62394 Federal Register / Vol. 71, No. 206 / Wednesday, October 25, 2006 / Rules and Regulations 

cement kilns. You are not required to 

comply with the particulate matter 

standard specified under 

§ 63.1220(b)(7)(i) until EPA takes final 

action with regard to the particulate 

matter standard pursuant to 

reconsideration proceedings. If you start 

up a new or reconstructed hazardous 

waste burning cement kiln as defined by 

this subpart, you must not emit 

particulate matter in excess of 0.15 kg/ 

Mg dry feed, as determined according to 

the requirements under 

§ 63.1204(b)(7)(i) through (iii). 

* * * * * 

■ 3. Section 63.1220 is amended by 

revising paragraph (b)(7)(i) to read as 

follows: 

§ 63.1220 What are the replacement 

standards for hazardous waste burning 

cement kilns? 

* * * * * 

(b) * * * 

(7) * * * 

(i) Except as provided by 

§ 63.1206(a)(1)(ii)(B)(3) and paragraph 

(b)(7)(iii) of this section, particulate 

matter emissions in excess of 0.0023 gr/ 

dscf corrected to 7 percent oxygen. 

* * * * * 

[FR Doc. E6–17897 Filed 10–24–06; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary 

49 CFR Part 29 

[Docket No. OST–2005–22602] 

RIN 2105–AD46 

Debarment and Suspension 

(Nonprocurement) Requirements 

AGENCY: Office of the Secretary (OST), 

DOT. 

ACTION: Final rule. 

SUMMARY: This rule amends the 

Department of Transportation’s 

regulations implementing the 

governmentwide nonprocurement 

debarment and suspension 

requirements. Specifically, this rule 

adopts the optional lower tier coverage 

prohibiting excluded persons from 

participating in subcontracts at tiers 

lower than the first tier below a covered 

nonprocurement transaction. 

DATES: Effective Date: This final rule is 

in effect November 24, 2006. 

FOR FURTHER INFORMATION CONTACT: 

Ellen Shields, Office of the Senior 

Procurement Executive, Office of 

Administration (M–61), (202) 366–4268, 

400 Seventh Street, SW., Washington, 

DC 20590–0001. Office hours are from 

7:45 a.m. to 4:15 p.m. e.t., Monday 

through Friday, except Federal holidays. 

SUPPLEMENTARY INFORMATION: 

Electronic Access 

You may retrieve previously filed 

comments online through the Document 

Management System (DMS) at http:// 

dmses.dot.gov. The DMS is available 24 

hours each day, 365 days each year. 

Electronic retrieval help and guidelines 

are available under the help section of 

the Web site. An electronic copy of this 

document may be downloaded by using 

a computer, modem and suitable 

communications software from the 

Government Printing Office’s Electronic 

Bulletin Board Service at (202) 512–

1661. Internet users may also reach the 

Office of the Federal Register’s home 

page at http://www.nara.gov/fedreg and 

the Government Printing Office’s Web 

page at: http://www.access.gpo.gov/ 

nara. 

Background 

On November 26, 2003, the 

Department of Transportation (DOT), 

along with twenty-nine other agencies, 

published its final rule implementing 

changes to the governmentwide 

debarment and suspension common 

rule (68 FR 66533). These regulations 

were intended to resolve unnecessary 

technical differences between the 

procurement and nonprocurement 

systems, revise the existing 

governmentwide debarment and 

suspension regulations in a plain 

language style and format, and make 

other improvements consistent with the 

purpose of the debarment and 

suspension system. One of the changes 

made to the regulations included 

limiting the mandatory down-tier 

application of an exclusion to only the 

first procurement level. Under the 

previous governmentwide regulations, 

all executive agencies applied 

suspensions and debarments to all 

procurement levels. However, in the 

revised governmentwide regulations, 

each agency was given the option of 

applying an exclusion to levels below 

the first procurement level. This final 

rule adopts the optional lower tier 

coverage to make the debarment and 

suspension regulations applicable to 

levels below the first procurement level. 

Many of the DOT programs involve 

billions of dollars in grants that are 

obligated to construction projects by 

States, localities and other recipients. 

