39854 Federal Register / Vol. 61, No. 148 / Wednesday, July 31, 1996 / Rules and Regulations

species is misbranded unless the

product name is appropriately qualified

or unless the statement of ingredients

indicates the species from which the

casings are derived.

FOR FURTHER INFORMATION CONTACT: Ms.

Cheryl Wade, Director, Food Labeling

Division, FSIS, West End Court

Building, Washington, DC; (202) 254–

2590.

SUPPLEMENTARY INFORMATION: Sausages

are prepared using single or multiple

species of meat or poultry. Some

sausages are made with non-edible

casings that must be removed before

eating. Others are made with edible

casings, such as those made from

cellulose or collagen. Still others are

made with natural casings, also referred

to as animal casings, which are prepared

from various sections of the viscera.

Some sausages prepared in natural

casings may have the species identified

in the product name or statement of

ingredients on the product label.

However, sausages may also be made

with natural casings derived from a

species that is not identified on the

label. For example, a combination beefand-lamb sausage may be made with a

pork casing.

The use of any particular type of

casing is commonly determined by the

price and availability of the casings and

the size and shape of the sausage

product. Natural casings are not

prepared from poultry because poultry

intestines are not the appropriate size

for sausages customarily consumed in

this country. More importantly, FSIS

has only recently determined poultry

intestines to be edible.

FSIS believes that consumers of

sausages made with natural casings

expect the casings to be derived from

the same species as the species

indicated on the product label, whether

in the product name or in the

ingredients statement. For example, the

natural casing of a sausage labeled ‘‘beef

sausage’’ should be derived from cattle.

Similarly, FSIS believes that consumers

of poultry sausage, e.g., chicken sausage,

expect the sausage to be made from

poultry and would not necessarily

expect the casing to be derived from a

red meat source.

Therefore, FSIS considers a sausage

made with natural casings derived from

a different species to be a misbranded

product, unless the species from which

the casings are derived is indicated in

the product name or listed in the

ingredients statement, or is in both

places on the product label.

Done, at Washington, D.C., on: July 23,

1996.

Michael R. Taylor,

Acting Under Secretary for Food Safety.

[FR Doc. 96–19387 Filed 7–30–96; 8:45 am]

BILLING CODE 3410–DM–P

DEPARTMENT OF ENERGY

10 CFR Parts 1035 and 1036 and 48

CFR Part 909

RIN 1991–AB24

Debarment and Suspension

(Procurement) and Governmentwide

Debarment and Suspension

(Nonprocurement) and

Governmentwide Requirements for

Drug-Free Workplace (Grants) and

Department of Energy Acquisition

Regulation

AGENCY: Department of Energy (DOE).

ACTION: Final rule.

SUMMARY: The Department of Energy

(DOE) today is publishing a final rule

which amends its regulations governing

debarment and suspension in

procurement and nonprocurement

activities. The rule establishes a

common fact-finding process in

procurement and nonprocurement cases

involving a genuine dispute over

material facts. The rule removes the

Department’s procurement debarment

and suspension regulations from part 10

of the Code of Federal Regulations (CFR)

and recodifies them in the Department

of Energy Acquisition Regulation

(DEAR), chapter 9 of title 48 of the Code

of Federal Regulations.

EFFECTIVE DATE: This rule is effective

August 30, 1996.

FOR FURTHER INFORMATION CONTACT: Mrs.

Cynthia Yee, Office of Clearance and

Support, Procurement and Assistance

Management, HR–52, U. S. Department

of Energy, 1000 Independence Avenue,

SW, Washington, DC 20585, 202–586–

1140.

SUPPLEMENTARY INFORMATION:

I. Background.

II. Public Comments.

III. Procedural Requirements.

A. Regulatory Review.

B. Review under the Regulatory Flexibility

Act.

C. Review Under the Paperwork Reduction

Act.

D. Review Under the National

Environmental Policy Act.

E. Review Under Executive Order 12612.

F. Review Under Executive Order 12988.

G. Review Under the Unfunded Mandates

Reform Act.

I. Background

The Department of Energy (DOE)

today is publishing a final rule which

removes 10 CFR Part 1035, Debarment

and Suspension (Procurement), and

recodifies the regulation at 48 CFR Part

909. In recodifying the procurement

debarment and suspension regulations,

DOE makes various changes to clarify

the provisions of procurement

debarment and suspension and to

ensure consistency between the Federal

Acquisition Regulation (FAR) and the

DEAR. See explanation of the changes

in the preamble to the Notice of

Proposed Rulemaking published for this

rule on February 2, 1996 (61 FR 3877).

Under the recodified regulations, the

Energy Board of Contract Appeals will

conduct fact-finding in suspensions or

proposed debarments in which the

debarring/suspending official

determines that material facts are in

dispute.

