```

[Federal Register Volume 79, Number 18 (Tuesday, January 28, 2014)]
[Rules and Regulations]
[Pages 4403-4407]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-00963]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 30 and 31

[EPA-HQ-OARM-2013-0705; FRL-9803-9]

Changes to Dispute Procedures

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: This regulatory update revises agency policies and procedures 
for certain pre-award and post-award assistance agreement disputes at 
the United States Environmental Protection Agency. This section 
provides a uniform process, including appropriate timelines, for the 
efficient, effective and timely resolution of assistance agreement 
disputes. This rule is exempt from the notice and comment requirements 
of the Administrative Procedure Act (APA) because it is a matter 
relating to agency management concerning grants.

DATES: Effective date: January 28, 2014.
    Comment date: Comments must be received on or before March 31, 
2014.
    Applicability date: This interim final rule applies to disputes 
arising from agency decisions issued on or after January 28, 2014. 
Disputes arising from agency decisions issued prior to the effective 
date of this rule will remain subject to the procedures in the prior 
regulations.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OARM-2013-0705, by one of the following methods:
    www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     Email: January.elizabeth@epa.gov.
     Mail: OARM Docket, Environmental Protection Agency, 
Mailcode: 28221T, 1200 Pennsylvania Ave., NW., Washington, DC 20460].
     Hand Delivery: EPA Docket Center, WJC West, Room 3334, 
1301 Constitution Ave. NW., Washington, DC 20004. The telephone number 
for the Docket Center is 202-566-1744. For additional information about 
EPA's public docket, visit http://www.epa.gov/dockets. Such deliveries 
are only accepted during the Docket's normal hours of operation: 8:30 
a.m. to 4:30 p.m., and special arrangements should be made for 
deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OARM-
2013-0705. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through www.regulations.gov 
or email. The www.regulations.gov Web site is an ``anonymous access'' 
system, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an email comment directly to EPA without going through 
www.regulations.gov your email address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, EPA recommends that you include your name and other contact 
information in the body of your comment and with any disk or CD-ROM you 
submit. If EPA cannot read your comment due to technical difficulties 
and cannot contact you for clarification, EPA may not be able to 
consider your comment. Electronic files should avoid the use of special 
characters, any form of encryption, and be free of any defects or 
viruses.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at Docket ID No. EPA-HQ-OARM-
2013-0705. OARM Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution 
Ave. NW., Washington, DC. The Public Reading Room is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744, and the 
telephone number for the OARM Docket is (202) 566-1752.

FOR FURTHER INFORMATION CONTACT: Elizabeth January, National Policy 
Training and Compliance Division in the Office of Grants and Debarment 
(3903R), Environmental Protection Agency, 1200 Pennsylvania Avenue NW., 
Washington, DC 20460; telephone number: 617-918-8655; fax number: 617-
918-8555; email address: january.elizabeth@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Affected Entities

    Entities affected by this action are those that apply for and/or 
receive Federal financial assistance (grants, cooperative agreements or 
fellowships) from EPA including but not limited to:

[[Page 4404]]

State and local governments, Indian Tribes, Intertribal Consortia, 
Institutions of Higher Education, Hospitals, and other Non-profit 
Organizations, and Individuals.

II. Background

    On September 21, 2011, the EPA Office of Inspector General (OIG) 
issued a final audit report entitled ``EPA Should Improve Timeliness 
for Resolving Audits under Appeal'' (Report No. 11-P-0687, ``Report''). 
The Report cited examples where appeals of Agency decisions to sustain 
some or all of the questioned costs in OIG audits of awards had been in 
resolution for 10 to 21 years. The Report recommended, among other 
things, reforms to EPA's dispute resolution process for audit appeals, 
including establishing timelines and milestones for each step of the 
resolution process, limits on time extensions and the submission of 
additional documentation, and limits on the number of opportunities to 
request reconsideration of decisions by an Assistant Administrator or 
Regional Administrator. In response to the Inspector General dated 
December 19, 2011, EPA agreed to implement these reforms.
    While the OIG's recommended reforms specifically addressed the 
resolution of audit appeals, EPA believes there is merit to applying 
the reforms more broadly to ensure timely resolution of other types of 
disputes between the Agency and recipients of, or applicants for, an 
assistance agreement. Accordingly, EPA is revising its assistance 
agreement dispute procedures in 40 CFR parts 30 and 31 subpart F to 
generally apply the OIG's recommendations to all monetary and non-
monetary pre-award and post-award disputes. The only exception is for 
disputes involving applicants for competitive assistance agreements, 
which are governed by the procedures set forth at 70 FR 3629 et seq 
that can be found at http://www.epa.gov/ogd/competition/70fr3629.pdf. 
