This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

34495 

Vol. 74, No. 135 

Thursday, July 16, 2009 

DEPARTMENT OF HOMELAND 

SECURITY 

2 CFR Part 3000 

44 CFR Part 17 

[Docket No. DHS–2007–0006] 

RIN 1601–AA46 

Department of Homeland Security 

Implementation of OMB Guidance on 

Nonprocurement Debarment and 

Suspension 

AGENCY: Department of Homeland 

Security (DHS). 

ACTION: Interim final rule with request 

for comments. 

SUMMARY: The Department of Homeland 

Security (DHS) is issuing this interim 

final rule to establish a new part 3000 

on nonprocurement debarment and 

suspension in Title 2 of the Code of 

Federal Regulations (CFR). This new 

part is the Department’s implementation 

of the Office of Management and 

Budget’s (OMB) guidance on 

nonprocurement debarment and 

suspension. This rulemaking is 

consistent with OMB’s initiative to 

streamline and consolidate Federal 

regulations, and brings all DHS 

components under a DHS-wide 

nonprocurement debarment and 

suspension system. 

DATES: This interim final rule is 

effective August 17, 2009. Comments 

and related material must be received 

on or before August 17, 2009. 

ADDRESSES: You may submit comments, 

identified by the docket number to this 

rulemaking, by any of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail: Van Pace, Department of 

Homeland Security, 245 Murray Lane, 

SW., Bldg. 410—Room 3514–11, 

Washington, DC 20528–0001. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this rule, contact 

Van Pace, Office of Grant Policy and 

Oversight, Department of Homeland 

Security, at (202) 447–5269. 

SUPPLEMENTARY INFORMATION: 

I. Public Participation and Request for 

Comments 

The Department of Homeland 

Security (DHS) encourages interested 

persons to participate in this rulemaking 

by submitting comments and related 

materials. All comments received will 

be posted, without change, to http:// 

www.regulations.gov and will include 

any personal information you have 

provided. 

A. Submitting Comments 

If you submit a comment, please 

include the docket number for this 

rulemaking (DHS–2007–0006), indicate 

the specific section of this document to 

which each comment applies, and give 

the reason for each comment. We 

recommend that you include your name 

and a mailing address, an e-mail 

address, or a phone number in the body 

of your document so that we can contact 

you if we have questions regarding your 

submission. You may submit your 

comments and material by electronic 

means or mail at the address under 

ADDRESSES; but please submit your 

comments and material by only one 

means. If you submit them by mail or 

delivery, submit them in an unbound 

format, no larger than 81⁄2 by 11 inches, 

suitable for copying and electronic 

filing. We will consider all comments 

and material received during the 

comment period. We may change this 

rule in view of them. 

B. Viewing Comments and Documents 

To view comments, as well as 

documents mentioned in this preamble 

as being available in the docket, go to 

http://www.regulations.gov at any time. 

Enter the docket number for this 

rulemaking (DHS–2007–0006) in the 

Search box, and click ‘‘Go >>.’’ 

Individuals without Internet access can 

make alternate arrangements for viewing 

comments and documents related to this 

rulemaking by contacting DHS at the 

FOR FURTHER INFORMATION CONTACT

information above. 

C. Public Meeting 

We do not now plan to hold a public 

meeting. But you may submit a request 

for one explaining why one would be 

beneficial. If we determine that one 

would aid this rulemaking, we will hold 

one at a time and place announced by 

a later notice in the Federal Register. 

II. Interim Final Rule 

DHS is issuing this interim final rule 

without prior notice and opportunity to 

comment pursuant to authority under 

section 4(a) of the Administrative 

Procedure Act (APA) (5 U.S.C. 553(b)). 

This provision authorizes an agency to 

issue a rule without prior notice and 

opportunity to comment when the 

agency for good cause finds that those 

procedures are ‘‘impracticable, 

unnecessary, or contrary to the public 

interest.’’ Under 5 U.S.C. 553(b)(B), DHS 

finds that good cause exists for not 

publishing a notice of proposed 

rulemaking (NPRM) with respect to this 

rule. 

As described below in the 

Background and Purpose section, the 

Office of Management and Budget 

(OMB) has already conducted an 

extensive notice and comment process 

in the development of Federal 

Governmentwide final guidance on 

nonprocurement debarment and 

suspension, which DHS adopts without 

substantive change in this rulemaking. 

