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

2421 

Vol. 72, No. 12 

Friday, January 19, 2007 

ENVIRONMENTAL PROTECTION 

AGENCY 

2 CFR Part 1532 

40 CFR Parts 26, 30, 32, 35, 36, 46 and 

80 

48 CFR Part 1509 

[FRL–8270–5] 

RIN 2030–AA94 

Environmental Protection Agency 

Implementation of OMB Guidance on 

Nonprocurement Debarment and 

Suspension 

AGENCY: Environmental Protection 

Agency. 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is publishing a new 

regulation on nonprocurement 

debarment and suspension in Title 2 of 

the Code of Federal Regulations (CFR) 

as the final step of a four step process 

in streamlining the government-wide 

nonprocurement suspension and 

debarment rules. The purpose of this 

government-wide initiative is to make 

the rule on nonprocurement suspension 

and debarment easier to find and use by 

the regulated community. The first step 

in this process was the update to the 

nonprocurement suspension and 

debarment common rule published in 

the Federal Register on November 26, 

2003. The second step was the 

establishment of Title 2 in the Code of 

Federal Regulations on May 11, 2004. 

The third step was the publication of 

the Office of Management and Budget’s 

(OMB) guidance on nonprocurement 

suspension and debarment as adoptable 

guidance of the new 2 CFR on August 

31, 2005. This rule adopts OMB 

guidance on nonprocurement 

debarment and suspension. The EPA is 

also removing a regulation containing 

the existing EPA implementation of the 

government-wide common rule on 

nonprocurement debarment and 

suspension. This regulatory action 

makes no substantive change in EPA 

policy or procedures for 

nonprocurement debarment and 

suspension. 

DATES: The effective date for this final 

rule is February 20, 2007. 

FOR FURTHER INFORMATION CONTACT: 

Suzanne Hersh, Office of Grants and 

Debarment (3901R), Environmental 

Protection Agency, 1200 Pennsylvania 

Avenue, NW., Washington, DC 20460, 

by phone (202) 564–5374 or by e-mail 

(hersh.suzanne@epa.gov). 

SUPPLEMENTARY INFORMATION: 

Background 

On May 11, 2004, OMB established 

Title 2 of the CFR with two subtitles (69 

FR 26275). Subtitle A, ‘‘Governmentwide Grants and Agreements,’’ contains 

OMB policy guidance to Federal 

agencies on grants and agreements. 

Subtitle B, ‘‘Federal Agency Regulations 

for Grants and Agreements,’’ contains 

Federal agencies’ regulations 

implementing the OMB guidance, as it 

applies to grants and other financial 

assistance agreements and 

nonprocurement transactions. 

On August 31, 2005, the OMB 

published interim final guidance for 

government-wide nonprocurement 

debarment and suspension in the 

Federal Register (70 FR 51863). The 

guidance is located in title 2 of the CFR 

as new subtitle A, chapter 1, Part 180. 

The interim final guidance updated 

previous OMB guidance that was issued 

pursuant to Executive Order 12549, 

‘‘Debarment and Suspension’’ (February 

18, 1986), which gave government-wide 

effect to each agency’s nonprocurement 

debarment and suspension actions. 

Section 6 of the Executive Order 

authorized OMB to issue guidance to 

Executive agencies on nonprocurement 

debarment and suspension, including 

provisions prescribing government-wide 

criteria and minimum due process. 

Section 3 directed Executive agencies to 

issue regulations implementing the 

Executive Order that are consistent with 

the OMB guidelines. On November 15, 

2006, OMB published a final rule 

adopting the interim final guidance with 

changes (71 FR 66431). 

In accordance with OMB’s guidance, 

the EPA issues this final rule to adopt 

and implement Title 2 CFR, Part 180 

with the same additions and 

clarifications that EPA made to the 

common rule on nonprocurement 

debarment and suspension in November 

2003 (68 FR 66533). 

Executive Order 12866 

The OMB has determined this rule 

nonsignificant. 

Regulatory Flexibility Act of 1980 (5 

U.S.C. 605(b)) 

This regulatory action will not have a 

significant adverse impact on a 

substantial number of small entities. 

Unfunded Mandates Act of 1995 (Sec. 

202, Pub. L. 104–4) 

This regulatory action does not 

contain a Federal mandate that will 

result in the expenditure by State, local, 

and tribal governments, in aggregate, or 

by the private sector of $100 million or 

more in any one year. 

Paperwork Reduction Act of 1995 (44 

U.S.C., Chapter 35) 

This regulatory action will not impose 

any additional reporting or 

recordkeeping requirements under the 

Paperwork Reduction Act. 

Federalism (Executive Order 13132) 

This regulatory action does not have 

Federalism implications, as set forth in 

Executive Order 13132. It will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. 

Executive Order 13175 (Consultation 

and Coordination with Indian Tribal 

Governments) 

Executive Order 13175, entitled 

‘‘Consultation and Coordination With 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ This final rule does not 

have tribal implications, as specified in 

Executive Order 13175. 

Executive Order 13211 (Energy Effects) 

This rule is not subject to Executive 

Order 13211, ‘‘Actions Concerning 

Regulations That Significantly Affect 


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Energy Supply, Distribution, or Use’’ (66 

FR 28355 (May 22, 2001)) because it is 

not a significant regulatory action under 

Executive Order 12866. 

Congressional Review Act (5 U.S.C. 