This rule also amends 10 CFR Part

1036, Governmentwide Debarment and

Suspension (Nonprocurement) and

Governmentwide Requirements for

Drug-Free Workplace (Grants), which

governs debarment and suspension with

regard to DOE nonprocurement and

grants programs. The changes made to

10 CFR Part 1036 are primarily

technical or procedural in nature. They

are explained in the preamble of the

Notice of Proposed Rulemaking (61 FR

3877–3878), with the exception of

changes to subparagraph (c)(1) of

section 1036.110 and subparagraph (a)

of section 1036.215, which were not in

the proposed rule. These subparagraphs

are being added because previous

changes to the common rule resulted in

them being inadvertently omitted. This

final rule reinstates the subparagraphs

and corrects references in those

reinstated subparagraphs. Section

1036.700 provides for fact-finding by

the Energy Board of Contract Appeals in

suspensions or proposed debarments in

which the debarring/suspending official

determines that material facts are in

dispute.

The Department of Energy

Consolidated List of Debarred,

Suspended, Ineligible and Voluntarily

Excluded Awardees (DOE List) has been

eliminated as unnecessary because the

General Services Administration

maintains, pursuant to Executive order

12549, a governmentwide list of parties

excluded from federal procurement and

nonprocurement programs.

Due to the extensive revisions to

DEAR, the complete text of DEAR 909.4

is published. However, only those

portions of Part 1036 that are affected by

the changes are published, rather than
Federal Register / Vol. 61, No. 148 / Wednesday, July 31, 1996 / Rules and Regulations 39855

publishing the complete text of the

common rule.

II. Public Comments

On February 2, 1996, DOE published

a Notice of Proposed Rulemaking and

invited public comment for a period of

60 days on these amendments to the

Department’s debarment and

suspension regulations (61 FR 3877). No

comments were received on the

proposed rule. Except for the technical

correction of sections 1036.110 and

1036.215, this final rule makes no

changes to the rule as proposed.

III. Procedural Requirements

A. Regulatory Review

Today’s final rule has been

determined not to be a ‘‘significant

regulatory action’’ under Executive

Order 12866, ‘‘Regulatory Planning and

Review,’’ (58 FR 51735, October 4,

1993). Nevertheless, a copy of the rule

was submitted informally to the Office

of Information and Regulatory Affairs

because it relates to the subject matter

of a Governmentwide common rule.

B. Review Under the Regulatory

Flexibility Act

This final rule was reviewed under

the Regulatory Flexibility Act of 1980,

Public Law 96–354, which requires

preparation of a regulatory flexibility

analysis for any rule which is likely to

have significant economic impact on a

substantial number of small entities.

Today’s rule revises procedural

requirements pertaining to suspension

and debarment of DOE contractors. It

contains no recordkeeping or

substantive regulatory requirements.

DOE certifies that this rule will not have

a signficant economic impact on a

substantial number of small entities,

and therefore, no regulatory flexibility

analysis has been prepared.

C. Review Under the Paperwork

Reduction Act

No new information collection or

recordkeeping requirements are

imposed by this rule. Accordingly, no

OMB clearance is required by the

Paperwork Reduction Act of 1980 (44

U.S.C. 3501 et seq.).

D. Review Under NEPA

DOE has determined that issuance of

this rule is not a major federal action

significantly affecting the quality of the

human environment within the meaning

of the National Environmental Policy

Act of 1969 (NEPA), 42 U.S.C. 4321 et

seq., and therefore that neither an

environmental assessment nor an

environmental impact statement is

required. Categorical exclusion A2 in

DOE’s regulations implementing NEPA,

appendix A of subpart D of 10 CFR Part

1021, applies to this rulemaking.

Categorical exclusion A2 encompasses

procedural and administrative matters

pertaining to contracts.

E. Review Under Executive Order 12612

Executive Order 12612, 52 FR 41685

(October 30, 1987), requires that

regulations, rules, legislation, and any

other policy actions be reviewed for any

substantial direct effects on States, on

the relationship between the national

Government and the States, and in the

distribution of power and responsibility

among various levels of Government. If

there are sufficient substantial direct

effects, then the Executive Order

requires preparation of a federalism

assessment to be used in all decisions

involved in promulgating and

implementing a policy action.

Today’s rule revises certain

procedural requirements pertaining to

suspension and debarment of DOE

contractors. DOE has determined that

none of the revisions will have a

substantial direct effect on the

institutional interests or traditional

functions of the States.

