Suspension, Debarment and Ineligibility for Contracts, Assistance, Loans and Benefits

[[Page 47135]]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 15 and 32

[FRL-5219-6]

RIN 2030-AA38

Suspension, Debarment and Ineligibility for Contracts,

Assistance, Loans and Benefits

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: In this notice, EPA proposes to remove Part 15

(``Administration of the Clean Air Act and the Clean Water Act with

Respect to Contracts, Grants, and Loans--List of Violating

Facilities'') from Title 40 of the Code of Federal Regulations. EPA

also proposes that 40 CFR Part 32, Governmentwide Debarment and

Suspension (Nonprocurement) and Governmentwide Requirements for

Drugfree Workplace (Grants), be amended simultaneously by adding

procedures needed to administer the ineligibility provisions of the

Clean Air Act (CAA), Clean Water Act (CWA), and EO 11738.

DATES: Comments must be submitted on or before November 13, 1995.

ADDRESSES: Comments may be mailed to Robert Meunier, Director,

Suspension and Debarment Division (3902F), U.S. Environmental

Protection Agency, 401 M St. SW, Washington, DC 20460, or delivered to

EPA, Fairchild Building, 499 South Capitol St., room 217 between 8 a.m.

and 4:30 p.m.

Comments and data may also be submitted electronically by

electronic mail (e-mail) to: [email protected]. Electronic

comments must be submitted as an ASCII file avoiding the use of special

characters and any form of encryption. Comments and data will also be

accepted on disks in WordPerfect in 5.1 file format or ASCII file

format. All comments and data in electronic form must be identified by

the docket number [FRL-5219-6]. No Confidential Business Information

(CBI) should be submitted through e-mail. Electronic comments on this

proposed rule may be filed online at many Federal Depository Libraries.

Additional information on electronic submissions can be found below.

FOR FURTHER INFORMATION CONTACT: Robert F. Meunier, Director,

Suspension and Debarment Division (3902F), 401 M Street S.W.,

Washington, DC 20460. Telephone: (202) 260-8025.

SUPPLEMENTARY INFORMATION:

A. Background

Last year, the EPA Administrator decided to reorganize the former

Office of Enforcement (OE), now the Office of Enforcement and

Compliance Assurance (OECA). As part of that reorganization,

administrative responsibility for the Part 15 CAA and CWA contractor

listing program was transferred from OECA to the Office of

Administration and Resources Management (OARM) so that all EPA

debarment functions would be conducted by a single office.

On October 5, 1994, EPA published technical amendments to 40 CFR

Parts 15 and 32 to reassign specific functions from OECA to OARM. (See,

59 Fed. Reg. 50691). In the preamble to those amendments, EPA notified

the public of its intention to consolidate the two rules into a single

rule in 1995.

These proposed amendments would eliminate Part 15 in its entirety,

and amend EPA's suspension and debarment rule at Part 32 by adding the

few procedures needed to implement the statutorily mandated

ineligibility provisions of the CAA and the CWA.

In addition to significantly reducing regulatory text, the proposed

rule will reduce the confusion that occurred because EPA had one set of

procedures for mandatory and discretionary facility ineligibility (Part

15), and another for discretionary suspension and debarment actions

(Part 32). When the proposed amendments become final, pre-conviction

cases involving violations of the CAA and CWA will, like cases

involving other environmental statutes, be candidates for suspension

and proposed debarment under 40 CFR Part 32 and 48 CFR Subpart 9.4.

The following regulatory provisions will be affected under this

proposed rule.

Part 15 of Title 40 of the Code of Federal Regulations will be

removed.

Part 32 of Title 40 of the Code of Federal Regulations will be

amended to incorporate references to the CAA and CWA ineligibility

provisions in the title, table of contents, and authorities section.

General references will be added to the purpose clauses at

Sec. 32.100(e) and the definitions of ``facility'' and ``CAA or CWA

ineligibility'' will be added to the definitions at Sec. 32.105.

