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.

Proposed Rules Federal Register

24494 

Vol. 75, No. 86 

Wednesday, May 5, 2010 

ELECTION ASSISTANCE COMMISSION 

2 CFR Chapter 58 

Nonprocurement Debarment and 

Suspension 

AGENCY: U.S. Election Assistance 

Commission (EAC). 

ACTION: Proposed Rulemaking. 

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 


erowe on DSK5CLS3C1PROD with PROPOSALS-1
Federal Register / Vol. 75, No. 86 / Wednesday, May 5, 2010 / Proposed Rules 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). 

§ 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. 

§ 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. 

§ 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., §ll.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. 


erowe on DSK5CLS3C1PROD with PROPOSALS-1
24496 Federal Register / Vol. 75, No. 86 / Wednesday, May 5, 2010 / Proposed Rules 

Subpart A—General 

§ 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 

§ 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 firsttier 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 

§ 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 § 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 

§ 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. 

§ 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. 

§ 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 § 5800.880. The disposition 

of your request for reconsideration; or 

the result of your appeal; shall be 

considered a final agency action. 

§ 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. 

§ 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 § 180.815, you may 

ask for review of the debarring official’s 

decision in two ways: 

(1) You may ask the debarring official 

under § 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 

§ 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 

§§ 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 

§ 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. 

§ 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. 

§ 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 


erowe on DSK5CLS3C1PROD with PROPOSALS-1