F. Review Under Executive Order 12988

Section 3 of Executive Order 12988

instructs each agency to adhere to

certain requirements in promulgating

new regulations and reviewing existing

regulations. These requirements, set

forth in sections 3(a) and 3(b), include

eliminating drafting errors and needless

ambiguity, drafting the regulations to

minimize litigation, providing clear and

certain legal standards for affected

conduct, and promoting simplification

and burden reduction. Agencies are also

instructed to make every reasonable

effort to ensure that the regulation:

specifies clearly any preemptive effect,

effect on existing Federal law or

regulation, and retroactive effect;

describes any administrative

proceedings to be available prior to

judicial review and any provisions for

the exhaustion of such administrative

proceedings; and defines key terms.

DOE has completed the required review

and determined that, to the extent

permitted by law, the final rule meets

the relevant standards of Executive

Order 12988.

G. Review Under the Unfunded

Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (the Act), enacted as

Pub. L. 104–4 on March 22, 1995,

requires each Federal agency, to the

extent permitted by law, to prepare a

written assessment of the effects of any

Federal mandate in a proposed or final

agency rule that may result in the

expenditure by State, local, and tribal

governments, in the aggregate, or by the

private sector, of $100 million or more

(adjusted annually for inflation) in any

one year. Section 204(a) of the Act, 2

U.S.C. 1534(a), requires the Federal

agency to develop an effective process

to permit timely input by elected

officers (or their designees) of State,

local, and tribal governments on a

proposed ‘‘significant intergovernmental

mandate.’’ Section 203 of the Act, which

supplements section 204(a), provides

that before establishing any regulatory

requirements that might significantly or

uniquely affect small governments, the

agency shall have developed a plan that,

among other things, provides for notice

to potentially affected small

governments, if any, and for a

meaningful and timely opportunity to

provide input in the development of

regulatory proposals. 2 U.S.C. 1533.

The final rule published today does

not contain any Federal mandate.

Therefore, the requirements of Title II of

the Unfunded Mandates Reform Act of

1995 do not apply.

List of Subjects

10 CFR Part 1035

Administrative practice and

procedure, Government procurement.

10 CFR Part 1036

Administrative practice and

procedure, Drug abuse, Grant programs,

Loan programs.

48 CFR Part 909

Government procurement.

Issued in Washington, DC, on June 7, 1996.

Richard H. Hopf,

Deputy Assistant Secretary for Procurement

and Assistance Management.

For the reasons set out in the

preamble, Title 10 Code of Federal

Regulations Parts 1035 and 1036 and

Chapter 9, Title 48 Code of Federal

Regulations are amended as set forth

below.

10 CFR PART 1035—DEBARMENT

AND SUSPENSION

(PROCUREMENT)—[REMOVED]

1. Under the authority of Section 644

of the DOE Organization Act, 42 U.S.C.

7254, Part 1035—Debarment and

Suspension (Procurement) is removed.
39856 Federal Register / Vol. 61, No. 148 / Wednesday, July 31, 1996 / Rules and Regulations

PART 1036—GOVERNMENTWIDE

DEBARMENT AND SUSPENSION

(NONPROCUREMENT) AND

GOVERNMENTWIDE REQUIREMENTS

FOR DRUG-FREE WORKPLACE

(GRANTS)

2. The authority citation continues to

read as follows:

Authority: E.O. 12689, E.O. 12549; Sec.

5151–5160 of the Drug-Free Workplace Act of

1988 (Pub. L. 100–690, Title V, Subtitle D; 42

U.S.C. 701 et seq.); Secs. 644 and 646, Pub.

L. 95–91, 91 Stat. 599 (42 U.S.C. 7254 and

7256); Pub. L. 97–258, 98 Stat. 1003–1005 (31

U.S.C.) 6301–6308.

Subpart A—General

§ 1036.105 Definitions. [Amended]

3. Section 1036.105 is amended by

revising the phrase ‘‘Director,

Procurement and Assistance

Management Directorate’’ to read

‘‘Deputy Assistant Secretary for

Procurement and Assistance

Management or designee’’ in the

definitions for ‘‘Debarring

Official’’(paragraph (3)) and

‘‘Suspending Official’’(paragraph (3));

and removing the definitions for

‘‘Director’’ and ‘‘DOE List.’’

4. Section 1036.110 is amended by

adding paragraphs (c) (1) and (2) to read

as follows:

§ 1036.110 Coverage.

* * * * *

(c) * * *

(1) Debarment and suspension of DOE

procurement contractors is covered by

48 CFR (DEAR) 909.4.

(2) Reserved.

Subpart B—Effect of Action

5. Section 1036.215 is amended by

adding paragraphs (a) and (b) to read as

follows:

§ 1036.215 Exception provision.

* * * * *

(a) The DOE authorized designee is

the Deputy Assistant Secretary for

Procurement and Assistance

Management or designee.

