FR Doc 03-28454
[Federal Register: November 26, 2003 (Volume 68, Number 228)]
[Rule and Regulations]
[Page 66533-66646]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26no03-12]
[[Page 66533]]
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Part II
Governmentwide Debarment and Suspension (Nonprocurement), and
Requirements for Drug-Free Workplace (Grants); Rules (Final and Interim
Final)
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Office of Personnel Management
Department of Agriculture
Department of Energy
Export-Import Bank
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 Housing and Urban Development
Department of Justice
Department of Labor
Federal Mediation and Conciliation Service
Department of the Treasury
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
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
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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
THE EXPORT-IMPORT BANK OF THE UNITED STATES
12 CFR Part 413
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 133 and 137
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 HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 21 and 24
DEPARTMENT OF JUSTICE
28 CFR Parts 67 and 83
DEPARTMENT OF LABOR
29 CFR Parts 94 and 98
FEDERAL MEDIATION AND CONCILIATION SERVICE
29 CFR Parts 1471 and 1472
DEPARTMENT OF THE TREASURY
31 CFR Parts 19 and 20
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
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; The Export-Import Bank of the United States;
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 Housing and Urban
Development; Department of Justice; Department of Labor; Federal
Mediation and Conciliation Service; Department of the Treasury;
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; 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: Final rules and interim final rules.
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SUMMARY: These rules implement changes to the governmentwide
nonprocurement debarment and suspension common rule (NCR) and the
associated rule on drug-free workplace requirements. The final and
interim final rules reflect changes made to the proposed rules in
response to the comments received during the comment period. The NCR
sets forth the common policies and procedures that Federal Executive
branch agencies must use in taking suspension or debarment actions. It
also establishes procedures for participants and Federal agencies in
entering covered transactions. While these procedures are mandatory for
all agencies of the Executive branch under Executive Order 12549, any
Federal agency with procurement or nonprocurement responsibilities may
elect to join the governmentwide system by adopting these procedures
through the rulemaking process. Certain small Executive branch agencies
that are exempt from having to issue separate regulations with the
approval of the Office of Management and Budget, may initiate
suspension and debarment actions in their inherent authority. Following
the procedures set forth in the NCR will help ensure that the agencies'
actions comply with due process standards and provide the public with
uniform procedures. As an alternative, smaller Executive branch
agencies may refer matters of contractor and participant responsibility
to another Executive branch agency for action. For a detailed
explanation of the changes to these rules, see the comments section
under Supplementary Information below.
DATES: The effective date for this rule is November 26, 2003. The
comment date for those agencies issuing this rule as an interim rule
(i.e., the Department of Agriculture, the Export-Import Bank, the
Department of Justice, and the Department of Treasury) is January 26,
2004.
ADDRESSES: Comments on the interim rules should be submitted to the
individual agency contacts.
FOR FURTHER INFORMATION CONTACT: Robert F. Meunier, Chair of the
Interagency Suspension and Debarment Committee, Office of Grants and
Debarment (3901-R), Environmental Protection Agency, 1200 Pennsylvania
Avenue NW., Washington, DC 20460, by phone at (202) 564-5399 or by e-mail (meunier.robert@epa.gov). 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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.whitehouse.gov/omb),
under the heading ``Grants Management.''
SUPPLEMENTARY INFORMATION:
A. Background
On February 18, 1986, President Reagan issued Executive Order 12549
(3 CFR 1986 Comp., p. 189), ``Debarment and Suspension,'' to establish
a governmentwide debarment and suspension system covering the full
range of Federal procurement and nonprocurement activities, and to
establish procedures for debarment and suspension from participation in
Federal nonprocurement programs. Section 4 of that Order established
the Interagency Suspension and Debarment Committee (ISDC) to monitor
implementation of that system, coordinate actions among the Federal
agencies, and make recommendations to the Office of Management and
Budget (OMB) concerning regulatory and other changes needed to address
the needs of both the procurement and nonprocurement suspension and
debarment programs under a comprehensive debarment and suspension
system encompassing the full range of Federal activities.
The OMB published initial guidelines for nonprocurement debarment
and suspension to all Executive branch agencies on May 29, 1987 (52 FR
20360), followed by final guidelines along with the NCR on May 26, 1988
(53 FR 19160). The OMB guidelines and NCR provide uniform requirements
for debarment and suspension by Executive branch agencies to protect
assistance, loans, benefits and other nonprocurement activities from
waste, fraud, abuse, poor performance or noncompliance similar to the
system used for Federal procurement activities under Subpart 9.4 of the
Federal Acquisition Regulation (FAR) and its supplements.
On January 31, 1989, the agencies amended the NCR by adding a new
subpart F to implement the Drug-Free Workplace Act of 1988 (54 FR
4946).
On August 16, 1989, President George H. W. Bush issued Executive
Order 12689, ``Debarment and Suspension,'' (3 CFR 1989 Comp., p. 235),
directing agencies to reconcile technical differences existing between
the procurement and nonprocurement debarment programs, and to give
exclusions under either program reciprocal effect across procurement
and nonprocurement activities. In 1994, Congress passed the Federal
Acquisition Streamlining Act of 1994 (Pub. L. 103-355, 108 Stat. 3327),
mandating reciprocity for exclusions issued under the procurement and
nonprocurement debarment programs.
On April 12, 1999, OMB asked the ISDC to review the common rule and
propose amendments that would: (a) Resolve remaining 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. On October 29,
1999, the ISDC issued a final report to OMB with recommended changes to
the NCR.
On January 23, 2002, thirty agencies jointly proposed amendments to
the NCR and for the removal and relocation of the governmentwide
provisions implementing the Drug-Free Workplace Act of 1988 (67 FR
3265). One additional agency, Department of Housing and Urban
Development, proposed its amendments to those rules on July 22, 2002
(67 FR 48006).
Since publication of the above proposed rules, the Federal
Emergency Management Agency (FEMA), along with parts of many other
Federal agencies, has been transferred into the new Department of
Homeland Security (DHS). Therefore, this final rulemaking does not
include a final rule for FEMA or DHS. Three agencies, Department of
Treasury, Department of Justice and The Export-Import Bank of the
United States, did not propose changes along with other agencies on
January 23, 2002, but are adopting these rules on an interim final
basis. The Department of Agriculture, although it proposed rules on
January 23, has decided to issue an interim final rule for the reasons
cited in its agency-specific preamble. Persons wishing to submit
comments to the Department of Agriculture, Department of Treasury,
Department of Justice or The Export-Import Bank of the United States
may do so within sixty (60) days of the date of this publication by
sending comments as described in the preambles to those rules. The
remaining twenty-nine agencies are jointly issuing this rule as a final
rule.
Furthermore, since publication of the proposed rule, the General
Services Administration (GSA) has changed the name of the List of
Parties Excluded from Federal Procurement and Nonprocurement Programs
(List). It is now called the Excluded Parties List System (EPLS).
Corresponding changes have been made throughout this rule.
Comments on the Proposed Rules
We received comments on the proposed amendments to the NCR from
sixteen commenters. Of those, eight are
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from employees of Federal agencies; two are from state employees; and
six are from professional or public organizations. We received no
comments addressing the provisions related to the drug-free workplace
requirements.
General Comments
Plain language format. Generally, most comments were supportive of
the plain language style and format of the proposed rule, including the
American Bar Association's Section on Public Contracts Law (ABA-PCL),
which found the format of the proposed rule to be in a ``* * * user
friendly style that is well suited for non-lawyers. * * * without
losing any of the precision in the standard regulation format.''
However, one commenter expressed concern that the question and
answer format will make it more difficult for Government officials
familiar with standard rules to find information quickly by scanning
the table of contents for short titles.
While we acknowledge that the longer sentences associated with the
question and answer format will make scanning the table of contents
more difficult, we believe that the benefits to the regulated community
far exceed any small burden that might be placed on Government
officials when using the rule. We prepared the proposed rule so that
information pertaining to Government officials with various
responsibilities under the rule, and information pertaining to
individuals and businesses subject to the rule, are grouped together
under separate subparts. We believe that this will enhance everyone's
ability to locate information of particular interest to them.
One commenter noted that in some places within the proposed rule
the sentences are still complex. In preparing the proposed rule, there
were several provisions, such as those reciting the causes for
debarment and provisions related to affiliation and imputed conduct,
which we did not revise or did so insubstantially. As a result, in a
few places the style of the language was not fully in line with the
style used in other parts of the proposed rule. Accordingly, we revised
the final rule so that those provisions are less complex and more in
keeping with the plain language format used elsewhere in the rule.
Section 630 of the final rule, regarding imputation of conduct, is
reorganized entirely in response to this and other comments regarding
its lack of clarity.
Native American Tribes. One commenter noted that neither the
existing NCR, nor the proposed rule specifically addresses the
treatment of Native American Tribes. Issues related to the status of
recognized Native American Tribes can be complex. However, tribes, like
states, are expected to be responsible recipients of, and participants
in, Federal nonprocurement transactions. Under this rule, Native
American Tribes are accorded the same treatment as state governments
with regard to the coverage and applicability. Therefore, no special
distinction with respect to Native American Tribes is required.
Debarring Official Responsibilities. One commenter requested that
the final rule specifically state that suspending and debarring
officials may use the services of other officials in carrying out their
duties. The numerous references to the suspending or debarring official
within this rule do not imply that the suspending or debarring official
must perform all those duties without the assistance of staff or
others. The drafting committee acknowledges that it is common practice
for suspending and debarring officials to use the services of
assistants in carrying out their duties. Such administrative matters
are more appropriately addressed through agency-specific internal
guidance rather than in this rule.
Subpart A
``Participant'' and ``participate''. Two commenters raised concerns
that the definition of ``participant'' in section 980 may be confused
with the term ``participant'' as used in section 105(a) and
``participate'' as used in section 135. These terms in sections 105(a)
and 135 are, in fact, broader in scope than the definition in section
980. We agree that section 105(a) should be clarified to identify the
entire universe of potential participants, rather than only those who
may presently have the status of a current ``participant'' as defined
in section 980. Accordingly, section 105 in the final rule is amended
to state that portions of the rule apply to you if you are `` * * * a
person who has been, is, or may be expected to be, a * * * ''
participant or principal in a covered transaction. Similarly, section
135 of the proposed rule has been amended by substituting the concept
of involvement for participation to make it clear that Federal agencies
may take suspension or debarment actions against any persons who may be
involved in covered transactions regardless of whether they are
currently a ``participant'' as defined under section 980. We also made
changes to the imputed conduct provisions by substituting the word
``person'' for ``participant'' in section 630 for the same reason.
Subpart B
Covered transactions. One commenter suggested that Subpart B of the
final rule include specific language currently contained in the
existing NCR in section 110(a)(1), which notes that a nonprocurement
transaction need not involve the transfer of Federal funds. We included
that language in the proposed rule in the definition of nonprocurement
transaction in section 970(b). Accordingly, no further amendment to
Subpart B for that purpose is necessary.
Commodity Debarment. One agency raised concern about the
regulation's lack of guidance with regard to ``commodity'' suspension
and debarment referenced in sections 110(c) and 945. The ISDC notes
that any resolution of the issues surrounding debarment of commodities
requires thorough agency-wide consultation and possible changes to
Parts 8, 9, 13, 47, 51 and 52 of the FAR. Because the comment was
received after the comment period had closed and just prior to
publication of this final rule, there was insufficient opportunity for
the ISDC to address this issue before this rulemaking. Therefore the
issues surrounding commodity suspension and debarment will be addressed
at a later time. However, any agency considering a commodity debarment
should fully coordinate the action in accordance with section 620.
Optional lower tier coverage. We received two comments about the
language in section 220 of the proposed rule that mandates coverage of
subcontracts of $25,000 or more at the first tier below a covered
nonprocurement transaction. The language gives agencies an option to
extend coverage to subcontracts at lower tiers.
The two comments recommended diametrically opposed changes to the
proposed rule. One commenter suggested revising the rule to require
agencies to cover subcontracts at all tiers and said that making lower
tier coverage optional would be inconsistent with the rule's purpose as
stated in section 110. The other suggested revising the rule to either:
(1) Eliminate coverage of subcontracts entirely, relying on reciprocity
with Federal procurement debarment and suspension actions; or (2)
establish a common approach for all Federal agencies by limiting
coverage to first tier subcontracts of $25,000 or more (the proposed
rule's mandatory coverage).
The two comments reflect the widely varying nature of Federal
programs subject to this rule. Some programs,
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especially programs with awards to states as pass-through entities,
have substantial program performance by subcontractors at lower tiers
below covered nonprocurement transactions. Other programs, including
many research programs, are performed by participants in the covered
nonprocurement transactions. At least some programs of the first type
may be particularly vulnerable to subcontractor malfeasance; agencies
in those cases need the flexibility to extend coverage to lower tier
subcontracts to adequately protect the Federal Government's interest.
Many programs of the second type, however, do not share that
vulnerability. Revising the rule to mandate extended coverage in all
cases would increase administrative burdens and costs for those
programs without commensurate benefits to the taxpayer. For this
reason, the final rule includes the optional lower tier coverage in
section 220 as the best way to afford adequate protection for the wide
universe of Federal agency programs without imposing undue
administrative burdens on agencies or participants.
Subpart C
Scope of action. One commenter recommended that proposed sections
300, 400, 420 and 445 be clarified to state that persons checking the
Excluded Parties List System (EPLS), formerly known as the List of
Parties Excluded or Disqualified from Federal Procurement and
Nonprocurement Programs, should look at the cause and treatment code to
see if the listed person is ineligible under a statute or executive
order as opposed to suspended or debarred under this rule. The cause
and treatment code will reveal a scope of disqualification which may
differ from a discretionary suspension or debarment. The EPLS includes
cause and treatment codes with each listing, as well as instructions
for their use, so that the user will know the nature and scope of a
person's ineligibility. This is the same system as that currently in
place and has worked without problems. We believe that sections 75(b),
145(b)(1) and 515 of the proposed rule already adequately address this
matter. Therefore, no additional language in this regard is added to
the final rule.
Participant verification of eligibility of lower tier participant.
One commenter recommended that we clarify that a participant planning
to enter into a covered transaction with another entity at the next
lower tier must verify that the entity is not excluded or disqualified.
We agree. We included a new section 300 in the final rule to more
clearly state that obligation. We renumbered the remaining sections
within that series to maintain the sequence of the final rule.
Participant termination of suspended or debarred principal in
existing covered transactions. One agency commenter noted that the
cautionary language contained in the final sentence of section 305(a)
of the proposed rule (now section 310(a) of the final rule), be
modified appropriately and included at the end of proposed section
310(a) (now section 315(a) of the final rule). The language under
proposed rule section 305(a) emphasized that a participant exercise
caution in deciding whether to terminate covered transactions, such as
subcontracts or subgrants, with persons that were already in existence
at the time the person was excluded. The commenting agency noted that a
participant may face the same issue with regard to one of its own
employees who may be subject to an exclusion while already acting as a
principal under another covered transaction. Since an agency exclusion
imposed under this rule does not apply to existing awards, termination
options in such situations can be legally and practically complex.
Before such an action is taken, the option must be carefully analyzed
and weighed. We believe the same or similar concerns apply to decisions
about employees who serve as principals. Accordingly, section 315(a) of
this final rule has been amended to include similar cautionary
language.
Participant verification of its principals' eligibility. One
commenter suggested that proposed section 315 be clarified so that the
reader understands that a participant need only verify that its own
principals, and not those of lower tier participants, are eligible to
participate in the covered transaction. Since a participant may have a
transaction both above it and below it, it is possible to misconstrue
this section to obligate the participant to verify the principals of
those participants above and below its own organization. The language
in proposed sections 315 and 325 (now sections 320 and 330 in the final
rule), was intended to require participants only to verify eligibility
of its own principals in its own transactions. Participants at lower
tiers will verify the principals' eligibility in their transactions.
Accordingly, we amended proposed section 315 (now section 320 in the
final rule), to replace the phrase ``any principal'' in the first
sentence, with the phrase ``any of your principals.''
Doing business with an excluded person. The same commenter
suggested that proposed section 320 (now section 325 in the final
rule), be modified by replacing the phrase ``If as a participant you
knowingly do business with an excluded person'' with ``If you as a
participant do business with a person when you knew or had reason to
know that the person was excluded. * * * .'' The commenter believes it
would make the standard consistent with that found elsewhere in the
rule. However, the only place in the rule that the ``reason to know''
standard applies is when an agency is imputing conduct from an entity
to an individual for the purpose of suspension or debarment. That
standard is different from the ``should have known'' standard, but less
than the actual knowledge standard required under proposed section 320
(now section 325). When the NCR was published as a final rule in 1988,
the standard of actual knowledge was adopted to support a cause for
debarment under section 305(c)(2). That final rule changed the language
from what had been proposed as a ``known or reasonably should have
known'' standard. That was done to conform the nonprocurement rule to a
FAR certification proposed amendments at 52 FR 28642-46 (July 31,
1987). See also discussion at 53 FR 19167 (May 26, 1988). It was
determined then, and we agree now, that actual knowledge of
ineligibility should be required before an agency debars a person for
doing business with an excluded or disqualified person. Therefore, the
standard under this section in the final rule remains unchanged.
Certification. Three of the six comments we received on this
subject, including one from the ABA-PCL, supported the proposed rule's
elimination of a current requirement for certifications. The ABA-PCL
also noted that the problems caused by certifications could be
aggravated, rather than solved, if some agencies elected to continue
using certifications, and instructions were not issued to preclude each
agency from separately crafting certification language that differed
from the language used by the others. We agree and note that this
comment should be addressed by the joint efforts of 26 Federal grant-
making agencies to implement the streamlining and simplification
requirements of the Federal Financial Assistance Management Improvement
Act of 1999 (Pub. Law 106-107). A stated goal of those interagency
efforts is to eliminate certifications or assurances that are found to
be unnecessary and establish common language for others.
One of the three commenters supporting continued use of
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certifications said that certifications provide the best means of
obtaining accurate and updated information about a person's
eligibility. That commenter noted that the Office of Federal
Procurement Policy retained the suspension/debarment certification when
the Clinger-Cohen amendments were implemented for Federal procurement
contracts.\1\ Another comment in support of retaining certifications
suggested that a certification is the best way for a participant to
provide information about itself and its principals, as required by
proposed rule section 330 (now section 335 in the final rule), to the
Federal agency with which it is about to engage in a covered
transaction.
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\1\ Section 4301(b)(2)(iii) of the Federal Acquisition Reform
Act of 1996 (Pub. L. 104-106), prohibits Federal agencies from
imposing non-statutory certifications on contractors or offerors
unless the Federal Acquisition Regulatory Council provides written
justification to the Administrator for Federal Procurement Policy,
and the Administrator approves the certification requirement in
writing. This justification must include a determination that there
is no less burdensome means for administering and enforcing the
agency regulation.
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We understand and appreciate these views. However, Federal award
officials can now rely on the electronic EPLS which is available
worldwide on the Internet, as opposed to the printed version that could
be six weeks out of date by the time some awarding officials receive
them. New technology has eliminated any need to require Federal
agencies to obtain suspension/debarment certifications, although the
rule still makes certifications available as an option for any agency
with circumstances that justify their continued use. In their agency-
specific preambles accompanying the Federal Register notice of proposed
rulemaking, only a few agencies proposed to use certifications in their
covered transactions. This suggests that many agencies see alternative
methods as an opportunity to reduce burdens on participants without
reducing compliance with the rule's requirements. Therefore, the final
rule does not require Federal agencies to obtain certifications.
Subpart E
Identity confirmation by date of birth. The Federation of American
Hospitals suggested that section 515 of the rule include a field for
birth date entries on the GSA List (now called the EPLS). The
Federation observed that birth dates are currently available in company
employee databases and are used in other Federal programs to assist in
matching identities. The ISDC has been studying the use of birth dates
as a potential data entry into the EPLS to confirm the identity of
individuals. The collection, use, and dissemination of personal
identifier information, such as social security numbers and birth
dates, is widely practiced in private and commercial settings. However,
when Federal agencies desire to do so, the issue is more complex.
Certain statutes designed to protect privacy must be considered. We
believe that this suggestion has merit and should be considered as an
enhancement to the current system at a later date.
Subpart F
Confirmation of receipt of notice by e-mail. The ABA-PCL expressed
general support for expanding the options for delivery of action
notices under sections 615, 725, 820 and 975. It noted that e-mail
notification, unlike notification by facsimile, is still in an
evolutionary stage and may lack the level of certainty that the notice
reaches the intended recipient in a timely manner. It suggested that
the regulation should require that e-mails be followed up by notice via
regular mail, or that the respondent provide the sender with a
confirmation of e-mail receipt.
While still an evolving technology, e-mail is not inferior to
traditional mail or facsimile as a means to deliver notice. Even
current mail with return receipt options does not guarantee that the
mail reaches the intended recipient. Many return receipts are returned
to the sender as undeliverable or unclaimed. Some are signed by a
person whose signature is not legible. The legal system accepts, as
legally sufficient, constructive notice to bring a matter to
conclusion--knowing that actual receipt by the intended recipient is
not guaranteed. This has been equally true in the world of suspension
and debarment. Agencies are occasionally faced with claims by
respondents who have been debarred that they did not see the notice or
decision, or that the facsimile notice was mis-delivered. The current
NCR and FAR debarment rules assume receipt if the notice is sent to the
last known address. Because the rules allow any debarred person to
petition for reinstatement at any time, a person who makes a case for
non receipt of notice is not deprived of an opportunity to contest an
action or have its status changed. Requiring duplicate mailings or
other cumbersome procedures will not significantly increase the chance
of actual receipt. It would only lengthen the notification process and
deprive the agencies of the ability to take prompt protective action
and to conduct business efficiently. Therefore, we did not change this
in the final rule.
Scope of action with regard to subsidiaries. The ABA-PCL requested
that proposed section 625 be amended to address uncertainty about
whether an organization's suspension or debarment automatically covers
wholly owned subsidiaries. The 1988 preamble to the NCR contained a
detailed explanation of the treatment to be accorded all subsidiaries
of a corporation with regard to the scope of a debarment or suspension.
See 53 FR 19169 (May 26, 1988). The 1988 NCR, when proposed, would have
included subsidiaries automatically within the scope of a suspension or
debarment action taken against the parent company. As a result of
comments received in 1988, the final NCR removed the term
``subsidiaries'' from the automatic scope of a suspension or debarment
against a parent company. This was, in part, because separately
incorporated entities may have different shareholder interests involved
that may not be notified of the action. Also, a subsidiary corporation
may receive an award in its own name. Procurement and nonprocurement
award officials must rely on the EPLS to determine the eligibility
status of a potential contractor or participant. There is nothing in
the award process that will inform the award official that any
potential contractor or participant is, or may be, a subsidiary of
another excluded entity--even if all the subsidiary's stock is owned by
the excluded entity. Apart from cases where a subsidiary's name may
include part of the parent's name, there may be nothing in the EPLS
that will cause an award official to associate the potential subsidiary
contractor or participant with an excluded parent. For these reasons,
the original nonprocurement suspension and debarment final rule elected
to treat all subsidiaries as ``affiliates.'' This means that all
entities with a distinct legal identity, including wholly-owned
subsidiaries, must be provided with a notice of action, an opportunity
to contest, and written determinations. The subsidiary will appear with
its own listing to assure that the Government may effectively enforce
the EPLS. Parts of a business entity that do not enjoy a separate legal
standing, such as unincorporated divisions and branches, are included
within the scope of the action against the entity.
Imputing conduct. One commenter observed that a technical reading
of section 630 of the proposed rule does not adequately describe
imputing conduct from a subsidiary to its parent company or between
separate corporate or other business entities other than
[[Page 66539]]
those engaged in joint ventures. Paragraph (a) of that section refers
to imputing conduct from individuals to organizations. Paragraph (b)
addresses imputing conduct from organizations to individuals. Paragraph
(c) addresses imputing conduct between businesses linked by some form
of limited joint venture or agreement.
Many agencies have operated with the understanding that the phrase
``or similar arrangement'' contained in section 325(b)(3) of the
current NCR allows agencies to impute conduct between a subsidiary and
its parent company. The proposed rule did not alter the current
language of the NCR. However, after reviewing the proposed language,
and comments requesting that we redraft this section using plain
language (see General comments on plain language format above), we
revised section 630 of this final rule to make clear that, for the
purpose of suspension or debarment, Federal agencies may impute
misconduct from individuals to organizations, from organizations to
individuals, from individuals to other individuals, and from
organizations to organizations, where appropriate. Section 630(c) of
the final rule covers imputing misconduct from any linked
organizations, including those linked by a parent-subsidiary
relationship. This revised format and style of section 630 will help
eliminate ambiguity existing under the current NCR language and make it
more understandable to the general public.
We also note that this rule retains the reason to know standard as
the appropriate standard for imputing misconduct to individuals under
section 630(b). The Circuit Court of Appeals for the DC Circuit, in
Novicki v. Cook, 946 F.2d 938 (D.C. Cir. 1991), noted that the reason
to know standard was not defined in the FAR. Using an analysis of that
standard at common law, the Court reasoned that this standard is not
one of strict liability or a should have known standard that can be met
merely because of an individual's position as president of a
corporation. We agree with that interpretation. We also note, as did
the Court, that the debarring official in that case had other
information in the record, the nature of which could have reasonably
supported imputation under the reason to know standard under the right
circumstances. Under this rule, if a person in a position of control,
influence or authority over a business activity acquires information
that suggests misconduct and fails to take action to prevent the
misconduct from occurring, or to mitigate the injurious consequences of
the misconduct once it has occurred, imputation under the reason to
know standard of section 630(b) is appropriate. If a person in
authority over a business activity can be shown to have deliberately
avoided acquiring information about misconduct that would otherwise
reasonably be expected to come to their attention in the ordinary
course of performing their duties, they may be deemed to have reason to
know of the misconduct under section 630(b).
The reason to know standard of section 630(b) applies to all
situations where conduct is to be imputed to an individual. It applies
the same standard for imputing conduct between spouses or relatives as
it does between an organization and an individual or between unrelated
individuals. This section does not authorize imputing conduct from one
individual to another in a business activity solely upon the existence
of a family or marital relationship between two individuals. Other
factors, such as age, experience in the business, education, financial
capacity, and organizational or operational independence should be
considered along with the relationship before determining that one
individual had reason to know of the misconduct of the other. Where no
other factors are present to support imputing conduct to a related
individual, that individual may still be subject to action as an
affiliate, if the appropriate degree of control can be established.
Another commenter suggested that we delete from section 630 the
word ``scope'' to describe application of the imputed conduct
provisions and we use the term only with regard to the subject matter
addressed in section 625. We agree with that clarification and have
revised the initial sentence in section 630 accordingly.
That commenter also suggested that the final rule substitute the
words ``may be'' for the word ``is'' in the final sentence of
paragraphs (a) and (c) of section 630 of the proposed rule. The
commenter believed such a change would clarify that acceptance of
benefits derived from the conduct in question alone does not create a
conclusive presumption upon which to impute conduct. We agree that the
mere acceptance of benefits alone would be an insufficient basis upon
which to conclude that a person had knowledge of, approved of, or
acquiesced in the conduct where evidence suggests otherwise. However,
agencies under the Governmentwide debarment and suspension system have
always used acceptance of benefits as one indicator of knowledge,
approval or acquiescence. A suspending or debarring official, or an
official conducting fact-finding in a suspension or debarment action,
may weigh the fact of receipt of benefits derived from the conduct
against other information available in the record to determine whether
a person knew or approved of, or acquiesced in, the conduct in
question. Therefore, the language in the proposed rule is accurate and
remains in the final rule.
Subparts G and H
One Federal debarring official noted that the language of section
700(a) of the proposed rule generally requires adequate evidence to
suspect that a cause for debarment exists as the first part of a two-
part test to support a suspension. He observed that the adequate
evidence test makes sense so long as the reader applies it to any
ground under section 800 other than section 800(a). A cause for
debarment under section 800(a) requires the matter to have already
progressed to a conviction or judgment. While the language in the
proposed rule has existed under the NCR for years without apparent
confusion, we agree that either section 800(a) should be stated more
generally such as ``commission of criminal offense or liability for a
civil matter'' or section 700 should distinguish between suspensions
based on causes under section 800(a) and those based on causes under
sections 800(b) through (d). To keep the causes for debarment under the
FAR and this rule consistent, we elected not to alter the language of
section 800(a) in this final rule. But to improve the clarity with
respect to suspensions for actions that have not yet progressed to a
judgment or conviction, we divided proposed section 700(a) into two
paragraphs (a) and (b). Section 700(a) of the final rule relates to
suspensions based upon indictment, complaint or other adequate evidence
to support criminal or civil matters that may ultimately fall under
section 800(a). Section 700(b) of the final rule relates to adequate
evidence of any other cause for debarment. Proposed section 700(b)
becomes section 700(c) in this final rule.
Fact-finding proceedings versus presenting matters in opposition. A
few commenters found proposed rule sections 740 and 835 confusing
because while these sections address meetings held with the suspending
or debarring official to present matters in opposition, the final
sentence of each section relates to taking witness testimony and
conducting cross-examination. These matters apply to fact-finding
proceedings, not presentation of matters in opposition. Fact-finding
proceedings are addressed in sections 745 and 840.
[[Page 66540]]
Therefore, we moved the language relating to witness testimony and
cross-examination from sections 740 and 835 of the proposed rule to
sections 745 and 840, respectively, in this final rule. In addition, in
response to another agency comment, we clarified the provisions under
those sections so that it is clear that fact-finding privileges of
presenting witnesses, evidence and other information, or cross-
examination of any witnesses, or confrontation of evidence and
information presented, is equally available to respondents and the
government representatives at those proceedings.
One commenter requested that we revise sections 740(b) and 845(c)
to permit the suspending or debarring official to refer both disputed
facts and issues of law to another official for resolution. The
Governmentwide suspension and debarment provisions under the FAR and
the NCR provide only for submitting material facts genuinely in dispute
to another official for resolution. In some agencies, the debarring
official is in the Office of General Counsel, in other cases, the
General Counsel's Office may review the decision before issuance or may
advise the debarring official on legal matters while the matter is
pending. Each agency has the discretion to decide, and must determine
for itself, how it will handle legal issues in the context of debarment
or suspension actions. We believe it is in the best interest of the
Government to continue that practice. Furthermore, changing the
proposed language in accordance with this request would place the NCR
at odds with the requirements for suspension and debarment under the
FAR. Accordingly, we made no change.
One commenter suggested that the final rule clarify whether
disputes over mitigating or aggravating factors would entitle a
respondent to a fact-finding proceeding. The current interpretation and
practice of the agencies in suspension and debarment actions under both
the FAR and NCR is that a respondent is entitled to a fact-finding
proceeding on material facts in genuine dispute only with regard to
establishing a cause for debarment or suspension. As a practical
matter, the regulation does not preclude a suspending or debarring
official from using a fact-finding proceeding to address aggravating or
mitigating factors in dispute if he or she finds it helpful in reaching
a final decision. We left the final rule unchanged to avoid creating an
appearance of differing standards for fact-finding between the NCR and
the FAR.
Time limits for decision. One commenter suggested that we amend
sections 755 and 870 to require that the suspending or debarring
official make a final decision within 45 days of closing the official
record, even in cases where fact-finding is conducted. Currently under
the NCR, the 45-day time limit for the suspending or debarring
official's decision only applies to cases in which no fact-finding is
required. The proposed rule did not alter that requirement. However,
since the suspending or debarring official does not close the record in
any case until after he or she receives the needed information,
including the fact-finder's findings, there is no reason for the
suspending or debarring official to treat these cases differently.
Accordingly, sections 755 and 870(a) have been revised to set a 45-day
period for final decision in all cases, subject to extension for good
cause.
Petitions for reconsideration. One commenter recommended that
either section 875 or 880 incorporate a minimum six month waiting
period before a debarred person may petition the debarring official for
reconsideration of its period or scope of debarment. We believe there
are many reasons that may justify an adjustment of the period or scope
of a debarment within six months of issuance of the initial decision.
For example, the debarring official may have overlooked important
information in the record, or the debarred person may be able to
establish present responsibility shortly after a debarment is issued.
Unlike the 45-day time limit imposed upon the debarring official in
rendering the initial determination, no such time limit is imposed in
handling requests for reconsideration under these sections. The
debarring official has significant discretion in, and control over,
handling requests for reconsideration. Debarring officials can use that
discretion in dealing with reconsideration requests, including
frivolous requests, without minimum waiting periods. In a close case, a
minimum waiting period could discourage a debarring official from
imposing a debarment if a company has made an incomplete demonstration
of present responsibility. In addition, it can have a harsh result on
the company that addresses Government concerns promptly. Most agencies
do not appear to have experienced significant problems handling
reconsideration requests. Accordingly, the final rule does not include
a mandatory minimum waiting period for reconsideration.
Subpart I
Define ``procurement''. One commenter recommended adding a
definition of the term ``procurement'' in Subpart I to clarify which
lower tier transactions are covered transactions. The commenter
suggested defining ``procurement'' as the acquisition of supplies and
services by contract with a commercial entity, to help distinguish
lower tier procurement transactions from subawards made by research
institutions to collaborating research organizations.
We understand the importance of distinguishing procurement
transactions, which are covered transactions at lower tiers only if
they meet the criteria under section 220 of the rule, from
nonprocurement transactions that are more broadly covered under section
210. Adding a definition of the term ``procurement'' to this rule would
be warranted if confusion was prevalent among Federal agencies or
participant communities about the distinction between procurement and
nonprocurement. However, we do not believe this is the case. The
definition of ``subgrant'' and ``subaward'' in Federal agencies'
implementation of OMB Circulars A-102 and A-110, respectively, provide
an adequate basis for most agencies and participant communities to make
the distinction. Specifically, a lower tier transaction is a
nonprocurement transaction subject to section 210 if the transaction's
purpose is to have the lower tier participant perform any part of the
substantive program from the Federal agency's primary tier transaction.
If it meets this criterion, the lower tier transaction is a
nonprocurement transaction even if the higher tier participant calls
the transaction a ``contract.'' In contrast, the lower tier transaction
is procurement subject to section 220 if its purpose is the acquisition
of goods or services needed by a performer, at any tier, of the
substantive program. While we do not believe that adding a definition
of ``procurement'' is necessary in this Governmentwide rule, any
Federal agency may add clarifying language in its own rule if it judges
that doing so is warranted for its programs. Also, a participant may
seek guidance from the awarding Federal agency if necessary.
Conviction. One commenter requested clarification of the term
``entry'' of judgment as it relates to the definition of ``conviction''
in section 925. Under Rule 32 of the Federal Rules of Criminal
Procedure, a conviction is not final until the entry of a final order.
Therefore, a criminal conviction does not exist to
[[Page 66541]]
support a cause for debarment under section 800(a) until the court
signs the Judgment, Commitment or Probation Order (or its equivalent).
The proposed rule sought to address this definition so that agencies
would be free to conclude debarment proceedings where a defendant
enters a guilty plea or a guilty verdict is returned but judgment is
withheld, delayed, or diverted pursuant to an alternative sentence or
disposition. Accordingly, the proposed rule expanded the definition to
focus on the practical reality of the criminal proceeding's conclusion,
rather than the technical requirement that a judgment be ``entered.''
While acknowledging the legitimacy of the Government's desire to
finalize debarment proceedings in criminal matters concluded under
special terms without the benefit of a formal entry of judgment, the
ABA-PCL expressed concern that the proposed definition, as written, is
so broad that it would capture dispositions that are not the functional
equivalent of a finding or pronouncement of guilt. It observed that the
contexts for such alternate dispositions vary from case to case, and
from jurisdiction to jurisdiction, and that failure to add some
boundaries to the expanded definition might discourage resolution of
some cases in a way that is beneficial to the Government and the
affected person. The ABA-PCL suggested that the phrase ``or any other
resolution'' in the proposed definition be subject to some limitation
reflective of an admission or finding of guilt before being treated as
a ground for debarment. We believe the ABA-PCL's concern is
appropriate. Accordingly, the definition of ``conviction'' in the final
rule is revised to provide that an alternative disposition to a
criminal entry of a judgment will be treated as the functional
equivalent of a judgment if it occurs with the participation of the
court; or in a case that involves only an agreement with the
prosecutor, if it occurs in the context of an admission of guilt. In
making this assessment, the debarring official should consider the
entire context of the disposition or resolution, including the nature
of the obligations imposed on or accepted by the person, and any
official statements made regarding the alternate disposition. Where a
person is suspended upon commencement of criminal proceedings which are
later held in abeyance to satisfy the terms of an alternative
disposition, and the alternative disposition does not qualify as the
functional equivalent of a conviction, the suspension may continue
until the criminal matter is concluded under NCR section 760(a).
Person. The ABA-PCL also questioned whether it is practical to
continue including a ``unit of government'' within the definition of
person for the purpose of taking suspension or debarment actions. The
commenter notes that units of government often have a unique status in
Federal agency programs that make their suspension or debarment
impractical. We acknowledge that there is often a unique relationship
between the governmental organizations that might dissuade a Federal
agency from choosing to debar a governmental body from Federal
nonprocurement transactions. However, that is not true for all Federal
transactions, or for all units of government. Federal suspending and
debarring officials have sufficient discretion and options available
when dealing with units of government or their employees that allow the
official to consider all relevant factors. We do not believe that the
Federal Government's interest in protecting its nonprocurement programs
would be enhanced by eliminating all units of government from the
definition of ``person.'' Such an approach would, in effect, create an
exemption from coverage and create a void of oversight and
accountability for many special bodies of government that receive
Federal funds and benefits. Therefore, the definition of ``person''
remains unchanged in the final rule.
Principal. The ABA-PCL also expressed concern that the definition
of the term ``principal'' in proposed section 995(b)(3) is so broad as
to potentially result in making it impossible for an individual to find
employment in their given field. Proposed section 995(b)(3) includes
any person who ``occupies a technical or professional position capable
of influencing the development or outcome of an activity that affects a
covered transaction.'' The ABA-PCL suggests that this should be
narrowed to cover an employee who ``occupies a technical or
professional position capable of directly and substantially influencing
the development or outcome of an activity required under a covered
transaction.'' We agree that the definition of ``principal'' in
proposed section 995(b)(3) should be narrowed in an effort to cover
critical non-supervisory/managerial positions. However, use of the term
``directly'' may confuse the reader to believe that the exclusion will
apply only to positions that are charged as a direct cost to the
covered transaction. As noted in the 1988 preamble to the NCR, the
Government rejects the direct/indirect cost analysis as being a valid
basis upon which to apply the exclusion. In addition, the ABA-PCL's
suggested phrase ``required under a covered transaction'' could be read
to require that the product or service must be specifically mentioned
in the award, agreement or transaction. It is the intent of this rule
to cover any important service or product that is required to perform
the award, whether or not it is directly specified in it. Accordingly,
we altered the definition of ``principal'' in section 995(b)(3) of the
final rule to apply to any person who ``* * * Occupies a technical or
professional position capable of substantially influencing the
development or outcome of an activity required to perform the covered
transaction.'' (Emphasis added.)
Fundamental concepts that still apply under this rule. In addition
to addressing the comments raised during the comment period in this
rulemaking, we identified important concepts that were addressed in the
preamble to the original NCR, or that evolved since its publication,
that still apply under this final rule. They are being restated here to
preserve them and to provide useful guidance on the interpretation and
application of this rule.
Protection not punishment. Suspension and debarment are
administrative actions taken to protect the Government's business
interests. It should not be used to punish persons for past misconduct
or to coerce a respondent to resolve other criminal, civil or
administrative matters. While suspension and debarment will frequently
occur as a result of, or at the same time as other proceedings, and may
even be highly dependent upon the resolution of those other
proceedings, suspension and debarment are not alternatives for using
traditional means of resolving matters in the appropriate forum.
Notwithstanding this precaution, the suspending and debarring official
may resolve any matter otherwise appropriate for suspension or
debarment under the terms of a comprehensive or global agreement that
addresses criminal, civil, enforcement, audit, contract dispute, or
other proceeding collateral to it when in the best interest of the
Government to do so.
It is important for suspending and debarring officials to use
balance and sound business judgment in ascertaining whether to use
suspension and debarment to address a matter. Where other
administrative remedies are available, such as disallowing costs or
recovery of sums by set-off, filing of civil claims, or various
contractual or
[[Page 66542]]
audit options exist, the suspending or debarring official should
consider whether those remedies may be more appropriate under the
circumstances, or whether to await the outcome of those procedures
before using the suspension or debarment option.
Covered transactions and principals. While much of the NCR is
drafted in terms of an ``award'' being made by the Government or a
participant, it is important to note that the concept of covered
transactions is much broader than relationships or benefits that are
conferred through traditional vehicles such as grants, cooperative
agreements, direct loans, or contracts and subcontracts under them.
Loan guarantees, technical assistance, approvals, some licenses and
other privileges or events, not necessarily involving an award of
money, are covered transactions. Where money is part of the equation,
the direct or indirect nature of a participant's cost does not govern
whether the transaction is a ``covered transaction.'' This is because
many critical services, such as professional fees for legal,
accounting, engineering and other services may be charged as an
indirect cost to the nonprocurement transaction, but the services of
that individual or entity are still critical to performance. For
example, an accountant or accounting firm that is debarred for
misconduct may be ineligible to perform audit services for a grantee
under a covered transaction even though the accounting services are to
be charged by the participant as an indirect cost to its grant.
Even where a participant provides services under a covered
transaction that is being serviced by a volunteer who has been
suspended or debarred, the prohibition on the participant's use of that
volunteer in the capacity of a principal will apply to the covered
transaction.
Where the NCR is otherwise silent, each agency may describe in its
own rule those special transactions it regards as ``covered
transactions,'' and the services that when performed on behalf of a
participant are those of a ``principal.'' Failure to do so may limit
the agency's ability to apply the person's exclusion to or within the
transaction.
Jurisdiction to debar versus the effect of debarment. It is
important to separate the questions: ``Who may an agency suspend or
debar?'' and ``What is the excluded person suspended or debarred
from?'' The definition of ``person'' in section 985 and the authority
stated under section 135 of this rule answer the first question. An
agency may suspend or debar any individual or entity that may
reasonably be expected to be involved in a covered transaction. The
authority to take action against any person that may be `` * * *
reasonably expected to be involved in a covered transaction,'' is not
intended to operate as a limitation on an agency's ability to protect
itself. On the contrary, this rule gives agencies broad authority to
take action to protect public programs against any individual or entity
that presents a rational business risk to the Government's
nonprocurement programs. The answer to the second question is that the
suspended or debarred person is excluded from being a principal or
participant in any nonprocurement covered transaction that is not
exempt from coverage under the NCR (see section 215). Federal agencies
can freely enter into exempt transactions without checking the EPLS,
collecting certifications or assurances, or conditioning the award upon
non-debarment or suspension. Transactions that are exempt from coverage
include entitlements such as certain social security, disability, or
welfare benefits, etc. Exempt transactions also include benefits a
person receives that are incidental in nature, such as benefits flowing
to sellers of a primary residence when the sale is financed by an FHA
loan, or benefits that occur as a result of normal government
operations, such as insurance on deposits in Federal banks, use of the
postal services, and public use of national parks and recreation areas.
It is important for agencies to distinguish when a beneficiary of a
transaction is an intended beneficiary (not necessarily the principal
or primary beneficiary) and when a person is an incidental beneficiary.
An agency is not precluded from suspending or debarring any person
just because that person happens to be a participant in one of these
non-covered transactions. Indeed, an agency may even suspend or debar
that person for misconduct that occurs during performance of one of
those exempt or non-covered transactions, e.g., engaging in mail fraud,
or violating an environmental permit.
Serious violations of health, safety and environmental laws and
regulations. Although the causes for debarment do not specifically
identify by name various violations that threaten the health and safety
of workers or threaten the environment, serious violations of these
laws and regulations have always been subject to suspension or
debarment under several provisions, including section 305(a)(4) and/or
(d) of the NCR (now section 800(a)(4) and/or (d)). Any violation of
law, regulation or agreement; or any conduct, failure to perform or
other event that seriously threatens a Federal nonprocurement or
procurement activity, is subject to potential suspension and debarment
under this rule. On December 27, 2001, the Federal Acquisition
Regulatory Council issued a final rule (see 66 FR 66986-66990),
revoking the December 20, 2000 amendments to the FAR that included,
among other things, a contractor's health, safety and environmental
record in the contract officer's pre-award responsibility review. In so
doing, the FAR Council acknowledged that the Governmentwide suspension
and debarment system is the most effective and appropriate forum to
address serious concerns about a contractor's or participant's
responsibility for violations of this nature.
Transactions in foreign countries. The prohibitions against using
suspended or debarred persons in covered transactions applies equally
to transactions entered into by Federal agencies or participants in
foreign countries. So long as the transaction is one involving U.S.
Executive branch resources or benefits, the protection afforded by the
exclusion applies no matter where the covered transaction occurs. The
state or country of incorporation, registration, or principal place of
business of an excluded entity is irrelevant to its coverage. The
prohibition would not apply, however, if the transaction is exempt
because it is an award to a foreign government entity as described in
section 215(a).
Lead agency. Lead agency is not a jurisdictional concept. It is an
administrative procedure employed by the Federal agencies to bring
efficiency, focus and coordination of resources to bear on any matter
which may touch the interests and expertise of several agencies. A
respondent has no right to have any particular agency act as lead
agency in a suspension or debarment action. While section 620 of this
rule allows for agencies to coordinate their interests and select a
lead agency, failure to do so does not invalidate the actions of the
agency that handles the matter. The ISDC, under its authority in
sections 4 and 5 of E.O. 12549, uses flexible and informal procedures
to coordinate actions and assist in selecting a lead agency.
Submission of applications, bids and proposals versus award.
Questions often arise as to an excluded person's eligibility to submit
a bid, application or proposal for or under a covered transaction where
the bidder, applicant or offeror expects its suspension or
[[Page 66543]]
debarment to end prior to the award date. The NCR, like the FAR,
precludes awards to excluded persons. Since eligibility for award is
determined at that time, in most procurement and nonprocurement
transactions, agencies often accept bids, applications or proposals
subject to an eligibility determination on the date of award. However,
this rule does not require that agencies do so. Each agency must
determine for itself whether to accept or consider bids, applications
or offers submitted by an excluded person when there is a possibility
that an exclusion may end or be removed before the date of award. There
may be little danger in considering these submissions where it is clear
from the EPLS that a debarment will end on a date certain. However,
where a suspension is in place, or the debarred person is anticipating
a favorable ruling on a petition for early reinstatement prior to
award, caution is advised. In any event, it is the prerogative of the
awarding agency to decide whether and under what conditions it will
accept or consider bids, applications or proposals under these
circumstances.
What constitutes a new ``award?'' Once a person is excluded under
this rule, it is important to note that the exclusion applies to awards
or transactions entered into on or after the date of the exclusion.
Because of the varying types of agreements and contracts that may
exist, it is not always easy to determine whether a transaction is part
of an existing award or if it is a new award subject to the exclusion.
As a rule of thumb, if the transaction in question requires the
approval of the party awarding the transaction or conferring the
benefit, the transaction is a new award, and subject to the prohibition
on using excluded persons. If the transaction is part of a larger
agreement and the legal obligation and authority to provide goods or
services are already in place, the transaction may be regarded as a
preexisting transaction. No-cost time extensions under existing awards
can be treated as part of the existing award at the option of the
agency granting it.
Evidence of misconduct versus mere suspicion. Suspension or
debarment may not be imposed upon mere suspicion of misconduct. While
the procedures under this rule do not require suspending or debarring
officials to follow formal rules of evidence in making decisions, they
require that certain standards of proof of misconduct be met in order
to suspend or debar a person. These standards (adequate evidence for
suspension and preponderance of the evidence for debarment) require
that the suspending or debarring official base his or her decision on
an appropriate quality of information, according to the circumstances
at hand, so as to preclude suspending or debarring a person on the
basis of empty speculation or on mere suspicion of wrongdoing.
Suspension, adequate evidence and immediate need. The standard for
suspension is a two part test. First, the suspending official must have
adequate evidence that a cause for debarment exists. Second, the
suspending official must conclude that immediate action is necessary to
protect Federal interests. In a criminal case, the adequate evidence
test is met by the presence of an indictment or information.
Suspensions based upon evidence other than an indictment are common
during the course of an investigation when the information available to
the suspending official is sufficient to support a reasonable belief
that an act or omission has occurred. In some cases, evidence may be
made available to the suspending official that is sensitive to an
ongoing investigation. The suspending official may have to review the
evidence in camera and be unable to disclose the evidence to a
suspended respondent. In such cases, it is important that the
suspension notice contain enough information so that the respondent can
make a meaningful presentation of matters in opposition, since a fact-
finding proceeding is likely to be denied to resolve material facts in
dispute. In any event, the record must contain the evidence that was
considered in issuing the suspension.
Even in cases where an indictment is present, the suspending
official must determine that immediate action is necessary to protect
Federal interests before imposing a suspension. As noted in the
preamble to the proposed changes to this rule, the determination of
``immediate need'' does not require that the suspending official issue
a separate finding. As stated by the court in Coleman American Moving
Services, Inc. v. Weinberger, 716 F. Supp. 1405 (M.D. Ala. 1989),
immediate need is a conclusion that a suspending official may draw from
inferences made from the facts and circumstances present. In cases of
serious crimes such as fraud against the Government, or criminal
activity that threatens the health and safety of individuals, immediate
need may be obvious. In other cases, however, a suspending official's
determination of immediate need may not be as clear. It is, therefore,
important that the suspending official's record be sufficient for a
reviewing court to ascertain why immediate action was deemed prudent.
In this regard the term ``immediate'' does not connote that future
misconduct, loss, or injury is probable. A suspending official may
conclude that immediate action is needed based on what a reasonably
prudent business person would be expected to do given the risk
potential under the circumstances.
It is also important to note that the standard of evidence for
issuing a suspension does not change merely because the respondent
contests the action and is able to marshal some information that
conflicts with information the Government has provided to the
suspending official. In cases where an investigation is still underway,
particularly when fact-finding is not to be conducted at the request of
the prosecuting officials, the suspending official must be careful not
to apply the debarment standard of preponderance of the evidence when
deciding whether to continue the suspension. To do so would place the
Government at a disadvantage and bring the suspension decision out of
context with its goal of temporary protection pending the outcome of an
investigation or legal proceedings. Unless the respondent is able to
nullify the evidentiary basis for the suspension without regard to
resolving disputed material facts, the Government's evidence may remain
adequate to support the action. However, a respondent may still attempt
to have a suspension removed by addressing the Government's immediate
interests that are at risk. If the respondent can demonstrate that the
respondent has taken protective action to eliminate, or reduce to an
acceptable level, the Government's risk pending completion of the
investigation or legal proceedings, the suspending official may
terminate a suspension even though there is adequate evidence to
support a suspension.
Impact Analysis--Executive Order 12866
The participating agencies have examined the economic implications
of this final rule as required by Executive Order 12866, ``Regulatory
Planning and Review.'' Executive Order 12866 directs agencies to assess
all costs and benefits of available regulatory alternatives and, when
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety, and other advantages; distributive impacts; and
equity). Executive Order 12866 classifies a rule as significant if it
meets any one of a number of specified conditions,
[[Page 66544]]
including: Having an annual effect on the economy of $100 million,
adversely affecting a sector of the economy in a material way,
adversely affecting competition, or adversely affecting jobs. A
regulation is also considered a significant regulatory action if it
raises novel legal or policy issues.
Although the participating agencies have determined that this final
rule does not meet the economic significance threshold of $100 million
effect on the economy in any one year under Section 3(f)(1), the Office
of Management and Budget has reviewed this final rule as a significant
regulatory action under the Executive Order.
