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National Science Foundation Implementation of OMB Guidance on Nonprocurement Debarment and Suspension

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Information about this document as published in the Federal Register.

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ACTION:

Final rule.

SUMMARY:

The National Science Foundation (NSF) is issuing a new part 2520 on nonprocurement debarment and suspension in title 2 of the Code of Federal Regulations (CFR). This new part is NSF's implementation of the Office of Management and Budget's (OMB) guidance provided at 2 CFR part 180. In light of the new part 2520, NSF removes 45 CFR part 620, the part containing its implementation of the government-wide common rule on nonprocurement debarment and suspension. The new part in 2 CFR serves the same purpose as the common rule, but in a simpler way. NSF also is amending a provision in its research misconduct rule (45 CFR part 689) to update the reference to NSF's nonprocurement debarment and suspension regulations. This final rule is part of OMB's initiative to streamline and consolidate all federal regulations on nonprocurement debarment and suspension. It is an administrative simplification that makes no substantive change in NSF policy or procedures for nonprocurement debarment and suspension.

DATES:

This final rule is effective February 2, 2007.

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FOR FURTHER INFORMATION CONTACT:

Eric S. Gold, Assistant General Counsel, Office of the General Counsel, National Science Foundation, telephone (703) 292-8060 and e-mail egold@nsf.gov.

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SUPPLEMENTARY INFORMATION:

On May 11, 2004, OMB established title 2 of the CFR with two subtitles (69 FR 26275). Subtitle A, “Government-wide Grants and Agreements,” contains OMB policy guidance to Federal agencies on grants and agreements. Subtitle B, “Federal Agency Regulations for Grants and Agreements,” contains Federal agencies' regulations implementing the OMB guidance, as it applies to grants and other financial assistance agreements and nonprocurement transactions.

On August 31, 2005, OMB published interim final guidance for government-wide nonprocurement debarment and suspension in the Federal Register (70 FR 51863). The guidance is located in title 2 of the CFR as new subtitle A, chapter 1, part 180. The interim final guidance updated previous OMB guidance that was issued pursuant to Executive Order 12549, “Debarment and Suspension” (February 18, 1996), which gave government-wide effect to each agency's nonprocurement debarment and suspension actions. Section 6 of the Executive order authorized OMB to issue guidance to Executive agencies on nonprocurement debarment and suspension, including provisions prescribing government-wide criteria and minimum due process procedures. Section 3 directed Executive agencies to issue regulations implementing the Executive order that are consistent with the OMB guidelines. The interim final guidance at 2 CFR part 180 conforms the OMB guidance with the Federal agencies' November 26, 2003, update to the common rule on nonprocurement debarment and suspension (see 70 FR 51864). On November 15, 2006, OMB published a final rule adopting the interim final guidance with changes (71 FR 66431).

In accordance with OMB's guidance, this final rule places NSF's nonprocurement debarment regulations in subtitle B of title 2 of the CFR, along with other agencies' nonprocurement debarment and suspension rules. The new CFR part 2520 adopts the OMB guidelines with the same additions and clarifications that NSF made to the common rule on nonprocurement suspension and debarment in November 2003 [68 FR 66633]. The substance of NSF's nonprocurement debarment and suspension regulations is unchanged. In light of the new part 2520, NSF is removing 45 CFR part 620, which is the current location for NSF's nonprocurement debarment and suspension regulations. NSF is also amending a provision in its research misconduct rule (45 CFR part 689) to update the reference to NSF's nonprocurement debarment and suspension regulations.

Executive Order 12866

OMB has determined this rule to be nonsignificant.

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

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

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

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

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

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

Federalism (Executive Order 13132)

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

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List of Subjects

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Accordingly, under the authority of

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Title 2—Grants and Agreements

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1. Add Chapter XXV, consisting of Part 2520 to Subtitle B to read as follows:

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Chapter XXV—NATIONAL SCIENCE FOUNDATION

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PART 2520—NONPROCUREMENT DEBARMENT AND SUSPENSION

2520.10
What does this part do?
2520.20
Does this part apply to me?
2520.30
What policies and procedures must I follow?
Subpart A—General
2520.137
Who in NSF may grant an exception to let an excluded person participate in a covered transaction?
Subpart B—Covered Transactions
2520.220
What contracts and subcontracts, in addition to those listed in 2 CFR 180.220, are covered transactions?
Subpart C—Responsibilities of Participants Regarding Transactions
2520.332
What methods must I use to pass requirements down to participants at lower tiers with whom I intend to do business?
Subpart D—Responsibilities of Federal Agency Officials Regarding Transactions
2520.437
What method do I use to communicate to a participant the requirements described in the OMB guidance at 2 CFR 180.435?
Subparts E-I [Reserved]
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Authority: 42 U.S.C. 1870(a); 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.

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What does this part do?

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

Does this part apply to me?

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

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

(b) Respondent in an NSF suspension or debarment action.

(c) NSF debarment or suspension official.

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

What policies and procedures must I follow?

The NSF policies and procedures that you must follow are the policies and procedures specified in each applicable section of the OMB guidance in Subparts A through I of 2 CFR Part 180, as that section is supplemented by the section in this part with the same section number. The contracts that are covered transactions, for example, are specified by section 220 of the OMB guidance (i.e., 2 CFR 180.220) as supplemented by section 220 in this part (i.e., § 2520.220). For any section of OMB guidance in Subparts A through I of 2 CFR 180 that has no corresponding section in this part, NSF policies and procedures are those in the OMB guidance.

Subpart A—General

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

The NSF Director and the Deputy Director have the authority to grant an exception to let an excluded person participate in a covered transaction.

Subpart B—Covered Transactions

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

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

Subpart C—Responsibilities of Participants Regarding Transactions

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

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

Subpart D—Responsibilities of Federal Agency Officials Regarding Transactions

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

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

Subparts E-I [Reserved]

Title 45—Public Welfare

CHAPTER VI—NATIONAL SCIENCE FOUNDATION

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PART 620—[REMOVED]

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2. Under the authority of

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PART 689—[AMENDED]

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3. The authority citation for part 689 continues to read as follows:

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Authority: 42 U.S.C. 1870(a).

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4. Section 689.8 is amended by revising paragraph (b) to read as follows:

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Interim Administrative Actions
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(b) When suspension is determined to be appropriate, the case will be referred to the suspending official pursuant to 2 CFR Part 180, and the suspension procedures of 2 CFR Part 180 will be followed, but the suspending official will be either the Deputy Director or an official designated by the Deputy Director.

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5. Section 689.9 is amended by revising paragraph (c)(1) introductory text to read as follows:

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Dispositions

(c) * * *

(1) In cases in which debarment is considered by OIG to be an appropriate disposition, the case will be referred to the debarring official pursuant to 2 CFR part 180 and the procedures of 2 CFR part 180 will be followed, but:

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Lawrence Rudolph,

General Counsel.

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[FR Doc. E7-1419 Filed 2-1-07; 8:45 am]

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