(b) Reserved.

Subpart C—Debarment

§ 1036.312 Notice of proposed debarment.

[Amended]

6. Section 1036.312 is amended by

removing paragraph (b)(1); by removing

paragraph (d)(1); by removing paragraph

(e)(1); in paragraph (f) by revising

‘‘Director’’ to read ‘‘debarring official;’’

and in paragraph (g) by revising ‘‘DOE’’

to read ‘‘GSA.’’

§ 1036.313 Opportunity to contest

proposed debarment. [Amended]

7. Section 1036.313 is amended in

paragraph (a)(1) by revising ‘‘Director’’

to read ‘‘debarring official’’ and

removing the citation ‘‘(See

§ 1036.600(c)).’’

§ 1036.314 Debarring official’s decision.

[Amended]

8. Section 1036.314 is amended by

removing paragraph (d)(1)(vi) and

redesignating paragraphs (d)(1) (vii) and

(viii) as (d)(1) (vi) and (vii).

§ 1036.315 Settlement and voluntary

exclusion. [Amended]

9. Section 1036.315 is amended by

removing paragraph (c).

Subpart D—Suspension

§ 1036.411 Notice of Suspension.

[Amended]

10. Section 1036.411 is amended by

removing paragraph (c)(1); by removing

paragraph (f)(1); in paragraph (h) by

revising ‘‘Director’’ to read ‘‘suspending

official’’ and in paragraph (j) by revising

‘‘DOE’’ to read ‘‘GSA.’’

§ 1036.412 Opportunity to contest

suspension. [Amended]

11. Section 1036.412 is amended by

removing paragraph (a)(1).

Subpart G—Additional DOE

Procedures for Debarment and

Suspension

12. Section 1036.700,

Decisionmaking, is revised to read as

follows:

§ 1036.700 Procedures.

(a) Decisionmaking process for

debarments. (1) In actions based upon a

conviction or civil judgment, and other

actions in which there is no genuine

dispute over material facts, the

debarring official shall make a decision

on the basis of all the information in the

administrative record, including any

submissions made by the awardee. If no

suspension is in effect, the decision

shall be made within 30 working days

after receipt of any information and

argument submitted by the awardee,

unless the debarring official extends this

period for good cause. The debarring

official shall consider information and

argument in opposition to the proposed

debarment including identification of

disputed material facts. If the

respondent fails to submit a timely

written response to a notice of proposed

debarment, the debarring official shall

notify the respondent in accordance

with 10 CFR 1036.312 that the awardee

is debarred.

(2) In actions not based upon a

conviction or civil judgment, if it is

found that the awardee’s submission in

opposition raises a genuine dispute over

facts material to the proposed

debarment, at the request of the

awardee, the debarring official shall

refer the matter to the Energy Board of

Contract Appeals for a fact-finding

conference, in accordance with rules

consistent with this section

promulgated by the Energy Board of

Contract Appeals. The Energy Board of

Contract Appeals shall report to the

Debarring Official findings of fact, not

conclusions of law. The findings shall

resolve any disputes over material facts

based on a preponderance of evidence.

(b) Decisionmaking process for

suspensions. (1) In actions based on an

indictment, the suspending official shall

make a decision based upon the

administrative record, which shall

include submissions made by the

awardee.

(2) In actions not based on an

indictment, if it is found that the

awardee’s submission in opposition

raises a genuine dispute over facts

material to the suspension and if no

determination has been made, on the

basis of Department of Justice advice,

that substantial interest of the

Government in pending or

contemplated legal proceedings based

on the same facts as the suspension

would be prejudiced, the suspending

official shall, at the request of the

awardee, refer the matter to the Energy

Board of Contract Appeals for a factfinding conference, in accordance with

rules promulgated by the Energy Board

of Contract Appeals. The Energy Board

of Contract Appeals shall report to the

Suspending Official findings of fact, not

conclusions of law. The findings shall

resolve any disputes over material facts

based on adequate evidence.

(c) Meeting. Upon receipt of a timely

request therefore from the respondent,

the debarring/suspending official shall

schedule a meeting between the

debarring/suspending official and the

respondent, to be held no later than 30

days from the date the request is

received. The debarring/suspending

official may postpone the date of the

meeting if the respondent requests a

postponement in writing. At the

meeting, the respondent, appearing

personally or through an attorney or

other authorized representative, may

informally present and explain evidence

that causes for debarment or suspension

do not exist, evidence of any mitigating

factors, and arguments concerning the

imposition, scope, duration, or effects of

a proposed debarment or suspension.
Federal Register / Vol. 61, No. 148 / Wednesday, July 31, 1996 / Rules and Regulations 39857

(d) Fact-finding conference. The

purpose of a fact-finding conference

under this section is to provide the

respondent an opportunity to dispute

material facts and to provide the

debarring/suspending official with

findings of fact based, as applicable, on

adequate evidence or on a

preponderance of the evidence. If the

debarring/suspending official

determines that a written response or a

presentation at the meeting under

paragraph (c) of this section puts

material facts in dispute, the debarring/

suspending official shall refer the matter

to the Energy Board of Contract Appeals

for fact-finding. The fact-finding

conference shall be conducted in

accordance with rules promulgated by

the Energy Board of Contract Appeals.