For instance, on August 10, 2005, the 

President signed into law the Safe, 

Accountable, Flexible, Efficient 

Transportation Equity Act: A Legacy for 

Users (SAFETEA–LU), Public Law 109–

59. This Act authorizes funding for 

highways, highway safety, and public 

transportation totaling $244.1 billion 

over five years (2005–2009) and is the 

largest surface transportation 

investment in our Nation’s history. Of 

this $244.1 billion, a substantial portion 

of these funds will be used by States 

and other grantees to procure 

construction contracts. These 

construction contracts could involve 

multiple subcontracts that would be 

vulnerable to misconduct and poor 

performance if suspended or debarred 

contractors are allowed to participate in 

these transactions. 

Discussion of Comments 

On October 5, 2005, the Office of the 

Secretary (OST) in the DOT published a 

notice of proposed rulemaking (NRPM) 

and requested comment on whether the 

DOT should adopt the lower tier 

coverage. In response to the NPRM, OST 

received two comments. These 

comments were submitted by the 

American Road and Transportation 

Builders Association (ARTBA) and the 

Wisconsin Department of 

Transportation (WisDOT). 

ARTBA commented that the 

transportation construction industry has 

a well-deserved reputation of being 

comprised of highly ethical firms. 

However, despite this reputation, some 

firms betray the integrity of the whole. 

In these situations, ARTBA 

acknowledged that suspension or 

debarment may be appropriate. 

Additionally, ARTBA commented on 

the importance of maintaining the 

contractor’s due process rights. ARTBA 

stated that the basis of due process is 

that everyone is deemed innocent until 

proven guilty and that due process is 

not served if contractors are suspended 

or debarred before being afforded an 

opportunity to be heard. ARTBA noted 

that debarment and suspension cannot 

be taken lightly because of the 

interruption in the firm’s ability to work 

and, as such, the DOT needs to ensure 

that the debarment and suspension 

process is fair. 

The DOT agrees with ARTBA that the 

transportation construction industry 

does indeed have a well-deserved 

reputation of being comprised of highly 

ethical firms. However, as ARTBA 

acknowledges, there are some firms 

within the industry that betray this 

reputation. The participation of these 

irresponsible firms and individuals in 

the transportation program could result 

in millions of dollars being wasted due 

to fraud. These are funds that could be 

used on construct more transportation 

projects. Also, the DOT agrees with 

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Federal Register / Vol. 71, No. 206 / Wednesday, October 25, 2006 / Rules and Regulations 62395 

ARTBA on the importance of 

maintaining the contractor’s due process 

rights. The debarment and suspension 

regulations promulgated in 2003 set out 

detailed procedures that must be 

followed whenever the Department 

initiates a suspension or debarment 

action. These procedures include both 

notice and an opportunity to be heard. 

WisDOT commented that the 

language was not user friendly and 

suggested that the DOT adopt a 

definition of procurement as well as 

revise the proposed language by 

essentially substituting the word 

‘‘nonprocurement’’ with 

‘‘procurement.’’ The current regulations 

are based on a governmentwide 

common rule that was adopted by 

numerous agencies and were drafted to 

be more consistent with the debarment 

and suspension rules in the Federal 

Acquisition Regulation (FAR). Thus, the 

DOT is hesitant to make any changes 

that may deviate from the consistency 

these rules are intended to create among 

Executive Branch agencies as well as the 

FAR. However, the DOT notes this 

suggestion and will work with the 

Office of Management and Budget, 

which is the lead agency on the 

governmentwide common rule, in this 

endeavor. 

The DOT feels that the language 

should be adopted as proposed in the 

NPRM. First, the alternate language 

proposed by WisDOT would apply to 

procurement transactions at the first 

procurement level. These types of 

transactions have unique rules already 

established in section 29.220(b) of 49 

CFR. Second, the language proposed by 

the NPRM makes it clear that the 

provision applies to contracts awarded 

by contractors under a nonprocurement 

transaction. Thus, the DOT is adopting 

the language proposed in the NPRM. 

Rulemaking Analyses and Notices 

Executive Order 12866 (Regulatory 

Planning and Review) and DOT 

Regulatory Policies and Procedures 

The DOT has determined 

preliminarily that this action is not a 

significant regulatory action within the 

meaning of Executive Order 12866 and 

is not significant within the meaning of 

Department of Transportation regulatory 

policies and procedures. It is 

anticipated that the economic impact of 

this rulemaking would be minimal, 

since it would bring the DOT’s 

regulations concerning the effect of a 

debarment and suspension back in line 

with the regulations that were in effect 

prior to November 26, 2003. These 

changes would not adversely affect, in 

a material way, any sector of the 

economy. In addition, these changes 

would not interfere with any action 

taken or planned by another agency and 

would not materially alter the budgetary 

impact of any entitlements, grants, user 

fees, or loan programs. Consequently, a 

full regulatory evaluation is not 

required. 

