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Wednesday,

November 26, 2003

Part II

Governmentwide
Debarment and Suspension
(Nonprocurement), and
Requirements for Drug-Free
Workplace (Grants); Rules
(Final and Interim Final)
Office of Personnel Management
Department of Agriculture
Department of Energy
Export-Import Bank
Small Business Administration
National Aeronautics and Space Administration
Department of Commerce
Social Security Administration
Office of National Drug Control Policy
Department of State
Agency for International Development
Peace Corps
Inter-American Foundation
African Development Foundation
Department of Housing and Urban Development
Department of Justice
Department of Labor
Federal Mediation and Conciliation Service
Department of the Treasury
Department of Defense
Department of Education
National Archives and Records Administration
Department of Veterans Affairs
Environmental Protection Agency
General Services Administration
Department of the Interior
Department of Health and Human Services
National Science Foundation
National Foundation on the Arts and the Humanities
National Endowment for the Arts

National Endowment for the Humanities

Institute of Museum and Library Services

Corporation for National and Community Service


Department of Transportation

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66534 Federal Register / Vol. 68, No. 228 / Wednesday, November 26, 2003 / Rule and Regulations

OFFICE OF PERSONNEL DEPARTMENT OF JUSTICE National Endowment for the


MANAGEMENT Humanities
28 CFR Parts 67 and 83
5 CFR Part 970 45 CFR Parts 1169 and 1173
DEPARTMENT OF LABOR
DEPARTMENT OF AGRICULTURE
Institute of Museum and Library
29 CFR Parts 94 and 98 Services
7 CFR Parts 3017 and 3021
FEDERAL MEDIATION AND 45 CFR Parts 1185 and 1186
DEPARTMENT OF ENERGY
CONCILIATION SERVICE
10 CFR Parts 606, 607, and 1036 CORPORATION FOR NATIONAL AND
29 CFR Parts 1471 and 1472 COMMUNITY SERVICE
THE EXPORT-IMPORT BANK OF THE
UNITED STATES DEPARTMENT OF THE TREASURY 45 CFR Parts 2542 and 2545

12 CFR Part 413 31 CFR Parts 19 and 20 DEPARTMENT OF TRANSPORTATION

SMALL BUSINESS ADMINISTRATION DEPARTMENT OF DEFENSE 49 CFR Parts 29 and 32

13 CFR Parts 145 and 147 32 CFR Parts 25 and 26 Governmentwide Debarment and
Suspension (Nonprocurement) and
NATIONAL AERONAUTICS AND DEPARTMENT OF EDUCATION Governmentwide Requirements for
SPACE ADMINISTRATION Drug-Free Workplace (Grants)
34 CFR Parts 84, 85, 668 and 682
14 CFR Parts 1265 and 1267 AGENCIES: Office of Personnel
NATIONAL ARCHIVES AND RECORDS Management; Department of
DEPARTMENT OF COMMERCE ADMINISTRATION Agriculture; Department of Energy; The
Export-Import Bank of the United
15 CFR Parts 26 and 29 36 CFR Parts 1209 and 1212 States; Small Business Administration;
National Aeronautics and Space
SOCIAL SECURITY ADMINISTRATION DEPARTMENT OF VETERANS Administration; Department of
AFFAIRS Commerce; Social Security
20 CFR Parts 436 and 439
Administration; Office of National Drug
38 CFR Parts 44 and 48 Control Policy; Department of State;
OFFICE OF NATIONAL DRUG
CONTROL POLICY Agency for International Development;
ENVIRONMENTAL PROTECTION Peace Corps; Inter-American
AGENCY Foundation; African Development
21 CFR Parts 1404 and 1405
Foundation; Department of Housing and
40 CFR Parts 32 and 36 Urban Development; Department of
DEPARTMENT OF STATE
Justice; Department of Labor; Federal
GENERAL SERVICES
22 CFR Parts 133 and 137 Mediation and Conciliation Service;
ADMINISTRATION
Department of the Treasury; Department
AGENCY FOR INTERNATIONAL of Defense; Department of Education;
41 CFR Parts 105–68 and 105–74
DEVELOPMENT National Archives and Records
DEPARTMENT OF THE INTERIOR Administration; Department of Veterans
22 CFR Parts 208 and 210 Affairs; Environmental Protection
43 CFR Parts 12, 42 and 43 Agency; General Services
PEACE CORPS Administration; Department of the
DEPARTMENT OF HEALTH AND Interior; Department of Health and
22 CFR Parts 310 and 312 Human Services; National Science
HUMAN SERVICES
Foundation; National Foundation on the
INTER-AMERICAN FOUNDATION
45 CFR Parts 76 and 82 Arts and the Humanities, National
Endowment for the Arts, National
22 CFR Parts 1006 and 1008
NATIONAL SCIENCE FOUNDATION Endowment for the Humanities,
AFRICAN DEVELOPMENT Institute of Museum and Library
FOUNDATION 45 CFR Parts 620 and 630 Services; Corporation for National and
Community Service, and Department of
22 CFR Parts 1508 and 1509 NATIONAL FOUNDATION ON THE Transportation.
ARTS AND THE HUMANITIES ACTION: Final rules and interim final
DEPARTMENT OF HOUSING AND rules.
URBAN DEVELOPMENT National Endowment for the Arts

24 CFR Parts 21 and 24 45 CFR Parts 1154 and 1155

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Federal Register / Vol. 68, No. 228 / Wednesday, November 26, 2003 / Rule and Regulations 66535

SUMMARY: These rules implement under the heading ‘‘Grants the procurement and nonprocurement
changes to the governmentwide Management.’’ debarment programs.
nonprocurement debarment and On April 12, 1999, OMB asked the
SUPPLEMENTARY INFORMATION:
suspension common rule (NCR) and the ISDC to review the common rule and
associated rule on drug-free workplace A. Background propose amendments that would: (a)
requirements. The final and interim On February 18, 1986, President Resolve remaining unnecessary
final rules reflect changes made to the Reagan issued Executive Order 12549 (3 technical differences between the
proposed rules in response to the CFR 1986 Comp., p. 189), ‘‘Debarment procurement and nonprocurement
comments received during the comment and Suspension,’’ to establish a systems; (b) revise the current rule in a
period. The NCR sets forth the common governmentwide debarment and plain language style and format; and (c)
policies and procedures that Federal suspension system covering the full make other improvements to the
Executive branch agencies must use in range of Federal procurement and common rule consistent with the
taking suspension or debarment actions. purpose of the suspension and
nonprocurement activities, and to
It also establishes procedures for debarment system. On October 29, 1999,
establish procedures for debarment and
participants and Federal agencies in the ISDC issued a final report to OMB
suspension from participation in
entering covered transactions. While with recommended changes to the NCR.
Federal nonprocurement programs. On January 23, 2002, thirty agencies
these procedures are mandatory for all Section 4 of that Order established the
agencies of the Executive branch under jointly proposed amendments to the
Interagency Suspension and Debarment NCR and for the removal and relocation
Executive Order 12549, any Federal Committee (ISDC) to monitor
agency with procurement or of the governmentwide provisions
implementation of that system, implementing the Drug-Free Workplace
nonprocurement responsibilities may
coordinate actions among the Federal Act of 1988 (67 FR 3265). One
elect to join the governmentwide system
agencies, and make recommendations to additional agency, Department of
by adopting these procedures through
the Office of Management and Budget Housing and Urban Development,
the rulemaking process. Certain small
(OMB) concerning regulatory and other proposed its amendments to those rules
Executive branch agencies that are
changes needed to address the needs of on July 22, 2002 (67 FR 48006).
exempt from having to issue separate
both the procurement and Since publication of the above
regulations with the approval of the
nonprocurement suspension and proposed rules, the Federal Emergency
Office of Management and Budget, may
debarment programs under a Management Agency (FEMA), along
initiate suspension and debarment
comprehensive debarment and with parts of many other Federal
actions in their inherent authority.
Following the procedures set forth in suspension system encompassing the agencies, has been transferred into the
the NCR will help ensure that the full range of Federal activities. new Department of Homeland Security
agencies’ actions comply with due The OMB published initial guidelines (DHS). Therefore, this final rulemaking
process standards and provide the for nonprocurement debarment and does not include a final rule for FEMA
public with uniform procedures. As an suspension to all Executive branch or DHS. Three agencies, Department of
alternative, smaller Executive branch agencies on May 29, 1987 (52 FR Treasury, Department of Justice and The
agencies may refer matters of contractor 20360), followed by final guidelines Export-Import Bank of the United
and participant responsibility to another along with the NCR on May 26, 1988 (53 States, did not propose changes along
Executive branch agency for action. For FR 19160). The OMB guidelines and with other agencies on January 23, 2002,
a detailed explanation of the changes to NCR provide uniform requirements for but are adopting these rules on an
these rules, see the comments section debarment and suspension by Executive interim final basis. The Department of
under SUPPLEMENTARY INFORMATION branch agencies to protect assistance, Agriculture, although it proposed rules
below. loans, benefits and other on January 23, has decided to issue an
nonprocurement activities from waste, interim final rule for the reasons cited
DATES: The effective date for this rule is fraud, abuse, poor performance or in its agency-specific preamble. Persons
November 26, 2003. The comment date noncompliance similar to the system wishing to submit comments to the
for those agencies issuing this rule as an used for Federal procurement activities Department of Agriculture, Department
interim rule (i.e., the Department of under Subpart 9.4 of the Federal of Treasury, Department of Justice or
Agriculture, the Export-Import Bank, the Acquisition Regulation (FAR) and its The Export-Import Bank of the United
Department of Justice, and the supplements. States may do so within sixty (60) days
Department of Treasury) is January 26, On January 31, 1989, the agencies of the date of this publication by
2004. amended the NCR by adding a new sending comments as described in the
ADDRESSES: Comments on the interim subpart F to implement the Drug-Free preambles to those rules. The remaining
rules should be submitted to the Workplace Act of 1988 (54 FR 4946). twenty-nine agencies are jointly issuing
individual agency contacts. On August 16, 1989, President George this rule as a final rule.
FOR FURTHER INFORMATION CONTACT: H. W. Bush issued Executive Order Furthermore, since publication of the
Robert F. Meunier, Chair of the 12689, ‘‘Debarment and Suspension,’’ (3 proposed rule, the General Services
Interagency Suspension and Debarment CFR 1989 Comp., p. 235), directing Administration (GSA) has changed the
Committee, Office of Grants and agencies to reconcile technical name of the List of Parties Excluded
Debarment (3901–R), Environmental differences existing between the from Federal Procurement and
Protection Agency, 1200 Pennsylvania procurement and nonprocurement Nonprocurement Programs (List). It is
Avenue NW., Washington, DC 20460, by debarment programs, and to give now called the Excluded Parties List
phone at (202) 564–5399 or by e-mail exclusions under either program System (EPLS). Corresponding changes
(meunier.robert@epa.gov). A chart reciprocal effect across procurement and have been made throughout this rule.
showing where each agency has nonprocurement activities. In 1994,
codified the common rule may be Congress passed the Federal Acquisition Comments on the Proposed Rules
obtained by accessing the Office of Streamlining Act of 1994 (Pub. L. 103– We received comments on the
Management and Budget’s home page 355, 108 Stat. 3327), mandating proposed amendments to the NCR from
(http://www.whitehouse.gov/omb), reciprocity for exclusions issued under sixteen commenters. Of those, eight are

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66536 Federal Register / Vol. 68, No. 228 / Wednesday, November 26, 2003 / Rule and Regulations

from employees of Federal agencies; two Native American Tribes. Issues related Subpart B
are from state employees; and six are to the status of recognized Native Covered transactions. One commenter
from professional or public American Tribes can be complex. suggested that Subpart B of the final
organizations. We received no However, tribes, like states, are expected rule include specific language currently
comments addressing the provisions to be responsible recipients of, and contained in the existing NCR in section
related to the drug-free workplace participants in, Federal nonprocurement 110(a)(1), which notes that a
requirements. transactions. Under this rule, Native nonprocurement transaction need not
General Comments American Tribes are accorded the same involve the transfer of Federal funds.
treatment as state governments with We included that language in the
Plain language format. Generally, regard to the coverage and applicability.
most comments were supportive of the proposed rule in the definition of
Therefore, no special distinction with nonprocurement transaction in section
plain language style and format of the respect to Native American Tribes is
proposed rule, including the American 970(b). Accordingly, no further
required. amendment to Subpart B for that
Bar Association’s Section on Public Debarring Official Responsibilities.
Contracts Law (ABA–PCL), which found purpose is necessary.
One commenter requested that the final Commodity Debarment. One agency
the format of the proposed rule to be in
rule specifically state that suspending raised concern about the regulation’s
a ‘‘* * * user friendly style that is well
and debarring officials may use the lack of guidance with regard to
suited for non-lawyers. * * * without
services of other officials in carrying out ‘‘commodity’’ suspension and
losing any of the precision in the
their duties. The numerous references to debarment referenced in sections 110(c)
standard regulation format.’’
However, one commenter expressed the suspending or debarring official and 945. The ISDC notes that any
concern that the question and answer within this rule do not imply that the resolution of the issues surrounding
format will make it more difficult for suspending or debarring official must debarment of commodities requires
Government officials familiar with perform all those duties without the thorough agency-wide consultation and
standard rules to find information assistance of staff or others. The drafting possible changes to Parts 8, 9, 13, 47, 51
quickly by scanning the table of committee acknowledges that it is and 52 of the FAR. Because the
contents for short titles. common practice for suspending and comment was received after the
While we acknowledge that the longer debarring officials to use the services of comment period had closed and just
sentences associated with the question assistants in carrying out their duties. prior to publication of this final rule,
and answer format will make scanning Such administrative matters are more there was insufficient opportunity for
the table of contents more difficult, we appropriately addressed through the ISDC to address this issue before
believe that the benefits to the regulated agency-specific internal guidance rather this rulemaking. Therefore the issues
community far exceed any small burden than in this rule. surrounding commodity suspension and
that might be placed on Government Subpart A debarment will be addressed at a later
officials when using the rule. We time. However, any agency considering
prepared the proposed rule so that ‘‘Participant’’ and ‘‘participate’’. Two a commodity debarment should fully
information pertaining to Government commenters raised concerns that the coordinate the action in accordance
officials with various responsibilities definition of ‘‘participant’’ in section with section 620.
under the rule, and information 980 may be confused with the term Optional lower tier coverage. We
pertaining to individuals and businesses ‘‘participant’’ as used in section 105(a) received two comments about the
subject to the rule, are grouped together and ‘‘participate’’ as used in section language in section 220 of the proposed
under separate subparts. We believe that 135. These terms in sections 105(a) and rule that mandates coverage of
this will enhance everyone’s ability to 135 are, in fact, broader in scope than subcontracts of $25,000 or more at the
locate information of particular interest the definition in section 980. We agree first tier below a covered
to them. that section 105(a) should be clarified to nonprocurement transaction. The
One commenter noted that in some identify the entire universe of potential language gives agencies an option to
places within the proposed rule the participants, rather than only those who extend coverage to subcontracts at lower
sentences are still complex. In preparing may presently have the status of a tiers.
the proposed rule, there were several current ‘‘participant’’ as defined in The two comments recommended
provisions, such as those reciting the section 980. Accordingly, section 105 in diametrically opposed changes to the
causes for debarment and provisions the final rule is amended to state that proposed rule. One commenter
related to affiliation and imputed portions of the rule apply to you if you suggested revising the rule to require
conduct, which we did not revise or did are ‘‘* * * a person who has been, is, agencies to cover subcontracts at all
so insubstantially. As a result, in a few or may be expected to be, a * * * ’’ tiers and said that making lower tier
places the style of the language was not participant or principal in a covered coverage optional would be inconsistent
fully in line with the style used in other transaction. Similarly, section 135 of the with the rule’s purpose as stated in
parts of the proposed rule. Accordingly, proposed rule has been amended by section 110. The other suggested
we revised the final rule so that those substituting the concept of involvement revising the rule to either: (1) Eliminate
provisions are less complex and more in for participation to make it clear that coverage of subcontracts entirely,
keeping with the plain language format Federal agencies may take suspension or relying on reciprocity with Federal
used elsewhere in the rule. Section 630 debarment actions against any persons procurement debarment and suspension
of the final rule, regarding imputation of who may be involved in covered actions; or (2) establish a common
conduct, is reorganized entirely in transactions regardless of whether they approach for all Federal agencies by
response to this and other comments are currently a ‘‘participant’’ as defined limiting coverage to first tier
regarding its lack of clarity. under section 980. We also made subcontracts of $25,000 or more (the
Native American Tribes. One changes to the imputed conduct proposed rule’s mandatory coverage).
commenter noted that neither the provisions by substituting the word The two comments reflect the widely
existing NCR, nor the proposed rule ‘‘person’’ for ‘‘participant’’ in section varying nature of Federal programs
specifically addresses the treatment of 630 for the same reason. subject to this rule. Some programs,

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especially programs with awards to clearly state that obligation. We that proposed section 320 (now section
states as pass-through entities, have renumbered the remaining sections 325 in the final rule), be modified by
substantial program performance by within that series to maintain the replacing the phrase ‘‘If as a participant
subcontractors at lower tiers below sequence of the final rule. you knowingly do business with an
covered nonprocurement transactions. Participant termination of suspended excluded person’’ with ‘‘If you as a
Other programs, including many or debarred principal in existing participant do business with a person
research programs, are performed by covered transactions. One agency when you knew or had reason to know
participants in the covered commenter noted that the cautionary that the person was excluded. * * * .’’
nonprocurement transactions. At least language contained in the final sentence The commenter believes it would make
some programs of the first type may be of section 305(a) of the proposed rule the standard consistent with that found
particularly vulnerable to subcontractor (now section 310(a) of the final rule), be elsewhere in the rule. However, the only
malfeasance; agencies in those cases modified appropriately and included at place in the rule that the ‘‘reason to
need the flexibility to extend coverage the end of proposed section 310(a) (now know’’ standard applies is when an
to lower tier subcontracts to adequately section 315(a) of the final rule). The agency is imputing conduct from an
protect the Federal Government’s language under proposed rule section entity to an individual for the purpose
interest. Many programs of the second 305(a) emphasized that a participant of suspension or debarment. That
type, however, do not share that exercise caution in deciding whether to standard is different from the ‘‘should
vulnerability. Revising the rule to terminate covered transactions, such as have known’’ standard, but less than the
mandate extended coverage in all cases subcontracts or subgrants, with persons actual knowledge standard required
would increase administrative burdens that were already in existence at the under proposed section 320 (now
and costs for those programs without time the person was excluded. The section 325). When the NCR was
commensurate benefits to the taxpayer. commenting agency noted that a published as a final rule in 1988, the
For this reason, the final rule includes participant may face the same issue standard of actual knowledge was
the optional lower tier coverage in with regard to one of its own employees adopted to support a cause for
section 220 as the best way to afford who may be subject to an exclusion debarment under section 305(c)(2). That
adequate protection for the wide while already acting as a principal final rule changed the language from
universe of Federal agency programs under another covered transaction. what had been proposed as a ‘‘known or
without imposing undue administrative Since an agency exclusion imposed reasonably should have known’’
burdens on agencies or participants. under this rule does not apply to standard. That was done to conform the
existing awards, termination options in nonprocurement rule to a FAR
Subpart C such situations can be legally and certification proposed amendments at
Scope of action. One commenter practically complex. Before such an 52 FR 28642–46 (July 31, 1987). See also
recommended that proposed sections action is taken, the option must be discussion at 53 FR 19167 (May 26,
300, 400, 420 and 445 be clarified to carefully analyzed and weighed. We 1988). It was determined then, and we
state that persons checking the believe the same or similar concerns agree now, that actual knowledge of
Excluded Parties List System (EPLS), apply to decisions about employees who ineligibility should be required before
formerly known as the List of Parties serve as principals. Accordingly, section an agency debars a person for doing
Excluded or Disqualified from Federal 315(a) of this final rule has been business with an excluded or
Procurement and Nonprocurement amended to include similar cautionary disqualified person. Therefore, the
Programs, should look at the cause and language. standard under this section in the final
treatment code to see if the listed person Participant verification of its rule remains unchanged.
is ineligible under a statute or executive principals’ eligibility. One commenter Certification. Three of the six
order as opposed to suspended or suggested that proposed section 315 be comments we received on this subject,
debarred under this rule. The cause and clarified so that the reader understands including one from the ABA–PCL,
treatment code will reveal a scope of that a participant need only verify that supported the proposed rule’s
disqualification which may differ from its own principals, and not those of elimination of a current requirement for
a discretionary suspension or lower tier participants, are eligible to certifications. The ABA–PCL also noted
debarment. The EPLS includes cause participate in the covered transaction. that the problems caused by
and treatment codes with each listing, Since a participant may have a certifications could be aggravated, rather
as well as instructions for their use, so transaction both above it and below it, than solved, if some agencies elected to
that the user will know the nature and it is possible to misconstrue this section continue using certifications, and
scope of a person’s ineligibility. This is to obligate the participant to verify the instructions were not issued to preclude
the same system as that currently in principals of those participants above each agency from separately crafting
place and has worked without and below its own organization. The certification language that differed from
problems. We believe that sections language in proposed sections 315 and the language used by the others. We
75(b), 145(b)(1) and 515 of the proposed 325 (now sections 320 and 330 in the agree and note that this comment
rule already adequately address this final rule), was intended to require should be addressed by the joint efforts
matter. Therefore, no additional participants only to verify eligibility of of 26 Federal grant-making agencies to
language in this regard is added to the its own principals in its own implement the streamlining and
final rule. transactions. Participants at lower tiers simplification requirements of the
Participant verification of eligibility of will verify the principals’ eligibility in Federal Financial Assistance
lower tier participant. One commenter their transactions. Accordingly, we Management Improvement Act of 1999
recommended that we clarify that a amended proposed section 315 (now (Pub. Law 106–107). A stated goal of
participant planning to enter into a section 320 in the final rule), to replace those interagency efforts is to eliminate
covered transaction with another entity the phrase ‘‘any principal’’ in the first certifications or assurances that are
at the next lower tier must verify that sentence, with the phrase ‘‘any of your found to be unnecessary and establish
the entity is not excluded or principals.’’ common language for others.
disqualified. We agree. We included a Doing business with an excluded One of the three commenters
new section 300 in the final rule to more person. The same commenter suggested supporting continued use of

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certifications said that certifications potential data entry into the EPLS to Therefore, we did not change this in the
provide the best means of obtaining confirm the identity of individuals. The final rule.
accurate and updated information about collection, use, and dissemination of Scope of action with regard to
a person’s eligibility. That commenter personal identifier information, such as subsidiaries. The ABA–PCL requested
noted that the Office of Federal social security numbers and birth dates, that proposed section 625 be amended
Procurement Policy retained the is widely practiced in private and to address uncertainty about whether an
suspension/debarment certification commercial settings. However, when organization’s suspension or debarment
when the Clinger-Cohen amendments Federal agencies desire to do so, the automatically covers wholly owned
were implemented for Federal issue is more complex. Certain statutes subsidiaries. The 1988 preamble to the
procurement contracts.1 Another designed to protect privacy must be NCR contained a detailed explanation of
comment in support of retaining considered. We believe that this the treatment to be accorded all
certifications suggested that a suggestion has merit and should be subsidiaries of a corporation with regard
certification is the best way for a considered as an enhancement to the to the scope of a debarment or
participant to provide information about current system at a later date. suspension. See 53 FR 19169 (May 26,
itself and its principals, as required by 1988). The 1988 NCR, when proposed,
proposed rule section 330 (now section Subpart F would have included subsidiaries
335 in the final rule), to the Federal Confirmation of receipt of notice by e- automatically within the scope of a
agency with which it is about to engage mail. The ABA–PCL expressed general suspension or debarment action taken
in a covered transaction. support for expanding the options for against the parent company. As a result
We understand and appreciate these delivery of action notices under sections of comments received in 1988, the final
views. However, Federal award officials 615, 725, 820 and 975. It noted that e- NCR removed the term ‘‘subsidiaries’’
can now rely on the electronic EPLS mail notification, unlike notification by from the automatic scope of a
which is available worldwide on the facsimile, is still in an evolutionary suspension or debarment against a
Internet, as opposed to the printed stage and may lack the level of certainty parent company. This was, in part,
version that could be six weeks out of that the notice reaches the intended because separately incorporated entities
date by the time some awarding officials recipient in a timely manner. It may have different shareholder interests
receive them. New technology has suggested that the regulation should involved that may not be notified of the
eliminated any need to require Federal require that e-mails be followed up by action. Also, a subsidiary corporation
agencies to obtain suspension/ notice via regular mail, or that the may receive an award in its own name.
debarment certifications, although the respondent provide the sender with a Procurement and nonprocurement
rule still makes certifications available confirmation of e-mail receipt. award officials must rely on the EPLS to
as an option for any agency with determine the eligibility status of a
circumstances that justify their While still an evolving technology, e- potential contractor or participant.
continued use. In their agency-specific mail is not inferior to traditional mail or There is nothing in the award process
preambles accompanying the Federal facsimile as a means to deliver notice. that will inform the award official that
Register notice of proposed rulemaking, Even current mail with return receipt any potential contractor or participant
only a few agencies proposed to use options does not guarantee that the mail is, or may be, a subsidiary of another
certifications in their covered reaches the intended recipient. Many excluded entity—even if all the
transactions. This suggests that many return receipts are returned to the subsidiary’s stock is owned by the
agencies see alternative methods as an sender as undeliverable or unclaimed. excluded entity. Apart from cases where
opportunity to reduce burdens on Some are signed by a person whose a subsidiary’s name may include part of
participants without reducing signature is not legible. The legal system the parent’s name, there may be nothing
compliance with the rule’s accepts, as legally sufficient, in the EPLS that will cause an award
requirements. Therefore, the final rule constructive notice to bring a matter to official to associate the potential
does not require Federal agencies to conclusion—knowing that actual receipt subsidiary contractor or participant with
obtain certifications. by the intended recipient is not an excluded parent. For these reasons,
guaranteed. This has been equally true the original nonprocurement suspension
Subpart E in the world of suspension and and debarment final rule elected to treat
Identity confirmation by date of birth. debarment. Agencies are occasionally all subsidiaries as ‘‘affiliates.’’ This
The Federation of American Hospitals faced with claims by respondents who means that all entities with a distinct
suggested that section 515 of the rule have been debarred that they did not see legal identity, including wholly-owned
include a field for birth date entries on the notice or decision, or that the subsidiaries, must be provided with a
the GSA List (now called the EPLS). The facsimile notice was mis-delivered. The notice of action, an opportunity to
Federation observed that birth dates are current NCR and FAR debarment rules contest, and written determinations.
currently available in company assume receipt if the notice is sent to The subsidiary will appear with its own
employee databases and are used in the last known address. Because the listing to assure that the Government
other Federal programs to assist in rules allow any debarred person to may effectively enforce the EPLS. Parts
matching identities. The ISDC has been petition for reinstatement at any time, a of a business entity that do not enjoy a
studying the use of birth dates as a person who makes a case for non receipt separate legal standing, such as
of notice is not deprived of an unincorporated divisions and branches,
1 Section 4301(b)(2)(iii) of the Federal Acquisition opportunity to contest an action or have are included within the scope of the
Reform Act of 1996 (Pub. L. 104–106), prohibits its status changed. Requiring duplicate action against the entity.
Federal agencies from imposing non-statutory
certifications on contractors or offerors unless the
mailings or other cumbersome Imputing conduct. One commenter
Federal Acquisition Regulatory Council provides procedures will not significantly observed that a technical reading of
written justification to the Administrator for increase the chance of actual receipt. It section 630 of the proposed rule does
Federal Procurement Policy, and the Administrator would only lengthen the notification not adequately describe imputing
approves the certification requirement in writing.
This justification must include a determination that
process and deprive the agencies of the conduct from a subsidiary to its parent
there is no less burdensome means for ability to take prompt protective action company or between separate corporate
administering and enforcing the agency regulation. and to conduct business efficiently. or other business entities other than

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those engaged in joint ventures. imputation under the reason to know official conducting fact-finding in a
Paragraph (a) of that section refers to standard of section 630(b) is suspension or debarment action, may
imputing conduct from individuals to appropriate. If a person in authority weigh the fact of receipt of benefits
organizations. Paragraph (b) addresses over a business activity can be shown to derived from the conduct against other
imputing conduct from organizations to have deliberately avoided acquiring information available in the record to
individuals. Paragraph (c) addresses information about misconduct that determine whether a person knew or
imputing conduct between businesses would otherwise reasonably be expected approved of, or acquiesced in, the
linked by some form of limited joint to come to their attention in the conduct in question. Therefore, the
venture or agreement. ordinary course of performing their language in the proposed rule is
Many agencies have operated with the duties, they may be deemed to have accurate and remains in the final rule.
understanding that the phrase ‘‘or reason to know of the misconduct under
similar arrangement’’ contained in Subparts G and H
section 630(b).
section 325(b)(3) of the current NCR The reason to know standard of One Federal debarring official noted
allows agencies to impute conduct section 630(b) applies to all situations that the language of section 700(a) of the
between a subsidiary and its parent where conduct is to be imputed to an proposed rule generally requires
company. The proposed rule did not individual. It applies the same standard adequate evidence to suspect that a
alter the current language of the NCR. for imputing conduct between spouses cause for debarment exists as the first
However, after reviewing the proposed or relatives as it does between an part of a two-part test to support a
language, and comments requesting that organization and an individual or suspension. He observed that the
we redraft this section using plain between unrelated individuals. This adequate evidence test makes sense so
language (see General comments on section does not authorize imputing long as the reader applies it to any
plain language format above), we conduct from one individual to another ground under section 800 other than
revised section 630 of this final rule to in a business activity solely upon the section 800(a). A cause for debarment
make clear that, for the purpose of existence of a family or marital under section 800(a) requires the matter
suspension or debarment, Federal relationship between two individuals. to have already progressed to a
agencies may impute misconduct from Other factors, such as age, experience in conviction or judgment. While the
individuals to organizations, from the business, education, financial language in the proposed rule has
organizations to individuals, from capacity, and organizational or existed under the NCR for years without
individuals to other individuals, and operational independence should be apparent confusion, we agree that either
from organizations to organizations, considered along with the relationship section 800(a) should be stated more
where appropriate. Section 630(c) of the before determining that one individual generally such as ‘‘commission of
final rule covers imputing misconduct had reason to know of the misconduct criminal offense or liability for a civil
from any linked organizations, of the other. Where no other factors are matter’’ or section 700 should
including those linked by a parent- present to support imputing conduct to distinguish between suspensions based
subsidiary relationship. This revised a related individual, that individual on causes under section 800(a) and
format and style of section 630 will help may still be subject to action as an those based on causes under sections
eliminate ambiguity existing under the affiliate, if the appropriate degree of 800(b) through (d). To keep the causes
current NCR language and make it more control can be established. for debarment under the FAR and this
understandable to the general public. Another commenter suggested that we rule consistent, we elected not to alter
We also note that this rule retains the delete from section 630 the word the language of section 800(a) in this
reason to know standard as the ‘‘scope’’ to describe application of the final rule. But to improve the clarity
appropriate standard for imputing imputed conduct provisions and we use with respect to suspensions for actions
misconduct to individuals under section the term only with regard to the subject that have not yet progressed to a
630(b). The Circuit Court of Appeals for matter addressed in section 625. We judgment or conviction, we divided
the DC Circuit, in Novicki v. Cook, 946 agree with that clarification and have proposed section 700(a) into two
F.2d 938 (D.C. Cir. 1991), noted that the revised the initial sentence in section paragraphs (a) and (b). Section 700(a) of
reason to know standard was not 630 accordingly. the final rule relates to suspensions
defined in the FAR. Using an analysis That commenter also suggested that based upon indictment, complaint or
of that standard at common law, the the final rule substitute the words ‘‘may other adequate evidence to support
Court reasoned that this standard is not be’’ for the word ‘‘is’’ in the final criminal or civil matters that may
one of strict liability or a should have sentence of paragraphs (a) and (c) of ultimately fall under section 800(a).
known standard that can be met merely section 630 of the proposed rule. The Section 700(b) of the final rule relates to
because of an individual’s position as commenter believed such a change adequate evidence of any other cause for
president of a corporation. We agree would clarify that acceptance of benefits debarment. Proposed section 700(b)
with that interpretation. We also note, derived from the conduct in question becomes section 700(c) in this final rule.
as did the Court, that the debarring alone does not create a conclusive Fact-finding proceedings versus
official in that case had other presumption upon which to impute presenting matters in opposition. A few
information in the record, the nature of conduct. We agree that the mere commenters found proposed rule
which could have reasonably supported acceptance of benefits alone would be sections 740 and 835 confusing because
imputation under the reason to know an insufficient basis upon which to while these sections address meetings
standard under the right circumstances. conclude that a person had knowledge held with the suspending or debarring
Under this rule, if a person in a position of, approved of, or acquiesced in the official to present matters in opposition,
of control, influence or authority over a conduct where evidence suggests the final sentence of each section relates
business activity acquires information otherwise. However, agencies under the to taking witness testimony and
that suggests misconduct and fails to Governmentwide debarment and conducting cross-examination. These
take action to prevent the misconduct suspension system have always used matters apply to fact-finding
from occurring, or to mitigate the acceptance of benefits as one indicator proceedings, not presentation of matters
injurious consequences of the of knowledge, approval or acquiescence. in opposition. Fact-finding proceedings
misconduct once it has occurred, A suspending or debarring official, or an are addressed in sections 745 and 840.

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66540 Federal Register / Vol. 68, No. 228 / Wednesday, November 26, 2003 / Rule and Regulations

Therefore, we moved the language Time limits for decision. One Subpart I
relating to witness testimony and cross- commenter suggested that we amend Define ‘‘procurement’’. One
examination from sections 740 and 835 sections 755 and 870 to require that the commenter recommended adding a
of the proposed rule to sections 745 and suspending or debarring official make a definition of the term ‘‘procurement’’ in
840, respectively, in this final rule. In final decision within 45 days of closing Subpart I to clarify which lower tier
addition, in response to another agency the official record, even in cases where transactions are covered transactions.
comment, we clarified the provisions fact-finding is conducted. Currently The commenter suggested defining
under those sections so that it is clear under the NCR, the 45-day time limit for ‘‘procurement’’ as the acquisition of
that fact-finding privileges of presenting the suspending or debarring official’s supplies and services by contract with
witnesses, evidence and other decision only applies to cases in which a commercial entity, to help distinguish
information, or cross-examination of no fact-finding is required. The lower tier procurement transactions
any witnesses, or confrontation of proposed rule did not alter that from subawards made by research
evidence and information presented, is requirement. However, since the institutions to collaborating research
equally available to respondents and the suspending or debarring official does organizations.
government representatives at those not close the record in any case until We understand the importance of
proceedings. after he or she receives the needed distinguishing procurement
One commenter requested that we information, including the fact-finder’s transactions, which are covered
revise sections 740(b) and 845(c) to findings, there is no reason for the transactions at lower tiers only if they
permit the suspending or debarring suspending or debarring official to treat meet the criteria under section 220 of
official to refer both disputed facts and the rule, from nonprocurement
these cases differently. Accordingly,
issues of law to another official for transactions that are more broadly
sections 755 and 870(a) have been
resolution. The Governmentwide covered under section 210. Adding a
revised to set a 45-day period for final
suspension and debarment provisions definition of the term ‘‘procurement’’ to
decision in all cases, subject to
under the FAR and the NCR provide this rule would be warranted if
only for submitting material facts extension for good cause.
confusion was prevalent among Federal
genuinely in dispute to another official Petitions for reconsideration. One agencies or participant communities
for resolution. In some agencies, the commenter recommended that either about the distinction between
debarring official is in the Office of section 875 or 880 incorporate a procurement and nonprocurement.
General Counsel, in other cases, the minimum six month waiting period However, we do not believe this is the
General Counsel’s Office may review the before a debarred person may petition case. The definition of ‘‘subgrant’’ and
decision before issuance or may advise the debarring official for reconsideration ‘‘subaward’’ in Federal agencies’
the debarring official on legal matters of its period or scope of debarment. We implementation of OMB Circulars A–
while the matter is pending. Each believe there are many reasons that may 102 and A–110, respectively, provide an
agency has the discretion to decide, and justify an adjustment of the period or adequate basis for most agencies and
must determine for itself, how it will scope of a debarment within six months participant communities to make the
handle legal issues in the context of of issuance of the initial decision. For distinction. Specifically, a lower tier
debarment or suspension actions. We example, the debarring official may transaction is a nonprocurement
believe it is in the best interest of the have overlooked important information transaction subject to section 210 if the
Government to continue that practice. in the record, or the debarred person transaction’s purpose is to have the
Furthermore, changing the proposed may be able to establish present lower tier participant perform any part
language in accordance with this responsibility shortly after a debarment of the substantive program from the
request would place the NCR at odds is issued. Unlike the 45-day time limit Federal agency’s primary tier
with the requirements for suspension imposed upon the debarring official in transaction. If it meets this criterion, the
and debarment under the FAR. rendering the initial determination, no lower tier transaction is a
Accordingly, we made no change. nonprocurement transaction even if the
such time limit is imposed in handling
One commenter suggested that the requests for reconsideration under these higher tier participant calls the
final rule clarify whether disputes over sections. The debarring official has transaction a ‘‘contract.’’ In contrast, the
mitigating or aggravating factors would significant discretion in, and control lower tier transaction is procurement
entitle a respondent to a fact-finding subject to section 220 if its purpose is
over, handling requests for
proceeding. The current interpretation the acquisition of goods or services
reconsideration. Debarring officials can
and practice of the agencies in needed by a performer, at any tier, of the
use that discretion in dealing with
suspension and debarment actions substantive program. While we do not
under both the FAR and NCR is that a reconsideration requests, including
believe that adding a definition of
respondent is entitled to a fact-finding frivolous requests, without minimum ‘‘procurement’’ is necessary in this
proceeding on material facts in genuine waiting periods. In a close case, a Governmentwide rule, any Federal
dispute only with regard to establishing minimum waiting period could agency may add clarifying language in
a cause for debarment or suspension. As discourage a debarring official from its own rule if it judges that doing so is
a practical matter, the regulation does imposing a debarment if a company has warranted for its programs. Also, a
not preclude a suspending or debarring made an incomplete demonstration of participant may seek guidance from the
official from using a fact-finding present responsibility. In addition, it awarding Federal agency if necessary.
proceeding to address aggravating or can have a harsh result on the company Conviction. One commenter requested
mitigating factors in dispute if he or she that addresses Government concerns clarification of the term ‘‘entry’’ of
finds it helpful in reaching a final promptly. Most agencies do not appear judgment as it relates to the definition
decision. We left the final rule to have experienced significant of ‘‘conviction’’ in section 925. Under
unchanged to avoid creating an problems handling reconsideration Rule 32 of the Federal Rules of Criminal
appearance of differing standards for requests. Accordingly, the final rule Procedure, a conviction is not final until
fact-finding between the NCR and the does not include a mandatory minimum the entry of a final order. Therefore, a
FAR. waiting period for reconsideration. criminal conviction does not exist to

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support a cause for debarment under continue until the criminal matter is Government rejects the direct/indirect
section 800(a) until the court signs the concluded under NCR section 760(a). cost analysis as being a valid basis upon
Judgment, Commitment or Probation Person. The ABA–PCL also which to apply the exclusion. In
Order (or its equivalent). The proposed questioned whether it is practical to addition, the ABA–PCL’s suggested
rule sought to address this definition so continue including a ‘‘unit of phrase ‘‘required under a covered
that agencies would be free to conclude government’’ within the definition of transaction’’ could be read to require
debarment proceedings where a person for the purpose of taking that the product or service must be
defendant enters a guilty plea or a guilty suspension or debarment actions. The specifically mentioned in the award,
verdict is returned but judgment is commenter notes that units of agreement or transaction. It is the intent
withheld, delayed, or diverted pursuant government often have a unique status of this rule to cover any important
to an alternative sentence or disposition. in Federal agency programs that make service or product that is required to
Accordingly, the proposed rule their suspension or debarment perform the award, whether or not it is
expanded the definition to focus on the impractical. We acknowledge that there directly specified in it. Accordingly, we
practical reality of the criminal is often a unique relationship between altered the definition of ‘‘principal’’ in
proceeding’s conclusion, rather than the the governmental organizations that section 995(b)(3) of the final rule to
technical requirement that a judgment might dissuade a Federal agency from apply to any person who ‘‘* * *
be ‘‘entered.’’ choosing to debar a governmental body Occupies a technical or professional
While acknowledging the legitimacy from Federal nonprocurement position capable of substantially
transactions. However, that is not true influencing the development or
of the Government’s desire to finalize
for all Federal transactions, or for all outcome of an activity required to
debarment proceedings in criminal
units of government. Federal perform the covered transaction.’’
matters concluded under special terms
suspending and debarring officials have (Emphasis added.)
without the benefit of a formal entry of
sufficient discretion and options Fundamental concepts that still apply
judgment, the ABA–PCL expressed
available when dealing with units of under this rule. In addition to
concern that the proposed definition, as
government or their employees that addressing the comments raised during
written, is so broad that it would
allow the official to consider all relevant the comment period in this rulemaking,
capture dispositions that are not the
factors. We do not believe that the we identified important concepts that
functional equivalent of a finding or
Federal Government’s interest in were addressed in the preamble to the
pronouncement of guilt. It observed that protecting its nonprocurement programs original NCR, or that evolved since its
the contexts for such alternate would be enhanced by eliminating all publication, that still apply under this
dispositions vary from case to case, and units of government from the definition final rule. They are being restated here
from jurisdiction to jurisdiction, and of ‘‘person.’’ Such an approach would, to preserve them and to provide useful
that failure to add some boundaries to in effect, create an exemption from guidance on the interpretation and
the expanded definition might coverage and create a void of oversight application of this rule.
discourage resolution of some cases in and accountability for many special Protection not punishment.
a way that is beneficial to the bodies of government that receive Suspension and debarment are
Government and the affected person. Federal funds and benefits. Therefore, administrative actions taken to protect
The ABA–PCL suggested that the phrase the definition of ‘‘person’’ remains the Government’s business interests. It
‘‘or any other resolution’’ in the unchanged in the final rule. should not be used to punish persons
proposed definition be subject to some Principal. The ABA–PCL also for past misconduct or to coerce a
limitation reflective of an admission or expressed concern that the definition of respondent to resolve other criminal,
finding of guilt before being treated as the term ‘‘principal’’ in proposed civil or administrative matters. While
a ground for debarment. We believe the section 995(b)(3) is so broad as to suspension and debarment will
ABA–PCL’s concern is appropriate. potentially result in making it frequently occur as a result of, or at the
Accordingly, the definition of impossible for an individual to find same time as other proceedings, and
‘‘conviction’’ in the final rule is revised employment in their given field. may even be highly dependent upon the
to provide that an alternative Proposed section 995(b)(3) includes any resolution of those other proceedings,
disposition to a criminal entry of a person who ‘‘occupies a technical or suspension and debarment are not
judgment will be treated as the professional position capable of alternatives for using traditional means
functional equivalent of a judgment if it influencing the development or of resolving matters in the appropriate
occurs with the participation of the outcome of an activity that affects a forum. Notwithstanding this precaution,
court; or in a case that involves only an covered transaction.’’ The ABA–PCL the suspending and debarring official
agreement with the prosecutor, if it suggests that this should be narrowed to may resolve any matter otherwise
occurs in the context of an admission of cover an employee who ‘‘occupies a appropriate for suspension or
guilt. In making this assessment, the technical or professional position debarment under the terms of a
debarring official should consider the capable of directly and substantially comprehensive or global agreement that
entire context of the disposition or influencing the development or addresses criminal, civil, enforcement,
resolution, including the nature of the outcome of an activity required under a audit, contract dispute, or other
obligations imposed on or accepted by covered transaction.’’ We agree that the proceeding collateral to it when in the
the person, and any official statements definition of ‘‘principal’’ in proposed best interest of the Government to do so.
made regarding the alternate section 995(b)(3) should be narrowed in It is important for suspending and
disposition. Where a person is an effort to cover critical non­ debarring officials to use balance and
suspended upon commencement of supervisory/managerial positions. sound business judgment in
criminal proceedings which are later However, use of the term ‘‘directly’’ may ascertaining whether to use suspension
held in abeyance to satisfy the terms of confuse the reader to believe that the and debarment to address a matter.
an alternative disposition, and the exclusion will apply only to positions Where other administrative remedies
alternative disposition does not qualify that are charged as a direct cost to the are available, such as disallowing costs
as the functional equivalent of a covered transaction. As noted in the or recovery of sums by set-off, filing of
conviction, the suspension may 1988 preamble to the NCR, the civil claims, or various contractual or

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audit options exist, the suspending or suspend or debar any individual or (d)). Any violation of law, regulation or
debarring official should consider entity that may reasonably be expected agreement; or any conduct, failure to
whether those remedies may be more to be involved in a covered transaction. perform or other event that seriously
appropriate under the circumstances, or The authority to take action against any threatens a Federal nonprocurement or
whether to await the outcome of those person that may be ‘‘ * * * reasonably procurement activity, is subject to
procedures before using the suspension expected to be involved in a covered potential suspension and debarment
or debarment option. transaction,’’ is not intended to operate under this rule. On December 27, 2001,
Covered transactions and principals. as a limitation on an agency’s ability to the Federal Acquisition Regulatory
While much of the NCR is drafted in protect itself. On the contrary, this rule Council issued a final rule (see 66 FR
terms of an ‘‘award’’ being made by the gives agencies broad authority to take 66986–66990), revoking the December
Government or a participant, it is action to protect public programs 20, 2000 amendments to the FAR that
important to note that the concept of against any individual or entity that included, among other things, a
covered transactions is much broader presents a rational business risk to the contractor’s health, safety and
than relationships or benefits that are Government’s nonprocurement environmental record in the contract
conferred through traditional vehicles programs. The answer to the second officer’s pre-award responsibility
such as grants, cooperative agreements, question is that the suspended or review. In so doing, the FAR Council
direct loans, or contracts and debarred person is excluded from being acknowledged that the Governmentwide
subcontracts under them. Loan a principal or participant in any suspension and debarment system is the
guarantees, technical assistance, nonprocurement covered transaction most effective and appropriate forum to
approvals, some licenses and other that is not exempt from coverage under address serious concerns about a
privileges or events, not necessarily the NCR (see section 215). Federal contractor’s or participant’s
involving an award of money, are agencies can freely enter into exempt responsibility for violations of this
covered transactions. Where money is transactions without checking the EPLS, nature.
part of the equation, the direct or collecting certifications or assurances, Transactions in foreign countries. The
indirect nature of a participant’s cost or conditioning the award upon non- prohibitions against using suspended or
does not govern whether the transaction debarment or suspension. Transactions debarred persons in covered
is a ‘‘covered transaction.’’ This is that are exempt from coverage include transactions applies equally to
because many critical services, such as entitlements such as certain social transactions entered into by Federal
professional fees for legal, accounting, security, disability, or welfare benefits, agencies or participants in foreign
engineering and other services may be etc. Exempt transactions also include countries. So long as the transaction is
charged as an indirect cost to the benefits a person receives that are one involving U.S. Executive branch
nonprocurement transaction, but the incidental in nature, such as benefits resources or benefits, the protection
services of that individual or entity are flowing to sellers of a primary residence afforded by the exclusion applies no
still critical to performance. For when the sale is financed by an FHA matter where the covered transaction
example, an accountant or accounting loan, or benefits that occur as a result occurs. The state or country of
firm that is debarred for misconduct of normal government operations, such incorporation, registration, or principal
may be ineligible to perform audit as insurance on deposits in Federal place of business of an excluded entity
services for a grantee under a covered banks, use of the postal services, and is irrelevant to its coverage. The
transaction even though the accounting public use of national parks and prohibition would not apply, however,
services are to be charged by the recreation areas. It is important for if the transaction is exempt because it is
participant as an indirect cost to its agencies to distinguish when a an award to a foreign government entity
grant. beneficiary of a transaction is an as described in section 215(a).
Even where a participant provides intended beneficiary (not necessarily Lead agency. Lead agency is not a
services under a covered transaction the principal or primary beneficiary) jurisdictional concept. It is an
that is being serviced by a volunteer and when a person is an incidental administrative procedure employed by
who has been suspended or debarred, beneficiary. the Federal agencies to bring efficiency,
the prohibition on the participant’s use An agency is not precluded from focus and coordination of resources to
of that volunteer in the capacity of a suspending or debarring any person just bear on any matter which may touch the
principal will apply to the covered because that person happens to be a interests and expertise of several
transaction. participant in one of these non-covered agencies. A respondent has no right to
Where the NCR is otherwise silent, transactions. Indeed, an agency may have any particular agency act as lead
each agency may describe in its own even suspend or debar that person for agency in a suspension or debarment
rule those special transactions it regards misconduct that occurs during action. While section 620 of this rule
as ‘‘covered transactions,’’ and the performance of one of those exempt or allows for agencies to coordinate their
services that when performed on behalf non-covered transactions, e.g., engaging interests and select a lead agency,
of a participant are those of a in mail fraud, or violating an failure to do so does not invalidate the
‘‘principal.’’ Failure to do so may limit environmental permit. actions of the agency that handles the
the agency’s ability to apply the Serious violations of health, safety matter. The ISDC, under its authority in
person’s exclusion to or within the and environmental laws and sections 4 and 5 of E.O. 12549, uses
transaction. regulations. Although the causes for flexible and informal procedures to
Jurisdiction to debar versus the effect debarment do not specifically identify coordinate actions and assist in
of debarment. It is important to separate by name various violations that threaten selecting a lead agency.
the questions: ‘‘Who may an agency the health and safety of workers or Submission of applications, bids and
suspend or debar?’’ and ‘‘What is the threaten the environment, serious proposals versus award. Questions often
excluded person suspended or debarred violations of these laws and regulations arise as to an excluded person’s
from?’’ The definition of ‘‘person’’ in have always been subject to suspension eligibility to submit a bid, application or
section 985 and the authority stated or debarment under several provisions, proposal for or under a covered
under section 135 of this rule answer including section 305(a)(4) and/or (d) of transaction where the bidder, applicant
the first question. An agency may the NCR (now section 800(a)(4) and/or or offeror expects its suspension or