To conduct an additional notice and 

comment process would be 

unnecessary, redundant, wasteful of 

Federal resources, and cause needless 

delay of the regulatory streamlining 

initiative of which this rulemaking is a 

part. 

III. Background and Purpose 

Executive Order 12549, entitled 

Debarment and Suspension, which was 

signed on February 18, 1986 (3 CFR, 

1986 Comp., p. 189, 51 FR 6370), 

provided that debarment or suspension 

of a participant in a program or activity 

involving Federal financial and 

nonfinancial assistance and benefits by 

one agency shall have Governmentwide 

effect. Executive Order 12549, section 

1(a). The Executive Order did not cover 

procurement programs and activities, 

direct Federal statutory entitlements or 

mandatory awards, direct awards to 

foreign governments or public 

international organizations, benefits to 

an individual as a personal entitlement, 


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34496 Federal Register / Vol. 74, No. 135 / Thursday, July 16, 2009 / Rules and Regulations 

or Federal employment. Executive 

Order 12549, section 1(c). Section 6 of 

the Executive Order authorized OMB to 

issue guidelines to Executive 

departments and agencies that govern 

which programs 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. 

On February 21, 1986, OMB 

published proposed guidelines 

regarding the subjects in section 6 of 

Executive Order 12549 (51 FR 6370). 

The guidelines included draft 

regulations as a model to facilitate their 

use by the executive agencies when 

issuing the regulations required under 

section 3 of Executive Order 12549. 

After considering 60 comments, OMB 

issued guidelines pursuant to Executive 

Order 12549, section 6, on May 29, 1987 

(52 FR 20360). On May 26, 1988, 28 

Federal agencies chose to comply with 

section 3 of the Executive Order by 

finalizing a common rule, and OMB 

revised its guidance to conform to the 

agencies’ common rule. See 53 FR 

19161. OMB has subsequently revised 

its guidance several times to conform it 

to Federal agencies’ updates of the 

common rule. 

On May 11, 2004, OMB established 

Title 2 of the CFR for grants and other 

financial assistance and 

nonprocurement agreements (69 FR 

26276). Title 2 consists of two subtitles: 

Subtitle A, entitled Governmentwide 

Guidance for Grants and Agreements, 

contains OMB policy guidance to 

Federal agencies on grants and 

agreements; and Subtitle B, entitled 

Federal Agency Regulations for Grants 

and Agreements, contains Federal 

agencies’ regulations implementing the 

OMB guidance in subtitle A. 

Subtitle B of title 2 contains agency 

regulatory language that adopts the 

guidance and removes the common rule 

from its own title of the CFR (69 FR 

26277). Thus, the full text of the 

Governmentwide policies will appear 

only once, in the OMB guidelines, and 

each agency’s regulations will adopt 

those guidance documents identifying 

any agency-specific additions, 

exceptions or clarifications without 

repeating the full text. (69 FR 26277). 

On August 31, 2005, OMB published 

policy guidance in 2 CFR subtitle A for 

Governmentwide nonprocurement 

debarment and suspension (70 FR 

51862) to conform to the revised 

common rule adopted by 33 Federal 

agencies on November 26, 2003 (68 FR 

66534). For the first time, OMB also 

published the guidance in 2 CFR part 

180 ‘‘in a form suitable for agency 

adoption,’’ and explained that previous 

guidance ‘‘was not published anywhere 

[other than in the Federal Register], in 

full text * * *.’’ (70 FR 51864). As part 

of this new approach, OMB required 

each Federal agency to: 

(1) Establish its chapter in Subtitle B of 2 

CFR, consistent with the structure 

established for that title; (2) issue in that 

chapter of 2 CFR its brief rule adopting the 

OMB guidance and stating any additions, 

clarifications, or exceptions to the policies 

and procedures contained in the guidance; 

and (3) remove the November 2003 common 

rule from its own CFR title. 

(70 FR 51865). On November 15, 2006, 

OMB published a final rule, revising its 

Governmentwide guidance with 

changes suggested by the Interagency 

Suspension and Debarment Committee 

(71 FR 66431). 