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 rule will not have a
significant impact on a substantial number of small entities. This 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 (Pub. L. 104-4) requires agencies
to prepare several analytic statements before proposing any rule that
may result in annual expenditures of $100 million by State, local,
Indian Tribal governments or the private sector. Since this rule does
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 rule does not impose
additional reporting or recordkeeping 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 rule will 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 rule will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government. 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 Final Common Rules
The text of the final 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 for Federal procurement contracts?
--.130 Does 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 address 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 What must I do before I enter into a covered transaction with
another person at the next lower tier?
--.305 May I enter into a covered transaction with an excluded or
disqualified person?
--.310 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
--.315 May I use the services of an excluded person as a principal
under a covered transaction?
--.320 Must I verify that principals of my covered transactions are
eligible to participate?
--.325 What happens if I do business with an excluded person in a
covered transaction?
--.330 What requirements must I pass down to persons at lower tiers
with whom I intend to do business?
Disclosing Information--Primary Tier Participants
--.335 What information must I provide before entering into a
covered transaction with the [Agency noun]?
--.340 If I disclose unfavorable information required under Sec.
--.335, will I be prevented from participating in the transaction?
--.345 What happens if I fail to disclose the information required
under Sec. --.335?
--.350 What must I do if I learn of the information required under
Sec. --.335 after entering into a covered transaction with the
[Agency noun]?
Disclosing Information--Lower Tier Participants
--.355 What information must I provide to a higher tier participant
before entering into a covered transaction with that participant?
--.360 What happens if I fail to disclose the information required
under Sec. --.355?
--.365 What must I do if I learn of information required under Sec.
--.355 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?
[[Page 66545]]
--.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. --.335?
--.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. --.355 to the next higher tier?
Subpart E--Excluded Parties List System
--.500 What is the purpose of the Excluded Parties List System
(EPLS)?
--.505 Who uses the EPLS?
--.510 Who maintains the EPLS?
--.515 What specific information is in the EPLS?
--.520 Who places the information into the EPLS?
--.525 Whom do I ask if I have questions about a person in the EPLS?
--.530 Where can I find the EPLS?
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 a suspension or
debarment action?
--.620 Do Federal agencies coordinate suspension and debarment
actions?
--.625 What is the scope of a suspension or debarment?
--.630 May the [Agency noun] impute 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 How is fact-finding conducted?
--.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?
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 How is fact-finding conducted?
--.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 Excluded Parties List System.
--.955 Indictment.
--.960 Ineligible or ineligibility.
--.965 Legal proceedings.
--.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:
------------------------------------------------------------------------
In subpart . . . You will find provisions 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 Excluded Parties List System
(Disseminated 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]
------------------------------------------------------------------------
[[Page 66546]]
(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, D, E, F, G and I.
(5) a debarring official.................. A, B, D, E, 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'' diagram 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. 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) Person who has been, is, or may reasonably be expected to be, 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 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 Sec. Sec. --.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 been involved, is currently involved, or may
reasonably be expected to be involved in a covered transaction.
Sec. --.140 How do I know if a person is excluded?
Check the Excluded Parties List System (EPLS) to determine whether
a person is excluded. The General Services Administration (GSA)
maintains the EPLS 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
[[Page 66547]]
nonprocurement or procurement debarment and suspension system, the
agency enters the information about the excluded person into the EPLS.
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 in the EPLS; 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. --.310 or Sec. --.415; or
(2) A(n) [Agency adjective] official obtains an exception from the
[Agency head or designee] to allow you to be 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?
(a) Covered transactions under this part--
(1) Do not include any procurement contracts awarded directly by a
Federal agency; but
(2) Do include some procurement contracts awarded by non-Federal
participants in nonprocurement covered transactions (see appendix to
this part).
(b) Specifically, a contract for goods or services is a covered
transaction if any of the following applies:
(1) 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.
(2) 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.
(3) 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 What must I do before I enter into a covered transaction
with another person at the next lower tier?
When you enter into a covered transaction with another person at
the next lower tier, you must verify that the person with whom you
intend to do business is not excluded or disqualified. You do this by:
(a) Checking the EPLS; or
(b) Collecting a certification from that person if allowed by this
rule; or
(c) Adding a clause or condition to the covered transaction with
that person.
Sec. --.305 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,
[[Page 66548]]
unless you have obtained an exception under the disqualifying statute,
Executive order, or regulation.
Sec. --.310 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. --.315 May I use the services of an excluded person as a
principal 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. You should make a decision about
whether to discontinue that person's services only after a thorough
review to ensure that the action is proper and appropriate.
(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. --.320 Must I verify that principals of my covered transactions
are eligible to participate?
Yes, you as a participant are responsible for determining whether
any of your principals 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 EPLS.
Sec. --.325 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. --.330 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. --.440
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. --.335 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 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. --.340 If I disclose unfavorable information required under
Sec. --.335, 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. --.335 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. --.345 What happens if I fail to disclose information required
under Sec. --.335?
If we later determine that you failed to disclose information under
Sec. --.335 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. --.350 What must I do if I learn of information required under
Sec. --.335 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. --.335; or
(b) Due to changed circumstances, you or any of the principals for
the transaction now meet any of the criteria in Sec. --.335.
Disclosing Information--Lower Tier Participants
Sec. --.355 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. --.360 What happens if I fail to disclose the information
required under Sec. --.355?
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. --.365 What must I do if I learn of information required under
Sec. --.355 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. --.355; or
(b) Due to changed circumstances, you or any of the principals for
the transaction now meet any of the criteria in Sec. --.355.
[[Page 66549]]
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 EPLS when you take any
action listed in Sec. --.425.
(b) You must review information that a participant gives you, as
required by Sec. --.335, 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. --.335?
If you as an agency official determine that a participant failed to
disclose information, as required by Sec. --.335, 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. --.355 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.
--.355, 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--Excluded Parties List System
Sec. --.500 What is the purpose of the Excluded Parties List System
(EPLS)?
The EPLS 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 EPLS?
(a) Federal agency officials use the EPLS to determine whether to
enter into a transaction with a person, as required under Sec. --.430.
(b) Participants also may, but are not required to, use the EPLS to
determine if--
(1) Principals of their transactions are excluded or disqualified,
as required under Sec. --.320; or
(2) Persons with whom they are entering into covered transactions
at the next lower tier are excluded or disqualified.
(c) The EPLS is available to the general public.
Sec. --.510 Who maintains the EPLS?
In accordance with the OMB guidelines, the General Services
Administration (GSA) maintains the EPLS. When a Federal agency takes an
action to exclude a person under the nonprocurement or procurement
debarment and suspension system, the agency enters the information
about the excluded person into the EPLS.
Sec. --.515 What specific information is in the EPLS?
(a) At a minimum, the EPLS indicates--
(1) The full name (where available) and address of each excluded or
disqualified person, in alphabetical
[[Page 66550]]
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 Dun and Bradstreet Number (DUNS), or other similar code
approved by the GSA, of the excluded or disqualified person, if
available.
(b)(1) The database for the EPLS includes a field for the Taxpayer
Identification Number (TIN) (the social security number (SSN) for an
individual) of an excluded or disqualified person.
(2) Agencies disclose the SSN of an individual to verify the
identity of an individual, only if permitted under the Privacy Act of
1974 and, if appropriate, the Computer Matching and Privacy Protection
Act of 1988, as codified in 5 U.S.C. 552(a).
Sec. --.520 Who places the information into the EPLS?
Federal officials who take actions to exclude persons under this
part or officials who are responsible for identifying disqualified
persons must enter the following information about those persons into
the EPLS:
(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, generally
within five working days, after--
(1) Taking an exclusion action;
(2) Modifying or rescinding an exclusion action;
(3) Finding that a person is disqualified; or
(4) Finding that there has been a change in the status of a person
who is listed as disqualified.
Sec. --.525 Whom do I ask if I have questions about a person in the
EPLS?
If you have questions about a person in the EPLS, ask the point of
contact for the Federal agency that placed the person's name into the
EPLS. You may find the agency point of contact from the EPLS.
Sec. --.530 Where can I find the EPLS?
(a) You may access the EPLS through the Internet, currently at
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://epls.arnet.gov.
(b) As of November 26, 2003, you may also subscribe to a printed
version. However, we anticipate discontinuing the printed version.
Until it is discontinued, you may obtain the printed version by
purchasing a yearly 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.
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.
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 temporary Imposes debarment for a
status of ineligibility for specified period as a final
procurement and nonprocurement determination that a person is
transactions, pending completion of an not presently responsible.
investigation or legal proceedings.
(b) Must--............................. Must conclude, based on a
(1) Have adequate evidence that there preponderance of the evidence,
may be a cause for debarment of a that the person has engaged in
person; and. conduct that warrants
(2) Conclude that immediate action is debarment.
necessary to protect the Federal
interest.
(c) Usually imposes the suspension Imposes debarment after giving
first, and then promptly notifies the the respondent notice of the
suspended person, giving the person an action and an opportunity to
opportunity to contest the suspension contest the proposed
and have it lifted. debarment.
------------------------------------------------------------------------
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 a
suspension or debarment action?
(a) The suspending or debarring official sends a written notice to
the last known street address, facsimile number, or e-mail address of--
(1) You or your identified counsel; or
(2) Your agent for service of process, or any of your partners,
officers, directors, owners, or joint venturers.
(b) The notice is effective if sent to any of these persons.
Sec. --.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
[[Page 66551]]
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 actions taken under this rule, we may impute
conduct as follows:
(a) Conduct imputed from an individual to an organization. We may
impute the fraudulent, criminal, or other improper conduct of any
officer, director, shareholder, partner, employee, or other individual
associated with an organization, to that organization when the improper
conduct occurred in connection with the individual's performance of
duties for or on behalf of that organization, or with the
organization's knowledge, approval or acquiescence. The organization's
acceptance of the benefits derived from the conduct is evidence of
knowledge, approval or acquiescence.
(b) Conduct imputed from an organization to an individual, or
between individuals. We may impute the fraudulent, criminal, or other
improper conduct of any organization to an individual, or from one
individual to another individual, if the individual to whom the
improper conduct is imputed either participated in, had knowledge of,
or reason to know of the improper conduct.
(c) Conduct imputed from one organization to another organization.
We may impute the fraudulent, criminal, or other improper conduct of
one organization to another organization when the improper conduct
occurred in connection with a partnership, joint venture, joint
application, association or similar arrangement, or when the
organization to whom the improper conduct is imputed has the power to
direct, manage, control or influence the activities of the organization
responsible for the improper conduct. Acceptance of the benefits
derived from the conduct is evidence of knowledge, approval or
acquiescence.
Sec. --.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 interest 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 enter information regarding a voluntary exclusion into
the EPLS.
(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 an indictment for, or other adequate evidence to
suspect, an offense listed under Sec. --.800(a), or
(b) There exists adequate evidence to suspect any other cause for
debarment listed under Sec. --.800(b) through (d); and
(c) 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 rrangements 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
[[Page 66552]]
(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 a 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 E.O. 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.
(b) You as a respondent or your representative must submit any
documentary evidence you want the suspending official to consider.
Sec. --.745 How is fact-finding conducted?
(a) If fact-finding is conducted--
(1) You may present witnesses and other evidence, and confront any
witness presented; and
(2) 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?
The suspending official must make a written decision whether to
continue, modify, or terminate your suspension within 45 days of
closing the official record. The official record closes upon the
suspending official's receipt of final submissions, information and
findings of fact, if any. The suspending official may extend that
period for good cause.
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
[[Page 66553]]
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;
(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?
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 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 E.O. 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.
Sec. --.840 How is fact-finding conducted?
(a) If fact-finding is conducted--
(1) You may present witnesses and other evidence, and confront any
witness presented; and
[[Page 66554]]
(2) 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 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) The debarring official must make a written decision whether to
debar within 45 days of closing the official record. The official
record closes upon the debarring official's receipt of final
submissions, information and findings of fact, if any. The debarring
official may extend that period for good cause.
(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;
[[Page 66555]]
(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?
(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
department, defense agency, or any other agency of the executive
branch. Other agencies of the Federal government are not considered
``agencies'' for the purposes of this part unless they issue
regulations adopting the governmentwide Debarment and Suspension system
under Executive orders 12549 and 12689.
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) 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
(b) Any other resolution that is the functional equivalent of a
judgment, including probation before judgment and deferred prosecution.
A disposition without the participation of the court is the functional
equivalent of a judgment only if it includes an admission of guilt.
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 Excluded Parties List System
Excluded Parties List System (EPLS) means the list maintained and
disseminated by the General Services Administration (GSA) containing
the names and other information about persons who are ineligible. The
EPLS system includes the printed version entitled, ``List of Parties
Excluded or Disqualified from Federal Procurement and Nonprocurement
Programs,'' so long as published.
Sec. --.955 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. --.960 Ineligible or ineligibility.
Ineligible or ineligibility means that a person or commodity is
prohibited from covered transactions because of an exclusion or
disqualification.
[[Page 66556]]
Sec. --.965 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. --.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
substantially influencing the development or outcome of an activity
required to perform the 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 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.
Subpart J--[Reserved]
Appendix to [Part/Subpart] ------Covered Transactions
BILLING CODE 6325-01-P et. al.
[[Page 66557]]
[GRAPHIC] [TIFF OMITTED] TR26NO03.000
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
[[Page 66558]]
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 Sec. Sec. --.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 A, B and E.
individual.
(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
in 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 Sec. Sec. --.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 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 must have the policy statement
is less than 30 days. 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 must have the policy statement
is 30 days or more. and program in place within 30
days after award.
(c) You believe there are extraordinary may ask the [Agency adjective]
circumstances that will require more awarding official to give you
than 30 days for you to publish the more time to do so. The amount
policy statement and establish the of additional time, if any, to
awareness program. be given is at the discretion
of the awarding official.
------------------------------------------------------------------------
[[Page 66559]]
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
(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 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
[[Page 66560]]
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 is a distinct and
separate action from suspension of an award or suspension of payments
under an award.
Adoption of Common Rules
The adoption of the 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.
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
[[Page 66561]]
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, Debarment and suspension,
Government employees, Health facilities, Health insurance, and Health
professions.
Dated: August 28, 2003.
U.S. Office of Personnel Management.
Kay Cole James,
Director.
0
For the reasons stated in the common preamble, the Office of Personnel
Management amends 5 CFR, Code of Federal Regulations as follows:
0
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 for Federal procurement contracts?
970.130 Does 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 address 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 is
a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
970.300 What must I do before I enter into a covered transaction
with another person at the next lower tier?
970.305 May I enter into a covered transaction with an excluded or
disqualified person?
970.310 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
970.315 May I use the services of an excluded person as a principal
under a covered transaction?
970.320 Must I verify that principals of my covered transactions are
eligible to participate?
970.325 What happens if I do business with an excluded person in a
covered transaction?
970.330 What requirements must I pass down to persons at lower tiers
with whom I intend to do business?
Disclosing Information--Primary Tier Participants
970.335 What information must I provide before entering into a
covered transaction with the OPM?
970.340 If I disclose unfavorable information required under Sec.
970.335, will I be prevented from participating in the transaction?
970.345 What happens if I fail to disclose the information required
under Sec. 970.335?
970.350 What must I do if I learn of the information required under
Sec. 970.335 after entering into a covered transaction with the
OPM?
Disclosing information--Lower Tier Participants
970.355 What information must I provide to a higher tier participant
before entering into a covered transaction with that participant?
970.360 What happens if I fail to disclose the information required
under Sec. 970.355?
970.365 What must I do if I learn of information required under
Sec. 970.355 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. 970.335?
970.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 970.355 to the next higher
tier?
Subpart E--Excluded Parties List System
970.500 What is the purpose of the Excluded Parties List System
(EPLS)?
970.505 Who uses the EPLS?
970.510 Who maintains the EPLS?
970.515 What specific information is in the EPLS?
970.520 Who places the information into the EPLS?
970.525 Whom do I ask if I have questions about a person in the
EPLS?
970.530 Where can I find the EPLS?
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 a suspension and
debarment action?
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?
[[Page 66562]]
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 How is fact-finding conducted?
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 How is fact-finding conducted?
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 Excluded Parties List System.
970.955 Indictment.
970.960 Ineligible or ineligibility.
970.965 Legal proceedings.
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.
0
2. Part 970 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``OPM'' is added in its place
wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``OPM'' is added in its place
wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Debarring Official''
is added in its place wherever it occurs.
0
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
SUMMARY: The United States Department of Agriculture (USDA) adopts the
common rule on nonprocurement debarment and suspension and drug-free
workplace on an interim final basis solely in order to request further
comment on Sec. Sec. 3017.765 and 3017.890.
DATES: Comments should be submitted on or before January 26, 2004 in
order to be ensured of consideration. Comments received after this date
may be considered to the extent practicable.
ADDRESSES: Comments should be sent to Tyson Whitney, OCFO-PAD Room
3448A, Mail Stop 9020, 1400 Independence Avenue, SW., Washington, DC
20250-9020, (202) 720-8978. Comments may also be submitted via electronic mail to twhitney@cfo.usda.gov. All comments, including names
and addresses, will become a matter of public record.
FOR FURTHER INFORMATION CONTACT: Tyson Whitney, OCFO-PAD Room 3448A,
Mail Stop 9020, 1400 Independence Avenue, SW., Washington, DC 20250-
9020, (202) 720-8978.
SUPPLEMENTARY INFORMATION:
Sections 3017.765 and 3017.890 supplement the procedures in the
common rule for contesting the decision of the suspending or debarring
official by allowing for a further appeal of the decision of the
suspending or debarring official, made in response to a contested
suspension or debarment, to an administrative law judge (``ALJ'') of
the Department of Agriculture (``USDA''). While at present adopting
those provisions as they were proposed on January 23, 2002, USDA seeks
further comment on whether these provisions are necessary or add
substantive value to the suspension and debarment process.
These provisions originally were included in the current USDA
nonprocurement suspension and debarment regulation (7 CFR 3017.515)
because it was thought that the courts would give more deference to the
findings of an ALJ than to those of an executive branch agency's
suspending or debarring official. That has not been the experience of
USDA, and in fact the decisions of other executive agencies without
appeal from decisions made by the suspending or debarring official
under the contest provision in the common rule have withstood judicial
scrutiny. Accordingly, since the common rule does not require appeal to
an ALJ, USDA is considering removing sections 3017.765 and 3017.890 in
the final rule in order to eliminate an unnecessary, time-consuming,
and costly stage of litigation.
Section 3017.935(b) and 3017.1010(b) of the proposed rule would
have authorized the Secretary of Agriculture to delegate the authority
to be the debarring or suspending official, respectively, to the
Administrators of USDA program agencies, who further would have been
authorized to redelegate that authority except for the authority to
make a final debarment or suspension decision. The proposed rule, if
adopted as final, would have had the effect of repealing the authority
in the current rule in 7 CFR 3017.105 authorizing the Chief of the
Forest Service to redelegate the authority to make final debarment or
suspension decisions to the Deputy Chief or an Associate Deputy Chief
for the National Forest System. In the interim final rule, USDA is
revising the text of sections 3017.935(b) and 3017.1010(b) to preserve
the authority of the Chief of the Forest Service to redelegate his
authority to the Deputy Chief or an Associate Deputy Chief. Since this
is a rule of internal agency management, notice and comment for this
change is
[[Page 66563]]
not required. The text is also revised to reflect the delegation to the
head of an organizational unit of the Department, instead of an
administrator, because not all organizational units of the Department
are headed by an administrator. Some additional changes to the proposed
rule language are made in this interim final rule to improve grammar
and conform to the plain English model of regulatory drafting.
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: August 6, 2003.
Ann M. Veneman,
Secretary of Agriculture.
0
For the reasons stated in the common preamble, the United States
Department of Agriculture amends 7 CFR chapter XXX, as follows:
0
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 for Federal procurement contracts?
3017.130 Does 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 address 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 in which I may participate
is a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
3017.300 What must I do before I enter into a covered transaction
with another person at the next lower tier?
3017.305 May I enter into a covered transaction with an excluded or
disqualified person?
3017.310 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
3017.315 May I use the services of an excluded person as a principal
under a covered transaction?
3017.320 Must I verify that principals of my covered transactions
are eligible to participate?
3017.325 What happens if I do business with an excluded person in a
covered transaction?
3017.330 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Disclosing Information--Primary Tier Participants
3017.335 What information must I provide before entering into a
covered transaction with the Department of Agriculture?
3017.340 If I disclose unfavorable information required under Sec.
3017.335, will I be prevented from participating in the transaction?
3017.345 What happens if I fail to disclose the information required
under Sec. 3017.335?
3017.350 What must I do if I learn of the information required under
Sec. 3017.335 after entering into a covered transaction with the
Department of Agriculture?
Disclosing Information--Lower Tier Participants
3017.355 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
3017.360 What happens if I fail to disclose the information required
under Sec. 3017.355?
3017.365 What must I do if I learn of information required under
Sec. 3017.355 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?
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. 3017.335?
3017.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 3017.355 to the next higher
tier?
Subpart E--Excluded Parties List System
3017.500 What is the purpose of the Excluded Parties List System
(EPLS)?
3017.505 Who uses the EPLS?
3017.510 Who maintains the EPLS?
3017.515 What specific information is in the EPLS?
3017.520 Who places the information into the EPLS?
3017.525 Whom do I ask if I have questions about a person in the
EPLS?
3017.530 Where can I find the EPLS?
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 or debarment actions?
3017.615 How does the Department of Agriculture notify a person of a
suspension and debarment action?
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?
[[Page 66564]]
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 How is fact-finding conducted?
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 How is fact-finding conducted?
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 Excluded Parties List System.
3017.955 Indictment.
3017.960 Ineligible or ineligibility.
3017.965 Legal proceedings.
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 2.28.
0
2. Part 3017 is further amended as set forth below:
0
a. ``[Agency noun]'' is removed and ``Department of Agriculture'' is
added in its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``Department of Agriculture''
is added in its place wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``the Secretary of
Agriculture or designee'' is added in its place wherever it occurs.
0
3. Section 3017.50 is further amended by adding a sentence at the end
of paragraph (c) to read as follows:
Sec. 3017.50 How is this part written?
* * * * *
(c) * * * However, this diagram shows only the general model for
the levels or ``tiers'' at which the Department of Agriculture enforces
an exclusion under this part, and the model will vary for certain
categories of transactions in accordance with the exclusions from
covered transactions in Sec. 3017.215 and Sec. 3017.220.
0
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 statute,
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
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.
0
5. Section 3017.220 is amended by adding paragraph (c) to read as
follows:
Sec. 3017.220 Are any procurement contracts included as covered
transactions?
* * * * *
(c) A contract for the procurement of ocean transportation in
connection with the Department of Agriculture's foreign
[[Page 66565]]
assistance programs is a covered transaction. With respect to the
Department of Agriculture's export and foreign assistance programs,
such contracts are the only procurement contracts included as covered
transactions, notwithstanding the provisions in paragraphs (a) and (b)
of this section.
0
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 a similar
term or condition in their lower-tier covered transactions.
0
7. Section 3017.755 is further amended by adding a sentence at the end
to read as follows:
Sec. 3017.755 When will I know whether the suspension is continued or
terminated?
* * * 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.
0
8. Section 3017.765 is added to subpart G to read as follows:
Sec. 3017.765 How may I appeal my suspension?
(a) You may file an appeal only after you have exhausted the option
provided for in Sec. 3017.720 to contest the suspension. You must file
your appeal within 30 days of receiving the decision required by Sec.
3017.755 and your filing must specify the basis of the appeal. You must
submit your 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 assigned appeals officer
may vacate the decision of the suspending official 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 that you file your appeal with
USDA's OALJ Hearing Clerk, the appeals officer will give written
notification of the decision to you and to the suspending official who
took the action being appealed.
(d) The appeals officer's decision is final and is not appealable
within USDA.
0
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.
0
10. Section 3017.870 is further amended by adding a sentence at 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.
* * * * *
0
11. Section 3017.890 is added to subpart H to read as follows:
Sec. 3017.890 How may I appeal my debarment?
(a) You may file an appeal only after you have exhausted the option
provided for in Sec. 3017.815 to contest the debarment. You must file
your appeal within 30 days of receiving the decision required by Sec.
3017.870 and your filing must specify the basis of the appeal. You must
submit your 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 assigned appeals officer
may vacate the decision of the debarring official 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 that you file your appeal with
USDA's OALJ Hearing Clerk, the appeals officer will give written
notification of the decision to you and to the debarring official who
took the action being appealed.
(d) The appeals officer's decision is final and is not appealable
within USDA.
0
12. Section 3017.935 is further amended by adding paragraph (b) to read
as follows:
Sec. 3017.935 Debarring official.
* * * * *
(b) The head of an organizational unit within the Department of
Agriculture (e.g., Administrator, Food and Nutrition Service), who has
been delegated authority in part 2 of this title to carry out a covered
transaction, is delegated authority to act as the debarring official in
connection with such transaction. This authority to act as a debarring
official may not be redelegated below the head of the organizational
unit, except that, in the case of the Forest Service, the Chief may
redelegate the authority to act as a debarring official to the Deputy
Chief or an Associate Deputy Chief for the National Forest System.
0
13. Section 3017.1010 is further amended by adding paragraph (b) to
read as follows:
Sec. 3017.1010 Suspending official.
* * * * *
(b) The head of an organizational unit within the Department of
Agriculture (e.g., Administrator, Food and Nutrition Service), who has
been delegated authority in part 2 of this title to carry out a covered
transaction, is delegated authority to act as the suspending official
in connection with such transaction. This authority to act as a
suspending official may not be redelegated below the head of the
organizational unit, except that, in the case of the Forest Service,
the Chief may redelegate the authority to act as a suspending official
to the Deputy Chief or an Associate Deputy Chief for the National
Forest System.
0
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?
[[Page 66566]]
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 Sec. 2.28.
0
15. Part 3021 is further amended as set forth below:
0
a. ``[Agency noun]'' is removed and ``Department of Agriculture'' is
added in its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``Department of Agriculture''
is added in its place wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``the Secretary of
Agriculture or designee'' is added in its place wherever it occurs.
0
d. ``[Agency head]'' is removed and ``the Secretary of Agriculture'' is
added in its place wherever it occurs.
0
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.
0
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.
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 Parts 607 and 1036
Administrative practice and procedure, Drug abuse, Grant programs,
Reporting and recordkeeping requirements.
Issuance of this final rule has been approved by the Office of
the Secretary of Energy.
Dated: August 22, 2003.
Richard H. Hopf,
Director, Office of Procurement and Assistance Management, Office of
Management, Budget and Evaluation, Department of Energy.
Dated: August 22, 2003.
Robert C. Braden, Jr.,
Director, Office of Procurement and Assistance Management, National
Nuclear Security Administration.
0
For the reason stated 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 amends 10 CFR Chapters II and X, as follows.
0
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)
Sec.
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 for Federal procurement contracts?
606.130 Does 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 address 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 in which I may participate is
a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
606.300 What must I do before I enter into a covered transaction
with another person at the next lower tier?
606.305 May I enter into a covered transaction with an excluded or
disqualified person?
606.310 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
606.315 May I use the services of an excluded person as a principal
under a covered transaction?
606.320 Must I verify that principals of my covered transactions are
eligible to participate?
606.325 What happens if I do business with an excluded person in a
covered transaction?
606.330 What requirements must I pass down to persons at lower tiers
with whom I intend to do business?
Disclosing Information--Primary Tier Participants
606.335 What information must I provide before entering into a
covered transaction with the Department of Energy?
606.340 If I disclose unfavorable information required under Sec.
606.335, will I be prevented from participating in the transaction?
606.345 What happens if I fail to disclose the information required
under Sec. 606.335?
606.350 What must I do if I learn of the information required under
Sec. 606.335
[[Page 66567]]
after entering into a covered transaction with the Department of
Energy?
Disclosing Information--Lower Tier Participants
606.355 What information must I provide to a higher tier participant
before entering into a covered transaction with that participant?
606.360 What happens if I fail to disclose the information required
under Sec. 606.355?
606.365 What must I do if I learn of information required under
Sec. 606.355 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 those requirement to
participants?
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. 606.335?
606.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 606.355 to the next higher
tier?
Subpart E--Excluded Parties List System
606.500 What is the purpose of the Excluded Parties List System
(EPLS)?
606.505 Who uses the EPLS?
606.510 Who maintains the EPLS?
606.515 What specific information is in the EPLS?
606.520 Who places the information into the EPLS?
606.525 Whom do I ask if I have questions about a person in the
EPLS?
606.530 Where can I find the EPLS?
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 a
suspension and debarment action?
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 How is fact-finding conducted?
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 How is fact-finding conducted?
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.
606.940 Disqualified.
606.945 Excluded or exclusion.
606.950 Excluded Parties List System.
606.955 Indictment.
606.960 Ineligible or ineligibility.
606.965 Legal proceedings.
606.970 Nonprocurement transaction.
606.975 Notice.
606.980 Participant.
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.
0
2. Part 606 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``Department of Energy'' is added
in its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``DOE'' is added in its place
wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Director, Office of
Procurement and Assistance Management, DOE, for DOE actions, and
Director, Office of Procurement and Assistance Management, NNSA, for
NNSA actions'' are added in its place wherever it occurs.
0
3. Section 606.440 is added to read as follows:
Sec. 606.440 What method do I use to communicate those requirements
to participants?
To communicate the requirements, you must include a term or
condition in the transaction requiring the
[[Page 66568]]
participants' compliance with subpart C of this part and requiring them
to include a similar term or condition in lower-tier covered
transactions.
0
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.
0
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.
0
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 means the U.S. Department of Energy, including
the National Nuclear Security Administration (NNSA).
0
7. Section 606.935 is further amended by adding paragraph (b) to read
as follows:
Sec. 606.935 Debarring official.
* * * * *
(b) The debarring official for the Department of Energy, exclusive
of NNSA, is the Director, Office of Procurement and Assistance
Management, DOE. The debarring official for NNSA is the Director,
Office of Procurement and Assistance Management, NNSA.
0
8. Section 606.1010 is further amended by adding paragraph (b) to read
as follows:
Sec. 606.1010 Suspending official.
* * * * *
(b) The suspending official for the Department of Energy, exclusive
of NNSA, is the Director, Office of Procurement and Assistance
Management, DOE. The suspending official for NNSA is the Director,
Office of Procurement and Assistance Management, NNSA.
0
9. 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
Sec.
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.
607.635 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.
0
10. Part 607 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``Department of Energy'' is added
in its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``DOE'' is added in its place
wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Director, Office of
Procurement and Assistance Management, DOE, for DOE actions, and
Director, Office of Procurement and Assistance Management, NNSA, for
NNSA actions'' are added in its place wherever it occurs.
0
d. ``[Agency head]'' is removed and ``Secretary of Energy'' is added in
its place wherever it occurs.
0
11. 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.
0
12. Section 607.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``10 CFR Part 600'' in its place.
0
13. 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 means the U.S. Department of Energy, including
the National Nuclear Security Administration (NNSA).
* * * * *
PART 1036--[Removed]
0
14. Part 1036 is removed.
-----------------------------------------------------------------------
EXPORT-IMPORT BANK OF THE UNITED STATES
12 CFR Part 413
RIN 3048-ZA03
ADDRESSES: Comments should be sent to Howard Schweitzer, Assistant
General Counsel for Administration, Export-Import Bank of the United
States, 811 Vermont Ave., NW., Washington, DC 20571, or to howard.schweitzer@exim.gov.
FOR FURTHER INFORMATION CONTACT: Howard Schweitzer, Assistant General
Counsel for Administration, Export-Import Bank of the United States, (202) 565-3229, or at howard.schweitzer@exim.gov.
SUPPLEMENTARY INFORMATION: Ex-Im Bank publishes this interim final rule
in order to join the publication of regulations amending the common
rule
[[Page 66569]]
on nonprocurement suspension and debarment. As discussed in detail in
the common preamble to this rule, the substantive provisions of the
common rule have previously been the subject of a notice and comment
period. Ex-Im Bank is not at this time adopting any optional provisions
contained in the common rule that depart from the substance of the base
text of the common rule. For these reasons, Ex-Im Bank finds, pursuant
to 5 U.S.C. 553 (b)(B), that a notice and comment period is unnecessary
with respect to its adoption of the base text of the common rule.
It should also be noted that Ex-Im Bank will not be adopting those
provisions of the common preamble concerning the Government-wide
Requirements for Drug-Free Workplace (Grants). Ex-Im Bank does not
issue cooperative agreements, awards, grants or other financial
assistance covered by these provisions.
List of Subjects in 12 CFR Part 413
Administrative practice and procedure, Debarment and suspension,
Government contracts, Loan programs, Reporting and recordkeeping
requirements.
Dated: August 4, 2003.
Peter B. Saba,
General Counsel, The Export-Import Bank of the United States.
0
For the reasons stated in the preamble, the Export-Import Bank of the
United States amends 12 CFR chapter IV as follows:
0
1. Part 413 is added to read as set forth in instruction 1 at the end
of the common preamble.
PART 413--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
Sec.
413.25 How is this part organized?
413.50 How is this part written?
413.75 Do terms in this part have special meanings?
Subpart A--General
413.100 What does this part do?
413.105 Does this part apply to me?
413.110 What is the purpose of the nonprocurement debarment and
suspension system?
413.115 How does an exclusion restrict a person's involvement in
covered transactions?
413.120 May we grant an exception to let an excluded person
participate in a covered transaction?
413.125 Does an exclusion under the nonprocurement system affect a
person's eligibility for Federal procurement contracts?
413.130 Does exclusion under the Federal procurement system affect a
person's eligibility to participate in nonprocurement transactions?
413.135 May the Ex-Im Bank exclude a person who is not currently
participating in a nonprocurement transaction?
413.140 How do I know if a person is excluded?
413.145 Does this part address persons who are disqualified, as well
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
413.200 What is a covered transaction?
413.205 Why is it important to know if a particular transaction is a
covered transaction?
413.210 Which nonprocurement transactions are covered transactions?
413.215 Which nonprocurement transactions are not covered
transactions?
413.220 Are any procurement contracts included as covered
transactions?
413.225 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
413.300 What must I do before I enter into a covered transaction
with another person at the next lower tier?
413.305 May I enter into a covered transaction with an excluded or
disqualified person?
413.310 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
413.315 May I use the services of an excluded person as a principal
under a covered transaction?
413.320 Must I verify that principals of my covered transactions are
eligible to participate?
413.325 What happens if I do business with an excluded person in a
covered transaction?
413.330 What requirements must I pass down to persons at lower tiers
with whom I intend to do business?
Disclosing Information--Primary Tier Participants
413.335 What information must I provide before entering into a
covered transaction with the Ex-Im Bank?
413.340 If I disclose unfavorable information required under Sec.
413.335, will I be prevented from participating in the transaction?
413.345 What happens if I fail to disclose the information required
under Sec. 413.335?
413.350 What must I do if I learn of the information required under
Sec. 413.335 after entering into a covered transaction with the Ex-
Im Bank?
Disclosing Information--Lower Tier Participants
413.355 What information must I provide to a higher tier participant
before entering into a covered transaction with that participant?
413.360 What happens if I fail to disclose the information required
under Sec. 413.355?
413.365 What must I do if I learn of information required under
Sec. 413.355 after entering into a covered transaction with a
higher tier participant?
Subpart D--Responsibilities of Ex-Im Bank Officials Regarding
Transactions
413.400 May I enter into a transaction with an excluded or
disqualified person?
413.405 May I enter into a covered transaction with a participant if
a principal of the transaction is excluded?
413.410 May I approve a participant's use of the services of an
excluded person?
413.415 What must I do if a Federal agency excludes the participant
or a principal after I enter into a covered transaction?
413.420 May I approve a transaction with an excluded or disqualified
person at a lower tier?
413.425 When do I check to see if a person is excluded or
disqualified?
413.430 How do I check to see if a person is excluded or
disqualified?
413.435 What must I require of a primary tier participant?
413.440 What method do I use to communicate those requirements to
participants?
413.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
413.450 What action may I take if a primary tier participant fails
to disclose the information required under Sec. 413.335?
413.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 413.355 to the next higher
tier?
Subpart E--Excluded Parties List System
413.500 What is the purpose of the Excluded Parties List System
(EPLS)?
413.505 Who uses the EPLS?
413.510 Who maintains the EPLS?
413.515 What specific information is in the EPLS?
413.520 Who places the information into the EPLS?
413.525 Whom do I ask if I have questions about a person in the
EPLS?
413.530 Where can I find the EPLS?
Subpart F--General Principles Relating to Suspension and Debarment
Actions
413.600 How do suspension and debarment actions start?
413.605 How does suspension differ from debarment?
413.610 What procedures does the Ex-Im Bank use in suspension and
debarment actions?
413.615 How does the Ex-Im Bank notify a person of a suspension and
debarment action?
413.620 Do Federal agencies coordinate suspension and debarment
actions?
413.625 What is the scope of a suspension or debarment action?
413.630 May the Ex-Im Bank impute the conduct of one person to
another?
[[Page 66570]]
413.635 May the Ex-Im Bank settle a debarment or suspension action?
413.640 May a settlement include a voluntary exclusion?
413.645 Do other Federal agencies know if the Ex-Im Bank agrees to a
voluntary exclusion?
Subpart G--Suspension
413.700 When may the suspending official issue a suspension?
413.705 What does the suspending official consider in issuing a
suspension?
413.710 When does a suspension take effect?
413.715 What notice does the suspending official give me if I am
suspended?
413.720 How may I contest a suspension?
413.725 How much time do I have to contest a suspension?
413.730 What information must I provide to the suspending official
if I contest a suspension?
413.735 Under what conditions do I get an additional opportunity to
challenge the facts on which the suspension is based?
413.740 Are suspension proceedings formal?
413.745 How is fact-finding conducted?
413.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
413.755 When will I know whether the suspension is continued or
terminated?
413.760 How long may my suspension last?
Subpart H--Debarment
413.800 What are the causes for debarment?
413.805 What notice does the debarring official give me if I am
proposed for debarment?
413.810 When does a debarment take effect?
413.815 How may I contest a proposed debarment?
413.820 How much time do I have to contest a proposed debarment?
413.825 What information must I provide to the debarring official if
I contest a proposed debarment?
413.830 Under what conditions do I get an additional opportunity to
challenge the facts on which the proposed debarment is based?
413.835 Are debarment proceedings formal?
413.840 How is fact-finding conducted?
413.845 What does the debarring official consider in deciding
whether to debar me?
413.850 What is the standard of proof in a debarment action?
413.855 Who has the burden of proof in a debarment action?
413.860 What factors may influence the debarring official's
decision?
413.865 How long may my debarment last?
413.870 When do I know if the debarring official debars me?
413.875 May I ask the debarring official to reconsider a decision to
debar me?
413.880 What factors may influence the debarring official during
reconsideration?
413.885 May the debarring official extend a debarment?
Subpart I--Definitions
413.900 Adequate evidence.
413.905 Affiliate.
413.910 Agency.
413.915 Agent or representative.
413.920 Civil judgment.
413.925 Conviction.
413.930 Debarment.
413.935 Debarring official.
413.940 Disqualified.
413.945 Excluded or exclusion.
413.950 Excluded Parties List System.
413.955 Indictment.
413.960 Ineligible or ineligibility.
413.965 Legal proceedings.
413.970 Nonprocurement transaction.
413.975 Notice.
413.980 Participant.
413.985 Person.
413.990 Preponderance of the evidence.
413.995 Principal.
413.1000 Respondent.
413.1005 State.
413.1010 Suspending official.
413.1015 Suspension.
413.1020 Voluntary exclusion or voluntarily excluded.
Subpart J--[Reserved]
Appendix to Part 413--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).
0
2. Part 413 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``Ex-Im Bank'' is added in its
place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``Ex-Im Bank'' is added in its
place wherever it occurs.
0
c. '[Agency head or designee]'' is removed and ``Ex-Im Bank agency head
or designee'' is added in its place wherever it occurs.
0
3. Section 413.440 is added to read as follows:
Sec. 413.440 What method do I use to communicate those requirements
to participants?
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.
-----------------------------------------------------------------------
SMALL BUSINESS ADMINISTRATION
13 CFR Parts 145 and 147
RIN 3245-AE61
FOR FURTHER INFORMATION CONTACT: Darryl K. Hairston, SBA Debarring
Official, Assistant Administrator for Administration (5331), U.S. Small
Business Administration, 409 Third Street, SW., Washington, DC 20416, (202) 205-6630, e-mail: darryl.hairston@sba.gov.
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: September 12, 2003.
Hector V. Barreto,
Administrator, U.S. Small Business Administration.
0
For the reasons stated in the common preamble, the U.S. Small Business
Administration proposes to amend 13 CFR Chapter I as follows:
0
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 for Federal procurement contracts?
145.130 Does 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 address 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?
[[Page 66571]]
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 in which I may participate in
is a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
145.300 What must I do before I enter into a covered transaction
with another person at the next lower tier?
145.305 May I enter into a covered transaction with an excluded or
disqualified person?
145.310 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
145.315 May I use the services of an excluded person as a principal
under a covered transaction?
145.320 Must I verify that principals of my covered transactions are
eligible to participate?
145.325 What happens if I do business with an excluded person in a
covered transaction?
145.330 What requirements must I pass down to persons at lower tiers
with whom I intend to do business?
Disclosing Information--Primary Tier Participants
145.335 What information must I provide before entering into a
covered transaction with the SBA?
145.340 If I disclose unfavorable information required under Sec.
145.335, will I be prevented from participating in the transaction?
145.345 What happens if I fail to disclose the information required
under Sec. 145.335?
145.350 What must I do if I learn of the information required under
Sec. 145.335 after entering into a covered transaction with the
SBA?
Disclosing Information--Lower Tier Participants
145.355 What information must I provide to a higher tier participant
before entering into a covered transaction with that participant?
145.360 What happens if I fail to disclose the information required
under Sec. 145.355?
145.365 What must I do if I learn of information required under
Sec. 145.355 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 those 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. 145.335?
145.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 145.355 to the next higher
tier?
Subpart E--Excluded Parties List System
145.500 What is the purpose of the Excluded Parties List System
(EPLS)?
145.505 Who uses the EPLS?
145.510 Who maintains the EPLS?
145.515 What specific information is in the EPLS?
145.520 Who places the information into the EPLS?
145.525 Whom do I ask if I have questions about a person in the
EPLS?
145.530 Where can I find the EPLS?
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 a suspension and
debarment action?
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 How is fact-finding conducted?
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 How is fact-finding conducted?
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 Excluded Parties List System.
145.955 Indictment.
145.960 Ineligible or ineligibility.
145.965 Legal proceedings.
145.970 Nonprocurement transaction.
[[Page 66572]]
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.
0
2. Part 145 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and the ``SBA'' is added in its place
wherever it occurs.
0
b. ``[Agency adjective]'' is removed and the ``SBA'' is added in its
place wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and the ``SBA Debarring
Official'' is added in its place wherever it occurs.
0
3. Section 145.220 is further amended by adding a paragraph (c) to read
as follows:
Sec. 145.220 Are any procurement contracts included as covered
transactions?
* * * * *
(c) 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 that is expected to equal or exceed $25,000.
(See optional lower tier coverage shown in the diagram in the appendix
to this part.)
0
4. Section 145.440 is added to read as follows:
Sec. 145.440 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.
0
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 Sec. Sec. 145.615 and 145.975.
0
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 Sec. Sec. 145.615 and 145.975.
0
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 debarring official for financial assistance
programs means the Assistant Administrator for Lender Oversight; for
all other programs, the debarring official means the Assistant
Administrator for Administration.
0
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.
0
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 suspending official for financial assistance
programs means the Assistant Administrator for Lender Oversight; for
all other programs, the suspending official means the Assistant
Administrator for Administration.
0
10. Part 147 is added to read as set forth in instruction 2 at the end
of the common preamble.
[[Page 66573]]
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?
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.
0
11. Part 147 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and the ``SBA'' is added in its place
wherever it occurs.
0
b. ``[Agency adjective]'' is removed and the ``SBA'' is added in its
place wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and the ``SBA Administrator
or designee'' is added in its place wherever it occurs.
0
d. ``[Agency head]'' is removed and the ``SBA Administrator'' is added
in its place wherever it occurs.
0
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.
0
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-AC76
FOR FURTHER INFORMATION CONTACT: Paul Brundage, NASA Headquarters, 300
E Street, SW, Washington, DC 20546-0001, (202) 358-0481, e-mail: paul.d.brundage@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.
Dated: July 8, 2003.
Tom Luedtke,
Assistant Administrator for Procurement.
0
For the reasons stated in the common preamble, the National Aeronautics
and Space Administration amends 14 CFR chapter V as follows:
0
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 for Federal procurement contracts?
1265.130 Does 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 address 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 in which I may participate
is a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
1265.300 What must I do before I enter into a covered transaction
with another person at the next lower tier?
1265.305 May I enter into a covered transaction with an excluded or
disqualified person?
1265.310 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
1265.315 May I use the services of an excluded person as a principal
under a covered transaction?
1265.320 Must I verify that principals of my covered transactions
are eligible to participate?
1265.325 What happens if I do business with an excluded person in a
covered transaction?
1265.330 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
[[Page 66574]]
Disclosing Information--Primary Tier Participants
1265.335 What information must I provide before entering into a
covered transaction with NASA?
1265.340 If I disclose unfavorable information required under Sec.
1265.335, will I be prevented from participating in the transaction?
1265.345 What happens if I fail to disclose the information required
under Sec. 1265.335?
1265.350 What must I do if I learn of the information required under
Sec. 1265.335 after entering into a covered transaction with NASA?
Disclosing Information--Lower Tier Participants
1265.355 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
1265.360 What happens if I fail to disclose the information required
under Sec. 1265.355?
1265.365 What must I do if I learn of information required under
Sec. 1265.355 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?
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. 1265.335?
1265.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 1265.355 to the next higher
tier?
Subpart E--Excluded Parties List System
1265.500 What is the purpose of the Excluded Parties List System
(EPLS)?
1265.505 Who uses the EPLS?
1265.510 Who maintains the EPLS?
1265.515 What specific information is in the EPLS?
1265.520 Who places the information into the EPLS?
1265.525 Whom do I ask if I have questions about a person in the
EPLS?
1265.530 Where can I find the EPLS?
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 a suspension and debarment
action?
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 How is fact-finding conducted?
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?
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 How is fact-finding conducted?
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?
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 Excluded Parties List System.
1265.955 Indictment.
1265.960 Ineligible or ineligibility.
1265.965 Legal proceedings.
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).
0
2. Part 1265 is further amended as set forth below.
0
a. ``The [Agency noun]'' is removed and ``NASA'' is added in its place
wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``NASA'' is added in its place
wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Assistant
Administrator for Procurement'' is added in its place wherever it
occurs.
0
3. Section 1265.440 is added to read as follows:
[[Page 66575]]
Sec. 1265.440 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.
0
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?
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.
0
5. Part 1267 is further amended as set forth below.
0
a. ``The [Agency noun]'' is removed and ``NASA'' is added in its place
wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``NASA'' is added in its place
wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Assistant
Administrator for Procurement'' is added in its place wherever it
occurs.
0
d. ``[Agency head]'' is removed and ``Assistant Administrator for
Procurement'' is added in its place wherever it occurs.
0
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.
0
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. 030723184-3184-01]
RIN 0605-AA16
FOR FURTHER INFORMATION CONTACT: Christine Makris, Office of
Acquisition Management, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW., Room HCHB 6422, Washington, DC 20230, 202-482-6131, e-mail: CMakris@doc.gov.
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.
Dated: July 23, 2003.
Lucia Homick,
Acting Director, Office of Executive Budgeting and Assistance
Management.
0
For the reasons stated in the common preamble, the Department of
Commerce amends 15 CFR subtitle A, as follows:
0
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 for Federal procurement contracts?
26.130 Does 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 address 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 in which I may participate is
a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
26.300 What must I do before I enter into a covered transaction with
another person at the next lower tier?
[[Page 66576]]
26.305 May I enter into a covered transaction with an excluded or
disqualified person?
26.310 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
26.315 May I use the services of an excluded person as a principal
under a covered transaction?
26.320 Must I verify that principals of my covered transactions are
eligible to participate?
26.325 What happens if I do business with an excluded person in a
covered transaction?
26.330 What requirements must I pass down to persons at lower tiers
with whom I intend to do business?
Disclosing Information--Primary Tier Participants
26.3357 What information must I provide before entering into a
covered transaction with the Department of Commerce?
26.340 If I disclose unfavorable information required under Sec.
26.335, will I be prevented from participating in the transaction?
26.345 What happens if I fail to disclose the information required
under Sec. 26.335?
26.350 What must I do if I learn of the information required under
Sec. 26.335 after entering into a covered transaction with the
Department of Commerce?
Disclosing Information--Lower Tier Participants
26.355 What information must I provide to a higher tier participant
before entering into a covered transaction with that participant?
26.360 What happens if I fail to disclose the information required
under Sec. 26.355?
26.365 What must I do if I learn of information required under Sec.
26.355 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. 26.335?
26.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 26.355 to the next higher tier?
Subpart E--Excluded Parties List System
26.500 What is the purpose of the Excluded Parties List System
(EPLS)?
26.505 Who uses the EPLS?
26.510 Who maintains the EPLS?
26.515 What specific information is in the EPLS?
26.520 Who places the information into the EPLS?
26.525 Whom do I ask if I have questions about a person in the EPLS?
26.530 Where can I find the EPLS?
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 a
suspension and debarment action?
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 How is fact-finding conducted?
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 How is fact-finding conducted?
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 Excluded Parties List System.
26.955 Indictment.
26.960 Ineligible or ineligibility.
26.965 Legal proceedings.
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).
0
2. Part 26 is further amended as set forth below.
[[Page 66577]]
0
a. ``[Agency noun]'' is removed and ``Department of Commerce'' is added
in its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``DoC'' is added in its place
wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Secretary of Commerce
or designee'' is added in its place wherever it occurs.
0
3. Section 26.215 is amended as follows:
0
a. Add paragraph (d)(1) and add and reserve paragraph (d)(2).
0
b. Add paragraph (f)(1) and add and reserve paragraph (f)(2).
0
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) For the purposes of the DoC this means:
(i) Fisherman's Contingency Fund.
(ii) [Reserved]
(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]
0
4. Section 26.220 is amended to add paragraph (c) to read as follows:
Sec. 26.220 Are any procurement contracts included as covered
transactions?
* * * * *
(c) 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.
0
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.
0
6. Section 26.970 is amended to add paragraphs (a)(12) through (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.
* * * * *
0
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.
0
8. Part 29 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``Department of Commerce'' is added
in its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``DoC'' is added in its place
wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Secretary of Commerce
or designee'' is added in its place wherever it occurs.
0
d. ``[Agency head]'' is removed and ``Secretary of Commerce'' is added
in its place wherever it occurs.
0
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.
0
10. Section 29.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``15 CFR Part 24'' in its place.
[[Page 66578]]
-----------------------------------------------------------------------
SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 436 and 439
RIN 0960-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.
SUPPLEMENTARY INFORMATION: Prior to March 31, 1995, SSA was an
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 is adopting 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.
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 recordkeeping requirements.
Dated: July 15, 2003.
Jo Anne B. Barnhart,
Commissioner of Social Security.
0
For the reasons stated in the common preamble, the Social Security
Administration amends 20 CFR chapter III, as follows:
0
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 for Federal procurement contracts?
436.130 Does 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 address 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 in which I may participate is
a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
436.300 What must I do before I enter into a covered transaction
with another person at the next lower tier?