Regulatory Flexibility Act 

In compliance with the Regulatory 

Flexibility Act (Pub. L. 96–354, 5 U.S.C. 

601–612) the DOT has evaluated the 

effects of this action on small entities 

and has determined that the action 

would not have a significant economic 

impact on a substantial number of small 

entities. This action brings the DOT’s 

regulations concerning the effect of a 

debarment and suspension back in line 

with the regulations that were in effect 

prior to November 26, 2003 by 

excluding persons who have been 

debarred or suspended from 

participating in transactions beneath the 

first procurement level under a nonprocurement transaction. For these 

reasons, the DOT certifies that this 

action does not have a significant 

economic impact on a substantial 

number of small entities. 

Unfunded Mandates Reform Act of 

1995 

This rule does not impose unfunded 

mandates as defined by the Unfunded 

Mandates Reform Act of 1995 (Pub. L. 

104–4, March 22, 1995, 109 Stat. 48). 

This rule will not result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any one year (2 U.S.C. 1532). This 

final rule provides for the exclusion of 

debarred or suspended persons from 

participating in transactions beneath the 

first procurement level under a nonprocurement transaction, therefore, this 

action is not considered an unfunded 

mandate. 

Executive Order 13132 (Federalism 

Assessment) 

This action has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13132, and the DOT has determined that 

this action does not have sufficient 

federalism implications to warrant the 

preparation of a Federalism assessment. 

The DOT has also determined that this 

action does not preempt any State law 

or State regulation or affect the States’

ability to discharge traditional State 

governmental functions. 

Executive Order 13175 

This final rule has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13175 (‘‘Consultation and Coordination 

with Indian Tribal Governments’’). 

Because this final rule does not 

significantly or uniquely affect the 

communities of the Indian tribal 

governments and does not impose 

substantial direct compliance costs, the 

funding and consultation requirements 

of Executive Order 13175 do not apply. 

Paperwork Reduction Act 

Under the Paperwork Reduction Act 

of 1995 (PRA) (44 U.S.C. 3501, et seq.), 

Federal agencies must obtain approval 

from the Office of Management and 

Budget for each collection of 

information they conduct, sponsor, or 

require through regulations. The DOT 

has determined that this rule does not 

contain collection of information 

requirements for the purposes of the 

PRA. 

National Environmental Policy Act 

The agency has analyzed this action 

for the purpose of the National 

Environmental Policy Act of 1969 (42 

U.S.C. 4321) and has determined that 

this action does not have any effect on 

the quality of the environment. 

Regulation Identification Number 

A regulation identification number 

(RIN) is assigned to each regulatory 

action listed in the Unified Agenda of 

Federal Regulations. The Regulatory 

Information Service Center publishes 

the United Agenda in April and October 

of each year. The RIN contained in the 

heading of this document can be used 

to cross reference this action with the 

Unified Agenda. 

List of Subjects in 49 CFR Part 29 

Administrative practice and 

procedure, Government contracts, Grant 

programs, Loan programs, Reporting 

and recordkeeping requirements. 

Issued on: October 6, 2006. 

Maria Cino, 

Acting Secretary of Transportation. 

■ In consideration of the foregoing, the 

DOT proposes to amend, title 49, Code 

of Federal Regulations, part 29, as set 

forth below: 

PART 29—GOVERNMENTWIDE 

DEBARMENT AND SUSPENSION 

(NONPROCUREMENT) 

■ 1. The authority citation for part 29 

continues to read as follows: 

Authority: Sec. 2455, Pub. L. 103–355, 108 

Stat. 3327 31 U.S.C. 6101 note); E.O. 11738 

3 CFR, 173 Comp., p. 799); E.O. 12549 (3 

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

1989 Comp., p. 235). 

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62396 Federal Register / Vol. 71, No. 206 / Wednesday, October 25, 2006 / Rules and Regulations 

■ 2. In § 29.220, add paragraph (c) to 

read as follows: 

§ 29.220 Are any procurement 

transactions included as covered 

transactions? 