801, et seq.) 

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. 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. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). This rule 

will be effective 30 days from the date 

of publication in the Federal Register. 

List of Subjects 

2 CFR Part 1532 

Administrative practice and 

procedure, Air pollution control, 

Debarment and suspension, 

Environmental protection, Government 

contracts, Grant programs, Loan 

programs, Reporting and recordkeeping 

requirements, Technical assistance, 

Water pollution control. 

40 CFR Part 26 

Human research subjects, Report and 

recordkeeping requirements. 

40 CFR Part 30 

Accounting, Colleges and universities, 

Grant programs, Hospitals, Nonprofit 

organizations, Reporting and 

recordkeeping requirements. 

40 CFR Part 32 

Administrative practice and 

procedure, Air pollution control, 

Debarment and suspension, 

Environmental protection, Government 

contracts, Grant programs, Loan 

programs, Reporting and recordkeeping 

requirements, Technical assistance, 

Water pollution control. 

40 CFR Part 35 

Air pollution control, Coastal zone, 

Grant programs—environmental 

protection, Grant programs—Indians, 

Hazardous waste, Indians, 

Intergovernmental relations, Pesticides 

and pests, Reporting and recordkeeping 

requirements, Technical assistance, 

Waste treatment and disposal, Water 

pollution control, Water Supply. 

40 CFR Part 36 

Administrative practice and 

procedure, Drug abuse, Grant programs, 

Loan programs, Reporting and 

recordkeeping requirements. 

40 CFR Part 46 

Environmental protection, Grant 

programs—education, Grant programs—

environmental protection, Reporting 

and recordkeeping requirements, 

scholarships and fellowships. 

40 CFR Part 80 

Fuel additives, Gasoline, Imports, 

Labeling, Motor vehicle pollution, 

Penalties, Reporting and recordkeeping 

requirements. 

48 CFR Part 1509 

Government procurement, Reporting 

and recordkeeping requirements. 

Dated: January 8, 2007. 

Howard Corcoran, 

Director, Office of Grants and Debarment, 

U.S. Environmental Protection Agency. 

■ For the reasons stated in the preamble, 

the Environmental Protection Agency 

amends title 2, subtitle B; title 40, 

chapter I; and title 48, chapter XV, of 

the Code of Federal Regulations as 

follows: 

Title 2—Grants and Agreements 

■ 1. Add Chapter 15, consisting of Part 

1532 to Subtitle B to read as follows: 

Chapter 15—Environmental Protection 

Agency 

PART 1532—NONPROCUREMENT 

DEBARMENT AND SUSPENSION 

Sec. 

1532.10 What does this part do? 

1532.20 Does this part apply to me? 

1532.30 What policies and procedures must 

I follow? 

Subpart A—General 

1532.137 Who in the EPA may grant an 

exception to let an excluded person 

participate in a covered transaction? 

Subpart B—Covered Transactions 

1532.220 What contracts and subcontracts, 

in addition to those listed in 2 CFR 

180.220, are covered transactions? 

Subpart C—Responsibilities of Participants 

Regarding Transactions 

1532.332 What methods must I use to pass 

requirements down to participants at 

lower tiers with whom I intend to do 

business? 

Subpart D—Responsibilities of Federal 

Agency Officials Regarding Transactions 

1532.437 What method do I use to 

communicate to a participant the 

requirements described in the OMB 

guidance at 2 CFR 180.435? 

Subparts E through F—[Reserved] 

Subpart G—Suspension 

1532.765 How may I appeal my EPA 

suspension? 

Subpart H—Debarment 

1532.890 How may I appeal my EPA 

debarment? 

Subpart I—Definitions 

1532.995 Principal (EPA supplement to 

government-wide definition at 2 CFR 

180.995). 

Subpart J—Statutory Disqualification and 

Reinstatement Under the Clean Air Act and 

Clean Water Act 

1532.1100 What does this subpart do? 

1532.1105 Does this subpart apply to me? 

1532.1110 How will a CAA or CWA 

conviction affect my eligibility to 

participate in Federal contracts, 

subcontracts, assistance, loans and other 

benefits? 

1532.1115 Can the EPA extend a CAA or 

CWA disqualification to other facilities? 

1532.1120 What is the purpose of CAA or 

CWA disqualification? 

1532.1125 How do award officials and 

others know if I am disqualified? 

1532.1130 How does disqualification under 

the CAA or CWA differ from a Federal 

discretionary suspension or debarment 

action? 

1532.1135 Does CAA or CWA 

disqualification mean that I must remain 

ineligible? 

1532.1140 Can an exception be made to 

allow me to receive an award even 

though I may be disqualified? 

1532.1200 How will I know if I am 

disqualified under the CAA or CWA? 

1532.1205 What procedures must I follow 

to have my procurement and 

nonprocurement eligibility reinstated 

under the CAA or CWA? 

1532.1210 Will anyone else provide 

information to the EPA debarring official 

concerning my reinstatement request? 

1532.1215 What happens if I disagree with 

the information provided by others to the 

EPA debarring official on my 

reinstatement request? 

1532.1220 What will the EPA debarring 

official consider in making a decision on 

my reinstatement request? 

1532.1225 When will the EPA debarring 

official make a decision on my 

reinstatement request? 

1532.1230 How will the EPA debarring 

official notify me of the reinstatement 

decision? 

