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

55354 

Vol. 71, No. 184 

Friday, September 22, 2006 

DEPARTMENT OF COMMERCE 

2 CFR Part 1326 

15 CFR Parts 14 and 26 

[Docket No. 060830228–6228–01] 

RIN 0605–AA23 

Department of Commerce 

Implementation of OMB Guidance on 

Nonprocurement Debarment and 

Suspension 

AGENCY: Department of Commerce. 

ACTION: Proposed rule. 

SUMMARY: The Department of Commerce 

(Department) proposes to remove its 

regulations implementing the 

government-wide common rule on 

nonprocurement debarment and 

suspension, currently codified at Title 

15, and to adopt the Office of 

Management and Budget’s (OMB) 

guidance at Title 2 of the Code of 

Federal Regulations (CFR) published in 

the Federal Register on August 31, 

2005. This proposed regulatory action 

would implement the OMB’s initiative 

to streamline and consolidate all federal 

regulations on nonprocurement 

debarment and suspension into one part 

of the CFR. The Department does not 

intend to modify any of its current 

policy. 

DATES: Submit comments on the 

proposed regulatory action by October 

23, 2006. 

ADDRESSES: Comments on this proposed 

action should be sent to Gary Johnson, 

U.S. Department of Commerce, Room 

H–6054, 14th & Constitution Avenue, 

NW., Washington, DC 20230. 

FOR FURTHER INFORMATION CONTACT: For 

further information, please contact Gary 

Johnson at (202) 482–1679 or by e-mail 

at gjohnso3@doc.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

On August 31, 2005, the Office of 

Management and Budget (OMB) issued 

an interim final guidance that 

implemented its Guidance for 

Governmentwide Debarment and 

Suspension (Nonprocurement), codified 

in Part 180 of title 2 of the Code of 

Federal Regulations (70 FR 51862, 

August 31, 2005). In addition to 

restating and updating its guidance on 

nonprocurement debarment and 

suspension, the interim final guidance 

requires all federal agencies to adopt a 

new approach to Federal agency 

implementation of the guidance. OMB 

requires each agency to issue a brief rule 

that: (1) Adopts the guidance, giving it 

regulatory effect for that agency’s 

activities; and (2) states any agencyspecific additions, clarifications, and 

exceptions to the government-wide 

policies and procedures contained in 

the guidance. That guidance also 

requires agencies to implement the 

OMB guidance by February 28, 2007. 

Pursuant to the requirements in 

OMB’s interim final guidance, the 

Department of Commerce (Department) 

proposes to: 

(1) Remove 15 CFR Part 26; (2) replace 

the Department’s part containing the 

full text of the debarment and 

suspension common rule with a brief 

part implementing OMB’s guidance and 

any provisions specific to the 

Department; (3) co-locate the 

Department’s part with OMB’s guidance 

in 2 CFR along with other agencies’ 

regulations in that title; and (4) revise 

references in 15 CFR Part 14 with the 

citation to the Department’s regulations 

located in Title 2, Part 1326. 

This proposed regulatory action 

would implement the OMB’s initiative 

to streamline and consolidate all federal 

regulations on nonprocurement 

debarment and suspension into one part 

of the CFR, and does not intend to 

modify any of the Department’s current 

policy. 

Invitation to Comment 

We intend the proposed new part in 

2 CFR to adopt the OMB guidelines with 

the same additions and clarifications we 

made to the common rule on 

nonprocurement debarment and 

suspension in the Federal Register 

publication of November 26, 2003 (68 

FR 66575). We invite comments on the 

provisions contained in the common 

rule as well as any aspect of this 

proposed rulemaking. 

Executive Order 12866 

This proposed regulatory action has 

been determined to be not significant for 

purposes of E.O. 12866. 

Regulatory Flexibility Act of 1980 

(5 U.S.C. 605(b)) 

The Chief Counsel for Regulation at 

the Department of Commerce certified 

to the Chief Counsel for Advocacy at the 

Small Business Administration that this 

rule, if adopted, would not have a 

significant economic impact on a 

substantial number of small entities. 

This action would merely remove the 

DOC’s current policy and provisions 

related to the debarment and suspension 

common rule and replace it with a brief 

part adopting OMB’s guidance and 

implementing any provisions specific to 

the Department. In addition, it would 

co-locate the Department’s regulations 

with OMB’s guidance in 2 CFR along 

with other agencies’ rules in that title. 