The Energy Board of Contract Appeals

shall report to the Debarring Official

findings of fact, but not conclusions of

law. The findings shall resolve any

disputes over material facts based on a

preponderance of evidence if the case

involves a proposal to debar, or on

adequate evidence if the case involves a

suspension. Since convictions or civil

judgments generally establish the cause

for debarment by a preponderance of the

evidence, there usually is no genuine

dispute over a material fact that

warrants a fact-finding conference for

those proposed debarments based on

convictions or civil judgments.

13. Section 1036.705 is amended in

the introductory paragraph by revising

‘‘Director’’ to read ‘‘debarring/

suspending official’’ in the first and

second sentences, revising reference to

‘‘1036.700(b)(1) or (b)(2)’’ to read

‘‘1036.700(c)’’ and by revising paragraph

(b) to read as follows:

§ 1036.705 Coordination with Department

of Justice.

* * * * *

(b) Deny additional proceedings and

base the decision on all information in

the administrative recording, including

any submissions made by the

respondent.

§ 1036.710 DOE consolidated list of

debarred, suspended, ineligible, and

voluntarily excluded awardees. [Removed]

14. Section 1036.710, DOE

consolidated list of debarred,

suspended, ineligible, and voluntarily

excluded awardees, is removed.

§ 1036.715 Effects of being listed on the

GSA list. [Amended]

15. Section 1036.715 is amended by

revising the section heading to read

‘‘Effects of being listed on the GSA list’’

and, in the introductory paragraph, by

revising ‘‘Director’’ to read ‘‘Deputy

Assistant Secretary for Procurement and

Assistance Management or designee’’

and by revising ‘‘DOE List’’ to read

‘‘GSA List’’ wherever it appears in

paragraphs (a) through (g).

48 CFR PART 909—CONTRACTOR

QUALIFICATIONS

16. The authority citation for Part 909

continues to read as follows:

Authority: 42 U.S.C. 7254; 40 U.S.C.

486(c).

17. Subpart 909.4 is revised to read as

follows:

Subpart 909.4—Debarment,

Suspension, and Ineligibility

Sec.

909.400 Scope of subpart.

909.401 Applicability.

909.403 Definitions.

909.405 Effect of listing.

909.406 Debarment.

909.406–2 Causes for debarment.

909.406–3 Procedures.

909.406–6 Requests for reconsideration of

debarment.

909.407–2 Causes for suspension.

909.407–3 Procedures.

Subpart 909.4—Debarment,

Suspension, and Ineligibility

§ 909.400 Scope of subpart.

This subpart—

(a) Prescribes policies and procedures

governing the debarment and

suspension of organizations and

individuals from participating in

Department of Energy (DOE) contracts,

procurement sales contracts, and real

property purchase agreements, and from

participating in DOE approved

subcontracts and subagreements.

(b) Sets forth the causes, procedures,

and requirements for determining the

scope, duration, and effect of DOE

debarment and suspension actions; and

(c) Implements and supplements FAR

subpart 9.4 with respect to the exclusion

of organizations and individuals from

procurement contracting and

Government approved subcontracting.

§ 909.401 Applicability.

The provisions of this subpart apply

to all procurement debarment and

suspension actions initiated by DOE on

or after the effective date of this subpart.

Nonprocurement debarment and

suspension rules are codified in 10 CFR

part 1036.

§ 909.403 Definitions.

In addition to the definitions set forth

at FAR 9.403, the following definitions

apply to this subpart:

Debarring Official. The DOE

Debarring Official is the Deputy

Assistant Secretary for Procurement and

Assistance Management, or designee.

DOE means the Department of Energy,

including the Federal Energy Regulatory

Commission.

Suspending Official. The DOE

Suspending Official is the Deputy

Assistant Secretary for Procurement and

Assistance Management, or designee.

§ 909.405 Effect of listing. (DOE

coverage—paragraph (e), (b), (g) and (h))

(e) The Department of Energy may not

solicit offers from, award contracts to or

consent to subcontract with contractors

debarred, suspended or proposed for

debarment unless the Deputy Assistant

Secretary for Procurement and

Assistance Management makes a written

determination justifying that there is a

compelling reason for such action in

accordance with FAR 9.405(a).

