[Federal Register: January 23, 2002 (Volume 67, Number 15)]
[Proposed Rules]
[Page 3315-3364]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23ja02-25]
[[pp. 3315-3364]] Governmentwide Debarment and Suspension (Nonprocurement) and
Governmentwide Requirements for Drug-Free Workplace (Grants)
[[Continued from page 3314]]
[[Page 3315]]
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 Is a record made of fact-finding proceedings?
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 Indictment.
310.955 Ineligible or ineligibility.
310.960 Legal proceedings.
310.965 List of Parties Excluded or Disqualified From Federal
Procurement and Nonprocurement Programs.
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.
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).
PART 310--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
2. Part 310 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``Peace Corps'' is added in its
place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``Peace Corps'' is added
in its place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``Peace Corps
Director or designee'' is added in its place wherever it occurs.
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.
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.
5. Part 312 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``Peace Corps'' is added in its
place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``Peace Corps'' is added
in its place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``Peace Corps
Director or designee'' is added in its place wherever it occurs.
d. ``[Agency head]'' is removed and ``Peace Corps Director'' is
added in its place wherever it occurs.
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.
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
FOR FURTHER INFORMATION CONTACT: Carolyn Karr, General Counsel, Inter-
[[Page 3316]]
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.
Approved:
David Valenzuela,
President, Inter-American Foundation.
For the reasons stated in the common preamble, the Inter-American
Foundation proposes to amend 22 CFR chapter X, as follows:
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 to participate in Federal procurement
contracts?
1006.130 Does an 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?
1006.145 Does this part cover 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 that I may participate in
is a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
1006.300 May I enter into a covered transaction with an excluded
or disqualified persons?
1006.305 Must I do if a Federal agency excludes a person with whom
I am already doing business in a covered transaction?
1006.310 May I use the services of an excluded person under a
covered transaction?
1006.315 I verify that principals of my covered transactions are
eligible to participate?
1006.320 What happens if I do business with an excluded person in
a covered transaction?
1006.325 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Disclosing Information--Primary Tier Participants
1006.330 What information must I provide before entering into a
covered transaction with the Inter-American Foundation?
1006.335 If I disclose unfavorable information required under
Sec. 1006.330 will I be prevented from entering into the
transaction?
1006.340 What happens if I fail to disclose the information
required under Sec. 1006.330?
1006.345 What must I do if I learn of the information required
under Sec. 1006.330 after entering into a covered transaction with
the Inter-American Foundation?
Disclosing Information--Lower Tier Participants
1006.350 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
1006.355 What happens if I fail to disclose the information
required under Sec. 1006.350?
1006.360 What must I do if I learn of information required under
Sec. 1006.350 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. 1006.330?
1006.455 What may I do if a lower tier participant fails to
disclose the information required under Sec. 1006.350 to the next
higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From
Federal Procurement and Nonprocurement Programs
1006.500 What is the purpose of the List?
1006.505 Who uses the List?
1006.510 Who maintains the List?
1006.515 What specific information is on the List?
1006.520 Who gives the GSA the information that it puts on the
List?
1006.525 Whom do I ask if I have questions about a person on the
List?
1006.530 Where can I get the List?
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
suspension and debarment actions?
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?
[[Page 3317]]
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 Is a record made of fact-finding proceedings?
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 Is a record made of fact-finding proceedings?
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?
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 Indictment.
1006.955 Ineligible or ineligibility.
1006.960 Legal proceedings.
1006.965 List of Parties Excluded or Disqualified From Federal
Procurement and Nonprocurement Programs.
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.
2. Part 1006 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``Inter-American Foundation''
is added in its place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``Inter-American
Foundation'' is added in its place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``Inter-American
Foundation Debarring Official'' is added in its place wherever it
occurs.
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.
5. 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.
5. Part 1008 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``Inter-American Foundation''
is added in its place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``Inter-American
Foundation'' is added in its place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``Inter-American
[[Page 3318]]
Foundation President or designee'' is added in its place wherever it
occurs.
d. ``[Agency head]'' is removed and ``Inter-American Foundation''
is added in its place wherever it occurs.
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.
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 Number 3005-ZA00
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.
Approved:
Doris Martin,
General Counsel.
For the reasons stated in the preamble, the African Development
Foundation proposes to amend 22 CFR chapter XV as follows:
1. Part 1508 is revised to read as set forth in instruction 1 at
the end of the common preamble.
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 to participate in Federal procurement
contracts?
1508.130 Does an 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 cover 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 May I enter into a covered transaction with an excluded or
disqualified person?
1508.305 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
1508.310 May I use the services of an excluded person under a
covered transaction?
1508.315 Must I verify that principals of my covered transactions
are eligible to participate?
1508.320 What happens if I do business with an excluded person in a
covered transaction?
1508.325 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Disclosing Information--Primary Tier Participants
1508.330 What information must I provide before entering into a
covered transaction with the African Development Foundation?
1508.335 If I disclose unfavorable information required under
Sec. 1508.330 will I be prevented from entering into the
transaction?
1508.340 What happens if I fail to disclose the information
required under Sec. 1508.330?
1508.345 What must I do if I learn of the information required
under Sec. 1508.330 after entering into a covered transaction with
the African Development Foundation?
Disclosing Information--Lower Tier Participants
1508.350 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
1508.355 What happens if I fail to disclose the information
required under Sec. 1508.350?
1508.360 What must I do if I learn of information required under
Sec. 1508.350 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. 1508.330?
1508.455 What may I do if a lower tier participant fails to
disclose the information required under Sec. 1508.350 to the next
higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From
Federal Procurement and Nonprocurement Programs
1508.500 What is the purpose of the List?
1508.505 Who uses the List?
1508.510 Who maintains the List?
1508.515 What specific information is on the List?
1508.520 Who gives the GSA the information that it puts on the
List?
1508.525 Whom do I ask if I have questions about a person on the
List?
1508.530 Where can I get the List?
[[Page 3319]]
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 suspension and debarment actions?
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 Is a record made of fact-finding proceedings?
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?
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 Is a record made of fact-finding proceedings?
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 Indictment.
1508.955 Ineligible or ineligibility.
1508.960 Legal proceedings.
1508.965 List of Parties Excluded or Disqualified From Federal
Procurement and Nonprocurement Programs.
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.
2. Part 1508 is further amended as set forth below:
a. ``[Agency noun]'' is removed and ``African Development
Foundation'' is added in its place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``ADF'' is added in its
place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``ADF President''
is added in its place wherever it occurs.
3. 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.
[[Page 3320]]
1509.670 Suspension.
Authority: 41 U.S.C. 701 et seq.
4. Part 1509 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``African Development
Foundation'' is added in its place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``ADF'' is added in its
place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``ADF President''
is added in its place wherever it occurs.
d. ``[Agency head]'' is removed and ``ADF President'' is added in
its place wherever it occurs.
5. 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.
6. 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 LABOR
29 CFR Part 94 and 98
RIN 1291-AA33
FOR FURTHER INFORMATION CONTACT: Phyllis McMeekin, Director Division of
Departmental Procurement Policy, N5425 Washington, DC 20210, (202) 219-
9174, email McMeekin-Phyllis@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: June 15, 2001.
Elaine L. Chao,
Secretary of Labor.
For the reasons stated in the common preamble, the Department of
Labor proposes to amend 29 CFR subtitle A as follows:
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.
2. Part 94 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``Department of Labor'' is
added in its place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``Department of Labor'' is
added in its place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``Secretary of
Labor or designee'' is added in its place wherever it occurs.
d. ``[Agency head]'' is removed and ``Secretary of Labor or
designee'' is added in its place wherever it occurs.
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.
4. Section 98.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``29 CFR part 97'' in its place.
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 to participate in Federal procurement
contracts?
98.130 Does an 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 cover 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?
[[Page 3321]]
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 that I may participate in is
a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
98.300 May I enter into a covered transaction with an excluded or
disqualified person?
98.305 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
98.310 May I use the services of an excluded person under a covered
transaction?
98.315 Must I verify that principals of my covered transactions are
eligible to participate?
98.320 What happens if I do business with an excluded person in a
covered transaction?
98.325 What requirements must I pass down to persons at lower tiers
with whom I intend to do business?
Disclosing Information--Primary Tier Participants
98.330 What information must I provide before entering into a
covered transaction with the Department of Labor?
98.335 If I disclose unfavorable information required under
Sec. 98.330 will I be prevented from entering into the transaction?
98.340 What happens if I fail to disclose the information required
under Sec. 98.330?
98.345 What must I do if I learn of the information required under
Sec. 98.330 after entering into a covered transaction with the U.S.
Department of Labor?
Disclosing information--Lower Tier Participants
98.350 What information must I provide to a higher tier participant
before entering into a covered transaction with that participant?
98.355 What happens if I fail to disclose the information required
under Sec. 98.350?
98.360 What must I do if I learn of information required under
Sec. 98.350 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. 98.330?
98.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 98.350 to the next higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From
Federal Procurement and Nonprocurement Programs
98.500 What is the purpose of the List?
98.505 Who uses the List?
98.510 Who maintains the List?
98.515 What specific information is on the List?
98.520 Who gives the GSA the information that it puts on the List?
98.525 Whom do I ask if I have questions about a person on the
List?
98.530 Where can I get the List?
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
suspension and debarment actions?
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 Is a record made of fact-finding proceedings?
98.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
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 Is a record made of fact-finding proceedings?
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 Indictment.
98.955 Ineligible or ineligibility.
98.960 Legal proceedings.
98.965 List of Parties Excluded or Disqualified From Federal
Procurement and Nonprocurement Programs.
98.970 Nonprocurement transaction.
98.975 Notice.
98.980 Participant.
98.985 Person.
98.990 Preponderance of the evidence.
98.995 Principal.
[[Page 3322]]
97.1000 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.
6. Part 98 is further amended as follows:
a. ``[Agency noun]'' is removed and ``Department of Labor'' is
added in its place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``Department of Labor'' is
added in its place wherever it occurs.
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, General Counsel, 2100 K
St., NW, Washington, DC 20427, (202) 606-5444, e-mail:
jlorber@fmcs.gov.
ADDITIONAL SUPPLEMENTARY INFORMATION: This proposed rule relocates the
requirements for maintaining a drug-free workplace from 29 CFR part
1471 to 29 CFR part 1472.
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.
Approved:
C. Richard Barnes,
Director.
Accordingly, as set forth in the common preamble, the Federal
Mediation and Conciliation Service proposes to amend 29 CFR chapter
XII, as follows:
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 to participate in Federal procurement
contracts?
