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[Federal Register: May 5, 2010 (Volume 75, Number 86)]
[Proposed Rules]               
[Page 24494-24496]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05my10-23]                         

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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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[[Page 24494]]

 ELECTION ASSISTANCE COMMISSION

2 CFR Chapter 58

 
Nonprocurement Debarment and Suspension

AGENCY: U.S. Election Assistance Commission (EAC).

ACTION: Proposed Rulemaking.

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SUMMARY: The Election Assistance Commission (EAC) invites the general 
public and other Federal agencies to take this opportunity to comment 
on proposed debarment and suspension regulations. These proposed 
regulations will apply to nonprocurement grants, cooperative agreements 
and other similar transactions. Under this system, a person who is 
debarred or suspended is excluded from federal financial and 
nonfinancial assistance and benefits under federal programs and 
activities. The proposed regulations adopt the format established by 
the Office of Management and Budget (OMB) in a document on 
nonprocurement debarment and suspension published in the Federal 
Register on August 31, 2005. In today's notice EAC proposes 
establishing a new 2 CFR chapter 58 Part 5800 that adopts OMB's final 
government-wide guidance on nonprocurement debarment and suspension and 
contains supplemental EAC nonprocurement debarment and suspension 
provisions.

DATES: You must submit comments on or before 5 p.m. Eastern Standard 
Time on June 4, 2010.

ADDRESSES: You may submit comments on the proposed debarment and 
suspension regulations by any of the following methods. Please submit 
your comments via only one of the methods described.
     E-Mail: Send comments to HAVAcomments@eac.gov with 
``Comments for Debarment and Suspension'' in the subject line.
     Fax: Send to ``EAC Regulations'' at (202) 566-3128. 
Comments sent by fax must be limited to 6 pages.
     Mail: Send to ``EAC Regulations'' at U.S. Election 
Assistance Commission, 1201 New York Avenue, Suite 300, Washington, DC 
20005. Comments sent by mail must be unbound, be on paper no larger 
than 8.5'' by 11''; and be submitted in duplicate. Mailed comments will 
not be accepted in electronic form (floppy disk, CD, etc.).
     Hand Delivery/Courier: Deliver to Suite 300, 1201 New York 
Avenue, Washington, DC 20005 between 9 a.m. and 5 p.m., Monday through 
Friday, except federal holidays. Comments submitted by hand delivery 
must be unbound, be on paper no larger than 8.5'' by 11''; and be 
submitted in duplicate. Comments sent by courier or hand delivery will 
not be accepted in electronic form (floppy disk, CD, etc.).

    Note: All submissions must include the agency name and 
regulation title (i.e. ``Nonprocurement Debarment and Suspension'') 
for this information and collection/recordkeeping requirement. 
Please also identify comments on regulatory text by subpart and 
section. Note that all comments received will be publicly posted, 
including any personal information provided. The EAC will post 
comments without change unless the comment contains profanity or 
material that is prohibited from disclosure by law.

FOR FURTHER INFORMATION CONTACT: Andrew Guggenheim or Tamar Nedzar, 
Election Assistance Commission, 1201 New York Avenue, Suite 300, 
Washington, DC 20005; Telephone: 202-566-3100.

SUPPLEMENTARY INFORMATION:

Background

    On February 18, 1986, President Reagan issued Executive Order 
12549, (3 CFR, 1986 Comp., 189 51 FR 6370), to establish a 
governmentwide debarment and suspension system covering the full range 
of Federal procurement and nonprocurement activities, and to establish 
procedures for debarment and suspension from participation in Federal 
nonprocurement programs. Section 6 of the Executive Order authorized 
OMB to issue guidelines to Executive departments and agencies that 
govern which program and activities are covered by the Executive Order, 
prescribe Governmentwide criteria and Governmentwide minimum due 
process procedures, and set forth other related details for the 
effective administration of the guidelines. Section 3 directed agencies 
to issue implementing regulations that are consistent with OMB 
guidelines. Pursuant to the Executive Order, on February 21, 1986 OMB 
published initial guidelines for nonprocurement debarment and 
suspension that applies to grants, cooperative agreements and similar 
transactions. Under this system, a person who is debarred or suspended 
is excluded from federal financial and nonfinancial assistance and 
benefits under federal programs and activities. Debarment or suspension 
of a participant in a program by one agency is registered with the GSA-
maintained Excluded Parties List System and has government-wide, 
reciprocal effect on that participant's ability to obtain procurement 
and nonprocurement contracts.
    After notice and comment by the public, EAC will adopt the OMB 
regulations found in 2 CFR part 180. To adopt these regulations, 2 CFR 
180.25 requires federal agencies to address certain agency specific 
elements. The following regulations fulfill this requirement EAC's 
proposed regulations state what contracts are covered under this 
policy, identify the official authorized to grant exceptions to an 
excluded persons list, and state the person responsible for 
communicating requirements to both first and second tier program 
participants.
    In general, the proposed regulation gives the authority over 
debarment and suspension to the Contracting Officer. In the event of a 
vacancy or conflict of interest by the contracting officer, the 
debarment and suspension official will be the Chief Financial Officer. 
Covered transactions include all agency nonprocurement transactions, 
first-tier contracts and subcontracted funded by the EAC in excess of 
$25,000 or 30 percent of the value of the first-tier transaction, 
whichever is lesser. EAC is also providing covered individuals a right 
to request a reconsideration of a debarment action. In this process, an 
individual having received a disposition of the debarment action may 
submit to the Contracting Officer any newly discovered material 
evidence; proof of a reversal of the conviction or civil judgment upon 
which the debarment was based; a bona fide change in ownership or 
management; elimination of other causes for which the debarment or 
suspension was imposed; or other reasons the debarring official finds

[[Page 24495]]

appropriate. By default, elements not addressed in the agency specific 
regulations will be covered by the government-wide sections in the 
Common Rule.

Regulatory Analysis

A. Executive Order 12866

    EAC is an independent agency and is not subject to Executive Order 
12866.

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

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

Unfunded Mandates Act of 1995

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

Paperwork Reduction Act of 1995

    This final rule does not impose any additional reporting or 
recordkeeping requirements under the Paperwork Reduction Act.

Federalism (Executive Order 13132)

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

Executive Order 13211

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a 
significant regulatory action under Executive Order 12866.

Congressional Review Act

    The Congressional Review Act, as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, generally provides that 
before a rule may take effect, the agency promulgating the rule must 
submit a rule report, which includes a copy of the rule, to each House 
of the Congress and to the Comptroller General of the United States.
    EAC will submit a report containing this rule and other required 
information to the U.S. Senate, the U.S. House of Representatives, and 
the Comptroller General of the United States prior to publication of 
the rule in the Federal Register. A major rule cannot take effect until 
60 days after it is published in the Federal Register. This action is 
not a ``major rule'' as defined by 5 U.S.C. 804(2). This rule will be 
effective 30 days from the date of publication in the Federal Register.

List of Subjects in 2 CFR Part 5800

    Administrative practice and procedure, Debarment and suspension, 
Assistance programs, Reporting and recordkeeping requirements.

    For the reasons set fourth in the preamble, under the authority at 
2 CFR 180.30, the Election Assistance Commission proposes to amend 
title 2 of the Code of Federal Regulations, by establishing chapter 58, 
consisting of part 5800 to read as follows:

Title 2--Grants and Agreements

Chapter 58--Election Assistance Commission

PART 5800--NONPROCUREMENT DEBARMENT AND SUSPENSION

Sec.
5800.10 What does this part do?
5800.20 Does this part apply to me?
5800.30 What policies and procedures must I follow?
Subpart A--General
5800.137 Who in the Department of State may grant an exception to 
let an excluded person participate in a covered transaction?
Subpart B--Covered Transactions
5800.220 What contracts and subcontracts, in addition to those 
listed in 2 CFR 180.220, are covered transactions?
Subpart C--Responsibilities of Participants Regarding Transactions
5800.332 What methods must I use to pass requirements down to 
participants at lower tiers with whom I intend to do business?
Subpart D--Responsibilities of Federal Agency Officials Regarding 
Transactions
5800.437 What method do I use to communicate to a participant the 
requirements described in the OMB guidance at 2 CFR 180.435?
5800.765 May I ask the suspending official to reconsider a decision 
to suspend me?
5800.875 May I ask the debarring official to reconsider a decision 
to debar me?
5800.880 What factors may influence the debarring official during 
reconsideration?
5800.890 How may I appeal my debarment?
Subpart E Through H [Reserved]
Subpart I--Definitions
5800.930 Debarring official.
5800.970 Nonprocurement transaction.
5800.1010 Suspending official.
Subpart J [Reserved]

    Authority: Sec. 2455, Pub. L. 103-355, 108; Stat. 3327 (31 
U.S.C. 6101 note); E.O. 12549; (3 CFR, 1986 Comp., p. 189); E.O. 
12689 (3); CFR, 1989 Comp., p. 235).

Sec.  5800.10  What does this part do?

    This part adopts the Office of Management and Budget (OMB) guidance 
in Subparts A through I of 2 CFR part 180, as supplemented by this 
part, as the U.S. Election Assistance Commission (``the Commission'' or 
``EAC'') policies and procedures for nonprocurement debarment and 
suspension. It thereby gives regulatory effect for the Commission to 
the OMB guidance as supplemented by this part. This part satisfies the 
requirements in section 3 of Executive Order 12549, ``Debarment and 
Suspension'' and 31 U.S.C. 6101 note.

Sec.  5800.20  Does this part apply to me?

    This part and, through this part, pertinent portions of the OMB 
guidance in Subparts A through I of 2 CFR part (see table at 2 CFR 
180.100(b)) apply to you if you are a--
    (a) Participant or principal in a ``covered transaction'' (see 
Subpart B of 2 CFR part 180 and the definition of ``nonprocurement 
transaction'' at 2 CFR 180.970);
    (b) Respondent in a Commission suspension or debarment action;
    (c) Commission debarment or suspension official; or
    (d) Commission grants officer, agreements officer, or other 
official authorized to enter into any type of nonprocurement 
transaction that is a covered transaction.

Sec.  5800.30  What policies and procedures must I follow?

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

[[Page 24496]]

Subpart A--General

Sec.  5800.137  Who at the Commission may grant an exception to let an 
excluded person participate in a covered transaction?

    The Commission's Contracting Officer has the authority to grant an 
exception to let an excluded person participate in a covered 
transaction, as provided in the OMB guidance at 2 CFR 180.135.

Subpart B--Covered Transactions

Sec.  5800.220  What contracts and subcontracts, in addition to those 
listed in 2 CFR 180.220, are covered transactions?

    Pursuant to 2 CFR 180.220(c), the Commission extends coverage of 
nonprocurement suspension and debarment requirements beyond first-tier 
procurement contracts to include any subcontract to be funded by the 
Commission, the value of which is expected to equal to or exceed 
$25,000 or 30% of the value of first-tier transaction, whichever is 
lesser.

Subpart C--Responsibilities of Participants Regarding Transactions

Sec.  5800.332  What methods must I use to pass requirements down to 
participants at lower tiers with whom I intend to do business?

    If a lower-tier transaction is covered pursuant to Sec.  5800.220, 
you as a participant must include a term or condition in lower-tier 
transactions requiring lower-tier participants to comply with Subpart C 
of the OMB guidance in 2 CFR part 180.

Subpart D--Responsibilities of Federal Agency Officials Regarding 
Transactions

Sec.  5800.437  What method do I use to communicate to a participant 
the requirements described in the OMB guidance at 2 CFR 180.435?

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

Sec.  5800.765  May I ask the suspending official to reconsider a 
decision to suspend me?

    Yes. Within 30 days of receiving a final notice of suspension, you 
may make a written request for the suspending official to reconsider 
your suspension.