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debarment to end prior to the award debarment) require that the suspending deemed prudent. In this regard the term
date. The NCR, like the FAR, precludes or debarring official base his or her ‘‘immediate’’ does not connote that
awards to excluded persons. Since decision on an appropriate quality of future misconduct, loss, or injury is
eligibility for award is determined at information, according to the probable. A suspending official may
that time, in most procurement and circumstances at hand, so as to preclude conclude that immediate action is
nonprocurement transactions, agencies suspending or debarring a person on the needed based on what a reasonably
often accept bids, applications or basis of empty speculation or on mere prudent business person would be
proposals subject to an eligibility suspicion of wrongdoing. expected to do given the risk potential
determination on the date of award. Suspension, adequate evidence and under the circumstances.
However, this rule does not require that immediate need. The standard for It is also important to note that the
agencies do so. Each agency must suspension is a two part test. First, the standard of evidence for issuing a
determine for itself whether to accept or suspending official must have adequate suspension does not change merely
consider bids, applications or offers evidence that a cause for debarment because the respondent contests the
submitted by an excluded person when exists. Second, the suspending official action and is able to marshal some
there is a possibility that an exclusion must conclude that immediate action is information that conflicts with
may end or be removed before the date necessary to protect Federal interests. In information the Government has
of award. There may be little danger in a criminal case, the adequate evidence provided to the suspending official. In
considering these submissions where it test is met by the presence of an cases where an investigation is still
is clear from the EPLS that a debarment indictment or information. Suspensions underway, particularly when fact-
will end on a date certain. However, based upon evidence other than an finding is not to be conducted at the
where a suspension is in place, or the indictment are common during the request of the prosecuting officials, the
debarred person is anticipating a course of an investigation when the suspending official must be careful not
favorable ruling on a petition for early information available to the suspending to apply the debarment standard of
reinstatement prior to award, caution is official is sufficient to support a preponderance of the evidence when
advised. In any event, it is the reasonable belief that an act or omission deciding whether to continue the
prerogative of the awarding agency to has occurred. In some cases, evidence suspension. To do so would place the
decide whether and under what may be made available to the Government at a disadvantage and bring
conditions it will accept or consider suspending official that is sensitive to the suspension decision out of context
bids, applications or proposals under an ongoing investigation. The with its goal of temporary protection
these circumstances. suspending official may have to review pending the outcome of an investigation
What constitutes a new ‘‘award?’’ the evidence in camera and be unable or legal proceedings. Unless the
Once a person is excluded under this to disclose the evidence to a suspended respondent is able to nullify the
rule, it is important to note that the respondent. In such cases, it is evidentiary basis for the suspension
exclusion applies to awards or important that the suspension notice without regard to resolving disputed
transactions entered into on or after the contain enough information so that the material facts, the Government’s
date of the exclusion. Because of the respondent can make a meaningful evidence may remain adequate to
varying types of agreements and presentation of matters in opposition, support the action. However, a
contracts that may exist, it is not always since a fact-finding proceeding is likely respondent may still attempt to have a
easy to determine whether a transaction to be denied to resolve material facts in suspension removed by addressing the
is part of an existing award or if it is a dispute. In any event, the record must Government’s immediate interests that
new award subject to the exclusion. As contain the evidence that was are at risk. If the respondent can
a rule of thumb, if the transaction in considered in issuing the suspension. demonstrate that the respondent has
question requires the approval of the Even in cases where an indictment is taken protective action to eliminate, or
party awarding the transaction or present, the suspending official must reduce to an acceptable level, the
conferring the benefit, the transaction is determine that immediate action is Government’s risk pending completion
a new award, and subject to the necessary to protect Federal interests of the investigation or legal proceedings,
prohibition on using excluded persons. before imposing a suspension. As noted the suspending official may terminate a
If the transaction is part of a larger in the preamble to the proposed changes suspension even though there is
agreement and the legal obligation and to this rule, the determination of adequate evidence to support a
authority to provide goods or services ‘‘immediate need’’ does not require that suspension.
are already in place, the transaction may the suspending official issue a separate
finding. As stated by the court in Impact Analysis—Executive Order
be regarded as a preexisting transaction.
Coleman American Moving Services, 12866
No-cost time extensions under existing
awards can be treated as part of the Inc. v. Weinberger, 716 F. Supp. 1405 The participating agencies have
existing award at the option of the (M.D. Ala. 1989), immediate need is a examined the economic implications of
agency granting it. conclusion that a suspending official this final rule as required by Executive
Evidence of misconduct versus mere may draw from inferences made from Order 12866, ‘‘Regulatory Planning and
suspicion. Suspension or debarment the facts and circumstances present. In Review.’’ Executive Order 12866 directs
may not be imposed upon mere cases of serious crimes such as fraud agencies to assess all costs and benefits
suspicion of misconduct. While the against the Government, or criminal of available regulatory alternatives and,
procedures under this rule do not activity that threatens the health and when regulation is necessary, to select
require suspending or debarring officials safety of individuals, immediate need regulatory approaches that maximize
to follow formal rules of evidence in may be obvious. In other cases, net benefits (including potential
making decisions, they require that however, a suspending official’s economic, environmental, public health
certain standards of proof of misconduct determination of immediate need may and safety, and other advantages;
be met in order to suspend or debar a not be as clear. It is, therefore, important distributive impacts; and equity).
person. These standards (adequate that the suspending official’s record be Executive Order 12866 classifies a rule
evidence for suspension and sufficient for a reviewing court to as significant if it meets any one of a
preponderance of the evidence for ascertain why immediate action was number of specified conditions,

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including: Having an annual effect on effect on the economy of $100 million l.205 Why is it important to know if a
the economy of $100 million, adversely or more; result in an increase in cost or particular transaction is a covered
affecting a sector of the economy in a prices; or have significant adverse transaction?
l.210 Which nonprocurement transactions
material way, adversely affecting effects on competition, employment,
are covered transactions?
competition, or adversely affecting jobs. investment, productivity, innovation, or l.215 Which nonprocurement transactions
A regulation is also considered a on the ability of United States-based are not covered transactions?
significant regulatory action if it raises companies to compete with foreign- l.220 Are any procurement contracts
novel legal or policy issues. based companies in domestic and included as covered transactions?
Although the participating agencies export markets. l.225 How do I know if a transaction in
have determined that this final rule does which I may participate is a covered
F. Executive Order 13132: Federalism transaction?
not meet the economic significance
threshold of $100 million effect on the This rule will not have substantial Subpart C—Responsibilities of Participants
economy in any one year under Section direct effects on the States, on the Regarding Transactions
3(f)(1), the Office of Management and relationship between the national
Doing Business With Other Persons
Budget has reviewed this final rule as a government and the States, or on the
distribution of power and l.300 What must I do before I enter into a
significant regulatory action under the covered transaction with another person
Executive Order. responsibilities among the various
at the next lower tier?
levels of government. Therefore, in l.305 May I enter into a covered
B. Regulatory Flexibility Act accordance with section 6 of Executive transaction with an excluded or
The Regulatory Flexibility Act (5 Order 13132, the participating agencies disqualified person?
U.S.C. 605(b)) requires that, for each have determined that this rule does not l.310 What must I do if a Federal agency
rule with a ‘‘significant economic have sufficient federalism implications excludes a person with whom I am
impact on a substantial number of small to warrant the preparation of a already doing business in a covered
federalism summary impact statement. transaction?
entities,’’ an analysis must be prepared
l.315 May I use the services of an
describing the rule’s impact on small Text of the Final Common Rules excluded person as a principal under a
entities and identifying any significant covered transaction?
alternatives to the rule that would The text of the final common rules l.320 Must I verify that principals of my
minimize the economic impact on small appear below: covered transactions are eligible to
entities. 1. [Part/Subpart]lis revised to read as participate?
The participating agencies certify that follows: l.325 What happens if I do business with
this rule will not have a significant an excluded person in a covered
[PART/ transaction?
impact on a substantial number of small
SUBPART]lGOVERNMENTWIDE l.330 What requirements must I pass
entities. This rule addresses Federal down to persons at lower tiers with
DEBARMENT AND SUSPENSION
agency procedures for suspension and whom I intend to do business?
(NONPROCUREMENT)
debarment. It clarifies current
Disclosing Information—Primary Tier
requirements under the Sec. Participants
Nonprocurement Common Rule for l.25 How is this part organized?
Debarment and Suspension by l.50 How is this part written? l.335 What information must I provide
l.75 Do terms in this part have special before entering into a covered
reorganizing information and presenting transaction with the [Agency noun]?
that information in a plain language, meanings?
l.340 If I disclose unfavorable information
question-and-answer format. Subpart A—General required under § l.335, will I be
C. Unfunded Mandates Act of 1995 l.100 What does this part do? prevented from participating in the
l.105 Does this part apply to me? transaction?
The Unfunded Mandates Act of 1995 l.110 What is the purpose of the l.345 What happens if I fail to disclose the
(Pub. L. 104–4) requires agencies to nonprocurement debarment and information required under § l.335?
prepare several analytic statements suspension system? l.350 What must I do if I learn of the
before proposing any rule that may l.115 How does an exclusion restrict a information required under § l.335 after
person’s involvement in covered entering into a covered transaction with
result in annual expenditures of $100 the [Agency noun]?
transactions?
million by State, local, Indian Tribal l.120 May we grant an exception to let an
governments or the private sector. Since Disclosing Information—Lower Tier
excluded person participate in a covered
this rule does not result in expenditures Participants
transaction?
of this magnitude, the participating l.125 Does an exclusion under the l.355 What information must I provide to
agencies certify that such statements are nonprocurement system affect a person’s a higher tier participant before entering
not necessary. eligibility for Federal procurement into a covered transaction with that
contracts? participant?
D. Paperwork Reduction Act l.130 Does exclusion under the Federal l.360 What happens if I fail to disclose the
procurement system affect a person’s information required under § l.355?
The participating agencies certify that l.365 What must I do if I learn of
eligibility to participate in
this rule does not impose additional nonprocurement transactions? information required under § l.355 after
reporting or recordkeeping requirements l.135 May the [Agency noun] exclude a entering into a covered transaction with
under the Paperwork Reduction Act of person who is not currently participating a higher tier participant?
1995 (44 U.S.C. chapter 35). in a nonprocurement transaction?
Subpart D—Responsibilities of [Agency
l.140 How do I know if a person is
E. Small Business Regulatory adjective] Officials Regarding Transactions
excluded?
Enforcement Fairness Act of 1996 l.145 Does this part address persons who l.400 May I enter into a transaction with
are disqualified, as well as those who are an excluded or disqualified person?
This rule is not a major rule as l.405 May I enter into a covered
excluded from nonprocurement
defined by section 251 of the Small transactions? transaction with a participant if a
Business Regulatory Enforcement principal of the transaction is excluded?
Fairness Act of 1996, (5 U.S.C. 804). Subpart B—Covered Transactions l.410 May I approve a participant’s use of
This rule will not: Result in an annual l.200 What is a covered transaction? the services of an excluded person?

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l.415 What must I do if a Federal agency l.640 May a settlement include a l.860 What factors may influence the
excludes the participant or a principal voluntary exclusion? debarring official’s decision?
after I enter into a covered transaction? l.645 Do other Federal agencies know if l.865 How long may my debarment last?
l.420 May I approve a transaction with an the [Agency noun] agrees to a voluntary l.870 When do I know if the debarring
excluded or disqualified person at a exclusion? official debars me?
lower tier? Subpart G—Suspension l.875 May I ask the debarring official to
l.425 When do I check to see if a person reconsider a decision to debar me?
is excluded or disqualified? l.700 When may the suspending official l.880 What factors may influence the
l.430 How do I check to see if a person is issue a suspension? debarring official during
excluded or disqualified? l.705 What does the suspending official reconsideration?
l.435 What must I require of a primary tier consider in issuing a suspension? l.885 May the debarring official extend a
l.710 When does a suspension take effect? debarment?
participant?
l.715 What notice does the suspending
l.440 [Reserved]
official give me if I am suspended? Subpart I—Definitions
l.445 What action may I take if a primary
l.720 How may I contest a suspension? l.900 Adequate evidence.

tier participant knowingly does business l.725 How much time do I have to contest
with an excluded or disqualified person? l.905 Affiliate.

a suspension?
l.450 What action may I take if a primary l.910 Agency.

l.730 What information must I provide to


tier participant fails to disclose the l.915 Agent or representative.

the suspending official if I contest a


information required under § l.335? l.920 Civil judgment.

suspension?
l.455 What may I do if a lower tier l.925 Conviction.

l.735 Under what conditions do I get an


participant fails to disclose the additional opportunity to challenge the l.930 Debarment.

information required under § l.355 to facts on which the suspension is based? l.935 Debarring official.

the next higher tier? l.740 Are suspension proceedings formal? l.940 Disqualified.

l.745 How is fact-finding conducted? l.945 Excluded or exclusion.

Subpart E—Excluded Parties List System l.950 Excluded Parties List System.

l.750 What does the suspending official


l.500 What is the purpose of the Excluded consider in deciding whether to continue l.955 Indictment.

Parties List System (EPLS)? or terminate my suspension? l.960 Ineligible or ineligibility.

l.505 Who uses the EPLS? l.755 When will I know whether the l.965 Legal proceedings.

l.510 Who maintains the EPLS? suspension is continued or terminated? l.970 Nonprocurement transaction.

l.515 What specific information is in the l.760 How long may my suspension last? l.975 Notice.

EPLS? l.980 Participant.

l.520 Who places the information into the Subpart H—Debarment l.985 Person.

EPLS? l.800 What are the causes for debarment? l.990 Preponderance of the evidence.

l.525 Whom do I ask if I have questions l.805 What notice does the debarring l.995 Principal.

about a person in the EPLS? official give me if I am proposed for l.1000 Respondent.

l.530 Where can I find the EPLS? debarment? l.1005 State.

l.810 When does a debarment take effect? l.1010 Suspending official.

Subpart F—General Principles Relating to l.1015 Suspension.

l.815 How may I contest a proposed


Suspension and Debarment Actions l.1020 Voluntary exclusion or voluntarily

debarment?
l.600 How do suspension and debarment l.820 How much time do I have to contest excluded.
actions start? a proposed debarment?
l.605 How does suspension differ from Subpart J—[Reserved]
l.825 What information must I provide to
debarment? the debarring official if I contest a Appendix to Part—Covered Transactions
l.610 What procedures does the [Agency proposed debarment?
noun] use in suspension and debarment l.830 Under what conditions do I get an Authority: Sec. 2455, Pub. L. 103–355, 108
actions? additional opportunity to challenge the Stat. 3327; E.O. 12549, 3 CFR, 1986 Comp.,
l.615 How does the [Agency noun] notify facts on which a proposed debarment is p.189; E.O. 12689, 3 CFR, 1989 Comp., p
a person of a suspension or debarment based? .235.
action? l.835 Are debarment proceedings formal?
l.620 Do Federal agencies coordinate l.840 How is fact-finding conducted? § _.25 How is this part organized?
suspension and debarment actions? l.845 What does the debarring official (a) This part is subdivided into ten
l.625 What is the scope of a suspension or consider in deciding whether to debar
debarment? me?
subparts. Each subpart contains
l.630 May the [Agency noun] impute l.850 What is the standard of proof in a information related to a broad topic or
conduct of one person to another? debarment action? specific audience with special
l.635 May the [Agency noun] settle a l.855 Who has the burden of proof in a responsibilities, as shown in the
debarment or suspension action? debarment action? following table:

In subpart . . . You will find provisions related to . . .

A ........................................... general information about this rule.


B ........................................... the types of [Agency adjective] transactions that are covered by the Governmentwide nonprocurement suspen­
sion and debarment system.
C ........................................... the responsibilities of persons who participate in covered transactions.
D ........................................... the responsibilities of [Agency adjective] officials who are authorized to enter into covered transactions.
E ........................................... the responsibilities of Federal agencies for the Excluded Parties List System (Disseminated by the General Serv­
ices Administration).
F ........................................... the general principles governing suspension, debarment, voluntary exclusion and settlement.
G ........................................... suspension actions.
H ........................................... debarment actions.
I ............................................ definitions of terms used in this part.
J ............................................ [Reserved]

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(b) The following table shows which Subpart A—General covered transaction under that agency’s
subparts may be of special interest to regulation for debarment and
you, depending on who you are: § l.100 What does this part do? suspension; or
This part adopts a governmentwide (c) Act as a principal of a person
If you are . . . See sub- system of debarment and suspension for participating in one of those covered
part(s) . . . [Agency adjective] nonprocurement transactions.
activities. It also provides for reciprocal
(1) a participant or principal A, B, C, and I.
exclusion of persons who have been § l.120 May we grant an exception to let
in a nonprocurement trans­ an excluded person participate in a covered
action. excluded under the Federal Acquisition transaction?
(2) a respondent in a suspen- A, B, F, G and Regulation, and provides for the
(a) The [Agency head or designee]
sion action. I. consolidated listing of all persons who
may grant an exception permitting an
(3) a respondent in a debar- A, B, F, H and are excluded, or disqualified by statute,
excluded person to participate in a
ment action. I. executive order, or other legal authority.
(4) a suspending official ........ A, B, D, E, F, particular covered transaction. If the
This part satisfies the requirements in
G and I. [Agency head or designee] grants an
section 3 of Executive Order 12549,
(5) a debarring official ........... A, B, D, E, F, exception, the exception must be in
‘‘Debarment and Suspension’’ (3 CFR
H and I. writing and state the reason(s) for
1986 Comp., p. 189), Executive Order
(6) a (n) [Agency adjective] A, B, D, E and deviating from the governmentwide
official authorized to enter I.
12689, ‘‘Debarment and Suspension’’ (3
policy in Executive Order 12549.
into a covered transaction.
CFR 1989 Comp., p. 235) and 31 U.S.C.
(b) An exception granted by one
(7) Reserved .........................
J. 6101 note (Section 2455, Public Law
agency for an excluded person does not
103–355, 108 Stat. 3327).
extend to the covered transactions of
§ _.50 How is this part written? § l.105 Does this part apply to me? another agency.
(a) This part uses a ‘‘plain language’’ Portions of this part (see table at § l.125 Does an exclusion under the
format to make it easier for the general § l.25(b)) apply to you if you are a(n)— nonprocurement system affect a person’s
public and business community to use. (a) Person who has been, is, or may eligibility for Federal procurement
The section headings and text, often in reasonably be expected to be, a contracts?
the form of questions and answers, must participant or principal in a covered If any Federal agency excludes a
be read together. transaction; person under its nonprocurement
(b) Respondent (a person against common rule on or after August 25,
(b) Pronouns used within this part,
whom the [Agency noun] has initiated 1995, the excluded person is also
such as ‘‘I’’ and ‘‘you,’’ change from
a debarment or suspension action); ineligible to participate in Federal
subpart to subpart depending on the (c) [Agency adjective] debarring or
audience being addressed. The pronoun procurement transactions under the
suspending official; or FAR. Therefore, an exclusion under this
‘‘we’’ always is the [Agency noun]. (d) [Agency adjective] official who is part has reciprocal effect in Federal
(c) The ‘‘Covered Transactions’’ authorized to enter into covered procurement transactions.
diagram in the appendix to this part transactions with non-Federal parties.
shows the levels or ‘‘tiers’’ at which the § l.130 Does exclusion under the Federal
[Agency noun] enforces an exclusion § l.110 What is the purpose of the procurement system affect a person’s
nonprocurement debarment and eligibility to participate in nonprocurement
under this part.
suspension system? transactions?
§ l.75 Do terms in this part have special (a) To protect the public interest, the If any Federal agency excludes a
meanings? Federal Government ensures the person under the FAR on or after
This part uses terms throughout the integrity of Federal programs by August 25, 1995, the excluded person is
text that have special meaning. Those conducting business only with also ineligible to participate in
terms are defined in Subpart I of this responsible persons. nonprocurement covered transactions
(b) A Federal agency uses the under this part. Therefore, an exclusion
part. For example, three important terms
nonprocurement debarment and under the FAR has reciprocal effect in
are—
suspension system to exclude from Federal nonprocurement transactions.
(a) Exclusion or excluded, which Federal programs persons who are not
refers only to discretionary actions presently responsible. § l.135 May the [Agency noun] exclude a
taken by a suspending or debarring (c) An exclusion is a serious action person who is not currently participating in
official under this part or the Federal that a Federal agency may take only to a nonprocurement transaction?
Acquisition Regulation (48 CFR part 9, protect the public interest. A Federal Given a cause that justifies an
subpart 9.4); agency may not exclude a person or exclusion under this part, we may
(b) Disqualification or disqualified, commodity for the purposes of exclude any person who has been
which refers to prohibitions under punishment. involved, is currently involved, or may
specific statutes, executive orders (other reasonably be expected to be involved
§ l.115 How does an exclusion restrict a in a covered transaction.
than Executive Order 12549 and person’s involvement in covered
Executive Order 12689), or other transactions? § l.140 How do I know if a person is
authorities. Disqualifications frequently With the exceptions stated in excluded?
are not subject to the discretion of an §§ l.120, l.315, and l.420, a person Check the Excluded Parties List
agency official, may have a different who is excluded by the [Agency noun] System (EPLS) to determine whether a
scope than exclusions, or have special or any other Federal agency may not: person is excluded. The General
conditions that apply to the (a) Be a participant in a(n) [Agency Services Administration (GSA)
disqualification; and adjective] transaction that is a covered maintains the EPLS and makes it
(c) Ineligibility or ineligible, which transaction under subpart B of this part; available, as detailed in subpart E of this
generally refers to a person who is either (b) Be a participant in a transaction of part. When a Federal agency takes an
excluded or disqualified. any other Federal agency that is a action to exclude a person under the

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nonprocurement or procurement (1) The person who entered into the (1) Do not include any procurement
debarment and suspension system, the transaction with you allows you to contracts awarded directly by a Federal
agency enters the information about the continue your involvement in a agency; but
excluded person into the EPLS. transaction that predates your (2) Do include some procurement
exclusion, as permitted under § l.310 contracts awarded by non-Federal
§ l.145 Does this part address persons
who are disqualified, as well as those who
or § l.415; or participants in nonprocurement covered
are excluded from nonprocurement (2) A(n) [Agency adjective] official transactions (see appendix to this part).
transactions? obtains an exception from the [Agency (b) Specifically, a contract for goods
Except if provided for in Subpart J of head or designee] to allow you to be or services is a covered transaction if
this part, this part— involved in the transaction, as permitted any of the following applies:
(a) Addresses disqualified persons under § l.120. (1) The contract is awarded by a
only to— participant in a nonprocurement
§ l.210 Which nonprocurement
(1) Provide for their inclusion in the transactions are covered transactions?
transaction that is covered under
EPLS; and § l.210, and the amount of the contract
All nonprocurement transactions, as is expected to equal or exceed $25,000.
(2) State responsibilities of Federal
defined in § l.970, are covered (2) The contract requires the consent
agencies and participants to check for
transactions unless listed in § l.215. of a(n) [Agency adjective] official. In
disqualified persons before entering into
(See appendix to this part.) that case, the contract, regardless of the
covered transactions.
(b) Does not specify the— § l.215 Which nonprocurement amount, always is a covered transaction,
(1) [Agency adjective] transactions for transactions are not covered transactions? and it does not matter who awarded it.
which a disqualified person is The following types of For example, it could be a subcontract
ineligible. Those transactions vary on a nonprocurement transactions are not awarded by a contractor at a tier below
case-by-case basis, because they depend covered transactions: a nonprocurement transaction, as shown
on the language of the specific statute, (a) A direct award to— in the appendix to this part.
Executive order, or regulation that (1) A foreign government or foreign (3) The contract is for federally-
caused the disqualification; governmental entity; required audit services.
(2) Entities to which the (2) A public international
disqualification applies; or § l.225 How do I know if a transaction in
organization;
(3) Process that the agency uses to which I may participate is a covered
(3) An entity owned (in whole or in transaction?
disqualify a person. Unlike exclusion, part) or controlled by a foreign
disqualification is frequently not a government; or As a participant in a transaction, you
discretionary action that a Federal (4) Any other entity consisting wholly will know that it is a covered
agency takes. or partially of one or more foreign transaction because the agency
governments or foreign governmental regulations governing the transaction,
Subpart B—Covered Transactions the appropriate agency official, or
entities.
§ l.200 What is a covered transaction? (b) A benefit to an individual as a participant at the next higher tier who
personal entitlement without regard to enters into the transaction with you,
A covered transaction is a
the individual’s present responsibility will tell you that you must comply with
nonprocurement or procurement
(but benefits received in an individual’s applicable portions of this part.
transaction that is subject to the
prohibitions of this part. It may be a business capacity are not excepted). For
Subpart C—Responsibilities of
transaction at— example, if a person receives social
Participants Regarding Transactions
(a) The primary tier, between a security benefits under the
Federal agency and a person (see Supplemental Security Income Doing Business With Other Persons
appendix to this part); or provisions of the Social Security Act, 42
(b) A lower tier, between a participant U.S.C. 1301 et seq., those benefits are § l.300 What must I do before I enter into
in a covered transaction and another not covered transactions and, therefore, a covered transaction with another person
at the next lower tier?
person. are not affected if the person is
excluded. When you enter into a covered
§ l.205 Why is it important if a particular (c) Federal employment. transaction with another person at the
transaction is a covered transaction? next lower tier, you must verify that the
(d) A transaction that the [Agency
The importance of a covered noun] needs to respond to a national or person with whom you intend to do
transaction depends upon who you are. agency-recognized emergency or business is not excluded or disqualified.
(a) As a participant in the transaction, disaster. You do this by:
you have the responsibilities laid out in (e) A permit, license, certificate, or (a) Checking the EPLS; or
Subpart C of this part. Those include similar instrument issued as a means to (b) Collecting a certification from that
responsibilities to the person or Federal regulate public health, safety, or the person if allowed by this rule; or
agency at the next higher tier from environment, unless the [Agency noun] (c) Adding a clause or condition to the
whom you received the transaction, if specifically designates it to be a covered covered transaction with that person.
any. They also include responsibilities transaction.
if you subsequently enter into other § l.305 May I enter into a covered
(f) An incidental benefit that results
covered transactions with persons at the transaction with an excluded or disqualified
from ordinary governmental operations. person?
next lower tier. (g) Any other transaction if the
(b) As a Federal official who enters application of an exclusion to the (a) You as a participant may not enter
into a primary tier transaction, you have transaction is prohibited by law. into a covered transaction with an
the responsibilities laid out in subpart D excluded person, unless the [Agency
of this part. § l.220 Are any procurement contracts noun] grants an exception under § _.120.
(c) As an excluded person, you may included as covered transactions? (b) You may not enter into any
not be a participant or principal in the (a) Covered transactions under this transaction with a person who is
transaction unless— part— disqualified from that transaction,

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unless you have obtained an exception § l.330 What requirements must I pass that you knew at the time you entered
under the disqualifying statute, down to persons at lower tiers with whom into the covered transaction, we may—
Executive order, or regulation. I intend to do business?
(a) Terminate the transaction for
Before entering into a covered material failure to comply with the
§ l.310 What must I do if a Federal transaction with a participant at the
agency excludes a person with whom I am terms and conditions of the transaction;
next lower tier, you must require that or
already doing business in a covered
transaction?
participant to—
(a) Comply with this subpart as a (b) Pursue any other available
(a) You as a participant may continue condition of participation in the remedies, including suspension and
covered transactions with an excluded transaction. You may do so using any debarment.
person if the transactions were in method(s), unless § l.440 requires you
existence when the agency excluded the § l.350 What must I do if I learn of
to use specific methods. information required under § l.335 after
person. However, you are not required (b) Pass the requirement to comply
to continue the transactions, and you entering into a covered transaction with the
with this subpart to each person with [Agency noun]?
may consider termination. You should whom the participant enters into a
make a decision about whether to covered transaction at the next lower At any time after you enter into a
terminate and the type of termination tier. covered transaction, you must give
action, if any, only after a thorough immediate written notice to the [Agency
review to ensure that the action is Disclosing Information—Primary Tier adjective] office with which you entered
proper and appropriate. Participants into the transaction if you learn either
(b) You may not renew or extend that—
§ l.335 What information must I provide
covered transactions (other than no-cost before entering into a covered transaction (a) You failed to disclose information
time extensions) with any excluded with the [Agency noun]? earlier, as required by § l.335; or
person, unless the [Agency noun] grants
Before you enter into a covered (b) Due to changed circumstances,
an exception under § l.120.
transaction at the primary tier, you as you or any of the principals for the
§ l.315 May I use the services of an the participant must notify the [Agency transaction now meet any of the criteria
excluded person as a principal under a adjective] office that is entering into the in § l.335.
covered transaction? transaction with you, if you know that
(a) You as a participant may continue you or any of the principals for that Disclosing Information—Lower Tier
to use the services of an excluded covered transaction: Participants
person as a principal under a covered (a) Are presently excluded or § l.355 What information must I provide
transaction if you were using the disqualified; to a higher tier participant before entering
services of that person in the transaction (b) Have been convicted within the into a covered transaction with that
before the person was excluded. preceding three years of any of the participant?
However, you are not required to offenses listed in § l.800(a) or had a
continue using that person’s services as civil judgment rendered against you for Before you enter into a covered
a principal. You should make a decision one of those offenses within that time transaction with a person at the next
about whether to discontinue that period; higher tier, you as a lower tier
person’s services only after a thorough (c) Are presently indicted for or participant must notify that person if
review to ensure that the action is otherwise criminally or civilly charged you know that you or any of the
proper and appropriate. by a governmental entity (Federal, State principals are presently excluded or
(b) You may not begin to use the or local) with commission of any of the disqualified.
services of an excluded person as a offenses listed in § l.800(a); or § l.360 What happens if I fail to disclose
principal under a covered transaction (d) Have had one or more public the information required under § l.355?
unless the [Agency noun] grants an transactions (Federal, State, or local)
exception under § l.120. terminated within the preceding three If we later determine that you failed
years for cause or default. to tell the person at the higher tier that
§ l.320 Must I verify that principals of my you were excluded or disqualified at the
covered transactions are eligible to § l.340 If I disclose unfavorable time you entered into the covered
participate? information required under § l.335, will I be transaction with that person, we may
Yes, you as a participant are prevented from participating in the pursue any available remedies,
responsible for determining whether transaction? including suspension and debarment.
any of your principals of your covered As a primary tier participant, your
transactions is excluded or disqualified disclosure of unfavorable information § l.365 What must I do if I learn of
from participating in the transaction. about yourself or a principal under information required under § l.355 after
§ l.335 will not necessarily cause us to entering into a covered transaction with a
You may decide the method and higher tier participant?
frequency by which you do so. You deny your participation in the covered
may, but you are not required to, check transaction. We will consider the At any time after you enter into a
the EPLS. information when we determine lower tier covered transaction with a
whether to enter into the covered person at a higher tier, you must
§ l.325 What happens if I do business transaction. We also will consider any provide immediate written notice to that
with an excluded person in a covered additional information or explanation person if you learn either that—
transaction?
that you elect to submit with the (a) You failed to disclose information
If as a participant you knowingly do disclosed information.
business with an excluded person, we earlier, as required by § l.355; or
may disallow costs, annul or terminate § l.345 What happens if I fail to disclose (b) Due to changed circumstances,
the transaction, issue a stop work order, information required under § l.335? you or any of the principals for the
debar or suspend you, or take other If we later determine that you failed transaction now meet any of the criteria
remedies as appropriate. to disclose information under § l.335 in § l.355.

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Subpart D—Responsibilities of (b) A transaction with a person who the time it entered into a covered
[Agency adjective] Officials Regarding is disqualified from that transaction, transaction with you, you may—
Transactions unless you obtain a waiver or exception (a) Terminate the transaction for
under the statute, Executive order, or material failure to comply with the
§ l.400 May I enter into a transaction with regulation that is the basis for the terms and conditions of the transaction;
an excluded or disqualified person?
person’s disqualification. or
(a) You as an agency official may not (b) Pursue any other available
enter into a covered transaction with an § l.425 When do I check to see if a remedies, including suspension and
excluded person unless you obtain an person is excluded or disqualified?
debarment.
exception under § l.120. As an agency official, you must check
(b) You may not enter into any to see if a person is excluded or § l.455 What may I do if a lower tier
transaction with a person who is disqualified before you— participant fails to disclose the information
disqualified from that transaction, (a) Enter into a primary tier covered required under § l.355 to the next higher
unless you obtain a waiver or exception transaction; tier?
under the statute, Executive order, or (b) Approve a principal in a primary If you as an agency official determine
regulation that is the basis for the tier covered transaction; that a lower tier participant failed to
person’s disqualification. (c) Approve a lower tier participant if disclose information, as required by
agency approval of the lower tier § l.355, at the time it entered into a
§ l.405 May I enter into a covered covered transaction with a participant at
participant is required; or
transaction with a participant if a principal
of the transaction is excluded?
(d) Approve a principal in connection the next higher tier, you may pursue any
with a lower tier transaction if agency remedies available to you, including the
As an agency official, you may not
approval of the principal is required. initiation of a suspension or debarment
enter into a covered transaction with a
action.
participant if you know that a principal § l.430 How do I check to see if a person
of the transaction is excluded, unless is excluded or disqualified? Subpart E—Excluded Parties List
you obtain an exception under § l.120. You check to see if a person is System
§ l.410 May I approve a participant’s use
excluded or disqualified in two ways:
(a) You as an agency official must § l.500 What is the purpose of the
of the services of an excluded person? Excluded Parties List System (EPLS)?
check the EPLS when you take any
After entering into a covered
action listed in § l.425. The EPLS is a widely available source
transaction with a participant, you as an of the most current information about
(b) You must review information that
agency official may not approve a persons who are excluded or
a participant gives you, as required by
participant’s use of an excluded person
§ l.335, about its status or the status of disqualified from covered transactions.
as a principal under that transaction,
the principals of a transaction.
unless you obtain an exception under § l.505 Who uses the EPLS?
§ l.120. § l.435 What must I require of a primary (a) Federal agency officials use the
tier participant? EPLS to determine whether to enter into
§ l.415 What must I do if a Federal
agency excludes the participant or a You as an agency official must require a transaction with a person, as required
principal after I enter into a covered each participant in a primary tier under § l.430.
transaction? covered transaction to— (b) Participants also may, but are not
(a) You as an agency official may (a) Comply with subpart C of this part required to, use the EPLS to determine
continue covered transactions with an as a condition of participation in the if—
excluded person, or under which an transaction; and (1) Principals of their transactions are
excluded person is a principal, if the (b) Communicate the requirement to excluded or disqualified, as required
transactions were in existence when the comply with Subpart C of this part to under § l.320; or
person was excluded. You are not persons at the next lower tier with (2) Persons with whom they are
required to continue the transactions, whom the primary tier participant entering into covered transactions at the
however, and you may consider enters into covered transactions. next lower tier are excluded or
termination. You should make a disqualified.
§ l.440 [Reserved]
decision about whether to terminate and (c) The EPLS is available to the
the type of termination action, if any, § l.445 What action may I take if a general public.
only after a thorough review to ensure primary tier participant knowingly does
business with an excluded or disqualified § l.510 Who maintains the EPLS?
that the action is proper.
(b) You may not renew or extend person? In accordance with the OMB
covered transactions (other than no-cost If a participant knowingly does guidelines, the General Services
time extensions) with any excluded business with an excluded or Administration (GSA) maintains the
person, or under which an excluded disqualified person, you as an agency EPLS. When a Federal agency takes an
person is a principal, unless you obtain official may refer the matter for action to exclude a person under the
an exception under § l.120. suspension and debarment nonprocurement or procurement
consideration. You may also disallow debarment and suspension system, the
§ l.420 May I approve a transaction with costs, annul or terminate the agency enters the information about the
an excluded or disqualified person at a transaction, issue a stop work order, or excluded person into the EPLS.
lower tier?
take any other appropriate remedy.
If a transaction at a lower tier is § l.515 What specific information is in the
subject to your approval, you as an § l.450 What action may I take if a EPLS?
agency official may not approve— primary tier participant fails to disclose the (a) At a minimum, the EPLS
(a) A covered transaction with a information required under § l.335? indicates—
person who is currently excluded, If you as an agency official determine (1) The full name (where available)
unless you obtain an exception under that a participant failed to disclose and address of each excluded or
§ l.120; or information, as required by § l.335, at disqualified person, in alphabetical

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order, with cross references if more than enter the following information about (b) As of November 26, 2003, you may
one name is involved in a single action; those persons into the EPLS: also subscribe to a printed version.
(2) The type of action; (a) Information required by However, we anticipate discontinuing
(3) The cause for the action; § l.515(a); the printed version. Until it is
(4) The scope of the action; (b) The Taxpayer Identification discontinued, you may obtain the
(5) Any termination date for the Number (TIN) of the excluded or printed version by purchasing a yearly
action; disqualified person, including the social subscription from the Superintendent of
(6) The agency and name and security number (SSN) for an
Documents, U.S. Government Printing
telephone number of the agency point of individual, if the number is available
and may be disclosed under law; Office, Washington, DC 20402, or by
contact for the action; and
(c) Information about an excluded or calling the Government Printing Office
(7) The Dun and Bradstreet Number
disqualified person, generally within Inquiry and Order Desk at (202) 783–
(DUNS), or other similar code approved
by the GSA, of the excluded or five working days, after— 3238.
disqualified person, if available. (1) Taking an exclusion action;
(2) Modifying or rescinding an Subpart F—General Principles Relating
(b)(1) The database for the EPLS
exclusion action; to Suspension and Debarment Actions
includes a field for the Taxpayer
Identification Number (TIN) (the social (3) Finding that a person is
disqualified; or § l.600 How do suspension and
security number (SSN) for an debarment actions start?
(4) Finding that there has been a
individual) of an excluded or
change in the status of a person who is When we receive information from
disqualified person. listed as disqualified.
(2) Agencies disclose the SSN of an any source concerning a cause for
individual to verify the identity of an § l.525 Whom do I ask if I have questions suspension or debarment, we will
individual, only if permitted under the about a person in the EPLS? promptly report and investigate it. We
Privacy Act of 1974 and, if appropriate, If you have questions about a person refer the question of whether to suspend
the Computer Matching and Privacy in the EPLS, ask the point of contact for or debar you to our suspending or
Protection Act of 1988, as codified in 5 the Federal agency that placed the debarring official for consideration, if
U.S.C. 552(a). person’s name into the EPLS. You may appropriate.
find the agency point of contact from
§ l.520 Who places the information into § l.605 How does suspension differ from
the EPLS.
the EPLS? debarment?
Federal officials who take actions to § l.530 Where can I find the EPLS?
Suspension differs from debarment in
exclude persons under this part or (a) You may access the EPLS through that—
officials who are responsible for the Internet, currently at http://
identifying disqualified persons must epls.arnet.gov.

A suspending official . . . A debarring official . . .

(a) Imposes suspension as a temporary status of ineligibility for pro­ Imposes debarment for a specified period as a final determination that
curement and nonprocurement transactions, pending completion of a person is not presently responsible.
an investigation or legal proceedings.
(b) Must— .................................................................................................
Must conclude, based on a preponderance of the evidence, that the
(1) Have adequate evidence that there may be a cause for debarment person has engaged in conduct that warrants debarment.
of a person; and.
(2) Conclude that immediate action is necessary to protect the Federal
interest.
(c) Usually imposes the suspension first, and then promptly notifies the Imposes debarment after giving the respondent notice of the action
suspended person, giving the person an opportunity to contest the and an opportunity to contest the proposed debarment.
suspension and have it lifted.

