upon award; or
(2) In documents that you keep on file in your offices during the
performance of the award, in which case you must make the information
available for inspection upon request by [Agency adjective] officials
or their designated representatives.
(b) Your workplace identification for an award must include the
actual address of buildings (or parts of buildings) or other sites
where work under the award takes place.
Categorical descriptions may be used (e.g., all vehicles of a mass
transit authority or State highway department while in operation, State
employees in each local unemployment office, performers in concert
halls or radio studios).
(c) If you identified workplaces to the [Agency adjective] awarding
official at the time of application or award, as described in paragraph
(a)(1) of this section, and any workplace that you identified changes
during the performance of the award, you must inform the [Agency
adjective] awarding official.
Subpart C--Requirements for Recipients Who Are Individuals
Sec. __.300 What must I do to comply with this part if I am an
individual recipient?
As a condition of receiving a(n) [Agency adjective] award, if you
are an individual recipient, you must agree that--
(a) You will not engage in the unlawful manufacture, distribution,
dispensing, possession, or use of a controlled substance in conducting
any activity related to the award; and
(b) If you are convicted of a criminal drug offense resulting from
a violation occurring during the conduct of any award activity, you
will report the conviction:
(1) In writing.
(2) Within 10 calendar days of the conviction.
(3) To the [Agency adjective] awarding official or other designee
for each award that you currently have, unless Sec. _.301 or the award
document designates a central point for the receipt of the notices.
When notice is made to a central point, it must include the
identification number(s) of each affected award.
Sec. __.301 [Reserved]
Subpart D--Responsibilities of [Agency adjective] Awarding
Officials
Sec. __.400 What are my responsibilities as a(n) [Agency adjective]
awarding official?
As a(n) [Agency adjective] awarding official, you must obtain each
recipient's agreement, as a condition of the award, to comply with the
requirements in--
(a) Subpart B of this part, if the recipient is not an individual;
or
(b) Subpart C of this part, if the recipient is an individual.
Subpart E--Violations of this Part and Consequences
Sec. __.500 How are violations of this part determined for recipients
other than individuals?
A recipient other than an individual is in violation of the
requirements of this part if the [Agency head or designee] determines,
in writing, that--
(a) The recipient has violated the requirements of Subpart B of
this part; or
(b) The number of convictions of the recipient's employees for
violating criminal drug statutes in the workplace is large enough to
indicate that the recipient has failed to make a good faith effort to
provide a drug-free workplace.
Sec. __.505 How are violations of this part determined for recipients
who are individuals?
An individual recipient is in violation of the requirements of this
part if the [Agency head or designee] determines, in writing, that--
(a) The recipient has violated the requirements of Subpart C of
this part; or
(b) The recipient is convicted of a criminal drug offense resulting
from a violation occurring during the conduct of any award activity.
Sec. __.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
If a recipient is determined to have violated this part, as
described in Sec. __.500 or Sec. __.505, the [Agency noun] may take one
or more of the following actions--
(a) Suspension of payments under the award;
(b) Suspension or termination of the award; and
[[Page 3288]]
(c) Suspension or debarment of the recipient under [CFR citation
for the Federal agency's regulations implementing Executive Order 12549
and Executive Order 12689], for a period not to exceed five years.
Sec. __.515 Are there any provision for exceptions to those actions?
The [Agency head] may waive with respect to a particular award, in
writing, a suspension of payments under an award, suspension or
termination of an award, or suspension or debarment of a recipient if
the [Agency head] determines that such a waiver would be in the public
interest. This exception authority cannot be delegated to any other
official.
Subpart F--Definitions
Sec. __.605 Award.
Award means an award of financial assistance by the [Agency noun]
or other Federal agency directly to a recipient.
(a) The term award includes:
(1) A Federal grant or cooperative agreement, in the form of money
or property in lieu of money.
(2) A block grant or a grant in an entitlement program, whether or
not the grant is exempted from coverage under the Governmentwide rule
[Agency-specific CFR citation] that implements OMB Circular A-102 (for
availability, see 5 CFR 1310.3) and specifies uniform administrative
requirements.
(b) The term award does not include:
(1) Technical assistance that provides services instead of money.
(2) Loans.
(3) Loan guarantees.
(4) Interest subsidies.
(5) Insurance.
(6) Direct appropriations.
(7) Veterans' benefits to individuals (i.e., any benefit to
veterans, their families, or survivors by virtue of the service of a
veteran in the Armed Forces of the United States).
Sec. __.610 Controlled substance.
Controlled substance means a controlled substance in schedules I
through V of the Controlled Substances Act (21 U.S.C. 812), and as
further defined by regulation at 21 CFR 1308.11 through 1308.15.
Sec. __.615 Conviction.
Conviction means a finding of guilt (including a plea of nolo
contendere) or imposition of sentence, or both, by any judicial body
charged with the responsibility to determine violations of the Federal
or State criminal drug statutes.
Sec. __.620 Cooperative agreement.
Cooperative agreement means an award of financial assistance that,
consistent with 31 U.S.C. 6305, is used to enter into the same kind of
relationship as a grant (see definition of grant in Sec. __.650),
except that substantial involvement is expected between the Federal
agency and the recipient when carrying out the activity contemplated by
the award. The term does not include cooperative research and
development agreements as defined in 15 U.S.C. 3710a.
Sec. __.625 Criminal drug statute.
Criminal drug statute means a Federal or non-Federal criminal
statute involving the manufacture, distribution, dispensing, use, or
possession of any controlled substance.
Sec. __.630 Debarment.
Debarment means an action taken by a Federal agency to prohibit a
recipient from participating in Federal Government procurement
contracts and covered nonprocurement transactions. A recipient so
prohibited is debarred, in accordance with the Federal Acquisition
Regulation for procurement contracts (48 CFR part 9, subpart 9.4) and
the common rule, Government-wide Debarment and Suspension
(Nonprocurement), that implements Executive Order 12549 and Executive
Order 12689.
Sec. __.635 Drug-free workplace.
Drug-free workplace means a site for the performance of work done
in connection with a specific award at which employees of the recipient
are prohibited from engaging in the unlawful manufacture, distribution,
dispensing, possession, or use of a controlled substance.
Sec. __.640 Employee.
(a) Employee means the employee of a recipient directly engaged in
the performance of work under the award, including--
(1) All direct charge employees;
(2) All indirect charge employees, unless their impact or
involvement in the performance of work under the award is insignificant
to the performance of the award; and
(3) Temporary personnel and consultants who are directly engaged in
the performance of work under the award and who are on the recipient's
payroll.
(b) This definition does not include workers not on the payroll of
the recipient (e.g., volunteers, even if used to meet a matching
requirement; consultants or independent contractors not on the payroll;
or employees of subrecipients or subcontractors in covered workplaces).
Sec. __.645 Federal agency or agency.
Federal agency or agency means any United States executive
department, military department, government corporation, government
controlled corporation, any other establishment in the executive branch
(including the Executive Office of the President), or any independent
regulatory agency.
Sec. __.650 Grant.
Grant means an award of financial assistance that, consistent with
31 U.S.C. 6304, is used to enter into a relationship--
(a) The principal purpose of which is to transfer a thing of value
to the recipient to carry out a public purpose of support or
stimulation authorized by a law of the United States, rather than to
acquire property or services for the Federal Government's direct
benefit or use; and
(b) In which substantial involvement is not expected between the
Federal agency and the recipient when carrying out the activity
contemplated by the award.
Sec. __.655 Individual.
Individual means a natural person.
Sec. __.660 Recipient.
Recipient means any individual, corporation, partnership,
association, unit of government (except a Federal agency) or legal
entity, however organized, that receives an award directly from a
Federal agency.
Sec. __.665 State.
State means any of the States of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, or any territory or
possession of the United States.
Sec. __.670 Suspension.
Suspension means an action taken by a Federal agency that
immediately prohibits a recipient from participating in Federal
Government procurement contracts and covered nonprocurement
transactions for a temporary period, pending completion of an
investigation and any judicial or administrative proceedings that may
ensue. A recipient so prohibited is suspended, in accordance with the
Federal Acquisition Regulation for procurement contracts (48 CFR part
9, subpart 9.4) and the common rule, Government-wide Debarment and
Suspension (Nonprocurement), that implements Executive Order 12549 and
Executive Order 12689. Suspension of a recipient
[[Page 3289]]
is a distinct and separate action from suspension of an award or
suspension of payments under an award.
Adoption of Proposed Common Rules
The adoption of the proposed common rules by the participating
agencies, as modified by agency-specific text is set forth below:
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 970
RIN 3206-AJ31
FOR FURTHER INFORMATION CONTACT: J. David Cope, Debarring Official,
Office of the Inspector General, U.S. Office of Personnel Management,
1900 E Street, NW., Washington, DC 20415, e-mail debar@opm.gov, fax
(202) 606-2153.
ADDITIONAL SUPPLEMENTARY INFORMATION: The Office of Personnel
Management adopted the Nonprocurement Debarment and Suspension Common
Rule on May 17, 1993, following the text of the governmentwide rule as
published on May 26, 1988 (53 FR 19160). OPM did not adopt subpart F of
the common rule, pertaining to requirements for drug-free workplace
(grants), because the agency did not issue assistance awards, grants,
or other forms of financial or nonfinancial assistance that would be
covered by those provisions. For the same reasons, OPM is not adopting
the separate regulatory part on drug-free workplace requirements that
has been developed as part of this governmentwide regulatory package.
List of Subjects in 5 CFR Part 970
Administrative practice and procedure, Government employees, Grant
programs, Loan programs, Hostages, Iraq, Kuwait, Lebanon.
Approved: Office of Personnel Management.
Kay Cole James,
Director.
For the reasons stated in the common preamble, the Office of
Personnel Management proposes to amend part 970 of title 5, Code of
Federal Regulations as follows:
1. Part 970 is revised as set forth in instruction 1 at the end of
the common preamble.:
PART 970--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
Sec.
970.25 How is this part organized?
970.50 How is this part written?
970.75 Do terms in this part have special meanings?
Subpart A--General
970.100 What does this part do?
970.105 Does this part apply to me?
970.110 What is the purpose of the nonprocurement debarment and
suspension system?
970.115 How does an exclusion restrict a person's involvement in
covered transactions?
970.120 May we grant an exception to let an excluded person
participate in a covered transaction?
970.125 Does an exclusion under the nonprocurement system affect a
person's eligibility to participate in Federal procurement
contracts?
970.130 Does an exclusion under the Federal procurement system
affect a person's eligibility to participate in nonprocurement
transactions?
970.135 May the OPM exclude a person who is not currently
participating in a nonprocurement transaction?
970.140 How do I know if a person is excluded?
970.145 Does this part cover persons who are disqualified as well
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
970.200 What is a covered transaction?
970.205 Why is it important to know if a particular transaction is
a covered transaction?
970.210 Which nonprocurement transactions are covered
transactions?
970.215 Which nonprocurement transactions are not covered
transactions?
970.220 Are any procurement contracts included as covered
transactions?
970.225 How do I know if a transaction in which I may participate
in is a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
970.300 May I enter into a covered transaction with an excluded or
disqualified person?
970.305 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
970.310 May I use the services of an excluded person under a
covered transaction?
970.315 Must I verify that principals of my covered transactions
are eligible to participate?
970.320 What happens if I do business with an excluded person in a
covered transaction?
970.325 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Disclosing Information Primary Tier Participants
970.330 What information must I provide before entering into a
covered transaction with the OPM?
970.335 If I disclose unfavorable information required under
Sec. 970.330 will I be prevented from entering into the transaction?
970.340 What happens if I fail to disclose the information
required under Sec. 970.330?
970.345 What must I do if I learn of the information required
under Sec. 970.330 after entering into a covered transaction with
the OPM?
Disclosing Information--Lower Tier Participants
970.350 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
970.355 What happens if I fail to disclose the information
required under Sec. 970.350?
970.360 What must I do if I learn of information required under
Sec. 970.350 after entering into a covered transaction with a higher
tier participant?
Subpart D--Responsibilities of OPM Officials Regarding Transactions
970.400 May I enter into a transaction with an excluded or
disqualified person?
970.405 May I enter into a covered transaction with a participant
if a principal of the transaction is excluded?
970.410 May I approve a participant's use of the services of an
excluded person?
970.415 What must I do if a Federal agency excludes the
participant or a principal after I enter into a covered transaction?
970.420 May I approve a transaction with an excluded or
disqualified person at a lower tier?
970.425 When do I check to see if a person is excluded or
disqualified?
970.430 How do I check to see if a person is excluded or
disqualified?
970.435 What must I require of a primary tier participant?
970.440 What method do I use to communicate those requirements to
participants?
970.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
970.450 What action may I take if a primary tier participant fails
to disclose the information required under Sec. 970.330?
970.455 What may I do if a lower tier participant fails to
disclose the information required under Sec. 970.350 to the next
higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From
Federal Procurement and Nonprocurement Programs
970.500 What is the purpose of the List?
970.505 Who uses the List?
970.510 Who maintains the List?
970.515 What specific information is on the List?
970.520 Who gives the GSA the information that it puts on the
List?
970.525 Whom do I ask if I have questions about a person on the
List?
970.530 Where can I get the List?
[[Page 3290]]
Subpart F--General Principles Relating to Suspension and Debarment
Actions
970.600 How do suspension and debarment actions start?
970.605 How does suspension differ from debarment?
970.610 What procedures does the OPM use in suspension and
debarment actions?
970.615 How does the OPM notify a person of suspension and
debarment actions?
970.620 Do Federal agencies coordinate suspension and debarment
actions?
970.625 What is the scope of a suspension or debarment action?
970.630 May the OPM impute the conduct of one person to another?
970.635 May the OPM settle a debarment or suspension action?
970.640 May a settlement include a voluntary exclusion?
970.645 Do other Federal agencies know if the OPM agrees to a
voluntary exclusion?
Subpart G--Suspension
970.700 When may the suspending official issue a suspension?
970.705 What does the suspending official consider in issuing a
suspension?
970.710 When does a suspension take effect?
970.715 What notice does the suspending official give me if I am
suspended?
970.720 How may I contest a suspension?
970.725 How much time do I have to contest a suspension?
970.730 What information must I provide to the suspending official
if I contest a suspension?
970.735 Under what conditions do I get an additional opportunity
to challenge the facts on which the suspension is based?
970.740 Are suspension proceedings formal?
970.745 Is a record made of fact-finding proceedings?
970.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
970.755 When will I know whether the suspension is continued or
terminated?
970.760 How long may my suspension last?
Subpart H--Debarment
970.800 What are the causes for debarment?
970.805 What notice does the debarring official give me if I am
proposed for debarment?
970.810 When does a debarment take effect?
970.815 How may I contest a proposed debarment?
970.820 How much time do I have to contest a proposed debarment?
970.825 What information must I provide to the debarring official
if I contest a proposed debarment?
970.830 Under what conditions do I get an additional opportunity
to challenge the facts on which a proposed debarment is based?
970.835 Are debarment proceedings formal?
970.840 Is a record made of fact-finding proceedings?
970.845 What does the debarring official consider in deciding
whether to debar me?
970.850 What is the standard of proof in a debarment action?
970.855 Who has the burden of proof in a debarment action?
970.860 What factors may influence the debarring official's
decision?
970.865 How long may my debarment last?
970.870 When do I know if the debarring official debars me?
970.875 May I ask the debarring official to reconsider a decision
to debar me?
970.880 What factors may influence the debarring official during
reconsideration?
970.885 May the debarring official extend a debarment?
Subpart I--Definitions
970.900 Adequate evidence.
970.905 Affiliate.
970.910 Agency.
970.915 Agent or representative.
970.920 Civil judgment.
970.925 Conviction.
970.930 Debarment
970.935 Debarring official.
970.940 Disqualified.
970.945 Excluded or exclusion.
970.950 Indictment.
970.955 Ineligible or ineligibility.
970.960 Legal proceedings.
970.965 List of Parties Excluded or Disqualified from Federal
Procurement and Nonprocurement Programs.
970.970 Nonprocurement transaction.
970.975 Notice.
970.980 Participant
970.985 Person.
970.990 Preponderance of the evidence.
970.995 Principal.
970.1000 Respondent.
970.1005 State.
970.1010 Suspending official.
970.1015 Suspension.
970.1020 Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]
Appendix to Part 970--Covered Transactions
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.
2. Part 970 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``OPM'' is added in its place
wherever it occurs.
b. ``[Agency adjective]'' is removed and ``OPM'' is added in its
place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``Debarring
Official'' is added in its place wherever it occurs.
3. Section 970.440 is added to read as follows:
Sec. 970.440 What method do I use to communicate those requirements to
participants?
To communicate the requirement, you must include a term or
condition in the transaction requiring the participants' compliance
with subpart C of this part and requiring them to include a similar
term or condition in lower-tier covered transactions.
DEPARTMENT OF AGRICULTURE
7 CFR Parts 3017 and 3021
RIN 0505-AA11
ADDRESSES: Comments on the Department of Agriculture's additional
provisions should be addressed to Patricia E. Healy, Acting Chief
Financial Officer, U.S. Department of Agriculture, Room 143-W, Whitten
Building, 1400 Independence Avenue, SW., Washington, DC 20250.
FOR FURTHER INFORMATION CONTACT: Gerald Miske, Fiscal Policy Division,
Office of the Chief Financial Officer, 202-720-1553.
ADDITIONAL SUPPLEMENTARY INFORMATION: The Department of Agriculture
(USDA) is publishing these proposed rules in order to update these two
regulations, and to maintain governmentwide uniformity in grants
management policy that is a primary objective of Pub. L. 106-107, ``The
Federal Financial Assistance Management Improvement Act of 1999.''
The requirements for maintaining a drug-free workplace are being
removed as a subpart in the current debarment and suspension common
rule, and re-codified as a separate part 3021.
The appendix that is referenced in Sec. 3017.50 contains a model
for covered transactions that would be accurate for all USDA agencies
if USDA had not added certain exclusions in Secs. 3017.215 and
3017.220. Therefore, it is necessary to clarify that the appendix
contains a general model that will vary for certain categories of
transactions in accordance with the exclusions from covered
transactions in Secs. 3017.215 and 3017.220.