Sec.  5800.875  May I ask the debarring official to reconsider a 
decision to debar me?

    Yes. Within 30 days of receiving a final notice of debarment, you 
may make a written request for the debarring official to reconsider 
your debarment pursuant to Sec.  5800.880. The disposition of your 
request for reconsideration; or the result of your appeal; shall be 
considered a final agency action.

Sec.  5800.880  What factors may influence the debarring official 
during reconsideration?

    The debarring official may reduce or terminate your debarment based 
on:
    (a) Newly discovered material evidence;
    (b) A reversal of the conviction or civil judgment upon which your 
debarment was based;
    (c) A bona fide change in ownership or management;
    (d) Elimination of other causes for which the debarment was 
imposed; or
    (e) Other reasons the debarring official finds appropriate.

Sec.  5800.890  How may I appeal my debarment?

    (a) If the Commission debarring official issues a decision under 2 
CFR 180.870 to debar you after you present information in opposition to 
a proposed debarment under Sec.  180.815, you may ask for review of the 
debarring official's decision in two ways:
    (1) You may ask the debarring official under Sec.  875 to 
reconsider the decision for material errors of fact or law that you 
believe will change the outcome of the matter; or
    (2) You may request a review by the EAC's debarment appeals body 
(DAP), which is composed of the Executive Director, Chief Financial 
Officer, and Chief Operating Officer. The DAP will review your appeal 
and make a determination on whether to sustain or reverse the decision 
of the debarring official. The DAP will then make a recommendation to 
the EAC Commissioners who will vote by circulation on whether to accept 
or reject the recommendation of the DAP. A request to review the 
debarring official's decision to debar you must be made within 30 days 
of your receipt of the debarring official's decision under Sec.  
180.870 or paragraph (a)(1) of this section. However, the DAP may 
recommend to the EAC Commissioners that the debarring official's 
decision be reversed, based on a majority vote of the DAP, only where 
the DAP finds that the decision is based on a clear error of material 
fact or law, or where DAP finds that the debarring official's decision 
was arbitrary, capricious, or an abuse of discretion. You may appeal 
the debarring official's decision without requesting reconsideration, 
or you may appeal the decision of the debarring official on 
reconsideration.
    (b) A request for review under this section must be in writing; 
prominently state on the envelope or other cover and at the top of the 
first page ``Debarment Appeal;'' state the specific findings you 
believe to be in error; and include the reasons or legal bases for your 
position. The appeal request should be delivered or addressed to the 
U.S. Election Assistance Commission, 1201 New York Avenue, NW., Suite 
300, Washington, DC 20005.
    (c) After the circulation vote of the EAC Commissioners has been 
certified, either the Commission debarring official or the DAP must 
notify you of their decision under this section, in writing, using the 
notice procedures set forth at Sec. Sec.  180.615 and 180.975.
    (e) Nothing in this part prohibits the EAC from delegating the 
appeal review process to another Federal agency through a memorandum of 
understanding or interagency agreement.

Subparts E through H--[Reserved]

Subpart I--Definitions

Sec.  5800.930  Debarring official.

    For the Commission, the debarring official for all nonprocurement 
transactions is the Commission's Contracting Officer. In the case of a 
vacancy in the position of the Contracting Officer, the alternate 
debarring official is the Chief Financial Officer.

Sec.  5800.970  Nonprocurement transaction.

    While the Commission treats all payments made to states under 42 
U.S.C. 15301, 15302 and 15401 as grants, this part does not apply to 
grants made to states and political subdivisions therein.

Sec.  5800.1010  Suspending official.

    For the Commission, the debarring official for all nonprocurement 
transactions is the Commission's Contracting Officer. In the case of a 
vacancy in the position of the Contracting Officer, the alternate 
debarring official is the Chief Financial Officer.

Subpart J--[Reserved]

Alice Miller,
Chief Operating Officer, U.S. Election Assistance Commission.
[FR Doc. 2010-10210 Filed 5-4-10; 8:45 am]
BILLING CODE 6820-KF-P
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