§ l.610 What procedures does the known street address, facsimile number, § l.625 What is the scope of a
[Agency noun] use in suspension and or e-mail address of— suspension or debarment?
debarment actions? (1) You or your identified counsel; or If you are suspended or debarred, the
In deciding whether to suspend or (2) Your agent for service of process, suspension or debarment is effective as
debar you, we handle the actions as or any of your partners, officers, follows:
informally as practicable, consistent directors, owners, or joint venturers. (a) Your suspension or debarment
with principles of fundamental fairness. (b) The notice is effective if sent to constitutes suspension or debarment of
any of these persons. all of your divisions and other
(a) For suspension actions, we use the
procedures in this subpart and subpart § l.620 Do Federal agencies coordinate organizational elements from all
G of this part. suspension and debarment actions? covered transactions, unless the
suspension or debarment decision is
(b) For debarment actions, we use the Yes, when more than one Federal
limited—
procedures in this subpart and subpart agency has an interest in a suspension
H of this part. or debarment, the agencies may (1) By its terms to one or more
consider designating one agency as the specifically identified individuals,
§ l.615 How does the [Agency noun] lead agency for making the decision. divisions, or other organizational
notify a person of a suspension or elements; or
Agencies are encouraged to establish
debarment action? (2) To specific types of transactions.
methods and procedures for
(a) The suspending or debarring coordinating their suspension and (b) Any affiliate of a participant may
official sends a written notice to the last debarment actions. be included in a suspension or

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debarment action if the suspending or § l.645 Do other Federal agencies know if § l.715 What notice does the suspending
debarring official— the [Agency noun] agrees to a voluntary official give me if I am suspended?
(1) Officially names the affiliate in the exclusion? After deciding to suspend you, the
notice; and (a) Yes, we enter information suspending official promptly sends you
(2) Gives the affiliate an opportunity regarding a voluntary exclusion into the a Notice of Suspension advising you—
to contest the action. EPLS. (a) That you have been suspended;
§ l.630 May the [Agency noun] impute (b) Also, any agency or person may (b) That your suspension is based
conduct of one person to another? contact us to find out the details of a on—
For purposes of actions taken under voluntary exclusion. (1) An indictment;
this rule, we may impute conduct as (2) A conviction;
follows: Subpart G—Suspension (3) Other adequate evidence that you
(a) Conduct imputed from an § l.700 When may the suspending official have committed irregularities which
individual to an organization. We may issue a suspension? seriously reflect on the propriety of
impute the fraudulent, criminal, or further Federal Government dealings
other improper conduct of any officer, Suspension is a serious action. Using with you; or
director, shareholder, partner, the procedures of this subpart and
(4) Conduct of another person that has
employee, or other individual subpart F of this part, the suspending
been imputed to you, or your affiliation
associated with an organization, to that official may impose suspension only
with a suspended or debarred person;
organization when the improper when that official determines that—
(c) Of any other irregularities in terms
conduct occurred in connection with (a) There exists an indictment for, or sufficient to put you on notice without
the individual’s performance of duties other adequate evidence to suspect, an disclosing the Federal Government’s
for or on behalf of that organization, or offense listed under § l.800(a), or evidence;
with the organization’s knowledge, (b) There exists adequate evidence to (d) Of the cause(s) upon which we
approval or acquiescence. The suspect any other cause for debarment relied under § l.700 for imposing
organization’s acceptance of the benefits listed under § _.800(b) through (d); and suspension;
derived from the conduct is evidence of (c) Immediate action is necessary to (e) That your suspension is for a
knowledge, approval or acquiescence. protect the public interest. temporary period pending the
(b) Conduct imputed from an completion of an investigation or
organization to an individual, or § l.705 What does the suspending official
consider in issuing a suspension? resulting legal or debarment
between individuals. We may impute proceedings;
the fraudulent, criminal, or other (a) In determining the adequacy of the (f) Of the applicable provisions of this
improper conduct of any organization to evidence to support the suspension, the subpart, Subpart F of this part, and any
an individual, or from one individual to suspending official considers how much other [Agency adjective] procedures
another individual, if the individual to information is available, how credible it governing suspension decision making;
whom the improper conduct is imputed is given the circumstances, whether or and
either participated in, had knowledge not important allegations are (g) Of the governmentwide effect of
of, or reason to know of the improper corroborated, and what inferences can your suspension from procurement and
conduct. reasonably be drawn as a result. During nonprocurement programs and
(c) Conduct imputed from one this assessment, the suspending official activities.
organization to another organization. may examine the basic documents,
We may impute the fraudulent, including grants, cooperative § l.720 How may I contest a suspension?
criminal, or other improper conduct of agreements, loan authorizations, If you as a respondent wish to contest
one organization to another organization contracts, and other relevant a suspension, you or your representative
when the improper conduct occurred in documents. must provide the suspending official
connection with a partnership, joint (b) An indictment, conviction, civil with information in opposition to the
venture, joint application, association or judgment, or other official findings by suspension. You may do this orally or
similar arrangement, or when the Federal, State, or local bodies that in writing, but any information
organization to whom the improper determine factual and/or legal matters, provided orally that you consider
conduct is imputed has the power to constitutes adequate evidence for important must also be submitted in
direct, manage, control or influence the purposes of suspension actions. writing for the official record.
activities of the organization responsible (c) In deciding whether immediate
for the improper conduct. Acceptance of § l.725 How much time do I have to
action is needed to protect the public
the benefits derived from the conduct is contest a suspension?
interest, the suspending official has
evidence of knowledge, approval or wide discretion. For example, the (a) As a respondent you or your
acquiescence. suspending official may infer the representative must either send, or make
necessity for immediate action to rrangements to appear and present, the
§ l.635 May the [Agency noun] settle a
debarment or suspension action? protect the public interest either from information and argument to the
the nature of the circumstances giving suspending official within 30 days after
Yes, we may settle a debarment or
rise to a cause for suspension or from you receive the Notice of Suspension.
suspension action at any time if it is in
potential business relationships or (b) We consider the notice to be
the best interest of the Federal
involvement with a program of the received by you—
Government.
Federal Government. (1) When delivered, if we mail the
§ l.640 May a settlement include a notice to the last known street address,
voluntary exclusion? § l.710 When does a suspension take or five days after we send it if the letter
Yes, if we enter into a settlement with effect? is undeliverable;
you in which you agree to be excluded, A suspension is effective when the (2) When sent, if we send the notice
it is called a voluntary exclusion and suspending official signs the decision to by facsimile or five days after we send
has governmentwide effect. suspend. it if the facsimile is undeliverable; or

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(3) When delivered, if we send the (b) You will have an opportunity to § l.755 When will I know whether the
notice by e-mail or five days after we challenge the facts if the suspending suspension is continued or terminated?
send it if the e-mail is undeliverable. official determines that— The suspending official must make a
(1) The conditions in paragraph (a) of written decision whether to continue,
§ l.730 What information must I provide modify, or terminate your suspension
to the suspending official if I contest a
this section do not exist; and
(2) Your presentation in opposition within 45 days of closing the official
suspension?
raises a genuine dispute over facts record. The official record closes upon
(a) In addition to any information and the suspending official’s receipt of final
argument in opposition, as a respondent material to the suspension.
(c) If you have an opportunity to submissions, information and findings
your submission to the suspending of fact, if any. The suspending official
official must identify— challenge disputed material facts under
this section, the suspending official or may extend that period for good cause.
(1) Specific facts that contradict the
statements contained in the Notice of designee must conduct additional § l.760 How long may my suspension
Suspension. A general denial is proceedings to resolve those facts. last?
insufficient to raise a genuine dispute § l.740 Are suspension proceedings (a) If legal or debarment proceedings
over facts material to the suspension; formal? are initiated at the time of, or during
(2) All existing, proposed, or prior your suspension, the suspension may
(a) Suspension proceedings are continue until the conclusion of those
exclusions under regulations conducted in a fair and informal
implementing E.O. 12549 and all similar proceedings. However, if proceedings
manner. The suspending official may are not initiated, a suspension may not
actions taken by Federal, state, or local use flexible procedures to allow you to
agencies, including administrative exceed 12 months.
present matters in opposition. In so (b) The suspending official may
agreements that affect only those doing, the suspending official is not
agencies; extend the 12 month limit under
required to follow formal rules of paragraph (a) of this section for an
(3) All criminal and civil proceedings evidence or procedure in creating an
not included in the Notice of additional 6 months if an office of a U.S.
official record upon which the official Assistant Attorney General, U.S.
Suspension that grew out of facts will base a final suspension decision.
relevant to the cause(s) stated in the Attorney, or other responsible
(b) You as a respondent or your prosecuting official requests an
notice; and
representative must submit any extension in writing. In no event may a
(4) All of your affiliates.
documentary evidence you want the suspension exceed 18 months without
(b) If you fail to disclose this
suspending official to consider. initiating proceedings under paragraph
information, or provide false
information, the [Agency noun] may § l.745 How is fact-finding conducted? (a) of this section.
seek further criminal, civil or (c) The suspending official must
(a) If fact-finding is conducted— notify the appropriate officials under
administrative action against you, as
(1) You may present witnesses and paragraph (b) of this section of an
appropriate.
other evidence, and confront any impending termination of a suspension
§ l.735 Under what conditions do I get an witness presented; and at least 30 days before the 12 month
additional opportunity to challenge the (2) The fact-finder must prepare period expires to allow the officials an
facts on which the suspension is based? written findings of fact for the record. opportunity to request an extension.
(a) You as a respondent will not have (b) A transcribed record of fact-
an additional opportunity to challenge finding proceedings must be made, Subpart H—Debarment
the facts if the suspending official unless you as a respondent and the § l.800 What are the causes for
determines that— [Agency noun] agree to waive it in debarment?
(1) Your suspension is based upon an advance. If you want a copy of the
We may debar a person for—
indictment, conviction, civil judgment, transcribed record, you may purchase it. (a) Conviction of or civil judgment
or other finding by a Federal, State, or for—
local body for which an opportunity to § l.750 What does the suspending official
consider in deciding whether to continue or (1) Commission of fraud or a criminal
contest the facts was provided; terminate my suspension? offense in connection with obtaining,
(2) Your presentation in opposition attempting to obtain, or performing a
contains only general denials to (a) The suspending official bases the
decision on all information contained in public or private agreement or
information contained in the Notice of transaction;
Suspension; the official record. The record
(2) Violation of Federal or State
(3) The issues raised in your includes—
antitrust statutes, including those
presentation in opposition to the (1) All information in support of the
proscribing price fixing between
suspension are not factual in nature, or suspending official’s initial decision to
competitors, allocation of customers
are not material to the suspending suspend you;
between competitors, and bid rigging;
official’s initial decision to suspend, or (2) Any further information and (3) Commission of embezzlement,
the official’s decision whether to argument presented in support of, or theft, forgery, bribery, falsification or
continue the suspension; or opposition to, the suspension; and destruction of records, making false
(4) On the basis of advice from the (3) Any transcribed record of fact- statements, tax evasion, receiving stolen
Department of Justice, an office of the finding proceedings. property, making false claims, or
United States Attorney, a State attorney (b) The suspending official may refer obstruction of justice; or
general’s office, or a State or local disputed material facts to another (4) Commission of any other offense
prosecutor’s office, that substantial official for findings of fact. The indicating a lack of business integrity or
interests of the government in pending suspending official may reject any business honesty that seriously and
or contemplated legal proceedings based resulting findings, in whole or in part, directly affects your present
on the same facts as the suspension only after specifically determining them responsibility;
would be prejudiced by conducting fact- to be arbitrary, capricious, or clearly (b) Violation of the terms of a public
finding. erroneous. agreement or transaction so serious as to

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affect the integrity of an agency nonprocurement programs and (3) All criminal and civil proceedings
program, such as— activities. not included in the Notice of Proposed
(1) A willful failure to perform in Debarment that grew out of facts
accordance with the terms of one or § l.810 When does a debarment take relevant to the cause(s) stated in the
more public agreements or transactions; effect?
notice; and
(2) A history of failure to perform or A debarment is not effective until the (4) All of your affiliates.
of unsatisfactory performance of one or debarring official issues a decision. The (b) If you fail to disclose this
more public agreements or transactions; debarring official does not issue a information, or provide false
or decision until the respondent has had information, the [Agency noun] may
(3) A willful violation of a statutory or an opportunity to contest the proposed seek further criminal, civil or
regulatory provision or requirement debarment. administrative action against you, as
applicable to a public agreement or appropriate.
transaction; § l.815 How may I contest a proposed
(c) Any of the following causes: debarment? § l.830 Under what conditions do I get an
(1) A nonprocurement debarment by If you as a respondent wish to contest additional opportunity to challenge the
any Federal agency taken before October a proposed debarment, you or your facts on which a proposed debarment is
1, 1988, or a procurement debarment by representative must provide the based?
any Federal agency taken pursuant to 48 debarring official with information in (a) You as a respondent will not have
CFR part 9, subpart 9.4, before August opposition to the proposed debarment. an additional opportunity to challenge
25, 1995; You may do this orally or in writing, but the facts if the debarring official
(2) Knowingly doing business with an any information provided orally that determines that—
ineligible person, except as permitted you consider important must also be (1) Your debarment is based upon a
under § l.120; submitted in writing for the official conviction or civil judgment;
(3) Failure to pay a single substantial record. (2) Your presentation in opposition
debt, or a number of outstanding debts contains only general denials to
(including disallowed costs and § l.820 How much time do I have to
contest a proposed debarment?
information contained in the Notice of
overpayments, but not including sums Proposed Debarment; or
owed the Federal Government under the (a) As a respondent you or your (3) The issues raised in your
Internal Revenue Code) owed to any representative must either send, or make presentation in opposition to the
Federal agency or instrumentality, arrangements to appear and present, the proposed debarment are not factual in
provided the debt is uncontested by the information and argument to the nature, or are not material to the
debtor or, if contested, provided that the debarring official within 30 days after debarring official’s decision whether to
debtor’s legal and administrative you receive the Notice of Proposed debar.
remedies have been exhausted; Debarment. (b) You will have an additional
(4) Violation of a material provision of (b) We consider the Notice of opportunity to challenge the facts if the
a voluntary exclusion agreement entered Proposed Debarment to be received by debarring official determines that—
into under § l.640 or of any settlement you— (1) The conditions in paragraph (a) of
of a debarment or suspension action; or (1) When delivered, if we mail the this section do not exist; and
(5) Violation of the provisions of the notice to the last known street address, (2) Your presentation in opposition
Drug-Free Workplace Act of 1988 (41 or five days after we send it if the letter raises a genuine dispute over facts
U.S.C. 701); or is undeliverable;
(d) Any other cause of so serious or material to the proposed debarment.
(2) When sent, if we send the notice (c) If you have an opportunity to
compelling a nature that it affects your by facsimile or five days after we send
present responsibility. challenge disputed material facts under
it if the facsimile is undeliverable; or this section, the debarring official or
§ l.805 What notice does the debarring (3) When delivered, if we send the designee must conduct additional
official give me if I am proposed for notice by e-mail or five days after we proceedings to resolve those facts.
debarment? send it if the e-mail is undeliverable.
After consideration of the causes in § l.835 Are debarment proceedings
§ l.825 What information must I provide formal?
§ l.800 of this subpart, if the debarring to the debarring official if I contest a
official proposes to debar you, the (a) Debarment proceedings are
proposed debarment?
official sends you a Notice of Proposed conducted in a fair and informal
(a) In addition to any information and manner. The debarring official may use
Debarment, pursuant to § l.615,
argument in opposition, as a respondent flexible procedures to allow you as a
advising you—
(a) That the debarring official is your submission to the debarring official respondent to present matters in
considering debarring you; must identify— opposition. In so doing, the debarring
(b) Of the reasons for proposing to (1) Specific facts that contradict the official is not required to follow formal
debar you in terms sufficient to put you statements contained in the Notice of rules of evidence or procedure in
on notice of the conduct or transactions Proposed Debarment. Include any creating an official record upon which
upon which the proposed debarment is information about any of the factors the official will base the decision
based; listed in § l.860. A general denial is whether to debar.
(c) Of the cause(s) under § l.800 insufficient to raise a genuine dispute (b) You or your representative must
upon which the debarring official relied over facts material to the debarment; submit any documentary evidence you
for proposing your debarment; (2) All existing, proposed, or prior want the debarring official to consider.
(d) Of the applicable provisions of exclusions under regulations
this subpart, Subpart F of this part, and implementing E.O. 12549 and all similar § l.840 How is fact-finding conducted?
any other [Agency adjective] procedures actions taken by Federal, State, or local (a) If fact-finding is conducted—
governing debarment; and agencies, including administrative (1) You may present witnesses and
(e) Of the governmentwide effect of a agreements that affect only those other evidence, and confront any
debarment from procurement and agencies; witness presented; and

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(2) The fact-finder must prepare nonexistence of any factor, such as one ethics training and implementing
written findings of fact for the record. of those set forth in this section, is not programs to prevent recurrence.
(b) A transcribed record of fact- necessarily determinative of your (m) Whether your principals tolerated
finding proceedings must be made, present responsibility. In making a the offense.
unless you as a respondent and the debarment decision, the debarring (n) Whether you brought the activity
[Agency noun] agree to waive it in official may consider the following cited as a basis for the debarment to the
advance. If you want a copy of the factors: attention of the appropriate government
transcribed record, you may purchase it. (a) The actual or potential harm or agency in a timely manner.
impact that results or may result from (o) Whether you have fully
§ l.845 What does the debarring official investigated the circumstances
consider in deciding whether to debar me?
the wrongdoing.
(b) The frequency of incidents and/or surrounding the cause for debarment
(a) The debarring official may debar duration of the wrongdoing. and, if so, made the result of the
you for any of the causes in § l.800. investigation available to the debarring
(c) Whether there is a pattern or prior
However, the official need not debar official.
history of wrongdoing. For example, if
you even if a cause for debarment exists. (p) Whether you had effective
you have been found by another Federal
The official may consider the standards of conduct and internal
agency or a State agency to have
seriousness of your acts or omissions control systems in place at the time the
engaged in wrongdoing similar to that
and the mitigating or aggravating factors questioned conduct occurred.
found in the debarment action, the
set forth at § l.860. (q) Whether you have taken
existence of this fact may be used by the
(b) The debarring official bases the appropriate disciplinary action against
debarring official in determining that
decision on all information contained in the individuals responsible for the
you have a pattern or prior history of
the official record. The record activity which constitutes the cause for
wrongdoing.
includes— debarment.
(1) All information in support of the (d) Whether you are or have been (r) Whether you have had adequate
debarring official’s proposed debarment; excluded or disqualified by an agency of time to eliminate the circumstances
(2) Any further information and the Federal Government or have not within your organization that led to the
argument presented in support of, or in been allowed to participate in State or cause for the debarment.
opposition to, the proposed debarment; local contracts or assistance agreements (s) Other factors that are appropriate
and on a basis of conduct similar to one or to the circumstances of a particular case.
(3) Any transcribed record of fact- more of the causes for debarment
finding proceedings. specified in this part. § l.865 How long may my debarment
(e) Whether you have entered into an last?
(c) The debarring official may refer
disputed material facts to another administrative agreement with a Federal (a) If the debarring official decides to
official for findings of fact. The agency or a State or local government debar you, your period of debarment
debarring official may reject any that is not governmentwide but is based will be based on the seriousness of the
resultant findings, in whole or in part, on conduct similar to one or more of the cause(s) upon which your debarment is
only after specifically determining them causes for debarment specified in this based. Generally, debarment should not
to be arbitrary, capricious, or clearly part. exceed three years. However, if
erroneous. (f) Whether and to what extent you circumstances warrant, the debarring
planned, initiated, or carried out the official may impose a longer period of
§ l.850 What is the standard of proof in wrongdoing. debarment.
a debarment action? (g) Whether you have accepted (b) In determining the period of
(a) In any debarment action, we must responsibility for the wrongdoing and debarment, the debarring official may
establish the cause for debarment by a recognize the seriousness of the consider the factors in § l.860. If a
preponderance of the evidence. misconduct that led to the cause for suspension has preceded your
(b) If the proposed debarment is based debarment. debarment, the debarring official must
upon a conviction or civil judgment, the (h) Whether you have paid or agreed consider the time you were suspended.
standard of proof is met. to pay all criminal, civil and (c) If the debarment is for a violation
administrative liabilities for the of the provisions of the Drug-Free
§ l.855 Who has the burden of proof in a Workplace Act of 1988, your period of
debarment action? improper activity, including any
investigative or administrative costs debarment may not exceed five years.
(a) We have the burden to prove that
a cause for debarment exists. incurred by the government, and have § l.870 When do I know if the debarring
(b) Once a cause for debarment is made or agreed to make full restitution. official debars me?
established, you as a respondent have (i) Whether you have cooperated fully (a) The debarring official must make
the burden of demonstrating to the with the government agencies during a written decision whether to debar
satisfaction of the debarring official that the investigation and any court or within 45 days of closing the official
you are presently responsible and that administrative action. In determining record. The official record closes upon
debarment is not necessary. the extent of cooperation, the debarring the debarring official’s receipt of final
official may consider when the submissions, information and findings
§ l.860 What factors may influence the cooperation began and whether you of fact, if any. The debarring official
debarring official’s decision? disclosed all pertinent information may extend that period for good cause.
This section lists the mitigating and known to you. (b) The debarring official sends you
aggravating factors that the debarring (j) Whether the wrongdoing was written notice, pursuant to § l.615 that
official may consider in determining pervasive within your organization. the official decided, either—
whether to debar you and the length of (k) The kind of positions held by the (1) Not to debar you; or
your debarment period. The debarring individuals involved in the wrongdoing. (2) To debar you. In this event, the
official may consider other factors if (l) Whether your organization took notice:
appropriate in light of the circumstances appropriate corrective action or (i) Refers to the Notice of Proposed
of a particular case. The existence or remedial measures, such as establishing Debarment;

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(ii) Specifies the reasons for your controls or has the power to control the Federal Acquisition Regulation (48 CFR
debarment; other or a third person controls or has chapter 1). A person so excluded is
(iii) States the period of your the power to control both. The ways we debarred.
debarment, including the effective use to determine control include, but
§ l.935 Debarring official.
dates; and are not limited to—
(iv) Advises you that your debarment (a) Interlocking management or (a) Debarring official means an agency
is effective for covered transactions and ownership; official who is authorized to impose
contracts that are subject to the Federal (b) Identity of interests among family debarment. A debarring official is
Acquisition Regulation (48 CFR chapter members; either—
1), throughout the executive branch of (c) Shared facilities and equipment; (1) The agency head; or
(d) Common use of employees; or (2) An official designated by the
the Federal Government unless an
(e) A business entity which has been agency head.
agency head or an authorized designee
organized following the exclusion of a (b) [Reserved]
grants an exception.
person which has the same or similar § l.940 Disqualified.
§ l.875 May I ask the debarring official to management, ownership, or principal
reconsider a decision to debar me? Disqualified means that a person is
employees as the excluded person. prohibited from participating in
Yes, as a debarred person you may ask
§ l.910 Agency. specified Federal procurement or
the debarring official to reconsider the
Agency means any United States nonprocurement transactions as
debarment decision or to reduce the required under a statute, Executive
time period or scope of the debarment. executive department, military
department, defense agency, or any order (other than Executive Orders
However, you must put your request in 12549 and 12689) or other authority.
writing and support it with other agency of the executive branch.
Other agencies of the Federal Examples of disqualifications include
documentation. persons prohibited under—
government are not considered
§ l.880 What factors may influence the ‘‘agencies’’ for the purposes of this part (a) The Davis-Bacon Act (40 U.S.C.
debarring official during reconsideration? unless they issue regulations adopting 276(a));
(b) The equal employment
The debarring official may reduce or the governmentwide Debarment and
opportunity acts and Executive orders;
terminate your debarment based on— Suspension system under Executive
or
(a) Newly discovered material orders 12549 and 12689. (c) The Clean Air Act (42 U.S.C.
evidence;
§ l.915 Agent or representative. 7606), Clean Water Act (33 U.S.C. 1368)
(b) A reversal of the conviction or
Agent or representative means any and Executive Order 11738 (3 CFR, 1973
civil judgment upon which your
person who acts on behalf of, or who is Comp., p. 799).
debarment was based;
(c) A bona fide change in ownership authorized to commit, a participant in a § l.945 Excluded or exclusion.
or management; covered transaction. Excluded or exclusion means—
(d) Elimination of other causes for (a) That a person or commodity is
§ l.920 Civil judgment.
which the debarment was imposed; or prohibited from being a participant in
(e) Other reasons the debarring official Civil judgment means the disposition
covered transactions, whether the
finds appropriate. of a civil action by any court of
person has been suspended; debarred;
competent jurisdiction, whether by
proposed for debarment under 48 CFR
§ l.885 May the debarring official extend verdict, decision, settlement,
a debarment?
part 9, subpart 9.4; voluntarily
stipulation, other disposition which excluded; or
(a) Yes, the debarring official may creates a civil liability for the (b) The act of excluding a person.
extend a debarment for an additional complained of wrongful acts, or a final
period, if that official determines that an determination of liability under the § l.950 Excluded Parties List System
extension is necessary to protect the Program Fraud Civil Remedies Act of Excluded Parties List System (EPLS)
public interest. 1988 (31 U.S.C. 3801–3812). means the list maintained and
(b) However, the debarring official disseminated by the General Services
§ l.925 Conviction.
may not extend a debarment solely on Administration (GSA) containing the
the basis of the facts and circumstances Conviction means— names and other information about
upon which the initial debarment action (a) A judgment or any other persons who are ineligible. The EPLS
was based. determination of guilt of a criminal system includes the printed version
(c) If the debarring official decides offense by any court of competent entitled, ‘‘List of Parties Excluded or
that a debarment for an additional jurisdiction, whether entered upon a Disqualified from Federal Procurement
period is necessary, the debarring verdict or plea, including a plea of nolo and Nonprocurement Programs,’’ so
official must follow the applicable contendere; or long as published.
procedures in this subpart, and subpart (b) Any other resolution that is the
functional equivalent of a judgment, § l.955 Indictment.
F of this part, to extend the debarment.
including probation before judgment Indictment means an indictment for a
Subpart I—Definitions and deferred prosecution. A disposition criminal offense. A presentment,
without the participation of the court is information, or other filing by a
§ l.900 Adequate evidence. the functional equivalent of a judgment competent authority charging a criminal
Adequate evidence means only if it includes an admission of guilt. offense shall be given the same effect as
information sufficient to support the an indictment.
reasonable belief that a particular act or § l.930 Debarment.
omission has occurred. Debarment means an action taken by § l.960 Ineligible or ineligibility.
a debarring official under subpart H of Ineligible or ineligibility means that a
§ l.905 Affiliate. this part to exclude a person from person or commodity is prohibited from
Persons are affiliates of each other if, participating in covered transactions covered transactions because of an
directly or indirectly, either one and transactions covered under the exclusion or disqualification.

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§ l.965 Legal proceedings. unit of government, or legal entity, (b) For purposes of this part, State
Legal proceedings means any criminal however organized. does not include institutions of higher
proceeding or any civil judicial education, hospitals, or units of local
§ l.990 Preponderance of the evidence. government.
proceeding, including a proceeding
under the Program Fraud Civil Preponderance of the evidence means
proof by information that, compared § l.1010 Suspending official.
Remedies Act (31 U.S.C. 3801–3812), to
which the Federal Government or a with information opposing it, leads to (a) Suspending official means an
State or local government or quasi- the conclusion that the fact at issue is agency official who is authorized to
governmental authority is a party. The more probably true than not. impose suspension. The suspending
term also includes appeals from those § l.995 Principal. official is either:
proceedings. Principal means— (1) The agency head; or
§ l.970 Nonprocurement transaction. (a) An officer, director, owner, (2) An official designated by the
(a) Nonprocurement transaction partner, principal investigator, or other agency head.
means any transaction, regardless of person within a participant with
management or supervisory (b) [Reserved]
type (except procurement contracts),
including, but not limited to the responsibilities related to a covered § l.1015 Suspension.
following: transaction; or
(b) A consultant or other person, Suspension is an action taken by a
(1) Grants. suspending official under subpart G of
(2) Cooperative agreements. whether or not employed by the
(3) Scholarships. participant or paid with Federal funds, this part that immediately prohibits a
(4) Fellowships. who— person from participating in covered
(5) Contracts of assistance. (1) Is in a position to handle Federal transactions and transactions covered
(6) Loans. funds; under the Federal Acquisition
(7) Loan guarantees. (2) Is in a position to influence or Regulation (48 CFR chapter 1) for a
(8) Subsidies. control the use of those funds; or, temporary period, pending completion
(9) Insurances. (3) Occupies a technical or of an agency investigation and any
(10) Payments for specified uses. professional position capable of judicial or administrative proceedings
(11) Donation agreements. substantially influencing the that may ensue. A person so excluded
(b) A nonprocurement transaction at development or outcome of an activity is suspended.
any tier does not require the transfer of required to perform the covered
Federal funds. transaction. § l.1020 Voluntary exclusion or
voluntarily excluded.
§ l.975 Notice. § l.1000 Respondent.
(a) Voluntary exclusion means a
Notice means a written Respondent means a person against person’s agreement to be excluded
communication served in person, sent whom an agency has initiated a under the terms of a settlement between
by certified mail or its equivalent, or debarment or suspension action. the person and one or more agencies.
sent electronically by e-mail or Voluntary exclusion must have
facsimile. (See § l. 615.) § l.1005 State.
(a) State means— governmentwide effect.
§ l.980 Participant. (1) Any of the states of the United (b) Voluntarily excluded means the
Participant means any person who States; status of a person who has agreed to a
submits a proposal for or who enters (2) The District of Columbia; voluntary exclusion.
into a covered transaction, including an (3) The Commonwealth of Puerto
agent or representative of a participant. Rico; Subpart J—[Reserved]
(4) Any territory or possession of the
§ l.985 Person. Appendix to [Part/Subpart] ll—
United States; or
Person means any individual, (5) Any agency or instrumentality of Covered Transactions
corporation, partnership, association, a state. BILLING CODE 6325–01–P et. al.

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2. [Part/Subpart] is added to read as l.220 By when must I publish my drug- l.510 What actions will the Federal
follows: free workplace statement and establish Government take against a recipient
my drug-free awareness program? determined to have violated this part?
[PART/SUBPART]— l.225 What actions must I take concerning l.515 Are there any exceptions to those
employees who are convicted of drug actions?
GOVERNMENTWIDE REQUIREMENTS
FOR DRUG-FREE WORKPLACE violations in the workplace? Subpart F—Definitions
(FINANCIAL ASSISTANCE) l.230 How and when must I identify l.605 Award.
workplaces? l.610 Controlled substance.
Subpart A—Purpose and Coverage l.615 Conviction.
Subpart C—Requirements for Recipients
Sec. Who Are Individuals l.620 Cooperative agreement.
l.100 What does this part do? l.625 Criminal drug statute.
l.300 What must I do to comply with this l.630 Debarment.
l.105 Does this part apply to me? part if I am an individual recipient? l.635 Drug-free workplace.
l.110 Are any of my Federal assistance l.301 [Reserved] l.640 Employee.
awards exempt from this part?
l.645 Federal agency or agency.
l.115 Does this part affect the Federal Subpart D—Responsibilities of [Agency
l.650 Grant.
contracts that I receive? adjective] Awarding Officials
l.655 Individual.
Subpart B—Requirements for Recipients l.400 What are my responsibilities as l.660 Recipient.
Other Than Individuals a(n)[Agency adjective] awarding official? l.665 State.
l.670 Suspension
l.200 What must I do to comply with this Subpart E—Violations of this Part and
part? Consequences Subpart A—Purpose and Coverage
l.205 What must I include in my drug-free l.500 How are violations of this part
workplace statement? determined for recipients other than § l.100 What does this part do?
l.210 To whom must I distribute my drug- individuals? This part carries out the portion of the
free workplace statement? l.505 How are violations of this part Drug-Free Workplace Act of 1988 (41
l.215 What must I include in my drug-free determined for recipients who are U.S.C. 701 et seq., as amended) that
ER26NO03.000</GPH>

awareness program? individuals? applies to grants. It also applies the

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provisions of the Act to cooperative § l.105 Does this part apply to me? (2) A(n) [Agency adjective] awarding
agreements and other financial (a) Portions of this part apply to you official. (See definitions of award and
assistance awards, as a matter of Federal recipient in §§ l.605 and l.660,
if you are either—
Government policy. respectively.)
(1) A recipient of an assistance award (b) The following table shows the
from the [Agency noun]; or subparts that apply to you:

If you are . . . see subparts . . .

(1) A recipient who is not an individual .................................................... A, B and E.


(2) A recipient who is an individual .......................................................... A, C and E.
(3) A(n) [Agency adjective] awarding official ............................................ A, D and E.

§ l.110 Are any of my Federal assistance to do so as a condition for receiving any workplace and must do so no more than
awards exempt from this part? award covered by this part. The specific five calendar days after the conviction.
This part does not apply to any award measures that you must take in this
that the [Agency head or designee] regard are described in more detail in § l.210 To whom must I distribute my
determines that the application of this drug-free workplace statement?
subsequent sections of this subpart.
part would be inconsistent with the Briefly, those measures are to— You must require that a copy of the
international obligations of the United (1) Publish a drug-free workplace statement described in § l.205 be given
States or the laws or regulations of a statement and establish a drug-free to each employee who will be engaged
foreign government. awareness program for your employees in the performance of any Federal
(see §§ l.205 through l.220); and award.
§ l.115 Does this part affect the Federal (2) Take actions concerning
contracts that I receive?
employees who are convicted of § l.215 What must I include in my drug-
It will affect future contract awards free awareness program?
violating drug statutes in the workplace
indirectly if you are debarred or (see § l.225). You must establish an ongoing drug-
suspended for a violation of the (b) Second, you must identify all free awareness program to inform
requirements of this part, as described known workplaces under your Federal employees about—
in § l. 510(c). However, this part does awards (see § l.230). (a) The dangers of drug abuse in the
not apply directly to procurement workplace;
contracts. The portion of the Drug-Free § l.205 What must I include in my drug-
free workplace statement? (b) Your policy of maintaining a drug-
Workplace Act of 1988 that applies to free workplace;
Federal procurement contracts is carried You must publish a statement that—
(a) Tells your employees that the (c) Any available drug counseling,
out through the Federal Acquisition
unlawful manufacture, distribution, rehabilitation, and employee assistance
Regulation in chapter 1 of Title 48 of the
dispensing, possession, or use of a programs; and
Code of Federal Regulations (the drug-
free workplace coverage currently is in controlled substance is prohibited in (d) The penalties that you may impose
48 CFR part 23, subpart 23.5). your workplace; upon them for drug abuse violations
(b) Specifies the actions that you will occurring in the workplace.
Subpart B—Requirements for take against employees for violating that
prohibition; and § l.220 By when must I publish my drug-
Recipients Other Than Individuals free workplace statement and establish my
(c) Lets each employee know that, as
§ l.200 What must I do to comply with drug-free awareness program?
a condition of employment under any
this part? award, he or she: If you are a new recipient that does
There are two general requirements if (1) Will abide by the terms of the not already have a policy statement as
you are a recipient other than an statement; and described in § l.205 and an ongoing
individual. (2) Must notify you in writing if he or awareness program as described in
(a) First, you must make a good faith she is convicted for a violation of a § l.215, you must publish the
effort, on a continuing basis, to maintain criminal drug statute occurring in the statement and establish the program by
a drug-free workplace. You must agree the time given in the following table:

If . . . then you . . .

(a) The performance period of the award is less than 30 days ..............
must have the policy statement and program in place as soon as pos­
sible, but before the date on which performance is expected to be
completed.
(b) The performance period of the award is 30 days or more ................
must have the policy statement and program in place within 30 days
after award.
(c) You believe there are extraordinary circumstances that will require may ask the [Agency adjective] awarding official to give you more time
more than 30 days for you to publish the policy statement and estab­ to do so. The amount of additional time, if any, to be given is at the
lish the awareness program. discretion of the awarding official.

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§ l.225 What actions must I take State highway department while in this part if the [Agency head or
concerning employees who are convicted operation, State employees in each local designee] determines, in writing, that—
of drug violations in the workplace? unemployment office, performers in (a) The recipient has violated the
There are two actions you must take concert halls or radio studios). requirements of subpart B of this part;
if an employee is convicted of a drug (c) If you identified workplaces to the or
violation in the workplace: [Agency adjective] awarding official at (b) The number of convictions of the
(a) First, you must notify Federal the time of application or award, as recipient’s employees for violating
agencies if an employee who is engaged described in paragraph (a)(1) of this criminal drug statutes in the workplace
in the performance of an award informs section, and any workplace that you is large enough to indicate that the
you about a conviction, as required by identified changes during the recipient has failed to make a good faith
§ l.205(c)(2), or you otherwise learn of performance of the award, you must effort to provide a drug-free workplace.
the conviction. Your notification to the inform the [Agency adjective] awarding § l.505 How are violations of this part
Federal agencies mustl official. determined for recipients who are
(1) Be in writing; individuals?
(2) Include the employee’s position Subpart C—Requirements for
An individual recipient is in violation
title; Recipients Who Are Individuals
of the requirements of this part if the
(3) Include the identification
§ l.300 What must I do to comply with [Agency head or designee] determines,
number(s) of each affected award;
this part if I am an individual recipient? in writing, that—
(4) Be sent within ten calendar days
As a condition of receiving a(n) (a) The recipient has violated the
after you learn of the conviction; and
[Agency adjective] award, if you are an requirements of subpart C of this part;
(5) Be sent to every Federal agency on
individual recipient, you must agree or
whose award the convicted employee (b) The recipient is convicted of a
was working. It must be sent to every that—
(a) You will not engage in the criminal drug offense resulting from a
awarding official or his or her official violation occurring during the conduct
designee, unless the Federal agency has unlawful manufacture, distribution,
dispensing, possession, or use of a of any award activity.
specified a central point for the receipt
of the notices. controlled substance in conducting any § l.510 What actions will the Federal
(b) Second, within 30 calendar days of activity related to the award; and Government take against a recipient
(b) If you are convicted of a criminal determined to have violated this part?
learning about an employee’s
drug offense resulting from a violation If a recipient is determined to have
conviction, you must eitherl
(1) Take appropriate personnel action occurring during the conduct of any violated this part, as described in
against the employee, up to and award activity, you will report the § l.500 or § l.505, the [Agency noun]
including termination, consistent with conviction: may take one or more of the following
(1) In writing.
the requirements of the Rehabilitation (2) Within 10 calendar days of the actions—
Act of 1973 (29 U.S.C. 794), as (a) Suspension of payments under the
conviction.
amended; or award;
(3) To the [Agency adjective]
(2) Require the employee to (b) Suspension or termination of the
awarding official or other designee for
participate satisfactorily in a drug abuse award; and
each award that you currently have, (c) Suspension or debarment of the
assistance or rehabilitation program unless § l.301 or the award document
approved for these purposes by a recipient under [CFR citation for the
designates a central point for the receipt Federal agency’s regulations
Federal, State or local health, law of the notices. When notice is made to
enforcement, or other appropriate implementing Executive Order 12549
a central point, it must include the and Executive Order 12689], for a
agency. identification number(s) of each affected period not to exceed five years.
§ l.230 How and when must I identify award.
workplaces? § l.515 Are there any exceptions to those
§ l.301 [Reserved] actions?
(a) You must identify all known
workplaces under each [Agency Subpart D—Responsibilities of The [Agency head] may waive with
adjective] award. A failure to do so is a [Agency adjective] Awarding Officials respect to a particular award, in writing,
violation of your drug-free workplace a suspension of payments under an
requirements. You may identify the § l.400 What are my responsibilities as award, suspension or termination of an
workplacesl a(n) [Agency adjective] awarding official? award, or suspension or debarment of a
(1) To the [Agency adjective] official As a(n) [Agency adjective] awarding recipient if the [Agency head]
that is making the award, either at the official, you must obtain each determines that such a waiver would be
time of application or upon award; or recipient’s agreement, as a condition of in the public interest. This exception
(2) In documents that you keep on file the award, to comply with the authority cannot be delegated to any
in your offices during the performance requirements in— other official.
of the award, in which case you must (a) Subpart B of this part, if the
recipient is not an individual; or Subpart F—Definitions
make the information available for
inspection upon request by [Agency (b) Subpart C of this part, if the
§ l.605 Award.
adjective] officials or their designated recipient is an individual.
Award means an award of financial
representatives. Subpart E—Violations of this Part and assistance by the [Agency noun] or other
(b) Your workplace identification for Federal agency directly to a recipient.
Consequences
an award must include the actual (a) The term award includes:
address of buildings (or parts of § l.500 How are violations of this part (1) A Federal grant or cooperative
buildings) or other sites where work determined for recipients other than agreement, in the form of money or
under the award takes place. Categorical individuals? property in lieu of money.
descriptions may be used (e.g., all A recipient other than an individual (2) A block grant or a grant in an
vehicles of a mass transit authority or is in violation of the requirements of entitlement program, whether or not the

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66560 Federal Register / Vol. 68, No. 228 / Wednesday, November 26, 2003 / Rule and Regulations

grant is exempted from coverage under Debarment and Suspension § l.655 Individual.
the Governmentwide rule [Agency­ (Nonprocurement), that implements Individual means a natural person.
specific CFR citation] that implements Executive Order 12549 and Executive
OMB Circular A–102 (for availability, Order 12689. § l.660 Recipient.
see 5 CFR 1310.3) and specifies uniform Recipient means any individual,
administrative requirements. § l.635 Drug-free workplace. corporation, partnership, association,
(b) The term award does not include: Drug-free workplace means a site for unit of government (except a Federal
(1) Technical assistance that provides the performance of work done in agency) or legal entity, however
services instead of money. connection with a specific award at organized, that receives an award
(2) Loans. which employees of the recipient are directly from a Federal agency.
(3) Loan guarantees. prohibited from engaging in the
(4) Interest subsidies. § l.665 State.
unlawful manufacture, distribution,
(5) Insurance. dispensing, possession, or use of a State means any of the States of the
(6) Direct appropriations. controlled substance. United States, the District of Columbia,
(7) Veterans’ benefits to individuals the Commonwealth of Puerto Rico, or
(i.e., any benefit to veterans, their § l.640 Employee. any territory or possession of the United
families, or survivors by virtue of the (a) Employee means the employee of States.
service of a veteran in the Armed Forces a recipient directly engaged in the § l.670 Suspension.
of the United States). performance of work under the award, Suspension means an action taken by
§ l.610 Controlled substance. including— a Federal agency that immediately
Controlled substance means a (1) All direct charge employees; prohibits a recipient from participating
controlled substance in schedules I (2) All indirect charge employees, in Federal Government procurement
through V of the Controlled Substances unless their impact or involvement in contracts and covered nonprocurement
Act (21 U.S.C. 812), and as further the performance of work under the transactions for a temporary period,
defined by regulation at 21 CFR 1308.11 award is insignificant to the pending completion of an investigation
through 1308.15. performance of the award; and and any judicial or administrative
(3) Temporary personnel and proceedings that may ensue. A recipient
§ l.615 Conviction. consultants who are directly engaged in so prohibited is suspended, in
Conviction means a finding of guilt the performance of work under the accordance with the Federal Acquisition
(including a plea of nolo contendere) or award and who are on the recipient’s Regulation for procurement contracts
imposition of sentence, or both, by any payroll. (48 CFR part 9, subpart 9.4) and the
judicial body charged with the (b) This definition does not include common rule, Government-wide
responsibility to determine violations of workers not on the payroll of the Debarment and Suspension
the Federal or State criminal drug recipient (e.g., volunteers, even if used (Nonprocurement), that implements
statutes. to meet a matching requirement; Executive Order 12549 and Executive
§ l.620 Cooperative agreement. consultants or independent contractors Order 12689. Suspension of a recipient
not on the payroll; or employees of is a distinct and separate action from
Cooperative agreement means an
subrecipients or subcontractors in suspension of an award or suspension of
award of financial assistance that,
covered workplaces). payments under an award.
consistent with 31 U.S.C. 6305, is used
to enter into the same kind of § l.645 Federal agency or agency. Adoption of Common Rules
relationship as a grant (see definition of Federal agency or agency means any The adoption of the common rules by
grant in § l.650), except that United States executive department, the participating agencies, as modified
substantial involvement is expected military department, government by agency-specific text, is set forth
between the Federal agency and the corporation, government controlled below.
recipient when carrying out the activity corporation, any other establishment in lllllllllllllllllll
contemplated by the award. The term the executive branch (including the
does not include cooperative research Executive Office of the President), or OFFICE OF PERSONNEL
and development agreements as defined any independent regulatory agency. MANAGEMENT
in 15 U.S.C. 3710a.
§ l.650 Grant. 5 CFR Part 970
§ l.625 Criminal drug statute.
Grant means an award of financial RIN 3206–AJ31
Criminal drug statute means a Federal
assistance that, consistent with 31 FOR FURTHER INFORMATION CONTACT: J.
or non-Federal criminal statute
U.S.C. 6304, is used to enter into a David Cope, Debarring Official, Office of
involving the manufacture, distribution,
relationship— the Inspector General, U.S. Office of
dispensing, use, or possession of any
controlled substance. (a) The principal purpose of which is Personnel Management, 1900 E Street,
to transfer a thing of value to the NW., Washington, DC 20415, e-mail
§ l.630 Debarment. recipient to carry out a public purpose debar@opm.gov, fax (202) 606–2153.
Debarment means an action taken by of support or stimulation authorized by SUPPLEMENTARY INFORMATION: The Office
a Federal agency to prohibit a recipient a law of the United States, rather than of Personnel Management adopted the
from participating in Federal to acquire property or services for the Nonprocurement Debarment and
Government procurement contracts and Federal Government’s direct benefit or Suspension Common Rule on May 17,
covered nonprocurement transactions. use; and 1993, following the text of the
A recipient so prohibited is debarred, in (b) In which substantial involvement governmentwide rule as published on
accordance with the Federal Acquisition is not expected between the Federal May 26, 1988 [53 FR 19160]. OPM did
Regulation for procurement contracts agency and the recipient when carrying not adopt subpart F of the common rule,
(48 CFR part 9, subpart 9.4) and the out the activity contemplated by the pertaining to requirements for drug-free
common rule, Government-wide award. workplace (grants), because the agency

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did not issue assistance awards, grants, 970.210 Which nonprocurement 970.415 What must I do if a Federal agency
or other forms of financial or transactions are covered transactions? excludes the participant or a principal
nonfinancial assistance that would be 970.215 Which nonprocurement after I enter into a covered transaction?
transactions are not covered 970.420 May I approve a transaction with
covered by those provisions. For the transactions? an excluded or disqualified person at a
same reasons, OPM is not adopting the 970.220 Are any procurement contracts lower tier?
separate regulatory part on drug-free included as covered transactions? 970.425 When do I check to see if a person
workplace requirements that has been 970.225 How do I know if a transaction in is excluded or disqualified?
developed as part of this which I may participate is a covered 970.430 How do I check to see if a person
governmentwide regulatory package. transaction? is excluded or disqualified?
970.435 What must I require of a primary
List of Subjects in 5 CFR Part 970 Subpart C—Responsibilities of Participants
tier participant?
Regarding Transactions 970.440 What method do I use to
Administrative practice and
Doing Business With Other Persons communicate those requirements to
procedure, Debarment and suspension, participants?
Government employees, Health 970.300 What must I do before I enter into
a covered transaction with another 970.445 What action may I take if a primary
facilities, Health insurance, and Health tier participant knowingly does business
person at the next lower tier?
professions. with an excluded or disqualified person?
970.305 May I enter into a covered
Dated: August 28, 2003. transaction with an excluded or 970.450 What action may I take if a primary
U.S. Office of Personnel Management. disqualified person? tier participant fails to disclose the
970.310 What must I do if a Federal agency information required under § 970.335?
Kay Cole James,
excludes a person with whom I am 970.455 What may I do if a lower tier
Director. participant fails to disclose the
already doing business in a covered
■ For the reasons stated in the common transaction? information required under § 970.355 to
preamble, the Office of Personnel 970.315 May I use the services of an the next higher tier?
Management amends 5 CFR, Code of excluded person as a principal under a Subpart E—Excluded Parties List System
Federal Regulations as follows: covered transaction?
970.320 Must I verify that principals of my 970.500 What is the purpose of the
■ 1. Part 970 is revised as set forth in Excluded Parties List System (EPLS)?
instruction 1 at the end of the common covered transactions are eligible to
participate? 970.505 Who uses the EPLS?
preamble. 970.325 What happens if I do business with 970.510 Who maintains the EPLS?
an excluded person in a covered 970.515 What specific information is in the
PART 970—GOVERNMENTWIDE transaction? EPLS?
DEBARMENT AND SUSPENSION 970.330 What requirements must I pass 970.520 Who places the information into
(NONPROCUREMENT) down to persons at lower tiers with the EPLS?
whom I intend to do business? 970.525 Whom do I ask if I have questions
Sec. about a person in the EPLS?
970.25 How is this part organized? Disclosing Information—Primary Tier 970.530 Where can I find the EPLS?
970.50 How is this part written? Participants
970.75 Do terms in this part have special Subpart F—General Principles Relating to
970.335 What information must I provide Suspension and Debarment Actions
meanings? before entering into a covered
transaction with the OPM? 970.600 How do suspension and debarment
Subpart A—General actions start?
970.340 If I disclose unfavorable
970.100 What does this part do? information required under § 970.335, 970.605 How does suspension differ from
970.105 Does this part apply to me? will I be prevented from participating in debarment?
970.110 What is the purpose of the the transaction? 970.610 What procedures does the OPM use
nonprocurement debarment and 970.345 What happens if I fail to disclose in suspension and debarment actions?
suspension system? the information required under 970.615 How does the OPM notify a person
970.115 How does an exclusion restrict a § 970.335? of a suspension and debarment action?
person’s involvement in covered 970.350 What must I do if I learn of the 970.620 Do Federal agencies coordinate
transactions? information required under § 970.335 suspension and debarment actions?
970.120 May we grant an exception to let an after entering into a covered transaction 970.625 What is the scope of a suspension
excluded person participate in a covered with the OPM? or debarment action?
transaction? 970.630 May the OPM impute the conduct
970.125 Does an exclusion under the Disclosing information—Lower Tier of one person to another?
nonprocurement system affect a person’s Participants 970.635 May the OPM settle a debarment or
eligibility for Federal procurement 970.355 What information must I provide to suspension action?
contracts? a higher tier participant before entering 970.640 May a settlement include a
970.130 Does exclusion under the Federal into a covered transaction with that voluntary exclusion?
procurement system affect a person’s participant? 970.645 Do other Federal agencies know if
eligibility to participate in 970.360 What happens if I fail to disclose the OPM agrees to a voluntary exclusion?
nonprocurement transactions? the information required under
970.135 May the OPM exclude a person § 970.355? Subpart G—Suspension
who is not currently participating in a 970.365 What must I do if I learn of 970.700 When may the suspending official
nonprocurement transaction? information required under § 970.355 issue a suspension?
970.140 How do I know if a person is after entering into a covered transaction 970.705 What does the suspending official
excluded? with a higher tier participant? consider in issuing a suspension?
970.145 Does this part address persons who 970.710 When does a suspension take
are disqualified, as well as those who are Subpart D—Responsibilities of OPM effect?
excluded from nonprocurement Officials Regarding Transactions 970.715 What notice does the suspending
transactions? 970.400 May I enter into a transaction with official give me if I am suspended?
an excluded or disqualified person? 970.720 How may I contest a suspension?
Subpart B—Covered Transactions 970.405 May I enter into a covered 970.725 How much time do I have to
970.200 What is a covered transaction? transaction with a participant if a contest a suspension?
970.205 Why is it important to know if a principal of the transaction is excluded? 970.730 What information must I provide to
particular transaction is a covered 970.410 May I approve a participant’s use the suspending official if I contest a
transaction? of the services of an excluded person? suspension?

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66562 Federal Register / Vol. 68, No. 228 / Wednesday, November 26, 2003 / Rule and Regulations

970.735 Under what conditions do I get an 970.1010 Suspending official.


SUPPLEMENTARY INFORMATION:
additional opportunity to challenge the 970.1015 Suspension.