IV. Discussion 

In accordance with OMB’s direction 

in the August 31, 2005 guidance (70 FR 

51865), DHS is issuing this rule to adopt 

and implement the final guidance in 2 

CFR part 180. This regulatory action 

implements OMB’s initiative to 

streamline and consolidate all Federal 

regulations on nonprocurement 

debarment and suspension into one part 

of the CFR. It also provides a common 

rule applicable to all DHS components. 

Pursuant to the same OMB direction, 

DHS is also removing subparts A, B, C, 

D, and E, and appendices A and B of 44 

CFR part 17, which contains the Federal 

Emergency Management Agency’s 

(FEMA) nonprocurement debarment 

and suspension rules. FEMA is the only 

DHS component with pre-existing 

agency-specific nonprocurement 

debarment and suspension rules. Under 

the provisions of this interim final rule, 

all of DHS will use DHS’ 

nonprocurement debarment and 

suspension rules, thereby making those 

currently in 44 CFR part 17 obsolete. 

The current FEMA nonprocurement 

debarment and suspension regulations 

in 44 CFR part 17 are essentially the 

same as the amended common rule 

adopted by 35 Federal agencies on June 

26, 1995, and the conforming OMB 

guidance that issued on the same day 

(60 FR 33037). DHS is also making 

minor changes to the remainder of 44 

CFR part 17 to remove or correct 

obsolete references and to remove the 

subpart F title Drug-Free Workplace 

Requirements (Grants), and redesignate 

Appendix C as ‘‘Appendix’’. 

Since 1995, federal agencies updated 

the common rule on November 26, 2003 

(68 FR 66534), OMB conformed the 

interim final guidance to that updated 

common rule on August 31, 2005 (70 FR 

51863), and, on November 15, 2006, 

OMB issued a final rule that 

incorporated ‘‘technical corrections 

suggested by the Interagency 

Suspension and Debarment committee 

(71 FR 66431). A description of the 

differences between the current FEMA 

regulations and this interim final rule is 

available in those changes to the 1995 

common rule and guidance. 

V. Regulatory Analyses 

A. Regulatory Planning and Review 

This rule is not a significant 

regulatory action under section 3(f) of 

Executive Order 12866, Regulatory 

Planning and Review, and does not 

require an assessment of potential costs 

and benefits under section 6(a)(3) of that 

Order. It has not been reviewed by OMB 

under that Order. 

B. Small Entities 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601–612), we have considered 

whether this rule would have a 

significant economic impact on a 

substantial number of small entities. 

The term ‘‘small entities’’ comprises 

small businesses, not-for-profit 

organizations that are independently 

owned and operated and are not 

dominant in their fields, and 

governmental jurisdictions with 

populations of less than 50,000. 

This rule does not require a general 

notice of proposed rulemaking and, 

therefore, is exempt from the 

requirements of the Regulatory 

Flexibility Act. Although this rule is 

exempt from these requirements, we 

have reviewed it for potential economic 

impact on small entities. 

DHS does not believe that this rule 

will have a significant economic impact 

on a substantial number of small 

entities. If you think that your business, 

organization, or governmental 

jurisdiction qualifies as a small entity 

and that this rule will have a significant 

economic impact on it, please submit a 

comment to the address under 

ADDRESSES. In your comment, explain 

why you think it qualifies and how and 

to what degree this rule would 

economically affect it. 

C. Assistance for Small Entities 

Under section 213(a) of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 (Pub. L. 104–121), 

we want to assist small entities in 

understanding this rule so that they can 

better evaluate its effects on them and 

participate in the rulemaking. If the rule 


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Federal Register / Vol. 74, No. 135 / Thursday, July 16, 2009 / Rules and Regulations 34497 

would affect your small business, 

organization, or governmental 

jurisdiction and you have questions 

concerning its provisions or options for 

compliance, please contact Van Pace, 

Office of Grant Policy and Oversight, 

Department of Homeland Security at 

(202) 447–5269. DHS will not retaliate 

against small entities that question or 

complain about this rule or any policy 

or action of DHS. 