(f) DOE may disapprove or not

consent to the selection (by a contractor)

of an individual to serve as a principal

investigator, as a project manager, in a

position of responsibility for the

administration of Federal funds, or in

another key personnel position, if the

individual is on the GSA List.

(g) DOE shall not conduct business

with an agent or representative of a

contractor if the agent’s or

representative’s name appears on the

GSA List.

(h) DOE shall review the GSA List

before conducting a preaward survey or

soliciting proposals, awarding contracts,

renewing or otherwise extending the

duration of existing contracts, or

approving or consenting to the award,

extension, or renewal of subcontracts.

§ 909.406 Debarment.

§ 909.406–2 Causes for debarment. (DOE

coverage—paragraphs (c) and (d))

(c) The Debarring Official may debar

a contractor for any other cause of so

serious or compelling a nature that it

affects the present responsibility of a

DOE contractor. Such cause may

include but is not limited to:

(1) Commission of fraud or a criminal

offense in connection with obtaining,

attempting to obtain, or performing a

private contract or subcontract; and

(2) Inexcusable, prolonged, or

repeated failure to pay a debt (including

disallowed costs and overpayments)

owed to DOE, provided the contractor

has been notified of the determination

of indebtedness, and further provided

that the time for initiating any

administrative or legal action to oppose

or appeal the determination of

indebtedness has expired or that such

action, if initiated, has been concluded.

(d) The Debarring Official may debar

a contractor:

(1) On the basis that an individual or

organization is an affiliate of a debarred
39858 Federal Register / Vol. 61, No. 148 / Wednesday, July 31, 1996 / Rules and Regulations

contractor, subject to the requirements

of FAR 9.406–1(b) and 9.406–3(c);

(2) For failure to observe the material

provisions of a voluntary exclusion (see

10 CFR 1036.315 for discussion of

voluntary exclusion).

§ 909.406–3 Procedures. (DOE coverage—

paragraphs (a), (b) and (d))

(a) Investigation and referral. (1)

Offices responsible for the award and

administration of contracts are

responsible for reporting to both the

Deputy Assistant Secretary for

Procurement and Assistance

Management and the DOE Inspector

General information about possible

fraud, waste, abuse, or other

wrongdoing which may constitute or

contribute to a cause(s) for debarment

under this subpart. Circumstances that

involve possible criminal or fraudulent

activities must be reported to the Office

of the Inspector General in accordance

with 10 CFR Part 1010, Conduct of

Employees, § 1010.217(b), Cooperation

with the Inspector General.

(2) At a minimum, referrals for

consideration of debarment action

should be in writing and should include

the following information:

(i) The recommendation and rationale

for the referral;

(ii) A statement of facts;

(iii) Copies of documentary evidence

and a list of all witnesses, including

addresses and telephone numbers,

together with a statement concerning

their availability to appear at a factfinding proceeding and the subject

matter of their testimony;

(iv) A list of parties including the

contractor, principals, and affiliates

(including last known home and

business addresses, zip codes and

DUNS Number);

(v) DOE’s acquisition history with the

contractor, including recent experience

under contracts and copies of pertinent

contracts;

(vi) A list of any known active or

potential criminal investigations,

criminal or civil proceedings, or

administrative claims before the Board

of Contract Appeals; and

(vii) A statement regarding the impact

of the debarment action on DOE

programs. This statement is not required

for referrals by the Inspector General.

(3) Referrals may be returned to the

originator for further information or

development.

(b) Decisionmaking process.

Contractors proposed for debarment

shall be afforded an opportunity to

submit information and argument in

opposition to the proposed debarment.

(1) In actions based upon a conviction

or civil judgment, or in which there is

no genuine dispute over material facts,

the Debarring Official shall make a

decision on the basis of all the

information in the administrative

record, including any submissions made

by the contractor. If the respondent fails

to submit a timely written response to

a notice of proposed debarment, the

Debarring Official shall notify the

respondent in accordance with FAR

9.406–3(e) that the contractor is

debarred.

(2) In actions not based upon a

conviction or civil judgment, the

contractor may request a fact-finding

hearing to resolve a genuine dispute of

material fact. In its request, the

contractor must identify the material

facts in dispute and the basis for

disputing the facts. If the Debarring

Official determines that there is a

genuine dispute of material fact, the

Debarring Official shall refer the matter

to the Energy Board of Contract Appeals

for a fact-finding conference.