Sections 3017.765 and 3017.890


facts on which the suspension is based? 970.1020 Voluntary exclusion or

970.740 Are suspension proceedings voluntarily excluded. supplement the procedures in the
formal? common rule for contesting the decision
Subpart J—[Reserved] of the suspending or debarring official
970.745 How is fact-finding conducted?
970.750 What does the suspending official Appendix to Part 970—Covered by allowing for a further appeal of the
consider in deciding whether to continue Transactions decision of the suspending or debarring
or terminate my suspension? official, made in response to a contested
970.755 When will I know whether the Authority: Sec. 2455, Pub.L. 103–355, 108
suspension or debarment, to an
suspension is continued or terminated? Stat. 3327; E.O. 12549, 3 CFR, 1986 Comp.,
970.760 How long may my suspension last? p.189; E.O. 12689, 3 CFR, 1989 Comp., p.235. administrative law judge (‘‘ALJ’’) of the
Department of Agriculture (‘‘USDA’’).
Subpart H—Debarment ■ 2. Part 970 is further amended as set While at present adopting those
970.800 What are the causes for debarment? forth below. provisions as they were proposed on
970.805 What notice does the debarring ■ a. ‘‘[Agency noun]’’ is removed and January 23, 2002, USDA seeks further
official give me if I am proposed for ‘‘OPM’’ is added in its place wherever it comment on whether these provisions
debarment? occurs. are necessary or add substantive value
970.810 When does a debarment take ■ b. ‘‘[Agency adjective]’’ is removed and to the suspension and debarment
effect? ‘‘OPM’’ is added in its place wherever it process.
970.815 How may I contest a proposed occurs. These provisions originally were
debarment? ■ c. ‘‘[Agency head or designee]’’ is
970.820 How much time do I have to
included in the current USDA
removed and ‘‘Debarring Official’’ is nonprocurement suspension and
contest a proposed debarment? added in its place wherever it occurs.
970.825 What information must I provide to debarment regulation (7 CFR 3017.515)
■ 3. Section 970.440 is added to read as because it was thought that the courts
the debarring official if I contest a
proposed debarment? follows: would give more deference to the
970.830 Under what conditions do I get an § 970.440 What method do I use to findings of an ALJ than to those of an
additional opportunity to challenge the communicate those requirements to executive branch agency’s suspending
facts on which a proposed debarment is participants? or debarring official. That has not been
based?
970.835 Are debarment proceedings formal? To communicate the requirement, you the experience of USDA, and in fact the
970.840 How is fact-finding conducted? must include a term or condition in the decisions of other executive agencies
970.845 What does the debarring official transaction requiring the participants’ without appeal from decisions made by
consider in deciding whether to debar compliance with subpart C of this part the suspending or debarring official
me? and requiring them to include a similar under the contest provision in the
970.850 What is the standard of proof in a term or condition in lower-tier covered common rule have withstood judicial
debarment action? transactions. scrutiny. Accordingly, since the
970.855 Who has the burden of proof in a
lllllllllllllllllll common rule does not require appeal to
debarment action? an ALJ, USDA is considering removing
970.860 What factors may influence the DEPARTMENT OF AGRICULTURE sections 3017.765 and 3017.890 in the
debarring official’s decision?
970.865 How long may my debarment last? 7 CFR Parts 3017 and 3021 final rule in order to eliminate an
970.870 When do I know if the debarring unnecessary, time-consuming, and
RIN 0505–AA11 costly stage of litigation.
official debars me?
970.875 May I ask the debarring official to SUMMARY: The United States Department Section 3017.935(b) and 3017.1010(b)
reconsider a decision to debar me? of Agriculture (USDA) adopts the of the proposed rule would have
970.880 What factors may influence the common rule on nonprocurement authorized the Secretary of Agriculture
debarring official during debarment and suspension and drug- to delegate the authority to be the
reconsideration? free workplace on an interim final basis debarring or suspending official,
970.885 May the debarring official extend a solely in order to request further respectively, to the Administrators of
debarment? comment on §§ 3017.765 and 3017.890. USDA program agencies, who further
Subpart I—Definitions DATES: Comments should be submitted would have been authorized to
970.900 Adequate evidence. on or before January 26, 2004 in order redelegate that authority except for the
970.905 Affiliate. to be ensured of consideration. authority to make a final debarment or
970.910 Agency. Comments received after this date may suspension decision. The proposed rule,
970.915 Agent or representative. be considered to the extent practicable. if adopted as final, would have had the
970.920 Civil judgment. ADDRESSES: Comments should be sent to effect of repealing the authority in the
970.925 Conviction. Tyson Whitney, OCFO–PAD Room current rule in 7 CFR 3017.105
970.930 Debarment.
3448A, Mail Stop 9020, 1400 authorizing the Chief of the Forest
970.935 Debarring official.
970.940 Disqualified. Independence Avenue, SW., Service to redelegate the authority to
970.945 Excluded or exclusion. Washington, DC 20250–9020, (202) 720– make final debarment or suspension
970.950 Excluded Parties List System. 8978. Comments may also be submitted decisions to the Deputy Chief or an
970.955 Indictment. via electronic mail to Associate Deputy Chief for the National
970.960 Ineligible or ineligibility. twhitney@cfo.usda.gov. All comments, Forest System. In the interim final rule,
970.965 Legal proceedings. including names and addresses, will USDA is revising the text of sections
970.970 Nonprocurement transaction. become a matter of public record. 3017.935(b) and 3017.1010(b) to
970.975 Notice. FOR FURTHER INFORMATION CONTACT: preserve the authority of the Chief of the
970.980 Participant.
970.985 Person.
Tyson Whitney, OCFO–PAD Room Forest Service to redelegate his
970.990 Preponderance of the evidence. 3448A, Mail Stop 9020, 1400 authority to the Deputy Chief or an
970.995 Principal. Independence Avenue, SW., Associate Deputy Chief. Since this is a
970.1000 Respondent. Washington, DC 20250–9020, (202) 720– rule of internal agency management,
970.1005 State. 8978. notice and comment for this change is

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not required. The text is also revised to 3017.140 How do I know if a person is 3017.365 What must I do if I learn of
reflect the delegation to the head of an excluded? information required under § 3017.355
organizational unit of the Department, 3017.145 Does this part address persons after entering into a covered transaction
instead of an administrator, because not who are disqualified, as well as those with a higher tier participant?
who are excluded from nonprocurement
all organizational units of the transactions?
Subpart D—Responsibilities of Department
Department are headed by an of Agriculture Officials Regarding
administrator. Some additional changes Subpart B—Covered Transactions Transactions
to the proposed rule language are made 3017.200 What is a covered transaction? 3017.400 May I enter into a transaction
in this interim final rule to improve 3017.205 Why is it important to know if a with an excluded or disqualified person?
grammar and conform to the plain particular transaction is a covered 3017.405 May I enter into a covered
English model of regulatory drafting. transaction? transaction with a participant if a
3017.210 Which nonprocurement principal of the transaction is excluded?
List of Subjects transactions are covered transactions? 3017.410 May I approve a participant’s use
3017.215 Which nonprocurement of the services of an excluded person?
7 CFR Part 3017 transactions are not covered 3017.415 What must I do if a Federal
Administrative practice and transactions? agency excludes the participant or a
procedure, Debarment and suspension, 3017.220 Are any procurement contracts principal after I enter into a covered
Grant programs-agriculture, Loan included as covered transactions? transaction?
programs-agriculture, Reporting and 3017.225 How do I know if a transaction in 3017.420 May I approve a transaction with
which I may participate is a covered an excluded or disqualified person at a
recordkeeping requirements.
transaction? lower tier?
7 CFR Part 3021 3017.425 When do I check to see if a person
Subpart C—Responsibilities of Participants is excluded or disqualified?
Administrative practice and Regarding Transactions Doing Business 3017.430 How do I check to see if a person
procedure, Drug abuse, Grant programs- With Other Persons is excluded or disqualified?
agriculture, Loan programs-agriculture, 3017.300 What must I do before I enter into 3017.435 What must I require of a primary
Reporting and recordkeeping a covered transaction with another tier participant?
requirements. person at the next lower tier? 3017.440 What method do I use to
3017.305 May I enter into a covered communicate those requirements to
Dated: August 6, 2003.
transaction with an excluded or participants?
Ann M. Veneman, disqualified person? 3017.445 What action may I take if a
Secretary of Agriculture. 3017.310 What must I do if a Federal primary tier participant knowingly does
■ For the reasons stated in the common agency excludes a person with whom I business with an excluded or
preamble, the United States Department am already doing business in a covered disqualified person?
transaction? 3017.450 What action may I take if a
of Agriculture amends 7 CFR chapter 3017.315 May I use the services of an primary tier participant fails to disclose
XXX, as follows: excluded person as a principal under a the information required under
■ 1. Part 3017 is revised to read as set covered transaction? § 3017.335?
forth in instruction 1 at the end of the 3017.320 Must I verify that principals of my 3017.455 What may I do if a lower tier
common preamble. covered transactions are eligible to participant fails to disclose the
participate? information required under § 3017.355 to
PART 3017—GOVERNMENTWIDE 3017.325 What happens if I do business the next higher tier?
DEBARMENT AND SUSPENSION with an excluded person in a covered
Subpart E—Excluded Parties List System
(NONPROCUREMENT) transaction?
3017.330 What requirements must I pass 3017.500 What is the purpose of the
Sec.
down to persons at lower tiers with Excluded Parties List System (EPLS)?
3017.25 How is this part organized?
whom I intend to do business? 3017.505 Who uses the EPLS?
3017.50 How is this part written?
3017.510 Who maintains the EPLS?
3017.75 Do terms in this part have special
Disclosing Information—Primary Tier 3017.515 What specific information is in
meanings? Participants the EPLS?
3017.335 What information must I provide 3017.520 Who places the information into
Subpart A—General before entering into a covered the EPLS?
3017.100 What does this part do? transaction with the Department of 3017.525 Whom do I ask if I have questions
3017.105 Does this part apply to me? Agriculture? about a person in the EPLS?
3017.110 What is the purpose of the 3017.340 If I disclose unfavorable 3017.530 Where can I find the EPLS?
nonprocurement debarment and information required under § 3017.335,
suspension system? Subpart F—General Principles Relating to
will I be prevented from participating in
3017.115 How does an exclusion restrict a Suspension and Debarment Actions
the transaction?
person’s involvement in covered 3017.345 What happens if I fail to disclose 3017.600 How do suspension and
transactions? the information required under debarment actions start?
3017.120 May we grant an exception to let § 3017.335? 3017.605 How does suspension differ from
an excluded person participate in a 3017.350 What must I do if I learn of the debarment?
covered transaction? information required under § 3017.335 3017.610 What procedures does the
3017.125 Does an exclusion under the after entering into a covered transaction Department of Agriculture use in
nonprocurement system affect a person’s with the Department of Agriculture? suspension or debarment actions?
eligibility for Federal procurement 3017.615 How does the Department of
contracts? Disclosing Information—Lower Tier Agriculture notify a person of a
3017.130 Does exclusion under the Federal Participants suspension and debarment action?
procurement system affect a person’s 3017.355 What information must I provide 3017.620 Do Federal agencies coordinate
eligibility to participate in to a higher tier participant before suspension and debarment actions?
nonprocurement transactions? entering into a covered transaction with 3017.625 What is the scope of a suspension
3017.135 May the Department of that participant? or debarment action?
Agriculture exclude a person who is not 3017.360 What happens if I fail to disclose 3017.630 May the Department of
currently participating in a the information required under Agriculture impute the conduct of one
nonprocurement transaction? § 3017.355? person to another?

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3017.635 May the Department of 3017.880 What factors may influence the ■ 4. Section 3017.215 is further amended
Agriculture settle a debarment or debarring official during by adding paragraphs (h) through (p) to
suspension action? reconsideration? read as follows:
3017.640 May a settlement include a 3017.885 May the debarring official extend
voluntary exclusion? a debarment? § 3017.215 Which nonprocurement
3017.645 Do other Federal agencies know if 3017.890 How may I appeal my debarment? transactions are not covered transactions?
the Department of Agriculture agrees to
a voluntary exclusion? Subpart I—Definitions * * * * *
3017.900 Adequate evidence.
(h) An entitlement or mandatory
Subpart G—Suspension award required by a statute, including a
3017.905 Affiliate.

3017.700 When may the suspending official 3017.910 Agency.


lower tier entitlement or mandatory
issue a suspension? 3017.915 Agent or representative.
award that is required by a statute.
3017.705 What does the suspending official 3017.920 Civil judgment.
(i) With respect to the Department of
consider in issuing a suspension? 3017.925 Conviction.
Agriculture’s export and foreign
3017.710 When does a suspension take 3017.930 Debarment.

effect? assistance programs, any transaction


3017.935 Debarring official.
below the primary tier covered
3017.715 What notice does the suspending 3017.940 Disqualified.

official give me if I am suspended? transaction other than a


3017.945 Excluded or exclusion.

3017.720 How may I contest a suspension? 3017.950 Excluded Parties List System.
nonprocurement transaction under the
3017.725 How much time do I have to 3017.955 Indictment.
Market Access Program between a
contest a suspension? 3017.960 Ineligible or ineligibility.
nonprofit trade association or state
3017.730 What information must I provide 3017.965 Legal proceedings.
regional group and a U.S. entity, as
to the suspending official if I contest a 3017.970 Nonprocurement transaction.
defined in part 1485 of this title.
suspension? 3017.975 Notice.

3017.735 Under what conditions do I get an


(j) Any transaction under the
3017.980 Participant.
Department of Agriculture’s
additional opportunity to challenge the 3017.985 Person.

facts on which the suspension is based? conservation programs, warehouse


3017.990 Preponderance of the evidence.

3017.740 Are suspension proceedings licensing programs, or programs that


3017.995 Principal.

formal?
3017.1000 Respondent.
provide statutory entitlements and make
3017.745 How is fact-finding conducted? available loans to individuals and
3017.1005 State.

3017.750 What does the suspending official entities in their capacity as producers of
3017.1010 Suspending official.

consider in deciding whether to continue agricultural commodities.


3017.1015 Suspension.

or terminate my suspension?
3017.1020 Voluntary exclusion or
(k) The export or substitution of
3017.755 When will I know whether the
suspension is continued or terminated?
voluntarily excluded. Federal timber governed by the Forest
3017.760 How long may my suspension Subpart J—[Reserved] Resources Conservation and Shortage
last? Relief Act of 1990, 16 U.S.C. 620 et seq.
3017.765 How may I appeal my Appendix to Part 3017—Covered (The ‘‘Export Act’’), which provides
suspension? Transactions separate statutory authority to debar.
Subpart H—Debarment Authority: 5 U.S.C. 301; Pub. L. 101–576, (l) The receipt of licenses, permits,
104 Stat. 2838; Sec. 2455, Pub. L. 103–355, certificates, and indemnification under
3017.800 What are the causes for
debarment? 108 Stat. 3327 (31 U.S.C. 6101 note); E.O. regulatory programs conducted in the
3017.805 What notice does the debarring 12549 (3 CFR, 1986 Comp., p. 189); E.O. interest of public health and safety, and
official give me if I am proposed for 12698 (3 CFR, 1989 Comp., p. 235); 7 CFR animal and plant health and safety.
debarment? 2.28. (m) The receipt of official grading and
3017.810 When does a debarment take inspection services, animal damage
effect?
■ 2. Part 3017 is further amended as set
control services, public health and
3017.815 How may I contest a proposed forth below:
safety inspection services, and animal
debarment? ■ a. ‘‘[Agency noun]’’ is removed and
and plant health and safety inspection
3017.820 How much time do I have to ‘‘Department of Agriculture’’ is added in
services.
contest a proposed debarment? its place wherever it occurs. (n) If the person is a State or local
3017.825 What information must I provide ■ b. ‘‘[Agency adjective]’’ is removed and
to the debarring official if I contest a government, the provision of official
‘‘Department of Agriculture’’ is added in grading and inspection services, animal
proposed debarment?
3017.830 Under what conditions do I get an
its place wherever it occurs. damage control services, animal and
additional opportunity to challenge the ■ c. ‘‘[Agency head or designee]’’ is plant health and safety inspection
facts on which the proposed debarment removed and ‘‘the Secretary of services.
is based? Agriculture or designee’’ is added in its (o) The receipt of licenses, permit, or
3017.835 Are debarment proceedings place wherever it occurs. certificates under regulatory programs
formal?
■ 3. Section 3017.50 is further amended conducted in the interest of ensuring
3017.840 How is fact-finding conducted?
3017.845 What does the debarring official by adding a sentence at the end of fair trade practices.
consider in deciding whether to debar paragraph (c) to read as follows: (p) Permits, licenses, exchanges and
me? other acquisitions of real property,
§ 3017.50 How is this part written?
3017.850 What is the standard of proof in rights of way, and easements under
a debarment action? * * * * * natural resource management programs.
3017.855 Who has the burden of proof in a (c) * * * However, this diagram ■ 5. Section 3017.220 is amended by
debarment action? shows only the general model for the
3017.860 What factors may influence the
adding paragraph (c) to read as follows:
levels or ‘‘tiers’’ at which the
debarring official’s decision? Department of Agriculture enforces an § 3017.220 Are any procurement contracts
3017.865 How long may my debarment included as covered transactions?
last?
exclusion under this part, and the
3017.870 When do I know if the debarring model will vary for certain categories of * * * * *
official debars me? transactions in accordance with the (c) A contract for the procurement of
3017.875 May I ask the debarring official to exclusions from covered transactions in ocean transportation in connection with
reconsider a decision to debar me? § 3017.215 and § 3017.220. the Department of Agriculture’s foreign

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assistance programs is a covered (d) The appeals officer’s decision is § 3017.935 Debarring official.
transaction. With respect to the final and is not appealable within * *
* * *
Department of Agriculture’s export and USDA. (b) The head of an organizational unit
foreign assistance programs, such ■ 9. Section 3017.800 is further amended within the Department of Agriculture
contracts are the only procurement by adding paragraph (e) to read as (e.g., Administrator, Food and Nutrition
contracts included as covered follows: Service), who has been delegated
transactions, notwithstanding the authority in part 2 of this title to carry
provisions in paragraphs (a) and (b) of § 3017.800 What are the causes of
debarment? out a covered transaction, is delegated
this section. authority to act as the debarring official
■ 6. Section 3017.440 is added to read as * * * * *
in connection with such transaction.
follows: (e) Notwithstanding paragraph (c) (1)
This authority to act as a debarring
of this section, within the Department of
official may not be redelegated below
§ 3017.440 What method do I use to Agriculture a nonprocurement
communicate those requirements to the head of the organizational unit,
debarment by any Federal agency taken
participants? except that, in the case of the Forest
before March 1, 1989.
Service, the Chief may redelegate the
To communicate the requirement, you ■ 10. Section 3017.870 is further authority to act as a debarring official to
must include a term or condition in the amended by adding a sentence at the end the Deputy Chief or an Associate Deputy
transaction requiring the participants’ of paragraph (a) to read as follows: Chief for the National Forest System.
compliance with subpart C of this part
and requiring them to include a similar § 3017.870 When do I know if the ■ 13. Section 3017.1010 is further
term or condition in their lower-tier debarring official debars me? amended by adding paragraph (b) to read
covered transactions. (a) * * * However, the record will as follows:
■ 7. Section 3017.755 is further amended remain open for the full 30 days, as
called for in § 3017.820, even when you § 3017.1010 Suspending official.
by adding a sentence at the end to read
make a submission before the 30 days * * * * *
as follows:
expire. (b) The head of an organizational unit
§ 3017.755 When will I know whether the * * * * * within the Department of Agriculture
suspension is continued or terminated? (e.g., Administrator, Food and Nutrition
■ 11. Section 3017.890 is added to
* * * However, the record will subpart H to read as follows: Service), who has been delegated
remain open for the full 30 days, as authority in part 2 of this title to carry
called for in § 3017.725, even when you § 3017.890 How may I appeal my out a covered transaction, is delegated
make a submission before the 30 days debarment? authority to act as the suspending
expire. (a) You may file an appeal only after official in connection with such
■ 8. Section 3017.765 is added to subpart you have exhausted the option provided transaction. This authority to act as a
G to read as follows: for in § 3017.815 to contest the suspending official may not be
debarment. You must file your appeal redelegated below the head of the
§ 3017.765 How may I appeal my within 30 days of receiving the decision organizational unit, except that, in the
suspension? required by § 3017.870 and your filing case of the Forest Service, the Chief may
(a) You may file an appeal only after must specify the basis of the appeal. redelegate the authority to act as a
you have exhausted the option provided You must submit your appeal in writing suspending official to the Deputy Chief
for in § 3017.720 to contest the to the Hearing Clerk in the Office of or an Associate Deputy Chief for the
suspension. You must file your appeal Administrative Law Judges (OALJ), National Forest System.
within 30 days of receiving the decision United States Department of Agriculture ■ 14. Part 3021 is added to read as set
required by § 3017.755 and your filing (USDA), Washington, DC 20250. The forth in instruction 2 at the end of the
must specify the basis of the appeal. assigned appeals officer may vacate the common preamble.
You must submit your appeal in writing decision of the debarring official only if
to the Hearing Clerk in the Office of the officer determines that the decision PART 3021—GOVERNMENTWIDE
Administrative Law Judges (OALJ), is: REQUIREMENTS FOR DRUG-FREE
United States Department of Agriculture (1) Not in accordance with law; WORKPLACE (FINANCIAL
(USDA), Washington, DC 20250. The (2) Not based on the applicable ASSISTANCE)
assigned appeals officer may vacate the standard of evidence; or
decision of the suspending official only (3) Arbitrary and capricious and an Subpart A—Purpose and Coverage
if the officer determines that the abuse of discretion. Sec.

decision is: (b) The appeals officer will base the 3021.100 What does this part do?

(1) Not in accordance with law; decision solely on the administrative 3021.105 Does this part apply to me?

(2) Not based on the applicable record. 3021.110 Are any of my Federal assistance

(c) Within 90 days of the date that you awards exempt from this part?
standard of evidence; or
3021.115 Does this part affect the Federal
(3) Arbitrary and capricious and an file your appeal with USDA’s OALJ contracts that I receive?
abuse of discretion. Hearing Clerk, the appeals officer will
(b) The appeals officer will base the give written notification of the decision Subpart B—Requirements for Recipients
to you and to the debarring official who Other Than Individuals
decision solely on the administrative
record. took the action being appealed. 3021.200 What must I do to comply with
(c) Within 90 days of the date that you (d) The appeals officer’s decision is this part?
final and is not appealable within 3021.205 What must I include in my drug-
file your appeal with USDA’s OALJ free workplace statement?
Hearing Clerk, the appeals officer will USDA.
3021.210 To whom must I distribute my
give written notification of the decision ■ 12. Section 3017.935 is further drug-free workplace statement?
to you and to the suspending official amended by adding paragraph (b) to read 3021.215 What must I include in my drug-
who took the action being appealed. as follows: free awareness program?

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3021.220 By when must I publish my drug- ■ 17. Section 3021.605(a)(2) is further 606.125 Does an exclusion under the
free workplace statement and establish amended by removing ‘‘[Agency-specific nonprocurement system affect a person’s
my drug-free awareness program? CFR citation]’’ and adding ‘‘7 CFR part eligibility for Federal procurement
3021.225 What actions must I take contracts?
3016’’ in its place.
concerning employees who are convicted 606.130 Does exclusion under the Federal
of drug violations in the workplace? DEPARTMENT OF ENERGY procurement system affect a person’s
3021.230 How and when must I identify eligibility to participate in
workplaces? 10 CFR Parts 606, 607 and 1036 nonprocurement transactions?
RIN 1991–AB56
606.135 May the Department of Energy
Subpart C—Requirements for Recipients exclude a person who is not currently
Who Are Individuals FOR FURTHER INFORMATION CONTACT:
participating in a nonprocurement
3021.300 What must I do to comply with Cynthia G. Yee, 202–586–1140; transaction?
this part if I am an individual recipient? cynthia.yee@hq.doe.gov. 606.140 How do I know if a person is
3021.301 [Reserved] excluded?
List of Subjects
606.145 Does this part address persons who
Subpart D—Responsibilities of Department
10 CFR Part 606 are disqualified, as well as those who are
of Agriculture Awarding Officials
excluded from nonprocurement
3021.400 What are my responsibilities as a Administrative practice and transactions?
Department of Agriculture awarding procedure, Debarment and suspension,
official? Government contracts, Grant programs, Subpart B—Covered Transactions
Loan programs, Reporting and 606.200 What is a covered transaction?
Subpart E—Violations of This Part and
recordkeeping requirements. 606.205 Why is it important to know if a
Consequences
particular transaction is a covered
3021.500 How are violations of this part 10 CFR Parts 607 and 1036 transaction?
determined for recipients other than 606.210 Which nonprocurement
individuals? Administrative practice and transactions are covered transactions?
3021.505 How are violations of this part procedure, Drug abuse, Grant programs, 606.215 Which nonprocurement
determined for recipients who are Reporting and recordkeeping transactions are not covered
individuals? requirements. transactions?
3021.510 What actions will the Federal 606.220 Are any procurement contracts
Issuance of this final rule has been
Government take against a recipient included as covered transactions?
approved by the Office of the Secretary of
determined to have violated this part? 606.225 How do I know if a transaction in
Energy.
3021.515 Are there any exceptions to those which I may participate is a covered
Dated: August 22, 2003.
actions? transaction?
Richard H. Hopf,
Subpart F—Definitions Director, Office of Procurement and Subpart C—Responsibilities of Participants
3021.605 Award.
Assistance Management, Office of Regarding Transactions
3021.610 Controlled substance.
Management, Budget and Evaluation,Doing Business With Other Persons
3021.615 Conviction.
Department of Energy.
3021.620 Cooperative agreement.
606.300 What must I do before I enter into
Dated: August 22, 2003. a covered transaction with another
3021.625 Criminal drug statute.

3021.630 Debarment.
Robert C. Braden, Jr., person at the next lower tier?
3021.635 Drug-free workplace.
606.305 May I enter into a covered
Director, Office of Procurement and
3021.640 Employee.
transaction with an excluded or
Assistance Management, National Nuclear
3021.645 Federal agency or agency.
Security Administration. disqualified person?
3021.650 Grant.
■ For the reason stated in the common 606.310 What must I do if a Federal agency
3021.655 Individual.
preamble, and under the authority of 42 excludes a person with whom I am
3021.660 Recipient.
already doing business in a covered
U.S.C. 7101 et seq. and 50 U.S.C. 2401 transaction?
3021.665 State.
et seq., the Department of Energy amends 606.315 May I use the services of an
3021.670 Suspension.

10 CFR Chapters II and X, as follows. excluded person as a principal under a


Authority: 5 U.S.C. 301; 41 U.S.C. 701 et ■ 1. Part 606 is added to subchapter H to covered transaction?
seq.; Pub. L. 101–576, 104 Stat. 2838; 7 CFR read as set forth in instruction 1 at the 606.320 Must I verify that principals of my
§ 2.28. end of the common preamble. covered transactions are eligible to
■ 15. Part 3021 is further amended as set participate?
forth below: PART 606—GOVERNMENTWIDE 606.325 What happens if I do business with
■ a. ‘‘[Agency noun]’’ is removed and DEBARMENT AND SUSPENSION an excluded person in a covered
‘‘Department of Agriculture’’ is added in (NONPROCUREMENT) transaction?
its place wherever it occurs. 606.330 What requirements must I pass
■ b. ‘‘[Agency adjective]’’ is removed and Sec. down to persons at lower tiers with
‘‘Department of Agriculture’’ is added in 606.25 How is this part organized? whom I intend to do business?
606.50 How is this part written?
its place wherever it occurs. Disclosing Information—Primary Tier
606.75 Do terms in this part have special
■ c. ‘‘[Agency head or designee]’’ is Participants
meanings?
removed and ‘‘the Secretary of 606.335 What information must I provide
Agriculture or designee’’ is added in its Subpart A—General before entering into a covered
place wherever it occurs. 606.100 What does this part do? transaction with the Department of
■ d. ‘‘[Agency head]’’ is removed and 606.105 Does this part apply to me? Energy?
‘‘the Secretary of Agriculture’’ is added 606.110 What is the purpose of the 606.340 If I disclose unfavorable
in its place wherever it occurs. nonprocurement debarment and information required under § 606.335,
suspension system? will I be prevented from participating in
■ 16. Section 3021.510(c) is further
606.115 How does an exclusion restrict a the transaction?
amended by removing ‘‘[CFR citation for person’s involvement in covered 606.345 What happens if I fail to disclose
the Federal Agency’s regulations transactions? the information required under
implementing Executive Order 12549 606.120 May we grant an exception to let an § 606.335?
and Executive Order 12689]’’ and adding excluded person participate in a covered 606.350 What must I do if I learn of the
‘‘7 CFR part 3017’’ in its place. transaction? information required under § 606.335

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after entering into a covered transaction 606.620 Do Federal agencies coordinate 606.865 How long may my debarment last?
with the Department of Energy? suspension and debarment actions? 606.870 When do I know if the debarring
606.625 What is the scope of a suspension official debars me?
Disclosing Information—Lower Tier
or debarment action? 606.875 May I ask the debarring official to
Participants
606.630 May the Department of Energy reconsider a decision to debar me?
606.355 What information must I provide to impute the conduct of one person to 606.880 What factors may influence the
a higher tier participant before entering another? debarring official during
into a covered transaction with that 606.635 May the Department of Energy reconsideration?
participant? settle a debarment or suspension action? 606.885 May the debarring official extend a
606.360 What happens if I fail to disclose 606.640 May a settlement include a debarment?
the information required under voluntary exclusion?
§ 606.355? 606.645 Do other Federal agencies know if Subpart I—Definitions
606.365 What must I do if I learn of the Department of Energy agrees to a 606.900 Adequate evidence.

information required under § 606.355 voluntary exclusion? 606.905 Affiliate.

after entering into a covered transaction 606.910 Agency.

with a higher tier participant? Subpart G—Suspension 606.915 Agent or representative.

Subpart D—Responsibilities of DOE 606.700 When may the suspending official 606.920 Civil judgment.

Officials Regarding Transactions issue a suspension? 606.925 Conviction.

606.705 What does the suspending official 606.930 Debarment.

606.400 May I enter into a transaction with consider in issuing a suspension? 606.935 Debarring official.

an excluded or disqualified person? 606.710 When does a suspension take 606.940 Disqualified.

606.405 May I enter into a covered effect? 606.945 Excluded or exclusion.

transaction with a participant if a 606.715 What notice does the suspending 606.950 Excluded Parties List System.

principal of the transaction is excluded? official give me if I am suspended? 606.955 Indictment.

606.410 May I approve a participant’s use 606.720 How may I contest a suspension? 606.960 Ineligible or ineligibility.

of the services of an excluded person? 606.725 How much time do I have to 606.965 Legal proceedings.

606.415 What must I do if a Federal agency contest a suspension? 606.970 Nonprocurement transaction.

excludes the participant or a principal 606.730 What information must I provide to 606.975 Notice.

after I enter into a covered transaction? the suspending official if I contest a 606.980 Participant.

606.420 May I approve a transaction with suspension? 606.985 Person.

an excluded or disqualified person at a 606.735 Under what conditions do I get an 606.990 Preponderance of the evidence.

lower tier? additional opportunity to challenge the 606.995 Principal.

606.425 When do I check to see if a person facts on which the suspension is based? 606.1000 Respondent.

is excluded or disqualified? 606.740 Are suspension proceedings 606.1005 State.

606.430 How do I check to see if a person formal? 606.1010 Suspending official.

is excluded or disqualified?
606.745 How is fact-finding conducted? 606.1015 Suspension.

606.435 What must I require of a primary


606.746 Who conducts fact-finding 606.1020 Voluntary exclusion or

tier participant?
conferences for DOE? voluntarily excluded.
606.440 What method do I use to
606.750 What does the suspending official
communicate those requirement to Subpart J—[Reserved]
consider in deciding whether to continue
participants?
or terminate my suspension? Appendix to Part 606—Covered
606.445 What action may I take if a primary
606.755 When will I know whether the Transactions
tier participant knowingly does business
suspension is continued or terminated?
with an excluded or disqualified person?
606.760 How long may my suspension last? Authority: E.O. 12549 (3 CFR, 1986 Comp.,
606.450 What action may I take if a primary
p.189); E.O. 12689 (3 CFR, 1989 Comp.,
tier participant fails to disclose the Subpart H—Debarment p.235); sec. 2455, Pub. L. 103–355, 108 Stat.
information required under § 606.335?
606.800 What are the causes for debarment? 3327 (31 U.S.C. 6101 note); 42 U.S.C. 7101
606.455 What may I do if a lower tier
606.805 What notice does the debarring et seq.; 50 U.S.C. 2401 et seq.
participant fails to disclose the
official give me if I am proposed for
information required under § 606.355 to ■ 2. Part 606 is further amended as set
debarment?
the next higher tier? forth below.
606.810 When does a debarment take
Subpart E—Excluded Parties List System effect? ■ a. ‘‘[Agency noun]’’ is removed and
606.500 What is the purpose of the 606.815 How may I contest a proposed ‘‘Department of Energy’’ is added in its
Excluded Parties List System (EPLS)? debarment? place wherever it occurs.
606.505 Who uses the EPLS? 606.820 How much time do I have to ■ b. ‘‘[Agency adjective]’’ is removed and
606.510 Who maintains the EPLS? contest a proposed debarment? ‘‘DOE’’ is added in its place wherever it
606.515 What specific information is in the 606.825 What information must I provide to
occurs.
EPLS? the debarring official if I contest a
■ c. ‘‘[Agency head or designee]’’ is
606.520 Who places the information into proposed debarment?
606.830 Under what conditions do I get an removed and ‘‘Director, Office of
the EPLS?
606.525 Whom do I ask if I have questions additional opportunity to challenge the Procurement and Assistance
about a person in the EPLS? facts on which the proposed debarment Management, DOE, for DOE actions, and
606.530 Where can I find the EPLS? is based? Director, Office of Procurement and
606.835 Are debarment proceedings formal? Assistance Management, NNSA, for
Subpart F—General Principles Relating to 606.836 Who conducts fact-finding NNSA actions’’ are added in its place
Suspension and Debarment Actions conferences for DOE? wherever it occurs.
606.600 How do suspension and debarment 606.840 How is fact-finding conducted?
606.845 What does the debarring official ■ 3. Section 606.440 is added to read as
actions start?
606.605 How does suspension differ from consider in deciding whether to debar follows:
debarment? me?
§ 606.440 What method do I use to
606.610 What procedures does the 606.850 What is the standard of proof in a
communicate those requirements to
Department of Energy use in suspension debarment action?
participants?
and debarment actions? 606.855 Who has the burden of proof in a
606.615 How does the Department of debarment action? To communicate the requirements,
Energy notify a person of a suspension 606.860 What factors may influence the you must include a term or condition in
and debarment action? debarring official’s decision? the transaction requiring the

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participants’ compliance with subpart C PART 607—GOVERNMENTWIDE ■ 10. Part 607 is further amended as set
of this part and requiring them to REQUIREMENTS FOR DRUG-FREE forth below.
include a similar term or condition in WORKPLACE (FINANCIAL ■ a. ‘‘[Agency noun]’’ is removed and
lower-tier covered transactions. ASSISTANCE) ‘‘Department of Energy’’ is added in its
■ 4. Section 606.746 is added to read as place wherever it occurs.
Subpart A—Purpose and Coverage ■ b. ‘‘[Agency adjective]’’ is removed and
follows:
Sec. ‘‘DOE’’ is added in its place wherever it
§ 606.746 Who conducts fact-finding 607.100 What does this part do? occurs.
conferences for DOE? 607.105 Does this part apply to me? ■ c. ‘‘[Agency head or designee]’’ is
607.110 Are any of my Federal assistance removed and ‘‘Director, Office of
The Energy Board of Contract Appeals awards exempt from this part?
conducts fact-finding conferences for Procurement and Assistance
607.115 Does this part affect the Federal
DOE, in accordance with the rules Management, DOE, for DOE actions, and
contracts that I receive?
promulgated by the Energy Board of Director, Office of Procurement and
Subpart B—Requirements for Recipients Assistance Management, NNSA, for
Contract Appeals. Other Than Individuals NNSA actions’’ are added in its place
■ 5. Section 606.836 is added to read as 607.200 What must I do to comply with this wherever it occurs.
follows: part? ■ d. ‘‘[Agency head]’’ is removed and
607.205 What must I include in my drug- ‘‘Secretary of Energy’’ is added in its
§ 606.836 Who conducts fact-finding free workplace statement?
conferences for DOE? place wherever it occurs.
607.210 To whom must I distribute my
■ 11. Section 607.510(c) is further
The Energy Board of Contract Appeals drug-free workplace statement?
607.215 What must I include in my drug- amended by removing ‘‘[CFR citation for
conducts fact-finding conferences for the Federal agency’s regulations
DOE, in accordance with the rules free awareness program?
607.220 By when must I publish my drug- implementing Executive order 12549
promulgated by the Energy Board of and Executive Order 12689]’’ and adding
free workplace statement and establish
Contract Appeals. my drug-free awareness program? ‘‘10 CFR Part 606’’ in its place.
■ 6. Section 606.910 is further amended 607.225 What actions must I take ■ 12. Section 607.605(a)(2) is further
by adding a definition for Department of concerning employees who are convicted
amended by removing ‘‘[Agency-specific
Energy in alphabetical order to read as of drug violations in the workplace?
607.230 How and when must I identify CFR citation]’’ and adding ‘‘10 CFR Part
follows: 600’’ in its place.
workplaces?
§ 606.910 Agency. ■ 13. Section 607.645 is further amended
Subpart C—Requirements for Recipients
* * * * * Who Are Individuals by adding the definition for Department
of Energy in alphabetical order to read as
Department of Energy means the U.S. 607.300 What must I do to comply with this
follows:
Department of Energy, including the part if I am an individual recipient?
National Nuclear Security 607.301 [Reserved] § 607.645 Federal Agency or agency.
Administration (NNSA). Subpart D—Responsibilities of DOE Department of Energy means the U.S.
■ 7. Section 606.935 is further amended Awarding Officials Department of Energy, including the
by adding paragraph (b) to read as 607.400 What are my responsibilities as a National Nuclear Security
follows: DOE awarding official? Administration (NNSA).
Subpart E—Violations of This Part and * * * * *
§ 606.935 Debarring official.
Consequences
* * * * * PART 1036—[Removed]
607.500 How are violations of this part
(b) The debarring official for the determined for recipients other than ■14. Part 1036 is removed.
Department of Energy, exclusive of individuals?
NNSA, is the Director, Office of 607.505 How are violations of this part
lllllllllllllllllll
Procurement and Assistance determined for recipients who are EXPORT-IMPORT BANK OF THE
Management, DOE. The debarring individuals?
607.510 What actions will the Federal
UNITED STATES
official for NNSA is the Director, Office
Government take against a recipient 12 CFR Part 413
of Procurement and Assistance
determined to have violated this part?
Management, NNSA. 607.515 Are there any exceptions to those RIN 3048–ZA03
■ 8. Section 606.1010 is further amended actions? ADDRESSES: Comments should be sent to
by adding paragraph (b) to read as Howard Schweitzer, Assistant General
Subpart F—Definitions
follows: Counsel for Administration, Export-
607.605 Award. Import Bank of the United States, 811
§ 606.1010 Suspending official. 607.610 Controlled substance.
Vermont Ave., NW., Washington, DC
607.615 Conviction.
* * * * * 607.620 Cooperative agreement. 20571, or to
(b) The suspending official for the 607.625 Criminal drug statute. howard.schweitzer@exim.gov.
Department of Energy, exclusive of 607.630 Debarment. FOR FURTHER INFORMATION CONTACT:
NNSA, is the Director, Office of 607.635 Drug-free workplace. Howard Schweitzer, Assistant General
Procurement and Assistance 607.640 Employee.
Counsel for Administration, Export-
Management, DOE. The suspending 607.645 Federal agency or agency.
607.650 Grant. Import Bank of the United States, (202)
official for NNSA is the Director, Office 565–3229, or at
607.655 Individual.
of Procurement and Assistance 607.660 Recipient. howard.schweitzer@exim.gov.
Management, NNSA. 607.665 State. SUPPLEMENTARY INFORMATION: Ex-Im
■ 9. Part 607 is added to subchapter H to 607.670 Suspension. Bank publishes this interim final rule in
read as set forth in instruction 2 at the Authority: 41 U.S.C. 701, et seq.; 42 U.S.C. order to join the publication of
end of the common preamble. 7101 et seq.; 50 U.S.C. 2401 et seq. regulations amending the common rule

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on nonprocurement suspension and 413.130 Does exclusion under the Federal into a covered transaction with that
debarment. As discussed in detail in the procurement system affect a person’s participant?
common preamble to this rule, the eligibility to participate in 413.360 What happens if I fail to disclose
nonprocurement transactions? the information required under
substantive provisions of the common 413.135 May the Ex-Im Bank exclude a § 413.355?
rule have previously been the subject of person who is not currently participating 413.365 What must I do if I learn of
a notice and comment period. Ex-Im in a nonprocurement transaction? information required under § 413.355
Bank is not at this time adopting any 413.140 How do I know if a person is after entering into a covered transaction
optional provisions contained in the excluded? with a higher tier participant?
common rule that depart from the 413.145 Does this part address persons who
are disqualified, as well as those who are Subpart D—Responsibilities of Ex-Im Bank
substance of the base text of the
excluded from nonprocurement Officials Regarding Transactions
common rule. For these reasons, Ex-Im
transactions? 413.400 May I enter into a transaction with
Bank finds, pursuant to 5 U.S.C. 553
Subpart B—Covered Transactions an excluded or disqualified person?
(b)(B), that a notice and comment period
413.405 May I enter into a covered
is unnecessary with respect to its 413.200 What is a covered transaction? transaction with a participant if a
adoption of the base text of the common 413.205 Why is it important to know if a principal of the transaction is excluded?
rule. particular transaction is a covered
413.410 May I approve a participant’s use
transaction?
It should also be noted that Ex-Im 413.210 Which nonprocurement
of the services of an excluded person?
Bank will not be adopting those 413.415 What must I do if a Federal agency
transactions are covered transactions?
provisions of the common preamble excludes the participant or a principal
413.215 Which nonprocurement
concerning the Government-wide transactions are not covered after I enter into a covered transaction?
413.420 May I approve a transaction with
Requirements for Drug-Free Workplace transactions?
413.220 Are any procurement contracts an excluded or disqualified person at a
(Grants). Ex-Im Bank does not issue lower tier?
cooperative agreements, awards, grants included as covered transactions?
413.225 How do I know if a transaction in 413.425 When do I check to see if a person
or other financial assistance covered by is excluded or disqualified?
which I may participate is a covered
these provisions. transaction? 413.430 How do I check to see if a person
is excluded or disqualified?
List of Subjects in 12 CFR Part 413 Subpart C—Responsibilities of Participants 413.435 What must I require of a primary
Administrative practice and Regarding Transactions tier participant?
procedure, Debarment and suspension, Doing Business With Other Persons 413.440 What method do I use to
communicate those requirements to
Government contracts, Loan programs, 413.300 What must I do before I enter into participants?
Reporting and recordkeeping a covered transaction with another 413.445 What action may I take if a primary
requirements. person at the next lower tier? tier participant knowingly does business
413.305 May I enter into a covered with an excluded or disqualified person?
Dated: August 4, 2003.
transaction with an excluded or 413.450 What action may I take if a primary
Peter B. Saba, disqualified person? tier participant fails to disclose the
General Counsel, The Export-Import Bank of 413.310 What must I do if a Federal agency
information required under § 413.335?
the United States. excludes a person with whom I am
413.455 What may I do if a lower tier
already doing business in a covered
■ For the reasons stated in the preamble, participant fails to disclose the
transaction?
the Export-Import Bank of the United information required under § 413.355 to
413.315 May I use the services of an
States amends 12 CFR chapter IV as excluded person as a principal under a the next higher tier?
follows: covered transaction? Subpart E—Excluded Parties List System
■ 1. Part 413 is added to read as set forth 413.320 Must I verify that principals of my
413.500 What is the purpose of the
in instruction 1 at the end of the common covered transactions are eligible to
Excluded Parties List System (EPLS)?
participate?
preamble. 413.325 What happens if I do business with 413.505 Who uses the EPLS?
an excluded person in a covered 413.510 Who maintains the EPLS?
PART 413—GOVERNMENTWIDE transaction? 413.515 What specific information is in the
DEBARMENT AND SUSPENSION 413.330 What requirements must I pass EPLS?
(NONPROCUREMENT) down to persons at lower tiers with 413.520 Who places the information into
whom I intend to do business? the EPLS?
Sec. 413.525 Whom do I ask if I have questions
413.25 How is this part organized? Disclosing Information—Primary Tier about a person in the EPLS?
413.50 How is this part written? Participants 413.530 Where can I find the EPLS?
413.75 Do terms in this part have special 413.335 What information must I provide Subpart F—General Principles Relating to
meanings? before entering into a covered Suspension and Debarment Actions
Subpart A—General transaction with the Ex-Im Bank?
413.340 If I disclose unfavorable 413.600 How do suspension and debarment
413.100 What does this part do? information required under § 413.335, actions start?
413.105 Does this part apply to me? will I be prevented from participating in 413.605 How does suspension differ from
413.110 What is the purpose of the the transaction? debarment?
nonprocurement debarment and 413.345 What happens if I fail to disclose 413.610 What procedures does the Ex-Im
suspension system? the information required under Bank use in suspension and debarment
413.115 How does an exclusion restrict a § 413.335? actions?
person’s involvement in covered 413.350 What must I do if I learn of the 413.615 How does the Ex-Im Bank notify a
transactions? information required under § 413.335 person of a suspension and debarment
413.120 May we grant an exception to let an after entering into a covered transaction action?
excluded person participate in a covered with the Ex-Im Bank? 413.620 Do Federal agencies coordinate
transaction? suspension and debarment actions?
413.125 Does an exclusion under the Disclosing Information—Lower Tier 413.625 What is the scope of a suspension
nonprocurement system affect a person’s Participants or debarment action?
eligibility for Federal procurement 413.355 What information must I provide to 413.630 May the Ex-Im Bank impute the
contracts? a higher tier participant before entering conduct of one person to another?

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66570 Federal Register / Vol. 68, No. 228 / Wednesday, November 26, 2003 / Rule and Regulations

413.635 May the Ex-Im Bank settle a Subpart I—Definitions Business Administration, 409 Third
debarment or suspension action? 413.900 Adequate evidence. Street, SW., Washington, DC 20416,
413.640 May a settlement include a 413.905 Affiliate. (202) 205–6630, e-mail:
voluntary exclusion? 413.910 Agency. darryl.hairston@sba.gov.
413.645 Do other Federal agencies know if 413.915 Agent or representative.
the Ex-Im Bank agrees to a voluntary 413.920 Civil judgment. List of Subjects
exclusion? 413.925 Conviction.
13 CFR Part 145
Subpart G—Suspension 413.930 Debarment.
413.935 Debarring official. Administrative practice and
413.700 When may the suspending official 413.940 Disqualified. procedure, Government contracts, Grant
issue a suspension? 413.945 Excluded or exclusion. programs, Loan programs, Reporting
413.705 What does the suspending official 413.950 Excluded Parties List System. and recordkeeping requirements, Small
consider in issuing a suspension? 413.955 Indictment.
413.710 When does a suspension take
businesses.
413.960 Ineligible or ineligibility.
effect? 413.965 Legal proceedings. 13 CFR Part 147
413.715 What notice does the suspending 413.970 Nonprocurement transaction.
official give me if I am suspended? 413.975 Notice.
Administrative practice and
413.720 How may I contest a suspension? 413.980 Participant. procedure, Drug abuse, Grant programs,
413.725 How much time do I have to 413.985 Person. Reporting and recordkeeping
contest a suspension? 413.990 Preponderance of the evidence. requirements.
413.730 What information must I provide to 413.995 Principal.
Dated: September 12, 2003.
the suspending official if I contest a 413.1000 Respondent.

Hector V. Barreto,
suspension? 413.1005 State.

