81_FR_51274 81 FR 51125 - Department of State Acquisition Regulation

81 FR 51125 - Department of State Acquisition Regulation

DEPARTMENT OF STATE

Federal Register Volume 81, Issue 149 (August 3, 2016)

Page Range51125-51126
FR Document2016-18280

This rule adopts as final certain changes proposed to the Department of State Acquisition Regulation (DOSAR) to provide procedural changes relating to the suspension and debarment process.

Federal Register, Volume 81 Issue 149 (Wednesday, August 3, 2016) 
[Federal Register Volume 81, Number 149 (Wednesday, August 3, 2016)]
[Rules and Regulations]
[Pages 51125-51126]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-18280]



[[Page 51125]]

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DEPARTMENT OF STATE

48 CFR Parts 609 and 649

[Public Notice: 9599]
RIN 1400-AD90


Department of State Acquisition Regulation

AGENCY: Department of State.

ACTION: Final rule.

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SUMMARY: This rule adopts as final certain changes proposed to the 
Department of State Acquisition Regulation (DOSAR) to provide 
procedural changes relating to the suspension and debarment process.

DATES: This rule is effective September 2, 2016.

FOR FURTHER INFORMATION CONTACT: Ms. Colleen Kosar, Policy Division, 
Office of the Procurement Executive, A/OPE, 2201 C Street NW., Suite 
1060, State Annex Number 15, Washington, DC 20520. Telephone: 703-516-
1685. Email: [email protected].

SUPPLEMENTARY INFORMATION: The Department of State published a Notice 
of Proposed Rulemaking (NPRM), Public Notice 9479 at 81 FR 17121, March 
28, 2016, with a request for comments. A summary of the proposed 
changes and the reasons therefor were included in the NPRM. The comment 
period closed May 27, 2016. The Department did not receive any 
substantive comments on the rule. One correspondent raised matters that 
were not relevant to this rulemaking. The Department is now adopting 
the proposed rule as a final rule without change.

Regulatory Findings

Administrative Procedure Act

    In accordance with the provisions of the Administrative Procedure 
Act (APA) governing rules promulgated by federal agencies that affect 
the public (5 U.S.C. 552 and 553), the Department published this 
rulemaking as a proposed rule and invited public comment. In accordance 
with the APA, this rulemaking will be effective 30 days after 
publication.

Regulatory Flexibility Act

    The Department of State, in accordance with the Regulatory 
Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by 
approving it, certifies that this rule will not have a significant 
economic impact on a substantial number of small entities. This 
determination was based on the fact that the changes proposed in this 
update have no impact on small businesses. The number of small 
businesses considered for suspension or debarment will not grow or 
shrink as a result of the proposed changes. The Department analyzed the 
suspension/debarment actions that occurred in FY14 and no small 
businesses were impacted.

Unfunded Mandates Act of 1995

    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 year and it will not significantly or uniquely 
affect small governments. Therefore, no actions were deemed necessary 
under the provisions of the Unfunded Mandates Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by the Small Business 
Regulatory Enforcement Act of 1996 (5 U.S.C. 801 et seq.). This rule 
will not result in an annual effect on the economy of $100 million or 
more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with foreign-based companies in domestic and import markets. 
This determination was based on the fact that the proposed changes are 
intended to simplify the procedural aspects of the suspension and 
debarment process. The rule does not place new requirements on contract 
performance. The rule does not have a significant cost or 
administrative impact on offerors or contractors.

Executive Orders 12866 and 13563

    Executive Orders (E.O.) 12866 and 13563 direct agencies to assess 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts and equity). E.O. 13563 
emphasized the importance of quantifying both costs and benefits, of 
reducing costs, of harmonizing rules, and of promoting flexibility. The 
Department of State does not consider this rule to be an ``economically 
significant regulatory action'' under Executive Order 12866. The 
Department has reviewed the regulation to ensure its consistency with 
the regulatory philosophy and principles set forth in the Executive 
Orders and finds that the benefits of updating this rule outweigh any 
costs, which the Department assesses to be minimal.

Executive Order 13132

    This rule 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. Therefore, in accordance with section 6 of 
Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to require consultations or warrant 
the preparation of a federalism summary impact statement.

Executive Order 13175

    The Department has determined that this rulemaking will not have 
tribal implications, will not impose substantial direct compliance 
costs on Indian tribal governments, and will not pre-empt tribal law. 
Accordingly, the requirements of Executive Order 13175 do not apply to 
this rulemaking.