New paragraphs (d) are added to Secs. 32.110 (Coverage) and 32.115

(Policy), to indicate that CAA and CWA ineligibility are within the

scope of this rule; and the statutory authority of agency heads to

grant exceptions to CAA and CWA ineligible facilities has been added to

the exceptions provisions at Sec. 32.215(a) according to the standards

set forth in the statute.

A significant addition being proposed is a new paragraph (c) in the

settlement provisions of Sec. 32.315. The new text would state that, as

part of a comprehensive settlement agreement and before a judgment of

conviction is entered, the EPA debarring official may certify that the

condition giving rise to the CAA or CWA violation has been corrected.

Such certifications would be issued only if the Debarring Official has

the same type of documentation which would be required to obtain

reinstatement (under the new Sec. 32.321) after a post-conviction CAA

or CWA facility ineligibility.

A new Sec. 32.321 is proposed which prescribes the procedures for

seeking reinstatement of facility eligibility.

Finally, Secs. 32.330 and 32.425 are proposed to be removed from

this rule as part of EPA's effort to eliminate unnecessary regulatory

provisions. These sections were part of EPA's original 1982 assistance

debarment regulation and were retained when EPA published its version

of the OMB Nonprocurement Governmentwide Debarment and Suspension Rule

(Common Rule) in 1988. Although the Common Rule does not prescribe a

``reconsideration'' procedure, Sec. 32.320(c) authorizes a debarred

respondent to request, at any time, that the debarment decision be

reversed or that the period or scope of a debarment be reduced. Even

without this provision, EPA believes that the debarring and suspending

official has inherent authority to reconsider a suspension or debarment

decision.

The proposed removal of the Secs. 32.330 and 32.425 reconsideration

provisions will not affect a respondent's opportunity to file an appeal

under Secs. 32.335 and 32.430. Although also not prescribed in the OMB

Common Rule, the seldom used Part 32 appeal provisions are being

retained because they provide an inexpensive procedure for challenging

EPA suspension and debarment determinations.

A record has been established for this rulemaking under docket

number ``[FRL-5219-6]'' (including comments and data submitted

electronically as described below). A public version of this record,

including printed paper versions of electronic comments, which does not

include any information claimed as CBI, is available for inspection

from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays.

The public record is located in Room 217 of the EPA Fairchild Building

located at 499 South Capitol Street, Washington, DC.

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Electronic comments can be sent directly to EPA at:

[email protected]

Electronic comments must be submitted as an ASCII file avoiding the

use of special characters and any form of encryption.

The official record for this rulemaking, as well as the public

version, as described above will be kept in paper form. Accordingly,

EPA will transfer all comments received electronically into printed,

paper form as they are received and will place the paper copies in the

official rulemaking record which will also include all comments

submitted directly in writing. The official rulemaking record is the

paper record maintained at the address in ADDRESSES at the beginning of

this document.

Rulemaking Analysis

B. Executive Order 12866

This rulemaking has been determined not to be significant under EO

12866. However, it has been sent to the Office of Management and Budget

for review for consistency with the OMB Common Rule.

C. Regulatory Flexibility Act

The EPA certifies that this proposed rule would not have a

significant economic impact on a substantial number of small entities.

D. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because this rule does

not contain information collection requirements for the approval of OMB

under 44 U.S.C. 3501 et seq.

Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L.