436.305 May I enter into a covered transaction with an excluded or
disqualified person?
436.310 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
436.315 May I use the services of an excluded person as a principal
under a covered transaction?
436.320 Must I verify that principals of my covered transactions are
eligible to participate?
436.325 What happens if I do business with an excluded person in a
covered transaction?
436.330 What requirements must I pass down to persons at lower tiers
with whom I intend to do business?
Disclosing Information--Primary Tier Participants
436.335 What information must I provide before entering into a
covered transaction with the SSA?
436.340 If I disclose unfavorable information required under Sec.
436.335, will I be prevented from participating in the transaction?
436.345 What happens if I fail to disclose the information required
under Sec. 436.335?
436.350 What must I do if I learn of information required under
Sec. 436.335 after entering into a covered transaction with the
SSA?
Disclosing Information--Lower Tier Participants
436.355 What information must I provide to a higher tier participant
before entering into a covered transaction with that participant?
436.360 What happens if I fail to disclose the information required
under Sec. 436.355?
436.365 What must I do if I learn of information required under
Sec. 436.355 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?
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. 436.335?
436.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 436.355 to the next higher
tier?
Subpart E--Excluded Parties List System
436.500 What is the purpose of the Excluded Parties List System
(EPLS)?
436.505 Who uses the EPLS?
436.510 Who maintains the EPLS?
436.515 What specific information is in the EPLS?
436.520 Who places the information into the EPLS?
436.525 Whom do I ask if I have questions about a person in the
EPLS?
[[Page 66579]]
436.530 Where can I find the EPLS?
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 a suspension and
debarment action?
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 How is fact-finding conducted?
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 How is fact-finding conducted?
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 Excluded Parties List System.
436.955 Indictment.
436.960 Ineligible or ineligibility.
436.965 Legal proceedings.
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).
0
2. Part 436 is further amended as follows:
0
a. ``[Agency noun]'' is removed and ``SSA'' is added in its place
wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``SSA'' is added in its place
wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``SSA Debarring/
Suspension Official'' is added in its place wherever it occurs.
0
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.
0
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?
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.
[[Page 66580]]
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.
0
5. Part 439 is further amended as follows:
0
a. ``[Agency noun]'' is removed and ``SSA'' is added in its place
wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``SSA'' is added in its place
wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``SSA Official or
designee'' is added in its place wherever it occurs.
0
d. ``[Agency head]'' is removed and ``the Commissioner of SSA'' is
added in its place wherever it occurs.
0
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.
0
7. Section 439.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]''and adding ``20 CFR Part 439'' in its place.
-----------------------------------------------------------------------
OFFICE OF NATIONAL DRUG CONTROL POLICY
21 CFR Parts 1404 and 1405
RIN 3201-ZA03
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.
John Walters,
Director.
0
For the reason stated in the common preamble, the Office of National
Drug Control Policy amends 21 CFR chapter III, as follows.
0
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 for Federal procurement contracts?
1404.130 Does 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 address 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 in which I may participate
is a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
1404.300 What must I do before I enter into a covered transaction
with another person at the next lower tier?
1404.305 May I enter into a covered transaction with an excluded or
disqualified person?
1404.310 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
1404.315 May I use the services of an excluded person as a principal
under a covered transaction?
1404.320 Must I verify that principals of my covered transactions
are eligible to participate?
1404.325 What happens if I do business with an excluded person in a
covered transaction?
1404.330 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Disclosing Information--Primary Tier Participants
1404.335 What information must I provide before entering into a
covered transaction with the Office of National Drug Control Policy?
1404.340 If I disclose unfavorable information required under Sec.
1404.335, will I be prevented from participating in the transaction?
1404.345 What happens if I fail to disclose the information required
under Sec. 1404.335?
1404.350 What must I do if I learn of the information required under
Sec. 1404.335 after entering into a covered transaction with the
Office of National Drug Control Policy?
Disclosing Information--Lower Tier Participants
1404.355 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
1404.360 What happens if I fail to disclose the information required
under Sec. 1404.355?
1404.365 What must I do if I learn of information required under
Sec. 1404.355 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?
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 those requirements to
participants?
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. 1404.335?
1404.455 What may I do if a lower tier participant fails to disclose
the
[[Page 66581]]
information required under Sec. 1404.355 to the next higher tier?
Subpart E--Excluded Parties List System
1404.500 What is the purpose of the Excluded Parties List System
(EPLS)?
1404.505 Who uses the EPLS?
1404.510 Who maintains the EPLS?
1404.515 What specific information is in the EPLS?
1404.520 Who places the information into the EPLS?
1404.525 Whom do I ask if I have questions about a person in the
EPLS?
1404.530 Where can I find the EPLS?
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 a suspension and debarment action?
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 How is fact-finding conducted?
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 How is fact-finding conducted?
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 Excluded Parties List System.
1404.955 Indictment.
1404.960 Ineligible or ineligibility.
1404.965 Legal proceedings.
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.
0
2. Part 1404 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``Office of National Drug Control
Policy'' is added in its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``Office of National Drug
Control Policy'' is added in its place wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Director of National
Drug Control Policy'' is added in its place wherever it occurs.
0
3. Section 1404.440 is added to read as follows:
Sec. 1404.440 What method do I use to communicate those requirements
to participants?
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.
0
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?
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?
[[Page 66582]]
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.
0
5. Part 1405 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``Office of National Drug Control
Policy'' is added in its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``Office of National Drug
Control Policy'' is added in its place wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Director of National
Drug Control Policy'' is added in its place wherever it occurs.
0
d. ``[Agency head]'' is removed and ``Director of National Drug Control
Policy'' is added in its place wherever it occurs.
0
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.
0
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-AB83
FOR FURTHER INFORMATION CONTACT: Susan Catington, Department
Competition Advocate, Policy Division, Office of the Procurement
Executive, U.S. Department of State, Washington, DC 20522, (703) 516-
1693.
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.
Dated: June 17, 2003.
Georgia K. Hubert,
Acting Procurement Executive, Department of State.
0
For the reasons stated in the common preamble, the Department of State
amends 22 CFR chapter I, as follows:
0
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.
0
2. Part 133 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``Department of State'' is added in
its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``Department of State'' is
added in its place wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Procurement
Executive'' is added in its place wherever it occurs.
0
d. ``[Agency head]'' is removed and ``Procurement Executive'' is added
in its place wherever it occurs.
0
3. Section 133.510(c) is further amended by removing ``[CFR citation
for the Federal Agency's regulations implementing Executive Order 12549
and Executive Order 12689]'' and adding ``22 CFR Part 137'' in its
place.
0
4. Section 133.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``22 CFR Part 135'' in its place.
0
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)
Sec.
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?
[[Continued on page 66583]]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
]
[[pp. 66583-66632]] Governmentwide Debarment and Suspension (Nonprocurement) and
Governmentwide Requirements for Drug-Free Workplace (Grants)
[[Continued from page 66582]]
[[Page 66583]]
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 for Federal procurement contracts?
137.130 Does 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 address 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 in which I may participate is
a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
137.300 What must I do before I enter into a covered transaction
with another person at the next lower tier?
137.305 May I enter into a covered transaction with an excluded or
disqualified person?
137.310 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
137.315 May I use the services of an excluded person as a principal
under a covered transaction?
137.320 Must I verify that principals of my covered transactions are
eligible to participate?
137.325 What happens if I do business with an excluded person in a
covered transaction?
137.330 What requirements must I pass down to persons at lower tiers
with whom I intend to do business?
Disclosing Information--Primary Tier Participants
137.335 What information must I provide before entering into a
covered transaction with the Department of State?
137.340 If I disclose unfavorable information required under Sec.
137.335, will I be prevented from participating in the transaction?
137.345 What happens if I fail to disclose the information required
under Sec. 137.335?
137.350 What must I do if I learn of the information required under
Sec. 137.335 after entering into a covered transaction with the
Department of State?
Disclosing Information--Lower Tier Participants
137.355 What information must I provide to a higher tier participant
before entering into a covered transaction with that participant?
137.360 What happens if I fail to disclose the information required
under Sec. 137.355?
137.365 What must I do if I learn of information required under
Sec. 137.355 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. 137.335?
137.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 137.355 to the next higher
tier?
Subpart E--Excluded Parties List System
137.500 What is the purpose of the Excluded Parties List System?
137.505 Who uses the EPLS?
137.510 Who maintains the EPLS?
137.515 What specific information is in the EPLS?
137.520 Who places the information into the EPLS?
137.525 Whom do I ask if I have questions about a person in the
EPLS?
137.530 Where can I find the EPLS?
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 a
suspension and debarment action?
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 How is fact-finding conducted?
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?
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 How is fact-finding conducted?
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?
[[Page 66584]]
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 Excluded Parties List System.
137.955 Indictment.
137.960 Ineligible or ineligibility.
137.965 Legal proceedings.
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.
0
6. Part 137 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``Department of State'' is added in
its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``Department of State'' is
added in its place wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Procurement
Executive'' is added in its place wherever it occurs.
0
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: Raquel Powell, M/OP/POL, 1300
Pennsylvania Avenue, NW., Washington, DC 20523-7801, (202) 712-0778.
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: July 15, 2003.
Timothy T. Beans,
Director, Office of Procurement.
0
For the reason stated in the common preamble, the Agency for
International Development amends 22 CFR Chapter II, as follows:
0
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 for Federal procurement contracts?
208.130 Does 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 address 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 in which I may participate is
a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
208.300 What must I do before I enter into a covered transaction
with another person at the next lower tier?
208.305 May I enter into a covered transaction with an excluded or
disqualified person?
208.310 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
208.315 May I use the services of an excluded person as a principal
under a covered transaction?
208.320 Must I verify that principals of my covered transactions are
eligible to participate?
208.325 What happens if I do business with an excluded person in a
covered transaction?
208.330 What requirements must I pass down to persons at lower tiers
with whom I intend to do business?
Disclosing Information--Primary Tier Participants
208.335 What information must I provide before entering into a
covered transaction with the U.S. Agency for International
Development?
208.340 If I disclose unfavorable information required under Sec.
208.335, will I be prevented from participating in the transaction?
208.345 What happens if I fail to disclose the information required
under Sec. 208.335?
208.350 What must I do if I learn of the information required under
Sec. 208.335 after entering into a covered transaction with the
U.S. Agency for International Development?
Disclosing Information--Lower Tier Participants
208.355 What information must I provide to a higher tier participant
before entering into a covered transaction with that participant?
208.360 What happens if I fail to disclose the information required
under Sec. 208.355?
208.365 What must I do if I learn of information required under
Sec. 208.355 after entering into a covered transaction with a
higher tier participant?
[[Page 66585]]
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 those 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. 208.335?
208.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 208.355 to the next higher
tier?
Subpart E--Excluded Parties List System
208.500 What is the purpose of the Excluded Parties List System
(EPLS)?
208.505 Who uses the EPLS?
208.510 Who maintains the EPLS?
208.515 What specific information is in the EPLS?
208.520 Who places the information into the EPLS?
208.525 Whom do I ask if I have questions about a person in the
EPLS?
208.530 Where can I find the EPLS?
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 a suspension and debarment action?
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 How is fact-finding conducted?
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 How is fact-finding conducted?
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 Excluded Parties List System.
208.955 Indictment.
208.960 Ineligible or ineligibility.
208.965 Legal proceedings.
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.
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.
0
2. Part 208 is further amended as set forth below.
0
a. ``[Agency Noun]'' is removed and ``U.S. Agency for International
Development'' is added in its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``USAID'' is added in its
place wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Director, Office of
Procurement'' is added in its place wherever it occurs.
0
3. Section 208.440 is added to read as follows:
Sec. 208.440 What method do I use to communicate those requirements
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.
0
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.
0
5. Section 208.1010 is further amended by adding paragraph (b) to read
as follows:
[[Page 66586]]
Sec. 208.1010 Suspending official.
* * * * *
(b) The U.S. Agency for International Development's suspending
official is the Director of the Office of Procurement.
0
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.
0
7. Part 210 is further amended as set forth below.
0
a. ``[Agency Noun]'' is removed and ``U.S. Agency for International
Development'' is added in its place wherever it occurs.
0
b. ``[Agency Adjective]'' is removed and ``USAID'' is added in its
place wherever it occurs.
0
c. ``[Agency Head or Designee]'' is removed and ``Director of the
Office of Procurement'' is added in its place wherever it occurs.
0
d. ``[Agency head]'' is removed and ``USAID Administrator or designee''
is added in its place wherever it occurs.
0
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.
0
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: Suzanne Glasow, Associate General
Counsel, Office of the General Counsel, Peace Corps, 1111 20th Street,
NW., Washington, DC 20526, (202) 692-2157.
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.
Dated: July 24, 2003.
Keith A. Vance,
Director, Office of Administrative Services, Peace Corps.
0
For the reasons stated in the common preamble, the Peace Corps amends
22 CFR chapter III, as follows:
0
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 for Federal procurement contracts?
310.130 Does 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 address 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 in which I may participate is
a covered transaction?
[[Page 66587]]
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
310.300 What must I do before I enter into a covered transaction
with another person at the next lower tier?
310.305 May I enter into a covered transaction with an excluded or
disqualified person?
310.310 What must I do if a federal agency excludes a person with
whom I am already doing business in a covered transaction?
310.315 May I use the services of an excluded person as a principal
under a covered transaction?
310.320 Must I verify that principals of my covered transactions are
eligible to participate?
310.325 What happens if I do business with an excluded person in a
covered transaction?
310.330 What requirements must I pass down to persons at lower tiers
with whom I intend to do business?
Disclosing Information--Primary Tier Participants
310.335 What information must I provide before entering into a
covered transaction with the Peace Corps?
310.340 If I disclose unfavorable information required under Sec.
310.335, will I be prevented from participating in the transaction?
310.345 What happens if I fail to disclose the information required
under Sec. 310.335?
310.350 What must I do if I learn of the information required under
Sec. 310.335 after entering into a covered transaction with the
Peace Corps?
Disclosing Information--Lower Tier Participants
310.355 What information must I provide to a higher tier participant
before entering into a covered transaction with that participant?
310.360 What happens if I fail to disclose the information required
under Sec. 310.355?
310.365 What must I do if I learn of information required under
Sec. 310.355 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. 310.335?
310.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 310.355 to the next higher
tier?
Subpart E--Excluded Parties List System
310.500 What is the purpose of the Excluded Parties List System
(EPLS)?
310.505 Who uses the EPLS?
310.510 Who maintains the EPLS?
310.515 What specific information is in the EPLS?
310.520 Who places the information into the EPLS?
310.525 Whom do I ask if I have questions about a person in the
EPLS?
310.530 Where can I find the EPLS?
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 a suspension and
debarment action?
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 How is fact-finding conducted?
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?
310.805 What notice does the debarring official give me if I am
proposed for debarment?
310.810 When does a debarment take effect?
310.815 How may I contest a proposed debarment?
310.820 How much time do I have to contest a proposed debarment?
310.825 What information must I provide to the debarring official if
I contest a proposed debarment?
310.830 Under what conditions do I get an additional opportunity to
challenge the facts on which the proposed debarment is based?
310.835 Are debarment proceedings formal?
310.840 How is fact-finding conducted?
310.845 What does the debarring official consider in deciding
whether to debar me?
310.850 What is the standard of proof in a debarment action?
310.855 Who has the burden of proof in a debarment action?
310.860 What factors may influence the debarring official's
decision?
310.865 How long may my debarment last?
310.870 When do I know if the debarring official debars me?
310.875 May I ask the debarring official to reconsider a decision to
debar me?
310.880 What factors may influence the debarring official during
reconsideration?
310.885 May the debarring official extend a debarment?
Subpart I--Definitions
310.900 Adequate evidence.
310.905 Affiliate.
310.910 Agency.
310.915 Agent or representative.
310.920 Civil judgment.
310.925 Conviction.
310.930 Debarment.
310.935 Debarring official.
310.940 Disqualified.
310.945 Excluded or exclusion.
310.950 Excluded Parties List System.
310.955 Indictment.
310.960 Ineligible or ineligibility.
310.965 Legal proceedings.
310.970 Nonprocurement transaction.
310.975 Notice.
310.980 Participant.
310.985 Person.
310.990 Preponderance of the evidence.
310.995 Principal.
310.100 Respondent.
310.1005 State.
310.1010 Suspending official.
310.1015 Suspension.
310.1020 Voluntary exclusion or voluntarily excluded.
[[Page 66588]]
Subpart J--Reserved
Appendix to Part 310--Covered Transactions
Authority: 22 U.S.C. 2503; 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).
0
2. Part 310 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``Peace Corps'' is added in its
place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``Peace Corps'' is added in
its place wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Peace Corps Director
or designee `` is added in its place wherever it occurs.
0
3. Section 310.440 is added to read as follows:
Sec. 310.440 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.
0
4. Part 312 is added to read as set forth in instruction 2 at the end
of the common preamble.
PART 312--GOVERNMENTWIDE REQUIREMENTS FOR DRUG--FREE WORKPLACE
(FINANCIAL ASSISTANCE)
Subpart A--Purpose and Coverage
Sec.
312.100 What does this part do?
312.105 Does this part apply to me?
312.110 Are any of my federal assistance awards exempt from this
part?
312.115 Does this part affect the federal contracts that I receive?
Subpart B--Requirements for Recipients Other Than Individuals
312.200 What must I do to comply with this part?
312.205 What must I include in my drug-free workplace statement?
312.210 To whom must I distribute my drug-free workplace statement?
312.215 What must I include in my drug-free awareness program?
312.220 By when must I publish my drug-free workplace statement and
establish my drug-free awareness program?
312.225 What actions must I take concerning employees who are
convicted of drug violations in the workplace?
312.230 How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
312.300 What must I do to comply with this part if I am an
individual recipient?
312.301 [Reserved]
Subpart D--Responsibilities of Peace Corps Awarding Officials
312.400 What are my responsibilities as a Peace Corps awarding
official?
Subpart E--Violations of This Part and Consequences
312.500 How are violations of this part determined for recipients
other than individuals?
312.505 How are violations of this part determined for recipients
who are individuals?
312.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
312.515 Are there any exceptions to those actions?
Subpart F--Definitions
312.605 Award.
312.610 Controlled substance.
312.615 Conviction.
312.620 Cooperative agreement.
312.625 Criminal drug statute.
312.630 Debarment.
312.635 Drug-free workplace.
312.640 Employee.
312.645 Federal agency or agency.
312.650 Grant.
312.655 Individual.
312.660 Recipient.
312.665 State.
312.670 Suspension.
Authority: 22 U.S.C. 2503 (b); 41 U.S.C. 701 et seq.
0
5. Part 312 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``Peace Corps'' is added in its
place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``Peace Corps'' is added in
its place wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Peace Corps Director
or designee'' is added in its place wherever it occurs.
0
d. ``[Agency head]'' is removed and ``Peace Corps Director'' is added
in its place wherever it occurs.
0
6. Section 312.510(c) is further amended by removing ``[CFR citation
for the federal agency's regulations implementing Executive Order 12549
and Executive Order 12689]'' and adding ``22 CFR Part 310'' in its
place.
0
7. Section 312.605 is further amended by adding a paragraph (c) to read
as follows:
Sec. 312.605 Award.
* * * * *
(c) Notwithstanding paragraph (a)(2) of this section, this
paragraph is not applicable for the Peace Corps.
-----------------------------------------------------------------------
INTER-AMERICAN FOUNDATION
22 CFR Parts 1006 and 1008
RIN 3200-ZA05
FOR FURTHER INFORMATION CONTACT: Carolyn Karr, General Counsel, Inter-
American Foundation, 901 N. Stuart Street, Arlington, Virginia 22203, (703) 306-4350, ckarr@iaf.gov.
List of Subjects
22 CFR Part 1006
Administrative practice and procedure, Government contracts, Grant
programs, Loan programs, Reporting and recordkeeping requirements,
Technical assistance.
22 CFR Part 1008
Administrative practice and procedure, Drug abuse, Grant programs,
Reporting and recordkeeping requirements.
Dated: August 1, 2003.
David Valenzuela,
President, Inter-American Foundation.
0
For the reasons stated in the common preamble, the Inter-American
Foundation amends 22 CFR Chapter X, as follows:
0
1. Part 1006 is revised to read as set forth in instruction 1 at the
end of the common preamble.
PART 1006--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
Sec.
1006.25 How is this part organized?
1006.50 How is this part written?
1006.75 Do terms in this part have special meanings?
Subpart A--General
1006.100 What does this part do?
1006.105 Does this part apply to me?
1006.110 What is the purpose of the nonprocurement debarment and
suspension system?
1006.115 How does an exclusion restrict a person's involvement in
covered transactions?
1006.120 May we grant an exception to let an excluded person
participate in a covered transaction?
1006.125 Does an exclusion under the nonprocurement system affect a
person's eligibility for Federal procurement contracts?
1006.130 Does exclusion under the Federal procurement system affect
a person's eligibility to participate in nonprocurement
transactions?
1006.135 May the Inter-American Foundation exclude a person who is
not currently participating in a nonprocurement transaction?
1006.140 How do I know if a person is excluded?
[[Page 66589]]
1006.145 Does this part address persons who are disqualified, as
well as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
1006.200 What is a covered transaction?
1006.205 Why is it important to know if a particular transaction is
a covered transaction?
1006.210 Which nonprocurement transactions are covered transactions?
1006.215 Which nonprocurement transactions are not covered
transactions?
1006.220 Are any procurement contracts included as covered
transactions?
1006.225 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
1006.300 What must I do before I enter into a covered transaction
with another person at the next lower tier?
1006.305 May I enter into a covered transaction with an excluded or
disqualified person?
1006.310 What Must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
1006.315 May I use the services of an excluded person as a principal
under a covered transaction?
1006.320 I verify that principals of my covered transactions are
eligible to participate?
1006.325 What happens if I do business with an excluded person in a
covered transaction?
1006.330 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Disclosing Information--Primary Tier Participants
1006.335 What information must I provide before a covered
transaction with the Inter-American Foundation?
1006.340 If I disclose unfavorable information required under Sec.
1006.335, will I be prevented from participating in the transaction?
1006.345 What happens if I fail to disclose the information required
under Sec. 1006.335?
1006.350 What must I do if I learn of the information required under
Sec. 1006.335 after entering into a covered transaction with the
Inter-American Foundation?
Disclosing Information--Lower Tier Participants
1006.355 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
1006.360 What happens if I fail to disclose the information required
under Sec. 1006.355?
1006.365 What must I do if I learn of information required under
Sec. 1006.355 after entering into a covered transaction with a
higher tier participant?
Subpart D--Responsibilities of Inter-American Foundation Officials
Regarding Transactions
1006.400 May I enter into a transaction with an excluded or
disqualified person?
1006.405 May I enter into a covered transaction with a participant
if a principal of the transaction is excluded?
1006.410 May I approve a participant's use of the services of an
excluded person?
1006.415 What must I do if a Federal agency excludes the participant
or a principal after I enter into a covered transaction?
1006.420 May I approve a transaction with an excluded or
disqualified person at a lower tier?
1006.425 When do I check to see if a person is excluded or
disqualified?
1006.430 How do I check to see if a person is excluded or
disqualified?
1006.435 What must I require of a primary tier participant?
1006.440 What method do I use to communicate those requirements to
participants?
1006.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
1006.450 What action may I take if a primary tier participant fails
to disclose the information required under Sec. 1006.335?
1006.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 1006.355 to the next higher
tier?
Subpart E--Excluded Parties List System
1006.500 What is the purpose of the Excluded Parties List System
(EPLS)?
1006.505 Who uses the EPLS?
1006.510 Who maintains the EPLS?
1006.515 What specific information is in the EPLS?
1006.520 Who places the information into the EPLS?
1006.525 Whom do I ask if I have questions about a person in the
EPLS?
1006.530 Where can I find the EPLS?
Subpart F--General Principles Relating to Suspension and Debarment
Actions
1006.600 How do suspension and debarment actions start?
1006.605 How does suspension differ from debarment?
1006.610 What procedures does the Inter-American Foundation use in
suspension and debarment actions?
1006.615 How does the Inter-American Foundation notify a person of a
suspension and debarment action?
1006.620 Do Federal agencies coordinate suspension and debarment
actions?
1006.625 What is the scope of a suspension or debarment action?
1006.630 May the Inter-American Foundation impute the conduct of one
person to another?
1006.635 May the Inter-American Foundation settle a debarment or
suspension action?
1006.640 May a settlement include a voluntary exclusion?
1006.645 Do other Federal agencies know if the Inter-American
Foundation agrees to a voluntary exclusion?
Subpart G--Suspension
1006.700 When may the suspending official issue a suspension?
1006.705 What does the suspending official consider in issuing a
suspension?
1006.710 When does a suspension take effect?
1006.715 What notice does the suspending official give me if I am
suspended?
1006.720 How may I contest a suspension?
1006.725 How much time do I have to contest a suspension?
1006.730 What information must I provide to the suspending official
if I contest a suspension?
1006.735 Under what conditions do I get an additional opportunity to
challenge the facts on which the suspension is based?
1006.740 Are suspension proceedings formal?
1006.745 How is fact-finding conducted?
1006.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
1006.755 When will I know whether the suspension is continued or
terminated?
1006.760 How long may my suspension last?
Subpart H--Debarment
1006.800 What are the causes for debarment?
1006.805 What notice does the debarring official give me if I am
proposed for debarment?
1006.810 When does a debarment take effect?
1006.815 How may I contest a proposed debarment?
1006.820 How much time do I have to contest a proposed debarment?
1006.825 What information must I provide to the debarring official
if I contest a proposed debarment?
1006.830 Under what conditions do I get an additional opportunity to
challenge the fact on which the proposed debarment is based?
1006.835 Are debarment proceedings formal?
1006.840 How is fact-finding conducted?
1006.845 What does the debarring official consider in deciding
whether to debar me?
1006.850 What is the standard of proof in a debarment action?
1006.855 Who has the burden of proof in a debarment action?
1006.860 What factors may influence the debarring official's
decision?
1006.865 How long may my debarment last?
1006.870 When do I know if the debarring official debars me?
1006.875 May I ask the debarring official to reconsider a decision
to debar me?
1006.880 What factors may influence the debarring official during
reconsideration?
1006.885 May the debarring official extend a debarment?
[[Page 66590]]
Subpart I--Definitions
1006.900 Adequate evidence.
1006.905 Affiliate.
1006.910 Agency.
1006.915 Agent or representative.
1006.920 Civil judgment.
1006.925 Conviction.
1006.930 Debarment.
1006.935 Debarring official.
1006.940 Disqualified.
1006.945 Excluded or exclusion.
1006.950 Excluded Parties List System.
1006.955 Indictment.
1006.960 Ineligible or ineligibility.
1006.965 Legal proceedings.
1006.970 Nonprocurement transaction.
1006.975 Notice.
1006.980 Participant.
1006.985 Person.
1006.990 Preponderance of the evidence.
1006.995 Principal.
1006.1000 Respondent.
1006.1005 State.
1006.1010 Suspending official.
1006.1015 Suspension.
1006.1020 Voluntary exclusion or voluntarily excluded
Subpart J--[Reserved]
Appendix to Part 1006--Covered Transactions
Authority: 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.
0
2. Part 1006 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``Inter-American Foundation'' is
added in its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``Inter-American Foundation''
is added in its place wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Inter-American
Foundation Debarring Official'' is added in its place wherever it
occurs.
0
3. Section 1006.440 is added to read as follows:
Sec. 1006.440 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.
0
4. Part 1008 is added to read as set forth in instruction 2 at the end
of the common preamble.
PART 1008--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE
(FINANCIAL ASSISTANCE)
Subpart A--Purpose and Coverage
Sec.
1008.100 What does this part do?
1008.105 Does this part apply to me?
1008.110 Are any of my Federal assistance awards exempt from this
part?
1008.115 Does this part affect the Federal contracts that I receive?
Subpart B--Requirements for Recipients Other Than Individuals
1008.200 What must I do to comply with this part?
1008.205 What must I include in my drug-free workplace statement?
1008.210 To whom must I distribute my drug-free workplace statement?
1008.215 What must I include in my drug-free awareness program?
1008.220 By when must I publish my drug-free workplace statement and
establish my drug-free awareness program?
1008.225 What actions must I take concerning employees who are
convicted of drug violations in the workplace?
1008.230 How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
1008.300 What must I do to comply with this part if I am an
individual recipient?
1008.301 [Reserved]
Subpart D--Responsibilities of Inter-American Foundation Awarding
Officials
1008.400 What are my responsibilities as an Inter-American
Foundation awarding official?
Subpart E--Violations of This Part and Consequences
1008.500 How are violations of this part determined for recipients
other than individuals?
1008.505 How are violations of this part determined for recipients
who are individuals?
1008.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
1008.515 Are there any exceptions to those actions?
Subpart F--Definitions
1008.605 Award.
1008.610 Controlled substance.
1008.615 Conviction.
1008.620 Cooperative agreement.
1008.625 Criminal drug statute.
1008.630 Debarment.
1008.635 Drug-free workplace.
1008.640 Employee.
1008.645 Federal agency or agency.
1008.650 Grant.
1008.655 Individual.
1008.660 Recipient.
1008.665 State.
1008.670 Suspension.
Authority: 41 U.S.C. 701 et seq.
0
5. Part 1008 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``Inter-American Foundation'' is
added in its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``Inter-American Foundation''
is added in its place wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Inter-American
Foundation President or designee'' is added in its place wherever it
occurs.
0
d. ``[Agency head]'' is removed and ``Inter-American Foundation'' is
added in its place wherever it occurs.
0
6. Section 1008.510(c) is further amended by removing ``[CFR citation
for the Federal Agency's regulations implementing Executive Order 12549
and Executive Order 12689]'' and adding ``22 CFR Part 1006'' in its
place.
0
7. Section 1008.605 is further amended by adding a paragraph (c) to
read as follows:
Sec. 1008.605 Award.
* * * * *
(c) Notwithstanding paragraph (a)(2) of this section, this
paragraph is not applicable for the Inter-American Foundation.
-----------------------------------------------------------------------
AFRICAN DEVELOPMENT FOUNDATION
22 CFR Parts 1508 and 1509
RIN 3005-ZA01
FOR FURTHER INFORMATION CONTACT: Doris Martin at 202-673-3916 (phone) or domartin@adf.gov.
List of Subjects
22 CFR Part 1508
Administrative practice and procedure, Debarment and suspension,
Government contracts, Grant programs, Loan programs, Reporting and
recordkeeping requirements.
22 CFR Part 1509
Administrative practice and procedure, Drug abuse, Grant programs,
Reporting and recordkeeping requirements.
Dated: June 30, 2003.
Doris Martin,
General Counsel.
0
For the reasons stated in the common preamble, the African Development
Foundation amends 22 CFR chapter XV, as follows:
0
1. Part 1508 is revised to read as set forth in instruction 1 at the
end of the common preamble.
[[Page 66591]]
PART 1508--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
Sec.
1508.25 How is this part organized?
1508.50 How is this part written?
1508.75 Do terms in this part have special meanings?
Subpart A--General
1508.100 What does this part do?
1508.105 Does this part apply to me?
1508.110 What is the purpose of the nonprocurement debarment and
suspension system?
1508.115 How does an exclusion restrict a person's involvement in
covered transactions?
1508.120 May we grant an exception to let an excluded person
participate in a covered transaction?
1508.125 Does an exclusion under the nonprocurement system affect a
person's eligibility for Federal procurement contracts?
1508.130 Does exclusion under the Federal procurement system affect
a person's eligibility to participate in nonprocurement
transactions?
1508.135 May the African Development Foundation exclude a person who
is not currently participating in a nonprocurement transaction?
1508.140 How do I know if a person is excluded?
1508.145 Does this part address persons who are disqualified, as
well as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
1508.200 What is a covered transaction?
1508.205 Why is it important to know if a particular transaction is
a covered transaction?
1508.210 Which nonprocurement transactions are covered transactions?
1508.215 Which nonprocurement transactions are not covered
transactions?
1508.220 Are any procurement contracts included as covered
transactions?
1508.225 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
1508.300 What must I do before I enter into a covered transaction
with another person at the next lower tier?
1508.305 May I enter into a covered transaction with an excluded or
disqualified person?
1508.310 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
1508.315 May I use the services of an excluded person as a principal
under a covered transaction?
1508.320 Must I verify that principals of my covered transactions
are eligible to participate?
1508.325 What happens if I do business with an excluded person in a
covered transaction?
1508.330 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Disclosing Information--Primary Tier Participants
1508.335 What information must I provide before entering into a
covered transaction with the African Development Foundation?
1508.340 If I disclose unfavorable information required under Sec.
1508.335, will I be prevented from participating in the transaction?
1508.345 What happens if I fail to disclose the information required
under Sec. 1508.335?
1508.350 What must I do if I learn of the information required under
Sec. 1508.335 after entering into a covered transaction with the
African Development Foundation?
Disclosing Information--Lower Tier Participants
1508.355 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
1508.360 What happens if I fail to disclose the information required
under Sec. 1508.355?
1508.365 What must I do if I learn of information required under
Sec. 1508.355 after entering into a covered transaction with a
higher tier participant?
Subpart D--Responsibilities of ADF Officials Regarding Transactions
1508.400 May I enter into a transaction with an excluded or
disqualified person?
1508.405 May I enter into a covered transaction with a participant
if a principal of the transaction is excluded?
1508.410 May I approve a participant's use of the services of an
excluded person?
1508.415 What must I do if a Federal agency excludes the participant
or a principal after I enter into a covered transaction?
1508.420 May I approve a transaction with an excluded or
disqualified person at a lower tier?
1508.425 When do I check to see if a person is excluded or
disqualified?
1508.430 How do I check to see if a person is excluded or
disqualified?
1508.435 What must I require of a primary tier participant?
1508.440 What method do I use to communicate those requirements to
participants?
1508.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
1508.450 What action may I take if a primary tier participant fails
to disclose the information required under Sec. 1508.335?
1508.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 1508.355 to the next higher
tier?
Subpart E--Excluded Parties List System
1508.500 What is the purpose of the Excluded Parties List System
(EPLS)?
1508.505 Who uses the EPLS?
1508.510 Who maintains the EPLS?
1508.515 What specific information is in the EPLS?
1508.520 Who places the information into the EPLS?
1508.525 Whom do I ask if I have questions about a person in the
EPLS?
1508.530 Where can I find the EPLS?
Subpart F--General Principles Relating to Suspension and Debarment
Actions
1508.600 How do suspension and debarment actions start?
1508.605 How does suspension differ from debarment?
1508.610 What procedures does the African Development Foundation use
in suspension and debarment actions?
1508.615 How does the African Development Foundation notify a person
of a suspension and debarment action?
1508.620 Do Federal agencies coordinate suspension and debarment
actions?
1508.625 What is the scope of a suspension or debarment action?
1508.630 May the African Development Foundation impute the conduct
of one person to another?
1508.635 May the African Development Foundation settle a debarment
or suspension action?
1508.640 May a settlement include a voluntary exclusion?
1508.645 Do other Federal agencies know if the African Development
Foundation agrees to a voluntary exclusion?
Subpart G--Suspension
1508.700 When may the suspending official issue a suspension?
1508.705 What does the suspending official consider in issuing a
suspension?
1508.710 When does a suspension take effect?
1508.715 What notice does the suspending official give me if I am
suspended?
1508.720 How may I contest a suspension?
1508.725 How much time do I have to contest a suspension?
1508.730 What information must I provide to the suspending official
if I contest a suspension?
1508.735 Under what conditions do I get an additional opportunity to
challenge the facts on which the suspension is based?
1508.740 Are suspension proceedings formal?
1508.745 How is fact-finding conducted?
1508.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
1508.755 When will I know whether the suspension is continued or
terminated?
1508.760 How long may my suspension last?
Subpart H--Debarment
1508.800 What are the causes for debarment?
1508.805 What notice does the debarring official give me if I am
proposed for debarment?
[[Page 66592]]
1508.810 When does a debarment take effect?
1508.815 How may I contest a proposed debarment?
1508.820 How much time do I have to contest a proposed debarment?
1508.825 What information must I provide to the debarring official
if I contest a proposed debarment?
1508.830 Under what conditions do I get an additional opportunity to
challenge the facts on which the proposed debarment is based?
1508.835 Are debarment proceedings formal?
1508.840 How is fact-finding conducted?
1508.845 What does the debarring official consider in deciding
whether to debar me?
1508.850 What is the standard of proof in a debarment action?
1508.855 Who has the burden of proof in a debarment action?
1508.860 What factors may influence the debarring official's
decision?
1508.865 How long may my debarment last?
1508.870 When do I know if the debarring official debars me?
1508.875 May I ask the debarring official to reconsider a decision
to debar me?
1508.880 What factors may influence the debarring official during
reconsideration?
1508.885 May the debarring official extend a debarment?
Subpart I--Definitions
1508.900 Adequate evidence.
1508.905 Affiliate.
1508.910 Agency.
1508.915 Agent or representative.
1508.920 Civil judgment.
1508.925 Conviction.
1508.930 Debarment.
1508.935 Debarring official.
1508.940 Disqualified.
1508.945 Excluded or exclusion.
1508.950 Excluded Parties List System.
1508.955 Indictment.
1508.960 Ineligible or ineligibility.
1508.965 Legal proceedings.
1508.970 Nonprocurement transaction.
1508.975 Notice.
1508.980 Participant.
1508.985 Person.
1508.990 Preponderance of the evidence.
1508.995 Principal.
1508.1000 Respondent.
1508.1005 State.
1508.1010 Suspending official.
1508.1015 Suspension.
1508.1020 Voluntary exclusion or voluntarily excluded.
Subpart J--[Reserved]
Appendix to Part 1508--Covered Transactions
Authority: Sec. 2455, Pub.L. 103-355, 108 Stat. 3327; E.O.
12549, 3CFR, 1986 Comp., p.89; E.O. 12689, 3CFR, 1989 Comp., p. 235.
0
2. Part 1508 is further amended as set forth below:
0
a. ``[Agency noun]'' is removed and ``African Development Foundation''
is added in its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``ADF'' is added in its place
wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``ADF President'' is
added in its place wherever it occurs.
0
3. Section 1508.440 is added to read as follows:
Sec. 1508.440 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.
0
4. Part 1509 is added to read as set forth in instruction 2 at the end
of the common preamble.
PART 1509--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE
(FINANCIAL ASSISTANCE)
Subpart A--Purpose and Coverage
Sec.
1509.100 What does this part do?
1509.105 Does this part apply to me?
1509.110 Are any of my Federal assistance awards exempt from this
part?
1509.115 Does this part affect the Federal contracts that I receive?
Subpart B--Requirements for Recipients Other Than Individuals
1509.200 What must I do to comply with this part?
1509.205 What must I include in my drug-free workplace statement?
1509.210 To whom must I distribute my drug-free workplace statement?
1509.215 What must I include in my drug-free awareness program?
1509.220 By when must I publish my drug-free workplace statement and
establish my drug-free awareness program?
1509.225 What actions must I take concerning employees who are
convicted of drug violations in the workplace?
1509.230 How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
1509.300 What must I do to comply with this part if I am an
individual recipient?
1509.301 [Reserved]
Subpart D--Responsibilities of ADF Awarding Officials
1509.400 What are my responsibilities as an ADF awarding official?
Subpart E--Violations of This Part and Consequences
1509.500 How are violations of this part determined for recipients
other than individuals?
1509.505 How are violations of this part determined for recipients
who are individuals?
1509.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
1509.515 Are there any exceptions to those actions?
Subpart F--Definitions
1509.605 Award.
1509.610 Controlled substance.
1509.615 Conviction.
1509.620 Cooperative agreement.
1509.625 Criminal drug statute.
1509.630 Debarment.
1509.635 Drug-free workplace.
1509.640 Employee.
1509.645 Federal agency or agency.
1509.650 Grant.
1509.655 Individual.
1509.660 Recipient.
1509.665 State.
1509.670 Suspension.
Authority: 41 U.S.C. 701 et seq.
0
5. Part 1509 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``African Development Foundation''
is added in its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``ADF'' is added in its place
wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``ADF President'' is
added in its place wherever it occurs.
0
d. ``[Agency head]'' is removed and ``ADF President'' is added in its
place wherever it occurs.
0
6. Section 1509.310(c) is further amended by removing ``[CFR citation
for the Federal Agency's regulations implementing Executive Order 12549
and Executive Order 12689]'' and adding ``22 CFR Part 1508'' in its
place.
0
7. Section 1509.605 is further amended by adding a paragraph (c) to
read as follows:
Sec. 1509.605 Award.
* * * * *
(c) Notwithstanding paragraph (a)(2) of this section, this
paragraph is not applicable for ADF.
-----------------------------------------------------------------------
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 21 and 24
[Docket No. FR-4692-F-01]
RIN 2501-AC81
FOR FURTHER INFORMATION CONTACT: Dane Narode, Assistant General
Counsel, Office of Program
[[Page 66593]]
Enforcement, Administrative Proceedings Division, Department of Housing
and Urban Development, 1250 Maryland Avenue, Suite 200, Washington, DC
20024-0500; telephone (202) 708-2350 (this is not a toll-free number); e-mail: Dane_M._Narode@hud.gov. Hearing-or speech-impaired
individuals may access the voice telephone number listed above by
calling the toll-free Federal Information Relay Service during working
hours at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
The January 23, 2002, Common Rule
On January 23, 2002 (67 FR 3266), a governmentwide common rule was
published that proposed 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 publication is available at http://www.access.gpo.gov/su_docs
.
HUD's July 22, 2002, Proposed Rule
HUD published a proposed rule on July 22, 2002 (67 FR 48006), to
adopt the changes and amendments made in the common rule. Additionally,
HUD proposed to adopt specific requirements that, along with the
provisions in the common rule, would best serve HUD's programs. HUD's
proposed rule added a paragraph regarding employment contracts to the
definition of ``covered transaction'' found at Sec. 24.200. HUD's
addition made clear that each payment under an employment contract
constitutes a new ``covered transaction.'' HUD also enhanced the
exclusion review that takes place in Sec. 24.300. Under HUD's rule, a
participant must ensure it is not entering into a covered transaction
with an excluded or disqualified person. In reviewing for an exclusion,
however, HUD's rule, at Sec. 24.300(d), exempts participants from
checking on the exemption status of their principals while making
salary payments pursuant to an employment contract. Additionally, Sec.
24.440 proposed to use terms or conditions to the award transaction as
a means to enforce exclusions under HUD transactions rather than the
use of written certifications.
HUD proposed rule provided examples for the debarment and
suspension common rule definition of ``principal'' found at Sec.
24.995. The expansion contains minor modifications consistent with
HUD's present practice regarding the definition of ``principal'' for
the purpose of debarments and suspensions. The proposed rule advised
that HUD would retain its definitions of ``Hearing Officer'' at Sec.
24.947 and ``Ultimate Beneficiary'' at Sec. 24.1017 as found in the
current common rule. The proposed rule made clear in Sec. 24.750 and
Sec. 24.845 that all fact-finding referrals for HUD suspensions and
debarments will be made to hearing officers.
Subpart J of part 24, which addressed limited denial of
participation, was revised stylistically so that the rule conforms to
the question and answer format of the common rule. HUD also removed the
term ``contractor'' from Sec. 24.1105 because the common rule deleted
the definition of the term. The revised definition of ``participant''
in the proposed rule covered individuals previously defined as
``contractors'' in the current rule. Section 24.1145, which addresses
imputing the conduct of one person to another in a limited denial of
participation, was revised to be consistent with the provisions of
Sec. 24.630.
Finally, HUD's rule proposed to enact the requirements for
maintaining a drug-free workplace as a new part 21, codifying HUD's
drug-free workplace requirements.
The public comment period on the proposed rule closed on September
20, 2002. One commenter submitted comments on the proposed rule.
This Final Rule
This final rule follows publication of the July 22, 2002, proposed
rule and takes into consideration the one public comment received. The
public comment, along with the Department's responses to the comment,
is treated below. However, the Department was not persuaded to change
the rule. Accordingly, this final rule adopts the July 22, 2002,
proposed rule without change except for the minor modifications
identified below necessary to keep the Department's rule consistent
with the common rule and existing practice.
In response to an internal comment, the Department has replaced the
formulation used to refer to the ``Agency head or designee'' wherever
used in the common rule. The proposed rule originally referred to the
``HUD Debarring Official or designee.'' That formulation has been
replaced with the ``Secretary or designee'' in the final rule. This
text change does not modify the meaning of the proposed rule as all
debarring authority within the Agency stems from the Secretary's
delegable authority. Similarly, the textual modification is consistent
with current practice in the Department.
The Department, based upon another internal comment, has made a
minor modification to its procedures for when a suspension or proposed
debarment has been issued subsequent to the issuance of a limited
denial of participation. Under this modification, the hearing officer's
jurisdiction over a limited denial of participation will not be
immediately divested upon consolidation of the matter with a suspension
or a proposed debarment. Upon consolidation, the suspending or
debarring official must determine whether material facts are in dispute
within 90 days of consolidation unless good cause exists to extend this
time. In the event material facts are in dispute, the matters will be
referred to the original hearing officer for fact-finding. The
Department does not regard this as a material modification.
Comment: The commenter requested that the Department clarify the
extent to which the drug-free workplace requirements apply to the
residences of telecommuters and other remote workers.
HUD Response: The Department believes this issue was adequately
addressed in the final governmentwide rule of May 25, 1990 (55 FR
21681), in response to comments regarding regulations promulgated
pursuant to the Drug-Free Workplace Act of 1988. (See especially, 55 FR
21683.)
Comment: The commenter also asked whether the proposed rule
intended that collective bargaining agreements be included in the term
``employment contracts.'' The commenter wrote that the rule should
clarify that the term ``employment contracts'' does not include a
collective bargaining agreement between an employer and its employees'
unions. According to the commenter, the exclusion of collective
bargaining agreements as employment contracts is important because, if
a principal of a union were excluded, the state would not be permitted
to ``contracts'' with that union. The commenter further wrote that if
``employment contracts'' mean a consulting contract, it is a redundancy
because consultant contracts are already covered in Sec. 24.200.
HUD Response: The Department's proposal does not enlarge the scope
of employment contracts (i.e., those that are covered transactions,
e.g., a Housing Authority's employment of a Public Housing Executive
Director using funds provided pursuant to a Consolidated Annual
Contributions Contract) to include a collective bargaining agreement.
The proposal merely reinforces the concept that each payment made under
an employment
[[Page 66594]]
contract that is a covered transaction will constitute an independent
covered transaction.
Comment: The commenter argued that if each salary payment is made a
covered transaction, employers would be prohibited from making future
salary payments to employees who happened to have been excluded since
the last salary payment. In the commenter's view, because an employee's
salary is paid after the work is performed, the rule would prohibit
paying the employee for work he/she has already performed,
notwithstanding that the exclusion may be unrelated to the employee's
present activity.
HUD Response: The Department has elected to retain the provision as
written. Payment for work completed prior to the current activity of
the employee does not raise a compliance concern. The provision, as
written, allows payment for the work previously performed (work
completed before the debarment), but would not allow a continuation of
payments subsequent to the imposition of a debarment or suspension
absent an exception specified in the Suspension and Debarment
regulations. Treating each compensation payment as a separate covered
transaction ensures that public funds are adequately protected (which
is one of the objectives of the Suspension and Debarment regulations),
while not appreciably increasing the administrative burden on the
regulated entity. (See, for example, HUD's proposed language at 24 CFR
300(d), exempting salary payments from a requirement to check the
Excluded Parties List System (EPLS).)
Comment: The commenter suggested that the Department strike its
detailed list of principals in Sec. 24.995(c) accompanying the
definition of ``Principal.'' The commenter wrote that the list provided
invites readers to make a mechanical comparison of individuals they
(i.e., the readers) may be involved with to the principals on the list,
as opposed to an evaluation of whether the principals have influence or
critical control over the covered transaction.
HUD Response: The Department has elected to retain the detailed
list of principals. In the Department's view, the addition of paragraph
(c) to the definition of the term ``principal'' in Sec. 24.995 does
not, in any way, expand or detract from the definition stated in the
common rule on Suspensions and Debarments. Rather, the section is
intended as a convenience to HUD program users to facilitate their
understanding of the rule.
The Department has tracked changes to Sec. 24.630 for the
imputation provisions found in Sec. 24.1145 of the proposed rule. The
minor modifications to Sec. 24.1145 were made to ensure consistency
with the common rule. Likewise, the Department has adopted EPLS when
referring to the list of excluded parties.
List of Subjects
24 CFR Part 21
Administrative practice and procedure, Grant programs, Drug-free
workplace, Reporting and recordkeeping requirements.
24 CFR Part 24
Administrative practice and procedure, Government contracts, Grant
programs, Loan programs, Technical assistance, Reporting and
recordkeeping requirements.
Dated: September 3, 2003.
Mel Martinez,
Secretary.
0
For the reasons stated in the common preamble, the Department of
Housing and Urban Development amends 24 CFR Subtitle A, as follows:
0
1. A new part 21 is added to read as follows:
PART 21--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE
(GRANTS)
Subpart A--Purpose and Coverage
Sec.
21.100 What does this part do?
21.105 Does this part apply to me?
21.110 Are any of my federal assistance awards exempt from this
part?
21.115 Does this part affect the federal contracts that I receive?
Subpart B--Requirements for Recipients Other Than Individuals
21.200 What must I do to comply with this part?
21.205 What must I include in my drug-free workplace statement?
21.210 To whom must I distribute my drug-free workplace statement?
21.215 What must I include in my drug-free awareness program?
21.220 By when must I publish my drug-free workplace statement and
establish my drug-free awareness program?
21.225 What actions must I take concerning employees who are
convicted of drug violations in the workplace?
21.230 How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
21.300 What must I do to comply with this part if I am an individual
recipient?
21.301 [Reserved]
Subpart D--Responsibilities of HUD Awarding Officials
21.400 What are my responsibilities as a HUD awarding official?
Subpart E--Violations of This Part and Consequences
21.500 How are violations of this part determined for recipients
other than individuals?
21.505 How are violations of this part determined for recipients who
are individuals?
21.510 What actions will the federal government take against a
recipient determined to have violated this part?
21.515 Are there any exceptions to those actions?
Subpart F--Definitions
21.605 Award.
21.610 Controlled substance.
21.615 Conviction.
21.620 Cooperative agreement.
21.625 Criminal drug statute.
21.630 Debarment.
21.635 Drug-free workplace.
21.640 Employee.
21.645 Federal agency or agency.
21.650 Grant.
21.655 Individual.
21.660 Recipient.
21.665 State.
21.670 Suspension.
Authority: 41 U.S.C. 701; 42 U.S.C. 3535(d).
0
2. Part 21 is further amended as follows:
0
a. ``[Agency noun]'' is removed and ``Department of Housing and Urban
Development'' is added in its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``HUD'' is added in its place
wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Secretary or
designee'' is added in its place wherever it occurs.
0
d. ``[Agency head]'' is removed and ``Secretary'' is added in its place
wherever it occurs.
0
3. Part 24 is revised to read as set forth in instruction 1 at the end
of the common preamble.
PART 24--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
Sec.
24.25 How is this part organized?
24.50 How is this part written?
24.75 Do terms in this part have special meanings?
Subpart A--General
24.100 What does this part do?
24.105 Does this part apply to me?
24.110 What is the purpose of the nonprocurement debarment and
suspension system?
[[Page 66595]]
24.115 How does an exclusion restrict a person's involvement in
covered transactions?
24.120 May we grant an exception to let an excluded person
participate in a covered transaction?
24.125 Does an exclusion under the nonprocurement system affect a
person's eligibility for federal procurement contracts?