Paperwork Reduction Act

    The rule imposes no new or revised information collections under 
the Paperwork Reduction Act of 1980 (44 U.S.C. Chapter 35).

List of Subjects in 48 CFR Parts 609 and 649

    Administrative practice and procedure, Government procurement.

    For the reasons stated in the preamble, the Department of State 
amends 48 CFR chapter 6 as follows:

0
1. The authority citation for 48 CFR parts 609 and 649 continues to 
read as follows:

    Authority:  22 U.S.C. 2651a, 40 U.S.C. 121(c) and 48 CFR chapter 
1.

PART 609--CONTRACTOR QUALIFICATIONS

0
2. Revise section 609.403-70 to read as follows:


609.403-70  DOSAR definitions.

    Fact-finding official means the individual designated by the 
debarring official to conduct additional proceedings as necessary 
concerning disputed material facts.


609.405-1  [Amended]

0
3. In section 609.405-1, remove ``609.405-70'' and add in its place 
``649.101-70''.


609.405-70  [Redesignated as 649.101-70 and Transferred]

0
4. Redesignate section 609.405-70 as 649.101-70 and transfer newly 
redesiganted section 649.101-70 to part 649.

[[Page 51126]]


0
5. In section 609.406-3, revise paragraphs (a), (b)(2) through (7), 
(c)(2), and (d) to read as follows:


609.406-3  Procedures.

    (a) Investigation and referral. (1) DOS employees aware of any 
cause that might serve as the basis for debarment shall refer those 
cases through the contracting officer to the debarring official. The 
debarring official shall refer to the Office of the Inspector General 
all reported cases that involve possible criminal or fraudulent 
activities for investigation by that office.
    (2) Referrals for consideration of debarment shall include, as 
appropriate and available--
    (i) The cause for debarment (see FAR 9.406-2);
    (ii) A statement of facts;
    (iii) Copies of supporting documentary evidence and a list of all 
necessary or probable witnesses, including addresses and telephone 
numbers, together with a statement concerning their availability to 
appear at a fact-finding proceeding and the subject matter of their 
testimony;
    (iv) A list of all contractors involved, either as principals or as 
affiliates, including current or last known home and business addresses 
and ZIP codes;
    (v) A statement of the acquisition history with such contractors;
    (vi) A statement concerning any known pertinent active or potential 
criminal investigation, criminal or civil court proceedings, or 
administrative claim before Boards of Contract Appeals; and
    (vii) A statement from each DOS organizational element affected by 
the debarment action as to the impact of a debarment on DOS programs.
    (3) As deemed appropriate, the debarring official may conduct 
investigations to supplement the information provided in the referral, 
or may request investigations by the Office of the Inspector General or 
other Department office.
    (b) * * *
    (2) In response to the debarment notice, if the contractor or its 
representative notifies the debarring official within 30 days after 
receipt of the notice that it wants to present information and 
arguments in person to the debarring official, that official, or a 
designee, shall chair such a meeting. The oral presentation shall be 
conducted informally and a transcript need not be made. However, the 
contractor may supplement its oral presentation with written 
information and arguments for inclusion in the administrative record.
    (3) Pursuant to FAR 9.406-3(b)(2), the contractor may request a 
fact-finding proceeding.
    (4) The debarring official shall designate a fact-finding official 
and shall provide the fact-finding official with a copy of all 
documentary evidence considered in proposing debarment. Upon receipt of 
such material, the fact-finding official shall notify the contractor 
and schedule a hearing date.
    (5) In addition to the purposes provided in FAR 9.406-3(b)(2), the 
hearing is intended to provide the debarring official with findings of 
fact based on a preponderance of evidence submitted to the fact-finding 
official and to provide the debarring official with a determination as 
to whether a cause for debarment exists, based on the facts as found.
    (6) The fact-finding proceeding shall be conducted in accordance 
with procedures determined by the fact-finding official. The rules 
shall be as informal as is practicable, consistent with FAR 9.406-3(b). 
The fact-finding official is responsible for making the transcribed 
record of the hearing, unless the contractor and the fact-finding 
official agree to waive the requirement for a transcript.
    (7) The fact-finding official shall deliver written findings and 
the transcribed record, if made, to the debarring official. The 
findings shall resolve any facts in dispute based on a preponderance of 
the evidence presented and recommend whether a cause for debarment 
exists.
    (c) * * *
    (2) When a determination is made to initiate action, the debarring 
official shall provide to the contractor and any specifically named 
affiliates written notice in accordance with FAR 9.406-3(c).
* * * * *
    (d) Debarring official's decision. In addition to complying with 
FAR 9.406-3(d) and (e), the debarring official shall provide single 
copies of the decision to each DOS organizational element affected by 
the decision.


