RAIN-2025-G02
Class Exception from Requirements under 40 CFR Part 33 and Class Waiver from EPA Order 5700.6 A2 CHG 2, Section 7.0
Notification Date: April 7, 2025
Purpose: This Recipient/Applicant Information Notice (RAIN) informs EPA assistance agreement recipients of the signed class exception to: 1) fair share objective requirements in 40 CFR Part 33, Subpart D; 2) recipient reporting requirements under 40 CFR 33.502; and 3) the compliance and enforcement provisions under 40 CFR 33.105. EPA also waived the requirement to collect the final EPA Form 5700-52A, MBE/WBE Utilization Under Federal Grants and Cooperative Agreements as part of the closeout procedures of an EPA award.
Summary: As the EPA assesses its programs for consistency with agency priorities, the EPA is suspending agency actions related to its implementation of 40 CFR Part 33, the Disadvantaged Business Enterprises (DBE) program. Specifically, the Agency is suspending the negotiation of fair share objectives with recipients under 40 CFR Part 33.401, as well as the collection of recipient reports as described under 40 CFR 33.502. Additionally, the Agency will not take any enforcement actions against a recipient for not complying with any other provision of the rule as prescribed under 40 CFR 33.105. Finally, the Agency will not require the collection of EPA Form 5700-52A, MBE/WBE Utilization Under Federal Grants and Cooperative Agreements, prior to closeout under the closeout procedures.
Background: The EPA’s DBE program, as codified in 40 CFR Part 33, implements Title X of the Clean Air Act Amendments of 1990, 42 U.S.C. § 7601 note, and Public Law 102-389, 42 U.S.C. § 4370d. Title X of the Clean Air Act Amendments establishes a ten percent (10%) DBE goal for contracts awarded under Clean Air Act research projects funded by EPA financial assistance. 42 U.S.C. § 4370d establishes an eight percent (8%) DBE goal for prime and subcontracts awarded in support of all other financial assistance programs. Neither statutory provision prescribes specific requirements for promoting, monitoring, or administering DBE goal achievements.
Applicability: This class exception supersedes the June 29, 2023, RAIN-2023-G02, which reinstated fair share objective negotiation requirements, and all other DBE Program Guidance pursuant to that reinstatement. The October 1, 2019, class exception to 40 CFR Part 33, Subpart B, EPA MBE/WBE Certification, remains in effect. Nothing in this class exception and waiver affects EPA’s statutory obligations or agency and recipient obligations under 2 CFR Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, including the considerations (“good faith efforts”) listed in 2 CFR 200.321 when procuring goods and services under the EPA award.
Action: Effective immediately and until further notice, EPA is suspending:
- Fair share objectives negotiation requirements under 40 CFR Part 33 Subpart D;
- Recipient reporting requirements under 40 CFR 33.502;
- All enforcement and compliance actions pursuant to 40 CFR Part 33.105;
- Collection of EPA Form 5700-52A as a condition of closeout.
All provisions of 40 CFR Part 33 not specifically listed in this class exception remain in effect. Recipients may continue to follow these provisions; however, EPA will not pursue any enforcement actions against a recipient for failure to comply with any parts of this regulation.
Term and Condition: The Office of Grants and Debarment (OGD) has revised the existing General Term and Condition, “Utilization of Disadvantaged Business Enterprises” to align with this class exception and waiver. The term and condition is applicable to all recipients and supersedes all previously existing DBE terms and conditions.