(3) Meeting. Upon receipt of a timely

request therefor from a contractor

proposed for debarment, the Debarring

Official shall schedule a meeting

between the Debarring Official and the

respondent, to be held no later than 30

days from the date the request is

received. The Debarring Official may

postpone the date of the meeting if the

respondent requests a postponement in

writing. At the meeting, the respondent,

appearing personally or through an

attorney or other authorized

representative, may present and explain

evidence that causes for debarment do

not exist, evidence of any mitigating

factors, and arguments concerning the

imposition, scope, or duration of a

proposed debarment or debarment.

(4) Fact-finding conference. The

purpose of a fact-finding conference

under this section is to provide the

respondent an opportunity to dispute

material facts through the submission of

oral and written evidence; resolve facts

in dispute; and provide the Debarring

Official with findings of fact based, as

applicable, on adequate evidence or on

a preponderance of the evidence. The

fact-finding conference shall be

conducted in accordance with rules

consistent with FAR 9.406–3(b)

promulgated by the Energy Board of

Contract Appeals. The Energy Board of

Contract Appeals will notify the affected

parties of the schedule for the hearing.

The Energy Board of Contract Appeals

shall deliver written findings of fact to

the Debarring Official (together with a

transcription of the proceeding, if made)

within a certain time period after the

hearing record closes, as specified in the

Energy Board of Contract Appeals Rules.

The findings shall resolve any disputes

over material facts based upon a

preponderance of the evidence, if the

case involves a proposal to debar, or on

adequate evidence, if the case involves

a suspension. Since convictions or civil

judgments generally establish the cause

for debarment by a preponderance of the

evidence, there usually is no genuine

dispute over a material fact that would

warrant a fact-finding conference for

those proposed debarments based on

convictions or civil judgments.

(d) Debarring Official’s decision. (4)

The Debarring Official’s final decision

shall be based on the administrative

record. In those actions where

additional proceedings are necessary as

to disputed material facts, written

findings of fact shall be prepared and

included in the final decision. In those

cases where the contractor has

requested and received a fact-finding

conference, the written findings of fact

shall be those findings prepared by the

Energy Board of Contract Appeals.

Findings of fact shall be final and

conclusive unless within 15 days of

receipt of the findings, the Department

or the respondent requests

reconsideration, as provided in the

Board’s Rules, or unless set aside by a

court of competent jurisdiction. The

Energy Board of Contract Appeals shall

be provided a copy of the Debarring

Official’s final decision.

909.406–6 Requests for reconsideration of

debarment.

(a) At any time during a period of

debarment, a respondent may submit to

the Debarring or Suspending Official a

written request for reconsideration of

the scope, duration, or effects of the

suspension/debarment action because of

new information or changed

circumstances, as discussed at FAR

9.406–4(c).

(b) In reviewing a request for

reconsideration, the Debarring or

Suspending Official may, in his or her

discretion, utilize any of the procedures

(meeting and fact-finding) set forth in 48

CFR (DEAR) 909.406–3 and 909.407–3.

The Debarring or Suspending Official’s

final disposition of the reconsideration

request shall be in writing and shall set

forth the reasons why the request has

been granted or denied. A notice

transmitting a copy of the disposition of

the request for reconsideration shall be

sent to the respondent and, if a factfinding conference under 48 CFR

(DEAR) 909.406–3(b)(4) is pending (as

in the case of a request for

reconsideration of a suspension, where

the proposed debarment is the subject of

a fact-finding conference), a copy of the

disposition shall be transmitted to the

Energy Board of Contract Appeals.
Federal Register / Vol. 61, No. 148 / Wednesday, July 31, 1996 / Rules and Regulations 39859

909.407–2 Causes for suspension. (DOE

coverage—paragraph (d))

(d) The Suspending Official may

suspend an organization or individual:

(1) Indicted for or suspected, upon

adequate evidence, of the causes

described in 48 CFR (DEAR) 909.406–

2(c)(1).

(2) On the basis of the causes set forth

in 48 CFR (DEAR) 909.406–2(d)(2).

(3) On the basis that an organization

or individual is an affiliate of a

suspended or debarred contractor.

909.407–3 Procedures. (DOE coverage—

paragraphs (b) and (c))

(b) Decisionmaking process.

(1) In actions based on an indictment,

the Suspending Official shall make a

decision based upon the administrative

record, which shall include submissions

made by the contractor in accordance

with 48 CFR (DEAR) 909.406–3(b)(1)

and 909.406–3(b)(3).

(2) For actions not based on an

indictment, the procedures in 48 CFR

(DEAR) 909.406–3(b)(2) and FAR 9.407–

3(b)(2) apply.