Small businesses may send comments 

on the actions of Federal employees 

who enforce, or otherwise determine 

compliance with, Federal regulations to 

the Small Business and Agriculture 

Regulatory Enforcement Ombudsman 

and the Regional Small Business 

Regulatory Fairness Boards. The 

Ombudsman evaluates these actions 

annually and rates each agency’s 

responsiveness to small business. If you 

wish to comment on actions by DHS 

employees, call 1–888–REG–FAIR 

(1–888–734–3247). 

D. Collection of Information 

This rule calls for no new collection 

of information under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501– 

3520). 

E. Federalism 

A rule has implications for federalism 

under Executive Order 13132, 

Federalism, if it has a substantial direct 

effect on State or local governments and 

would either preempt State law or 

impose a substantial direct cost of 

compliance on them. We have analyzed 

this rule under that Executive Order and 

have determined that it does not have 

implications for federalism. 

F. Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act 

of 1995 (2 U.S.C. 1531–1536) requires 

Federal agencies to assess the effects of 

their discretionary regulatory actions. In 

particular, the Act addresses actions 

that may result in the expenditure by a 

State, local, or Tribal government, in the 

aggregate, or by the private sector of 

$100,000,000 or more in any one year. 

Though this rule will not result in such 

an expenditure, we do discuss the 

effects of this rule elsewhere in this 

preamble. 

G. Taking of Private Property 

This rule will not effect a taking of 

private property or otherwise have 

taking implications under Executive 

Order 12630, Governmental Actions and 

Interference with Constitutionally 

Protected Property Rights. 

H. Civil Justice Reform 

This rule meets applicable standards 

in sections 3(a) and 3(b)(2) of Executive 

Order 12988, Civil Justice Reform, to 

minimize litigation, eliminate 

ambiguity, and reduce burden. 

I. Protection of Children 

We have analyzed this rule under 

Executive Order 13045, Protection of 

Children from Environmental Health 

Risks and Safety Risks. This rule is not 

an economically significant rule and 

does not create an environmental risk to 

health or risk to safety that may 

disproportionately affect children. 

J. Indian Tribal Governments 

This rule does not have Tribal 

implications under Executive Order 

13175, Consultation and Coordination 

with Indian Tribal Governments, 

because it does not have a substantial 

direct effect on one or more Indian 

Tribes, on the relationship between the 

Federal Government and Indian Tribes, 

or on the distribution of power and 

responsibilities between the Federal 

Government and Indian Tribes. 

K. Energy Effects 

We have analyzed this rule under 

Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. We have 

determined that it is not a ‘‘significant 

energy action’’ under that order because 

it is not a ‘‘significant regulatory action’’ 

under Executive Order 12866 and is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. 

L. Technical Standards 

The National Technology Transfer 

and Advancement Act (NTTAA) (15 

U.S.C. 272 note) directs agencies to use 

voluntary consensus standards in their 

regulatory activities unless the agency 

provides Congress, through OMB, with 

an explanation of why using these 

standards would be inconsistent with 

applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., specifications 

of materials, performance, design, or 

operation; test methods; sampling 

procedures; and related management 

systems practices) that are developed or 

adopted by voluntary consensus 

standards bodies. This rule does not use 

technical standards. Therefore, we did 

not consider the use of voluntary 

consensus standards. 

M. Environment 

This rulemaking concerns 

nonprocurement debarment and 

suspension administrative procedures, 

and implements OMB’s regulatory 

requirements in this area without 

substantive change. We have analyzed 

this interim final rule under Department 

of Homeland Security Management 

Directive 023–01 which guides DHS in 

complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4365), and have 

concluded that this rule is part of a 

category of actions described in item A3 

of Table 1 in Appendix A of the 

Management Directive. This interim 

final rule would not individually or 

cumulatively have a significant effect on 

the human environment and, therefore, 

neither an environmental assessment 

nor an environmental impact statement 

is necessary. 

List of Subjects 

2 CFR Part 3000 

Administrative practice and 

procedure, Debarment and suspension, 

Grant programs, Reporting and 

recordkeeping requirements. 

44 CFR Part 17 

Administrative practice and 

procedure, Drug abuse, Grant programs, 

Loan programs, Reporting and 

recordkeeping requirements. 