USDA has limited covered transactions under its current debarment
and suspension regulation (7 CFR part 3017) to primary tier
transactions for all of its export and foreign assistance programs.
USDA proposes to retain this limited coverage for most of its export
and foreign assistance programs but to expand the coverage slightly for
certain market development and foreign assistance programs. The
coverage would be expanded to include: (1) Any lower tiers non
procurement transaction between a nonprofit trade association or state
regional group and a U.S. entity under the Market Excess Program; and
(2) any procurement contract for ocean transportation under USDA's
foreign assistance programs. The types of lower
[[Page 3291]]
tier transactions that would be covered would be those in which the
Department of Agriculture would be making an identifiable payment,
directly or indirectly, to the participant in the specific lower tier
transaction. In accordance with Secs. 3017.215 (i) and 3017.220 (d),
these two types of transactions would be the only lower tier
nonprocurement or procurement transactions in USDA's export and foreign
assistance programs that would be covered transactions under this
regulation.
USDA has identified in Sec. 3017.215 certain nonprocurement
transactions that will not be covered by this regulation.
Under Sec. 3017.220, USDA has included certain procurement
contracts as covered transactions when the contract is for the
procurement of ocean transportation in connection with USDA's export
and foreign assistance programs.
In order to communicate requirements to lower-tier covered
transactions, USDA has added Sec. 3017.440 requiring USDA agencies to
include a term in each agreement for participants' compliance with
Subpart C.
In Secs. 3017.755 (a) and 3017.870 (a) USDA has added the
requirement that the record remain open for a full 30 days after the
respondent receives the notice of suspension or debarment even if a
submission in opposition is made before the 30 days expire. This
requirement was included in order to make the timing of these actions
clear.
USDA does not have a centralized appeal process and therefore has
retained in Sec. 3017.765 the appeal process established in the current
USDA regulation on debarment.
List of Subjects
7 CFR Part 3017
Administrative practice and procedure, Debarment and suspension,
Grant programs-agriculture, Loan programs-agriculture, Reporting and
recordkeeping requirements.
7 CFR Part 3021
Administrative practice and procedure, Drug abuse, Grant programs-
agriculture, Loan programs-agriculture, Reporting and recordkeeping
requirements.
Dated: June 1, 2001.
Patricia E. Healy,
Acting, Chief Financial Officer.
Dated: June 6, 2001.
Ann M. Veneman,
Secretary of Agriculture.
For the reasons stated in the common preamble, the United States
Department of Agriculture proposes to amend 7 CFR Chapter XXX as
follows:
1. Part 3017 is revised to read as set forth in instruction 1 at
the end of the common preamble.
PART 3017--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
Sec.
3017.25 How is this part organized?
3017.50 How is this part written?
3017.75 Do terms in this part have special meanings?
Subpart A--General
3017.100 What does this part do?
3017.105 Does this part apply to me?
3017.110 What is the purpose of the nonprocurement debarment and
suspension system?
3017.115 How does an exclusion restrict a person's involvement in
covered transactions?
3017.120 May we grant an exception to let an excluded person
participate in a covered transaction?
3017.125 Does an exclusion under the nonprocurement system affect a
person's eligibility to participate in Federal procurement
contracts?
3017.130 Does an exclusion under the Federal procurement system
affect a person's eligibility to participate in nonprocurement
transactions?
3017.135 May the Department of Agriculture exclude a person who is
not currently participating in a nonprocurement transaction?
3017.140 How do I know if a person is excluded?
3017.145 Does this part cover persons who are disqualified as well
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
3017.200 What is a covered transaction?
3017.205 Why is it important to know if a particular transaction is
a covered transaction?
3017.210 Which nonprocurement transactions are covered
transactions?
3017.215 Which nonprocurement transactions are not covered
transactions?
3017.220 Are any procurement contracts included as covered
transactions?
3017.225 How do I know if a transaction that I may participate in
is a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
3017.300 May I enter into a covered transaction with an excluded or
disqualified person?
3017.305 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
3017.310 May I use the services of an excluded person under a
covered transaction?
3017.315 Must I verify that principals of my covered transactions
are eligible to participate?
3017.320 What happens if I do business with an excluded person in a
covered transaction?
3017.325 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Disclosing Information--Primary Tier Participants
3017.330 What information must I provide before entering into a
covered transaction with the Department of Agriculture.
3017.335 If I disclose unfavorable information required under
Sec. 3017.330 will I be prevented from entering into the
transaction?
3017.340 What happens if I fail to disclose the information
required under Sec. 3017.330?
3017.345 What must I do if I learn of the information required
under Sec. 3017.330 after entering into a covered transaction with
the Department of Agriculture?
Disclosing Information--Lower Tier Participants
3017.350 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
3017.355 What happens if I fail to disclose the information
required under Sec. 3017.350?
3017.360 What must I do if I learn of information required under
Sec. 3017.350 after entering into a covered transaction with a
higher tier participant?
Subpart D--Responsibilities of Department of Agriculture Officials
Regarding Transactions
3017.400 May I enter into a transaction with an excluded or
disqualified person?
3017.405 May I enter into a covered transaction with a participant
if a principal of the transaction is excluded?
3017.410 May I approve a participant's use of the services of an
excluded person?
3017.415 What must I do if a Federal agency excludes the
participant or a principal after I enter into a covered transaction?
3017.420 May I approve a transaction with an excluded or
disqualified person at a lower tier?
3017.425 When do I check to see if a person is excluded or
disqualified?
3017.430 How do I check to see if a person is excluded or
disqualified?
[[Page 3292]]
3017.435 What must I require of a primary tier participant?
3017.440 What method do I use to communicate those requirements to
participants?
3017.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
3017.450 What action may I take if a primary tier participant fails
to disclose the information required under Sec. 3017.330?
3017.455 What may I do if a lower tier participant fails to
disclose the information required under Sec. 3017.350 to the next
higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From
Federal Procurement and Nonprocurement Programs
3017.500 What is the purpose of the List?
3017.505 Who uses the List?
3017.510 Who maintains the List?
3017.515 What specific information is on the List?
3017.520 Who gives the GSA the information that it puts on the
List?
3017.525 Whom do I ask if I have questions about a person on the
List?
3017.530 Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment
Actions
3017.600 How do suspension and debarment actions start?
3017.605 How does suspension differ from debarment?
3017.610 What procedures does the Department of Agriculture use in
suspension and debarment actions?
3017.615 How does the Department of Agriculture notify a person of
suspension and debarment actions?
3017.620 Do Federal agencies coordinate suspension and debarment
actions?
3017.625 What is the scope of a suspension or debarment action?
3017.630 May the Department of Agriculture impute the conduct of
one person to another?
3017.635 May the Department of Agriculture settle a debarment or
suspension action?
3017.640 May a settlement include a voluntary exclusion?
3017.645 Do other Federal agencies know if the Department of
Agriculture agrees to a voluntary exclusion?
Subpart G--Suspension
3017.700 When may the suspending official issue a suspension?
3017.705 What does the suspending official consider in issuing a
suspension?
3017.710 When does a suspension take effect?
3017.715 What notice does the suspending official give me if I am
suspended?
3017.720 How may I contest a suspension?
3017.725 How much time do I have to contest a suspension?
3017.730 What information must I provide to the suspending official
if I contest a suspension?
3017.735 Under what conditions do I get an additional opportunity
to challenge the facts on which the suspension is based?
3017.740 Are suspension proceedings formal?
3017.745 Is a record made of fact-finding proceedings?
3017.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
3017.755 When will I know whether the suspension is continued or
terminated?
3017.760 How long may my suspension last?
3017.765 How may I appeal my suspension?
Subpart H--Debarment
3017.800 What are the causes for debarment?
3017.805 What notice does the debarring official give me if I am
proposed for debarment?
3017.810 When does a debarment take effect?
3017.815 How may I contest a proposed debarment?
3017.820 How much time do I have to contest a proposed debarment?
3017.825 What information must I provide to the debarring official
if I contest a proposed debarment?
3017.830 Under what conditions do I get an additional opportunity
to challenge the facts on which the proposed debarment is based?
3017.835 Are debarment proceedings formal?
3017.840 Is a record made of fact-finding proceedings?
3017.845 What does the debarring official consider in deciding
whether to debar me?
3017.850 What is the standard of proof in a debarment action?
3017.855 Who has the burden of proof in a debarment action?
3017.860 What factors may influence the debarring official's
decision?
3017.865 How long may my debarment last?
3017.870 When do I know if the debarring official debars me?
3017.875 May I ask the debarring official to reconsider a decision
to debar me?
3017.880 What factors may influence the debarring official during
reconsideration?
3017.885 May the debarring official extend a debarment?
3017.890 How may I appeal my debarment?
Subpart I--Definitions
3017.900 Adequate evidence.
3017.905 Affiliate.
3017.910 Agency.
3017.915 Agent or representative.
3017.920 Civil judgment.
3017.925 Conviction.
3017.930 Debarment.
3017.935 Debarring official.
3017.940 Disqualified.
3017.945 Excluded or exclusion.
3017.950 Indictment.
3017.955 Ineligible or ineligibility.
3017.960 Legal proceedings.
3017.965 List of Parties Excluded or Disqualified From Federal
Procurement and Nonprocurement Programs.
3017.970 Nonprocurement transaction.
3017.975 Notice.
3017.980 Participant.
3017.985 Person.
3017.990 Preponderance of the evidence.
3017.995 Principal.
3017.1000 Respondent.
3017.1005 State.
3017.1010 Suspending official.
3017.1015 Suspension.
3017.1020 Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]
Appendix to Part 3017--Covered Transactions
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); E.O.
12549 (3 CFR, 1986 Comp., p. 189); E.O. 12698 (3 CFR, 1989 Comp., p.
235); 7 CFR part 2, subpart D, Sec. 2.28.
2. Part 3017 is further amended as set forth below:
a. ``[Agency noun]'' is removed and ``Department of Agriculture''
is added in its place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``Department of
Agriculture'' is added in its place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``the Secretary of
Agriculture or designee'' is added in its place wherever it occurs.
3. Section 3017.50 is further amended by adding a sentence to the
end of paragraph (c) to read as follows:
Sec. 3017.50 How is this part written?
(c) * * * The ``Covered Transactions'' chart in the appendix to
this part shows the general model for the levels or ``tiers'' at which
the Department of Agriculture enforces an exclusion under this part.
However, the chart in the appendix shows only the general model and the
model will vary for certain categories of transactions in accordance
with the exclusions from covered transactions in Secs. 3017.215 and
3017.220.
4. Section 3017.215 is further amended by adding paragraphs (h)
through (p) to read as follows:
Sec. 3017.215 Which nonprocurement transactions are not covered
transactions?
* * * * *
(h) An entitlement or mandatory award required by a statue,
including a lower tier entitlement or mandatory award that is required
by a statute.
(i) With respect to the Department of Agriculture's export and
foreign assistance programs, any transaction below the primary tier
covered transaction other than a nonprocurement transaction under the
[[Page 3293]]
Market Access Program between a nonprofit trade association or state
regional group and a U.S. entity, as defined in part 1485 of this
title.
(j) Any transaction under the Department of Agriculture's
conservation programs, warehouse licensing programs, or programs that
provide statutory entitlements and make available loans to individuals
and entities in their capacity as producers of agricultural
commodities.
(k) The export or substitution of Federal timber governed by the
Forest Resources Conservation and Shortage Relief Act of 1990, 16
U.S.C. 620 et seq. (The ``Export Act''), which provides separate
statutory authority to debar.
(l) The receipt of licenses, permits, certificates, and
indemnification under regulatory programs conducted in the interest of
public health and safety, and animal and plant health and safety.
(m) The receipt of official grading and inspection services, animal
damage control services, public health and safety inspection services,
and animal and plant health and safety inspection services.
(n) If the person is a State or local government, the provision of
official grading and inspection services, animal damage control
services, animal and plant health and safety inspection services.
(o) The receipt of licenses, permit, or certificates under
regulatory programs conducted in the interest of ensuring fair trade
practices.
(p) Permits, licenses, exchanges and other acquisitions of real
property, rights of way, and easements under natural resource
management programs.
5. Section 3017.220 is amended by adding paragraph (d) to read as
follows:
Sec. 3017.220 Are any procurement contracts included as covered
transactions?
* * * * *
(d) The contract is for the procurement of ocean transportation in
connection with the Department of Agriculture's foreign assistance
programs. With respect to the Department of Agriculture's export and
foreign assistance programs, such contracts are the only procurement
contracts included as covered transactions, not withstanding the
provisions in paragraphs (a) through (c) of this section.
6. Section 3017.440 is added to read as follows:
Sec. 3017.440 What method do I use to communicate those requirements
to participants?
To communicate the requirement, you must include a term or
condition in the transaction requiring the participants' compliance
with Subpart C of this part and requiring them to include similar term
or condition in lower-tier covered transactions.
7. Section 3017.755 is further amended by adding a sentence at the
end of paragraph (a) to read as follows:
Sec. 3017.755 When will I know whether the suspension is continued or
terminated?
(a) * * * However, the record will remain open for the full 30
days, as called for in Sec. 3017.725, even when you make a submission
before the 30 days expire.
* * * * *
8. Section 3017.765 is added to subpart G to read as follows:
Sec. 3017.765 How may I appeal my suspension?
(a) An appeal may be filled only after the respondent has exhausted
the option to contest the suspension in Sec. 3017.720. The appeal must
be filed within 30 days of receiving the decision required
Sec. 3017.755 and it must specify the basis of the appeal. The
respondent must file the appeal in writing to the Hearing Clerk in the
Office of Administrative Law Judges (OALJ), United States Department of
Agriculture (USDA), Washington, DC 20250. The decision of a suspending
official under Sec. 3017.700 may be vacated by the assigned appeals
officer only if the officer determines that the decision is:
(1) Not in accordance with law;
(2) Not based on the applicable standard of evidence; or
(3) Arbitrary and capricious and an abuse of discretion.
(b) The appeals officer will base the decision solely on the
administrative record.
(c) Within 90 days of the date the appeal is filed with USDA's OALJ
Hearing Clerk, the appeals officer will notify, in writing, the
respondent(s) and the suspending official, who took the action being
appealed, of the decision.
(d) The appeals officer's decision is final and it not appealable
within USDA.
9. Section 3017.800 is further amended by adding paragraph (e) to
read as follows:
Sec. 3017.800 What are the causes of debarment?
* * * * *
(e) Notwithstanding paragraph (c) (1) of this section, within the
Department of Agriculture a nonprocurement debarment by any Federal
agency taken before March 1, 1989.
10. Section 3017.870 is further amended by adding a sentence to the
end of paragraph (a) to read as follows:
Sec. 3017.870 When do I know if the debarring official debars me?
(a) * * * However, the record will remain open for the full 30
days, as called for in Sec. 3017.820, even when you make a submission
before the 30 days expire.
* * * * *
11. Section 3017.890 is added to subpart H to read as follows:
Sec. 3017.890 How may I appeal my debarment?
(a) An appeal may be filed only after the respondent has exhausted
the option to contest the debarment in Sec. 3017.815. The appeal must
be filed within 30 days of receiving the decision required
Sec. 3017.870 and it must specify the basis of the appeal. The
respondent must file the appeal in writing to the Hearing Clerk in the
Office of Administrative Law Judges (OALJ), United States Department of
Agriculture (USDA), Washington, DC 20250. The decision of a debarring
official under Sec. 3017.800 may be vacated by the assigned appeals
officer only if the officer determines that the decision is:
(1) Not in accordance with law;
(2) Not based on the applicable standard of evidence; or
(3) Arbitrary and capricious and an abuse of discretion.
(b) The appeals officer will base the decision solely on the
administrative record.
(c) Within 90 days of the date the appeal is filed with USDA's OALJ
Hearing
Clerk, the appeals officer will notify, in writing, the
respondent(s) and the debarring official, who took the action being
appealed, of the decision.
(d) The appeals officer's decision is final and it not appealable
within USDA.
12. Section 3017.935 is further amended by adding paragraph (b) to
read as follows:
Sec. 3017.935 Debarring official.
* * * * *
(b) Within USDA, the Secretary has designated the Administrators of
program agencies to be the debarring official, i.e. Administrator, Food
and Nutrition Service. Further, the Secretary authorizes these
officials to delegate any and all functions except for making the final
decision. Final decision includes the decision to initiate, maintain,
or continue a debarment.
13. Section 3017.1010 is further amended by adding paragraph (b) to
read as follows:
Sec. 3017.1010 Suspending official.
* * * * *
[[Page 3294]]
(b) Within USDA, the Secretary has designated the Administrators of
program agencies to be the suspending official, i.e. Administrator,
Food and Nutrition Service. Further, the Secretary authorizes these
officials to delegate any and all functions except for making the final
decision. Final decision includes the decision to initiate, maintain,
or continue a suspension.
14. Part 3021 is added to read as set forth in instruction 2 at the
end of the common preamble.
PART 3021--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE
(FINANCIAL ASSISTANCE)
Subpart A--Purpose and Coverage
Sec.
3021.100 What does this part do?
3021.105 Does this part apply to me?
3021.110 Are any of my Federal assistance awards exempt from this
part?
3021.115 Does this part affect the Federal contracts that I
receive?
Subpart B--Requirements for Recipients Other Than Individuals
3021.200 What must I do to comply with this part?
3021.205 What must I include in my drug-free workplace statement?
3021.210 To whom must I distribute my drug-free workplace
statement?
3021.215 What must I include in my drug-free awareness program?
3021.220 By when must I publish my drug-free workplace statement
and establish my drug-free awareness program?
3021.225 What actions must I take concerning employees who are
convicted of drug violations in the workplace?
3021.230 How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
3021.300 What must I do to comply with this part if I am an
individual recipient?
3021.301 [Reserved]
Subpart D--Responsibilities of Department of Agriculture Awarding
Officials
3021.400 What are my responsibilities as a Department of
Agriculture awarding official?
Subpart E--Violations of This Part and Consequences
3021.500 How are violations of this part determined for recipients
other than individuals?
