E7-3548. Office of the General Counsel; National Endowment for the Humanities Implementation of OMB Guidance on Nonprocurement Debarment and Suspension

AGENCY:

National Endowment for the Humanities.

ACTION:

Direct final rule.

SUMMARY:

The National Endowment for the Humanities (NEH) implements Office of Management and Budget (OMB) guidance on nonprocurement suspension and debarment, issued on August 31, 2005 [70 FR 51863], by adopting the guidelines in a new part in title 2 of the CFR, the Government-wide title recently established for OMB guidance on grants and agreements, and removing 45 CFR part 1169, the part containing the NEH implementation of the government-wide common rule on nonprocurement debarment and suspension. This regulatory action would make no substantive change in NEH policy or procedures for nonprocurement debarment and suspension.

DATES:

The effective date for this final rule is April 2, 2007.

FOR FURTHER INFORMATION CONTACT:

National Endowment for the Humanities, ATTN: Office of the General Counsel, 1100 Pennsylvania Avenue, NW., Room 529, Washington, DC 20506; or Heather Gottry, [phone]. Hearing-impaired individuals are advised that information on this matter may be obtained by contacting the Endowment's TDD terminal on [phone].

SUPPLEMENTARY INFORMATION:

This final rule implements the OMB guidance and does not make any changes in current policies and procedures. NEH is not soliciting public comment on this rule and is instead issuing this rule as a direct final rule. Under 5 U.S.C. 553(b)(3)(A) agencies are not required to undergo notice and comment procedure for “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” Because this rule adopts OMB's published guidelines, which followed notice and comment procedures, and collocates NEH's specific nonprocurement suspension and debarment rules to title 2 of the CFR, we believe that it falls under the exception cited above.

Executive Order 12866

This rule is not significant because the replacement of the common rule with OMB guidance and a brief NEH adopting regulation does not make any changes in current policies and procedures.

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

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

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

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

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

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

Federalism (Executive Order 13132)

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

List of Subjects in 2 CFR Part 3369

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

Accordingly, under the authority of 20 U.S.C. 959(a)(1), NEH amends title 2, subtitle B, and title 45, chapter 1169, of the Code of Federal Regulations as follows:

Title 2—Grants and Agreements

1. Add Chapter 33 to Subtitle B to read as follows:

CHAPTER 33—NATIONAL ENDOWMENT FOR THE HUMANITIES

PART 3369—NONPROCUREMENT DEBARMENT AND SUSPENSION

3369.10

What does this part do?

3369.20

Does this part apply to me?

3369.30

What policies and procedures must I follow?

Subpart A—General

3369.137

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

Subpart B—Covered Transactions

3369.220

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

Subpart C—Responsibilities of Participants Regarding Transactions

3369.332

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

3369.437

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

Subpart E-I—[Reserved]

Authority: 20 U.S.C. 959(a)(1); 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.

§ 3369.10

What does this part do?

This part adopts the Office of Management and Budget (OMB) guidance in Subparts A through I of 2 CFR part 180, as supplemented by this part, as the National Endowment for the Humanities (NEH) policies and procedures for nonprocurement debarment and suspension. It thereby gives regulatory effect for the NEH 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, Public Law 103-355, 108 Stat. 3327).

§ 3369.20

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 NEH suspension or debarment action.

(c) NEH debarment or suspension official;

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

§ 3369.30

What policies and procedures must I follow?

The NEH 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., § 3369.220). For any section of OMB guidance in Subparts A through I of 2 CFR 180 that has no corresponding section in this part, NEH policies and procedures are those in the OMB guidance.

Subpart A—General

§ 3369.137

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

The NEH Chairman has the authority to grant an exception to let an excluded person participate in a covered transaction, as provided in the OMB guidance at 2 CFR 180.135.

Subpart B—Covered Transactions

§ 3369.220

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), NEH 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

§ 3369.332

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, as supplemented by this subpart.

Subpart D—Responsibilities of Federal Agency Officials Regarding Transactions

§ 3369.437

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, as supplemented by Subpart C of this part, and requires the participant to include a similar term or condition in lower-tier covered transactions.

Subpart E-I—[Reserved]

Title 45—Public Welfare

CHAPTER XI—NATIONAL ENDOWMENT FOR THE HUMANITIES

PART 1169—[REMOVED]

2. Under 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) part 1169 is removed.

Heather Gottry,

Acting General Counsel.