EPA is not addressing these procedures in this rulemaking since they 
currently provide a meaningful, timely and effective process for 
resolving assistance agreement competition-related disputes and 
disagreements.
    In addition, this rule does not apply to any appeal process 
regarding an award official's determination that an entity is not 
qualified for an award that may be developed under guidance 
implementing Section 872 of the Duncan Hunter National Defense 
Authorization Act for Fiscal Year 2009 (Pub. L. 110-417, as amended).
    Consistent with the Report recommendations, this revision will 
streamline the resolution process for covered disputes by establishing 
submission and decision-making timelines for each stage of the process 
(with provisions for extensions in the interest of fairness and 
equity), specifying the contents of submissions and the administrative 
record, and, for Regional decisions, eliminating petitions for 
discretionary review to EPA Assistant Administrators. Viewed as a 
whole, EPA believes these reforms will make the dispute process more 
timely and efficient for applicants and recipients while providing them 
a full and fair opportunity to present their case.
    Besides incorporating the OIG's recommendations, this revision 
updates the list of determinations made pursuant to other Agency 
decision-making processes that may affect assistance agreements but 
that are not subject to review under this section or the Agency's 
procedures for resolving assistance agreement competition-related 
disputes or disagreements.
    7 U.S.C. 135 et seq., 15 U.S.C. 2601 et seq., 33 U.S.C. 1251 et 
seq., 42 U.S.C. 241, 242b, 243, 246, 300f, 300j-1, 300j-2, 300j-3, 1857 
et seq., 6901 et seq., 7401 et seq., 9601 et seq., OMB Circular A-110 
(64 FR 54926, October 8, 1999), 20 U.S.C. 4011 et seq., and 33 U.S.C. 
1401 et seq.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under Executive Orders 12866 and 13563 
(76 FR 3821, January 21, 2011). This action will provide a uniform 
process, including appropriate timelines for the efficient, effective 
and timely resolution of assistance agreement disputes.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
However, the Office of Management and Budget (OMB) has previously 
approved the information collection requirements contained in the 
existing regulations 40 CFR parts 30.63 and 31.70 under the provisions 
of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned 
OMB control number 2030-0020. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    Today's interim final rule is not subject to the Regulatory 
Flexibility Act (RFA), which generally requires an agency to prepare a 
regulatory flexibility analysis for any rule that will have a 
significant economic impact on a substantial number of small entities. 
The RFA applies only to rules subject to notice and comment rulemaking 
requirements under the Administrative Procedure Act (APA) or any other 
statute. This rule is not subject to notice and comment requirements 
under the APA or any other statute because this rule pertains to 
grants, which the APA expressly exempts from notice and comment 
rulemaking requirements. 5 U.S.C. 553(a)(2).

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or tribal governments or the private 
sector. The action imposes no enforceable duty on any State, local or 
tribal governments or the private sector. Therefore, this action is not 
subject to the requirements of sections 202 or 205 of the UMRA.
    This action is also not subject to the requirements of section 203 
of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. This action affects 
all applicants and recipients of EPA financial federal assistance and 
therefore no one entity type will be impacted disproportionally or 
significantly.

E. Executive Order 13132 (Federalism)

    This action does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. This action affects all applicants 
and recipients of EPA financial federal assistance and therefore no one 
entity type will be impacted disproportionally. Thus, Executive Order 
13132 does not apply to this action.

F. Executive Order 13175

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). This action 
affects all applicants and recipients of EPA financial federal 
assistance and therefore no one entity type will be impacted 
disproportionally. Thus, Executive Order 13175 does not

[[Page 4405]]

apply to this action. Although Executive Order 13175 does not apply to 
this action, EPA has made a conscious effort to engage tribal entities 
on changes to federal financial assistance requirements. EPA published 
materials summarizing these changes which can be found at http://www.epa.gov/ogd/grants/regulations.htm. EPA intends to host 
informational sessions tailored to tribal entities.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    This action is not subject to EO 13045 (62 FR 19885, April 23, 
1997) because it is not economically significant as defined in EO 
12866.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355, 
May 22, 2001), because it is not a significant regulatory action under 
Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This action does not involve technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629, Feb. 16, 1994) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has concluded that it is not practicable to determine whether 
there would be disproportionately high and adverse human health or 
environmental effects on minority and/or low income populations from 
this final rule.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. Section 808 allows the issuing agency to make a rule 
effective sooner than otherwise provided by the CRA if the agency makes 
a good cause finding that notice and public procedure is impracticable, 
unnecessary or contrary to the public interest. This determination must 
be supported by a brief statement. 5 U.S.C. 808(2). EPA will submit a 
report containing this rule and other required information to the U.S. 