3021.505 How are violations of this part determined for recipients
who are individuals?
3021.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
3021.515 Are there any exceptions to those actions?
Subpart F--Definitions
3021.605 Award.
3021.610 Controlled substance.
3021.615 Conviction.
3021.620 Cooperative agreement.
3021.625 Criminal drug statute.
3021.630 Debarment.
3021.635 Drug-free workplace.
3021.640 Employee.
3021.645 Federal agency or agency.
3021.650 Grant.
3021.655 Individual.
3021.660 Recipient.
3021.665 State.
3021.670 Suspension.
Authority: 5 U.S.C. 301; 41 U.S.C. 701, et seq.; Pub. L. 101-
576, 104 Stat. 2838; 7 CFR Part 2, Subpart D, Sec. 2.28.
15. Part 3021 is further amended as set forth below:
a. ``[Agency noun]'' is removed and ``Department of Agriculture''
is added in its place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``Department of
Agriculture'' is added in its place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``the Secretary of
Agriculture or designee'' is added in its place wherever it occurs.
d. ``[Agency head]'' is removed and ``the Secretary of
Agriculture'' is added in its place wherever it occurs.
16. Section 3021.510(c) is further amended by removing ``[CFR
citation for the Federal Agency's regulations implementing Executive
Order 12549 and Executive Order 12689]'' and adding ``7 CFR part 3017''
in its place.
17. Section 3021.605 (a)(2) is further amended by removing
``[Agency-specific CFR citation]'' and adding ``7 CFR part 3016'' in
its place.
DEPARTMENT OF ENERGY
10 CFR Parts 606, 607 and 1036
RIN 1991-AB56
FOR FURTHER INFORMATION CONTACT: Cynthia G. Yee, 202-586-1140;
cynthia.yee@hq.doe.gov.
ADDITIONAL SUPPLEMENTARY INFORMATION: The administrative practices and
procedures for suspension and debarment are being removed from part
1036 and recodified in part 606. The requirements for maintaining a
drug-free workplace are being removed as a subpart in the current
debarment and suspension common rule, part 1036, and recodified as a
separate part 607.
List of Subjects
10 CFR Part 606
Administrative practice and procedure, Debarment and suspension,
Government contracts, Grant programs, Loan programs, Reporting and
recordkeeping requirements.
10 CFR Part 607
Administrative practice and procedure, Drug abuse, Grant programs,
Reporting and recordkeeping requirements.
Dated: June 29, 2001.
Spencer Abraham,
Secretary of Energy.
Accordingly, as set forth in the common preamble, and under the
authority of 42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq., the
Department of Energy proposes to amend 10 CFR chapters II and X as
follows.
1. Part 606 is added to subchapter H to read as set forth in
instruction 1 at the end of the common preamble.
PART 606--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
606.25 How is this part organized?
606.50 How is this part written?
606.75 Do terms in this part have special meanings?
Subpart A--General
606.100 What does this part do?
606.105 Does this part apply to me?
606.110 What is the purpose of the nonprocurement debarment and
suspension system?
606.115 How does an exclusion restrict a person's involvement in
covered transactions?
606.120 May we grant an exception to let an excluded person
participate in a covered transaction?
606.125 Does an exclusion under the nonprocurement system affect a
person's eligibility to participate in Federal procurement
contracts?
606.130 Does an exclusion under the Federal procurement system
affect a person's eligibility to participate in nonprocurement
transactions?
606.135 May the Department of Energy exclude a person who is not
currently participating in a nonprocurement transaction?
606.140 How do I know if a person is excluded?
606.145 Does this part cover persons who are disqualified as well
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
606.200 What is a covered transaction?
606.205 Why is it important to know if a particular transaction is
a covered transaction?
606.210 Which nonprocurement transactions are covered
transactions?
606.215 Which nonprocurement transactions are not covered
transactions?
606.220 Are any procurement contracts included as covered
transactions?
606.225 How do I know if a transaction that I may participate in
is a covered transaction?
[[Page 3295]]
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
606.300 May I enter into a covered transaction with an excluded or
disqualified person?
606.305 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
606.310 May I use the services of an excluded person under a
covered transaction?
606.315 Must I verify that principals of my covered transactions
are eligible to participate?
606.320 What happens if I do business with an excluded person in a
covered transaction?
606.325 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Disclosing Information--Primary Tier Participants
606.330 What information must I provide before entering into a
covered transaction with the Department of Energy?
606.335 If I disclose unfavorable information required under
Sec. 606.330 will I be prevented from entering into the transaction?
606.340 What happens if I fail to disclose the information
required under Sec. 606.330?
606.345 What must I do if I learn of the information required
under Sec. 606.330 after entering into a covered transaction with
the Department of Energy?
Disclosing information--Lower Tier Participants
606.350 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
606.355 What happens if I fail to disclose the information
required under Sec. 606.350?
606.360 What must I do if I learn of information required under
Sec. 606.350 after entering into a covered transaction with a higher
tier participant?
Subpart D--Responsibilities of DOE Officials Regarding Transactions
606.400 May I enter into a transaction with an excluded or
disqualified person?
606.405 May I enter into a covered transaction with a participant
if a principal of the transaction is excluded?
606.410 May I approve a participant's use of the services of an
excluded person?
606.415 What must I do if a Federal agency excludes the
participant or a principal after I enter into a covered transaction?
606.420 May I approve a transaction with an excluded or
disqualified person at a lower tier?
606.425 When do I check to see if a person is excluded or
disqualified?
606.430 How do I check to see if a person is excluded or
disqualified?
606.435 What must I require of a primary tier participant?
606.440 What method do I use to communicate to participants the
requirement to comply with Subpart C?
606.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
606.450 What action may I take if a primary tier participant fails
to disclose the information required under Sec. 606.330?
606.455 What may I do if a lower tier participant fails to
disclose the information required under Sec. 606.350 to the next
higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From
Federal Procurement and Nonprocurement Programs
606.500 What is the purpose of the List?
606.505 Who uses the List?
606.510 Who maintains the List?
606.515 What specific information is on the List?
606.520 Who gives the GSA the information that it puts on the
List?
606.525 Whom do I ask if I have questions about a person on the
List?
606.530 Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment
Actions
606.600 How do suspension and debarment actions start?
606.605 How does suspension differ from debarment?
606.610 What procedures does the Department of Energy use in
suspension and debarment actions?
606.615 How does the Department of Energy notify a person of
suspension and debarment actions?
606.620 Do Federal agencies coordinate suspension and debarment
actions?
606.625 What is the scope of a suspension or debarment action?
606.630 May the Department of Energy impute the conduct of one
person to another?
606.635 May the Department of Energy settle a debarment or
suspension action?
606.640 May a settlement include a voluntary exclusion?
606.645 Do other Federal agencies know if the Department of Energy
agrees to a voluntary exclusion?
Subpart G--Suspension
606.700 When may the suspending official issue a suspension?
606.705 What does the suspending official consider in issuing a
suspension?
606.710 When does a suspension take effect?
606.715 What notice does the suspending official give me if I am
suspended?
606.720 How may I contest a suspension?
606.725 How much time do I have to contest a suspension?
606.730 What information must I provide to the suspending official
if I contest a suspension?
606.735 Under what conditions do I get an additional opportunity
to challenge the facts on which the suspension is based?
606.740 Are suspension proceedings formal?
606.745 Is a record made of fact-finding proceedings?
606.746 Who conducts fact-finding conferences for DOE?
606.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
606.755 When will I know whether the suspension is continued or
terminated?
606.760 How long may my suspension last?
Subpart H--Debarment
606.800 What are the causes for debarment?
606.805 What notice does the debarring official give me if I am
proposed for debarment?
606.810 When does a debarment take effect?
606.815 How may I contest a proposed debarment?
606.820 How much time do I have to contest a proposed debarment?
606.825 What information must I provide to the debarring official
if I contest a proposed debarment?
606.830 Under what conditions do I get an additional opportunity
to challenge the facts on which the proposed debarment is based?
606.835 Are debarment proceedings formal?
606.836 Who conducts fact-finding conferences for DOE?
606.840 Is a record made of fact-finding proceedings?
606.845 What does the debarring official consider in deciding
whether to debar me?
606.850 What is the standard of proof in a debarment action?
606.855 Who has the burden of proof in a debarment action?
606.860 What factors may influence the debarring official's
decision?
606.865 How long may my debarment last?
606.870 When do I know if the debarring official debars me?
606.875 May I ask the debarring official to reconsider a decision
to debar me?
606.880 What factors may influence the debarring official during
reconsideration?
606.885 May the debarring official extend a debarment?
Subpart I--Definitions
606.900 Adequate evidence.
606.905 Affiliate.
606.910 Agency.
606.915 Agent or representative.
606.920 Civil judgment.
606.925 Conviction.
606.930 Debarment.
606.935 Debarring official.
606.936 Director, Office of Procurement and Assistance Management.
606.940 Disqualified.
606.945 Excluded or exclusion.
606.950 Indictment.
606.955 Ineligible or ineligibility.
606.960 Legal proceedings.
606.965 List of Parties Excluded or Disqualified From Federal
Procurement and Nonprocurement Programs.
606.970 Nonprocurement transaction.
606.975 Notice.
606.980 Participant.
[[Page 3296]]
606.985 Person.
606.990 Preponderance of the evidence.
606.995 Principal.
606.1000 Respondent.
606.1005 State.
606.1010 Suspending official.
606.1015 Suspension.
606.1020 Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]
Appendix to Part 606--Covered Transactions
Authority: 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); 42 U.S.C. 7101 et seq.; 50 U.S.C. 2401 et
seq.
2. Part 606 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``Department of Energy'' is
added in its place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``DOE'' is added in its
place wherever it occurs. c. ``[Agency head or designee]'' is removed
and ``Director, Office of Procurement and ``Assistance Management'' is
added in its place wherever it occurs.
3. Section 606.440 is added to read as follows:
Sec. 606.440 What method do I use to communicate to participants the
requirement to comply with subpart C?
To communicate the requirements, you must include a term or
condition in the transaction requiring the participants' compliance
with subpart C of this part and requiring them to include a similar
term or condition in lower-tier covered transactions.
4. Section 606.746 is added to read as follows:
Sec. 606.746 Who conducts fact-finding conferences for DOE?
The Energy Board of Contract Appeals conducts fact-finding
conferences for DOE, in accordance with the rules promulgated by the
Energy Board of Contract Appeals.
5. Section 606.836 is added to read as follows:
Sec. 606.836 Who conducts fact-finding conferences for DOE?
The Energy Board of Contract Appeals conducts fact-finding
conferences for DOE, in accordance with the rules promulgated by the
Energy Board of Contract Appeals.
6. Section 606.910 is further amended by adding a definition for
Department of Energy in alphabetical order to read as follows:
Sec. 606.910 Agency.
* * * * *
Department of Energy includes the National Nuclear Security
Administration (NNSA), and the Federal Energy Regulatory Commission
(FERC).
7. Section 606.935 is further amended by adding paragraph (b) to
read as follows:
Sec. 606.935 Debarring official.
* * * * *
(b) The DOE debarring official is the Director, Office of
Procurement and Assistance Management, DOE.
8. Section 606.936 is added to read as follows:
Sec. 606.936 Director, Office of Procurement and Assistance
Management.
Director, Office of Procurement and Assistance Management means the
Director, Office of Procurement and Assistance Management, DOE, or the
Director, Office of Procurement and Assistance Management, NNSA, as
appropriate.
9. Section 606.1010 is further amended by adding paragraph (b) to
read as follows:
Sec. 606.1010 Suspending official.
* * * * *
(b) The DOE suspending official is the Director, Office of
Procurement and Assistance Management, DOE.
10. Part 607 is added to subchapter H to read as set forth in
instruction 2 at the end of the common preamble.
PART 607--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE
(FINANCIAL ASSISTANCE)
Subpart A--Purpose and Coverage
607.100 What does this part do?
607.105 Does this part apply to me?
607.110 Are any of my Federal assistance awards exempt from this
part?
607.115 Does this part affect the Federal contracts that I
receive?
Subpart B--Requirements for Recipients Other Than Individuals
607.200 What must I do to comply with this part?
607.205 What must I include in my drug-free workplace statement?
607.210 To whom must I distribute my drug-free workplace
statement?
607.215 What must I include in my drug-free awareness program?
607.220 By when must I publish my drug-free workplace statement
and establish my drug-free awareness program?
607.225 What actions must I take concerning employees who are
convicted of drug violations in the workplace?
607.230 How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
607.300 What must I do to comply with this part if I am an
individual recipient?
607.301 [Reserved]
Subpart D--Responsibilities of DOE Awarding Officials
607.400 What are my responsibilities as a DOE awarding official?
Subpart E--Violations of This Part and Consequences
607.500 How are violations of this part determined for recipients
other than individuals?
607.505 How are violations of this part determined for recipients
who are individuals?
607.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
607.515 Are there any exceptions to those actions?
Subpart F--Definitions
607.605 Award.
607.610 Controlled substance.
607.615 Conviction.
607.620 Cooperative agreement.
607.625 Criminal drug statute.
607.630 Debarment.
607.631 Director, Office of Procurement and Assistance Management.
607.635 Drug-free workplace.
607.640 Employee.
607.645 Federal agency or agency.
607.650 Grant.
607.655 Individual.
607.660 Recipient.
607.665 State.
607.670 Suspension.
Authority: 41 U.S.C. 701, et seq.; 42 U.S.C. 7101 et seq.; 50
U.S.C. 2401 et seq.
11. Part 607 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``Department of Energy'' is
added in its place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``DOE'' is added in its
place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``Director, Office
of Procurement and Assistance Management'' is added in its place
wherever it occurs.
d. ``[Agency head]'' is removed and ``Secretary of Energy'' is
added in its place wherever it occurs.
12. Section 607.510(c) is further amended by removing ``[CFR
citation for the Federal agency's regulations implementing Executive
order 12549 and Executive Order 12689]'' and adding ``10 CFR part 606''
in its place.
13. Section 607.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``10 CFR Part 600'' in its place.
14. Section 607.631 is added to read as follows:
Sec. 607.631 Director, Office of Procurement and Assistance
Management.
Director, Office of Procurement and Assistance Management means the
Director, Office of Procurement and
[[Page 3297]]
Assistance Management, DOE, or the Director, Office of Procurement and
Assistance Management, NNSA, as appropriate.
15. Section 607.645 is further amended by adding the definition for
Department of Energy in alphabetical order to read as follows:
Sec. 607.645 Federal Agency or agency.
Department of Energy includes the National Nuclear Security
Administration (NNSA), and the Federal Energy Regulatory Commission
(FERC).
* * * * *
PART 1036--[REMOVED]
16. Part 1036 is removed.
SMALL BUSINESS ADMINISTRATION
13 CFR Parts 145 and 147
RIN 3245-AE61
FOR FURTHER INFORMATION CONTACT: Cory Whitehead, SBA Debarring
Official, Acting Assistant Administrator for Administration (5331),
U.S. Small Business Administration, 409 Third Street, SW, Washington,
DC 20416, (202) 205-6630, e-mail: cory.whitehead@sba.gov or Michael
Campilongo, Office of General Counsel, 409 Third Street, SW,
Washington, DC 20416, (202) 205-6879, e-mail:
michael.campilongo@sba.gov.
ADDITIONAL SUPPLEMENTARY INFORMATION: This part proposes optional lower
tier suspension and debarment coverage by including a paragraph (d) in
Sec. 145.220 for all contracts that equal or exceed the $25,000 award
threshold under SBA nonprocurement transactions. This election
maintains the SBA's present practice under the common rule.
In addition, Sec. 145.440 proposes to use terms or conditions to
the award transaction as a means to enforce exclusions under SBA
transactions rather than written certifications. This alternative
available under the common rule is more efficient than the SBA's
current certification process for prospective recipients and
participants.
Sections 145.765 and 145.890 are included as additional sections
under part 145 and propose to permit persons who have been suspended or
debarred by the SBA Debarring Official to obtain a review of that
decision on a limited basis as is currently available under SBA's
existing rule. These sections propose to delegate the authority to
issue a stay on a suspension or debarment decision to the reviewing
official. These changes from current practice reflect a more practical
approach to matters accepted for review.
Sections 145.935(b) and 145.1010(b) are added to designate the
Assistant Administrator for Administration as the SBA debarring and
suspending official for SBA programs other than financial assistance.
For that program, the SBA debarring and suspending official will be the
Assistant Administrator for Financial Assistance.
Section 145.995 of the debarment and suspension common rule defines
the term ``principal.'' Agencies implementing the common rule are
permitted to provide additional examples of principals that are
commonly involved in their covered transactions. SBA is proposing to
include several examples by adding a paragraph (c) to this section for
the benefit of individuals who may be excluded, or employers who may
have an individual employee who is excluded.
The requirements for maintaining a drug-free workplace are being
removed as Subpart F in the current debarment and suspension common
rule, and re-codified as a separate part 147.
List of Subjects
13 CFR Part 145
Administrative practice and procedure, Government contracts, Grant
programs, Loan programs, Reporting and recordkeeping requirements,
Small businesses.
13 CFR Part 147
Administrative practice and procedure, Drug abuse, Grant programs,
Reporting and recordkeeping requirements.
Dated: June 15, 2001.
John Whitmore,
Acting Administrator, U.S. Small Business Administration.
For the reasons stated in the common preamble, the U.S. Small
Business Administration proposes to amend 13 CFR chapter I as follows:
1. Part 145 is revised to read as set forth in instruction 1 at the
end of the common preamble.
PART 145--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
Sec.
145.25 How is this part organized?
145.50 How is this part written?
145.75 Do terms in this part have special meanings?
Subpart A--General
145.100 What does this part do?
145.105 Does this part apply to me?
145.110 What is the purpose of the nonprocurement debarment and
suspension system?
145.115 How does an exclusion restrict a person's involvement in
covered transactions?
145.120 May we grant an exception to let an excluded person
participate in a covered transaction?
145.125 Does an exclusion under the nonprocurement system affect a
person's eligibility to participate in Federal procurement
contracts?