609.407-3  [Amended]

0
6. In section 609.407-3:
0
a. In paragraph (b)(2), remove the word ``panel'' and add in its place 
``official''.
0
b. In paragraph (d), remove ``and to the General Services 
Administration in accordance with 609.404''.

PART 649--TERMINATION OF CONTRACTS

0
7. Add section 649.101 to read as follows:


649.101  Authorities and responsibilities.


649.101-70  [Amended]

0
8. Revise the heading of newly redesignated section 649.101-70 to read 
as follows:


649.101-70  Termination action decisions after debarment.

* * * * *

    Dated: July 22, 2016.
Eric N. Moore,
Acting, Procurement Executive, Department of State.
[FR Doc. 2016-18280 Filed 8-2-16; 8:45 am]
 BILLING CODE 4710-24-P

Federal Register / Vol. 81, No. 149 / Wednesday, August 3, 2016 / Rules and Regulations 51125 DEPARTMENT OF STATE businesses considered for suspension or Executive Order 13132 debarment will not grow or shrink as a This rule will not have substantial 48 CFR Parts 609 and 649 result of the proposed changes. The direct effects on the States, on the Department analyzed the suspension/ relationship between the national [Public Notice: 9599] debarment actions that occurred in government and the States, or on the RIN 1400–AD90 FY14 and no small businesses were distribution of power and impacted. Department of State Acquisition responsibilities among the various Regulation Unfunded Mandates Act of 1995 levels of government. Therefore, in This rule will not result in the accordance with section 6 of Executive AGENCY: Department of State. expenditure by State, local, and tribal Order 13132, it is determined that this ACTION: Final rule. governments, in the aggregate, or by the rule does not have sufficient federalism private sector, of $100 million or more implications to require consultations or SUMMARY: This rule adopts as final in any year and it will not significantly warrant the preparation of a federalism certain changes proposed to the or uniquely affect small governments. summary impact statement. Department of State Acquisition Therefore, no actions were deemed Regulation (DOSAR) to provide Executive Order 13175 necessary under the provisions of the procedural changes relating to the Unfunded Mandates Act of 1995. The Department has determined that suspension and debarment process. this rulemaking will not have tribal DATES: This rule is effective September Small Business Regulatory Enforcement implications, will not impose 2, 2016. Fairness Act of 1996 substantial direct compliance costs on FOR FURTHER INFORMATION CONTACT: Ms. This rule is not a major rule as Indian tribal governments, and will not Colleen Kosar, Policy Division, Office of defined by the Small Business pre-empt tribal law. Accordingly, the the Procurement Executive, A/OPE, Regulatory Enforcement Act of 1996 (5 requirements of Executive Order 13175 2201 C Street NW., Suite 1060, State U.S.C. 801 et seq.). This rule will not do not apply to this rulemaking. Annex Number 15, Washington, DC result in an annual effect on the Paperwork Reduction Act 20520. Telephone: 703–516–1685. economy of $100 million or more; a Email: KosarCM@state.gov. major increase in costs or prices; or The rule imposes no new or revised significant adverse effects on information collections under the SUPPLEMENTARY INFORMATION: The Paperwork Reduction Act of 1980 (44 competition, employment, investment, Department of State published a Notice U.S.C. Chapter 35). productivity, innovation, or on the of Proposed Rulemaking (NPRM), Public ability of United States-based List of Subjects in 48 CFR