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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 15 and 32

[FRL-5513-1]

RIN 2030-AA38

Suspension, Debarment and Ineligibility for Contracts,

Assistance, Loans and Benefits

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This rule removes 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. This rule also amends 40 CFR Part 32,

Governmentwide Debarment and Suspension (Nonprocurement) and

Governmentwide Requirements for Drugfree Workplace (Grants), by adding

procedures needed to administer the ineligibility provisions of the

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

EFFECTIVE DATE: June 6, 1996.

FOR FURTHER INFORMATION CONTACT: Robert F. Meunier, EPA Suspending and

Debarring Official, (3901F), 401 M Street, SW., Washington, DC 20460.

Telephone: (202) 260-8030; or E-Mail to:

[email protected].

SUPPLEMENTARY INFORMATION:

A. Background

On September 11, 1995, EPA published a Notice of Proposed

Rulemaking (See 60 FR 47135) proposing to eliminate regulations at 40

CFR Part 15 governing the listing, and removal from the list, of

facilities rendered ineligible to participate in Federal grants,

contracts and loans pursuant to Section 306 of the Clean Air

[[Page 28756]]

Act (CAA) and Section 508 of the Clean Water Act (CWA). The Notice

proposed to simultaneously amend 40 CFR Part 32, EPA's regulations

implementing the Governmentwide nonprocurement common rule for

suspension and debarment, to incorporate provisions relating to

facility ineligibility and reinstatement pursuant to the CAA and CWA.

The Notice provided a 60 day period ending November 13, 1995, to

consider public comments on the proposed rule. No comments were

received.

The publication of this final rule completes EPA's administrative

consolidation of its statutory ineligibility and discretionary

debarment authorities within a single office, the Office of

Administration and Resources Management (OARM). All EPA debarment,

ineligibility and/or reinstatement actions will now be subject to

consistent policy development and flexible procedures applicable to

OMB's Governmentwide suspension and debarment system.

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 rule does 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 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 rule imposes no enforceable

duties on any of these governmental entities or the private sector.

This 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 rule is not subject

to the requirements of sections 202 and 205 of the UMRA.

EPA has determined that this final rule contains no regulatory

requirements that might significantly or uniquely affect small

governments. The rule eliminates the separate procedures in 40 CFR Part

15 for administering the Clean Air Act and Clean Water Act

ineligibility provisions, and incorporates 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 rule is not subject to section 203 of the UMRA.

List of Subjects in 40 CFR Parts 15 and 32

Environmental protection, Administrative practice and procedure,

Debarment and suspension; Ineligibility.

Dated: May 23, 1996.

Alvin M. Pesachowitz,

Acting Assistant Administrator, Office of Administration and Resources

Management.

For the reasons set out in the preamble, under the authority at 33

U.S.C. 1361(a), 40 CFR Chapter I is 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 authority citation for Part 32 is revised to read as

follows:

Authority: E.O. 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.; E.O. 12689;

E.O. 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 ineligible 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

[[Page 28757]]

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.

* * * * *

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) 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 revised to read as follows:

Sec. 32.215 Exception provision.

(a) EPA may grant an exception permitting a debarred, suspended, or

voluntarily excluded person, or a person proposed for debarment under

48 CFR part 9, subpart 9.4, to participate in a particular covered

transaction upon a written determination by the agency head or an

authorized designee stating the reason(s) for deviating from the

Presidential policy established by Executive Order 12549 and

Sec. 32.200. However, in accordance with the President's stated

intention in the Executive Order, exceptions shall be granted only

infrequently. Exceptions shall be reported in accordance with

Sec. 32.505(a).

(b) 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.

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

exceptions under this section for EPA.

9. 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.

10. Section 32.321 is added to Part 32 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]

11. Section 32.330 is removed.

Sec. 32.425 [Removed]

12. Section 32.425 is removed.

[FR Doc. 96-14117 Filed 6-5-96; 8:45 am]

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