145.130 Does an exclusion under the Federal procurement system
affect a person's eligibility to participate in nonprocurement
transactions?
145.135 May the SBA exclude a person who is not currently
participating in a nonprocurement transaction?
145.140 How do I know if a person is excluded?
145.145 Does this part cover persons who are disqualified as well
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
145.200 What is a covered transaction?
145.205 Why is it important to know if a particular transaction is
a covered transaction?
145.210 Which nonprocurement transactions are covered transactions?
145.215 Which nonprocurement transactions are not covered
transactions?
145.220 Are any procurement contracts included as covered
transactions?
145.225 How do I know if a transaction that I may participate in is
a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
145.300 May I enter into a covered transaction with an excluded or
disqualified person?
145.305 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
145.310 May I use the services of an excluded person under a
covered transaction?
145.315 Must I verify that principals of my covered transactions
are eligible to participate?
145.320 What happens if I do business with an excluded person in a
covered transaction?
145.325 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Disclosing Information--Primary Tier Participants
145.330 What information must I provide before entering into a
covered transaction with the SBA?
145.335 If I disclose unfavorable information required under
Sec. 145.330 will I be prevented from entering into the transaction?
145.340 What happens if I fail to disclose the information required
under Sec. 145.330?
145.345 What must I do if I learn of the information required under
Sec. 145.330
[[Page 3298]]
after entering into a covered transaction with the SBA?
Disclosing Information--Lower Tier Participants
145.350 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
145.355 What happens if I fail to disclose the information required
under Sec. 145.350?
145.360 What must I do if I learn of information required under
Sec. 145.350 after entering into a covered transaction with a higher
tier participant?
Subpart D--Responsibilities of SBA Officials Regarding Transactions
145.400 May I enter into a transaction with an excluded or
disqualified person?
145.405 May I enter into a covered transaction with a participant
if a principal of the transaction is excluded?
145.410 May I approve a participant's use of the services of an
excluded person?
145.415 What must I do if a Federal agency excludes the participant
or a principal after I enter into a covered transaction?
145.420 May I approve a transaction with an excluded or
disqualified person at a lower tier?
145.425 When do I check to see if a person is excluded or
disqualified?
145.430 How do I check to see if a person is excluded or
disqualified?
145.435 What must I require of a primary tier participant?
145.440 What method do I use to communicate Sec. 145.335
requirements to participants?
145.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
145.450 What action may I take if a primary tier participant fails
to disclose the information required under Sec. 145.330?
145.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 145.350 to the next higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From
Federal Procurement and Nonprocurement Programs
145.500 What is the purpose of the List?
145.505 Who uses the List?
145.510 Who maintains the List?
145.515 What specific information is on the List?
145.520 Who gives the GSA the information that it puts on the List?
145.525 Whom do I ask if I have questions about a person on the
List?
145.530 Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment
Actions
145.600 How do suspension and debarment actions start?
145.605 How does suspension differ from debarment?
145.610 What procedures does the SBA use in suspension and
debarment actions?
145.615 How does the SBA notify a person of suspension and
debarment actions?
145.620 Do Federal agencies coordinate suspension and debarment
actions?
145.625 What is the scope of a suspension or debarment action?
145.630 May the SBA impute the conduct of one person to another?
145.635 May the SBA settle a debarment or suspension action?
145.640 May a settlement include a voluntary exclusion?
145.645 Do other Federal agencies know if the SBA agrees to a
voluntary exclusion?
Subpart G--Suspension
145.700 When may the suspending official issue a suspension?
145.705 What does the suspending official consider in issuing a
suspension?
145.710 When does a suspension take effect?
145.715 What notice does the suspending official give me if I am
suspended?
145.720 How may I contest a suspension?
145.725 How much time do I have to contest a suspension?
145.730 What information must I provide to the suspending official
if I contest a suspension?
145.735 Under what conditions do I get an additional opportunity
to challenge the facts on which the suspension is based?
145.740 Are suspension proceedings formal?
145.745 Is a record made of fact-finding proceedings?
145.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
145.755 When will I know whether the suspension is continued or
terminated?
145.760 How long may my suspension last?
145.765 How may I appeal my suspension?
Subpart H--Debarment
145.800 What are the causes for debarment?
145.805 What notice does the debarring official give me if I am
proposed for debarment?
145.810 When does a debarment take effect?
145.815 How may I contest a proposed debarment?
145.820 How much time do I have to contest a proposed debarment?
145.825 What information must I provide to the debarring official
if I contest a proposed debarment?
145.830 Under what conditions do I get an additional opportunity
to challenge the facts on which the proposed debarment is based?
145.835 Are debarment proceedings formal?
145.840 Is a record made of fact-finding proceedings?
145.845 What does the debarring official consider in deciding
whether to debar me?
145.850 What is the standard of proof in a debarment action?
145.855 Who has the burden of proof in a debarment action?
145.860 What factors may influence the debarring official's
decision?
145.865 How long may my debarment last?
145.870 When do I know if the debarring official debars me?
145.875 May I ask the debarring official to reconsider a decision
to debar me?
145.880 What factors may influence the debarring official during
reconsideration?
145.885 May the debarring official extend a debarment?
145.890 How may I appeal my debarment?
Subpart I--Definitions
145.900 Adequate evidence.
145.905 Affiliate.
145.910 Agency.
145.915 Agent or representative.
145.920 Civil judgment.
145.925 Conviction.
145.930 Debarment.
145.935 Debarring official.
145.940 Disqualified.
145.945 Excluded or exclusion.
145.950 Indictment.
145.955 Ineligible or ineligibility.
145.960 Legal proceedings.
145.965 List of parties excluded or disqualified from federal
procurement and nonprocurement programs.
145.970 Nonprocurement transaction.
145.975 Notice.
145.980 Participant.
144.985 Person.
145.990 Preponderance of the evidence.
145.995 Principal.
145.1000 Respondent.
145.1005 State.
145.1010 Suspending official.
145.1015 Suspension.
145.1020 Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]
Appendix to Part 145--Covered Transactions
Authority: 5 U.S.C. 301 et seq.; 15 U.S.C. 631 et seq.; Sec.
2455, Pub. L. 103-355, 108 Stat. 3327 (31 U.S.C. 6101 note); E.O.
11738, 3 CFR, 1973 Comp., p. 799; E.O. 12549, 3 CFR, 1986 Comp., p.
189; E.O. 12689, 3 CFR, 1989 Comp., p. 235.
2. Part 145 is further amended as set forth below.
a. ``[Agency noun]'' is removed and the ``SBA'' is added in its
place wherever it occurs.
b. ``[Agency adjective]'' is removed and the ``SBA'' is added in
its place wherever it occurs.
c. ``[Agency head or designee]'' is removed and the ``SBA Debarring
Official'' is added in its place wherever it occurs.
3. Section 145.220 is further amended by adding a paragraph (d) to
read as follows:
Sec. 145.220 Are any procurement contracts included as covered
transactions?
* * * * *
(d) The contract is awarded by any contractor, subcontractor,
supplier, consultant or its agent or representative in any transaction,
regardless of tier, to be funded or provided by the SBA under a
nonprocurement transaction
[[Page 3299]]
that is expected to equal or exceed $25,000. (See optional lower tier
coverage shown in the diagram in the appendix to this part.)
4. Section 145.440 is added to read as follows:
Sec. 145.440 What method do I use to communicate Sec. 145.435
requirements to participants?
To communicate the requirements in Sec. 145.435 to participants,
you must include a term or condition in the transaction requiring the
participant's compliance with Subpart C of this part and requiring them
to include a similar term or condition in lower tier covered
transactions.
5. Section 145.765 is added to subpart G to read as follows:
Sec. 145.765 How may I appeal my suspension?
(a) If the SBA suspending official issues a decision under
Sec. 145.755 to continue your suspension after you present information
in opposition to that suspension under Sec. 145.720, you can ask for
review of the suspending official's decision in two ways:
(1) You may ask the suspending official to reconsider the decision
for material errors of fact or law that you believe will change the
outcome of the matter; and/or
(2) You may request that the SBA Office of Hearings and Appeals
(OHA), review the suspending official's decision to continue your
suspension within 30 days of your receipt of the suspending official's
decision under Sec. 145.755 or paragraph (a)(1) of this section.
However, OHA can reverse the suspending official's decision only where
OHA finds that the decision is based on a clear error of material fact
or law, or where OHA finds that the suspending official's decision was
arbitrary, capricious, or an abuse of discretion.
(b) A request for review under this section must be in writing;
state the specific findings you believe to be in error; and include the
reasons or legal bases for your position.
(c) OHA, in its discretion, may stay the suspension pending review
of the suspending official's decision.
(d) The SBA suspending official and OHA must notify you of their
decisions under this section, in writing, using the notice procedures
at Secs. 145.615 and 145.975.
6. Section 145.890 is added to subpart H to read as follows:
Sec. 145.890 How may I appeal my debarment?
(a) If the SBA debarring official issues a decision under
Sec. 145.870 to debar you after you present information in opposition
to a proposed debarment under Sec. 145.815, you can ask for review of
the debarring official's decision in two ways:
(1) You may ask the debarring official to reconsider the decision
for material errors of fact or law that you believe will change the
outcome of the matter; and/or
(2) You may request that the SBA Office of Hearings and Appeals
(OHA), review the debarring official's decision to debar you within 30
days of your receipt of the debarring official's decision under
Sec. 145.870 or paragraph (a)(1) of this section. However, OHA can
reverse the debarring official's decision only where OHA finds that the
decision is based on a clear error of material fact or law, or where
OHA finds that the debarring official's decision was arbitrary,
capricious, or an abuse of discretion.
(b) A request for review under this section must be in writing;
state the specific findings you believe to be in error; and include the
reasons or legal bases for your position.
(c) OHA may, in its discretion, stay the debarment pending review
of the debarring official's decision.
(d) The SBA debarring official and OHA must notify you of their
decisions under this section, in writing, using the notice procedures
at Secs. 145.615 and 145.975.
7. Section 145.935 is further amended by adding a paragraph (b) to
read as follows:
Sec. 145.935 Debarring official.
* * * * *
(b) For SBA, the suspending official for financial assistance
programs means the Assistant Administrator for Financial Assistance;
for all other programs, the suspending official means the Assistant
Administrator for Administration.
8. Section 145.995 is further amended by adding a paragraph (c) to
read as follows:
Sec. 145.995 Principal.
* * * * *
(c) Other examples of individuals who are principals in SBA covered
transactions include:
(1) Principal investigators.
(2) Securities brokers and dealers under the section 7(a) Loan,
Certified Development Company (CDC) and Small Business Investment
Company (SBIC) programs.
(3) Applicant representatives under the section 7(a) Loan,
Certified Development Company (CDC), Small Business Investment Company
(SBIC), Small Business Development Center (SBDC), and section 7(j)
programs.
(4) Providers of professional services under section 7(a) Loan,
Certified Development Company (CDC), Small Business Investment Company
(SBIC), Small Business Development Center (SBDC), and section 7(j)
programs.
(5) Individuals that certify, authenticate or authorize billings.
9. Section 145.1010 is further amended by adding a paragraph (b) to
read as follows:
Sec. 145.1010 Suspending official.
* * * * *
(b) For SBA, the debarring official for financial assistance
programs means the Assistant Administrator for Financial Assistance;
for all other programs, the debarring official means the Assistant
Administrator for Administration.
10. Part 147 is added to read as set forth in instruction 2 at the
end of the common preamble.
PART 147--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE
(NONPROCUREMENT)
Subpart A--Purpose and Coverage
Sec.
147.100 What does this part do?
147.105 Does this part apply to me?
147.110 Are any of my Federal assistance awards exempt from this
part?
147.115 Does this part affect the Federal contracts that I
receive?
Subpart B--Requirements for Recipients Other Than Individuals
147.200 What must I do to comply with this part?
147.205 What must I include in my drug-free workplace statement?
147.210 To whom must I distribute my drug-free workplace
statement?
147.215 What must I include in my drug-free awareness program?
147.220 By when must I publish my drug-free workplace statement
and establish my drug-free awareness program?
147.225 What actions must I take concerning employees who are
convicted of drug violations in the workplace?
147.230 How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
147.300 What must I do to comply with this part if I am an
individual recipient?
147.301 [Reserved]
Subpart D--Responsibilities of SBA Awarding Officials
147.400 What are my responsibilities as an SBA awarding official?
Subpart E--Violations of This Part and Consequences
147.500 How are violations of this part determined for recipients
other than individuals?
[[Page 3300]]
147.505 How are violations of this part determined for recipients
who are individuals?
147.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
147.515 Are there any exceptions to those actions?
Subpart F--Definitions
147.605 Award.
147.610 Controlled substance.
147.615 Conviction.
147.620 Cooperative agreement.
147.625 Criminal drug statute.
147.630 Debarment.
147.635 Drug-free workplace.
147.640 Employee.
147.645 Federal agency or agency.
147.650 Grant.
147.655 Individual.
147.660 Recipient.
147.665 State.
147.670 Suspension.
Authority: 41 U.S.C. 701-707.
11. Part 147 is further amended as set forth below.
a. ``[Agency noun]'' is removed and the ``SBA'' is added in its
place wherever it occurs.
b. ``[Agency adjective]'' is removed and the ``SBA'' is added in
its place wherever it occurs.
c. ``[Agency head or designee]'' is removed and the ``SBA
Administrator or designee'' is added in its place wherever it occurs.
d. ``[Agency head]'' is removed and the ``SBA Administrator'' is
added in its place wherever it occurs.
12. Section 147.510(c) is further amended by removing ``[CFR
citation for the Federal Agency's regulations implementing Executive
Order 12549 and Executive Order 12689]'' and adding ``13 CFR part 145''
in its place.
13. Section 147.605(a)(2) is amended by removing ``[Agency specific
CFR citation]'' and adding ``13 CFR part 147'' in its place.
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
14 CFR Parts 1265 and 1267
RIN 2700-AC43
FOR FURTHER INFORMATION CONTACT: Diane Thompson, NASA Headquarters,
Office of Procurement, Analysis Division (Code HC), Washington, DC
20456-0001, (202) 358-0514, e-mail: diane.thompson@hq.nasa.gov.
List of Subjects
14 CFR Part 1265
Administrative practice and procedure, Debarment and suspension,
Grant programs, Reporting and recordkeeping requirements.
14 CFR Part 1267
Administrative practice and procedure, Drug abuse, Grant programs,
Reporting and recordkeeping requirements.
Anne Guenther,
Acting Associate Administrator for Procurement.
For the reasons stated in the common preamble, the National
Aeronautics and Space Administration proposes to amend 14 CFR chapter V
as follows:
1. Part 1265 is revised to read as set forth in instruction 1 at
the end of the common preamble.
PART 1265--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
Sec.
1265.25 How is this part organized?
1265.50 How is this part written?
1265.75 Do terms in this part have special meanings?
Subpart A--General
1265.100 What does this part do?
1265.105 Does this part apply to me?
1265.110 What is the purpose of the nonprocurement debarment and
suspension system?
1265.115 How does an exclusion restrict a person's involvement in
covered transactions?
1265.120 May we grant an exception to let an excluded person
participate in a covered transaction?
1265.125 Does an exclusion under the nonprocurement system affect
a person's eligibility to participate in Federal procurement
contracts?
1265.130 Does an exclusion under the Federal procurement system
affect a person's eligibility to participate in nonprocurement
transactions?
1265.135 May NASA exclude a person who is not currently
participating in a nonprocurement transaction?
1265.140 How do I know if a person is excluded?
1265.145 Does this part cover persons who are disqualified as well
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
1265.200 What is a covered transaction?
1265.205 Why is it important to know if a particular transaction
is a covered transaction?
1265.210 Which nonprocurement transactions are covered
transactions?
1265.215 Which nonprocurement transactions are not covered
transactions?
1265.220 Are any procurement contracts included as covered
transactions?
1265.225 How do I know if a transaction that I may participate in
is a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
1265.300 May I enter into a covered transaction with an excluded
or disqualified person?
1265.305 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
1265.310 May I use the services of an excluded person under a
covered transaction?
1265.315 Must I verify that principals of my covered transactions
are eligible to participate?
1265.320 What happens if I do business with an excluded person in
a covered transaction?
1265.325 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Disclosing Information Primary Tier Participants
1265.330 What information must I provide before entering into a
covered transaction with NASA?
1265.335 If I disclose unfavorable information required under
Sec. 1265.330 will I be prevented from entering into the
transaction?
1265.340 What happens if I fail to disclose the information
required under Sec. 1265.330?
1265.345 What must I do if I learn of the information required
under Sec. 1265.330 after entering into a covered transaction with
NASA?
Disclosing Information--Lower Tier Participants
1265.350 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
1265.355 What happens if I fail to disclose the information
required under Sec. 1265.350?
1265.360 What must I do if I learn of information required under
Sec. 1265.350 after entering into a covered transaction with a
higher tier participant?
Subpart D--Responsibilities of NASA Officials Regarding Transactions
1265.400 May I enter into a transaction with an excluded or
disqualified person?
1265.405 May I enter into a covered transaction with a participant
if a principal of the transaction is excluded?
1265.410 May I approve a participant's use of the services of an
excluded person?
1265.415 What must I do if a Federal agency excludes the
participant or a principal after I enter into a covered transaction?
1265.420 May I approve a transaction with an excluded or
disqualified person at a lower tier?
1265.425 When do I check to see if a person is excluded or
disqualified?
1265.430 How do I check to see if a person is excluded or
disqualified?
1265.435 What must I require of a primary tier participant?
[[Page 3301]]
1265.440 What method do I use to communicate those requirements to
participants?
1265.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
1265.450 What action may I take if a primary tier participant
fails to disclose the information required under Sec. 1265.330?
1265.455 What may I do if a lower tier participant fails to
disclose the information required under Sec. 1265.350 to the next
higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From
Federal Procurement and Nonprocurement Programs
1265.500 What is the purpose of the List?
1265.505 Who uses the List?
1265.510 Who maintains the List?
1265.515 What specific information is on the List?
1265.520 Who gives the GSA the information that it puts on the
List?