24.130 Does exclusion under the federal procurement system affect a
person's eligibility to participate in nonprocurement transactions?
24.135 May the Department of Housing and Urban Development exclude a
person who is not currently participating in a nonprocurement
transaction?
24.140 How do I know if a person is excluded?
24.145 Does this part address persons who are disqualified, as well
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
24.200 What is a covered transaction?
24.205 Why is it important to know if a particular transaction is a
covered transaction?
24.210 Which nonprocurement transactions are covered transactions?
24.215 Which nonprocurement transactions are not covered
transactions?
24.220 Are any procurement contracts included as covered
transactions?
24.225 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
24.300 What must I do before I enter into a covered transaction with
another person at the next lower tier?
24.305 May I enter into a covered transaction with an excluded or
disqualified person?
24.310 What must I do if a federal agency excludes a person with
whom I am already doing business in a covered transaction?
24.315 May I use the services of an excluded person as a principal
under a covered transaction?
24.320 Must I verify that principals of my covered transactions are
eligible to participate?
24.325 What happens if I do business with an excluded person in a
covered transaction?
24.330 What requirements must I pass down to persons at lower tiers
with whom I intend to do business?
Disclosing Information--Primary Tier Participants
24.335 What information must I provide before entering into a
covered transaction with the Department of Housing and Urban
Development?
24.340 If I disclose unfavorable information required under Sec.
24.335, will I be prevented from entering into the transaction?
24.345 What happens if I fail to disclose the information required
under Sec. 24.335?
24.350 What must I do if I learn of the information required under
Sec. 24.335 after entering into a covered transaction with the
Department of Housing and Urban Development?
Disclosing Information--Lower Tier Participants
24.355 What information must I provide to a higher tier participant
before entering into a covered transaction with that participant?
24.360 What happens if I fail to disclose the information required
under Sec. 24.355?
24.365 What must I do if I learn of information required under Sec.
24.355 after entering into a covered transaction with a higher tier
participant?
Subpart D--Responsibilities of HUD Officials Regarding Transactions
24.400 May I enter into a transaction with an excluded or
disqualified person?
24.405 May I enter into a covered transaction with a participant if
a principal of the transaction is excluded?
24.410 May I approve a participant's use of the services of an
excluded person?
24.415 What must I do if a federal agency excludes the participant
or a principal after I enter into a covered transaction?
24.420 May I approve a transaction with an excluded or disqualified
person at a lower tier?
24.425 When do I check to see if a person is excluded or
disqualified?
24.430 How do I check to see if a person is excluded or
disqualified?
24.435 What must I require of a primary tier participant?
24.440 What method do I use to communicate those requirements to
participants?
24.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
24.450 What action may I take if a primary tier participant fails to
disclose the information required under Sec. 24.335?
24.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 24.355 to the next higher tier?
Subpart E--Excluded Parties List System
24.500 What is the purpose of the Excluded Parties List System
(EPLS)?
24.505 Who uses the EPLS?
24.510 Who maintains the EPLS?
24.515 What specific information is in the EPLS?
24.520 Who places the information into the EPLS?
24.525 Whom do I ask if I have questions about a person in the EPLS?
24.530 Where can I find the EPLS?
Subpart F--General Principles Relating to Suspension and Debarment
Actions
24.600 How do suspension and debarment actions start?
24.605 How does suspension differ from debarment?
24.610 What procedures does the Department of Housing and Urban
Development use in suspension and debarment actions?
24.615 How does the Department of Housing and Urban Development
notify a person of a suspension or debarment action?
24.620 Do federal agencies coordinate suspension and debarment
actions?
24.625 What is the scope of a suspension or debarment action?
24.630 May the Department of Housing and Urban Development impute
the conduct of one person to another?
24.635 May the Department of Housing and Urban Development settle a
debarment or suspension action?
24.640 May a settlement include a voluntary exclusion?
24.645 Do other federal agencies know if the Department of Housing
and Urban Development agrees to a voluntary exclusion?
Subpart G--Suspension
24.700 When may the suspending official issue a suspension?
24.705 What does the suspending official consider in issuing a
suspension?
24.710 When does a suspension take effect?
24.715 What notice does the suspending official give me if I am
suspended?
24.720 How may I contest a suspension?
24.725 How much time do I have to contest a suspension?
24.730 What information must I provide to the suspending official if
I contest a suspension?
24.735 Under what conditions do I get an additional opportunity to
challenge the facts on which the suspension is based?
24.740 Are suspension proceedings formal?
24.745 How is fact-finding conducted?
24.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
24.755 When will I know whether the suspension is continued or
terminated?
24.760 How long may my suspension last?
Subpart H--Debarment
24.800 What are the causes for debarment?
24.805 What notice does the debarring official give me if I am
proposed for debarment?
24.810 When does a debarment take effect?
24.815 How may I contest a proposed debarment?
24.820 How much time do I have to contest a proposed debarment?
24.825 What information must I provide to the debarring official if
I contest a proposed debarment?
24.830 Under what conditions do I get an additional opportunity to
challenge the facts on which the proposed debarment is based?
24.835 Are debarment proceedings formal?
24.840 How is fact-finding conducted?
24.845 What does the debarring official consider in deciding whether
to debar me?
24.850 What is the standard of proof in a debarment action?
24.855 Who has the burden of proof in a debarment action?
24.860 What factors may influence the debarring official's decision?
[[Page 66596]]
24.865 How long may my debarment last?
24.870 When do I know if the debarring official debars me?
24.875 May I ask the debarring official to reconsider a decision to
debar me?
24.880 What factors may influence the debarring official during
reconsideration?
24.885 May the debarring official extend a debarment?
Subpart I--Definitions
24.900 Adequate evidence.
24.905 Affiliate.
24.910 Agency.
24.915 Agent or representative.
24.920 Civil judgment.
24.925 Conviction.
24.930 Debarment.
24.935 Debarring official.
24.940 Disqualified.
24.945 Excluded or exclusion.
24.947 Hearing officer.
24.950 Excluded Parties List System.
24.955 Indictment.
24.960 Ineligible or ineligibility.
24.965 Legal Proceedings.
24.970 Nonprocurement transaction.
24.975 Notice.
24.980 Participant.
24.985 Person.
24.990 Preponderance of the evidence.
24.995 Principal.
24.1000 Respondent.
24.1005 State.
24.1010 Suspending official.
24.1015 Suspension.
24.1017 Ultimate beneficiaries.
24.1020 Voluntary exclusion or voluntarily excluded.
Subpart J--Limited Denial of Participation
24.1100 What is a limited denial of participation?
24.1105 Who may issue a limited denial of participation?
24.1110 When may a HUD official issue a limited denial of
participation?
24.1115 When does a limited denial of participation take effect?
24.1120 How long may a limited denial of participation last?
24.1125 How does a limited denial of participation start?
24.1130 How may I contest my limited denial of participation?
24.1135 Do federal agencies coordinate limited denial of
participation actions?
24.1140 What is the scope of a limited denial of participation?
24.1145 May HUD impute the conduct of one person to another in a
limited denial of participation?
24.1150 What is the effect of a suspension or debarment on a limited
denial of participation?
24.1155 What is the effect of a limited denial of participation on a
suspension or a debarment?
24.1160 May a limited denial of participation be terminated before
the term of the limited denial of participation expires?
24.1165 How is a limited denial of participation reported?
Appendix to Part 24--Covered Transactions
Authority: 41 U.S.C. 701 et seq.; 42 U.S.C. 3535(d); 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).
0
4. Part 24 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``the Department of Housing and
Urban Development'' is added in its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``HUD'' is added in its place
wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Secretary or
designee'' is added in its place wherever it occurs.
0
5. Section 24.200 is further amended by adding a paragraph (c) to read
as follows:
Sec. 24.200 What is a covered transaction?
* * * * *
(c) In the case of employment contracts that are covered
transactions, each salary payment under the contract is a separate
covered transaction.
0
6. Section 24.300 is further amended by adding paragraphs (d) and (e)
to read as follows:
Sec. 24.300 What must I do before I enter into a covered transaction
with another person at the next lower tier?
* * * * *
(d) You, as a participant, are responsible for determining whether
you are entering into a covered transaction with an excluded or
disqualified person. You may decide the method by which you do so. You
may, but are not required to, check the EPLS.
(e) In the case of an employment contract, HUD does not require
employers to check the EPLS prior to making salary payments pursuant to
that contract.
0
7. Section 24.440 is added to read as follows:
Sec. 24.440 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.
0
8. Section 24.750 is further amended by adding a paragraph (c) to read
as follows:
Sec. 24.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
* * * * *
(c) The official receiving the referral for findings of fact
regarding disputed material facts must be a hearing officer in all HUD
suspensions.
0
9. Section 24.845 is further amended by adding a paragraph (d) to read
as follows:
Sec. 24.845 What does the debarring official consider in deciding
whether to debar me?
* * * * *
(d) The official receiving the referral for findings of fact
regarding disputed material facts must be a hearing officer in all HUD
debarments.
0
10. Section 24.947 is added to read as follows:
Sec. 24.947 Hearing officer.
Hearing officer means an Administrative Law Judge or Board of
Contract Appeals Judge authorized by HUD's Secretary or by the
Secretary's designee, to conduct proceedings under this part.
0
11. Section 24.995 is further amended by adding a paragraph (c) to read
as follows:
Sec. 24.995 Principal.
* * * * *
(c) A person who has a critical influence on, or substantive
control over, a covered transaction, whether or not employed by the
participant. Persons who have a critical influence on, or substantive
control over, a covered transaction may include, but are not limited
to:
(1) Loan officers;
(2) Staff appraisers and inspectors;
(3) Underwriters;
(4) Bonding companies;
(5) Borrowers under programs financed by HUD or with loans
guaranteed, insured, or subsidized through HUD programs;
(6) Purchasers of properties with HUD-insured or Secretary-held
mortgages;
(7) Recipients under HUD assistance agreements;
(8) Ultimate beneficiaries of HUD programs;
(9) Fee appraisers and inspectors;
(10) Real estate agents and brokers;
(11) Management and marketing agents;
(12) Accountants, consultants, investment bankers, architects,
engineers, and attorneys who are in a business relationship with
participants in connection with a covered transaction under a HUD
program;
(13) Contractors involved in the construction or rehabilitation of
[[Page 66597]]
properties financed by HUD, with HUD insured loans, or acquired
properties, including properties held by HUD as mortgagee-in-
possession;
(14) Closing agents;
(15) Turnkey developers of projects financed by or with financing
insured by HUD;
(16) Title companies;
(17) Escrow agents;
(18) Project owners;
(19) Administrators of hospitals, nursing homes, and projects for
the elderly financed or insured by HUD; and
(20) Developers, sellers or owners of property financed with loans
insured under title I or title II of the National Housing Act.
0
12. Subpart J is added to Part 24 to read as follows:
Subpart J--Limited Denial of Participation
Sec. 24.1100 What is a limited denial of participation?
A limited denial of participation excludes a specific person from
participating in a specific program, or programs, within a HUD field
office's geographic jurisdiction, for a specific period of time. A
limited denial of participation is normally issued by a HUD field
office, but may be issued by a Headquarters office. The decision to
impose a limited denial of participation is discretionary and in the
best interests of the government.
Sec. 24.1105 Who may issue a limited denial of participation?
The Secretary designates HUD officials who are authorized to impose
a limited denial of participation, affecting any participant and/or
their affiliates, except FHA-approved mortgagees.
Sec. 24.1110 When may a HUD official issue a limited denial of
participation?
(a) An authorized HUD official may issue a limited denial of
participation against a person based upon adequate evidence of any of
the following causes:
(1) Approval of an applicant for insurance would constitute an
unsatisfactory risk;
(2) Irregularities in a person's past performance in a HUD program;
(3) Failure of a person to maintain the prerequisites of
eligibility to participate in a HUD program;
(4) Failure to honor contractual obligations or to proceed in
accordance with contract specifications or HUD regulations;
(5) Failure to satisfy, upon completion, the requirements of an
assistance agreement or contract;
(6) Deficiencies in ongoing construction projects;
(7) Falsely certifying in connection with any HUD program, whether
or not the certification was made directly to HUD;
(8) Commission of an offense listed in Sec. 24.800;
(9) Violation of any law, regulation, or procedure relating to the
application for financial assistance, insurance, or guarantee, or to
the performance of obligations incurred pursuant to a grant of
financial assistance or pursuant to a conditional or final commitment
to insure or guarantee;
(10) Making or procuring to be made any false statement for the
purpose of influencing in any way an action of the Department;
(11) Imposition of a limited denial of participation by any other
HUD office; or
(12) Debarment or suspension by another federal agency for any
cause substantially the same as provided in Sec. 24.800.
(b) Filing of a criminal Indictment or Information shall constitute
adequate evidence for the purpose of limited denial of participation
actions. The Indictment or Information need not be based on offenses
against HUD.
(c) Imposition of a limited denial of participation by any other
HUD office shall constitute adequate evidence for a concurrent limited
denial of participation. Where such a concurrent limited denial of
participation is imposed, participation may be restricted on the same
basis without the need for additional conference or further hearing.
(d) An affiliate or organizational element may be included in a
limited denial of participation solely on the basis of its affiliation,
and regardless of its knowledge of or participation in the acts
providing cause for the sanction. The burden of proving that a
particular affiliate or organizational element is currently responsible
and not controlled by the primary sanctioned party (or by an entity
that itself is controlled by the primary sanctioned party) is on the
affiliate or organizational element.
Sec. 24.1115 When does a limited denial of participation take effect?
A limited denial of participation is effective immediately upon
issuance of the notice.
Sec. 24.1120 How long may a limited denial of participation last?
A limited denial of participation may remain effective up to 12
months.
Sec. 24.1125 How does a limited denial of participation start?
A limited denial of participation is made effective by providing
the person, and any specifically named affiliate, with notice:
(a) That the limited denial of participation is being imposed;
(b) Of the cause(s) under Sec. 24.1110 for the sanction;
(c) Of the potential effect of the sanction, including the length
of the sanction and the HUD program(s) and geographic area affected by
the sanction;
(d) Of the right to request, in writing, within 30 days of receipt
of the notice, a conference under Sec. 24.1130; and
(e) Of the right to contest the limited denial of participation
under Sec. 24.1130.
Sec. 24.1130 How may I contest my limited denial of participation?
(a) Within 30 days after receiving a notice of limited denial of
participation, you may request a conference with the official who
issued such notice. The conference shall be held within 15 days after
the Department's receipt of the request for a conference, unless you
waive this time limit. The official or designee who imposed the
sanction shall preside. At the conference, you may appear with a
representative and may present all relevant information and materials
to the official or designee. Within 20 days after the conference, or
within 20 days after any agreed upon extension of time for submission
of additional materials, the official or designee shall, in writing,
advise you of the decision to terminate, modify, or affirm the limited
denial of participation. If all or a portion of the remaining period of
exclusion is affirmed, the notice of affirmation shall advise you of
the opportunity to contest the notice and request a hearing before a
Departmental Hearing Officer. You have 30 days after receipt of the
notice of affirmation to request this hearing. If the official or
designee does not issue a decision within the 20-day period, you may
contest the sanction before a Departmental Hearing Officer. Again, you
have 30 days from the expiration of the 20-day period to request this
hearing. If you request a hearing before the Departmental Hearing
Officer, you must submit your request to the Debarment Docket Clerk,
Department of Housing and Urban Development, 451 Seventh Street, SW, B-
133 Portals 200, Washington DC 20410-0500.
(b) You may skip the conference with the official and you may
request a hearing before a Departmental Hearing Officer. This must also
be done within 30 days after receiving a notice of limited denial of
participation. If you
[[Page 66598]]
opt to have a hearing before a Departmental Hearing Officer, you must
submit your request to the Debarment Docket Clerk, Department of
Housing and Urban Development, 451 Seventh Street, SW, B-133 Portals
200, Washington DC 20410-0500. The hearing before the Departmental
Hearing Officer is more formal than the conference before the
sanctioning official described above. The hearing before the
Departmental Hearing Officer will be conducted in accordance with 24
CFR part 26, subpart A. The Departmental Hearing Officer will issue
findings of fact and make a recommended decision. The sanctioning
official will then make a final decision as promptly as possible after
the Departmental Hearing Officer recommended decision is issued. The
sanctioning official may reject the recommended decision or any
findings of fact, only after specifically determining the decision or
any of the facts to be arbitrary or capricious or clearly erroneous.
Sec. 24.1135 Do federal agencies coordinate limited denial of
participation actions?
Federal agencies do not coordinate limited denial of participation
actions. As stated in Sec. 24.1100, a limited denial of participation
is a HUD-specific action and applies only to HUD activities.
Sec. 24.1140 What is the scope of a limited denial of participation?
The scope of a limited denial of participation is as follows:
(a) A limited denial of participation generally extends only to
participation in the program under which the cause arose. A limited
denial of participation may, at the discretion of the authorized
official, extend to other programs, initiatives, or functions within
the jurisdiction of an Assistant Secretary. The authorized official,
however, may determine that the sanction shall apply to all programs
throughout HUD where the sanction is based on an indictment or
conviction.
(b) For purposes of this subpart, participation includes receipt of
any benefit or financial assistance through grants or contractual
arrangements; benefits or assistance in the form of loan guarantees or
insurance; and awards of procurement contracts.
(c) The sanction may be imposed for a period not to exceed 12
months, and shall be effective within the geographic jurisdiction of
the office imposing it, unless the sanction is imposed by an Assistant
Secretary or Deputy Assistant Secretary in which case the sanction may
be imposed on either a nationwide or a more restricted basis.
Sec. 24.1145 May HUD impute the conduct of one person to another in a
limited denial of participation?
For purposes of determining a limited denial of participation, HUD
may impute conduct as follows:
(a) Conduct imputed from an individual to an organization. HUD may
impute the fraudulent, criminal, or other improper conduct of any
officer, director, shareholder, partner, employee, or other individual
associated with an organization, to that organization when the improper
conduct occurred in connection with the individual's performance of
duties for or on behalf of that organization, or with the
organization's knowledge, approval, or acquiescence. The organization's
acceptance of the benefits derived from the conduct is evidence of
knowledge, approval, or acquiescence.
(b) Conduct imputed from an organization to an individual or
between individuals. HUD may impute the fraudulent, criminal, or other
improper conduct of any organization to an individual, or from one
individual to another individual, if the individual to whom the
improper conduct is imputed either participated in, had knowledge of,
or reason to know of the improper conduct.
(c) Conduct imputed from one organization to another organization.
HUD may impute the fraudulent, criminal, or other improper conduct of
one organization to another organization when the improper conduct
occurred in connection with a partnership, joint venture, joint
application, association, or similar arrangement, or when the
organization to whom the improper conduct is imputed has the power to
direct, manage, control, or influence the activities of the
organization responsible for the improper conduct. Acceptance of the
benefits derived from the conduct is evidence of knowledge, approval,
or acquiescence.
Sec. 24.1150 What is the effect of a suspension or debarment on a
limited denial of participation?
If you have submitted a request for a hearing pursuant to Sec.
24.1130 of this section, and you also receive, pursuant to subpart G or
H of this part, a notice of proposed debarment or suspension that is
based on the same transaction(s) or conduct as the limited denial of
participation, as determined by the debarring or suspending official,
the following rules shall apply:
(a) During the 30-day period after you receive a proposed debarment
or suspension, during which you may elect to contest the debarment
under Sec. 24.815, or the suspension pursuant to Sec. 24.720, all
proceedings in the limited denial of participation, including
discovery, are automatically stayed.
(b) If you do not contest the proposed debarment pursuant to Sec.
24.815, or the suspension pursuant to Sec. 24.720, the final
imposition of the debarment or suspension shall also constitute a final
decision with respect to the limited denial of participation to the
extent that the debarment or suspension is based on the same
transaction(s) or conduct as the limited denial of participation.
(c) If you contest the proposed debarment pursuant to Sec. 24.815,
or the suspension pursuant to Sec. 24.720, then:
(1) Those parts of the limited denial of participation and the
debarment or suspension based on the same transaction(s) or conduct, as
determined by the debarring or suspending official, shall be
immediately consolidated before the debarring or suspending official;
(2) Proceedings under the consolidated portions of the limited
denial of participation shall be stayed before the hearing officer
until the suspending or debarring official makes a determination as to
whether the consolidated matters should be referred to a hearing
officer. Such a determination must be made within 90 days of the date
of the issuance of the suspension or proposed debarment, unless the
suspending/debarring official extends the period for good cause.
(i) If the suspending or debarring official determines that there
is a genuine dispute as to material facts regarding the consolidated
matter, the entire consolidated matter will be referred to the hearing
officer hearing the limited denial of participation, for additional
proceedings pursuant to 24 CFR 24.750 or Sec. 24.845.
(ii) If the suspending or debarring official determines that there
is no dispute as to material facts regarding the consolidated matter,
jurisdiction of the hearing officer under 24 CFR part 24, subpart J, to
hear those parts of the limited denial of participation based on the
same transaction[s] or conduct as the debarment or suspension, as
determined by the debarring or suspending official, will be transferred
to the debarring or suspending official, and the hearing officer
responsible for hearing the limited denial of participation shall
transfer the administrative record to the debarring or suspending
official.
(3) The suspending or debarring official shall hear the entire
consolidated case under the procedures governing suspensions and
debarments, and shall issue a final decision as to
[[Page 66599]]
both the limited denial of participation and the suspension or
debarment.
Sec. 24.1155 What is the effect of a limited denial of participation
on a suspension or a debarment?
The imposition of a limited denial of participation does not affect
the right of the Department to suspend or debar any person under this
part.
Sec. 24.1160 May a limited denial of participation be terminated
before the term of the limited denial of participation expires?
If the cause for the limited denial of participation is resolved
before the expiration of the 12-month period, the official who imposed
the sanction may terminate it.
Sec. 24.1165 How is a limited denial of participation reported?
When a limited denial of participation has been made final, or the
period for requesting a conference pursuant to Sec. 24.1130 has
expired without receipt of such a request, the official imposing the
limited denial of participation shall notify the Director of the
Compliance Division in the Departmental Enforcement Center of the scope
of the limited denial of participation.
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
28 CFR Parts 67 and 83
[OJP(OJP)-1306]
RIN 1121--AA57
ADDRESSES: Please address all comments regarding this interim final
rule to Linda Fallowfield, Attorney Advisor, Office of the General
Counsel, Office of Justice Programs, Department of Justice, 810 7th
Street NW., Washington, DC 20531, (202) 305-2534, e-mail:fallowfi@ojp.usdoj.gov.
FOR FURTHER INFORMATION CONTACT: Linda Fallowfield, Attorney Advisor,
Office of the General Counsel, Office of Justice Programs, Department
of Justice, 810 7th Street NW., Washington, DC 20531, (202) 305-2534, e-mail:fallowfi@ojp.usdoj.gov.
SUPPLEMENTARY INFORMATION:
The Department of Justice (the Department) is publishing this
interim final rule in order to join the publication of the government-
wide common rule on debarment and suspension. The Department is
adopting this common rule in order to promote consistency within the
federal government. The common rule provides uniform requirements for
debarment and suspension by Executive branch agencies to protect
assistance, loans, benefits and other non-procurement 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 Regulations (FAR).
Finally, the Department's proposed rule on drug-free workplace
requirements would be separated from the proposed rule on debarment and
suspension. The drug-free workplace requirements are currently located
in subpart F of the Debarment and Suspension Non-procurement Common
Rule. Moving those requirements to a separate part would allow them to
appear in a more appropriate location nearer other requirements used
predominantly by award officials. The requirements for maintaining a
drug-free workplace thus would be relocated from 28 CFR part 67 to 28
CFR part 83, and are restated in plain language format.
List of Subjects
28 CFR Part 67
Administrative practice and procedure, Government contracts, Grant
programs, Loan programs, Reporting and recordkeeping requirements,
Technical assistance, Drug abuse.
28 CFR Part 83
Administrative practice and procedure, Drug abuse, Grant programs,
Reporting and recordkeeping requirements.
Dated: October 16, 2003.
John Ashcroft,
Attorney General.
0
For the reasons set forth in the preamble, 28 CFR chapter I is amended
as follows:
0
1. Part 67 is revised to read as set forth in instruction 1 at the end
of the common preamble.
PART 67--GOVERNMENT-WIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
Sec.
67.25 How is this part organized?
67.50 How is this part written?
67.75 Do terms in this part have special meanings?
Subpart A--General
67.100 What does this part do?
67.105 Does this part apply to me?
67.110 What is the purpose of the non-procurement debarment and
suspension system?
67.115 How does an exclusion restrict a person's involvement in
covered transactions?
67.120 May we grant an exception to let an excluded person
participate in a covered transaction?
67.125 Does an exclusion under the non-procurement system affect a
person's eligibility for Federal procurement contracts?
67.130 Does an exclusion under the Federal procurement system affect
a person's eligibility to participate in non-procurement
transactions?
67.135 May the Department of Justice exclude a person who is not
currently participating in a non-procurement transaction?
67.140 How do I know if a person is excluded?
67.145 Does this part address persons who are disqualified, as well
as those who are excluded from non-procurement transactions?
Subpart B--Covered Transactions
67.200 What is a covered transaction?
67.205 Why is it important to know if a particular transaction is a
covered transaction?
67.210 Which non-procurement transactions are covered transactions?
67.215 Which non-procurement transactions are not covered
transactions?
67.220 Are any procurement contracts included as covered
transactions?
67.225 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
67.300 What must I do before I enter into a covered transaction with
another person at the next lower tier?
67.305 May I enter into a covered transaction with an excluded or
disqualified person?
67.310 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
67.315 May I use the services of an excluded person as a principal
under a covered transaction?
67.320 Must I verify that principals of my covered transactions are
eligible to participate?
67.325 What happens if I do business with an excluded person in a
covered transaction?
67.330 What requirements must I pass down to persons at lower tiers
with whom I intend to do business?
Disclosing Information--Primary Tier Participants
67.335 What information must I provide before entering into a
covered transaction with the Department of Justice?
67.340 If I disclose unfavorable information required under Sec.
67.335, will I be prevented from participating in the transaction?
67.345 What happens if I fail to disclose the information required
under Sec. 67.335?
67.350 What must I do if I learn of the information required under
Sec. 67.335 after entering into a covered transaction with the
Department of Justice?
[[Page 66600]]
Disclosing Information--Lower Tier Participants
67.355 What information must I provide to a higher tier participant
before entering into a covered transaction with that participant?
67.360 What happens if I fail to disclose the information required
under Sec. 67.355?
67.365 What must I do if I learn of information required under Sec.
67.355 after entering into a covered transaction with a higher tier
participant?
Subpart D--Responsibilities of Department of Justice Officials
Regarding Transactions
67.400 May I enter into a transaction with an excluded or
disqualified person?
67.405 May I enter into a covered transaction with a participant if
a principal of the transaction is excluded?
67.410 May I approve a participant's use of the services of an
excluded person?
67.415 What must I do if a Federal agency excludes the participant
or a principal after I enter into a covered transaction?
67.420 May I approve a transaction with an excluded or disqualified
person at a lower tier?
67.425 When do I check to see if a person is excluded or
disqualified?
67.430 How do I check to see if a person is excluded or
disqualified?
67.435 What must I require of a primary tier participant?
67.440 What method do I use to communicate those requirements to
participants?
67.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
67.450 What action may I take if a primary tier participant fails to
disclose the information required under Sec. 67.335?
67.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 67.355 to the next higher tier?
Subpart E--Excluded Parties List System
67.500 What is the purpose of the Excluded Parties List System
(EPLS)?
67.505 Who uses the EPLS?
67.510 Who maintains the EPLS?
67.515 What specific information is on the EPLS?
67.520 Who places the information into the EPLS?
67.525 Whom do I ask if I have questions about a person in the EPLS?
67.530 Where can I find the EPLS?
Subpart F--General Principles Relating to Suspension and Debarment
Actions
67.600 How do suspension and debarment actions start?
67.605 How does suspension differ from debarment?
67.610 What procedures does the Department of Justice use in
suspension and debarment actions?
67.615 How does the Department of Justice notify a person of a
suspension and debarment action?
67.620 Do Federal agencies coordinate suspension and debarment
actions?
67.625 What is the scope of a suspension or debarment action?
67.630 May the Department of Justice impute the conduct of one
person to another?
67.635 May the Department of Justice settle a debarment or
suspension action?
67.640 May a settlement include a voluntary exclusion?
67.645 Do other Federal agencies know if the Department of Justice
agrees to a voluntary exclusion?
Subpart G--Suspension
67.700 When may the suspending official issue a suspension?
67.705 What does the suspending official consider in issuing a
suspension?
67.710 When does a suspension take effect?
67.715 What notice does the suspending official give me if I am
suspended?
67.720 How may I contest a suspension?
67.725 How much time do I have to contest a suspension?
67.730 What information must I provide to the suspending official if
I contest a suspension?
67.735 Under what conditions do I get an additional opportunity to
challenge the facts on which the suspension is based?
67.740 Are suspension proceedings formal?
67.745 How is fact-finding conducted?
67.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
67.755 When will I know whether the suspension is continued or
terminated?
67.760 How long may my suspension last?
Subpart H--Debarment
67.800 What are the causes for debarment?
67.805 What notice does the debarring official give me if I am
proposed for debarment?
67.810 When does a debarment take effect?
67.815 How may I contest a proposed debarment?
67.820 How much time do I have to contest a proposed debarment?
67.825 What information must I provide to the debarring official if
I contest a proposed debarment?
67.830 Under what conditions do I get an additional opportunity to
challenge the facts on which a proposed debarment is based?
67.835 Are debarment proceedings formal?
67.840 How is fact-finding conducted?
67.845 What does the debarring official consider in deciding whether
to debar me?
67.850 What is the standard of proof in a debarment action?
67.855 Who has the burden of proof in a debarment action?
67.860 What factors may influence the debarring official's decision?
67.865 How long may my debarment last?
67.870 When do I know if the debarring official debars me?
67.875 May I ask the debarring official to reconsider a decision to
debar me?
67.880 What factors may influence the debarring official during
reconsideration?
67.885 May the debarring official extend a debarment?
Subpart I--Definitions
67.900 Adequate evidence.
67.905 Affiliate.
67.910 Agency.
67.915 Agent or representative.
67.920 Civil judgment.
67.925 Conviction.
67.930 Debarment.
67.935 Debarring official.
67.940 Disqualified.
67.945 Excluded or exclusion.
67.950 Excluded Parties List System
67.955 Indictment.
67.960 Ineligible or ineligibility.
67.965 Legal proceedings.
67.970 Non-procurement transaction.
67.975 Notice.
67.980 Participant.
67.985 Person.
67.990 Preponderance of the evidence.
67.995 Principal.
67.1000 Respondent.
67.1005 State.
67.1010 Suspending official.
67.1015 Suspension.
67.1020 Voluntary exclusion or voluntarily excluded.
Subpart J--[Reserved]
Authority: E.O. 12549; Omnibus Crime Control and Safe Streets
Act of 1968, 42 U.S.C. 3711, et seq., Juvenile Justice and
Delinquency Prevention Act of 1974, 42 U.S.C. 5601, et seq., Victims
of Crime Act of 1984, 42 U.S.C. 10601, et seq.; 18 U.S.C. 4042; 18
U.S.C. 4351-4353; E.O. 12549 (3 CFR, 1986 Comp. P.189).
0
2. Part 67 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``the Department of Justice'' is
added in its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``Department of Justice'' is
added in its place wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Department of Justice
debarring official or designee'' is added wherever it occurs.
0
3. Section 67.440 is added to read as follows:
Sec. 67.440 What method do I use to communicate those requirements to
participants?
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.
0
4. Part 83 is added to read as set forth in instruction 2 at the end of
the common preamble.
PART 83--GOVERNMENT-WIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE
(GRANTS)
Subpart A--Purpose and Coverage
Sec.
[[Page 66601]]
83.100 What does this part do?
83.105 Does this part apply to me?
83.110 Are any of my Federal assistance awards exempt from this
part?
83.115 Does this part affect the Federal contracts that I receive?
Subpart B--Requirements for Recipients Other Than Individuals
83.200 What must I do to comply with this part?
83.205 What must I include in my drug-free workplace statement?
83.210 To whom must I distribute my drug-free workplace statement?
83.215 What must I include in my drug-free awareness program?
83.220 By when must I publish my drug-free workplace statement and
establish my drug-free awareness program?
83.225 What actions must I take concerning employees who are
convicted of drug violations in the workplace?
83.230 How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
83.300 What must I do to comply with this part if I am an individual
recipient?
83.301 [Reserved]
Subpart D--Responsibilities of Department of Justice Awarding Officials
83.400 What are my responsibilities as a Department of Justice
awarding official?
Subpart E--Violations of This Part and Consequences
83.500 How are violations of this part determined for recipients
other than individuals?
83.505 How are violations of this part determined for recipients who
are individuals?
83.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
83.515 Are there any exceptions to those actions?
Subpart F--Definitions
83.605 Award.
83.610 Controlled substance.
83.615 Conviction.
83.620 Cooperative agreement.
83.625 Criminal drug statute.
83.630 Debarment.
83.635 Drug-free workplace.
83.640 Employee.
83.645 Federal agency or agency.
83.650 Grant.
83.655 Individual.
83.660 Recipient.
83.665 State.
83.670 Suspension.
Authority: Sec. 5151-5160 of the Drug-Free Workplace Act of 1988
(Pub. L. 100-690, Title V, Subtitle D; 41 U.S.C. 701 et seq.).
0
5. Part 83 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``the Department of Justice'' is
added in its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``Department of Justice'' is
added in its place wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Attorney General or
designee'' is added wherever it occurs.
0
d. ``[Agency head]'' is removed and ``Attorney General'' is added
wherever it occurs.
0
6. Section 83.510(c) is further amended by removing ``[CFR citation for
the Federal agency's regulations implementing Executive Order 12549 and
Executive Order 12689]'' and adding ``28 CFR Part 67'' in its place.
0
7. Section 83.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``28 CFR Part 70'' in its place.
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
29 CFR Part 94 and 98
RIN 1291-AA33
FOR FURTHER INFORMATION CONTACT: Jeffrey Saylor, Director Division of
Acquisition Management Services, N-5425, 200 Constitution Avenue, NW., Washington, DC 20210, (202) 693-7285, email saylor-jeffrey@dol.gov.
List of Subjects
29 CFR Part 94
Administrative practices and procedures, Drug abuse, Grant
programs, Reporting and recordkeeping requirements.
29 CFR Part 98
Administrative practices and procedures, Grant programs, Loan
programs, Reporting and recordkeeping requirements.
Dated: August 14, 2003.
Elaine L. Chao,
Secretary of Labor.
0
For the reasons stated in the common preamble, the Department of Labor
amends 29 CFR subtitle A, as follows:
0
1. Part 94 is added to read as set forth in instruction 2 at the end of
the common preamble.
PART 94--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE
(FINANCIAL ASSISTANCE)
Subpart A--Purpose and Coverage
Sec.
94.100 What does this part do?
94.105 Does this part apply to me?
94.110 Are any of my Federal assistance awards exempt from this
part?
94.115 Does this part affect the Federal contracts that I receive?
Subpart B--Requirements for Recipients Other Than Individuals
94.200 What must I do to comply with this part?
94.205 What must I include in my drug-free workplace statement?
94.210 To whom must I distribute my drug-free workplace statement?
94.215 What must I include in my drug-free awareness program?
94.220 By when must I publish my drug-free workplace statement and
establish my drug-free awareness program?
94.225 What actions must I take concerning employees who are
convicted of drug violations in the workplace?
94.230 How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
94.300 What must I do to comply with this part if I am an individual
recipient?
94.301 [Reserved.]
Subpart D--Responsibilities of Department of Labor Awarding Officials
94.400 What are my responsibilities as a Department of Labor
awarding official?
Subpart E--Violations of This Part and Consequences
94.500 How are violations of this part determined for recipients
other than individuals?
94.505 How are violations of this part determined for recipients who
are individuals?
94.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
94.515 Is there any provision for exceptions to those actions?
Subpart F--Definitions
94.605 Award.
94.610 Controlled substance.
94.615 Conviction.
94.620 Cooperative agreement.
94.625 Criminal drug statute.
94.630 Debarment.
94.635 Drug-free workplace.
94.640 Employee.
94.645 Federal agency or agency.
94.650 Grant.
94.655 Individual.
94.660 Recipient.
94.665 State.
94.670 Suspension.
Authority: 41 U.S.C. 701 et seq.
0
2. Part 94 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``Department of Labor'' is added in
its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``Department of Labor'' is
added in its place wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Secretary of Labor or
designee'' is added in its place wherever it occurs.
0
d. ``[Agency head]'' is removed and ``Secretary of Labor or designee''
is added in its place wherever it occurs.
[[Page 66602]]
0
3. Section 94.510(c) is further amended by removing ``[CFR citation for
the Federal Agency's regulations implementing Executive Order 12549 and
Executive Order 12689]'' and adding ``29 CFR Part 98'' in its place.
0
4. Section 94.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``29 CFR Part 97'' in its place.
0
5. Part 98 is revised to read as set forth in instruction 1 at the end
of the common preamble.
PART 98--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
Sec.
98.25 How is this part organized?
98.50 How is this part written?
98.75 Do terms in this part have special meanings?
Subpart A--General
98.100 What does this part do?
98.105 Does this part apply to me?
98.110 What is the purpose of the nonprocurement debarment and
suspension system?
98.115 How does an exclusion restrict a person's involvement in
covered transactions?
98.120 May we grant an exception to let an excluded person
participate in a covered transaction?
98.125 Does an exclusion under the nonprocurement system affect a
person's eligibility for Federal procurement contracts?
98.130 Does exclusion under the Federal procurement system affect a
person's eligibility to participate in nonprocurement transactions?
98.135 May the U.S. Department of Labor exclude a person who is not
currently participating in a nonprocurement transaction?
98.140 How do I know if a person is excluded?
98.145 Does this part address persons who are disqualified, as well
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
98.200 What is a covered transaction?
98.205 Why is it important to know if a particular transaction is a
covered transaction?
98.210 Which nonprocurement transactions are covered transactions?
98.215 Which nonprocurement transactions are not covered
transactions?
98.220 Are any procurement contracts included as covered
transactions?
98.225 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
98.300 What must I do before I enter into a covered transaction with
another person at the next lower tier?
94.305 May I enter into a covered transaction with an excluded or
disqualified person?
98.310 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
98.315 May I use the services of an excluded person as a principal
under a covered transaction?
98.320 Must I verify that principals of my covered transactions are
eligible to participate?
98.325 What happens if I do business with an excluded person in a
covered transaction?
98.330 What requirements must I pass down to persons at lower tiers
with whom I intend to do business?
Disclosing Information--Primary Tier Participants
98.335 What information must I provide before entering into a
covered transaction with the Department of Labor?
98.340 If I disclose unfavorable information required under Sec.
98.335, will I be prevented from participating in the transaction?
98.345 What happens if I fail to disclose the information required
under Sec. 98.335?
98.350 What must I do if I learn of the information required under
Sec. 98.335 after entering into a covered transaction with the U.S.
Department of Labor?
Disclosing information--Lower Tier Participants
98.355 What information must I provide to a higher tier participant
before entering into a covered transaction with that participant?
98.360 What happens if I fail to disclose the information required
under Sec. 98.355?
98.365 What must I do if I learn of information required under Sec.
98.355 after entering into a covered transaction with a higher tier
participant?
Subpart D--Responsibilities of the Department of Labor Officials
Regarding Transactions
98.400 May I enter into a transaction with an excluded or
disqualified person?
98.405 May I enter into a covered transaction with a participant if
a principal of the transaction is excluded?
98.410 May I approve a participant's use of the services of an
excluded person?
98.415 What must I do if a Federal agency excludes the participant
or a principal after I enter into a covered transaction?
98.420 May I approve a transaction with an excluded or disqualified
person at a lower tier?
98.425 When do I check to see if a person is excluded or
disqualified?
98.430 How do I check to see if a person is excluded or
disqualified?
98.435 What must I require of a primary tier participant?
98.440 [Reserved]
98.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
98.450 What action may I take if a primary tier participant fails to
disclose the information required under Sec. 98.335?
98.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 98.355 to the next higher tier?
Subpart E--Excluded Parties List System
98.500 What is the purpose of the Excluded Parties List System
(EPLS)?
98.505 Who uses the EPLS?
98.510 Who maintains the EPLS?
98.515 What specific information is in the EPLS?
98.520 Who places the information into the EPLS?
98.525 Whom do I ask if I have questions about a person in the EPLS?
98.530 Where can I find the EPLS?
Subpart F--General Principles Relating to Suspension and Debarment
Actions
98.600 How do suspension and debarment actions start?
98.605 How does suspension differ from debarment?
98.610 What procedures does the U.S. Department of Labor use in
suspension and debarment actions?
98.615 How does the U.S. Department of Labor notify a person of a
suspension and debarment action?
98.620 Do Federal agencies coordinate suspension and debarment
actions?
98.625 What is the scope of a suspension or debarment action?
98.630 May the U.S. Department of Labor impute the conduct of one
person to another?
98.635 May the U.S. Department of Labor settle a debarment or
suspension action?
98.640 May a settlement include a voluntary exclusion?
98.645 Do other Federal agencies know if the U.S. Department of
Labor agrees to a voluntary exclusion?
Subpart G--Suspension
98.700 When may the suspending official issue a suspension?
98.705 What does the suspending official consider in issuing a
suspension?
98.710 When does a suspension take effect?
98.715 What notice does the suspending official give me if I am
suspended?
98.720 How may I contest a suspension?
98.725 How much time do I have to contest a suspension?
98.730 What information must I provide to the suspending official if
I contest a suspension?
98.735 Under what conditions do I get an additional opportunity to
challenge the facts on which the suspension is based?
98.740 Are suspension proceedings formal?
98.745 How is fact-finding conducted?
98.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
[[Page 66603]]
98.755 When will I know whether the suspension is continued or
terminated?
98.760 How long may my suspension last?
Subpart H--Debarment
98.800 What are the causes for debarment?
98.805 What notice does the debarring official give me if I am
proposed for debarment?
98.810 When does a debarment take effect?
98.815 How may I contest a proposed debarment?
98.820 How much time do I have to contest a proposed debarment?
98.825 What information must I provide to the debarring official if
I contest a proposed debarment?
98.830 Under what conditions do I get an additional opportunity to
challenge the facts on which the proposed debarment is based?
98.835 Are debarment proceedings formal?
98.840 How is fact-finding conducted?
98.845 What does the debarring official consider in deciding whether
to debar me?
98.850 What is the standard of proof in a debarment action?
98.855 Who has the burden of proof in a debarment action?
98.860 What factors may influence the debarring official's decision?
98.865 How long may my debarment last?
98.870 When do I know if the debarring official debars me?
98.875 May I ask the debarring official to reconsider a decision to
debar me?
98.880 What factors may influence the debarring official during
reconsideration?
98.885 May the debarring official extend a debarment?
Subpart I--Definitions
98.900 Adequate evidence.
98.905 Affiliate.
98.910 Agency.
98.915 Agent or representative.
98.920 Civil judgment.
98.925 Conviction.
98.930 Debarment.
98.935 Debarring official.
98.940 Disqualified.
98.945 Excluded or exclusion.
98.950 Excluded Parties List System.
98.955 Indictment.
98.960 Ineligible or ineligibility.
98.965 Legal proceedings.
98.970 Nonprocurement transaction.
98.975 Notice.
98.980 Participant.
98.985 Person.
98.990 Preponderance of the evidence.
98.995 Principal.
98.1000 Respondent.
98.1005 State.
98.1010 Suspending official.
98.1015 Suspension.
98.1020 Voluntary exclusion or voluntarily excluded.
Subpart J--[Reserved]
Appendix to Part 98--Covered Transactions
Authority: 5 U.S.C. 301, 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.
0
6. Part 98 is further amended as follows:
0
a. ``[Agency noun]'' is removed and ``Department of Labor'' is added in
its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``Department of Labor'' is
added in its place wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Secretary of Labor or
designee'' is added in its place wherever it occurs.
-----------------------------------------------------------------------
FEDERAL MEDIATION AND CONCILIATION SERVICE
29 CFR Parts 1471 and 1472
RIN 3076-AA08
FOR FURTHER INFORMATION CONTACT: Jane Lorber, Director, Labor-
Management Cooperation Program, 2100 K St., NW., Washington, DC 20427, (202) 606-5444, e-mail: jlorber@fmcs.gov.
List of Subjects
29 CFR Part 1471
Administrative practice and procedure, Debarment and suspension,
Grant programs, Loan programs, Reporting and recordkeeping
requirements.
29 CFR Part 1472
Administrative practice and procedure, Drug abuse, Grant programs,
Reporting and recordkeeping requirements.
Dated: September 5, 2003.
John J. Toner,
Chief of Staff.
0
For the reason stated in the common preamble, the Federal Mediation and
Conciliation Service amends 29 CFR chapter XII, as follows:
0
1. Part 1471 is revised to read as set forth in instruction 1 at the
end of the common preamble.
PART 1471--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
Sec.
1471.25 How is this part organized?
1471.50 How is this part written?
1471.75 Do terms in this part have special meanings?
Subpart A--General
1471.100 What does this part do?
1471.105 Does this part apply to me?
1471.110 What is the purpose of the nonprocurement debarment and
suspension system?
1471.115 How does an exclusion restrict a person's involvement in
covered transactions?
1471.120 May we grant an exception to let an excluded person
participate in a covered transaction?
1471.125 Does an exclusion under the nonprocurement system affect a
person's eligibility for Federal procurement contracts?
1471.130 Does exclusion under the Federal procurement system affect
a person's eligibility to participate in nonprocurement
transactions?
1471.135 May FMCS exclude a person who is not currently
participating in a nonprocurement transaction?
1471.140 How do I know if a person is excluded?
1471.145 Does this part address persons who are disqualified, as
well as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
1471.200 What is a covered transaction?
1471.205 Why is it important to know if a particular transaction is
a covered transaction?
1471.210 Which nonprocurement transactions are covered transactions?
1471.215 Which nonprocurement transactions are not covered
transactions?
1471.220 Are any procurement contracts included as covered
transactions?
1471.225 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
1471.300 What must I do before I enter into a covered transaction
with another person at the next lower tier?
1471.305 May I enter into a covered transaction with an excluded or
disqualified person?
1471.310 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
1471.315 May I use the services of an excluded person as a principal
under a covered transaction?
1471.320 Must I verify that principals of my covered transactions
are eligible to participate?
1471.325 What happens if I do business with an excluded person in a
covered transaction?
1471.330 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Disclosing Information--Primary Tier Participants
1471.335 What information must I provide before entering into a
covered transaction with FMCS?
1471.340 If I disclose unfavorable information required under Sec.
1471.335, will I be prevented from participating in the transaction?
1471.345 What happens if I fail to disclose the information required
under Sec. 1471.335?
1471.350 What must I do if I learn of the information required under
Sec. 1471.335
[[Page 66604]]
after entering into a covered transaction with FMCS?
Disclosing Information--Lower Tier Participants
1471.355 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
1471.360 What happens if I fail to disclose the information required
under Sec. 1471.355?
1471.365 What must I do if I learn of information required under
Sec. 1471.355 after entering into a covered transaction with a
higher tier participant?
Subpart D--Responsibilities of FMCS Officials Regarding Transactions
1471.400 May I enter into a transaction with an excluded or
disqualified person?
1471.405 May I enter into a covered transaction with a participant
if a principal of the transaction is excluded?
1471.410 May I approve a participant's use of the services of an
excluded person?
1471.415 What must I do if a Federal agency excludes the participant
or a principal after I enter into a covered transaction?
1471.420 May I approve a transaction with an excluded or
disqualified person at a lower tier?
1471.425 When do I check to see if a person is excluded or
disqualified?
1471.430 How do I check to see if a person is excluded or
disqualified?
1471.435 What must I require of a primary tier participant?
1471.440 What method do I use to communicate those requirements to
participants?
1471.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
1471.450 What action may I take if a primary tier participant fails
to disclose the information required under Sec. 1471.335?
1471.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 1471.355 to the next higher
tier?
Subpart E--Excluded Parties List System
1471.500 What is the purpose of the Excluded Parties List System
(EPLS)?
1471.505 Who uses the EPLS?
1471.510 Who maintains the EPLS?
1471.515 What specific information is in the EPLS?
1471.520 Who places the information into the EPLS?
1471.525 Whom do I ask if I have questions about a person in the
EPLS?
1471.530 Where can I find the EPLS?
Subpart F--General Principles Relating to Suspension and Debarment
Actions
1471.600 How do suspension and debarment actions start?
1471.605 How does suspension differ from debarment?
1471.610 What procedures does FMCS use in suspension and debarment
actions?
1471.615 How does FMCS notify a person of a suspension and debarment
action?
1471.620 Do Federal agencies coordinate suspension and debarment
actions?
1471.625 What is the scope of a suspension or debarment action?
1471.630 May FMCS impute the conduct of one person to another?
1471.635 May FMCS settle a debarment or suspension action?
1471.640 May a settlement include a voluntary exclusion?
1471.645 Do other Federal agencies know if FMCS agrees to a
voluntary exclusion?
Subpart G--Suspension
1471.700 When may the suspending official issue a suspension?
1471.705 What does the suspending official consider in issuing a
suspension?
1471.710 When does a suspension take effect?
1471.715 What notice does the suspending official give me if I am
suspended?
1471.720 How may I contest a suspension?
1471.725 How much time do I have to contest a suspension?
1471.730 What information must I provide to the suspending official
if I contest a suspension?
1471.735 Under what conditions do I get an additional opportunity to
challenge the facts on which the suspension is based?
1471.740 Are suspension proceedings formal?
1471.745 How is fact-finding conducted?
1471.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
1471.755 When will I know whether the suspension is continued or
terminated?
1471.760 How long may my suspension last?
Subpart H--Debarment
1471.800 What are the causes for debarment?
1471.805 What notice does the debarring official give me if I am
proposed for debarment?
1471.810 When does a debarment take effect?
1471.815 How may I contest a proposed debarment?
1471.820 How much time do I have to contest a proposed debarment?
1471.825 What information must I provide to the debarring official
if I contest a proposed debarment?
1471.830 Under what conditions do I get an additional opportunity to
challenge the facts on which the proposed debarment is based?
1471.835 Are debarment proceedings formal?
1471.840 How is fact-finding conducted?
1471.845 What does the debarring official consider in deciding
whether to debar me?
1471.850 What is the standard of proof in a debarment action?
1471.855 Who has the burden of proof in a debarment action?
1471.860 What factors may influence the debarring official's
decision?
1471.865 How long may my debarment last?
1471.870 When do I know if the debarring official debars me?
1471.875 May I ask the debarring official to reconsider a decision
to debar me?
1471.880 What factors may influence the debarring official during
reconsideration?
1471.885 May the debarring official extend a debarment?
Subpart I--Definitions
1471.900 Adequate evidence.
1471.905 Affiliate.
1471.910 Agency.
1471.915 Agent or representative.
1471.920 Civil judgment.
1471.925 Conviction.
1471.930 Debarment.
1471.935 Debarring official.
1471.940 Disqualified.
1471.945 Excluded or exclusion.
1471.950 Excluded Parties List System.
1471.955 Indictment.
1471.960 Ineligible or ineligibility.
1471.965 Legal proceedings.
1471.970 Nonprocurement transaction.
1471.975 Notice.
1471.980 Participant.
1471.985 Person.
1471.990 Preponderance of the evidence.
1471.995 Principal.
1471.1000 Respondent.
1471.1005 State.
1471.1010 Suspending official.
1471.1015 Suspension.
1471.1020 Voluntary exclusion or voluntarily excluded
Subpart J--[Reserved]
Appendix to Part 1471--Covered Transactions
Authority: 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); 29 U.S.C. 175a.