These revisions are purely 

administrative in nature and do not 

modify the Department’s current policy. 

Because these changes are not 

substantive, the Chief Counsel for 

Regulation certified that this action 

would not have a significant economic 

impact on a substantial number of small 

entities. 

Unfunded Mandates Act of 1995 

(Sec. 202, Pub. L. 104–4) 

This proposed regulatory action does 

not contain a Federal mandate that will 

result in the expenditure by State, local, 

and tribal governments, in aggregate, or 

by the private sector of $100 million or 

more in any one year. 

Paperwork Reduction Act of 1995 

(44 U.S.C., Chapter 35) 

This regulatory action will not impose 

any additional reporting or 

recordkeeping requirements under the 

Paperwork Reduction Act. 

Notwithstanding any other provision of 

law, no person is required to respond to, 

nor shall any person be subject to a 

penalty for failure to comply with a 

collection of information subject to the 

Paperwork Reduction Act unless that 

collection displays a currently valid 

OMB Control Number. 

Federalism (Executive Order 13132) 

This proposed regulatory action does 

not have Federalism implications, as set 

forth in Executive Order 13132. It will 


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Federal Register / Vol. 71, No. 184 / Friday, September 22, 2006 / Proposed Rules 55355 

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. 

List of Subjects 

2 CFR Part 1326 

Administrative practice and 

procedure, Debarment and suspension, 

Grant programs, Reporting and 

recordkeeping requirements. 

15 CFR Part 14 

Accounting, Administrative pratice 

and procedure, Grant programs, 

Reporting and recordkeeping 

requirements. 

15 CFR Part 26 

Administrative practice and 

procedure, Debarment and suspension, 

Grant programs, Reporting and 

recordkeeping requirements. 

Issued this 18th day of September at 

Washington, DC. 

Michael S. Sade, 

Director for Acquisition Management and 

Procurement Executive. 

Accordingly, under the authority of 5 

U.S.C. 301; Sec. 2455, Pub. L. 103–355, 

108 Stat. 3327 (31 U.S.C. 6101 note); 

E.O. 12549 (3 CFR, 1986 Comp., p. 189); 

and E.O. 12689 (3 CFR, 1989 Comp., 

p. 235) the Department of Commerce 

proposes the following amendments to 

the Code of Federal Regulations, Title 2, 

Subtitle B, Title 15 Part 14 and Title 15 

Part 26, as follows: 

Title 2—Grants and Agreements 

1. Add Chapter 13, consisting of Part 

1326 to Subtitle B to read as follows: 

Chapter 13—Department of Commerce 

PART 1326—NONPROCUREMENT 

DEBARMENT AND SUSPENSION 

Sec. 

1326.10 What does this part do? 

1326.20 Does this part apply to me? 

1326.30 What policies and procedures must 

I follow? 

Subpart A—General 

1326.137 Who in the Department of 

Commerce may grant an exception to let 

an excluded person participate in a 

covered transaction? 

Subpart B—Covered Transactions 

1326.215 Which nonprocurement 

transactions, in addition to those listed 

in 2 CFR 180.215, are not covered 

transactions? 

1326.220 What contracts and subcontracts, 

in addition to those listed in 2 CFR 

180.220, are covered transactions? 

Subpart C—Responsibilities of Participants 

Regarding Transactions 

1326.332 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 

1326.437 What method do I use to 

communicate to a participant the 

requirements described in the OMB 

guidance at 2 CFR 180.435? 

Subparts E–H—[Reserved] 

Subpart I—Definitions 

1326.970 Nonprocurement transaction 

(Department of Commerce supplement to 

government-wide definition at 2 CFR 

180.970). 

Subpart J—[Reserved] 

Authority: 5 U.S.C. 301; Sec. 2455, Pub. L. 

103–355, 108 Stat. 3327; E.O. 12549, 3 CFR, 

1986 Comp., p. 189; E.O. 12689, 3 CFR, 1989 

Comp., p. 235. 