1265.525 Whom do I ask if I have questions about a person on the
List?
1265.530 Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment
Actions
1265.600 How do suspension and debarment actions start?
1265.605 How does suspension differ from debarment?
1265.610 What procedures does NASA use in suspension and debarment
actions?
1265.615 How does NASA notify a person of suspension and debarment
actions?
1265.620 Do Federal agencies coordinate suspension and debarment
actions?
1265.625 What is the scope of a suspension or debarment action?
1265.630 May NASA impute the conduct of one person to another?
1265.635 May NASA settle a debarment or suspension action?
1265.640 May a settlement include a voluntary exclusion?
1265.645 Do other Federal agencies know if NASA agrees to a
voluntary exclusion?
Subpart G--Suspension
1265.700 When may the suspending official issue a suspension?
1265.705 What does the suspending official consider in issuing a
suspension?
1265.710 When does a suspension take effect?
1265.715 What notice does the suspending official give me if I am
suspended?
1265.720 How may I contest a suspension?
1265.725 How much time do I have to contest a suspension?
1265.730 What information must I provide to the suspending
official if I contest a suspension?
1265.735 Under what conditions do I get an additional opportunity
to challenge the facts on which the suspension is based?
1265.740 Are suspension proceedings formal?
1265.745 Is a record made of fact-finding proceedings?
1265.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
1265.755 When will I know whether the suspension is continued or
terminated?
1265.760 How long may my suspension last?
1265.765 How may I appeal my suspension?
Subpart H--Debarment
1265.800 What are the causes for debarment?
1265.805 What notice does the debarring official give me if I am
proposed for debarment?
1265.810 When does a debarment take effect?
1265.815 How may I contest a proposed debarment?
1265.820 How much time do I have to contest a proposed debarment?
1265.825 What information must I provide to the debarring official
if I contest a proposed debarment?
1265.830 Under what conditions do I get an additional opportunity
to challenge the facts on which the proposed debarment is based?
1265.835 Are debarment proceedings formal?
1265.840 Is a record made of fact-finding proceedings?
1265.845 What does the debarring official consider in deciding
whether to debar me?
1265.850 What is the standard of proof in a debarment action?
1265.855 Who has the burden of proof in a debarment action?
1265.860 What factors may influence the debarring official's
decision?
1265.865 How long may my debarment last?
1265.870 When do I know if the debarring official debars me?
1265.875 May I ask the debarring official to reconsider a decision
to debar me?
1265.880 What factors may influence the debarring official during
reconsideration?
1265.885 May the debarring official extend a debarment?
1265.890 How may I appeal my debarment?
Subpart I--Definitions
1265.900 Adequate evidence.
1265.905 Affiliate.
1265.910 Agency.
1265.915 Agent or representative.
1265.920 Civil judgment.
1265.925 Conviction.
1265.930 Debarment.
1265.935 Debarring official.
1265.940 Disqualified.
1265.945 Excluded or exclusion.
1265.950 Indictment.
1265.955 Ineligible or ineligibility.
1265.960 Legal proceedings.
1265.965 List of Parties Excluded or Disqualified From Federal
Procurement and Nonprocurement Programs.
1265.970 Nonprocurement transaction.
1265.975 Notice.
1265.980 Participant.
1265.985 Person.
1265.990 Preponderance of the evidence.
1265.995 Principal.
1265.1000 Respondent.
1265.1005 State.
1265.1010 Suspending official.
1265.1015 Suspension.
1265.1020 Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]
Appendix to Part 1265--Covered Transactions
Authority: Sec. 2455, Pub. L. 103-355, 108 Stat. 3327 (31 U.S.C.
6101 note); E.O. 11738, 3 CFR, 1973 Comp., p. 799; E.O. 12549, 3
CFR, 1986 Comp., p. 189; E.O. 12689, 3 CFR, 1989 Comp., p. 235; 42
U.S.C. 2473(c)(1).
2. Part 1265 is further amended as set forth below.
a. ``The [Agency noun]'' is removed and ``NASA'' is added in its
place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``NASA'' is added in its
place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``Associate
Administrator for Procurement'' is added in its place wherever it
occurs.
3. Section 1265.440 is added to read as follows:
Sec. 1265.440 What method do I use to communicate the requirements to
participants?
To communicate the requirements to participants, you must include a
term or condition in the transaction requiring the participant's
compliance with Subpart C of this part and requiring them to include a
similar term or condition in lower tier covered transactions.
4. Part 1267 is added to read as set forth in instruction 2 at the
end of the common preamble.
PART 1267--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE
(FINANCIAL ASSISTANCE)
Subpart A--Purpose and Coverage
Sec.
1267.100 What does this part do?
1267.105 Does this part apply to me?
1267.110 Are any of my Federal assistance awards exempt from this
part?
1267.115 Does this part affect the Federal contracts that I
receive?
Subpart B--Requirements for Recipients Other Than Individuals
1267.200 What must I do to comply with this part?
1267.205 What must I include in my drug-free workplace statement?
1267.210 To whom must I distribute my drug-free workplace
statement?
1267.215 What must I include in my drug-free awareness program?
[[Page 3302]]
1267.220 By when must I publish my drug-free workplace statement
and establish my drug-free awareness program?
1267.225 What actions must I take concerning employees who are
convicted of drug violations in the workplace?
1267.230 How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
1267.300 What must I do to comply with this part if I am an
individual recipient?
1267.301 [Reserved]
Subpart D--Responsibilities of NASA Awarding Officials
1267.400 What are my responsibilities as a NASA awarding official?
Subpart E--Violations of This Part and Consequences
1267.500 How are violations of this part determined for recipients
other than individuals?
1267.505 How are violations of this part determined for recipients
who are individuals?
1267.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
1267.515 Are there any exceptions to those actions?
Subpart F--Definitions
1267.605 Award.
1267.610 Controlled substance.
1267.615 Conviction.
1267.620 Cooperative agreement.
1267.625 Criminal drug statute.
1267.630 Debarment.
1267.635 Drug-free workplace.
1267.640 Employee.
1267.645 Federal agency or agency.
1267.650 Grant.
1267.655 Individual.
1267.660 Recipient.
1267.665 State.
1267.670 Suspension.
Authority: 41 U.S.C. 701 et seq.; 42 U.S.C. 2473c.
5. Part 1267 is further amended as set forth below.
a. ``The [Agency noun]'' is removed and ``NASA'' is added in its
place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``NASA'' is added in its
place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``Associate
Administrator for Procurement'' is added in its place wherever it
occurs.
d. ``[Agency head]'' is removed and ``Associate Administrator for
Procurement'' is added in its place wherever it occurs.
6. Section 1267.510(c) is further amended by removing ``[CFR
citation for the Federal Agency's regulations implementing Executive
Order 12549 and Executive Order 12689]'' and adding ``14 CFR part
1265'' in its place.
7. Section 1267.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``14 CFR part 1273'' in its place.
DEPARTMENT OF COMMERCE
15 CFR Parts 26 and 29
[Docket No. 950601145-5145-01]
RIN 0605-AA02
FOR FURTHER INFORMATION CONTACT: Elizabeth L. Dorfman, Office of
Executive Assistance Management, U.S. Department of Commerce, 14th
Street and Constitution Avenue, NW., Room HCHB 6022, Washington, DC
20230, 202-482-4115, e-mail: EDorfman@doc.gov.
ADDITIONAL SUPPLEMENTARY INFORMATION: The Department of Commerce (DoC)
proposes this amendment to the governmentwide common rules on debarment
and suspension (nonprocurement) and requirements for drug-free
workplace (financial assistance). The DoC will maintain uniform
procedures that are consistent with those of other Executive
Departments and Agencies. The DoC has reviewed its programs and
determined that those identified at Sec. 26.215 (d), (f) and (g) are
excluded from coverage under the debarment and suspension regulations.
The DoC has elected to add paragraph (d) in Sec. 26.220 so that the
coverage of Sec. 26.220 (a) is extended to one additional tier of
contracts. As specified in Sec. 26.440, DoC will use a term or
condition as a means to communicate requirements to participants.
List of Subjects
15 CFR Part 26
Administrative practice and procedure, Debarment and suspension,
Grant programs, Reporting and recordkeeping requirements.
15 CFR Part 29
Administrative practice and procedure, Drug abuse, Grant programs,
Reporting and recordkeeping requirements.
Approved: June 4, 2001.
Robert F. Kugelman,
Director, Office of Executive Budgeting and Assistance Management,
Department of Commerce.
Accordingly, as set forth in the common preamble, 15 CFR subtitle A
is proposed to be amended as follows:
1. Part 26 is revised to read as set forth in instruction 1 at the
end of the common preamble.
PART 26--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
Sec.
26.25 How is this part organized?
26.50 How is this part written?
26.75 Do terms in this part have special meanings?
Subpart A--General
26.100 What does this part do?
26.105 Does this part apply to me?
26.110 What is the purpose of the nonprocurement debarment and
suspension system?
26.115 How does an exclusion restrict a person's involvement in
covered transactions?
26.120 May we grant an exception to let an excluded person
participate in a covered transaction?
26.125 Does an exclusion under the nonprocurement system affect a
person's eligibility to participate in Federal procurement
contracts?
26.130 Does an exclusion under the Federal procurement system
affect a person's eligibility to participate in nonprocurement
transactions?
26.135 May the Department of Commerce exclude a person who is not
currently participating in a nonprocurement transaction?
26.140 How do I know if a person is excluded?
26.145 Does this part cover persons who are disqualified as well as
those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
26.200 What is a covered transaction?
26.205 Why is it important to know if a particular transaction is a
covered transaction?
26.210 Which nonprocurement transactions are covered transactions?
26.215 Which nonprocurement transactions are not covered
transactions?
26.220 Are any procurement contracts included as covered
transactions?
26.225 How do I know if a transaction that I may participate in is
a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
26.300 May I enter into a covered transaction with an excluded or
disqualified person?
26.305 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
26.310 May I use the services of an excluded person under a covered
transaction?
26.315 Must I verify that principals of my covered transactions are
eligible to participate?
26.320 What happens if I do business with an excluded person in a
covered transaction?
[[Page 3303]]
26.325 What requirements must I pass down to persons at lower tiers
with whom I intend to do business?
Disclosing Information--Primary Tier Participants
26.330 What information must I provide before entering into a
covered transaction with the Department of Commerce?
26.335 If I disclose unfavorable information required under
Sec. 26.330 will I be prevented from entering into the transaction?
26.340 What happens if I fail to disclose the information required
under Sec. 26.330?
26.345 What must I do if I learn of the information required under
Sec. 26.330 after entering into a covered transaction with the
Department of Commerce?
Disclosing information--Lower Tier Participants
26.350 What information must I provide to a higher tier participant
before entering into a covered transaction with that participant?
26.355 What happens if I fail to disclose the information required
under Sec. 26.350?
26.360 What must I do if I learn of information required under
Sec. 26.350 after entering into a covered transaction with a higher
tier participant?
Subpart D--Responsibilities of DoC Officials Regarding Transactions
26.400 May I enter into a transaction with an excluded or
disqualified person?
26.405 May I enter into a covered transaction with a participant if
a principal of the transaction is excluded?
26.410 May I approve a participant's use of the services of an
excluded person?
26.415 What must I do if a Federal agency excludes the participant
or a principal after I enter into a covered transaction?
26.420 May I approve a transaction with an excluded or disqualified
person at a lower tier?
26.425 When do I check to see if a person is excluded or
disqualified?
26.430 How do I check to see if a person is excluded or
disqualified?
26.435 What must I require of a primary tier participant?
26.440 What method do I use to communicate those requirements to
participants?
26.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
26.450 What action may I take if a primary tier participant fails
to disclose the information required under Sec. 26.330?
26.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 26.350 to the next higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From
Federal Procurement and Nonprocurement Programs
26.500 What is the purpose of the List?
26.505 Who uses the List?
26.510 Who maintains the List?
26.515 What specific information is on the List?
26.520 Who gives the GSA the information that it puts on the List?
26.525 Whom do I ask if I have questions about a person on the
List?
26.530 Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment
Actions
26.600 How do suspension and debarment actions start?
26.605 How does suspension differ from debarment?
26.610 What procedures does the Department of Commerce use in
suspension and debarment actions?
26.615 How does the Department of Commerce notify a person of
suspension and debarment actions?
26.620 Do Federal agencies coordinate suspension and debarment
actions?
26.625 What is the scope of a suspension or debarment action?
26.630 May the Department of Commerce impute the conduct of one
person to another?
26.635 May the Department of Commerce settle a debarment or
suspension action?
26.640 May a settlement include a voluntary exclusion?
26.645 Do other Federal agencies know if the Department of Commerce
agrees to a voluntary exclusion?
Subpart G--Suspension
26.700 When may the suspending official issue a suspension?
26.705 What does the suspending official consider in issuing a
suspension?
26.710 When does a suspension take effect?
26.715 What notice does the suspending official give me if I am
suspended?
26.720 How may I contest a suspension?
26.725 How much time do I have to contest a suspension?
26.730 What information must I provide to the suspending official
if I contest a suspension?
26.735 Under what conditions do I get an additional opportunity to
challenge the facts on which the suspension is based?
26.740 Are suspension proceedings formal?
26.745 Is a record made of fact-finding proceedings?
26.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
26.755 When will I know whether the suspension is continued or
terminated?
26.760 How long may my suspension last?
Subpart H--Debarment
26.800 What are the causes for debarment?
26.805 What notice does the debarring official give me if I am
proposed for debarment?
26.810 When does a debarment take effect?
26.815 How may I contest a proposed debarment?
26.820 How much time do I have to contest a proposed debarment?
26.825 What information must I provide to the debarring official if
I contest a proposed debarment?
26.830 Under what conditions do I get an additional opportunity to
challenge the facts on which the proposed debarment is based?
26.835 Are debarment proceedings formal?
26.840 Is a record made of fact-finding proceedings?
26.845 What does the debarring official consider in deciding
whether to debar me?
26.850 What is the standard of proof in a debarment action?
26.855 Who has the burden of proof in a debarment action?
26.860 What factors may influence the debarring official's
decision?
26.865 How long may my debarment last?
26.870 When do I know if the debarring official debars me?
26.875 May I ask the debarring official to reconsider a decision to
debar me?
26.880 What factors may influence the debarring official during
reconsideration?
26.885 May the debarring official extend a debarment?
Subpart I--Definitions
26.900 Adequate evidence.
26.905 Affiliate.
26.910 Agency.
26.915 Agent or representative.
26.920 Civil judgment.
26.925 Conviction.
26.930 Debarment
26.935 Debarring official.
26.940 Disqualified.
26.945 Excluded or exclusion.
26.950 Indictment.
26.955 Ineligible or ineligibility.
26.960 Legal proceedings.
26.965 List of Parties Excluded or Disqualified From Federal
Procurement and Nonprocurement Programs.
26.970 Nonprocurement transaction.
26.975 Notice.
26.980 Participant
26.985 Person.
26.990 Preponderance of the evidence.
26.995 Principal.
26.1000 Respondent.
26.1005 State.
26.1010 Suspending official.
26.1015 Suspension.
26.1020 Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]
Appendix to Part 26--Covered Transactions
Authority: 5 U.S.C. 301; Sec. 2455, Pub. L. 103-355, 108 Stat.
3327 (31 U.S.C. 6101 note); E.O. 12549 (3 CFR, 1986 Comp., p. 189);
E.O. 12689 (3 CFR, 1989 Comp., p. 235).
2. Part 26 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``Department of Commerce'' is
added in its place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``DoC'' is added in its
place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``Director, Office
of Executive Budgeting and Assistance Management'' is added in its
place wherever it occurs.
[[Page 3304]]
3. Section 26.215 is amended as follows:
a. Add paragraph (d)(1) and add and reserve paragraph (d)(2).
b. Add paragraph (f)(1) and add and reserve paragraph (f)(2).
c. Add paragraph (g)(1) and add and reserve paragraph (g)(2).
The additions read as follows:
Sec. 26.215 Which nonprocurement transactions are not covered
transactions?
* * * * *
(d) * * *
(1) Fisherman's Contingency Fund
(2) [Reserved]
* * * * *
(f) * * *
(1) For purposes of the DoC this means:
(i) Export Promotion, Trade Information and Counseling, and Trade
Policy.
(ii) Geodetic Surveys and Services (Specialized Services).
(iii) Fishery Products Inspection Certification.
(iv) Standard Reference Materials.
(v) Calibration, Measurement and Testing.
(vi) Critically Evaluated Data (Standard Reference Data).
(vii) Phoenix Data System.
(viii) The sale or provision of products, information, and services
to the general public.
(2) [Reserved]
(g) * * *
(1) For purposes of the DoC this means:
(i) The Administration of the Antidumping and Countervailing Duty
Statutes.
(ii) The Export Trading Company Act Certificate of Review Program.
(iii) Trade Adjustment Assistance Program Certification.
(iv) Foreign Trade Zones Act of 1934, as amended.
(v) Statutory Import Program.
(2) [Reserved]
4. Section 26.220 is amended to add paragraph (d) to read as
follows:
Sec. 26.220 Are any procurement contracts included as covered
transactions?
* * * * *
(d) The contract is a subcontract awarded by a participant in a
procurement transaction that is covered under paragraph (a) of this
section, and the amount of the contract exceeds or is expected to
exceed $25,000. This extends the coverage of paragraph (a) of this
section to one additional tier of contracts, as shown in the diagram in
the Appendix to this part.
5. Section 26.440 is added to read as follows:
Sec. 26.440 What method do I use to communicate those requirements to
participants?
To communicate the requirements to participants, you must include a
term or condition in the transaction requiring the participants'
compliance with Subpart C of this part and requiring them to include a
similar term or condition in lower-tier covered transactions.
6. Section 26.970 is amended to add paragraphs (a)(12) through
(a)(16) to read as follows:
Sec. 26.970 Nonprocurement transaction.
(a) * * *
(12) Joint Project Agreements under 15 U.S.C. 1525.
(13) Cooperative research and development agreements.
(14) Joint statistical agreements.