(3) Coordination with Department of

Justice. Whenever a meeting or factfinding conference is requested, the

Suspending Official’s legal

representative shall obtain the advice of

appropriate Department of Justice

officials concerning the impact

disclosure of evidence at the meeting or

fact-finding conference could have on

any pending civil or criminal

investigation or legal proceeding. If such

Department of Justice official requests in

writing that evidence needed to

establish the existence of a cause for

suspension not be disclosed to the

respondent, the Suspending Official

shall:

(i) Decline to rely on such evidence

and withdraw (without prejudice) the

suspension or proposed debarment until

such time as disclosure of the evidence

is authorized; or

(ii) Deny the request for a meeting or

fact-finding and base the suspension

decision solely upon the information in

the administrative record, including any

submission made by the respondent.

(e) Notice of suspending official’s

decision. In actions in which additional

proceedings have been held, following

such proceedings, the Suspending

Official shall notify respondent, as

applicable, in accordance with

paragraphs (e)(1) or (e)(2) of this section.

(1) Upon deciding to sustain a

suspension, the Suspending Official

shall promptly send each affected

respondent a notice containing the

following information:

(i) A reference to the notice of

suspension, the meeting and the factfinding conference;

(ii) The Suspending Official’s findings

of fact and conclusions of law;

(iii) The reasons for sustaining a

suspension;

(iv) A reference to the Suspending

Official’s waiver authority under 48 CFR

(DEAR) 909.405;

(v) A statement that the suspension is

effective throughout the Executive

Branch as provided in FAR 9.407–1(d);

(vi) Modifications, if any, of the initial

terms of the suspension;

(vii) A statement that a copy of the

suspension notice was sent to GSA and

that the respondent’s name and address

will be added to the GSA List; and

(viii) If less than an entire

organization is suspended, specification

of the organizational element(s) or

individual(s) included within the scope

of the suspension.

(2) If the Suspending Official decides

to terminate a suspension, the

Suspending Official shall promptly

send, by certified mail, return receipt

requested, each affected respondent a

copy of the final decision required

under this section.

[FR Doc. 96–16015 Filed 7–30–96; 8:45 am]

BILLING CODE 6450–01–P

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 121

[Docket No. 28072; Amendment No. 121–

258]

RIN 2120–AF29

Advanced Simulation Plan Revisions

AGENCY: Federal Aviation

Administration (FAA), DOT.

ACTION: Final rule; correcting

amendments.

SUMMARY: These correcting amendments

clarify a final rule published Monday,

June 17, 1996 (61 FR 30726). That final

rule revised the Advanced Simulation

Plan to update terminology used to

describe simulators, to eliminate the

requirement that the minimum of 1 year

of employment as an instructor or check

airman be with the operator of the

simulator, and to authorize the use of

Level C simulators for initial and

upgrade training and checking for

second-in-command duties.

EFFECTIVE DATE: July 31, 1996.

FOR FURTHER INFORMATION CONTACT:

Mr. Gary E. Davis, Telephone: (202)

267–3747.

SUPPLEMENTARY INFORMATION:

Need for Correction

As published, the final rule did not

modify the title or remove references to

obsolete ‘‘phrases’’ of simulation

contained in the introductory text of

Appendix H to 14 CFR part 121,

‘‘Advanced Simulation Plan.’’

Therefore, the June 17, 1996, final rule

may prove to be misleading and is in

need of correction.

List of Subjects in 14 CFR Part 121

Air carriers, Aircraft, Federal Aviation

Administration.

Accordingly, 14 CFR part 121 is

corrected by making the following

correcting amendments:

PART 121—OPERATING

REQUIREMENTS: DOMESTIC, FLAG,

AND SUPPLEMENTAL OPERATIONS

1. The authority citation for part 121

continues to read as follows:

Authority: 49 U.S.C. 106(g), 40113, 40119,

44101, 44701–44702, 44705, 44709–44711,

44713, 44716–44717, 44722, 44901, 44903–

44904, 44912, 46105.

Appendix H to Part 121—[Corrected]

2. The heading and the introductory

text of Appendix H are revised to read

as follows:

Appendix H to Part 121—Advanced

Simulation

This appendix provides guidelines and a

means for achieving flightcrew training in

advanced airplane simulators. This appendix

describes the simulator and visual system

requirements which must be achieved to

obtain approval of certain types of training in

the simulator. The requirements in this

appendix are in addition to the simulator

approval requirements in § 121.407. Each

simulator which is used under this appendix

must be approved as a Level B, C, or D

simulator, as appropriate.

To obtain FAA approval of the simulator

for a specific level, the following must be

demonstrated to the satisfaction of the

Administrator:

1. Documented proof of compliance with

the appropriate simulator, visual system, and

additional training requirements of this

appendix for the level for which approval is

requested.

2. An evaluation of the simulator to ensure

that its ground, flight, and landing

performance matches the type of airplane

simulated.

3. An evaluation of the appropriate

simulator and visual system requirements of

the level for which approval is requested.

* * * * *