104-4, establishes requirements for Federal agencies to assess the

effects of their regulatory actions on State, local, and tribal

governments and the private sector. Under section 202 of the UMRA, EPA

generally must prepare a written statement, including a cost-benefit

analysis, for proposed and final rules with ``Federal mandates'' that

may result in expenditures to State, local, and tribal governments, in

the aggregate, or to the private sector, of $100 million or more in any

one year. Before promulgating an EPA rule for which a written statement

is needed, section 205 of the UMRA generally requires EPA to identify

and consider a reasonable number of regulatory alternatives and adopt

the least costly, most cost-effective or least burdensome alternative

that achieves the objectives of the rule. The provisions of section 205

do not apply when they are inconsistent with applicable law. Moreover,

section 205 allows EPA to adopt an alternative other than the least

costly, most cost-effective or least burdensome alternative if the

Administrator publishes with the final rule an explanation why that

alternative was not adopted. Before EPA establishes any regulatory

requirements that may significantly or uniquely affect small

governments, including tribal governments, it must have developed under

section 203 of the UMRA a small government agency plan. The plan must

provide for notifying potentially affected small governments, enabling

officials of affected small governments to have meaningful and timely

input in the development of EPA regulatory proposals with significant

Federal intergovernmental mandates, and informing, educating, and

advising small governments on compliance with the regulatory

requirements.

Today's proposed rule contains no Federal mandates (under the

regulatory provisions of Title II of the UMRA) for State, local, or

tribal governments or the private sector. The proposed rule imposes no

enforceable duties on any of these governmental entities or the private

sector. This proposed rule does not change the current statutory and

regulatory duties that arise from conditions of federal assistance

which, as defined by UMRA, do not constitute a ``Federal

intergovernmental mandate'' or a ``Federal private sector mandate.''

Thus, today's proposed rule is not subject to the requirements of

sections 202 and 205 of the UMRA.

EPA has determined that this proposed rule contains no regulatory

requirements that might significantly or uniquely affect small

governments. The proposed rule would eliminate the separate procedures

in 40 CFR Part 15 for administering the Clean Air Act and Clean Water

Act ineligibility provisions, and incorporate simplified ineligibility

procedures in EPA's existing nonprocurement suspension and debarment

rules (40 CFR Part 32). None of these amended procedures would impose

significant or unique regulatory requirements on small governments.

Therefore, the proposed rule is not subject to section 203 of the UMRA.

List of Subjects in 40 CFR Parts 15 and 32

Administrative practice and procedure, Debarment and suspension,

Ineligibility.

Dated: August 21, 1995.

Alvin Peschowitz,

Acting Assistant Administrator, Office of Administration and Resources

Management.

For the reasons set out in the preamble, 40 CFR Parts 15 and 32 are

proposed to be amended as follows:

1. Part 15 is removed.

2. The title of Part 32 is revised to read as follows:

PART 32--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)

AND GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (GRANTS);

CLEAN AIR ACT AND CLEAN WATER ACT INELIGIBILITY OF FACILITIES IN

PERFORMANCE OF FEDERAL CONTRACTS, GRANTS AND LOANS

3. The authorities citation for part 32 is revised to read as

follows:

Authority: EO 12549; 41 U.S.C. 701 et seq.; 7 U.S.C. 136 et

seq.; 15 U.S.C. 2601 et seq.; 20 U.S.C. 4011 et seq.; 33 U.S.C. 1251

et seq.; 42 U.S.C. 300f, 4901, 6901, 7401, 9801 et seq.; EO 12689;

EO 11738; Pub. L. 103-355 Sec. 2455.

4. Section 32.100 is amended by adding new paragraph (e) as

follows:

Sec. 32.100 Purpose.

* * * * *

(e) Facilities ineligible to provide goods, materials, or services

under Federal contracts, loans or assistance, pursuant to Section 306

of the Clean Air Act (CAA) or Section 508 of the Clean Water Act (CWA)

are excluded in accordance with the terms of those statutes.

Reinstatement of a CAA or CWA ineligibile facility may be requested in

accordance with the procedures at Sec. 32.321.

5. Section 32.105 is amended by adding in alphabetical order the

following definitions.

Sec. 32.105 Definitions.