(15) Patent licenses under 35 U.S.C. 207.
(16) NTIS joint ventures, 15 U.S.C. 3704b.
* * * * *
7. Part 29 is added to read as set forth in instruction 2 at the
end of the common preamble.
PART 29--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE
(FINANCIAL ASSISTANCE)
Subpart A--Purpose and Coverage
29.100 What does this part do?
29.105 Does this part apply to me?
29.110 Are any of my Federal assistance awards exempt from this
part?
29.115 Does this part affect the Federal contracts that I receive?
Subpart B--Requirements for Recipients Other Than Individuals
29.200 What must I do to comply with this part?
29.205 What must I include in my drug-free workplace statement?
29.210 To whom must I distribute my drug-free workplace statement?
29.215 What must I include in my drug-free awareness program?
29.220 By when must I publish my drug-free workplace statement and
establish my drug-free awareness program?
29.225 What actions must I take concerning employees who are
convicted of drug violations in the workplace?
29.230 How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who are Individuals
29.300 What must I do to comply with this part if I am an
individual recipient?
29.301 [Reserved]
Subpart D--Responsibilities of DoC Awarding Officials
29.400 What are my responsibilities as a DoC awarding official?
Subpart E--Violations of This Part and Consequences
29.500 How are violations of this part determined for recipients
other than individuals?
29.505 How are violations of this part determined for recipients
who are individuals?
29.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
29.515 Are there any exceptions to those actions?
Subpart F--Definitions
29.605 Award.
29.610 Controlled substance.
29.615 Conviction.
29.620 Cooperative agreement.
29.625 Criminal drug statute.
29.630 Debarment.
29.635 Drug-free workplace.
29.640 Employee.
29.645 Federal agency or agency.
29.650 Grant.
29.655 Individual.
29.660 Recipient.
29.665 State.
29.670 Suspension.
Authority: 5 U.S.C. 301; 41 U.S.C. 701 et seq.
8. Part 29 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``Department of Commerce'' is
added in its place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``DoC'' is added in its
place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``Director, Office
of Executive Budgeting and Assistance Management is added in its place
wherever it occurs.
d. ``[Agency head]'' is removed and ``Secretary of Commerce'' is
added in its place wherever it occurs.
9. Section 29.510(c) is further amended by removing ``[CFR citation
for the Federal agency's regulations implementing Executive Order 12549
and Executive Order 12689]'' and adding ``15 CFR part 26'' in its
place.
10. Section 29.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``15 CFR part 24'' in its place.
SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 436 and 439
RIN 0096-AE27
FOR FURTHER INFORMATION CONTACT: Phyllis Y. Smith, Grants Management
Officer, Office of Acquisition and Grants, Grants Management Team, 1710
Gwynn Oak Ave Baltimore, MD 21207, (410) 965-9518, e-mail:
phyllis.y.smith@ssa.gov.
ADDITIONAL SUPPLEMENTARY INFORMATION: Prior to March 31, 1995, SSA was
an
[[Page 3305]]
operating component of the Department of Health and Human Services
(HHS). As a result of Public Law 103-296, the Social Security
Administration (SSA) became an independent agency on March 31, 1995.
However, pursuant to section 106(b) of that law, the HHS regulations at
45 CFR part 76 dealing with nonprocurement, debarment and suspension,
and the requirements for a drug-free workplace have remained applicable
to SSA. In order to implement its own set of regulations on these
topics, SSA proposes to adopt the common rules on nonprocurement,
debarment and suspension, and requirements for a drug-free workplace
with one amendment as new parts 436 and 439 in title 20 of the Code of
Federal Regulations. HHS regulations at 45 CFR part 76 will cease to be
applicable to SSA on the effective date of these regulations, in
accordance with section 106(b) of Pub. L. 103-296. Under the proposed
amendment, Sec. 436.440 would use terms or conditions to the award
transaction as a means to enforce exclusions under SSA transactions
rather than written certifications. This alternative available under
the common rule is more efficient than SSA's current certification
process for prospective recipients and participants.
Paperwork Reduction Act
SSA will clear separately the reporting and recordkeeping
requirements in proposed 20 CFR parts 436 and 439 in accordance with
the requirements of 44 U.S.C. chapter 35 prior to effectuating its own
rules incorporating the proposed common rule. When effective, the
proposed SSA rules will not actually impose any additional reporting or
recordkeeping burden on the public since SSA has been following the
requirements in the HHS rules in 45 CFR part 76 that were in effect on
March 31, 1995, the date SSA became an independent agency, and SSA is
making no substantive changes to those requirements. However, clearance
is necessary to reflect that adoption of the common rule as a final
rule by SSA will transfer from HHS to SSA the authority for the
reporting and recordkeeping requirements SSA has been imposing on the
public under the HHS rules.
List of Subjects
20 CFR Part 436
Administrative practice and procedures, Debarment and suspension,
Grant programs, and reporting and Recordkeeping requirements.
20 CFR Part 439
Administrative practice and procedure, Drug abuse, Grant programs,
Reporting and record keeping requirements.
Larry G. Massanari,
Acting Commissioner of Social Security.
For the reasons stated in the common preamble, we propose to amend
chapter III of title 20 of the Code of Federal Regulations as follows:
1. Part 436 is added to read as set forth in instruction 1 at the
end of the common preamble.
PART 436--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
Sec.
436.25 How is this part organized?
436.50 How is this part written?
436.75 Do terms in this part have special meanings?
Subpart A--General
436.100 What does this part do?
436.105 Does this part apply to me?
436.110 What is the purpose of the nonprocurement debarment and
suspension system?
436.115 How does an exclusion restrict a person's involvement in
covered transactions?
436.120 May we grant an exception to let an excluded person
participate in a covered transaction?
436.125 Does an exclusion under the nonprocurement system affect a
person's eligibility to participate in Federal procurement
contracts?
436.130 Does an exclusion under the Federal procurement system
affect a person's eligibility to participate in nonprocurement
transactions?
436.135 May the SSA exclude a person who is not currently
participating in a nonprocurement transaction?
436.140 How do I know if a person is excluded?
436.145 Does this part cover persons who are disqualified as well
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
436.200 What is a covered transaction?
436.205 Why is it important to know if a particular transaction is
a covered transaction?
436.210 Which nonprocurement transactions are covered transactions?
436.215 Which nonprocurement transactions are not covered
transactions?
436.220 Are any procurement contracts included as covered
transactions?
436.225 How do I know if a transaction that I may participate in is
a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
436.300 May I enter into a covered transaction with an excluded or
disqualified person?
436.305 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
436.310 May I use the services of an excluded person under a
covered transaction?
436.315 Must I verify that principals of my covered transactions
are eligible to participate?
436.320 What happens if I do business with an excluded person in a
covered transaction?
436.325 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Disclosing Information--Primary Tier Participants
436.330 What information must I provide before entering into a
covered transaction with the SSA?
436.335 If I disclose unfavorable information required under
Sec. 436.330, will I be prevented from entering into the
transaction?
436.340 What happens if I fail to disclose the information
required under Sec. 436.330?
436.345 What must I do if I learn of information required under
Sec. 436.330 after entering into a covered transaction with the SSA?
Disclosing Information--Lower Tier Participants
436.350 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
436.355 What happens if I fail to disclose the information
required under Sec. 436.350?
436.360 What must I do if I learn of information required under
Sec. 436.350 after entering into a covered transaction with a higher
tier participant?
Subpart D--Responsibilities of SSA Officials Regarding Transactions
436.400 May I enter into a transaction with an excluded or
disqualified person?
436.405 May I enter into a covered transaction with a participant
if a principal of the transaction is excluded?
436.410 May I approve a participant's use of the services of an
excluded person?
436.415 What must I do if a Federal agency excludes the
participant or a principal after I enter into a covered transaction?
436.420 May I approve a transaction with an excluded or
disqualified person at a lower tier?
436.425 When do I check to see if a person is excluded or
disqualified?
436.430 How do I check to see if a person is excluded or
disqualified?
436.435 What must I require of a primary tier participant?
[[Page 3306]]
436.440 What method do I use to communicate those requirements to
participants?
436.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
436.450 What action may I take if a primary tier participant fails
to disclose the information required under Sec. 436.330?
436.455 What may I do if a lower tier participant fails to
disclose the information required under Sec. 436.350 to the next
higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From
Federal Procurement and Nonprocurement Programs
436.500 What is the purpose of the List?
436.505 Who uses the List?
436.510 Who maintains the List?
436.515 What specific information is on the List?
436.520 Who gives the GSA the information that it puts on the
List?
436.525 Whom do I ask if I have questions about a person on the
List?
436.530 Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment
Actions
436.600 How do suspension and debarment actions start?
436.605 How does suspension differ from debarment?
436.610 What procedures does the SSA use in suspension and
debarment actions?
436.615 How does the SSA notify a person of suspension and
debarment actions?
436.620 Do Federal agencies coordinate suspension and debarment
actions?
436.625 What is the scope of a suspension or debarment action?
436.630 May the SSA impute the conduct of one person to another?
436.635 May the SSA settle a debarment or suspension action?
436.640 May a settlement include a voluntary exclusion?
436.645 Do other Federal agencies know if the SSA agrees to a
voluntary exclusion?
Subpart G--Suspension
436.700 When may the suspending official issue a suspension?
436.705 What does the suspending official consider in issuing a
suspension?
436.710 When does a suspension take effect?
436.715 What notice does the suspending official give me if I am
suspended?
436.720 How may I contest a suspension?
436.725 How much time do I have to contest a suspension?
436.730 What information must I provide to the suspending official
if I contest a suspension?
436.735 Under what conditions do I get an additional opportunity
to challenge the facts on which the suspension is based?
436.740 Are suspension proceedings formal?
436.745 Is a record made of fact-finding proceedings?
436.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
436.755 When will I know whether the suspension is continued or
terminated?
436.760 How long may my suspension last?
Subpart H--Debarment
436.800 What are the causes for debarment?
436.805 What notice does the debarring official give me if I am
proposed for debarment?
436.810 When does a debarment take effect?
436.815 How may I contest a proposed debarment?
436.820 How much time do I have to contest a proposed debarment?
436.825 What information must I provide to the debarring official
if I contest a proposed debarment?
436.830 Under what conditions do I get an additional opportunity
to challenge the facts on which the proposed debarment is based?
436.835 Are debarment proceedings formal?
436.840 Is a record made of fact-finding proceedings?
436.845 What does the debarring official consider in deciding
whether to debar me?
436.850 What is the standard of proof in a debarment action?
436.855 Who has the burden of proof in a debarment action?
436.860 What factors may influence the debarring official's
decision?
436.865 How long may my debarment last?
436.870 When do I know if the debarring official debars me?
436.875 May I ask the debarring official to reconsider a decision
to debar me?
436.880 What factors may influence the debarring official during
reconsideration?
436.885 May the debarring official extend a debarment?
Subpart I--Definitions
436.900 Adequate evidence.
436.905 Affiliate.
436.910 Agency.
436.915 Agent or representative.
436.920 Civil judgment.
436.925 Conviction.
436.930 Debarment.
436.935 Debarring official.
436.940 Disqualified.
436.945 Excluded or exclusion.
436.950 Indictment.
436.955 Ineligible or ineligibility.
436.960 Legal proceedings.
436.965 List of Parties Excluded or Disqualified from Federal
Procurement and Nonprocurement Programs.
436.970 Nonprocurement transaction.
436.975 Notice.
436.980 Participant.
436.985 Person.
436.990 Preponderance of the evidence.
436.995 Principal.
436.1000 Respondent.
436.1005 State.
436.1010 Suspending official.
436.1015 Suspension.
436.1020 Voluntary exclusion or voluntarily excluded
Subpart J [Reserved]
Appendix to Part 436--Covered Transactions
Authority: 42 U.S.C. 902(a)(5); 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).
2. Part 436 is further amended as follows:
a. ``[Agency noun]'' is removed and ``SSA'' is added in its place
wherever it occurs.
b. ``[Agency adjective]'' is removed and ``SSA'' is added in its
place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``SSA Debarring/
Suspension Official'' is added in its place wherever it occurs.
3. Section 436.440 is added to read as follows:
Sec. 436.440 What method do I use to communicate those requirements to
participants?
To communicate the requirements to participants, you must include a
term or condition in the transaction requiring the participant's
compliance with subpart C of this part and requiring them to include a
similar term or condition in lower tier covered transactions.
4. Part 439 is added to read as set forth in instruction 2 at the
end of the common preamble.
PART 439--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE
(FINANCIAL ASSISTANCE)
Subpart A--Purpose and Coverage
Sec.
439.100 What does this part do?
439.105 Does this part apply to me?
439.110 Are any of my Federal assistance awards exempt from this
part?
439.115 Does this part affect the Federal contracts that I
receive?
Subpart B--Requirements for Recipients Other Than Individuals
439.200 What must I do to comply with this part?
439.205 What must I include in my drug-free workplace statement?
439.210 To whom must I distribute my drug-free workplace
statement?
439.215 What must I include in my drug-free awareness program?
439.220 By when must I publish my drug-free workplace statement
and establish my drug-free awareness program?
439.225 What actions must I take concerning employees who are
convicted of drug violations in the workplace?
439.230 How and when must I identify workplaces?
[[Page 3307]]
Subpart C--Requirements for Recipients who are Individuals
439.300 What must I do to comply with this part if I am an
individual recipient?
439.301 [Reserved]
Subpart D--Responsibilities of SSA Awarding Officials
439.400 What are my responsibilities as an SSA awarding official?
Subpart E--Violations of This Part and Consequences
439.500 How are violations of this part determined for recipients
other than individuals?
439.505 How are violations of this part determined for recipients
who are individuals?
439.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
439.515 Are there any exceptions to those actions?
Subpart F--Definitions
439.605 Award.
439.610 Controlled substance.
439.615 Conviction.
439.620 Cooperative agreement.
439.625 Criminal drug statute.
439.630 Debarment.
439.635 Drug-free workplace.
439.640 Employee.
439.645 Federal agency or agency.
439.650 Grant.
439.655 Individual.
439.660 Recipient.
439.665 State.
439.670 Suspension.
Authority: 41 U.S.C. 701 et seq; 42 U.S.C. 902(a)(5).
5. Part 439 is further amended as follows:
a. ``[Agency noun]'' is removed and ``the SSA'' is added in its
place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``SSA'' is added in its
place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``SSA Official or
designee'' is added in its place wherever it occurs.
d. ``[Agency head]'' is removed and ``the Commissioner of SSA'' is
added in its place wherever it occurs.
6. Section 439.510(c) is further amended by removing ``[CFR
citation for the Federal Agency's regulations implementing Executive
Order 12549 and Executive Order 12689]''and adding ``20 CFR part 436''
in its place.
7. Section 439.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]''and adding ``45 CFR part 92'' in its place.
OFFICE OF NATIONAL DRUG CONTROL POLICY
21 CFR Parts 1404 and 1405
RIN 3201-ZA02
FOR FURTHER INFORMATION CONTACT: ONDCP, Attn: Daniel R. Petersen,
Washington, DC 20503, (202) 395-6745, Daniel_R._Petersen@ondcp.eop.gov.
List of Subjects
21 CFR Part 1404
Administrative practice and procedure, Debarment and suspension,
Grant programs, Reporting and recordkeeping requirements.
21 CFR Part 1405
Administrative practice and procedure, Drug abuse, Grant programs,
Reporting and recordkeeping requirements.
Edward H. Jurith,
Acting Director.
Accordingly, as set forth in the common preamble, 21 CFR chapter
III is proposed to be amended as follows.
1. Part 1404 is revised to read as set forth in instruction 1 at
the end of the common preamble.
PART 1404--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
Sec.
1404.25 How is this part organized?
1404.50 How is this part written?
1404.75 Do terms in this part have special meanings?
Subpart A--General
1404.100 What does this part do?
1404.105 Does this part apply to me?
1404.110 What is the purpose of the nonprocurement debarment and
suspension system?
1404.115 How does an exclusion restrict a person's involvement in
covered transactions?
1404.120 May we grant an exception to let an excluded person
participate in a covered transaction?
1404.125 Does an exclusion under the nonprocurement system affect a
person's eligibility to participate in Federal procurement
contracts?
1404.130 Does an exclusion under the Federal procurement system
affect a person's eligibility to participate in nonprocurement
transactions?
1404.135 May the Office of National Drug Control Policy exclude a
person who is not currently participating in a nonprocurement
transaction?
1404.140 How do I know if a person is excluded?
1404.145 Does this part cover persons who are disqualified as well
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
1404.200 What is a covered transaction?
1404.205 Why is it important to know if a particular transaction is
a covered transaction?
1404.210 Which nonprocurement transactions are covered
transactions?
1404.215 Which nonprocurement transactions are not covered
transactions?
1404.220 Are any procurement contracts included as covered
transactions?
1404.225 How do I know if a transaction that I may participate in
is a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
1404.300 May I enter into a covered transaction with an excluded or
disqualified person?
1404.305 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
1404.310 May I use the services of an excluded person under a
covered transaction?
1404.315 Must I verify that principals of my covered transactions
are eligible to participate?
1404.320 What happens if I do business with an excluded person in a
covered transaction?
1404.325 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Disclosing Information--Primary Tier Participants
1404.330 What information must I provide before entering into a
covered transaction with the Office of National Drug Control Policy.
1404.335 If I disclose unfavorable information required under
Sec. 1404.330 will I be prevented from entering into the
transaction?
1404.340 What happens if I fail to disclose the information
required under Sec. 1404.330?
1404.345 What must I do if I learn of the information required
under Sec. 1404.330 after entering into a covered transaction with
the Office of National Drug Control Policy?
Disclosing Information--Lower Tier Participants
1404.350 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
1404.355 What happens if I fail to disclose the information
required under Sec. 1404.350?
1404.360 What must I do if I learn of information required under
Sec. 1404.350 after entering into a covered transaction with a
higher tier participant?
Subpart D--Responsibilities of Office of National Drug Control Policy
Officials Regarding Transactions
1404.400 May I enter into a transaction with an excluded or
disqualified person?
