E7-986. National Archives and Records Administration Implementation of OMB Guidance on Nonprocurement Debarment and Suspension

AGENCY:

National Archives and Records Administration (NARA).

ACTION:

Final rule; request for comment.

SUMMARY:

The National Archives and Records Administration is establishing a new Part 2600 in 2 CFR that adopts the Office of Management and Budget's (OMB's) guidance in 2 CFR Part 180, as supplemented by this new part, as NARA's policies and procedures for nonprocurement and debarment and suspension. NARA is removing 36 CFR part 1209, the part containing NARA's implementation of the government-wide common rule on nonprocurement debarment and suspension. The new part in 2 CFR part 2600 will serve the same purpose as the common rule in a simpler way. This regulatory action is an administrative simplification that would make no substantive change in NARA's policy or procedures for nonprocurement debarment and suspension.

DATES:

This final rule is effective February 28, 2007. Comments on this final rule must be received by February 22, 2007 at the address shown below. NARA intends to publish any changes to the rule resulting from this comment period before the February 28, 2007, effective date.

ADDRESSES:

NARA invites interested persons to submit comments on this final rule. Please include “Attn: RIN 3095-AB56” and your name and mailing address in your comments. Comments may be submitted by any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Fax: Submit comments by facsimile transmission to 301-837-0319.
• Mail: Send comments to Regulations Comments Desk (NPOL), Room 4100, Policy and Planning Staff, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001.
• Hand Delivery or Courier: Deliver comments to 8601 Adelphi Road, College Park, MD.

FOR FURTHER INFORMATION CONTACT:

Laura McCarthy at 301-837-3023 or fax number 301-837-0319.

SUPPLEMENTARY INFORMATION:

On August 31, 2005, the Office of Management and Budget (OMB) issued interim final guidance for government-wide procurement suspension and debarment (70 FR 51863). This guidance, located in 2 CFR Part 180, is substantively the same as the common rule, but is published in a form that each agency can adopt, thus eliminating the need for each agency to publish its separate version of the same rule. It also facilitates the ability to update government-side requirements without each agency having to re-promulgate its own rules.

NARA's current regulation on nonprocurement suspension and debarment is found in 36 CFR Part 1209. In accordance with OMB's guidance, this final rule places NARA's nonprocurement debarment and suspension regulations in subtitle B of title 2 of the CFR, along with other agencies' nonprocurement debarment and suspension. The new 2 CFR part 2600 adopts the OMB guidelines with the same additions and clarifications that NARA made to the government-wide “common rule” on this subject issued November 26, 2003 (68 FR 66544, 66616). The substance of NARA's nonprocurement debarment and suspension regulations is unchanged.

In light of the new part 2600, NARA is removing 36 CFR 1209, which is the current location for NARA's nonprocurement debarment and suspension regulations. NARA is also amending the section in 36 CFR part 1206 that provides the regulatory requirement provisions for the National Historical Publications and Records Commission (NHPRC) to reflect the new CFR location of these nonprocurement suspension and debarment requirements.

Because the regulatory amendments to 2 CFR part 2600 are an administrative simplification and there are no substantive changes in NARA's policy or procedures for nonprocurement debarment and suspension, NARA is publishing the revisions as a final rule with request for comments and not as a proposed rule. If NARA receives comments that result in any changes to the proposed final rule, the changes will be published before the February 28, 2007, effective date.

Executive Order 12866

OMB has determined this rule to be a nonsignificant regulatory action for the purposes of Executive Order 12866 and it has not been reviewed by the Office of Management and Budget.

Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b))

This final regulatory action will not have a significant adverse impact on a substantial number of small entities.

Unfunded Mandates of 1995 (Sec. 202, Pub. L. 104-4)

This regulatory action does not contain a Federal mandate that will result in the expenditure by State, local, and tribal governments, in aggregate, or by the private sector of $100 million or more in any one year.

Paperwork Reduction Act of 1995 (44 U.S.C., Chapter 35)

This regulatory action will not impose any additional reporting or recordkeeping requirements under the Paperwork Reduction Act.

Federalism (Executive Order 13132)

This regulatory action does not have Federalism implications, as set forth in Executive Order 13132. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

List of Subjects

2 CFR Part 2600

• Administrative practice and procedures
• Debarment and suspension
• Grant programs
• Reporting and recordkeeping requirements

36 CFR Part 1206

• Archives and records
• Grant programs—education
• Reporting and recordkeeping requirements

36 CFR Part 1209

• Administrative practice and procedure
• Grant programs
• Loan programs
• Reporting and recordkeeping requirements

Accordingly, under the authority of 44 U.S.C. 2104(a), NARA amends the Code of Federal Regulations, Title 2, Subtitle B, and Title 36 parts 1206 and 1209, as follows:

Title 2—Grants and Agreements

1. Add Chapter 26, consisting of part 2600, to Subtitle B to read as follows:

Chapter 26—National Archives and Records Administration

PART 2600—NONPROCUREMENT DEBARMENT AND SUSPENSION

2600.10

What does this part do?

2600.20

Does this part apply to me?

2600.30

What policies and procedures must I follow?

Subpart A—General

2600.137

Who in NARA may grant an exception to let an excluded person participate in a covered transaction?

Subpart B—Covered Transactions

2600.220

What contracts and subcontracts, in addition to those listed in 2 CFR 180.220, are covered transactions?

