E8-10770. Change in Investigatory Procedures

AGENCY:

Committee for Purchase From People Who Are Blind or Severely Disabled.

ACTION:

Final rule.

SUMMARY:

The Committee for Purchase From People Who Are Blind or Severely Disabled (the Committee) has deliberated and voted to clarify the Committee's role regarding oversight of nonprofit agencies within the AbilityOne Program. Previously, the Committee had authorized the designated Central Nonprofit Agencies (CNAs) to perform some oversight responsibilities of AbilityOne participating nonprofit agencies. However, through this action, the Committee assumes sole responsibility for official Program oversight including inspecting and investigating alleged violations by the nonprofit agencies. This action is taken to address a General Accountability Office (GAO) report recommendation aimed at improving oversight of the AbilityOne Program.

DATES:

Effective Date: May 15, 2008.

ADDRESSES:

The Committee office is located at Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, VA 22202-3259.

FOR MORE INFORMATION CONTACT:

Dennis Lockard, General Counsel, by telephone [phone], or by facsimile at [phone], or by mail at the Committee for Purchase From People Who Are Blind or Severely Disabled, 1421 Jefferson Davis Hwy, Suite 10800, Arlington, VA 22202-3259.

SUPPLEMENTARY INFORMATION:

The Committee's statutory authority includes making rules and regulations necessary to carry out the Javits-Wagner-O'Day (JWOD) Act (41 U.S.C. 46-48c). The Committee implements the purpose of the Act to provide employment opportunities for people who are blind or have other severe disabilities through the manufacture and delivery of products and services to the Federal Government. The Committee has designated two Central Nonprofit Agencies (CNAs), National Industries for the Blind (NIB) and NISH (serving people with a wide range of disabilities) to assist in the program's implementation and to represent their respective qualified nonprofit agencies nationwide. These qualified nonprofit agencies employ people who are blind or severely disabled to produce the products and provide the services the Committee determines are suitable for procurement by the Government.

In January of 2007, GAO released a Report to Congressional Requesters entitled “Federal Disability Assistance: Stronger Federal Oversight Could Help Assure Multiple Programs' Accountability” (GAO-07-236). In response to the request from Congress, GAO reviewed four federal employment related programs aimed at helping people with disabilities obtain jobs. The AbilityOne was one of the four programs reviewed by GAO. The GAO's tasks, specific to the Committee, were to assess the extent to which performance goals and measures were established and to assess the extent of the Committee's oversight procedures over the CNAs.

In performing its function for Congressional Requesters, the GAO found that the Committee delegates most of its oversight responsibilities to the two CNAs. Although the Committee retained some authority to investigate the nonprofit agencies for possible violations of the Committee's regulations, the majority of oversight of the qualified nonprofit agencies was done by the CNAs who also represent the interests of the nonprofit agencies to the Committee and other Federal agencies. The GAO concluded that this arrangement, as well as the fact that the CNAs received a percentage of the total value of contracts from the affiliated nonprofit agencies, raised questions about the CNAs independence and gave the CNAs little incentive to identify regulatory violations because that might result in the nonprofit agencies losing contracts and thus losing their ability to pay the CNAs a fee.

This interpretive rule is a Committee action to address GAO's concerns about the Committee's oversight procedures of the CNAs.

Executive Order 12866: This agency has made the determination that this rule is not significant for the purposes of EO 12866.

Administrative Procedure Act: The Committee finds under 5 U.S.C. 553(b)(3)(A) that the statute does not apply to interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice. This final rule simply changes the investigatory authority from the Central Nonprofit Agencies to the Committee for Purchase From People Who Are Blind or Severely Disabled. Further, pursuant to 5 U.S.C. 553(b)(3)(A), this rule of agency organization, procedure and practice is not subject to the requirement to provide prior notice and an opportunity for public comment. The Committee also finds that the 30-day delay in effectiveness, required under 5 U.S.C. 553(d), is inapplicable because this rule is not a substantive rule.

Regulatory Flexibility Act: Because notice and opportunity for comment are not required pursuant to 5 U.S.C. 553 or any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are inapplicable. Therefore, a regulatory flexibility analysis is not required and has not been prepared.

List of Subjects

41 CFR Part 51-3

• Government procurement
• Individuals with disabilities

41 CFR Part 51-4

• Government procurement
• Individuals with disabilities
• Reporting and recordkeeping requirements

PART 51-3—CENTRAL NONPROFIT AGENCIES

1. The authority citation for part 51-3 continues to read as follows:

Authority: 41 U.S.C. 46-48c.

2. In § 51-3.2 revise paragraph (j) to read as follows:

§ 51-3.2

Responsibilities under the AbilityOne Program.

* * * * *

(j) Monitor and assist its nonprofit agencies to meet the statutory and regulatory requirements to fully participate in the program. Conduct assistance visits with its nonprofits as necessary and provide the Committee with the results and recommendations of such visits.

* * * * *

PART 51-4—NONPROFIT AGENCIES

3. The authority citation for part 51-4 continues to read as follows:

Authority: 41 U.S.C. 46-48c.

§ 51-4.3

[Amended]

4. In § 51-4.3 paragraph (b)(4), remove the word “inspection” and add in its place the word “review”.

§ 51-4.5

[Amended]

5. Section 51-4.5(a) is amended by:

A. Removing the words “appropriate central nonprofit agency” and adding in their place the word “Committee”; and

B. Removing the second and third sentences.

Dated: May 9, 2008.

Earnestine Ballard,

Executive Director.