[[Page 3308]]
1404.405 May I enter into a covered transaction with a participant
if a principal of the transaction is excluded?
1404.410 May I approve a participant's use of the services of an
excluded person?
1404.415 What must I do if a Federal agency excludes the
participant or a principal after I enter into a covered transaction?
1404.420 May I approve a transaction with an excluded or
disqualified person at a lower tier?
1404.425 When do I check to see if a person is excluded or
disqualified?
1404.430 How do I check to see if a person is excluded or
disqualified?
1404.435 What must I require of a primary tier participant?
1404.440 What method do I use to communicate to participants the
requirements in Sec. 1404.435?
1404.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
1404.450 What action may I take if a primary tier participant fails
to disclose the information required under Sec. 1404.330?
1404.455 What may I do if a lower tier participant fails to
disclose the information required under Sec. 1404.350 to the next
higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From
Federal Procurement and Nonprocurement Programs
1404.500 What is the purpose of the List?
1404.505 Who uses the List?
1404.510 Who maintains the List?
1404.515 What specific information is on the List?
1404.520 Who gives the GSA the information that it puts on the
List?
1404.525 Whom do I ask if I have questions about a person on the
List?
1404.530 Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment
Actions
1404.600 How do suspension and debarment actions start?
1404.605 How does suspension differ from debarment?
1404.610 What procedures does the Office of National Drug Control
Policy use in suspension and debarment actions?
1404.615 How does the Office of National Drug Control Policy notify
a person of suspension and debarment actions?
1404.620 Do Federal agencies coordinate suspension and debarment
actions?
1404.625 What is the scope of a suspension or debarment action?
1404.630 May the Office of National Drug Control Policy impute the
conduct of one person to another?
1404.635 May the Office of National Drug Control Policy settle a
debarment or suspension action?
1404.640 May a settlement include a voluntary exclusion?
1404.645 Do other Federal agencies know if the Office of National
Drug Control Policy agrees to a voluntary exclusion?
Subpart G--Suspension
1404.700 When may the suspending official issue a suspension?
1404.705 What does the suspending official consider in issuing a
suspension?
1404.710 When does a suspension take effect?
1404.715 What notice does the suspending official give me if I am
suspended?
1404.720 How may I contest a suspension?
1404.725 How much time do I have to contest a suspension?
1404.730 What information must I provide to the suspending
official if I contest a suspension?
1404.735 Under what conditions do I get an additional opportunity
to challenge the facts on which the suspension is based?
1404.740 Are suspension proceedings formal?
1404.745 Is a record made of fact-finding proceedings?
1404.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
1404.755 When will I know whether the suspension is continued or
terminated?
1404.760 How long may my suspension last?
Subpart H--Debarment
1404.800 What are the causes for debarment?
1404.805 What notice does the debarring official give me if I am
proposed for debarment?
1404.810 When does a debarment take effect?
1404.815 How may I contest a proposed debarment?
1404.820 How much time do I have to contest a proposed debarment?
1404.825 What information must I provide to the debarring official
if I contest a proposed debarment?
1404.830 Under what conditions do I get an additional opportunity
to challenge the facts on which the proposed debarment is based?
1404.835 Are debarment proceedings formal?
1404.840 Is a record made of fact-finding proceedings?
1404.845 What does the debarring official consider in deciding
whether to debar me?
1404.850 What is the standard of proof in a debarment action?
1404.855 Who has the burden of proof in a debarment action?
1404.860 What factors may influence the debarring official's
decision?
1404.865 How long may my debarment last?
1404.870 When do I know if the debarring official debars me?
1404.875 May I ask the debarring official to reconsider a decision
to debar me?
1404.880 What factors may influence the debarring official during
reconsideration?
1404.885 May the debarring official extend a debarment?
Subpart I--Definitions
1404.900 Adequate evidence.
1404.905 Affiliate.
1404.910 Agency.
1404.915 Agent or representative.
1404.920 Civil judgment.
1404.925 Conviction.
1404.930 Debarment
1404.935 Debarring official.
1404.940 Disqualified.
1404.945 Excluded or exclusion.
1404.950 Indictment.
1404.955 Ineligible or ineligibility.
1404.960 Legal proceedings.
1404.965 List of Parties Excluded or Disqualified From Federal
Procurement and Nonprocurement Programs.
1404.970 Nonprocurement transaction.
1404.975 Notice.
1404.980 Participant.
1404.985 Person.
1404.990 Preponderance of the evidence.
1404.995 Principal.
1404.1000 Respondent.
1404.1005 State.
1404.1010 Suspending official.
1404.1015 Suspension.
1404.1020 Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]
Appendix to Part 1404--Covered Transactions
Authority: 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); 21 U.S.C. 1701.
2. Part 1404 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``Office of National Drug
Control Policy'' is added in its place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``Office of National Drug
Control Policy'' is added in its place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``Director of
National Drug Control Policy'' is added in its place wherever it
occurs.
3. Section 1404.440 is added to read as follows:
Sec. 1404.440 What method do I use to communicate to participants the
requirements in Sec. 1404.435?
You must obtain certifications from participants that they will
comply with Subpart C of this part and that they will obtain similar
certifications from lower-tier participants.
4. Part 1405 is added to read as set forth in instruction 2 at the
end of the common preamble.
PART 1405--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE
(FINANCIAL ASSISTANCE)
Subpart A--Purpose and Coverage
1405.100 What does this part do?
1405.105 Does this part apply to me?
1405.110 Are any of my Federal assistance awards exempt from this
part?
[[Page 3309]]
1405.115 Does this part affect the Federal contracts that I
receive?
Subpart B--Requirements for Recipients Other than Individuals
1405.200 What must I do to comply with this part?
1405.205 What must I include in my drug-free workplace statement?
1405.210 To whom must I distribute my drug-free workplace
statement?
1405.215 What must I include in my drug-free awareness program?
1405.220 By when must I publish my drug-free workplace statement
and establish my drug-free awareness program?
1405.225 What actions must I take concerning employees who are
convicted of drug violations in the workplace?
1405.230 How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
1405.300 What must I do to comply with this part if I am an
individual recipient?
1405.301 [Reserved]
Subpart D--Responsibilities of Office of National Drug Control Policy
Awarding Officials
1405.400 What are my responsibilities as an Office of National
Drug Control Policy awarding official?
Subpart E--Violations of This Part and Consequences
1405.500 How are violations of this part determined for recipients
other than individuals?
1405.505 How are violations of this part determined for recipients
who are individuals?
1405.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
1405.515 Are there exceptions to those actions?
Subpart F--Definitions
1405.605 Award.
1405.610 Controlled substance.
1405.615 Conviction.
1405.620 Cooperative agreement.
1405.625 Criminal drug statute.
1405.630 Debarment.
1405.635 Drug-free workplace.
1405.640 Employee.
1405.645 Federal agency or agency.
1405.650 Grant.
1405.655 Individual.
1405.660 Recipient.
1405.665 State.
1405.670 Suspension.
Authority: 21 U.S.C. 1701; 41 U.S.C. 701, et seq.
5. Part 1405 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``Office of National Drug
Control Policy'' is added in its place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``Office of National Drug
Control Policy'' is added in its place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``Director of
National Drug Control Policy'' is added in its place wherever it
occurs.
d. ``[Agency head]'' is removed and ``Director of National Drug
Control Policy'' is added in its place wherever it occurs.
6. Section 1405.510(c) is further amended by removing ``[CFR
citation for the Federal Agency's regulations implementing Executive
Order 12549 and Executive Order 12689]'' and adding ``21 CFR part
1404'' in its place.
7. Section 1405.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``21 CFR part 1403'' in its place.
DEPARTMENT OF STATE
22 CFR Parts 133 and 137
RIN 1400-AB-33
FOR FURTHER INFORMATION CONTACT: Gladys Gines, Procurement Analyst,
Policy Division, Office of the Procurement Executive, U.S. Department
of State, Washington, DC 20522, (703) 516-1691.
List of Subjects
22 CFR Part 133
Administrative practice and procedure, Drug abuse, Grant programs,
Reporting and recordkeeping requirements.
22 CFR Part 137
Administrative practice and procedure, Debarment and suspension,
Grant programs, Reporting and recordkeeping requirements.
Approved: August 17, 2001.
Lloyd W. Pratsch,
Procurement Executive, Department of State.
Accordingly, as set forth in the common preamble, the Department of
State proposes to amend 22 CFR chapter I, as follows:
1. Part 133 is added to read as set forth in instruction 2 at the
end of the common preamble.
PART 133--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE
(FINANCIAL ASSISTANCE)
Subpart A--Purpose and Coverage
133.100 What does this part do?
133.105 Does this part apply to me?
133.110 Are any of my Federal assistance awards exempt from this
part?
133.115 Does this part affect the Federal contracts that I receive?
Subpart B--Requirements for Recipients Other Than Individuals
133.200 What must I do to comply with this part?
133.205 What must I include in my drug-free workplace statement?
133.210 To whom must I distribute my drug-free workplace statement?
133.215 What must I include in my drug-free awareness program?
133.220 By when must I publish my drug-free workplace statement and
establish my drug-free awareness program?
133.225 What actions must I take concerning employees who are
convicted of drug violations in the workplace?
133.230 How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
133.300 What must I do to comply with this part if I am an
individual recipient?
133.301 [Reserved]
Subpart D--Responsibilities of Department of State Awarding Officials
133.400 What are my responsibilities as a Department of State
awarding official?
Subpart E--Violations of This Part and Consequences
133.500 How are violations of this part determined for recipients
other than individuals?
133.505 How are violations of this part determined for recipients
who are individuals?
133.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
133.515 Are there any exceptions to those actions?
Subpart F--Definitions
133.605 Award.
133.610 Controlled substance.
133.615 Conviction.
133.620 Cooperative agreement.
133.625 Criminal drug statute.
133.630 Debarment.
133.635 Drug-free workplace.
133.640 Employee.
133.645 Federal agency or agency.
133.650 Grant.
133.655 Individual.
133.660 Recipient.
133.665 State.
133.670 Suspension.
Authority: 22 U.S.C. 2658; 41 U.S.C. 701, et seq.
2. Part 133 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``Department of State'' is
added in its place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``Department of State'' is
added in its place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``Procurement
Executive'' is added in its place wherever it occurs.
d. ``[Agency head]'' is removed and ``Procurement Executive'' is
added in its place wherever it occurs.
3. Section 133.510(c) is further amended by removing ``[CFR
citation for the Federal Agency's regulations
[[Page 3310]]
implementing Executive Order 12549 and Executive Order 12689]'' and
adding ``22 CFR part 137'' in its place.
4. Section 133.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``22 CFR part 135'' in its place.
5. Part 137 is revised to read as set forth in instruction 1 at the
end of the common preamble.
PART 137--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
137.25 How is this part organized?
137.50 How is this part written?
137.75 Do terms in this part have special meanings?
Subpart A--General
137.100 What does this part do?
137.105 Does this part apply to me?
137.110 What is the purpose of the nonprocurement debarment and
suspension system?
137.115 How does an exclusion restrict a person's involvement in
covered transactions?
137.120 May we grant an exception to let an excluded person
participate in a covered transaction?
137.125 Does an exclusion under the nonprocurement system affect a
person's eligibility to participate in Federal procurement
contracts?
137.130 Does an exclusion under the Federal procurement system
affect a person's eligibility to participate in nonprocurement
transactions?
137.135 May the Department of State exclude a person who is not
currently participating in a nonprocurement transaction?
137.140 How do I know if a person is excluded?
137.145 Does this part cover persons who are disqualified as well
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
137.200 What is a covered transaction?
137.205 Why is it important to know if a particular transaction is
a covered transaction?
137.210 Which nonprocurement transactions are covered transactions?
137.215 Which nonprocurement transactions are not covered
transactions?
137.220 Are any procurement contracts included as covered
transactions?
137.225 How do I know if a transaction that I may participate in is
a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
137.300 May I enter into a covered transaction with an excluded or
disqualified person?
137.305 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
137.310 May I use the services of an excluded person under a
covered transaction?
137.315 Must I verify that principals of my covered transactions
are eligible to participate?
137.320 What happens if I do business with an excluded person in a
covered transaction?
137.325 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Disclosing Information Primary Tier Participants
137.330 What information must I provide before entering into a
covered transaction with the Department of State?
137.335 If I disclose unfavorable information required under
Sec. 137.330 will I be prevented from entering into the transaction?
137.340 What happens if I fail to disclose the information required
under Sec. 137.330?
137.345 What must I do if I learn of the information required under
Sec. 137.330 after entering into a covered transaction with the
Department of State?
Disclosing Information--Lower Tier Participants
137.350 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
137.355 What happens if I fail to disclose the information required
under Sec. 137.350?
137.360 What must I do if I learn of information required under
Sec. 137.350 after entering into a covered transaction with a higher
tier participant?
Subpart D--Responsibilities of Department of State Officials Regarding
Transactions
137.400 May I enter into a transaction with an excluded or
disqualified person?
137.405 May I enter into a covered transaction with a participant
if a principal of the transaction is excluded?
137.410 May I approve a participant's use of the services of an
excluded person?
137.415 What must I do if a Federal agency excludes the participant
or a principal after I enter into a covered transaction?
137.420 May I approve a transaction with an excluded or
disqualified person at a lower tier?
137.425 When do I check to see if a person is excluded or
disqualified?
137.430 How do I check to see if a person is excluded or
disqualified?
137.435 What must I require of a primary tier participant?
137.440 What method do I use to communicate those requirements to
participants?
137.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
137.450 What action may I take if a primary tier participant fails
to disclose the information required under Sec. 137.330?
137.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 137.350 to the next higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified from
Federal Procurement and Nonprocurement Programs
137.500 What is the purpose of the List?
137.505 Who uses the List?
137.510 Who maintains the List?
137.515 What specific information is on the List?
137.520 Who gives the GSA the information that it puts on the List?
137.525 Whom do I ask if I have questions about a person on the
List?
137.530 Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment
Actions
137.600 How do suspension and debarment actions start?
137.605 How does suspension differ from debarment?
137.610 What procedures does the Department of State use in
suspension and debarment actions?
137.615 How does the Department of State notify a person of
suspension and debarment actions?
137.620 Do Federal agencies coordinate suspension and debarment
actions?
137.625 What is the scope of a suspension or debarment action?
137.630 May the Department of State impute the conduct of one
person to another?
137.635 May the Department of State settle a debarment or
suspension action?
137.640 May a settlement include a voluntary exclusion?
137.645 Do other Federal agencies know if the Department of State
agrees to a voluntary exclusion?
Subpart G--Suspension
137.700 When may the suspending official issue a suspension?
137.705 What does the suspending official consider in issuing a
suspension?
137.710 When does a suspension take effect?
137.715 What notice does the suspending official give me if I am
suspended?
137.720 How may I contest a suspension?
137.725 How much time do I have to contest a suspension?
137.730 What information must I provide to the suspending official
if I contest a suspension?
137.735 Under what conditions do I get an additional opportunity
to challenge the facts on which the suspension is based?
137.740 Are suspension proceedings formal?
137.745 Is a record made of fact-finding proceedings?
137.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
137.755 When will I know whether the suspension is continued or
terminated?
137.760 How long may my suspension last?
[[Page 3311]]
Subpart H--Debarment
137.800 What are the causes for debarment?
137.805 What notice does the debarring official give me if I am
proposed for debarment?
137.810 When does a debarment take effect?
137.815 How may I contest a proposed debarment?
137.820 How much time do I have to contest a proposed debarment?
137.825 What information must I provide to the debarring official
if I contest a proposed debarment?
137.830 Under what conditions do I get an additional opportunity
to challenge the facts on which the proposed debarment is based?
137.835 Are debarment proceedings formal?
137.840 Is a record made of fact-finding proceedings?
137.845 What does the debarring official consider in deciding
whether to debar me?
137.850 What is the standard of proof in a debarment action?
137.855 Who has the burden of proof in a debarment action?
137.860 What factors may influence the debarring official's
decision?
137.865 How long may my debarment last?
137.870 When do I know if the debarring official debars me?
137.875 May I ask the debarring official to reconsider a decision
to debar me?
137.880 What factors may influence the debarring official during
reconsideration?
137.885 May the debarring official extend a debarment?
Subpart I--Definitions
137.900 Adequate evidence.
137.905 Affiliate.
137.910 Agency.
137.915 Agent or representative.
137.920 Civil judgment.
137.925 Conviction.
137.930 Debarment.
137.935 Debarring official.
137.940 Disqualified.
137.945 Excluded or exclusion.
137.950 Indictment.
137.955 Ineligible or ineligibility.
137.960 Legal proceedings.
137.965 List of Parties Excluded or Disqualified From Federal
Procurement and Nonprocurement Programs.
137.970 Nonprocurement transaction.
137.975 Notice.
137.980 Participant.
137.985 Person.
137.990 Preponderance of the evidence.
137.995 Principal.
137.1000 Respondent.
137.1005 State.
137.1010 Suspending official.
137.1015 Suspension.
137.1020 Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]
Appendix to Part 137--Covered Transactions
Authority: 22 U.S.C. 2658; sec. 2455, Pub. L. 103-355, 108 Stat.
3327 (31 U.S.C. 6101 note); E.O. 12549, 3 CFR 1986 Comp., p. 189;
E.O. 12689, 3 CFR 1989 Comp., p. 235.
6. Part 137 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``Department of State'' is
added in its place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``Department of State'' is
added in its place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``Procurement
Executive'' is added in its place wherever it occurs.
7. Section 137.440 is added to read as follows:
Sec. 137.440 What method do I use to communicate those requirements to
participants?
To communicate the requirement to participants, you must include a
term or condition in the transaction requiring the participant's
compliance with Subpart C of this part and requiring them to include a
similar term or condition in lower tier covered transactions.
AGENCY FOR INTERNATIONAL DEVELOPMENT
22 CFR Parts 208 and 210
RIN 0412-AA47
FOR FURTHER INFORMATION CONTACT: Kathleen J. O'Hara, M/OP/OD, 1300
Pennsylvania Avenue, NW, Washington, DC 20523-7900, (202) 712-4759.