413.735 Under what conditions do I get an 413.1010 Suspending official.


Administrator, U.S. Small Business
additional opportunity to challenge the 413.1015 Suspension.
Administration.
facts on which the suspension is based? 413.1020 Voluntary exclusion or
■ For the reasons stated in the common
413.740 Are suspension proceedings voluntarily excluded. preamble, the U.S. Small Business
formal? Administration proposes to amend 13
Subpart J—[Reserved]
413.745 How is fact-finding conducted? CFR Chapter I as follows:
413.750 What does the suspending official Appendix to Part 413—Covered ■ 1. Part 145 is revised to read as set forth
consider in deciding whether to continue Transactions
in instruction 1 at the end of the common
or terminate my suspension?
413.755 When will I know whether the Authority: Sec. 2455, Pub. L. 103–355, 108 preamble.
suspension is continued or terminated? Stat. 3327 (31 U.S.C. 6101 note); E.O. 11738
413.760 How long may my suspension last? (3 CFR, 1973 Comp., p. 799); E.O. 12549 (3 PART 145—GOVERNMENTWIDE
CFR, 1986 Comp., p. 189); E.O. 12689 (3 CFR, DEBARMENT AND SUSPENSION
Subpart H—Debarment 1989 Comp., p. 235). (NONPROCUREMENT)
413.800 What are the causes for debarment? ■ 2. Part 413 is further amended as set
413.805 What notice does the debarring Sec.
forth below. 145.25 How is this part organized?
official give me if I am proposed for ■ a. ‘‘[Agency noun]’’ is removed and
debarment? 145.50 How is this part written?
‘‘Ex-Im Bank’’ is added in its place 145.75 Do terms in this part have special
413.810 When does a debarment take
wherever it occurs. meanings?
effect?
■ b. ‘‘[Agency adjective]’’ is removed and
413.815 How may I contest a proposed Subpart A—General
debarment? ‘‘Ex-Im Bank’’ is added in its place
wherever it occurs. 145.100 What does this part do?
413.820 How much time do I have to 145.105 Does this part apply to me?
contest a proposed debarment? ■ c. ’[Agency head or designee]’’ is
removed and ‘‘Ex-Im Bank agency head 145.110 What is the purpose of the
413.825 What information must I provide to nonprocurement debarment and
the debarring official if I contest a or designee’’ is added in its place suspension system?
proposed debarment? wherever it occurs. 145.115 How does an exclusion restrict a
413.830 Under what conditions do I get an ■ 3. Section 413.440 is added to read as person’s involvement in covered
additional opportunity to challenge the follows: transactions?
facts on which the proposed debarment 145.120 May we grant an exception to let an
is based? § 413.440 What method do I use to excluded person participate in a covered
413.835 Are debarment proceedings formal? communicate those requirements to transaction?
413.840 How is fact-finding conducted? participants? 145.125 Does an exclusion under the
413.845 What does the debarring official To communicate the requirements, nonprocurement system affect a person’s
consider in deciding whether to debar eligibility for Federal procurement
you must include a term or condition in
me? contracts?
413.850 What is the standard of proof in a the transaction requiring the
participants’ compliance with subpart C 145.130 Does exclusion under the Federal
debarment action? procurement system affect a person’s
413.855 Who has the burden of proof in a of this part and requiring them to
eligibility to participate in
debarment action? include a similar term or condition in nonprocurement transactions?
413.860 What factors may influence the lower-tier covered transactions. 145.135 May the SBA exclude a person who
debarring official’s decision? lllllllllllllllllll is not currently participating in a
413.865 How long may my debarment last? nonprocurement transaction?
413.870 When do I know if the debarring SMALL BUSINESS ADMINISTRATION 145.140 How do I know if a person is
official debars me? excluded?
413.875 May I ask the debarring official to 13 CFR Parts 145 and 147
145.145 Does this part address persons who
reconsider a decision to debar me? RIN 3245–AE61 are disqualified, as well as those who are
413.880 What factors may influence the excluded from nonprocurement
debarring official during FOR FURTHER INFORMATION CONTACT:
transactions?
reconsideration? Darryl K. Hairston, SBA Debarring
413.885 May the debarring official extend a Official, Assistant Administrator for Subpart B—Covered Transactions
debarment? Administration (5331), U.S. Small 145.200 What is a covered transaction?

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145.205 Why is it important to know if a 145.405 May I enter into a covered 145.725 How much time do I have to
particular transaction is a covered transaction with a participant if a contest a suspension?
transaction? principal of the transaction is excluded? 145.730 What information must I provide to
145.210 Which nonprocurement 145.410 May I approve a participant’s use the suspending official if I contest a
transactions are covered transactions? of the services of an excluded person? suspension?
145.215 Which nonprocurement 145.415 What must I do if a Federal agency 145.735 Under what conditions do I get an
transactions are not covered excludes the participant or a principal additional opportunity to challenge the
transactions? after I enter into a covered transaction? facts on which the suspension is based?
145.220 Are any procurement contracts 145.420 May I approve a transaction with 145.740 Are suspension proceedings
included as covered transactions? an excluded or disqualified person at a formal?
145.225 How do I know if a transaction in lower tier? 145.745 How is fact-finding conducted?
which I may participate in is a covered 145.425 When do I check to see if a person 145.750 What does the suspending official
transaction? is excluded or disqualified? consider in deciding whether to continue
145.430 How do I check to see if a person or terminate my suspension?
Subpart C—Responsibilities of Participants is excluded or disqualified? 145.755 When will I know whether the
Regarding Transactions 145.435 What must I require of a primary suspension is continued or terminated?
tier participant? 145.760 How long may my suspension last?
Doing Business With Other Persons 145.440 What method do I use to 145.765 How may I appeal my suspension?
145.300 What must I do before I enter into communicate those requirements to
a covered transaction with another participants? Subpart H—Debarment
person at the next lower tier? 145.445 What action may I take if a primary 145.800 What are the causes for debarment?
145.305 May I enter into a covered tier participant knowingly does business 145.805 What notice does the debarring
transaction with an excluded or with an excluded or disqualified person? official give me if I am proposed for
disqualified person? 145.450 What action may I take if a primary debarment?
145.310 What must I do if a Federal agency tier participant fails to disclose the 145.810 When does a debarment take
excludes a person with whom I am information required under § 145.335? effect?
already doing business in a covered 145.455 What may I do if a lower tier 145.815 How may I contest a proposed
transaction? participant fails to disclose the debarment?
145.315 May I use the services of an information required under § 145.355 to 145.820 How much time do I have to
excluded person as a principal under a the next higher tier? contest a proposed debarment?
covered transaction? Subpart E—Excluded Parties List System 145.825 What information must I provide to
145.320 Must I verify that principals of my the debarring official if I contest a
covered transactions are eligible to 145.500 What is the purpose of the
proposed debarment?
participate? Excluded Parties List System (EPLS)?
145.830 Under what conditions do I get an
145.325 What happens if I do business with 145.505 Who uses the EPLS?
additional opportunity to challenge the
an excluded person in a covered 145.510 Who maintains the EPLS?
facts on which the proposed debarment
transaction? 145.515 What specific information is in the
is based?
EPLS?
145.330 What requirements must I pass 145.835 Are debarment proceedings formal?
145.520 Who places the information into
down to persons at lower tiers with 145.840 How is fact-finding conducted?
the EPLS?
whom I intend to do business? 145.845 What does the debarring official
145.525 Whom do I ask if I have questions
about a person in the EPLS? consider in deciding whether to debar
Disclosing Information—Primary Tier
145.530 Where can I find the EPLS? me?
Participants
145.850 What is the standard of proof in a
145.335 What information must I provide Subpart F—General Principles Relating to debarment action?
before entering into a covered Suspension and Debarment Actions 145.855 Who has the burden of proof in a
transaction with the SBA? 145.600 How do suspension and debarment debarment action?
145.340 If I disclose unfavorable actions start? 145.860 What factors may influence the
information required under § 145.335, 145.605 How does suspension differ from debarring official’s decision?
will I be prevented from participating in debarment? 145.865 How long may my debarment last?
the transaction? 145.610 What procedures does the SBA use 145.870 When do I know if the debarring
145.345 What happens if I fail to disclose in suspension and debarment actions? official debars me?
the information required under 145.615 How does the SBA notify a person 145.875 May I ask the debarring official to
§ 145.335? of a suspension and debarment action? reconsider a decision to debar me?
145.350 What must I do if I learn of the 145.620 Do Federal agencies coordinate 145.880 What factors may influence the
information required under § 145.335 suspension and debarment actions? debarring official during
after entering into a covered transaction 145.625 What is the scope of a suspension reconsideration?
with the SBA? or debarment action? 145.885 May the debarring official extend a
145.630 May the SBA impute the conduct debarment?
Disclosing Information—Lower Tier
of one person to another? 145.890 How may I appeal my debarment?
Participants
145.635 May the SBA settle a debarment or Subpart I—Definitions
145.355 What information must I provide to suspension action?
a higher tier participant before entering 145.640 May a settlement include a 145.900 Adequate evidence.
into a covered transaction with that voluntary exclusion? 145.905 Affiliate.
participant? 145.645 Do other Federal agencies know if 145.910 Agency.
145.360 What happens if I fail to disclose the SBA agrees to a voluntary exclusion? 145.915 Agent or representative.
the information required under 145.920 Civil judgment.
§ 145.355? Subpart G—Suspension 145.925 Conviction.
145.365 What must I do if I learn of 145.700 When may the suspending official 145.930 Debarment.
information required under § 145.355 issue a suspension? 145.935 Debarring official.
after entering into a covered transaction 145.705 What does the suspending official 145.940 Disqualified.
with a higher tier participant? consider in issuing a suspension? 145.945 Excluded or exclusion.
145.710 When does a suspension take 145.950 Excluded Parties List System.
Subpart D—Responsibilities of SBA effect? 145.955 Indictment.
Officials Regarding Transactions 145.715 What notice does the suspending 145.960 Ineligible or ineligibility.
145.400 May I enter into a transaction with official give me if I am suspended? 145.965 Legal proceedings.
an excluded or disqualified person? 145.720 How may I contest a suspension? 145.970 Nonprocurement transaction.

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145.975 Notice. continue your suspension after you (b) A request for review under this
145.980 Participant. present information in opposition to section must be in writing; state the
144.985 Person. that suspension under § 145.720, you specific findings you believe to be in
145.990 Preponderance of the evidence.
145.995 Principal.

can ask for review of the suspending error; and include the reasons or legal
145.1000 Respondent.
official’s decision in two ways: bases for your position.
145.1005 State.
(1) You may ask the suspending (c) OHA may, in its discretion, stay
145.1010 Suspending official.
official to reconsider the decision for the debarment pending review of the
145.1015 Suspension.
material errors of fact or law that you debarring official’s decision.
145.1020 Voluntary exclusion or
believe will change the outcome of the (d) The SBA debarring official and
voluntarily excluded. matter; and/or OHA must notify you of their decisions
Subpart J—[Reserved] (2) You may request that the SBA under this section, in writing, using the
Office of Hearings and Appeals (OHA), notice procedures at §§ 145.615 and
Appendix to Part 145—Covered review the suspending official’s 145.975.
Transactions
decision to continue your suspension ■ 7. Section 145.935 is further amended
Authority: 5 U.S.C. 301 et seq.; 15 U.S.C. within 30 days of your receipt of the by adding a paragraph (b) to read as
631 et seq.; Sec. 2455, Pub. L. 103–355, 108 suspending official’s decision under follows:
Stat. 3327 (31 U.S.C. 6101 note); E.O. 11738, § 145.755 or paragraph (a)(1) of this
3 CFR, 1973 Comp., p. 799; E.O. 12549, 3 § 145.935 Debarring official.
section. However, OHA can reverse the
CFR, 1986 Comp., p. 189; E.O. 12689, 3 CFR, suspending official’s decision only * * * * *
1989 Comp., p. 235. (b) For SBA, the debarring official for
where OHA finds that the decision is
■ 2. Part 145 is further amended as set financial assistance programs means the
based on a clear error of material fact or
forth below. law, or where OHA finds that the Assistant Administrator for Lender
■ a. ‘‘[Agency noun]’’ is removed and the Oversight; for all other programs, the
suspending official’s decision was
‘‘SBA’’ is added in its place wherever it debarring official means the Assistant
arbitrary, capricious, or an abuse of
occurs. Administrator for Administration.
■ b. ‘‘[Agency adjective]’’ is removed and
discretion.
(b) A request for review under this ■ 8. Section 145.995 is further amended
the ‘‘SBA’’ is added in its place wherever by adding a paragraph (c) to read as
section must be in writing; state the
it occurs.
specific findings you believe to be in follows:
■ c. ‘‘[Agency head or designee]’’ is
removed and the ‘‘SBA Debarring error; and include the reasons or legal
§ 145.995 Principal.
Official’’ is added in its place wherever bases for your position.
(c) OHA, in its discretion, may stay * * * * *
it occurs. (c) Other examples of individuals who
the suspension pending review of the
■ 3. Section 145.220 is further amended are principals in SBA covered
suspending official’s decision.
by adding a paragraph (c) to read as (d) The SBA suspending official and transactions include:
follows: OHA must notify you of their decisions (1) Principal investigators.
under this section, in writing, using the (2) Securities brokers and dealers
§ 145.220 Are any procurement contracts
included as covered transactions? notice procedures at §§ 145.615 and under the section 7(a) Loan, Certified
145.975. Development Company (CDC) and
* * * * * Small Business Investment Company
(c) The contract is awarded by any ■ 6. Section 145.890 is added to subpart
H to read as follows: (SBIC) programs.
contractor, subcontractor, supplier, (3) Applicant representatives under
consultant or its agent or representative the section 7(a) Loan, Certified
§ 145.890 How may I appeal my
in any transaction, regardless of tier, to debarment? Development Company (CDC), Small
be funded or provided by the SBA Business Investment Company (SBIC),
(a) If the SBA debarring official issues
under a nonprocurement transaction Small Business Development Center
a decision under § 145.870 to debar you
that is expected to equal or exceed (SBDC), and section 7(j) programs.
after you present information in
$25,000. (See optional lower tier (4) Providers of professional services
opposition to a proposed debarment
coverage shown in the diagram in the under section 7(a) Loan, Certified
under § 145.815, you can ask for review
appendix to this part.) Development Company (CDC), Small
of the debarring official’s decision in
■ 4. Section 145.440 is added to read as Business Investment Company (SBIC),
two ways:
follows: (1) You may ask the debarring official Small Business Development Center
§ 145.440 What method do I use to to reconsider the decision for material (SBDC), and section 7(j) programs.
communicate those requirements to errors of fact or law that you believe will (5) Individuals that certify,
participants? change the outcome of the matter; and/ authenticate or authorize billings.
To communicate the requirements to or ■ 9. Section 145.1010 is further amended
participants, you must include a term or (2) You may request that the SBA by adding a paragraph (b) to read as
condition in the transaction requiring Office of Hearings and Appeals (OHA), follows:
the participant’s compliance with review the debarring official’s decision
to debar you within 30 days of your § 145.1010 Suspending official.
subpart C of this part and requiring
them to include a similar term or receipt of the debarring official’s * * * * *
condition in lower tier covered decision under § 145.870 or paragraph (b) For SBA, the suspending official
transactions. (a)(1) of this section. However, OHA can for financial assistance programs means
reverse the debarring official’s decision the Assistant Administrator for Lender
■ 5. Section 145.765 is added to subpart
only where OHA finds that the decision Oversight; for all other programs, the
G to read as follows:
is based on a clear error of material fact suspending official means the Assistant
§ 145.765 How may I appeal my or law, or where OHA finds that the Administrator for Administration.
suspension? debarring official’s decision was ■ 10. Part 147 is added to read as set forth
(a) If the SBA suspending official arbitrary, capricious, or an abuse of in instruction 2 at the end of the common
issues a decision under § 145.755 to discretion. preamble.

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PART 147—GOVERNMENTWIDE ■ a. ‘‘[Agency noun]’’ is removed and the Subpart A—General


REQUIREMENTS FOR DRUG-FREE ‘‘SBA’’ is added in its place wherever it 1265.100 What does this part do?
WORKPLACE (NONPROCUREMENT) occurs. 1265.105 Does this part apply to me?
■ b. ‘‘[Agency adjective]’’ is removed and 1265.110 What is the purpose of the
Subpart A—Purpose and Coverage the ‘‘SBA’’ is added in its place wherever nonprocurement debarment and
Sec. it occurs. suspension system?
147.100 What does this part do? ■ c. ‘‘[Agency head or designee]’’ is 1265.115 How does an exclusion restrict a
147.105 Does this part apply to me? removed and the ‘‘SBA Administrator or person’s involvement in covered
147.110 Are any of my Federal assistance transactions?
designee’’ is added in its place wherever
awards exempt from this part?
it occurs. 1265.120 May we grant an exception to let
147.115 Does this part affect the Federal
■ d. ‘‘[Agency head]’’ is removed and the an excluded person participate in a
contracts that I receive?
‘‘SBA Administrator’’ is added in its covered transaction?
Subpart B—Requirements for Recipients place wherever it occurs. 1265.125 Does an exclusion under the
Other Than Individuals nonprocurement system affect a person’s
■ 12. Section 147.510(c) is further
147.200 What must I do to comply with this eligibility for Federal procurement
amended by removing ‘‘[CFR citation for
part? contracts?
147.205 What must I include in my drug- the Federal Agency’s regulations 1265.130 Does exclusion under the Federal
free workplace statement? implementing Executive Order 12549 procurement system affect a person’s
147.210 To whom must I distribute my and Executive Order 12689]’’ and adding eligibility to participate in
drug-free workplace statement? ‘‘13 CFR Part 145’’ in its place. nonprocurement transactions?
147.215 What must I include in my drug- ■ 13. Section 147.605(a)(2) is amended 1265.135 May NASA exclude a person who
free awareness program? by removing ‘‘[Agency specific CFR is not currently participating in a
147.220 By when must I publish my drug- citation]’’ and adding ‘‘13 CFR Part 147’’
free workplace statement and establish nonprocurement transaction?
in its place. 1265.140 How do I know if a person is
my drug-free awareness program?
147.225 What actions must I take lllllllllllllllllll excluded?
concerning employees who are convicted 1265.145 Does this part address persons
of drug violations in the workplace? NATIONAL AERONAUTICS AND who are disqualified, as well as those
147.230 How and when must I identify SPACE ADMINISTRATION who are excluded from nonprocurement
workplaces? 14 CFR Parts 1265 and 1267 transactions?
Subpart C—Requirements for Recipients RIN 2700–AC76 Subpart B—Covered Transactions
Who Are Individuals
FOR FURTHER INFORMATION CONTACT: Paul 1265.200 What is a covered transaction?
147.300 What must I do to comply with this 1265.205 Why is it important to know if a
part if I am an individual recipient? Brundage, NASA Headquarters, 300 E
particular transaction is a covered
147.301 [Reserved] Street, SW, Washington, DC 20546–
transaction?
0001, (202) 358–0481, e-mail:
Subpart D—Responsibilities of SBA 1265.210 Which nonprocurement
paul.d.brundage@nasa.gov. transactions are covered transactions?
Awarding Officials
147.400 What are my responsibilities as an List of Subjects 1265.215 Which nonprocurement
SBA awarding official? transactions are not covered
14 CFR Part 1265 transactions?
Subpart E—Violations of This Part and Administrative practice and 1265.220 Are any procurement contracts
Consequences included as covered transactions?
procedure, Debarment and suspension,
147.500 How are violations of this part Grant programs, Reporting and 1265.225 How do I know if a transaction in
determined for recipients other than recordkeeping requirements. which I may participate is a covered
individuals? transaction?
147.505 How are violations of this part 14 CFR Part 1267
determined for recipients who are Subpart C—Responsibilities of Participants
individuals? Administrative practice and Regarding Transactions
147.510 What actions will the Federal procedure, Drug abuse, Grant programs,
Doing Business With Other Persons
Government take against a recipient Reporting and recordkeeping
determined to have violated this part? requirements. 1265.300 What must I do before I enter into
147.515 Are there any exceptions to those a covered transaction with another
Dated: July 8, 2003.
actions? person at the next lower tier?
Tom Luedtke, 1265.305 May I enter into a covered
Subpart F—Definitions Assistant Administrator for Procurement. transaction with an excluded or
147.605 Award. ■ For the reasons stated in the common disqualified person?
147.610 Controlled substance. 1265.310 What must I do if a Federal
preamble, the National Aeronautics and
147.615 Conviction. agency excludes a person with whom I
147.620 Cooperative agreement. Space Administration amends 14 CFR
chapter V as follows: am already doing business in a covered
147.625 Criminal drug statute. transaction?
147.630 Debarment. ■ 1. Part 1265 is revised to read as set
1265.315 May I use the services of an
147.635 Drug-free workplace. forth in instruction 1 at the end of the
excluded person as a principal under a
147.640 Employee. common preamble. covered transaction?
147.645 Federal agency or agency.
1265.320 Must I verify that principals of my
147.650 Grant. PART 1265—GOVERNMENTWIDE
147.655 Individual. covered transactions are eligible to
DEBARMENT AND SUSPENSION
147.660 Recipient. participate?
(NONPROCUREMENT)
147.665 State. 1265.325 What happens if I do business
147.670 Suspension. Sec.
with an excluded person in a covered
1265.25 How is this part organized?
transaction?
Authority: 41 U.S.C. 701–707.
1265.50 How is this part written?
1265.330 What requirements must I pass
■ 11. Part 147 is further amended as set 1265.75 Do terms in this part have special
down to persons at lower tiers with
forth below. meanings? whom I intend to do business?

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66574 Federal Register / Vol. 68, No. 228 / Wednesday, November 26, 2003 / Rule and Regulations

Disclosing Information—Primary Tier 1265.520 Who places the information into 1265.835 Are debarment proceedings
Participants the EPLS? formal?
1265.335 What information must I provide 1265.525 Whom do I ask if I have questions 1265.840 How is fact-finding conducted?
before entering into a covered about a person in the EPLS? 1265.845 What does the debarring official
transaction with NASA? 1265.530 Where can I find the EPLS? consider in deciding whether to debar
1265.340 If I disclose unfavorable me?
Subpart F—General Principles Relating to 1265.850 What is the standard of proof in
information required under § 1265.335, Suspension and Debarment Actions a debarment action?
will I be prevented from participating in
1265.600 How do suspension and 1265.855 Who has the burden of proof in a
the transaction?
debarment actions start? debarment action?
1265.345 What happens if I fail to disclose
1265.605 How does suspension differ from 1265.860 What factors may influence the
the information required under
debarment? debarring official’s decision?
§ 1265.335?
1265.610 What procedures does NASA use 1265.865 How long may my debarment
1265.350 What must I do if I learn of the
in suspension and debarment actions? last?
information required under § 1265.335
1265.615 How does NASA notify a person 1265.870 When do I know if the debarring
after entering into a covered transaction
of a suspension and debarment action? official debars me?
with NASA? 1265.875 May I ask the debarring official to
1265.620 Do Federal agencies coordinate
Disclosing Information—Lower Tier suspension and debarment actions? reconsider a decision to debar me?
Participants 1265.625 What is the scope of a suspension 1265.880 What factors may influence the
or debarment action? debarring official during
1265.355 What information must I provide
1265.630 May NASA impute the conduct of reconsideration?
to a higher tier participant before
one person to another? 1265.885 May the debarring official extend
entering into a covered transaction with
1265.635 May NASA settle a debarment or a debarment?
that participant?
1265.360 What happens if I fail to disclose suspension action?
Subpart I—Definitions
1265.640 May a settlement include a
the information required under 1265.900 Adequate evidence.

voluntary exclusion?
§ 1265.355? 1265.905 Affiliate.

1265.645 Do other Federal agencies know if


1265.365 What must I do if I learn of 1265.910 Agency.

NASA agrees to a voluntary exclusion?


information required under § 1265.355 1265.915 Agent or representative.

after entering into a covered transaction Subpart G—Suspension 1265.920 Civil judgment.

with a higher tier participant? 1265.700 When may the suspending official 1265.925 Conviction.

Subpart D—Responsibilities of NASA issue a suspension? 1265.930 Debarment.

Officials Regarding Transactions 1265.705 What does the suspending official 1265.935 Debarring official.

consider in issuing a suspension? 1265.940 Disqualified.

1265.400 May I enter into a transaction 1265.945 Excluded or exclusion.

1265.710 When does a suspension take


with an excluded or disqualified person? effect? 1265.950 Excluded Parties List System.

1265.405 May I enter into a covered 1265.715 What notice does the suspending 1265.955 Indictment.

transaction with a participant if a official give me if I am suspended? 1265.960 Ineligible or ineligibility.

principal of the transaction is excluded? 1265.720 How may I contest a suspension? 1265.965 Legal proceedings.

1265.410 May I approve a participant’s use 1265.725 How much time do I have to 1265.970 Nonprocurement transaction.

of the services of an excluded person? contest a suspension? 1265.975 Notice.

1265.415 What must I do if a Federal 1265.730 What information must I provide 1265.980 Participant.

agency excludes the participant or a to the suspending official if I contest a 1265.985 Person.

principal after I enter into a covered suspension? 1265.990 Preponderance of the evidence.

transaction? 1265.735 Under what conditions do I get an 1265.995 Principal.

1265.420 May I approve a transaction with additional opportunity to challenge the 1265.1000 Respondent.

an excluded or disqualified person at a facts on which the suspension is based? 1265.1005 State.

lower tier? 1265.740 Are suspension proceedings 1265.1010 Suspending official.

1265.425 When do I check to see if a person formal? 1265.1015 Suspension.

is excluded or disqualified? 1265.745 How is fact-finding conducted? 1265.1020 Voluntary exclusion or

1265.430 How do I check to see if a person 1265.750 What does the suspending official voluntarily excluded.
is excluded or disqualified? consider in deciding whether to continue
1265.435 What must I require of a primary Subpart J—[Reserved]
or terminate my suspension?
tier participant? 1265.755 When will I know whether the Appendix to Part 1265—Covered
1265.440 What method do I use to suspension is continued or terminated? Transactions
communicate those requirements to 1265.760 How long may my suspension
participants? last? Authority: Sec. 2455, Pub. L. 103–355, 108
1265.445 What action may I take if a Stat. 3327 (31 U.S.C. 6101 note); E.O. 11738,
primary tier participant knowingly does Subpart H—Debarment 3 CFR, 1973 Comp., p.799; E.O. 12549, 3
business with an excluded or 1265.800 What are the causes for CFR, 1986 Comp., p. 189; E.O. 12689, 3 CFR,
disqualified person? debarment? 1989 Comp., p. 235; 42 U.S.C. 2473(c)(1).
1265.450 What action may I take if a 1265.805 What notice does the debarring
primary tier participant fails to disclose official give me if I am proposed for ■ 2. Part 1265 is further amended as set
the information required under debarment? forth below.
§ 1265.335? 1265.810 When does a debarment take ■ a. ‘‘The [Agency noun]’’ is removed
1265.455 What may I do if a lower tier effect? and ‘‘NASA’’ is added in its place
participant fails to disclose the 1265.815 How may I contest a proposed wherever it occurs.
information required under § 1265.355 to debarment? ■ b. ‘‘[Agency adjective]’’ is removed and
the next higher tier? 1265.820 How much time do I have to ‘‘NASA’’ is added in its place wherever
contest a proposed debarment? it occurs.
Subpart E—Excluded Parties List System 1265.825 What information must I provide ■ c. ‘‘[Agency head or designee]’’ is
1265.500 What is the purpose of the to the debarring official if I contest a removed and ‘‘Assistant Administrator
Excluded Parties List System (EPLS)? proposed debarment?
1265.505 Who uses the EPLS? 1265.830 Under what conditions do I get an
for Procurement’’ is added in its place
1265.510 Who maintains the EPLS? additional opportunity to challenge the wherever it occurs.
1265.515 What specific information is in facts on which the proposed debarment ■ 3. Section 1265.440 is added to read as
the EPLS? is based? follows:

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§ 1265.440 What method do I use to 1267.610 Controlled substance.


Dated: July 23, 2003.
communicate those requirements to 1267.615 Conviction.
Lucia Homick,
participants? 1267.620 Cooperative agreement.

Acting Director, Office of Executive Budgeting


To communicate the requirements to 1267.625 Criminal drug statute.

and Assistance Management.


participants, you must include a term or 1267.630 Debarment.

1267.635 Drug-free workplace.


■ For the reasons stated in the common
condition in the transaction requiring
1267.640 Employee.
preamble, the Department of Commerce
the participant’s compliance with 1267.645 Federal agency or agency.

subpart C of this part and requiring 1267.650 Grant.

amends 15 CFR subtitle A, as follows:


them to include a similar term or 1267.655 Individual.
■ 1. Part 26 is revised to read as set forth
condition in lower tier covered 1267.660 Recipient.
in instruction 1 at the end of the common
transactions. 1267.665 State.
preamble.
■ 4. Part 1267 is added to read as set forth 1267.670 Suspension.

in instruction 2 at the end of the common Authority: 41 U.S.C. 701 et seq.; 42 U.S.C. PART 26—GOVERNMENTWIDE
preamble. 2473c. DEBARMENT AND SUSPENSION
■ 5. Part 1267 is further amended as set (NONPROCUREMENT)
PART 1267—GOVERNMENTWIDE forth below.
REQUIREMENTS FOR DRUG-FREE Sec.
■ a. ‘‘The [Agency noun]’’ is removed 26.25 How is this part organized?
WORKPLACE (FINANCIAL and ‘‘NASA’’ is added in its place 26.50 How is this part written?
ASSISTANCE) wherever it occurs. 26.75 Do terms in this part have special
Subpart A—Purpose and Coverage ■ b. ‘‘[Agency adjective]’’ is removed and meanings?
Sec.

‘‘NASA’’ is added in its place wherever Subpart A—General


1267.100 What does this part do?
it occurs.
26.100 What does this part do?
1267.105 Does this part apply to me?
■ c. ‘‘[Agency head or designee]’’ is
26.105 Does this part apply to me?
1267.110 Are any of my Federal assistance
removed and ‘‘Assistant Administrator 26.110 What is the purpose of the
awards exempt from this part? for Procurement’’ is added in its place nonprocurement debarment and
1267.115 Does this part affect the Federal wherever it occurs. suspension system?
contracts that I receive? ■ d. ‘‘[Agency head]’’ is removed and 26.115 How does an exclusion restrict a
Subpart B—Requirements for Recipients ‘‘Assistant Administrator for person’s involvement in covered
Other Than Individuals Procurement’’ is added in its place transactions?
1267.200 What must I do to comply with wherever it occurs. 26.120 May we grant an exception to let an
this part? excluded person participate in a covered
■ 6. Section 1267.510(c) is further
1267.205 What must I include in my drug- transaction?
amended by removing ‘‘[CFR citation for 26.125 Does an exclusion under the
free workplace statement? the Federal Agency’s regulations
1267.210 To whom must I distribute my nonprocurement system affect a person’s
implementing Executive Order 12549 eligibility for Federal procurement
drug-free workplace statement?
1267.215 What must I include in my drug- and Executive Order 12689]’’ and adding contracts?
free awareness program? ‘‘14 CFR Part 1265’’ in its place. 26.130 Does exclusion under the Federal
1267.220 By when must I publish my drug- ■ 7. Section 1267.605(a)(2) is further procurement system affect a person’s
free workplace statement and establish amended by removing ‘‘[Agency-specific eligibility to participate in
my drug-free awareness program? nonprocurement transactions?
CFR citation]’’and adding ‘‘14 CFR Part
1267.225 What actions must I take 26.135 May the Department of Commerce
1273’’ in its place. exclude a person who is not currently
concerning employees who are convicted
of drug violations in the workplace? lllllllllllllllllll participating in a nonprocurement
1267.230 How and when must I identify transaction?
workplaces? DEPARTMENT OF COMMERCE 26.140 How do I know if a person is
15 CFR Parts 26 and 29 excluded?
Subpart C—Requirements for Recipients 26.145 Does this part address persons who
Who Are Individuals [Docket No. 030723184–3184–01] are disqualified, as well as those who are
1267.300 What must I do to comply with excluded from nonprocurement
RIN 0605–AA16
this part if I am an individual recipient? transactions?
1267.301 [Reserved] FOR FURTHER INFORMATION CONTACT:
Subpart B—Covered Transactions
Subpart D—Responsibilities of NASA Christine Makris, Office of Acquisition
Management, U.S. Department of 26.200 What is a covered transaction?
Awarding Officials
Commerce, 14th Street and Constitution 26.205 Why is it important to know if a
1267.400 What are my responsibilities as a particular transaction is a covered
NASA awarding official? Avenue, NW., Room HCHB 6422,
transaction?
Washington, DC 20230, 202–482–6131, 26.210 Which nonprocurement transactions
Subpart E—Violations of This Part and e-mail: CMakris@doc.gov.
Consequences are covered transactions?
List of Subjects 26.215 Which nonprocurement transactions
1267.500 How are violations of this part are not covered transactions?
determined for recipients other than 15 CFR Part 26 26.220 Are any procurement contracts
individuals? included as covered transactions?
1267.505 How are violations of this part Administrative practice and 26.225 How do I know if a transaction in
determined for recipients who are procedure, Debarment and suspension, which I may participate is a covered
individuals? Grant programs, Reporting and transaction?
1267.510 What actions will the Federal recordkeeping requirements.
Government take against a recipient Subpart C—Responsibilities of Participants
determined to have violated this part? 15 CFR Part 29 Regarding Transactions
1267.515 Are there any exceptions to those
actions?
Administrative practice and Doing Business With Other Persons
procedure, Drug abuse, Grant programs, 26.300 What must I do before I enter into
Subpart F—Definitions Reporting and recordkeeping a covered transaction with another
1267.605 Award. requirements. person at the next lower tier?

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66576 Federal Register / Vol. 68, No. 228 / Wednesday, November 26, 2003 / Rule and Regulations

26.305 May I enter into a covered 26.450 What action may I take if a primary 26.805 What notice does the debarring
transaction with an excluded or tier participant fails to disclose the official give me if I am proposed for
disqualified person? information required under § 26.335? debarment?
26.310 What must I do if a Federal agency 26.455 What may I do if a lower tier 26.810 When does a debarment take effect?
excludes a person with whom I am participant fails to disclose the 26.815 How may I contest a proposed
already doing business in a covered information required under § 26.355 to debarment?
transaction? the next higher tier? 26.820 How much time do I have to contest
26.315 May I use the services of an a proposed debarment?
excluded person as a principal under a Subpart E—Excluded Parties List System
26.825 What information must I provide to
covered transaction? 26.500 What is the purpose of the the Debarring official if I contest a
26.320 Must I verify that principals of my Excluded Parties List System (EPLS)? proposed debarment?
covered transactions are eligible to 26.505 Who uses the EPLS? 26.830 Under what conditions do I get an
participate? 26.510 Who maintains the EPLS? additional opportunity to challenge the
26.325 What happens if I do business with 26.515 What specific information is in the facts on which the proposed debarment
an excluded person in a covered EPLS? is based?
transaction? 26.520 Who places the information into the
26.330 What requirements must I pass 26.835 Are debarment proceedings formal?
EPLS? 26.840 How is fact-finding conducted?
down to persons at lower tiers with 26.525 Whom do I ask if I have questions
whom I intend to do business? 26.845 What does the debarring official
about a person in the EPLS? consider in deciding whether to debar
Disclosing Information—Primary Tier 26.530 Where can I find the EPLS? me?
Participants Subpart F—General Principles Relating to 26.850 What is the standard of proof in a
26.3357 What information must I provide Suspension and Debarment Actions debarment action?
before entering into a covered 26.855 Who has the burden of proof in a
26.600 How do suspension and debarment
transaction with the Department of debarment action?
actions start?
Commerce? 26.860 What factors may influence the
26.605 How does suspension differ from
26.340 If I disclose unfavorable information debarring official’s decision?
debarment?
required under § 26.335, will I be 26.865 How long may my debarment last?
26.610 What procedures does the
prevented from participating in the 26.870 When do I know if the debarring
Department of Commerce use in
transaction? official debars me?
suspension and debarment actions?
26.345 What happens if I fail to disclose the 26.875 May I ask the debarring official to
26.615 How does the Department of
information required under § 26.335? reconsider a decision to debar me?
Commerce notify a person of a
26.350 What must I do if I learn of the 26.880 What factors may influence the
suspension and debarment action?
information required under § 26.335 after debarring official during
26.620 Do Federal agencies coordinate
entering into a covered transaction with reconsideration?
the Department of Commerce? suspension and debarment actions?
26.625 What is the scope of a suspension or 26.885 May the debarring official extend a
Disclosing Information—Lower Tier debarment action? debarment?
Participants 26.630 May the Department of Commerce Subpart I—Definitions
26.355 What information must I provide to impute the conduct of one person to
26.900 Adequate evidence.

a higher tier participant before entering another?


26.635 May the Department of Commerce 26.905 Affiliate.

into a covered transaction with that 26.910 Agency.

participant? settle a debarment or suspension action?


26.640 May a settlement include a 26.915 Agent or representative.

26.360 What happens if I fail to disclose the 26.920 Civil judgment.

information required under § 26.355? voluntary exclusion?


26.645 Do other Federal agencies know if 26.925 Conviction.

26.365 What must I do if I learn of 26.930 Debarment.

information required under § 26.355 after the Department of Commerce agrees to a


voluntary exclusion? 26.935 Debarring official.

entering into a covered transaction with 26.940 Disqualified.

a higher tier participant? Subpart G—Suspension 26.945 Excluded or exclusion.

Subpart D—Responsibilities of DoC 26.700 When may the suspending official 26.950 Excluded Parties List System.

Officials Regarding Transactions issue a suspension? 26.955 Indictment.

26.400 May I enter into a transaction with 26.705 What does the suspending official 26.960 Ineligible or ineligibility.

an excluded or disqualified person? consider in issuing a suspension? 26.965 Legal proceedings.

26.405 May I enter into a covered 26.710 When does a suspension take effect? 26.970 Nonprocurement transaction.

transaction with a participant if a 26.715 What notice does the suspending 26.975 Notice.

principal of the transaction is excluded? official give me if I am suspended? 26.980 Participant.

26.410 May I approve a participant’s use of 26.720 How may I contest a suspension? 26.985 Person.

the services of an excluded person? 26.725 How much time do I have to contest 26.990 Preponderance of the evidence.

26.415 What must I do if a Federal agency a suspension? 26.995 Principal.

excludes the participant or a principal 26.730 What information must I provide to 26.1000 Respondent.

after I enter into a covered transaction? the suspending official if I contest a 26.1005 State.

26.420 May I approve a transaction with an suspension? 26.1010 Suspending official.

excluded or disqualified person at a 26.735 Under what conditions do I get an 26.1015 Suspension.

lower tier? additional opportunity to challenge the 26.1020 Voluntary exclusion or voluntarily

26.425 When do I check to see if a person facts on which the suspension is based? excluded.
is excluded or disqualified? 26.740 Are suspension proceedings formal?
Subpart J—[Reserved]
26.430 How do I check to see if a person is 26.745 How is fact-finding conducted?
excluded or disqualified? 26.750 What does the suspending official Appendix to Part 26—Covered Transactions
26.435 What must I require of a primary tier consider in deciding whether to continue
participant? or terminate my suspension? Authority: 5 U.S.C. 301; Sec. 2455, Pub. L.
26.440 What method do I use to 26.755 When will I know whether the 103–355, 108 Stat. 3327 (31 U.S.C. 6101
communicate those requirements to suspension is continued or terminated? note); E.O. 12549 (3 CFR, 1986 Comp., p.
participants? 26.760 How long may my suspension last? 189); E.O. 12689 (3 CFR, 1989 Comp., p. 235).
26.445 What action may I take if a primary
tier participant knowingly does business Subpart H—Debarment ■ 2. Part 26 is further amended as set
with an excluded or disqualified person? 26.800 What are the causes for debarment? forth below.

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Federal Register / Vol. 68, No. 228 / Wednesday, November 26, 2003 / Rule and Regulations 66577

■ a. ‘‘[Agency noun]’’ is removed and (c) The contract is a subcontract 29.225 What actions must I take concerning
‘‘Department of Commerce’’ is added in awarded by a participant in a employees who are convicted of drug
its place wherever it occurs. procurement transaction that is covered violations in the workplace?
■ b. ‘‘[Agency adjective]’’ is removed and
29.230 How and when must I identify
under paragraph (a) of this section, and
workplaces?
‘‘DoC’’ is added in its place wherever it the amount of the contract exceeds or is
occurs. expected to exceed $25,000. This Subpart C—Requirements for Recipients
■ c. ‘‘[Agency head or designee]’’ is extends the coverage of paragraph (a) of Who Are Individuals
removed and ‘‘Secretary of Commerce or this section to one additional tier of 29.300 What must I do to comply with this
designee’’ is added in its place wherever contracts, as shown in the diagram in part if I am an individual recipient?
it occurs. the Appendix to this part. 29.301 [Reserved]
■ 3. Section 26.215 is amended as ■ 5. Section 26.440 is added to read as Subpart D—Responsibilities of DoC
follows: follows: Awarding Officials
■ a. Add paragraph (d)(1) and add and 29.400 What are my responsibilities as a
reserve paragraph (d)(2). § 26.440 What method do I use to DoC awarding official?
■ b. Add paragraph (f)(1) and add and communicate those requirements to
participants? Subpart E—Violations of This Part and
reserve paragraph (f)(2).
Consequences
■ c. Add paragraph (g)(1) and add and To communicate the requirements to
reserve paragraph (g)(2). participants, you must include a term or 29.500 How are violations of this part
The additions read as follows: determined for recipients other than
condition in the transaction requiring
individuals?
the participants’ compliance with 29.505 How are violations of this part
§ 26.215 Which nonprocurement
transactions are not covered transactions?
subpart C of this part and requiring determined for recipients who are
them to include a similar term or individuals?
* * * * * condition in lower-tier covered 29.510 What actions will the Federal
(d) * * * Government take against a recipient
transactions.
(1) For the purposes of the DoC this determined to have violated this part?
means: ■ 6. Section 26.970 is amended to add
29.515 Are there any exceptions to those
(i) Fisherman’s Contingency Fund. paragraphs (a)(12) through (16) to read as actions?
(ii) [Reserved] follows:
(2) [Reserved] Subpart F—Definitions
§ 26.970 Nonprocurement transaction 29.605 Award.
* * * * *
(f) * * * (a) * * * 29.610 Controlled substance.
(1) For purposes of the DoC this (12) Joint Project Agreements under 29.615 Conviction.
15 U.S.C. 1525. 29.620 Cooperative agreement.
means: 29.625 Criminal drug statute.
(i) Export Promotion, Trade (13) Cooperative research and
29.630 Debarment.
Information and Counseling, and Trade development agreements. 29.635 Drug-free workplace.
Policy. (14) Joint statistical agreements. 29.640 Employee.
(ii) Geodetic Surveys and Services (15) Patent licenses under 35 U.S.C. 29.645 Federal agency or agency.
(Specialized Services). 207. 29.650 Grant.
(iii) Fishery Products Inspection (16) NTIS joint ventures, 15 U.S.C. 29.655 Individual.
Certification. 3704b. 29.660 Recipient.
(iv) Standard Reference Materials. 29.665 State.
* * * * * 29.670 Suspension.
(v) Calibration, Measurement and
■ 7. Part 29 is added to read as set forth
Testing. Authority: 5 U.S.C. 301; 41 U.S.C. 701 et
(vi) Critically Evaluated Data in instruction 2 at the end of the common seq.
(Standard Reference Data). preamble.
■ 8. Part 29 is further amended as set
(vii) Phoenix Data System. forth below.
(viii) The sale or provision of PART 29—GOVERNMENTWIDE
REQUIREMENTS FOR DRUG-FREE ■ a. ‘‘[Agency noun]’’ is removed and
products, information, and services to ‘‘Department of Commerce’’ is added in
the general public. WORKPLACE (FINANCIAL
ASSISTANCE) its place wherever it occurs.
(2) [Reserved] ■ b. ‘‘[Agency adjective]’’ is removed and
(g) * * * Subpart A—Purpose and Coverage ‘‘DoC’’ is added in its place wherever it
(1) For purposes of the DoC this
29.100 What does this part do? occurs.
means: ■ c. ‘‘[Agency head or designee]’’ is
29.105 Does this part apply to me?
(i) The Administration of the 29.110 Are any of my Federal assistance removed and ‘‘Secretary of Commerce or
Antidumping and Countervailing Duty awards exempt from this part? designee’’ is added in its place wherever
Statutes. 29.115 Does this part affect the Federal it occurs.
(ii) The Export Trading Company Act contracts that I receive? ■ d. ‘‘[Agency head]’’ is removed and
Certificate of Review Program. ‘‘Secretary of Commerce’’ is added in its
(iii) Trade Adjustment Assistance Subpart B—Requirements for Recipients
Other Than Individuals place wherever it occurs.
Program Certification.
29.200 What must I do to comply with this ■ 9. Section 29.510(c) is further amended
(iv) Foreign Trade Zones Act of 1934,
as amended. part? by removing ‘‘[CFR citation for the
(v) Statutory Import Program. 29.205 What must I include in my drug-free Federal agency’s regulations
workplace statement? implementing Executive Order 12549
(2) [Reserved]
29.210 To whom must I distribute my drug- and Executive Order 12689]’’ and adding
■ 4. Section 26.220 is amended to add free workplace statement?
paragraph (c) to read as follows: ‘‘15 CFR Part 26’’ in its place.
29.215 What must I include in my drug-free
awareness program? ■ 10. Section 29.605(a)(2) is further
§ 26.220 Are any procurement contracts 29.220 By when must I publish my drug- amended by removing ‘‘[Agency-specific
included as covered transactions? free workplace statement and establish CFR citation]’’ and adding ‘‘15 CFR Part
* * * * * my drug-free awareness program? 24’’ in its place.

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66578 Federal Register / Vol. 68, No. 228 / Wednesday, November 26, 2003 / Rule and Regulations

lllllllllllllllllll 436.25 How is this part organized? Disclosing Information—Primary Tier


436.50 How is this part written? Participants
SOCIAL SECURITY ADMINISTRATION 436.75 Do terms in this part have special 436.335 What information must I provide
meanings? before entering into a covered
20 CFR Parts 436 and 439
Subpart A—General transaction with the SSA?
RIN 0960–AE27 436.340 If I disclose unfavorable
436.100 What does this part do? information required under § 436.335,
FOR FURTHER INFORMATION CONTACT: 436.105 Does this part apply to me? will I be prevented from participating in
Phyllis Y. Smith, Grants Management 436.110 What is the purpose of the the transaction?
Officer, Office of Acquisition and nonprocurement debarment and 436.345 What happens if I fail to disclose
Grants, Grants Management Team, 1710 suspension system? the information required under
Gwynn Oak Ave, Baltimore, MD 21207, 436.115 How does an exclusion restrict a § 436.335?
(410) 965–9518, e-mail: person’s involvement in covered 436.350 What must I do if I learn of
transactions? information required under § 436.335
phyllis.y.smith@ssa.gov.
436.120 May we grant an exception to let an after entering into a covered transaction
SUPPLEMENTARY INFORMATION: Prior to excluded person participate in a covered with the SSA?
March 31, 1995, SSA was an operating transaction?
component of the Department of Health 436.125 Does an exclusion under the Disclosing Information—Lower Tier
and Human Services (HHS). As a result nonprocurement system affect a person’s Participants
of Public Law 103–296, the Social eligibility for Federal procurement 436.355 What information must I provide to
Security Administration (SSA) became contracts? a higher tier participant before entering
436.130 Does exclusion under the Federal into a covered transaction with that
an independent agency on March 31,
procurement system affect a person’s participant?
1995. However, pursuant to section eligibility to participate in 436.360 What happens if I fail to disclose
106(b) of that law, the HHS regulations nonprocurement transactions? the information required under
at 45 CFR part 76 dealing with 436.135 May the SSA exclude a person who § 436.355?
nonprocurement, debarment and is not currently participating in a 436.365 What must I do if I learn of
suspension, and the requirements for a nonprocurement transaction? information required under § 436.355
drug-free workplace have remained 436.140 How do I know if a person is after entering into a covered transaction
applicable to SSA. In order to excluded? with a higher tier participant?
436.145 Does this part address persons who
implement its own set of regulations on Subpart D—Responsibilities of SSA
are disqualified, as well as those who are
these topics, SSA is adopting the excluded from nonprocurement Officials Regarding Transactions
common rules on nonprocurement, transactions? 436.400 May I enter into a transaction with
debarment and suspension, and an excluded or disqualified person?
requirements for a drug-free workplace Subpart B—Covered Transactions 436.405 May I enter into a covered
with one amendment as new parts 436 436.200 What is a covered transaction? transaction with a participant if a
and 439 in title 20 of the Code of 436.205 Why is it important to know if a principal of the transaction is excluded?
Federal Regulations. HHS regulations at particular transaction is a covered 436.410 May I approve a participant’s use
transaction? of the services of an excluded person?
45 CFR Part 76 will cease to be 436.210 Which nonprocurement 436.415 What must I do if a Federal agency
applicable to SSA on the effective date transactions are covered transactions? excludes the participant or a principal
of these regulations, in accordance with 436.215 Which nonprocurement after I enter into a covered transaction?
section 106(b) of Pub. L. 103–296. transactions are not covered 436.420 May I approve a transaction with
transactions? an excluded or disqualified person at a
List of Subjects 436.220 Are any procurement contracts lower tier?
20 CFR Part 436 included as covered transactions? 436.425 When do I check to see if a person
436.225 How do I know if a transaction in is excluded or disqualified?
Administrative practice and which I may participate is a covered 436.430 How do I check to see if a person
procedures, Debarment and suspension, transaction? is excluded or disqualified?
Grant programs, and reporting and 436.435 What must I require of a primary
Subpart C—Responsibilities of Participants tier participant?
recordkeeping requirements.
Regarding Transactions 436.440 What method do I use to
20 CFR Part 439 Doing Business With Other Persons communicate those requirements to
Administrative practice and participants?
436.300 What must I do before I enter into 436.445 What action may I take if a primary
procedure, Drug abuse, Grant programs, a covered transaction with another tier participant knowingly does business
Reporting and recordkeeping person at the next lower tier? with an excluded or disqualified person?
requirements. 436.305 May I enter into a covered 436.450 What action may I take if a primary
transaction with an excluded or tier participant fails to disclose the
Dated: July 15, 2003.
disqualified person? information required under § 436.335?
Jo Anne B. Barnhart, 436.310 What must I do if a Federal agency 436.455 What may I do if a lower tier
Commissioner of Social Security. excludes a person with whom I am participant fails to disclose the
■ For the reasons stated in the common already doing business in a covered information required under § 436.355 to
preamble, the Social Security transaction? the next higher tier?
Administration amends 20 CFR chapter 436.315 May I use the services of an Subpart E—Excluded Parties List System
excluded person as a principal under a
III, as follows: covered transaction? 436.500 What is the purpose of the
■ 1. Part 436 is added to read as set forth 436.320 Must I verify that principals of my Excluded Parties List System (EPLS)?
in instruction 1 at the end of the common covered transactions are eligible to 436.505 Who uses the EPLS?
preamble. participate? 436.510 Who maintains the EPLS?
436.325 What happens if I do business with 436.515 What specific information is in the
PART 436—GOVERNMENTWIDE an excluded person in a covered EPLS?
DEBARMENT AND SUSPENSION transaction? 436.520 Who places the information into
(NONPROCUREMENT) 436.330 What requirements must I pass the EPLS?
down to persons at lower tiers with 436.525 Whom do I ask if I have questions
Sec. whom I intend to do business? about a person in the EPLS?