Senate, the U.S. House of Representatives, and the Comptroller General 
of the United States prior to publication of the rule in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This interim final rule applies to disputes arising from agency 
decisions issued on or after January 28, 2014. Disputes arising from 
agency decisions issued prior to the effective date of this rule will 
remain subject to the procedures in the prior regulations.

List of Subjects

40 CFR Part 30

    Environmental protection, Accounting, Grant programs, Reporting and 
recordkeeping requirements.

40 CFR Part 31

    Environmental protection, Accounting, Administrative practice and 
procedure, Grant programs, Reporting and recordkeeping requirements.

    Dated: January 6, 2014.
Gina McCarthy,
Administrator.
    For the reasons set forth in the preamble, the Environmental 
Protection Agency amends 40 CFR parts 30 and 31 as follows:

PART 30--UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND 
AGREEMENTS WITH INSTITUTIONS OF HIGHER EDUCATION, HOSPITALS, AND 
OTHER NON-PROFIT ORGANIZATIONS

0
1. The authority citation for part 30 continues to read as follows:

    Authority:  7 U.S.C. 135 et seq., 15 U.S.C. 2601 et seq., 33 
U.S.C. 1251 et seq., 42 U.S.C. 241, 242b, 243, 246, 300f, 300j-1, 
300j-2, 300j-3, 1857 et seq., 6901 et seq., 7401 et seq., 9601 et 
seq., and OMB Circular A-110 (64 FR 54926, October 8, 1999).

0
2. Revise Sec.  30.63 to read as follows:

Sec.  30.63  Disputes.

    Pre-award and post-award dispute procedures for EPA assistance 
agreements are outlined at 40 CFR part 31, subpart F.

PART 31--UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND 
COOPERATIVE AGREEMENTS TO STATE AND LOCAL GOVERNMENTS

0
3. The authority citation for part 31 continues to read as follows:

    Authority: 33 U.S.C. 1251 et seq., 42 U.S.C. 7401 et seq., 42 
U.S.C. 6901 et seq., 42 U.S.C. 300f et seq., 7 U.S.C. 136 et seq., 
15 U.S.C. 2601 et seq., 42 U.S.C. 9601 et seq., 20 U.S.C. 4011 et 
seq., and 33 U.S.C. 1401 et seq.

0
4. Revise subpart F, consisting of Sec. Sec.  31.70 through 31.77, to 
read as follows:

Subpart F--Disputes

Sec.
31.70 Purpose and scope of this part.
31.71 Definitions.
31.72 Submission of Appeal.
31.73 Notice of receipt of Appeal to Affected Entity.
31.74 Determination of Appeal.
31.75 Request for review.
31.76 Notice of receipt of request for review.
31.77 Determination of request for review.

Sec.  31.70  Purpose and scope of this part.

    (a) This section provides the process for the resolution of pre-
award and post-award assistance agreement disputes as described in 
Sec.  31.71, except for:
    (1) Assistance agreement competition-related disputes; and
    (2) Any appeal process relating to an award official's 
determination that an entity is not qualified for award that may be 
developed pursuant to guidance implementing Section 872 of the Duncan 
Hunter National Defense Authorization Act for Fiscal Year 2009 (Pub. L. 
110-417, as amended).
    (b) Pre-award and post-award disagreements between affected 
entities

[[Page 4406]]

and EPA related to an assistance agreement should be resolved at the 
lowest level possible. If an agreement cannot be reached, absent any 
other applicable statutory or regulatory dispute provisions, affected 
entities must follow the dispute procedures outlined in this subpart.
    (c) Determinations affecting assistance agreements made under other 
Agency decision-making processes are not subject to review under the 
procedures in this Subpart or the Agency's procedures for resolving 
assistance agreement competition-related disputes. These determinations 
include, but are not limited to:
    (1) Decisions on requests for exceptions under Sec.  31.6;
    (2) Bid protest decisions under Sec.  31.36(b)(12);
    (3) National Environmental Policy Act decisions under part 6;
    (4) Policy decisions of the EPA Internal Audit Dispute Resolution 
Process (formerly known as Audit Resolution Board); and
    (5) Suspension and Debarment Decisions under 2 CFR parts 180 and 
1532.

Sec.  31.71  Definitions.