1471.130 Does an 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 cover 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 that I may participate in
is a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
1471.300 May I enter into a covered transaction with an excluded
or disqualified person?
1471.305 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
1471.310 May I use the services of an excluded person under a
covered transaction?
1471.315 Must I verify that principals of my covered transactions
are eligible to participate?
1471.320 What happens if I do business with an excluded person in
a covered transaction?
1471.325 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Disclosing Information--Primary Tier Participants
1471.330 What information must I provide before entering into a
covered transaction with FMCS?
1471.335 If I disclose unfavorable information required under
Sec. 1471.330 will I be prevented from entering into the
transaction?
1471.340 What happens if I fail to disclose the information
required under Sec. 1471.330?
1471.345 What must I do if I learn of the information required
under Sec. 1471.330 after entering into a covered transaction with
FMCS?
Disclosing Information--Lower Tier Participants
1471.350 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
1471.355 What happens if I fail to disclose the information
required under Sec. 1471.350?
1471.360 What must I do if I learn of information required under
Sec. 1471.350 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. 1471.330?
1471.455 What may I do if a lower tier participant fails to
disclose the information required under Sec. 1471.350 to the next
higher tier?
[[Page 3323]]
Subpart E--Governmentwide List of Parties Excluded or Disqualified From
Federal Procurement and Nonprocurement Programs
1471.500 What is the purpose of the List?
1471.505 Who uses the List?
1471.510 Who maintains the List?
1471.515 What specific information is on the List?
1471.520 Who gives the GSA the information that it puts on the
List?
1471.525 Whom do I ask if I have questions about a person on the
List?
1471.530 Where can I get the List?
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 suspension and debarment
actions?
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 Is a record made of fact-finding proceedings?
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 Is a record made of fact-finding proceedings?
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 Indictment.
1471.955 Ineligible or ineligibility.
1471.960 Legal proceedings.
1471.965 List of parties excluded or disqualified from federal
procurement and nonprocurement programs.
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.
2. Part 1471 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``Federal Mediation and
Conciliation Service'' is added in its place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``FMCS'' is added in its
place wherever it occurs.
c. ``[Agency Head or designee]'' is removed and ``Agency Director''
is added in its place wherever it occurs.
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.
4. Part 1472 is added to read as set forth in instruction 2 at the
end of the common preamble.
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?
[[Page 3324]]
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.
5. Part 1472 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``Federal Mediation and
Conciliation Service'' is added in its place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``FMCS'' is added in its
place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``Agency Director''
is added in its place wherever it occurs.
d. ``[Agency head]'' is removed and ``Agency Director'' is added in
its place wherever it occurs.
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.
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 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.
ADDITIONAL SUPPLEMENTARY INFORMATION: The Department of Defense (DoD)
proposes to adopt two updated common rules, on nonprocurement debarment
and suspension and on drug-free workplace requirements for grants and
agreements. In adopting these rules, the Office of the Secretary of
Defense, Military Departments, Defense Agencies, and DoD Field
Activities will maintain uniform policies and procedures that are
consistent with those of other Executive Departments and Agencies. At
the time the final rule is adopted, the DoD will make conforming
amendments in other parts of the DoD Grant and Agreement Regulations
(32 CFR parts 21, 22, 32, and 34), to update references to the
debarment and suspension and the drug-free workplace requirements that
currently are in 32 CFR part 25.
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: August 22, 2001.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
Accordingly, as set forth in the common preamble, 32 CFR chapter I,
subchapter B, is proposed to be amended as follows.
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 to participate in Federal procurement
contracts?
25.130 Does an 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?
25.145 Does this part cover 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 May I enter into a covered transaction with an excluded or
disqualified person?
25.305 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
25.310 May I use the services of an excluded person under a covered
transaction?
25.315 Must I verify that principals of my covered transactions are
eligible to participate?
25.320 What happens if I do business with an excluded person in a
covered transaction?
25.325 What requirements must I pass down to persons at lower tiers
with whom I intend to do business?
Disclosing Information--Primary Tier Participants
25.330 What Information must I provide before entering into a
covered transaction with the DoD Component?
25.335 If I disclose unfavorable information required under
Sec. 25.330 will I be prevented from entering into the transaction?
25.340 What happens if I fail to disclose the information required
under Sec. 25.330?
25.345 What must I do if I learn of the information required under
Sec. 25.330 after entering into a covered transaction with the DoD
Component?
Disclosing information--Lower Tier Participants
25.350 What information must I provide to a higher tier participant
before entering into a covered transaction with that participant?
25.355 What happens if I fail to disclose the information required
under Sec. 25.350?
25.360 What must I do if I learn of information required under
Sec. 25.350 after
[[Page 3325]]
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. 25.330?
25.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 25.350 to the next higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From
Federal Procurement and Nonprocurement Programs
25.500 What is the purpose of the List?
25.505 Who uses the List?
25.510 Who maintains the List?
25.515 What specific information is on the List?
25.520 Who gives the GSA the information that it puts on the List?
25.525 Whom do I ask if I have questions about a person on the
List?
25.530 Where can I get the List?
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 suspension and
debarment actions?
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 Is a record made of fact-finding proceedings?
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 Is a record made of fact-finding proceedings?
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 Indictment.
25.955 Ineligible or ineligibility.
25.960 Legal proceedings.
25.965 List of Parties Excluded or Disqualified From Federal
Procurement and Nonprocurement Programs.
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).
2. Part 25 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``DoD Component'' is added in
its place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``DoD Component'' is added
in its place wherever it occurs.
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.
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.
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.
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
[[Page 3326]]
Department, a Defense Agency, or the Office of Economic Adjustment.
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 209,
subpart 209.4 as suspending officials for procurement contracts.
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: 41 U.S.C. 701, et seq.
8. Part 26 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``DoD Component'' is added in
its place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``DoD Component'' is added
in its place wherever it occurs.
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.
d. ``[Agency head]'' is removed and ``Secretary of Defense or
Secretary of a Military Department'' is added in its place wherever it
occurs.
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.
10. Section 26.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``32 CFR part 33'' in its place.
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 under FOR FURTHER
INFORMATION CONTACT.
ADDITIONAL SUPPLEMENTARY INFORMATION: The proposed common rule would
provide agencies with certain areas of flexibility in adopting the
common rule. An agency can determine the extent to which the effect of
a debarment or suspension action flows down to tiers lower than a
nonprocurement transaction. Under the original common rule, every
procurement below the nonprocurement level is covered if it exceeds the
small purchase threshold ($25,000). The Department of Education has
significant vulnerabilities to fraud and abuse below the nonprocurement
level, particularly among participants in the financial aid programs
authorized under title IV of the Higher Education Act of 1965, as
amended (HEA), 20 U.S.C. 1070, et seq. Thus, the Secretary proposes
language for Sec. 85.220(d) that preserves coverage at multiple lower
tiers for any contract or subcontract that is greater than $25,000, and
language for Sec. 85.220(e) that reaches contracts for services for
title IV HEA programs without regard to dollar amount.
For example, if a subgrantee entered into a contract with a third
party and the contract exceeds the $25,000 threshold, the contract
would be covered under the proposed rule and every subcontract after
that would be covered if it exceeds that threshold.
The Secretary also proposes to adopt the rule so that direct notice
between one tier and the next of the potential for suspension and
debarment is not needed to impose coverage. As explained more fully
later in this preamble, certain persons pose significant risks to the
U.S. Department of Education (ED) funded programs even though in some
cases those people receive no funds directly from ED related to the
transaction over which they have a significant control or influence.
The Secretary proposes additional changes to the common rule. These
changes would clarify the effect of debarment and suspension actions on
an institution's eligibility to participate in student assistance
programs authorized under title IV of the HEA, 20 U.S.C. 1070, et seq.
These changes are consistent with the original common rule, as adopted
by the Department in 1988.
The Secretary also proposes to clarify some of the coverage
definitions to ensure that any person who has a significant control or
influence over an ED transaction would be covered. The
[[Page 3327]]
Secretary would also clarify the meaning of ``principal'' and
``participant'' in the context of title IV, HEA transactions. The
Secretary considers an excluded person to pose significant risk to the
integrity of the title IV, HEA programs. Thus, the Secretary proposes
changes to the common rule regarding the definition of an excluded
``principal.'' The proposed revised definition would include those
persons who would--
Provide services as third-party servicers to schools,
lenders, and guarantors that participate in the title IV, HEA programs.
Provide counsel or guidance directly to third-party
servicers; or
Provide counsel or guidance through a third-party
servicer, indirectly or directly, to the lender, school, or guarantor.
To further clarify this position and to make participants aware of
this precaution, the Secretary expressly designates as a covered lower-
tier transaction any contract between a third-party servicer and a
lender, school, or guarantor, regardless of the amount of the contract.
Parties apparently have structured these types of transactions to
avoid the dollar threshold needed to extend coverage to lower-tier
procurement transactions. The Secretary proposes this change to avoid
attempts by excluded parties to use agreements or arrangements that
contain indefinite or ambiguously phrased compensation provisions to
evade sanction. In addition, the Secretary considers the dollar amount
of the procurement contract for the services of an excluded person to
have no necessary connection with the amount of abuse that may be
caused by the excluded person.
The proposed changes would make the scope of the exclusion clearer
and easier for participants to apply to their transactions.
The common rule allows a participant to continue to use the
services of an excluded person on the premise that the transaction or
agreement under which a participant operates has a limited duration.
However, it is contrary to the intent of the rule, to apply that
approach to situations in which the party participates under an
agreement or arrangement of extended or even indefinite duration.
Several major title IV, HEA agreements have no stated expiration date;
others, including program participation agreements with postsecondary
institutions, commonly extend for six years.
The Secretary wishes to prevent a title IV, HEA participant from
continuing to use the services of an excluded person under this kind of
agreement or arrangement. Thus, the Secretary--solely for the purpose
of this rule--proposes to treat these agreements as having limited
duration, regardless of other regulatory or contractual provisions that
control their duration as between the participant and the Government.
The Secretary considers this approach necessary in order to ensure a
level of protection for these kinds of transactions or agreements that
the common rule is intended to achieve for other Federal agreements.
Thus, for the purposes of title IV, HEA transactions, the Secretary
proposes to allow a participant to continue to use the services of the
excluded person for a period of 90 days or up to the close of the
Federal fiscal year in which the participant learns of the exclusion,
whichever is longer. This would give the participant time to arrange
for a substitute to perform needed services.