■ For the reasons stated in the preamble, 

DHS amends Title 2 of the CFR and 44 

CFR part 17 as follows: 

Title 2—Grants and Agreements 

■ 1. In subtitle B, add Chapter XXX, 

consisting of Part 3000, to read as 

follows: 

Chapter XXX—Department of Homeland 

Security 

PART 3000—NONPROCUREMENT 

DEBARMENT AND SUSPENSION 

Sec. 

3000.10 What does this part do? 

3000.20 Does this part apply to me? 

3000.30 What policies and procedures must 

I follow? 

Subpart A—General 

3000.137 Who in the Department of 

Homeland Security may grant an 

exception to let an excluded person 

participate in a covered transaction? 

Subpart B—Covered Transactions 

3000.220 What contracts and subcontracts, 

in addition to those listed in 2 CFR 

180.220, are covered transactions? 

Subpart C—Responsibilities of Participants 

Regarding Transactions 

3000.332 What methods must I use to pass 

requirements down to participants at 

lower tiers with whom I intend to do 

business? 


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Subpart D—Responsibilities of Department 

of Homeland Security Officials Regarding 

Transactions 

3000.437 What method do I use to 

communicate to a participant the 

requirements described in the Office of 

Management and Budget guidance at 2 

CFR 180.435? 

Subpart E–I [Reserved] 

Authority: Sec. 2455, Public Law 103–355, 

108 Stat. 3327; E.O. 12549, 3 CFR, 1986 

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

Comp., p. 235; Public Law 107–296, 116 Stat. 

2135. 

§ 3000.10 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 Homeland 

Security policies and procedures for 

nonprocurement debarment and 

suspension. It thereby gives regulatory 

effect for the Department of Homeland 

Security 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, Pub. L. 103–355, 

108 Stat. 3327). 

§ 3000.20 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 Department of 

Homeland Security suspension or 

debarment action; 

(c) Department of Homeland Security 

debarment or suspension official; 

(d) Department of Homeland Security 

grants officer, agreements officer, or 

other official authorized to enter into 

any type of nonprocurement transaction 

that is a covered transaction. 

§ 3000.30 What policies and procedures 

must I follow? 

The Department of Homeland 

Security 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., § 3000.220). For any section of 

OMB guidance in Subparts A through I 

of 2 CFR Part 180 that has no 

corresponding section in this part, 

Department of Homeland Security 

policies and procedures are those in the 

OMB guidance. 

Subpart A—General 

§ 3000.137 Who in the Department of 

Homeland Security may grant an exception 

to let an excluded person participate in a 

covered transaction? 

Within the Department of Homeland 

Security, the Secretary of Homeland 

Security has delegated the authority to 

grant an exception to let an excluded 

person participate in a covered 

transaction to the Head of the 

Contracting Activity for each DHS 

component as provided in the OMB 

guidance at 2 CFR 180.135. 

Subpart B—Covered Transactions 

§ 3000.220 What contracts and 

subcontracts, in addition to those listed in 

2 CFR 180.220, are covered transactions? 

Department of Homeland Security 

extends coverage of nonprocurement 

suspension and debarment requirements 

beyond first-tier procurement contracts 

under a covered nonprocurement 

transaction. 

Subpart C—Responsibilities of 

Participants Regarding Transactions 

§ 3000.332 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 in a covered 

transaction must include a term or 

condition in any lower-tier covered 

transaction into which you enter, to 

require the participant of that 

transaction to— 

(a) Comply with Subpart C of the 

OMB guidance in 2 CFR part 180; and 

(b) Include a similar term or condition 

in any covered transaction into which it 

enters at the next lower tier. 

Subpart D—Responsibilities of 

Department of Homeland Security 

Officials Regarding Transactions 

§ 3000.437 What method do I use to 

communicate to a participant the 

requirements described in the Office of 

Management and Budget guidance at 2 CFR 

180.435? 

You as a DHS component official 

must include a term or condition in 

each covered transaction into which you 

enter, to communicate to the participant 

the requirements to— 

(a) Comply with subpart C of the OMB 

guidance in 2 CFR part 180; and 

(b) Include a similar term or condition 

in any lower-tier covered transactions 

into which the participant enters. 

Subparts E–I [Reserved] 

Title 44—Emergency Management and 

Assistance 

PART 17—GOVERNMENTWIDE 

REQUIREMENTS FOR DRUG–FREE 

WORKPLACE (GRANTS) 

■ 2. The authority citation for part 17 is 

revised to read as follows: 

Authority: 41 U.S.C. 701 et seq. 

