[Federal Register Volume 72, Number 40 (Thursday, March 1, 2007)]
[Rules and Regulations]
[Pages 9235-9237]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-3548]


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NATIONAL FOUNDATION ON THE ARTS AND THE HUMANITIES

2 CFR Part 3369

45 CFR Part 1169

RIN 3136-AA29


Office of the General Counsel; National Endowment for the 
Humanities Implementation of OMB Guidance on Nonprocurement Debarment 
and Suspension

AGENCY: National Endowment for the Humanities.

ACTION: Direct final rule.

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SUMMARY: The National Endowment for the Humanities (NEH) implements 
Office of Management and Budget (OMB) guidance on nonprocurement 
suspension and debarment, issued on August 31, 2005 [70 FR 51863], by 
adopting the guidelines in a new part in title 2 of the CFR, the 
Government-wide title recently established for OMB guidance on grants 
and agreements, and removing 45 CFR part 1169, the part containing the 
NEH implementation of the government-wide common rule on nonprocurement 
debarment and suspension. This regulatory action would make no 
substantive change in NEH policy or procedures for nonprocurement 
debarment and suspension.

DATES: The effective date for this final rule is April 2, 2007.

FOR FURTHER INFORMATION CONTACT: National Endowment for the Humanities, 
ATTN: Office of the General Counsel, 1100 Pennsylvania Avenue, NW., 
Room 529, Washington, DC 20506; or Heather Gottry, (202) 606-8322. 
Hearing-impaired individuals are advised that information on this 
matter may be obtained by contacting the Endowment's TDD terminal on 
(202) 606-8282.

SUPPLEMENTARY INFORMATION: This final rule implements the OMB guidance 
and does not make any changes in current policies and procedures. NEH 
is not soliciting public comment on this rule and is instead issuing 
this rule as a direct final rule. Under 5 U.S.C. 553(b)(3)(A) agencies 
are not required to undergo notice and comment procedure for 
``interpretative rules, general statements of policy, or rules of 
agency organization, procedure, or practice.'' Because this rule adopts 
OMB's published guidelines, which followed notice and comment 
procedures, and collocates NEH's specific nonprocurement suspension and 
debarment rules to title 2 of the CFR, we

[[Page 9236]]

believe that it falls under the exception cited above.

Executive Order 12866

    This rule is not significant because the replacement of the common 
rule with OMB guidance and a brief NEH adopting regulation does not 
make any changes in current policies and procedures.

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 (Sec. 202, Pub. L. 104-4)

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

    This regulatory action will 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.

List of Subjects in 2 CFR Part 3369

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

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Accordingly, under the authority of 20 U.S.C. 959(a)(1), NEH amends 
title 2, subtitle B, and title 45, chapter 1169, of the Code of Federal 
Regulations as follows:

Title 2--Grants and Agreements

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1. Add Chapter 33 to Subtitle B to read as follows:

CHAPTER 33--NATIONAL ENDOWMENT FOR THE HUMANITIES

PART 3369--NONPROCUREMENT DEBARMENT AND SUSPENSION

Sec.
3369.10 What does this part do?
3369.20 Does this part apply to me?
3369.30 What policies and procedures must I follow?
Subpart A--General
3369.137 Who in the NEH may grant an exception to let an excluded 
person participate in a covered transaction?
Subpart B--Covered Transactions
3369.220 What contracts and subcontracts, in addition to those 
listed in 2 CFR 180.220, are covered transactions?
Subpart C--Responsibilities of Participants Regarding Transactions
3369.332 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
3369.437 What method do I use to communicate to a participant the 
requirements described in the OMB guidance at 2 CFR 180.435?
Subpart E-I--[Reserved]

    Authority: 20 U.S.C. 959(a)(1); 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.


Sec.  3369.10  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 National Endowment for the Humanities (NEH) policies and 
procedures for nonprocurement debarment and suspension. It thereby 
gives regulatory effect for the NEH 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).


Sec.  3369.20  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).
    (b) Respondent in a NEH suspension or debarment action.
    (c) NEH debarment or suspension official;
    (d) NEH grants officer, agreements officer, or other official 
authorized to enter into any type of nonprocurement transaction that is 
a covered transaction;


Sec.  3369.30  What policies and procedures must I follow?

    The NEH 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.  3369.220). For 
any section of OMB guidance in Subparts A through I of 2 CFR 180 that 
has no corresponding section in this part, NEH policies and procedures 
are those in the OMB guidance.

Subpart A--General


Sec.  3369.137  Who in the NEH may grant an exception to let an 
excluded person participate in a covered transaction?

    The NEH Chairman 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.  3369.220  What contracts and subcontracts, in addition to those 
listed in 2 CFR 180.220, are covered transactions?

    Although the OMB guidance at 2 CFR 180.220(c) allows a Federal 
agency to do so (also see optional lower tier coverage in the figure in 
the Appendix to 2 CFR part 180), NEH does not extend coverage of 
nonprocurement suspension and debarment requirements beyond first-tier 
procurement contracts under a covered nonprocurement transaction.

Subpart C--Responsibilities of Participants Regarding Transactions


Sec.  3369.332  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


Sec.  3369.437  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

[[Page 9237]]

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.

Subpart E-I--[Reserved]

Title 45--Public Welfare

CHAPTER XI--NATIONAL ENDOWMENT FOR THE HUMANITIES

 PART 1169--[REMOVED]

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2. Under 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) part 1169 is removed.

Heather Gottry,
Acting General Counsel.
[FR Doc. E7-3548 Filed 2-28-07; 8:45 am]
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