0
2. Part 1471 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``Federal Mediation and
Conciliation Service'' is added in its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``FMCS'' is added in its place
wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Agency Director'' is
added in its place wherever it occurs.
0
3. Section 1471.440 is added to read as follows:
Sec. 1471.440 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.
0
4. Part 1472 is added to read as set forth in instruction 2 at the end
of the common preamble.
[[Page 66605]]
PART 1472--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE
(FINANCIAL ASSISTANCE)
Subpart A--Purpose and Coverage
Sec.
1472.100 What does this part do?
1472.105 Does this part apply to me?
1472.110 Are any of my Federal assistance awards exempt from this
part?
1472.115 Does this part affect the Federal contracts that I receive?
Subpart B--Requirements for Recipients Other Than Individuals
1472.200 What must I do to comply with this part?
1472.205 What must I include in my drug-free workplace statement?
1472.210 To whom must I distribute my drug-free workplace statement?
1472.215 What must I include in my drug-free awareness program?
1472.220 By when must I publish my drug-free workplace statement and
establish my drug-free awareness program?
1472.225 What actions must I take concerning employees who are
convicted of drug violations in the workplace?
1472.230 How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
1472.300 What must I do to comply with this part if I am an
individual recipient?
1472.301 [Reserved]
Subpart D--Responsibilities of FMCS Awarding Officials
1472.400 What are my responsibilities as an FMCS awarding official?
Subpart E--Violations of This Part and Consequences
1472.500 How are violations of this part determined for recipients
other than individuals?
1472.505 How are violations of this part determined for recipients
who are individuals?
1472.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
1472.515 Are there any exceptions to those actions?
Subpart F--Definitions
1472.605 Award.
1472.610 Controlled substance.
1472.615 Conviction.
1472.620 Cooperative agreement.
1472.625 Criminal drug statute.
1472.630 Debarment.
1472.635 Drug-free workplace.
1472.640 Employee.
1472.645 Federal agency or agency.
1472.650 Grant.
1472.655 Individual.
1472.660 Recipient.
1472.665 State.
1472.670 Suspension.
Authority: 41 U.S.C. 701, et seq.
0
5. Part 1472 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``Federal Mediation and
Conciliation Service'' is added in its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``FMCS'' is added in its place
wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Agency Director'' is
added in its place wherever it occurs.
0
d. ``[Agency head]'' is removed and ``Agency Director'' is added in its
place wherever it occurs.
0
6. Section 1472.510 (c) is further amended by removing ``[CFR citation
for the Federal Agency's regulations implementing Executive Order 12549
and Executive Order 12689] and adding ``29 CFR Part 1471'' in its
place.
0
7. Section 1472.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``29 CFR Part 1470'' in its place.
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
31 CFR Parts 19 and 20
RIN 1505-AA86
FOR FURTHER INFORMATION CONTACT: Brian Lee, Office of the Deputy Chief
Financial Officer, 1500 Pennsylvania Avenue, NW., Attention: Room 6212,
Metropolitan Square, Washington, DC 20220, (202) 622-0808, Brian.Lee@do.treas.gov.
ADDRESSES: Written comments should be sent to Brian Lee, Office of the
Deputy Chief Financial Officer, Department of the Treasury, 1500
Pennsylvania Ave., NW., Attn: Metropolitan Square Room 6212,
Washington, DC 20220. Comments may also be sent by electronic mail to Brian Lee@do.treas.gov.
Comments should discuss the extent to which it may be appropriate
to amend the interim final rule to reflect programs and matters that
may be unique to the Department of the Treasury. Comments on matters
that have been raised in connection with the prior common notice of
proposed rulemaking and that are discussed elsewhere in the common
preamble to this rule will not be considered.
List of Subjects
31 CFR Part 19
Administrative practice and procedure, Debarment and suspension,
Government contracts, Grant programs, Loan programs, Reporting and
recordkeeping requirements.
31 CFR Part 20
Administrative practice and procedure, Drug abuse, Grant programs,
Reporting and recordkeeping requirements.
Dated: July 31, 2003.
Barry K. Hudson,
Deputy Chief Financial Officer.
0
For the reasons stated in the preamble, the Department of the Treasury
amends 31 CFR chapter I as follows:
0
1. Part 19 is revised to read as set forth in instruction 1 at the end
of the common preamble.
PART 19--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
Sec.
19.25 How is this part organized?
19.50 How is this part written?
19.75 Do terms in this part have special meanings?
Subpart A--General
19.100 What does this part do?
19.105 Does this part apply to me?
19.110 What is the purpose of the nonprocurement debarment and
suspension system?
19.115 How does an exclusion restrict a person's involvement in
covered transactions?
19.120 May we grant an exception to let an excluded person
participate in a covered transaction?
19.125 Does an exclusion under the nonprocurement system affect a
person's eligibility for Federal procurement contracts?
19.130 Does exclusion under the Federal procurement system affect a
person's eligibility to participate in nonprocurement transactions?
19.135 May the Department of the Treasury exclude a person who is
not currently participating in a nonprocurement transaction?
19.140 How do I know if a person is excluded?
19.145 Does this part address persons who are disqualified, as well
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
19.200 What is a covered transaction?
19.205 Why is it important to know if a particular transaction is a
covered transaction?
19.210 Which nonprocurement transactions are covered transactions?
19.215 Which nonprocurement transactions are not covered
transactions?
19.220 Are any procurement contracts included as covered
transactions?
19.225 How do I know if a transaction in which I may participate is
a covered transaction?
[[Page 66606]]
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
19.300 What must I do before I enter into a covered transaction with
another person at the next lower tier?
19.305 May I enter into a covered transaction with an excluded or
disqualified person?
19.310 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
19.315 May I use the services of an excluded person as a principal
under a covered transaction?
19.320 Must I verify that principals of my covered transactions are
eligible to participate?
19.325 What happens if I do business with an excluded person in a
covered transaction?
19.330 What requirements must I pass down to persons at lower tiers
with whom I intend to do business?
Disclosing Information--Primary Tier Participants
19.335 What information must I provide before entering into a
covered transaction with the Department of the Treasury?
19.340 If I disclose unfavorable information required under Sec.
19.335, will I be prevented from participating in the transaction?
19.345 What happens if I fail to disclose the information required
under Sec. 19.335?
19.350 What must I do if I learn of the information required under
Sec. 19.335 after entering into a covered transaction with the
Department of the Treasury?
Disclosing Information--Lower Tier Participants
19.355 What Information must I provide to a higher tier participant
before entering into a covered transaction with that participant?
19.360 What happens if I fail to disclose the information required
under Sec. 19.355?
19.365 What must I do if I learn of information required under Sec.
19.355 after entering into a covered transaction with a higher tier
participant?
Subpart D--Responsibilities of Department of the Treasury Officials
Regarding Transactions
19.400 May I enter into a transaction with an excluded or
disqualified person?
19.405 May I enter into a covered transaction with a participant if
a principal of the transaction is excluded?
19.410 May I approve a participant's use of the services of an
excluded person?
19.415 What must I do if a Federal agency excludes the participant
or a principal after I enter into a covered transaction?
19.420 May I approve a transaction with an excluded or disqualified
person at a lower tier?
19.425 When do I check to see if a person is excluded or
disqualified?
19.430 How do I check to see if a person is excluded or
disqualified?
19.435 What must I require of a primary tier participant?
19.440 What method do I use to communicate those requirements to
participants?
19.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
19.450 What action may I take if a primary tier participant fails to
disclose the information required under Sec. 19.335?
19.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 19.355 to the next higher tier?
Subpart E--Excluded Parties List System
19.500 What is the purpose of the Excluded Parties List System
(EPLS)?
19.505 Who uses the EPLS?
19.510 Who maintains the EPLS?
19.515 What specific information is in the EPLS?
19.520 Who places the information into the EPLS?
19.525 Whom do I ask if I have questions about a person in the EPLS?
19.530 Where can I find the EPLS?
Subpart F--General Principles Relating to Suspension and Debarment
Actions
19.600 How do suspension and debarment actions start?
19.605 How does suspension differ from debarment?
19.610 What procedures does the Department of the Treasury use in
suspension and debarment actions?
19.615 How does the Department of the Treasury notify a person of a
suspension and debarment action?
19.620 Do Federal agencies coordinate suspension and debarment
actions?
19.625 What is the scope of a suspension or debarment action?
19.630 May the Department of the Treasury impute the conduct of one
person to another?
19.635 May the Department of the Treasury settle a debarment or
suspension action?
19.640 May a settlement include a voluntary exclusion?
19.645 Do other Federal agencies know if the Department of the
Treasury agrees to a voluntary exclusion?
Subpart G--Suspension
19.700 When may the suspending official issue a suspension?
19.705 What does the suspending official consider in issuing a
suspension?
19.710 When does a suspension take effect?
19.715 What notice does the suspending official give me if I am
suspended?
19.720 How may I contest a suspension?
19.725 How much time do I have to contest a suspension?
19.730 What information must I provide to the suspending official if
I contest a suspension?
19.735 Under what conditions do I get an additional opportunity to
challenge the facts on which the suspension is based?
19.740 Are suspension proceedings formal?
19.745 How is fact-finding conducted?
19.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
19.755 When will I know whether the suspension is continued or
terminated?
19.760 How long may my suspension last?
Subpart H--Debarment
19.800 What are the causes for debarment?
19.805 What notice does the debarring official give me if I am
proposed for debarment?
19.810 When does a debarment take effect?
19.815 How may I contest a proposed debarment?
19.820 How much time do I have to contest a proposed debarment?
19.825 What information must I provide to the debarring official if
I contest a proposed debarment?
19.830 Under what conditions do I get an additional opportunity to
challenge the facts on which the proposed debarment is based?
19.835 Are debarment proceedings formal?
19.840 How is fact-finding conducted?
19.845 What does the debarring official consider in deciding whether
to debar me?
19.850 What is the standard of proof in a debarment action?
19.855 Who has the burden of proof in a debarment action?
19.860 What factors may influence the debarring official's decision?
19.865 How long may my debarment last?
19.870 When do I know if the debarring official debars me?
19.875 May I ask the debarring official to reconsider a decision to
debar me?
19.880 What factors may influence the debarring official during
reconsideration?
19.885 May the debarring official extend a debarment?
Subpart I--Definitions
19.900 Adequate evidence.
19.905 Affiliate.
19.910 Agency.
19.915 Agent or representative.
19.920 Civil judgment.
19.925 Conviction.
19.930 Debarment.
19.935 Debarring official.
19.940 Disqualified.
19.945 Excluded or exclusion.
19.950 Excluded Parties List System.
19.955 Indictment.
19.960 Ineligible or ineligibility.
19.965 Legal proceedings.
19.970 Nonprocurement transaction.
19.975 Notice.
19.980 Participant.
19.985 Person.
19.990 Preponderance of the evidence.
19.995 Principal.
19.1000 Respondent.
19.1005 State.
19.1010 Suspending official.
19.1015 Suspension.
19.1020 Voluntary exclusion or voluntarily excluded.
[[Page 66607]]
Subpart J--[Reserved]
Appendix to Part 19--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).
??0
2. Part 19 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``Department of the Treasury'' is
added in its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``Department of the Treasury''
is added in its place wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Secretary of the
Treasury'' is added in its place wherever it occurs.
0
3. Section 19.440 is added to read as follows:
Sec. 19.440 What method do I use to communicate those requirements to
participants?
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.
0
4. Part 20 is added to read as set forth in instruction 2 at the end of
the common preamble.
PART 20--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE
(FINANCIAL ASSISTANCE)
Subpart A--Purpose and Coverage
Sec.
20.100 What does this part do?
20.105 Does this part apply to me?
20.110 Are any of my Federal assistance awards exempt from this
part?
20.115 Does this part affect the Federal contracts that I receive?
Subpart B--Requirements for Recipients Other Than Individuals
20.200 What must I do to comply with this part?
20.205 What must I include in my drug-free workplace statement?
20.210 To whom must I distribute my drug-free workplace statement?
20.215 What must I include in my drug-free awareness program?
20.220 By when must I publish my drug-free workplace statement and
establish my drug-free awareness program?
20.225 What actions must I take concerning employees who are
convicted of drug violations in the workplace?
20.230 How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
20.300 What must I do to comply with this part if I am an individual
recipient?
20.301 [Reserved]
Subpart D--Responsibilities of Department of the Treasury Awarding
Officials
20.400 What are my responsibilities as an Department of the Treasury
awarding official?
Subpart E--Violations of This Part and Consequences
20.500 How are violations of this part determined for recipients
other than individuals?
20.505 How are violations of this part determined for recipients who
are individuals?
20.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
20.515 Are there any exceptions to those actions?
Subpart F--Definitions
20.605 Award.
20.610 Controlled substance.
20.615 Conviction.
20.620 Cooperative agreement.
20.625 Criminal drug statute.
20.630 Debarment.
20.635 Drug-free workplace.
20.640 Employee.
20.645 Federal agency or agency.
20.650 Grant.
20.655 Individual.
20.660 Recipient.
20.665 State.
20.670 Suspension.
Authority: 41 U.S.C. 701, et seq.
0
5. Part 20 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``Department of the Treasury'' is
added in its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``Department of the Treasury''
is added in its place wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Secretary of the
Treasury'' is added in its place wherever it occurs.
0
d. ``[Agency head]'' is removed and ``Secretary of the Treasury'' is
added in its place wherever it occurs.
0
6. Section 20.510(c) is further amended by removing ``[CFR citation for
the Federal agency's regulations implementing Executive Order 12549 and
Executive Order 12689]'' and adding ``22 CFR Part 19'' in its place.
0
7. Section 20.605 is further amended by removing and reserving
paragraph (a)(2).
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Parts 25 and 26
RIN 0790-AG86
FOR FURTHER INFORMATION CONTACT: Mark Herbst, Office of the Deputy
Under Secretary of Defense (Science and Technology), 3080 Defense
Pentagon, Washington, DC 20301-3080., telephone: (703) 696-0372.
List of Subjects
32 CFR Part 25
Administrative practice and procedure, Debarment and suspension,
Grant programs, Reporting and recordkeeping requirements
32 CFR Part 26
Administrative practice and procedure, Drug abuse, Grant programs,
Reporting and recordkeeping requirements
Approved: July 31, 2003.
Patricia L. Toppings,
Alternate OSD Federal Register, Liaison Officer, Department of Defense.
0
Accordingly, as set forth in the common preamble, 32 CFR chapter I,
subchapter C is amended as follows:
0
1. Part 25 is revised to read as set forth in instruction 1 at the end
of the common preamble.
PART 25--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
Sec.
25.25 How is this part organized?
25.50 How is this part written?
25.75 Do terms in this part have special meanings?
Subpart A--General 25.100 What does this part do?
25.105 Does this part apply to me?
25.110 What is the purpose of the nonprocurement debarment and
suspension system?
25.115 How does an exclusion restrict a person's involvement in
covered transactions?
25.120 May we grant an exception to let an excluded person
participate in a covered transaction?
25.125 Does an exclusion under the nonprocurement system affect a
person's eligibility for Federal procurement contracts?
25.130 Does exclusion under the Federal procurement system affect a
person's eligibility to participate in nonprocurement transactions?
25.135 May the DOD Component exclude a person who is not currently
participating in a nonprocurement transaction?
25.140 How do I know if a person is excluded?
[[Page 66608]]
25.145 Does this part address persons who are disqualified, as well
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
25.200 What is a covered transaction?
25.205 Why is it important to know if a particular transaction is a
covered transaction?
25.210 Which nonprocurement transactions are covered transactions?
25.215 Which nonprocurement transactions are not covered
transactions?
25.220 Are any procurement contracts included as covered
transactions?
25.225 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
25.300 What must I do before I enter into a covered transaction with
another person at the next lower tier?
25.305 May I enter into a covered transaction with an excluded or
disqualified person?
25.310 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
25.315 May I use the services of an excluded person as a principal
under a covered transaction?
25.320 Must I verify that principals of my covered transactions are
eligible to participate?
25.325 What happens if I do business with an excluded person in a
covered transaction?
25.330 What requirements must I pass down to persons at lower tiers
with whom I intend to do business?
Disclosing Information--Primary Tier Participants
25.335 What information must I provide before entering into a
covered transaction with the DOD Component?
25.340 If I disclose unfavorable information required under Sec.
25.335, will I be prevented from participating in the transaction?
25.345 What happens if I fail to disclose the information required
under Sec. 25.335?
25.350 What must I do if I learn of the information required under
Sec. 25.335 after entering into a covered transaction with the DOD
Component?
Disclosing Information--Lower Tier Participants
25.355 What information must I provide to a higher tier participant
before entering into a covered transaction with that participant?
25.360 What happens if I fail to disclose the information required
under Sec. 25.355?
25.365 What must I do if I learn of information required under Sec.
25.355 after entering into a covered transaction with a higher tier
participant?
Subpart D--Responsibilities of DOD Component Officials Regarding
Transactions
25.400 May I enter into a transaction with an excluded or
disqualified person?
25.405 May I enter into a covered transaction with a participant if
a principal of the transaction is excluded?
25.415 What must I do if a Federal agency excludes the participant
or a principal after I enter into a covered transaction?
25.420 May I approve a transaction with an excluded or disqualified
person at a lower tier?
25.425 When do I check to see if a person is excluded or
disqualified?
25.430 How do I check to see if a person is excluded or
disqualified?
25.435 What must I require of a primary tier participant?
25.440 What method do I use to communicate those requirements to
participants?
25.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
25.450 What action may I take if a primary tier participant fails to
disclose the information required under Sec. 25.335?
25.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 25.355 to the next higher tier?
Subpart E--Excluded Parties List System
25.500 What is the purpose of the Excluded Parties List System
(EPLS)?
25.505 Who uses the EPLS?
25.510 Who maintains the EPLS?
25.515 What specific information is in the EPLS?
25.520 Who places the information into the EPLS?
25.525 Whom do I ask if I have questions about a person in the EPLS?
25.530 Where can I find the EPLS?
Subpart F--General Principles Relating to Suspension and Debarment
Actions
25.600 How do suspension and debarment actions start?
25.605 How does suspension differ from debarment?
25.610 What procedures does the DOD Component use in suspension and
debarment actions?
25.615 How does the DOD Component notify a person of a suspension
and debarment action?
25.620 Do Federal agencies coordinate suspension and debarment
actions?
25.625 What is the scope of a suspension or debarment action?
25.630 May the DOD Component impute the conduct of one person to
another?
25.635 May the DOD Component settle a debarment or suspension
action?
25.640 May a settlement include a voluntary exclusion?
25.645 Do other Federal agencies know if the DOD Component agrees to
a voluntary exclusion?
Subpart G--Suspension
25.700 When may the suspending official issue a suspension?
25.705 What does the suspending official consider in issuing a
suspension?
25.710 When does a suspension take effect?
25.715 What notice does the suspending official give me if I am
suspended?
25.720 How may I contest a suspension?
25.725 How much time do I have to contest a suspension?
25.730 What information must I provide to the suspending official if
I contest a suspension?
25.735 Under what conditions do I get an additional opportunity to
challenge the facts on which the suspension is based?
25.740 Are suspension proceedings formal?
25.745 How is fact-finding conducted?
25.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
25.755 When will I know whether the suspension is continued or
terminated?
25.760 How long may my suspension last?
Subpart H--Debarment
25.800 What are the causes for debarment?
25.805 What notice does the debarring official give me if I am
proposed for debarment?
25.810 When does a debarment take effect?
25.815 How may I contest a proposed debarment?
25.820 How much time do I have to contest a proposed debarment?
25.825 What information must I provide to the debarring official if
I contest a proposed debarment?
25.830 Under what conditions do I get an additional opportunity to
challenge the facts on which a proposed debarment is based?
25.835 Are debarment proceedings formal?
25.840 How is fact-finding conducted?
25.845 What does the debarring official consider in deciding whether
to debar me?
25.850 What is the standard of proof in a debarment action?
25.855 Who has the burden of proof in a debarment action?
25.860 What factors may influence the debarring official's decision?
25.865 How long may my debarment last?
25.870 When do I know if the debarring official debars me?
25.875 May I ask the debarring official to reconsider a decision to
debar me?
25.880 What factors may influence the debarring official during
reconsideration?
25.885 May the debarring official extend a debarment?
Subpart I--Definitions
25.900 Adequate evidence.
25.905 Affiliate.
25.910 Agency.
25.915 Agent or representative.
25.920 Civil judgment.
25.925 Conviction.
25.930 Debarment.
25.935 Debarring official.
25.940 Disqualified.
25.942 DOD Component.
25.945 Excluded or exclusion.
25.950 Excluded Parties List System.
25.955 Indictment.
[[Page 66609]]
25.960 Ineligible or ineligibility.
25.965 Legal proceedings.
25.970 Nonprocurement transaction.
25.975 Notice.
25.980 Participant.
25.985 Person.
25.990 Preponderance of the evidence.
25.995 Principal.
25.1000 Respondent.
25.1005 State.
25.1010 Suspending official.
25.1015 Suspension.
25.1020 Voluntary exclusion or voluntarily excluded.
Subpart J--[Reserved]
Appendix to Part 25--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).
0
2. Part 25 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``DOD Component'' is added in its
place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``DOD Component'' is added in
its place wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Head of the DOD
Component or his or her designee'' is added in its place wherever it
occurs.
0
3. Section 25.440 is added to read as follows:
Sec. 25.440 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.
0
4. Section 25.935 is further amended by adding paragraph (b) to read as
follows:
Sec. 25.935 Debarring official.
* * * * *
(b) DOD Components' debarring officials for nonprocurement
transactions are the same officials identified in 48 CFR part 209,
subpart 209.4 as debarring officials for procurement contracts.
0
5. Section 25.942 is added to read as follows:
Sec. 25.942 DOD Component.
DOD Component means the Office of the Secretary of Defense, a
Military Department, a Defense Agency, or the Office of Economic
Adjustment.
0
6. Section 25.1010 is further amended by adding a paragraph (b) to read
as follows:
Sec. 25.1010 Suspending official.
* * * * *
(b) DOD Components' suspending officials for nonprocurement
transactions are the same officials identified in 48 CFR part, subpart
209.4 as suspending officials for procurement contracts.
0
7. Part 26 is added to read as set forth in instruction 2 at the end of
the common preamble.
PART 26--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE
(FINANCIAL ASSISTANCE)
Subpart A--Purpose and Coverage
Sec.
26.100 What does this part do?
26.105 Does this part apply to me?
26.110 Are any of my Federal assistance awards exempt from this
part?
26.115 Does this part affect the Federal contracts that I receive?
Subpart B--Requirements for Recipients Other Than Individuals
26.200 What must I do to comply with this part?
26.205 What must I include in my drug-free workplace statement?
26.210 To whom must I distribute my drug-free workplace statement?
26.215 What must I include in my drug-free awareness program?
26.220 By when must I publish my drug-free workplace statement and
establish my drug-free awareness program?
26.225 What actions must I take concerning employees who are
convicted of drug violations in the workplace?
26.230 How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
26.300 What must I do to comply with this part if I am an individual
recipient?
26.301 [Reserved]
Subpart D--Responsibilities of DOD Component Awarding Officials
26.400 What are my responsibilities as a DOD Component awarding
official?
Subpart E--Violations of This Part and Consequences
26.500 How are violations of this part determined for recipients
other than individuals?
26.505 How are violations of this part determined for recipients who
are individuals?
26.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
26.515 Are there any exceptions to those actions?
Subpart F--Definitions
26.605 Award
26.610 Controlled substance.
26.615 Conviction.
26.620 Cooperative agreement.
26.625 Criminal drug statute.
26.630 Debarment.
26.632 DOD Component.
26.635 Drug-free workplace.
26.640 Employee.
26.645 Federal agency or agency.
26.650 Grant.
26.655 Individual.
26.660 Recipient.
26.665 State.
26.670 Suspension.
Authority: 41U.S.C.701, et seq.
0
8. Part 26 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``DOD Component'' is added in its
place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``DOD Component'' is added in
its place wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Head of the DOD
Component or his or her designee'' is added in its place wherever it
occurs.
0
d. ``[Agency head]'' is removed and ``Secretary of Defense or Secretary
of a Military Department'' is added in its place wherever it occurs.
0
9. Section 26.510(c) is further amended by removing ``[CFR citation for
the Federal agency's regulations implementing Executive Order 12549 and
Executive Order 12689]'' and adding ``32 CFR Part 25'' in its place.
0
10. Section 26.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``32 CFR part 33'' in its place.
0
11. Section 26.632 is added to read as follows:
Sec. 26.632 DOD Component.
DOD Component means the Office of the Secretary of Defense, a
Military Department, a Defense Agency, or the Office of Economic
Adjustment.
-----------------------------------------------------------------------
DEPARTMENT OF EDUCATION
34 CFR Parts 84, 85, 668, and 682
RIN 1890-AA07
FOR FURTHER INFORMATION CONTACT: Peter Wathen-Dunn, Office of the
General Counsel, U.S. Department of Education, 400 Maryland Avenue,
SW., room 6E211, Washington, DC 20202-2243. Telephone: 202-401-6700 or via e-mail: Peter.Wathen-Dunn@ed.gov. If you use a telecommunications
device for the deaf (TDD), you may call the Federal Information Relay
Service (FIRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an
alternative format (e.g., Braille, large print, audiotape, or computer
diskette) on request to the contact person listed above.
[[Page 66610]]
SUPPLEMENTARY INFORMATION: The Department of Education (ED) did not
receive any comments on its adoption of the common rule. We adopt as
the final suspension and debarment regulation of ED the common rule as
proposed by ED in its notice of proposed rulemaking (NPRM) (January 23,
2002 (67 FR 3326-333)).
Generally, in the NPRM ED made changes and additions to the common
rule to ensure that ED's programs under Title IV of the Higher
Education Act of 1965, as amended (HEA), were protected as they have
been in the past under ED's adoption of the original common rule. See
the NPRM at 67 FR 3326 for a complete description of the ED changes to
the Common Rule. The Secretary also chose to adopt the common rule so
that procurement transactions below a nonprocurement transaction are
covered under ED programs at any tier if the transaction equals or
exceeds $25,000 or requires consent of the Department. The Secretary
has also clarified some of the common rule definitions in the context
of the HEA.
Because this final rule reorganizes part 85 of title 34 of the Code
of Federal Regulations (CFR), some of the cross references to this part
in parts 668 and 682 of the CFR are obsolete. Therefore, the Secretary
makes conforming amendments to parts 668 and 682 of the CFR so they
refer to the proper provisions in part 85.
Electronic Access to This Document
You may view this document, as well as all other Department of
Education documents published in the Federal Register, in text or Adobe
Portable Document Format (PDF) on the Internet at the following site:
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.ed.gov/legislation/FedRegister.
To use PDF you must have Adobe Acrobat Reader, which is available
free at this site. If you have questions about using PDF, call the U.S.
Government Printing Office (GPO), toll free, at 1-888-293-6498; or in
the Washington, DC, area at (202) 512-1530.
Note: The official version of this document is the document
published in the Federal Register. Free Internet access to the
official edition of the Federal Register and the CFR is available on
GPO Access at: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.gpoaccess.gov/nara/index.html (Catalog of
Federal Domestic Assistance Number 84.032 Federal Family Education
Loan Program)
List of Subjects
4 CFR Part 84
Debarment and suspension, Drug abuse, Grant programs, Reporting and
recordkeeping requirements.
34 CFR Part 85
Administrative practice and procedure, Debarment and suspension,
Drug abuse, Grant programs, Loan programs, Reporting and recordkeeping
requirements.
34 CFR Part 668
Administrative practice and procedure, Colleges and universities,
Consumer protection, Grant programs--education, Loan programs--
education, Reporting and recordkeeping requirements, Student aid.
34 CFR Part 682
Administrative practice and procedure, Colleges and universities,
Education, Loan programs--education, Reporting and recordkeeping
requirements, Student aid, Vocational education.
Dated: September 8, 2003.
Rod Paige,
Secretary of Education.
0
For the reasons stated in the common preamble and in the specific
preamble of the Department of Education (ED), the Secretary amends
title 34 of the Code of Federal Regulations by adding part 84, revising
part 85, and amending parts 668 and 682 to read as follows:
0
1. Part 84 is added to read as set forth in instruction 2 at the end of
the common preamble.
PART 84--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE
(FINANCIAL ASSISTANCE)
Subpart A--Purpose and Coverage
Sec.
84.100 What does this part do?
84.105 Does this part apply to me?
84.110 Are any of my Federal assistance awards exempt from this
part?
84.115 Does this part affect the Federal contracts that I receive?
Subpart B--Requirements for Recipients Other Than Individuals
84.200 What must I do to comply with this part?
84.205 What must I include in my drug-free workplace statement?
84.210 To whom must I distribute my drug-free workplace statement?
84.215 What must I include in my drug-free awareness program?
84.220 By when must I publish my drug-free workplace statement and
establish my drug-free awareness program?
84.225 What actions must I take concerning employees who are
convicted of drug violations in the workplace?
84.230 How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
84.300 What must I do to comply with this part if I am an individual
recipient?
84.301 [Reserved]
Subpart D--Responsibilities of ED Awarding Officials
84.400 What are my responsibilities as an ED awarding official?
Subpart E--Violations of This Part and Consequences
84.500 How are violations of this part determined for recipients
other than individuals?
84.505 How are violations of this part determined for recipients who
are individuals?
84.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
84.515 Are there any exceptions to those actions?
Subpart F--Definitions
84.605 Award.
84.610 Controlled substance.
84.615 Conviction.
84.620 Cooperative agreement.
84.625 Criminal drug statute.
84.630 Debarment.
84.635 Drug-free workplace.
84.640 Employee.
84.645 Federal agency or agency.
84.650 Grant.
84.655 Individual.
84.660 Recipient.
84.665 State.
84.670 Suspension.
Authority: E.O.s 12549 and 12689; 20 U.S.C. 1082, 1094, 1221e-3
and 3474; and Sec. 2455, Pub. L. 103-355, 108 Stat. 3243 at 3327,
unless otherwise noted.
0
2. Part 84 is further amended as follows:
0
a. ``[Agency noun]'' is removed and ``Department of Education'' is
added in its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``ED'' is added in its place
wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``ED Deciding
Official'' is added in its place wherever it occurs.
0
d. ``[Agency head]'' is removed and ``ED Deciding Official'' is added
in its place wherever it occurs.
0
3. Section 84.510(c) is further amended by removing ``[CFR citation for
the Federal Agency's regulations implementing Executive Order 12549 and
Executive Order 12689]'' and adding ``34 CFR part 85'' in its place.
0
4. Section 84.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``34 CFR part 85'' in its place.
0
5. Each section in part 84 is further amended by adding to the end of
each section the following authority citation to read:
[[Page 66611]]
Authority: E.O.s 12549 and 12689; 20 U.S.C. 1082, 1094, 1221e-3
and 3474; and Sec. 2455, Pub. L. 103-355, 108 Stat. 3243 at 3327.
0
6. Part 85 is revised to read as provided in instruction 1 at the end
of the common preamble:
PART 85--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
Sec.
85.25 How is this part organized?
85.50 How is this part written?
85.75 Do terms in this part have special meanings?
Subpart A--General
85.100 What does this part do?
85.105 Does this part apply to me?
85.110 What is the purpose of the nonprocurement debarment and
suspension system?
85.115 How does an exclusion restrict a person's involvement in
covered transactions?
85.120 May we grant an exception to let an excluded person
participate in a covered transaction?
85.125 Does an exclusion under the nonprocurement system affect a
person's eligibility for Federal procurement contracts?
85.130 Does exclusion under the Federal procurement system affect a
person's eligibility to participate in nonprocurement transactions?
85.135 May the Department of Education exclude a person who is not
currently participating in a nonprocurement transaction?
85.140 How do I know if a person is excluded?
85.145 Does this part address persons who are disqualified, as well
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
85.200 What is a covered transaction?
85.205 Why is it important to know if a particular transaction is a
covered transaction?
85.210 Which nonprocurement transactions are covered transactions?
85.215 Which nonprocurement transactions are not covered
transactions?
85.220 Are any procurement contracts included as covered
transactions?
85.225 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
85.300 What must I do before I enter into a covered transaction with
another person at the next lower tier?
85.305 May I enter into a covered transaction with an excluded or
disqualified person?
85.310 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
85.315 May I use the services of an excluded person as a principal
under a covered transaction?
85.320 Must I verify that principals of my covered transactions are
eligible to participate?
85.325 What happens if I do business with an excluded person in a
covered transaction?
85.330 What requirements must I pass down to persons at lower tiers
with whom I intend to do business?
Disclosing Information--Primary Tier Participants
85.335 What information must I provide before entering into a
covered transaction with the Department of Education?
85.340 If I disclose unfavorable information required under Sec.
85.335, will I be prevented from participating in the transaction?
85.345 What happens if I fail to disclose the information required
under Sec. 85.335?
85.350 What must I do if I learn of the information required under
Sec. 85.335 after entering into a covered transaction with the
Department of Education?
Disclosing Information--Lower Tier Participants
85.355 What information must I provide to a higher tier participant
before entering into a covered transaction with that participant?
85.360 What happens if I fail to disclose the information required
under Sec. 85.355?
85.365 What must I do if I learn of information required under Sec.
85.355 after entering into a covered transaction with a higher tier
participant?
Subpart D--Responsibilities of ED Officials Regarding Transactions
85.400 May I enter into a transaction with an excluded or
disqualified person?
85.405 May I enter into a covered transaction with a participant if
a principal of the transaction is excluded?
85.410 May I approve a participant's use of the services of an
excluded person?
85.415 What must I do if a Federal agency excludes the participant
or a principal after I enter into a covered transaction?
85.420 May I approve a transaction with an excluded or disqualified
person at a lower tier?
85.425 When do I check to see if a person is excluded or
disqualified?
85.430 How do I check to see if a person is excluded or
disqualified?
85.435 What must I require of a primary tier participant?
85.440 What method do I use to communicate those requirements to
participants?
85.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
85.450 What action may I take if a primary tier participant fails to
disclose the information required under Sec. 85.335?
85.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 85.355 to the next higher tier?
Subpart E--Excluded Parties List System
85.500 What is the purpose of the Excluded Parties List System
(EPLS)?
85.505 Who uses the EPLS?
85.510 Who maintains the EPLS?
85.515 What specific information is in the EPLS?
85.520 Who places the information into the EPLS?
85.525 Whom do I ask if I have questions about a person in the EPLS?
85.530 Where can I find the EPLS?
Subpart F--General Principles Relating to Suspension and Debarment
Actions
85.600 How do suspension and debarment actions start?
85.605 How does suspension differ from debarment?
85.610 What procedures does the Department of Education use in
suspension and debarment actions?
85.611 What procedures do we use for a suspension or debarment
action involving title IV, HEA transaction?
85.612 When does an exclusion by another agency affect the ability
of the excluded person to participate in title IV, HEA transaction?
85.615 How does the Department of Education notify a person of a
suspension and debarment action?
85.620 Do Federal agencies coordinate suspension and debarment
actions?
85.625 What is the scope of a suspension or debarment action?
85.630 May the Department of Education impute the conduct of one
person to another?
85.635 May the Department of Education settle a debarment or
suspension action?
85.640 May a settlement include a voluntary exclusion?
85.645 Do other Federal agencies know if the Department of Education
agrees to a voluntary exclusion?
Subpart G--Suspension
85.700 When may the suspending official issue a suspension?
85.705 What does the suspending official consider in issuing a
suspension?
85.710 When does a suspension take effect?
85.711 When does a suspension affect title IV, HEA transactions?
85.715 What notice does the suspending official give me if I am
suspended?
85.720 How may I contest a suspension?
85.725 How much time do I have to contest a suspension?
85.730 What information must I provide to the suspending official if
I contest a suspension?
85.735 Under what conditions do I get an additional opportunity to
challenge the facts on which the suspension is based?
85.740 Are suspension proceedings formal?
85.745 How is fact-finding conducted?
85.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
85.755 When will I know whether the suspension is continued or
terminated?
85.760 How long may my suspension last?
[[Page 66612]]
Subpart H--Debarment
85.800 What are the causes for debarment?
85.805 What notice does the debarring official give me if I am
proposed for debarment?
85.810 When does a debarment take effect?
85.811 When does a debarment affect title IV, HEA transactions?
85.815 How may I contest a proposed debarment?
85.820 How much time do I have to contest a proposed debarment?
85.825 What information must I provide to the debarring official if
I contest a proposed debarment?
85.830 Under what conditions do I get an additional opportunity to
challenge the facts on which the proposed debarment is based?
85.835 Are debarment proceedings formal?
85.840 How is fact-finding conducted?
85.845 What does the debarring official consider in deciding whether
to debar me?
85.850 What is the standard of proof in a debarment action?
85.855 Who has the burden of proof in a debarment action?
85.860 What factors may influence the debarring official's decision?
85.865 How long may my debarment last?
85.870 When do I know if the debarring official debars me?
85.875 May I ask the debarring official to reconsider a decision to
debar me?
85.880 What factors may influence the debarring official during
reconsideration?
85.885 May the debarring official extend a debarment?
Subpart I--Definitions
85.900 Adequate evidence.
85.905 Affiliate.
85.910 Agency.
85.915 Agent or representative.
85.920 Civil judgment.
85.925 Conviction.
85.930 Debarment.
85.935 Debarring official.
85.940 Disqualified.
85.942 ED Deciding Official.
85.945 Excluded or exclusion.
85.950 Excluded Parties List System.
85.952 HEA.
85.955 Indictment.
85.960 Ineligible or ineligibility.
85.965 Legal proceedings.
85.970 Nonprocurement transaction.
85.975 Notice.
85.980 Participant.
85.985 Person.
85.990 Preponderance of the evidence.
85.995 Principal.
85.1000 Respondent.
85.1005 State.
85.1010 Suspending official.
85.1015 Suspension.
85.1016 Title IV, HEA participant.
85.1017 Title IV, HEA program.
85.1018 Title IV, HEA transaction.
85.1020 Voluntary exclusion or voluntarily excluded.
Subpart J--[Reserved]
Appendix to Part 85--Covered Transactions
Authority: 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); 20 U.S.C. 1082, 1094, 1221e-3, and 3474,
unless otherwise noted.
0
7. Part 85 is further amended as follows:
0
a. ``[Agency noun]'' is removed and ``Department of Education'' is
added in its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``ED'' is added in its place
wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``ED Deciding
Official'' is added in its place wherever it occurs.
0
d. Each section in part 85 is further amended by adding to the end of
each section the following authority citation to read:
Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O 12689 (3
CFR, 1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474;
and Sec. 2455, Pub. L. 103-355, 108 Stat. 3243 at 3327.
0
8. Section 85.220 is further amended by adding new paragraphs (c) and
(d) to read as follows.
Sec. 85.220 Are any procurement contracts included as covered
transactions?
* * * * *
(c) The contract is awarded by any contractor, subcontractor,
supplier, consultant or its agent or representative in any transaction,
regardless of tier, that is funded or authorized under ED programs and
is expected to equal or exceed $25,000.
(d) The contract is to perform services as a third party servicer
in connection with a title IV, HEA program.
0
9. Section 85.310 is further amended by adding paragraph (c) to read as
follows:
Sec. 85.310 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
* * * * *
(c) If you are a title IV, HEA participant, you may not continue a
title IV, HEA transaction with an excluded person after the effective
date of the exclusion unless permitted by 34 CFR 668.26, 682.702, or
668.94, as applicable.
0
10. Section 85.315 is further amended by adding paragraph (c) to read
as follows:
Sec. 85.315 May I use the services of an excluded person under a
covered transaction?
* * * * *
(c) Title IV, HEA transactions. If you are a title IV, HEA
participant--
(1) You may not renew or extend the term of any contract or
agreement for the services of an excluded person as a principal with
respect to a title IV, HEA transaction; and
(2) You may not continue to use the services of that excluded
person as a principal under this kind of an agreement or arrangement
more than 90 days after you learn of the exclusion or after the close
of the Federal fiscal year in which the exclusion takes effect,
whichever is later.
0
11. Section 85.415 is further amended by adding a new paragraph (c) to
read as follows.
Sec. 85.415 What must I do if a Federal agency excludes the
participant or a principal after I enter into a covered transaction?
* * * * *
(c) Title IV, HEA transactions. If you are a title IV, HEA
participant--
(1) You may not renew or extend the term of any contract or
agreement for the services of an excluded person as a principal with
respect to a title IV, HEA transaction; and
(2) You may not continue to use the services of that excluded
person as a principal under this kind of an agreement or arrangement
more than 90 days after you learn of the exclusion or after the close
of the Federal fiscal year in which the exclusion takes effect,
whichever is later.
0
12. Subpart D of part 85 is further amended by adding Sec. 85.440 to
read as follows:
Sec. 85.440 What method do I use to communicate those requirements to
participants?
(a) To communicate those requirements, you must include a term or
condition in the transaction requiring each participant's compliance
with subpart C of this part and requiring the participant to include a
similar term or condition in lower-tier covered transactions.
(b) The failure of a participant to include a requirement to comply
with Subpart C of this part in the agreement with a lower tier
participant does not affect the lower tier participant's
responsibilities under this part.
Authority: E.O. 12549 (3 CFR, 1985 Comp., p. 189); E.O. 12689 (3
CFR 1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; and
Sec. 2455 of Pub. L. 103-355, 108 Stat. 3243 at 3327.
0
13. Subpart F of part 85 is further amended by adding a new Sec.
85.611 to read as follows:
[[Page 66613]]
Sec. 85.611 What procedures do we use for a suspension or debarment
action involving a title IV, HEA transaction?
(a) If we suspend a title IV, HEA participant under Executive Order
12549, we use the following procedures to ensure that the suspension
prevents participation in title IV, HEA transactions:
(1) The notification procedures in Sec. 85.715.
(2) Instead of the procedures in Sec. 85.720 through Sec. 85.760,
the procedures in 34 CFR part 668, subpart G or 34 CFR part 682,
subpart D or G as applicable.
(3) In addition to the findings and conclusions required by 34 CFR
part 668, subpart G or 34 CFR part 682, subpart D or G, the suspending
official, and, on appeal, the Secretary determines whether there is
sufficient cause for suspension as explained in Sec. 85.700.
(b) If we debar a title IV, HEA participant under E.O. 12549, we
use the following procedures to ensure that the debarment also
precludes participation in title IV, HEA transactions:
(1) The notification procedures in Sec. 85.805 and Sec. 85.870.
(2) Instead of the procedures in Sec. 85.810 through Sec. 85.885,
the procedures in 34 CFR part 668, subpart G or 34 CFR part 682,
subpart D or G, as applicable.
(3) On appeal from a decision debarring a title IV, HEA
participant, we issue a final decision after we receive any written
materials from the parties.
(4) In addition to the findings and conclusions required by 34 CFR
part 668, subpart G or 34 CFR part 682, subpart D or G, the debarring
official, and, on appeal, the Secretary determines whether there is
sufficient cause for debarment as explained in Sec. 85.800.
Authority: E.O. 12549 (3 CFR 1986 Comp., p. 189); E.O. 12689 (3
CFR Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; and Sec.
2455 of Pub. L. 103-355, 108 Stat. 3243 at 3327.
0
14. Subpart F of Part 85 is further amended by adding Sec. 85.612 to
read as follows:
Sec. 85.612 When does an exclusion by another agency affect the
ability of the excluded person to participate in a title IV, HEA
transaction?
(a) If a title IV, HEA participant is debarred by another agency
under E.O. 12549, using procedures described in paragraph (d) of this
section, that party is not eligible to enter into title IV, HEA
transactions for the duration of the debarment.
(b)(1) If a title IV, HEA participant is suspended by another
agency under E.O. 12549 or under a proposed debarment under the Federal
Acquisition Regulation (FAR) (48 CFR part 9, subpart 9.4), using
procedures described in paragraph (d) of this section, that party is
not eligible to enter into title IV, HEA transactions for the duration
of the suspension.
(2)(i) The suspension of title IV, HEA eligibility as a result of
suspension by another agency lasts for at least 60 days.
(ii) If the excluded party does not object to the suspension, the
60-day period begins on the 35th day after that agency issues the
notice of suspension.
(iii) If the excluded party objects to the suspension, the 60-day
period begins on the date of the decision of the suspending official.
(3) The suspension of title IV, HEA eligibility does not end on the
60th day if--
(i) The excluded party agrees to an extension; or
(ii) Before the 60th day we begin a limitation or termination
proceeding against the excluded party under 34 CFR part 668, subpart G
or part 682, subpart D or G.
(c)(1) If a title IV, HEA participant is debarred or suspended by
another Federal agency--
(i) We notify the participant whether the debarment or suspension
prohibits participation in title IV, HEA transactions; and
(ii) If participation is prohibited, we state the effective date
and duration of the prohibition.
(2) If a debarment or suspension by another agency prohibits
participation in title IV, HEA transactions, that prohibition takes
effect 20 days after we mail notice of our action.
(3) If ED or another Federal agency suspends a title IV, HEA
participant, we determine whether grounds exist for an emergency action
against the participant under 34 CFR part 668, subpart G or part 682,
subpart D or G, as applicable.
(4) We use the procedures in Sec. 85.611 to exclude a title IV,
HEA participant excluded by another Federal agency using procedures
that did not meet the standards in paragraph (d) of this section.
(d) If a title IV, HEA participant is excluded by another agency,
we debar, terminate, or suspend the participant--as provided under this
part, 34 CFR part 668, or 34 CFR part 682, as applicable--if that
agency followed procedures that gave the excluded party--
(1) Notice of the proposed action;
(2) An opportunity to submit and have considered evidence and
argument to oppose the proposed action;
(3) An opportunity to present its objection at a hearing--
(i) At which the agency has the burden of persuasion by a
preponderance of the evidence that there is cause for the exclusion;
and
(ii) Conducted by an impartial person who does not also exercise
prosecutorial or investigative responsibilities with respect to the
exclusion action;
(4) An opportunity to present witness testimony, unless the hearing
official finds that there is no genuine dispute about a material fact;
(5) An opportunity to have agency witnesses with personal knowledge
of material facts in genuine dispute testify about those facts, if the
hearing official determines their testimony to be needed, in light of
other available evidence and witnesses; and
(6) A written decision stating findings of fact and conclusions of
law on which the decision is rendered.
Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189), E.O. 12689 (3
CFR, 1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474;
and Sec. 2455 of Pub. L. 103-355, 108 Stat. 3243 at 3327.
0
15. Subpart G is amended by adding a new Sec. 85.711, to read as
follows:
Sec. 85.711 When does a suspension affect title IV, HEA transactions?
(a) A suspension under Sec. 85.611(a) takes effect immediately if
the Secretary takes an emergency action under 34 CFR part 668, subpart
G or 34 CFR part 682, subpart D or G at the same time the Secretary
issues the suspension.
(b)(1) Except as provided under paragraph (a) of this section, a
suspension under Sec. 85.611(a) takes effect 20 days after those
procedures are complete.
(2) If the respondent appeals the suspension to the Secretary
before the expiration of the 20 days under paragraph (b)(1) of this
section, the suspension takes effect when the respondent receives the
Secretary's decision.
Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189), E.O. 12689 (3
CFR, 1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474;
and Sec. 2455 of Pub. L. 103-355, 108 Stat. 3243 at 3327.
0
16. Subpart H is amended by adding a new Sec. 85.811 to read as
follows:
Sec. 85.811 When does a debarment affect title IV, HEA transactions?
(a) A debarment under Sec. 85.611(b) takes effect 30 days after
those procedures are complete.
(b) If the respondent appeals the debarment to the Secretary before
the expiration of the 30 days under paragraph (a) of this section, the
[[Page 66614]]
debarment takes effect when the respondent receives the Secretary's
decision.
Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189) E.O. 12689 ( 3
CFR, Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; and
Sec. 2455 of Pub. L. 103-355, 108 Stat. 3243 at 3327.
0
17. Subpart I of part 85 is further amended by adding Sec. 85.942 to
read as follows:
Sec. 85.942 ED Deciding Official.
The ED Deciding Official is an ED officer who has delegated
authority under the procedures of the Department of Education to decide
whether to affirm a suspension or enter a debarment.
Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189), E.O. 12689 (
3 CFR, 1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474;
and Sec. 2455 of Pub. L. 103-355, 108 Stat. 3243 at 3327.
0
18. Subpart I of part 85 is further amended by adding Sec. 85.952 to
read as follows:
Sec. 85.952 HEA.
HEA means the Higher Education Act of 1965, as amended.
0
19. Section 85.995 is further amended by adding paragraph (c) to read
as follows:
Sec. 85.995 Principal.
* * * * *
(c) For the purposes of Department of Education title IV, HEA
transactions--
(1) A third-party servicer, as defined in 34 CFR 668.2 or 682.200;
or
(2) Any person who provides services described in 34 CFR 668.2 or
682.200 to a title IV, HEA participant, whether or not that person is
retained or paid directly by the title IV, HEA participant.
* * * * *
0
20. Subpart I of part 85 is further amended by adding Sec. 85.1016 to
read as follows:
Sec. 85.1016 Title IV, HEA participant.
A title IV, HEA participant is--
(a) An institution described in 34 CFR 600.4, 600.5, or 600.6 that
provides postsecondary education; or
(b) A lender, third-party servicer, or guaranty agency, as those
terms are defined in 34 CFR 668.2 or 682.200.
Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O. 12689 (3
CFR, 1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474;
and Sec. 2455 of Pub. L. 103-355, 108 Stat. 3243 at 3327.
0
21. Subpart I of part 85 is further amended by adding Sec. 85.1017 to
read as follows:
Sec. 85.1017 Title IV, HEA program.
A title IV, HEA program includes any program listed in 34 CFR
668.1(c).
Authority: E.O. 12549 (3 CFR, 1986 Comp., p.1890: E.O. 12689 (3
CFR, 1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474;
and Sec. 2455 of Pub. L. 103-355, 108 Stat. 3243 at 3327.
0
22. Subpart I of part 85 is further amended by adding Sec. 85.1018 to
read as follows:
Sec. 85.1018 Title IV, HEA transaction.
A title IV, HEA transaction includes:
(a) A disbursement or delivery of funds provided under a title IV,
HEA program to a student or borrower;
(b) A certification by an educational institution of eligibility
for a loan under a title IV, HEA program;
(c) Guaranteeing a loan made under a title IV, HEA program; and
(d) The acquisition or exercise of any servicing responsibility for
a grant, loan, or work study assistance under a title IV, HEA program.
Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189) E.O. 12689 (3
CFR, 1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474;
and Sec. 2455 of Pub. L. 103-355, 108 Stat. 3243 at 3327.
0
23. The appendix to part 85 is amended by removing and reserving the
Covered Transaction Chart and by adding a Covered Transactions for ED
Chart to read as follows.
Appendix to Part 85--Covered Transactions for ED Covered Transactions--
[Reserved]
[[Page 66615]]
[GRAPHIC] [TIFF OMITTED] TR26NO03.001
PART 668--STUDENT ASSISTANCE GENERAL PROVISIONS
0
24. The authority citation for part 668 is revised to read as follows:
Authority: 20 U.S.C. 1001, 1002, 1003, 1085, 1088, 1091, 1092,
1094, 1099c, and 1099c-1, unless otherwise noted.
Sec. 668.82 [Amended]
0
25. Amend Sec. 668.82 as follows:
0
a. In paragraph (e)(1)(i)(B), by removing the words ``Cause exists
under 34 CFR 85.305 or 85.405'' and adding, in their place, the words
``Cause exists under 34 CFR 85.700 or 85.800''.