1532.1300 Can I resolve my eligibility 

status under terms of an administrative 

agreement without having to submit a 

formal reinstatement request? 

1532.1305 What are the consequences if I 

mislead the EPA in seeking 


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1532.1600 What definitions apply 

specifically to actions under this 

subpart? 

Authority: 33 U.S.C. 1251 et seq.; 42 U.S.C. 

7401 et seq.; Sec. 2455, Pub. L. 103–355, 108 

Stat. 3327 (31 U.S.C. 6101 note); E.O. 11738 

(3 CFR, 1973 Comp., p. 799); E.O. 12549 (3 

CFR, 1986 Comp., p. 189); E.O. 12689 (3 CFR, 

1989 Comp., p. 235). 

§ 1532.10 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 Environmental Protection 

Agency (EPA) policies and procedures 

for nonprocurement debarment and 

suspension. It thereby gives regulatory 

effect for the EPA 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). 

§ 1532.20 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 an EPA suspension 

or debarment action; 

(c) EPA debarment or suspension 

official; or 

(d) EPA grants officer, agreements 

officer, or other official authorized to 

enter into any type of nonprocurement 

transaction that is a covered transaction. 

§ 1532.30 What policies and procedures 

must I follow? 

The EPA 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., 

§ 1532.220). For any section of OMB 

guidance in subparts A through I of 2 

CFR 180 that has no corresponding 

section in this part, EPA policies and 

procedures are those in the OMB 

guidance. 

Subpart A—General 

§ 1532.137 Who in the EPA may grant an 

exception to let an excluded person 

participate in a covered transaction? 

The EPA Debarring Official has the 

authority to grant an exception to let an 

excluded person participate in a 

covered transaction, as provided in the 

OMB guidance at 2 CFR 180.135. If the 

EPA Debarring Official grants an 

exception, the exception must be in 

writing and state the reason(s) for 

deviating from the governmentwide 

policy in Executive Order 12549. 

Subpart B—Covered Transactions 

§ 1532.220 What contracts and 

subcontracts, in addition to those listed 

in 2 CFR 180.220, are covered 

transactions? 

In addition to the contracts covered 

under 2 CFR 180.220(b) of the OMB 

guidance, this part applies to any 

contract, regardless of tier, that is 

awarded by a contractor, subcontractor, 

supplier, consultant, or its agent or 

representative in any transaction, if the 

contract is to be funded or provided by 

the EPA under a covered 

nonprocurement transaction and the 

amount of the contract is expected to 

equal or exceed $25,000. This extends 

the coverage of the EPA 

nonprocurement suspension and 

debarment requirements to all lower 

tiers of subcontracts under covered 

nonprocurement transactions, as 

permitted under the OMB guidance at 2 

CFR 180.220(c) (see optional lower tier 

coverage in the figure in the appendix 

to 2 CFR part 180). 

Subpart C—Responsibilities of 

Participants Regarding Transactions 

§ 1532.332 What methods must I use to 

pass requirements down to participants at 

lower tiers with whom I intend to do 

business? 

You as a participant must include a 

term or condition in lower-tier 

transactions requiring lower-tier 

participants to comply with subpart C of 

the OMB guidance in 2 CFR part 180, 

as supplemented by this subpart. 

Subpart D—Responsibilities of Federal 

Agency Officials Regarding 

Transactions 

§ 1532.437 What method do I use to 

communicate to a participant the 

requirements described in the OMB 

guidance at 2 CFR 180.435? 

To communicate to a participant the 

requirements described in 2 CFR 

180.435 of the OMB guidance, you must 

include a term or condition in the 

transaction that requires the 

participant’s compliance with subpart C 

of 2 CFR part 180, as supplemented by 

subpart C of this part, and requires the 

participant to include a similar term or 

condition in lower-tier covered 

transactions. 

Subpart E through F—[Reserved] 

Subpart G—Suspension 

§ 1532.765 How may I appeal my EPA 

suspension? 

(a) If the EPA suspending official 

issues a decision under 2 CFR 180.755 

to continue your suspension after you 

present information in opposition to 

that suspension under 2 CFR 180.720, 

you can ask for review of the 

suspending official’s decision in two 

ways: 

(1) You may ask the suspending 

official to reconsider the decision for 

material errors of fact or law that you 

believe will change the outcome of the 

matter; and/or 

(2) You may request the Director, 

Office of Grants and Debarment (OGD 

Director), to review the suspending 

official’s decision to continue your 

suspension within 30 days of your 

receipt of the suspending official’s 

decision under 2 CFR 180.755 or 

paragraph (a)(1) of this section. 

However, the OGD Director can reverse 

the suspending official’s decision only 

where the OGD Director finds that the 

decision is based on a clear error of 

material fact or law, or where the OGD 

Director finds that the suspending 

official’s decision was arbitrary, 

capricious, or an abuse of discretion. 

(b) A request for review under this 

section must be in writing; state the 

specific findings you believe to be in 

error; and include the reasons or legal 

bases for your position. 

(c) A review under paragraph (a)(2) of 

this section is solely within the 

discretion of the OGD Director who may 

also stay the suspension pending review 

of the suspending official’s decision. 

(d) The EPA suspending official and 

the OGD Director must notify you of 

their decisions under this section, in 

writing, using the notice procedures at 

2 CFR 180.615 and 180.975. 

Subpart H—Debarment 

§ 1532.890 How may I appeal my EPA 

debarment? 

