[Federal Register Volume 72, Number 12 (Friday, January 19, 2007)]
[Rules and Regulations]
[Pages 2421-2427]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-641]



========================================================================
Rules and Regulations
                                                Federal Register
________________________________________________________________________

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.

========================================================================


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

[[Page 2421]]


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

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 
(<a href="/cdn-cgi/l/email-protection#6109041312094f12141b000f0f04210411004f060e17"><span class="__cf_email__" data-cfemail="264e4354554e0855535c474848436643564708414950">[email protected]</span></a>).

SUPPLEMENTARY INFORMATION:

Background

    On May 11, 2004, OMB established Title 2 of the CFR with two 
subtitles (69 FR 26275). Subtitle A, ``Government-wide 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

[[Page 2422]]

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.

0
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

0
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

[[Page 2423]]

reinstatement or fail to comply with my administrative agreement?
1532.1400 How may I appeal a decision denying my request for 
reinstatement?
1532.1500 If I am reinstated, when will my name be removed from the 
EPLS?
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).


Sec.  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).


Sec.  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.


Sec.  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., Sec.  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

Sec.  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

Sec.  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


Sec.  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


Sec.  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


Sec.  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.

[[Page 2424]]

Subpart H--Debarment


Sec.  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


Sec.  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


Sec.  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 Sec.  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 decision-making 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.


Sec.  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.


Sec.  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 Sec.  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.


Sec.  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.


Sec.  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.


Sec.  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.


Sec.  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

[[Page 2425]]

the discretion of Federal suspending or debarring officials. This means 
that if you are convicted of violating the CAA or CWA provisions 
described under Sec.  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.


Sec.  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 Sec. Sec.  
1532.1205 and 1532.1300.


Sec.  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.


Sec.  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.


Sec.  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.


Sec.  1532.1210  Will anyone else provide information to the EPA 
debarring official concerning my reinstatement request?

    If you request reinstatement under Sec.  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.


Sec.  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.


Sec.  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

[[Page 2426]]

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.


Sec.  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 Sec.  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 Sec.  
1532.1205(b).


Sec.  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.


Sec.  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.


Sec.  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 Sec. Sec.  1532.1205(a) and 1532.1230, or from an 
administrative agreement under Sec. Sec.  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.


Sec.  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 Sec.  
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.


Sec.  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.


Sec.  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]

0
1. The authority citation for part 26 continues to read as follows:


[[Page 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).


Sec.  26.1506  [Amended]

0
2. Section 26.1506 is amended by revising the citation ``40 CFR Part 
32'' to read ``2 CFR part 1532.''

PART 30--[AMENDED]

0
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).


Sec.  30.13  [Amended]

0
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]

0
5. Appendix to part 30 is amended by removing paragraph 8.

PART 32--[REMOVED]

0
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]

0
7. The authority citation for part 35 continues to read as follows:

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


Sec.  35.6055  [Amended]

0
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.


Sec.  35.6105  [Amended]

0
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]

0
10. The authority citation for part 36 continues to read as follows:

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


Sec.  36.510  [Amended]

0
11. Section 36.510(c) is amended by revising the citation ``40 CFR Part 
32'' to read ``2 CFR part 1532.''

PART 46--[AMENDED]

0
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).

0
13. Section 46.130 is amended by revising the second sentence to read 
as follows:


Sec.  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.


Sec.  46.215  [Amended]

0
14. Section 46.215(c) is amended by revising the citation ``40 CFR Part 
32'' to read ``2 CFR part 1532.''

PART 80--[AMENDED]

0
15. The authority citation for part 80 continues to read as follows:

    Authority: 42 U.S.C. 7414, 7545, 7542, and 7610(a).


Sec.  80.65  [Amended]

0
16. Section 80.65(f)(2)(iv) is amended by revising the citation ``40 
CFR Part 32'' to read ``2 CFR part 1532.''
0
17. Section 80.65(f)(2)(v) is amended by revising the citation ``40 CFR 
Part 32'' to read ``2 CFR part 1532.''


Sec.  80.125  [Amended]

0
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]

0
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]

0
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


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>