Subpart C—Responsibilities of Participants Regarding Transactions

2600.332

What methods must I use to pass requirements down to participants at lower tiers with whom I intend to do business?

Subpart D—Responsibilities of Federal Agency Officials Regarding Transactions

2600.437

What method do I use to communicate to a participant the requirements described in the OMB guidance at 2 CFR 180.435?

Subparts E-J—[Reserved]

Authority: Sec. 2455, Pub. L. 103-355, 108 Stat. 3327; E.O. 12549, 3 CFR, 1986 Comp., p. 189; E.O. 12689, 3 CFR, 1989 Comp., p. 235; 44 U.S.C. 2104(a).

§ 2600.10

What does this part do?

This part adopts the Office of Management and Budget (OMB) guidance in Subparts A through I of 2 CFR part 180, as supplemented by this part, as NARA's policies and procedures for nonprocurement debarment and suspension. It thereby gives regulatory effect for NARA to the OMB guidance as supplemented by this part. This part satisfies the requirements in section 3 of Executive Order 12549, “Debarment and Suspension” (3 CFR 1986 Comp., p. 189), Executive Order 12689, “Debarment and Suspension” (3 CFR 1989 Comp., p. 235) and 31 U.S.C. 6101 note (Section 2455, Pub. L. 103-355, 108 Stat. 3327).

§ 2600.20

Does this part apply to me?

This part and, through this part, pertinent portions of the OMB guidance in Subparts A through I of 2 CFR part 180 (see table at 2 CFR 180.100(b)) apply to you if you are a—

(a) Participant or principal in a “covered transaction” (see Subpart B of 2 CFR part 180 and the definition of “nonprocurement transaction” at 2 CFR 180.970.

(b) Respondent in a NARA suspension or debarment action.

(c) NARA debarment or suspension official;

(d) NARA grants officer, agreements officer, or other official authorized to enter into any type of nonprocurement transaction that is a covered transaction;

§ 2600.30

What policies and procedures must I follow?

NARA policies and procedures that you must follow are the policies and procedures specified in each applicable section of the OMB guidance in Subparts A through I of 2 CFR part 180, as that section is supplemented by the section in this part with the same section number. The contracts that are covered transactions, for example, are specified by section 220 of the OMB guidance (i.e., 2 CFR 180.220) as supplemented by section 220 in this part (i.e., § 2600.220). For any section of OMB guidance in Subparts A through I of 2 CFR 180 that has no corresponding section in this part, NARA policies and procedures are those in the OMB guidance.

Subpart A—General

§ 2600.137

Who in NARA may grant an exception to let an excluded person participate in a covered transaction?

The Archivist of the United States or designee may grant an exception permitting an excluded person to participate in a particular covered transaction as provided in the OMB guidance at 2 CFR 180.135.

Subpart B—Covered Transactions

§ 2600.220

What contracts and subcontracts, in addition to those listed in 2 CFR 180.220, are covered transactions?

Although the OMB guidance at 2 CFR 180.220(c) allows a Federal agency to do so (also see optional lower tier coverage in the figure in the Appendix to 2 CFR part 180), NARA does not extend coverage of nonprocurement suspension and debarment requirements beyond first-tier procurement contracts under a covered nonprocurement transaction.

Subpart C—Responsibilities of Participants Regarding Transactions

§ 2600.332

What methods must I use to pass requirements down to participants at lower tiers with whom I intend to do business?

You as a participant must include a term or condition in lower-tier transactions requiring lower-tier participants to comply with Subpart C of the OMB guidance in 2 CFR part 180.

Subpart D—Responsibilities of Federal Agency Officials Regarding Transactions

§ 2600.437

What method do I use to communicate to a participant the requirements described in the OMB guidance at 2 CFR 180.435?

To communicate to a participant the requirements described in 2 CFR 180.435 of the OMB guidance, you must include a term or condition in the transaction that requires the participant's compliance with subpart C of 2 CFR part 180 and requires the participant to include a similar term or condition in lower-tier covered transactions.

Subparts E-J—[Reserved]

Title 36—Parks, Forests, and Public Property

Chapter XII—National Archives and Records Administration

PART 1206—[AMENDED]

2. The authority citation for part 1206 continues to read as follows:

Authority: 44 U.S.C. 2104(a); 44 U.S.C. 2501-2506.

§ 1206.72

[Amended]

3. Amend § 1206.72 by revising paragraph (a) to read as follows:

§ 1206.72

Where can I find the regulatory requirements that apply to NHPRC grants?

(a) In addition to this part 1206, NARA has issued other regulations that apply to NHPRC grants in 36 CFR ch. XII, subchapter A and 2 CFR Part 2600. Additionally you must comply with 2 CFR Part 180. NARA also applies the principles and standards in the following Office of Management and Budget (OMB) Circulars for NHPRC grants:

(1) OMB Circular A-21, “Cost Principles for Educational Institutions”;

(2) OMB Circular A-87, “Cost Principles for State, Local and Indian Tribal Governments”;

(3) OMB Circular A-122, “Cost Principles for Nonprofit Organizations”; and

(4) OMB Circular A-133, “Audits of States, Local Governments, and Nonprofit Organizations.”

* * * * *

PART 1209—[REMOVED]

4. Under 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) part 1209 is removed.

Dated: January 18, 2007.

Allen Weinstein,

Archivist of the United States.