0
b. In paragraphs (f)(1) and (f)(2)(i), by removing the citation ``34
CFR 85.201(c)'' and adding, in its place, the citation ``34 CFR
85.612(d)''.
PART 682--FEDERAL FAMILY EDUCATION LOAN (FFEL) PROGRAM
0
26. The authority citation for part 682 continues to read as follows:
Authority: 20 U.S.C. 1071 to 1087-2, unless otherwise noted.
Sec. 682.416 [Amended]
0
27. Amend Sec. 682.416(d)(1)(ii)(B) by removing the words ``cause
under 34 CFR 85.305 or 85.405'' and adding, in their place, the words
``cause under 34 CFR 85.700 or 85.800.''
Sec. 682.705 [Amended]
0
28. Amend Sec. 682.705 by removing paragraph (a)(3).
-----------------------------------------------------------------------
NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
36 CFR Parts 1209 and 1212
RIN 3095-AB04
FOR FURTHER INFORMATION CONTACT: Nancy Allard at Policy and
Communications Staff (NPOL), Room 4100, 8601 Adelphi Road, College Park, Maryland 20740-6001, 301-837-1477, or comments@nara.gov.
List of Subjects
36 CFR Part 1209
Administrative practice and procedure, Debarment and suspension,
Grant programs, Reporting and recordkeeping requirements.
[[Page 66616]]
36 CFR Part 1212
Administrative practice and procedure, Drug abuse, Grant programs,
Reporting and recordkeeping requirements.
Dated: July 24, 2003.
John W. Carlin,
Archivist of the United States.
0
For the reasons stated in the common preamble, the National Archives
and Records Administration amends 36 CFR chapter XII, as follows:
0
1. Part 1209 is revised to read as set forth in instruction 1 at the
end of the common preamble.
PART 1209--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
Sec.
1209.25 How is this part organized?
1209.50 How is this part written?
1209.75 Do terms in this part have special meanings?
Subpart A--General
1209.100 What does this part do?
1209.105 Does this part apply to me?
1209.110 What is the purpose of the nonprocurement debarment and
suspension system?
1209.115 How does an exclusion restrict a person's involvement in
covered transactions?
1209.120 May we grant an exception to let an excluded person
participate in a covered transaction?
1209.125 Does an exclusion under the nonprocurement system affect a
person's eligibility for Federal procurement contracts?
1209.130 Does exclusion under the Federal procurement system affect
a person's eligibility to participate in nonprocurement
transactions?
1209.135 May NARA exclude a person who is not currently
participating in a nonprocurement transaction?
1209.140 How do I know if a person is excluded?
1209.145 Does this part address persons who are disqualified, as
well as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
1209.200 What is a covered transaction?
1209.205 Why is it important to know if a particular transaction is
a covered transaction?
1209.210 Which nonprocurement transactions are covered transactions?
1209.215 Which nonprocurement transactions are not covered
transactions?
1209.220 Are any procurement contracts included as covered
transactions?
1209.225 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
1209.300 What must I do before I enter into a covered transaction
with another person at the next lower tier?
1209.305 May I enter into a covered transaction with an excluded or
disqualified person?
1209.310 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
1209.315 May I use the services of an excluded person as a principal
under a covered transaction?
1209.320 Must I verify that principals of my covered transactions
are eligible to participate?
1209.325 What happens if I do business with an excluded person in a
covered transaction?
1209.330 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Disclosing Information--Primary Tier Participants
1209.335 What information must I provide before entering into a
covered transaction with NARA?
1209.340 If I disclose unfavorable information required under Sec.
1209.335, will I be prevented from participating in the transaction?
1209.345 What happens if I fail to disclose the information required
under Sec. 1209.335?
1209.350 What must I do if I learn of the information required under
Sec. 1209.335 after entering into a covered transaction with NARA?
Disclosing Information--Lower Tier Participants
1209.355 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
1209.360 What happens if I fail to disclose the information required
under Sec. 1209.355?
1209.365 What must I do if I learn of information required under
Sec. 1209.355 after entering into a covered transaction with a
higher tier participant?
Subpart D--Responsibilities of NARA Officials Regarding Transactions
1209.400 May I enter into a transaction with an excluded or
disqualified person?
1209.405 May I enter into a covered transaction with a participant
if a principal of the transaction is excluded?
1209.410 May I approve a participant's use of the services of an
excluded person?
1209.415 What must I do if a Federal agency excludes the participant
or a principal after I enter into a covered transaction?
1209.420 May I approve a transaction with an excluded or
disqualified person at a lower tier?
1209.425 When do I check to see if a person is excluded or
disqualified?
1209.430 How do I check to see if a person is excluded or
disqualified?
1209.435 What must I require of a primary tier participant?
1209.440 What method do I use to communicate those requirements to
participants?
1209.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
1209.450 What action may I take if a primary tier participant fails
to disclose the information required under Sec. 1209.335?
1209.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 1209.35 to the next higher
tier?
Subpart E--Excluded Parties List System
1209.500 What is the purpose of the Excluded Parties List System
(EPLS)?
1209.505 Who uses the EPLS?
1209.510 Who maintains the EPLS?
1209.515 What specific information is in the EPLS?
1209.520 Who places the information into the EPLS?
1209.525 Whom do I ask if I have questions about a person in the
EPLS?
1209.530 Where can I find the EPLS?
Subpart F--General Principles Relating to Suspension and Debarment
Actions
1209.600 How do suspension and debarment actions start?
1209.605 How does suspension differ from debarment?
1209.610 What procedures does NARA use in suspension and debarment
actions?
1209.615 How does NARA notify a person of a suspension and debarment
action?
1209.620 Do Federal agencies coordinate suspension and debarment
actions?
1209.625 What is the scope of a suspension or debarment action?
1209.630 May NARA impute the conduct of one person to another?
1209.635 May NARA settle a debarment or suspension action?
1209.640 May a settlement include a voluntary exclusion?
1209.645 Do other Federal agencies know if NARA agrees to a
voluntary exclusion?
Subpart G--Suspension
1209.700 When may the suspending official issue a suspension?
1209.705 What does the suspending official consider in issuing a
suspension?
1209.710 When does a suspension take effect?
1209.715 What notice does the suspending official give me if I am
suspended?
1209.720 How may I contest a suspension?
1209.725 How much time do I have to contest a suspension?
1209.730 What information must I provide to the suspending official
if I contest a suspension?
1209.735 Under what conditions do I get an additional opportunity to
challenge the facts on which the suspension is based?
1209.740 Are suspension proceedings formal?
1209.745 How is fact-finding conducted?
[[Page 66617]]
1209.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
1209.755 When will I know whether the suspension is continued or
terminated?
1209.760 How long may my suspension last?
Subpart H--Debarment
1209.800 What are the causes for debarment?
1209.805 What notice does the debarring official give me if I am
proposed for debarment?
1209.810 When does a debarment take effect?
1209.815 How may I contest a proposed debarment?
1209.820 How much time do I have to contest a proposed debarment?
1209.825 What information must I provide to the debarring official
if I contest a proposed debarment?
1209.830 Under what conditions do I get an additional opportunity to
challenge the facts on which the proposed debarment is based?
1209.835 Are debarment proceedings formal?
1209.840 How is fact-finding conducted?
1209.845 What does the debarring official consider in deciding
whether to debar me?
1209.850 What is the standard of proof in a debarment action?
1209.855 Who has the burden of proof in a debarment action?
1209.860 What factors may influence the debarring official's
decision?
1209.865 How long may my debarment last?
1209.870 When do I know if the debarring official debars me?
1209.875 May I ask the debarring official to reconsider a decision
to debar me?
1209.880 What factors may influence the debarring official during
reconsideration?
1209.885 May the debarring official extend a debarment?
Subpart I--Definitions
1209.900 Adequate evidence.
1209.905 Affiliate.
1209.910 Agency.
1209.915 Agent or representative.
1209.920 Civil judgment.
1209.925 Conviction.
1209.930 Debarment.
1209.935 Debarring official.
1209.940 Disqualified.
1209.945 Excluded or exclusion.
1209.950 Excluded Parties List System.
1209.955 Indictment.
1209.960 Ineligible or ineligibility.
1209.965 Legal proceedings.
1209.970 Nonprocurement transaction.
1209.975 Notice.
1209.980 Participant.
1209.985 Person.
1209.990 Preponderance of the evidence.
1209.995 Principal.
1209.1000 Respondent.
1209.1005 State.
1209.1010 Suspending official.
1209.1015 Suspension.
1209.1020 Voluntary exclusion or voluntarily excluded.
Subpart J--[Reserved]
Appendix to Part 1209--Covered Transactions
Authority: 44 U.S.C. 2104(a); 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);.
0
2. Part 1209 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``NARA'' is added in its place
wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``NARA'' is added in its place
wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Archivist of the
United States or designee'' is added in its place wherever it occurs.
0
3. Section 1209.440 is added to read as follows:
Sec. 1209.440 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.
0
4. Part 1212 is added to read as set forth in instruction 2 at the end
of the common preamble.
PART 1212--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE
(FINANCIAL ASSISTANCE)
Subpart A--Purpose and Coverage
Sec.
1212.100 What does this part do?
1212.105 Does this part apply to me?
1212.110 Are any of my Federal assistance awards exempt from this
part?
1212.115 Does this part affect the Federal contracts that I receive?
Subpart B--Requirements for Recipients Other Than Individuals
1212.200 What must I do to comply with this part?
1212.205 What must I include in my drug-free workplace statement?
1212.210 To whom must I distribute my drug-free workplace statement?
1212.215 What must I include in my drug-free awareness program?
1212.220 By when must I publish my drug-free workplace statement and
establish my drug-free awareness program?
1212.225 What actions must I take concerning employees who are
convicted of drug violations in the workplace?
1212.230 How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
1212.300 What must I do to comply with this part if I am an
individual recipient?
1212.301 [Reserved]
Subpart D--Responsibilities of NARA Awarding Officials
1212.400 What are my responsibilities as a NARA awarding official?
Subpart E--Violations of This Part and Consequences
1212.500 How are violations of this part determined for recipients
other than individuals?
1212.505 How are violations of this part determined for recipients
who are individuals?
1212.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
1212.515 Are there any exceptions to those actions?
Subpart F--Definitions
1212.605 Award.
1212.610 Controlled substance.
1212.615 Conviction.
1212.620 Cooperative agreement.
1212.625 Criminal drug statute
1212.630 Debarment.
1212.635 Drug-free workplace.
1212.640 Employee.
1212.645 Federal agency or agency.
1212.650 Grant.
1212.655 Individual.
1212.660 Recipient.
1212.665 State.
1212.670 Suspension.
Authority: 41 U.S.C. 701, et seq.; 44 U.S.C. 2104(a).
0
5. Part 1212 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``NARA'' is added in its place
wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``NARA'' is added in its place
wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Archivist of the
United States or designee'' is added in its place wherever it occurs.
0
d. ``[Agency head]'' is removed and ``Archivist of the United States or
designee'' is added in its place wherever it occurs.
0
6. Section 1212.510(c) is further amended by removing ``[CFR citation
for the Federal agency's regulations implementing Executive Order 12549
and Executive Order 12689]'' and adding ``36 CFR part 1209'' in its
place.
0
7. Section 1212.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``36 CFR part 1207'' in its place.
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[[Page 66618]]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Parts 44 and 48
RIN 2900-AK16
FOR FURTHER INFORMATION CONTACT: Mr. Robert D. Finneran, Assistant
Director for Loan Policy and Valuation (262), Loan Guaranty Service,
Veterans Benefits Administration, Department of Veterans Affairs, Washington, DC 20420, (202) 273-7369, e-mail: lgyrfinn@vba.va.gov.
List of Subjects
38 CFR Part 44
Administrative practice and procedure, Condominiums, Debarment and
suspension, Grant programs, Handicapped, Housing loan programs--housing
and community development, Manufactured homes, Reporting and
recordkeeping requirements, Veterans.
38 CFR Part 48
Administrative practice and procedure, Drug abuse, Grant programs,
Reporting and recordkeeping requirements.
Approved: August 4, 2003.
Anthony J. Principi,
Secretary of Veterans Affairs.
0
For the reasons stated in the common preamble, the Department of
Veterans Affairs amends 38 CFR Chapter I, as follows:
0
1. Part 44 is revised to read as set forth in instruction 1 at the end
of the common preamble.
PART 44--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
Sec.
44.25 How is this part organized?
44.50 How is this part written?
44.75 Do terms in this part have special meanings?
Subpart A--General
44.100 What does this part do?
44.105 Does this part apply to me?
44.110 What is the purpose of the nonprocurement debarment and
suspension system?
44.115 How does an exclusion restrict a person's involvement in
covered transactions?
44.120 May we grant an exception to let an excluded person
participate in a covered transaction?
44.125 Does an exclusion under the nonprocurement system affect a
person's eligibility for Federal procurement contracts?
44.130 Does exclusion under the Federal procurement system affect a
person's eligibility to participate in nonprocurement transactions?
44.135 May the Department of Veterans Affairs exclude a person who
is not currently participating in a nonprocurement transaction?
44.140 How do I know if a person is excluded?
44.145 Does this part address persons who are disqualified, as well
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
44.200 What is a covered transaction?
44.205 Why is it important to know if a particular transaction is a
covered transaction?
44.210 Which nonprocurement transactions are covered transactions?
44.215 Which nonprocurement transactions are not covered
transactions?
44.220 Are any procurement contracts included as covered
transactions?
44.225 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
44.300 What must I do before I enter into a covered transaction with
another person at the next lower tier?
44.305 May I enter into a covered transaction with an excluded or
disqualified person?
44.310 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
44.315 May I use the services of an excluded person as a principal
under a covered transaction?
44.320 Must I verify that principals of my covered transactions are
eligible to participate?
44.325 What happens if I do business with an excluded person in a
covered transaction?
44.330 What requirements must I pass down to persons at lower tiers
with whom I intend to do business?
Disclosing Information--Primary Tier Participants
44.335 What information must I provide before entering into a
covered transaction with the Department of Veterans Affairs?
44.340 If I disclose unfavorable information required under Sec.
44.335, will I be prevented from participating in the transaction?
44.345 What happens if I fail to disclose the information required
under Sec. 44.335?
44.350 What must I do if I learn of the information required under
Sec. 44.335 after entering into a covered transaction with the
Department of Veterans Affairs?
Disclosing Information--Lower Tier Participants
44.355 What information must I provide to a higher tier participant
before entering into a covered transaction with that participant?
44.360 What happens if I fail to disclose the information required
under Sec. 44.355?
44.365 What must I do if I learn of information required under Sec.
44.355 after entering into a covered transaction with a higher tier
participant?
Subpart D--Responsibilities of Department of Veterans Affairs Officials
Regarding Transactions
44.400 May I enter into a transaction with an excluded or
disqualified person?
44.405 May I enter into a covered transaction with a participant if
a principal of the transaction is excluded?
44.410 May I approve a participant's use of the services of an
excluded person?
44.415 What must I do if a Federal agency excludes the participant
or a principal after I enter into a covered transaction?
44.420 May I approve a transaction with an excluded or disqualified
person at a lower tier?
44.425 When do I check to see if a person is excluded or
disqualified?
44.430 How do I check to see if a person is excluded or
disqualified?
44.435 What must I require of a primary tier participant?
44.440 What method do I use to communicate those requirements to
participants?
44.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
44.450 What action may I take if a primary tier participant fails to
disclose the information required under Sec. 44.335?
44.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 44.355 to the next higher tier?
Subpart E--Excluded Parties List System
44.500 What is the purpose of the Excluded Parties List System
(EPLS)?
44.505 Who uses the EPLS?
44.510 Who maintains the EPLS?
44.515 What specific information is in the EPLS?
44.520 Who places the information into the EPLS?
44.525 Whom do I ask if I have questions about a person in the EPLS?
44.530 Where can I find the EPLS?
Subpart F--General Principles Relating to Suspension and Debarment
Actions
44.600 How do suspension and debarment actions start?
44.605 How does suspension differ from debarment?
44.610 What procedures does the Department of Veterans Affairs use
in suspension and debarment actions?
44.615 How does the Department of Veterans Affairs notify a person
of a suspension and debarment action?
44.620 Do Federal agencies coordinate suspension and debarment
actions?
44.625 What is the scope of a suspension or debarment action?
44.630 May the Department of Veterans Affairs impute the conduct of
one person to another?
44.635 May the Department of Veterans Affairs settle a debarment or
suspension action?
[[Page 66619]]
44.640 May a settlement include a voluntary exclusion?
44.645 Do other Federal agencies know if the Department of Veterans
Affairs agrees to a voluntary exclusion?
Subpart G--Suspension 44.700 When may the suspending official issue a
suspension?
44.705 What does the suspending official consider in issuing a
suspension?
44.710 When does a suspension take effect?
44.715 What notice does the suspending official give me if I am
suspended?
44.720 How may I contest a suspension?
44.725 How much time do I have to contest a suspension?
44.730 What information must I provide to the suspending official if
I contest a suspension?
44.735 Under what conditions do I get an additional opportunity to
challenge the facts on which the suspension is based?
44.740 Are suspension proceedings formal?
44.745 How is fact-finding conducted?
44.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
44.755 When will I know whether the suspension is continued or
terminated 44.760 How long may my suspension last?
Subpart H--Debarment 44.800 What are the causes for debarment?
44.805 What notice does the debarring official give me if I am
proposed for debarment?
44.810 When does a debarment take effect?
44.815 How may I contest a proposed debarment?
44.820 How much time do I have to contest a proposed debarment?
44.825 What information must I provide to the debarring official if
I contest a proposed debarment?
44.830 Under what conditions do I get an additional opportunity to
challenge the facts on which the proposed debarment is based?
44.835 Are debarment proceedings formal?
44.840 How is fact-finding conducted?
44.845 What does the debarring official consider in deciding whether
to debar me?
44.850 What is the standard of proof in a debarment action?
44.855 Who has the burden of proof in a debarment action?
44.860 What factors may influence the debarring official's decision?
44.865 How long may my debarment last?
44.870 When do I know if the debarring official debars me?
44.875 May I ask the debarring official to reconsider a decision to
debar me?
44.880 What factors may influence the debarring official during
reconsideration?
44.885 May the debarring official extend a debarment?
Subpart I--Definitions
44.900 Adequate evidence.
44.905 Affiliate.
44.910 Agency.
44.915 Agent or representative.
44.920 Civil judgment.
44.925 Conviction.
44.930 Debarment.
44.935 Debarring official.
44.940 Disqualified.
44.945 Excluded or exclusion.
44.950 Excluded Parties List System.
44.955 Indictment.
44.960 Ineligible or ineligibility.
44.965 Legal proceedings.
44.970 Nonprocurement transaction.
44.975 Notice.
44.980 Participant.
44.985 Person.
44.990 Preponderance of the evidence.
44.995 Principal.
44.1000 Respondent.
44.1005 State.
44.1010 Suspending official.
44.1015 Suspension.
44.1020 Voluntary exclusion or voluntarily excluded.
Subpart J--[Reserved]
Appendix to Part 44--Covered Transactions
Authority: 38 U.S.C. 501 and 38 U.S.C. 3703(c); 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.)
0
2. Part 44 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``Department of Veterans Affairs''
is added in its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``Department of Veterans
Affairs'' is added in its place wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Secretary'' is added
in its place wherever it occurs.
0
3. Section 44.440 is added to read as follows:
Sec. 44.440 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.
0
4. Section 44.935 is further amended by adding paragraph (b) to read as
follows:
Sec. 44.935 Debarring official.
* * * * *
(b) For the Department of Veterans Affairs the debarring official
is:
(1) For the Veterans Health Administration, the Under Secretary for
Health;
(2) For the Veterans Benefits Administration, the Under Secretary
for Benefits; and
(3) For the National Cemetery Administration, the Deputy Under
Secretary for Operations.
0
5. Section 44.995 is further amended by adding a paragraph (c) to read
as follows:
Sec. 44.995 Principal.
* * * * *
(c) In the Department of Veterans Affairs loan guaranty program,
principals include, but are not limited to the following:
(1) Loan officers.
(2) Loan solicitors,
(3) Loan processors.
(4) Loan servicers.
(5) Loan supervisors.
(6) Mortgage brokers.
(7) Office managers.
(8) Staff appraisers and inspectors.
(9) Fee appraisers and inspectors.
(10) Underwriters.
(11) Bonding companies.
(12) Real estate agents and brokers.
(13) Management and marketing agents.
(14) Accountants, consultants, investments bankers, architects,
engineers, attorneys, and others in a business relationship with
participants in connection with a covered transaction under the
Department of Veterans Affairs loan guaranty program.
(15) Contractors involved in the construction, improvement or
repair of properties financed with Department of Veterans Affairs
guaranteed loans.
(16) Closing Agents.
0
6. Section 44.1010 is further amended by adding paragraph (b) to read
as follows:
Sec. 44.1010 Suspending official.
* * * * *
(b) For the Department of Veterans Affairs the suspending official
is:
(1) For the Veterans Health Administration, the Under Secretary for
Health;
(2) For the Veterans Benefits Administration, the Under Secretary
for Benefits; and
(3) For the National Cemetery Administration, the Deputy Under
Secretary for Operations.
0
7. Part 48 is added to read as set forth in instruction 2 at the end of
the common preamble.
PART 48--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE
(FINANCIAL ASSISTANCE)
Subpart A--Purpose and Coverage
Sec.
48.100 What does this part do?
48.105 Does this part apply to me?
48.110 Are any of my Federal assistance awards exempt from this
part?
48.115 Does this part affect the Federal contracts that I receive?
[[Page 66620]]
Subpart B--Requirements for Recipients Other Than Individuals
48.200 What must I do to comply with this part?
48.205 What must I include in my drug-free workplace statement?
48.210 To whom must I distribute my drug-free workplace statement?
48.215 What must I include in my drug-free awareness program?
48.220 By when must I publish my drug-free workplace statement and
establish my drug-free awareness program?
48.225 What actions must I take concerning employees who are
convicted of drug violations in the workplace?
48.230 How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
48.300 What must I do to comply with this part if I am an individual
recipient?
48.301 [Reserved]
Subpart D--Responsibilities of the Department of Veterans Affairs
Awarding Officials
48.400 What are my responsibilities as a Department of Veterans
Affairs awarding official?
Subpart E--Violations of This Part and Consequences
48.500 How are violations of this part determined for recipients
other than individuals?
48.505 How are violations of this part determined for recipients who
are individuals?
48.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
48.515 Are there any exceptions to those actions?
Subpart F--Definitions
48.605 Award.
48.610 Controlled substance.
48.615 Conviction.
48.620 Cooperative agreement.
48.625 Criminal drug statute.
48.630 Debarment.
48.635 Drug-free workplace.
48.640 Employee.
48.645 Federal agency or agency.
48.650 Grant.
48.655 Individual.
48.660 Recipient.
48.665 State.
48.670 Suspension.
Authority: 41 U.S.C. 701, et seq.; 38 U.S.C 501
0
8. Part 48 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``Department of Veterans Affairs''
is added in its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``Department of Veterans
Affairs'' is added in its place wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Secretary'' is added
in its place wherever it occurs.
0
d. ``[Agency head]'' is removed and ``Secretary'' is added in its place
wherever it occurs.
0
9. Section 48.510(c) is further amended by removing ``[CFR citation for
the Federal Agency's regulations implementing Executive Order 12549 and
Executive Order 12689] and adding ``38 CFR part 44'' in its place.
0
10. Section 48.605(a)(2) is further amended by removing ``[Agency
specific CFR citation]'' and adding ``38 CFR part 43'' in its place.
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 32 and 36
RIN 2030-AA48
FOR FURTHER INFORMATION CONTACT: Robert F. Meunier, EPA Debarring
Official, Office of Grants and Debarment (3901R), U.S. Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460, (202) 564-5399, e-mail: meunier.robert@epa.gov.
List of Subjects
40 CFR Part 32
Environmental protection, Administrative practice and procedure,
Air pollution control, Government contracts, Grant programs, Loan
programs, Reporting and recordkeeping requirements, Technical
assistance, Water pollution control.
40 CFR Part 36
Administrative practice and procedure, Drug abuse, Grant programs,
Reporting and recordkeeping requirements.
Dated: July 17, 2003.
Morris X. Winn,
Assistant Administrator, Office of Administration and Resources
Management.
0
For the reason stated in the common preamble, the Environmental
Protection Agency amends 40 CFR chapter I, as follows:
0
1. Part 32 is revised to read as set forth in instruction 1 at the end
of the common preamble.
PART 32--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT);
AND STATUTORY DISQUALIFICATION UNDER THE CLEAN AIR ACT AND CLEAN
WATER ACT
Sec.
32.25 How is this part organized?
32.50 How is this part written?
32.75 Do terms in this part have special meanings?
Subpart A--General
32.100 What does this part do?
32.105 Does this part apply to me?
32.110 What is the purpose of the nonprocurement debarment and
suspension system?
32.115 How does an exclusion restrict a person's involvement in
covered transactions?
32.120 May we grant an exception to let an excluded person
participate in a covered transaction?
32.125 Does an exclusion under the nonprocurement system affect a
person's eligibility for Federal procurement contracts?
32.130 Does exclusion under the Federal procurement system affect a
person's eligibility to participate in nonprocurement transactions?
32.135 May the EPA exclude a person who is not currently
participating in a nonprocurement transaction?
32.140 How do I know if a person is excluded?
32.145 Does this part address persons who are disqualified, as well
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
32.200 What is a covered transaction?
32.205 Why is it important to know if a particular transaction is a
covered transaction?
32.210 Which nonprocurement transactions are covered transactions?
32.215 Which nonprocurement transactions are not covered
transactions?
32.220 Are any procurement contracts included as covered
transactions?
32.225 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
32.300 What must I do before I enter into a covered transaction with
another person at the next lower tier?
32.305 May I enter into a covered transaction with an excluded or
disqualified person?
32.310 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
32.315 May I use the services of an excluded person as a principal
under a covered transaction?
32.320 Must I verify that principals of my covered transactions are
eligible to participate?
32.325 What happens if I do business with an excluded person in a
covered transaction?
32.330 What requirements must I pass down to persons at lower tiers
with whom I intend to do business?
Disclosing Information--Primary Tier Participants
32.335 What information must I provide before entering into a
covered transaction with the EPA?
[[Page 66621]]
32.340 If I disclose unfavorable information required under Sec.
32.335, will I be prevented from participating in the transaction?
32.345 What happens if I fail to disclose the information required
under Sec. 32.335?
32.350 What must I do if I learn of the information required under
Sec. 32.335 after entering into a covered transaction with the EPA?
Disclosing Information--Lower Tier Participants
32.355 What information must I provide to a higher tier participant
before entering into a covered transaction with that participant?
32.360 What happens if I fail to disclose the information required
under Sec. 32.355?
32.365 What must I do if I learn of information required under Sec.
32.355 after entering into a covered transaction with a higher tier
participant?
Subpart D--Responsibilities of EPA Officials Regarding Transactions
32.400 May I enter into a transaction with an excluded or
disqualified person?
32.405 May I enter into a covered transaction with a participant if
a principal of the transaction is excluded?
32.410 May I approve a participant's use of the services of an
excluded person?
32.415 What must I do if a Federal agency excludes the participant
or a principal after I enter into a covered transaction?
32.420 May I approve a transaction with an excluded or disqualified
person at a lower tier?
32.425 When do I check to see if a person is excluded or
disqualified?
32.430 How do I check to see if a person is excluded or
disqualified?
32.435 What must I require of a primary tier participant?
32.440 What method do I use to communicate those requirements to
participants?
32.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
32.450 What action may I take if a primary tier participant fails to
disclose the information required under Sec. 32.335?
32.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 32.355 to the next higher tier?
Subpart E--Excluded Parties List System
32.500 What is the purpose of the Excluded Parties List System
(EPLS)?
32.505 Who uses the EPLS?
32.510 Who maintains the EPLS?
32.515 What specific information is in the EPLS?
32.520 Who places the information into the EPLS?
32.525 Whom do I ask if I have questions about a person in the EPLS?
32.530 Where can I find the EPLS?
Subpart F--General Principles Relating to Suspension and Debarment
Actions
32.600 How do suspension and debarment actions start?
32.605 How does suspension differ from debarment?
32.610 What procedures does the EPA use in suspension and debarment
actions?
32.615 How does the EPA notify a person of a suspension or debarment
action?
32.620 Do Federal agencies coordinate suspension and debarment
actions?
32.625 What is the scope of a suspension or debarment?
32.630 May the EPA impute conduct of one person to another?
32.635 May the EPA settle a debarment or suspension action?
32.640 May a settlement include a voluntary exclusion?
32.645 Do other Federal agencies know if the EPA agrees to a
voluntary exclusion?
Subpart G--Suspension
32.700 When may the suspending official issue a suspension?
32.705 What does the suspending official consider in issuing a
suspension?
32.710 When does a suspension take effect?
32.715 What notice does the suspending official give me if I am
suspended?
32.720 How may I contest a suspension?
32.725 How much time do I have to contest a suspension?
32.730 What information must I provide to the suspending official if
I contest a suspension?
32.735 Under what conditions do I get an additional opportunity to
challenge the facts on which the suspension is based?
32.740 Are suspension proceedings formal?
32.745 How is fact-finding conducted?
32.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
32.755 When will I know whether the suspension is continued or
terminated?
32.760 How long may my suspension last?
32.765 How may I appeal my suspension?
Subpart H--Debarment
32.800 What are the causes for debarment?
32.805 What notice does the debarring official give me if I am
proposed for debarment?
32.810 When does a debarment take effect?
32.815 How may I contest a proposed debarment?
32.820 How much time do I have to contest a proposed debarment?
32.825 What information must I provide to the debarring official if
I contest a proposed debarment?
32.830 Under what conditions do I get an additional opportunity to
challenge the facts on which a proposed debarment is based?
32.835 Are debarment proceedings formal?
32.840 How is fact-finding conducted?
32.845 What does the debarring official consider in deciding whether
to debar me?
32.850 What is the standard of proof in a debarment action?
32.855 Who has the burden of proof in a debarment action?
32.860 What factors may influence the debarring official's decision?
32.865 How long may my debarment last?
32.870 When do I know if the debarring official debars me?
32.875 May I ask the debarring official to reconsider a decision to
debar me?
32.880 What factors may influence the debarring official during
reconsideration?
32.885 May the debarring official extend a debarment?
32.890 How may I appeal my debarment?
Subpart I--Definitions
32.900 Adequate evidence.
32.905 Affiliate.
32.910 Agency.
32.915 Agent or representative.
32.920 Civil judgment.
32.925 Conviction.
32.930 Debarment.
32.935 Debarring official.
32.940 Disqualified.
32.945 Excluded or exclusion.
32.950 Excluded Parties List System.
32.955 Indictment.
32.960 Ineligible or ineligibility.
32.965 Legal proceedings.
32.970 Nonprocurement transaction.
32.975 Notice.
32.980 Participant.
32.985 Person.
32.990 Preponderance of the evidence.
32.995 Principal.
32.1000 Respondent.
32.1005 State.
32.1010 Suspending official.
32.1015 Suspension.
32.1020 Voluntary exclusion or voluntarily excluded.
Subpart J--Statutory Disqualification and Reinstatement Under the Clean
Air Act and Clean Water Act
32.1100 What does this subpart do?
32.1105 Does this subpart apply to me?
32.1110 How will a CAA or CWA conviction affect my eligibility to
participate in Federal contracts, subcontracts, assistance, loans
and other benefits?
32.1115 Can the EPA extend a CAA or CWA disqualification to other
facilities?
32.1120 What is the purpose of CAA or CWA disqualification?
32.1125 How do award officials and others know if I am disqualified?
32.1130 How does disqualification under the CAA or CWA differ from a
Federal discretionary suspension or debarment action?
32.1135 Does CAA or CWA disqualification mean that I must remain
ineligible?
32.1140 Can an exception be made to allow me to receive an award
even though I may be disqualified?
32.1200 How will I know if I am disqualified under the CAA or CWA?
32.1205 What procedures must I follow to have my procurement and
nonprocurement eligibility reinstated under the CAA or CWA?
32.1210 Will anyone else provide information to the EPA debarring
official concerning my reinstatement request?
32.1215 What happens if I disagree with the information provided by
others to the EPA debarring official on my reinstatement request?
[[Page 66622]]
32.1220 What will the EPA debarring official consider in making a
decision on my reinstatement request?
32.1225 When will the EPA debarring official make a decision on my
reinstatement request?
32.1230 How will the debarring official notify me of the
reinstatement decision?
32.1300 Can I resolve my eligibility status under terms of an
administrative agreement without having to submit a formal
reinstatement request?
32.1305 What are the consequences if I mislead the EPA in seeking
reinstatement or fail to comply with my administrative agreement?
32.1400 How may I appeal a decision denying my request for
reinstatement?
32.1500 If I am reinstated, when will my name be removed from the
EPLS?
32.1600 What definitions apply specifically to actions under this
subpart?
Appendix to Part 32--Covered Transactions
Authority: 33 U.S.C. 1251 et seq.; 42 U.S.C. 7401 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).
PART 32--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT);
AND STATUTORY DISQUALIFICATION UNDER THE CLEAN AIR ACT AND CLEAN
WATER ACT
0
2. The heading for Part 32 is revised as set forth above.
0
3. Part 32 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``EPA'' is added in its place
wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``EPA'' is added in its place
wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``EPA Debarring
Official'' is added in its place wherever it occurs.
0
4. Section 32.220 is further amended by adding a paragraph (c) to read
as follows:
Sec. 32.220 Are any procurement contracts included as covered
transactions?
* * * * *
(c) 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 EPA under a
nonprocurement transaction that is expected to equal or exceed $25,000.
(See optional lower tier coverage shown in the diagram in the appendix
to this part.)
0
5. Section 32.440 is added to read as follows:
Sec. 32.440 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.
0
6. Section 32.765 is added to Subpart G to read as follows:
Sec. 32.765 How may I appeal my suspension?
(a) If the EPA suspending official issues a decision under Sec.
32.755 to continue your suspension after you present information in
opposition to that suspension under Sec. 32.720, 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 the Director, Office of Grants and Debarment
(OGD Director), to review the suspending official's decision to
continue your suspension within 30 days of your receipt of the
suspending official's decision under Sec. 32.755 or paragraph (a)(1)
of this section. However, the OGD Director can reverse the suspending
official's decision only where the OGD Director finds that the decision
is based on a clear error of material fact or law, or where the OGD
Director 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) A review under paragraph (a)(2) of this section is solely
within the discretion of the OGD Director who may also stay the
suspension pending review of the suspending official's decision.
(d) The EPA suspending official and the OGD Director must notify
you of their decisions under this section, in writing, using the notice
procedures at Sec. 32.615 and Sec. 32.975.
0
7. Section 32.890 is added to Subpart H to read as follows:
Sec. 32.890 How may I appeal my debarment?
(a) If the EPA debarring official issues a decision under Sec.
32.870 to debar you after you present information in opposition to a
proposed debarment under Sec. 32.815, 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 the Director, Office of Grants and Debarment
(OGD Director), to review the debarring official's decision to debar
you within 30 days of your receipt of the debarring official's decision
under Sec. 32.870 or paragraph (a)(1) of this section. However, the
OGD Director can reverse the debarring official's decision only where
the OGD Director finds that the decision is based on a clear error of
material fact or law, or where the OGD Director 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) A review under paragraph (a)(2) of this section is solely
within the discretion of the OGD Director who may also stay the
debarment pending review of the debarring official's decision.
(d) The EPA debarring official and the OGD Director must notify you
of their decisions under this section, in writing, using the notice
procedures at Sec. 32.615 and Sec. 32.975.
0
8. Section 32.995 is further amended by adding a paragraph (c) to read
as follows:
Sec. 32.995 Principal.
* * * * *
(c) Other examples of individuals who are principals in EPA covered
transactions include:
(1) Principal investigators;
(2) Technical or management consultants;
(3) Individuals performing chemical or scientific analysis or
oversight;
(4) Professional service providers such as doctors, lawyers,
accountants, engineers, etc.;
(5) Individuals responsible for the inspection, sale, removal,
transportation, storage or disposal of solid or hazardous waste or
materials;
(6) Individuals whose duties require special licenses;
(7) Individuals that certify, authenticate or authorize billings;
and
(8) Individuals that serve in positions of public trust.
0
9. Subpart J is added to read as follows:
[[Page 66623]]
Subpart J--Statutory Disqualification and Reinstatement Under the
Clean Air Act and Clean Water Act
Sec. 32.1100 What does this subpart do?
This subpart explains how the EPA administers section 306 of the
Clean Air Act (CAA) (42 U.S.C. 7606), and section 508 of the Clean
Water Act (CWA) (33 U.S.C. 1368), which disqualify persons convicted
for certain offenses under those statutes (see Sec. 32.1105), from
eligibility to receive certain contracts, subcontracts, assistance,
loans and other benefits (see coverage under the Federal Acquisition
Regulation (FAR), 48 CFR part 9, subpart 9.4, and subparts A through I
of this part). It also explains: the procedures for seeking
reinstatement of a person's eligibility under the CAA or CWA; the
criteria and standards that apply to EPA's decision-making process; and
requirements of award officials and others involved in Federal
procurement and nonprocurement activities in carrying out their
responsibilities under the CAA and CWA.
Sec. 32.1105 Does this subpart apply to me?
(a) Portions of this subpart apply to you if you are convicted, or
likely be convicted, of any offense under section 7413(c) of the CAA or
section 1319(c) of the CWA.
(b) Portions of this subpart apply to you if you are the EPA
debarring official, a Federal procurement or nonprocurement award
official, a participant in a Federal procurement or nonprocurement
program that is precluded from entering into a covered transaction with
a person disqualified under the CAA or CWA, or if you are a Federal
department or agency anticipating issuing an exception to a person
otherwise disqualified under the CAA or CWA.
Sec. 32.1110 How will a CAA or CWA conviction affect my eligibility
to participate in Federal contracts, subcontracts, assistance, loans
and other benefits?
If you are convicted of any offense described in Sec. 32.1105, you
are automatically disqualified from eligibility to receive any
contract, subcontract, assistance, sub-assistance, loan or other
nonprocurement benefit or transaction that is prohibited by a Federal
department or agency under the Governmentwide debarment and suspension
system (i.e., covered transactions under subparts A through I of this
part, or prohibited awards under 48 CFR part 9, subpart 9.4), if you:
(a) Will perform any part of the transaction or award at the
facility giving rise to your conviction (called the violating
facility); and
(b) You own, lease or supervise the violating facility.
Sec. 32.1115 Can the EPA extend a CAA or CWA disqualification to
other facilities?
The CAA specifically authorizes the EPA to extend a CAA
disqualification to other facilities that are owned or operated by the
convicted person. The EPA also has authority under subparts A through I
of this part, or under 48 CFR part 9, subpart 9.4, to take
discretionary suspension and debarment actions on the basis of
misconduct leading to a CAA or CWA conviction, or for activities that
the EPA debarring official believes were designed to improperly
circumvent a CAA or CWA disqualification.
Sec. 32.1120 What is the purpose of CAA or CWA disqualification?
As provided for in Executive Order 11738 (3 CFR, 1973 Comp.,
p.799), the purpose of CAA and CWA disqualification is to enforce the
Federal Government's policy of undertaking Federal procurement and
nonprocurement activities in a manner that improves and enhances
environmental quality by promoting effective enforcement of the CAA or
CWA.
Sec. 32.1125 How do award officials and others know if I am
disqualified?
If you are convicted under these statutes, the EPA enters your name
and address and that of the violating facility into the Excluded
Parties List System (EPLS) as soon as possible after the EPA learns of
your conviction. In addition, the EPA enters other information
describing the nature of your disqualification. Federal award officials
and others who administer Federal programs consult the EPLS before
entering into or approving procurement and nonprocurement transactions.
As of the date of this regulation, award officials and others,
including the public, may obtain a yearly subscription to a printed
version of the EPLS 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.
Anyone may access the EPLS through the internet, currently at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://epls.arnet.gov
.
Sec. 32.1130 How does disqualification under the CAA or CWA differ
from a Federal discretionary suspension or debarment action?
(a) CAA and CWA disqualifications are exclusions mandated by
statute. In contrast, suspensions and debarments imposed under subparts
A through I of this part or under 48 CFR part 9, subpart 9.4, are
exclusions imposed at the discretion of Federal suspending or debarring
officials. This means that if you are convicted of violating the CAA or
CWA provisions described under Sec. 32.1105, ordinarily your name and
that of the violating facility is placed into the EPLS before you
receive a confirmation notice of the listing, or have an opportunity to
discuss the disqualification with, or seek reinstatement from, the EPA.
(b) CAA or CWA disqualification applies to both the person
convicted of the offense, and to the violating facility during
performance of an award or covered transaction under the Federal
procurement and nonprocurement suspension and debarment system. It is
the EPA's policy to carry out CAA and CWA disqualifications in a manner
which integrates the disqualifications into the Governmentwide
suspension and debarment system. Whenever the EPA determines that the
risk presented to Federal procurement or nonprocurement activities on
the basis of the misconduct which gives rise to a person's CAA or CWA
conviction exceeds the coverage afforded by mandatory disqualification,
the EPA may use its discretionary authority to suspend or debar a
person under subparts A through I of this part, or under 48 CFR part 9,
subpart 9.4.
Sec. 32.1135 Does CAA or CWA disqualification mean that I must remain
ineligible?
You must remain ineligible until the EPA debarring official
certifies that the condition giving rise to your conviction has been
corrected. If you desire to have your disqualification terminated, you
must submit a written request for reinstatement to the EPA debarring
official and support your request with persuasive documentation. For
information about the process for reinstatement see Sec. 32.1205 and
Sec. 32.1300.
Sec. 32.1140 Can an exception be made to allow me to receive an award
even though I may be disqualified?
(a) After consulting with the EPA debarring official, the head of
any Federal department or agency (or designee) may exempt any
particular award or a class of awards with that department or agency
from the prohibitions otherwise resulting from CAA or CWA
disqualification. In the event an exemption is granted, the exemption
must:
(1) Be in writing; and
(2) State why the exemption is in the paramount interests of the
United States.
[[Page 66624]]
(b) In the event an exemption is granted, the exempting department
or agency must send a copy of the exemption decision to the EPA
debarring official for inclusion in the official record.
Sec. 32.1200 How will I know if I am disqualified under the CAA or
CWA?
There may be several ways that you learn about your
disqualification. You are legally on notice by the statutes that a
criminal conviction under the CAA or CWA automatically disqualifies
you. As a practical matter, you may learn about your disqualification
from your defense counsel, a Federal contract or award official, or
from someone else who sees your name in the EPLS. As a courtesy, the
EPA will attempt to notify you and the owner, lessor or supervisor of
the violating facility that your names have been entered into the EPLS.
The EPA will inform you of the procedures for seeking reinstatement and
give you the name of a person you can contact to discuss your
reinstatement request.
Sec. 32.1205 What procedures must I follow to have my procurement and
nonprocurement eligibility reinstated under the CAA or CWA?
(a) You must submit a written request for reinstatement to the EPA
debarring official stating what you believe the conditions were that
led to your conviction, and how those conditions have been corrected,
relieved or addressed. Your request must include documentation
sufficient to support all material assertions you make. The debarring
official must determine that all the technical and non-technical
causes, conditions and consequences of your actions have been
sufficiently addressed so that the Government can confidently conduct
future business activities with you, and that your future operations
will be conducted in compliance with the CAA and CWA.
(b) You may begin the reinstatement process by having informal
discussions with the EPA representative named in your notification of
listing. Having informal dialogue with that person will make you aware
of the EPA concerns that must be addressed. The EPA representative is
not required to negotiate conditions for your reinstatement. However,
beginning the reinstatement process with informal dialogue increases
the chance of achieving a favorable outcome, and avoids unnecessary
delay that may result from an incomplete or inadequate reinstatement
request. It may also allow you to resolve your disqualification by
reaching an agreement with the EPA debarring official under informal
procedures. Using your informal option first does not prevent you from
submitting a formal reinstatement request with the debarring official
at any time.
Sec. 32.1210 Will anyone else provide information to the EPA
debarring official concerning my reinstatement request?
If you request reinstatement under Sec. 32.1205, the EPA debarring
official may obtain review and comment on your request by anyone who
may have information about, or an official interest in, the matter. For
example, the debarring official may consult with the EPA Regional
offices, the Department of Justice or other Federal agencies, or state,
tribal or local governments. The EPA debarring official will make sure
that you have an opportunity to address important allegations or
information contained in the administrative record before making a
final decision on your request for reinstatement.
Sec. 32.1215 What happens if I disagree with the information provided
by others to the EPA debarring official on my reinstatement request?
(a) If your reinstatement request is based on factual information
(as opposed to a legal matter or discretionary conclusion) that is
different from the information provided by others or otherwise
contained in the administrative record, the debarring official will
decide whether those facts are genuinely in dispute, and material to
making a decision. If so, a fact-finding proceeding will be conducted
in accordance with Sec. 32.830 through Sec. 32.840, and the debarring
official will consider the findings when making a decision on your
reinstatement request.
(b) If the basis for your disagreement with the information
contained in the administrative record relates to a legal issue or
discretionary conclusion, or is not a genuine dispute over a material
fact, you will not have a fact-finding proceeding. However, the
debarring official will allow you ample opportunity to support your
position for the record and present matters in opposition to your
continued disqualification. A summary of any information you provide
orally, if not already recorded, should also be submitted to the
debarring official in writing to assure that it is preserved for the
debarring official's consideration and the administrative record.
Sec. 32.1220 What will the EPA debarring official consider in making
a decision on my reinstatement request?
(a) The EPA debarring official will consider all information and
arguments contained in the administrative record in support of, or in
opposition to, your request for reinstatement, including any findings
of material fact.
(b) The debarring official will also consider any mitigating or
aggravating factors that may relate to your conviction or the
circumstances surrounding it, including any of those factors that
appear in Sec. 32.860 that may apply to your situation.
(c) Finally, if disqualification applies to a business entity, the
debarring official will consider any corporate or business attitude,
policies, practices and procedures that contributed to the events
leading to conviction, or that may have been implemented since the date
of the misconduct or conviction. You can obtain any current policy
directives issued by the EPA that apply to CAA or CWA disqualification
or reinstatement by contacting the Office of the EPA Debarring
Official, U. S. Environmental Protection Agency, Office of Grants and
Debarment (3901-R), 1200 Pennsylvania Avenue NW., Washington, DC 20460.
Sec. 32.1225 When will the EPA debarring official make a decision on
my reinstatement request?
(a) The EPA debarring official will make a decision regarding your
reinstatement request under Sec. 32.1205(a), when the administrative
record is complete, and he or she can determine whether the condition
giving rise to the CAA or CWA conviction has been corrected-usually
within 45 days of closing the administrative record.
(b) A reinstatement request is not officially before the debarring
official while you are having informal discussions under Sec.
32.1205(b).
Sec. 32.1230 How will the EPA debarring official notify me of the
reinstatement decision?
The EPA debarring official will notify you of the reinstatement
decision in writing, using the same methods for communicating debarment
or suspension action notices under Sec. 32.615.
Sec. 32.1300 Can I resolve my eligibility status under terms of an
administrative agreement without having to submit a formal
reinstatement request?
(a) The EPA debarring official may, at any time, resolve your CAA
or CWA eligibility status under the terms of an administrative
agreement. Ordinarily, the debarring official will not make an offer to
you for reinstatement until after the administrative record for
decision is complete, or contains enough information to enable him or
her to make an informed decision in the matter.
[[Page 66625]]
(b) Any resolution of your eligibility status under the CAA or CWA
resulting from an administrative agreement must include a certification
that the condition giving rise to the conviction has been corrected.
(c) The EPA debarring official may enter into an administrative
agreement to resolve CAA or CWA disqualification issues as part of a
comprehensive criminal plea, civil or administrative agreement when it
is in the best interest of the United States to do so.
Sec. 32.1305 What are the consequences if I mislead the EPA in
seeking reinstatement or fail to comply with my administrative
agreement?
(a) Any certification of correction issued by the EPA debarring
official, whether the certification results from a reinstatement
decision under Sec. 32.1205(a) and Sec. 32.1230, or from an
administrative agreement under Sec. 32.1205(b) and Sec. 32.1300, is
conditioned upon the accuracy of the information, representations or
assurances made during development of the administrative record.
(b) If the EPA debarring official finds that he or she has
certified correction of the condition giving rise to a CAA or CWA
conviction or violation on the basis of a false, misleading, incomplete
or inaccurate information; or if a person fails to comply with material
condition of an administrative agreement, the EPA debarring official
may revoke the certification of correction and immediately reinstate
the CAA or CWA disqualification. In addition, the EPA debarring
official may take suspension or debarment action against the person(s)
responsible for the misinformation or noncompliance with the agreement
as appropriate. If anyone provides false, inaccurate, incomplete or
misleading information to EPA in an attempt to obtain reinstatement,
the EPA debarring official will refer the matter to the EPA Office of
the Inspector General for potential criminal or civil action.
Sec. 32.1400 How may I appeal a decision denying my request for
reinstatement?
(a) If the EPA debarring official denies your request for
reinstatement under the CAA or CWA, you can ask for review of the EPA
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 the Director, Office of Grants and Debarment
(OGD Director), to review the debarring official's denial within 30
days of your receipt of the debarring official's decision under Sec.
32.1230 or paragraph (a)(1) of this section. However, the OGD Director
can reverse the debarring official's decision denying reinstatement
only where the OGD Director finds that there is a clear error of
material fact or law, or where the OGD Director 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 and
state the specific findings you believe to be in error and the reason
for your position.
(c) A review by the OGD Director under this section is solely
within the discretion of the OGD Director.
(d) The OGD Director must notify you of his or her decision under
this section, in writing, using the notice procedures identified at
Sec. 32.615 and Sec. 32.975.
Sec. 32.1500 If I am reinstated, when will my name be removed from
the EPLS?
If your eligibility for procurement and nonprocurement
participation is restored under the CAA or CWA, whether by decision,
appeal, or by administrative agreement, the EPA will remove your name
and that of the violating facility from the EPLS, generally within 5
working days of your reinstatement.
Sec. 32.1600 What definitions apply specifically to actions under
this subpart?
In addition to definitions under subpart I of this part that apply
to this part as a whole, the following two definitions apply
specifically to CAA and CWA disqualifications under this subpart:
(a) Person means an individual, corporation, partnership,
association, state, municipality, commission, or political subdivision
of a state, or any interstate body.
(b) Violating facility means any building, plant, installation,
structure, mine, vessel, floating craft, location or site of operations
that gives rise to a CAA or CWA conviction, and is a location at which
or from which a Federal contract, subcontract, loan, assistance award
or other covered transaction may be performed. If a site of operations
giving rise to a CAA or CWA conviction contains or includes more than
one building, plant, installation, structure, mine, vessel, floating
craft, or other operational element, the entire location or site of
operation is regarded as the violating facility unless otherwise
limited by the EPA.
0
10. Part 36 is added to read as set forth in instruction 2 at the end
of the common preamble.
PART 36--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE
(FINANCIAL ASSISTANCE)
Subpart A--Purpose and Coverage
Sec.
36.100 What does this part do?
36.105 Does this part apply to me?
36.110 Are any of my Federal assistance awards exempt from this
part?
36.115 Does this part affect the Federal contracts that I receive?
Subpart B--Requirements for Recipients Other Than Individuals
36.200 What must I do to comply with this part?
36.205 What must I include in my drug-free workplace statement?
36.210 To whom must I distribute my drug-free workplace statement?
36.215 What must I include in my drug-free awareness program?
36.220 By when must I publish my drug-free workplace statement and
establish my drug-free awareness program?