Because this NPRM would reorganize 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 would become obsolete when this rule
becomes final. Therefore, the Secretary proposes to make conforming
amendments to parts 668 and 682 of the CFR so they refer to the proper
provisions in part 85.
Also, the Secretary proposes to remove 34 CFR 682.705(a)(3), which
prescribes the duration of a suspension by another Federal agency.
Because the period of the suspension is expressly covered in proposed
34 CFR 85.612(b), there is no need to retain the separate explanation.
Finally, we note that the common rule clarifies the conditions
under which a Federal agency gives a respondent an opportunity to
challenge facts on which the agency based a suspension or proposed
debarment.
Assessment of Educational Impact
The Secretary particularly requests comments on whether these
proposed regulations would require transmission of information that any
other agency or authority of the United States gathers or makes
available.
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://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 Code of Federal
Regulations is available on GPO Access at: http://
www.access.gpo.gov/nara/index.html.
(Catalog of Federal Domestic Assistance Number 84.032 Federal Family
Education Loan Program)
List of Subjects
34 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 6, 2001.
Rod Paige,
Secretary of Education.
For the reasons stated in the common preamble and in the specific
preamble of the Department of Education (ED), the Secretary proposes to
amend 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:
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?
[[Page 3328]]
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.
2. Part 84 is further amended as follows:
a. ``[Agency noun]'' is removed and ``Department of Education'' is
added in its place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``ED'' is added in its
place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``ED Deciding
Official'' is added in its place wherever it occurs.
d. ``[Agency head]'' is removed and ``ED Deciding Official'' is
added in its place wherever it occurs.
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.
4. Section 84.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``34 CFR part 85'' in its place.
5. Each section in part 84 is further amended by adding to the end
of each section the following authority citation to read:
(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)
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 to participate in Federal procurement
contracts?
85.130 Does an 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 cover 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 that I may participate in is
a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
85.300 May I enter into a covered transaction with an excluded or
disqualified person?
85.305 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
85.310 May I use the services of an excluded person under a covered
transaction?
85.315 Must I verify that principals of my covered transactions are
eligible to participate?
85.320 What happens if I do business with an excluded person in a
covered transaction?
85.325 What requirements must I pass down to persons at lower tiers
with whom I intend to do business?
Disclosing Information--Primary Tier Participants
85.330 What information must I provide before entering into a
covered transaction with the Department of Education?
85.335 If I disclose unfavorable information required under
Sec. 85.330 will I be prevented from entering into the transaction?
85.340 What happens if I fail to disclose the information required
under Sec. 85.330?
85.345 What must I do if I learn of the information required under
Sec. 85.330 after entering into a covered transaction with the
Department of Education?
Disclosing Information--Lower Tier Participants
85.350 What information must I provide to a higher tier participant
before entering into a covered transaction with that participant?
85.355 What happens if I fail to disclose the information required
under Sec. 85.350?
85.360 What must I do if I learn of information required under
Sec. 85.350 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?
[[Page 3329]]
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. 85.330?
85.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 85.350 to the next higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From
Federal Procurement and Nonprocurement Programs
85.500 What is the purpose of the List?
85.505 Who uses the List?
85.510 Who maintains the List?
85.515 What specific information is on the List?
85.520 Who gives the GSA the information that it puts on the List?
85.525 Whom do I ask if I have questions about a person on the
List?
85.530 Where can I get the List?
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
suspension and debarment actions?
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 Is a record made of fact-finding proceedings?
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?
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 Is a record made of fact-finding proceedings?
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.
85.947 HEA.
85.950 Indictment.
85.955 Ineligible or ineligibility.
85.960 Legal proceedings.
85.965 List of Parties Excluded or Disqualified From Federal
Procurement and Nonprocurement Programs.
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.
7. Part 85 is further amended as follows:
a. ``[Agency noun]'' is removed and ``Department of Education'' is
added in its place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``ED'' is added in its
place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``ED Deciding
Official'' is added in its place wherever it occurs.
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)
8. Section 85.220 is further amended by adding new paragraphs (d)
and (e) to read as follows.
Sec. 85.220 Are any procurement contracts included as covered
transactions?
* * * * *
(d) The contract is awarded by any contractor, subcontractor,
supplier, consultant or its agent or representative in any transaction,
regardless of tier, that is funded or authorized under ED programs and
is expected to equal or exceed $25,000.
(e) The contract is to perform services as a third party servicer
in connection with a title IV, HEA program.
9. Section 85.305 is further amended by adding paragraph (c) to
read as follows:
[[Page 3330]]
Sec. 85.305 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.
10. Section 85.310 is further amended by adding paragraph (c) to
read as follows:
Sec. 85.310 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.
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.
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)
13. Subpart F of part 85 is further amended by adding a new
Sec. 85.611 to read as follows:
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 Secs. 85.720 through 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 Secs. 85.805 and 85.870.
(2) Instead of the procedures in Secs. 85.810 through 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 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)
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.
[[Page 3331]]
(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)
15. Subpart G is further 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)
16. Subpart H is further 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
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)
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)
18. Subpart I of part 85 is further amended by adding Sec. 85.947
to read as follows:
Sec. 85.947 HEA.
HEA means the Higher Education Act of 1965, as amended.
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.
* * * * *
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)
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)
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)
23. The appendix to part 85 is amended by removing and reserving
the Covered Transactions Chart and by adding a Covered Transactions for
ED Chart to read as follows.
BILLING CODE 6325-01-P et al.
[[Page 3332]]
[GRAPHIC] [TIFF OMITTED] TP23JA02.001
BILLING CODE 6325-01-C et al.
[[Page 3333]]
PART 668--STUDENT ASSISTANCE GENERAL PROVISIONS
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]
25. Amend Sec. 668.82 as follows:
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''.
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
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]
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]
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, 301-713-7360, extension 226, or
comments@nara.gov.
List of Subjects
36 CFR Part 1209
Administrative practice and procedure, Debarment and suspension,
Grant programs, Reporting and recordkeeping requirements.
36 CFR Part 1212
Administrative practice and procedure, Drug abuse, Grant programs,
Reporting and recordkeeping requirements.
Approved: May 4, 2001.
John W. Carlin,
Archivist of the United States.
For the reasons stated in the common preamble, the National
Archives and Records Administration amends 36 CFR chapter XII as
follows:
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 to participate in Federal procurement
contracts?
1209.130 Does an 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 cover 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 that I may participate in
is a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
1209.300 May I enter into a covered transaction with an excluded or
disqualified person?
1209.305 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
1209.310 May I use the services of an excluded person under a
covered transaction?
1209.315 Must I verify that principals of my covered transactions
are eligible to participate?
1209.320 What happens if I do business with an excluded person in a
covered transaction?
1209.325 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Disclosing Information--Primary Tier Participants
1209.330 What information must I provide before entering into a
covered transaction with NARA?
1209.335 If I disclose unfavorable information required under
Sec. 1209.330 will I be prevented from entering into the
transaction?
1209.340 What happens if I fail to disclose the information
required under Sec. 1209.330?
1209.345 What must I do if I learn of the information required
under Sec. 1209.330 after entering into a covered transaction with
NARA?
Disclosing Information--Lower Tier Participants
1209.350 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
1209.355 What happens if I fail to disclose the information
required under Sec. 1209.350?
1209.360 What must I do if I learn of information required under
Sec. 1209.350 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. 1209.330?
1209.455 What may I do if a lower tier participant fails to
disclose the
[[Page 3334]]
information required under Sec. 1209.350 to the next higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From
Federal Procurement and Nonprocurement Programs
1209.500 What is the purpose of the List?
1209.505 Who uses the List?
1209.510 Who maintains the List?
1209.515 What specific information is on the List?
1209.520 Who gives the GSA the information that it puts on the
List?
1209.525 Whom do I ask if I have questions about a person on the
List?
1209.530 Where can I get the List?
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 suspension and debarment
actions?
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 Is a record made of fact-finding proceedings?
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 Is a record made of fact-finding proceedings?
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 Indictment.
1209.955 Ineligible or ineligibility.
1209.960 Legal proceedings.
1209.965 List of Parties Excluded or Disqualified From Federal
Procurement and Nonprocurement Programs.
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).
2. Part 1209 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``NARA'' is added in its place
wherever it occurs.
b. ``[Agency adjective]'' is removed and ``NARA'' is added in its
place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``Archivist of the
United States or designee'' is added in its place wherever it occurs.
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.
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?
[[Page 3335]]
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).
5. Part 1212 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``NARA'' is added in its place
wherever it occurs.
b. ``[Agency adjective]'' is removed and ``NARA'' is added in its
place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``Archivist of the
United States or designee'' is added in its place wherever it occurs.
d. ``[Agency head]'' is removed and ``Archivist of the United
States or designee'' is added in its place wherever it occurs.
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.
7. Section 1212.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``36 CFR part 1207'' in its place .
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.
ADDITIONAL SUPPLEMENTARY INFORMATION: VA is a party to the proposed
common rule with the following differences.
Under proposed Sec. 44.435 for certain nonprocurement transactions,
a primary tier participant must communicate to each lower tier
participant that the lower tier participant must not have been debarred
or suspended. We propose to add Sec. 44.440 to require the
communication to be included as a condition in the covered transaction
document. We believe this is adequate to ensure that the parties
understand and comply with debarment and suspension requirements.
Under the proposed common rule, the debarring and suspending
official is the agency head or an official designated by the agency
head. We propose at Sec. 44.935 and Sec. 44.1010 of the proposed common
rule to add as the debarring and suspending official the following: for
the Veterans Health Administration, the Under Secretary for Health; for
the Veterans Benefits Administration, the Under Secretary for Benefits;
and for the National Cemetery Administration, the Deputy Under
Secretary for Operations.
Proposed Sec. 44.995 of the debarment and suspension common rule,
defines the term ``principal.'' A principal is subject to the debarment
and suspension requirements. Agencies implementing the common rule are
allowed to add principals that are commonly involved in their covered
transactions. VA proposes to retain as principals, at proposed
Sec. 44.995(c), the positions designated in the current regulation, 38
CFR 44.105. This is intended to include those that have significant
responsibilities in real estate transactions affecting VA. We also
propose to add mortgage brokers to this list due to their significant
responsibilities in real estate transactions with VA.
Requirements to ensure that certain grantees maintain a drug-free
workplace currently are set forth at 38 CFR part 44, subpart F. We
propose that these provisions, with proposed amendments explained above
in the preamble for the common rule, be transferred to a new 38 CFR
part 48.