    As used in this part:
    Action Official (AO) is the EPA official who authors the Agency 
Decision to the Affected Entity regarding a pre-award or post-award 
matter.
    Affected Entity is an entity that applies for and/or receives 
Federal financial assistance from EPA including but not limited to: 
State and local governments, Indian Tribes, Intertribal Consortia, 
Institutions of Higher Education, Hospitals, and other Non-profit 
Organizations, and Individuals.
    Agency Decision is the Agency's initial pre-award or post-award 
determination. The Agency Decision is sent by the Action Official (AO) 
to the Affected Entity electronically and informs them of their dispute 
rights including appealing the Agency Decision to the DDO.
    Assistance Agreement Appeal (or Appeal) is the letter an Affected 
Entity submits to the DDO to challenge an Agency Decision.
    Dispute is a disagreement by an Affected Entity with a specific 
Agency Decision regarding a pre-award or post-award action.
    Disputes Decision Official (DDO) is the designated agency official 
responsible for issuing a decision resolving an Appeal.
    (1) The DDO for a Headquarters Assistance Agreement Appeal is the 
Director of the Grants and Interagency Agreement Management Division in 
the Office of Grants and Debarment or designee. To help provide for a 
fair and impartial review, the AO for the challenged Agency Decision 
may not serve as the Headquarters DDO and the DDO cannot serve as the 
Review Official for the Appeal decision.
    (2) The DDO for a Regional Assistance Agreement Appeal is the 
official designated by the Regional Administrator to issue the written 
decision resolving the Appeal. To help provide for a fair and impartial 
review, the AO for the challenged Agency Decision may not serve as the 
Regional DDO and the DDO cannot serve as the Review Official for the 
Appeal decision.
    Request for Review is the letter an Affected Entity submits to the 
designated Review Official to challenge the DDO's Appeal decision.
    Review Official is the EPA official responsible for issuing a 
decision resolving an Affected Entity's request for review of a DDO's 
Appeal decision.
    (1) For a Headquarters DDO Appeal decision, the Review Official is 
the Director of the Office of Grants and Debarment or designee.
    (2) For a Regional DDO Appeal decision, the Review Official is the 
Regional Administrator or designee.

Sec.  31.72  Submission of Appeal.

    An Affected Entity or its authorized representative may dispute an 
Agency Decision by electronically submitting an Appeal to the DDO 
identified in the Agency Decision. In order for the DDO to consider the 
Appeal, it must satisfy the following requirements:
    (a) Timeliness. The DDO must receive the Appeal no later than 30 
calendar days from the date the Agency Decision is electronically sent 
to the Affected Entity. The DDO will dismiss any Appeal received after 
the 30-day period unless the DDO grants an extension of time to submit 
the Appeal. The Affected Entity must submit a written request for 
extension to the DDO before the expiration of the 30-day period. The 
DDO may grant a one-time extension of up to 30 calendar days when 
justified by the situation, which may include the unusual complexity of 
the Appeal or because of exigent circumstances.
    (b) Method of submission. The Affected Entity must submit the 
Appeal electronically via email to the DDO, with a copy to the AO, 
using the email addresses specified in the Agency Decision within the 
30-day period stated in paragraph (a) of this section.
    (c) Contents of Appeal. The Appeal submitted to the DDO must 
include:
    (1) A copy of the disputed Agency Decision;
    (2) A detailed statement of the specific legal and factual grounds 
for the Appeal, including copies of any supporting documents;
    (3) The specific remedy or relief the Affected Entity seeks under 
the Appeal; and
    (4) The name and contact information, including email address, of 
the Affected Entity's designated point of contact for the Appeal.

Sec.  31.73  Notice of receipt of Appeal to Affected Entity.

    Within 15 calendar days of receiving the Appeal, the DDO will 
provide the Affected Entity a written notice, sent electronically, 
acknowledging receipt of the Appeal.
    (a) Timely Appeals. If the Appeal was timely submitted, the notice 
of acknowledgement may identify any additional information or 
documentation that is required for a thorough consideration of the 
Appeal. The notice should provide no more than 30 calendar days for the 
Affected Entity to provide the requested information. If it is not 
feasible to identify such information or documentation in the notice 
the DDO may request it at a later point in time prior to Appeal 
resolution.
    (b) Untimely Appeals. If the DDO did not receive the Appeal within 
the required 30-day period, or any extension of it, the DDO will notify 
the Affected Entity that the Appeal is being dismissed as untimely and 
the Agency Decision of the AO becomes final. The notification will also 
identify the Review Official. The dismissal of an untimely Appeal 
constitutes the final agency action, unless further review is sought in 
accordance with the requirements of Sec.  31.75. In limited 
circumstances, the DDO may, as a matter of discretion, consider an 
untimely Appeal if doing so would be in the interests of fairness and 
equity.