■ 3. Revise the heading to part 17 to 

read as set forth above. 

Subparts A–E [Removed] 

■ 4. In part 17, remove subparts A 

through E, consisting of §§ 17.100 

through 17.510. 

§§ 17.600 through 17.635 [Amended] 

■ 5. In part 17, remove the designation 

and subpart heading for Subpart F 

(currently consisting of §§ 17.600 

through 17.635). 

■ 6. In § 17.605— 

■ a. Remove paragraph (a) and remove 

the paragraph (b) introductory text 

designation and the designations for 

paragraphs (b)(1) through (10) and 

arrange definitions in alphabetical 

order; and 

■ b. Add definitions, in alphabetical 

order, for ‘‘Agency, ’’ ‘‘Debarment,’’ 

‘‘Person,’’ and ‘‘Suspension,’’ and revise 

the definition of ‘‘Employee’’ to read as 

follows: 

§ 17.605 Definitions. 

* * * * * 

Agency means any executive 

department, military department or 

defense agency or other agency of the 

executive branch, excluding the 

independent regulatory agencies. 

* * * * * 

Debarment means action taken by a 

debarring official in accordance with 

these regulations to exclude a person 

from participating in covered 

transactions. A person so excluded is 

‘‘debarred.’’ 

* * * * * 

Employee means 

(1) The employee of a grantee directly 

engaged in the performance of work 

under the grant, including: 

(i) All ‘‘direct charge’’ employees; 

(ii) All ‘‘indirect charge’’ employees, 

unless their impact or involvement is 


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1 74 FR 31160 (June 30, 2009). 

2 5 U.S.C. 553(b) and (d). 

3 12 U.S.C. 4802(b)(1). 

insignificant to the performance of the 

grant; and, 

(iii) Temporary personnel and 

consultants who are directly engaged in 

the performance of work under the grant 

and who are on the grantee’s payroll. 

(2) This definition does not include 

workers not on the payroll of the grantee 

(e.g., volunteers, even if used to meet a 

matching requirement; consultants or 

independent contractors not on the 

payroll; or employees of subrecipients 

or subcontractors in covered 

workplaces); 

* * * * * 

Person means any individual, 

corporation, partnership, association, 

unit of government or legal entity, 

however organized, except: foreign 

governments or foreign governmental 

entities, public international 

organizations, foreign government 

owned (in whole or in part) or 

controlled entities, and entities 

consisting wholly or partially of foreign 

governments or foreign governmental 

entities. 

* * * * * 

Suspension means an action taken by 

a suspending official in accordance with 

these regulations that immediately 

excludes a person from participating in 

covered transactions for a temporary 

period, pending completion of an 

investigation and such legal, debarment, 

or Program Fraud Civil Remedies Act 

proceedings as may ensue. A person so 

excluded is ‘‘suspended.’’ 

§ 17.610 [Amended] 

■ 7. In § 17.610(c), remove the words 

‘‘subparts A, B, C, D and E of this part’’, 

and add in their place the words ‘‘2 CFR 

part 3000’’; and remove the words ‘‘this 

part’’, and add in their place the words 

‘‘2 CFR part 3000’’. 

§ 17.615 [Amended] 

■ 8. In § 17.615— 

■ a. In paragraph (b)(1), remove the 

words ‘‘appendix C’’ and add, in their 

place, the word ‘‘appendix to part 17’’. 

■ b. In paragraph (c)(1), remove the 

words ‘‘appendix C’’ and add, in their 

place, the word ‘‘appendix to part 17’’. 

§ 17.620 [Amended] 

■ 9. In § 17.620— 

■ a. In paragraph (a)(3), remove the 

words ‘‘this part’’, and add in their 

place the words ‘‘2 CFR part 3000’’. 

■ b. In paragraph (b), remove the words 

‘‘this part’’, and add in their place the 

words ‘‘2 CFR part 3000’’; and remove 

the words ‘‘17.320(a)(2) of this part’’, 

and add in their place the words ‘‘2 CFR 

part 3000’’. 