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: June 15, 2001.
Anthony J. Principi,
Secretary of Veterans Affairs.
For the reasons stated in the preamble, the Department of Veterans
Affairs proposes to amend 38 CFR chapter I as follows:
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 to participate in Federal procurement
contracts?
44.130 Does an 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 cover 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 that I may participate in is
a covered transaction?
[[Page 3336]]
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
44.300 May I enter into a covered transaction with an excluded or
disqualified person?
44.305 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
44.310 May I use the services of an excluded person under a
covered transaction?
44.315 Must I verify that principals of my covered transactions
are eligible to participate?
44.320 What happens if I do business with an excluded person in a
covered transaction?
44.325 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Disclosing Information--Primary Tier Participants
44.330 What information must I provide before entering into a
covered transaction with the Department of Veterans Affairs?
44.335 If I disclose unfavorable information required under
Sec. 44.330 will I be prevented from entering into the transaction?.
44.340 What happens if I fail to disclose the information required
under Sec. 44.330?
44.345 What must I do if I learn of the information required under
Sec. 44.330 after entering into a covered transaction with the
Department of Veterans Affairs?
Disclosing Information--Lower Tier Participants
44.350 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
44.355 What happens if I fail to disclose the information required
under Sec. 44.350?
44.360 What must I do if I learn of information required under
Sec. 44.350 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. 44.330?
44.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 44.350 to the next higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From
Federal Procurement and Nonprocurement Programs
44.500 What is the purpose of the List?
44.505 Who uses the List?
44.510 Who maintains the List?
44.515 What specific information is on the List?
44.520 Who gives the GSA the information that it puts on the List?
44.525 Whom do I ask if I have questions about a person on the
List?
44.530 Where can I get the List?
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 suspension and debarment actions?
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?
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 Is a record made of fact-finding proceedings?
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 Is a record made of fact-finding proceedings?
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 Indictment.
44.955 Ineligible or ineligibility.
44.960 Legal proceedings.
44.965 List of Parties Excluded or Disqualified From Federal
Procurement and Nonprocurement Programs.
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.
[[Page 3337]]
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).
PART 44--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
2. Part 44 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``Department of Veterans
Affairs'' is added in its place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``Department of Veterans
Affairs'' is added in its place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``Secretary'' is
added in its place wherever it occurs.
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.
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.
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.
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.
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?
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.
8. Part 48 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``Department of Veterans
Affairs'' is added in its place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``Department of Veterans
Affairs'' is added in its place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``Secretary'' is
added in its place wherever it occurs.
d. ``[Agency head]'' is removed and ``Secretary'' is added in its
place wherever it occurs.
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.
10. Section 48.605(a)(2) is further amended by removing ``[Agency
specific CFR citation]'' and adding ``38 CFR part 43'' in its place.
[[Page 3338]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 32 and 36
[FRL 7075-5]
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.
ADDITIONAL SUPPLEMENTARY INFORMATION:
A. Optional Provisions
This part proposes optional lower tier suspension and debarment
coverage by including a paragraph (d) in Sec. 32.220 for all contracts
that equal or exceed the $25,000 award threshold under EPA
nonprocurement transactions. This election maintains the EPA's present
practice under the common rule.
In addition, Sec. 32.440 proposes to use terms or conditions to
award transactions as the ordinary means of enforcing exclusions under
EPA transactions rather than obtaining written certifications. This
alternative available under the common rule is more efficient than the
EPA's current certification process for prospective recipients and
participants.
Sections 32.765 and 32.890 are included as additional sections
under part 32 to continue the EPA's practice of permitting persons who
have been suspended or debarred by the EPA Debarring Official to obtain
a limited review of that decision. However, these sections transfer the
authority for issuing a stay on a suspension or debarment decision from
the debarring official to the review official. This change from current
practice reflects a more practical approach to matters accepted for
review. A similar provision appears at Sec. 32.1400 of subpart J to
this part for persons seeking review of reinstatement denials under the
Clean Air Act (CAA) or Clean Water Act (CWA) disqualification
provisions.
Section 32.995 of the nonprocurement suspension and debarment
common rule defines the term ``principal.'' Agencies implementing the
common rule are permitted to provide additional examples of principals
that are commonly involved in their covered transactions. EPA is
proposing to include several examples by adding a paragraph (c) to this
section for the benefit of individuals who may be excluded, or
employers who may have employees who are excluded.
B. Clean Air Act and Clean Water Act Disqualification
The EPA proposes to include a subpart J in its version of the
common rule to address CAA and CWA disqualification and reinstatement.
In 1994, the EPA transferred the responsibility for administration of
those requirements from the Office of Enforcement and Compliance
Assurance to the Office of Administration and Resources Management in
an effort to consolidate all of the Agency's statutory and
discretionary debarment authority into a single program. In 1996, the
EPA removed its regulations at 40 CFR part 15 and amended various
provisions within 40 CFR part 32 to accommodate the change. A separate
subpart J in part 32 will highlight the various differences between
EPA's discretionary and statutory debarment authorities, while
retaining these complementary actions under a single program.
C. Executive Order 13175 (Consultation and Coordination with Indian
Tribal Governments)
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This proposed rule does not have tribal implications. It will not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
The disqualification from procurement and nonprocurement awards of
persons who have been convicted of designated offenses under the CAA
and CWA are statutorily mandated, as are the requirements for
reestablishing procurement and nonprocurement eligibility. This
proposed rule sets forth the procedures EPA uses under existing rules
to decide petitions for CAA and CWA reinstatement in a separate subpart
from those procedures that apply to discretionary debarment actions,
and explains those procedures in a plain language format. Thus,
Executive Order 13175 does not apply to this rule.
D. Drug-Free Workplace Requirements
This proposed rule relocates the requirements for maintaining a
drug-free workplace from 40 CFR part 32 to 40 CFR part 36 and proposes
to restate those requirements in plain language format.
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 record keeping requirements.
Dated: June 11, 2001.
David J. O'Connor,
Acting Assistant Administrator, Office of Administration and Resources
Management, Environmental Protection Agency.
For the reasons stated in the common preamble, the Environmental
Protection Agency proposes to amend 40 CFR chapter I, as follows:
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)
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 to participate in Federal procurement
contracts?
32.130 Does an exclusion under the Federal procurement system
affect a person's eligibility to participate in nonprocurement
transactions?
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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 cover 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 that I may participate in is
a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
32.300 May I enter into a covered transaction with an excluded or
disqualified person?
32.305 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
32.310 May I use the services of an excluded person under a
covered transaction?
32.315 Must I verify that principals of my covered transactions
are eligible to participate?
32.320 What happens if I do business with an excluded person in a
covered transaction?
32.325 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Disclosing Information--Primary Tier Participants
32.330 What information must I provide before entering into a
covered transaction with the EPA?
32.335 If I disclose unfavorable information required under
Sec. 32.330 will I be prevented from entering into the transaction?
32.340 What happens if I fail to disclose the information required
under Sec. 32.330?
32.345 What must I do if I learn of the information required under
Sec. 32.330 after entering into a covered transaction with the EPA?
Disclosing Information--Lower Tier Participants
32.350 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
32.355 What happens if I fail to disclose the information required
under Sec. 32.350?
32.360 What must I do if I learn of information required under
Sec. 32.350 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. 32.330?
32.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 32.350 to the next higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From
Federal Procurement and Nonprocurement Programs
32.500 What is the purpose of the List?
32.505 Who uses the List?
32.510 Who maintains the List?
32.515 What specific information is on the List?
32.520 Who gives the GSA the information that it puts on the List?
32.525 Whom do I ask if I have questions about a person on the
List?
32.530 Where can I get the List?
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 suspension and
debarment actions?
32.620 Do Federal agencies coordinate suspension and debarment
actions?
32.625 What is the scope of a suspension or debarment action?
32.630 May the EPA impute the 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 Is a record made of fact-finding proceedings?
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 Is a record made of fact-finding proceedings?
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.
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32.945 Excluded or exclusion.
32.950 Indictment.
32.955 Ineligible or ineligibility.
32.960 Legal proceedings.
32.965 List of Parties Excluded or Disqualified From Federal
Procurement and Nonprocurement Programs.
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?
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 EPA 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
GSA List?
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).
2. Part 32 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``EPA'' is added in its place
wherever it occurs.
b. ``[Agency adjective]'' is removed and ``EPA'' is added in its
place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``EPA Debarring
Official'' is added in its place wherever it occurs.
3. Section 32.220 is further amended by adding a paragraph (d) to
read as follows:
Sec. 32.220 Are any procurement contracts included as covered
transactions?
* * * * *
(d) The contract is awarded by any contractor, subcontractor,
supplier, consultant or its agent or representative in any transaction,
regardless of tier, to be funded or provided by the 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.)
4. 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.
5. 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 Secs. 32.615 and 32.975.
6. 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
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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 Secs. 32.615 and 32.975.
7. 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.
8. Subpart J is added to read as follows:
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 sends your name
and address and that of the violating facility to the General Services
Administration (GSA) as soon as possible after the EPA learns of your
conviction. The GSA places your name and that of the violating facility
on the List of Parties Excluded from Procurement and Nonprocurement
Programs (List), along with other information describing the nature of
your disqualification . Federal award officials and others who
administer Federal programs consult the List before entering into or
approving procurement and nonprocurement transactions. Award officials
and others, including the public, may obtain a yearly subscription to a
printed version of the List 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. As
an alternative, anyone may access the List through the internet,
currently at 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 on the GSA List 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
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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 Secs. 32.1205 and
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.
(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 on the GSA List. 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 sent to the GSA for
inclusion in the List. 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 Secs. 32.830 through 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-
[[Page 3343]]
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.
(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 Secs. 32.1205(a) and 32.1230, or from an administrative
agreement under Secs. 32.1205(b) and 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
Secs. 32.615 and 32.975.
Sec. 32.1500 If I am reinstated, when will my name be removed from the
GSA List?
(a) 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 notify the GSA
within 5 working days of your reinstatement and ask GSA to remove your
name and that of the violating facility from the List.
(b) You may check the List manually or through the internet as
stated at Sec. 32.1125, to confirm that your name and that of the
violating facility are removed from the List following reinstatement.
In the event your name is not removed in a timely manner, you should
call the EPA debarring official or the EPA representative identified
under the agency contacts section of the List to inform them that the
listing has not been removed.
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.
9. 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?
[[Page 3344]]
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.