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436.530 Where can I find the EPLS? 436.850 What is the standard of proof in a the participant’s compliance with
debarment action? subpart C of this part and requiring
Subpart F—General Principles Relating to 436.855 Who has the burden of proof in a
Suspension and Debarment Actions them to include a similar term or
debarment action?
436.600 How do suspension and debarment
condition in lower tier covered
436.860 What factors may influence the
actions start? debarring official’s decision? transactions.
436.605 How does suspension differ from 436.865 How long may my debarment last? ■ 4. Part 439 is added to read as set forth
debarment? 436.870 When do I know if the debarring in instruction 2 at the end of the common
436.610 What procedures does the SSA use official debars me? preamble.
in suspension and debarment actions? 436.875 May I ask the debarring official to
436.615 How does the SSA notify a person reconsider a decision to debar me? PART 439—GOVERNMENTWIDE
of a suspension and debarment action? 436.880 What factors may influence the REQUIREMENTS FOR DRUG-FREE
436.620 Do Federal agencies coordinate debarring official during WORKPLACE (FINANCIAL
suspension and debarment actions? reconsideration? ASSISTANCE)
436.625 What is the scope of a suspension 436.885 May the debarring official extend a
or debarment action? debarment? Subpart A—Purpose and Coverage
436.630 May the SSA impute the conduct Sec.
Subpart I—Definitions
of one person to another? 439.100 What does this part do?
436.635 May the SSA settle a debarment or 436.900 Adequate evidence.

439.105 Does this part apply to me?


suspension action? 436.905 Affiliate.

439.110 Are any of my Federal assistance


436.640 May a settlement include a 436.910 Agency.

awards exempt from this part?


voluntary exclusion? 436.915 Agent or representative.

439.115 Does this part affect the Federal


436.645 Do other Federal agencies know if 436.920 Civil judgment.

contracts that I receive?


the SSA agrees to a voluntary exclusion? 436.925 Conviction.

436.930 Debarment.
Subpart B—Requirements for Recipients
Subpart G—Suspension 436.935 Debarring official.
Other Than Individuals
436.700 When may the suspending official 436.940 Disqualified.
439.200 What must I do to comply with this
issue a suspension? 436.945 Excluded or exclusion.
part?
436.705 What does the suspending official 436.950 Excluded Parties List System.
439.205 What must I include in my drug-
consider in issuing a suspension? 436.955 Indictment.
free workplace statement?
436.710 When does a suspension take 436.960 Ineligible or ineligibility.
439.210 To whom must I distribute my
effect? 436.965 Legal proceedings.
drug-free workplace statement?
436.715 What notice does the suspending 436.970 Nonprocurement transaction.
439.215 What must I include in my drug-
official give me if I am suspended? 436.975 Notice.
free awareness program?
436.720 How may I contest a suspension? 436.980 Participant.
439.220 By when must I publish my drug-
436.725 How much time do I have to 436.985 Person.
free workplace statement and establish
contest a suspension? 436.990 Preponderance of the evidence.
my drug-free awareness program?
436.730 What information must I provide to 436.995 Principal.
439.225 What actions must I take
the suspending official if I contest a 436.1000 Respondent.
concerning employees who are convicted
suspension? 436.1005 State.
of drug violations in the workplace?
436.735 Under what conditions do I get an 436.1010 Suspending official.
439.230 How and when must I identify
additional opportunity to challenge the 436.1015 Suspension.
workplaces?
facts on which the suspension is based? 436.1020 Voluntary exclusion or

436.740 Are suspension proceedings voluntarily excluded. Subpart C—Requirements for Recipients
formal? Who Are Individuals
Subpart J—[Reserved]
436.745 How is fact-finding conducted? 439.300 What must I do to comply with this
436.750 What does the suspending official Appendix to Part 436—Covered part if I am an individual recipient?
consider in deciding whether to continue Transactions 439.301 [Reserved]
or terminate my suspension?
436.755 When will I know whether the Authority: 42 U.S.C. 902(a)(5); Sec. 2455, Subpart D—Responsibilities of SSA
suspension is continued or terminated? Pub. L. 103–355, 108 Stat. 3327; E.O. 12549 Awarding Officials
436.760 How long may my suspension last? (3 CFR, 1986 Comp., p. 189); E.O. 12689 (3 439.400 What are my responsibilities as an
CFR, 1989 Comp., p. 235). SSA awarding official?
Subpart H—Debarment
■ 2. Part 436 is further amended as Subpart E—Violations of This Part and
436.800 What are the causes for debarment?
436.805 What notice does the debarring follows: Consequences
■ a. ‘‘[Agency noun]’’ is removed and
official give me if I am proposed for 439.500 How are violations of this part
debarment? ‘‘SSA’’ is added in its place wherever it determined for recipients other than
436.810 When does a debarment take occurs. individuals?
effect? ■ b. ‘‘[Agency adjective]’’ is removed and 439.505 How are violations of this part
436.815 How may I contest a proposed ‘‘SSA’’ is added in its place wherever it determined for recipients who are
debarment? occurs. individuals?
436.820 How much time do I have to ■ c. ‘‘[Agency head or designee]’’ is 439.510 What actions will the Federal
contest a proposed debarment? removed and ‘‘SSA Debarring/ Government take against a recipient
436.825 What information must I provide to Suspension Official’’ is added in its determined to have violated this part?
the debarring official if I contest a place wherever it occurs. 439.515 Are there any exceptions to those
proposed debarment? actions?
436.830 Under what conditions do I get an ■ 3. Section 436.440 is added to read as
additional opportunity to challenge the follows: Subpart F—Definitions
facts on which the proposed debarment 439.605 Award.
§ 436.440 What method do I use to
is based? 439.610 Controlled substance.
communicate those requirements to
436.835 Are debarment proceedings formal? 439.615 Conviction.
participants?
436.840 How is fact-finding conducted? 439.620 Cooperative agreement.
436.845 What does the debarring official To communicate the requirements to 439.625 Criminal drug statute.
consider in deciding whether to debar participants, you must include a term or 439.630 Debarment.
me? condition in the transaction requiring 439.635 Drug-free workplace.

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66580 Federal Register / Vol. 68, No. 228 / Wednesday, November 26, 2003 / Rule and Regulations

439.640 Employee. PART 1404—GOVERNMENTWIDE 1404.325 What happens if I do business


439.645 Federal agency or agency. DEBARMENT AND SUSPENSION with an excluded person in a covered
439.650 Grant. transaction?
(NONPROCUREMENT)
439.655 Individual. 1404.330 What requirements must I pass
439.660 Recipient. Sec. down to persons at lower tiers with
439.665 State. 1404.25 How is this part organized? whom I intend to do business?
439.670 Suspension. 1404.50 How is this part written? Disclosing Information—Primary Tier
Authority: 41 U.S.C. 701 et seq. 1404.75 Do terms in this part have special Participants
meanings?
■ 5. Part 439 is further amended as 1404.335 What information must I provide
Subpart A—General before entering into a covered
follows:
1404.100 What does this part do? transaction with the Office of National
■ a. ‘‘[Agency noun]’’ is removed and 1404.105 Does this part apply to me? Drug Control Policy?
‘‘SSA’’ is added in its place wherever it 1404.110 What is the purpose of the 1404.340 If I disclose unfavorable
occurs. nonprocurement debarment and information required under § 1404.335,
■ b. ‘‘[Agency adjective]’’ is removed and suspension system? will I be prevented from participating in
‘‘SSA’’ is added in its place wherever it 1404.115 How does an exclusion restrict a the transaction?
occurs. person’s involvement in covered 1404.345 What happens if I fail to disclose
transactions? the information required under
■ c. ‘‘[Agency head or designee]’’ is
1404.120 May we grant an exception to let § 1404.335?
removed and ‘‘SSA Official or designee’’ an excluded person participate in a 1404.350 What must I do if I learn of the
is added in its place wherever it occurs. covered transaction? information required under § 1404.335
■ d. ‘‘[Agency head]’’ is removed and 1404.125 Does an exclusion under the after entering into a covered transaction
‘‘the Commissioner of SSA’’ is added in nonprocurement system affect a person’s with the Office of National Drug Control
its place wherever it occurs. eligibility for Federal procurement Policy?
contracts?
■ 6. Section 439.510(c) is further 1404.130 Does exclusion under the Federal Disclosing Information—Lower Tier
amended by removing ‘‘[CFR citation for procurement system affect a person’s Participants
the Federal Agency’s regulations eligibility to participate in 1404.355 What information must I provide
implementing Executive Order 12549 nonprocurement transactions? to a higher tier participant before
and Executive Order 12689]’’and adding 1404.135 May the Office of National Drug entering into a covered transaction with
‘‘20 CFR Part 436’’ in its place. Control Policy exclude a person who is that participant?
not currently participating in a 1404.360 What happens if I fail to disclose
■ 7. Section 439.605(a)(2) is further nonprocurement transaction? the information required under
amended by removing ‘‘[Agency-specific 1404.140 How do I know if a person is § 1404.355?
CFR citation]’’and adding ‘‘20 CFR Part excluded? 1404.365 What must I do if I learn of
439’’ in its place. 1404.145 Does this part address persons information required under § 1404.355
who are disqualified, as well as those after entering into a covered transaction
lllllllllllllllllll who are excluded from nonprocurement with a higher tier participant?
transactions?
OFFICE OF NATIONAL DRUG Subpart D—Responsibilities of Office of
CONTROL POLICY Subpart B—Covered Transactions National Drug Control Policy Officials
21 CFR Parts 1404 and 1405 1404.200 What is a covered transaction? Regarding Transactions
1404.205 Why is it important to know if a 1404.400 May I enter into a transaction
RIN 3201–ZA03 particular transaction is a covered with an excluded or disqualified person?
transaction? 1404.405 May I enter into a covered
FOR FURTHER INFORMATION CONTACT:
1404.210 Which nonprocurement transaction with a participant if a
ONDCP, Attn: Daniel R. Petersen, transactions are covered transactions? principal of the transaction is excluded?
Washington, DC 20503, (202) 395–6745, 1404.215 Which nonprocurement 1404.410 May I approve a participant’s use
Daniel_R._Petersen@ondcp.eop.gov. transactions are not covered of the services of an excluded person?
transactions? 1404.415 What must I do if a Federal
List of Subjects 1404.220 Are any procurement contracts agency excludes the participant or a
21 CFR Part 1404 included as covered transactions? principal after I enter into a covered
1404.225 How do I know if a transaction in transaction?
Administrative practice and which I may participate is a covered 1404.420 May I approve a transaction with
procedure, Debarment and suspension, transaction? an excluded or disqualified person at a
Grant programs, Reporting and Subpart C—Responsibilities of Participants lower tier?
recordkeeping requirements. Regarding Transactions 1404.425 When do I check to see if a person
is excluded or disqualified?
21 CFR Part 1405 Doing Business With Other Persons 1404.430 How do I check to see if a person
Administrative practice and 1404.300 What must I do before I enter into is excluded or disqualified?
procedure, Drug abuse, Grant programs, a covered transaction with another 1404.435 What must I require of a primary
person at the next lower tier? tier participant?
Reporting and recordkeeping
1404.305 May I enter into a covered 1404.440 What method do I use to
requirements. transaction with an excluded or communicate those requirements to
John Walters, disqualified person? participants?
1404.310 What must I do if a Federal 1404.445 What action may I take if a
Director.
agency excludes a person with whom I primary tier participant knowingly does
■ For the reason stated in the common am already doing business in a covered business with an excluded or
preamble, the Office of National Drug transaction? disqualified person?
Control Policy amends 21 CFR chapter 1404.315 May I use the services of an 1404.450 What action may I take if a
III, as follows. excluded person as a principal under a primary tier participant fails to disclose
covered transaction? the information required under
■ 1. Part 1404 is revised to read as set 1404.320 Must I verify that principals of my § 1404.335?
forth in instruction 1 at the end of the covered transactions are eligible to 1404.455 What may I do if a lower tier
common preamble. participate? participant fails to disclose the

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information required under § 1404.355 to 1404.805 What notice does the debarring ■ 2. Part 1404 is further amended as set
the next higher tier? official give me if I am proposed for forth below.
debarment?
Subpart E—Excluded Parties List System 1404.810 When does a debarment take ■ a. ‘‘[Agency noun]’’ is removed and
1404.500 What is the purpose of the effect? ‘‘Office of National Drug Control Policy’’
Excluded Parties List System (EPLS)? 1404.815 How may I contest a proposed is added in its place wherever it occurs.
1404.505 Who uses the EPLS? debarment? ■ b. ‘‘[Agency adjective]’’ is removed and
1404.510 Who maintains the EPLS? 1404.820 How much time do I have to ‘‘Office of National Drug Control Policy’’
1404.515 What specific information is in contest a proposed debarment?
the EPLS?
is added in its place wherever it occurs.
1404.825 What information must I provide
1404.520 Who places the information into to the debarring official if I contest a ■ c. ‘‘[Agency head or designee]’’ is
the EPLS? proposed debarment? removed and ‘‘Director of National Drug
1404.525 Whom do I ask if I have questions 1404.830 Under what conditions do I get an Control Policy’’ is added in its place
about a person in the EPLS? additional opportunity to challenge the wherever it occurs.
1404.530 Where can I find the EPLS? facts on which the proposed debarment
is based? ■ 3. Section 1404.440 is added to read as
Subpart F—General Principles Relating to 1404.835 Are debarment proceedings follows:
Suspension and Debarment Actions formal?
1404.600 How do suspension and 1404.840 How is fact-finding conducted? § 1404.440 What method do I use to
debarment actions start? 1404.845 What does the debarring official communicate those requirements to
1404.605 How does suspension differ from consider in deciding whether to debar participants?
debarment? me? You must obtain certifications from
1404.610 What procedures does the Office 1404.850 What is the standard of proof in
participants that they will comply with
of National Drug Control Policy use in a debarment action?
suspension and debarment actions? 1404.855 Who has the burden of proof in a subpart C of this part and that they will
1404.615 How does the Office of National debarment action? obtain similar certifications from lower-
Drug Control Policy notify a person of a 1404.860 What factors may influence the tier participants.
suspension and debarment action? debarring official’s decision?
■ 4. Part 1405 is added to read as set forth
1404.620 Do Federal agencies coordinate 1404.865 How long may my debarment
suspension and debarment actions? last? in instruction 2 at the end of the common
1404.625 What is the scope of a suspension 1404.870 When do I know if the debarring preamble.
or debarment action? official debars me?
1404.630 May the Office of National Drug 1404.875 May I ask the debarring official to PART 1405—GOVERNMENTWIDE
Control Policy impute the conduct of one reconsider a decision to debar me? REQUIREMENTS FOR DRUG-FREE
person to another? 1404.880 What factors may influence the WORKPLACE (FINANCIAL
1404.635 May the Office of National Drug debarring official during ASSISTANCE)
Control Policy settle a debarment or reconsideration?
suspension action? 1404.885 May the debarring official extend Subpart A—Purpose and Coverage
1404.640 May a settlement include a a debarment? 1405.100 What does this part do?
voluntary exclusion? 1405.105 Does this part apply to me?
1404.645 Do other Federal agencies know if Subpart I—Definitions
1405.110 Are any of my Federal assistance
the Office of National Drug Control 1404.900 Adequate evidence. awards exempt from this part?
Policy agrees to a voluntary exclusion? 1404.905 Affiliate. 1405.115 Does this part affect the Federal
1404.910 Agency. contracts that I receive?
Subpart G—Suspension 1404.915 Agent or representative.
1404.700 When may the suspending official 1404.920 Civil judgment. Subpart B—Requirements for Recipients
issue a suspension? 1404.925 Conviction. Other Than Individuals
1404.705 What does the suspending official 1404.930 Debarment. 1405.200 What must I do to comply with
consider in issuing a suspension? 1404.935 Debarring official. this part?
1404.710 When does a suspension take 1404.940 Disqualified. 1405.205 What must I include in my drug-
effect? 1404.945 Excluded or exclusion. free workplace statement?
1404.715 What notice does the suspending 1404.950 Excluded Parties List System. 1405.210 To whom must I distribute my
official give me if I am suspended? 1404.955 Indictment. drug-free workplace statement?
1404.720 How may I contest a suspension? 1404.960 Ineligible or ineligibility. 1405.215 What must I include in my drug-
1404.725 How much time do I have to 1404.965 Legal proceedings. free awareness program?
contest a suspension? 1404.970 Nonprocurement transaction. 1405.220 By when must I publish my drug-
1404.730 What information must I provide 1404.975 Notice. free workplace statement and establish
to the suspending official if I contest a 1404.980 Participant. my drug-free awareness program?
suspension? 1404.985 Person. 1405.225 What actions must I take
1404.735 Under what conditions do I get an 1404.990 Preponderance of the evidence. concerning employees who are convicted
additional opportunity to challenge the 1404.995 Principal. of drug violations in the workplace?
facts on which the suspension is based? 1404.1000 Respondent. 1405.230 How and when must I identify
1404.740 Are suspension proceedings 1404.1005 State. workplaces?
formal? 1404.1010 Suspending official.
1404.745 How is fact-finding conducted? 1404.1015 Suspension. Subpart C—Requirements for Recipients
1404.750 What does the suspending official 1404.1020 Voluntary exclusion or Who Are Individuals
consider in deciding whether to continue voluntarily excluded. 1405.300 What must I do to comply with
or terminate my suspension? this part if I am an individual recipient?
1404.755 When will I know whether the Subpart J—[Reserved]
1405.301 [Reserved]
suspension is continued or terminated? Appendix to Part 1404—Covered
1404.760 How long may my suspension Subpart D—Responsibilities of Office of
Transactions
last? National Drug Control Policy Awarding
Authority: E.O. 12549 3 CFR 1986 Comp., Officials
Subpart H—Debarment p. 189; E.O. 12689 3 CFR 1989 Comp., p. 235; 1405.400 What are my responsibilities as an
1404.800 What are the causes for sec. 2455, Pub. L. 103–355, 108 Stat. 3327 (31 Office of National Drug Control Policy
debarment? U.S.C. 6101 note); 21 U.S.C. 1701. awarding official?

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Subpart E—Violations of This Part and List of Subjects 133.505 How are violations of this part
Consequences determined for recipients who are
22 CFR Part 133 individuals?
1405.500 How are violations of this part
determined for recipients other than 133.510 What actions will the Federal
Administrative practice and Government take against a recipient
individuals? procedure, Drug abuse, Grant programs, determined to have violated this part?
1405.505 How are violations of this part Reporting and recordkeeping 133.515 Are there any exceptions to those
determined for recipients who are requirements. actions?
individuals?
1405.510 What actions will the Federal 22 CFR Part 137 Subpart F—Definitions
Government take against a recipient 133.605 Award.
determined to have violated this part? Administrative practice and
133.610 Controlled substance.
1405.515 Are there exceptions to those procedure, Debarment and suspension, 133.615 Conviction.
actions? Grant programs, Reporting and 133.620 Cooperative agreement.
Subpart F—Definitions
recordkeeping requirements. 133.625 Criminal drug statute.
Dated: June 17, 2003. 133.630 Debarment.
1405.605 Award.
133.635 Drug-free workplace.
1405.610 Controlled substance.
Georgia K. Hubert, 133.640 Employee.
1405.615 Conviction.
Acting Procurement Executive, Department 133.645 Federal agency or agency.
1405.620 Cooperative agreement.
of State. 133.650 Grant.
1405.625 Criminal drug statute.
133.655 Individual.
1405.630 Debarment.
For the reasons stated in the common

133.660 Recipient.
1405.635 Drug-free workplace.
preamble, the Department of State 133.665 State.
1405.640 Employee.
amends 22 CFR chapter I, as follows: 133.670 Suspension.
1405.645 Federal agency or agency.
■ 1. Part 133 is added to read as set forth
1405.650 Grant.
Authority: 22 U.S.C. 2658; 41 U.S.C. 701,
in instruction 2 at the end of the common et seq.
1405.655 Individual.

1405.660 Recipient.

preamble.
■ 2. Part 133 is further amended as set
1405.665 State.
forth below.
1405.670 Suspension.

PART 133—GOVERNMENTWIDE
REQUIREMENTS FOR DRUG-FREE ■ a. ‘‘[Agency noun]’’ is removed and
Authority: 21 U.S.C. 1701; 41 U.S.C. 701, WORKPLACE (FINANCIAL ‘‘Department of State’’ is added in its
et seq. ASSISTANCE) place wherever it occurs.
■ b. ‘‘[Agency adjective]’’ is removed and
■ 5. Part 1405 is further amended as set Subpart A—Purpose and Coverage ‘‘Department of State’’ is added in its
forth below. place wherever it occurs.
133.100 What does this part do?
■ a. ‘‘[Agency noun]’’ is removed and 133.105 Does this part apply to me? ■ c. ‘‘[Agency head or designee]’’ is
‘‘Office of National Drug Control Policy’’ 133.110 Are any of my Federal assistance removed and ‘‘Procurement Executive’’
is added in its place wherever it occurs. awards exempt from this part? is added in its place wherever it occurs.
■ b. ‘‘[Agency adjective]’’ is removed and 133.115 Does this part affect the Federal ■ d. ‘‘[Agency head]’’ is removed and
‘‘Office of National Drug Control Policy’’ contracts that I receive? ‘‘Procurement Executive’’ is added in its
is added in its place wherever it occurs. Subpart B—Requirements for Recipients place wherever it occurs.
■ c. ‘‘[Agency head or designee]’’ is Other Than Individuals ■ 3. Section 133.510(c) is further
removed and ‘‘Director of National Drug 133.200 What must I do to comply with this amended by removing ‘‘[CFR citation for
Control Policy’’ is added in its place part? the Federal Agency’s regulations
wherever it occurs. 133.205 What must I include in my drug- implementing Executive Order 12549
■ d. ‘‘[Agency head]’’ is removed and free workplace statement? and Executive Order 12689]’’ and adding
‘‘Director of National Drug Control 133.210 To whom must I distribute my ‘‘22 CFR Part 137’’ in its place.
drug-free workplace statement? ■ 4. Section 133.605(a)(2) is further
Policy’’ is added in its place wherever it 133.215 What must I include in my drug-
occurs. amended by removing ‘‘[Agency-specific
free awareness program?
■ 6. Section 1405.510 (c) is further 133.220 By when must I publish my drug-
CFR citation]’’ and adding ‘‘22 CFR Part
amended by removing ‘‘[CFR citation for free workplace statement and establish 135’’ in its place.
the Federal Agency’s regulations my drug-free awareness program? ■ 5. Part 137 is revised to read as set forth
implementing Executive Order 12549 133.225 What actions must I take in instruction 1 at the end of the common
and Executive Order 12689]’’ and adding concerning employees who are convicted preamble.
‘‘21 CFR Part 1404’’ in its place. of drug violations in the workplace?
133.230 How and when must I identify PART 137—GOVERNMENTWIDE
■ 7. Section 1405.605 (a) (2) is further workplaces? DEBARMENT AND SUSPENSION
amended by removing ‘‘[Agency-specific (NONPROCUREMENT)
Subpart C—Requirements for Recipients
CFR citation]’’ and adding ‘‘21 CFR Part
Who Are Individuals
1403’’ in its place. Sec.
133.300 What must I do to comply with this 137.25 How is this part organized?
lllllllllllllllllll part if I am an individual recipient? 137.50 How is this part written?
133.301 [Reserved] 137.75 Do terms in this part have special
DEPARTMENT OF STATE
meanings?
Subpart D—Responsibilities of Department
22 CFR Parts 133 and 137
of State Awarding Officials Subpart A—General
RIN 1400–AB83 133.400 What are my responsibilities as a 137.100 What does this part do?
FOR FURTHER INFORMATION CONTACT: Department of State awarding official? 137.105 Does this part apply to me?
Susan Catington, Department 137.110 What is the purpose of the
Subpart E—Violations of This Part and nonprocurement debarment and
Competition Advocate, Policy Division, Consequences suspension system?
Office of the Procurement Executive, 133.500 How are violations of this part 137.115 How does an exclusion restrict a
U.S. Department of State, Washington, determined for recipients other than person’s involvement in covered
DC 20522, (703) 516–1693. individuals? transactions?

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137.120 May we grant an exception to let an 137.350 What must I do if I learn of the 137.615 How does the Department of State
excluded person participate in a covered information required under § 137.335 notify a person of a suspension and
transaction? after entering into a covered transaction debarment action?
137.125 Does an exclusion under the with the Department of State? 137.620 Do Federal agencies coordinate
nonprocurement system affect a person’s suspension and debarment actions?
eligibility for Federal procurement Disclosing Information—Lower Tier 137.625 What is the scope of a suspension
contracts? Participants or debarment action?
137.130 Does exclusion under the Federal 137.355 What information must I provide to 137.630 May the Department of State
procurement system affect a person’s a higher tier participant before entering impute the conduct of one person to
eligibility to participate in into a covered transaction with that another?
nonprocurement transactions? participant? 137.635 May the Department of State settle
137.135 May the Department of State 137.360 What happens if I fail to disclose a debarment or suspension action?
exclude a person who is not currently the information required under 137.640 May a settlement include a
participating in a nonprocurement § 137.355? voluntary exclusion?
transaction? 137.365 What must I do if I learn of 137.645 Do other Federal agencies know if
137.140 How do I know if a person is information required under § 137.355 the Department of State agrees to a
excluded? after entering into a covered transaction voluntary exclusion?
137.145 Does this part address persons who with a higher tier participant?
are disqualified, as well as those who are Subpart G—Suspension
excluded from nonprocurement Subpart D—Responsibilities of Department 137.700 When may the suspending official
transactions? of State Officials Regarding Transactions issue a suspension?
Subpart B—Covered Transactions 137.400 May I enter into a transaction with 137.705 What does the suspending official
an excluded or disqualified person? consider in issuing a suspension?
137.200 What is a covered transaction?
137.405 May I enter into a covered 137.710 When does a suspension take
137.205 Why is it important to know if a
transaction with a participant if a effect?
particular transaction is a covered
principal of the transaction is excluded? 137.715 What notice does the suspending
transaction?
137.210 Which nonprocurement 137.410 May I approve a participant’s use official give me if I am suspended?
transactions are covered transactions? of the services of an excluded person? 137.720 How may I contest a suspension?
137.215 Which nonprocurement 137.415 What must I do if a Federal agency 137.725 How much time do I have to
transactions are not covered excludes the participant or a principal contest a suspension?
transactions? after I enter into a covered transaction? 137.730 What information must I provide to
137.220 Are any procurement contracts 137.420 May I approve a transaction with the suspending official if I contest a
included as covered transactions? an excluded or disqualified person at a suspension?
137.225 How do I know if a transaction in lower tier? 137.735 Under what conditions do I get an
which I may participate is a covered 137.425 When do I check to see if a person additional opportunity to challenge the
transaction? is excluded or disqualified? facts on which the suspension is based?
137.430 How do I check to see if a person 137.740 Are suspension proceedings
Subpart C—Responsibilities of Participants is excluded or disqualified? formal?
Regarding Transactions 137.435 What must I require of a primary 137.745 How is fact-finding conducted?
Doing Business With Other Persons tier participant? 137.750 What does the suspending official
137.440 What method do I use to consider in deciding whether to continue
137.300 What must I do before I enter into or terminate my suspension?
communicate those requirements to
a covered transaction with another 137.755 When will I know whether the
participants?
person at the next lower tier? suspension is continued or terminated?
137.305 May I enter into a covered 137.445 What action may I take if a primary
tier participant knowingly does business 137.760 How long may my suspension last?
transaction with an excluded or
disqualified person? with an excluded or disqualified person?
Subpart H—Debarment
137.310 What must I do if a Federal agency 137.450 What action may I take if a primary
tier participant fails to disclose the 137.800 What are the causes for debarment?
excludes a person with whom I am 137.805 What notice does the debarring
already doing business in a covered information required under § 137.335?
137.455 What may I do if a lower tier official give me if I am proposed for
transaction?
participant fails to disclose the debarment?
137.315 May I use the services of an
information required under § 137.355 to 137.810 When does a debarment take
excluded person as a principal under a
the next higher tier? effect?
covered transaction?
137.320 Must I verify that principals of my 137.815 How may I contest a proposed
Subpart E—Excluded Parties List System debarment?
covered transactions are eligible to
participate? 137.500 What is the purpose of the 137.820 How much time do I have to
137.325 What happens if I do business with Excluded Parties List System? contest a proposed debarment?
an excluded person in a covered 137.505 Who uses the EPLS? 137.825 What information must I provide to
transaction? 137.510 Who maintains the EPLS? the debarring official if I contest a
137.330 What requirements must I pass 137.515 What specific information is in the proposed debarment?
down to persons at lower tiers with EPLS? 137.830 Under what conditions do I get an
whom I intend to do business? 137.520 Who places the information into additional opportunity to challenge the
the EPLS? facts on which the proposed debarment
Disclosing Information—Primary Tier 137.525 Whom do I ask if I have questions is based?
Participants about a person in the EPLS? 137.835 Are debarment proceedings formal?
137.335 What information must I provide 137.530 Where can I find the EPLS? 137.840 How is fact-finding conducted?
before entering into a covered 137.845 What does the debarring official
transaction with the Department of Subpart F—General Principles Relating to consider in deciding whether to debar
State? Suspension and Debarment Actions me?
137.340 If I disclose unfavorable 137.600 How do suspension and debarment 137.850 What is the standard of proof in a
information required under § 137.335, actions start? debarment action?
will I be prevented from participating in 137.605 How does suspension differ from 137.855 Who has the burden of proof in a
the transaction? debarment? debarment action?
137.345 What happens if I fail to disclose 137.610 What procedures does the 137.860 What factors may influence the
the information required under Department of State use in suspension debarring official’s decision?
§ 137.335? and debarment actions? 137.865 How long may my debarment last?

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137.870 When do I know if the debarring AGENCY FOR INTERNATIONAL excluded from nonprocurement
official debars me? DEVELOPMENT transactions?
137.875 May I ask the debarring official to
22 CFR Parts 208 and 210 Subpart B—Covered Transactions
reconsider a decision to debar me?
137.880 What factors may influence the 208.200 What is a covered transaction?
RIN 0412–AA47
debarring official during 208.205 Why is it important to know if a
reconsideration? FOR FURTHER INFORMATION CONTACT: particular transaction is a covered
137.885 May the debarring official extend a Raquel Powell, M/OP/POL, 1300 transaction?
debarment? Pennsylvania Avenue, NW., 208.210 Which nonprocurement
Washington, DC 20523–7801, (202) 712– transactions are covered transactions?
Subpart I—Definitions 208.215 Which nonprocurement
0778. transactions are not covered
137.900 Adequate evidence.

137.905 Affiliate.
List of Subjects transactions?
137.910 Agency.
208.220 Are any procurement contracts
137.915 Agent or representative.
22 CFR Part 208 included as covered transactions?
137.920 Civil judgment.
Administrative practice and 208.225 How do I know if a transaction in
137.925 Conviction.
which I may participate is a covered
procedure, Debarment and suspension, transaction?
137.930 Debarment.
Grant programs, Reporting and
137.935 Debarring official.
recordkeeping requirements. Subpart C—Responsibilities of Participants
137.940 Disqualified.
Regarding Transactions
137.945 Excluded or exclusion.
22 CFR Part 210
137.950 Excluded Parties List System.
Doing Business With Other Persons
137.955 Indictment.

Administrative practice and


208.300 What must I do before I enter into
137.960 Ineligible or ineligibility.
procedure, Drug abuse, Grant programs, a covered transaction with another
137.965 Legal proceedings.
Reporting and recordkeeping person at the next lower tier?
137.970 Nonprocurement transaction.
requirements. 208.305 May I enter into a covered
137.975 Notice.
Dated: July 15, 2003. transaction with an excluded or
137.980 Participant.
disqualified person?
Timothy T. Beans, 208.310 What must I do if a Federal agency
137.985 Person.

137.990 Preponderance of the evidence.


Director, Office of Procurement. excludes a person with whom I am
137.995 Principal.
■ For the reason stated in the common already doing business in a covered
137.1000 Respondent.
preamble, the Agency for International transaction?
137.1005 State.
Development amends 22 CFR Chapter II, 208.315 May I use the services of an
137.1010 Suspending official.
excluded person as a principal under a
as follows: covered transaction?
137.1015 Suspension.
■ 1. Part 208 is revised to read as set forth 208.320 Must I verify that principals of my
137.1020 Voluntary exclusion or

in instruction 1 at the end of the common covered transactions are eligible to


voluntarily excluded.
preamble. participate?
Subpart J—[Reserved] 208.325 What happens if I do business with
PART 208—GOVERNMENTWIDE an excluded person in a covered
Appendix to Part 137—Covered
DEBARMENT AND SUSPENSION transaction?
Transactions
(NONPROCUREMENT) 208.330 What requirements must I pass
Authority: 22 U.S.C. 2658; sec. 2455, Pub. down to persons at lower tiers with
L. 103–355, 108 Stat. 3327 (31 U.S.C. 6101 Sec. whom I intend to do business?
note); E.O. 12549, 3 CFR 1986 Comp., p.189; 208.25 How is this part organized?
208.50 How is this part written? Disclosing Information—Primary Tier
E.O. 12689, 3 CFR 1989 Comp., p. 235. Participants
208.75 Do terms in this part have special
■ 6. Part 137 is further amended as set meanings? 208.335 What information must I provide
forth below. before entering into a covered
Subpart A—General transaction with the U.S. Agency for
■ a. ‘‘[Agency noun]’’ is removed and
208.100 What does this part do? International Development?
‘‘Department of State’’ is added in its 208.105 Does this part apply to me? 208.340 If I disclose unfavorable
place wherever it occurs. 208.110 What is the purpose of the information required under § 208.335,
■ b. ‘‘[Agency adjective]’’ is removed and nonprocurement debarment and will I be prevented from participating in
‘‘Department of State’’ is added in its suspension systems? the transaction?
place wherever it occurs. 208.115 How does an exclusion restrict a 208.345 What happens if I fail to disclose
person’s involvement in covered the information required under
■ c. ‘‘[Agency head or designee]’’ is transactions? § 208.335?
removed and ‘‘Procurement Executive’’ 208.120 May we grant an exception to let an 208.350 What must I do if I learn of the
is added in its place wherever it occurs. excluded person participate in a covered information required under § 208.335
■ 7. Section 137.440 is added to read as transaction? after entering into a covered transaction
208.125 Does an exclusion under the with the U.S. Agency for International
follows: nonprocurement system affect a person’s Development?
§ 137.440 What method do I use to eligibility for Federal procurement
contracts? Disclosing Information—Lower Tier
communicate those requirements to Participants
participants? 208.130 Does exclusion under the Federal
procurement system affect a person’s 208.355 What information must I provide to
To communicate the requirement to eligibility to participate in a higher tier participant before entering
participants, you must include a term or nonprocurement transactions? into a covered transaction with that
condition in the transaction requiring 208.135 May the U.S. Agency for participant?
the participant’s compliance with International Development exclude a 208.360 What happens if I fail to disclose
subpart C of this part and requiring person who is not currently participating the information required under
them to include a similar term or in a nonprocurement transaction? § 208.355?
208.140 How do I know if a person is 208.365 What must I do if I learn of
condition in lower tier covered excluded? information required under § 208.355
transactions. 208.145 Does this part address persons who after entering into a covered transaction
lllllllllllllllllll are disqualified, as well as those who are with a higher tier participant?

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Subpart D—Responsibilities of USAID Development agrees to a voluntary 208.925 Conviction.


Officials Regarding Transactions exclusion? 208.930 Debarment.
208.400 May I enter into a transaction with 208.935 Debarring official.
Subpart G—Suspension
an excluded or disqualified person? 208.940 Disqualified.
208.700 When may the suspending official 208.945 Excluded or exclusion.
208.405 May I enter into a covered
issue a suspension? 208.950 Excluded Parties List System.
transaction with a participant if a
208.705 What does the suspending official 208.955 Indictment.
principal of the transaction is excluded?
consider in issuing a suspension? 208.960 Ineligible or ineligibility.
208.410 May I approve a participant’s use
208.710 When does a suspension take 208.965 Legal proceedings.
of the services of an excluded person?
effect? 208.970 Nonprocurement transaction.
208.415 What must I do if a Federal agency
208.715 What notice does the suspending 208.975 Notice.
excludes the participant or a principal
official give me if I am suspended? 208.980 Participant.
after I enter into a covered transaction?
208.720 How may I contest a suspension? 208.985 Person.
208.420 May I approve a transaction with
208.725 How much time do I have to 208.990 Preponderance of the evidence.
an excluded or disqualified person at a
contest a suspension? 208.995 Principal.

lower tier?
208.730 What information must I provide to 208.1000 Respondent.

208.425 When do I check to see if a person


the suspending official if I contest a 208.1005 State.

is excluded or disqualified?
suspension? 208.1010 Suspending official.

208.430 How do I check to see if a person


208.735 Under what conditions do I get an 208.1015 Suspension.

is excluded or disqualified?
additional opportunity to challenge the 208.1020 Voluntary exclusion or

208.435 What must I require of a primary


facts on which the suspension is based? voluntarily excluded.
tier participant?
208.740 Are suspension proceedings
208.440 What method do I use to
formal? Subpart J—[Reserved]
communicate those requirements to
208.745 How is fact-finding conducted?
participants? Appendix to Part 208—Covered
208.750 What does the suspending official
208.445 What action may I take if a primary Transactions
consider in deciding whether to continue
tier participant knowingly does business
or terminate my suspension? Authority: E.O. 12163, 3 CFR 1979 Comp.,
with an excluded or disqualified person?
208.755 When will I know whether the p. 435; E.O. 12549 3 CFR 1986 Comp., p. 189;
208.450 What action may I take if a primary
suspension is continued or terminated? E.O. 12698, 3 CFR 1989 Comp., p. 235; sec.
tier participant fails to disclose the
208.760 How long may my suspension last? 2455, Pub. L. 103–355, 108 Stat. 3327 (31
information required under § 208.335?
208.455 What may I do if a lower tier Subpart H—Debarment U.S.C. 6101 note); sec. 621, Pub. L. 87–195,
participant fails to disclose the 75 Stat. 445 (22 U.S.C. 2381), as amended.
208.800 What are the causes for debarment?
information required under § 208.355 to 208.805 What notice does the debarring ■ 2. Part 208 is further amended as set
the next higher tier? official give me if I am proposed for forth below.
Subpart E—Excluded Parties List System debarment? ■ a. ‘‘[Agency Noun]’’ is removed and
208.810 When does a debarment take
208.500 What is the purpose of the effect?
‘‘U.S. Agency for International
Excluded Parties List System (EPLS)? 208.815 How may I contest a proposed Development’’ is added in its place
208.505 Who uses the EPLS? debarment? wherever it occurs.
208.510 Who maintains the EPLS? 208.820 How much time do I have to ■ b. ‘‘[Agency adjective]’’ is removed and
208.515 What specific information is in the contest a proposed debarment? ‘‘USAID’’ is added in its place wherever
EPLS? 208.825 What information must I provide to
208.520 Who places the information into
it occurs.
the debarring official if I contest a ■ c. ‘‘[Agency head or designee]’’ is
the EPLS? proposed debarment?
208.525 Whom do I ask if I have questions removed and ‘‘Director, Office of
208.830 Under what conditions do I get an
about a person in the EPLS? additional opportunity to challenge the
Procurement’’ is added in its place
208.530 Where can I find the EPLS? facts on which the proposed debarment wherever it occurs.
Subpart F—General Principles Relating to is based? ■ 3. Section 208.440 is added to read as
Suspension and Debarment Actions 208.835 Are debarment proceedings formal? follows:
208.840 How is fact-finding conducted?
208.600 How do suspension and debarment 208.845 What does the debarring official § 208.440 What method do I use to
actions start? consider in deciding whether to debar communicate those requirements to
208.605 How does suspension differ from me? participants?
debarment? 208.850 What is the standard of proof in a
208.610 What procedures does the U.S. To communicate the requirements in
debarment action?
Agency for International Development § 208.35, you must include a term or
208.855 Who has the burden of proof in a
use in suspension and debarment debarment action? condition in the transaction requiring
actions? 208.860 What factors may influence the the participants’ compliance with
208.615 How does the U.S. Agency for debarring official’s decision? subpart C of this part and requiring
International Development notify a 208.865 How long may my debarment last? them to include a similar term or
person of a suspension and debarment 208.870 When do I know if the debarring condition in lower-tier covered
action? official debars me? transactions.
208.620 Do Federal agencies coordinate 208.875 May I ask the debarring official to
suspension and debarment actions? ■ 4. Section 208.935 is further amended
reconsider a decision to debar me?
208.625 What is the scope of a suspension 208.880 What factors may influence the by adding paragraph (b) to read as
or debarment action? debarring official during follows:
208.630 May the U.S. Agency for reconsideration?
International Development impute the 208.885 May the debarring official extend a § 208.935 Debarring official.
conduct of one person to another? debarment? * * * * *
208.635 May the U.S. Agency for (b) The U.S. Agency for International
International Development settle a Subpart I—Definitions
Development’s debarring official is the
debarment or suspension action? 208.900 Adequate evidence. Director of the Office of Procurement.
208.640 May a settlement include a 208.905 Affiliate.
voluntary exclusion? 208.910 Agency. ■ 5. Section 208.1010 is further amended
208.645 Do other Federal agencies know if 208.915 Agent or representative. by adding paragraph (b) to read as
the U.S. Agency for International 208.920 Civil judgment follows:

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66586 Federal Register / Vol. 68, No. 228 / Wednesday, November 26, 2003 / Rule and Regulations

§ 208.1010 Suspending official. 210.610 Controlled substance. 22 CFR Part 312


* * * * * 210.615 Conviction.
(b) The U.S. Agency for International 210.620 Cooperative agreement. Administrative practice and
210.625 Criminal drug statute. procedure, Drug abuse, Grant programs,
Development’s suspending official is the 210.630 Debarment 210.635 Drug-free
Director of the Office of Procurement. Reporting and recordkeeping
workplace. requirements.
■ 6. Part 210 is added to read as set forth 210.640 Employee.
in instruction 2 at the end of the common 210.645 Federal agency or agency. Dated: July 24, 2003.
preamble. 210.650 Grant. Keith A. Vance,
210.655 Individual. Director, Office of Administrative Services,
PART 210—GOVERNMENTWIDE 210.660 Recipient. Peace Corps.
REQUIREMENTS FOR DRUG-FREE 210.665 State.
210.670 Suspension. ■ For the reasons stated in the common
WORKPLACE (FINANCIAL
ASSISTANCE) Authority: 41 U.S.C. 701, et seq.; sec. 621, preamble, the Peace Corps amends 22
Pub. L. 87–195, 75 Stat. 445 (22 U.S.C. 2381), CFR chapter III, as follows:
Subpart A—Purpose and Coverage as amended; E.O. 12163, 3 CFR 1979 Comp., ■ 1. Part 310 is revised to read as set forth
p. 435.
in instruction 1 at the end of the common
Sec.
210.100 What does this part do? ■ 7. Part 210 is further amended as set preamble.
210.105 Does this part apply to me? forth below.
210.110 Are any of my Federal assistance PART 310—GOVERNMENTWIDE
■ a. ‘‘[Agency Noun]’’ is removed and
awards exempt from this part? DEBARMENT AND SUSPENSION
‘‘U.S. Agency for International (NONPROCUREMENT).
210.115 Does this part affect the Federal
Development’’ is added in its place
contracts that I receive?
wherever it occurs. Sec.
Subpart B—Requirements for ■ b. ‘‘[Agency Adjective]’’ is removed 310.25 How is this part organized?
Recipients Other Than Individuals and ‘‘USAID’’ is added in its place 310.50 How is this part written?
wherever it occurs. 310.75 Do terms in this part have special
210.200 What must I do to comply with this meanings?
■ c. ‘‘[Agency Head or Designee]’’ is
part? Subpart A—General
210.205 What must I include in my drug-
removed and ‘‘Director of the Office of
free workplace statement? Procurement’’ is added in its place 310.100 What does this part do?
210.210 To whom must I distribute my wherever it occurs. 310.105 Does this part apply to me?
drug-free workplace statement? ■ d. ‘‘[Agency head]’’ is removed and 310.110 What is the purpose of the
210.215 What must I include in my drug- ‘‘USAID Administrator or designee’’ is nonprocurement debarment and
free awareness program? added in its place wherever it occurs. suspension system?
210.220 By when must I publish my drug- 310.115 How does an exclusion restrict a
free workplace statement and establish ■ 8. Section 210.510(c) is further person’s involvement in covered
my drug-free awareness program? amended by removing ‘‘[CFR citation for transactions?
210.225 What actions must I take the Federal Agency’s regulation 310.120 May we grant an exception to let an
concerning employees who are convicted implementing Executive Order 12549 excluded person participate in a covered
of drug violations in the workplace? and Executive Order 12689]’’ and adding transaction?
210.230 How and when must I identify ‘‘22 CFR Part 208’’ in its place. 310.125 Does an exclusion under the
workplaces? nonprocurement system affect a person’s
■ 9. Section 210.605 is further amended eligibility for Federal procurement
Subpart C—Requirements for by adding a paragraph (c) to read as contracts?
Recipients Who Are Individuals follows: 310.130 Does exclusion under the federal
procurement system affect a person’s
210.300 What must I do to comply with this § 210.605 Award eligibility to participate in
part if I am an individual recipient? * * * * * nonprocurement transactions?
210.301 [Reserved] (c) Notwithstanding paragraph (a)(2) 310.135 May the Peace Corps exclude a
of this section, this paragraph is not person who is not currently participating
Subpart D—Responsibilities of USAID in a nonprocurement transaction?
Awarding Officials applicable to AID.
310.140 How do I know if a person is
lllllllllllllllllll excluded?
210.400 What are my responsibilities as a
PEACE CORPS 310.145 Does this part address persons who
USAID awarding official?
are disqualified, as well as those who are
22 CFR Parts 310 and 312 excluded from nonprocurement
Subpart E—Violations of This Part and
transactions?
Consequences RIN 0420–AA17
Subpart B—Covered Transactions
210.500 How are violations of this part FOR FURTHER INFORMATION CONTACT:
determined for recipients other than Suzanne Glasow, Associate General 310.200 What is a covered transaction?
individuals? Counsel, Office of the General Counsel, 310.205 Why is it important to know if a
210.505 How are violations of this part particular transaction is a covered
Peace Corps, 1111 20th Street, NW., transaction?
determined for recipients who are Washington, DC 20526, (202) 692–2157.
individuals? 310.210 Which nonprocurement
210.510 What actions will the Federal List of Subjects transactions are covered transactions?
Government take against a recipient 310.215 Which nonprocurement
determined to have violated this part? 22 CFR Part 310 transactions are not covered
210.515 Are there any provisions for transactions?
Administrative practice and 310.220 Are any procurement contracts
exceptions to those actions?
procedure, Government contracts, Grant included as covered transactions?
Subpart F—Definitions programs, Loan programs, Reporting 310.225 How do I know if a transaction in
and recordkeeping requirements, which I may participate is a covered
210.605 Award. Technical assistance. transaction?