(a) If the EPA debarring official issues 

a decision under 2 CFR 180.870 to debar 

you after you present information in 

opposition to a proposed debarment 

under 2 CFR 180.815, you can ask for 

review of the debarring official’s 

decision in two ways: 


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Subpart H—Debarment 

§ 1532.890 How may I appeal my EPA 

debarment? 

(a) If the EPA debarring official issues 

a decision under 2 CFR 180.870 to debar 

you after you present information in 

opposition to a proposed debarment 

under 2 CFR 180.815, you can ask for 

review of the debarring official’s 

decision in two ways: 

(1) You may ask the debarring official 

to reconsider the decision for material 

errors of fact or law that you believe will 

change the outcome of the matter; and/ 

or 

(2) You may request the Director, 

Office of Grants and Debarment (OGD 

Director), to review the debarring 

official’s decision to debar you within 

30 days of your receipt of the debarring 

official’s decision under 2 CFR 180.870 

or paragraph (a)(1) of this section. 

However, the OGD Director can reverse 

the debarring official’s decision only 

where the OGD Director finds that the 

decision is based on a clear error of 

material fact or law, or where the OGD 

Director finds that the debarring 

official’s decision was arbitrary, 

capricious, or an abuse of discretion. 

(b) A request for review under this 

section must be in writing; state the 

specific findings you believe to be in 

error; and include the reasons or legal 

bases for your position. 

(c) A review under paragraph (a)(2) of 

this section is solely within the 

discretion of the OGD Director who may 

also stay the debarment pending review 

of the debarring official’s decision. 

(d) The EPA debarring official and the 

OGD Director must notify you of their 

decisions under this section, in writing, 

using the notice procedures at 2 CFR 

180.615 and 180.975. 

Subpart I—Definitions 

§ 1532.995 Principal (EPA supplement to 

government-wide definition at 2 CFR 

180.995). 

In addition to those listed in 2 CFR 

180.995, other examples of individuals 

who are principals in EPA covered 

transactions include: 

(a) Principal investigators; 

(b) Technical or management 

consultants; 

(c) Individuals performing chemical 

or scientific analysis or oversight; 

(d) Professional service providers 

such as doctors, lawyers, accountants, 

engineers, etc.; 

(e) Individuals responsible for the 

inspection, sale, removal, 

transportation, storage or disposal of 

solid or hazardous waste or materials; 

(f) Individuals whose duties require 

special licenses; 

(g) Individuals that certify, 

authenticate or authorize billings; and 

(h) Individuals that serve in positions 

of public trust. 

Subpart J—Statutory Disqualification 

and Reinstatement Under the Clean Air 

Act and Clean Water Act 

§ 1532.1100 What does this subpart do? 

This subpart explains how the EPA 

administers section 306 of the Clean Air 

Act (CAA) (42 U.S.C. 7606) and section 

508 of the Clean Water Act (CWA) (33 

U.S.C. 1368), which disqualify persons 

convicted for certain offenses under 

those statutes (see § 1532.1105), from 

eligibility to receive certain contracts, 

subcontracts, assistance, loans and other 

benefits (see coverage under the Federal 

Acquisition Regulation (FAR), 48 CFR 

part 9, subpart 9.4 and subparts A 

through I of 2 CFR part 180). It also 

explains: the procedures for seeking 

reinstatement of a person’s eligibility 

under the CAA or CWA; the criteria and 

standards that apply to EPA’s decisionmaking process; and requirements of 

award officials and others involved in 

Federal procurement and 

nonprocurement activities in carrying 

out their responsibilities under the CAA 

and CWA. 

§ 1532.1105 Does this subpart apply to 

me? 

(a) Portions of this subpart apply to 

you if you are convicted, or likely to be 

convicted, of any offense under section 

7413(c) of the CAA or section 1319(c) of 

the CWA. 

(b) Portions of this subpart apply to 

you if you are the EPA debarring 

official, a Federal procurement or 

nonprocurement award official, a 

participant in a Federal procurement or 

nonprocurement program that is 

precluded from entering into a covered 

transaction with a person disqualified 

under the CAA or CWA, or if you are 

a Federal department or agency 

anticipating issuing an exception to a 

person otherwise disqualified under the 

CAA or CWA. 

§ 1532.1110 How will a CAA or CWA 

conviction affect my eligibility to participate 

in Federal contracts, subcontracts, 

assistance, loans and other benefits? 

If you are convicted of any offense 

described in § 1532.1105, you are 

automatically disqualified from 

eligibility to receive any contract, 

subcontract, assistance, sub-assistance, 

loan or other nonprocurement benefit or 

transaction that is prohibited by a 

Federal department or agency under the 

Governmentwide debarment and 

suspension system (i.e. covered 

transactions under subpart A through I 

of 2 CFR part 180, or prohibited awards 

under 48 CFR part 9, subpart 9.4), if 

you: 

(a) Will perform any part of the 

transaction or award at the facility 

giving rise to your conviction (called the 

violating facility); and 

(b) You own, lease or supervise the 

violating facility. 

§ 1532.1115 Can the EPA extend a CAA or 

CWA disqualification to other facilities? 