10. Part 36 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``EPA'' is added in its place
wherever it occurs.
b. ``[Agency adjective]'' is removed and ``EPA'' is added in its
place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``EPA Administrator
or designee'' is added in its place wherever it occurs.
d. ``[Agency head]'' is removed and ``EPA Administrator'' is added
in its place wherever it occurs.
11. 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.
12. 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.
Approved: July 5, 2001.
Stephen A. Perry,
Administrator of General Services.
For the reasons stated in the preamble, the General Services
Administration proposes to amend 41 CFR chapter 105 as follows:
CHAPTER 105--[AMENDED]
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 to participate in Federal procurement
contracts?
105-68.130 Does an 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 cover 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 that I may participate
in is a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
105-68.300 May I enter into a covered transaction with an excluded
or disqualified person?
105-68.305 What must I do if a Federal agency excludes a person
with whom I am already doing business in a covered transaction?
105-68.310 May I use the services of an excluded person under a
covered transaction?
105-68.315 Must I verify that principals of my covered
transactions are eligible to participate?
105-68.320 What happens if I do business with an excluded person
in a covered transaction?
105-68.325 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Disclosing Information--Primary Tier Participants
105-68.330 What information must I provide before entering into a
covered transaction with the General Services Administration?
105-68.335 If I disclose unfavorable information required under
Sec. 105-68.330 will I be prevented from entering into the
transaction?
105-68.340 What happens if I fail to disclose the information
required under Sec. 105-68.330?
105-68.345 What must I do if I learn of the information required
under Sec. 105-68.330
[[Page 3345]]
after entering into a covered transaction with the General Services
Administration?
Disclosing Information Lower--Tier Participants
105-68.350 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
105-68.355 What happens if I fail to disclose the information
required under Sec. 105-68.350?
105-68.360 What must I do if I learn of information required under
Sec. 105-68.350 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. 105-68.330?
105-68.455 What may I do if a lower tier participant fails to
disclose the information required under Sec. 105-68.350 to the next
higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From
Federal Procurement and Nonprocurement Programs
105-68.500 What is the purpose of the List?
105-68.505 Who uses the List?
105-68.510 Who maintains the List?
105-68.515 What specific information is on the List?
105-68.520 Who gives the GSA the information that it puts on the
List?
105-68.525 Whom do I ask if I have questions about a person on the
List?
105-68.530 Where can I get the List?
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 suspension and debarment actions?
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 Is a record made of fact-finding proceedings?
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 Is a record made of fact-finding proceedings?
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 Indictment.
105-68.955 Ineligible or ineligibility.
105-68.960 Legal proceedings.
105-68.965 List of Parties Excluded or Disqualified From Federal
Procurement and Nonprocurement Programs.
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.
2. Part 105-68 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``General Services
Administration'' is added in its place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``GSA'' is added in its
place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``Administrator of
General Services'' is added in its place wherever it occurs.
[[Page 3346]]
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.
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]
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.
5. Part 105-74 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``General Services
Administration'' is added in its place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``GSA'' is added in its
place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``Administrator of
General Services'' is added in its place wherever it occurs.
d. ``[Agency head]'' is removed and ``Administrator of General
Services'' is added in its place wherever it occurs.
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 CFR part 105-
68'' in its place.
7. Section 105-74.605(a)(2) is further amended by removing
``[Agency-specific CFR citation]'' and adding ``41CFR 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.
ADDITIONAL SUPPLEMENTARY INFORMATION: The Department of the Interior
(Department) proposes to adopt the proposed common, governmentwide rule
for debarment and suspension, and the common, governmentwide rule
implementing the Drug-Free Workplace Act of 1988, with several specific
provisions that apply to the Department of the Interior. The two
proposed common rules are contained in the Notice of Proposed
Rulemaking for a number of agencies, earlier in this document. This
preamble for the Department sets out the headings of the sections of
the proposed common rules that the Department proposes to adopt, with
the appropriate numbering system for the Department. This preamble also
explains the deviations from the proposed common rules.
The Department joined in the publication of the governmentwide
common rule which provided requirements for nonprocurement debarment
and suspension by Executive branch agencies published on May 26, 1988
(53 FR 19160), found at 43 CFR 12.100 to 12.510. In 43 CFR
12.200(c)(8), the Department excluded from the requirements of the rule
any transactions entered into pursuant to Pub. L. 93-638, ``Indian Self
Determination and Education Assistance Act,'' since application of the
common rule to such transactions was prohibited by Pub. L. 93-638.
The Department also joined in the January 31, 1989, publication of
the amendment to the governmentwide common rule on nonprocurement
debarment and suspension and revised Subpart D to implement the Drug-
Free Workplace Act of 1988 (54 FR 4946), found at 43 CFR 12.600 to
12.635.
At the time of the revision to the common rule for nonprocurement
debarment and suspension which was issued in response to Executive
Order 12689 and section 2455 of the Federal Acquisition Streamlining
Act of 1994, and published on June 26, 1995 (60 FR 33035), the
Department excluded additional transactions from the requirements of
the nonprocurement debarment and suspension regulations. Specifically,
in 43 CFR 12.200(c)(9)-(11), the Department excluded all transactions
concerning permits, licenses, exchanges and other acquisitions of real
property, rights-of-way, easements, mineral patent claims, water
service contracts, and repayment contracts from the nonprocurement
debarment and suspension regulations.
In this proposed rule, the Department will continue to exclude all
transactions excluded in the current regulations at 43 CFR
12.200(c)(8)-(11). These exclusions are found at 43 CFR 42.215 (h)-(k)
in the proposed rule.
In this proposed rule, the Department will discontinue the use of a
certification from participants contained in 43 CFR 12.510(a). The
Department proposes to include a term or condition in transaction
documents which requires the participants' compliance. The term or
condition will also require participants to include a similar term or
condition in lower-tier covered transactions as well. This new
provision is found at 43 CFR 42.440 of the proposed rule.
The requirements for nonprocurement debarment and suspension,
currently found at 43 CFR 12.100 to 12.510 are
[[Page 3347]]
being removed from 43 CFR part 12 and are proposed to be placed in 43
CFR part 42.
The requirements for maintaining a drug-free workplace, currently
found at 43 CFR 12.600 to 12.635, are being removed from 43 CFR part 12
and are proposed to be placed in 43 CFR part 43.
Compliance With Laws, Executive Orders, and Department Policy
In addition to the certifications stated in the general preamble,
the Department is including the following statements:
In accordance with Executive Order 12630, the rule does not have
significant takings implications. A takings implication assessment is
not required. No takings of personal property will occur as a result of
this rule.
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3 (b)
of the Order.
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment. A detailed statement
under the National Environmental Policy Act of 1969 is not required.
In accordance with the President's memorandum of April 29, 1994,
Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), 512 DM 2, and Executive Order 13175 (65 FR
67249), we have evaluated possible effects on Federally recognized
Indian tribes and have determined that there are no effects on trust
resources.
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: May 30, 2001.
Robert J. Lamb,
Acting Assistant Secretary-Policy, Management and Budget.
Accordingly, for the reasons stated in the common preamble and in
the above additional supplementary information section, 43 CFR subtitle
A is proposed to be amended as follows:
PART 12--ADMINISTRATIVE AND AUDIT REQUIREMENTS AND COST PRINCIPLES
FOR ASSISTANCE PROGRAMS
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.
2. Part 12, Subpart D is removed and reserved.
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 to participate in Federal procurement
contracts?
42.130 Does an 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 cover 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 that I may participate in is
a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
42.300 May I enter into a covered transaction with an excluded or
disqualified person?
42.305 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
42.310 May I use the services of an excluded person under a covered
transaction?
42.315 Must I verify that principals of my covered transactions are
eligible to participate?
42.320 What happens if I do business with an excluded person in a
covered transaction?
42.325 What requirements must I pass down to persons at lower tiers
with whom I intend to do business?
Disclosing Information--Primary Tier Participants
42.330 What information must I provide before entering into a
covered transaction with the Department of the Interior?
42.335 If I disclose unfavorable information required under
Sec. 42.330 will I be prevented from entering into the transaction?
42.340 What happens if I fail to disclose the information required
under Sec. 42.330?
42.345 What must I do if I learn of the information required under
Sec. 42.330 after entering into a covered transaction with the
Department of the Interior?
Disclosing Information--Lower Tier Participants
42.350 What information must I provide to a higher tier participant
before entering into a covered transaction with that participant?
42.355 What happens if I fail to disclose the information required
under Sec. 42.350?
42.360 What must I do if I learn of information required under
Sec. 42.350 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?
[[Page 3348]]
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. 42.330?
42.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 42.350 to the next higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From
Federal Procurement and Nonprocurement Programs
42.500 What is the purpose of the List?
42.505 Who uses the List?
42.510 Who maintains the List?
42.520 Who gives the GSA the information that it puts on the List?
42.525 Whom do I ask if I have questions about a person on the
List?
42.530 Where can I get the List?
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
suspension and debarment actions?
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 Is a record made of fact-finding proceedings?
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 Is a record made of fact-finding proceedings?
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 Indictment.
42.955 Ineligible or ineligibility.
42.960 Legal proceedings.
42.965 List of Parties Excluded or Disqualified From Federal
Procurement and Nonprocurement Programs.
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.
4. Part 42 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``Department of the Interior''
is added in its place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``Department of the
Interior'' is added in its place where it occurs.
c. ``[Agency head or designee]'' is removed and ``Director, Office
of Acquisition and Property Management'' is added in its place wherever
it occurs.
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.
6. Section 42.440 is added to read as follows:
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.
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.
[[Page 3349]]
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.
* * * * *
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.
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.
11. Part 43 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``Department of the Interior''
is added in its place where it occurs.
b. ``[Agency adjective]'' is removed and ``Department of the
Interior'' is added in its place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``Director, Office
of Acquisition and Property Management'' is added in its place wherever
it occurs.
d. ``[Agency head]'' is removed and ``Secretary of the Interior''
is added in its place wherever it occurs.
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.
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.
14. Section 43.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]'' and adding ``43 CFR part 12'' in its place.
FEDERAL EMERGENCY MANAGEMENT AGENCY
44 CFR Parts 17 and 21
RIN 3067-AD15
FOR FURTHER INFORMATION CONTACT: Edward Broyles, Office of General
Counsel, Federal Emergency Management Agency, 500 C Street, SW.,
Washington, DC 20472, (202) 646-3961, e-mail Edward.Broyles@fema.gov.
