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Panoptic Enterprises' FEDERAL CONTRACTS DISPATCH

DATE: November 26, 2003

SUBJECT: Governmentwide Debarment and Suspension (Nonprocurement) and Governmentwide Requirements for Drug-Free Workplace (Grants)

SOURCE: Federal Register, November 26, 2003, Vol. 68, No. 228, page 66533

AGENCIES: Departments of Agriculture, Commerce, Defense, Education, Energy, Health and Human Services, Housing and Urban Development, Interior, Justice, Labor, State, Transportation, Treasury, and Veterans Affairs; African Development Foundation; Agency for International Development; Corporation for National and Community Service; Environmental Protection Agency; Export-Import Bank; Federal Mediation and Conciliation Service; General Services Administration; Inter-American Foundation; National Archives and Records Administration; National Foundation on the Arts and the Humanities (Institute of Museum and Library Services, National Endowment for the Arts, and National Endowment for the Humanities); National Aeronautics and Space Administration; National Science Foundation; Office of National Drug Control Policy; Office of Personnel Management; Peace Corps; Small Business Administration; and Social Security Administration

ACTION: Final and Interim Final Rules

SYNOPSIS: These final and interim final rules make substantive changes and amendments to the governmentwide nonprocurement "common rule" for debarment and suspension and the governmentwide rule implementing the Drug-Free Workplace Act of 1988.

EDITORS'S NOTE: For more on the notice of proposed rulemaking (NPRM), see the January 23, 2002, FEDERAL CONTRACTS DISPATCH "Governmentwide Debarment and Suspension (Nonprocurement) and Governmentwide Requirements for Drug-Free Workplace (Grants)."

The "common rule" format allows each agency to insert the text into its regulations verbatim merely by adding its appropriate Code of Federal Regulations (CFR) section number. For example, the Department of Agriculture's regulations at 7 CFR 3017, Governmentwide Debarment and Suspension (Nonprocurement) and Governmentwide Requirements for Drug-Free Workplace (Grants) contain the debarment and suspension regulations under a nonprocurement covered transaction. Under the common rule, __.25 is "How is this part organized?" To incorporate the common rule into its regulations, the Department of Agriculture assigns the number 7 CFR 3017.25 to "How is this part organized?", and it consists of the exact same text as in the common rule. Likewise, the Department of Commerce's corresponding regulations are in 15 CFR Part 26, Governmentwide Debarment and Suspension (Nonprocurement) and Governmentwide Requirements for Drug-Free Workplace (Grants), and it assigns 7 CFR 36.25 to "How is this part organized?", and this section is identical to Agriculture's 7 CFR 3017.25.

DATES: The effective date for this common rule is November 26, 2003. The comment date for those agencies issuing this rule as an interim rule (that is, the Departments of Agriculture, Justice, and Treasury, and the Export-Import Bank) is January 26, 2004.

ADDRESSES: Comments on the Department of Agriculture final interim rule should be addressed to Tyson Whitney, OCFO-PAD Room 3448A, Mail Stop 9020, 1400 Independence Avenue, SW, Washington, DC 20250-9020; 202-720-8978; or by e-mail to: twhitney@cfo.usda.gov.

Comments on the Department of Justice final interim rule should be addressed to Linda Fallowfield, Attorney Advisor, Office of the General Counsel, Office of Justice Programs, Department of Justice, 810 7th Street NW, Washington, DC 20531; 202-305-2534; or by e-mail to: fallowfi@ojp.usdoj.gov.

Comments on the Department of Treasury final interim rule should be addressed to Brian Lee, Office of the Deputy Chief Financial Officer, Department of the Treasury, 1500 Pennsylvania Ave., NW, Attn: Metropolitan Square Room 6212, Washington, DC 20220; or by e-mail to: Brian Lee@do.treas.gov.

Comments on the Export-Import Bank final interim rule should be addressed to: Howard Schweitzer, Assistant General Counsel for Administration, Export-Import Bank of the United States, 811 Vermont Avenue, NW, Washington, DC 20571; or by e-mail to: howard.schweitzer@exim.gov.

FOR FURTHER INFORMATION CONTACT: Robert F. Meunier, Chair of the Interagency Suspension and Debarment Committee, Office of Grants and Debarment (3901-R), Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; 202-564-5399; or by e-mail to: meunier.robert@epa.gov.

SUPPLEMENTAL INFORMATION: In 1999, OMB asked the Interagency Suspension and Debarment Committee (ISDC) to review the then-current debarment and suspension and drug-free workplace common rule and propose amendments that would resolve unnecessary technical differences between the procurement and nonprocurement systems, revise the rule in a plain language style and format, and make other improvements to the common rule consistent with the purpose of the suspension and debarment system. The ISDC's proposed amendments formed the basis of the January 23, 2002, Notice of Proposed Rulemaking (NPRM), in which 30 agencies joined. One other agency, the Department of Housing and Urban Development, published its own proposed rule on July 22, 2002, because it is required to present all proposed rules for Congressional review 15 days before publication (see the July 22, 2002, FEDERAL CONTRACTS DISPATCH "Department of Housing and Urban Development (HUD); Governmentwide Debarment and Suspension (Nonprocurement) and Governmentwide Requirements for Drug-Free Workplace (Grants)"). HUD is joining the other agencies in adopting the common rule with a minor addition (see below).

Since publication of the January 23, 2002, NPRM, the Federal Emergency Management Agency (FEMA), along with parts of many other federal agencies, has been transferred into the new Department of Homeland Security (DHS). Therefore, this final rule does not include FEMA or DHS. Also, the Departments of Justice and Treasury and the Export-Import Bank did not propose changes along with the other agencies on January 23, 2002, but are adopting these rules on an interim final basis and are soliciting comments. Finally, the Department of Agriculture, although it proposed rules on January 23, 2002, has decided to issue an interim final rule so it can solicit additional comments on whether the procedures in Sections 3017.765, How may I appeal my suspension?, and 3017.890, How may I appeal my debarment?, that permit appeal of a suspension or debarment decision to an administrative law judge are necessary or add substantive value to the suspension and debarment process.

Though grants have little in common with contracts, the debarment and suspension procedures are similar and interrelated in that someone who is debarred for actions taken under a grant is debarred from contracting with the government, and vice versa. So the fact that the common rule is written in plain language and reformatted to separate the drug-free workplace requirements from the debarment and suspension requirements is of little concern to contractors without involvement in grants. However, there are several changes in the common rule, and the agencies' implementation of the common rule, that are of interest to federal contractors:

FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953 or by e-mail to Panoptic@FedGovContracts.com.

Copyright 2003 by Panoptic Enterprises. All Rights Reserved.

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