ADDITIONAL SUPPLEMENTARY INFORMATION: USAID has determined not to
require written certifications from awardees or persons with whom they
propose to enter into covered transactions. In order to clarify that
transactions such as host country contracts and procurements under
Commodity Import Programs that USAID finances, but does not award, are
covered by this regulation, USAID is adding a sentence to the
definition of primary covered transactions in 208.110(a)(1)(i).
List of Subjects
22 CFR Part 208
Administrative practice and procedure, Debarment and suspension,
Grant programs, Reporting and recordkeeping requirements.
22 CFR Part 210
Administrative practice and procedure, Drug abuse, Grant programs,
Reporting and recordkeeping requirements.
Dated: June 11, 2001.
Mark S. Ward,
Director, Office of Procurement.
Accordingly, as set forth in the common preamble, 22 CFR chapter II
is proposed to be amended as follows:
1. Part 208 is revised to read as set forth in instruction 1 at the
end of the common preamble.
PART 208--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
Sec.
208.25 How is this part organized?
208.50 How is this part written?
208.75 Do terms in this part have special meanings?
Subpart A--General
208.100 What does this part do?
208.105 Does this part apply to me?
208.110 What is the purpose of the nonprocurement debarment and
suspension systems?
208.115 How does an exclusion restrict a person's involvement in
covered transactions?
208.120 May we grant an exception to let an excluded person
participate in a covered transaction?
208.125 Does an exclusion under the nonprocurement system affect a
person's eligibility to participate in Federal procurement
contracts?
208.130 Does an exclusion under the Federal procurement system
affect a person's eligibility to participate in nonprocurement
transactions?
208.135 May the U.S. Agency for International Development exclude
a person who is not currently participating in a nonprocurement
transaction?
208.140 How do I know if a person is excluded?
208.145 Does this part cover persons who are disqualified as well
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
208.200 What is a covered transaction?
208.205 Why is it important to know if a particular transaction is
a covered transaction?
208.210 Which nonprocurement transactions are covered
transactions?
208.215 Which nonprocurement transactions are not covered
transactions?
208.220 Are any procurement contracts included as covered
transactions?
208.225 How do I know if a transaction that I may participate in
is a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
208.300 May I enter into a covered transaction with an excluded
or disqualified person?
208.305 What must I do if a Federal agency excludes a person with
whom I am
[[Page 3312]]
already doing business in a covered transaction?
208.310 May I use the services of an excluded person under a
covered transaction?
208.315 Must I verify that principals of my covered transactions
are eligible to participate?
208.320 What happens if I do business with an excluded person in a
covered transaction?
208.325 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Disclosing Information--Primary Tier Participants
208.330 What information must I provide before entering into a
covered transaction with the U.S. Agency for International
Development.
208.335 If I disclose unfavorable information required under
Sec. 208.330 will I be prevented from entering into the transaction?
208.340 What happens if I fail to disclose the information
required under Sec. 208.330?
208.345 What must I do if I learn of the information required
under Sec. 208.330 after entering into a covered transaction with
the U.S. Agency for International Development?
Disclosing Information--Lower Tier Participants
208.350 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
208.355 What happens if I fail to disclose the information required
under Sec. 208.350?
208.360 What must I do if I learn of information required under
Sec. 208.350 after entering into a covered transaction with a higher
tier participant?
Subpart D--Responsibilities of USAID Officials Regarding Transactions
208.400 May I enter into a transaction with an excluded or
disqualified person?
208.405 May I enter into a covered transaction with a participant
if a principal of the transaction is excluded?
208.410 May I approve a participant's use of the services of an
excluded person?
208.415 What must I do if a Federal agency excludes the participant
or a principal after I enter into a covered transaction?
208.420 May I approve a transaction with an excluded or
disqualified person at a lower tier?
208.425 When do I check to see if a person is excluded or
disqualified?
208.430 How do I check to see if a person is excluded or
disqualified?
208.435 What must I require of a primary tier participant?
208.440 What method do I use to communicate requirements to
participants?
208.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
208.450 What action may I take if a primary tier participant fails
to disclose the information required under Sec. 208.330?
208.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 208.350 to the next higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From
Federal Procurement and Nonprocurement Programs
208.500 What is the purpose of the List?
208.505 Who uses the List?
208.510 Who maintains the List?
208.515 What specific information is on the List?
208.520 Who gives the GSA the information that it puts on the List?
208.525 Whom do I ask if I have questions about a person on the
List?
208.530 Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment
Actions
208.600 How do suspension and debarment actions start?
208.605 How does suspension differ from debarment?
208.610 What procedures does the U.S. Agency for International
Development use in suspension and debarment actions?
208.615 How does the U.S. Agency for International Development
notify a person of suspension and debarment actions?
208.620 Do Federal agencies coordinate suspension and debarment
actions?
208.625 What is the scope of a suspension or debarment action?
208.630 May the U.S. Agency for International Development impute
the conduct of one person to another?
208.635 May the U.S. Agency for International Development settle a
debarment or suspension action?
208.640 May a settlement include a voluntary exclusion?
208.645 Do other Federal agencies know if the U.S. Agency for
International Development agrees to a voluntary exclusion?
Subpart G--Suspension
208.700 When may the suspending official issue a suspension?
208.705 What does the suspending official consider in issuing a
suspension?
208.710 When does a suspension take effect?
208.715 What notice does the suspending official give me if I am
suspended?
208.720 How may I contest a suspension?
208.725 How much time do I have to contest a suspension?
208.730 What information must I provide to the suspending official
if I contest a suspension?
208.735 Under what conditions do I get an additional opportunity to
challenge the facts on which the suspension is based?
208.740 Are suspension proceedings formal?
208.745 Is a record made of fact-finding proceedings?
208.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
208.755 When will I know whether the suspension is continued or
terminated?
208.760 How long may my suspension last?
Subpart H--Debarment
208.800 What are the causes for debarment?
208.805 What notice does the debarring official give me if I am
proposed for debarment?
208.810 When does a debarment take effect?
208.815 How may I contest a proposed debarment?
208.820 How much time do I have to contest a proposed debarment?
208.825 What information must I provide to the debarring official
if I contest a proposed debarment?
208.830 Under what conditions do I get an additional opportunity to
challenge the facts on which the proposed debarment is based?
208.835 Are debarment proceedings formal?
208.840 Is a record made of fact-finding proceedings?
208.845 What does the debarring official consider in deciding
whether to debar me?
208.850 What is the standard of proof in a debarment action?
208.855 Who has the burden of proof in a debarment action?
208.860 What factors may influence the debarring official's
decision?
208.865 How long may my debarment last?
208.870 When do I know if the debarring official debars me?
208.875 May I ask the debarring official to reconsider a decision
to debar me?
208.880 What factors may influence the debarring official during
reconsideration?
208.885 May the debarring official extend a debarment?
Subpart I--Definitions
208.900 Adequate evidence.
208.905 Affiliate.
208.910 Agency.
208.915 Agent or representative.
208.920 Civil judgment.
208.925 Conviction.
208.930 Debarment.
208.935 Debarring official.
208.940 Disqualified.
208.945 Excluded or exclusion.
208.950 Indictment.
208.955 Ineligible or ineligibility.
208.960 Legal proceedings.
208.965 List of Parties Excluded or Disqualified From Federal
Procurement and Nonprocurement Programs.
208.970 Nonprocurement transaction.
208.975 Notice.
208.980 Participant.
208.985 Person.
208.990 Preponderance of the evidence.
208.995 Principal.
208.1000 Respondent.
208.1005 State.
208.1010 Suspending official.
208.1015 Suspension.
208.1020 Voluntary exclusion or voluntarily excluded.
[[Page 3313]]
Subpart J [Reserved]
Appendix to Part 208--Covered Transactions
Authority: E.O. 12163, 3 CFR 1979 Comp., p. 435; E.O. 12549 3
CFR 1986 Comp., p. 189; E.O. 12698, 3 CFR 1989 Comp., p. 235; sec.
2455, Pub. L. 103-355, 108 Stat. 3327 (31 U.S.C. 6101 note); sec.
621, Pub. L. 87-195, 75 Stat. 445 (22 U.S.C. 2381), as amended.
2. Part 208 is further amended as set forth below.
a. ``[Agency Noun]'' is removed and ``U.S. Agency for International
Development'' is added in its place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``USAID'' is added in its
place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``Director, Office
of Procurement'' is added in its place wherever it occurs.
3. Section 208.440 is added to read as follows:
Sec. 208.440 What method do I use to communicate requirements in
Sec. 208.35 to participants?
To communicate the requirements in Sec. 208.35, you must include a
term or condition in the transaction requiring the participants'
compliance with Subpart C of this part and requiring them to include a
similar term or condition in lower-tier covered transactions.
4. Section 208.935 is further amended by adding paragraph (b) to
read as follows:
Sec. 208.935 Debarring official.
* * * * *
(b) The U.S. Agency for International Development's debarring
official is the Director of the Office of Procurement.
5. Section 208.1010 is further amended by adding paragraph (b) to
read as follows:
Sec. 208.1010 Suspending official.
* * * * *
(b) The U.S. Agency for International Development's suspending
official is the Director of the Office of Procurement.
6. Part 210 is added to read as set forth in instruction 2 at the
end of the common preamble.
PART 210--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE
(FINANCIAL ASSISTANCE)
Subpart A--Purpose and Coverage
Sec.
210.100 What does this part do?
210.105 Does this part apply to me?
210.110 Are any of my Federal assistance awards exempt from this
part?
210.115 Does this part affect the Federal contracts that I receive?
Subpart B--Requirements for Recipients Other Than Individuals
210.200 What must I do to comply with this part?
210.205 What must I include in my drug-free workplace statement?
210.210 To whom must I distribute my drug-free workplace statement?
210.215 What must I include in my drug-free awareness program?
210.220 By when must I publish my drug-free workplace statement and
establish my drug-free awareness program?
210.225 What actions must I take concerning employees who are
convicted of drug violations in the workplace?
210.230 How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
210.300 What must I do to comply with this part if I am an
individual recipient?
210.301 [Reserved]
Subpart D--Responsibilities of USAID Awarding Officials
210.400 What are my responsibilities as a USAID awarding official?
Subpart E--Violations of This Part and Consequences
210.500 How are violations of this part determined for recipients
other than individuals?
210.505 How are violations of this part determined for recipients
who are individuals?
210.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
210.515 Are there any provisions for exceptions to those actions?
Subpart F--Definitions
210.605 Award.
210.610 Controlled substance.
210.615 Conviction.
210.620 Cooperative agreement.
210.625 Criminal drug statute.
210.630 Debarment.
210.635 Drug-free workplace.
210.640 Employee.
210.645 Federal agency or agency.
210.650 Grant.
210.655 Individual.
210.660 Recipient.
210.665 State.
210.670 Suspension.
Authority: 41 U.S.C. 701, et seq.; sec. 621, Pub. L. 87-195, 75
Stat. 445 (22 U.S.C. 2381), as amended; E.O. 12163, 3 CFR 1979
Comp., p. 435.
7. Part 210 is further amended as set forth below.
a. ``[Agency Noun]'' is removed and ``U.S. Agency for International
Development'' is added in its place wherever it occurs.
b. ``[Agency Adjective]'' is removed and ``USAID'' is added in its
place wherever it occurs.
c. ``[Agency Head or Designee]'' is removed and ``Director of the
Office of Procurement'' is added in its place wherever it occurs.
d. ``[Agency head]'' is removed and ``USAID Administrator or
designee'' is added in its place wherever it occurs.
8. Section 210.510(c) is further amended by removing ``[CFR
citation for the Federal Agency's regulation implementing Executive
Order 12549 and Executive Order 12689]'' and adding ``22 CFR part 208''
in its place.
9. Section 210.605 is further amended by adding a paragraph (c) to
read as follows:
Sec. 210.605 Award.
* * * * *
(c) Notwithstanding paragraph (a)(2) of this section, this
paragraph is not applicable to AID.
PEACE CORPS
22 CFR Parts 310 and 312
RIN 0420-AA17
FOR FURTHER INFORMATION CONTACT: Ruth L. Ramsey, Acting General
Counsel, Office of the General Counsel, Peace Corps, 1111 20th Street,
NW, Washington, DC 20526, (202) 692-2150.
ADDITIONAL SUPPLEMENTARY INFORMATION: This part proposes in
Sec. 310.440 to use terms or conditions to the award transaction as a
means to enforce exclusions under Peace Corps transactions rather than
written certifications. This alternative available under the common
rule is more efficient than the Peace Corps' current certification
process for prospective recipients and participants.
In addition, the requirements for maintaining a drug-free workplace
are being removed as a subpart in the current debarment and suspension
common rule, and are proposed to be re-codified as a separate part 312.
List of Subjects
22 CFR Part 310
Administrative practice and procedure, Government contracts, Grant
programs, Loan programs, Reporting and recordkeeping requirements,
Technical assistance.
22 CFR Part 312
Administrative practice and procedure, Drug abuse, Grant programs,
Reporting and recordkeeping requirements.
[[Page 3314]]
Dated: August 22, 2001.
Michael J. Kole,
Director, Office of Administrative Services, Peace Corps.
For the reasons stated in the common preamble, the Peace Corps
proposes to amend 22 CFR chapter III, as follows:
1. Part 310 is revised to read as set forth in instruction 1 at the
end of the common preamble.
PART 310--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
Sec.
310.25 How is this part organized?
310.50 How is this part written?
310.75 Do terms in this part have special meanings?
Subpart A--General
310.100 What does this part do?
310.105 Does this part apply to me?
310.110 What is the purpose of the nonprocurement debarment and
suspension system?
310.115 How does an exclusion restrict a person's involvement in
covered transactions?
310.120 May we grant an exception to let an excluded person
participate in a covered transaction?
310.125 Does an exclusion under the nonprocurement system affect a
person's eligibility to participate in federal procurement
contracts?
310.130 Does an exclusion under the federal procurement system
affect a person's eligibility to participate in nonprocurement
transactions?
310.135 May the Peace Corps exclude a person who is not currently
participating in a nonprocurement transaction?
310.140 How do I know if a person is excluded?
310.145 Does this part cover persons who are disqualified as well
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
310.200 What is a covered transaction?
310.205 Why is it important to know if a particular transaction is
a covered transaction?
310.210 Which nonprocurement transactions are covered
transactions?
310.215 Which nonprocurement transactions are not covered
transactions?
310.220 Are any procurement contracts included as covered
transactions?
310.225 How do I know if a transaction that I may participate in
is a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
310.300 May I enter into a covered transaction with an excluded or
disqualified person?
310.305 What must I do if a federal agency excludes a person with
whom I am already doing business in a covered transaction?
310.310 May I use the services of an excluded person under a
covered transaction?
310.315 Must I verify that principals of my covered transactions
are eligible to participate?
310.320 What happens if I do business with an excluded person in a
covered transaction?
310.325 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Disclosing Information--Primary Tier Participants
310.330 What information must I provide before entering into a
covered transaction with the Peace Corps?
310.335 If I disclose unfavorable information required under
Sec. 310.330 will I be prevented from entering into the transaction?
310.340 What happens if I fail to disclose the information
required under Sec. 310.330?
310.345 What must I do if I learn of the information required
under Sec. 310.330 after entering into a covered transaction with
the Peace Corps?
Disclosing Information--Lower Tier Participants
310.350 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
310.355 What happens if I fail to disclose the information
required under Sec. 310.350?
310.360 What must I do if I learn of information required under
Sec. 310.350 after entering into a covered transaction with a higher
tier participant?
Subpart D--Responsibilities of Peace Corps Officials Regarding
Transactions
310.400 May I enter into a transaction with an excluded or
disqualified person?
310.405 May I enter into a covered transaction with a participant
if a principal of the transaction is excluded?
310.410 May I approve a participant's use of the services of an
excluded person?
310.415 What must I do if a federal agency excludes the
participant or a principal after I enter into a covered transaction?
310.420 May I approve a transaction with an excluded or
disqualified person at a lower tier?
310.425 When do I check to see if a person is excluded or
disqualified?
310.430 How do I check to see if a person is excluded or
disqualified?
310.435 What must I require of a primary tier participant?
310.440 What method do I use to communicate those requirements to
participants?
310.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
310.450 What action may I take if a primary tier participant fails
to disclose the information required under Sec. 310.330?
310.455 What may I do if a lower tier participant fails to
disclose the information required under Sec. 310.350 to the next
higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From
Federal Procurement and Nonprocurement Programs
310.500 What is the purpose of the List?
310.505 Who uses the List?
310.510 Who maintains the List?
310.515 What specific information is on the List?
310.520 Who gives the GSA the information that it puts on the
List?
310.525 Whom do I ask if I have questions about a person on the
List?
310.530 Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment
Actions
310.600 How do suspension and debarment actions start?
310.605 How does suspension differ from debarment?
310.610 What procedures does the Peace Corps use in suspension and
debarment actions?
310.615 How does the Peace Corps notify a person of suspension and
debarment actions?
310.620 Do federal agencies coordinate suspension and debarment
actions?
310.625 What is the scope of a suspension or debarment action?
310.630 May the Peace Corps impute the conduct of one person to
another?
310.635 May the Peace Corps settle a debarment or suspension
action?
310.640 May a settlement include a voluntary exclusion?
310.645 Do other federal agencies know if the Peace Corps agrees
to a voluntary exclusion?
Subpart G--Suspension
310.700 When may the suspending official issue a suspension?
310.705 What does the suspending official consider in issuing a
suspension?
310.710 When does a suspension take effect?
310.715 What notice does the suspending official give me if I am
suspended?
310.720 How may I contest a suspension?
310.725 How much time do I have to contest a suspension?
310.730 What information must I provide to the suspending official
if I contest a suspension?
310.735 Under what conditions do I get an additional opportunity
to challenge the facts on which the suspension is based?
310.740 Are suspension proceedings formal?
310.745 Is a record made of fact-finding proceedings?
310.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
310.755 When will I know whether the suspension is continued or
terminated?
310.760 How long may my suspension last?
Subpart H--Debarment
310.800 What are the causes for debarment?
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