Parts 609 and Notice 9479 at 81 FR 17121, March 28, companies to compete with foreign- 649 2016, with a request for comments. A based companies in domestic and summary of the proposed changes and Administrative practice and import markets. This determination was the reasons therefor were included in procedure, Government procurement. based on the fact that the proposed the NPRM. The comment period closed changes are intended to simplify the For the reasons stated in the May 27, 2016. The Department did not procedural aspects of the suspension preamble, the Department of State receive any substantive comments on and debarment process. The rule does amends 48 CFR chapter 6 as follows: the rule. One correspondent raised not place new requirements on contract ■ 1. The authority citation for 48 CFR matters that were not relevant to this performance. The rule does not have a parts 609 and 649 continues to read as rulemaking. The Department is now significant cost or administrative impact follows: adopting the proposed rule as a final on offerors or contractors. rule without change. Authority: 22 U.S.C. 2651a, 40 U.S.C. Executive Orders 12866 and 13563 121(c) and 48 CFR chapter 1. Regulatory Findings Executive Orders (E.O.) 12866 and PART 609—CONTRACTOR Administrative Procedure Act 13563 direct agencies to assess costs and QUALIFICATIONS In accordance with the provisions of benefits of available regulatory the Administrative Procedure Act (APA) alternatives and, if regulation is ■ 2. Revise section 609.403–70 to read governing rules promulgated by federal necessary, to select regulatory as follows: agencies that affect the public (5 U.S.C. approaches that maximize net benefits 552 and 553), the Department published (including potential economic, 609.403–70 DOSAR definitions. this rulemaking as a proposed rule and environmental, public health and safety Fact-finding official means the invited public comment. In accordance effects, distributive impacts and equity). individual designated by the debarring with the APA, this rulemaking will be E.O. 13563 emphasized the importance official to conduct additional effective 30 days after publication. of quantifying both costs and benefits, of proceedings as necessary concerning reducing costs, of harmonizing rules, disputed material facts. Regulatory Flexibility Act and of promoting flexibility. The The Department of State, in Department of State does not consider 609.405–1 [Amended] accordance with the Regulatory this rule to be an ‘‘economically ■ 3. In section 609.405–1, remove Flexibility Act (5 U.S.C. 605(b)), has significant regulatory action’’ under ‘‘609.405–70’’ and add in its place reviewed this regulation and, by Executive Order 12866. The Department ‘‘649.101–70’’. approving it, certifies that this rule will has reviewed the regulation to ensure its rmajette on DSK2TPTVN1PROD with RULES not have a significant economic impact consistency with the regulatory 609.405–70 [Redesignated as 649.101–70 and Transferred] on a substantial number of small philosophy and principles set forth in entities. This determination was based the Executive Orders and finds that the ■ 4. Redesignate section 609.405–70 as on the fact that the changes proposed in benefits of updating this rule outweigh 649.101–70 and transfer newly this update have no impact on small any costs, which the Department redesiganted section 649.101–70 to part businesses. The number of small assesses to be minimal. 649. VerDate Sep<11>2014 14:12 Aug 02, 2016 Jkt 238001 PO 00000 Frm 00051 Fmt 4700 Sfmt 4700 E:\FR\FM\03AUR1.SGM 03AUR1