36.225 What actions must I take concerning employees who are
convicted of drug violations in the workplace?
36.230 How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
36.300 What must I do to comply with this part if I am an individual
recipient?
36.301 [Reserved]
Subpart D--Responsibilities of EPA Awarding Officials
36.400 What are my responsibilities as an EPA awarding official?
Subpart E--Violations of This Part and Consequences
36.500 How are violations of this part determined for recipients
other than individuals?
36.505 How are violations of this part determined for recipients who
are individuals?
36.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
36.515 Are there any exceptions to those actions?
Subpart F--Definitions
36.605 Award.
36.610 Controlled substance.
36.615 Conviction.
36.620 Cooperative agreement.
36.625 Criminal drug statute.
36.630 Debarment.
36.635 Drug-free workplace.
36.640 Employee.
36.645 Federal agency or agency.
36.650 Grant.
36.655 Individual.
36.660 Recipient.
36.665 State.
36.670 Suspension.
Authority: 41 U.S.C. 701 et seq.
[[Page 66626]]
0
11. Part 36 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``EPA'' is added in its place
wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``EPA'' is added in its place
wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``EPA Administrator or
designee'' is added in its place wherever it occurs.
0
d. ``[Agency head]'' is removed and ``EPA Administrator'' is added in
its place wherever it occurs.
0
12. Section 36.510(c) is further amended by removing ``[CFR citation
for the Federal Agency's regulations implementing Executive Order 12549
and Executive Order 12689]'' and adding ``40 CFR Part 32'' in its
place.
0
13. Section 36.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``40 CFR Part 31'' in its place.
-----------------------------------------------------------------------
GENERAL SERVICES ADMINISTRATION
41 CFR Parts 105-68 and 105-74
RIN 3090-AH35
FOR FURTHER INFORMATION CONTACT: Donald J. Suda, Special Assistant for
Contractor Integrity, General Services Administration, 1800 F Street
NW., Washington, DC 20405-0002, (202) 501-4770, e-mail: donald.suda.@gsa.gov.
List of Subjects
41 CFR Part 105-68
Administrative practice and procedure, Debarment and suspension,
Grant programs, Reporting and recordkeeping requirements.
41 CFR Part 105-74
Administrative practice and procedure, Drug abuse, Grant programs,
Reporting and recordkeeping requirements.
Dated: September 23, 2003.
Stephen A. Perry,
Administrator of General Services.
0
For the reasons stated in the common preamble, the General Services
Administration amends 41 CFR chapter 105, as follows:
CHAPTER 105--[AMENDED]
0
1. Part 105-68 is revised to read as set forth in instruction 1 at the
end of the common preamble.
PART 105-68--GOVERNMENTWIDE DEBARMENT AND SUSPENSION
(NONPROCUREMENT)
Sec.
105-68.25 How is this part organized?
105-68.50 How is this part written?
105-68.75 Do terms in this part have special meanings?
Subpart A--General
105-68.100 What does this part do?
105-68.105 Does this part apply to me?
105-68.110 What is the purpose of the nonprocurement debarment and
suspension system?
105-68.115 How does an exclusion restrict a person's involvement in
covered transactions?
105-68.120 May we grant an exception to let an excluded person
participate in a covered transaction?
105-68.125 Does an exclusion under the nonprocurement system affect
a person's eligibility for Federal procurement contracts?
105-68.130 Does exclusion under the Federal procurement system
affect a person's eligibility to participate in nonprocurement
transactions?
105-68.135 May the General Services Administration exclude a person
who is not currently participating in a nonprocurement transaction?
105-68.140 How do I know if a person is excluded?
105-68.145 Does this part address persons who are disqualified, as
well as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
105-68.200 What is a covered transaction?
105-68.205 Why is it important to know if a particular transaction
is a covered transaction?
105-68.210 Which nonprocurement transactions are covered
transactions?
105-68.215 Which nonprocurement transactions are not covered
transactions?
105-68.220 Are any procurement contracts included as covered
transactions?
105-68.225 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
105-68.300 What must I do before I enter into a covered transaction
with another person at the next lower tier?
105-68.305 May I enter into a covered transaction with an excluded
or disqualified person?
105-68.310 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
105-68.315 May I use the services of an excluded person as a
principal under a covered transaction?
105-68.320 Must I verify that principals of my covered transactions
are eligible to participate?
105-68.325 What happens if I do business with an excluded person in
a covered transaction?
105-68.330 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Disclosing Information--Primary Tier Participants
105-68.335 What information must I provide before entering into a
covered transaction with the General Services Administration?
105-68.340 If I disclose unfavorable information required under
Sec. 105-68.335, will I be prevented from participating in the
transaction?
105-68.345 What happens if I fail to disclose the information
required under Sec. 105-68.335?
105-68.350 What must I do if I learn of the information required
under Sec. 105-68.335 after entering into a covered transaction
with the General Services Administration?
Disclosing Information--Lower Tier Participants
105-68.355 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
105-68.360 What happens if I fail to disclose the information
required under Sec. 105-68.355?
105-68.365 What must I do if I learn of information required under
Sec. 105-68.355 after entering into a covered transaction with a
higher tier participant?
Subpart D--Responsibilities of GSA Officials Regarding Transactions
105-68.400 May I enter into a transaction with an excluded or
disqualified person?
105-68.405 May I enter into a covered transaction with a participant
if a principal of the transaction is excluded?
105-68.410 May I approve a participant's use of the services of an
excluded person?
105-68.415 What must I do if a Federal agency excludes the
participant or a principal after I enter into a covered transaction?
105-68.420 May I approve a transaction with an excluded or
disqualified person at a lower tier?
105-68.425 When do I check to see if a person is excluded or
disqualified?
105-68.430 How do I check to see if a person is excluded or
disqualified?
105-68.435 What must I require of a primary tier participant?
105-68.440 What method do I use to communicate those requirements to
participants?
105-68.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
105-68.450 What action may I take if a primary tier participant
fails to disclose the information required under Sec. 105-68.335?
105-68.455 What may I do if a lower tier participant fails to
disclose the
[[Page 66627]]
information required under Sec. 105-68.355 to the next higher tier?
Subpart E--Excluded Parties List System
105-68.500 What is the purpose of the Excluded Parties List System
(EPLS)?
105-68.505 Who uses the EPLS?
105-68.510 Who maintains the EPLS?
105-68.515 What specific information is in the EPLS?
105-68.520 Who places the information into the EPLS?
105-68.525 Whom do I ask if I have questions about a person in the
EPLS?
105-68.530 Where can I find the EPLS?
Subpart F--General Principles Relating to Suspension and Debarment
Actions
105-68.600 How do suspension and debarment actions start?
105-68.605 How does suspension differ from debarment?
105-68.610 What procedures does the General Services Administration
use in suspension and debarment actions?
105-68.615 How does the General Services Administration notify a
person of a suspension and debarment action?
105-68.620 Do Federal agencies coordinate suspension and debarment
actions?
105-68.625 What is the scope of a suspension or debarment action?
105-68.630 May the General Services Administration impute the
conduct of one person to another?
105-68.635 May the General Services Administration settle a
debarment or suspension action?
105-68.640 May a settlement include a voluntary exclusion?
105-68.645 Do other Federal agencies know if the General Services
Administration agrees to a voluntary exclusion?
Subpart G--Suspension
105-68.700 When may the suspending official issue a suspension?
105-68.705 What does the suspending official consider in issuing a
suspension?
105-68.710 When does a suspension take effect?
105-68.715 What notice does the suspending official give me if I am
suspended?
105-68.720 How may I contest a suspension?
105-68.725 How much time do I have to contest a suspension?
105-68.730 What information must I provide to the suspending
official if I contest a suspension?
105-68.735 Under what conditions do I get an additional opportunity
to challenge the facts on which the suspension is based?
105-68.740 Are suspension proceedings formal?
105-68.745 How is fact-finding conducted?
105-68.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
105-68.755 When will I know whether the suspension is continued or
terminated?
105-68.760 How long may my suspension last?
Subpart H--Debarment
105-68.800 What are the causes for debarment?
105-68.805 What notice does the debarring official give me if I am
proposed for debarment?
105-68.810 When does a debarment take effect?
105-68.815 How may I contest a proposed debarment?
105-68.820 How much time do I have to contest a proposed debarment?
105-68.825 What information must I provide to the debarring official
if I contest a proposed debarment?
105-68.830 Under what conditions do I get an additional opportunity
to challenge the facts on which the proposed debarment is based?
105-68.835 Are debarment proceedings formal?
105-68.840 How is fact-finding conducted?
105-68.845 What does the debarring official consider in deciding
whether to debar me?
105-68.850 What is the standard of proof in a debarment action?
105-68.855 Who has the burden of proof in a debarment action?
105-68.860 What factors may influence the debarring official's
decision?
105-68.865 How long may my debarment last?
105-68.870 When do I know if the debarring official debars me?
105-68.875 May I ask the debarring official to reconsider a decision
to debar me?
105-68.880 What factors may influence the debarring official during
reconsideration?
105-68.885 May the debarring official extend a debarment?
Subpart I--Definitions
105-68.900 Adequate evidence.
105-68.905 Affiliate.
105-68.910 Agency.
105-68.915 Agent or representative.
105-68.920 Civil judgment.
105-68.925 Conviction.
105-68.930 Debarment.
105-68.935 Debarring official.
105-68.940 Disqualified.
105-68.945 Excluded or exclusion.
105-68.950 Excluded Parties List System.
105-68.955 Indictment.
105-68.960 Ineligible or ineligibility.
105-68.965 Legal proceedings.
105-68.970 Nonprocurement transaction.
105-68.975 Notice.
105-68.980 Participant.
105-68.985 Person.
105-68.990 Preponderance of the evidence.
105-68.995 Principal.
105-68.1000 Respondent.
105-68.1005 State.
105-68.1010 Suspending official.
105-68.1015 Suspension.
105-68.1020 Voluntary exclusion or voluntarily excluded.
Subpart J--[Reserved]
Appendix to Part 105-68-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.
0
2. Part 105-68 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``General Services Administration''
is added in its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``GSA'' is added in its place
wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Administrator of
General Services `` is added in its place wherever it occurs.
0
3. Section 105-68.440 is added to read as follows:
Sec. 105-68.440 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.
0
4. Part 105-74 is added to read as set forth in instruction 2 at the
end of the common preamble.
PART 105-74--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE
(FINANCIAL ASSISTANCE)
Subpart A--Purpose and Coverage
Sec.
105-74.100 What does this part do?
105-74.105 Does this part apply to me?
105-74.110 Are any of my Federal assistance awards exempt from this
part?
105-74.115 Does this part affect the Federal contracts that I
receive?
Subpart B--Requirements for Recipients Other Than Individuals
105-74.200 What must I do to comply with this part?
105-74.205 What must I include in my drug-free workplace statement?
105-74.210 To whom must I distribute my drug-free workplace
statement?
105-74.215 What must I include in my drug-free awareness program?
105-74.220 By when must I publish my drug-free workplace statement
and establish my drug-free awareness program?
105-74.225 What actions must I take concerning employees who are
convicted of drug violations in the workplace?
105-74.230 How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
105-74.300 What must I do to comply with this part if I am an
individual recipient?
105-74.301 [Reserved]
[[Page 66628]]
Subpart D--Responsibilities of GSA Awarding Officials
105-74.400 What are my responsibilities as a GSA awarding official?
Subpart E--Violations of This Part and Consequences
105-74.500 How are violations of this part determined for recipients
other than individuals?
105-74.505 How are violations of this part determined for recipients
who are individuals?
105-74.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
105-74.515 Are there any exceptions to those actions?
Subpart F--Definitions
105-74.605 Award.
105-74.610 Controlled substance.
105-74.615 Conviction.
105-74.620 Cooperative agreement.
105-74.625 Criminal drug statute.
105-74.630 Debarment.
105-74.635 Drug-free workplace.
105-74.640 Employee.
105-74.645 Federal agency or agency.
105-74.650 Grant.
105-74.655 Individual.
105-74.660 Recipient.
105-74.665 State.
105-74.670 Suspension.
Authority: 41 U.S.C. 701 et seq.
0
5. Part 105-74 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``General Services Administration''
is added in its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``GSA'' is added in its place
wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Administrator of
General Services'' is added in its place wherever it occurs.
0
d. ``[Agency head]'' is removed and ``Administrator of General
Services'' is added in its place wherever it occurs.
0
6. Section 105-74.510(c) is further amended by removing ``[CFR citation
for the Federal agency's regulations implementing Executive Order 12549
and Executive Order 12689]'' and adding ``41 FR part 105-68'' in its
place.
0
7. Section 105-74.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``41 CFR part 105-71'' in its
place.
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
43 CFR Parts 12, 42 and 43
RIN 1090-AA79
FOR FURTHER INFORMATION CONTACT: Debra E. Sonderman, Director, Office
of Acquisition and Property Management, (202) 208-6431.
List of Subjects
43 CFR Part 12
Administrative practice and procedure, Contract programs,
Cooperative agreements, Debarment and suspension, Grant programs, Grant
administration.
43 CFR Part 42
Administrative practice and procedure, Contract programs,
Cooperative agreements, Debarment and suspension, Grant programs,
Grants administration, Reporting and recordkeeping requirements.
43 CFR Part 43
Administrative practice and procedure, Contract programs,
Cooperative agreements, Drug abuse, Grant programs, Grants
administration, Reporting and recordkeeping requirements.
Dated: July 25, 2003.
P. Lynn Scarlett,
Assistant Secretary--Policy, Management and Budget.
0
Accordingly, for the reasons stated in the common preamble, the
Department of Interior amends 43 CFR subtitle A, as follows:
PART 12--ADMINISTRATIVE AND AUDIT REQUIREMENTS AND COST PRINCIPLES
FOR ASSISTANCE PROGRAMS
0
1. The authority citation for part 12 is revised to read as follows:
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); 5 U.S.C. 301; U.S.C 6101 note.
0
2. Part 12, Subpart D is removed and reserved.
0
3. Part 42 is added to read as set forth in instruction 1 at the end of
the common preamble.
PART 42--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
Sec.
42.25 How is this part organized?
42.50 How is this part written?
42.75 Do terms in this part have special meanings?
Subpart A--General
42.100 What does this part do?
42.105 Does this part apply to me?
42.110 What is the purpose of the nonprocurement debarment and
suspension system?
42.115 How does an exclusion restrict a person's involvement in
covered transactions?
42.120 May we grant an exception to let an excluded person
participate in a covered transaction?
42.125 Does an exclusion under the nonprocurement system affect a
person's eligibility for Federal procurement contracts?
42.130 Does exclusion under the Federal procurement system affect a
person's eligibility to participate in nonprocurement transactions?
42.135 May the Department of the Interior exclude a person who is
not currently participating in a nonprocurement transaction?
42.140 How do I know if a person is excluded?
42.145 Does this part address persons who are disqualified, as well
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
42.200 What is a covered transaction?
42.205 Why is it important to know if a particular transaction is a
covered transaction?
42.210 Which nonprocurement transactions are covered transactions?
42.215 Which nonprocurement transactions are not covered
transactions?
42.220 Are any procurement contracts included as covered
transactions?
42.225 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
42.300 What must I do before I enter into a covered transaction with
another person at the next lower tier?
42.305 May I enter into a covered transaction with an excluded or
disqualified person?
42.310 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
42.315 May I use the services of an excluded person as a principal
under a covered transaction?
42.320 Must I verify that principals of my covered transactions are
eligible to participate?
42.325 What happens if I do business with an excluded person in a
covered transaction?
42.330 What requirements must I pass down to persons at lower tiers
with whom I intend to do business?
Disclosing Information--Primary Tier Participants
42.335 What information must I provide before entering into a
covered transaction with the Department of the Interior?
42.340 If I disclose unfavorable information required under Sec.
42.335, will I be prevented from participating in the transaction?
42.345 What happens if I fail to disclose the information required
under Sec. 42.335?
42.350 What must I do if I learn of the information required under
Sec. 42.335 after
[[Page 66629]]
entering into a covered transaction with the Department of the
Interior?
Disclosing Information--Lower Tier Participants
42.355 What information must I provide to a higher tier participant
before entering into a covered transaction with that participant?
42.360 What happens if I fail to disclose the information required
under Sec. 42.355?
42.365 What must I do if I learn of information required under Sec.
42.355 after entering into a covered transaction with a higher tier
participant?
Subpart D--Responsibilities of Department of the Interior Officials
Regarding Transactions
42.400 May I enter into a transaction with an excluded or
disqualified person?
42.405 May I enter into a covered transaction with a participant if
a principal of the transaction is excluded?
42.410 May I approve a participant's use of the services of an
excluded person?
42.415 What must I do if a Federal agency excludes the participant
or a principal after I enter into a covered transaction?
42.420 May I approve a transaction with an excluded or disqualified
person at a lower tier?
42.425 When do I check to see if a person is excluded or
disqualified?
42.430 How do I check to see if a person is excluded or
disqualified?
42.435 What must I require of a primary tier participant?
42.440 What method do I use to communicate those requirements to
participants?
42.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
42.450 What action may I take if a primary tier participant fails to
disclose the information required under Sec. 42.335?
42.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 42.355 to the next higher tier?
Subpart E--Excluded Parties List System
42.500 What is the purpose of the Excluded Parties List System
(EPLS)?
42.505 Who uses the EPLS?
42.510 Who maintains the EPLS?
42.515 What specific information is in the EPLS?
42.520 Who places the information into the EPLS?
42.525 Whom do I ask if I have questions about a person in the EPLS?
42.530 Where can I find the EPLS?
Subpart F--General Principles Relating to Suspension and Debarment
Actions
42.600 How do suspension and debarment actions start?
42.605 How does suspension differ from debarment?
42.610 What procedures does the Department of the Interior use in
suspension and debarment actions?
42.615 How does the Department of the Interior notify a person of a
suspension and debarment action?
42.620 Do Federal agencies coordinate suspension and debarment
actions?
42.625 What is the scope of a suspension or debarment action?
42.630 May the Department of the Interior impute the conduct of one
person to another?
42.635 May the Department of the Interior settle a debarment or
suspension action?
42.640 May a settlement include a voluntary exclusion?
42.645 Do other Federal agencies know if the Department of the
Interior agrees to a voluntary exclusion?
Subpart G--Suspension
42.700 When may the suspending official issue a suspension?
42.705 What does the suspending official consider in issuing a
suspension?
42.710 When does a suspension take effect?
42.715 What notice does the suspending official give me if I am
suspended?
42.720 How may I contest a suspension?
42.725 How much time do I have to contest a suspension?
42.730 What information must I provide to the suspending official if
I contest a suspension?
42.735 Under what conditions do I get an additional opportunity to
challenge the facts on which the suspension is based?
42.740 Are suspension proceedings formal?
42.745 How is fact-finding conducted?
42.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
42.755 When will I know whether the suspension is continued or
terminated?
42.760 How long may my suspension last?
Subpart H--Debarment
42.800 What are the causes for debarment?
42.805 What notice does the debarring official give me if I am
proposed for debarment?
42.810 When does a debarment take effect?
42.815 How may I contest a proposed debarment?
42.820 How much time do I have to contest a proposed debarment?
42.825 What information must I provide to the debarring official if
I contest a proposed debarment?
42.830 Under what conditions do I get an additional opportunity to
challenge the facts on which the proposed debarment is based?
42.835 Are debarment proceedings formal?
42.840 How is fact-finding conducted?
42.845 What does the debarring official consider in deciding whether
to debar me?
42.850 What is the standard of proof in a debarment action?
42.855 Who has the burden of proof in a debarment action?
42.860 What factors may influence the debarring official's decision?
42.865 How long may my debarment last?
42.870 When do I know if the debarring official debars me?
42.875 May I ask the debarring official to reconsider a decision to
debar me?
42.880 What factors may influence the debarring official during
reconsideration?
42.885 May the debarring official extend a debarment?
Subpart I--Definitions
42.900 Adequate evidence.
42.905 Affiliate.
42.910 Agency.
42.915 Agent or representative.
42.920 Civil judgment.
42.925 Conviction.
42.930 Debarment.
42.935 Debarring official.
42.940 Disqualified.
42.945 Excluded or exclusion.
42.950 Excluded Parties List System.
42.955 Indictment.
42.960 Ineligible or ineligibility.
42.965 Legal proceedings.
42.970 Nonprocurement transaction.
42.975 Notice.
42.980 Participant.
42.985 Person.
42.990 Preponderance of the evidence.
42.995 Principal.
42.1000 Respondent.
42.1005 State.
42.1010 Suspending official.
42.1015 Suspension.
42.1020 Voluntary exclusion or voluntarily excluded.
Subpart J--[Reserved]
Appendix to Part 42--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); 5 U.S.C. 301; 31 U.S.C.
0
4. Part 42 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``Department of the Interior'' is
added in its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``Department of the Interior''
is added in its place where it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Director, Office of
Acquisition and Property Management'' is added in its place wherever it
occurs.
0
5. Section 42.215 is further amended by adding paragraphs (h) through
(k) to read as follows:
Sec. 42.215 Which nonprocurement transactions are not covered
transactions?
* * * * *
(h) Transactions entered into pursuant to Public Law 93-638, 88
Stat. 2203.
(i) Under natural resource management programs, permits, licenses,
exchanges and other acquisitions of real property, rights-of-way, and
easements.
(j) Transactions concerning mineral patent claims entered into
pursuant to 30 U.S.C. 22 et seq.
(k) Water service contracts and repayments entered into pursuant to
43 U.S.C. 485.
0
6. Section 42.440 is added to read as follows:
[[Page 66630]]
Sec. 42.440 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 participants'
compliance with subpart C of this part and requiring them to include a
similar term or condition in lower-tier covered transactions.
0
7. Section 42.935 is further amended by adding paragraph (b) to read as
follows:
Sec. 42.935 Debarring official.
* * * * *
(b) The debarring official for the Department of the Interior is
the Director, Office of Acquisition and Property Management.
0
8. Section 42.970 is further amended by adding paragraphs (a)(12)
through (a)(15) to read as follows:
Sec. 42.970 Nonprocurement transaction.
* * * * *
(a) * * *
(12) Federal acquisition of a leasehold interest or any other
interest in real property.
(13) Concession contracts.
(14) Disposition of Federal real and personal property and natural
resources.
(15) Any other nonprocurement transactions between the Department
and a person.
* * * * *
0
9. Section 42.1010 is further amended by adding paragraph (b) to read
as follows:
Sec. 42.1010 Suspending official.
* * * * *
(b) The suspending official for the Department of the Interior is
the Director, Office of Acquisition and Property Management.
0
10. Part 43 is added to read as set forth in instruction 2 at the end
of the common preamble.
PART 43--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE
(FINANCIAL ASSISTANCE)
Subpart A--Purpose and Coverage
Sec.
43.100 What does this part do?
43.105 Does this part apply to me?
43.110 Are any of my Federal assistance awards exempt from this
part?
43.115 Does this part affect the Federal contracts that I receive?
Subpart B--Requirements for Recipients Other Than Individuals
43.200 What must I do to comply with this part?
43.205 What must I include in my drug-free workplace statement?
43.210 To whom must I distribute my drug-free workplace statement?
43.215 What must I include in my drug-free awareness program?
43.220 By when must I publish my drug-free workplace statement and
establish my drug-free awareness program?
43.225 What actions must I take concerning employees who are
convicted of drug violations in the workplace?
43.230 How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
43.300 What must I do to comply with this part if I am an individual
recipient?
43.301 Is there a central point to which I may report information
required by Sec. 43.300?
Subpart D--Responsibilities of Department of the Interior Awarding
Officials
43.400 What are my responsibilities as a Department of the Interior
awarding official?
Subpart E--Violations of This Part and Consequences
43.500 How are violations of this part determined for recipients
other than individuals?
43.505 How are violations of this part determined for recipients who
are individuals?
43.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
43.515 Are there any exceptions to those actions?
Subpart F--Definitions
43.605 Award.
43.610 Controlled substance.
43.615 Conviction.
43.620 Cooperative agreement.
43.625 Criminal drug statute.
43.630 Debarment.
43.635 Drug-free workplace.
43.640 Employee.
43.645 Federal agency or agency.
43.650 Grant.
43.655 Individual.
43.660 Recipient.
43.665 State.
43.670 Suspension.
Authority: 5 U.S.C. 301; 31 U.S.C. 6101 note, 7501; 41 U.S.C.
Sections 252a and 701 et seq.
0
11. Part 43 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``Department of the Interior'' is
added in its place where it occurs.
0
b. ``[Agency adjective]'' is removed and ``Department of the Interior''
is added in its place wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Director, Office of
Acquisition and Property Management'' is added in its place wherever it
occurs.
0
d. ``[Agency head]'' is removed and ``Secretary of the Interior'' is
added in its place wherever it occurs.
0
12. Section 43.301 is added to read as follows:
Sec. 43.301 Is there a central point to which I may report
information required by Sec. 43.300?
No. The Department of the Interior is not designating a central
location for the receipt of these reports. Therefore you shall provide
this report to every grant officer, or other designee within a Bureau/
Office of the Department on whose grant activity the convicted employee
was working.
0
13. Section 43.510(c) is further amended by removing ``[CFR citation
for the Federal Agency's regulations implementing Executive Order 12549
and Executive Order 12689]'' and adding ``43 CFR Part 42''in its place.
0
14. Section 43.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``43 CFR Part 12'' in its place.
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
45 CFR Parts 76 and 82
RIN 0991-AB12
FOR FURTHER INFORMATION CONTACT: Marc R. Weisman, 336 E. Hubert H.
Humphrey Building, 200 Independence Avenue, SW., Washington, DC 20201,
202-690-8554.
List of Subjects
45 CFR Part 76
Administrative practice and procedure, Grant programs, Reporting
and recordkeeping requirements.
45 CFR Part 82
Administrative practice and procedure, Drug abuse, Grant programs,
Reporting and recordkeeping requirements.
Dated: July 30, 2003.
Tommy G. Thompson,
Secretary, Department of Health and Human Services.
0
For the reasons stated in the common preamble, the Department of Health
and Human Services amends 45 CFR Subtitle A, as follows:
0
1. Part 76 is revised to read as set forth in instruction 1 at the end
of the common preamble.
PART 76--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
Sec.
[[Page 66631]]
76.25 How is this part organized?
76.50 How is this part written?
76.75 Do terms in this part have special meanings?
Subpart A--General
76.100 What does this part do?
76.105 Does this part apply to me?
76.110 What is the purpose of the nonprocurement debarment and
suspension system?
76.115 How does an exclusion restrict a person's involvement in
covered transactions?
76.120 May we grant an exception to let an excluded person
participate in a covered transaction?
76.125 Does an exclusion under the nonprocurement system affect a
person's eligibility for Federal procurement contracts?
76.130 Does exclusion under the Federal procurement system affect a
person's eligibility to participate in nonprocurement transactions?
76.135 May HHS exclude a person who is not currently participating
in a nonprocurement transaction?
76.140 How do I know if a person is excluded?
76.145 Does this part address persons who are disqualified, as well
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
76.200 What is a covered transaction?
76.205 Why is it important to know if a particular transaction is a
covered transaction?
76.210 Which nonprocurement transactions are covered transactions?
76.215 Which nonprocurement transactions are not covered
transactions?
76.220 Are any procurement contracts included as covered
transactions?
76.225 How do I know if a transaction in which I may participate is
a covered transaction?
76.230 What is the relationship between covered transactions and
exclusions from participation in Federal health care programs under
Title XI of the Social Security Act?
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
76.300 What must I do before I enter into a covered transaction with
another person at the next lower tier?
76.305 May I enter into a covered transaction with an excluded or
disqualified person?
76.310 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
76.315 May I use the services of an excluded person as a principal
under a covered transaction?
76.320 Must I verify that principals of my covered transactions are
eligible to participate?
76.325 What happens if I do business with an excluded person in a
covered transaction?
76.330 What requirements must I pass down to persons at lower tiers
with whom I intend to do business?
Disclosing Information--Primary Tier Participants
76.335 What information must I provide before entering into a
covered transaction with HHS?
76.340 If I disclose unfavorable information required under Sec.
76.335, will I be prevented from participating in the transaction?
76.345 What happens if I fail to disclose the information required
under Sec. 76.335?
76.350 What must I do if I learn of the information required under
Sec. 76.335 after entering into a covered transaction with HHS?
Disclosing Information--Lower Tier Participants
76.355 What information must I provide to a higher tier participant
before entering into a covered transaction with that participant?
76.360 What happens if I fail to disclose the information required
under Sec. 76.355?
76.365 What must I do if I learn of information required under Sec.
76.355 after entering into a covered transaction with a higher tier
participant?
Subpart D--Responsibilities of HHS Officials Regarding Transactions
76.400 May I enter into a transaction with an excluded or
disqualified person?
76.405 May I enter into a covered transaction with a participant if
a principal of the transaction is excluded?
76.410 May I approve a participant's use of the services of an
excluded person?
76.415 What must I do if a Federal agency excludes the participant
or a principal after I enter into a covered transaction?
76.420 May I approve a transaction with an excluded or disqualified
person at a lower tier?
76.425 When do I check to see if a person is excluded or
disqualified?
76.430 How do I check to see if a person is excluded or
disqualified?
76.435 What must I require of a primary tier participant?
76.440 What method do I use to communicate those requirements to
participants?
76.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
76.450 What action may I take if a primary tier participant fails to
disclose the information required under Sec. 76.335?
76.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 76.355 to the next higher tier?
76.460 What are the obligations of Medicare carriers and
intermediaries?
Subpart E--Excluded Parties List System
76.500 What is the purpose of the Excluded Parties List System
(EPLS)?
76.505 Who uses the EPLS?
76.510 Who maintains the EPLS?
76.515 What specific information is in the EPLS?
76.520 Who places the information into the EPLS?
76.525 Whom do I ask if I have questions about a person in the EPLS?
76.530 Where can I find the EPLS?
Subpart F--General Principles Relating to Suspension and Debarment
Actions
76.600 How do suspension and debarment actions start?
76.605 How does suspension differ from debarment?
76.610 What procedures does HHS use in suspension and debarment
actions?
76.615 How does HHS notify a person of a suspension and debarment
action?
76.620 Do Federal agencies coordinate suspension and debarment
actions?
76.625 What is the scope of a suspension or debarment action?
76.630 May HHS impute the conduct of one person to another?
76.635 May HHS settle a debarment or suspension action?
76.640 May a settlement include a voluntary exclusion?
76.645 Do other Federal agencies know if HHS agrees to a voluntary
exclusion?
Subpart G--Suspension
76.700 When may the suspending official issue a suspension?
76.705 What does the suspending official consider in issuing a
suspension?
76.710 When does a suspension take effect?
76.715 What notice does the suspending official give me if I am
suspended?
76.720 How may I contest a suspension?
76.725 How much time do I have to contest a suspension?
76.730 What information must I provide to the suspending official if
I contest a suspension?
76.735 Under what conditions do I get an additional opportunity to
challenge the facts on which the suspension is based?
76.740 Are suspension proceedings formal?
76.745 How is fact-finding conducted?
76.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
76.755 When will I know whether the suspension is continued or
terminated?
76.760 How long may my suspension last?
Subpart H--Debarment
76.800 What are the causes for debarment?
76.805 What notice does the debarring official give me if I am
proposed for debarment?
76.810 When does a debarment take effect?
76.815 How may I contest a proposed debarment?
76.820 How much time do I have to contest a proposed debarment?
76.825 What information must I provide to the debarring official if
I contest a proposed debarment?
76.830 Under what conditions do I get an additional opportunity to
challenge the facts on which the proposed debarment is based?
76.835 Are debarment proceedings formal?
76.840 How is fact-finding conducted?
76.845 What does the debarring official consider in deciding whether
to debar me?
[[Page 66632]]
76.850 What is the standard of proof in a debarment action?
76.855 Who has the burden of proof in a debarment action?
76.860 What factors may influence the debarring official's decision?
76.865 How long may my debarment last?
76.870 When do I know if the debarring official debars me?
76.875 May I ask the debarring official to reconsider a decision to
debar me?
76.880 What factors may influence the debarring official during
reconsideration?
76.885 May the debarring official extend a debarment?
Subpart I--Definitions
76.900 Adequate evidence.
76.905 Affiliate.
76.910 Agency.
76.915 Agent or representative.
76.920 Civil judgment.
76.925 Conviction.
76.930 Debarment.
76.935 Debarring official.
76.940 Disqualified.
76.945 Excluded or exclusion.
76.950 Excluded Parties List System.
76.955 Indictment.
76.960 Ineligible or ineligibility.
76.965 Legal proceedings.
76.970 Nonprocurement transaction.
76.975 Notice.
76.980 Participant.
76.985 Person.
76.990 Preponderance of the evidence.
76.995 Principal.
76.1000 Respondent.
76.1005 State.
76.1010 Suspending official.
76.1015 Suspension.
76.1020 Voluntary exclusion or voluntarily excluded.
Subpart J--Reserved
Appendix to Part 76--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. 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).
0
2. Part 76 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``HHS'' is added in its place
wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``HHS'' is added in its place
wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``HHS Debarring/
Suspension Official'' is added in its place wherever it occurs.
0
3. Section 76.220 is further amended by adding a paragraph (c) to read
as follows:
Sec. 76.220 Are any procurement contracts included as covered
transactions?
* * * * *
(c) The contract is a subcontract at any tier below a procurement
transaction that is covered under paragraph (a) of this section, and
the value of the contract exceeds or is expected to exceed the
``simplified acquisition threshold'' defined at 42 U.S.C. 403(11). This
extends the coverage of paragraph (a) of this section to all lower
tiers of contracts that exceed the simplified acquisition threshold
(see optional lower tier coverage shown in the diagram in the appendix
to this part).
0
4. Section 76.230 is added to read as follows:
Sec. 76.230 What is the relationship between covered transactions and
exclusions from participation in Federal health care programs under
Title XI of the Social Security Act?
Any individual or entity excluded from participation in Medicare,
Medicaid and other Federal health care programs under Title XI of the
Social Security Act, 42 U.S.C. 1320a-7, will be subject to the
prohibitions against participating in covered transactions, as set
forth in this part. In addition, these excluded parties are also
prohibited from participating in all Executive Branch procurement
programs and activities. (Public Law 103-355, section 2455) For
example, if an individual or entity is excluded by the HHS Office of
Inspector General from participation in Medicare, Medicaid and all
other Federal health care programs, in accordance with 42 U.S.C. 1320a-
7, then that individual or entity is prohibited from participating in
all Federal Government procurement and nonprocurement programs (42 CFR
part 1001).
0
5. Section 76.440 is added to read as follows:
Sec. 76.440 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.
0
6. Section 76.460 is added to read as follows:
Sec. 76.460 What are the obligations of Medicare carriers and
intermediaries?
Because Medicare carriers, intermediaries and other Medicare
contractors undertake responsibilities on behalf of the Medicare
program (Title XVIII of the Social Security Act), these entities assume
the same obligations and responsibilities as Medicare agency officials
with respect to actions under 45 CFR part 76. This would include these
entities checking the EPLS and taking necessary steps to effectuate
this part.
0
7. Section 76.940 is further amended by adding a paragraph (d) to read
as follows:
Sec. 76.940 Disqualified.
* * * * *
(d) The program exclusion authorities under Title XI of the Social
Security Act (42 U.S.C. 1320a-7) and enforced by the HHS Office of
Inspector General.
0
8. Section 76.995 is further amended by adding a paragraph (c) to read
as follows:
Sec. 76.995 Principal.
* * * * *
(c) Other examples of individuals who are principals in HHS covered
transactions include:
(1) Principal investigators;
(2) Providers of Federally-required audit services; and
(3) Researchers.
0
9. Part 82 is added to read as set forth in instruction 2 at the end of
the common preamble.
PART 82--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE
(FINANCIAL ASSISTANCE)
Subpart A--Purpose and Coverage
Sec.
82.100 What does this part do?
82.105 Does this part apply to me?
82.110 Are any of my Federal assistance awards exempt from this
part?
82.115 Does this part affect the Federal contracts that I receive?
Subpart B--Requirements for Recipients Other Than Individuals
82.200 What must I do to comply with this part?
82.205 What must I include in my drug-free workplace statement?
82.210 To whom must I distribute my drug-free workplace statement?
82.215 What must I include in my drug-free awareness program?
82.220 By when must I publish my drug-free workplace statement and
establish my drug-free awareness program?
82.225 What actions must I take concerning employees who are
convicted of drug violations in the workplace?
82.230 How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
82.300 What must I do to comply with this part if I am an individual
recipient?
82.301 [Reserved]
[[Continued on page 66633]]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
]
[[pp. 66633-66646]] Governmentwide Debarment and Suspension (Nonprocurement) and
Governmentwide Requirements for Drug-Free Workplace (Grants)
[[Continued from page 66632]]
[[Page 66633]]
Subpart D--Responsibilities of HHS Awarding Officials
82.400 What are my responsibilities as an HHS awarding official?
Subpart E--Violations of This Part and Consequences
82.500 How are violations of this part determined for recipients
other than individuals?
82.505 How are violations of this part determined for recipients who
are individuals?
82.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
82.515 Are there any exceptions to those actions?
Subpart F--Definitions
82.605 Award.
82.610 Controlled substance.
82.615 Conviction.
82.620 Cooperative agreement.
82.625 Criminal drug statute.
82.630 Debarment.
82.635 Drug-free workplace.
82.640 Employee.
82.645 Federal agency or agency.
82.650 Grant.
82.655 Individual.
82.660 Recipient.
82.665 State.
82.670 Suspension.
Authority: 41 U.S.C. 701 et seq.
0
10. Part 82 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``HHS'' is added in its place
wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``HHS'' is added in its place
wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``HHS Official or
designee'' is added in its place wherever it occurs.
0
d. ``[Agency head]'' is removed and ``the Secretary of HHS'' is added
in its place wherever it occurs.
0
11. Section 82.510(c) is further amended by removing ``[CFR citation
for the Federal Agency's regulations implementing Executive Order 12549
and Executive Order 12689]'' and adding ``45 CFR Part 76'' in its
place.
0
12. Section 82.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]''and adding ``45 CFR Part 92'' in its place.
-----------------------------------------------------------------------
NATIONAL SCIENCE FOUNDATION
45 CFR Parts 620 and 630
RIN 3145-AA41
FOR FURTHER INFORMATION CONTACT: Anita Eisenstadt, Assistant General
Counsel, National Science Foundation, 4201 Wilson Boulevard, Room 1265, Arlington, Virginia, 22230, (703) 292-8060; e:mail: aeisenst@nsf.gov.
List of Subjects
45 CFR Part 620
Administrative practice and procedure, Debarment and suspension,
Grant programs, Reporting and recordkeeping requirements.
45 CFR Part 630
Administrative practice and procedure, Drug abuse, Grant programs,
Reporting and recordkeeping requirements.
Dated: June 10, 2003.
Lawrence Rudolph,
General Counsel, National Science Foundation.
0
Accordingly, as set forth in the common preamble, the National Science
Foundation amends 45 CFR Chapter VI, as follows:
0
1. Part 620 is revised to read as set forth in instruction 1 at the end
of the common preamble.
PART 620--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
Sec.
620.25 How is this part organized?
620.50 How is this part written?
620.75 Do terms in this part have special meanings?
Subpart A--General
620.100 What does this part do?
620.105 Does this part apply to me?
620.110 What is the purpose of the nonprocurement debarment and
suspension system?
620.115 How does an exclusion restrict a person's involvement in
covered transactions?
620.120 May we grant an exception to let an excluded person
participate in a covered transaction?
620.125 Does an exclusion under the nonprocurement system affect a
person's eligibility for Federal procurement contracts?
620.130 Does exclusion under the Federal procurement system affect a
person's eligibility to participate in nonprocurement transactions?
620.135 May the National Science Foundation exclude a person who is
not currently participating in a nonprocurement transaction?
620.140 How do I know if a person is excluded?
620.145 Does this part address persons who are disqualified, as well
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
620.200 What is a covered transaction?
620.205 Why is it important to know if a particular transaction is a
covered transaction?
620.210 Which nonprocurement transactions are covered transactions?
620.215 Which nonprocurement transactions are not covered
transactions?
620.215 Are any procurement contracts included as covered
transactions?
620.225 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
620.300 What must I do before I enter into a covered transaction
with another person at the next lower tier?
620.305 May I enter into a covered transaction with an excluded or
disqualified person?
620.310 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
620.315 May I use the services of an excluded person as a principal
under a covered transaction?
620.320 Must I verify that principals of my covered transactions are
eligible to participate?
620.325 What happens if I do business with an excluded person in a
covered transaction?
620.330 What requirements must I pass down to persons at lower tiers
with whom I intend to do business?
Disclosing Information--Primary Tier Participants
620.335 What information must I provide before entering into a
covered transaction with the National Science Foundation?
620.340 If I disclose unfavorable information required under Sec.
620.335, will I be prevented from participating in the transaction?
620.345 What happens if I fail to disclose the information required
under Sec. 620.335?
620.350 What must I do if I learn of the information required under
Sec. 620.335 after entering into a covered transaction with the
National Science Foundation?
Disclosing Information--Lower Tier Participants
620.355 What information must I provide to a higher tier participant
before entering into a covered transaction with that participant?
620.360 What happens if I fail to disclose the information required
under Sec. 620.355?
620.365 What must I do if I learn of information required under
Sec. 620.355 after entering into a covered transaction with a
higher tier participant?
Subpart D--Responsibilities of National Science Foundation Officials
Regarding Transactions
620.400 May I enter into a transaction with an excluded or
disqualified person?
620.405 May I enter into a covered transaction with a participant if
a principal of the transaction is excluded?
620.410 May I approve a participant's use of the services of an
excluded person?
[[Page 66634]]
620.415 What must I do if a Federal agency excludes the participant
or a principal after I enter into a covered transaction?
620.420 May I approve a transaction with an excluded or disqualified
person at a lower tier?
620.425 When do I check to see if a person is excluded or
disqualified?
620.430 How do I check to see if a person is excluded or
disqualified?
620.435 What must I require of a primary tier participant?
620.440 What method do I use to communicate those requirements to
participants?
620.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
620.450 What action may I take if a primary tier participant fails
to disclose the information required under Sec. 620.335?
620.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 620.355 to the next higher
tier?
Subpart E--Excluded Parties List System
620.500 What is the purpose of the Excluded Parties List System
(EPLS)?
620.505 Who uses the EPLS?
620.510 Who maintains the EPLS?
620.515 What specific information is in the EPLS?
620.520 Who places the information into the EPLS?
620.525 Whom do I ask if I have questions about a person in the
EPLS?
620.530 Where can I find the EPLS?
Subpart F--General Principles Relating to Suspension and Debarment
Actions
620.600 How do suspension and debarment actions start?
620.605 How does suspension differ from debarment?
620.610 What procedures does the National Science Foundation use in
suspension and debarment actions?
620.615 How does the National Science Foundation notify a person of
a suspension and debarment action?
620.620 Do Federal agencies coordinate suspension and debarment
actions?
620.625 What is the scope of a suspension or debarment action?
620.630 May the National Science Foundation impute the conduct of
one person to another?
620.635 May the National Science Foundation settle a debarment or
suspension action?
620.640 May a settlement include a voluntary exclusion?
620.645 Do other Federal agencies know if the National Science
Foundation agrees to a voluntary exclusion?
Subpart G--Suspension
620.700 When may the suspending official issue a suspension?
620.705 What does the suspending official consider in issuing a
suspension?
620.710 When does a suspension take effect?
620.715 What notice does the suspending official give me if I am
suspended?
620.720 How may I contest a suspension?
620.725 How much time do I have to contest a suspension?
620.730 What information must I provide to the suspending official
if I contest a suspension?
620.735 Under what conditions do I get an additional opportunity to
challenge the facts on which the suspension is based?
620.740 Are suspension proceedings formal?
620.745 How is fact-finding conducted?
620.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
620.755 When will I know whether the suspension is continued or
terminated?
620.760 How long may my suspension last?
Subpart H--Debarment
620.800 What are the causes for debarment?
620.805 What notice does the debarring official give me if I am
proposed for debarment?
620.810 When does a debarment take effect?
620.815 How may I contest a proposed debarment?
620.820 How much time do I have to contest a proposed debarment?
620.825 What information must I provide to the debarring official if
I contest a proposed debarment?
620.830 Under what conditions do I get an additional opportunity to
challenge the facts on which the proposed debarment is based?
620.835 Are debarment proceedings formal?
620.840 How is fact-finding conducted?
620.845 What does the debarring official consider in deciding
whether to debar me?
620.850 What is the standard of proof in a debarment action?
620.855 Who has the burden of proof in a debarment action?
620.860 What factors may influence the debarring official's
decision?
620.865 How long may my debarment last?
620.870 When do I know if the debarring official debars me?
620.875 May I ask the debarring official to reconsider a decision to
debar me?
620.880 What factors may influence the debarring official during
reconsideration?
620.885 May the debarring official extend a debarment?
Subpart I--Definitions
620.900 Adequate evidence.
620.905 Affiliate.
620.910 Agency.
620.915 Agent or representative.
620.920 Civil judgment.
620.925 Conviction.
620.930 Debarment.
620.935 Debarring official.
620.940 Disqualified.
620.945 Excluded or exclusion.
620.950 Excluded Parties List System.
620.955 Indictment.
620.960 Ineligible or ineligibility.
620.965 Legal proceedings.
620.970 Nonprocurement transaction.
620.975 Notice.
620.980 Participant.
620.985 Person.
620.990 Preponderance of the evidence.
620.995 Principal.
620.1000 Respondent.
620.1005 State.
620.1010 Suspending official.
620.1015 Suspension.
620.1020 Voluntary exclusion or voluntarily excluded.
Subpart J--[Reserved]
Appendix to Part 620--Covered Transactions
Authority: 42 U.S.C. 1870(a); 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).
0
2. Part 620 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``National Science Foundation'' is
added in its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``National Science
Foundation'' is added in its place wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Director or
designee'' is added in its place wherever it occurs.
0
3. Section 620.440 is added to read as follows:
Sec. 620.440 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.
0
4. Part 630 is added to read as set forth in instruction 2 at the end
of the common preamble.
PART 630--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE
(FINANCIAL ASSISTANCE)
Subpart A--Purpose and Coverage
Sec.
630.100 What does this part do?
620.105 Does this part apply to me?
630.110 Are any of my Federal assistance awards exempt from this
part?
630.115 Does this part affect the Federal contracts that I receive?
Subpart B--Requirements for Recipients Other Than Individuals
630.200 What must I do to comply with this part?
630.205 What must I include in my drug-free workplace statement?
630.210 To whom must I distribute my drug-free workplace statement?
630.215 What must I include in my drug-free awareness program?
[[Page 66635]]
630.220 By when must I publish my drug-free workplace statement and
establish my drug-free awareness program?
630.225 What actions must I take concerning employees who are
convicted of drug violations in the workplace?
630.230 How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
630.300 What must I do to comply with this part if I am an
individual recipient?
630.301 [Reserved]
Subpart D--Responsibilities of National Science Foundation Awarding
Officials
630.400 What are my responsibilities as a National Science
Foundation awarding official?
Subpart E--Violations of This Part and Consequences
630.500 How are violations of this part determined for recipients
other than individuals?
630.505 How are violations of this part determined for recipients
who are individuals?
630.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
630.515 Are there any exceptions to those actions?
Subpart F--Definitions
630.605 Award.
630.610 Controlled substance.
630.615 Conviction.
630.620 Cooperative agreement.
630.625 Criminal drug statute.
630.630 Debarment.
630.635 Drug-free workplace.
630.640 Employee.
630.645 Federal agency or agency.
630.650 Grant.
630.655 Individual.
630.660 Recipient.
630.665 State.
630.670 Suspension.
Authority: 41 U.S.C. 701 et seq.
0
5. Part 630 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``National Science Foundation'' is
added in its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``National Science
Foundation'' is added in its place wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Director or
designee'' is added in its place wherever it occurs.
0
d. ``[Agency head]'' is removed and ``Director, National Science
Foundation'' is added in its place wherever it occurs.
0
6. Section 630.510(c) is further amended by removing ``[CFR citation
for the Federal Agency's regulations implementing Executive Order 12549
and Executive Order 12689]'' and adding ``45 CFR Part 620'' in its
place.
0
7. Section 630.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``45 CFR Part 602'' in its place.
-----------------------------------------------------------------------
NATIONAL FOUNDATION ON THE ARTS AND HUMANITIES
National Endowment for the Arts
45 CFR Parts 1154 and 1155
RINs 3135-AA18 and 3135-AA19
FOR FURTHER INFORMATION CONTACT: Karen Elias, Deputy General Counsel,
National Endowment for the Arts, Room 518, 1100 Pennsylvania Avenue,
NW., Washington, DC 20506, (202) 682-5418, or by e-mail: eliask@arts.gov.
List of Subjects
45 CFR Part 1154
Administrative practice and procedure, Debarment and suspension,
Government contracts, Grant programs, Loan programs, Reporting and
recordkeeping requirements.
45 CFR Part 1155
Administrative practice and procedure, Drug abuse, Grant programs,
Reporting and recordkeeping requirements.
Dated: July 15, 2003.
Karen L. Elias,
Deputy General Counsel, National Endowment for the Arts.
0
For the reasons stated in the common preamble, the National Endowment
for the Arts amends 45 CFR chapter XI, as follows:
0
1. Part 1154 is revised to read as set forth in instruction 1 at the
end of the common preamble.
PART 1154--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
Sec.
1154.25 How is this part organized?
1154.50 How is this part written?
1154.75 Do terms in this part have special meanings?
Subpart A--General
1154.100 What does this part do?
1154.105 Does this part apply to me?
1154.110 What is the purpose of the nonprocurement debarment and
suspension system?
1154.115 How does an exclusion restrict a person's involvement in
covered transactions?
1154.120 May we grant an exception to let an excluded person
participate in a covered transaction?
1154.125 Does an exclusion under the nonprocurement system affect a
person's eligibility for Federal procurement contracts?
1154.130 Does exclusion under the Federal procurement system affect
a person's eligibility to participate in nonprocurement
transactions?
1154.135 May the National Endowment for the Arts exclude a person
who is not currently participating in a nonprocurement transaction?
1154.140 How do I know if a person is excluded?
1154.145 Does this part address persons who are disqualified, as
well as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
1154.200 What is a covered transaction?
1154.205 Why is it important to know if a particular transaction is
a covered transaction?
1154.210 Which nonprocurement transactions are covered transactions?
1154.215 Which nonprocurement transactions are not covered
transactions?
1154.220 Are any procurement contracts included as covered
transactions?
1154.225 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
1154.300 What must I do before I enter into a covered transaction
with another person at the next lower tier?
1154.305 May I enter into a covered transaction with an excluded or
disqualified person?
1154.310 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
1154.315 May I use the services of an excluded person as a principal
under a covered transaction?
1154.320 Must I verify that principals of my covered transactions
are eligible to participate?
1154.325 What happens if I do business with an excluded person in a
covered transaction?
1154.330 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Disclosing Information--Primary Tier Participants
1154.335 What information must I provide before entering into a
covered transaction with the National Endowment for the Arts?
1154.340 If I disclose unfavorable information required under Sec.
1154.335, will I be prevented from participating in the transaction?
1154.345 What happens if I fail to disclose the information required
under Sec. 1154.335?
1154.350 What must I do if I learn of the information required under
Sec. 1154.335 after entering into a covered transaction with the
National Endowment for the Arts?
[[Page 66636]]
Disclosing Information--Lower Tier Participants
1154.355 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
1154.360 What happens if I fail to disclose the information required
under Sec. 1154.355?