* * * * * 

(c) The contract is awarded by any 

contractor, subcontractor, supplier, 

consultant or its agent or representative 

in any transaction, regardless of tier, to 

be funded or provided by the DOT 

under a nonprocurement transaction 

that is expected to equal or exceed 

$25,000. [See optional lower tier 

coverage shown in the diagram in the 

appendix to this part.] 

§ 29.520 [Amended] 

■ 3. In § 29.520, in paragraph (d), 

remove the references: ‘‘United States 

Coast Guard [DOT–USCG]’’ and 

‘‘Research and Special Programs [DOT–

RSPA]’’ and insert the references 

‘‘Research and Innovative Technology 

Administration [RITA]’’ and ‘‘Pipeline 

and Hazardous Materials Safety 

Administration [DOT–PHMSA]’’ in their 

place, respectively. 

[FR Doc. 06–8657 Filed 10–24–06; 8:45 am] 

BILLING CODE 4910–9X–M 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 060216045–6045–01; I.D. 

101906D] 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Pacific Cod by 

Catcher Processor Vessels Using 

Hook-and-line Gear in the Bering Sea 

and Aleutian Islands Management Area 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS is prohibiting directed 

fishing for Pacific cod by catcher 

processor vessels using hook-and-line 

gear in the Bering Sea and Aleutian 

Islands management area (BSAI). This 

action is necessary to prevent exceeding 

the 2006 directed fishing allowance 

(DFA) of Pacific cod specified for 

catcher processor vessels using hookand-line gear in the BSAI. 

DATES: Effective 1200 hrs, Alaska local 

time (A.l.t.), October 21, 2006, until 

2400 hrs, A.l.t., December 31, 2006. 

FOR FURTHER INFORMATION CONTACT: 

Jennifer Hogan, 907–586–7228. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

BSAI according to the Fishery 

Management Plan for Groundfish of the 

Bering Sea and Aleutian Islands 

Management Area (FMP) prepared by 

the North Pacific Fishery Management 

Council under authority of the 

Magnuson-Stevens Fishery 

Conservation and Management Act. 

Regulations governing fishing by U.S. 

vessels in accordance with the FMP 

appear at subpart H of 50 CFR part 600 

and 50 CFR part 679. 

The 2006 Pacific cod DFA specified 

for catcher processor vessels using 

hook-and-line gear in the BSAI is 70,619 

metric tons as established by the 2006 

and 2007 final harvest specifications for 

groundfish in the BSAI (71 FR 10894, 

March 3, 2006) and the adjustment on 

March 14, 2006 (71 FR 13777, March 17, 

2006). 

In accordance with § 679.20(d)(1)(iii), 

the Administrator, Alaska Region, 

NMFS, has determined that the 2006 

Pacific cod DFA specified for catcher 

processor vessels using hook-and-line 

gear in the BSAI has been reached. 

Therefore, the Regional Administrator is 

prohibiting directed fishing for Pacific 

cod by catcher processor vessels using 

hook-and-line gear in the BSAI. 

After the effective date of this closure 

the maximum retainable amounts at 

§ 679.20(e) and (f) apply at any time 

during a trip. 

Classification 

This action responds to the best 

available information recently obtained 

from the fishery. The Assistant 

Administrator for Fisheries, NOAA 

(AA), finds good cause to waive the 

requirement to provide prior notice and 

opportunity for public comment 

pursuant to the authority set forth at 5 

U.S.C. 553(b)(B) as such requirement is 

impracticable and contrary to the public 

interest. This requirement is 

impracticable and contrary to the public 

interest as it would prevent NMFS from 

responding to the most recent fisheries 

data in a timely fashion and would 

delay the closure of Pacific cod by 

catcher processor vessels using hookand-line gear in the BSAI. NMFS was 

unable to publish a notice providing 

time for public comment because the 

most recent, relevant data only became 

available as of October 19, 2006. 

The AA also finds good cause to 

waive the 30–day delay in the effective 

date of this action under 5 U.S.C. 

553(d)(3). This finding is based upon 

the reasons provided above for waiver of 

prior notice and opportunity for public 

comment. 

This action is required by § 679.20 

and is exempt from review under 

Executive Order 12866. 

Authority: 16 U.S.C. 1801 et seq. 

Dated: October 19, 2006. 

Alan D. Risenhoover, 

Director, Office of Sustainable Fisheries, 

National Marine Fisheries Service. 

[FR Doc. 06–8873 Filed 10–20–06; 1:09 pm] 

BILLING CODE 3510–22–S 

mstockstill on PROD1PC61 with RULES