§ 17.630 [Amended] 

■ 10. In § 17.630(a)(1), remove the 

words ‘‘appendix C’’ and add, in their 

place, the word ‘‘appendix to part 17’’. 

Appendix A to Part 17 [Removed] 

■ 11. In part 17, remove Appendix A. 

Appendix B to Part 17 [Removed] 

■ 12. In part 17, remove Appendix B. 

Appendix C to Part 17 [Redesignated as 

Appendix to Part 17] 

■ 13. In part 17, redesignate Appendix 

C as Appendix to Part 17. 

Van Pace, 

Director, Office of Grant Policy & Oversight, 

Department of Homeland Security. 

[FR Doc. E9–16429 Filed 7–15–09; 8:45 am] 

BILLING CODE 9110–9B–P 

DEPARTMENT OF THE TREASURY 

Office of the Comptroller of the 

Currency 

12 CFR Part 3 

[Docket ID OCC–2009–0007] 

RIN 1557–AD25 

Risk-Based Capital Guidelines; Capital 

Adequacy Guidelines; Capital 

Maintenance; Capital—Residential 

Mortgage Loans Modified Pursuant to 

the Making Home Affordable Program; 

Correcting Amendment 

AGENCY: Office of the Comptroller of the 

Currency, Department of the Treasury. 

ACTION: Final rule; correcting 

amendment. 

SUMMARY: This final rule reinstates 

regulatory text that was inadvertently 

removed during the issuance of an 

interim final rule. 

DATES: Effective Date: July 16, 2009. 

FOR FURTHER INFORMATION CONTACT: Carl 

Kaminski, Senior Attorney, Legislative 

and Regulatory Activities Division, 

(202) 874–5090, Office of the 

Comptroller of the Currency, 250 E 

Street, SW., Washington, DC 20219. 

SUPPLEMENTARY INFORMATION: On June 

30, 2009, the Office of the Comptroller 

of the Currency (OCC), Board of 

Governors of the Federal Reserve 

System, Federal Deposit Insurance 

Corporation, and the Office of Thrift 

Supervision issued an interim final rule 

providing that mortgage loans modified 

under the Making Home Affordable 

Program (Program) will retain the risk 

weight assigned to the loan prior to the 

modification, so long as the loan 

continues to meet other applicable 

prudential criteria.1 Due to a drafting 

error, a portion of the OCC’s existing 

capital rule was inadvertently removed. 

This rule reinstates this text. 

Regulatory Analysis 

Administrative Procedure Act 

Pursuant to sections 553(b) and (d) of 

the Administrative Procedure Act,2 the 

OCC finds that there is good cause for 

issuing this final rule and making the 

rule effective immediately upon 

publication, and that it is impracticable, 

unnecessary, or contrary to the public 

interest to issue a notice of proposed 

rulemaking and provide an opportunity 

to comment before the effective date. 

The rule merely reinstates text that was 

unintentionally removed. 

Riegle Community Development and 

Regulatory Improvement Act 

Section 302 of Riegle Community 

Development and Regulatory 

Improvement Act generally requires that 

regulations that impose additional 

reporting, disclosure, or other 

requirements on insured depository 

institutions take effect on the first day 

of a calendar quarter unless the relevant 

agency finds good cause that the 

regulations should become effective 

sooner and publishes its finding with 

the rule.3 This provision does not apply 

because this rule imposes no additional 

requirements. 

Regulatory Flexibility Act 

The Regulatory Flexibility Act, 5 

U.S.C. 601 et seq. (RFA) applies only to 

rules for which an agency publishes a 

general notice of proposed rulemaking 

pursuant to 5 U.S.C. 553(b). Pursuant to 

the Administrative Procedure Act (APA) 

at 5 U.S.C. 553(b)(B), general notice and 

an opportunity for public comment are 

not required prior to the issuance of a 

final rule when an agency, for good 

cause, finds that ‘‘notice and public 

procedure thereon are impracticable, 

unnecessary, or contrary to the public 

interest.’’ 

As discussed above, the OCC has 

determined for good cause that the APA 

does not require general notice and 

public comment on this interim final 

rule and, therefore, we are not 

publishing a general notice of proposed 

rulemaking. Thus, the RFA, pursuant to 

5 U.S.C. 601(2), does not apply to this 

interim final rule. 


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