ADDITIONAL SUPPLEMENTARY INFORMATION: This part proposes optional lower
tier suspension and debarment coverage by including a paragraph (d) in
Sec. 17.220 for all contracts that equal or exceed the $25,000 award
threshold under FEMA nonprocurement transactions. This election
maintains FEMA's present practice under the common rule.
In addition, Sec. 17.440 proposes to use terms or conditions to
award transactions as the ordinary means of enforcing exclusions under
FEMA transactions rather than obtaining written certifications. This
alternative available under the common rule is more efficient than
FEMA's current certification process for prospective recipients and
participants.
This proposed rule relocates the requirements for maintaining a
drug-free workplace from 44 CFR part 17 to 44 CFR part 21.
List of Subjects
44 CFR Part 17
Administrative practice and procedure, Grant programs.
44 CFR Part 21
Administrative practice and procedure, Grant programs, Drug abuse,
Reporting and recordkeeping requirements.
Dated: June 22, 2001.
Patricia A. English,
Acting Chief Financial Officer, Federal Emergency Management Agency.
For the reasons stated in the common preamble, the Federal
Emergency Management Agency proposes to amend 44 CFR chapter I, as
follows:
1. Part 17 is revised to read as set forth in instruction 1 at the
end of the common preamble.
PART 17--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
Sec.
17.25 How is this part organized?
[[Page 3350]]
17.50 How is this part written?
17.75 Do terms in this part have special meanings?
Subpart A--General
17.100 What does this part do?
17.105 Does this part apply to me?
17.110 What is the purpose of the nonprocurement debarment and
suspension system?
17.115 How does an exclusion restrict a person's involvement in
covered transactions?
17.120 May we grant an exception to let an excluded person
participate in a covered transaction?
17.125 Does an exclusion under the nonprocurement system affect a
person's eligibility to participate in Federal procurement
contracts?
17.130 Does an exclusion under the Federal procurement system
affect a person's eligibility to participate in nonprocurement
transactions?
17.135 May FEMA exclude a person who is not currently
participating in a nonprocurement transaction?
17.140 How do I know if a person is excluded?
17.145 Does this part cover persons who are disqualified as well
as those who are excluded from nonprocurement transactions?
Subpart B--Covered Transactions
17.200 What is a covered transaction?
17.205 Why is it important if a particular transaction is a
covered transaction?
17.210 Which nonprocurement transactions are covered transactions?
17.215 Which nonprocurement transactions are not covered
transactions?
17.220 Are any procurement contracts included as covered
transactions?
17.225 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
17.300 May I enter into a covered transaction with an excluded or
disqualified person?
17.305 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
17.310 May I use the services of an excluded person under a
covered transaction?
17.315 Must I verify that principals of my covered transactions
are eligible to participate?
17.320 What happens if I do business with an excluded person in a
covered transaction?
17.325 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Disclosing Information--Primary Tier Participants
17.330 What information must I provide before entering into a
covered transaction with FEMA?
17.335 If I disclose unfavorable information required under
Sec. 17.330 will I be prevented from entering into the transaction?
17.340 What happens if I fail to disclose the information required
under Sec. 17.330?
17.345 What must I do if I learn of the information required under
Sec. 17.330 after entering into a covered transaction with FEMA?
Disclosing Information--Lower Tier Participants
17.350 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
17.355 What happens if I fail to disclose the information required
under Sec. 17.350?
17.360 What must I do if I learn of information required under
Sec. 17.350 after entering into a covered transaction with a higher
tier participant?
Subpart D--Responsibilities of FEMA Officials Regarding Transactions
17.400 May I enter into a transaction with an excluded or
disqualified person?
17.405 May I enter into a covered transaction with a participant
if a principal of the transaction is excluded?
17.410 May I approve a participant's use of the services of an
excluded person?
17.415 What must I do if a Federal agency excludes the participant
or a principal after I enter into a covered transaction?
17.420 May I approve a transaction with an excluded or
disqualified person at a lower tier?
17.425 When do I check to see if a person is excluded or
disqualified?
17.430 How do I check to see if a person is excluded or
disqualified?
17.435 What must I require of a primary tier participant?
17.440 What method do I use to communicate those requirements to
participants?
17.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
17.450 What action may I take if a primary tier participant fails
to disclose the information required under Sec. 17.330?
17.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 17.350 to the next higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From
Federal Procurement and Nonprocurement Programs
17.500 What is the purpose of the List?
17.505 Who uses the List?
17.510 Who maintains the List?
17.515 What specific information is on the List?
17.520 Who gives the GSA the information that it puts on the List?
17.525 Whom do I ask if I have questions about a person on the
List?
17.530 Where can I get the List?
Subpart F--General Principles Relating to Suspension and Debarment
Actions
17.600 How do suspension and debarment actions start?
17.605 How does suspension differ from debarment?
17.610 What procedures does FEMA use in suspension and debarment
actions?
17.615 How does FEMA notify a person of suspension and debarment
actions?
17.620 Do Federal agencies coordinate suspension and debarment
actions?
17.625 What is the scope of a suspension or debarment action?
17.630 May FEMA impute the conduct of one person to another?
17.635 May FEMA settle a debarment or suspension action?
17.640 May a settlement include a voluntary exclusion?
17.645 Do other Federal agencies know if FEMA agrees to a voluntary
exclusion?
Subpart G--Suspension
17.700 When may the suspending official issue a suspension?
17.705 What does the suspending official consider in issuing a
suspension?
17.710 When does a suspension take effect?
17.715 What notice does the suspending official give me if I am
suspended?
17.720 How may I contest a suspension?
17.725 How much time do I have to contest a suspension?
17.730 What information must I provide to the suspending official
if I contest a suspension?
17.735 Under what conditions do I get an additional opportunity to
challenge the facts on which the suspension is based?
17.740 Are suspension proceedings formal?
17.745 Is a record made of fact-finding proceedings?
17.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
17.755 When will I know whether the suspension is continued or
terminated?
17.760 How long may my suspension last?
Subpart H--Debarment
17.800 What are the causes for debarment?
17.805 What notice does the debarring official give me if I am
proposed for debarment?
17.810 When does a debarment take effect?
17.815 How may I contest a proposed debarment?
17.820 How much time do I have to contest a proposed debarment?
17.825 What information must I provide to the debarring official if
I contest a proposed debarment?
17.830 Under what conditions do I get an additional opportunity to
challenge the facts on which a proposed debarment is based?
17.835 Are debarment proceedings formal?
17.840 Is a record made of fact-finding proceedings?
17.845 What does the debarring official consider in deciding
whether to debar me?
17.850 What is the standard of proof in a debarment action?
17.855 Who has the burden of proof in a debarment action?
[[Page 3351]]
17.860 What factors may influence the debarring official's
decision?
17.865 How long may my debarment last?
17.870 When do I know if the debarring official debars me?
17.875 May I ask the debarring official to reconsider a decision to
debar me?
17.880 What factors may influence the debarring official during
reconsideration?
17.885 May the debarring official extend a debarment?
Subpart I--Definitions
17.900 Adequate evidence.
17.905 Affiliate.
17.910 Agency.
17.915 Agent or representative.
17.920 Civil judgment.
17.925 Conviction.
17.930 Debarment.
17.935 Debarring official.
17.940 Disqualified.
17.945 Excluded or exclusion.
17.950 Indictment.
17.955 Ineligible or ineligibility.
17.960 Legal proceedings.
17.965 List of Parties Excluded or Disqualified From Federal
Procurement and Nonprocurement Programs.
17.970 Nonprocurement transaction.
17.975 Notice.
17.980 Participant.
17.985 Person.
17.990 Preponderance of the evidence.
17.995 Principal.
17.1000 Respondent.
17.1005 State.
17.1010 Suspending official.
17.1015 Suspension.
17.1020 Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]
Appendix to Part 17--Covered Transactions
Authority: 41 U.S.C. 701 et seq.; Sec. 2455, Pub. L. 103-355,
108 Stat. 3327 (31 U.S.C. 6101 note); E.O. 12549 (3 CFR, 1986 Comp.,
p. 189); E.O. 12689 (3 CFR, 1989 Comp., p. 235).
2. Part 17 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``FEMA'' is added in its place
wherever it occurs.
b. ``[Agency adjective]'' is removed and ``FEMA'' is added in its
place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``FEMA Debarring
Official'' is added in its place wherever it occurs.
3. Section 17.220 is further amended by adding a paragraph (d) to
read as follows:
Sec. 17.220 Are any procurement contracts included as covered
transactions?
* * * * *
(d) The contract is awarded by any contractor, subcontractor,
supplier, consultant or its agent or representative in any transaction,
regardless of tier, to be funded or provided by FEMA 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.)
4. Section 17.440 is added to read as follows:
Sec. 17.440 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.
5. Part 21 is added to read as set forth in instruction 2 at the
end of the common preamble.
PART 21--GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE
(FINANCIAL ASSISTANCE)
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?
21.125 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 FEMA Awarding Officials
21.400 What are my responsibilities as a FEMA 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 et seq.
6. Part 21 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``FEMA'' is added in its place
wherever it occurs.
b. ``[Agency adjective]'' is removed and ``FEMA'' is added in its
place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``FEMA Director or
designee'' is added in its place wherever it occurs.
d. ``[Agency head]'' is removed and ``FEMA Director'' is added in
its place wherever it occurs.
7. Section 21.1510(c) is further amended by removing ``[CFR
citation for the Federal Agency's regulations implementing Executive
Order 12549 and Executive Order 12689]'' and adding ``44 CFR part 17''
in its place.
8. Section 21.1605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]''and adding ``44 CFR part 13'' in its place.
DEPARTMENT OF HEALTH AND HUMAN SERVICES
45 CFR Parts 76 and 82
RIN 0991-AB12
FOR FURTHER INFORMATION CONTACT: Terrence J. Tychan, Deputy Assistant
Secretary, Office of Grants and Acquisition Management, 202-690-6901;
for the hearing impaired only: TDD 202-690-6415.
ADDITIONAL SUPPLEMENTARY INFORMATION: The Department of Health and
Human Services (HHS) proposes to adopt the common rule on
nonprocurement debarment and suspension with a few amendments. The
first proposed amendment would cover additional tiers of contracts
below covered nonprocurement transactions. The
[[Page 3352]]
common rule as drafted includes automatic coverage for any contract at
the first tier below a covered nonprocurement transaction, if the
amount of the contract is expected to equal or exceed a threshold value
of $25,000. It also includes an option for agencies to extend that
coverage to lower tiers of contracts expected to equal or exceed the
threshold value of $25,000. HHS proposes to extend coverage to lower
tiers of contracts, but at a higher threshold value equal to the
``simplified acquisition threshold'' defined at 41 U.S.C. 403(11),
which is currently set at $100,000. At final rulemaking, this proposed
amendment would require a conforming change in the illustration at
appendix A to the common rule, which shows the $25,000 threshold amount
for optional coverage of lower tier contracts.