1326.10 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 Department of Commerce 

policies and procedures for 

nonprocurement debarment and 

suspension. It thereby gives regulatory 

effect to the OMB guidance as 

supplemented by this part. This part 

satisfies the requirements in section 3 of 

Executive Order 12549, ‘‘Debarment and 

Suspension’’ (3 CFR 1986 Comp., 

p. 189), Executive Order 12689, 

‘‘Debarment and Suspension’’ (3 CFR 

1989 Comp., p. 235) and 31 U.S.C. 6101 

note (Section 2455, Public Law 103–

355, 108 Stat. 3327). 

1326.20 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 

180 (see table at 2 CFR 180.100(b)) 

apply to you if you are a—

(a) Participant or principal in a 

‘‘covered transaction’’ (see Subpart B of 

2 CFR part 180 and the definition of 

‘‘nonprocurement transaction’’ at 2 CFR 

180.970, as supplemented by Subpart B 

and § 1326.970 of this part). 

(b) Respondent in a Department of 

Commerce suspension or debarment 

action. 

(c) Department of Commerce 

debarment or suspension official; 

(d) Department of Commerce grants 

officer, agreements officer, or other 

official authorized to enter into any type 

of nonprocurement transaction that is a 

covered transaction; 

§ 1326.30 What policies and procedures 

must I follow? 

The Department of Commerce 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., § 1326.220). For 

any section of OMB guidance in 

Subparts A through I of 2 CFR 180 that 

has no corresponding section in this 

part, Department of Commerce policies 

and procedures are those in the OMB 

guidance. 

Subpart A—General 

§ 1326.137 Who in the Department of 

Commerce may grant an exception to let an 

excluded person participate in a covered 

transaction? 

Within the Department of Commerce, 

the Secretary of Commerce or designee 

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 

§ 1326.215 Which nonprocurement 

transactions, in addition to those listed in 

2 CFR 180.215, are not covered 

transactions? 

(a) For purposes of the Department of 

Commerce, a transaction that the 

Department needs to respond to a 

national or agency-recognized 

emergency or disaster includes the 

Fisherman’s Contingency Fund. 

(b) For purposes of the Department of 

Commerce, an incidental benefit that 

results from ordinary governmental 

operations includes: 

(1) Export Promotion, Trade 

Information and Counseling, and Trade 

policy. 

(2) Geodetic Surveys and Services 

(Specialized Services). 

(3) Fishery Products Inspection 

Certification. 

(4) Standard Reference Materials. 

(5) Calibration, Measurement, and 

Testing. 

(6) Critically Evaluated Data 

(Standard Reference Data). 

(7) Phoenix Data System. 

(8) The sale or provision of products, 

information, and services to the general 

public. 

(c) For purposes of the Department of 

Commerce, any other transaction if the 

application of an exclusion to the 


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55356 Federal Register / Vol. 71, No. 184 / Friday, September 22, 2006 / Proposed Rules 

transaction is prohibited by law 

includes: 

(1) The Administration of the Antidumping and Countervailing Duty 

Statutes. 

(2) The export Trading Company Act 

Certification of Review Program. 

(3) Trade Adjustment Assistance 

Program Certification. 

(4) Foreign Trade Zones Act of 1934, 

as amended. 

(5) Statutory Import Program. 

§ 1326.220 What contracts and 

subcontracts, in addition to those listed in 

2 CFR 180.220, are covered transactions? 

In addition to the contracts covered 

under 2 CFR 180.220(b) of the OMB 

guidance, this part applies to a 

subcontract that is awarded by a 

participant in a procurement transaction 

covered under 2 CFR 180.220(a), if the 

amount of the subcontract exceeds or is 

expected to exceed $25,000. This 

extends the coverage of the Department 

of Commerce nonprocurement 

suspension and debarment requirements 

to one additional tier of contracts under 

covered nonprocurement transactions, 

as permitted under the OMB guidance at 

2 CFR 180.220(c) (see optional lower 

tier coverage in the figure in the 

Appendix to 2 CFR part 180). 

Subpart C—Responsibilities of 

Participants Regarding Transactions 

§ 1326.332 What methods must I use to 

pass requirements down to participants at 

lower tiers with whom I intend to do 

business? 

You as a participant must include a 

term or condition in lower-tier 

transactions requiring lower-tier 

participants to comply with Subpart C 

of the OMB guidance in 2 CFR Part 180, 

as supplemented by this subpart. 