1154.365 What must I do if I learn of information required under
Sec. 1154.355 after entering into a covered transaction with a
higher tier participant?
Subpart D--Responsibilities of NEA Officials Regarding Transactions
1154.400 May I enter into a transaction with an excluded or
disqualified person?
1154.405 May I enter into a covered transaction with a participant
if a principal of the transaction is excluded?
1154.410 May I approve a participant's use of the services of an
excluded person?
1154.415 What must I do if a Federal agency excludes the participant
or a principal after I enter into a covered transaction?
1154.420 May I approve a transaction with an excluded or
disqualified person at a lower tier?
1154.425 When do I check to see if a person is excluded or
disqualified?
1154.430 How do I check to see if a person is excluded or
disqualified?
1154.435 What must I require of a primary tier participant?
1154.440 What method do I use to communicate those requirements to
participants?
1154.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
1154.450 What action may I take if a primary tier participant fails
to disclose the information required under Sec. 1154.335?
1154.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 1154.355 to the next higher
tier?
Subpart E--Excluded Parties List System
1154.500 What is the purpose of the Excluded Parties List System
(EPLS)?
1154.505 Who uses the EPLS?
1154.510 Who maintains the EPLS?
1154.515 What specific information is in the EPLS?
1154.520 Who places the information into the EPLS?
1154.525 Whom do I ask if I have questions about a person in the
EPLS?
1154.530 Where can I find the EPLS?
Subpart F--General Principles Relating to Suspension and Debarment
Actions
1154.600 How do suspension and debarment actions start?
1154.605 How does suspension differ from debarment?
1154.610 What procedures does the National Endowment for the Arts
use in suspension and debarment actions?
1154.615 How does the National Endowment for the Arts notify a
person of a suspension and debarment action?
1154.620 Do Federal agencies coordinate suspension and debarment
actions?
1154.625 What is the scope of a suspension or debarment action?
1154.630 May the National Endowment for the Arts impute the conduct
of one person to another?
1154.635 May the National Endowment for the Arts settle a debarment
or suspension action?
1154.640 May a settlement include a voluntary exclusion?
1154.645 Do other Federal agencies know if the National Endowment
for the Arts agrees to a voluntary exclusion?
Subpart G--Suspension
1154.700 When may the suspending official issue a suspension?
1154.705 What does the suspending official consider in issuing a
suspension?
1154.710 When does a suspension take effect?
1154.715 What notice does the suspending official give me if I am
suspended?
1154.720 How may I contest a suspension?
1154.725 How much time do I have to contest a suspension?
1154.730 What information must I provide to the suspending official
if I contest a suspension?
1154.735 Under what conditions do I get an additional opportunity to
challenge the facts on which the suspension is based?
1154.740 Are suspension proceedings formal?
1154.745 How is fact-finding conducted?
1154.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
1154.755 When will I know whether the suspension is continued or
terminated?
1154.760 How long may my suspension last?
Subpart H--Debarment
1154.800 What are the causes for debarment?
1154.805 What notice does the debarring official give me if I am
proposed for debarment?
1154.810 When does a debarment take effect?
1154.815 How may I contest a proposed debarment?
1154.820 How much time do I have to contest a proposed debarment?
1154.825 What information must I provide to the debarring official
if I contest a proposed debarment?
1154.830 Under what conditions do I get an additional opportunity to
challenge the facts on which the proposed debarment is based?
1154.835 Are debarment proceedings formal?
1154.840 How is fact-finding conducted?
1154.845 What does the debarring official consider in deciding
whether to debar me?
1154.850 What is the standard of proof in a debarment action?
1154.855 Who has the burden of proof in a debarment action?
1154.860 What factors may influence the debarring official's
decision?
1154.865 How long may my debarment last?
1154.870 When do I know if the debarring official debars me?
1154.875 May I ask the debarring official to reconsider a decision
to debar me?
1154.880 What factors may influence the debarring official during
reconsideration?
1154.885 May the debarring official extend a debarment?
Subpart I--Definitions
1154.900 Adequate evidence.
1154.905 Affiliate.
1154.910 Agency.
1154.915 Agent or representative.
1154.920 Civil judgment.
1154.925 Conviction.
1154.930 Debarment.
1154.935 Debarring official.
1154.940 Disqualified.
1154.945 Excluded or exclusion.
1154.950 Excluded Parties List System.
1154.955 Indictment.
1154.960 Ineligible or ineligibility.
1154.965 Legal proceedings.
1154.970 Nonprocurement transaction.
1154.975 Notice.
1154.980 Participant.
1154.985 Person.
1154.990 Preponderance of the evidence.
1154.995 Principal.
1154.1000 Respondent.
1154.1005 State.
1154.1010 Suspending official.
1154.1015 Suspension.
1154.1020 Voluntary exclusion or voluntarily excluded.
Subpart J--[Reserved]
Appendix to Part 1154--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.
0
2. Part 1154 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``National Endowment for the Arts''
is added in its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``NEA'' is added in its place
wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``NEA Chairman'' is
added in its place wherever it occurs.
0
3. Section 1154.440 is added to read as follows:
Sec. 1154.440 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.
[[Page 66637]]
0
4. Part 1155 is added to read as set forth in instruction 2 at the end
of the common preamble.
PART 1155--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE
(FINANCIAL ASSISTANCE)
Subpart A--Purpose and Coverage
Sec.
1155.100 What does this part do?
1155.105 Does this part apply to me?
1155.110 Are any of my Federal assistance awards exempt from this
part?
1155.115 Does this part affect the Federal contracts that I receive?
Subpart B--Requirements for Recipients Other Than Individuals
1155.200 What must I do to comply with this part?
1155.205 What must I include in my drug-free workplace statement?
1155.210 To whom must I distribute my drug-free workplace statement?
1155.215 What must I include in my drug-free awareness program?
1155.220 By when must I publish my drug-free workplace statement and
establish my drug-free awareness program?
1155.225 What actions must I take concerning employees who are
convicted of drug violations in the workplace?
1155.230 How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
1155.300 What must I do to comply with this part if I am an
individual recipient?
1155.301 [Reserved]
Subpart D--Responsibilities of NEA Awarding Officials
1155.400 What are my responsibilities as an NEA awarding official?
Subpart E--Violations of This Part and Consequences
1155.500 How are violations of this part determined for recipients
other than individuals?
1155.505 How are violations of this part determined for recipients
who are individuals?
1155.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
1155.515 Are there any exceptions to those actions?
Subpart F--Definitions
1155.605 Award.
1155.610 Controlled substance.
1155.615 Conviction.
1155.620 Cooperative agreement.
1155.625 Criminal drug statute.
1155.630 Debarment.
1155.635 Drug-free workplace.
1155.640 Employee.
1155.645 Federal agency or agency.
1155.650 Grant.
1155.655 Individual.
1155.660 Recipient.
1155.665 State.
1155.670 Suspension.
Authority: 41 U.S.C. 701 et seq.
0
5. Part 1155 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``National Endowment for the Arts''
is added in its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``NEA'' is added in its place
wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``NEA Chairman'' is
added in its place wherever it occurs.
0
d. ``[Agency head]'' is removed and ``NEA Chairman'' is added in its
place wherever it occurs.
0
6. Section 1155.510(c) is further amended by removing ``[CFR citation
for the Federal Agency's regulations implementing Executive Order 12549
and Executive Order 12689]'' and adding ``45 CFR Part 1154'' in its
place.
0
7. Section 1155.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``45 CFR Part 1157'' in its place.
-----------------------------------------------------------------------
NATIONAL FOUNDATION ON THE ARTS AND HUMANITIES
National Endowment for the Humanities
45 CFR Part 1169 and 1173
RIN 3136-AA25
FOR FURTHER INFORMATION CONTACT: Heather C. Gottry, Assistant General
Counsel, National Endowment for the Humanities, (202) 606-8300.
List of Subjects
45 CFR Part 1169
Administrative practice and procedure, Debarment and suspension,
Grant programs, Reporting and recordkeeping requirements.
45 CFR Part 1173
Administrative practice and procedure, Drug abuse, Grant programs,
Reporting and recordkeeping requirements.
Dated: January 30, 2003.
Michael McDonald,
Deputy General Counsel,
National Endowment for the Humanities.
Accordingly, as set forth in the common preamble, 45 CFR chapter XI
is amended as follow:
0
1. Part 1169 is revised to read as set forth in instruction 1 at the
end of the common preamble.
PART 1169--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
Sec.
1169.25 How is this part organized?
1169.50 How is this part written?
1169.75 Do terms in this part have special meanings?
Subpart A--General
1169.100 What does this part do?
1169.105 Does this part apply to me?
1169.110 What is the purpose of the nonprocurement debarment and
suspension system?
1169.115 How does an exclusion restrict a person's involvement in
covered transactions?
1169.120 May we grant an exception to let an excluded person
participate in a covered transaction?
1169.125 Does an exclusion under the nonprocurement system affect a
person's eligibility for Federal procurement contracts?
1169.130 Does exclusion under the Federal procurement system affect
a person's eligibility to participate in nonprocurement
transactions?
1169.135 May the NEH exclude a person who is not currently
participating in a nonprocurement transaction?
1169.140 How do I know if a person is excluded?
1169.145 Does this part address persons who are disqualified, as
well as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
1169.200 What is a covered transaction?
1169.205 Why is it important to know if a particular transaction is
a covered transaction?
1169.210 Which nonprocurement transactions are covered transactions?
1169.215 Which nonprocurement transactions are not covered
transactions?
1169.220 Are any procurement contracts included as covered
transactions?
1169.225 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
1169.300 What must I do before I enter into a covered transaction
with another person at the next lower tier?
1169.305 May I enter into a covered transaction with an excluded or
disqualified person?
1169.310 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
1169.315 May I use the services of an excluded person as a principal
under a covered transaction?
1169.320 Must I verify that principals of my covered transactions
are eligible to participate?
[[Page 66638]]
1169.325 What happens if I do business with an excluded person in a
covered transaction?
1169.330 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Disclosing Information--Primary Tier Participants
1169.335 What information must I provide before entering into a
covered transaction with the NEH?
1169.340 If I disclose unfavorable information required under Sec.
1169.335, will I be prevented from participating in the transaction?
1169.345 What happens if I fail to disclose the information required
under Sec. 1169.335?
1169.350 What must I do if I learn of the information required under
Sec. 1169.335 after entering into a covered transaction with the
NEH?
Disclosing Information--Lower Tier Participants
1169.355 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
1169.360 What happens if I fail to disclose the information required
under Sec. 1169.355?
1169.365 What must I do if I learn of information required under
Sec. 1169.355 after entering into a covered transaction with a
higher tier participant?
Subpart D--Responsibilities of NEH Officials Regarding Transactions
1169.400 May I enter into a transaction with an excluded or
disqualified person?
1169.405 May I enter into a covered transaction with a participant
if a principal of the transaction is excluded?
1169.410 May I approve a participant's use of the services of an
excluded person?
1169.415 What must I do if a Federal agency excludes the participant
or a principal after I enter into a covered transaction?
1169.420 May I approve a transaction with an excluded or
disqualified person at a lower tier?
1169.425 When do I check to see if a person is excluded or
disqualified?
1169.430 How do I check to see if a person is excluded or
disqualified?
1169.435 What must I require of a primary tier participant?
1169.440 What method do I use to communicate those requirements to
participants?
1169.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
1169.450 What action may I take if a primary tier participant fails
to disclose the information required under Sec. 1169.335?
1169.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 1169.355 to the next higher
tier?
Subpart E--Excluded Parties List System
1169.500 What is the purpose of the Excluded Parties List System
(EPLS)?
1169.505 Who uses the EPLS?
1169.510 Who maintains the EPLS?
1169.515 What specific information is in the EPLS?
1169.520 Who places the information into the EPLS?
1169.525 Whom do I ask if I have questions about a person in the
EPLS?
1169.530 Where can I find the EPLS?
Subpart F--General Principles Relating to Suspension and Debarment
Actions
1169.600 How do suspension and debarment actions start?
1169.605 How does suspension differ from debarment?
1169.610 What procedures does the NEH use in suspension and
debarment actions?
1169.615 How does the NEH notify a person of a suspension and
debarment action?
1169.620 Do Federal agencies coordinate suspension and debarment
actions?
1169.625 What is the scope of a suspension or debarment action?
1169.630 May the NEH impute the conduct of one person to another?
1169.635 May the NEH settle a debarment or suspension action?
1169.640 May a settlement include a voluntary exclusion?
1169.645 Do other Federal agencies know if the NEH agrees to a
voluntary exclusion?
Subpart G--Suspension
1169.700 When may the suspending official issue a suspension?
1169.705 What does the suspending official consider in issuing a
suspension?
1169.710 When does a suspension take effect?
1169.715 What notice does the suspending official give me if I am
suspended?
1169.720 How may I contest a suspension?
1169.725 How much time do I have to contest a suspension?
1169.730 What information must I provide to the suspending official
if I contest a suspension?
1169.735 Under what conditions do I get an additional opportunity to
challenge the facts on which the suspension is based?
1169.740 Are suspension proceedings formal?
1169.745 How is fact-finding conducted?
1169.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
1169.755 When will I know whether the suspension is continued or
terminated?
1169.760 How long may my suspension last?
Subpart H--Debarment
1169.800 What are the causes for debarment?
1169.805 What notice does the debarring official give me if I am
proposed for debarment?
1169.810 When does a debarment take effect?
1169.815 How may I contest a proposed debarment?
1169.820 How much time do I have to contest a proposed debarment?
1169.825 What information must I provide to the debarring official
if I contest a proposed debarment?
1169.830 Under what conditions do I get an additional opportunity to
challenge the facts on which the proposed debarment is based?
1169.835 Are debarment proceedings formal?
1169.840 How is fact-finding conducted?
1169.845 What does the debarring official consider in deciding
whether to debar me?
1169.850 What is the standard of proof in a debarment action?
1169.855 Who has the burden of proof in a debarment action?
1169.860 What factors may influence the debarring official's
decision?
1169.865 How long may my debarment last?
1169.870 When do I know if the debarring official debars me?
1169.875 May I ask the debarring official to reconsider a decision
to debar me?
1169.880 What factors may influence the debarring official during
reconsideration?
1169.885 May the debarring official extend a debarment?
Subpart I--Definitions
1169.900 Adequate evidence.
1169.905 Affiliate.
1169.910 Agency.
1169.915 Agent or representative.
1169.920 Civil judgment.
1169.925 Conviction.
1169.930 Debarment.
1169.935 Debarring official.
1169.940 Disqualified.
1169.945 Excluded or exclusion.
1169.950 Excluded Parties List System.
1169.955 Indictment.
1169.960 Ineligible or ineligibility.
1169.965 Legal proceedings.
1169.970 Nonprocurement transaction.
1169.975 Notice.
1169.980 Participant.
1169.985 Person.
1169.990 Preponderance of the evidence.
1169.995 Principal.
1169.1000 Respondent.
1169.1005 State.
1169.1010 Suspending official.
1169.1015 Suspension.
1169.1020 Voluntary exclusion or voluntarily excluded.
Subpart J--[Reserved]
Appendix to Part 1169--Covered Transactions
Authority: 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); 20 U.S.C. 959(a)(1).
0
2. Part 1169 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``NEH'' is added in its place
wherever it occurs.
[[Page 66639]]
0
b. ``[Agency adjective]'' is removed and ``NEH'' is added in its place
wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``NEH General Counsel''
is added in its place wherever it occurs.
0
3. Section 1169.440 is added to read as follows:
Sec. 1169.440 What method do I use to communicate those requirements
to participants?
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.
0
4. Part 1173 is added to read as set forth in instruction 2 at the end
of the common preamble.
PART 1173--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE
(FINANCIAL ASSISTANCE)
Subpart A--Purpose and Coverage
Sec.
1173.100 What does this part do?
1173.105 Does this part apply to me?
1173.110 Are any of my Federal assistance awards exempt from this
part?
1173.115 Does this part affect the Federal contracts that I receive?
Subpart B--Requirements for Recipients Other Than Individuals
1173.200 What must I do to comply with this part?
1173.205 What must I include in my drug-free workplace statement?
1173.210 To whom must I distribute my drug-free workplace statement?
1173.215 What must I include in my drug-free awareness program?
1173.220 By when must I publish my drug-free workplace statement and
establish my drug-free awareness program?
1173.225 What actions must I take concerning employees who are
convicted of drug violations in the workplace?
1173.230 How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
1173.300 What must I do to comply with this part if I am an
individual recipient?
1173.301 [Reserved]
Subpart D--Responsibilities of NEH Awarding Officials
1173.400 What are my responsibilities as an NEH awarding official?
Subpart E--Violations of This Part and Consequences
1173.500 How are violations of this part determined for recipients
other than individuals?
1173.505 How are violations of this part determined for recipients
who are individuals?
1173.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
1173.515 Are there any exceptions to those actions?
Subpart F--Definitions
1173.605 Award.
1173.610 Controlled substance.
1173.615 Conviction.
1173.620 Cooperative agreement.
1173.625 Criminal drug statute.
1173.630 Debarment.
1173.635 Drug-free workplace.
1173.640 Employee.
1173.645 Federal agency or agency.
1173.650 Grant.
1173.655 Individual.
1173.660 Recipient.
1173.665 State.
1173.670 Suspension.
Authority: 41 U.S.C. 701, et seq.; 20 U.S.C. 959(a)(1).
0
5. Part 1173 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``NEH'' is added in its place
wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``NEH'' is added in its place
wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``NEH General Counsel''
is added in its place wherever it occurs.
0
d. ``[Agency head]'' is removed and ``NEH General Counsel'' is added in
its place wherever it occurs.
0
6. Section 1173.510(c) is further amended by removing ``[CFR citation
for the Federal agency's regulations implementing Executive Order 12549
and Executive Order 12689]'' and adding ``45 CFR Part 1169'' in its
place.
0
7. Section 1173.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``45 CFR Part 1174'' in its place.
-----------------------------------------------------------------------
NATIONAL FOUNDATION ON THE ARTS AND HUMANITIES
Institute of Museum and Library Services
45 CFR Parts 1185 and 1186
RIN 3137-AA14
FOR FURTHER INFORMATION CONTACT: Nancy E. Weiss, General Counsel,
Institute of Museum and Library Services, 1100 Pennsylvania Avenue,
NW., Suite 802, Washington, DC 20506; Telephone: (202) 606-5414; E-mail: nweiss@imls.gov.
List of Subjects
45 CFR Part 1185
Administrative practice and procedure, Debarment and suspension,
Government contracts, Grant programs, Loan programs, Reporting and
recordkeeping requirements.
45 CFR Part 1186
Administrative practice and procedure, Drug abuse, Grant programs,
Reporting and recordkeeping requirements.
Dated: June 6, 2003.
Robert S. Martin,
Director, Institute of Museum and Library Services.
0
For the reasons stated in the preamble, the Institute of Museum and
Library Services amends 45 CFR chapter XI, as follows:
0
1. Part 1185 is revised to read as follows:
PART 1185--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
Sec.
1185.25 How is this part organized?
1185.50 How is this part written?
1185.75 Do terms in this part have special meanings?
Subpart A--General
1185.100 What does this part do?
1185.105 Does this part apply to me?
1185.110 What is the purpose of the nonprocurement debarment and
suspension system?
1185.115 How does an exclusion restrict a person's involvement in
covered transactions?
1185.120 May we grant an exception to let an excluded person
participate in a covered transaction?
1185.125 Does an exclusion under the nonprocurement system affect a
person's eligibility for Federal procurement contracts?
1185.130 Does exclusion under the Federal procurement system affect
a person's eligibility to participate in nonprocurement
transactions?
1185.135 May the Institute of Museum and Library Services exclude a
person who is not currently participating in a nonprocurement
transaction?
1185.140 How do I know if a person is excluded?
1185.145 Does this part address persons who are disqualified, as
well as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
1185.200 What is a covered transaction?
1185.205 Why is it important to know if a particular transaction is
a covered transaction?
1185.210 Which nonprocurement transactions are covered transactions?
[[Page 66640]]
1185.215 Which nonprocurement transactions are not covered
transactions?
1185.220 Are any procurement contracts included as covered
transactions?
1185.225 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
1185.300 What must I do before I enter into a covered transaction
with another person at the next lower tier?
1185.305 May I enter into a covered transaction with an excluded or
disqualified person?
1185.310 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
1185.315 May I use the services of an excluded person as a principal
under a covered transaction?
1185.320 Must I verify that principals of my covered transactions
are eligible to participate?
1185.325 What happens if I do business with an excluded person in a
covered transaction?
1185.330 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Disclosing Information--Primary Tier Participants
1185.335 What information must I provide before entering into a
covered transaction with the Institute of Museum and Library
Services?
1185.340 If I disclose unfavorable information required under Sec.
1185.335, will I be prevented from participating in the transaction?
1185.345 What happens if I fail to disclose the information required
under Sec. 1185.335?
1185.350 What must I do if I learn of the information required under
Sec. 1185.335 after entering into a covered transaction with the
Institute of Museum and Library Services?
Disclosing Information--Lower Tier Participants
1185.355 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
1185.360 What happens if I fail to disclose the information required
under Sec. 1185.355?
1185.365 What must I do if I learn of information required under
Sec. 1185.355 after entering into a covered transaction with a
higher tier participant?
Subpart D--Responsibilities of Institute of Museum and Library Services
Officials Regarding Transactions
1185.400 May I enter into a transaction with an excluded or
disqualified person?
1185.405 May I enter into a covered transaction with a participant
if a principal of the transaction is excluded?
1185.410 May I approve a participant's use of the services of an
excluded person?
1185.415 What must I do if a Federal agency excludes the participant
or a principal after I enter into a covered transaction?
1185.420 May I approve a transaction with an excluded or
disqualified person at a lower tier?
1185.425 When do I check to see if a person is excluded or
disqualified?
1185.430 How do I check to see if a person is excluded or
disqualified?
1185.435 What must I require of a primary tier participant?
1185.440 What method do I use to communicate those requirements to
participants?
1185.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
1185.450 What action may I take if a primary tier participant fails
to disclose the information required under Sec. 1185.335?
1185.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 1185.355 to the next higher
tier?
Subpart E--Excluded Parties List System
1185.500 What is the purpose of the Excluded Parties List System
(EPLS)?
1185.505 Who uses the EPLS?
1185.510 Who maintains the EPLS?
1185.515 What specific information is in the EPLS?
1185.520 Who places the information into the EPLS?
1185.525 Whom do I ask if I have questions about a person in the
EPLS?
1185.530 Where can I find the EPLS?
Subpart F--General Principles Relating to Suspension and Debarment
Actions
1185.600 How do suspension and debarment actions start?
1185.605 How does suspension differ from debarment?
1185.610 What procedures does the Institute of Museum and Library
Services use in suspension and debarment actions?
1185.615 How does the Institute of Museum and Library Services
notify a person of a suspension and debarment action?
1185.620 Do Federal agencies coordinate suspension and debarment
actions?
1185.625 What is the scope of a suspension or debarment action?
1185.630 May the Institute of Museum and Library Services impute the
conduct of one person to another?
1185.635 May the Institute of Museum and Library Services settle a
debarment or suspension action?
1185.640 May a settlement include a voluntary exclusion?
1185.645 Do other Federal agencies know if the Institute of Museum
and Library Services agrees to a voluntary exclusion?
Subpart G--Suspension
1185.700 When may the suspending official issue a suspension?
1185.705 What does the suspending official consider in issuing a
suspension?
1185.710 When does a suspension take effect?
1185.715 What notice does the suspending official give me if I am
suspended?
1185.720 How may I contest a suspension?
1185.725 How much time do I have to contest a suspension?
1185.730 What information must I provide to the suspending official
if I contest a suspension?
1185.735 Under what conditions do I get an additional opportunity to
challenge the facts on which the suspension is based?
1185.740 Are suspension proceedings formal?
1185.745 How is fact-finding conducted?
1185.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
1185.755 When will I know whether the suspension is continued or
terminated?
1185.760 How long may my suspension last?
Subpart H--Debarment
1185.800 What are the causes for debarment?
1185.805 What notice does the debarring official give me if I am
proposed for debarment?
1185.810 When does a debarment take effect?
1185.815 How may I contest a proposed debarment?
1185.820 How much time do I have to contest a proposed debarment?
1185.825 What information must I provide to the debarring official
if I contest a proposed debarment?
1185.830 Under what conditions do I get an additional opportunity to
challenge the facts on which the proposed debarment is based?
1185.835 Are debarment proceedings formal?
1185.840 How is fact-finding conducted?
1185.845 What does the debarring official consider in deciding
whether to debar me?
1185.850 What is the standard of proof in a debarment action?
1185.855 Who has the burden of proof in a debarment action?
1185.860 What factors may influence the debarring official's
decision?
1185.865 How long may my debarment last?
1185.870 When do I know if the debarring official debars me?
1185.875 May I ask the debarring official to reconsider a decision
to debar me?
1185.880 What factors may influence the debarring official during
reconsideration?
1185.885 May the debarring official extend a debarment?
Subpart I--Definitions
1185.900 Adequate evidence.
1185.905 Affiliate.
1185.910 Agency.
1185.915 Agent or representative.
1185.920 Civil judgment.
1185.925 Conviction.
[[Page 66641]]
1185.930 Debarment.
1185.935 Debarring official.
1185.940 Disqualified.
1185.945 Excluded or exclusion.
1185.950 Excluded Parties List System.
1185.955 Indictment.
1185.960 Ineligible or ineligibility.
1185.965 Legal proceedings.
1185.970 Nonprocurement transaction.
1185.975 Notice.
1185.980 Participant.
1185.985 Person.
1185.990 Preponderance of the evidence.
1185.995 Principal.
1185.1000 Respondent.
1185.1005 State.
1185.1010 Suspending official.
1185.1015 Suspension.
1185.1020 Voluntary exclusion or voluntarily excluded.
Subpart J--[Reserved]
Appendix to Part 1185--Covered Transactions
Authority: 20 U.S.C. 9101 et seq.; Sec. 2455 Pub. L. 103-355,
108 Stat. 311867 (31 U.S.C. 6101 note); E.O. 12549 (3 CFR, 1986
Comp., p. 189); E.O. 12689 (3 CFR, 1989 Comp., p. 235).
0
2. Part 1185 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``Institute of Museum and Library
Services'' is added in its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``IMLS'' is added in its place
wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Director, Institute
of Museum and Library Services'' is added in its place wherever it
occurs.
0
3. Section 1185.440 is added to read as follows:
Sec. 1185.440 What method do I use to communicate those requirements
to participants?
To communicate the requirements, 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.
0
4. Part 1186 is added to read as set forth in instruction 2 at the end
of the common preamble.
PART 1186--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE
(FINANCIAL ASSISTANCE)
Subpart A--Purpose and Coverage
Sec.
1186.100 What does this part do?
1186.105 Does this part apply to me?
1186.110 Are any of my Federal assistance awards exempt from this
part?
1186.115 Does this part affect the Federal contracts that I receive?
Subpart B--Requirements for Recipients Other Than Individuals
1186.200 What must I do to comply with this part?
1186.205 What must I include in my drug-free workplace statement?
1186.210 To whom must I distribute my drug-free workplace statement?
1186.215 What must I include in my drug-free awareness program?
1186.220 By when must I publish my drug-free workplace statement and
establish my drug-free awareness program?
1186.225 What actions must I take concerning employees who are
convicted of drug violations in the workplace?
1186.230 How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
1186.300 What must I do to comply with this part if I am an
individual recipient?
1186.301 [Reserved]
Subpart D--Responsibilities of Institute of Museum and Library Services
Awarding Officials
1186.400 What are my responsibilities as an Institute of Museum and
Library Services awarding official?
Subpart E--Violations of This Part and Consequences
1186.500 How are violations of this part determined for recipients
other than individuals?
1186.505 How are violations of this part determined for recipients
who are individuals?
1186.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
1186.515 Are there any exceptions to those actions?
Subpart F--Definitions
1186.605 Award.
1186.610 Controlled substance.
1186.615 Conviction.
1186.620 Cooperative agreement.
1186.625 Criminal drug statute.
1186.630 Debarment.
1186.635 Drug-free workplace.
1186.640 Employee.
1186.645 Federal agency or agency.
1186.650 Grant.
1186.655 Individual.
1186.660 Recipient.
1186.665 State.
1186.670 Suspension.
Authority: 41 U.S.C. 701 et seq.
0
5. Part 1186 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``Institute of Museum and Library
Services'' is added in its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``IMLS'' is added in its place
wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Director, Institute
of Museum and Library Services or designee'' is added in its place
wherever it occurs.
0
d. ``[Agency head]'' is removed and ``Director, Institute of Museum and
Library Services'' is added in its place wherever it occurs.
0
6. Section 1186.510(c) is further amended by removing ``[CFR citation
for the Federal Agency's regulations implementing Executive Order 12549
and Executive Order 12689]'' and adding ``45 CFR Part 1185'' in its
place.
0
7. Section 1186.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``45 CFR Part 1183'' in its place.
-----------------------------------------------------------------------
CORPORATION FOR NATIONAL AND COMMUNITY SERVICE
45 CFR Parts 2542 and 2545
RIN 3045-AA28
FOR FURTHER INFORMATION CONTACT: Suzanne Dupr[eacute], Office of
General Counsel, Corporation for National and Community Service, Room
8200, 1201 New York Ave., NW., Washington, DC 20525, (202) 606-5000 ext. 396, e-mail: sdupre@cns.gov.
List of Subjects
45 CFR Part 2542
Administrative practice and procedure, Debarment and suspension,
Grant programs, Reporting and recordkeeping requirements.
45 CFR Part 2545
Administrative practice and procedure, Drug abuse, Grant programs,
Reporting and recordkeeping requirements.
Dated: June 27, 2003.
Michelle Guillermin,
Chief Financial Officer, Corporation for National and Community
Service.
0
Accordingly, as set forth in the common preamble, the Corporation for
National and Community Service amends 45 CFR chapter XXV, as follows:
0
1. Part 2542 is revised to read as set forth in instruction 1 at the
end of the common preamble.
PART 2542--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
Sec.
2542.25 How is this part organized?
2542.50 How is this part written?
2542.75 Do terms in this part have special meanings?
Subpart A--General
2542.100 What does this part do?
2542.105 Does this part apply to me?
[[Page 66642]]
2542.110 What is the purpose of the nonprocurement debarment and
suspension system?
2542.115 How does an exclusion restrict a person's involvement in
covered transactions?
2542.120 May we grant an exception to let an excluded person
participate in a covered transaction?
2542.125 Does an exclusion under the nonprocurement system affect a
person's eligibility for Federal procurement contracts?
2542.130 Does exclusion under the Federal procurement system affect
a person's eligibility to participate in nonprocurement
transactions?
2542.135 May the Corporation exclude a person who is not currently
participating in a nonprocurement transaction?
2542.140 How do I know if a person is excluded?
2542.145 Does this part address persons who are disqualified, as
well as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
2542.200 What is a covered transaction?
2542.205 Why is it important to know if a particular transaction is
a covered transaction?
2542.210 Which nonprocurement transactions are covered transactions?
2542.215 Which nonprocurement transactions are not covered
transactions?
2542.220 Are any procurement contracts included as covered
transactions?
2542.225 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
2542.300 What must I do before I enter into a covered transaction
with another person at the next lower tier?
2542.305 May I enter into a covered transaction with an excluded or
disqualified person?
2542.310 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
2542.315 May I use the services of an excluded person as a principal
under a covered transaction?
2542.320 Must I verify that principals of my covered transactions
are eligible to participate?
2542.325 What happens if I do business with an excluded person in a
covered transaction?
2542.330 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Disclosing Information--Primary Tier Participants
2542.335 What information must I provide before entering into a
covered transaction with the Corporation?
2542.340 If I disclose unfavorable information required under Sec.
2542.335, will I be prevented from participating in the transaction?
2542.345 What happens if I fail to disclose the information required
under Sec. 2542.335?
2542.350 What must I do if I learn of the information required under
Sec. 2542.335 after entering into a covered transaction with the
Corporation?
Disclosing Information--Lower Tier Participants
2542.355 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
2542.360 What happens if I fail to disclose the information required
under Sec. 2542.355?
2542.365 What must I do if I learn of information required under
Sec. 2542.355 after entering into a covered transaction with a
higher tier participant?
Subpart D--Responsibilities of Corporation Officials Regarding
Transactions
2542.400 May I enter into a transaction with an excluded or
disqualified person?
2542.405 May I enter into a covered transaction with a participant
if a principal of the transaction is excluded?
2542.410 May I approve a participant's use of the services of an
excluded person?
2542.415 What must I do if a Federal agency excludes the participant
or a principal after I enter into a covered transaction?
2542.420 May I approve a transaction with an excluded or
disqualified person at a lower tier?
2542.425 When do I check to see if a person is excluded or
disqualified?
2542.430 How do I check to see if a person is excluded or
disqualified?
2542.435 What must I require of a primary tier participant?
2542.440 What method do I use to communicate those requirements to
participants?
2542.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
2542.450 What action may I take if a primary tier participant fails
to disclose the information required under Sec. 2542.335?
2542.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 2542.355 to the next higher
tier?
Subpart E--Excluded Parties List System
2542.500 What is the purpose of the Excluded Parties List System
(EPLS)?
2542.505 Who uses the EPLS?
2542.510 Who maintains the EPLS?
2542.515 What specific information is in the EPLS?
2542.520 Who places the information into the EPLS?
2542.525 Whom do I ask if I have questions about a person in the
EPLS?
2542.530 Where can I find the EPLS?
Subpart F--General Principles Relating to Suspension and Debarment
Actions
2542.600 How do suspension and debarment actions start?
2542.605 How does suspension differ from debarment?
2542.610 What procedures does the Corporation use in suspension and
debarment actions?
2542.615 How does the Corporation notify a person of a suspension
and debarment action?
2542.620 Do Federal agencies coordinate suspension and debarment
actions?
2542.625 What is the scope of a suspension or debarment action?
2542.630 May the Corporation impute the conduct of one person to
another?
2542.635 May the Corporation settle a debarment or suspension
action?
2542.640 May a settlement include a voluntary exclusion?
2542.645 Do other Federal agencies know if the Corporation agrees to
a voluntary exclusion?
Subpart G--Suspension
2542.700 When may the suspending official issue a suspension?
2542.705 What does the suspending official consider in issuing a
suspension?
2542.710 When does a suspension take effect?
2542.715 What notice does the suspending official give me if I am
suspended?
2542.720 How may I contest a suspension?
2542.725 How much time do I have to contest a suspension?
2542.730 What information must I provide to the suspending official
if I contest a suspension?
2542.735 Under what conditions do I get an additional opportunity to
challenge the facts on which the suspension is based?
2542.740 Are suspension proceedings formal?
2542.745 How is fact-finding conducted?
2542.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
2542.755 When will I know whether the suspension is continued or
terminated?
2542.760 How long may my suspension last?
Subpart H--Debarment
2542.800 What are the causes for debarment?
2542.805 What notice does the debarring official give me if I am
proposed for debarment?
2542.810 When does a debarment take effect?
2542.815 How may I contest a proposed debarment?
2542.820 How much time do I have to contest a proposed debarment?
2542.825 What information must I provide to the debarring official
if I contest a proposed debarment?
2542.830 Under what conditions do I get an additional opportunity to
challenge the facts on which the proposed debarment is based?
2542.835 Are debarment proceedings formal?
[[Page 66643]]
2542.840 How is fact-finding conducted?
2542.845 What does the debarring official consider in deciding
whether to debar me?
2542.850 What is the standard of proof in a debarment action?
2542.855 Who has the burden of proof in a debarment action?
2542.860 What factors may influence the debarring official's
decision?
2542.865 How long may my debarment last?
2542.870 When do I know if the debarring official debars me?
2542.875 May I ask the debarring official to reconsider a decision
to debar me?
2542.880 What factors may influence the debarring official during
reconsideration?
2542.885 May the debarring official extend a debarment?
Subpart I--Definitions
2542.900 Adequate evidence.
2542.905 Affiliate.
2542.910 Agency.
2542.915 Agent or representative.
2542.920 Civil judgment.
2542.925 Conviction.
2542.930 Debarment.
2542.935 Debarring official.
2542.940 Disqualified.
2542.945 Excluded or exclusion.
2542.950 Excluded Parties List System.
2542.955 Indictment.
2542.960 Ineligible or ineligibility.
2542.965 Legal proceedings.
2542.970 Nonprocurement transaction.
2542.975 Notice.
2542.980 Participant.
2542.985 Person.
2542.990 Preponderance of the evidence.
2542.995 Principal.
2542.1000 Respondent.
2542.1005 State.
2542.1010 Suspending official.
2542.1015 Suspension.
2542.1020 Voluntary exclusion or voluntarily excluded.
Subpart J--[Reserved]
Appendix to Part 2542--Covered Transactions
Authority: 42 U.S.C. 12651(c); 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).
0
2. Part 2542 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``Corporation'' is added in its
place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``Corporation'' is added in
its place wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Corporation Chief
Executive Officer or designee'' is added in its place wherever it
occurs.
0
3. Section 2542.440 is added to read as follows:
Sec. 2542.440 What method do I use to communicate those requirements
to participants?
To communicate the requirements, 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.
0
4. Part 2545 is added to read as set forth in instruction 2 at the end
of the common preamble.
PART 2545--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE
(FINANCIAL ASSISTANCE)
Subpart A--Purpose and Coverage
Sec.
2545.100 What does this part do?
2545.105 Does this part apply to me?
2545.110 Are any of my Federal assistance awards exempt from this
part?
2545.115 Does this part affect the Federal contracts that I receive?
Subpart B--Requirements for Recipients Other Than Individuals
2545.200 What must I do to comply with this part?
2545.205 What must I include in my drug-free workplace statement?
2545.210 To whom must I distribute my drug-free workplace statement?
2545.215 What must I include in my drug-free awareness program?
2545.220 By when must I publish my drug-free workplace statement and
establish my drug-free awareness program?
2545.225 What actions must I take concerning employees who are
convicted of drug violations in the workplace?
2545.230 How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
2545.300 What must I do to comply with this part if I am an
individual recipient?
2545.301 [Reserved]
Subpart D--Responsibilities of Corporation Awarding Officials
2545.400 What are my responsibilities as a Corporation awarding
official?
Subpart E--Violations of This Part and Consequences
2545.500 How are violations of this part determined for recipients
other than individuals?
2545.505 How are violations of this part determined for recipients
who are individuals?
2545.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
2545.515 Are there any exceptions to those actions?
Subpart F--Definitions
2545.605 Award.
2545.610 Controlled substance.
2545.615 Conviction.
2545.620 Cooperative agreement.
2545.625 Criminal drug statute.
2545.630 Debarment.
2545.635 Drug-free workplace.
2545.640 Employee.
2545.645 Federal agency or agency.
2545.650 Grant.
2545.655 Individual.
2545.660 Recipient.
2545.665 State.
2545.670 Suspension.
Authority: 41 U.S.C. 701, et seq.; 42 U.S.C. 12644 and 12651(c).
0
5. Part 2545 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``Corporation'' is added in its
place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``Corporation'' is added in
its place wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Corporation Chief
Executive Officer or designee'' is added in its place wherever it
occurs.
0
d. ``[Agency head]'' is removed and ``Corporation Chief Executive
Officer'' is added in its place wherever it occurs.
0
6. Section 2545.510(c) is further amended by removing ``[CFR citation
for the Federal Agencies' regulations implementing Executive Order
12549 and Executive Order 12689]'' and adding ``45 CFR Part 2542'' in
its place.
0
7. Section 2545.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``45 CFR Part 2541'' in its place.
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
49 CFR Parts 29 and 32
RIN 2105-AD07
FOR FURTHER INFORMATION CONTACT: Ladd Hakes, Office of the Senior
Procurement Executive (M-62), 400 Seventh Street, SW., Washington, DC 20590, (202) 366-4268, e-mail: ladd.hakes@ost.dot.gov.
List of Subjects
49 CFR Part 29
Administrative practice and procedure, Government contracts, Grant
programs, Loan programs, Reporting and recordkeeping requirements.
49 CFR Part 32
Administrative practice and procedure, Drug abuse, Grant programs,
Reporting and recordkeeping requirements.
[[Page 66644]]
Dated: August 12, 2003.
Norman Y. Mineta,
Secretary of Transportation.
0
For the reasons stated in the common preamble, the Department of
Transportation amends 49 CFR subtitle A, as follows:
0
1. Part 29 is revised to read as set forth in instruction 1 at the end
of the common preamble.
PART 29--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
Sec.
29.25 How is this part organized?
29.50 How is this part written?
29.75 Do terms in this part have special meanings?
Subpart A--General
29.100 What does this part do?
29.105 Does this part apply to me?
29.110 What is the purpose of the nonprocurement debarment and
suspension system?
29.115 How does an exclusion restrict a person's involvement in
covered transactions?
29.120 May we grant an exception to let an excluded person
participate in a covered transaction?
29.125 Does an exclusion under the nonprocurement system affect a
person's eligibility for Federal procurement contracts?
29.130 Does exclusion under the Federal procurement system affect a
person's eligibility to participate in nonprocurement transactions?
29.135 May DOT exclude a person who is not currently participating
in a nonprocurement transaction?
29.140 How do I know if a person is excluded?
29.145 Does this part address persons who are disqualified, as well
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
29.200 What is a covered transaction?
29.205 Why is it important to know if a particular transaction is a
covered transaction?
29.210 Which nonprocurement transactions are covered transactions?
29.215 Which nonprocurement transactions are not covered
transactions?
29.220 Are any procurement contracts included as covered
transactions?
29.225 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
29.300 What must I do before I enter into a covered transaction with
another person at the next lower tier?
29.305 May I enter into a covered transaction with an excluded or
disqualified person?
29.310 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
29.315 May I use the services of an excluded person as a principal
under a covered transaction?
29.320 Must I verify that principals of my covered transactions are
eligible to participate?
29.325 What happens if I do business with an excluded person in a
covered transaction?
29.330 What requirements must I pass down to persons at lower tiers
with whom I intend to do business?
Disclosing Information--Primary Tier Participants
29.335 What information must I provide before entering into a
covered transaction with DOT?
29.340 If I disclose unfavorable information required under Sec.
29.335, will I be prevented from participating in the transaction?
29.345 What happens if I fail to disclose the information required
under Sec. 29.335?
29.350 What must I do if I learn of the information required under
Sec. 29.335 after entering into a covered transaction with DOT?
Disclosing Information--Lower Tier Participants
29.355 What information must I provide to a higher tier participant
before entering into a covered transaction with that participant?
29.360 What happens if I fail to disclose the information required
under Sec. 29.355?
29.365 What must I do if I learn of information required under Sec.
29.355 after entering into a covered transaction with a higher tier
participant?
Subpart D--Responsibilities of DOT Officials Regarding Transactions
29.400 May I enter into a transaction with an excluded or
disqualified person?
29.405 May I enter into a covered transaction with a participant if
a principal of the transaction is excluded?
29.410 May I approve a participant's use of the services of an
excluded person?
29.415 What must I do if a Federal agency excludes the participant
or a principal after I enter into a covered transaction?
29.420 May I approve a transaction with an excluded or disqualified
person at a lower tier?
29.425 When do I check to see if a person is excluded or
disqualified?
29.430 How do I check to see if a person is excluded or
disqualified?
29.435 What must I require of a primary tier participant?
29.440 What method do I use to communicate those requirements to
participants?
29.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
29.450 What action may I take if a primary tier participant fails to
disclose the information required under Sec. 29.335?
29.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 29.355 to the next higher tier?
Subpart E--Excluded Parties List System
29.500 What is the purpose of the Excluded Parties List System
(EPLS)?
29.505 Who uses the EPLS?
29.510 Who maintains the EPLS?
29.515 What specific information is in the EPLS?
29.520 Who places the information into the EPLS?
29.525 Whom do I ask if I have questions about a person in the EPLS?
29.530 Where can I find the EPLS?
Subpart F--General Principles Relating to Suspension and Debarment
Actions
29.600 How do suspension and debarment actions start?
29.605 How does suspension differ from debarment?
29.610 What procedures does DOT use in suspension and debarment
actions?
29.615 How does DOT notify a person of a suspension and debarment
action?
29.620 Do Federal agencies coordinate suspension and debarment
actions?
29.625 What is the scope of a suspension or debarment action?
29.630 May DOT impute the conduct of one person to another?
29.635 May DOT settle a debarment or suspension action?
29.640 May a settlement include a voluntary exclusion?
29.645 Do other Federal agencies know if DOT agrees to a voluntary
exclusion?
Subpart G--Suspension
29.700 When may the suspending official issue a suspension?
29.705 What does the suspending official consider in issuing a
suspension?
29.710 When does a suspension take effect?
29.715 What notice does the suspending official give me if I am
suspended?
29.720 How may I contest a suspension?
29.725 How much time do I have to contest a suspension?
29.730 What information must I provide to the suspending official if
I contest a suspension?
29.735 Under what conditions do I get an additional opportunity to
challenge the facts on which the suspension is based?
29.740 Are suspension proceedings formal?
29.745 How is fact-finding conducted?
29.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
29.755 When will I know whether the suspension is continued or
terminated?
29.760 How long may my suspension last?
Subpart H--Debarment
29.800 What are the causes for debarment?
29.805 What notice does the debarring official give me if I am
proposed for debarment?
29.810 When does a debarment take effect?
29.815 How may I contest a proposed debarment?
29.820 How much time do I have to contest a proposed debarment?
[[Page 66645]]
29.825 What information must I provide to the debarring official if
I contest a proposed debarment?
29.830 Under what conditions do I get an additional opportunity to
challenge the facts on which the proposed debarment is based?
29.835 Are debarment proceedings formal?
29.840 How is fact-finding conducted?
29.845 What does the debarring official consider in deciding whether
to debar me?
29.850 What is the standard of proof in a debarment action?
29.855 Who has the burden of proof in a debarment action?
29.860 What factors may influence the debarring official's decision?
29.865 How long may my debarment last?
29.870 When do I know if the debarring official debars me?
29.875 May I ask the debarring official to reconsider a decision to
debar me?
29.880 What factors may influence the debarring official during
reconsideration?
29.885 May the debarring official extend a debarment?
Subpart I--Definitions
29.900 Adequate evidence.
29.905 Affiliate.
29.910 Agency.
29.915 Agent or representative.
29.920 Civil judgment.
29.925 Conviction.
29.930 Debarment.
29.935 Debarring official.
29.940 Disqualified.
29.945 Excluded or exclusion.
29.950 Excluded Parties List System.
29.955 Indictment.
29.960 Ineligible or ineligibility.
29.965 Legal proceedings.
29.970 Nonprocurement transaction.
29.975 Notice.
29.980 Participant.
29.985 Person.
29.990 Preponderance of the evidence.
29.995 Principal.
29.1000 Respondent.
29.1005 State.
29.1010 Suspending official.
29.1015 Suspension.
29.1020 Voluntary exclusion or voluntarily excluded.
Subpart J--[Reserved]
Appendix to Part 29--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).
0
2. Part 29 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``Department of Transportation'' is
added in its place wherever it occurs.
0
b. [Agency adjective]'' is removed and ``DOT'' is added in its place
wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``debarring or
suspending official'' is added in its place wherever it occurs.
0
3. Section 29.120 is further amended by adding a paragraph (c) to read
as follows:
Sec. 29.120 May we grant an exception to an excluded person to
participate in a covered transaction?
* * * * *
(c) A debarring or suspending official may grant exceptions and
make written determinations under this section.
0
4. Section 29.440 is added to read as follows:
Sec. 29.440 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.
0
5. Section 29.520 is further amended by removing the period at the end
of paragraph (c)(4) and adding a semi-colon, and adding a paragraph (d)
to read as follows:
Sec. 29.520 Who places the information into the EPLS?
* * * * *
(d) The DOT official's Operating Administration code, as follows:
United States Coast Guard [DOT-USCG]; Federal Aviation Administration
[DOT-FAA]; Federal Highway Administration [DOT-FHWA]; Federal Motor
Carrier Safety Administration [DOT-FMCSA]; Federal Railway
Administration [DOT-FRA]; Federal Transit Administration [DOT-FTA];
National Highway Traffic Safety Administration [DOT-NHTSA]; Research
and Special Programs [DOT-RSPA]; Maritime Administration [DOT-MARAD];
and DOT (general) [DOT-OST].
0
6. Section 29.935 is further amended adding a paragraph (b) to read as
follows:
Sec. 29.935 Debarring official.
* * * * *
(b) For DOT ``debarring official'' means the designated head of a
DOT operating administration, who may delegate any of his or her
functions under this part and authorize successive delegations.
0
7. Section 29.1010 is further amended adding a paragraph (b) to read as
follows:
Sec. 29.1010 Suspending official.
* * * * *
(b) For DOT ``suspending official'' means the designated head of a
DOT operating administration, who may delegate any of his or her
functions under this part and authorize successive delegations.
0
8. Part 32 is added to read as set forth in instruction 2 at the end of
the common preamble.
PART 32--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE
(FINANCIAL ASSISTANCE)
Subpart A--Purpose and Coverage
Sec.
32.100 What does this part do?
32.105 Does this part apply to me?
32.110 Are any of my Federal assistance awards exempt from this
part?
32.115 Does this part affect the Federal contracts that I receive?
Subpart B--Requirements for Recipients Other Than Individuals
32.200 What must I do to comply with this part?
32.205 What must I include in my drug-free workplace statement?
32.210 To whom must I distribute my drug-free workplace statement?
32.215 What must I include in my drug-free awareness program?
32.220 By when must I publish my drug-free workplace statement and
establish my drug-free awareness program?
32.225 What actions must I take concerning employees who are
convicted of drug violations in the workplace?
32.230 How and when must I identify workplaces?
Subpart C--Requirements for Recipients Who Are Individuals
32.300 What must I do to comply with this part if I am an individual
recipient?
32.301 [Reserved]
Subpart D--Responsibilities of DOT Awarding Officials
32.400 What are my responsibilities as a DOT awarding official?
Subpart E--Violations of This Part and Consequences
32.500 How are violations of this part determined for recipients
other than individuals?
32.505 How are violations of this part determined for recipients who
are individuals?
32.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
32.515 Are there any exceptions to those actions?
Subpart F--Definitions
32.605 Award.
32.610 Controlled substance.
32.615 Conviction.
32.620 Cooperative agreement.
32.625 Criminal drug statute.
32.630 Debarment.
32.635 Drug-free workplace.
32.640 Employee.
32.645 Federal agency or agency.
[[Page 66646]]
32.650 Grant.
32.655 Individual.
32.660 Recipient.
32.665 State.
32.670 Suspension.
Authority: 41 U.S.C. 701 et seq.
0
9. Part 32 is further amended as set forth below.
0
a. ``[Agency noun]'' is removed and ``Department of Transportation'' is
added in its place wherever it occurs.
0
b. ``[Agency adjective]'' is removed and ``DOT'' is added in its place
wherever it occurs.
0
c. ``[Agency head or designee]'' is removed and ``Secretary of
Transportation'' is added in its place wherever it occurs.
0
d. ``[Agency head]'' is removed and ``Secretary of Transportation'' is
added in its place wherever it occurs.
0
10. Section 32.510 (c) is further amended by removing ``CFR citation
for the Federal Agency's regulations implementing Executive Order 12549
and Executive Order 12689'' and adding ``49 CFR Part 29'' in its place.
0
11. Section 32.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``49 CFR Part 18'' in its place.
[FR Doc. 03-28454 Filed 11-21-03; 8:45 am]
BILLING CODE 6325-52-P