In addition, Sec. 76.440 proposes to use terms or conditions to the
award transaction as a means to enforce exclusions under HHS
transactions rather than written certifications. This alternative
available under the common rule is more efficient than HHS's current
certification process for prospective recipients and participants.
Section 76.995 of the debarment and suspension common rule defines
the term ``principal.'' Agencies implementing the common rule are
permitted to provide additional examples of principals that are
commonly involved in their covered transactions. HHS is proposing to
include several examples by adding a paragraph (c) to this section for
the benefit of individuals who may be excluded, or employers who may
have an individual employee who is excluded.
In addition to the general regulatory language developed by the
Interagency Committee on Debarment and Suspension to be used
governmentwide, we are proposing to add clarifying language to the HHS
nonprocurement common rule at 45 CFR part 76. This additional language
reflects minor changes to address adequately the relationship of the
HHS Office of Inspector General's (OIG) program exclusion authorities
(42 U.S.C. 1320a-7) to the common rule, and the applicability of these
exclusion authorities to participation in Executive branch procurement
and nonprocurement programs. Accordingly, we are proposing the
inclusion of the following additional language in 45 CFR part 76:
1. Adding a new Sec. 76.230 in subpart B, Covered Transactions,
that would address the relationship between covered transactions and
Federal health care program exclusions under Title XI of the Social
Security Act. Specifically, an individual or entity excluded by the OIG
from Medicare, Medicaid and other Federal health care program
participation would also be prohibited from participating in all other
Federal Government procurement and nonprocurement programs.
2. Adding a new section in Subpart D, Responsibilities of Agency
(HHS) Officials Regarding Transactions, that would address the
obligations of Medicare carriers, intermediaries and other Medicare
contractors. Specifically, proposed Sec. 76.460 would state that these
entities assume the same responsibilities and obligations for checking
the GSA List as Medicare agency officials under this part.
3. Amending the proposed definition of the term ``disqualified'' in
Sec. 76.940 in Subpart I to include direct reference to the OIG
exclusion authorities. The amended definition would indicate that an
example of disqualifications include persons prohibited under the ``* *
* program exclusion authorities under Title XI of the Social Security
Act (42 U.S.C. 1320a-7) * * * '' For purposes of exclusions from
participation in Federal health care programs by the HHS OIG, the
governing regulations are set forth in 42 CFR part 1001.
In addition, the requirements for maintaining a drug-free workplace
are being removed as a subpart in the current debarment and suspension
common rule, and re-codified as a new separate part 82.
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.
Approved: June 5, 2001.
Tommy G. Thompson,
Secretary, Department of Health and Human Services.
For the reasons stated in the common preamble, the Department of
Health and Human Services proposes to amend 45 CFR subtitle A as
follows:
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.
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 to participate in Federal procurement
contracts?
76.130 Does an 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 cover 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 that I may participate in 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 May I enter into a covered transaction with an excluded or
disqualified person?
76.305 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
76.310 May I use the services of an excluded person under a
covered transaction?
76.315 Must I verify that principals of my covered transactions
are eligible to participate?
[[Page 3353]]
76.320 What happens if I do business with an excluded person in a
covered transaction?
76.325 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Disclosing Information--Primary Tier Participants
76.330 What information must I provide before entering into a
covered transaction with HHS?
76.335 If I disclose unfavorable information required under
Sec. 76.330 will I be prevented from entering into the transaction?
76.340 What happens if I fail to disclose the information required
under Sec. 76.330?
76.345 What must I do if I learn of the information required under
Sec. 76.330 after entering into a covered transaction with HHS?
Disclosing Information--Lower Tier Participants
76.350 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
76.355 What happens if I fail to disclose the information required
under Sec. 76.350?
76.360 What must I do if I learn of information required under
Sec. 76.350 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. 76.330?
76.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 76.350 to the next higher tier?
76.460 What are the obligations of Medicare carriers and
intermediaries?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From
Federal Procurement and Nonprocurement Programs
76.500 What is the purpose of the List?
76.505 Who uses the List?
76.510 Who maintains the List?
76.515 What specific information is on the List?
76.520 Who gives the GSA the information that it puts on the List?
76.525 Whom do I ask if I have questions about a person on the
List?
76.530 Where can I get the List?
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 suspension and debarment
actions?
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 Is a record made of fact-finding proceedings?
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 Is a record made of fact-finding proceedings?
76.845 What does the debarring official consider in deciding
whether to debar me?
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 Indictment.
76.955 Ineligible or ineligibility.
76.960 Legal proceedings.
76.965 List of Parties Excluded or Disqualified From Federal
Procurement and Nonprocurement Programs.
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).
2. Part 76 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``HHS'' is added in its place
wherever it occurs.
b. ``[Agency adjective]'' is removed and ``HHS'' is added in its
place wherever it occurs.
[[Page 3354]]
c. ``[Agency head or designee]'' is removed and ``HHS Debarring/
Suspension Official'' is added in its place wherever it occurs.
3. Section 76.220 is further amended by adding a paragraph (d) to
read as follows:
Sec. 76.220 Are any procurement contracts included as covered
transactions?
* * * * *
(d) 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).
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).
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.
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 GSA List and taking necessary steps to effectuate
this part.
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.
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.
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]
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.
10. Part 82 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``HHS'' is added in its place
wherever it occurs.
b. ``[Agency adjective]'' is removed and ``HHS'' is added in its
place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``HHS Official or
designee'' is added in its place wherever it occurs.
d. ``[Agency head]'' is removed and ``the Secretary of HHS'' is
added in its place wherever it occurs.
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.
12. Section 82.605(a)(2) is further amended by removing ``[Agency-
specific CFR citation]''and adding ``45 CFR part 92'' in its place.
[[Page 3355]]
NATIONAL SCIENCE FOUNDATION
45 CFR Parts 620 and 630
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.
Lawrence Rudolph,
General Counsel, National Science Foundation.
Accordingly, as set forth in the common preamble, the National
Science Foundation proposes to amend 45 CFR chapter VI as follows:
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 to participate in Federal procurement
contracts?
620.130 Does an 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 cover 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 that I may participate in is
a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
620.300 May I enter into a covered transaction with an excluded or
disqualified person?
620.305 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
620.310 May I use the services of an excluded person under a
covered transaction?
620.315 Must I verify that principals of my covered transactions
are eligible to participate?
620.320 What happens if I do business with an excluded person in a
covered transaction?
620.325 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Disclosing Information--Primary Tier Participants
620.330 What information must I provide before entering into a
covered transaction with the National Science Foundation?
620.335 If I disclose unfavorable information required under
Sec. 620.330 will I be prevented from entering into the transaction?
620.340 What happens if I fail to disclose the information required
under Sec. 620.330?
620.345 What must I do if I learn of the information required under
Sec. 620.330 after entering into a covered transaction with the
National Science Foundation?
Disclosing Information--Lower Tier Participants
620.350 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
620.355 What happens if I fail to disclose the information required
under Sec. 620.350?
620.360 What must I do if I learn of information required under
Sec. 620.350 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?
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. 620.330?
620.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 620.350 to the next higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From
Federal Procurement and Nonprocurement Programs
620.500 What is the purpose of the List?
620.505 Who uses the List?
620.510 Who maintains the List?
620.515 What specific information is on the List?
620.520 Who gives the GSA the information that it puts on the List?
620.525 Whom do I ask if I have questions about a person on the
List?
620.530 Where can I get the List?
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
suspension and debarment actions?
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?
[[Page 3356]]
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 Is a record made of fact-finding proceedings?
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 Is a record made of fact-finding proceedings?
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 Indictment.
620.955 Ineligible or ineligibility.
620.960 Legal proceedings.
620.965 List of Parties Excluded or Disqualified From Federal
Procurement and Nonprocurement Programs.
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).
2. Part 620 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``National Science Foundation''
is added in its place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``National Science
Foundation'' is added in its place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``Director or
designee'' is added in its place wherever it occurs.
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.
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?
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.
5. Part 630 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``National Science Foundation''
is added in its place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``National Science
Foundation'' is added in its place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``Director or
designee'' is added in its place wherever it occurs.
d. ``[Agency head]'' is removed and ``Director, National Science
[[Page 3357]]
Foundation'' is added in its place wherever it occurs.
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.
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
RIN 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.
ADDITIONAL SUPPLEMENTARY INFORMATION:
Section 1154.440 of this part proposes to use terms or conditions
to award transactions as the ordinary means of enforcing exclusions
under NEA transactions rather than obtaining written certifications.
This alternative available under the common rule is more efficient than
the NEA's current reliance on the certification process for prospective
recipients and participants.
This proposed rule relocates the requirements for maintaining a
drug-free workplace from 45 CFR part 1154 to 45 CFR part 1155 and
proposes to restate those requirements in plain language format.
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: June 28, 2001.
Karen L. Elias,
Deputy General Counsel, National Endowment for the Arts.
For the reasons stated in the preamble, the National Endowment for
the Arts proposes to amend 45 CFR chapter XI as follows:
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 to participate in Federal procurement
contracts?
1154.130 Does an 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 cover 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 May I enter into a covered transaction with an excluded
or disqualified person?
1154.305 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
1154.310 May I use the services of an excluded person under a
covered transaction?
1154.315 Must I verify that principals of my covered transactions
are eligible to participate?
1154.320 What happens if I do business with an excluded person in
a covered transaction?
1154.325 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Disclosing Information--Primary Tier Participants
1154.330 What information must I provide before entering into a
covered transaction with the National Endowment for the Arts?
1154.335 If I disclose unfavorable information required under
Sec. 1154.330 will I be prevented from entering into the
transaction?
1154.340 What happens if I fail to disclose the information
required under Sec. 1154.330?
1154.345 What must I do if I learn of the information required
under Sec. 1154.330 after entering into a covered transaction with
the National Endowment for the Arts?
Disclosing information--Lower Tier Participants
1154.350 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
1154.355 What happens if I fail to disclose the information
required under Sec. 1154.350?
1154.360 What must I do if I learn of information required under
Sec. 1154.350 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. 1154.330?
1154.455 What may I do if a lower tier participant fails to
disclose the information required under Sec. 1154.350 to the next
higher tier?