Subpart D—Responsibilities of Federal 

Agency Officials Regarding 

Transactions 

§ 1326.437 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 must 

include a term or condition in the 

transaction that requires the 

participant’s compliance with subpart C 

of 2 CFR part 180, as supplemented by 

Subpart C of this part, and requires the 

participant to include a similar term or 

condition in lower-tier covered 

transactions. 

Subparts E–H—[Reserved] 

Subpart I—Definitions 

§ 1326.970 Nonprocurement transaction 

(Department of Commerce supplement to 

government-wide definition at 2 CFR 

180.970). 

For purposes of the Department of 

Commerce, nonprocurement transaction 

includes the following: 

(a) Joint project Agreements under 15 

U.S.C. § 1525. 

(b) Cooperative research and 

development agreements. 

(c) Joint statistical agreements. 

(d) Patent licenses under 35 U.S.C. 

§ 207. 

(e) NTIS joint ventures, 15 U.S.C. 

§ 3704b. 

Subpart J—[Reserved] 

Title 15, Commerce and Foreign Trade 

Part 26—Department of Commerce 

PART 26—[REMOVED] 

2. Remove Part 26. 

Title 15, Commerce and Foreign Trade 

PART 14—DEPARTMENT OF 

COMMERCE 

3. The authority citation for part 14 

continues to read as follows: 

Authority: 5 U.S.C. 301; OMB Circular A–

110 (64 FR 54926, October 8, 1999). 

4. Section 14.13 is amended by 

removing the citation ‘‘15 CFR Part 26’’

and adding in its place the citation ‘‘2 

CFR Part 1326’’. 

[FR Doc. 06–8022 Filed 9–21–06; 8:45 am] 

BILLING CODE 3510–FA–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 51 

[Docket Number FV–06–303] 

Potatoes; Grade Standards 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule. 

SUMMARY: This proposed rule would 

revise the United States Standards for 

Grades of Potatoes. These standards are 

issued under the Agricultural Marketing 

Act of 1946. The use of these grading 

standards is voluntary unless potatoes 

are under a marketing order that 

provides for certain requirements set 

forth in the grade standards or the 

potatoes are subject to import 

requirements under the Agricultural 

Marketing Agreement Act of 1937. The 

changes being proposed are the results 

of the detailed work performed by the 

Joint U.S./Canadian Potato Council that 

was charged with harmonizing the U.S. 

and Canadian Potato Grade Standards. 

The purpose for this revision is to 

update and revise the standards to more 

accurately represent today’s marketing 

practices. 

DATES: Comments must be received by 

November 21, 2006. 

ADDRESSES: Interested persons are 

invited to submit written comments 

concerning this proposal. Comments 

must be sent to the Standardization 

Section, Fresh Products Branch, Fruit 

and Vegetable Programs, Agricultural 

Marketing Service, U.S. Department of 

Agriculture, 1400 Independence Ave., 

SW., Room 1661 South Building, Stop 

0240, Washington, DC 20250–0240; Fax 

(202) 720–8871, E-mail 

FPBDocketclerk@usda.gov. Comments 

should make reference to the date and 

page number of this issue of the Federal 

Register and will be made available for 

public inspection in the above office 

during regular business hours. 

Comments can also be submitted on the 

Internet at: http://www.regulations.gov. 

The current United States Standards for 

Grades of Potatoes, along with the 

proposed changes, will be available 

either through the address cited above 

or by accessing the AMS, Fresh 

Products Branch Web site at: http:// 

www.ams.usda.gov/standards/ 

stanfrfv.htm. 

FOR FURTHER INFORMATION CONTACT: 

Cheri Emery, at the above address or 

call (202) 720–2185; E-mail 

Cheri.Emery@usda.gov. 

SUPPLEMENTARY INFORMATION:

Executive Order 12866 and 12988 

The Office of Management and Budget 

has waived the review process required 

by Executive Order 12866 for this 

action. This rule has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. This action is not 

intended to have retroactive effect. This 

rule will not preempt any state or local 

laws, regulations, or policies, unless 

they present an irreconcilable conflict 

with this rule. There are no 

administrative procedures which must 

be exhausted prior to any judicial 

challenge to the provisions of the rule. 

Regulatory Flexibility Act and 

Paperwork Reduction Act 

The Joint U.S./Canadian Council, 

which was established by the United 


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