The CAA specifically authorizes the 

EPA to extend a CAA disqualification to 

other facilities that are owned or 

operated by the convicted person. The 

EPA also has authority under subparts 

A through I of 2 CFR part 180, or under 

48 CFR part 9, subpart 9.4, to take 

discretionary suspension and debarment 

actions on the basis of misconduct 

leading to a CAA or CWA conviction, or 

for activities that the EPA debarring 

official believes were designed to 

improperly circumvent a CAA or CWA 

disqualification. 

§ 1532.1120 What is the purpose of CAA or 

CWA disqualification? 

As provided for in Executive Order 

11738 (3 CFR, 1973 Comp., p. 799), the 

purpose of CAA and CWA 

disqualification is to enforce the Federal 

Government’s policy of undertaking 

Federal procurement and 

nonprocurement activities in a manner 

that improves and enhances 

environmental quality by promoting 

effective enforcement of the CAA or 

CWA. 

§ 1532.1125 How do award officials and 

others know if I am disqualified? 

If you are convicted under these 

statutes, the EPA enters your name and 

address and that of the violating facility 

into the Excluded Parties List System 

(EPLS) as soon as possible after the EPA 

learns of your conviction. In addition, 

the EPA enters other information 

describing the nature of your 

disqualification. Federal award officials 

and others who administer Federal 

programs consult the EPLS before 

entering into or approving procurement 

and nonprocurement transactions. 

Anyone may access the EPLS through 

the internet, currently at http:// 

www.epls.gov. 

§ 1532.1130 How does disqualification 

under the CAA or CWA differ from a Federal 

discretionary suspension or debarment 

action? 

(a) CAA and CWA disqualifications 

are exclusions mandated by statute. In 

contrast, suspensions and debarments 

imposed under subparts A through I of 

2 CFR part 180 or under 48 CFR part 9, 

subpart 9.4, are exclusions imposed at 


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the discretion of Federal suspending or 

debarring officials. This means that if 

you are convicted of violating the CAA 

or CWA provisions described under 

§ 1532.1105, ordinarily your name and 

that of the violating facility is placed 

into the EPLS before you receive a 

confirmation notice of the listing, or 

have the opportunity to discuss the 

disqualification with, or seek 

reinstatement from, the EPA. 

(b) CAA or CWA disqualification 

applies to both the person convicted of 

the offense, and to the violating facility 

during performance of an award or 

covered transaction under the Federal 

procurement and nonprocurement 

suspension and debarment system. It is 

the EPA’s policy to carry out CAA and 

CWA disqualifications in a manner 

which integrates the disqualifications 

into the Governmentwide suspension 

and debarment system. Whenever the 

EPA determines that the risk presented 

to Federal procurement and 

nonprocurement activities on the basis 

of the misconduct which gives rise to a 

person’s CAA or CWA conviction 

exceeds the coverage afforded by 

mandatory disqualification, the EPA 

may use its discretionary authority to 

suspend or debar a person under 

subparts A through I of 2 CFR part 180, 

or under 48 CFR part 9, subpart 9.4. 

§ 1532.1135 Does CAA or CWA 

disqualification mean that I must remain 

ineligible? 

You must remain ineligible until the 

EPA debarring official certifies that the 

condition giving rise to your conviction 

has been corrected. If you desire to have 

your disqualification terminated, you 

must submit a written request for 

reinstatement to the EPA debarring 

official and support your request with 

persuasive documentation. For 

information about the process for 

reinstatement see §§ 1532.1205 and 

1532.1300. 

§ 1532.1140 Can an exception be made to 

allow me to receive an award even though 

I may be disqualified? 

(a) After consulting with the EPA 

debarring official, the head of any 

Federal department or agency (or 

designee) may exempt any particular 

award or a class of awards with that 

department or agency from CAA or 

CWA disqualification. In the event an 

exemption is granted, the exemption 

must: 

(1) Be in writing; and 

(2) State why the exemption is in the 

paramount interests of the United 

States. 

(b) In the event an exemption is 

granted, the exempting department or 

agency must send a copy of the 

exemption decision to the EPA 

debarring official for inclusion in the 

official record. 

§ 1532.1200 How will I know if I am 

disqualified under the CAA or CWA? 

There may be several ways that you 

learn about your disqualification. You 

are legally on notice by the statutes that 

a criminal conviction the CAA or CWA 

automatically disqualifies you. As a 

practical matter, you may learn about 

your disqualification from your defense 

counsel, a Federal contract or award 

official, or from someone else who sees 

your name in the EPLS. As a courtesy, 

the EPA will attempt to notify you and 

the owner, lessor or supervisor of the 

violating facility that your names have 

been entered into the EPLS. The EPA 

will inform you of the procedures for 

seeking reinstatement and give you the 

name of a person you can contact to 

discuss your reinstatement request. 

§ 1532.1205 What procedures must I follow 

to have my procurement and 

nonprocurement eligibility reinstated under 

the CAA or CWA? 

(a) You must submit a written request 

for reinstatement to the EPA debarring 

official stating what you believe the 

conditions were that led to your 

conviction, and how those conditions 

have been corrected, relieved or 

addressed. Your request must include 

documentation sufficient to support all 

material assertions you make. The 

debarring official must determine that 

all the technical and non-technical 

causes, conditions and consequences of 

your actions have been sufficiently 

addressed so that the Government can 

confidently conduct future business 

activities with you, and that your future 

operations will be conducted in 

compliance with the CAA and CWA. 