[[Page 3358]]
Subpart E--Governmentwide List of Parties Excluded or Disqualified From
Federal Procurement and Nonprocurement Programs
1154.500 What is the purpose of the List?
1154.505 Who uses the List?
1154.510 Who maintains the List?
1154.515 What specific information is on the List?
1154.520 Who gives the GSA the information that it puts on the
List?
1154.525 Whom do I ask if I have questions about a person on the
List?
1154.530 Where can I get the List?
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 suspension and debarment actions?
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 Is a record made of fact-finding proceedings?
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 Is a record made of fact-finding proceedings?
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 Indictment.
1154.955 Ineligible or ineligibility.
1154.960 Legal proceedings.
1154.965 List of Parties Excluded or Disqualified From Federal
Procurement and Nonprocurement Programs.
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.
2. Part 1154 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``National Endowment for the
Arts'' is added in its place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``NEA'' is added in its
place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``NEA Chairman'' is
added in its place wherever it occurs.
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.
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?
[[Page 3359]]
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.
5. Part 1155 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``National Endowment for the
Arts'' is added in its place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``NEA'' is added in its
place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``NEA Chairman'' is
added in its place wherever it occurs.
d. ``[Agency head]'' is removed and ``NEA Chairman'' is added in
its place wherever it occurs.
6. Section 1155.310(c) is further amended by removing ``[CFR
citation for the Federal Agency's regulations implementing Executive
Order 12549 and Executive Order 12689]'' and adding ``45 CFR part
1154'' in its place.
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: Laura S. Nelson, Assistant General
Counsel, National Endowment for the Humanities, 1100 Pennsylvania
Avenue, NW., Room 530, Washington, DC, 20506, (202) 606-8322.
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: June 15, 2001.
Laura S. Nelson,
Assistant General Counsel.
Accordingly, as set forth in the common preamble, 45 CFR chapter XI
is proposed to be amended as follows.
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 to participate in Federal procurement
contracts?
1169.130 Does an 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 cover 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 that I may participate in
is a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
1169.300 May I enter into a covered transaction with an excluded
or disqualified person?
1169.305 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
1169.310 May I use the services of an excluded person under a
covered transaction?
1169.315 Must I verify that principals of my covered transactions
are eligible to participate?
1169.320 What happens if I do business with an excluded person in
a covered transaction?
1169.325 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Disclosing Information--Primary Tier Participants
1169.330 What information must I provide before entering into a
covered transaction with the NEH?
1169.335 If I disclose unfavorable information required under
Sec. 1169.330 will I be prevented from entering into the
transaction?
1169.340 What happens if I fail to disclose the information
required under Sec. 1169.330?
1169.345 What must I do if I learn of the information required
under Sec. 1169.330 after entering into a covered transaction with
the NEH?
Disclosing Information--Lower Tier Participants
1169.350 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
1169.355 What happens if I fail to disclose the information
required under Sec. 1169.350?
1169.360 What must I do if I learn of information required under
Sec. 1169.350 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?
[[Page 3360]]
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 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. 1169.330?
1169.455 What may I do if a lower tier participant fails to
disclose the information required under Sec. 1169.350 to the next
higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From
Federal Procurement and Nonprocurement Programs
1169.500 What is the purpose of the List?
1169.505 Who uses the List?
1169.510 Who maintains the List?
1169.515 What specific information is on the List?
1169.520 Who gives the GSA the information that it puts on the
List?
1169.525 Whom do I ask if I have questions about a person on the
List?
1169.530 Where can I get the List?
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 suspension and
debarment actions?
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 Is a record made of fact-finding proceedings?
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 Is a record made of fact-finding proceedings?
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 Indictment.
1169.955 Ineligible or ineligibility.
1169.960 Legal proceedings.
1169.965 List of Parties Excluded or Disqualified From Federal
Procurement and Nonprocurement Programs.
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).
2. Part 1169 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``NEH'' is added in its place
wherever it occurs.
b. ``[Agency adjective]'' is removed and ``NEH'' is added in its
place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``NEH Assistant
General Counsel'' is added in its place wherever it occurs.
3. Section 1169.440 is added to read as follows:
Sec. 1169.440 What method do I use to communicate 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.
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?
[[Page 3361]]
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).
5. Part 1173 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``NEH'' is added in its place
wherever it occurs.
b. ``[Agency adjective]'' is removed and ``NEH'' is added in its
place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``NEH Assistant
General Counsel'' is added in its place wherever it occurs.
d. ``[Agency head]'' is removed and ``NEH Assistant General
Counsel'' is added in its place wherever it occurs.
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.
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: August 10, 2001.
Robert S. Martin,
Director, Institute of Museum and Library Services.
For the reasons stated in the preamble, the Institute of Museum and
Library Services proposes to amend 45 CFR chapter XI as follows:
1. Part 1185 is revised to read as set forth in instruction 1 at
the end of the common preamble.
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 to participate in Federal procurement
contracts?
1185.130 Does an 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 cover 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?
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 May I enter into a covered transaction with an excluded or
disqualified person?
1185.305 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
1185.310 May I use the services of an excluded person under a
covered transaction?
1185.315 Must I verify that principals of my covered transactions
are eligible to participate?
1185.320 What happens if I do business with an excluded person in a
covered transaction?
1185.325 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Disclosing Information--Primary Tier Participants
1185.330 What information must I provide before entering into a
covered transaction with the Institute of Museum and Library
Services?
1185.335 If I disclose unfavorable information required under
Sec. 1185.330 will I be prevented from entering into the
transaction?
1185.340 What happens if I fail to disclose the information
required under Sec. 1185.330?
1185.345 What must I do if I learn of the information required
under Sec. 1185.330 after entering into a covered transaction with
the Institute of Museum and Library Services?
Disclosing information--Lower Tier Participants
1185.350 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
[[Page 3362]]
1185.355 What happens if I fail to disclose the information
required under Sec. 1185.350?
1185.360 What must I do if I learn of information required under
Sec. 1185.350 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. 1185.330?
1185.455 What may I do if a lower tier participant fails to
disclose the information required under Sec. 1185.350 to the next
higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From
Federal Procurement and Nonprocurement Programs
1185.500 What is the purpose of the List?
1185.505 Who uses the List?
1185.510 Who maintains the List?
1185.515 What specific information is on the List?
1185.520 Who gives the GSA the information that it puts on the
List?
1185.525 Whom do I ask if I have questions about a person on the
List?
1185.530 Where can I get the List?
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 suspension and debarment actions?
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 Is a record made of fact-finding proceedings?
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 Is a record made of fact-finding proceedings?
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.
1185.930 Debarment.
1185.935 Debarring official.
1185.940 Disqualified.
1185.945 Excluded or exclusion.
1185.950 Indictment.
1185.955 Ineligible or ineligibility.
1185.960 Legal proceedings.
1185.965 List of Parties Excluded or Disqualified From Federal
Procurement and Nonprocurement Programs.
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).
2. Part 1185 is further amended as set forth below:
a. ``[Agency noun]'' is removed and ``Institute of Museum and
Library Services'' is added in its place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``IMLS'' is added in its
place wherever it occurs.
c. ``[Agency head or designee]'' is removed and ``Director,
Institute of Museum and Library Services'' is added in its place
wherever it occurs.
3. Section 1185.440 is added to read as follows:
Sec. 1185.440 What method do I use to communicate 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
[[Page 3363]]
include a similar term or condition in lower-tier covered transactions.
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.
5. Part 1186 is further amended as set forth below.
a. ``[Agency noun]'' is removed and ``Institute of Museum and
Library Services'' is added in its place wherever it occurs.
b. ``[Agency adjective]'' is removed and ``IMLS'' is added in its
place wherever it occurs.
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.
d. ``[Agency head]'' is removed and ``Director, Institute of Museum
and Library Services'' is added in its place wherever it occurs.
6. Section 1186.310(c) is further amended by removing ``[CFR
citation for the Federal Agency's regulations implementing Executive
Order 12549 and Executive Order 12689]'' and adding ``45 CFR part
1185'' in its place.
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 Dupre, 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: May 31, 2001.
Wendy Zenker,
Chief Operating Officer, Corporation for National and Community
Service.
Accordingly, as set forth in the common preamble, the Corporation
for National and Community Service proposes to amend 45 CFR chapter XXV
as follows:
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?
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 to participate in Federal procurement
contracts?
2542.130 Does an 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 cover 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 that I may participate in
is a covered transaction?
Subpart C--Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
2542.300 May I enter into a covered transaction with an excluded or
disqualified person?
2542.305 What must I do if a Federal agency excludes a person with
whom I am already doing business in a covered transaction?
2542.310 May I use the services of an excluded person under a
covered transaction?
[[Page 3364]]
2542.315 Must I verify that principals of my covered transactions
are eligible to participate?
2542.320 What happens if I do business with an excluded person in a
covered transaction?
2542.325 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Disclosing Information--Primary Tier Participants
2542.330 What information must I provide before entering into a
covered transaction with the Corporation?
2542.335 If I disclose unfavorable information required under
Sec. 2542.330 will I be prevented from entering into the
transaction?
2542.340 What happens if I fail to disclose the information
required under Sec. 2542.330?
2542.345 What must I do if I learn of the information required
under Sec. 2542.330 after entering into a covered transaction with
the Corporation?
Disclosing Information--Lower Tier Participants
2542.350 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
2542.355 What happens if I fail to disclose the information
required under Sec. 2542.350?
2542.360 What must I do if I learn of information required under
Sec. 2542.350 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 requirements to
primary tier 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. 2542.330?
2542.455 What may I do if a lower tier participant fails to
disclose the information required under Sec. 2542.350 to the next
higher tier?
Subpart E--Governmentwide List of Parties Excluded or Disqualified From
Federal Procurement and Nonprocurement Programs
2542.500 What is the purpose of the List?
2542.505 Who uses the List?
2542.510 Who maintains the List?
2542.515 What specific information is on the List?
2542.520 Who gives the GSA the information that it puts on the
List?
2542.525 Whom do I ask if I have questions about a person on the
List?
2542.530 Where can I get the List?
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 suspension and
debarment actions?
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 Is a record made of fact-finding proceedings?
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?
2542.840 Is a record made of fact-finding proceedings?
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 Indictment.
2542.955 Ineligible or ineligibility.
2542.960 Legal proceedings.
2542.965 List of Parties Excluded or Disqualified From Federal
Procurement and Nonprocurement Programs.
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.
[[Continued on page 3365]]
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