Sec.  31.74  Determination of Appeal.

    (a) Record on Appeal. In determining the merits of the Appeal, the 
DDO will consider the record related to the Agency Decision, any 
documentation that the Affected Entity submits with its Appeal, any 
additional documentation submitted by the Affected Entity in response 
to the DDO's request under Sec.  31.73(a), and any other information 
the DDO determines is relevant to the Appeal provided the DDO gives 
notice of that information to the Affected Entity. The Affected Entity 
may not on its own initiative submit any additional documents.
    (b) Appeal decision. The DDO will issue the Appeal decision within 
180 calendar days from the date the Appeal

[[Page 4407]]

is received by the DDO unless a longer period is necessary based on the 
complexity of the legal, technical and factual issues presented. The 
DDO will notify the Affected Entity if the expected decision will not 
be issued within the 180 day period and if feasible will indicate when 
the decision is expected to be issued. The Appeal decision will also 
identify the Review Official. The DDO will issue the Appeal decision 
electronically. The DDO's decision will constitute the final agency 
action unless the Affected Entity files a timely request for review in 
accordance with the Request for Review procedures in Sec.  31.75.

Sec.  31.75  Request for review.

    An Affected Entity may file an electronic written request for 
review of the DDO's Appeal decision to the appropriate Review Official 
within 15 calendar days from the date the Appeal decision is 
electronically sent to the Affected Entity. The request for review must 
comply with the following requirements:
    (a) Submission of request for review. The request must be submitted 
to the Review Official identified in the Appeal decision as follows:
    (1) If a Headquarters DDO issued the Appeal decision, the request 
must be electronically submitted to the Director of the Office of 
Grants and Debarment, or designee, at the email address identified in 
the Appeal decision, with a copy to the DDO.
    (2) If the Appeal decision was issued by a DDO located in an agency 
Regional Office, the request for review must be electronically 
submitted to the Regional Administrator, or designee, at the email 
address identified in the Appeal decision, with a copy to the DDO.
    (b) Contents and grounds of request for review. The request for 
review must include a copy of the DDO's Appeal decision and provide a 
detailed statement of the factual and legal grounds warranting reversal 
or modification of the Appeal decision. The only ground for review of a 
DDO's Appeal decision is that there was a clear and prejudicial error 
of law, fact or application of agency policy in deciding the Appeal.
    (c) Conducting the review. In reviewing the Appeal decision, the 
Review Official will only consider the information that was part of the 
Appeal decision unless:
    (i) The Affected Entity provides new information in the request for 
review that was not available to the DDO for the Appeal decision; and
    (ii) The Review Official determines that the new information is 
relevant and should be considered in the interests of fairness and 
equity.

Sec.  31.76  Notice of receipt of request for review.

    Timeliness. The Review Official will provide the Affected Entity 
electronic written notice acknowledging receipt of the review request 
within 15 calendar days of receiving the request. The Review Official 
will further provide a copy of the notice to the DDO.
    (a) If the request was submitted in accordance with section Sec.  
31.75, the notice of acknowledgment will also advise the Affected 
Entity that the Review Official expects to issue a decision within 45 
calendar days from the date they received the request.
    (b) If the request for review was not submitted within the required 
15 calendar day period, or does not allege reviewable grounds 
consistent with Sec.  31.75, the Review Official will notify the 
Affected Entity that the request is denied as untimely and/or for 
failing to state a valid basis for review. In limited circumstances, 
the Review Official may, as a matter of discretion, consider an 
untimely review if doing so would be in the interest of fairness and 
equity.

Sec.  31.77  Determination of request for review.

    (a) Within 15 calendar days of receiving a copy of the notice 
acknowledging the receipt of a timely and reviewable Request for 
Review, the DDO will submit the Appeal record to the Review Official.
    (b) The Review Official will issue a final written decision within 
45 calendar days of the submission of the request for review unless a 
longer period is necessary based on the complexity of the legal, 
technical and factual issues presented.
    (1) The Review Official will notify the Affected Entity if the 
expected decision will not be issued within the 45-day period and if 
feasible will indicate when the decision is expected to be issued.
    (2) The Review Official's decision constitutes the final agency 
action and is not subject to further review within the agency.

[FR Doc. 2014-00963 Filed 1-27-14; 8:45 am]
BILLING CODE 6560-50-P
```