(b) You may begin the reinstatement 

process by having informal discussions 

with the EPA representative named in 

your notification of listing. Having 

informal dialogue with that person will 

make you aware of the EPA concerns 

that must be addressed. The EPA 

representative is not required to 

negotiate conditions for your 

reinstatement. However, beginning the 

reinstatement process with informal 

dialogue increases the chance of 

achieving a favorable outcome, and 

avoids unnecessary delay that may 

result from an incomplete or inadequate 

reinstatement request. It may also allow 

you to resolve your disqualification by 

reaching an agreement with the EPA 

debarring official under informal 

procedures. Using your informal option 

first does not prevent you from 

submitting a formal reinstatement 

request with the debarring official at any 

time. 

§ 1532.1210 Will anyone else provide 

information to the EPA debarring official 

concerning my reinstatement request? 

If you request reinstatement under 

§ 1532.1205, the EPA debarring official 

may obtain review and comment on 

your request by anyone who may have 

information about, or an official interest 

in, the matter. For example, the 

debarring official may consult with the 

EPA Regional offices, the Department of 

Justice or other Federal agencies, or 

state, tribal or local governments. The 

EPA debarring official will make sure 

that you have an opportunity to address 

important allegations or information 

contained in the administrative record 

before making a final decision on your 

request for reinstatement. 

§ 1532.1215 What happens if I disagree 

with the information provided by others to 

the EPA debarring official on my 

reinstatement request? 

(a) If your reinstatement request is 

based on factual information (as 

opposed to a legal matter or 

discretionary conclusion) that is 

different from the information provided 

by others or otherwise contained in the 

administrative record, the debarring 

official will decide whether those facts 

are genuinely in dispute, and material to 

making a decision. If so, a fact-finding 

proceeding will be conducted in 

accordance with 2 CFR 180.830 through 

180.840, and the debarring official will 

consider the findings when making a 

decision on your reinstatement request. 

(b) If the basis for your disagreement 

with the information contained in the 

administrative record relates to a legal 

issue or discretionary conclusion, or is 

not a genuine dispute over a material 

fact, you will not have a fact-finding 

proceeding. However, the debarring 

official will allow you ample 

opportunity to support your position for 

the record and present matters in 

opposition to your continued 

disqualification. A summary of any 

information you provide orally, if not 

already recorded, should also be 

submitted to the debarring official in 

writing to assure that it is preserved for 

the debarring official’s consideration 

and the administrative record. 

§ 1532.1220 What will the EPA debarring 

official consider in making a decision on my 

reinstatement request? 

(a) The EPA debarring official will 

consider all information and arguments 

contained in the administrative record 

in support of, or in opposition to, your 


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2426 Federal Register / Vol. 72, No. 12 / Friday, January 19, 2007 / Rules and Regulations 

request for reinstatement, including any 

findings of material fact. 

(b) The debarring official will also 

consider any mitigating or aggravating 

factors that may relate to your 

conviction or the circumstances 

surrounding it, including any of those 

factors that appear in 2 CFR 180.860 

that may apply to your situation. 

(c) Finally, if disqualification applies 

to a business entity, the debarring 

official will consider any corporate or 

business attitude, policies, practices and 

procedures that contributed to the 

events leading to conviction, or that 

may have been implemented since the 

date of the misconduct or conviction. 

You can obtain any current policy 

directives issued by the EPA that apply 

to CAA or CWA disqualification or 

reinstatement by contacting the Office of 

the EPA Debarring Official, U.S. EPA, 

Office of Grants and Debarment (3901R), 

1200 Pennsylvania Avenue, NW., 

Washington, DC 20460. 

§ 1532.1225 When will the EPA debarring 

official make a decision on my 

reinstatement request? 

(a) The EPA debarring official will 

make a decision regarding your 

reinstatement request under 

§ 1532.1205(a), when the administrative 

record is complete, and he or she can 

determine whether the condition giving 

rise to the CAA or CWA conviction has 

been corrected-usually within 45 days 

of closing the administrative record. 

(b) A reinstatement request is not 

officially before the debarring official 

while you are having informal 

discussions under § 1532.1205(b). 

§ 1532.1230 How will the EPA debarring 

official notify me of the reinstatement 

decision? 

The EPA debarring official will notify 

you of the reinstatement decision in 

writing, using the same methods for 

communicating debarment or 

suspension action notices under 2 CFR 

180.615. 

§ 1532.1300 Can I resolve my eligibility 

status under terms of an administrative 

agreement without having to submit a 

formal reinstatement request? 

(a) The EPA debarring official may, at 

any time, resolve your CAA or CWA 

eligibility status under the terms of an 

administrative agreement. Ordinarily, 

the debarring official will not make an 

offer to you for reinstatement until after 

the administrative record for decision is 

complete, or contains enough 

information to enable him or her to 

make an informed decision in the 

matter. 

(b) Any resolution of your eligibility 

status under the CAA or CWA resulting 

from an administrative agreement must 

include a certification that the condition 

giving rise to the conviction has been 

corrected. 

(c) The EPA debarring official may 

enter into an administrative agreement 

to resolve CAA or CWA disqualification 

issues as part of a comprehensive 

criminal plea, civil or administrative 

agreement when it is in the best interest 

of the United States to do so. 

§ 1532.1305 What are the consequences if 

I mislead the EPA in seeking reinstatement 

or fail to comply with my administrative 

agreement? 