51126 Federal Register / Vol. 81, No. 149 / Wednesday, August 3, 2016 / Rules and Regulations ■ 5. In section 609.406–3, revise (3) Pursuant to FAR 9.406–3(b)(2), the PART 649—TERMINATION OF paragraphs (a), (b)(2) through (7), (c)(2), contractor may request a fact-finding CONTRACTS and (d) to read as follows: proceeding. ■ 7. Add section 649.101 to read as 609.406–3 Procedures. (4) The debarring official shall follows: designate a fact-finding official and (a) Investigation and referral. (1) DOS employees aware of any cause that shall provide the fact-finding official 649.101 Authorities and responsibilities. might serve as the basis for debarment with a copy of all documentary evidence considered in proposing 649.101–70 [Amended] shall refer those cases through the contracting officer to the debarring debarment. Upon receipt of such ■ 8. Revise the heading of newly official. The debarring official shall refer material, the fact-finding official shall redesignated section 649.101–70 to read to the Office of the Inspector General all notify the contractor and schedule a as follows: reported cases that involve possible hearing date. 649.101–70 Termination action decisions criminal or fraudulent activities for (5) In addition to the purposes after debarment. investigation by that office. provided in FAR 9.406–3(b)(2), the * * * * * (2) Referrals for consideration of hearing is intended to provide the debarment shall include, as appropriate debarring official with findings of fact Dated: July 22, 2016. and available— based on a preponderance of evidence Eric N. Moore, (i) The cause for debarment (see FAR submitted to the fact-finding official and Acting, Procurement Executive, Department 9.406–2); to provide the debarring official with a of State. (ii) A statement of facts; determination as to whether a cause for [FR Doc. 2016–18280 Filed 8–2–16; 8:45 am] (iii) Copies of supporting debarment exists, based on the facts as BILLING CODE 4710–24–P documentary evidence and a list of all found. necessary or probable witnesses, (6) The fact-finding proceeding shall including addresses and telephone be conducted in accordance with DEPARTMENT OF COMMERCE numbers, together with a statement procedures determined by the fact- concerning their availability to appear at National Oceanic and Atmospheric finding official. The rules shall be as a fact-finding proceeding and the Administration informal as is practicable, consistent subject matter of their testimony; with FAR 9.406–3(b). The fact-finding (iv) A list of all contractors involved, 50 CFR Parts 216, 300, 600, and 660 official is responsible for making the either as principals or as affiliates, transcribed record of the hearing, unless [Docket No. 090223227–6560–03] including current or last known home the contractor and the fact-finding and business addresses and ZIP codes; RIN 0648–AX63 official agree to waive the requirement (v) A statement of the acquisition for a transcript. history with such contractors; Trade Monitoring Procedures for (vi) A statement concerning any (7) The fact-finding official shall Fishery Products; International Trade known pertinent active or potential deliver written findings and the in Seafood; Permit Requirements for criminal investigation, criminal or civil transcribed record, if made, to the Importers and Exporters court proceedings, or administrative debarring official. The findings shall AGENCY: National Marine Fisheries claim before Boards of Contract resolve any facts in dispute based on a Service (NMFS), National Oceanic and Appeals; and preponderance of the evidence Atmospheric Administration (NOAA), (vii) A statement from each DOS presented and recommend whether a Commerce. organizational element affected by the cause for debarment exists. ACTION: Final rule. debarment action as to the impact of a (c) * * * debarment on DOS programs. (2) When a determination is made to SUMMARY: This final rule sets forth (3) As deemed appropriate, the initiate action, the debarring official regulations to revise procedures and debarring official may conduct shall provide to the contractor and any requirements for filing import, export, investigations to supplement the specifically named affiliates written and re-export documentation for certain information provided in the referral, or notice in accordance with FAR 9.406– fishery products to meet requirements may request investigations by the Office 3(c). for the SAFE Port Act of 2006, the of the Inspector General or other Magnuson-Stevens Fishery Department office. * * * * * Conservation and Management Act (b) * * * (d) Debarring official’s decision. In (MSA), other applicable statutes, and (2) In response to the debarment addition to complying with FAR 9.406– obligations that arise from U.S. notice, if the contractor or its 3(d) and (e), the debarring official shall participation in regional fishery representative notifies the debarring provide single copies of the decision to management organizations (RFMOs) and official within 30 days after receipt of each DOS organizational element other arrangements to which the United the notice that it wants to present affected by the decision. States is a member or contracting party. information and arguments in person to Specifically, NMFS sets forth the debarring official, that official, or a 609.407–3 [Amended] regulations to integrate the collection of designee, shall chair such a meeting. ■ 6. In section 609.407–3: trade documentation within the The oral presentation shall be government-wide International Trade rmajette on DSK2TPTVN1PROD with RULES conducted informally and a transcript ■ a. In paragraph (b)(2), remove the Data System (ITDS) and require need not be made. However, the word ‘‘panel’’ and add in its place electronic information collection contractor may supplement its oral ‘‘official’’. through the automated portal presentation with written information ■ b. In paragraph (d), remove ‘‘and to maintained by the Department of and arguments for inclusion in the the General Services Administration in Homeland Security, Customs and administrative record. accordance with 609.404’’. Border Protection (CBP). Under this VerDate Sep<11>2014 14:12 Aug 02, 2016 Jkt 238001 PO 00000 Frm 00052 Fmt 4700 Sfmt 4700 E:\FR\FM\03AUR1.SGM 03AUR1


Document Created: 2016-08-02 23:43:53
Document Modified: 2016-08-02 23:43:53
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesThis rule is effective September 2, 2016.
ContactMs. Colleen Kosar, Policy Division, Office of the Procurement Executive, A/OPE, 2201 C Street NW., Suite 1060, State Annex Number 15, Washington, DC 20520. Telephone: 703-516- 1685. Email: [email protected]
FR Citation81 FR 51125 
RIN Number1400-AD90
CFR Citation48 CFR 609
48 CFR 649
CFR AssociatedAdministrative Practice and Procedure and Government Procurement
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