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Subpart C—Responsibilities of Participants 310.435 What must I require of a primary 310.750 What does the suspending official
Regarding Transactions tier participant? consider in deciding whether to continue
310.440 What method do I use to or terminate my suspension?
Doing Business With Other Persons
communicate those requirements to 310.755 When will I know whether the
310.300 What must I do before I enter into participants? suspension is continued or terminated?
a covered transaction with another 310.445 What action may I take if a primary 310.760 How long may my suspension last?
person at the next lower tier? tier participant knowingly does business
310.305 May I enter into a covered with an excluded or disqualified person? Subpart H—Debarment
transaction with an excluded or 310.450 What action may I take if a primary 310.800 What are the causes for debarment?
disqualified person? tier participant fails to disclose the 310.805 What notice does the debarring
310.310 What must I do if a federal agency information required under § 310.335? official give me if I am proposed for
excludes a person with whom I am 310.455 What may I do if a lower tier debarment?
already doing business in a covered participant fails to disclose the 310.810 When does a debarment take
transaction? information required under § 310.355 to effect?
310.315 May I use the services of an the next higher tier?
excluded person as a principal under a 310.815 How may I contest a proposed
covered transaction? Subpart E—Excluded Parties List System debarment?
310.320 Must I verify that principals of my 310.820 How much time do I have to
310.500 What is the purpose of the contest a proposed debarment?
covered transactions are eligible to Excluded Parties List System (EPLS)?
participate? 310.825 What information must I provide to
310.505 Who uses the EPLS?
310.325 What happens if I do business with the debarring official if I contest a
310.510 Who maintains the EPLS?
an excluded person in a covered proposed debarment?
310.515 What specific information is in the
transaction? EPLS? 310.830 Under what conditions do I get an
310.330 What requirements must I pass 310.520 Who places the information into additional opportunity to challenge the
down to persons at lower tiers with the EPLS? facts on which the proposed debarment
whom I intend to do business? 310.525 Whom do I ask if I have questions is based?
about a person in the EPLS? 310.835 Are debarment proceedings formal?
Disclosing Information—Primary Tier
Participants 310.530 Where can I find the EPLS? 310.840 How is fact-finding conducted?
310.845 What does the debarring official
310.335 What information must I provide Subpart F—General Principles Relating to consider in deciding whether to debar
before entering into a covered Suspension and Debarment Actions me?
transaction with the Peace Corps? 310.600 How do suspension and debarment 310.850 What is the standard of proof in a
310.340 If I disclose unfavorable actions start? debarment action?
information required under § 310.335, 310.605 How does suspension differ from 310.855 Who has the burden of proof in a
will I be prevented from participating in
debarment? debarment action?
the transaction?
310.610 What procedures does the Peace 310.860 What factors may influence the
310.345 What happens if I fail to disclose
Corps use in suspension and debarment debarring official’s decision?
the information required under
actions? 310.865 How long may my debarment last?
§ 310.335?
310.615 How does the Peace Corps notify a 310.870 When do I know if the debarring
310.350 What must I do if I learn of the
person of a suspension and debarment official debars me?
information required under § 310.335
action? 310.875 May I ask the debarring official to
after entering into a covered transaction
310.620 Do federal agencies coordinate reconsider a decision to debar me?
with the Peace Corps?
suspension and debarment actions? 310.880 What factors may influence the
Disclosing Information—Lower Tier 310.625 What is the scope of a suspension debarring official during
Participants or debarment action? reconsideration?
310.355 What information must I provide to 310.630 May the Peace Corps impute the 310.885 May the debarring official extend a
a higher tier participant before entering conduct of one person to another? debarment?
into a covered transaction with that 310.635 May the Peace Corps settle a
participant? debarment or suspension action? Subpart I—Definitions
310.360 What happens if I fail to disclose 310.640 May a settlement include a 310.900 Adequate evidence.

the information required under voluntary exclusion? 310.905 Affiliate.

§ 310.355? 310.645 Do other federal agencies know if 310.910 Agency.

310.365 What must I do if I learn of the Peace Corps agrees to a voluntary 310.915 Agent or representative.

information required under § 310.355 exclusion?


310.920 Civil judgment.

after entering into a covered transaction Subpart G—Suspension 310.925 Conviction.

with a higher tier participant? 310.930 Debarment.

310.700 When may the suspending official


Subpart D—Responsibilities of Peace Corps issue a suspension? 310.935 Debarring official.

Officials Regarding Transactions 310.705 What does the suspending official 310.940 Disqualified.

consider in issuing a suspension? 310.945 Excluded or exclusion.

310.400 May I enter into a transaction with


310.710 When does a suspension take 310.950 Excluded Parties List System.

an excluded or disqualified person?


310.405 May I enter into a covered effect? 310.955 Indictment.

transaction with a participant if a 310.715 What notice does the suspending 310.960 Ineligible or ineligibility.

principal of the transaction is excluded? official give me if I am suspended? 310.965 Legal proceedings.

310.410 May I approve a participant’s use 310.720 How may I contest a suspension? 310.970 Nonprocurement transaction.

of the services of an excluded person? 310.725 How much time do I have to 310.975 Notice.

310.415 What must I do if a federal agency contest a suspension? 310.980 Participant.

excludes the participant or a principal 310.730 What information must I provide to 310.985 Person.

after I enter into a covered transaction? the suspending official if I contest a 310.990 Preponderance of the evidence.

310.420 May I approve a transaction with suspension? 310.995 Principal.

an excluded or disqualified person at a 310.735 Under what conditions do I get an 310.100 Respondent.

lower tier? additional opportunity to challenge the 310.1005 State.

310.425 When do I check to see if a person facts on which the suspension is based? 310.1010 Suspending official.

is excluded or disqualified? 310.740 Are suspension proceedings 310.1015 Suspension.

310.430 How do I check to see if a person formal? 310.1020 Voluntary exclusion or

is excluded or disqualified? 310.745 How is fact-finding conducted? voluntarily excluded.

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66588 Federal Register / Vol. 68, No. 228 / Wednesday, November 26, 2003 / Rule and Regulations

Subpart J—Reserved Subpart C—Requirements for Recipients lllllllllllllllllll


Who Are Individuals
Appendix to Part 310—Covered INTER-AMERICAN FOUNDATION
Transactions 312.300 What must I do to comply with this
part if I am an individual recipient? 22 CFR Parts 1006 and 1008
Authority: 22 U.S.C. 2503; Sec. 2455, Pub. 312.301 [Reserved]
L. 103–355, 108 Stat. 3327 (31 U.S.C. 6101 RIN 3200–ZA05
Subpart D—Responsibilities of Peace Corps
note); E.O. 12549 (3 CFR, 1986 Comp., p. FOR FURTHER INFORMATION CONTACT:
Awarding Officials
189); E.O. 12689 (3 CFR, 1989 Comp., p. 235). Carolyn Karr, General Counsel, Inter-
312.400 What are my responsibilities as a
American Foundation, 901 N. Stuart
■ 2. Part 310 is further amended as set Peace Corps awarding official?
Street, Arlington, Virginia 22203, (703)
forth below. Subpart E—Violations of This Part and 306–4350, ckarr@iaf.gov.
■ a. ‘‘[Agency noun]’’ is removed and Consequences
‘‘Peace Corps’’ is added in its place List of Subjects
312.500 How are violations of this part
wherever it occurs. determined for recipients other than 22 CFR Part 1006
■ b. ‘‘[Agency adjective]’’ is removed and individuals?
312.505 How are violations of this part
Administrative practice and
‘‘Peace Corps’’ is added in its place procedure, Government contracts, Grant
wherever it occurs. determined for recipients who are
individuals? programs, Loan programs, Reporting
■ c. ‘‘[Agency head or designee]’’ is and recordkeeping requirements,
312.510 What actions will the Federal
removed and ‘‘Peace Corps Director or Government take against a recipient Technical assistance.
designee ‘‘is added in its place wherever determined to have violated this part?
it occurs. 312.515 Are there any exceptions to those 22 CFR Part 1008
■ 3. Section 310.440 is added to read as actions? Administrative practice and
follows: Subpart F—Definitions procedure, Drug abuse, Grant programs,
Reporting and recordkeeping
312.605 Award.
§ 310.440 What method do I use to requirements.
312.610 Controlled substance.
communicate those requirements to
312.615 Conviction. Dated: August 1, 2003.
participants?
312.620 Cooperative agreement. David Valenzuela,
To communicate the requirements to 312.625 Criminal drug statute. President, Inter-American Foundation.
participants, you must include a term or 312.630 Debarment.
312.635 Drug-free workplace. ■ For the reasons stated in the common
condition in the transaction requiring
312.640 Employee. preamble, the Inter-American
the participant’s compliance with
312.645 Federal agency or agency. Foundation amends 22 CFR Chapter X,
subpart C of this part and requiring
312.650 Grant. as follows:
them to include a similar term or
312.655 Individual. ■ 1. Part 1006 is revised to read as set
condition in lower tier covered 312.660 Recipient.
transactions. 312.665 State.
forth in instruction 1 at the end of the
312.670 Suspension. common preamble.
■ 4. Part 312 is added to read as set forth
in instruction 2 at the end of the common Authority: 22 U.S.C. 2503 (b); 41 U.S.C. PART 1006—GOVERNMENTWIDE
preamble. 701 et seq. DEBARMENT AND SUSPENSION
■ 5. Part 312 is further amended as set (NONPROCUREMENT)
PART 312—GOVERNMENTWIDE forth below.
REQUIREMENTS FOR DRUG—FREE ■ a. ‘‘[Agency noun]’’ is removed and Sec.

WORKPLACE (FINANCIAL 1006.25 How is this part organized?

‘‘Peace Corps’’ is added in its place


ASSISTANCE) 1006.50 How is this part written?

wherever it occurs. 1006.75 Do terms in this part have special

Subpart A—Purpose and Coverage ■ b. ‘‘[Agency adjective]’’ is removed and meanings?


‘‘Peace Corps’’ is added in its place
Sec. Subpart A—General
wherever it occurs.
312.100 What does this part do? 1006.100 What does this part do?
■ c. ‘‘[Agency head or designee]’’ is
312.105 Does this part apply to me? 1006.105 Does this part apply to me?
312.110 Are any of my federal assistance removed and ‘‘Peace Corps Director or
designee’’ is added in its place wherever 1006.110 What is the purpose of the
awards exempt from this part? nonprocurement debarment and

312.115 Does this part affect the federal it occurs. suspension system?

contracts that I receive? ■ d. ‘‘[Agency head]’’ is removed and 1006.115 How does an exclusion restrict a
‘‘Peace Corps Director’’ is added in its person’s involvement in covered
Subpart B—Requirements for Recipients
Other Than Individuals place wherever it occurs. transactions?
1006.120 May we grant an exception to let
312.200 What must I do to comply with this ■ 6. Section 312.510(c) is further an excluded person participate in a
part? amended by removing ‘‘[CFR citation for
covered transaction?
312.205 What must I include in my drug- the federal agency’s regulations
1006.125 Does an exclusion under the
free workplace statement? implementing Executive Order 12549 nonprocurement system affect a person’s
312.210 To whom must I distribute my and Executive Order 12689]’’ and adding eligibility for Federal procurement
drug-free workplace statement? ‘‘22 CFR Part 310’’ in its place. contracts?
312.215 What must I include in my drug- ■ 7. Section 312.605 is further amended 1006.130 Does exclusion under the Federal
free awareness program? procurement system affect a person’s
by adding a paragraph (c) to read as
312.220 By when must I publish my drug- eligibility to participate in
free workplace statement and establish follows:
nonprocurement transactions?
my drug-free awareness program? § 312.605 Award. 1006.135 May the Inter-American
312.225 What actions must I take Foundation exclude a person who is not
concerning employees who are convicted * * * * * currently participating in a
of drug violations in the workplace? (c) Notwithstanding paragraph (a)(2) nonprocurement transaction?
312.230 How and when must I identify of this section, this paragraph is not 1006.140 How do I know if a person is
workplaces? applicable for the Peace Corps. excluded?

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1006.145 Does this part address persons Subpart D—Responsibilities of Inter- 1006.645 Do other Federal agencies know if
who are disqualified, as well as those American Foundation Officials Regarding the Inter-American Foundation agrees to
who are excluded from nonprocurement Transactions a voluntary exclusion?
transactions? 1006.400 May I enter into a transaction Subpart G—Suspension
Subpart B—Covered Transactions with an excluded or disqualified person?
1006.405 May I enter into a covered 1006.700 When may the suspending official
1006.200 What is a covered transaction? issue a suspension?
transaction with a participant if a
1006.205 Why is it important to know if a 1006.705 What does the suspending official
principal of the transaction is excluded?
particular transaction is a covered consider in issuing a suspension?
1006.410 May I approve a participant’s use
transaction? 1006.710 When does a suspension take
of the services of an excluded person?
1006.210 Which nonprocurement effect?
transactions are covered transactions? 1006.415 What must I do if a Federal
agency excludes the participant or a 1006.715 What notice does the suspending
1006.215 Which nonprocurement
principal after I enter into a covered official give me if I am suspended?
transactions are not covered
transaction? 1006.720 How may I contest a suspension?
transactions?
1006.220 Are any procurement contracts 1006.420 May I approve a transaction with 1006.725 How much time do I have to
included as covered transactions? an excluded or disqualified person at a contest a suspension?
1006.225 How do I know if a transaction in lower tier? 1006.730 What information must I provide
which I may participate is a covered 1006.425 When do I check to see if a person to the suspending official if I contest a
transaction? is excluded or disqualified? suspension?
1006.430 How do I check to see if a person 1006.735 Under what conditions do I get an
Subpart C—Responsibilities of Participants is excluded or disqualified? additional opportunity to challenge the
Regarding Transactions 1006.435 What must I require of a primary facts on which the suspension is based?
tier participant? 1006.740 Are suspension proceedings
Doing Business With Other Persons
1006.440 What method do I use to formal?
1006.300 What must I do before I enter into communicate those requirements to 1006.745 How is fact-finding conducted?
a covered transaction with another participants? 1006.750 What does the suspending official
person at the next lower tier? 1006.445 What action may I take if a consider in deciding whether to continue
1006.305 May I enter into a covered primary tier participant knowingly does
transaction with an excluded or or terminate my suspension?
business with an excluded or 1006.755 When will I know whether the
disqualified person? disqualified person?
1006.310 What Must I do if a Federal suspension is continued or terminated?
1006.450 What action may I take if a 1006.760 How long may my suspension
agency excludes a person with whom I primary tier participant fails to disclose
am already doing business in a covered last?
the information required under
transaction? § 1006.335? Subpart H—Debarment
1006.315 May I use the services of an 1006.455 What may I do if a lower tier
excluded person as a principal under a 1006.800 What are the causes for
participant fails to disclose the debarment?
covered transaction? information required under § 1006.355 to
1006.320 I verify that principals of my 1006.805 What notice does the debarring
the next higher tier? official give me if I am proposed for
covered transactions are eligible to
participate? Subpart E—Excluded Parties List System debarment?
1006.325 What happens if I do business 1006.810 When does a debarment take
1006.500 What is the purpose of the
with an excluded person in a covered effect?
Excluded Parties List System (EPLS)?
transaction? 1006.815 How may I contest a proposed
1006.505 Who uses the EPLS?
1006.330 What requirements must I pass debarment?
1006.510 Who maintains the EPLS?
down to persons at lower tiers with 1006.820 How much time do I have to
1006.515 What specific information is in
whom I intend to do business? contest a proposed debarment?
the EPLS?
1006.520 Who places the information into 1006.825 What information must I provide
Disclosing Information—Primary Tier
the EPLS? to the debarring official if I contest a
Participants
1006.525 Whom do I ask if I have questions proposed debarment?
1006.335 What information must I provide 1006.830 Under what conditions do I get an
before a covered transaction with the about a person in the EPLS?
1006.530 Where can I find the EPLS? additional opportunity to challenge the
Inter-American Foundation? fact on which the proposed debarment is
1006.340 If I disclose unfavorable Subpart F—General Principles Relating to based?
information required under § 1006.335, Suspension and Debarment Actions 1006.835 Are debarment proceedings
will I be prevented from participating in formal?
the transaction? 1006.600 How do suspension and
debarment actions start? 1006.840 How is fact-finding conducted?
1006.345 What happens if I fail to disclose 1006.845 What does the debarring official
the information required under 1006.605 How does suspension differ from
debarment? consider in deciding whether to debar
§ 1006.335?
1006.610 What procedures does the Inter- me?
1006.350 What must I do if I learn of the
American Foundation use in suspension 1006.850 What is the standard of proof in
information required under § 1006.335
and debarment actions? a debarment action?
after entering into a covered transaction
with the Inter-American Foundation? 1006.615 How does the Inter-American 1006.855 Who has the burden of proof in a
Foundation notify a person of a debarment action?
Disclosing Information—Lower Tier suspension and debarment action? 1006.860 What factors may influence the
Participants 1006.620 Do Federal agencies coordinate debarring official’s decision?
1006.355 What information must I provide suspension and debarment actions? 1006.865 How long may my debarment
to a higher tier participant before 1006.625 What is the scope of a suspension last?
entering into a covered transaction with or debarment action? 1006.870 When do I know if the debarring
that participant? 1006.630 May the Inter-American official debars me?
1006.360 What happens if I fail to disclose Foundation impute the conduct of one 1006.875 May I ask the debarring official to
the information required under person to another? reconsider a decision to debar me?
§ 1006.355? 1006.635 May the Inter-American 1006.880 What factors may influence the
1006.365 What must I do if I learn of Foundation settle a debarment or debarring official during
information required under § 1006.355 suspension action? reconsideration?
after entering into a covered transaction 1006.640 May a settlement include a 1006.885 May the debarring official extend
with a higher tier participant? voluntary exclusion? a debarment?

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66590 Federal Register / Vol. 68, No. 228 / Wednesday, November 26, 2003 / Rule and Regulations

Subpart I—Definitions PART 1008—GOVERNMENTWIDE ■ 5. Part 1008 is further amended as set


1006.900 Adequate evidence.
REQUIREMENTS FOR DRUG-FREE forth below.
1006.905 Affiliate.
WORKPLACE (FINANCIAL ■ a. ‘‘[Agency noun]’’ is removed and
1006.910 Agency.
ASSISTANCE) ‘‘Inter-American Foundation’’ is added
1006.915 Agent or representative.
in its place wherever it occurs.
1006.920 Civil judgment.
Subpart A—Purpose and Coverage
■ b. ‘‘[Agency adjective]’’ is removed and
1006.925 Conviction.
Sec.
‘‘Inter-American Foundation’’ is added
1006.930 Debarment.
1008.100 What does this part do?

in its place wherever it occurs.


1006.935 Debarring official.
1008.105 Does this part apply to me?

1008.110 Are any of my Federal assistance


■ c. ‘‘[Agency head or designee]’’ is
1006.940 Disqualified.
removed and ‘‘Inter-American
awards exempt from this part?
1006.945 Excluded or exclusion.
Foundation President or designee’’ is
1008.115 Does this part affect the Federal
1006.950 Excluded Parties List System.
contracts that I receive? added in its place wherever it occurs.
1006.955 Indictment.

Subpart B—Requirements for Recipients ■ d. ‘‘[Agency head]’’ is removed and


1006.960 Ineligible or ineligibility.

1006.965 Legal proceedings.


Other Than Individuals ‘‘Inter-American Foundation’’ is added
1006.970 Nonprocurement transaction.
1008.200 What must I do to comply with
in its place wherever it occurs.
1006.975 Notice.
this part? ■ 6. Section 1008.510(c) is further
1006.980 Participant.
1008.205 What must I include in my drug- amended by removing ‘‘[CFR citation for
1006.985 Person.
free workplace statement? the Federal Agency’s regulations
1006.990 Preponderance of the evidence.
1008.210 To whom must I distribute my implementing Executive Order 12549
1006.995 Principal.
drug-free workplace statement? and Executive Order 12689]’’ and adding
1008.215 What must I include in my drug-
1006.1000 Respondent.
‘‘22 CFR Part 1006’’ in its place.
free awareness program?
1006.1005 State.
■ 7. Section 1008.605 is further amended
1008.220 By when must I publish my drug-
1006.1010 Suspending official.
free workplace statement and establish by adding a paragraph (c) to read as
1006.1015 Suspension.
my drug-free awareness program? follows:
1006.1020 Voluntary exclusion or
1008.225 What actions must I take
voluntarily excluded concerning employees who are convicted § 1008.605 Award.
of drug violations in the workplace? * * * * *
Subpart J—[Reserved]
1008.230 How and when must I identify
(c) Notwithstanding paragraph (a)(2)
Appendix to Part 1006—Covered workplaces?
of this section, this paragraph is not
Transactions Subpart C—Requirements for Recipients applicable for the Inter-American
Who Are Individuals Foundation.
Authority: Sec. 2455, Pub. L. 103–355, 108
Stat. 3327 (31 U.S.C. 6101 note); E.O. 12549, 1008.300 What must I do to comply with lllllllllllllllllll
3 CFR, 1986 Comp., p. 189; E.O. 12689, 3 this part if I am an individual recipient?
1008.301 [Reserved] AFRICAN DEVELOPMENT
CFR, 1989 Comp., p. 235.
Subpart D—Responsibilities of Inter- FOUNDATION
■ 2. Part 1006 is further amended as set American Foundation Awarding Officials 22 CFR Parts 1508 and 1509
forth below. 1008.400 What are my responsibilities as an
RIN 3005–ZA01
■ a. ‘‘[Agency noun]’’ is removed and Inter-American Foundation awarding
official? FOR FURTHER INFORMATION CONTACT:
‘‘Inter-American Foundation’’ is added
in its place wherever it occurs. Subpart E—Violations of This Part and Doris Martin at 202–673–3916 (phone)
Consequences or domartin@adf.gov.
■ b. ‘‘[Agency adjective]’’ is removed and
‘‘Inter-American Foundation’’ is added 1008.500 How are violations of this part List of Subjects
determined for recipients other than
in its place wherever it occurs. individuals? 22 CFR Part 1508
■ c. ‘‘[Agency head or designee]’’ is 1008.505 How are violations of this part
determined for recipients who are
Administrative practice and
removed and ‘‘Inter-American
individuals? procedure, Debarment and suspension,
Foundation Debarring Official’’ is added Government contracts, Grant programs,
1008.510 What actions will the Federal
in its place wherever it occurs. Loan programs, Reporting and
Government take against a recipient
■ 3. Section 1006.440 is added to read as determined to have violated this part? recordkeeping requirements.
follows: 1008.515 Are there any exceptions to those
actions? 22 CFR Part 1509
§ 1006.440 What method do I use to Subpart F—Definitions Administrative practice and
communicate those requirements to procedure, Drug abuse, Grant programs,
participants? 1008.605 Award.

1008.610 Controlled substance.


Reporting and recordkeeping
To communicate the requirements to 1008.615 Conviction.
requirements.
participants, you must include a term or 1008.620 Cooperative agreement.
Dated: June 30, 2003.
condition in the transaction requiring 1008.625 Criminal drug statute.
Doris Martin,
1008.630 Debarment.

the participant’s compliance with 1008.635 Drug-free workplace.


General Counsel.
Subpart C of this part and requiring 1008.640 Employee.
■ For the reasons stated in the common
them to include a similar term or 1008.645 Federal agency or agency.
preamble, the African Development
condition in lower tier covered 1008.650 Grant.
Foundation amends 22 CFR chapter XV,
transactions. 1008.655 Individual.

1008.660 Recipient.

as follows:
■ 4. Part 1008 is added to read as set forth 1008.665 State.

■ 1. Part 1508 is revised to read as set


in instruction 2 at the end of the common 1008.670 Suspension.
forth in instruction 1 at the end of the
preamble. Authority: 41 U.S.C. 701 et seq. common preamble.

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PART 1508—GOVERNMENTWIDE 1508.325 What happens if I do business Subpart E—Excluded Parties List System
DEBARMENT AND SUSPENSION with an excluded person in a covered 1508.500 What is the purpose of the
transaction? Excluded Parties List System (EPLS)?
(NONPROCUREMENT) 1508.330 What requirements must I pass 1508.505 Who uses the EPLS?
Sec. down to persons at lower tiers with 1508.510 Who maintains the EPLS?
1508.25 How is this part organized? whom I intend to do business? 1508.515 What specific information is in
1508.50 How is this part written? Disclosing Information—Primary Tier the EPLS?
1508.75 Do terms in this part have special Participants 1508.520 Who places the information into
meanings? the EPLS?
1508.335 What information must I provide
1508.525 Whom do I ask if I have questions
Subpart A—General before entering into a covered
about a person in the EPLS?
1508.100 What does this part do? transaction with the African
1508.530 Where can I find the EPLS?
1508.105 Does this part apply to me? Development Foundation?
1508.110 What is the purpose of the 1508.340 If I disclose unfavorable Subpart F—General Principles Relating to
nonprocurement debarment and information required under § 1508.335, Suspension and Debarment Actions
suspension system? will I be prevented from participating in 1508.600 How do suspension and
1508.115 How does an exclusion restrict a the transaction? debarment actions start?
person’s involvement in covered 1508.345 What happens if I fail to disclose 1508.605 How does suspension differ from
transactions? the information required under debarment?
1508.120 May we grant an exception to let § 1508.335? 1508.610 What procedures does the African
an excluded person participate in a 1508.350 What must I do if I learn of the Development Foundation use in
covered transaction? information required under § 1508.335 suspension and debarment actions?
1508.125 Does an exclusion under the after entering into a covered transaction 1508.615 How does the African
nonprocurement system affect a person’s with the African Development Development Foundation notify a person
eligibility for Federal procurement Foundation? of a suspension and debarment action?
contracts? Disclosing Information—Lower Tier 1508.620 Do Federal agencies coordinate
1508.130 Does exclusion under the Federal Participants suspension and debarment actions?
procurement system affect a person’s 1508.625 What is the scope of a suspension
1508.355 What information must I provide
eligibility to participate in or debarment action?
to a higher tier participant before
nonprocurement transactions? 1508.630 May the African Development
entering into a covered transaction with
1508.135 May the African Development Foundation impute the conduct of one
that participant?
Foundation exclude a person who is not person to another?
1508.360 What happens if I fail to disclose
currently participating in a 1508.635 May the African Development
the information required under
nonprocurement transaction? Foundation settle a debarment or
§ 1508.355?
1508.140 How do I know if a person is suspension action?
1508.365 What must I do if I learn of
excluded? 1508.640 May a settlement include a
information required under § 1508.355
1508.145 Does this part address persons voluntary exclusion?
after entering into a covered transaction
who are disqualified, as well as those 1508.645 Do other Federal agencies know if
with a higher tier participant?
who are excluded from nonprocurement the African Development Foundation
transactions? Subpart D—Responsibilities of ADF agrees to a voluntary exclusion?
Officials Regarding Transactions
Subpart B—Covered Transactions Subpart G—Suspension
1508.400 May I enter into a transaction
1508.200 What is a covered transaction? 1508.700 When may the suspending official
with an excluded or disqualified person?
1508.205 Why is it important to know if a issue a suspension?
1508.405 May I enter into a covered
particular transaction is a covered 1508.705 What does the suspending official
transaction with a participant if a
transaction? consider in issuing a suspension?
principal of the transaction is excluded?
1508.210 Which nonprocurement 1508.710 When does a suspension take
1508.410 May I approve a participant’s use
transactions are covered transactions? effect?
of the services of an excluded person?
1508.215 Which nonprocurement 1508.715 What notice does the suspending
1508.415 What must I do if a Federal
transactions are not covered official give me if I am suspended?
agency excludes the participant or a
transactions? 1508.720 How may I contest a suspension?
principal after I enter into a covered
1508.220 Are any procurement contracts 1508.725 How much time do I have to
transaction?
included as covered transactions? contest a suspension?
1508.420 May I approve a transaction with
1508.225 How do I know if a transaction in 1508.730 What information must I provide
an excluded or disqualified person at a
which I may participate is a covered to the suspending official if I contest a
lower tier?
transaction? suspension?
1508.425 When do I check to see if a person
Subpart C—Responsibilities of Participants is excluded or disqualified? 1508.735 Under what conditions do I get an
Regarding Transactions 1508.430 How do I check to see if a person additional opportunity to challenge the
is excluded or disqualified? facts on which the suspension is based?
Doing Business With Other Persons 1508.435 What must I require of a primary 1508.740 Are suspension proceedings
1508.300 What must I do before I enter into tier participant? formal?
a covered transaction with another 1508.440 What method do I use to 1508.745 How is fact-finding conducted?
person at the next lower tier? communicate those requirements to 1508.750 What does the suspending official
1508.305 May I enter into a covered participants? consider in deciding whether to continue
transaction with an excluded or 1508.445 What action may I take if a or terminate my suspension?
disqualified person? primary tier participant knowingly does 1508.755 When will I know whether the
1508.310 What must I do if a Federal business with an excluded or suspension is continued or terminated?
agency excludes a person with whom I disqualified person? 1508.760 How long may my suspension
am already doing business in a covered 1508.450 What action may I take if a last?
transaction? primary tier participant fails to disclose
1508.315 May I use the services of an the information required under Subpart H—Debarment
excluded person as a principal under a § 1508.335? 1508.800 What are the causes for
covered transaction? 1508.455 What may I do if a lower tier debarment?
1508.320 Must I verify that principals of my participant fails to disclose the 1508.805 What notice does the debarring
covered transactions are eligible to information required under § 1508.355 to official give me if I am proposed for
participate? the next higher tier? debarment?

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66592 Federal Register / Vol. 68, No. 228 / Wednesday, November 26, 2003 / Rule and Regulations

1508.810 When does a debarment take ■ a. ‘‘[Agency noun]’’ is removed and Subpart E—Violations of This Part and
effect? ‘‘African Development Foundation’’ is Consequences
1508.815 How may I contest a proposed added in its place wherever it occurs. 1509.500 How are violations of this part
debarment? determined for recipients other than
1508.820 How much time do I have to ■ b. ‘‘[Agency adjective]’’ is removed and
individuals?
contest a proposed debarment? ‘‘ADF’’ is added in its place wherever it 1509.505 How are violations of this part
1508.825 What information must I provide occurs. determined for recipients who are
to the debarring official if I contest a ■ c. ‘‘[Agency head or designee]’’ is individuals?
proposed debarment? 1509.510 What actions will the Federal
removed and ‘‘ADF President’’ is added
1508.830 Under what conditions do I get an Government take against a recipient
additional opportunity to challenge the in its place wherever it occurs.
determined to have violated this part?
facts on which the proposed debarment ■ 3. Section 1508.440 is added to read as 1509.515 Are there any exceptions to those
is based? follows: actions?
1508.835 Are debarment proceedings
formal? § 1508.440 What method do I use to Subpart F—Definitions
1508.840 How is fact-finding conducted? communicate those requirements to 1509.605 Award.

1508.845 What does the debarring official participants? 1509.610 Controlled substance.

consider in deciding whether to debar 1509.615 Conviction.

me? To communicate the requirements to 1509.620 Cooperative agreement.

1508.850 What is the standard of proof in participants, you must include a term or 1509.625 Criminal drug statute.

a debarment action? condition in the transaction requiring 1509.630 Debarment.

1508.855 Who has the burden of proof in a the participant’s compliance with 1509.635 Drug-free workplace.

debarment action? subpart C of this part, and requiring 1509.640 Employee.

1508.860 What factors may influence the them to include a similar term or 1509.645 Federal agency or agency.

debarring official’s decision? 1509.650 Grant.

condition in lower tier covered


1508.865 How long may my debarment 1509.655 Individual.

transactions. 1509.660 Recipient.

last?
1508.870 When do I know if the debarring ■ 4. Part 1509 is added to read as set forth 1509.665 State.

official debars me? in instruction 2 at the end of the common 1509.670 Suspension.

1508.875 May I ask the debarring official to preamble. Authority: 41 U.S.C. 701 et seq.
reconsider a decision to debar me?
1508.880 What factors may influence the PART 1509—GOVERNMENTWIDE ■ 5. Part 1509 is further amended as set
debarring official during forth below.
REQUIREMENTS FOR DRUG-FREE
reconsideration? ■ a. ‘‘[Agency noun]’’ is removed and
1508.885 May the debarring official extend WORKPLACE (FINANCIAL
ASSISTANCE) ‘‘African Development Foundation’’ is
a debarment? added in its place wherever it occurs.
Subpart I—Definitions Subpart A—Purpose and Coverage ■ b. ‘‘[Agency adjective]’’ is removed and

1508.900 Adequate evidence.


Sec.
‘‘ADF’’ is added in its place wherever it
1508.905 Affiliate.
1509.100 What does this part do?
occurs.
1508.910 Agency.
1509.105 Does this part apply to me?
■ c. ‘‘[Agency head or designee]’’ is
1508.915 Agent or representative.
1509.110 Are any of my Federal assistance
removed and ‘‘ADF President’’ is added
1508.920 Civil judgment.
awards exempt from this part? in its place wherever it occurs.
1508.925 Conviction.
1509.115 Does this part affect the Federal ■ d. ‘‘[Agency head]’’ is removed and
1508.930 Debarment.
contracts that I receive? ‘‘ADF President’’ is added in its place
1508.935 Debarring official.
wherever it occurs.
1508.940 Disqualified.
Subpart B—Requirements for Recipients
Other Than Individuals ■ 6. Section 1509.310(c) is further
1508.945 Excluded or exclusion.
amended by removing ‘‘[CFR citation for
1508.950 Excluded Parties List System.
1509.200 What must I do to comply with
the Federal Agency’s regulations
1508.955 Indictment.
this part?
1508.960 Ineligible or ineligibility.
1509.205 What must I include in my drug-
implementing Executive Order 12549
1508.965 Legal proceedings.
free workplace statement? and Executive Order 12689]’’ and adding
1508.970 Nonprocurement transaction.
1509.210 To whom must I distribute my ‘‘22 CFR Part 1508’’ in its place.
1508.975 Notice.
drug-free workplace statement? ■ 7. Section 1509.605 is further amended
1508.980 Participant.
1509.215 What must I include in my drug- by adding a paragraph (c) to read as
1508.985 Person.
free awareness program? follows:
1508.990 Preponderance of the evidence.
1509.220 By when must I publish my drug-
1508.995 Principal.
free workplace statement and establish § 1509.605 Award.
1508.1000 Respondent.
my drug-free awareness program? * * * * *
1508.1005 State.
1509.225 What actions must I take (c) Notwithstanding paragraph (a)(2)
1508.1010 Suspending official.
concerning employees who are convicted of this section, this paragraph is not
1508.1015 Suspension.
of drug violations in the workplace?
1508.1020 Voluntary exclusion or

applicable for ADF.


1509.230 How and when must I identify
voluntarily excluded. workplaces? lllllllllllllllllll
Subpart J—[Reserved] Subpart C—Requirements for Recipients DEPARTMENT OF HOUSING AND
Appendix to Part 1508—Covered Who Are Individuals URBAN DEVELOPMENT
Transactions 1509.300 What must I do to comply with 24 CFR Parts 21 and 24
this part if I am an individual recipient?
Authority: Sec. 2455, Pub.L. 103–355, 108 1509.301 [Reserved] [Docket No. FR–4692–F–01]
Stat. 3327; E.O. 12549, 3CFR, 1986 Comp.,
p.89; E.O. 12689, 3CFR, 1989 Comp., p. 235. Subpart D—Responsibilities of ADF RIN 2501–AC81
Awarding Officials FOR FURTHER INFORMATION CONTACT:
■ 2. Part 1508 is further amended as set 1509.400 What are my responsibilities as an Dane Narode, Assistant General
forth below: ADF awarding official? Counsel, Office of Program

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Enforcement, Administrative suspensions. The proposed rule advised The Department, based upon another
Proceedings Division, Department of that HUD would retain its definitions of internal comment, has made a minor
Housing and Urban Development, 1250 ‘‘Hearing Officer’’ at § 24.947 and modification to its procedures for when
Maryland Avenue, Suite 200, ‘‘Ultimate Beneficiary’’ at § 24.1017 as a suspension or proposed debarment
Washington, DC 20024–0500; telephone found in the current common rule. The has been issued subsequent to the
(202) 708–2350 (this is not a toll-free proposed rule made clear in § 24.750 issuance of a limited denial of
number); e-mail: and § 24.845 that all fact-finding participation. Under this modification,
Dane_M._Narode@hud.gov. Hearing-or referrals for HUD suspensions and the hearing officer’s jurisdiction over a
speech-impaired individuals may access debarments will be made to hearing limited denial of participation will not
the voice telephone number listed above officers. be immediately divested upon
by calling the toll-free Federal Subpart J of part 24, which addressed consolidation of the matter with a
Information Relay Service during limited denial of participation, was suspension or a proposed debarment.
working hours at 1–800–877–8339. revised stylistically so that the rule Upon consolidation, the suspending or
conforms to the question and answer debarring official must determine
SUPPLEMENTARY INFORMATION:
format of the common rule. HUD also whether material facts are in dispute
The January 23, 2002, Common Rule removed the term ‘‘contractor’’ from within 90 days of consolidation unless
§ 24.1105 because the common rule good cause exists to extend this time. In
On January 23, 2002 (67 FR 3266), a
deleted the definition of the term. The the event material facts are in dispute,
governmentwide common rule was revised definition of ‘‘participant’’ in the matters will be referred to the
published that proposed substantive the proposed rule covered individuals original hearing officer for fact-finding.
changes and amendments to the previously defined as ‘‘contractors’’ in The Department does not regard this as
governmentwide nonprocurement the current rule. Section 24.1145, which a material modification.
common rule for debarment and addresses imputing the conduct of one Comment: The commenter requested
suspension and the governmentwide person to another in a limited denial of that the Department clarify the extent to
rule implementing the Drug-Free participation, was revised to be which the drug-free workplace
Workplace Act of 1988. The publication consistent with the provisions of requirements apply to the residences of
is available at http:// § 24.630. telecommuters and other remote
www.access.gpo.gov/su_docs. Finally, HUD’s rule proposed to enact workers.
HUD’s July 22, 2002, Proposed Rule the requirements for maintaining a drug- HUD Response: The Department
free workplace as a new part 21, believes this issue was adequately
HUD published a proposed rule on codifying HUD’s drug-free workplace addressed in the final governmentwide
July 22, 2002 (67 FR 48006), to adopt requirements. rule of May 25, 1990 (55 FR 21681), in
the changes and amendments made in The public comment period on the response to comments regarding
the common rule. Additionally, HUD proposed rule closed on September 20, regulations promulgated pursuant to the
proposed to adopt specific requirements 2002. One commenter submitted Drug-Free Workplace Act of 1988. (See
that, along with the provisions in the comments on the proposed rule. especially, 55 FR 21683.)
common rule, would best serve HUD’s Comment: The commenter also asked
programs. HUD’s proposed rule added a This Final Rule
whether the proposed rule intended that
paragraph regarding employment This final rule follows publication of collective bargaining agreements be
contracts to the definition of ‘‘covered the July 22, 2002, proposed rule and included in the term ‘‘employment
transaction’’ found at § 24.200. HUD’s takes into consideration the one public contracts.’’ The commenter wrote that
addition made clear that each payment comment received. The public the rule should clarify that the term
under an employment contract comment, along with the Department’s ‘‘employment contracts’’ does not
constitutes a new ‘‘covered transaction.’’ responses to the comment, is treated include a collective bargaining
HUD also enhanced the exclusion below. However, the Department was agreement between an employer and its
review that takes place in § 24.300. not persuaded to change the rule. employees’ unions. According to the
Under HUD’s rule, a participant must Accordingly, this final rule adopts the commenter, the exclusion of collective
ensure it is not entering into a covered July 22, 2002, proposed rule without bargaining agreements as employment
transaction with an excluded or change except for the minor contracts is important because, if a
disqualified person. In reviewing for an modifications identified below principal of a union were excluded, the
exclusion, however, HUD’s rule, at necessary to keep the Department’s rule state would not be permitted to
§ 24.300(d), exempts participants from consistent with the common rule and ‘‘contracts’’ with that union. The
checking on the exemption status of existing practice. commenter further wrote that if
their principals while making salary In response to an internal comment, ‘‘employment contracts’’ mean a
payments pursuant to an employment the Department has replaced the consulting contract, it is a redundancy
contract. Additionally, § 24.440 formulation used to refer to the ‘‘Agency because consultant contracts are already
proposed to use terms or conditions to head or designee’’ wherever used in the covered in § 24.200.
the award transaction as a means to common rule. The proposed rule HUD Response: The Department’s
enforce exclusions under HUD originally referred to the ‘‘HUD proposal does not enlarge the scope of
transactions rather than the use of Debarring Official or designee.’’ That employment contracts (i.e., those that
written certifications. formulation has been replaced with the are covered transactions, e.g., a Housing
HUD proposed rule provided ‘‘Secretary or designee’’ in the final rule. Authority’s employment of a Public
examples for the debarment and This text change does not modify the Housing Executive Director using funds
suspension common rule definition of meaning of the proposed rule as all provided pursuant to a Consolidated
‘‘principal’’ found at § 24.995. The debarring authority within the Agency Annual Contributions Contract) to
expansion contains minor modifications stems from the Secretary’s delegable include a collective bargaining
consistent with HUD’s present practice authority. Similarly, the textual agreement. The proposal merely
regarding the definition of ‘‘principal’’ modification is consistent with current reinforces the concept that each
for the purpose of debarments and practice in the Department. payment made under an employment

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66594 Federal Register / Vol. 68, No. 228 / Wednesday, November 26, 2003 / Rule and Regulations

contract that is a covered transaction provisions found in § 24.1145 of the Subpart D—Responsibilities of HUD
will constitute an independent covered proposed rule. The minor modifications Awarding Officials
transaction. to § 24.1145 were made to ensure 21.400 What are my responsibilities as a
Comment: The commenter argued that consistency with the common rule. HUD awarding official?
if each salary payment is made a Likewise, the Department has adopted Subpart E—Violations of This Part and
covered transaction, employers would EPLS when referring to the list of Consequences
be prohibited from making future salary excluded parties. 21.500 How are violations of this part
payments to employees who happened determined for recipients other than
to have been excluded since the last List of Subjects
individuals?
salary payment. In the commenter’s 24 CFR Part 21 21.505 How are violations of this part
view, because an employee’s salary is determined for recipients who are
paid after the work is performed, the Administrative practice and individuals?
rule would prohibit paying the procedure, Grant programs, Drug-free 21.510 What actions will the federal
employee for work he/she has already workplace, Reporting and recordkeeping government take against a recipient
performed, notwithstanding that the requirements. determined to have violated this part?
exclusion may be unrelated to the 21.515 Are there any exceptions to those
employee’s present activity. 24 CFR Part 24 actions?
HUD Response: The Department has Administrative practice and Subpart F—Definitions
elected to retain the provision as procedure, Government contracts, Grant 21.605 Award.
written. Payment for work completed programs, Loan programs, Technical 21.610 Controlled substance.
prior to the current activity of the assistance, Reporting and recordkeeping 21.615 Conviction.
employee does not raise a compliance requirements. 21.620 Cooperative agreement.
concern. The provision, as written, 21.625 Criminal drug statute.
allows payment for the work previously Dated: September 3, 2003. 21.630 Debarment.
performed (work completed before the Mel Martinez, 21.635 Drug-free workplace.
debarment), but would not allow a 21.640 Employee.
Secretary.
continuation of payments subsequent to 21.645 Federal agency or agency.
■ For the reasons stated in the common 21.650 Grant.
the imposition of a debarment or 21.655 Individual.
suspension absent an exception preamble, the Department of Housing
21.660 Recipient.
specified in the Suspension and and Urban Development amends 24 CFR 21.665 State.
Debarment regulations. Treating each Subtitle A, as follows: 21.670 Suspension.
compensation payment as a separate ■ 1. A new part 21 is added to read as Authority: 41 U.S.C. 701; 42 U.S.C.
covered transaction ensures that public follows: 3535(d).
funds are adequately protected (which
is one of the objectives of the PART 21—GOVERNMENTWIDE
■ 2. Part 21 is further amended as
Suspension and Debarment regulations), REQUIREMENTS FOR DRUG-FREE
while not appreciably increasing the follows:
WORKPLACE (GRANTS)
administrative burden on the regulated ■ a. ‘‘[Agency noun]’’ is removed and
entity. (See, for example, HUD’s Subpart A—Purpose and Coverage ‘‘Department of Housing and Urban
proposed language at 24 CFR 300(d), Sec. Development’’ is added in its place
exempting salary payments from a 21.100 What does this part do? wherever it occurs.
requirement to check the Excluded 21.105 Does this part apply to me? ■ b. ‘‘[Agency adjective]’’ is removed and
Parties List System (EPLS).) 21.110 Are any of my federal assistance ‘‘HUD’’ is added in its place wherever it
Comment: The commenter suggested awards exempt from this part? occurs.
that the Department strike its detailed 21.115 Does this part affect the federal ■ c. ‘‘[Agency head or designee]’’ is
list of principals in § 24.995(c) contracts that I receive?
removed and ‘‘Secretary or designee’’ is
accompanying the definition of Subpart B—Requirements for Recipients added in its place wherever it occurs.
‘‘Principal.’’ The commenter wrote that Other Than Individuals ■ d. ‘‘[Agency head]’’ is removed and
the list provided invites readers to make 21.200 What must I do to comply with this ‘‘Secretary’’ is added in its place
a mechanical comparison of individuals part? wherever it occurs.
they (i.e., the readers) may be involved 21.205 What must I include in my drug-free
with to the principals on the list, as ■ 3. Part 24 is revised to read as set forth
workplace statement?
opposed to an evaluation of whether the 21.210 To whom must I distribute my drug-
in instruction 1 at the end of the common
principals have influence or critical free workplace statement? preamble.
control over the covered transaction. 21.215 What must I include in my drug-free
PART 24—GOVERNMENTWIDE
HUD Response: The Department has awareness program?
21.220 By when must I publish my drug- DEBARMENT AND SUSPENSION
elected to retain the detailed list of
free workplace statement and establish (NONPROCUREMENT)
principals. In the Department’s view,
the addition of paragraph (c) to the my drug-free awareness program? Sec.
definition of the term ‘‘principal’’ in 21.225 What actions must I take concerning 24.25 How is this part organized?
§ 24.995 does not, in any way, expand employees who are convicted of drug 24.50 How is this part written?
violations in the workplace? 24.75 Do terms in this part have special
or detract from the definition stated in
21.230 How and when must I identify meanings?
the common rule on Suspensions and
workplaces?
Debarments. Rather, the section is Subpart A—General
intended as a convenience to HUD Subpart C—Requirements for Recipients
24.100 What does this part do?
program users to facilitate their Who Are Individuals
24.105 Does this part apply to me?
understanding of the rule. 21.300 What must I do to comply with this 24.110 What is the purpose of the
The Department has tracked changes part if I am an individual recipient? nonprocurement debarment and
to § 24.630 for the imputation 21.301 [Reserved] suspension system?