(a) Any certification of correction 

issued by the EPA debarring official 

whether the certification results from a 

reinstatement decision under 

§§ 1532.1205(a) and 1532.1230, or from 

an administrative agreement under 

§§ 1532.1205(b) and 1532.1300, is 

conditioned upon the accuracy of the 

information, representations or 

assurances made during development of 

the administrative record. 

(b) If the EPA debarring official finds 

that he or she has certified correction of 

the condition giving rise to a CAA or 

CWA conviction or violation on the 

basis of a false, misleading, incomplete 

or inaccurate information; or if a person 

fails to comply with material condition 

of an administrative agreement, the EPA 

debarring official may take suspension 

or debarment action against the 

person(s) responsible for the 

misinformation or noncompliance with 

the agreement as appropriate. If anyone 

provides false, inaccurate, incomplete or 

misleading information to EPA in an 

attempt to obtain reinstatement, the EPA 

debarring official will refer the matter to 

the EPA Office of Inspector General for 

potential criminal or civil action. 

§ 1532.1400 How may I appeal a decision 

denying my request for reinstatement? 

(a) If the EPA debarring official denies 

your request for reinstatement under the 

CAA or CWA, you can ask for review of 

the debarring official’s decision in two 

ways: 

(1) You may ask the debarring official 

to reconsider the decision for material 

errors of fact or law that you believe will 

change the outcome of the matter; and/ 

or 

(2) You may request the Director, 

Office of Grants and Debarment (OGD 

Director), to review the debarring 

official’s denial within 30 days of your 

receipt of the debarring official’s 

decision under § 1532.1230 or 

paragraph (a)(1) of this section. 

However, the OGD Director can reverse 

the debarring official’s decision denying 

reinstatement only where the OGD 

Director finds that there is a clear error 

of material fact or law, or where the 

OGD Director finds that the debarring 

official’s decision was arbitrary, 

capricious, or an abuse of discretion. 

(b) A request for review under this 

section must be in writing and state the 

specific findings you believe to be in 

error and include the reasons or legal 

bases for your position. 

(c) A review under this section is 

solely within the discretion of the OGD 

Director. 

(d) The OGD Director must notify you 

of his or her decision under this section, 

in writing, using the notice procedures 

at 2 CFR 180.615 and 180.975. 

§ 1532.1500 If I am reinstated, when will 

my name be removed from the EPLS? 

If your eligibility for procurement and 

nonprocurement participation is 

restored under the CAA or CWA, 

whether by decision, appeal, or by 

administrative agreement, the EPA will 

remove your name and that of the 

violating facility from the EPLS, 

generally within 5 working days of your 

reinstatement. 

§ 1532.1600 What definitions apply 

specifically to actions under this subpart? 

In addition to definitions under 

subpart A through I of 2 CFR part 180 

that apply to this part as a whole, the 

following two definitions apply 

specifically to CAA and CWA 

disqualifications under this subpart: 

(a) Person means an individual, 

corporation, partnership, association, 

state, municipality, commission, or 

political subdivision of a state, or any 

interstate body. 

(b) Violating facility means any 

building, plant, installation, structure, 

mine, vessel, floating craft, location or 

site of operations that gives rise to a 

CAA or CWA conviction, and is a 

location at which or from which a 

Federal contract, subcontract, loan, 

assistance award or other covered 

transactions may be performed. If a site 

of operations giving rise to a CAA or 

CWA conviction contains or includes 

more than one building, plant, 

installation, structure, mine, vessel, 

floating craft, or other operational 

element, the entire location or site of 

operation is regarded as the violating 

facility unless otherwise limited by the 

EPA. 

Title 40 Environment—Chapter I—

Environmental Protection Agency 

PART 26—[AMENDED] 

■ 1. The authority citation for part 26 

continues to read as follows: 


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Federal Register / Vol. 72, No. 12 / Friday, January 19, 2007 / Rules and Regulations 2427 

Authority: 5 U.S.C. 301; 7 U.S.C. 

163w(a)(1); 21 U.S.C. 346a(e)(1)(C); section 

201 of Pub. L. 109–54; and 42 U.S.C. 300v–

1(b). 

§ 26.1506 [Amended] 

■ 2. Section 26.1506 is amended by 

revising the citation ‘‘40 CFR Part 32’’

to read ‘‘2 CFR part 1532.’’

PART 30—[AMENDED] 

■ 3. 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. 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). 

§ 30.13 [Amended] 

■ 4. Section 30.13 is amended by 

revising twice the citation ‘‘40 CFR Part 

32’’ to read ‘‘2 CFR part 1532.’’

Appendix to Part 30—[Amended] 

■ 5. Appendix to part 30 is amended by 

removing paragraph 8. 

PART 32—[REMOVED] 

■ 6. Under authority Sec. 2455, Pub. L. 

103–355, 108 Stat. 3327 (31 U.S.C. 6101 

note); E.O. 11738 (3 CFR, 1973 Comp., 

p. 799); E.O. 12549 (3 CFR, 1986 Comp., 

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

p. 235) part 32 is removed. 

PART 35—[AMENDED] 

■ 7. The authority citation for part 35 

continues to read as follows: 

Authority: 42 U.S.C. 9601 et seq. 

§ 35.6055 [Amended] 

■ 8. Section 35.6055 is amended by 

removing paragraphs(a)(3) and (a)(4) 

and redesignating paragraphs (a)(5) and 

(a)(6) as (a)(3) and (a)(4) respectively. 