* * * * *

CAA or CWA ineligibility. The status of a facility which, as

provided in section 306 of the Clean Air Act (CAA) and section 508 of

the Clean Water Act (CWA), is ineligible to be used in the performance

of a Federal contract, subcontract, loan, assistance award or covered

transaction. Such ineligibility commences upon conviction of a facility

owner, lessee, or supervisor for a violation of section 113 of the CAA

or section 309(c) of the CWA, which violation occurred at the facility.

The ineligibility of the facility continues until such time as the EPA

Debarring Official certifies that the condition giving rise to the CAA

or CWA criminal conviction has been corrected.

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Facility. Any building, plant, installation, structure, mine,

vessel, floating craft, location or site of operations at which, or

from which, a Federal contract, subcontract, loan, assistance award or

covered transaction is to be performed. Where a location or site of

operations contains or includes more than one building, plant,

installation or structure, the entire location or site shall be deemed

the facility unless otherwise limited by EPA.

* * * * *

6. Section 32.110 is amended by adding a new paragraph (d) to read

as follows:

Sec. 32.110 Coverage.

* * * * *

(d) Except as provided in Sec. 32.215 of this Part, Federal

agencies shall not use a CAA or CWA ineligible facility in the

performance of any Federal contract, subcontract, loan, assistance

award or covered transaction.

* * * * *

7. Section 32.115 is amended by revising paragraph (d) to read as

follows:

Sec. 32.115 Policy.

* * * * *

(d) It is EPA policy to exercise its authority to reinstate CAA or

CWA ineligible facilities in a manner which is consistent with the

policies in paragraphs (a) and (b) of this section.

* * * * *

8. Section 32.215 is amended by revising paragraph (a) to read as

follows:

Sec. 32.215 Exception provision.

* * * * *

(a) Any agency head, or authorized designee, may except any Federal

contract, subcontract, loan, assistance award or covered transaction,

individually or as a class, in whole or in part, from the prohibitions

otherwise applicable by reason of a CAA or CWA ineligibility. The

agency head granting the exception shall notify the EPA Debarring

Official of the exception as soon, before or after granting the

exception, as may be practicable. The justification for such an

exception, or any renewal thereof, shall fully describe the purpose of

the contract or covered transaction, and show why the paramount

interest of the United States requires the exception.

9. Section 32.215 is further amended by adding a new paragraph (b)

to read as follows:

Sec. 32.215 Exception provision.

* * * * *

(b) The EPA Debarring Official is the official authorized to grant

exceptions under this section for EPA.

10. Section 32.315 is amended by adding a new paragraph (c) to read

as follows:

Sec. 32.315 Settlement and voluntary exclusion.

* * * * *

(c) The EPA Debarring Official may consider matters regarding

present responsibility, as well as any other matter regarding the

conditions giving rise to alleged CAA or CWA violations in anticipation

of entry of a plea, judgment or conviction. If, at any time, it is in

the interest of the United States to conclude such matters pursuant to

a comprehensive settlement agreement, the EPA Debarring Official may

conclude the debarment and ineligibility matters as part of any such

settlement, so long as he or she certifies that the condition giving

rise to the CAA or CWA violation has been corrected.

11. Section 32.321 is added to read as follows:

Sec. 32.321 Reinstatement of facility eligibility.

(a) A written petition to reinstate the eligibility of a CAA or CWA

ineligible facility may be submitted to the EPA Debarring Official. The

petitioner bears the burden of providing sufficient information and

documentation to establish, by a preponderance of the evidence, that

the condition giving rise to the CAA or CWA conviction has been

corrected. If the material facts set forth in the petition are

disputed, and the Debarring Official denies the petition, the

petitioner shall be afforded the opportunity to have additional

proceedings as provided in Sec. 32.314(b).

(b) A decision by the EPA Debarring Official denying a petition for

reinstatement may be appealed under Sec. 32.335.

Sec. 32.330 [Removed]

12. Section 32.330 is removed.

Sec. 32.425 [Removed]

13. Section 32.425 is removed.

[FR Doc. 95-22088 Filed 9-8-95; 8:45 am]

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