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24.115 How does an exclusion restrict a 24.345 What happens if I fail to disclose the Development use in suspension and
person’s involvement in covered information required under § 24.335? debarment actions?
transactions? 24.350 What must I do if I learn of the 24.615 How does the Department of
24.120 May we grant an exception to let an information required under § 24.335 after Housing and Urban Development notify
excluded person participate in a covered entering into a covered transaction with a person of a suspension or debarment
transaction? the Department of Housing and Urban action?
24.125 Does an exclusion under the Development? 24.620 Do federal agencies coordinate
nonprocurement system affect a person’s suspension and debarment actions?
Disclosing Information—Lower Tier 24.625 What is the scope of a suspension or
eligibility for federal procurement
Participants debarment action?
contracts?
24.130 Does exclusion under the federal 24.355 What information must I provide to 24.630 May the Department of Housing and
procurement system affect a person’s a higher tier participant before entering Urban Development impute the conduct
eligibility to participate in into a covered transaction with that of one person to another?
nonprocurement transactions? participant? 24.635 May the Department of Housing and
24.135 May the Department of Housing and 24.360 What happens if I fail to disclose the Urban Development settle a debarment
Urban Development exclude a person information required under § 24.355? or suspension action?
who is not currently participating in a 24.365 What must I do if I learn of 24.640 May a settlement include a
nonprocurement transaction? information required under § 24.355 after voluntary exclusion?
24.140 How do I know if a person is entering into a covered transaction with 24.645 Do other federal agencies know if
excluded? a higher tier participant? the Department of Housing and Urban
24.145 Does this part address persons who Development agrees to a voluntary
Subpart D—Responsibilities of HUD exclusion?
are disqualified, as well as those who are
Officials Regarding Transactions
excluded from nonprocurement Subpart G—Suspension
transactions? 24.400 May I enter into a transaction with
an excluded or disqualified person? 24.700 When may the suspending official
Subpart B—Covered Transactions 24.405 May I enter into a covered issue a suspension?
24.200 What is a covered transaction? transaction with a participant if a 24.705 What does the suspending official
24.205 Why is it important to know if a principal of the transaction is excluded? consider in issuing a suspension?
particular transaction is a covered 24.410 May I approve a participant’s use of 24.710 When does a suspension take effect?
transaction? the services of an excluded person? 24.715 What notice does the suspending
24.210 Which nonprocurement transactions 24.415 What must I do if a federal agency official give me if I am suspended?
are covered transactions? excludes the participant or a principal 24.720 How may I contest a suspension?
24.215 Which nonprocurement transactions after I enter into a covered transaction? 24.725 How much time do I have to contest
are not covered transactions? 24.420 May I approve a transaction with an a suspension?
24.220 Are any procurement contracts excluded or disqualified person at a 24.730 What information must I provide to
included as covered transactions? lower tier? the suspending official if I contest a
24.225 How do I know if a transaction in 24.425 When do I check to see if a person suspension?
which I may participate is a covered is excluded or disqualified? 24.735 Under what conditions do I get an
transaction? 24.430 How do I check to see if a person is additional opportunity to challenge the
excluded or disqualified? facts on which the suspension is based?
Subpart C—Responsibilities of Participants 24.435 What must I require of a primary tier 24.740 Are suspension proceedings formal?
Regarding Transactions participant? 24.745 How is fact-finding conducted?
Doing Business With Other Persons 24.440 What method do I use to 24.750 What does the suspending official
communicate those requirements to consider in deciding whether to continue
24.300 What must I do before I enter into participants? or terminate my suspension?
a covered transaction with another 24.445 What action may I take if a primary 24.755 When will I know whether the
person at the next lower tier? tier participant knowingly does business suspension is continued or terminated?
24.305 May I enter into a covered with an excluded or disqualified person? 24.760 How long may my suspension last?
transaction with an excluded or 24.450 What action may I take if a primary
disqualified person? Subpart H—Debarment
tier participant fails to disclose the
24.310 What must I do if a federal agency information required under § 24.335? 24.800 What are the causes for debarment?
excludes a person with whom I am 24.455 What may I do if a lower tier 24.805 What notice does the debarring
already doing business in a covered participant fails to disclose the official give me if I am proposed for
transaction? information required under § 24.355 to debarment?
24.315 May I use the services of an the next higher tier? 24.810 When does a debarment take effect?
excluded person as a principal under a 24.815 How may I contest a proposed
covered transaction? Subpart E—Excluded Parties List System debarment?
24.320 Must I verify that principals of my 24.500 What is the purpose of the Excluded 24.820 How much time do I have to contest
covered transactions are eligible to Parties List System (EPLS)? a proposed debarment?
participate? 24.505 Who uses the EPLS? 24.825 What information must I provide to
24.325 What happens if I do business with 24.510 Who maintains the EPLS? the debarring official if I contest a
an excluded person in a covered 24.515 What specific information is in the proposed debarment?
transaction? EPLS? 24.830 Under what conditions do I get an
24.330 What requirements must I pass 24.520 Who places the information into the additional opportunity to challenge the
down to persons at lower tiers with EPLS? facts on which the proposed debarment
whom I intend to do business? 24.525 Whom do I ask if I have questions is based?
about a person in the EPLS? 24.835 Are debarment proceedings formal?
Disclosing Information—Primary Tier 24.840 How is fact-finding conducted?
24.530 Where can I find the EPLS?
Participants 24.845 What does the debarring official
24.335 What information must I provide Subpart F—General Principles Relating to consider in deciding whether to debar
before entering into a covered Suspension and Debarment Actions me?
transaction with the Department of 24.600 How do suspension and debarment 24.850 What is the standard of proof in a
Housing and Urban Development? actions start? debarment action?
24.340 If I disclose unfavorable information 24.605 How does suspension differ from 24.855 Who has the burden of proof in a
required under § 24.335, will I be debarment? debarment action?
prevented from entering into the 24.610 What procedures does the 24.860 What factors may influence the
transaction? Department of Housing and Urban debarring official’s decision?

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24.865 How long may my debarment last? Appendix to Part 24—Covered Transactions § 24.750 What does the suspending official
24.870 When do I know if the debarring consider in deciding whether to continue or
official debars me? Authority: 41 U.S.C. 701 et seq.; 42 U.S.C. terminate my suspension?
24.875 May I ask the debarring official to 3535(d); Sec. 2455, Pub. L. 103–355, 108 Stat.
3327 (31 U.S.C. 6101 note); E.O. 12549 (3 * * * * *
reconsider a decision to debar me? (c) The official receiving the referral
24.880 What factors may influence the CFR, 1986 Comp., p. 189); E.O. 12689 (3 CFR,
1989 Comp., p. 235). for findings of fact regarding disputed
debarring official during material facts must be a hearing officer
reconsideration?
■ 4. Part 24 is further amended as set in all HUD suspensions.
24.885 May the debarring official extend a
debarment?
forth below. ■ 9. Section 24.845 is further amended
■ a. ‘‘[Agency noun]’’ is removed and by adding a paragraph (d) to read as
Subpart I—Definitions ‘‘the Department of Housing and Urban follows:
24.900 Adequate evidence.
Development’’ is added in its place
24.905 Affiliate.
§ 24.845 What does the debarring official
wherever it occurs. consider in deciding whether to debar me?
24.910 Agency.

■ b. ‘‘[Agency adjective]’’ is removed and


24.915 Agent or representative.
* * * * *
24.920 Civil judgment.
‘‘HUD’’ is added in its place wherever it (d) The official receiving the referral
24.925 Conviction.
occurs. for findings of fact regarding disputed
24.930 Debarment.
■ c. ‘‘[Agency head or designee]’’ is material facts must be a hearing officer
24.935 Debarring official.
removed and ‘‘Secretary or designee’’ is in all HUD debarments.
24.940 Disqualified.
added in its place wherever it occurs. ■ 10. Section 24.947 is added to read as
24.945 Excluded or exclusion.

24.947 Hearing officer.


■ 5. Section 24.200 is further amended follows:
24.950 Excluded Parties List System.
by adding a paragraph (c) to read as § 24.947 Hearing officer.
24.955 Indictment.
follows:
24.960 Ineligible or ineligibility.
Hearing officer means an
24.965 Legal Proceedings.
§ 24.200 What is a covered transaction? Administrative Law Judge or Board of
24.970 Nonprocurement transaction.
* * * * * Contract Appeals Judge authorized by
24.975 Notice.
HUD’s Secretary or by the Secretary’s
24.980 Participant.
(c) In the case of employment designee, to conduct proceedings under
24.985 Person.
contracts that are covered transactions, this part.
24.990 Preponderance of the evidence.
each salary payment under the contract
■ 11. Section 24.995 is further amended
24.995 Principal.
is a separate covered transaction.
by adding a paragraph (c) to read as
24.1000 Respondent.

■ 6. Section 24.300 is further amended follows:


24.1005 State.

24.1010 Suspending official.

by adding paragraphs (d) and (e) to read


as follows: § 24.995 Principal.
24.1015 Suspension.

24.1017 Ultimate beneficiaries.


* * * * *
§ 24.300 What must I do before I enter into (c) A person who has a critical
24.1020 Voluntary exclusion or voluntarily
a covered transaction with another person
excluded. influence on, or substantive control
at the next lower tier?
over, a covered transaction, whether or
Subpart J—Limited Denial of Participation * * * * * not employed by the participant.
24.1100 What is a limited denial of (d) You, as a participant, are Persons who have a critical influence
participation? responsible for determining whether on, or substantive control over, a
24.1105 Who may issue a limited denial of you are entering into a covered covered transaction may include, but
participation?
transaction with an excluded or are not limited to:
24.1110 When may a HUD official issue a
disqualified person. You may decide the (1) Loan officers;
limited denial of participation?
method by which you do so. You may, (2) Staff appraisers and inspectors;
24.1115 When does a limited denial of
participation take effect? but are not required to, check the EPLS. (3) Underwriters;
24.1120 How long may a limited denial of
(4) Bonding companies;
(e) In the case of an employment (5) Borrowers under programs
participation last? contract, HUD does not require
24.1125 How does a limited denial of financed by HUD or with loans
employers to check the EPLS prior to guaranteed, insured, or subsidized
participation start?
making salary payments pursuant to through HUD programs;
24.1130 How may I contest my limited
denial of participation?
that contract. (6) Purchasers of properties with
24.1135 Do federal agencies coordinate ■ 7. Section 24.440 is added to read as HUD-insured or Secretary-held
limited denial of participation actions? follows: mortgages;
24.1140 What is the scope of a limited (7) Recipients under HUD assistance
denial of participation? § 24.440 What method do I use to agreements;
24.1145 May HUD impute the conduct of communicate those requirements to (8) Ultimate beneficiaries of HUD
one person to another in a limited denial participants? programs;
of participation? (9) Fee appraisers and inspectors;
24.1150 What is the effect of a suspension
To communicate the requirements to
participants, you must include a term or (10) Real estate agents and brokers;
or debarment on a limited denial of (11) Management and marketing
participation? condition in the transaction requiring
the participants’ compliance with agents;
24.1155 What is the effect of a limited (12) Accountants, consultants,
denial of participation on a suspension subpart C of this part and requiring
investment bankers, architects,
or a debarment? them to include a similar term or
24.1160 May a limited denial of engineers, and attorneys who are in a
condition in lower tier covered
participation be terminated before the business relationship with participants
transactions.
term of the limited denial of in connection with a covered
participation expires? ■ 8. Section 24.750 is further amended transaction under a HUD program;
24.1165 How is a limited denial of by adding a paragraph (c) to read as (13) Contractors involved in the
participation reported? follows: construction or rehabilitation of

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properties financed by HUD, with HUD (6) Deficiencies in ongoing § 24.1125 How does a limited denial of
insured loans, or acquired properties, construction projects; participation start?
including properties held by HUD as (7) Falsely certifying in connection A limited denial of participation is
mortgagee-in-possession; with any HUD program, whether or not made effective by providing the person,
(14) Closing agents; the certification was made directly to and any specifically named affiliate,
(15) Turnkey developers of projects HUD; with notice:
financed by or with financing insured (a) That the limited denial of
by HUD; (8) Commission of an offense listed in participation is being imposed;
(16) Title companies; § 24.800; (b) Of the cause(s) under § 24.1110 for
(17) Escrow agents; (9) Violation of any law, regulation, or the sanction;
(18) Project owners; procedure relating to the application for (c) Of the potential effect of the
(19) Administrators of hospitals, financial assistance, insurance, or sanction, including the length of the
nursing homes, and projects for the guarantee, or to the performance of sanction and the HUD program(s) and
elderly financed or insured by HUD; obligations incurred pursuant to a grant geographic area affected by the sanction;
and of financial assistance or pursuant to a (d) Of the right to request, in writing,
(20) Developers, sellers or owners of conditional or final commitment to within 30 days of receipt of the notice,
property financed with loans insured insure or guarantee; a conference under § 24.1130; and
under title I or title II of the National (e) Of the right to contest the limited
(10) Making or procuring to be made
Housing Act. denial of participation under § 24.1130.
any false statement for the purpose of
■ 12. Subpart J is added to Part 24 to read influencing in any way an action of the § 24.1130 How may I contest my limited
as follows: Department; denial of participation?
Subpart J—Limited Denial of (11) Imposition of a limited denial of (a) Within 30 days after receiving a
Participation participation by any other HUD office; notice of limited denial of participation,
or you may request a conference with the
§ 24.1100 What is a limited denial of official who issued such notice. The
(12) Debarment or suspension by
participation? conference shall be held within 15 days
another federal agency for any cause
A limited denial of participation substantially the same as provided in after the Department’s receipt of the
excludes a specific person from § 24.800. request for a conference, unless you
participating in a specific program, or waive this time limit. The official or
programs, within a HUD field office’s (b) Filing of a criminal Indictment or
designee who imposed the sanction
geographic jurisdiction, for a specific Information shall constitute adequate
shall preside. At the conference, you
period of time. A limited denial of evidence for the purpose of limited
may appear with a representative and
participation is normally issued by a denial of participation actions. The
may present all relevant information
HUD field office, but may be issued by Indictment or Information need not be
and materials to the official or designee.
a Headquarters office. The decision to based on offenses against HUD.
Within 20 days after the conference, or
impose a limited denial of participation (c) Imposition of a limited denial of within 20 days after any agreed upon
is discretionary and in the best interests participation by any other HUD office extension of time for submission of
of the government. shall constitute adequate evidence for a additional materials, the official or
concurrent limited denial of designee shall, in writing, advise you of
§ 24.1105 Who may issue a limited denial participation. Where such a concurrent
of participation?
the decision to terminate, modify, or
limited denial of participation is affirm the limited denial of
The Secretary designates HUD imposed, participation may be restricted participation. If all or a portion of the
officials who are authorized to impose on the same basis without the need for remaining period of exclusion is
a limited denial of participation, additional conference or further hearing. affirmed, the notice of affirmation shall
affecting any participant and/or their
(d) An affiliate or organizational advise you of the opportunity to contest
affiliates, except FHA-approved
element may be included in a limited the notice and request a hearing before
mortgagees.
denial of participation solely on the a Departmental Hearing Officer. You
§ 24.1110 When may a HUD official issue basis of its affiliation, and regardless of have 30 days after receipt of the notice
a limited denial of participation? its knowledge of or participation in the of affirmation to request this hearing. If
(a) An authorized HUD official may acts providing cause for the sanction. the official or designee does not issue a
issue a limited denial of participation The burden of proving that a particular decision within the 20-day period, you
against a person based upon adequate affiliate or organizational element is may contest the sanction before a
evidence of any of the following causes: currently responsible and not controlled Departmental Hearing Officer. Again,
(1) Approval of an applicant for by the primary sanctioned party (or by you have 30 days from the expiration of
insurance would constitute an an entity that itself is controlled by the the 20-day period to request this
unsatisfactory risk; primary sanctioned party) is on the hearing. If you request a hearing before
(2) Irregularities in a person’s past affiliate or organizational element. the Departmental Hearing Officer, you
performance in a HUD program; must submit your request to the
§ 24.1115 When does a limited denial of Debarment Docket Clerk, Department of
(3) Failure of a person to maintain the
participation take effect?
prerequisites of eligibility to participate Housing and Urban Development, 451
in a HUD program; A limited denial of participation is Seventh Street, SW, B–133 Portals 200,
(4) Failure to honor contractual effective immediately upon issuance of Washington DC 20410–0500.
obligations or to proceed in accordance the notice. (b) You may skip the conference with
with contract specifications or HUD the official and you may request a
§ 24.1120 How long may a limited denial of hearing before a Departmental Hearing
regulations;
participation last?
(5) Failure to satisfy, upon Officer. This must also be done within
completion, the requirements of an A limited denial of participation may 30 days after receiving a notice of
assistance agreement or contract; remain effective up to 12 months. limited denial of participation. If you

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opt to have a hearing before a § 24.1145 May HUD impute the conduct of all proceedings in the limited denial of
Departmental Hearing Officer, you must one person to another in a limited denial of participation, including discovery, are
submit your request to the Debarment participation? automatically stayed.
Docket Clerk, Department of Housing For purposes of determining a limited (b) If you do not contest the proposed
and Urban Development, 451 Seventh denial of participation, HUD may debarment pursuant to § 24.815, or the
Street, SW, B–133 Portals 200, impute conduct as follows: suspension pursuant to § 24.720, the
Washington DC 20410–0500. The (a) Conduct imputed from an final imposition of the debarment or
hearing before the Departmental Hearing individual to an organization. HUD may suspension shall also constitute a final
Officer is more formal than the impute the fraudulent, criminal, or decision with respect to the limited
conference before the sanctioning other improper conduct of any officer, denial of participation to the extent that
official described above. The hearing director, shareholder, partner, the debarment or suspension is based on
before the Departmental Hearing Officer employee, or other individual the same transaction(s) or conduct as
will be conducted in accordance with associated with an organization, to that the limited denial of participation.
24 CFR part 26, subpart A. The organization when the improper (c) If you contest the proposed
Departmental Hearing Officer will issue conduct occurred in connection with debarment pursuant to § 24.815, or the
findings of fact and make a the individual’s performance of duties suspension pursuant to § 24.720, then:
recommended decision. The sanctioning for or on behalf of that organization, or (1) Those parts of the limited denial
official will then make a final decision with the organization’s knowledge, of participation and the debarment or
as promptly as possible after the approval, or acquiescence. The suspension based on the same
Departmental Hearing Officer organization’s acceptance of the benefits transaction(s) or conduct, as determined
recommended decision is issued. The derived from the conduct is evidence of by the debarring or suspending official,
sanctioning official may reject the knowledge, approval, or acquiescence. shall be immediately consolidated
recommended decision or any findings (b) Conduct imputed from an before the debarring or suspending
of fact, only after specifically organization to an individual or official;
determining the decision or any of the between individuals. HUD may impute (2) Proceedings under the
facts to be arbitrary or capricious or the fraudulent, criminal, or other consolidated portions of the limited
clearly erroneous. improper conduct of any organization to denial of participation shall be stayed
an individual, or from one individual to before the hearing officer until the
§ 24.1135 Do federal agencies coordinate another individual, if the individual to
limited denial of participation actions? suspending or debarring official makes
whom the improper conduct is imputed a determination as to whether the
Federal agencies do not coordinate either participated in, had knowledge consolidated matters should be referred
limited denial of participation actions. of, or reason to know of the improper to a hearing officer. Such a
As stated in § 24.1100, a limited denial conduct. determination must be made within 90
of participation is a HUD-specific action (c) Conduct imputed from one days of the date of the issuance of the
and applies only to HUD activities. organization to another organization. suspension or proposed debarment,
HUD may impute the fraudulent, unless the suspending/debarring official
§ 24.1140 What is the scope of a limited
criminal, or other improper conduct of extends the period for good cause.
denial of participation?
one organization to another organization (i) If the suspending or debarring
The scope of a limited denial of when the improper conduct occurred in
participation is as follows: official determines that there is a
connection with a partnership, joint genuine dispute as to material facts
(a) A limited denial of participation venture, joint application, association,
generally extends only to participation regarding the consolidated matter, the
or similar arrangement, or when the entire consolidated matter will be
in the program under which the cause organization to whom the improper
arose. A limited denial of participation referred to the hearing officer hearing
conduct is imputed has the power to the limited denial of participation, for
may, at the discretion of the authorized direct, manage, control, or influence the
official, extend to other programs, additional proceedings pursuant to 24
activities of the organization responsible CFR 24.750 or § 24.845.
initiatives, or functions within the for the improper conduct. Acceptance of
jurisdiction of an Assistant Secretary. (ii) If the suspending or debarring
the benefits derived from the conduct is
The authorized official, however, may official determines that there is no
evidence of knowledge, approval, or
determine that the sanction shall apply dispute as to material facts regarding the
acquiescence.
to all programs throughout HUD where consolidated matter, jurisdiction of the
the sanction is based on an indictment § 24.1150 What is the effect of a hearing officer under 24 CFR part 24,
or conviction. suspension or debarment on a limited subpart J, to hear those parts of the
(b) For purposes of this subpart, denial of participation? limited denial of participation based on
participation includes receipt of any If you have submitted a request for a the same transaction[s] or conduct as
benefit or financial assistance through hearing pursuant to § 24.1130 of this the debarment or suspension, as
grants or contractual arrangements; section, and you also receive, pursuant determined by the debarring or
benefits or assistance in the form of loan to subpart G or H of this part, a notice suspending official, will be transferred
guarantees or insurance; and awards of of proposed debarment or suspension to the debarring or suspending official,
procurement contracts. that is based on the same transaction(s) and the hearing officer responsible for
(c) The sanction may be imposed for or conduct as the limited denial of hearing the limited denial of
a period not to exceed 12 months, and participation, as determined by the participation shall transfer the
shall be effective within the geographic debarring or suspending official, the administrative record to the debarring or
jurisdiction of the office imposing it, following rules shall apply: suspending official.
unless the sanction is imposed by an (a) During the 30-day period after you (3) The suspending or debarring
Assistant Secretary or Deputy Assistant receive a proposed debarment or official shall hear the entire
Secretary in which case the sanction suspension, during which you may elect consolidated case under the procedures
may be imposed on either a nationwide to contest the debarment under § 24.815, governing suspensions and debarments,
or a more restricted basis. or the suspension pursuant to § 24.720, and shall issue a final decision as to

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both the limited denial of participation activities from waste, fraud, abuse and eligibility for Federal procurement
and the suspension or debarment. poor performance, similar to the system contracts?
used for Federal procurement activities 67.130 Does an exclusion under the Federal
§ 24.1155 What is the effect of a limited under Subpart 9.4 of the Federal procurement system affect a person’s
denial of participation on a suspension or eligibility to participate in non-
a debarment?
Acquisition Regulations (FAR). procurement transactions?
Finally, the Department’s proposed 67.135 May the Department of Justice
The imposition of a limited denial of rule on drug-free workplace
participation does not affect the right of exclude a person who is not currently
requirements would be separated from participating in a non-procurement
the Department to suspend or debar any the proposed rule on debarment and transaction?
person under this part. suspension. The drug-free workplace 67.140 How do I know if a person is
§ 24.1160 May a limited denial of requirements are currently located in excluded?
participation be terminated before the term subpart F of the Debarment and 67.145 Does this part address persons who
of the limited denial of participation Suspension Non-procurement Common are disqualified, as well as those who are
expires? Rule. Moving those requirements to a excluded from non-procurement
separate part would allow them to transactions?
If the cause for the limited denial of
participation is resolved before the appear in a more appropriate location Subpart B—Covered Transactions
expiration of the 12-month period, the nearer other requirements used 67.200 What is a covered transaction?
official who imposed the sanction may predominantly by award officials. The 67.205 Why is it important to know if a
terminate it. requirements for maintaining a drug-free particular transaction is a covered
workplace thus would be relocated from transaction?
§ 24.1165 How is a limited denial of 28 CFR part 67 to 28 CFR part 83, and 67.210 Which non-procurement
participation reported? transactions are covered transactions?
are restated in plain language format.
When a limited denial of participation 67.215 Which non-procurement
has been made final, or the period for List of Subjects transactions are not covered
requesting a conference pursuant to transactions?
28 CFR Part 67 67.220 Are any procurement contracts
§ 24.1130 has expired without receipt of
such a request, the official imposing the Administrative practice and included as covered transactions?
procedure, Government contracts, Grant 67.225 How do I know if a transaction in
limited denial of participation shall which I may participate is a covered
notify the Director of the Compliance programs, Loan programs, Reporting
and recordkeeping requirements, transaction?
Division in the Departmental
Enforcement Center of the scope of the Technical assistance, Drug abuse. Subpart C—Responsibilities of Participants
limited denial of participation. Regarding Transactions
28 CFR Part 83
lllllllllllllllllll Administrative practice and Doing Business With Other Persons
procedure, Drug abuse, Grant programs, 67.300 What must I do before I enter into
DEPARTMENT OF JUSTICE a covered transaction with another
Reporting and recordkeeping
28 CFR Parts 67 and 83 requirements. person at the next lower tier?
67.305 May I enter into a covered
[OJP(OJP)–1306] Dated: October 16, 2003. transaction with an excluded or
RIN 1121—AA57 John Ashcroft, disqualified person?
Attorney General. 67.310 What must I do if a Federal agency
ADDRESSES: Please address all excludes a person with whom I am
comments regarding this interim final ■ For the reasons set forth in the already doing business in a covered
rule to Linda Fallowfield, Attorney preamble, 28 CFR chapter I is amended transaction?
Advisor, Office of the General Counsel, as follows: 67.315 May I use the services of an
Office of Justice Programs, Department ■ 1. Part 67 is revised to read as set forth excluded person as a principal under a
of Justice, 810 7th Street NW., in instruction 1 at the end of the common covered transaction?
Washington, DC 20531, (202) 305–2534, preamble. 67.320 Must I verify that principals of my
e-mail:fallowfi@ojp.usdoj.gov. covered transactions are eligible to
PART 67—GOVERNMENT–WIDE participate?
FOR FURTHER INFORMATION CONTACT:
DEBARMENT AND SUSPENSION 67.325 What happens if I do business with
Linda Fallowfield, Attorney Advisor, an excluded person in a covered
(NONPROCUREMENT)
Office of the General Counsel, Office of transaction?
Justice Programs, Department of Justice, Sec. 67.330 What requirements must I pass
810 7th Street NW., Washington, DC 67.25 How is this part organized? down to persons at lower tiers with
20531, (202) 305–2534, e­ 67.50 How is this part written? whom I intend to do business?
mail:fallowfi@ojp.usdoj.gov. 67.75 Do terms in this part have special
Disclosing Information—Primary Tier
meanings?
SUPPLEMENTARY INFORMATION: Participants
The Department of Justice (the Subpart A—General 67.335 What information must I provide
Department) is publishing this interim 67.100 What does this part do? before entering into a covered
final rule in order to join the publication 67.105 Does this part apply to me? transaction with the Department of
of the government-wide common rule 67.110 What is the purpose of the non- Justice?
on debarment and suspension. The procurement debarment and suspension 67.340 If I disclose unfavorable information
Department is adopting this common system? required under § 67.335, will I be
rule in order to promote consistency 67.115 How does an exclusion restrict a prevented from participating in the
person’s involvement in covered transaction?
within the federal government. The
transactions? 67.345 What happens if I fail to disclose the
common rule provides uniform 67.120 May we grant an exception to let an information required under § 67.335?
requirements for debarment and excluded person participate in a covered 67.350 What must I do if I learn of the
suspension by Executive branch transaction? information required under § 67.335 after
agencies to protect assistance, loans, 67.125 Does an exclusion under the non- entering into a covered transaction with
benefits and other non-procurement procurement system affect a person’s the Department of Justice?

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Disclosing Information—Lower Tier 67.630 May the Department of Justice Subpart I—Definitions
Participants impute the conduct of one person to 67.900 Adequate evidence.
67.355 What information must I provide to another? 67.905 Affiliate.
a higher tier participant before entering 67.635 May the Department of Justice settle 67.910 Agency.
into a covered transaction with that a debarment or suspension action? 67.915 Agent or representative.
participant? 67.640 May a settlement include a 67.920 Civil judgment.
67.360 What happens if I fail to disclose the voluntary exclusion? 67.925 Conviction.
information required under § 67.355? 67.645 Do other Federal agencies know if 67.930 Debarment.
67.365 What must I do if I learn of the Department of Justice agrees to a 67.935 Debarring official.
information required under § 67.355 after voluntary exclusion? 67.940 Disqualified.
entering into a covered transaction with 67.945 Excluded or exclusion.
a higher tier participant? Subpart G—Suspension 67.950 Excluded Parties List System
67.700 When may the suspending official 67.955 Indictment.
Subpart D—Responsibilities of Department
issue a suspension? 67.960 Ineligible or ineligibility.
of Justice Officials Regarding Transactions
67.705 What does the suspending official 67.965 Legal proceedings.
67.400 May I enter into a transaction with consider in issuing a suspension? 67.970 Non-procurement transaction.
an excluded or disqualified person? 67.710 When does a suspension take effect? 67.975 Notice.
67.405 May I enter into a covered 67.715 What notice does the suspending 67.980 Participant.
transaction with a participant if a official give me if I am suspended? 67.985 Person.
principal of the transaction is excluded? 67.720 How may I contest a suspension? 67.990 Preponderance of the evidence.
67.410 May I approve a participant’s use of 67.725 How much time do I have to contest 67.995 Principal.

the services of an excluded person? 67.1000 Respondent.

a suspension?
67.415 What must I do if a Federal agency 67.1005 State.

67.730 What information must I provide to


excludes the participant or a principal 67.1010 Suspending official.

after I enter into a covered transaction? the suspending official if I contest a


suspension? 67.1015 Suspension.

67.420 May I approve a transaction with an 67.1020 Voluntary exclusion or voluntarily

excluded or disqualified person at a 67.735 Under what conditions do I get an


additional opportunity to challenge the excluded.
lower tier?
67.425 When do I check to see if a person facts on which the suspension is based? Subpart J—[Reserved]
is excluded or disqualified? 67.740 Are suspension proceedings formal?
67.430 How do I check to see if a person is 67.745 How is fact-finding conducted? Authority: E.O. 12549; Omnibus Crime
excluded or disqualified? 67.750 What does the suspending official Control and Safe Streets Act of 1968, 42
67.435 What must I require of a primary tier consider in deciding whether to continue U.S.C. 3711, et seq., Juvenile Justice and
participant? or terminate my suspension? Delinquency Prevention Act of 1974, 42
67.440 What method do I use to 67.755 When will I know whether the U.S.C. 5601, et seq., Victims of Crime Act of
communicate those requirements to suspension is continued or terminated? 1984, 42 U.S.C. 10601, et seq.; 18 U.S.C.
participants? 67.760 How long may my suspension last? 4042; 18 U.S.C. 4351–4353; E.O. 12549 (3
67.445 What action may I take if a primary CFR, 1986 Comp. P.189).
tier participant knowingly does business Subpart H—Debarment
with an excluded or disqualified person? 67.800 What are the causes for debarment? ■ 2. Part 67 is further amended as set
67.450 What action may I take if a primary 67.805 What notice does the debarring forth below.
tier participant fails to disclose the official give me if I am proposed for ■ a. ‘‘[Agency noun]’’ is removed and
information required under § 67.335? debarment? ‘‘the Department of Justice’’ is added in
67.455 What may I do if a lower tier 67.810 When does a debarment take effect? its place wherever it occurs.
participant fails to disclose the 67.815 How may I contest a proposed ■ b. ‘‘[Agency adjective]’’ is removed and
information required under § 67.355 to debarment? ‘‘Department of Justice’’ is added in its
the next higher tier? 67.820 How much time do I have to contest place wherever it occurs.
Subpart E—Excluded Parties List System a proposed debarment? ■ c. ‘‘[Agency head or designee]’’ is
67.825 What information must I provide to removed and ‘‘Department of Justice
67.500 What is the purpose of the Excluded the debarring official if I contest a
Parties List System (EPLS)? debarring official or designee’’ is added
proposed debarment?
67.505 Who uses the EPLS? wherever it occurs.
67.830 Under what conditions do I get an
67.510 Who maintains the EPLS? additional opportunity to challenge the ■ 3. Section 67.440 is added to read as
67.515 What specific information is on the facts on which a proposed debarment is follows:
EPLS? based?
67.520 Who places the information into the § 67.440 What method do I use to
67.835 Are debarment proceedings formal?
EPLS? communicate those requirements to
67.840 How is fact-finding conducted?
67.525 Whom do I ask if I have questions participants?
67.845 What does the debarring official
about a person in the EPLS? To communicate the requirements,
consider in deciding whether to debar
67.530 Where can I find the EPLS? you must include a term or condition in
me?
Subpart F—General Principles Relating to 67.850 What is the standard of proof in a the transaction requiring the
Suspension and Debarment Actions debarment action? participants’ compliance with subpart C
67.600 How do suspension and debarment 67.855 Who has the burden of proof in a of this part and requiring them to
actions start? debarment action? include a similar term or condition in
67.605 How does suspension differ from 67.860 What factors may influence the lower-tier covered transactions.
debarment? debarring official’s decision?
■ 4. Part 83 is added to read as set forth
67.610 What procedures does the 67.865 How long may my debarment last?
67.870 When do I know if the debarring in instruction 2 at the end of the common
Department of Justice use in suspension
and debarment actions? official debars me? preamble.
67.615 How does the Department of Justice 67.875 May I ask the debarring official to
notify a person of a suspension and reconsider a decision to debar me? PART 83—GOVERNMENT-WIDE
debarment action? 67.880 What factors may influence the REQUIREMENTS FOR DRUG-FREE
67.620 Do Federal agencies coordinate debarring official during WORKPLACE (GRANTS)
suspension and debarment actions? reconsideration?
67.625 What is the scope of a suspension or 67.885 May the debarring official extend a Subpart A—Purpose and Coverage
debarment action? debarment? Sec.

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83.100 What does this part do? ■ b. ‘‘[Agency adjective]’’ is removed and Subpart B—Requirements for Recipients
83.105 Does this part apply to me? ‘‘Department of Justice’’ is added in its Other Than Individuals
83.110 Are any of my Federal assistance place wherever it occurs. 94.200 What must I do to comply with this
awards exempt from this part? part?
■ c. ‘‘[Agency head or designee]’’ is
83.115 Does this part affect the Federal 94.205 What must I include in my drug-free
contracts that I receive? removed and ‘‘Attorney General or
workplace statement?
designee’’ is added wherever it occurs. 94.210 To whom must I distribute my drug-
Subpart B—Requirements for Recipients ■ d. ‘‘[Agency head]’’ is removed and
Other Than Individuals free workplace statement?
‘‘Attorney General’’ is added wherever it 94.215 What must I include in my drug-free
83.200 What must I do to comply with this occurs. awareness program?
part? 94.220 By when must I publish my drug-
■ 6. Section 83.510(c) is further amended
83.205 What must I include in my drug-free free workplace statement and establish
workplace statement? by removing ‘‘[CFR citation for the
my drug-free awareness program?
83.210 To whom must I distribute my drug- Federal agency’s regulations 94.225 What actions must I take concerning
free workplace statement? implementing Executive Order 12549 employees who are convicted of drug
83.215 What must I include in my drug-free and Executive Order 12689]’’ and adding violations in the workplace?
awareness program? ‘‘28 CFR Part 67’’ in its place. 94.230 How and when must I identify
83.220 By when must I publish my drug- workplaces?
■ 7. Section 83.605(a)(2) is further
free workplace statement and establish
my drug-free awareness program? amended by removing ‘‘[Agency-specific Subpart C—Requirements for Recipients
83.225 What actions must I take concerning CFR citation]’’ and adding ‘‘28 CFR Part Who Are Individuals
employees who are convicted of drug 70’’ in its place. 94.300 What must I do to comply with this
violations in the workplace? lllllllllllllllllll part if I am an individual recipient?
83.230 How and when must I identify 94.301 [Reserved.]
workplaces? DEPARTMENT OF LABOR Subpart D—Responsibilities of Department
Subpart C—Requirements for Recipients 29 CFR Part 94 and 98 of Labor Awarding Officials
Who Are Individuals 94.400 What are my responsibilities as a
RIN 1291–AA33
83.300 What must I do to comply with this Department of Labor awarding official?
part if I am an individual recipient? FOR FURTHER INFORMATION CONTACT: Subpart E—Violations of This Part and
83.301 [Reserved] Jeffrey Saylor, Director Division of Consequences
Subpart D—Responsibilities of Department Acquisition Management Services, N–
94.500 How are violations of this part
of Justice Awarding Officials 5425, 200 Constitution Avenue, NW., determined for recipients other than
Washington, DC 20210, (202) 693–7285, individuals?
83.400 What are my responsibilities as a
Department of Justice awarding official? email saylor-jeffrey@dol.gov. 94.505 How are violations of this part
determined for recipients who are
Subpart E—Violations of This Part and List of Subjects individuals?
Consequences 29 CFR Part 94 94.510 What actions will the Federal
83.500 How are violations of this part Government take against a recipient
determined for recipients other than Administrative practices and determined to have violated this part?
individuals? procedures, Drug abuse, Grant 94.515 Is there any provision for exceptions
83.505 How are violations of this part programs, Reporting and recordkeeping to those actions?
determined for recipients who are requirements. Subpart F—Definitions
individuals?
29 CFR Part 98 94.605 Award.
83.510 What actions will the Federal
94.610 Controlled substance.
Government take against a recipient Administrative practices and 94.615 Conviction.
determined to have violated this part?
procedures, Grant programs, Loan 94.620 Cooperative agreement.
83.515 Are there any exceptions to those 94.625 Criminal drug statute.
actions? programs, Reporting and recordkeeping
requirements. 94.630 Debarment.
Subpart F—Definitions 94.635 Drug-free workplace.
Dated: August 14, 2003. 94.640 Employee.
83.605 Award.
Elaine L. Chao, 94.645 Federal agency or agency.
83.610 Controlled substance.
Secretary of Labor. 94.650 Grant.
83.615 Conviction.
94.655 Individual.
83.620 Cooperative agreement. ■ For the reasons stated in the common 94.660 Recipient.
83.625 Criminal drug statute. preamble, the Department of Labor 94.665 State.
83.630 Debarment.
amends 29 CFR subtitle A, as follows: 94.670 Suspension.
83.635 Drug-free workplace.
83.640 Employee. ■ 1. Part 94 is added to read as set forth Authority: 41 U.S.C. 701 et seq.
83.645 Federal agency or agency. in instruction 2 at the end of the common ■ 2. Part 94 is further amended as set
83.650 Grant. preamble. forth below.
83.655 Individual. ■ a. ‘‘[Agency noun]’’ is removed and
83.660 Recipient. PART 94—GOVERNMENTWIDE ‘‘Department of Labor’’ is added in its
83.665 State. REQUIREMENTS FOR DRUG-FREE place wherever it occurs.
83.670 Suspension. WORKPLACE (FINANCIAL ■ b. ‘‘[Agency adjective]’’ is removed and
Authority: Sec. 5151–5160 of the Drug-Free ASSISTANCE) ‘‘Department of Labor’’ is added in its
Workplace Act of 1988 (Pub. L. 100–690, place wherever it occurs.
Subpart A—Purpose and Coverage
Title V, Subtitle D; 41 U.S.C. 701 et seq.). ■ c. ‘‘[Agency head or designee]’’ is
Sec.
94.100 What does this part do?
removed and ‘‘Secretary of Labor or
■ 5. Part 83 is further amended as set designee’’ is added in its place wherever
forth below. 94.105 Does this part apply to me?
94.110 Are any of my Federal assistance it occurs.
■ a. ‘‘[Agency noun]’’ is removed and awards exempt from this part? ■ d. ‘‘[Agency head]’’ is removed and
‘‘the Department of Justice’’ is added in 94.115 Does this part affect the Federal ‘‘Secretary of Labor or designee’’ is
its place wherever it occurs. contracts that I receive? added in its place wherever it occurs.

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■ 3. Section 94.510(c) is further amended Subpart C—Responsibilities of Participants 98.435 What must I require of a primary tier
by removing ‘‘[CFR citation for the Regarding Transactions participant?
Federal Agency’s regulations 98.440 [Reserved]
Doing Business With Other Persons
implementing Executive Order 12549 98.445 What action may I take if a primary
98.300 What must I do before I enter into tier participant knowingly does business
and Executive Order 12689]’’ and adding a covered transaction with another with an excluded or disqualified person?
‘‘29 CFR Part 98’’ in its place. person at the next lower tier? 98.450 What action may I take if a primary
94.305 May I enter into a covered tier participant fails to disclose the
■ 4. Section 94.605(a)(2) is further
transaction with an excluded or information required under § 98.335?
amended by removing ‘‘[Agency-specific disqualified person? 98.455 What may I do if a lower tier
CFR citation]’’ and adding ‘‘29 CFR Part 98.310 What must I do if a Federal agency participant fails to disclose the
97’’ in its place. excludes a person with whom I am information required under § 98.355 to
already doing business in a covered the next higher tier?
■ 5. Part 98 is revised to read as set forth transaction?
in instruction 1 at the end of the common 98.315 May I use the services of an Subpart E—Excluded Parties List System
preamble. excluded person as a principal under a 98.500 What is the purpose of the Excluded
covered transaction? Parties List System (EPLS)?
PART 98—GOVERNMENTWIDE 98.320 Must I verify that principals of my 98.505 Who uses the EPLS?
DEBARMENT AND SUSPENSION covered transactions are eligible to 98.510 Who maintains the EPLS?
(NONPROCUREMENT) participate? 98.515 What specific information is in the
98.325 What happens if I do business with EPLS?
Sec. an excluded person in a covered 98.520 Who places the information into the
98.25 How is this part organized? transaction? EPLS?
98.50 How is this part written? 98.330 What requirements must I pass 98.525 Whom do I ask if I have questions
98.75 Do terms in this part have special down to persons at lower tiers with about a person in the EPLS?
whom I intend to do business? 98.530 Where can I find the EPLS?
meanings?
Disclosing Information—Primary Tier Subpart F—General Principles Relating to
Subpart A—General Participants Suspension and Debarment Actions
98.100 What does this part do? 98.335 What information must I provide
98.105 Does this part apply to me? 98.600 How do suspension and debarment
before entering into a covered actions start?
98.110 What is the purpose of the transaction with the Department of 98.605 How does suspension differ from
nonprocurement debarment and Labor? debarment?
suspension system? 98.340 If I disclose unfavorable information
98.610 What procedures does the U.S.
98.115 How does an exclusion restrict a required under § 98.335, will I be
Department of Labor use in suspension
person’s involvement in covered prevented from participating in the
and debarment actions?
transaction?
transactions? 98.615 How does the U.S. Department of
98.345 What happens if I fail to disclose the
98.120 May we grant an exception to let an Labor notify a person of a suspension
information required under § 98.335?
excluded person participate in a covered 98.350 What must I do if I learn of the and debarment action?
transaction? 98.620 Do Federal agencies coordinate
information required under § 98.335 after
98.125 Does an exclusion under the suspension and debarment actions?
entering into a covered transaction with
nonprocurement system affect a person’s 98.625 What is the scope of a suspension or
the U.S. Department of Labor?
debarment action?
eligibility for Federal procurement
Disclosing information—Lower Tier 98.630 May the U.S. Department of Labor
contracts? Participants impute the conduct of one person to
98.130 Does exclusion under the Federal another?
98.355 What information must I provide to
procurement system affect a person’s 98.635 May the U.S. Department of Labor
a higher tier participant before entering
eligibility to participate in into a covered transaction with that settle a debarment or suspension action?
nonprocurement transactions? participant? 98.640 May a settlement include a
98.135 May the U.S. Department of Labor 98.360 What happens if I fail to disclose the voluntary exclusion?
exclude a person who is not currently information required under § 98.355? 98.645 Do other Federal agencies know if
participating in a nonprocurement 98.365 What must I do if I learn of the U.S. Department of Labor agrees to a
transaction? information required under § 98.355 after voluntary exclusion?
98.140 How do I know if a person is entering into a covered transaction with Subpart G—Suspension
excluded? a higher tier participant?
98.700 When may the suspending official
98.145 Does this part address persons who Subpart D—Responsibilities of the issue a suspension?
are disqualified, as well as those who are Department of Labor Officials Regarding 98.705 What does the suspending official
excluded from nonprocurement Transactions consider in issuing a suspension?
transactions? 98.400 May I enter into a transaction with 98.710 When does a suspension take effect?
an excluded or disqualified person? 98.715 What notice does the suspending
Subpart B—Covered Transactions official give me if I am suspended?
98.405 May I enter into a covered
98.200 What is a covered transaction? transaction with a participant if a 98.720 How may I contest a suspension?
98.205 Why is it important to know if a principal of the transaction is excluded? 98.725 How much time do I have to contest
particular transaction is a covered 98.410 May I approve a participant’s use of a suspension?
transaction? the services of an excluded person? 98.730 What information must I provide to
98.210 Which nonprocurement transactions 98.415 What must I do if a Federal agency the suspending official if I contest a
are covered transactions? excludes the participant or a principal suspension?
after I enter into a covered transaction? 98.735 Under what conditions do I get an
98.215 Which nonprocurement transactions
98.420 May I approve a transaction with an additional opportunity to challenge the
are not covered transactions? excluded or disqualified person at a facts on which the suspension is based?
98.220 Are any procurement contracts lower tier? 98.740 Are suspension proceedings formal?
included as covered transactions? 98.425 When do I check to see if a person 98.745 How is fact-finding conducted?
98.225 How do I know if a transaction in is excluded or disqualified? 98.750 What does the suspending official
which I may participate is a covered 98.430 How do I check to see if a person is consider in deciding whether to continue
transaction? excluded or disqualified? or terminate my suspension?

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98.755 When will I know whether the 12549, 3 CFR, 1986 Comp., p. 189; E.O. 1471.120 May we grant an exception to let
suspension is continued or terminated? 12689, 3 CFR, 1989 Comp., p. 235. an excluded person participate in a
98.760 How long may my suspension last? covered transaction?
■ 6. Part 98 is further amended as 1471.125 Does an exclusion under the
Subpart H—Debarment follows: nonprocurement system affect a person’s
98.800 What are the causes for debarment? ■ a. ‘‘[Agency noun]’’ is removed and eligibility for Federal procurement
98.805 What notice does the debarring ‘‘Department of Labor’’ is added in its contracts?
official give me if I am proposed for place wherever it occurs. 1471.130 Does exclusion under the Federal
debarment? ■ b. ‘‘[Agency adjective]’’ is removed and procurement system affect a person’s
98.810 When does a debarment take effect? ‘‘Department of Labor’’ is added in its eligibility to participate in
98.815 How may I contest a proposed nonprocurement transactions?
debarment?
place wherever it occurs.
1471.135 May FMCS exclude a person who
■ c. ‘‘[Agency head or designee]’’ is
98.820 How much time do I have to contest is not currently participating in a
a proposed debarment? removed and ‘‘Secretary of Labor or nonprocurement transaction?
98.825 What information must I provide to designee’’ is added in its place wherever 1471.140 How do I know if a person is
the debarring official if I contest a it occurs. excluded?
proposed debarment? lllllllllllllllllll 1471.145 Does this part address persons
98.830 Under what conditions do I get an who are disqualified, as well as those
additional opportunity to challenge the FEDERAL MEDIATION AND who are excluded from nonprocurement
facts on which the proposed debarment CONCILIATION SERVICE transactions?
is based?
29 CFR Parts 1471 and 1472 Subpart B—Covered Transactions
98.835 Are debarment proceedings formal?
98.840 How is fact-finding conducted? 1471.200 What is a covered transaction?
RIN 3076–AA08
98.845 What does the debarring official 1471.205 Why is it important to know if a
consider in deciding whether to debar FOR FURTHER INFORMATION CONTACT: Jane particular transaction is a covered
me? Lorber, Director, Labor-Management transaction?
98.850 What is the standard of proof in a Cooperation Program, 2100 K St., NW., 1471.210 Which nonprocurement
debarment action? Washington, DC 20427, (202) 606–5444, transactions are covered transactions?
98.855 Who has the burden of proof in a 1471.215 Which nonprocurement
e-mail: jlorber@fmcs.gov. transactions are not covered
debarment action?
98.860 What factors may influence the List of Subjects