§ 35.6105 [Amended] 

■ 9. Section 35.6105 is amended by 

removing paragraphs(a)(3) and (a)(4) 

and redesignating paragraphs (a)(5) and 

(a)(6) as (a)(3) and (a)(4) respectively. 

PART 36—[AMENDED] 

■ 10. The authority citation for part 36 

continues to read as follows: 

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

§ 36.510 [Amended] 

■ 11. Section 36.510(c) is amended by 

revising the citation ‘‘40 CFR Part 32’’

to read ‘‘2 CFR part 1532.’’

PART 46—[AMENDED] 

■ 12. The authority citation for part 46 

continues to read as follows: 

Authority: Section 103(b)(5) of the Clean 

Air Act, as amended (42 U.S.C. 7403(b)(5)); 

sections 104(b)(5) and (g)(3)(B) of the Clean 

Water Act, as amended (33 U.S.C. 1254(b)(5) 

and (g)(3)(B)); section 1442 of the Safe 

Drinking Water Act, as amended (42 U.S.C. 

300j-1); section 8001 of the Solid Waste 

Disposal Act, as amended (42 U.S.C. 6981); 

section 10 of the Toxic Substances Control 

Act, as amended (15 U.S.C. 2609); section 20 

of the Federal Insecticide, Fungicide, and 

Rodenticide Act, as amended (7 U.S.C. 136r); 

sections 104(k)(6)and 311 of the 

Comprehensive Environmental Response, 

Compensation, and Liability Act (42 U.S.C. 

9604(k)(6) and 42 U.S.C. 9660). 

■ 13. Section 46.130 is amended by 

revising the second sentence to read as 

follows: 

§ 46.130 Debarment and suspension. 

* * * Names of individuals who are 

excluded or disqualified are located in 

the Excluded Parties List System 

maintained by the General Services 

Administration and currently located at 

http://www.epls.gov. 

§ 46.215 [Amended] 

■ 14. Section 46.215(c) is amended by 

revising the citation ‘‘40 CFR Part 32’’

to read ‘‘2 CFR part 1532.’’

PART 80—[AMENDED] 

■ 15. The authority citation for part 80 

continues to read as follows: 

Authority: 42 U.S.C. 7414, 7545, 7542, and 

7610(a). 

§ 80.65 [Amended] 

■ 16. Section 80.65(f)(2)(iv) is amended 

by revising the citation ‘‘40 CFR Part 

32’’ to read ‘‘2 CFR part 1532.’’

■ 17. Section 80.65(f)(2)(v) is amended 

by revising the citation ‘‘40 CFR Part 

32’’ to read ‘‘2 CFR part 1532.’’

§ 80.125 [Amended] 

■ 18. Section 80.125(e) is amended by 

revising the citation ‘‘40 CFR Part 32’’

to read ‘‘2 CFR part 1532.’’

Title 48 Federal Acquisition 

Regulations System—Chapter XV—

Environmental Protection Agency 

PART 1509—[AMENDED] 

■ 19. The authority citation for part 

1509 continues to read as follows: 

Authority: Sec. 205(c), 63 Stat. 390, as 

amended, 40 U.S.C. 486(c). 

1509.403 [Amended] 

■ 20. Section 1509.403 is amended by 

revising the citation ‘‘40 CFR Part 32’’

to read ‘‘2 CFR part 1532.’’

[FR Doc. E7–641 Filed 1–18–07; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory 

Commission 

18 CFR Part 358 

[Docket No. RM07–6–000; Order No. 690] 

Standards of Conduct for 

Transmission Providers 

Issued January 9, 2007. 

AGENCY: Federal Energy Regulatory 

Commission, DOE. 

ACTION: Interim rule. 

SUMMARY: This interim rule responds to 

the decision of the United States Court 

of Appeals for the District of Columbia 

vacating and remanding the standards of 

conduct rule, Order No. 2004, as it 

relates to interstate natural gas 

pipelines, in National Fuel Gas Supply 

Corporation v. FERC, 468 F.3d 831 (D.C. 

Cir. 2006). The court objected to the 

Federal Energy Regulatory 

Commission’s (Commission’s) 

expansion of the prior standards of 

conduct to include energy affiliates, and 

vacated the entire rule as it relates to 

natural gas pipelines. The interim rule 

repromulgates the standards of conduct 

that were not challenged before the 

court on an interim basis while the 

Commission considers how to respond 

to the court’s decision on a permanent 

basis. 

EFFECTIVE DATE: This rule is effective 

January 9, 2007. 

FOR FURTHER INFORMATION CONTACT: 

Deme Anas, Office of Enforcement, 

Federal Energy Regulatory Commission, 

888 First Street, NE., Washington, DC 

20426. Telephone: (202) 502–8178. Email: demetra.anas@ferc.gov. Stuart 

Fischer, Office of Enforcement, Federal 

Energy Regulatory Commission, 888 

First Street, NE., Washington, DC 20426. 

Telephone: (202) 502–8517. E-mail: 

stuart.fischer@ferc.gov. 

SUPPLEMENTARY INFORMATION: 

Before Commissioners: Joseph T. Kelliher, 

Chairman; Suedeen G. Kelly, Marc Spitzer, 

Philip D. Moeller, and Jon Wellinghoff. 

I. Introduction 

1. The Federal Energy Regulatory 

Commission (Commission) is 

promulgating interim standards of 


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